Civ Reviewer (Part 1)

PART I THE CIVIL CODE OF THE PHILIPPINES A.
Preliminary Title
Article 1. This act shall be known as the Civil Code of the Philippines. 1. a. Chapter 1: Effect and Effectivity of Laws When laws become effective EO 200
was a leap year). It was promulgated July 6, 1987, after President Aquino issued E.O. 209 promulgating the Family Code of the Philippines. In sum: promulgation = 07/06/87 Publication = 08/04/87 Effectivity = 08/03/88 Taada v. Tuvera FACTS: Petitioners were assailing the validity of several Presidential Decrees (socalled secret degrees) of then President Marcos. They claimed that said decrees were not valid and did not take effect as they had not been published as required by the law, particularly of Article 2, NCC. The government argued that publication in the O.G. is not a sine qua non requirement for the effectivity of laws where the laws themselves provide for their own effectivity dates. It is thus submitted that since the presidential issuances in question contain special provisions as to the date they are to take effect, publication in the O.G., is not indispensable for their effectivity, as Art. 2 of the NCC used the phrase unless otherwise provided.
Article 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette or in a newspaper of general circulation in the Philippines, unless otherwise provided. This Code shall take effect one year after such publication. (As amended by E.O. No 200, promulgated 18 June 1987). Q: Article 2 provides for the effectivity of two kinds of law, what are they? A: Civil Code and ordinary laws. Q: When does an ordinary law become effective? A: An ordinary law becomes effective 1. when expressly provided to take effect, or 2. if no such date is provided, then 15 days following the completion of its publication in the official gazette or in a newspaper of general circulation. Q: When did the Civil Code take effect? A: The new Civil Code took effect on August 30, 1950, one year after its publication in the O.G. on august 30, 1949. Note: This is an example of an exception to the 15 day period since Art. 2 expressly provided that the NCC shall take effect one year after its publication. Also, this is an exception to the general rule that the date of publication shall be that found in the O.G. or newspaper of general circulation and not the date of actual release thereof. The date of the O.G. containing the NCC was June 1949 but it was released only on August 30, 1949. (Release date was used!) Q: When did the Family Code took effect? A: It took effect on August 3, 1988, one year after completion of its publication in a newspaper of general circulation on August 4, 1987. (1988
ISSUES 1. 2. 3. 4. 5. May the law dispense with publication as long as it provides for the date of its effectivity? Must all laws be published? Where must the publication be made to make a law effective? When must the publication be made? What is the purpose of publication?
HELD: 1. NO. What the phrase unless otherwise provided in Art. 2 qualifies is the 15-day period after publication for which a law takes effect and not the fact of publication. The law may provide that it shall take effect after such period of time after publication other than 15 days (30 days, 1 year, even immediately) but always with publication. All laws of general application must be published such as penal laws; laws of local application; private laws as in the case of grant of citizenship to certain individuals. Thus, the SC declared that all presidential issuance of general application which have not been published shall have no force and effect, and it ordered that the
2.
CIVIL LAW MIDTERMS REVIEWER 4C and 4D AY 2006-2007 by: Merlin Ang, Joyce Briones, Fritzzie Espaol, Trina Ilarde, Jew Lao, Mike Mate, Bunny Quiros, Eeza Ramos, Victor Ramos, Clifton Sawit, Christine Trinidad
3. 4. 5.
unpublished decrees be published in the O.G. immediately. Therefore, all laws must be published. The publication must be made in the O.G. (as declared by the SC in this case) or in a newspaper of general circulation (after EO 200 was passed). Publication must be made as soon as possible. What this phrase means must be determined on a case-to-case basis. The purpose of publication is to give the general public adequate notice of the various laws which are to regulate their actions and conduct as citizens. Without such notice or publication, there would be no basis for the application of the maxim ignorantia legis no excusat as declared in Article 3, NCC.
Municipal ordinances dealing with internal regulations should apply the Local Government Code, no the New Civil Code. (old reviewer) Note: The examples mentioned above are not technically laws but are mere internal rules and regulations. Q: What does the phrase unless otherwise provided refer? Does this phrase dispense with publication? A: No. It only qualifies the 15 day period after publication. Thus, as a general rule, laws take effect 15 days after publication. The exception is when the law provides for a different period, in which case, the law shgall take effect after such period, but always with publication. It can take effect immediately, provided it is published. (Tanada v. Tuvera). Q: How many times must a law be published? A: As a general rule, only once (1x). The law, however, can provide otherwise. In which case, said provision shall prevail. Thus, the law can provide that it must be published once a week for 3 consecutive weeks or that it must be published in four newspaper of general circulation for two consecutive weeks, etc. Q: What part of the law should be published? A: The law should be published in its entirety, meaning its full text, in the exact wording in which it was approved and passed by the legislature, including all the commas, periods, etc. The law does not allow publication of summaries of legislation. There is no such thing as substantial compliance in good faith regarding publication. Q: How wide must the circulation be in order to be considered a newspaper of general circulation? A: There is no requirement in the law (E.O. 200) as to how wide the circulation must be in order to consider a newspaper one of general circulation. It is something that has to be defined on a case-to-case basis. For example: BOI rules and regulations define a newspaper of general circulation as one which has a circulation of at least 100,000 newspapers. Furthermore, it also need not be of nationwide publication. As long as it is published in the regional territory to which the law pertains, for instance, a law only affecting Metro Manila may be published only in Metro Manila. In this case, there is already sufficient compliance with the requirement of publication.
Q: Must all laws be published? A: Yes, all laws must be published. There is no exception to this rule. By word laws we mean laws made or passed by the legislature. These are laws of public nature, that us, affecting the interests of the public in general and not only those of a particular group of private persons. (Tanada v. Tuvera) Q: Give examples of laws which must be published. A: There are 3. 1. Implementing Rules if they implement the provisions of laws, they should be published. Note: Even in the absence of implementing rules, the publication of the law is sufficient to give effectivity to the law. Example: Expanded VAT law it took effect eve without publication of its implementing rules and regulations. 2. 3. 4. Central Bank Regulations if it affects the public, publication is necessary. Laws granting citizenship to certain individuals example: law granting Filipino citizenship to Ms. Mauritius. Law naming a public schpp;, a street etc.
Q: Give examples of laws which need not be published. Internal regulations of administrative agencies because they are not of public interests; Interpretative regulations issued by administrative bodies. Internal rules and regulations for purpose of compliance with their administrative functions.
Q: Must the law be published in the Official Gazette and also in a newspaper of general circulation? A: No. the law uses the term or the law may be published in either the O.G. or in a newspaper of general circulation. Dadole v. COA FACTS: In 1986, the RTC and MTC judges of Mandaue City started receiving monthly allowances of P1,260 each through the yearly appropriation ordinance enacted by the Sangguniang Panlungsod of the said city. In 1991, Mandaue City increased the amount to P1,500 for each judge. On March 15, 1994, the Department of Budget and Management (DBM) issued the disputed Local Budget Circular No. 55 (LBC 55) which provided that conditions for granting additional allowances to national government officials and employees assigned in local governments. It provided for immediate effectivity without need of publication. Petitioner judges argue that said circular is void for lack of publication. ISSUE: WON the DBM circular is void for lack of publication. HELD: The DBM circular is void for lack of publication. Administrative rules and regulations must be published if their purpose is to enforce or implement existing law pursuant to a valid delegation. It was held that a DBM circular that disallowed payment of allowances and other additional compensation to government officials and employees. At the very least, before the said circular under attack may be permitted to substantially reduce their income, the government officials and employees concerned should be apprised and alerted by the publication of subject circular in the Official Gazette or in a newspaper of general circulation in the Philippines to the end that they be given amplest opportunity to voice out whatever opposition they may have, and to ventilate their stance on the matter. This approach is more in keeping with democratic precepts and rudiments of fairness and transparency. DBM-CCC No. 10 has been re-issued in its entirety and submitted for publication in the Official Gazette per letter to the National Printing Office dated March 9, 1999. But this did not cure the defect because publication is
required as a condition precedent to the effectivity of a law to inform the public of the contents of the law or rules and regulations before their rights and interests are affected by the same. From the time the COA disallowed the expenses in audit up to the filing of herein petition the subject circular remained in legal limbo due to its non-publication. b. Mandatory effects of laws
Article 3. Ignorance of the law excuses no one from compliance therewith. 1. The law is deemed read in every (k) even if not expressly stated therein. Instance when mistake of law can be a ground to annul a contract: Article 526. He is deemed a possessor in good faith who is not aware that there exists in his title or mode of acquisition any flaw which invalidates it. He is deemed a possessor in bad faith who possess in any case contrary to the foregoing. Mistake upon a doubtful or difficult question of law may be the basis of good faith. Article 1334: Vitiation of consent on the ground of mistake must be mutual. Article 2154. If something is received when there is no right to demand it, and it was unduly delivered through mistake, the obligation to return it arises. Article 2155. payment by reason of mistake in the construction or application of a doubtful or difficult question of law may come within the scope of the preceding article.
2. 3. 4.
Q: May a person be excused for non-compliance with a law which is difficult to understand? A: No because the law provides that ignorance of the law excuses no one from compliance therewith. For example: The expanded VAT law, assuming that it is difficult to understand, does not excuse a tax payer subject to the VAT law from registering his company enterprise. Q: However, is a mistake in the application or in the interpretation of a difficult provision of law excusable?
A: Yes, provided that such mistake was committed in good faith. The basis for this is the third paragraph of Article 526. When there is a claim of good faith, this could lessen the liability of the person invoking it. Q: Distinguish ignorance of the law (mistakes of law) from ignorance of facts (mistake of fact). A: Ignorance of the law is no excuse, that is, no excuse for not complying with the law, ignorance of the fact eliminates criminal intent as long as there is no negligence. Therefore, a man who marries a second wife upon reasonable belief after due search that his wife, missing for ten (10) years, is dead, does not incur criminal responsibility even if it turns out that his first wife is still alive. This is merely ignorance of the fact. However, a person who charges usurious rates (assuming that the Usury Law is in effect) cannot claim justification in his ignorance of the usury law. Cleary, this is ignorance of the law. Q: Is ignorance of foreign law excusable? A: Ignorance of a foreign law would be a mistake of fact. Our courts do not take judicial notice of foreign laws. Such laws must be alleged and proved. Hence, the aforequoted provisions do not apply to foreign laws. c. Irretroactivity of laws
4.
Substantive rights are being declared for the first time and do not impair vested rights. 5. Tax laws (all the time) 6. Procedural laws (Liam Law Case) Ex. Spurious children under the old Civil Code now removed under the Family Code and declared to have the same rights as illegitimate children. Even if they were born before the FC, they may now enjoy the rights of illegitimate children under the FC. i) Exceptions
Q: What are the exceptions to these exceptions? A: 1. An ex post facto law cannot be promulgated. An ex post facto law is a subsequent penal law made to apply to acts which at the time of performance was not a crime. 2. When retroactivity would impair vested rights. 3. When it is not favorable to the accused. Liam Law v. Olympic Sawmill FACTS Plaintiff loaned defendant P10K. When the loan was not paid on the date, plaintiff agreed to extend the term of the loan. Another loan document was executed but the obligation was increased by P6K. On due date of the extension, defendant still did not pay. Thus, plaintiff sued defendant. Defendant alleged that the additional amount constituted usurious interest and that since the claim of usury was not denied specifically under oath by plaintiff (Section 9 of the Usury Law) then it was deemed admitted.
Q: What is the general rule with regard to the effectivity of laws? A: The general rule is that laws are prospective in nature. The reason for this is that if the rule was that laws were retroactive, grave injustice would occur, for these laws would punish individuals for violations of laws not yet enacted. While ignorance of the law does not serve as an excuse, such ignorance refers only to laws that have already been enacted. Q: What are the exceptions to this rule? A: A law is retroactive when: 1. The law provides for its retroactive application. (Must) Ex. The Family Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws. (Art 255, FC) 2. Penal laws can be made retroactive provided it is favorable to the accused and the accused is not a habitual criminal. 3. Curative legislation
ISSUE: Whether or not plaintiff should have denied the allegation. HELD: NO. The foregoing provision envisages a complaint filed against an entity which has committed usury, for the recovery of the usurious interest paid. In that case, if the entity sued shall not file its answer under oath denying the allegation of usury, the defendant shall be deemed to have admitted the usury. The provision does not apply to a
case, as in the present, where it is the defendant, not the plaintiff, who is alleging usury. Usury law has been legally non-existent. Interest can now be charged as lender and borrower may agree upon. The Rules of Court in regards to allegations of usury, procedural in nature, should be considered repealed with retroactivity. Statutes regulating the procedure of the courts will be construed as applicable to actions pending and undetermined at the time of their passage. Procedural laws are retrospective in that sense and to that extent.
with each other as they cannot exist together, then implied repeal may be allowed. Q: What is the effect of repeal of the repealing law? (Revival of Laws) A: 1. Express Repeal If you have a law which has been expressly repealed and the repealing law is itself repealed, the first law is not considered revived, unless the third says that the first law has been revived. 2. Implied Repeal if the first law is repealed impliedly then the general rule is that the repeal of the repealing law revives the first law. The exception is that there is no revival if: a. The third law stated that the first law is not revived; or b. The first and the third law are inconsistent. Q: Is there a repeal by a lapse of time? A: Yes. The law in this case had a certain period of time being effective. It ceased to be effective upon the expiration of the time provided for its effectivity. For example: Naturalization laws providing for a certain period of time whereby temporary status given to a foreigner expires after a certain period of time (i.e. after 5 years, et.) Q: What is the effect of a law declared to be void or unconstitutional? A: As a general rule, a law declared void has no effect because the law us deemed not to have existed at all and there was no period of time within which it took effect. The exception to this rule is when the judiciary recognizes some of its effects prior to the declaration of nullity. (Doctrine of Operative Fact). e. Waiver of Rights
Art. 5. Acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes their validity. d. Termination of effectivity of laws
Note: The executive has no function in the termination of laws. Only the Judiciary and the legislature have the power to terminate a law. Art. 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom or practice to the contrary. When the courts declared a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution. Q: What is repeal? A: A law has a certain period of being effective until such time as it ceases to be effective due to repeal. Q: What are the kinds of repeal? A: 1. Express Repeal a subsequent law is passed expressly stating that a prior law has ceased to have any effect. 2. Implied Repeal a subsequent law is passed which is inconsistent with a former law and the two are not capable of standing or existing together. Q: Is implied repeal favored? A: No. As a general rule, implied repeal is not favored. As long as you can reconcile both laws, you must reconcile them. But if they are so inconsistent
Art. 6. Rights may be waived, 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. Q: Can rights be waived? A: Yes as long as the waiver is not contrary to law, public order, public policy, morals, good customs, or is prejudicial to third persons with a right recognized by law. Q: Give examples of waivers. A:
1. 2.
Right of redemption This right can be waived except if it prejudices others. Public land Act Waiver of Homestead rights is against public policy.
Example: Legislature enacted EO 200 which provide that the publication of laws may be made in a newspaper of general circulation. This amended the decision of the SC in Tanada v. Tuvera. Q: Can the SC amend or repeal laws? A: No (Made reference to Old Reviewer) Art. 9. No judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws. Q: What are the differences between criminal and civil cases, as far as this provision is concerned? A: In criminal cases, if there is no law covering the particular situation, the court must dismiss the same. In civil cases, even if there is no applicable law to cover the particular situation, the court must decide using: 1. rules of statutory construction 2. foreign decisions/laws 3. customs a. used regularly b. used uniformly c. lapse of time Example: If a deeply religious mon, realizing that it was June 24th, Feast of St. John the Baptist, threw water at Portia on said day, the courts will consider the practice of throwing water on that day. Q: What must be established for customs to be the basis of judicial decisions? A: The custom must have: 1. Some form of regularity 2. been USED FOR A LONG TIME 3. have been subject to IMPLIED ACQUIESCENCE from the legislative body. Art. 10. In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail. Art. 11. Customs which are contrary to law, public order or public policy shall not be countenanced. Example: Even if it is a custom in a certain area that men can have as many wives as he like, such custom will not be upheld.
Q: What are the restrictions as to waivers? A: 1. Capacity prerequisite to waiver because one must have the will to waive; not valid if made by an incapacitated person. 2. The person must have the waivable right. For example, succession is an inchoate right and so an heir cannot waive his rights before the death of the testator. 3. The waiver must not be against law, public order, public policy, etc. f. Judicial decisions
Art. 8. Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines. Q: Does the term judicial decisions under this article refer to all kinds of court decisions? A: No. It refers only to supreme court decisions and not to decisions rendered by the the lower courts. Q: Since SC decisions also form part of the law of the land, do we apply the rule on publication that before they may be effective, they must be published? A: No. Publication is not necessary. What is important is that such decision are already final and executory. Judicial decisions are not like laws per se. Their application is restricted in the sense that they apply only to parties in the case. They may apply to other parties provided they involve the same subject matter. (Paras Doctrine of Stare Decisis) Q: When does a judicial decision, which interprets a law, cease to be part of the law of the land? A: A judicial decision that interprets law cease to be part of the law of the land: 1. When the SC reverses itself; and 2. When the legislature passes a law that is opposed to an SC decision.
Art. 12. A custom must be proved as a fact, according to the rules of evidence. De Roy v. CA FACTS This special civil action for certiorari seeks to declare null and void 2 resolutions of the Special First Division of the CA. Petitioners are assailing the denial of their motion for extension of time to file a motion for reconsideration and CAs directive to enter judgment since the decision has become final. While the second resolution pertains to the denial of petitioners MR for having been filed out of time. Petitioners contended that the doctrine enunciated in the HABALUYAS CASE (the 15-day period for appealing or for filing a MR cannot be extended) should not be made to apply in the case at bar owing to the nonpublication of the Habaluyas decision in the O.G. as of the time the subject decision of the CA was promulgated.
Q: When does art 13 apply? A: This provision applies if the year, month or other unit of time is not referred to by name. For Example: If the law says that a law is valid for one year or more then you count 365 x (# of years); not the days of a particular year. This provision applies to all contractual stipulations, such as to a promissory note. The reason behind this is that one has to read the law as part of every contract. Q: What is the rule if the last day falls on a Sunday or a legal holiday? A: 1. For CONTRACTS: The obligor is required to pay on said day because the obligation was agreed upon by the parties and they are presumed to know that the last day agreed upon was a Sunday or Legal Holiday Exception: If there is a stipulation to the contrary in the contract. 2. For RULES OF COURT, or OTHER LAWS which so specifically provide: One can file his papers on the next business day. Q: How about payment of taxes? A: Although BIR officials are in the habit of extending deadlines, if the last day for the filing of returns or payments pf taxes should fall on a Sunday or a Holiday, it is best to file or pay up before such date. Quiqui v. Boncaros FACTS In the lower court, petitioners filed a complaint for reconveyance and annulment of title with damages against respondents. In an Order dated 16 July 1979, judge dismissed the compliant. Counsel for petitioners received a copy of said order on 17 July 1979. On 17 August 1979, petitioners filed a MR of the order of the dismissal dated 16 August 1979. Private respondents opposed the MR on the ground that it had been filed beyond the 30-day reglementary period under the Rules, the last day being 16 August 1979. The judge denied motion. Petitioners appealed the denial citing de las Alas case where it was stated that a one day delay does not justify the dismissal of appeal.
ISSUE: Whether the court decisions of a case need to be published in the O.G. before they can be effective and binding. HELD: NO. Contrary to petitioners view, there is no law requiring the publication of SC decisions in the O.G. before they can be binding and as a condition to their becoming effective. It is the bounden duty of counsel as lawyer in active law practice to keep abreast of decisions of the SC particularly where issues have been clarified, consistently reiterated, and published in the advance reports of SC decisions and in such publications as the SCRA and law journals. g. Computation of time
Art. 13. When the laws speak of years, months, days or nights, it shall be understood that years are of three hundred sixty-five days each; months, of thirty days; days, of twenty-four hours; and nights from sunset to sunrise. If months are designated by their name, they shall be computed by the number of days which they respectively have. In computing a period, the first day shall be excluded, and the last day included.
ISSUE: Whether or not the MR was filed out of time. HELD: YES. According to the Civil Code, in computing a period, the first day shall be excluded and the last day shall be included. Petitioners received a copy of the Order of Dismissal of their Complaint on 17 July. In computing the 30-day period July 17 is excluded. Thus, petitioner had up to August 16 to file their MR. The observation in the de las Alas case does not apply to petitioners case because the cited case is qualified by under the circumstances obtaining in this case. Petitioners did not even offer any reasonable explanation for their delay. For the petitioners to seek exception for their failure to comply strictly with the requirements for perfecting their appeal, strong compelling reasons, like the prevention of a grave miscarriage of justice, must be shown to exist in order to warrant the suspension of the rules. Art. 14. 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. Q: For purposes of criminal law, what principle do we apply? A; We apply the principle of territoriality, which means that since any offense committed within our territory offends the state, any person, whether citizens or aliens, can be punished for committing a crime here. h. Nationality Principle
For Criminal laws: What is important is the place where the act was committed, so even aliens here are liable for breach of criminal laws. EXCEPTIONS (in international law) 1. Diplomatic immunity 2. 2. treaty stipulations 3. Philippine embassies abroad 4. vessels or airplanes registered under Philippine laws
For Civil laws: What is importance is citizenship.
Our Citizens are covered wherever they may be as regards: 1. family rights and duties 2. status 3. legal capacity (capacity of a person that can produce legal effects) 4. conditions
Q: What is the significance of determining legal capacity of a person? A: You can invoke legal capacity for purposes of entering into contracts, for purposes of succession and for purposes of entering into marriage. Q: In determining the legal capacity of a person, what principles do we apply? A: General Rule: We apply the Nationality Principle. Exceptions: 1. If one enters into contracts involving real or personal properties (I.E. sale, donation, mortgage)- LEX SITUS CELEBRATIONIS (or law of the place where the property is located). As an exception to this exception: In cases of succession, use Nationality Principle) 2. For the formal validity of wills LEX LOCI CELEBRATIONIS (or law oif the place where the contract is celebrated) 3. Marriages LEX LOCI CELEBRATIONIS; but only as to: a. Authority of the solemnizing officer b. Marriage license c. Marriage ceremony Q: Armel married Gilbert in San Francisco (Where marriage of 2 persons of the same sex is allowed). A and B are both Filipinos. Is the marriage valid here in the Philippines? A: Looking at Article 26 of the Family Code: Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also
Art. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad. Q: For purposes of Civil Laws, what principle do we apply? A: We apply the principle of nationality, which in simpler terms means that regardless of where a person may be, the law of the country where he is a citizen of, will follow him on matters dealing with family rights and duties, status, condition and legal capacity. Q: Distinguish Territoriality from nationality!
Territoriality
Nationality
be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6), 3637 and 38. Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. The exceptions provided therein do not refer to sexes of the contracting parties. The literal interpretation of the cited provision is that, if the marriage is valid in the country where it is celebrated, it is also valid in the country where the parties are citizens. However, we have no jurisprudence yet to confirm that such situation is covered by Article 17 of the NCC so this case remains to be in issue. i) Conflicts rules
children of the American decedent in the Philippines are not entitled to legitimes. Art. 17. 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 Philippine laws shall be observed in their execution. Prohibitive laws concerning persons, their acts or property, and those which have, for their object, public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. Q: To what does LEX LOCI CELEBRATIONIS apply? A: It applies to formal requirements. Q: Distinguish between wills and contracts!! BASIS Extrinsic Validity WILLS Lex loci celebrationis; if aliens here then according to their nationality, residence or domicile National law of the decedent National law decedent of the CONTRACTS Lex loci celebrationis Except: property e.g. mortgage, pledge; in which case: LEX SITUS Parties can freely stipulate as long as it is not contrary to law National law of the parties except if it involves real or personal properties which is governed by LEX SITUS
Art. 16. Real property as well as personal property is subject to the law of the country where it is stipulated. However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found. Q: Explain Renvoi!! A: Renvoi literally means a referring back. The problem arises when there is a doubt as to whether a reference in our law (Such as art. 16 par 2) to a foreign law (such as the national law of the deceased) 1. is a reference to the internal law of said foreign law, OR 2. is a reference to the while of the foreign law, including its conflicts rules. In the latter case, if one state involved follows the Nationality theory, and the other, the domiciliary theory, there is a possibility that the problem may be referred back to the law of the first state. Example: In the case of Bellis v. Bellis, the court held that successional rights are determined by the national law of the testator, which in this case has US laws. If the US law does not provide for legitimes, then the illegitimate
Intrinsic Validty
Legal Capacity
Q: What is the rule of extraterritoriality? A: Even if the act be done abroad, still if executed before Philippine Diplomatic and Consular officials, the solemnities of the Philippine laws shall be observed. The theory is that the act is being done within an extension of Philippine Territory.
Q: Since Article 17 is silent as to what law should govern the intrinsic validity of contracts in general, what do we apply? A: The prevailing rule in private international law is to consider the lex loci voluntatis (the law of the place voluntarily selected) or the lex loci intentionis (law of the place intended by the parties to the contract) Art. 18. In matters which are governed by the Code of Commerce and special laws, their deficiency shall be supplied by the provisions of this Code. Llorente v. CA FACTS: Lorenzo and Paula were married in Camarines Sur. Before the outbreak of the Pacific War, Lorenzo departed for the US while Paula stayed in their conjugal home in Camarines Sur. Lorenzo was then admitted to US citizenship. Upon the liberation of the Philippines, Lorenzo was granted an accrued leave by the U.S. Navy to visit his wife in the Philippines. When he went back, he discovered that Paula was pregnant and was living in and having an adulterous relationship with his brother. Lorenzo returned to the US and filed for divorce with the Superior Court of the State of California. Lorenzo returned to the Philippines and married Alicia who had no knowledge o fthe first marriage even if they resided in the same town as Paula. Before Lorenzo died, he executed a will which was pending before the probate court. After his death, Paula filed with the same court a petition for letters of administration over his estate in her favor. RTC found that the divorce decree granted to Lorenzo is void and inapplicable in the Philippines, therefore the marriage he contracted with Alicia is likewise void. CA: affirmed. ISSUE: Whether or not the divorce is valid. HELD: YES. In Van Dorn v. Romillo, Jr., the court held that owning to the nationality principle embodied in Article 15 of the CC, only Philippine nationals are covered by the policy against absolute divorces, the same being considered contrary to the concept of public policy and morality. In the same case, the court ruled that aliens may obtain divorces abroad, provided they are valid according to their national law.
Furthermore, in the case of Quita v. CA, that once proven that respondent was no longer a Filipino citizen when he obtained the divorce from petitioner, the ruling in Van Dorn would become applicable and petitioner could very well lose her right to inherit from him. The CA failed to apply these doctrines in the case of Lorenze. Thus, the ruling must be reversed. 2. Chapter 2: Human Relations
Q: What is the relevance of these provisions? A: These are all-encompassing provisions which serve as general guidelines to human relations. General in the sense that these provisions will not be applied to cases where more specific laws are provided. These provisions are also known as the lawyers bank for these are the laws to which a lawyer resorts should he run out of arguments. a. Application
De Tavera v. Phil. Tuberculosis Society FACTS: Mita Pardo de Tavera filed a case against the respondents for summarily removing her from her position, the lawful cause of which she was not informed. Thereafter, Alberto Romulo was appointed to the position. Defendants alleged that under the By-Laws of the Society, the position is held at the pleasure of the Board and when the pleasure is exercised, it only means that the incumbent has to vacate the same because her termed has expired. ISSUE: Whether or not the removal was contrary to the CC provisions on human relations. HELD: NO. Petitioner cannot seek relief from the general provisions of the CC on Human Relations nor from the fundamental principles of the Constitution on preservation of human dignity. While these provisions present some basic principles that are to be observed for the rightful relationship between human beings and the stability of social order, these are merely guides for human conduct in the absence of specific legal provisions and definite contractual stipulations. In the case at bar, the Code of By-Laws of the Society contains a specific provision governing the term of office of petitioner. The same
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necessarily limits her rights under the CC and Constitution upon acceptance of the appointment. Moreover, the act of the Board in declaring her position as vacant is not only in accordance with the Code of By-Laws of the Society but also meets the exacting standards of honesty and good faith. The meeting of May 29, 1974, at which petitioners position was declared vacant, was called specifically to take up the unfinished business of the Reorganizational Meeting of the Board of April 30, 1974. Hence, said act cannot be said to impart a dishonest purpose or some moral obliquity and conscious doing to wrong but rather emanates from the desire of the Board to reorganize itself. b. Duty to act with justice, observe honesty and good faith
advantage of his position and of unlawfully refusing to give Curio his clearance. Sandiganbayan acquitted Llorente but held him liable for civil damages. The Sandiganbayan ruled that Llorente was guilty of abusing his right under Article 19 of the CC and as a public officer who caused damages to an aggrieved party under Art. 27. Llorente appealed to the SC.
Art. 19. 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. Q: What is the consequence of not observing this article? A: In general, the violation of this article will result only in civil liability. In some cases, however, the same act may be the basis of criminal prosecution. Llorente v. Sandiganbayan FACTS: The Philippine Coconut Authority (PCA) went through massive reorganization. Some employees were required to apply for PCA clearances in order to receive gratuity benefits. The rules provide that the clearance shall be signed by the PCA officers only when there is no item appearing under pending accountability or after every item previously entered thereunder is fully settled. Settleemnt thereof shall be written in red ink. Despite this rule, it is the custom in the PCA for the responsible officer to sign the clearances under the condition that any pending accountability shall be offset by the gratuities which the terminated employee will receive later on. Mr. Llorente, the clearance officer, followed this practice in the past. But in one particular instance involving the clearance of Mr. Curio was not cleared because of a pending accountability and was unable to seek employment in other government offices. After 3 attempts to get his clearance, Curio charged Llorent before the Sandiganbayan. Curio accused Llorente of acting in bad faith, of taking
ISSUE: Whether or not Llorente is liable for civil damages. HELD: YES. The acts of the petitioner were legal but it does not follow that his acts were done in good faith. He had no valid reason to go legal all of a sudden with respect to Mr. Curio since he had cleared 3 employees who were similarly circumstanced in that they all had pending obligations when, their clearances were filed for consideration, warranting similar official action. It is no defense that the petitioner was motivated by no ill-will since the facts speak for themselves. It is no defense either that he was, after all, complying merely with legal procedures since he was not as strict with respect to the 3 retiring other employees. There can be no other logical conclusion that he was acting unfairly, no more, no less, to Mr. Curio. It is the essence of Article 19 of the CC, under which the petitioner was made to pay damages, together with Article 27, that the performance of duty be done with justice and good faith. Q: Can a perfectly legal act be a source of civil liability? A: Yes. The case of Lorente involved a perfectly legal act which became a source of civil liability because it was done in bad faith. Furthermore, the Anti-graft and Corrupt Practice Act punishes evident bad faith of public officials. Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same. Art. 21. Any person who wilfully 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 damage. Q: What does contrary to law in Art. 20 mean? A: Contrary to law means that the act violated provisions of both the Civil and Penal Codes. Q: Distinguish Art 20 from Art 21!!
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ARTICLE 20 1. The act is illegal. A law was violated.
2. The act was done willfully or may have been negligently committed. 3. The intent of the offender is not important in determining liability. c.
ARTICLE 21 1. The act is not illegal. No law was violated, but offended public morals, good customs and public policy. 2. The act was done willfully. 3. The intent of the offender is immaterial.
Q: What if Vic simply said, Joy, I shall marry you someday. And Joy, not wanting to miss this rare opportunity, set the wedding in two weeks time and spent her life savings on the wedding preparations. Overwhelmed, Vic backed out. Can this woman recover? A: No she cant. The law distinguishes between expenses in preparation for a concretely planned wedding, i.e. date definitely set by both parties etc., and the expenses incurred even if no concrete plans had been made. The law allows recovery only for the concretely planned weddings for there, the expenses were reasonably made. Q: What if Vic promised to marry Joy simply to seduce her? A: Joy can recover damages, both actual and moral, because deceit is involved in seduction. Q: Vic dumps Joy. Joy, unable to accept her destiny, intentionally kicked the bucket. Is Vic liable? A: No, Vic is not liable because two consenting adults are deemed to know the risk of loving another and not being loved in return. Q: Vic and Joy are romantically r elated but have yet no plans of marriage. One day, they had casual sex. Can Joy recover moral damages? A: It depends on the age of Joy. If she were still a minor, she can recover moral damages. If she is already of legal age, she cannot recover. Q: What if in the previous example, Joy got pregnant. Can she recover actual hospital expenses? A: Yes, but Dean says that the hospital bill, under the new rule, will be split 50% on both parties. Note: (Under the older version of this reviewer) It says that the girl can recover the amount equal to the income lost during pregnancy and childbirth. The Dean however, didnt mention this in class. According to the old reviewer, actual damages include hospitalization and loss of earning capacity. Q: Joy is the breadwinner in her family. Because of their break up, she kills herself. Can her parents sue Vic for loss of income? A: No they cannot. The law distinguishes between income lost by the deceived party due to pregnancy and income lost by the persons dependent (e.g. family) on the deceived party due to her suicide. Income lost by the dependents is not recoverable.
Actions for breach of promise to marry
Q: Vic and Joy became lovers. A month before their marriage, Felix counseled Marvin against sealing a fate worse than death. The following morning, Vic hiked off to Montalban and broke Joys heart. Trying to hide her grief, the ever poised Joy waited for Vic to finish squirming his way out of their relationship and then thanked him for the time they had together. That afternoon however, Joy rushed to Judge Pimentel and filed a case for actual and moral damages amounting to 2 Million Pesos. Can this poor heart broken woman recover damages? A: Yes and No. We must distinguish between the recovery of moral damages from actual damages. The mere breach of a promise to marry will not give rise to moral damages. The law considers such premarital relations as voluntarily chosen by the two consenting adults. After all, all is fair in love. However, if Joyce had incurred actual expenses, i.e., gowns, catering, invitations, etc., in preparation of the wedding which had been concretely planned, then such actual damages may be recovered. In the case of Wassmer v. Velez, the SC allowed the bride-to-be to recover the expenses for the wedding. The basis for the damages was not for the breach of the promise but the actual expenditures. Q: Vic hated Joys guts. He devised a plan to humiliate her. He awaited until she was near menopause and proposed to marry her. On the day of their wedding, Vic sent Joyce, who was waiting at the altar, a letter saying, Dream On. Can Joyce recover moral and actual damages? A: Yes. Where a man deliberately fails to appear at the wedding in order to humiliate the woman inflicts irreparable injury to her honor. She can recover both moral and actual damages.
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Note: Ask Dean if the answer is correct. Q: Vic and Joy are engaged. One month before the wedding, naughty little Joy had an affair with another man. She got pregnant but kept this from Vic. Can this wretched woeful man recover? A: Yes, Vic can recover because in keeping her pregnancy a secret, Joy acted with deception. But according to the old reviewer (older version), if there was no deception, as in Joy didnt know that she was pregnant, she would not be liable. Bunag v. CA FACTS: A Complaint for damages for alleged breach of promise to marry was filed by Zenaida Cirilo against Conrado Bunag Jr. and his father. On August 20, 1983, on a finding that petitioner had forcibly abducted and raped Zenaida, rendered a decision ordering Bunag to pay moral, exemplary and temperate damages. CA: affirmed decsion. Bunag contends that both TC and CA failed to take into consideration the alleged fact that he and Zenaida had agreed to marry, and that there was no case of forcible abduction with rape, but one of simple elopement and agreement to marry. Bunag further asserts that since the action involves a breach of promise to marry, the TC erred in awarding damages. ISSUE: Whether or not award of damages is proper. HELD: NO. In this jurisdiction, we adhere to the time-honored rule that an action for breach of promise to marry has no standing in the civil law, apart from the right to recover money or property advanced by the plaintiff upon the faith of such promise. Generally, therefore, a breach of promise to marry per se is not actionable, except where the plaintiff has actually incurred expenses for the weeding and the necessary incidents thereof. Baksh v. CA FACTS: This involves an Iranian who promised to marry a barrio lass from Pangasinan. The parents of the girl made some preparations for the
wedding by looking for pigs and chickens, inviting friends and relatives and contracting sponsors. ISSUE: Whether or not Article 21 is applicable and award of damages is proper. HELD: YES. Article 21 is designed to expand the concept of torts or quasidelict in this jurisdiction by granting adequate legal remedy for the untold number of moral wrongs which is impossible for human foresight to specifically enumerate and punish in the statue books. In the light of the above laudable purpose of Article 21, the court held that where a mans promise to marry in fact the proximate cause of the acceptance of his love by a woman and his representation to fulfill that promise thereafter becomes the proximate cause of the giving of herself unto him in a sexual congress, proof that he had, in reality, no intention of marrying her and that the promise was only a subtle scheme or deceptive device to entice or inveigle her to accept him and to obtain her consent to the sexual act, could justify the award of damages pursuant to Article 21 not because of such promise to marry but because of the fraud and deceit behind it and the willful injury to her honor and reputation which followed thereafter. It is essential, however, that such injury should have been committed in a manner contrary to morals, good customs, or public policy. d. Unjust enrichment at the expense of others
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. Q: What is the reason for this article? A: Unless the benefited party indemnifies the other unjust enrichment will occur. Give an example: Richards cows were grazing. Suddenly a storm flooded the valley. The cows ran up the hill where Robert planted vegetables. Roberts crops were destroyed. Although Richard was not at fault, she benefited from what happened. Richard should indemnify Robert. Q: Does the act have to be illegal?
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A: No. Art. 24. 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. Art. 25. Thoughtless extravagance in expenses for pleasure or display during a period of acute public want or emergency may be stopped by order of the courts at the instance of any government or private charitable institution. Q: What kind of court order is contemplated under this article? A: Writ of Injunction Q: Who may file the action under this article? A: The government or a private charitable institution may file the action. Under General Order No. 15, the action can also be filed by any private individual. Q: Is article 25 a valid limitation on property? A: Yes, under this article, ostentatious display property may be curtailed during times of emergency or acute public want. e. Rights to personal dignity and privacy
Q: Is a public figures life always subject to public scrutiny? A: No. Prying into the purely private lives of public figures may be the basis of an action under this provision. Q: What sort of action may be filed under this provision? A: If the act is not yet accomplished, an action for injunction may be instituted. If the damage has already been done, an action for damages may be instituted. f. Liability of Public Officers
Art. 27. 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 he latter, without prejudice to any disciplinary administrative action that may be taken. Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: (1) Freedom of religion; (2) Freedom of speech; (3) Freedom to write for the press or to maintain a periodical publication; (4) Freedom from arbitrary or illegal detention; (5) Freedom of suffrage; (6) The right against deprivation of property without due process of law; (7) The right to a just compensation when private property is taken for public use; (8) The right to the equal protection of the laws; (9) The right to be secure in one's person, house, papers, and effects against unreasonable searches and seizures; (10) The liberty of abode and of changing the same; (11) The privacy of communication and correspondence; (12) The right to become a member of associations or societies for purposes not contrary to law; (13) The right to take part in a peaceable assembly to petition the government for redress of grievances; (14) The right to be free from involuntary servitude in any form; (15) The right of the accused against excessive bail; (16) The right of the accused to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a
Art. 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they 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 defect, or other personal condition. Q: If xs picture is placed in the newspaper, is there an intrusion of privacy? A: It depends. If X were a private individual, there will be an invasion of privacy. If X were a government official or a movie star, there wont be.
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speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witness in his behalf; (17) Freedom from being compelled to be a witness against one's self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make such confession, except when the person confessing becomes a State witness; (18) Freedom from excessive fines, or cruel and unusual punishment, unless the same is imposed or inflicted in accordance with a statute which has not been judicially declared unconstitutional; and (19) Freedom of access to the courts. In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and mat be proved by a preponderance of evidence. The indemnity shall include moral damages. Exemplary damages may also be adjudicated. The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal Code or other penal statute. Art. 34. When a member of a city or municipal police force refuses or fails to render aid or protection to any person in case of danger to life or property, such peace officer shall be primarily liable for damages, and the city or municipality shall be subsidiarily responsible therefor. The civil action herein recognized shall be independent of any criminal proceedings, and a preponderance of evidence shall suffice to support such action. Q: Are public officers liable under the Civil Code? A: Yes, Under Art. 27, 32, and 34. Q: Can they be held liable under Arts. 19, 20 and 21? A: Yes, but under these provisions, they will be held liable not in their character as public officers but only as private individuals. Thus their liability under Articles 19, 20 and 21 will not pass to the government; it is merely a personal responsibility. Q: What does Article 27 refer to? A: It refers to a public officers liability for NON FEASANCE, which means that the officer refuses or neglects to do his official duties.
Q: What should be the nature of the function of the public officer in order that Art. 27 would apply? A: The public officer must be exercising ministerial functions. (e.g. register of deeds) Art. 27 does not apply to government officials performing discretionary functions. Q: May judges be held civilly liable for damages when they render an adverse judgment? A: No, because judges perform discretionary functions. Q: How can judges be held civilly liable when they act with abuse of discretion? A: File an action for Certiorari. Remember that one cannot file an action for damages against a judge, but under the Revised Penal Code, a judge may be held criminally responsible if he renders an unjust judgment. Q: What other government officials are immune from civil actions? A: Officers of APT or PCGG. The law that created them specifically states that if, in the exercise of their function, said officers commit an act which will ordinarily be the basis of civil damages, they shall be exempt from such liability, although they are not immune form criminal prosecution. (They may still be held liable under article 19, 20, and 21 under their personal capacity). Q: What are the requisites for an action under Art. 27? 1. 2. 3. 4. That the defendant can be a public official charged with the performance of official duties That there be a violation of an official duty in favor of an individual That there be wilfullness or negligence in the violation of such official duty; and That there be an injury to the individual
Q; When is the defendant exempt from liability under Art. 27? There is no liability under Art. 27 if the non performance of official duty is with just cause, such as impossibility of performance and contributory negligence of the plaintiff Q: To whom does Art 32 apply?
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It applies to both public officers or employees and private individuals who violate or obstruct any of the rights mentioned in the provision. It, however, does not apply to judges unless they render an unjust judgment in violation of the Revised Penal Code. Aberca v. Ver FACTS: Petitioners filed an action for damages against General Ver and members of the Task Force Makabansa for alleged illegal searches and seizures conducted by the Task Force and other violations of their rights and liberties guaranteed under the Constitution. General Ver ordered the task force to conduct pre-emptive strikes against known communist-terrorist (CT) underground houses in view of increasing reports about CT plans to sow disturbances in Metro Manila. Plaintiffs allege, among others, that complying with said order, elements of the task force raided several places, employing in most cases defectively issued judicial search warrants; that during these raids, certain member of the raiding party confiscated purely personal items belonging to them; arrested without proper warrants issued by the courts. ISSUE: Whether or not defendants are liable. HELD: YES. The fact that respondents as members of the AFP were merely responding to their duty cannot be construed as a blanket license or a roving commission untrammeled by any constitutional restraint. The Constitution remains the supreme law of the land to which all officials, high or low, civilian or military, owe obedience and allegiance at all times. Article 32 of the CC which renders any public officer or employee or any private individual liable in damages for violating the Constitutional rights and liberties of another, as enumerated therein, does not exempt the respondents from responsibility. Only judges are excluded from liability under the said article, provided their acts or omission do not constitute a violation of the Penal Code or other penal statue. Military authorities are not restrained from pursuing their assigned task or carrying out their mission with vigor but are required to observe constitutional and legal safeguards.
Tabuena v. Sandiganbayan FACTS: Luis Tabuena and Gerardo Dabao, both public officers, being then the General Manger and Assistant General Manager, respectively of Manila International Airport Authority (MIAA), they being the only ones authorized to make withdrawals. President Marcos instructed Tabuena over the phone to pay directly to the presidents office and in cash what the MIAA owes PNCC. A week later, Tabuena received from the private secretary of Marcos a Presidential Memorandum reiterating in black and white such verbal instruction. In obedience to Marcos instruction and memorandum, Tabuena with the help of Dbao and Peralta, caused the release of P55M of MIAA funds by means of 3 withdrawals. The disbursement was, as described by Tabuena and Peralta themselves, out of the ordinary and not based on the normal procedure. Not only were there no vouchers prepared to support the disbursement, the P55M was paid in cold cash. Also, no PNCC receipt for the P55M was presented. A case was filed in Sandiganbayan against the petitioners. The defense of Tabuena and Prealta was that they acted in good faith. Tabuena claimed that he was merely complying with the Marcos memorandum which ordered him to forward immediately to the Office of the President P55M in cash as partial payment of MIAAs obligations to PNCC and that he was of the belief that MIAA indeed had liabilities to PNCC. ISSUE: Whether or not the defense of good faith is applicable. Whether or not petitioners are liable. HELD: YES. As a recipient of a directive coming from the highest official of the land no less, good faith should be read on a subordinate government officials compliance, without hesitation nor any question with said order. Tabuena had no other choice but to make the withdrawals, for that was what the Marcos Memorandum required him to do. He could not be faulted if he had to obey and strictly comply with the presidential directive, and to argue otherwise is something easier said than done. Marcos was undeniably Tabuenas superior the former
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being then the President who unquestionably exercised control over government agencies such as MIAA and PNCC. Even if the order is illegal if it is patently legal and the subordinate is not aware of its illegality, the subordinate is not aware of its illegality, the subordinate is not liable, for then there would only be a mistake of fact committed in good faith. YES. The subordinate who, in following an order of a superior, failed to observe all auditing procedures of disbursement, cannot escape responsibility for such omission but where he acted in good faith, his liability should only be administrative or civil in nature, nor criminal.
UPON MOTION OF THE DEFENDANT, THE COURT MAY REQUIRE THE PLAINTIFF TO
FILE A BOND TO ANSWER FOR DAMAGES IN CASE THE COMPLAINT SHOULD BE FOUND TO BE MALICIOUS. IF IN A CRIMINAL CASE THE JUDGMENT OF ACQUITTAL IS BASED UPON REASONABLE DOUBT, THE COURT SHALL SO DECLARE. IN THE ABSENCE OF ANY DECLARATION TO THAT EFFECT, IT MAY BE INFERRED FROM THE TEXT OF THE DECISION WHETHER OR NOT THE ACQUITTAL IS DUE TO THAT GROUND.
Q: What happens when one is prosecuted for a criminal charge? When a person is criminally prosecuted, he is either acquitted or convicted. If he is convicted, in the absence of any independent civil action, the criminal conviction will also be the basis for his civil liability. Q: When a person is acquitted for the crime charged, may he still be held liable for civil damages? Yes. He is still liable for civil damages if the reason for acquittal is that his guilt has not been proved beyond reasonable doubt. Q: When is the acquitted person free from civil liability? 1. 2. 3. h. His acquittal is grounded on the courts finding that he did not commit the crime The action has already prescribed There are justifying circumstances except in the case of avoidance of greater evil or injury Independent Civil Actions and Prejudicial Questions
Q: To whom does Art 34 apply? It applies to members of city or municipal police force who refuse or fail to render aid or protection to any person in case of danger to life or property Q: What is the nature of liability of the police officer and that of the municipal corporation under Art. 34? The liability of the police officer shall be primary while that of the municipal corporation shall be subsidiary Q: Does Art 34 still apply considering the present structure of the police force? No, because at present, the police force is under the control of the national government. There is no city or municipal peace officers anymore. Local governments only have administrative supervision over police officers. Q: May a policeman be held personally liable under Art 34? Yes. Only the subsidiary liability of the city or municipality may not be invoked under the present structure of the police force. g. Damages despite acquittal in criminal case
Art. 30. When a separate civil action is brought to demand civil liability arising from a criminal offense, and no criminal proceedings are instituted during the pendency of the civil case, a preponderance of evidence shall likewise be sufficient to prove the act complained of. 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.
ART. 29. WHEN THE ACCUSED IN A CRIMINAL PROSECUTION IS ACQUITTED ON

THE GROUND THAT HIS GUILT HAS NOT BEEN PROVED BEYOND REASONABLE DOUBT, A CIVIL ACTION FOR DAMAGES FOR THE SAME ACT OR OMISSION MAY BE INSTITUTED. SUCH ACTION REQUIRES ONLY A PREPONDERANCE OF EVIDENCE.
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Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: (1) Freedom of religion; (2) Freedom of speech; (3) Freedom to write for the press or to maintain a periodical publication; (4) Freedom from arbitrary or illegal detention; (5) Freedom of suffrage; (6) The right against deprivation of property without due process of law; (7) The right to a just compensation when private property is taken for public use; (8) The right to the equal protection of the laws; (9) The right to be secure in one's person, house, papers, and effects against unreasonable searches and seizures; (10) The liberty of abode and of changing the same; (11) The privacy of communication and correspondence; (12) The right to become a member of associations or societies for purposes not contrary to law; (13) The right to take part in a peaceable assembly to petition the government for redress of grievances; (14) The right to be free from involuntary servitude in any form;
(15) The right of the accused against excessive bail; (16) The right of the accused to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witness in his behalf; (17) Freedom from being compelled to be a witness against one's self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make such confession, except when the person confessing becomes a State witness; (18) Freedom from excessive fines, or cruel and unusual punishment, unless the same is imposed or inflicted in accordance with a statute which has not been judicially declared unconstitutional; and (19) Freedom of access to the courts. In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and mat be proved by a preponderance of evidence. The indemnity shall include moral damages. Exemplary damages may also be adjudicated. The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal Code or other penal statute.
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
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independently of the criminal prosecution, and shall require only a preponderance of evidence. Art. 34. When a member of a city or municipal police force refuses or fails to render aid or protection to any person in case of danger to life or property, such peace officer shall be primarily liable for damages, and the city or municipality shall be subsidiarily responsible therefor. The civil action herein recognized shall be independent of any criminal proceedings, and a preponderance of evidence shall suffice to support such action. Art. 35. When a person, claiming to be injured by a criminal offense, charges another with the same, for which no independent civil action is granted in this Code or any special law, but the justice of the peace finds no reasonable grounds to believe that a crime has been committed, or the prosecuting attorney refuses or fails to institute criminal proceedings, the complaint may bring a civil action for damages against the alleged offender. Such civil action may be supported by a preponderance of evidence. Upon the defendant's motion, the court may require the plaintiff to file a bond to indemnify the defendant in case the complaint should be found to be malicious. If during the pendency of the civil action, an information should be presented by the prosecuting attorney, the civil action shall be suspended until the termination of the criminal proceedings. Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter. (1902a) Art. 36. Pre-judicial questions which must be decided before any criminal prosecution may be instituted or may proceed, shall be governed by rules of court which the Supreme Court shall promulgate and which shall not be in conflict with the provisions of this Code. Q: What are independent civil actions? They are civil actions that are tried independently of the criminal action
RULE: Under the Rules of Court, when a criminal action is instituted, the civil action for recovery of indemnity arising from the offense charged is impliedly instituted with the criminal action EXCEPTION: unless the offended party: 1. Expressly waives the civil action or 2. Reserves his right to institute it separately After the criminal action has been commenced, the civil action cannot be instituted until final judgment has been rendered in the criminal action. If, on the other hand, a civil action is filed ahead of the criminal action, under the Rules, the subsequent filing of a criminal action shall: 1. Suspend the civil action until final judgment in the criminal proceeding has been rendered or 2. It may cause the consolidation of the civil action to the criminal action The Rule however is different in cases of independent civil actions. In such cases, the subsequent filing of a criminal action will NOT suspend the proceedings in the civil case. Also, a civil action entirely separate and distinct from the criminal action may be brought by the injured party during the pendency of the criminal case Q: When an action for criminal prosecution is instituted according to the rules, it will include the civil action. In this case, does one still have to file a reservation? Yes Q: When is the independence of the civil action preserved? When the civil action is instituted ahead of the criminal case. In this case, when a criminal action is later filed, the general rule in criminal procedure which suspends the civil case upon filing of a criminal case will not be followed because an independent civil action may proceed independently of the criminal case. On the other hand, when the criminal action is instituted ahead, it will include the civil action unless one files a reservation. In the absence of a reservation, then the civil suit is deemed to be filed with the criminal action. Q: Under what provisions of law may an independent civil action be instituted?
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1. 2. 3. 4. 5.
Art 31 when the civil action is not based on the felony complained of Art 32 violation of the bill of rights Art 33 defamation, fraud, physical injuries Art 34 failure of the member of the police force to render aid and protection Art 2176 quasi-delicts
proceed with the criminal case to determine whether the accused is guilty or innocent Q: Give an example of a pre-judicial question In a criminal action for theft, if there is a civil case where the accused claims ownership of the property he allegedly stole, the issue of ownership of the thing taken is a pre-judicial question Ching v. CA FACTS: Alfredo Ching was charged with 4 counts of estafa punishable under the RPC in relation to PD 115, otherwise known as trust receipts law. Ching executed a trust receipt agreement in favor of Allied Banking Corporation. Under the terms of which Ching agreed to sell the goods for cash with the express obligation to remit to Allied the proceeds of the sale and/or to turn over the goods, if not sold, on demand. However, Ching misappropriated and converted to his own personal use and benefit the goods and/or proceeds of the sale thereof, and despite repeated demands, failed to remit the proceeds of the sale of the goods to Allied. On February 4, 1992, a case was filed against Ching by Allied. On March 05, 1992, Ching filed a case for declaration of nullity of documents and for damages. Furthermore, Ching filed for the suspension of the criminal proceedings on the ground of prejudicial question in a civil action. ISSUE: Whether or not the declaration of nullity of the trust receipts in question is a prejudicial question to the pending estafa case. HELD: NO. A civil action for declaration of nullity of documents and for damages does not constitute a prejudicial question to a criminal case for estafa where the alleged prejudicial question in the civil case does not determine the guilt or innocence of the accused in the criminal action. Thus, even on the assumption that documents are declared null, it does not ipso facto follow that such declaration of nullity shall exonerate the accused from criminal prosecution and liability. Accordingly, the prosecution may adduce evidence to prove the criminal liability of he accused for estafa, specifically under Article 315 of the RPC. A prejudicial question is one that arises in a case the resolution of which is a logical antecedent of the issue involved therein, and the cognizance
Q: What is a pre-judicial question? A pre-judicial question is one raised in a criminal case by the accused, which is of such nature that, if decided favorably to the accused in a civil case, will cause the supposed crime to disappear. It is not the same case but two different scenarios. However the civil case is intimately related or determinative of the criminal cases issue. Note, that the jurisdiction of the two cases are lodged on different courts Q: What are the requisites for a pre-judicial question? 1. The issue in the civil case must be determinative of the issue in the criminal case 2. Jurisdiction to try said question must be lodged in another tribunal ie, civil court. Q: What are the elements of the prejudical question under Rule 111, Sec 5 of the Rules of Court? 1. The civil action involves an issue similar or intimately related to the issue raised in the criminal action 2. The resolution o such issue determines whether or not the criminal action may proceed Q: Between the civil case and criminal case, which should be filed first? It does not matter which between the civil and criminal case was filed ahead as long as there are two cases pending: one involving criminal and the other involving civil and both cases are interrelated so much so that the decision in the civil action is determinative of the guilt or innocence of the accused in the criminal cases. Q: Do they have to be pending in two courts? As long as there are two cases, one involving a criminal case and the other involving a civil case, the civil case must first be resolved before one can
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of this pertains to another tribunal. It comes into play generally in a situation where a civil action and a criminal action are both pending and thee exists in the former an issue which must be preemptively resolved before the criminal action may proceed, because howsoever the issues raised in the civil action is resoulved would be determinative of the guilt of the accused in the criminal case. Requisites of prejudicial questions: 1) civil action involves an issue similar or intimately related to the issue raised in the criminal action; and 2) the resolution of such issue determines whether or not the criminal action may proceed.
Te v. CA FACTS: Arthur Te and Liliana Caho were married in civil rites on September 14, 1988. They did not live together after the marriage although they would meet each other regularly. Not long after Liliana gave birth to a girl on April 21, 1989, Arthur stopped visiting her. On May 20, 1990, while his marriage with Liliana was subsisting, Arthur contracted a second marriage with a certain Julieta Santella. On the basis of a comlaint-affidavit filed by Liliana sometime in June 1990, when she learned about Arthurs marriage to Julieta, an information charging Arthur with bigamy was filed with the RTC of Quezon City on August 9, 1990. Meanwhile, on July 20, 1990, Arthur filed in the RTC an action for the annulment of his marriage to Liliana on the ground that he was forced to marry her. He alleged that Liliana concealed her pregnancy by another man at the time of their marriage and that she was psychologically incapacitated to perform her essential marital obligations. On November 8, 1990, Liliana also filed with the PRC an administrative case against Arthur and Julieta for the revocation of their respective engineering licenses on the ground that they committed acts of immorality by living together and subsequently marrying each other despite their knowledge that at the time of their marriage Arthur was already married to Liliana. Arthur filed with Board of Civil Engineering of the PRC, where the administrative case for the revocation of his engineering license was pending, a motion to suspend the proceedings therein in view of the pendency of the civil case for annulment of his marriage to Liliana and the criminal case for bigamy. PRC denied the motion.
ISSUE: Whether or not there was grave abuse of discretion in refusing to suspend the legal proceedings despite the pendency of the civil case for declaration of nullity of marriage. HELD: NO. The outcome of the civil case for annulment of Arthurs marriage to Liliana had no bearing upon the determination of his innocence or guilt in the criminal case for bigamy, because all that is required for the charge of bigamy to prosper is that the first marriage be subsisting at the time the second marriage is contracted. The rationale behind the principle suspending a criminal case in view of a prejudicial question is to avoid two conflicting decisions. Neither did the filing of said civil case for annulment necessitate the suspension of the administrative proceedings before the PRC Board. The concept of prejudicial question involves a civil and a criminal case. The court has previously ruled that there is no prejudicial question where one case is administrative and the other is civil. Furthermore, Section 32 of the Rules and Regulations Governing the Regulation and Practice of the PRC Board expressly provides that the administrative proceedings before it shall not be suspended notwithstanding the existence of a criminal and/or civil case against Arthur involving the same facts as the administrative case. It must also be noted that the allegations in the administrative complaint before the PRC Board are not confined to the issue of the alleged bigamous marriage contracted by Arthur and Julieta. Arthur is also charged with immoral conduct for continued failure to perform his obligations as husband to Liliana and as father to their child, and for cohabiting with Julieta without the benefit of marriage. Torres v. Garchitorena FACTS: This involves a land case. (not at all related to persons and family law) HELD: A prejudicial question is understood in law as that which must precede the criminal action and which requires a decision before a final judgment can be rendered in the criminal action with which said question is closely connected. B. 1. Persons Chapter 1: General Provisions
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Note that the Civil Code provisions on Title II on persons have NOT been repealed by the Family Code Q: What are the two classes of persons? Persons can either be natural or juridical. A natural person is created naturally. It is produced naturally and can feel, smell, etc. One who understands consequences of your actions. A juridical person is created artificially. Natural persons a. Juridical Capacity v. Capacity to Act
1. 2.
If the child had an intra-uterine life of at least 7 months, it shall be considered born if it is alive at the time it is completely delivered from the mothers womb If the child had an intra-uterine life of less than 7 months, it is deemed born if it lives for at least 24 hours after its complete delivery from the maternal womb. (resolutory condition)
Art. 37. Juridical capacity, which is the fitness to be the subject of legal relations, is inherent in every natural person 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. Definitions: Juridical Capacity The fitness to be subject to legal relations Passive attribute
Q: When does capacity to act being? RULE: Stays from the time you are emancipated. Only upon emancipation does one become qualified for all acts of civil life and therefore one can enter into legal transactions without the presence of a guardian. Emancipation is the time that one can enter into legal obligations and be bound on the basis of these obligations which he or she has entered into. EXCEPTIONS: there are rare exceptions. One is: minor is qualified to do certain legal acts like at the age of seven, one can now open and manage a bank account by himself. Q: When does juridical capacity end? Juridical Capacity ends at the time of death. Juridical capacity really exists from birth to death. Thus one can be the subject of legal relations from the moment he or she is born except in certain cases, but juridical capacity only terminates at the moment of death. Juridical capacity is not affected by insanity, imbecility or any of the restrictions because it exists as long as one is capable of being subject of legal relations. After death, one cannot be qualified to become the subject of legal relations except for ones properties which will have to be determined and passed on in accordance with the rules of succession. Rules of succession, however, cover only ones properties and not ones person. Q: When does capacity to act end? Capacity to act also ends at the moment of death SUMMARY: Start End b. Juridical Capacity Birth Death Capacity to Act Emancipation Death
Capacity to Act The power to do acts with legal effect It is active because it is now the person who is acting, the person now entering into legal relations, the person actively involved whether in the exercise of a right or the enforcement of an obligation Without the help of others
Can benefit from certain legal transactions entered into by others (succession, support etc) NOT donations since this requires acceptance of the donee Q: When does juridical capacity begin? RULE: it starts with the birth of a natural person. It is something inherent. EXCEPTION: in the case of a fetus which has not been born. The fetus can be considered as being possessed of juridical capacity under certain conditions which are favorable to it subject to the compliance of said conditions, which are:
Restrictions and Modifications on Capacity to Act
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Art. 38. Minority, insanity or imbecility, the state of being a deaf-mute, prodigality and civil interdiction are mere restrictions on capacity to act, and do not exempt the incapacitated person from certain obligations, as when the latter arise from his acts or from property relations, such as easements. Q: Can capacity to act terminate earlier than death? No. Capacity to act terminates only at the moment of death but it can be restricted or limited Q: What are examples of restrictions to capacity to act? According to At 38, they are: (MIIDmPCi) Minority Insanity Imbecility Deaf-Mute state Prodigality Civil Interdiction Q: How does minority, insanity, or imbecility restricts ones capacity to act? In the case of minority (below 18), insanity (where a persons mind is sick), or imbecility (where a person thinks like a small child), one cannot enter into any kind of legal relations unless one is represented by a guardian. Q: How does being a deaf-mute restricts ones capacity to act? RULE: it does not restrict one from any legal transaction. Though he cannot speak and hear, his mental faculties are fine and so he can enter into contracts EXCEPTION: being a witness to a will. There are instances where one has to read the contract or interpret the contract repeatedly (when there is a requirement of able to read and write) Q: What is prodigality? Prodigality is the state of a person who wants to squander money. Dean Del: you are angry at money and angry with properties, you always want to spend them and squander them away. Q: How does prodigality restrict ones capacity to act?
A prodigal is restricted or prohibited from managing his own property. This is the reason why a prodigal can be the subject of guardianship. But a guardian may be appointed only for purposes of managing his own properties and NOT with respect to his person. Thus, a prodigal can enter into ordinary contracts, however, when it involves his properties, the right of administration can be denied and can be transferred to another person. Q: What is civil interdiction? Civil Interdiction is an accessory penalty given to a criminal punishment by imprisonment for 12 years and 1 day or more (Art 41, RPC) Q: How does civil interdiction restrict ones capacity to act? A person sentenced to civil interdiction is deprived of the following rights: 1. Parental or marital authority 2. To dispose of his property by an act inter vivos (he cannot donate but he can make a will because the latter is a disposition mortis causa) 3. To manage his own properties 4. To be the guardian of the person and property of a ward NOTE: Insanity, imbecility and minority are far beyond restrictions because they cover all acts with legal effect unless one is represented by a guardian. The other types of restrictions, ie, being a deaf-mute, prodigality and civil interdiction, would only restrict one as regards certain types of legal relations, specifically the management of properties but not with respect to persons. Q: What are the effects of the restrictions? 1. They do not extinguish capacity to act. They merely restrict or limit it. Thus, an insane persons contract is merely voidable, not void. 2. The incapacitated person is not exempt from certain obligations arising from his acts, e.g., if he commits a crime his property may still be held liable. Art. 39. The following circumstances, among others, modify or limit capacity to act: age, insanity, imbecility, the state of being a deaf-mute, penalty, prodigality, family relations, alienage, absence, insolvency and trusteeship. The consequences of these circumstances are governed in this Code, other codes, the Rules of Court, and in special laws. Capacity to act is not limited on account of religious belief or political opinion.
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A married woman, twenty-one years of age or over, is qualified for all acts of civil life, except in cases specified by law. (n) Q: What is the difference between restrictions and modifications?
Notice that the restrictions speak of minority, while the modification speaks of age. This is because restrictions, unless you are talking only of restrictions to properties, is a GENERAL PROHIBITION for one to enter into legal transactions regardless of what kind of legal transaction it is (except in the case of prodigality and civil interdiction) When one speaks of modifications, on the other hand, it is not an absolute prohibition because it varies depending on (1) who you are dealing with, (2) what you are entering into, and (3) who are the parties involved and (4) the circumstances under which the contract is being entered into. This is why for purposes of modifications one doesnt speak of minority but of age because the age of a person can modify his being able to act with legal effect. For example, at the age of 23 one can enter into a marriage upon obtaining parental advice. In other words, there are additional requirements imposed which varies from person to person, from age to age, or depending on the kind of legal transaction one is entering into. The descriptions of modifications are more or less general as against those which cover restrictions. Q: Give examples where family relationships can modify ones capacity to act First degree cousins are prohibited from marrying each other; or one may be prohibited from sitting in the Board of Election Inspectors because of his relationship with a particular candidate Q: Give examples where alienage can modify ones capacity to act? An alien cannot buy real estate. He can only own a corporation until 40%, 30%, or 25% depending on the industry the corporation is engaged in. 2. a. Chapter 2: Natural Persons When personality begins and ends
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. (29a)
Art. 41. For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered from the mother's womb. However, if the fetus 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. (30a) 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. (32a) NOTE: Sometimes it may be necessary to determine when the person died. You have two rules of survivorship. One is provided by the Civil Code and the other is in the Rules of Court. b. Rules on survivorship
Art. 43. If there is a 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. Presumptions on Survivorship under the Revised Rules of Court (Rule 131, Sec 3 (jj)) (JJ) THAT
EXCEPT FOR PURPOSES OF SUCCESSION, WHEN TWO PERSONS PERISH IN THE SAME CALAMITY, SUCH AS WRECK, BATTLE, THERE ARE NO PARTICULAR CIRCUMSTANCES FROM WHICH IT CAN BE INFERRED, THE SURVIVORSHIP IS DETERMINED FROM THE PROBABILITIES RESULTING FROM THE STRENGTH AND THE AGE OF THE SEXES, ACCORDING TO THE FOLLOWING RULES:
OR CONFLAGRATION, AND IT IS NOT SHOWN WHO DIED FIRST, AND
1.
OLDER IS DEEMED TO HAVE SURVIVED;
IF BOTH WERE UNDER THE AGE OF FIFTEEN YEARS, THE
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2. 3.
DEEMED TO HAVE SURVIVED;
IF BOTH WERE ABOVE THE AGE SIXTY, THE YOUNGER IS

ONE IS UNDER FIFTEEN AND THE OTHER ABOVE
IF
4.
SIXTY, THE FORMER IS DEEMED TO HAVE SURVIVED;
SEX BE DIFFERENT, THE MALE IS DEEMED TO HAVE SURVIVED, IF THE SEX BE THE SAME, THE OLDER ;
IF BOTH BE OVER FIFTEEN AND UNDER SIXTY, AND THE IF

ONE BE UNDER FIFTEEN OR OVER SIXTY, AND THE
5.
Under the Civil Code, whoever alleges must prove. For purposes of proving who died ahead of the other, one can either have actual proof or one can rely on a presumption. If they died on the basis of a calamity, then use the presumption under the Rules of Court. If they did not die through a calamity then use the Civil Code. Usually, determination of who died first applies only to people related to each other or because of succession purposes. SUMMARY Civil Code Person who died must be called upon to succeed each other. They may or may not die as a result of a calamity Rules of Court The person concerned must have died as a result of a calamity. They may or may not be required to succeed each other.
SURVIVED.
OTHER BETWEEN THOSE AGES, THE LATTER IS DEEMED TO HAVE
NOTE: NCC covers all instances, not only calamities, where the parties succeed each other. The ROC requisites are: 1. Calamity 2. No showing of who died first 3. NOT succession Q: When do you use the Civil Code or the Rules of Court in determining survivorship? Both rules apply when there is an absence of proof as to who died ahead of the other. When there are facts, known or knowable, from which a contrary conclusion can be inferred, neither Art 43 nor the ROC presumptions on survivorship can apply. In such a case, the rule on preponderance of evidence controls. If there is an absence of proof, the Civil Code provision applies when the persons concerned are persons called upon to succeed each other, such as father and son, or husband and wife. Also it applies to any circumstance of death and not only those resulting from a calamity. In the Civil Code, he who alleges must prove. So if one says that the father is the one who died ahead of the son, he must prove that the father in fact died ahead of the son. In the absence of proof, then they shall be deemed to have died at the same time and therefore, there will be no transmission of rights or property from one to another. The Rules of Court apply on the other hand, if both persons died as a result of calamity, though they may or may not be required to succeed each other. The rules of court provide us with a more definite presumption.
Q: A made a will and gave B a car. A and B are not related to each other. Both died in a car accident but there is doubt as to who died first. Are A and B considered to be persons who are called to succeed each other? Yes because A and B are called to succeed each other on the basis of a will. Thus the phrase two or more persons who are called to succeed each other will apply to both VOLUNTARY AND INVOLUNTARY HEIRS. In this case, the Civil Code provisions will apply. 3. a. Chapter 3: Juridical Persons Who are juridical persons
Art. 44. The following are juridical persons: (1) The State and its political subdivisions; (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, partnerships 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. (35a)
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Q: What are juridical persons? Essentially these are persons artificially created. They are created on the basis of law, on the basis of a charter, or on the basis of registration with the Securities and Exchange Commission (SEC) Note that as far as juridical persons are concerned one does not talk about birth but of creation. One does not give birth to a corporation nor a state. It is the creation of these corporation which signal the start of the corporate entity. It is a law, a charter, or the registration with the SEC that will give them a separate existence from the members of the corporation. Q: Is there a distinction between juridical capacity and capacity to act insofar as juridical persons are concerned similar to that of natural persons (ie, capacity to act starts only at the age of majority while juridical capacity starts from birth)? RULE: Juridical capacity and capacity to act coincide in the case of juridical persons. Thus the moment a juridical person is legally created it immediately acquires the right to enter into legal transactions with legal effect or be subject of legal relations. Q: Can juridical capacity or capacity to act be also restricted or modified in the case of juridical persons? Yes but only to some restrictions or modifications like insolvency or citizenship. In the case of insolvency, for example, once a corporation is at the process of liquidation, it is restricted because it cannot enter into new obligations. In the case of citizenship, there are certain conditions which can be restricted or actions modified depending on the citizenship of the corporation because of certain investment clause or certain nationality qualifications. b. When personality begins and ends
Art. 45. Juridical persons mentioned in Nos. 1 and 2 of the preceding article are governed by the laws creating or recognizing them. Private corporations are regulated by laws of general application on the subject. Partnerships and associations for private interest or purpose are governed by the provisions of this Code concerning partnerships. (36 and 37a) Art. 46. Juridical persons may acquire and possess property of all kinds, as well as incur obligations and bring civil or criminal actions, in conformity with the laws and regulations of their organization. (38a) Art. 47. Upon the dissolution of corporations, institutions and other entities for public interest or purpose mentioned in No. 2 of Article 44, their property and other assets shall be disposed of in pursuance of law or the charter creating them. If nothing has been specified on this point, the property and other assets shall be applied to similar purposes for the benefit of the region, province, city or municipality which during the existence of the institution derived the principal benefits from the same. (39a) Note: This article refers to public corporations or associations. Please see page 28-A for a separate table on the differences between natural persons and juridical persons. C. 1. Domicile Kinds
Q: When does juridical persons and capacity to act terminate in the case of juridical persons? They terminate at the moment they are dissolved. In the case of natural persons, it is death that terminates capacity to act or juridical capacity. c. Rights of juridical persons
Art. 48. The following are citizens of the Philippines: (1) Those who were citizens of the Philippines at the time of the adoption of the Constitution of the Philippines; (2) Those born in the Philippines of foreign parents who, before the adoption of said Constitution, had been elected to public office in the Philippines; (3) Those whose fathers are citizens of the Philippines;
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(4) Those whose mothers are citizens of the Philippines and, upon reaching the age of majority, elect Philippine citizenship; (5) Those who are naturalized in accordance with law. (n) Art. 49. Naturalization and the loss and reacquisition of citizenship of the Philippines are governed by special laws. (n) Art. 50. For the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is the place of their habitual residence. (40a) Q: What is domicile? Domicile is that place where a person has certain settled, fixed, legal relations because: 1. It is assigned to him by law AT THE MOMENT OF BIRTH (Domicile of Origin) 2. It is assigned to him also by law AFTER BIRTH on account of a legal disability (Constructive Domicile) 3. Because he has his home there that to which whenever he is absent, he intends to return (Domicile of Choice) there must be substantial connection. 2. Rules Q: Is domicile the same as residence? No. Domicile should not be equated with residence because residence is temporary while domicile is more or less permanent. For example, Blanche may be residing in Makati now but her domicile is really in Bacolod because she intends to return there every vacation or every time she has an opportunity to return or after she passes the bar. Residence may be a boarding house, an apartment and others. RULE: Domicile and residence are not the same EXCEPTION: For election purposes, one uses both domicile and residence interchangeably; and, procedural law Q: What are the principles of domicile? 1. The right to a domicile is an inherent right. It is something that comes with a person the moment he is born, and this continues until a new domicile is established. Every person is born with a domicile vis--vis citizenship where there can be a stateless
2.
individual. This is what the law calls a domicile of origin. Any person can however change their domicile at will (domicile of choice). But before one can change his domicile he must be a person who has capacity to act. The moment one acquires a new domicile (domicile of choice) one automatically loses his domicile of origin. One cannot have two domiciles at the same time vis--vis citizenship where there is such a thing as dual citizenship
Q: What are the rules for domicile of origin? 1. Legitimate child domicile of choice of his father at the moment of birth of the child 2. Illegitimate child domicile of choice of the mother at the time of birth of the child 3. Legitimated child domicile of the father at the time of the birth of the child. This is because legitimation takes effect from the time of the childs birth 4. Adopted child the domicile of the REAL parents or parent by consanguinity 5. a Foundling (abandoned infant whose parents are unknown) the country where it was found. If the parents become known, it is not a foundling anymore. Therefore, follow the rule on legitimate or illegitimate children. Q: What is the constructive domicile of a married woman? Before the constructive domicile of a married woman is the domicile of choice of her husband. The Family Code, however, fixes the domicile of the husband and wife as jointly fixed. Art. 51. When the law creating or recognizing them, or any other provision does not fix the domicile of juridical persons, the same shall be understood to be the place where their legal representation is established or where they exercise their principal functions. Q: How do we determine the domicile of juridical persons? 1. Get the domicile provided in the law creating them 2. If not provided, then where their legal representation is established; or 3. Where they exercise their principal functions
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PART II FAMILY CODE OF THE PHILIPPINES (EO No 209) A. Marriage 1. Concept
Q: When did the Family Code take effect? The FC went to effect on August 3, 1988 Article 1. Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and 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. Q: What re the elements of marriage? It is an institution characterized by: 1. Marriage is a special contract 2. It is a permanent union 3. The union is between a man and a woman 4. The union must be entered into in accordance with law 5. The purpose of marriage is the establishment of conjugal and family life Q: Why is marriage a special contract? As a general rule, the parties are free to stipulate any condition in an ordinary contract as long as they are not contrary to law, morals, good customs, or public policy. In a marriage contract, however, one is not free to stipulate except as regards the property relationship of the husband and wife. This means that law and not by stipulations of the parties will govern the nature, consequences and incidents of marriage when there is a provision of law that will apply. Q: What is meant by marriage as an inviolable social institution Marriage is not merely a contract. It is the foundation of family life. This means that all matters affecting marriage should be governed by law and not be subject to stipulations of the parties except in the case of marriage settlements which can be stipulated upon by the parties.
In Re: Rufilo D. Bucana FACTS: Bucana, a notary public, notarized the agreement between spouses, to wit: "in case anyone of them will remarry both parties offer no objection and waive all civil and criminal actions against them... entered into for the purpose of agreement to allow each and everyone of them to remarry without objection or reservation . . .". His defense: the agreement was made by his clerk; he refused to notarize it; it was left on his desk with numerous papers; inadvertently got notarized; could not get back the copies from the spouses since they could not be found; and, he was emotionally disturbed since his father (now deceased) was seriously ill. The immorality of the agreement is not disputed. HELD: 1. It is for the notary to inform himself of the facts to which he intends to certify, and to take part in no illegal enterprise. The notary public is usually a person who has been admitted to the practice of law, and as such, in the commingling of his duties as notary and lawyer, must be held responsible for both. We are led to hold that a member of the bar who performs an act as a notary public of a disgraceful or immoral character may be held to account by the court even to the extent of disbarment. 2. His defenses is actually a plea for clemency which is untenable. he should have exercised the requisite care required by law in the exercise of duties. 3. Marriage is an inviolable institution. The agreement abets the commission of a crime. Q: What is meant by permanent union? Marriage is a contact which can only be dissolved by the death of the other party unless it is annulled or declared null and void for legal cause by the court. However, in these kinds of marriages youre not putting an end to a marriage, but it is a marriage which suffers from defects from the very start. Q: What is the consequence of having marriage described as a permanent union by the Family Code? We will always adhere to the policy against divorce
28
Q: Justice Caguiao argues the point that it is not for us to allow the declaration of nullity based on psychological incapacity for it is a divorce in disguise. Is his argument tenable? No. the declaration of nullity based on psychological incapacity is not a case of divorce. Q: Who can enter into a contract of marriage? Only a man and woman can enter into a contract of marriage. It is now a requirement which goes to the very essence of marriage. You cannot marry another of the same gender Q: What is the purpose of such requirement? Since marriage is entered into for the purpose of establishing a conjugal and family life and procreation of children, marriage between persons of the same sex would render the purpose of marriage ineffectual Q: What are the differences between marriage and ordinary contracts? Ordinary Contract Marriage Contract It is a mere contract A marriage contract is an agreement between parties and a social institution Agreements entered into usually In marriage, the nature, depend on the stipulation of the consequences and incidents are contracting parties unless those governed by law except with stipulations are against the law, public reference to marriage settlements policy, public order, morals or good customs The legal age for ordinary contracts is The legal age for entering into a the age of majority contract of marriage is the age of majority however there are other legal requirements for those below the ages of 21 and 25 In marriage, only death or the An ordinary contract may end either annulment of marriage for legal through: causes dissolves the marriage 1. Express provision of law contract 2. Expiration of the term for which the contract was executed 3. Fulfillment of the purpose of the contract or 4. Mutual agreement by the
contracting parties to terminate the contract Any person with the capacity to act can enter into an ordinary contract The breach of an ordinary contract gives rise to an action for damages
Only a man and a woman can enter into a contract of marriage While breach of the obligations of husband and wife does not give rise to an action for damages but the law prescribes penal and civil sanctions
2.
Essential and Formal Requirements
Art. 2. No marriage shall be valid, unless these essential requisites are present: (1) Legal capacity of the contracting parties who must be a male and a female; and (2) Consent freely given in the presence of the solemnizing officer. (53a) Art. 3. The formal requisites of marriage are: (1) Authority of the solemnizing officer; (2) A valid marriage license except in the cases provided for in Chapter 2 of this Title; and (3) A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age. (53a, 55a) Art. 4. The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35 (2). A defect in any of the essential requisites shall not affect the validity of the marriage but the party or parties responsible for the irregularity shall be civilly, criminally and administratively liable. (n)
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Q: What are the two types of requirements for marriage under the Family Code? These are reckoned at the time of the celebration of the marriage: 1. Essential requirements intrinsic aspect of the marriage 2. Formal requirements extrinsic aspect of the marriage Q: What are the essential requirements? 1. Legal capacity 2. Consent by the spouses Q: What are the formal requirements? 1. Authority of solemnizing officer a. R: Has authority b. X: One contracting party has a good faith belief that the solemnizing officer has authority 2. Valid Marriage license a. R: Need for a license b. X: i. Artciculo Mortis ii. Common law in continuous 5 years with no impediment to marry iii. No means of transport to obtain a license 3. Ceremony, requirements: a. Before solemnizing officer b. At least 2 witnesses c. Personal declaration NOTE: Essential Requirements Void Absent Irregularity No such thing as defective legal capacity; its either present or absent. But the provision says voidable Voidable Formal Requirements Void
It is important to know the difference between these requirements because their absence, defect or irregularity will have different effects on the marriage. An absence of either a formal or essential requirement results in a void marriage. A defect in the essential requirement, i.e., there is an irregularity in the manner of process of obtaining or complying with such requirements will not affect the validity of the marriage. However, the party at fault will be civilly, criminally and administratively liable. a. Legal Capacity
Article 2. No marriage shall be valid, unless these essential requirements are present: 1. Legal capacity of the contracting parties who must be a male and a female; and 2. Consent freely given in the presence of the solemnizing officer. Q: What are the 2 essential requirements for a valid marriage? a. Legal capacity of the contracting parties, who must be male and female; and b. Consent of the parties, freely given in the presence of the solemnizing officer. N.B. These requirements refer to the contracting parties only. Q: What is legal capacity? Legal capacity means that: a. b. c.
Q: Why is there a need to distinguish between essential and formal requirements?
both parties must have the necessary age, the minimum being 18; one party to the marriage must be a (born) a man and the other a woman; there must be no existing impediments such as: 1. incestuous marriage 2. marriage against public policy; 3. prior existing marriage; 4. psychological incapacity; and 5. non-compliance with Article 53 in relation to Article 52 of the Family Code regarding the partition, distribution of the properties of the spouses and delivery of the childrens presumptive legitimes.
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i)
Sex
Q; Who can enter into a contract of marriage? Only a man and a woman can enter into a contract of marriage. You cannot marry another of the same gender. Since marriage is entered into for the purpose of establishing a conjugal and family life and procreation of children, marriage between persons fo the same sex would render the purpose of marriage ineffectual. Q: Concerning the essential requisites of legal capacity, is it mandatory that the contracting parties be born a man and a woman? What if Happy would one day marry the extremely voluptuous transvestite, Shola Luna? ii) Age
Art. 16. In the cases where parental consent or parental advice is needed, the party or parties concerned shall, in addition to the requirements of the preceding articles, attach a certificate issued by a priest, imam or minister authorized to solemnize marriage under Article 7 of this Code or a marriage counselor duly accredited by the proper government agency to the effect that the contracting parties have undergone marriage counseling. Failure to attach said certificates of marriage counseling shall suspend the issuance of the marriage license for a period of three months from the completion of the publication of the application. Issuance of the marriage license within the prohibited period shall subject the issuing officer to administrative sanctions but shall not affect the validity of the marriage. Should only one of the contracting parties need parental consent or parental advice, the other party must be present at the counseling referred to in the preceding paragraph. (n) Q: What is the best evidence in determining the age of the contracting parties The birth certificate is the best evidence in determining the age of the parties. Q: Under the Family Code, what are the three significant age groups which we must consider? a. if a party is below 18, he marriage is void because of absence of legal capacity (Article 5); b. if a party is between 18 and 21, the parties must first obtain the consent of the father, the mother or the legal guardian without, which the marriage is voidable; c. if a party is between 21 and 25, the parties shall be obliged to ask their parents or guardians for advice, otherwise, the issuance of the marriage license shall be temporarily suspended for 3 months. Q: Nene, a minor, procured the consent and blessings of her parents and decided to marry a wealthy old man. Is the marriage valid? NO. If one of the parties is below the age of 18, no amount of consent, even that of their parents, will make the marriage valid. Q: If you get married on your 21st birthday, do you need parental consent or advice?
Art. 5. Any male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 37 and 38, may contract marriage. (54a) Art. 14. In case either or both of the contracting parties, not having been emancipated by a previous marriage, are between the ages of eighteen and twenty-one, they shall, in addition to the requirements of the preceding articles, exhibit to the local civil registrar, the consent to their marriage of their father, mother, surviving parent or guardian, or persons having legal charge of them, in the order mentioned. Such consent shall be manifested in writing by the interested party, who personally appears before the proper local civil registrar, or in the form of an affidavit made in the presence of two witnesses and attested before any official authorized by law to administer oaths. The personal manifestation shall be recorded in both applications for marriage license, and the affidavit, if one is executed instead, shall be attached to said applications. (61a) Art. 15. Any contracting party between the age of twenty-one and twentyfive shall be obliged to ask their parents or guardian for advice upon the intended marriage. If they do not obtain such advice, or if it be unfavorable, the marriage license shall not be issued till after three months following the completion of the publication of the application therefor. A sworn statement by the contracting parties to the effect that such advice has been sought, together with the written advice given, if any, shall be attached to the application for marriage license. Should the parents or guardian refuse to give any advice, this fact shall be stated in the sworn statement. (62a)
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The framers forgot to make a distinction. We do not have jurisprudence on this issue. However, if we look into the intent of the old Civil Code, it should be 18 to below 21 years for parental consent and 21 and 25 for parental advice. Exactly: 18 years of age parental consent 21 years of age parental advice 25 years of age neither parental consent nor advice. iii) Impediment by reason of:
aa) Incestuous relationship Art. 37. Marriages between the following are incestuous and void from the beginning, whether 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. (81a) Q: What are incestuous marriages? This term is a technical term and does not merely imply marriages between relatives within whatever degree of consanguinity or affinity. The Family Code now uses the universal definition of incestuous marriages thus, excluding first cousins from the former list. Incestuous marriages are those so defined in Article 37 of the Family Code. Said Article provides the 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 full or half-blood. N.B. The Family Code now makes no distinction between degree and legitimacy in incestuous marriages. Concerning collateral line, no distinction is made, too, as regards legitimacy. You cannot marry any ascendant or descendant regardless of how far removed. bb) Public Policy Art. 38. 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 fourth civil degree; (2) Between step-parents and step-children; (3) Between parents-in-law and children-in-law; (4) Between the adopting parent and the adopted child;
Q: What are the different types of legal impediments? a. incestuous marriage based on close blood relationships (Article 37) b. against public policy these are impediments determined by law as contrary to the values desired by the State.(Article 38) c. prior existing marriage (Article 35, par 4); d. subsequent marriage under Article 53 in relation to Article 52 the requirements of partition and delivery of presumptive legitimes. Q: Is judicial declaration of nullity necessary in cases of voi marriages? For the purpose of remarriage, there must be always be judicial declaration of nullity. For any other purpose, the nullity of the marriage may be raised directly or collaterally. Q: What if the marriage is merely voidable? A direct proceeding (direct attack) is necessary to annul the marriage. Q: A and B are married. The marriage is voidable. Without previous B married C. C then married D. is the marriage between B and C valid? What about the marriage between C and D? Since the marriage between A and B has not yet been annulled, the marriage between B and C is void. Though the marriage between B and C is void, there must be a judicial declaration of nullity. Since there was no judicial declaration, the subsequent marriage between C and D is also void. Always for purposes of marriage, once must obtain a judicial declaration of nullity or annulment of ALL previous marriages.
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(5) Between the surviving spouse of the adopting parent and the adopted child; (6) Between the surviving spouse of the adopted child and the adopter; (7) Between an adopted child and a legitimate child of the adopter; (8) Between adopted children of the same adopter; and (9) Between parties where one, with the intention to marry the other, killed that other person's spouse, or his or her own spouse. (82) a. Collateral blood relatives, whether legitimate or illegitimate, up to the 4th civil degree of affinity or consanguinity.
Q: Are marriages between parents-in-law and children-in-law allowed? What if the spouse already died, can one marry his parent-in-law? No. The reason given is Filipinos have extended families. Besides, if one argues that the death of the spouse terminates the relationship between parents-in-law and children-in-law, the provision will never have any application. The argument is absurd. Moreover, marriages between in-law are against public policy, because such relationships are, by legal fiction, parallel to that between a real parent and child. Thus, their marriage is considered practically incestuous. Q: What marriages between step-parents and step children prohibited? Extended family ralations. Q: Enzo married Carmela. Carmela died during their honeymoon. Enzo married Marife the following day. Marife died during their honeymoon. Can Enzo now marry Carmelas mommy? No. Even if Carmelas mom is no longer Enzos-in-law, the parallel relation of parent and child continues to exist. Q: What if a marriage was annulled? May the former parent-in-law marry his former child-in-law? Yes. Because when a marriage is annulled, it is considered as if there was no marriage at all, so the prohibition does not apply since there is in law, no relation to speak of. Q: is there an impediment between brothers-in-law and sisters-in-law? No, there is no prohibition. Once can marry his/her brother-in-law or sisterin-law when ones spouse dies. c. Adoptive relationships 1. Between adopter and adopted Q: Is the marriage between an adopted child and the illegitimate children of the adopter possible? Yes, since the probation speaks only of legal adoption. d. Killing of the other spouse in order to remarry Q: In order for the impediment to exist, is criminal conviction necessary?
Q; What do marriages between collateral blood relatives up to 4th civil degree include? In includes relationship between: 1. Uncle and niece; 2. Aunt and nephew; 3. First cousins; and 4. Grandparents and Grandchildren. Q: Does the prohibition apply to illegitimate relationships? YES. Q: Hans is the half-brother of Ruby, can they get married? No, they cannot. Article 37(2) does not make any distinction between full or half blood relatives. The prohibition applies to both full and half-blood relations. Q: Does this include relatives by affinity? No, the law says, collateral relatives. b. Between step-parents and step-child or between parent-in-law and child-in-law.
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No. One must only establish death and the intention of the killing spouse. Q: What if A killed his spouse B only to get his hands on the insurance benefits acquired by B Can A marry again? Yes, since in this case, the prohibition will not apply. For the prohibition to apply, the purpose for killing must be to marry another. cc) Prior existing marriage Q: How may marriage be terminated? Marriage may be terminated by: 1. Death You must show proof of death Death Certificate. Show this to Civil Registrar for issuance of a new marriage license. 2. Annulment 3. Death of Nullity With regard to death, there is a question between actual death and constructive death. Q: How are bigamous or polygamous marriages impediments? They are impediments by virtue of a prior existing marriage. But there is the exception in case of subsequent marriages by virtue of a declaration of presumptive death.
death of the absentee, without prejudice to the effect of reappearance of the absent spouse. (83a) Art. 42. The subsequent marriage referred to in the preceding Article shall be 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. A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in case such fact is disputed. (n) Art. 43. The termination of the 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; (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 said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or in default of children, the innocent spouse; (3) Donations by reason of marriage shall remain valid, except that 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 bad faith as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and
Art. 41. A marriage contracted by any person during subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient. For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive
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(5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession. (n) Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by reason of marriage and testamentary dispositions made by one in favor of the other are revoked by operation of law. (n)Article 41. Q: What are the kinds of bigamous marriages? There are actually two kinds: 1. The void bigamous marriage, which is contracted by a person during the subsistence of his or her previous marriage. Here, the good faith of party who marries again is immaterial; the second marriage would will be void. On the other hand, the person who marries in bad faith is even criminally liable for bigamy. 2. The subsequent marriage discussed in cases of declaration of presumptive death. 1. Void Bigamous Marriage
Q: If no proceedings are instituted for the judicial declaration of presumptive death or for the judicial declaration of annulment or nullity, what is the effect on the subsequent marriage? The subsequent marriage is null and void. Q: What if the judicial declaration was done after the celebration of the subsequent marriage, is the subsequent marriage validated? No. A subsequent judicial declaration (for nullity/annulment/presumptive death) does not validate the second marriage. Q: After the judicial declaration of nullity of the first marriage, is here still an impediment for the spouse to remarry? Yes, there must be compliance with Article 52 and 53 (liquidation of the absolute community property and distribution of presumptive legitimes to the children of the first marriage). Otherwise, the subsequent marriage will be null and void. Q: What makes a marriage void under Article 53? A partys failure to comply with the requirements of Article 52, to wit: a. Securing a judicial declaration of annulment or absolute nullity; b. Liquidation of the assets of the first marriage; and c. Delivery of presumptive legitimes of the children. 2. Presumptive Death Marriages
Q: What is necessary before a party who had a previously subsisting marriage, may marry again? For purposes of remarriage, one must first obtain a judicial declaration of absolute nullity or a declaration of annulment of the previous marriage. Any marriage entered into by a person during the subsistence of a previous marriage is null and void. Q: Is there any exception to the rule where a party may enter into a subsequent valid marriage despite the existence of a prior marriage? The only exception where a party may enter into a subsequent marriage, without going through the processes of filing for the nullity or annulment of the previous marriage is provided in Article 41 where the present spouse must obtain a judicial declaration of presumptive death should he/she have a well-founded belief that the absent spouse is already dead. However, the subsequent marriage shall be automatically terminated upon the recording of the affidavit of reappearance of the absent spouse.
Art. 41. A marriage contracted by any person during subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient. For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive
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death of the absentee, without prejudice to the effect of reappearance of the absent spouse. (83a)
about the requirement of the declaration of presumptive death. The Family Code now requires the proper proceeding of the declaration of presumptive death. This is only available for the purposes of remarriage. This is not necessary for purposes of administration of the properties of the absentee. Q: When can you avail of this action? You can avail of this action after 4 years from ordinary disappearance or 2 years after extraordinary disappearance. Note that the 7 and 4-year limits still apply for all other purposes other than remarriage. Q: What if the absent spouse reappears? The Civil Code used to define this as a bigamous voidable marriage. Once the absent spouse reappears, then you can annul the subsequent marriage. But by virtue of the Family Code (Article 42), this concept is done away with. Under the Family Code, the first marriage stands as valid, and the second is immediately and automatically terminated. Q: May the present spouse choose which marriage he/she wants to subsist? No. There is no choice as to which marriage shall continue to subsist because the moment the fist spouse reappears, it is the subsequent marriage that is automatically terminated. The present spouse cannot choose to terminate the first marriage. Remember. The terms and conditions of marriage, their nullity, their termination are governed by law and not subject to the option of the parties Once the absent spouse reappears and the judicial declaration of presumptive death is filed with the proper court, the subsequent marriage is automatically terminated. Q: What are the requirements for reappearance? You dont just show your face. Reappearance, to terminate the second marriage requires an affidavit of reappearance that would be filed by the reappearing spouse himself of any interested person, with due notice to the spouse of the subsequent marriage. Q: Cam reappearance be contested? Yes. The affidavit of reappearance is not conclusive. The reappearing spouse must be able to prove that he is not an impostor. This can be contested by any of the spouses to the second marriage if the affidavit was filed by any interested party. It can also be contested by the previous spouse and allege that the reappearing spouse is an impostor if it is the reappearing spouse that files the affidavit.
Q: What are the instances when the two-year limit apply?
Art. 391. The following shall be presumed dead for all purposes, including the division of the estate among the heirs: (1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane; (2) A person in the armed forces who has taken part in war, and has been missing for four years; (3) A person who has been in danger of death under other circumstances and his existence has not been known for four years. (n) Q: Happy and Marife were married. Marife went away because she had to work as a belly dancer in Brunei. Happy knows this. But because of the length of time that Marife had been away, there was no certainty as to whether she was still alive. Can Happy initiate an action for the declaration of the presumptive death? Can Happy remarry and get Loi as his apouse? No. The declaration must be given only when the spouse actually does not know where to contact the other spouse. If you know the spouse is merely in another place r with another man, the Family Code will not allow a valid subsequent marriage. Note that the declaration of presumptive death will only be given when the present spouse is not certain whether the other spouse is alive or dead and there is reasonable doubt as to the absent spouses continued existence. The fact that you merely dont receive any communication from your spouse, or that the other spouse is merely away, or that there is mere separation, abandonment or living apart from each other will not allow such declaration. Note that the Civil Code used to allow remarriage on the basis of mere though that the other spouse is dead. But the Family Code is now strict
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Q: What happens if the affidavit if no affidavit is produced, or there is no reappearance or the affidavit is successfully contested? The second marriage may validly subsist. Q: What if the opposite happen, such that the affidavit is upheld? Then the second marriage is terminated not voided or annulled. children are legitimate. The
If one spouse suffers prejudice. The present spouse has an interest in the existence in the first marriage. Even relatives have an interest. Even the state has an interest in the marriage to make sure that family rights and duties are complied with and the sanctity of the marriage protected. Q: What are the effects of the termination of the subsequent marriage? Article 43. The termination of the 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; (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 said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or in default of children, the innocent spouse; (3) Donations by reason of marriage shall remain valid, except that 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 bad faith as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and (5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession. (n) Weigel v. Sempio-Dy FACTS: Karl Heinz Weigel asked for the declaration of nullity of his marriage with Lilia Oliva Weigel on the ground that Lilias previous existing marriage to Eduardo Maxion.
Q: What happens if no one files an affidavit of reappearance despite the reappearance of the absentee spouse? Can we have a situation where there are two validly subsisting marriages? No. there can be no such anomalous situation. Note that from the grant of the declaration of the presumptive death, the previous marriage is declared Terminated. So the second marriage must subsist. Until the affidavit of reappearance is filed, the second marriage validly subsists. N.B. The automatic termination of the second marriage will not apply if the previous marriage if the present spouse and the returning spouse has been annulled or declared void by the courts. Q: If the absent spouse is alive, but he does not want to file an affidavit of reappearance because he does not want to destroy the second marriage, may he be penalized by law? No, the law does not compel the absent spouse to file the affidavit of reappearance. If he does not file, there is no penalty. The only effect is that the first marriage is still considered terminated and the second marriage continues to subsist. Q: Can the absent spouse then remarry? No. The Family code authorizes the present spouse to remarry upon compliance with the requirements of Article 41. But the absent spouse is not so authorized by the Code. If the reappearing spouse gets married again to another, the marriage is null and void. Q: If the reappearing spouse thus marries again, can the present spouse sue him/her for bigamy? Yes. Q: What would be his/her interest in filing the action for bigamy?
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Lilia while admitting the existence of said prior subsisting marriage claimed that said marriage was null and void, she and Eduardo having been alleged forced to enter said marital union. Lilia asked the court for an opportunity to present evidence that the first marriage was vitiated by force and that Eduardo was already married to someone else at the time of their marriage.
ISSUE: Whether or not there is a need for Lilia to prove that her first marriage was vitiated by force. HELD: NO. There is no need for Lilia to prove that her first marriage was vitiated by force committed against both parties because assuming this to be so, the marriage will not be void but merely voidable, and therefore valid until annulled. Since no annulment has yet been made, it is clear that when she married Weigel she was still validly married to her first husband, consequently, her marriage to Weigel is void. Likewise there is no need of introducing evidence about the existing prior marriage of her first husband at the time they married each other, for then such a marriage though void still needs a judicial declaration of such fact and for all legal intents and purposes she would still be regarded as a married woman at the time she contracted her marriage with Weigel. Carino v. Carino FACTS: During the lifetime of SPO4 Santiago S. Carino, he contracted two marriages, the first was with Susan Nicdao and the second with Susan Yee. When he passed away, both wives claimed monetary benefits and financial assistance from various government agencies. Susan Yee filed a case against Susan Nicdao praying for the return of at least half of the death benefits of Carino. The marriage of Susan Yee with Carino took place during the subsistence of , and without first obtaining a judicial declaration of nullity of marriage in the first marriage. However, she claimed that she had no knowledge of the previous marriage. As her defense, she claims that the first marriage was void ab inition because it was solemnized without the required marriage license. ISSUE: Whether or not there is a need for the judicial declaration of nullity or marriage. HELD:
YES. Under Article 40 of the FC, 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 is void. Meaning, where the absolute nullity of a previous marriage is sought to be invoked for purposes of contracting a second marriage, the sole basis acceptable in law, for said projected marriage to be free from legal infirmity, is a final judgment declaring the previous marriage void. However, for purposes other than remarriage, no judicial action is necessary to declare a marriage an absolute nullity. For other purposes, such as but not limited to the determination of heirship, legitimacy, or illegitimacy of a child, settlement of estate, dissolution of property regime, or a criminal case for that matter, the court may pass upon the validity of marriage even after the death of the parties, and even in a suit not directly instituted to question the validity of said marriage, so long as it is essential to the determination of the case. In such instances, evidence must be adduced, testimonial or documentary, to prove the existence of grounds rendering such a previous marriage an absolute nullity. The first marriage is void having been solemnized without the necessary marriage license, and not being one of the marriage exempt from such requirement. Accordingly, the declaration in this case of nullity of the previous marriage of the deceased does not validate the second marriage. The fact remains that their marriage was solemnized without first obtaining a judicial decree declaring the marriage of Nicdao is void. Thus, the second marriage is bigamous having been solemnized during the subsistence of a previous marriage.
Ty v. CA FACTS: Edgardo Reyes married Anna Villanueva in a civil ceremony. They had a church wedding. However, the Juvenile and Domestic Relations Court declared their marriage null and void for lack of a valid marriage license. Before the decree was issued nullifying his marriage to Anna, he married Ofelia. After several years of marriage, Edgardo filed a case praying that his marriage to Ofelia be declared null and void. He alleged that they had no marriage license when they got married and that at the time of their marriage he was still married to Anna. On the other hand, Ofelia contends that Edgardos allegation is not true because a marriage license was issued.
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ISSUE: Whether or not the decree of nullity of the first marriage is required before a subsequent marriage can be entered into validly? HELD: As a general rule, there is a need for the decree of nullity of marriage before a subsequent marriage can be contracted. However, the Court in this case made an exception because 1) both marriages were celebrated before the family code; and 2) the provisions of the FC cannot be retroactively applied because to do so would prejudice the vested rights of Ofelia and of her children. b. Consent
subjectivity to the vices of consent. In ordinary contracts, the consent must be manifested by the parties without the need of a witness of a notary public, but in the special contract of marriage, the consent must be manifested before the solemnizing officer. Q: What happens when there is absolutely no consent or when the parties did not intend to be bound, as in the case of a joke, or movie play? The marriage is void. Q: What is the effect if there is a defect in the consent or if it is vitiated by error, fraud, intimidation or force? The marriage is voidable. Q: Is vitiated consent the same as lack of consent? No. Lack of Consent Vitiated Consent The party did not agree to enter into There is an expression of consent but the marriage there are outside factors which influence the consent given. The marriage is void The marriage is merely voidable Q: Is there such a thing as an internal consent? No. Consent must be manifested through external acts like saying yes or nodding your head. What is important is that you signify your consent or perform this external act before the solemnizing officer. Q: To whom must consent be manifested? Consent must be shown to the solemnizing officer. Q: Is proxy marriage valid? No. From the above requisites of a marriage ceremony, it can be inferred that the man and woman must personally declare that they accept each other as husband and wife. Futhermore, consent must be communicated personally before the solemnizing officer. Jurisprudence says that before a solemnizing officer means actual presence before the solemnizing officer. No agents or attorneys in fact are allowed. As of this age, no jurisprudence allows consent by telephone or fax messages. Basis, by the Dean, lies in the requirement of personally manifesting your consent. Q: Are common law marriages allowed? No. Common law marriages, whereby the parties just live together as husband and wife without the celebration of marriage between them, is not
Art. 6. No prescribed form or religious rite for the solemnization of the marriage is required. It shall be necessary, however, for the contracting parties to appear personally before the solemnizing officer and declare in the presence of not less than two witnesses of legal age that they take each other as husband and wife. This declaration shall be contained in the marriage certificate which 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 said party, which fact shall be attested by the solemnizing officer. (55a) Q: To what does consent refer? Consent refers to the consent of the contracting parties and not of parental consent. Consent is required because marriage is a contract, a voluntary act. Q: When we talk of defective essential requirement, to what does the law refer? The law is referring to a defective consent and not on legal capacity. There can be no defective legal capacity. One is either capacitated or not (18 years of not). Q: Is the consent required in marriage the same as the consent in ordinary contracts? The concept of consent is practically the same between ordinary contracts and marriage. Although the subject matter may not be the same, the standards for determining consent are the same: (a) Voluntariness and (b)
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allowed because the parties must personally appear before the solemnizing officer and express their consent to the marriage contract. c. Authority of Solemnizing Officer
not need to provide evidence for good faith since this is presumed. The one who alleges bad faith, is the one who must prove it. Member of the Judiciary Q: Who are the members of the judiciary who can solemnize marriage? Judges and Justices. Q: Does this authority cover all courts? Yes. Judges of the MTC or RTC, justices of the CA and SC, including judges of the CTA and SB can solemnize marriages. Dean: The Family Code makes no distinction. At least, the weight of authority is that the judges of the CTA and SB are authorized to solemnize marriages because they are after all, members of the judiciary. Even if they have limited jurisdiction, that aurhotiry includes solemnizing marriages. However, there are those who are called judges or justices but are not (like in the Office of the SG or in Government Corporate Counsel). They cannot solemnize marriages because they are not members of the Judiciary. Some of them have only the rank justices but are not actually justices. Q: Can judge of the barangay courts solemnize marriages? No. They are not members of the judiciary. They do not have the same process of appointment as the judges and the justices. The latter are appointed by the President after being nominated by the JBC. Q: Is the Ombudsman authorized to solemnize marriages? No. Because he is not a member of the judiciary. He is a part of the prosecuting arm of the government (which is an executive function). Q: Where does the authority of the judges or justices to solemnize marriages come from? Is there a separate authority granted to them to solemnized marriages? They do not have any separate authority granted. They get their authority from their appointment as judges or justices. So it is ex-officio. Its a function of their office. Q: What are the limitations as to the authority of the judges or justices to solemnize marriages?
Art. 7. Marriage may be solemnized by: (1) Any incumbent member of the judiciary within the court's jurisdiction; (2) Any priest, rabbi, imam, or minister of any church or religious sect duly authorized by his church or religious sect and registered with the civil registrar general, acting within the limits of the written authority granted by his church or religious sect and provided that at least one of the contracting parties belongs to the solemnizing officer's church or religious sect; (3) Any ship captain or airplane chief only in the case mentioned in Article 31; (4) Any military commander of a unit to which a chaplain is assigned, in the absence of the latter, during a military operation, likewise only in the cases mentioned in Article 32; (5) Any consul-general, consul or vice-consul in the case provided in Article 10. (56a) Q: How can we generally divide the solemnizing officers in marriages? 1. Members of the Judiciary 2. Mayors, as provided by the LGC 3. Religious 4. Others 5. Consuls Q: Is there any exception to the formal requirement of the authority of the solemnizing officer? Yes. Article 35(2) provides that marriages solemnized by any person not legally authorized to perform marriage are void, 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. Dean says that one does
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1. 2.
Jurisdiction Period of incumbency.
Q: What do we mean by jurisdiction? We are referring to territorial jurisdiction. If you are a judge of the RTC of Makati, then you only have authority to solemnize marriages in the Makati area. If you are a member of the SC, the whole Philippines is your territorial jurisdiction. So you can solemnize marriages all over the Philippines. With respect to those with appellate jurisdiction, their territorial jurisdiction also extend throughout the Philippines. Therefore, this is true with the CA, CTA and the SB. Q; Is a judge required to solemnize a marriage within his sala? No. While it is prescribed, suggested and recommended that a marriage be solemnized in the sala of the judge, this is not a mandatory requirement; therefore marriages can be solemnized outside the sala of a judge provided that the place is still within the territorial jurisdiction of the judge. Q; What do we mean by period of incumbency? This refers to the time when the judge or justice take their oath of office up to the time when they retire, or are terminated or separated from their office. Q: Can they solemnize marriages during Saturdays, Sundays or Holidays? Yes. When we speak of incumbency, we mean that a judge or justice does not los authority just because it is a non-working day or holiday. Moreover, they can also solemnize marriages at any time of the day or night. Q: Suppose a judge has been suspended, can he still solemnize marriages? No. The authority to solemnize marriages comes from his function as a judge. So once that authority to exercise that function is suspended, then this includes also the authority to solemnize marriages. Q: Where does the authority of the religious people to solemnize marriages come from? Their authority emanates from their own religious sect, church or denomination. So if you are already on ordained priest, and you have been given the authority to solemnize the sacraments, including the sacrament of matrimony, this is your authority.
Dean: You will notice that there is now a shift insofar as religious people are concerned because principally, the authority comes from the church and not from the State. Unlike in the case of the judiciary where the authority really comes from the State because it comes with their functions as judges, the authority of the religious people do not emanate from the State. The only thing that is required as far as the State is concerned is the fact that the priests authority from the church is registered with the civil registrar general. SO this is more a recording or registration than an approval. Q; Leu us assume that for on reason or another, the Cardinal gives Mon the authority to solemnize marriages while he is still a seminarian. Is the marriage valid? (Assume for this purpose that the Cardinal has the authority to grant the authority) Yes. We have to make a distinction between an irregularity and a total lack of authority. If a priest in fact does not have the authority from the church then he does not have the authority to solemnize marriages. But if a person was granted the authority for one reason or another, even if the person is not a qualified priest then there is an irregularity in obtaining the authority but the fact that it has been irregularly issued does nto mean that he is not authorized to solemnize marriages. The irregularity will not affect the validity of the marriage but will subject the person to civil liabilities, criminal prosecution or some administrative sanction. Q: What if the church or sect gives authority to one who is not a member of that church of sect? When we talk about authority of the religious people, we have to talk about their own internal regulations. For as long as they have been authorized by that church to solemnize marriages we are not really concerned about their qualifications because what we are concerned about is the fact that they have been authorized. But practically and in reality, most churches or sects do not really grant authority unless the person is a member of that church of sect. Ship Captain or Airplane Chiefs Art. 31. A marriage in articulo mortis between passengers or crew members may also be solemnized by a ship captain or by an airplane pilot not only while the ship is at sea or the plane is in flight, but also during stopovers at ports of call. (74a)
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Q: Under what conditions can ship captains or airplane chiefs solemnize marriages? 1. It must be a marriage where at least one of the parties is in articulo mortis 2. The marriage is between passengers or crew members. 3. The marriage may be solemnized not only while the ship is at sea or the plane is in flight but also during stopovers at ports of call. Q: What do we mean by in articulo mortis? A marriage in articulo mortis is solemnized where one o the parties is at the point of death. Q: What if one of the parties is terminally ill with cancer, and he is aboard a PAL Flights, can he request the airplane chief to marry him and his girlfriend? No. In articulo mortis does not mean that a person is terminally ill but that that a person is at the point where he is about to die. SO even if the person is sick with cancer and all of the doctors in the world have given him no hope of living, he cannot avail of the in articulo mortis provision. But it may be a different story if he suffers a heart attack while on board and he is about to die and he asks the airplane chief to marry him and his girlfriend. Then the marriage may be validly solemnized by the airplane chief. Q: What is the effect on the marriage if the person at the point of death subsequently recovers? The marriage is still valid. It is not important whether a person does recover or does not recover. What is important is that a marriage is solemnized because one of the parties is at that point when he is about to die. Q: Can the ship captain solemnize a marriage between a passenger and a stowaway? Yes. The term passenger should be construed to mean somebody who is aboard the ship or airplane, whether he is a paying or non-paying passenger and who is not a member of the crew. Q: What if the airplane lands at the airport and just before disembarking from the plane, one of the parties is about to die. Can the airplane chief solemnize the marriage?
Yes. The authority of the airplane chief remains until that point in time when the parties disembark from the airplane. Q: Happy had a flight from Manila to Davao but he had to stop at Cebu to catch a connecting flight to Davao. While at the Cebu airport, he suffered a heart attack and wanted to marry Maife right away, can the airplane chief solemnize the marriage? If es, which airplane chief can solemnize their marriage? Dean: A lot of questions have been generated by this term stopover. Obviously, if you are just staying in the place and taking the same plane to your final destination, then there is really no problem there. Even assuming that you are taking the same plane and you are told to disembark, will that still be covered under the authority of the pilot? I would think that it will still be within the authority of the pilot even if you are waiting there at the airport terminal. If you are taking a connecting flight, is that considered a stopover? If you have to be very liberal about it, then it is a stopover because your voyage starts from manila and ends in Davao. Then in that instance, the only problem would be which pilot you are going to call. Never mind, in all likelihood, you will not find the pilots anymore. And you will be dead by the time they will find one. Also remember that this provision will only apply to those marriages solemnized within Philippine territory. So if you are taking a flight to San Francisco, and there is a stopover in Hawaii, even if you are in Hawaii and it is a stopover, you cannot call on the pilot to solemnize your marriage because it will not be considered valid because the provision applies only to those marriages celebrated within the Philippine territory. The marriage should be construed according to the laws of the state where it was celebrated. However, if the marriage was celebrated inside the plane then the marriage is valid if the vessel of plane is of Philippine registry, because they are considered extensions of our territory. Military Commanders of a Unit Art. 32. A military commander of a unit, who is a commissioned officer, shall likewise have authority to solemnize marriages in articulo mortis between persons within the zone of military operation, whether members of the armed forces or civilians. (74a) Q: Under what conditions can military commanders solemnize marriages?
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1. 2. 3. 4. 5.
the marriage may be solemnized where at least one of the parties is in articulo mortis, whether he be a civilian or a member of the armed forces. the officiating officer must be a commissioned officerthe officer must command at least a battalion, and he must also at least have a rank of 2nd lieutenant. the marriage must take place during the conduct of military operations. a chaplain must be assigned to the military an said chaplain must be absent at the time when the couple is to get married. the marriage must be celebrated within the zone of military operations.
Consul-General, Consuls or Vice-Consuls. 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. (75a) Q: Under what conditions can consuls solemnize marriages? 1. They can solemnize marriages only between Filipinos. They cannot solemnize mix marriages. The Filipinos to be married need not be permanent residents of the foreign country. They may merely be tourists. 2. The marriage is celebrated in the Philippines consulate abroad. Q: Can an ambassador solemnize marriages? No. Only the consuls are authorized to solemnize marriages. Q: If the consuls are on home leaves to the Philippines, can they solemnize marriages? No. Q: Are marriages solemnized by consular officials exempt from the marriage license requirement? No. In this case, the consular official should issue the license and other requirements. The duty of the Civil Registrar shall be preformed by the consular official. Municipal and City Mayors The Civil Code gave mayors the authority to solemnize marriages. But the Family Code removed such authority because experience had shown that most violations of the law on marriage were committed by these politician who desire to please their constituents. However, the Local Government Code restored this aurhtority to the mayors, Therefore, mayors have again the authority to solemnize marriages. Just like judges and justices, their authority emanates from the fact that they have been elected and proclaimed as mayors. Again, with respect to the period, it should be their incumbency, that is, from the time they are legally proclaimed up to the end of their term, or end of their tenure by non-
Dean: This provision has always confused me. The Civil Code as well as the Family Code now provides that it must a military unit where a chaplain is assigned and in the absence of such chaplain What happens if there is no chaplain assigned to that battalion? Does this mean that nobody can solemnize the marriage? It is rather strange. Well that is the law. Therefore, if there is no chaplain attached to the military unit then it is not within the authority of the military commander to solemnize the marriages. Q: Who are the parties to the marriage? They can be civilians o they can be members of the battalion. They can be anybody within the vicinity of the military operations like those simply watching the operations, military doctors, a member of a bandit group, etc. Q: What is the zone of military operations? This is not an accurately defined territory. But looking into the Committee reports, this could mean any territory where military operations are being conducted and military operations are defined as civil war, an action where there is use of military maneuver, rebellion, war and this even include police actions. Q: Can a police general solemnize marriages? Reviewer: Dean says yeah, if the solemnizing officer has the equivalent rank of 2nd Lieutenant. But a hand-written annotation in the reviewer says this is wrong. I suppose because Police are supposedly civilians. Non-civilians are the Military. (Primer: Fr. Bernas)
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reelection, removal or retirement. Furthermore, they are covered by territorial jurisdiction rule. So the mayor of Manila cannot solemnize marriages in Makati. If the vice-mayor is the acting mayor then he can be a solemnizing officer. Beso v. Daguman FACTS: Zenaida S. Beso charged Judge Juan J. Daguman, Jr. with solemnizing marriage outside his jurisdiction and of negligence in not retaining a copy and not registering the marriage contract with the office of the Local Civil Registrar. Judge Daguman is a municipal judge of Sta. Margarita, Samar. He solemnized the marriage of Beso in his residence in J.P.R. Subdivision in Calbayog City, Samar. ISSUE: Whether or not Daguman is liable for solemnizing marriage outside his area of jurisdiction. HELD: YES. As presiding judge of the MCTC Sta. Margarita TarangnanPagsanjan, Samar, the authority to solemnize marriage is only limited to those municipalities under his jurisdiction. Clearly, Calbayog City is no longer within his area of jurisdiction. There are only 3 instances, as provided by Article 8 of the FC, wherein a marriage may be solemnized by a judge outside of his chambers or at a place other than his sala, to wit: 1. when either or both of the contracting parties is at the point of death; 2. when the residence of either party is located in a remote place; 3. 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. In this case, there is no pretense that either Beso or his fianc Yman was at the point of death or in a remote place. Neither was there a sworn written request made by the contracting parties to the Judge that the marriage be solemnized outside his chambers or at a place other than his sala. What, in fact appears on record is that respondent Judge was prompted more by urgency to solemnize the marriage because Beso was an overseas worker. Judges who are appointed to specific jurisdiction may officiate in weddings only within said areas and not beyond. Where a judge
solemnizes a marriage outside his courts jurisdiction, there is a resultant irregularity in the formal requisites laid down in Article 3, which while it may not affect the validity of the marriage, may subject the officiating official to administrative liability. Aranes v. Occiano FACTS: Margarita Aranes charged Judge Occiano for gross ignorance of the law because he solemnized her marriage without the requisite marriage license and at Nabua, Camarines Sur which is outside his territorial jurisdicion. ISSUE: Whether or not Occiano is liable for solemnizing marriage outside his area of jurisdiction. HELD: YES. The territorial jurisdiction of Occiano is limited to the municipality of Balatan, Camarines Sur. His act of solemnizing the marriage in Nabua, Camarines Sur is contrary to law and subjects him to administrative liability. Furthermore, he should be faulted for solemnizing a marriage without the requisite marriage license. In People v. Lara, the court held that a marriage which preceded the issuance of the marriage license is void, and that the subsequent issuance of such license cannot render valid or even add an iota of validity of such marriage. It is the marriage license that gives the solemnizing officer the authority to solemnize a marriage. Thus, the judge did not possess such authority when he solemnized the marriage of Aranes. Navarro v. Domagtoy FACTS: Navarro filed an administrative case against the MCTC Judge Hernando Domagtoy for two specific acts namely: 1) for solemnizing the marriage despite the groom is merely separated from his wife; and 2) solemnized the marriage outside his courts jurisdiction. ISSUE: Whether or not the Mayor is liable. HELD: YES. Inasmuch as respondent judges jurisdiction covers the municipalities of Sta. Monica and Burgos, he was not clothed with authority to solemnize a marriage in the municipality of Dapa, Surigao del Norte. By citing Article 8 and the exceptions therein as grounds for
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the exercise of his misplaced authority, the Judge demonstrated a lack of understanding of the basic principles of civil law. d. Marriage License
(10) Full name, residence and citizenship of the guardian or person having charge, in case the contracting party has neither father nor mother and is under the age of twenty-one years. The applicants, their parents or guardians shall not be required to exhibit their residence certificates in any formality in connection with the securing of the marriage license. (59a) Art. 20. The license shall be valid in any part of the Philippines for a period of one hundred twenty days from the date of issue, and shall be deemed automatically cancelled at the expiration of the 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. Q. What is the marriage license? It is a piece of paper that you get from the Civil Registrars Office. It is a formal requirement for a valid marriage. Q. What makes a marriage license void? 1. 2. If it is not issued by the civil registrar or even if it was issued by the civil registrar but signed b some unauthorized person; or if the genuine license had expired
Art. 9. A marriage license shall be issued by the local civil registrar of the city or municipality where either contracting party habitually resides, except in marriages where no license is required in accordance with Chapter 2 of this Title. (58a) that the marriage license be issued by the local civil registrar of the city or municipality where either contracting party habitually resides is NOT a mandatory requirement. Art. 11. Where a marriage license is required, each of the contracting parties shall file separately a sworn application for such license with the proper local civil registrar which shall specify the following: (1) Full name of the contracting party; (2) Place of birth; (3) Age and date of birth; (4) Civil status; (5) If previously married, how, when and where the previous marriage was dissolved or annulled; (6) Present residence and citizenship; (7) Degree of relationship of the contracting parties; (8) Full name, residence and citizenship of the father; (9) Full name, residence and citizenship of the mother; and
Q. What happens if somebody produces a fake marriage license form and forges the signature of the civil registrar? The marriage using that marriage license will be void. The good faith exception will not apply here. Q. How long will the marriage license remain valid after issuance? It is valid for 120 days from the date of issuance and it shall be effective in any part of the Philippines. Q. What happens if the marriage license had already expired, does this mean that you can no longer marry? No, you can still marry, but you must first obtain another marriage license. If you insist on marrying with the expired license, the marriage will be void. Q. H and W obtained a marriage license in Cebu. They got married in Manila. Can they still use their license?
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Yes. A marriage license is good anywhere in the Philippines. It can be used in places other than one where the marriage license was issued. It is not necessary to obtain the marriage license from the place where the marriage is to be celebrated, Q. What is the exception to the rule requiring a marriage license. The exceptions to this requirement are marriages in articulo mortis and those other exceptions as provided for in the Family Code (Arts. 27-34). NOTE: Marriages solemnized between two Filipinos outside of the Philippines may be celebrated before the Philippine Consulate, not the Philippine Embassy. These marriages still require the marriage license, to be issued by the consul. Q. What will be the state of validity of a marriage where the marriage license applicant misrepresented certain information (fake age or wrong place of residence) and the civil registrar nonetheless issued a license? It depends. Misrepresentation on matters concerning the minimum age for marriage, sex and the existence of legal impediments will be considered a defect which would result in a void marriage. Misrepresentation concerning parental consent and advice is a mere irregularity in the marriage license. Irregularities in the formal requisites do not invalidate a marriage. They only subject the person guilty of the irregularity to the appropriate penalties. Q. X is 17 yrs. Old. He stated that he was 18 yrs. Old in his application. A license is issued. Xs marriage will be void. The issuance of the marriage license is not conclusive as to the existence of legal capacity. Legal capacity is not determined by the civil registrar. If there is a defect on the legal capacity of the parties, the issuance of the license will not correct that defect. Q. What is the effect if you are between the ages of 18 and 21 and because you do not want to get the consent of your parents, you stated in your application that you are 26 years of age? The marriage will be voidable. The marriage suffers from a defect, not by reason of the misrepresentation made before the civil registrar, but because you are required to obtain the consent of your parents and the absence of that leads to a voidable marriage.
Q. What if you are between the ages of 21 and 25 and to do away with the advice of your parents, you stated in our application that you are more than 25 years age, what will happen to the marriage? This has no effect on the marriage. If you are between the ages of 21 and 25 and you do not obtain parental advice, the only effect is that the marriage license should not be issued until after a period of 3 months. The issuance of the marriage license is based on the misrepresentation made is merely an irregularity in a formal requisite which neither makes the marriage void nor voidable. i. Procedure in Obtaining a Marriage License
Art. 12. The local civil registrar, upon receiving such application, shall require the presentation of the original birth certificates or, in default thereof, the baptismal certificates of the contracting parties or copies of such documents duly attested by the persons having custody of the originals. These certificates or certified copies of the documents by this Article need not be sworn to and shall be exempt from the documentary stamp tax. The signature and official title of the person issuing the certificate shall be sufficient proof of its authenticity. If either of the contracting parties is unable to produce his birth or baptismal certificate or a certified copy of either because of the destruction or loss of the original or if it is shown by an affidavit of such party or of any other person that such birth or baptismal certificate has not yet been received though the same has been required of the person having custody thereof at least fifteen days prior to the date of the application, such party may furnish in lieu thereof his current residence certificate or an instrument drawn up and sworn to before the local civil registrar concerned or any public official authorized to administer oaths. Such instrument shall contain the sworn declaration of two witnesses of lawful age, setting forth the full name, residence and citizenship of such contracting party and of his or her parents, if known, and the place and date of birth of such party. The nearest of kin of the contracting parties shall be preferred as witnesses, or, in their default, persons of good reputation in the province or the locality. The presentation of birth or baptismal certificate shall not be required if the parents of the contracting parties appear personally before the local civil registrar concerned and swear to the correctness of the lawful age of said parties, as stated in the application, or when the local civil registrar shall, by merely looking at the applicants upon their personally appearing
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before him, be convinced that either or both of them have the required age. Art. 17. The local civil registrar shall prepare a notice which shall contain the full names and residences of the applicants for a marriage license and other data given in the applications. The notice shall be posted for ten consecutive days on a bulletin board outside the office of the local civil registrar located in a conspicuous place within the building and accessible to the general public. This notice shall request all persons having knowledge of any impediment to the marriage to advise the local civil registrar thereof. The marriage license shall be issued after the completion of the period of publication. Art. 18. In case of any impediment known to the local civil registrar or brought to his attention, he shall note down the particulars thereof and his findings thereon in the application for marriage license, but shall nonetheless issue said license after the completion of the period of publication, unless ordered otherwise by a competent court at his own instance or that of any interest party. No filing fee shall be charged for the petition nor a corresponding bond required for the issuances of the order. Art. 19. The local civil registrar shall require the payment of the fees prescribed by law or regulations before the issuance of the marriage license. No other sum shall be collected in the nature of a fee or tax of any kind for the issuance of said license. It shall, however, be issued free of charge to indigent parties, that is those who have no visible means of income or whose income is insufficient for their subsistence a fact established by their affidavit, or by their oath before the local civil registrar. Art. 24. It shall be the duty of the local civil registrar to prepare the documents required by this Title, and to administer oaths to all interested parties without any charge in both cases. The documents and affidavits filed in connection with applications for marriage licenses shall be exempt from documentary stamp tax. Art. 25. The local civil registrar concerned shall enter all applications for marriage licenses filed with him in a registry book strictly in the order in which the same are received. He shall record in said book the names of the applicants, the date on which the marriage license was issued, and such other data as may be necessary.
Q. In obtaining a marriage license, there are certain things which the civil registrar will ask of you. What is the purpose for this? Most of these requirements are for the purpose of determining whether you are possessed with legal capacity to enter into marriage. You will notice, however, that in most cases, the examination of the civil registrar is limited to the age of the applicant and this is why he asks for the birth certificate. If on the basis of the birth certificate, the applicant is qualified to enter into a marriage on account of his age, then the civil registrar will issue the marriage license. With respect to other impediments on account of public policy or incestuous relationships, this is something which the local civil registrar cannot really determine. He cannot determine whether or not prior existing marriage exists because the civil registrars office does not have computerized records of all marriages celebrated elsewhere in the Philippines. So essentially if there is an impediment or there is somebody who wishes to object to the issuance of a marriage license, what the civil registrar can do is to note down the objection or opposition. He is powerless to rule on the objection or to make a determination of whether or not an impediment exists unless, of course, it is on the basis of the birth certificate. Thus, anyone who knows of any impediment shall not only come forward before the local civil registrar, he should file the necessary action in court to prevent the civil registrar from issuing the marriage license. Q. Can the civil registrar refuse to issue a marriage license? No. The civil registrar is not a judicial body. It makes no determination of whether or not the applicants are legally capacitated or not. The civil registrar can make an initial determination s to whether you are legally qualified to enter marriage or not. But this determination is not legally conclusive. So, you cannot say that because you have been granted a marriage license, you are actually capacitated to enter into a valid marriage. The function of the civil registrar is largely ministerial. For as long as you submit all the requirements, they must issue the marriage license. Q. Does the civil registrar have the discretion not to issue a marriage license when somebody objects to its issuance? No. The civil registrar must still issue the marriage license, unless there is a court order prohibiting him from doing so. Q. What is the purpose of the posting requirement?
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The purpose is to have anyone who knows of any impediments to the marriage to raise their objections. Objections should be raised, not to the civil registrar but to the court. When you go to the court, you should ask for the issuance of an order of prohibition to be issued against the civil registrar. Q. Is it possible for the local civil registrar to initiate proceedings in court? Yes, but do not rely on it heavily because you cannot expect him to institute the necessary proceedings. The law says he can, but if he does not or is not willing, there is no consequence. Q. What must be presented to the civil registrar in obtaining a marriage license? We must make a distinction between applicants for 1. First marriages; 2. Subsequent marriages; and 3. Alien applicants 1. FIRST MARRIAGES
Q. Who is going to give parental consent? a) father; b) mother; c) anyone exercising substitute authority; d) persons considered as guardians; and e) persons of legal charge (in the order stated) Q. What if your father is still alive, but despite that you obtained the consent required from your grandmother, what is the effect thereof? This is not the consent required under the Family Code, thus the civil registrar may refuse to issue you the license. Q. What if you misrepresented to the civil registrar that your parents are already dead, and by virtue of this, the civil registrar issued you a license based on the consent given by your grandmother? Marriage is valid. The marriage, however, is defective because there is no parental consent and therefore the marriage will still be considered voidable. If you do not present the proper parental consent, then it is as if there was no parental consent given. Q. If you are between the ages of 21 and 25, what is necessary? You are required to present a copy of the parental advice. The application has attached to it a form for this purpose. All you have to do is to let your parents sign it and state if the advice is favorable or not. An unfavorable advice is not a valid parental advice. Q. What is the effect of the absence of parental advice? Parental advice is more for purposes of obtaining a marriage license. Its absence will not affect the validity of a marriage provided that you have a marriage license. If there is no parental advice or if the parental advice is unfavorable, you have to wait for 3 months before the license will be issued. If, without waiting for three months, and for some reason you were able to obtain a marriage license, then the marriage will merely be irregular, for which reason the person responsible for the issuance of the marriage license will be liable. Q. In addition to the requirement of either parental consent or parental advice, what is necessary?
Q. How is age shown? By presenting a copy of the birth certificate. This is the best evidence of ones age. It does not necessarily mean that one is actually of the age represented in the birth certificate. Q. What if you do not have a birth certificate? In lieu of the birth certificate, the applicant may present his: a)baptismal certificate; b)residence certificate; c)parents who can affirm that he is at least 18 yrs. old; d) face-age may, most of the time, be determined from the face; the civil registrar can make an on the spot determination Q. If you are between the ages of 18-21, what may be required of you? You need to present a copy of your parental consent. The form of the parental consent is already attached to the application. All your parents need to do is to fill up and sign the attached form. Q. If you do not present parental consent, can the civil registrar refuse to issue the marriage license? Yes. While we say that the duty of the civil registrar is ministerial, the same is only true if all the documentary requirements are presented.
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The contracting parties also need the certificate of marriage counseling from a priest or any other government agency, otherwise the local civil registrar shall suspend the issuance of the marriage license for 3 months after the completion of publication. Q. Who are required to go through marriage counseling? If either of the parties is between the ages of 18 ad 25, BOTH of the parties must go through marriage counseling. 2. SUBSEQUENT MARRIAGES
Yes. A marriage license is not a blanket authority to marry anyone. The license specifically states the parties to be married. Aside from that, the marriage license is valid only for 120 days. Q. How is the marriage terminated? 1. Death 2. Annulment of the marriage 3. Declaration of nullity of the marriage Q. What needs to be presented by a person, whose previous marriage was terminated by death, to obtain a marriage license? 1. death certificate of the previous spouse; or 2. judicial declaration of presumptive death if basis is presumptive death Q. If the previous marriage was terminated through its annulment or declaration of its nullity, what must the person present to obtain a marriage license? He needs to present a copy of the final order of the court approving the annulment or the declaration of nullity of his first marriage. Q. What if the first marriage was terminated by divorce? Does divorce authorize you to enter into a subsequent marriage? As a general rule, NO. But if you had been previously married to an alien, and he has obtained the divorce, it is possible for the Filipino spouse to present the divorce decree to obtain a marriage license for his second marriage. It is necessary, however, for the Filipino spouse wishing to obtain a marriage license to convince the civil registrar that: 1. the alien spouse was in fact an alien at the time of the celebration of the marriage; 2. the alien spouse obtained the divorce; and 3. such decree capacitated the alien spouse to contract a second marriage Q. Is it necessary for one who has been previously married to present his birth certificate in obtaining a marriage license? No, it is no longer required, because it is assumed that one who has been previously married was already qualified at the time of the celebration of the first marriage.
Art. 13. In case either of the contracting parties has been previously married, the applicant shall be required to furnish, instead of the birth or baptismal certificate required in the last preceding article, the death certificate of the deceased spouse or the judicial decree of the absolute divorce, or the judicial decree of annulment or declaration of nullity of his or her previous marriage. In case the death certificate cannot be secured, the party shall make an affidavit setting forth this circumstance and his or her actual civil status and the name and date of death of the deceased spouse. Q. What must be presented before a party can enter into a subsequent marriage? He/she must prove the termination of his/her previous marriage by presenting either of the following: 1) in case of death of spouse-death certificate or declaration of presumptive death; 2) in case of annulment of voidable marriage- judicial decree of annulment; 3) in case of declaration of nullity of void marriage- judical decree of nullity; 4) in case of divorce; a) if foreign divorce-judicial decree of absolute divorce b) if issued during the Japanese occupation- decree of absolute divorce, if recognized as valid. c) If issued on the basis of Art.26 of the Family Code- judicial decree of absolute divorce Q. Is it still necessary for one who has been previously married to obtain another marriage license?
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Q. If you are between the ages of 18 and 21, do you still have to present parental consent even if you have been previously married? No. According to the Family Code, unless you had been previously emancipated by a prior marriage, then you must present parental consent. It is assumed that you had been given parental consent for your previous marriage. NOTE: It has been argued, however, that parental consent must be obtained anew. The consent given for the previous marriage is not a blanket consent to marry anyone the child pleases. Q. Is parental advice necessary for a person between the ages of 21 and 25, who has been previously married, to obtain a marriage license for contracting a second marriage? Yes. There is no exception similar to the exception given for parental consent. Since parental advice is not based on parental authority but on filial love and respect, no matter how old you are, getting parental advice is part of the Filipino tradition. Unfortunately however, this has resulted in an absurd situation because if you apply the provision which says that you are required to get parental consent or advice, you have to go through the marriage counseling course. In effect, those persons between the ages 18 and 21, who have been previously married are no longer required to get marriage counseling, while persons older than them have to go through marriage counseling. Dean does not think that the effect discussed above was intended by the framers of the Family Code. However, it leaves us with no choice, because that is how the provision was literally interpreted. 4. ALIEN APPLICANTS
No, they are not. They are required to secure a marriage license but not the usual marriage license. Q. What must they get instead? They must get a certification from their consular official that they are legally capacitated to marry. Q. What is the purpose for this? This certification is solely for the purpose of issuing a marriage license by the local civil registrar. Pursuant to the nationality theory, all he needs to present is a certificate of legal capacity issued by his own consular office. We do not contest whether that certification is true or not. Thus the certification has to be accepted on its face value by the local civil registrar. Q. What if the alien is in fact not legally capacitated to marry, what is the effect of the certification? The marriage is void. The certification will not validate the marriage entered into. Q. What do stateless individuals and refugees who wish to marry in the Philippines have to present? In case of stateless individuals (those who have lost their citizenship and have not acquired a new one) as well as refugees (only those who are citizens of other countries who have come to the Philippines seeking asylum or under refugee status from their own countries and not Filipino refugees who obtain refugee status in other countries), they are required to submit a sworn affidavit stating therein that: 1. they do not have any country or citizenship; and 2. they are qualified to marry This affidavit takes the place of all documentary requirements. Q. Is the affidavit self-serving? Yes, but it is the best that our laws can come up with since no consular official can certify to their legal capacity to marry. Q. What is the purpose of the affidavit? It is solely for the purpose of obtaining a marriage license. Q. What is the effect if the statements in the affidavit are not true?
Art. 21. When either or both of the contracting parties are citizens of a foreign country, it shall be necessary for them before a marriage license can be 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. Q. Are aliens who wish to get married in the Philippines exempt from getting marriage license?
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In addition to being liable for stating untruthful statements in the affidavit which is subscribed under oath or notarized, the marriage would still not be considered as valid, if in fact, there are several impediments to the marriage. Q. If such foreigner marry a Filipino, what requirements should be complied with? Insofar as the Filipino spouse is concerned, the requirements given by the Family Code should be followed. ii. Marriages Exempt from Marriage Licenses Art. 27. In case either or both of the contracting parties are at the point of death, the marriage may be solemnized without necessity of a marriage license and shall remain valid even if the ailing party subsequently survives. Art. 28. If the residence of either party is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar, the marriage may be solemnized without necessity of a marriage license. Art. 29. In the cases provided for in the two preceding articles, the solemnizing officer shall state in an affidavit executed before the local civil registrar or any other person legally authorized to administer oaths that the marriage was performed in articulo mortis or that the residence of either party, specifying the barrio or barangay, is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar and that the officer took the necessary steps to ascertain the ages and relationship of the contracting parties and the absence of legal impediment to the marriage. Art. 30. The original of the affidavit required in the last preceding article, together with the legible copy of the marriage contract, shall be sent by the person solemnizing the marriage to the local civil registrar of the municipality where it was performed within the period of thirty days after the performance of the marriage. Art. 31. A marriage in articulo mortis between passengers or crew members may also be solemnized by a ship captain or by an airplane pilot not only while the ship is at sea or the plane is in flight, but also during stopovers at ports of call.
Art. 32. A military commander of a unit, who is a commissioned officer, shall likewise have authority to solemnize marriages in articulo mortis between persons within the zone of military operation, whether members of the armed forces or civilians. Art. 33. Marriages among Muslims or among members of the ethnic cultural communities may be performed validly without the necessity of marriage license, provided they are solemnized in accordance with their customs, rites or practices. Art. 34. 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. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths. The solemnizing officer shall also state under oath that he ascertained the qualifications of the contracting parties are found no legal impediment to the marriage. Q. There are certain marriages where the requirement of a marriage license is not required. What are these marriages? 1) Article 27-where either or both of the contracting parties are at the point of death (marriage in articulo mortis) 2) Article 28-where the residence of either party is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar (marriage in a remote place) 3) Article 33- marriage among Muslims or among members of the ethnic cultural communities; if solemnized in accordance with their customs, rites or practices. 4) Article 34- marriage of a man and a woman who have lived together as husband and wife for at least 5 years and without legal impediment to marry each other. Q. Are these type of marriages still subject to other requirements? Yes. The requirement that there be no impediment to the marriage applies to all kinds of marriages even to those exempt from a marriage license. So when you speak of a marriage exempt from the requirement of marriage license, only the marriage license is exempt. In some cases, the authority of the solemnizing officer is different as in the case of marriage in articulo mortis, but obviously essential and formal requisites must be present.
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1.
IN ARTICULO MORTIS
Q. If the marriage is in articulo mortis, do you still have to comply with the requirement regarding authority of the solemnizing officer? Yes. Q. Who are the persons who can solemnize a marriage in articulo mortis? Essentially all those who are authorized to solemnize marriage under Article 7. The important point to remember is that it is not only the ship captain or airline chief pilot or military commander who are given the authority to solemnize marriage in articulo mortis. Judges, justices, religious people as well as mayors are likewise authorized to solemnize marriages. In all cases, a marriage license is not required. Q. What happens if either or both parties in a marriage in articulo mortis actually recover? Their marriage remains valid. There is no need for them to remarry. Q. How do you prove that the marriage was in fact celebrated? The solemnizing officer will make an affidavit stating the circumstance/s under which the marriage was celebrated (i.e. there was no marriage license and the parties or either of them was at the point of death at the time of celebration of the marriage or that the residence of either party is located in a remote place, and that he took the necessary steps to ascertain the ages and relationship of the contracting parties and the absence of a legal impediment to the marriage). Q. Where does the solemnizing officer file the affidavit? With the civil registrars office of the place where the marriage was celebrated. Q. If for one reason or another, the solemnizing officer fails or forgets to file the affidavit, will that have any effect on the validity of the marriage? No. Whether he files the affidavit or not, the marriage will still be considered valid. The only effect is that it becomes more difficult to prove the celebration of the marriage. Q. Is it correct to say that the affidavit is a substitute in lieu of the marriage license? No. The affidavit is not a substitute in lieu of the marriage license because to say so would make the marriage void on the ground of the absence of a
formal requirement. A marriage license is exempt in any case where the foregoing conditions appear. Filing of the affidavit is only a post-marriage requirement. 2. REMOTE PLACE
Q. What is a remote place? One where there is no means of transportation, whether public or private, whether one kilometer away or thousands of kilometers away. It doesnt have to be separated by bodies of water. A remote place is a relatively new concept. Under the Civil Code, the remote place is to be justified as a place which is x number of kilometers away from the local civil registrar. The old concept was commensurate on the basis of distance rather than difficulty or absence of means of transportation. The Family Code now dispenses with the distance requirement. It doesnt have to fall within a certain radius or exceed a certain number of kilometers from the local civil registrar. Q. What is therefore the test in determining a remote place? Is there a means of transportation? Whether public or private. It doesnt matter if one or both of the parties have physical disabilities. Q. Assuming that a person who desires to get married lives in one of the islands of Palawan and there is no public transportation going to the local civil registrar which is in Puerto Princesa, but there are fishermen who ply the sea in that area and their bancas will permit him to get to Puerto Princesa. Is this person exempt from the requirement of a marriage license? No. What is contemplated in the exemption from getting a marriage license is the absence of any means of transportation to go to the local civil registrar. For as long as there is a means of transportation, whether public or private, the place will not be considered as a remote place. Q. What if the place can be traveled only by foot, is there a means of transportation? None. Such is a remote place. Walking is not considered a means of transportation. Q. If you go to the strict interpretation of a remote place, invariably what happens to the solemnizing officer? Can you find one there?
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Invariably, you cannot find one. Remember, a barangay captain/local chieftain cannot solemnize marriage. 3. MUSLIM MARRIAGES
Q. If a woman has been cohabiting with a married man for 2 years and his wife dies and the two of them cohabited again for 3 years, can they avail of this provision? No. There must be no impediments during the 5-year period. Moreno v. Bernabe FACTS: Marilou Moreno filed this complaint against Judge Jose Bernabe of the MTC for grave misconduct and gross ignorance of the law. She alleged that she and Marcelo were married before the said Judge. She avers that the judge assured her that the marriage contract will be released 10 days after the marriage. Complainant visited the judge only to find out that she could not get the marriage contract because the office of the local civil registrar failed to issue a marriage license. ISSUE: Whether or not Judge is liable. HELD: YES. The FC provides that the formal requisites of marriage are, inter alia, a valid marriage license except in the cases provided for therein. Complementarily, it declares that the absence of any of the essential or formal requisites shall generally render the marriage void ab initio and that, while an irregularity in the formal requisites shall not affect the validity of the marriage, the party or parties responsible for the irregularity shall be civilly, criminally and administratively liable. The Judge, by his own admission, solemnized the marriage between Marilou and Marcelo without the required marriage license, has dismally failed to live up to his commitment to be the embodiment of competence, integrity and independence, and to his promise to be faithful to the law. Sy v. CA FACTS: Filipina Sy and Fernando Sy contracted marriage without a marriage license. Filipina filed a case for the declaration of absolute nullity of her marriage. ISSUE: Whether or not the marriage is void from the beginning for lack of marriage license. HELD: YES. The date of issue of the marriage license and marriage certificate, September 17, 1974, is contained in their marriage contract while the date of the celebration of their marriage was November 15, 1973. Thus, on the day of the marriage ceremony, there was no marriage license. A
Q. What is exempt in marriage among Muslims or among members of ethnic cultural communities? They are exempt from getting a marriage license, if not required under their customs, rites or practices. Thus, we have to look into their customs, rites and practices. Thus rule will only apply if both husband and wife are Muslims or if the husband is a Muslim (as, according to Dean, provided in the Muslim Code). If only the woman is a Muslim, apply the requirements of the Family Code 5-YEAR COHABITATION NOTE: elements: a. exclusivity-absence of third parties b. continuity-cohabitation as husband and wife 5yrs immediately preceeding the marriage c. No impediments during the 5-yr period Q. Therefore, how old should one be if marrying under this type of marriage? At least 18 years old. Q. Assuming the contracting party/parties are between the ages of 18 to 21, do they still need parental consent? Yes, because in the absence of parental consent, the marriage will be considered voidable. There is no provision exempting parental consent. If the party/parties are between 18 to 21 years old, no matter how long they have been cohabiting with each other, parental consent is still necessary. Q. If the parties are between 21 and 25, do they need parental advice? No. Parental advice is a marriage license requirement. So if a marriage license is dispensed with, then there is no more reason for the parties to get parental advice. Besides, because the effect of absence of parental advice merely suspends the issuance of a marriage license until after three months and since you are exempt from getting a marriage license, there is no effect at all. Furthermore, they dont need it since in all likelihood, they have breached their parents advice by cohabiting.
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marriage license is a formal requirement; its absence renders the marriage void ab initio. Nial v. CA FACTS: Pepito Ninal was married to Teodulfa Bellones on September 26, 1974. Out of their marriage were born herein petitioners. Teodulfa was shot by Pepito resulting in her death on April 24, 1985. 1 year and 8 months later, Pepito and Notma Badayog got married without any marriage license. In lieu thereof, Pepito and Norma executed an affidavit stating that they lived together as husband and wife for at least 5 years and were thus exempt from securing a marriage license. Thereafter, Pepito died in a car accident. After their fathers death, petitioners filed a petition for declaration of nullity of marriage of Peptio and Norma alleging that the said marriage was viod for lack of marriage license. ISSUE: Whether or not the cohabitation period referred to in the FC should be for a continuous period and exclusive with each other as husband and wife regardless of whether there is a legal impediment to their being lawfully married. HELD: NO. The five-year period should computed on the basis of a cohabitation as husband and wife where the only missing factor is the special contract of marriage to validate the union. In other words, the 5year common-law cohabitation period, which is counted back from the date of celebration of marriage, should be a period of legal union had it not been for the absence of the marriage. This 5-year period should be the years immediately before the day of the marriage and it should be a period of cohabitation characterized by exclusivity meaning no third party was involved at any time within the 5 years and continuity that is unbroken. Otherwise, if that continuous 5-year cohabitation is computed without any distinction as to whether the parties were capacitated to marry each other during the entire 5 years, then the law would be sanctioning immorality and encouraging parties to have common law relationships and placing them on the same footing with those who lived faithfully with their spouse. Reason for the requirement of marriage license: to notify the public that two persons are about to be united in matrimony and that anyone who
is aware or has knowledge of any impediment to the union of the two shall make it known to the local civil registrar. From the time Pepitos first marriage was dissolved to the time of his marriage with respondent, only about 20 months had elapsed. A voidable marriage cannot be assailed collaterally except in a direct proceeding while a void marriage can be attacked collaterally even after the death of either party.
Forja-Manzano v. Sanchez FACTS: Herminia Borja-Manzano avers that she was the lawful wife of the late David Manzano, having been married to him on May 21, 1966 in Caloocan City. On March 22, 1993, however, her husband contacted another marriage with one Luzviminda Payao before respondent Judge. When the judge solemnized said marriage, he knew or ought to know that the same was void and bigamous, as the marriage contracted clearly stated that both contracting parties were separated. The judge contend that he officiated the marriage without the knowledge that Manzano was legally married. What he knew was that the two had been living together as husband and wife for 7years already without the benefit of marriage, as manifested in their joint affidavit. ISSUE: Whether or not respondent judge is liable. HELD: YES. Article 34 of the FC provides that for legal ratification of marital cohabitation to apply, the following requisites must concur: 1. The man and woman must have been living together as husband and wife for at least five years before the marriage; 2. The parties must have no legal impediment to marry each other; 3. The fact of absence of legal impediment between the parties must be present at the time of marriage; 4. The parties must execute an affidavit stating that they have lived together for at least 5 years and are without legal impediment to marry each other; and 5. The solemnizing officer must execute a sworn statement that he had ascertained the qualifications of the parties and that he had found no legal impediment to their marriage. Not all of these requirements are present in the case at bar. It is significant to note that in their separate affidavits the fact of their prior
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existing marriage. Also, in their marriage contract, it was indicated that both were separated. Judge knew or ought to know that a subsisting previous marriage is a diriment impediment, which would make the subsequent marriage null and void. In fact, in his comment, he stated that he had known that the late Manzano was married he would have discouraged him from contracting another marriage. And Judge cannot deny knowledge of Manzanos and Payaos subsisting previous marriage, as the same was clearly stated in their separate affidavits which were subscribed and sworn to before him. The fact that Manzano and Payao had been living apart from their respective spouses for along time already is immaterial. Article 63 (1) of the FC allows spouses who have obtained a decree of legal separation to live separately from each other, but in such a case the marriage bonds are not severed. Elsewise stated, legal separation does not dissolve the marriage tie, much less authorize the parties to remarry. This holds true all the more when the separation is merely de facto, as in the case at bar. e. Ceremony
1. 2. 3. 4.
The contracting parties must appear personally before the solemnizing officer. Personal declaration that they accept each other as husband and wife. Presence of not less than two witnesses of legal age. Public Ceremony
The declaration shall be contained in the marriage certificate which shall be signed by the contracting parties and their witnesses and attested by the solemnizing officer. (this does not affect validity of the marriage) Requirements 1 and 2 are mandatory while requirements 3 and 4 are merely directory. Q. Which parts of the ceremony are vital? It is clear from this provision that the law does not require any particular form for the ceremony. All that the law requires is that both parties personally appear before the solemnizing officer and declare that they take each other as husband and wife. All the other elaborate rituals and formalities which we commonly associate with marriage are optional. The absence of the other requirements of this article will not affect the validity of the marriage, thus if: a. there were no witnesses; b. the declaration was not done orally; c. no marriage certificate or contract the validity of the marriage is not affected Q. Does the venue or manner of celebrating the ceremony affect the validity of the marriage? No. This does not go into the formal requisites. You can get married anywhere so long as the solemnizing officer has the proper authority and you personally declare your consent to him. Q. What about the requirement in Article 8 that requires that the marriage be solemnized publicly? This requirement is not mandatory. The fact is, the parties can request the solemnizing officer in writing, before the celebration, that the
Art. 6. No prescribed form or religious rite for the solemnization of the marriage is required. It shall be necessary, however, for the contracting parties to appear personally before the solemnizing officer and declare in the presence of not less than two witnesses of legal age that they take each other as husband and wife. This declaration shall be contained in the marriage certificate which 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 said party, which fact shall be attested by the solemnizing officer. Article. 8. 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 the consul-general, consul or vice-consul, as the case may be, and not elsewhere, except in cases of marriages contracted on the point of death or in remote places in accordance with Article 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. Q. What are the requirements for a marriage ceremony?
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marriage be held elsewhere, like a residence, or any other place the parties may agree on. And even if they do not make this request, if the solemnizing officer does in fact solemnize the marriage in a non-public place, he has impliedly consented to the ceremony. Thus, the ceremony being held in a public place is not mandatory. In fact, it can be held anywhere. The only exception: where the solemnizing officer is a judge, then the ceremony has to be held within the territorial jurisdiction of his court. This also applies when the solemnizing officer is the Mayor. Q. With regard to the requirement of at least 2 witnesses of legal age, does any defect render the marriage invalid? Is this requirement part of the mandatory requirements for purposes of the validity of the marriage? This involves the following scenarios: Both witnesses are absent; Only 1 witness is absent; or both are not of legal age. The opinions involve two schools of thought. The Dean espouses one side: that the presence of witnesses is not a mandatory requirement so there can be no void marriage. This is because any doubt must be resolved in favor of marriage. The other position stresses that it is a mandatory requirement which would affect the validity of the marriage. But no jurisprudence is yet present in either schools of thought even if this element is required in marriage ceremonies. 3. a. Non-essential Requirements Marriage Certificate
Art. 23. It shall be the duty of the person solemnizing the marriage to furnish either of the contracting parties the original of the marriage certificate referred to in Article 6 and to send the duplicate and triplicate copies of the certificate not later than fifteen days after the marriage, to the local civil registrar of the place where the marriage was solemnized. Proper receipts shall be issued by the local civil registrar to the solemnizing officer transmitting copies of the marriage certificate. The solemnizing officer shall retain in his file the quadruplicate copy of the marriage certificate, the copy of the marriage certificate, the original of the marriage license and, in proper cases, the affidavit of the contracting party regarding the solemnization of the marriage in place other than those mentioned in Article 8. Q. What about the marriage certificate? Is it part of the essential formal requisites of a valid marriage? Is it like the marriage license? No. Unlike the license, the marriage certificate is not a requisite for a valid marriage. It is issued after the parties have celebrated their marriage and is a contract signed after the celebration in order to evidence the marriages existence. Even without the certificate, the marriage will be valid as long as all the essential and formal requisites are present. Thus, failure of one or both parties to sign the certificate or the omission of the solemnizing officer to forward a copy of the certificate to the proper civil registry does not invalidate the marriage. The certificate is merely evidentiary. It is considered as the best evidence of the existence of marriage. Of course it is not the only proof of marriage for in the absence of a certificate, the existence of the marriage can still be proven by other evidence.1 COMMENTS: While generally, as against one who presents a marriage certificate and one who presents secondary evidence of marriage, the former will prevail, the Rivera case ruled otherwise because it was shown that there were two different Venacio Riveras. All things being equal, however, and there being no dispute as regards the identity of the person, the marriage certificate is still the best
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Art. 22. The marriage certificate, in which the parties shall declare that they take each other as husband and wife, shall also state: (1) The full name, sex and age of each contracting party; (2) Their citizenship, religion and habitual residence; (3) The date and precise time of the celebration of the marriage; (4) That the proper marriage license has been issued according to law, except in marriage provided for in Chapter 2 of this Title; (5) That either or both of the contracting parties have secured the parental consent in appropriate cases; (6) That either or both of the contracting parties have complied with the legal requirement regarding parental advice in appropriate cases; and (7) That the parties have entered into marriage settlement, if any, attaching a copy thereof.
The Rules of Court provide for a disputable presumption of marriage when a man and a woman live together and carry themselves as husband and wife.
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evidence of the existence of marriage. Being a document, the certificate is the best evidence of the facts stated therein and is considered as primary evidence. In the absence of the certificate, secondary evidence is admissible to prove the existence of marriage. One may even rely on the presumption of marriage provided for in the Rules of Court. Balogbog v. CA FACTS: Private respondents are heirs of the deceased Basilio and Genovena Balogbog. Leonica and Gaudioso Balogbog are the children of Basilio and Genovena who died instate. They had an older brother, Gavino, but he died in 1935 predeceasing their parents. In 1968, PR brought an action for partition and accounting against petitioners, claiming that they were legitimate children of Gavino by Catalina Ubas and that, as such they were entitled to the 1/3 share of Gavino in the estate of their grandparents. In the their answer, petitioners denied knowing PR. They alleged that their brother Gavino died single and without issue in their parents residence. In the beginning they claimed that the properties of the estate had been sold to them by their mother when she was still alive, but they later withdrew this allegation. To prove the existence of the marriage, PR presented witnesses who testified as to the celebration of the marriage. ISSUE: Whether or not marriage license is the sole evidence that may be presented to prove the existence of marriage. HELD: NO. Although a marriage contract is considered primary evidence of marriage, the failure to present it is not proof that no marriage took place other evidence may be presented to prove marriage. An exchange of vows can be presumed to have been made from the testimonies of the witnesses who state that a wedding took place, since the very purpose for having a wedding is to exchange vows of marital commitment it would indeed be unusual to have a wedding without an exchange of vows and quite unnatural for people not to notice its absence. Villanueva v. CA FACTS:
Catalina Sanchez claiming to be the widow of Roberto Sanchez, averred that her husband was the owner of a 275 sq. meter parcel of land located in Cavite which was registered without her knowledge in the name of the petitioners on the strength of an alleged deed of sale executed in their favor by her late husband. The petitioners questioned the personality of Catalina to file the complaint, contending that the late Roberto Sanchez was never married but had a common-law wife by whom he had two children.
ISSUE: Whether or not a marriage contract is sufficient to prove the existence of the marriage. HELD: YES. Catalina Sanchez has proved her status as the widow of Roberto with her submission of the marriage contract. It is strange that the trial court should reject said evidence in favor of the TCT describing Roberto as single disregarding the elementary principle that the best documentary evidence of a marriage is the marriage contract itself. A Torrens certificate is the best evidence of ownership of registered land, not of the civil status of the owner. Delgado v. Rustia FACTS: Sometime in 1917, Guillermo Rustia proposed marriage to Josefa Delgado but whether a marriage in fact took place is disputed. According to petitioners, the two eventually lived together as husband and wife but were never married. To prove their assertion, petitioners point out that no record of the contested marriage existed existed in the civil registry. On the other hand, oppositors insist that the absence of a marriage certificate did not of necessity mean that no marriage transpired. They maintain that Guillermo Rustia and Josefa Delgado were married on June 3, 1919 and from then on lived together as husband and wife. To support their proposition, oppositors presented the Philippine Passport of Josefa Rustia; titles to real properties in the name of Guillermo indicating that he was married to Josefa; certificate of identity issued to Mrs. Guillerma Rustia by Carlos P. Romulo. ISSUE: Whether or not a marriage contract is the only proof for the existence of marriage. HELD:
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YES. Although a marriage contract is considered a primary evidence of marriage, its absence is not always proof that no marriage in fact took place. Once the presumption of marriage arises, other evidence may be presented in support thereof. The evidence need not necessarily or directly establish the marriage but must at least be enough to strengthen the presumption of marriage. Here, the certificate of identity issued to Josefa as Mrs. Gullermo Rustia, the passport, and the titles to the properties, more than adequately support the presumption of marriage. These are public documents which are prima facie evidence of the facts stated therein. 4. a. Marriages celebrated outside the Philippines Validity and Exceptions
No. The marriage is void for the Philippine Embassy would be considered as an extension of Philippine territory, and as such, must comply with the requisites provided in the Family Code. (anyways, the thing is consul general issues marriage license, right?) Q. What are the exceptions? (to lex loci celebrationis) 1) Those contracted by any party below 18 years of age This does not mean that if the parties are between 18 and 21 and they get married abroad that parental consent is dispensed with. With respect to two Filipinos getting married abroad, under the Civil Code, the requirements relating to parental consent should be complied with at all times. Otherwise, the marriage will be voidable. 2) Those bigamous ad polygamous marriages not falling under Article 41 With respect to divorces obtained abroad by Filipinos, these are not recognized under Philippine law. The only exception to this rule is under the second paragraph of Article 26. Those contracted through mistake of one contracting party as to the identity of the other. This is really a case where there is no consent to the marriage. Those subsequent marriages that are void under article 53 Cases falling under Article 36 (psychological incapacity) Incestuous marriages under Article 37 Marriages that are void as being against public policy under Article 38
Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6), 3637 and 38. Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. (As amended by Executive Order 227) Q. What is the rule on marriages celebrated outside the Philippines? Under the article, if the marriage is in accordance with the laws of the country where celebrated, and valid there as such, the marriage shall be valid in the Philippines. The article therefore applies as the general rule the principle of lex loci celebrationis, but only as to the requirement of marriage license, authority and ceremony. The essential requisites are still governed by Philippine laws. Note, however, that the first paragraph of Art.26 refers only to marriages between Filipinos or between a Filipino and an alien (with respect to the Filipino spouse). The validity of marriages between aliens will have to be determined in accordance with their own national law, following the nationality principle. Q. A&B, both Filipinos, decided to get married before the consul general in the Philippine embassy in Washington without obtaining the needed marriage license. Is the marriage valid?
3)
4) 5) 6) 7)
COMMENTS: It is apparent that if any of the impediments to a valid marriage under the Family Code exist, even marriages solemnized abroad are void. Note that the list of exceptions even includes void marriages under Article 53 of the Family Code2.
Due to failure to liquidate property regime, distribute presumptive legitime, etc.

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Another important point is that regardless of where the marriage is solemnized, the requirements of capacity and consent must be complied with. Thus, the essential requisites must always be complied with. (deemed to include sex). Q. What about the formal requisites? With respect to the formal requisites, the rule of lex loci celebrationis is followed. Thus, the authority of the solemnizing officer, the need for a marriage license, and even the type of ceremony required, are all determined by the laws of the place where the marriage is celebrated. Q. The State of Nevada allows marriages to be celebrated over the telephone via conference calls, proxy marriages and marriages by fax transmission. Will marriages between Filipinos celebrated in Nevada by any of these means recognized in the Philippines? Yes (claims the Dean). Insofar as proxy marriages and marriages by telephone, etc. are concerned, if they are valid where the marriage is celebrated, then they should be valid in the Philippines. Firstly, formal requisites are not dealt with in Article 26, by way of exception, in the same manner as the essential requisites. Secondly, while for marriages here, consent is connected with the ceremony, for marriages abroad, the ceremony is in accordance with lex loci celebrationis. The only strict consent exception under Article 26 is in cases of mistaken identity. Q. What about same sex marriages celebrated abroad? Would they be recognized in the Philippines? DEANS POSITION: If we go strictly by Article 26, it would seem that they would be recognized in the Philippines. Article 26 does not include the requirement that the parties have to be a man and a woman as one of the exceptions to the general rule that marriages celebrated abroad, if valid there, are valid here. Art.26 is a special provision which delas specifically with the case of marriages celebrated abroad and expressly enumerates what the exceptions are to the lex loci celebrationis rule. Thus, inclusio unius est exclusio alterius. The requirements as regards the need for the parties to be of the opposite sex are general provisions in relation to marriages in general in the Philippines. The application of Art.26 as it is currently worded would lead to the conclusion that same sex marriages would be recognized in the Philippines.
The Class Position: We should not construe Art. 26 in isolation. Art. 1 clearly provide that marriage is a sacred union b/w man and woman. This is a clear expression of the public policy underpinning the FC. While same-sex marriages are not included in Art. 38, this is not to say that same-sex marriages are not contrary to public policy (ed: yes, the public policy of civilizations stuck in the stone age). In fact the whole FC was premised on the fact that marriage is only b/w man and woman. Neither can two gay men/women, find recourse under Art. 26. That refers merely to the formal requisites of marriage, and as such, the essential requisite (of penis and vagina) should not be considered as dispensed with by the simple fact of having your marriage solemnized abroad. To allow such a view would violate our public policy. (Of course, you could just go to Spain or San Francisco and get married there and not come back. Then get citizenship. If youre gay, and you want to get married, do you really think that the Philippines is the best place for you? Leave now, my homosexual friend, and find peace in another place.) In any event, should this situation face our courts, the James Dean Del believes that the same-sex marriage wouldnt be recognized here. Also, according to her, a marriage b/w a man and a former man (sex change) would probably have a better chance. (Because now it would be between a penis and a hole. But then again, the rectum works just as well. Hmmm. Tasty.) Q: Does the first paragraph of Art. 26 apply to foreigners? No. Only to Pinoys. Foreigners are governed by the laws of their own country. Note: Art. 26 doesnt apply: To a divorce obtained by a Pinoy abroad, from his Pinoy spouse even if the divorce is valid. The reason is that divorce is not allowed in this country and a Filipino is governed by his national law wherever he goes (Art. 15, CC); or, To a divorce obtained by a former Pinoy, who obtained such after his naturalization. This might open the door to rich Pinoys obtaining naturalization abroad for no other reason than to get the fuck out of their loveless marriages. Hells yeah! b. Foreign Divorce
Q: Will divorces obtained in another country be recognized in the Philippines?
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It depends. If 2 Americans got a divorce in the States, of course itll be recognized, silly. If 2 Pinoys got a divorce in the State, then it wont be recognized. Van Dorn v. Romillo FACTS: Alice Van Dorn is a Filipino citizen while Richard Upton is a US citizen. They were married in Hongkong. Subsequently, the parties were divorced in Nevada. Richard filed a suit against Alice in RTC Pasay, stating that Alices business in Ermita is conjugal property of the parties and asking that Alice be ordered to render an accounting of that business, and that Richard be declared with right to manage the conjugal property. Alice moved to dismiss the case on the ground that the cause of action is barred by previous judgment in the divorce proceedings in Nevada, wherein Richard acknowledged that he and Alice had no community property. The lower court denied the petition. ISSUE: What is the effect of the foreign divorce on the parties and their alleged conjugal property in the Philippines? HELD: It is true that owning to the nationality principle embodied in Art. 15 of the CC, only Philippines nationals are covered by the policy against absolute divorces, the same being considered contrary to our concept of public policy and morality. However, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law. Pursuant to Richards national law, he is no longer Alices husband. He would have no standing to sue in the case below as Alices husband entitled to exercise control over conjugal assets. As he is bound by the decision of his own countrys court, which validly exercised jurisdiction over him, he is estopped by his own representation. Pilapil v. Ibay-Somera FACTS: Imelda Pilapil, a Filipino citizen, and private respondent Geiling, a German national, were married in the Federal Republic of Germany. After about 3 years, marital discord set in which resulted to a separation de facto between them and a divorce initiated against petitioner by the husband in Germany before the Seconberg Local Court in January 1983. He claimed that there was a failure of their action for
legal separation which is still pending before the RTC of Manila on January 23, 1983. The Scheonberg Local Court of Germany issued the decree of divorce on the ground of failure of marriage of the spouses. On June 27, 1986, after the issuance of the divorce decree, petitioners husband filed two complaints for adultery before the City Fiscal of Manila alleging that while still married to said respondent, petitioner had affairs with two men. Petitioner then filed a special civil action for certiorari and prohibition on the ground that the court has no jurisdiction to try the case of adultery since the purported complainant, a foreigner, does not qualify as an offended spouse having obtained a final decree of divorce under his national law prior to his filing of the complaint.
ISSUE: Whether the foreigner husband has the legal capacity to sue. HELD: The foreigner husband has no legal capacity to sue. Under Art. 344 of the RPC, the crime of adultery as well as other crimes against chastity cannot be prosecuted except upon a sworn written complaint filed by the offended spouse. It is therefore indispensable that the status and capacity of the complainant to commence the action be established and it must exist at he time he initiates the action. In the present case, the fact that the husband obtained a valid decree in his country before the action is admitted. Under Art. 15 of the CC, only Philippine nationals are covered by the policy against absolute divorces since it is contrary to our concept of public policy and morality. However, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided that they are valid according to their national law. Since pursuant to his national law, private respondent is no longer the husband of petitioner before instituting this action, he would have no standing to file the complaint for adultery. Q: What are the requisites for the 2nd paragraph of Art. 26? Marriage is b/w a Filipino and a foreigner - determine citizenship at the time of celebration - for subsequent changes in citizenship: 2 Pinoys get married and one later becomes a citizen of another country, Art. 26 wont apply since thisd be a circumcision, este circumvention of our
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laws. BUT, the new alien (ex-Pinoy) can remarry, since the nationality principle applies (Llorente). HOWEVER, Dean says that the Pinoy should be able to get married (since this would allow equalization of the status of the parties, which is exactly why Art. 26 exists in the first place) 2 aliens get married, and one later becomes Pinoy (like Norman Black, or Dayanara). Art. 26 not applicable. Hes fucked. Cant get a divorce now, bitch. 2 Pinoys get married, both become citizens of another country. Art. 26 doesnt apply. Instead, use the nationality principle. Dual citizenship. If the parties are citizens of both the Philippines and some other country, the prohibitions and exceptions of Art. 26 would still apply. BUT, thats only if the issue arises here. If it arises in a 3rd country (i.e., not one of the ones of which the party is a citizen), then who knows? Dual citizenship considerations really only apply in 3rd party countries anyway. (For a fuller discussion of this principle, please refer to your Conflicts notes.) Divorce obtained at the behest of the alien, NOT the Pinoy. Divorce decree must capacitate the alien to remarry Q: Does Art. 26 terminate the marriage? No. It only recognizes the absurd situation of a Filipino still being married to the alien, while the latter can fuck around without consequences. The very purpose of Art. 26 is to equalize the situation. Q: Does Art. 26 have a retroactive effect? It depends. If before the effectivity of the FC, a divorce was obtained, the Filipino spouse can remarry provided the requirements in Art. 26 are found. (Dunno what this is based on. Probably Van Dorn though.) Q: Does Art. 26 apply wherever the marriage is celebrated? YES, baby. Llorente v. CA FACTS: Lorenzo and Paula were married in Camarines Sur. Before the outbreak of the Pacific War, Lorenzo departed for the US while Paula stayed in their conjugal home in Camarines Sur. Lorenzo was then admitted to US citizenship. Upon the liberation of the Philippines, Lorenzo was granted an accrued leave by the U.S. Navy to visit his wife in the Philippines. When he went back, he discovered
that Paula was pregnant and was living in and having an adulterous relationship with his brother. Lorenzo returned to the US and filed for divorce with the Superior Court of the State of California. Lorenzo returned to the Philippines and married Alicia who had no knowledge o fthe first marriage even if they resided in the same town as Paula. Before Lorenzo died, he executed a will which was pending before the probate court. After his death, Paula filed with the same court a petition for letters of administration over his estate in her favor. RTC found that the divorce decree granted to Lorenzo is void and inapplicable in the Philippines, therefore the marriage he contracted with Alicia is likewise void. CA: affirmed.
ISSUE: Whether or not the divorce is valid. HELD: YES. In Van Dorn v. Romillo, Jr., the court held that owning to the nationality principle embodied in Article 15 of the CC, only Philippine nationals are covered by the policy against absolute divorces, the same being considered contrary to the concept of public policy and morality. In the same case, the court ruled that aliens may obtain divorces abroad, provided they are valid according to their national law. Furthermore, in the case of Quita v. CA, that once proven that respondent was no longer a Filipino citizen when he obtained the divorce from petitioner, the ruling in Van Dorn would become applicable and petitioner could very well lose her right to inherit from him. The CA failed to apply these doctrines in the case of Lorenze. Thus, the ruling must be reversed. Garcia v. Recio FACTS: Recio, a Filipino, was married to Editha an Australian citizen. They lived together as husband and wife in Australia. On May 18, 1989, a decree of divorce, purportedly dissolving the marriage was issued by an Australian family court. On June 26, 1992, Recio became an Australian citizen and he married Garcia. However, they separated without prior judicial dissolution of their marriage.
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Garcia filed a complaint for declaration of nullity of marriage on the ground of bigamy Recio allegedly had a prior subsisting marriage at the time he married her.
ISSUE: Whether or not the divorce between Editha and Recio is valid. Whether or not Recio was proven to be legally capacitate to marry. HELD: Philippine law does not provide for absolute divorce, hence, the courts cannot grant it, and a marriage between 2 Filipinos cannot be dissolved even by a divorce obtained abroad. In mixed marriages involving a Filipino and a foreigner, Article 26 of the FC allows the former to contract a subsequent marriage in case the divorce is validly obtained abroad by the alien spouse capacitating him or her to remarry. A divorce obtained abroad by a couple, who are both aliens, may be recognized in the Philippines, provided it is consistent with their respective national laws. Before a foreign judgment is given presumptive evidentiary value, the document must be first presented and admitted in evidence. A divorce obtained abroad is proven by the divorce decree itself. Indeed the best evidence of a judgment is the judgment itself. The decree purports to be a written act or record of an act of an official body or tribunal of a foreign country. The legal capacity to contract marriage is determined by the national law of the party concerned. The certificate mentioned in Article 21 of the FC would have been sufficient to establish the legal capacity of Recio, had he duly presented it in court. A duly authenticated and admitted certificate is prima facie evidence of legal capacity to marry on the part of the alien applicant for a marriage license. As it is, however, there is absolutely no evidence that proves Recios legal capacity to marry Garcia. A divorce decree does not ipso facto clothed a divorcee with the legal capacity to remarry he must adduce sufficient evidence to show the foreign States personal law governing his status, or at the very leas, he should still prove his legal capacity to contract the second marriage. Perez v. CA & Catindig FACTS: Tristan Catindig married Lily Gomez twice (Central Methodist Church and then at Lourdes Catholic Church). Several years later, the couple encountered marital problems that they decided to separate from each
other. Upon advice of a mutual friend, they decided to obtain a divorce from the Dominican Republic. ON June 12, 1984, the civil court in the Dominican Republic ratified the divorce by mutual consent of Tristan and lily. Subsequently, on June 23, 1984, RTC Makati City, ordered the complete separation of properties between Tristan and Lily. On July 14, 1984, Tristan married Elmar O. Perez in the State of Virginia in the US and both lived as husband and wife. During their cohabitation, Perez discovered that the divorce decree issued by the court in the Dominican Republic which dissolved the marriage between Tristan and Lily was not recognized in the Philippines and that her marriage to Tristan was deemed void under Philippine Law. On August 13, 2001, Tristan filed a petition for the declaration of nullity of his marriage to Lily with RTC Q.C. Subsequently, Perez filed a Motion for Leave to File Intervention claiming she has a legal interest in the matter in litigation because she knows certain information which might aid the court in the disposition of the case.
ISSUE: Whether or not Perez may intervene in the proceedings. HELD: NO. Under the law, Perez was never the legal wife of Tristan, hence her claim of legal interest has no basis. When Perez and Tristan married, Tristan was still lawfully married to Lily. The divorce decree that Tristan and Lily obtained from the Dominican Republic never dissolved the marriage bond between them. It is basic that the laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad. Regardless of where the citizen of the Philippines might be, he or she will be governed by the Philippine laws with respect to his or her family rights and duties, or to his or her status, condition and legal capacity. Hence, if a Filipino regardless of whether he or she was married here or abroad, initiates a petition abroad to obtain an absolute divorce from the spouse and eventually becomes successful in getting an absolute divorce decree, the Philippines will not recognize such absolute divorce. 5. a. Void and Voidable Marriages Difference between void and voidable VOID VOIDABLE
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NATURE RATIFICATION
Inexistent from time of performance Nope
Valid until annulled Yes. Either by free cohabitation or by prescription ACP unless another system is agreed upon the marriage settlement Legitimate. If conceived before decree.
EFFECT ON PROPERTY EFFECT ON KIDS
No community property. Only co-ownership (Art. 147) Illegitimate. Except: Art. 54 Art. 53 Directly or collaterally. BUT, if for the purposes of a subsequent remarriage, need the JDN. (Nial) Can still be impugned even after the death of the parties.
Karl Heinz Weigel asked for the declaration of nullity of his marriage with Lilia Oliva Weigel on the ground that Lilias previous existing marriage to Eduardo Maxion. Lilia while admitting the existence of said prior subsisting marriage claimed that said marriage was null and void, she and Eduardo having been alleged forced to enter said marital union. Lilia asked the court for an opportunity to present evidence that the first marriage was vitiated by force and that Eduardo was already married to someone else at the time of their marriage.
HOW IT MAY BE IMPUGNED
Only direct i.e., need the JDN Cant be impugned after the death of the parties.
i)
Necessity of court declaration
ISSUE: Whether or not there is a need for Lilia to prove that her first marriage was vitiated by force. HELD: NO. There is no need for Lilia to prove that her first marriage was vitiated by force committed against both parties because assuming this to be so, the marriage will not be void but merely voidable, and therefore valid until annulled. Since no annulment has yet been made, it is clear that when she married Weigel she was still validly married to her first husband, consequently, her marriage to Weigel is void. Likewise there is no need of introducing evidence about the existing prior marriage of her first husband at the time they married each other, for then such a marriage though void still needs a judicial declaration of such fact and for all legal intents and purposes she would still be regarded as a married woman at the time she contracted her marriage with Weigel. Terre v. Terre FACTS: Jordan Terre is a member of the Philippine Bar. Complainant Dorothy Terre is a high school classmate of the respondent. She married a certain Merlito Bercenilla while Jordan remained single. Jordan was aware of Dorothys marital status. He then started courting her but nothing happened. Later, Jordan moved to Manila to study law at the Lyceum while Dorothy went to Manila also to study college. Jordan continued courting her with more persistence. Convinced and having favorable response from her mother and ex-in-laws, Dorothy agreed to marry Jordan. She wrote single in her marriage license as her status. They got married and out of this union, Jason Terre was born. All through their marriage, Dorothy supported Jordan through his studies in addition to his allowance from his parents. Support from
Art. 40. 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. (n) - final judgment even if decision has been rendered but its still not final, your second marriage, mr. cant-keep-it-in-his-pants, is void. - last clause (bases solely of a final judgment) means that if want to remarry, you definitely need this, and NO COLLATERAL ATTACKS allowed. - no amount of nullity of the 1st marriage will validate the 2nd marriage if theres a violation of Art. 40 Weigel v. Sempio-Dy FACTS:
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Dorothy continued until the time Jordan disappeared in 1981. She was not aware of the reason of his disappearance until she discovered that he was married to a certain Vilma Malicdem. She filed a case for abandonment of a minor and one for bigamy. Later, she charged Jordan with grossly immoral conduct consisting of contraction a second marriage and living with another woman other than her while the prior marriage is subsisting. Jordan successfully evaded 5 attempts to serve a copy of the complaint. Thereafter, he appeared and presented his defense that he was the one hurt because of Dorothys prior marriage to Merlito. Furthermore, he alleged that Jason was not his but Merlitos as declared in Jasons birth certificate.
either or both parties believing in good faith that the solemnizing officer had the legal authority to do so; (3) Those solemnized without license, except those covered the preceding Chapter; (4) Those bigamous or polygamous marriages not failing under Article 41; (5) Those contracted through mistake of one contracting party as to the identity of the other; and (6) Those subsequent marriages that are void under Article 53. - grounds 1-3 and 5 represent a lack of one of the essential requisites. Q: Is the enumeration exclusive? No. Those which lack the essential or formal requisites (not covered in Art. 35) are void even if not included herein. Also, common-law marriages, marriage by proxy and marriage in jest are void, even if not included. Art. 53 also gives another instance. Finally, there are the next few succeeding articles. Q: What are the different types of void marriages?
HELD: A marriage contracted in good faith with woman already married is valid. Hence, contracting a subsequent marriage with another woman would be bigamous. Even if the court is to assume that Jordan Terre held a mistaken belief in good faith, the same result will follow. For if the court to hold Jordan to his own argument, his first marriage to Dorothy must be deemed valid, with the result that his second marriage to Helina Malicdem must be regarded as bigamous and criminal in character. ii) Effect on filiation of children
Art. 54. Children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and executory shall be considered legitimate. Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate.
6. a.
Void Marriages Grounds
Those void due to the absence of essential/formal requisites (Art. 4 and Art. 35(1)(2)(3)(5)) Void bigamous marriages. (Art. 35(4), in relation to Art. 41) Marriage done subsequent to a declaration of nullity/annulment of the 1st marriage, but w/o complying with the requirements of Art. 52 (Art. 53) Psychological incapacity (Art. 36) Incestuous marriages (Art. 37) Marriages against public policy (Art. 38) i) Below 18 lack of essential/formal requirements (see previous discussion)
Art. 35. The following marriages shall be void from the beginning: (1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians; (2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with
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Q: Does parental consent correct this? No. Marriage is void even if parental consent was given. This is because the essential requisites of legal capacity is lacking. Q: Must both be under 18 for the marriage to be void? No. Its void whether only one or both are under 18. Solemnizing officer had no authority Q: What is the exception to this ground? When either or both contracting parties believed in good faith that the solemnizing officer had legal authority. The belief of only one of them suffices. Good faith, under this exception, means the innocent party exerted reasonable inquiry and investigation. Note that good faith only refers to the authority of the SO. You cant claim good faith for the lack of other requirements. Of course, if you believed in good faith that marriage would be a blessed union full of sunny days and wild nights of animalistic, unbridled and unending passion in bed with your spouse, then thats another question altogether. Youre probably insane. This might make it voidable. Who knows? Good thesis topic. Q: Nad and Rosy Palms got married. Their marriage was solemnized by a barangay captain (Bgy. Captain Barbell) Can Nad claim that his marriage is void because he believed in good faith that Bgy. Capt. Barbell had legal authority to solemnize? No. Good faith is not applicable in a case like this where there is a mistake in the INTERPRETATION OF THE LAW regardless of how macho Capt. Barbell is. Q. Nad and Rosy Palms got married before Bgy. Capt. Barbell whom they thought to be Mayor Barbell. Is the marriage valid if they invoke the good faith provision? Yes. A mayor has capacity to solemnize marriage. In this case, the parties believed in good faith that Capt. Barbell had legal authority. The mistake committed is a MISTAKE OF FACT not a mistake of law. No Marriage License
Q: What are the exceptions to this requirement? Marriages in articulo mortis. Marriages in a remote place Marriages b/w Muslims, or b/w non-Christians Marriages b/w parties who have been cohabiting together for at least 5 years. Republic v. CA FACTS: Angelina Castro filed case for judicial declaration of nullity of her marriage to Edwin F. Cardenas on the ground that no marriage license was ever issued to them prior to the solemnization of their marriage. As proof, Castro offered in evidence a certification from the Civil Register of Pasig stating that the marriage license allegedly issued in the municipality does not appear in their records. ISSUE: Whether or not the documentary and testimonial evidence presented are sufficient to establish that no marriage license was issued. HELD: YES. As custodians of public documents, civil registrars are public officers charged with the duty of maintaining a register book where they are required to enter all applications for marriage licenses, including the names of the applicants, the date the marriage license was issued and such other relevant data. The certification of due search and inability to find issued by the civil registrar of Pasig enjoys probative value, he being the officer charged under the law to keep a record of all data relative to the issuance of a marriage license. Unaccompanied by any circumstance of suspicion and pursuant to Section 29 Rule 132, a certificate of due search and inability to find sufficiently proved that his office did not issue marriage license to the contracting parties. Absence of marriage license renders the marriage void ab initio. Thus, the marriage contracted was void from the beginning. ii) Bigamous/polygamous marriages
Q: What is the effect of good faith of one of the parties? None, bitch. Its immaterial. - the only exception to this case is a valid application of Art. 41 (i.e., absence of one of the spouses)
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aa) effect of absence bb) declaration of presumptive death - absence does not mean that one spouse is merely gone from the place absence here generally has more connotations of death than anything else - so, absence implies uncertainty as to whether the person is dead or alive a mere lack of awareness as to his whereabouts is obviously not enough Q: In case of absence and remarriage under Art. 41, what periods do we follow? The menstrual period. Joke! Duh! In case of ordinary absence 4 years. In case of extraordinary absence 2 years. Once these periods are done, go to court and get that declaration, baby. But, you use these periods only for the purposes of remarriage. Use the ones in the Civil Code for all other purposes. - however, once death is proven (by the actual body, DNA evidence, etc.), theres no need to wait for the period to finish Q: What are the stages of absence? Appointment of a legal representative for administration of the property. Court declaration of absence for the separation of property. Court declaration of presumptive death. Q: If there is a court declaration of presumptive death, can the absentee remarry? Nope. Only the present spouse can remarry. If the absentee spouse remarries, then its bigamous. Q: So, what are the requisites for a valid subsequent marriage? Absence of the other spouse Period of absence Judicial declaration of presumptive death Good faith of the marrying spouse Someone who will marry the present spouse (not really a requisite, but this is kind of a no brainer, dont you think?) Republic v. Nolasco FACTS:
Gregorio Nolasco filed a petition for the declaration of presumptive death of his English wife Janet Monica Parker. Nolasco claimed that Janet left their conjugal home after she gave birth to their child. He was at such time detailed as a seaman overseas. He further alleged that upon discovery of the absence of Janet, he immediately returned to Antique where he left her. He said that his efforts to look for her everytime his ship docked in England proved fruitless. He also said that all the letters he had sent to his missing spouse at No. 38 Ravena Road, Allerton, Liverpool, England, the address of the bar where he and Janet first met, were all returned to him. He further claimed that he inquired among friends but they to had no news of Janet Monica. TC granted Nolascos petition. CA affirmed the decision holding that NOlasco sufficiently established a basis to form a belief that his absent spouse had already died. The RP appealed to the CA contending that the TC erred in declaring Janet presumptively dead because Nolasco had failed to show that there existed a well founded belief for such declaration.
ISSUE: Whether or not Nolasco has a well-founded belief that his wife is already dead. HELD: NO. There are 4 requisites for the declaration of the presumptive death under Art. 41 of the FC: 1. That the absent spouse has been missing for 4 consecutive years, or 2 consecutive years if the disappearance occurred were there is danger of death under the circumstances laid down in Art. 391 of the CC; 2. That the present spouse wishes to remarry; 3. That the present spouse has a well-founded belief that the absentee is dead; and 4. That the present spouse files a summary proceeding for the declaration of presumptive death of the absentee. The SC believes that Nolasco failed to conduct a search for his missing wife with such diligence as to give rise to a well-founded belief that she is dead. The investigation allegedly conducted by Nolasco in his attempt to ascertain Janets whereabouts is too sketchy to form a basis of a reasonable or well founded belief that she was already dead. When he arrived in San Jose, Antique, after learning of Janets departure, instead of seeking the help of local authorities or of the British Embassy, he secured another seamans contract and went to London instead of Liverpool where Janet used to reside.
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The court also views Nolascos claims that Janet declined to give any information as to her personal background even after she had married Nolasco. This is too convenient an excuse to justify his failure to locate her. The same can be said of the alleged letters Nolasco had sent to his wife which Nolasco claims were all returned to him. Nolasco said he had lost these returned letters, under unspecified circumstances. Neither did the SC give much credence to his bare assertion hat he had inquired from other friends of her whereabouts, considering that he was unable to identify them in his testimony. The spouses should not be allowed, by the simple expediency of agreeing that one of them leave the conjugal dwelling and never to return again, to circumvent the policy of the laws on marriage.
Q: Same unfortunate facts as above. Can Jang say that hes legally married to Trina, his real lover and whom he intended to marry? No. Consent of the contracting parties must be given before a solemnizing officer. Here, Trina failed to give her consent to marry before a solemnizing officer. Incestuous Marriages
Q: What happens to the 2nd marriage in case of reappearance of the absent spouse? The 2nd marriage is AUTOMATICALLY TERMINATED when the AFFIDAVIT OF REAPPEARANCE is filed with the civil registrar, either by the absentee spouse or by other interested persons. Mistake as to Identity Q: To what does this mistake refer? Must be with regard to the PHYSICAL IDENTITY, and not with regard merely to the character, health, rank, fortune or chastity of one party. Neither will mistake as to the size of your husbands butongtong matter. Q: What is the reason for this rule? The total lack of CONSENT to marry that particular person. Again, the size of your husbands butongtong wouldnt matter, since youre not marrying his butongtong, now are you? (Unless, of course, you are. But thats an entirely different matter.) Q: Jang and Trina decided to get married. At the wedding ceremony, it was Ilards, the twin of Trina, who showed up and got married to Jang without Jangs knowledge. Is the marriage between Jang and Ilards valid? No. The marriage was contracted through mistake of Jang as to Ilards identity. (lasing siguro)
Art. 37. Marriages between the following are incestuous and void from the beginning, whether 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. (81a) Q: Why are they considered void? Gee, I dunno. Incestuous marriages are universally or almost universally considered immoral and void as they contravene human nature, degrade the family, and offend decency and moral. (Not to mention produce retarded kids.) Art. 38. 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 fourth civil degree; (2) Between step-parents and step-children; (3) Between parents-in-law and children-in-law; (4) Between the adopting parent and the adopted child; (5) Between the surviving spouse of the adopting parent and the adopted child;
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(6) Between the surviving spouse of the adopted child and the adopter; (7) Between an adopted child and a legitimate child of the adopter; (8) Between adopted children of the same adopter; and (9) Between parties where one, with the intention to marry the other, killed that other person's spouse, or his or her own spouse. (82) Q: Why are these marriages considered against public policy? - B/w collateral blood relatives known deleterious effects of the marriage - B/w in-laws offensive to sensibilities - B/w parties to adoption, etc. adoption creates the relationship of parentchild, so its the same reasons for prohibiting a parent or parent in-law from marrying the child - B/w legit kid of adopter and adopted and b/w adopted children of the same adopter because theyre brother and sister - B/w parties where one killed the spouse of the other or his/her own spouse contrary to human experience and it promotes crime Failure to Distribute Presumptive Legitimes Art. 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 children's presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect third persons. Art. 53. Either of the former spouses may marry again after compliance with the requirements of the immediately preceding Article; otherwise, the subsequent marriage shall be null and void. - legitimes computed as of the time of dissolution - these articles are not applicable to a marriage dissolved by death, legal separation or art. 41 in death failure to comply with dissolution and liquidation procedures only affects the property regime; in leg sep, the
marriage still exists, so obviously, no application; for art. 41, not sure (basta, Dean Del said so) Q: What are the requirements under the foregoing articles? court declaration of annulment/nullity (only where 52/53 apply) distribution and liquidation delivery of the presumptive legitimes SC Circular (2004): No entry of judgment, unless: its entered in the civ registry where the marriage was celebrated and where the judgment of annulment/nullity was decreed entered in the property registry where the real property is located delivery of presumptive legitimes is proven - Is the foregoing still applicable considering that finality occurs ipso facto after the lapse of the requisite period to appeal? Will the validity of the 2nd marriage be affected? In other words, how much worth is the entry of the decree when you already have the judgment? Hells yeah! 52/53 have to be followed anyway. So if you dont comply with them, youre fucked, entry of judgment or no entry of judgment. cc) Termination of subsequent marriage iii) Psychological incapacity of parties Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. Q: What is the reason for including psychological incapacity? The reason is that the will of the party is affected. The PI must exist at the start of the marriage. It means that the party cant comply with the essential obligations of the marriage i.e., hes incapacitated to do so. Q: What are the essential martial obligations referred to? 1. help and support 2. living together 3. love, respect and fidelity
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These marital obligations include those to ones spouse and to the children. In other words, PI is available if the spouse is psychologically incapacitated to be a spouse or to be a father/mother. Q: Is it possible for the grounds of PI to overlap and be also applicable to annulment and nullity? What about legal separation? Jang Moreno has 3 testicles theyre named Left, Right, and Micoy. Yes. In such a case, file for either annulment or nullity. If the action for annulment has prescribed, file for nullity. The grounds claimed could also equal legal separation, instead of PI. (Siangco, Quintero, Dedel, etc.) Q: Differentiate PI from vice of consent. PI has nothing to do with consent. A person might give free and voluntary consent to a marriage, but his will may not be capable of fulfilling such rights and obligations. Hence, PI is not a question of defective consent, but a question of fulfillment of valid consent. Q: Distinguish PI from incapacity. Mental incapacity or insanity of some kind, like physical incapacity, is a vice of consent; while PI is not a specie of vice of consent. As already stated, a person might have given valid consent, but because of some psychological disorder, he is unable to assume the essential obligations of marriage. So, even if you have some kind of illness, or youre slightly insane (who isnt?), or you have some physical incapacity, but you can still comply with your marital obligations, ok ka pa, pare ko. Furthermore, insanity or mental incapacity: may be of varying degree; may be curable (hence the marriage can be ratified) may be sporadic (lucid intervals) is a ground for annulment only in many countries Q: When must PI be present? At the time of the marriage, though it might manifest only after. Q: Is the spouse with PI disqualified from marrying again? Nope. The PI will be revealed when the license for the 2nd marriage is applied for anyway. This puts the other spouse on guard. Besides, the PI can be relative i.e,, only PI as to the current spouse. (Molina)
Q: What are some indications of PI? Homosexuality or lesbianism Excessive and promiscuous sexual hunger (yum!) Extremely low intelligence Immaturity i.e., lack of an effective sense of rational judgment and responsibility otherwise particular to infants Epilepsy with permanently recurring mal-adaptive manifestations (like Julius Caesar et tu, Brute?) Habitual alcoholism Criminality Refusal of wife to live with her husband for no reason, OR REFUSAL TO HAVE SEX WITH HIM, or to have kids Sociopathic anomalies like sadism or infliction of physical violence, continued laziness, indolence, drug dependence or some kind of psychosexual anomaly The indications must exhibit: a) gravity; b) antecedence; c) incurability (Santos) Q: Who can file? Either. Even the one with PI. (Chi Ming Tsoi) Q: Does the action prescribe? No. Its just like any other action for nu,llity. Q: Whats the status of the kids? If conceived or born before the decree, theyre legit (art. 54) Jurisprudential Development - Santos: 3 characteristics (gravity, antecedence, incurability) - Molina: 8 criteria for determining PI - Antonio: lying is a ground (but see the facts of the case) this case, though stating that the Molina guidelines arent set in stone, still followed Molina in other words, according to the best civ review professor, ever, Molina is still controlling - also the Dean said that Antonio was probably decided the way it was because of the weight given by the Church to the previously approved papal annulment in other words, who are we to mess with the Pope? Il Papa!
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- the Dean also pointed out that Chi Ming Tsoi really had to do more with impotence i.e., it shouldve been found voidable Molina guidelines: burden of proof on petitioner; marriage presumed medically/clinically proven by experts (but now, expert evidence isnt required) exists at time of celebration (prove it existed both before and during) incurable can be absolute or relative (i.e., you can marry again, psycho) gravity weight given to Church decisions but the law isnt just made for Catholics role of fiscal Sol Gen not required to comment anymore; but theyre still needed to prevent collusion essential martial obligations refer to those found in the FC Q: Is the action also imprescriptible even w/ regards to marriages under the Civil Code? No. For marriage solemnized before the FC, the action for nullity prescribes in 10 years. The FC took effect on Aug. 3, 1988. Nad Pugeda likes boys. Republic v. Molina FACTS: Roridel Molina filed a verified petition for declaration of nullity of marriage to Reynaldo on the ground of psychological incapacity. She said that Reynaldo showed signs of immaturity and irresponsibility as husband and father since he preferred to spend more time with his peers and friends on whom he squandered money; depended on his parents for aid and assistance; and was never honest with her in regard to their finances. Reynaldo was relived of his job in Manila and since then she had been the sole breadwinner of the family. Thereafter, she resigned from her job in Manila and went to live with her parents; a few weeks later, Reynaldo left and had since then abandoned them. ISSUE: Whether or not Reynaldo is psychologically incapacitated. HELD: NO. There is no clear showing that the psychological defect spoken of is an incapacity. It appears that it is more of a difficulty, if not an
outright refusal or neglect in the performance of some marital obligations. Mere showing of irreconcilable difference and conflicting personalities is no wise constitutes psychological incapacity. It is not enough to prove that the parties failed to meet their responsibilities and duties as married persons, it is essential that they must be shown to be incapable of doing so, due to some psychological illness. Psychological incapacity should refer to no less than mental incapacity to the most serious of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. It must exist at the time the marriage is celebrated. It must be characterized by: 1. gravity; 2. judicial antecedence; 3. incurability The Court handed down the following guidelines for Art. 36: 1. The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against the dissolution and nullity. 2. The ROOT CAUSE of the psychological incapacity must be: a) medically or clinically identified; b) alleged in the complaint; c) sufficiently proven by experts; and d) clearly explained in the decision. The evidence must convince the court that the parties, or one of them, was mentally or psychologically ill to such an extent that the person could not have known the obligations he was assuming, or knowing them, could not have given valid assumption thereof. 3. The incapacity must be proven to be existing at the time of the celebration of the marriage. The manifestation of the illness need not be perceived at such time, but the illness itself must have attached at such moment, or prior thereto. 4. Such incapacity must also be shown to be medically or clinically permanent or incurable. 5. Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. 6. The essential marital obligations must be those embraced by Art. 68 to 71 of the FC as regards the husband and wife as well as Art. 220, 221 and 225 of the same Code in regard to parents and their children.
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7.
Interpretation by the National Appellate Matrimonal Tribunal of the Catholic Church in the Philippines while not controlling or decisive, should be given great respect by the courts.
Sin v. Sin FACTS: Florence filed with RTC a complaint for declaration of nullity of marriage against Philipp on the ground of psychological incapacity. RTC and CA dismissed the complaint. ISSUE: Whether or not the dismissal is proper. HELD: YES. Through out the trial, the State did not participate in the proceedings. While the fiscal filed with the RTC a manifestation stating that he found no collusion between the parties, he did not actively participate therein. Other than entering his appearance at certain hearings of the case, nothing more was heard from him. Neither did the presiding Judge take any step to encourage the fiscal to contribute to the proceedings. The task of protecting marriage as an inviolable social institution requires vigilant and zealous participation and not mere pro-forma compliance. The trial court must order the prosecuting attorney or fiscal and Solicitor General to appear as counsel for the State. No decision shall be handed down unless the Solicitor General issues a certification which will be quoted in the decision briefly stating therein his reason for his agreement or opposition as this case may be, to the petition. The Solicitor General shall discharge the equivalent function of the defensor vinculi contemplated under Canon 1095. Choa v. Choa FACTS: Alfonso Choa filed before RTC a complaint for the declaration of nullity of his marriage to Leni based on her alleged psychological incapacity. Alfonso complains about 3 aspects of Lenis personality; namely, her alleged: 1) lack of attention to their children; 2) immaturity; and 3) lack of an intention of procreative sexuality. ISSUE: Whether or not Leni is psychologically incapacitated. HELD: NO. The evidence adduced by Alfonso merely shows that he and his wife could not get along with each other. There was absolutely no showing of the gravity or juridical antecedence or incurability of the problems besetting their marital union. Furthermore, the expert
testimony of Dr. Antonio Gauzon failed to identify and prove the root cause of the alleged psychological incapacity. His testimony established merely that the spouses had an incompatibility, a defect that could possibly be treated or alleviated through psychotherapy. A medical examination is not a condition sine qua non to a finding of psychological incapacity, so long as the totality of evidence presented is enough to establish the incapacity adequately. Here, however, the totality of evidence presented by Alfonso was completely insufficient to sustain a finding of psychological incapacity more so without any medical, psychiatric or psychological examination.
Dedel v. CA FACTS: David Dedel filed a complaint for the declaration of nullity of his marriage to Sharon based on psychological incapacity. He avers that during their marriage, Sharon turned out to be an irresponsible and immature wife and mother. She had extra-marital affairs with several men; a dentist in the AFP; a Lieutenant in the PSC and later a Jordanian National. She was once confined in the Manila Medical City for treatment. Despite the treatment, she did not stop her illicit relationship with the Jordanaian named Mustafa whom she married and with whom she had 2 children. She later abandoned David to join Mustafa in his country with their 2 children. ISSUE: Whether totality of the evidence presented is enough to sustain a finding that Sharon is psychologically incapacitated. HELD: NO. The difficulty in resolving the problem lies in the fact that a personality disorder is a very complex and elusive phenomenon which defies easy analysis and definition. In this case, Sharons sexual infidelity can hardly qualify as being mentally or psychologically ill to such an extent that she could not have known the obligations she was assuming, or knowing them, could not have given a valid assumption thereof. It appears that Sharons promiscuity did not exist prior to or at the inception of the marriage. What is, in fact, disclosed by the records is a blissful marital union at its celebration, later affirmed in church rites, and which produced four children. Sharons sexual infidelity or perversion and abandonment do not by themselves constitute psychological incapacity within the contemplation of the FC. Neither could her emotional immaturity and irresponsibility be equated with psychological incapacity. It must be
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shown that these acts are manifestations of a disordered personality which make Sharon completely unable to discharge the essential obligations of he marital state, not merely due to her youth, immaturity or sexual promiscuity. At best, the circumstances relied upon by David are grounds for legal separation.
incapable of doing so due to some psychological, not physical illness. There was no proof of a natal or supervening disabling factor in the persons, an adverse integral element in the personality structure that effectively incapacitates a person from accepting and complying with the obligations to marriage. Siayngco v. Siayngco FACTS Juanita Carating- Siayngco and Manuel were married at civil rites and before the Catholic Church. After discovering that they could not have a child of their own, the couple decided to adopt a baby boy. After 24 years of married life together, Manuel filed for the declaration of its nullity on the ground of psychological incapacity of Juanita. He alleged that all throughout their marriage, his wife exhibited an over domineering and selfish attitude to wards him; that she complained about almost everything and anyone connected with him; that she showed no respect or regard at all for the prestige and high position of his office as judge of MTC; that she would yell and scream at him and throw objects around the house within the hearing of their neighbors. ISSUE: Whether or not Juanita is psychologically incapacitated. HELD: NO. The case involves a husband who is constantly embarrassed by his wifes outbursts and overbearing ways, who finds his wifes obsession with cleanliness and the tight reign on his wallet irritants and who is wounded by her lack of support and respect for his person and his position as a judge. However, these inadequacies of Juanita which led Manuel to file a case against her do not amount to psychological incapacity to comply with the essential marital obligations. Manuel failed to prove that his wifes lack of respect for him, her jealousies and obsession with cleanliness, her outbursts and her controlling nature are grave psychological maladies that paralyze her from complying with the essential obligations of marriage. Neither is there any showing that these defects were already present at the inception of the marriage or that they are incurable. In fact, Dr. Maaba reported that Juanita was psychologically capacitated to comply with the basic and essential obligations of marriage. An unsatisfactory marriage is not a null and void marriage. Mere showing of irreconcilable differences and conflicting personalities in no wise constitutes psychological incapacity.
Republic v. Quintero-Hamano FACTS: Lolita Quinter-Hamano filed a complaint for declaration of nullity of her marriage to her husband Toshio Hamano, a Japanese national, on the ground of psychological incapacity. Toshio was psychologically incapacitated to assume his marital responsibilities, which incapacity became manifest only after the marriage. One month after their marriage, Toshio returned to Japan and promised to return by Christmas to celebrate the holidays with his family. After sending money to Lolita for 2 months, he stopped given financial support. She wrote him several times but he never responded. Sometime in 1991, Lolita learned from his friends that Toshio visited the Philippines but he did not bother to see her and their child. TC: marriage is null and void. ISSUE: Whether Toshio is psychologically incapacitated. HELD: NO. The totality of evidence presented fell short of proving that Toshio was psychologically incapacitated to assume his marital responsibilities. His act of abandonment was doubtlessly irresponsible but it was never alleged nor proven to be due to some kind of psychological illness. After Lolita testified on how Toshio abandoned his family, no other evidence was presented showing that his behavior was caused by a psychological disorder. Although, as a rule, there was no need for an actual medical examination, it would have greatly helped Lolitas case had she presented evidence that medically or clinically indentified his illness. Abandonment is also a ground for legal separation. There was no showing that the case at bar was not just an instance of abandonment in the context of legal separation. The Court cannot presume psychological defect from the mere fact that Toshio abandoned his family immediately after the celebration of the marriage. It is not enough to prove that a spouse failed to meet his responsibility and duty as a married person; it is essential that he must be shown to be
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Antonio v. Reyes FACTS: Petitioner and respondent met in August 1989 when petitioner was 26 and respondent was 36 years of age. Barely a year after their first meeting, they got married before a minister of the gospel and subsequently church wedding. On March 8, 1993, petitioner filed a petition to have his marriage to respondent declared null and void on the basis of that respondent is psychologically incapacitated to comply with the essential obligations of marriage. As manifestations of respondents alleged psychological incapacity, petitioner claimed that respondent persistently lied about herself, the people around her, her occupation, income, educational attainment and other events or things. o She concealed the fact that she previously gave birth to an illegitimate son, and instead introduced the boy to petitioner as the adopted child of her family. She only confessed the truth about the boys parentage when petitioner learned about it from other sources after their marriage. o She fabricated a story that her brother-in-law, Edwin David, attempted to rape and kill her when in fact, no such incident occurred. o She misrepresented herself as a psychiatrist to her obstetrician, Dr. Consuelo Gardiner, and told some of her friends that she graduated with a degree in psychology, when she was neither. o She claimed to be a singer or a free-lance voice talent affiliated with Blackgold Recording Company (Blackgold); yet, not a single member of her family ever witnessed her alleged singing activities with the group. In the same vein, she postulated that a luncheon show was held at the Philippine Village Hotel in her honor and even presented an invitation to that effect o She invented friends named Babes Santos and Via Marquez, and under those names, sent lengthy letters to petitioner claiming to be from Blackgold and touting her as the number one moneymaker in the commercial industry worth P2 million. Petitioner later found out that respondent herself was the one who wrote and sent the letters to him when she admitted the truth in one of their quarrels. He likewise realized that Babes Santos and Via Marquez were only figments of her
imagination when he discovered they were not known in or connected with Blackgold. o She represented herself as a person of greater means, thus, she altered her payslip to make it appear that she earned a higher income. She bought a sala set from a public market but told petitioner that she acquired it from a famous furniture dealer. o She exhibited insecurities and jealousies over him to the extent of calling up his officemates to monitor his whereabouts. When he could no longer take her unusual behavior, he separated from her in August 1991. He tried to attempt a reconciliation but since her behavior did not change, he finally left her for good in November 1991. In support of his petition, petitioner presented a psychiatrist and a clinical psychologist who stated that respondents persistent lying was abnormal or pathological. They further asserted that respondents extreme jealousy was also pathological. It reached the point of paranoia since there was no actual basis for her to suspect that petitioner was having an affair with another woman. TC: declared marriage null and void. Before the trial court rendered its decision, the Metropolitan Tribunal of the Archdiocese of Manila annulled the Catholic marriage of the parties, on the ground of lack of due discretion on the part of the parties. During the pendency of the appeal before the CA, the Metropolitan Tribunals ruling was affirmed with modification by both the National Appellate Matrimonial Tribunal, which held instead that only respondent was impaired by lack of due discretion. Subsequently, the decision of the National Appellate Matrimonial Tribunal was upheld by the Roman Rota of the Vatican. CA: reversed RTC since the totality of the evidence presented was insufficient to establish respondents psychological incapacity.
ISSUE: Whether or not the facts as presented by petitioner sufficiently meets the standards set for the declaration of nullity of a marriage under Article 36 of the FC. HELD: YES. The present case sufficiently satisfies the guidelines in Molina: o First. Petitioner had sufficiently overcome his burden in proving the psychological incapacity of his spouse. Apart from his own testimony, he presented witnesses who corroborated his allegations on his wifes behavior, and certifications from
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Blackgold Records and the Philippine Village Hotel Pavillon which disputed respondents claims pertinent to her alleged singing career. He also presented two (2) expert witnesses from the field of psychology who testified that the aberrant behavior of respondent was tantamount to psychological incapacity. In any event, both courts below considered petitioners evidence as credible enough. Even the appellate court acknowledged that respondent was not totally honest with petitioner. Second. The root cause of respondents psychological incapacity has been medically or clinically identified, alleged in the complaint, sufficiently proven by experts, and clearly explained in the trial courts decision. The initiatory complaint alleged that respondent, from the start, had exhibited unusual and abnormal behavior of peren[n]ially telling lies, fabricating ridiculous stories, and inventing personalities and situations, of writing letters to petitioner using fictitious names, and of lying about her actual occupation, income, educational attainment, and family background, among others. Third. Respondents psychological incapacity was established to have clearly existed at the time of and even before the celebration of marriage. She fabricated friends and made up letters from fictitious characters well before she married petitioner. Likewise, she kept petitioner in the dark about her natural childs real parentage as she only confessed when the latter had found out the truth after their marriage. Fourth. The gravity of respondents psychological incapacity is sufficient to prove her disability to assume the essential obligations of marriage. It is immediately discernible that the parties had shared only a little over a year of cohabitation before the exasperated petitioner left his wife. Whatever such circumstance speaks of the degree of tolerance of petitioner, it likewise supports the belief that respondents psychological incapacity, as borne by the record, was so grave in extent that any prolonged marital life was dubitable. Fifth. Respondent is evidently unable to comply with the essential marital obligations as embraced by Articles 68 to 71 of the Family Code. Article 68, in particular, enjoins the spouses to live together, observe mutual love, respect and fidelity, and render mutual help and support. As noted by the trial court, it is difficult to see how an inveterate pathological liar would be
able to commit to the basic tenets of relationship between spouses based on love, trust and respect. o Sixth. The Court of Appeals clearly erred when it failed to take into consideration the fact that the marriage of the parties was annulled by the Catholic Church. The appellate court apparently deemed this detail totally inconsequential as no reference was made to it anywhere in the assailed decision despite petitioners efforts to bring the matter to its attention. Such deliberate ignorance is in contravention of Molina, which held that interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts. As noted earlier, the Metropolitan Tribunal of the Archdiocese of Manila decreed the invalidity of the marriage in question in a Conclusion dated 30 March 1995, citing the lack of due discretion on the part of respondent. Such decree of nullity was affirmed by both the National Appellate Matrimonial Tribunal, and the Roman Rota of the Vatican. In fact, respondents psychological incapacity was considered so grave that a restrictive clause was appended to the sentence of nullity prohibiting respondent from contracting another marriage without the Tribunals consent. The Court thus acknowledges that the definition of psychological incapacity, as intended by the revision committee, was not cast in intractable specifics. Judicial understanding of psychological incapacity may be informed by evolving standards, taking into account the particulars of each case, current trends in psychological and even canonical thought, and experience. It is under the auspices of the deliberate ambiguity of the framers that the Court has developed the Molina rules, which have been consistently applied since 1997. Molina has proven indubitably useful in providing a unitary framework that guides courts in adjudicating petitions for declaration of nullity under Article 36. At the same time, the Molina guidelines are not set in stone, the clear legislative intent mandating a case-to-case perception of each situation, and Molina itself arising from this evolutionary understanding of Article 36. There is no cause to disavow Molina at present, and indeed the disposition of this case shall rely primarily on that precedent. There is need though to emphasize other perspectives as well which should govern the disposition of petitions for declaration of nullity under Article 36.
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Of particular notice has been the citation of the Court, first in Santos then in Molina, of the considered opinion of canon law experts in the interpretation of psychological incapacity. This is but unavoidable, considering that the Family Code committee had bluntly acknowledged that the concept of psychological incapacity was derived from canon law, and as one member admitted, enacted as a solution to the problem of marriages already annulled by the Catholic Church but still existent under civil law. It would be disingenuous to disregard the influence of Catholic Church doctrine in the formulation and subsequent understanding of Article 36, and the Court has expressly acknowledged that interpretations given by the National Appellate Matrimonial Tribunal of the local Church, while not controlling or decisive, should be given great respect by our courts. Still, it must be emphasized that the Catholic Church is hardly the sole source of influence in the interpretation of Article 36. Even though the concept may have been derived from canon law, its incorporation into the Family Code and subsequent judicial interpretation occurred in wholly secular progression. Indeed, while Church thought on psychological incapacity is merely persuasive on the trial courts, judicial decisions of this Court interpreting psychological incapacity are binding on lower courts. The interpretation of Article 36 relies heavily on a case-to-case perception. It would be insensate to reason to mandate in this case an expert medical or clinical diagnosis of incurability, since the parties would have had no impelling cause to present evidence to that effect at the time this case was tried by the RTC more than ten (10) years ago. From the totality of the evidence, the Court is sufficiently convinced that the incurability of respondents psychological incapacity has been established by the petitioner. Any lingering doubts are further dispelled by the fact that the Catholic Church tribunals, which indubitably consider incurability as an integral requisite of psychological incapacity, were sufficiently convinced that respondent was so incapacitated to contract marriage to the degree that annulment was warranted. All told, the court conclude that petitioner has established his cause of action for declaration of nullity under Article 36 of the Family Code. The RTC correctly ruled, and the Court of Appeals erred in reversing the trial court. b. Declaration of Nullity
- before this article was amended, the second sentence read: However, in case of marriage celebrated before the effectivity of this Code and falling under Art. 36, such action or defense shall prescribe in 10y after this Code shall take effect Q: Why is an action for nullity imprescriptible? Mere lapse of time cannot give effect to a marriage or any other contract that is null and void.
Art. 40. 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. (n) Q: If Mansi and Vic marry prior to the procurement of a declaration of nullity of marriage by Mansi before her previous marriage, what is the effect on this 2nd marriage? It will be void! Parties to a marriage should not be allowed to assume that their marriage is void, even if thats the case they must first secure a JDN before theyll be allowed to marry again. But, remember that the JDN is only for purposes of remarriage. If a party simply wants to declare a sibling illegitimate, theres no need for the JDN.
Art. 41. A marriage contracted by any person during subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient. For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. (83a)
ART. 39. THE ACTION OR DEFENSE FOR THE DECLARATION OF ABSOLUTE NULLITY OF A MARRIAGE SHALL NOT PRESCRIBE.
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He was in the armed forces and had take part in war He was in danger of death under other circumstances The 2 year period is computed from the occurrence of the event. Art. 42. The subsequent marriage referred to in the preceding Article shall be 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. A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in case such fact is disputed. (n) Q: What are the 2 kinds of bigamous marriages contemplated under the above article? That which is contracted by a person during the existence of his previous marriage. The good faith of the remarrying party is immaterial, and the 2nd marriage will be void. At the same time, if hes in bad faith, he may even be criminally liable for bigamy. That which is contracted by a persons whose spouse has been absent for 4 consecutive years (or 2, depending on the facts), such person having a wellfounded belief that the absent spouse is already dead AND after having the latter judicially declared presumptively dead in a summary proceedings. Q: What is the purpose of requiring the declaration of presumptive death? Protects the 2nd spouse from a bigamy prosecution. With the judicial declaration, the good faith is established. Q: What do you mean by absent spouse? Gone for at least 4 years, unknown whether or not hes still alive, and the present spouse has a well-founded belief, yada, yada, yada. The 4 year period is reduced to 2, if there was danger of death surrounding the disappearance, as in the cases under art. 391 of the Civil Code: On board a vessel lost during a sea voyage, or an airplane which is missing Q: What is the effect of the filing of the affidavit of reappearance. Automatic termination of the subsequent marriage. Q: Is the filing of the affidavit conclusive as to the fact of reappearance? No. See last sentence of art. 42. Q: Can the reappearing spouse remarry? No. If he does, his marriage is bigamous.
Art. 43. The termination of the 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; (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 said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or in default of children, the innocent spouse; (3) Donations by reason of marriage shall remain valid, except that 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 bad faith as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and
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(5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession. (n) Q: Whats the effect of termination on the kids of the 2nd marriage? Kids conceived before termination are legit and their custody and support shall be decided by the court in the proper proceeding in case of dispute. Q: Whats the effect on the ACP or CPG? Dissolved and liquidated. But, if one was in bad faith, his share in the net profits will be forfeited in favor of: Common kids; but if none, The kids of the guilty spouse by a previous marriage; if none, The innocent spouse Q: What happens to donations propter nuptias? Art. 43(3) Q: What about designations of the guilty spouse in life insurance? Art. 43(4) Q: What about designations in the will of the innocent spouse in favor of the guilty? Art. 43(5) Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by reason of marriage and testamentary dispositions made by one in favor of the other are revoked by operation of law. (n) Q: What is meant by both spouses being in bad faith? They both knew that the absent spouse was alive when they contracted the subsequent marriage Domingo v. CA FACTS: Delia Domingo filed a petition for the declaration of nullity of marriage and separation of property against Roberto. Unknown to her, Roberto had a previous marriage with one Emerlina dela Paz which marriage is valid and still existing and that she came to know of the prior marriage only in 1983 when Emerlina sued them for bigamy. Since 1983 up to the filing of the petition, Roberto was unemployed and completely dependent upon her for support and subsistence. Sometime in 1989, while on her one-month vacation, she discovered that he was
cohabiting with another woman and that he had been disposing of some of her properties without her knowledge or consent. The petition prayed that a TRO or a writ of preliminary injunction be issued enjoining Roberto from exercising any act of administration and ownership over said properties; their marriage be declared null and void and of no force and effect; and Delia be declared the sole and exclusive owner of all properties acquired at the time of their void marriage and such properties be placed under the proper management and administration of the attorney-in-fact. Roberto filed a motion to dismiss. RTC: denied motion to dismiss. CA: affirmed. It observed that the separation and subsequent distribution of the properties acquired during the union can be had only upon proper determination of the status of the marital relationship between the parties, whether or not the validity of the first marriage is denied by Roberto. Furthermore, in order to avoid duplication and multiplicity of suits, the declaration of nullity of marriage may be invoked in the same proceeding together with the partition and distribution of the properties involved. ISSUE: Whether or not a petition for judicial declaration of a void marriage is necessary. If in the affirmative, whether the same should be filed only for purposes of remarriage. Whether or not the same case is the proper remedy of Domingo to recover certain real and personal property allegedly belonging to her exclusively. HELD: YES. A declaration of the absolute nullity of a marriage is now explicitly required either as a cause of action or a ground for defense. Where the absolute nullity of a previous marriage is sought to be invoked for purposes of contracting a second marriage, the sole basis acceptable in law for said projected marriage to be from legal infirmity is a final judgment declaring the previous marriage void. Under Article 40 the final judgment declaring the previous marriage void need not only be obtained only for purposes of remarriage. When a marriage is declared void ab initio, the law states that the final judgment therein 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 had been adjudicated in previous judicial proceedings.
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Delias ultimate prayer for separation of property will simply be one of the necessary consequences of the judicial declaration of absolute nullity of their marriage. Thus, Robertos suggestion that in order for their properties to be separated, an ordinary civil action has to be instituted for that purpose is baseless. The FC has clearly provided the effects of the declaration of nullity of marriage, one of which is the separation of property according to the regime of property relations governing them. It stands to reason that the LC before whom the issue of nullity of a first marriage is brought is likewise clothed with jurisdiction to decide the incidental questions regarding the copules property.
Tamano v. Ortiz FACTS: Senator Mamintal Tamano married Haja Putri Zorayda Tamano in civil rites. Their marriage supposedly remained valid and subsisting until his death. Prior to his death, Tamano also married Estrellita Tamano in civil rites in Malabang, Lanao del Sur. Zorayda joined by her son filed a complaint for declaration of nullity of Marriage of Tamano and Estellita on the ground that it was bigamous. Estrellita filed a motion to dismiss alleging that the RTC was without jurisdiction over the subject and nature eo the action. She alleged that only a party to the marriage could file an action for annulment of marriage, hence, it was only Tamano who could file an action for annulment of their marriage. She likewise contend that since Tamaon and Zorayda were both Muslims and married in Muslim rites the jurisdiction to hear and try the case was vested in the sharia courts. TC: denied motion to dismiss and ruled that the instant case was properly cognizable by the RTC. CA: ruled that the case falls under the exclusive jurisdiction of sharia courts only when filed in places where there are sharia courts. But in places where there are no such courts, it could properly be filed before the RTC. ISSUE: Whether or not RTC has jurisdiction over all actions involving the contract of marriage and marital relations. HELD: YES. Personal actions, such as the instant complaint for declaration of nullity of marriage, may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, at the election of the plaintiff. In the
complaint for declaration of nullity of marriage filed by Zorayda, it was alleged that Estrellita and Tamano were married in accordance with the provision of the Civil Code. Never was it mentioned that Estrellita and Tamano were married under Muslim laws. That she was in fact married to Tamano under Muslim laws was first mentioned only in her MR. Nevertheless, the RTC was not divested of jurisdiction to hear and try the instant case despite the allegation in the MR that Estrellita and Tamano were likewise married in Muslim rites. This si because a courts jurisdiction cannot be made to depend upon defenses set up in the answer, in a motion to dismiss, or in a motion for reconsideration, but only upon the allegations of the complaint. Jurisdiction over the subject matter of a case is determined from the allegations of the complaint as the latter comprises a concise statement of the ultimate facts constituting the plaintiffs causes of action. As alleged in the complaint, Estrellita and Tamao were married in accordance with the CC. Hence, contrary to the position of Estrellita, CC is applicable in the instant case. Assuming that indeed petitioner and Tamano were likewise married under Muslim laws, the same would still fall under the general original jurisdiction of the RTC. Article 13 of PD NO. 1083 does not provide for a situation where the parties were married both in civil and Muslim rites. Consequently, the sharia courts are not vested with original and exclusive jurisdiction when it comes to marriages celebrated under both civil and Muslim laws.
Nial v. Badayog FACTS: Pepito Ninal was married to Teodulfa Bellones on September 26, 1974. Out of their marriage were born herein petitioners. Teodulfa was shot by Pepito resulting in her death on April 24, 1985. 1 year and 8 months later, Pepito and Notma Badayog got married without any marriage license. In lieu thereof, Pepito and Norma executed an affidavit stating that they lived together as husband and wife for at least 5 years and were thus exempt from securing a marriage license. Thereafter, Pepito died in a car accident. After their fathers death, petitioners filed a petition for declaration of nullity of marriage of Peptio and Norma alleging that the said marriage was viod for lack of marriage license.
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ISSUE: Whether or not the cohabitation period referred to in the FC should be for a continuous period and exclusive with each other as husband and wife regardless of whether there is a legal impediment to their being lawfully married. HELD: NO. The five-year period should computed on the basis of a cohabitation as husband and wife where the only missing factor is the special contract of marriage to validate the union. In other words, the 5year common-law cohabitation period, which is counted back from the date of celebration of marriage, should be a period of legal union had it not been for the absence of the marriage. This 5-year period should be the years immediately before the day of the marriage and it should be a period of cohabitation characterized by exclusivity meaning no third party was involved at any time within the 5 years and continuity that is unbroken. Otherwise, if that continuous 5-year cohabitation is computed without any distinction as to whether the parties were capacitated to marry each other during the entire 5 years, then the law would be sanctioning immorality and encouraging parties to have common law relationships and placing them on the same footing with those who lived faithfully with their spouse. Reason for the requirement of marriage license: to notify the public that two persons are about to be united in matrimony and that anyone who is aware or has knowledge of any impediment to the union of the two shall make it known to the local civil registrar. From the time Pepitos first marriage was dissolved to the time of his marriage with respondent, only about 20 months had elapsed. A voidable marriage cannot be assailed collaterally except in a direct proceeding while a void marriage can be attacked collaterally even after the death of either party. Cojuango v. Palma FACTS: Eduardo Cojuangco filed with the court the instant complaint for disbarment against Atty. Leo Palma alleging as grounds deceit, malpractice, gross misconduct in office, violation of his oath as a lawyer and grossly immoral conduct. Cojuangco and Palma met sometime in the 70s . Cojjuangco was a client of ACCRA and Palma was the lawyer assigned to handle his cases. Consequently, Palmas relationship with Cojuangcos family became intimate. He traveled and dined with them abroad. He
frequented their house and even tutored Cojuangcos 22-year old daughter, Maria Luisa, then a student of Assumption Convent. Without the knowledge of Cojuangco, Palma married Lisa in H.K. It was only the next day that Conjuangco was informed and Palma assured him that everything is legal. Cojuangco was shocked, knowing fully well that Palma is a married man and has 3 children.
ISSUE: Whether or not Palma should be held liable. HELD: YES. Palma married LIsa while he has a subsisting marriage with Elizabeth Hermosisima. Undoubtedly, Palmas act constitute grossly immoral conduct, a ground for disbarment. He made a mockery of marriage which is a sacred institution demanding respect and dignity. His act of contracting a second marriage is contrary to honesty, justice, decency and morality. The circumstances here speak of a clear case of betrayal of trust and abuse of confidence. Moreover, he availed of Cojuangcos resources by securing a plane ticket from Cojuangcos office in order to marry his daughter in H.K. without his consent. Palmas culpability is aggravated by the fact that Lisa was 22 and was under psychological treatment for emotional immaturity. Palma is disbarred from the practice of law. c. Declaration of Nullity v. Bigamy
Marbella-Bobis v. Bobis FACTS: Isagani Bobis contracted a first marriage with Maria Dulce. Without said marriage having been annulled, nullified or terminated, Isagani contracted a second marriage with Imelda Marbella-Bobis and allegedly third marriage with Julia Sally Hernandez. Imelda filed against Isagani an information for bigamy. Thereafter, Isagani initiated a civil action for the judicial declaration of absolute nullity of his first marriage on the ground that it was celebrated without a marriage license. He then moved for the suspension of the proceedings in the criminal case for bigamy invoking the pending civil case for nullity of the first marriage as prejudicial question to the criminal case. TC: granted the motion to suspend.
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ISSUE: Whether or not the civil case is a prejudicial question in the criminal case of bigamy. HELD: NO. In the case at bar, Isaganis clear intent is to obtain a judicial declaration of nullity of his first marriage and thereafter to invoke that bery same judgment to prevent his prosecution for bigamy. He cannot have his cake and eat it too. Otherwise, all that an adventurous bigamist has to do is disregard Art. 40 of the FC, contract a subsequent marriage and escape a bigamy charge by simply claiming that the first marriage is void and that the subsequent marriage is equally void for lack of a prior judicial declaration of nullity of the first. In a recent case for concubinage, the court held that the pendency of a civil case for declaration of nullity of marriage is not a prejudicial question (Beltran v. People). This ruling applies here by analoby since both crimes presuppose the subsistence of a marriage. The burden of proof to show the dissolution of the first marriage before the second marriage was contracted rests upon the defense, but that is a matter that can be raised in the trial of the bigamy case. Per current jurisprudence, a marriage thought void still needs a judicial declaration of such fact before any party can marry again; otherwise the second marriage will also be void. The reason is that, without a judicial declaration of nullity, the first marriage is presumed to be subsisting. In the case at bar, Isagani was for all legal intents and purposes regarded as a married man at the time he contracted his second marriage with Imelda. Mercado v. Tan FACTS: Dr. Vincent Mercado and Ma. Consuelo Tan got married on June 27, 1991 before MTCC-Bacolod City. There is no dispute either that at the time of the celebration of the wedding with Consuelo, Vincent was actually a married man, having been in lawful wedlock with Ma. Thelma Oliva in a marriage ceremony solemnized on April 10, 1976. A letter-compliant for bigamy was filed by Conseulo . After more than a month from the filing of the bigamy case, Vincent filed an action for Declaration of Nullity of Marriage against Ma. Thelma V. Oliva. Thereafter, a decision was rendered declaring the marriage null and void. ISSUE: Whether or not the element of previous legal marriage is present in order to convict Vincent.
HELD: YES. When the Information was filed, all the elements of bigamy were present. It is undisputed that Vincent married Thelma in 1976 while that marriage was still subsisting, he contracted a second marriage, this time with Ma. Consuelo Tan who subsequently filed the Complaint for bigamy. The fact that Vincent subsequently obtained a judicial declaration of the nullity of the first marriage was immaterial. To repeat, the crime had already been consummated by then. Moreover, his view effectively encourages delay in the prosecution of bigamy cases; an accused could simply file a petition to declare his previous marriage void and invoke the pendency of that action as a prejudicial question in the criminal case. The elements of the crime of bigamy: 1. That the offender has been legally married; 2. That the marriage has not been legally dissolved or, in case of his or her spouse is absent, the absent spouse could not yet be presumed dead according to the CC; 3. That he contracts a second or subsequent marriage; 4. That the second or subsequent marriage has all the essential requisites for validity. Morigo v. People FACTS: Lucio and Lucia married on August 30, 1990 at the Iglesia de Filipina Nacional at Bohol. After their marriage, Lucia reported back to her work in Canada leaving Lucio behind. After one year, Lucia filed with the Ontario Court a petition for divorce against Lucio which was granted by the court on January 17, 1992 and to take effect on February 17, 1992. On October 4, 1992, Lucio married Maria Jececha Lumbago. On September 21, 1993, Lucio filed a complaint for judicial declaration of nullity of marriage in the RTC. He seeks the declaration of nullity of his marriage with Lucia on the ground that no marriage ceremony actually took place. On October 19, 1993, Lucio was charged with Bigamy. RTC: guilty of bigamy. CA: affirmed. Lucio contends that he should not be faulted for relying in good faith upon the divorce decree of the Ontario court. He highlights the fact that he contracted the second marriage openly and publicly, which a person
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intent upon committing bigamy would not be doing. Furthermore, his lack of criminal intent is material to a conviction or acquittal in the instant case. During the pendency of the bigamy case, RTC of Bohol declared the annulment of the marriage.
ISSUE: Whether or not the court erred in convicting Tenebro for the crime of bigamy despite clear proof that his marriage has been declared null and void. HELD: NO. As soon as the second marriage to Ancajas was celebrated, during the subsistence of the valid first marriage, the crime of bigamy had already been consummated. A marriage contracted during the subsistence of a valid marriage is automatically void, the nullity of this second marriage is not per se an argument for the avoidance of criminal liability for bigamy. Although the judicial declaration of the nullity of a marriage on the ground of psychological incapacity retroacts to the date of the celebration of the marriage insofar as the vinculum between the spouses is concerned, it is significant to note that said marriage is not without legal effects. Among these effects is that children conceived or born before the judgment of absolute nullity of the marriage shall be considered legitimate. There is therefore a recognition written into the law itself that such a marriage, although void ab initio, may still produce legal consequences. Among these legal consequences is incurring criminal liability for bigamy. Abunado v. People FACTS: On September 18, 1967, Salvador married Narcisa at the Manila City Hall. In 1988, Narcisa left for Japan to work but returned to the Philippines in 1992, when she learned that her husband was having an extra-marital affair and has left their conjugal home. After earnest efforts, Narcisa found Salvador in Q.C. cohabiting with Fe Corazon Plato. She also discovered that on January 10, 1989, Salvador contracted a second marriage with a certain Zenaida Binas. On January 19, 1995, an annulment case was filed by Salvador against Narcisa. On May 18, 1995, a case for bigamy was filed by Narcisa against Salvador and Zenaida. ISSUE: Whether or not Salvador Abunado is liable for bigamy. HELD: YES. The subsequent judicial declaration of the nullity of the first marriage was immaterial because prior to the declaration of nullity, the crime had already been consummated. Moreover, petitioners assertion would only delay the prosecution of bigamy cases considering that an
ISSUE: Whether or not Lucio committed bigamy and if so, whether his defense of good faith is valid. HELD: YES. In the instant case, no marriage ceremony at all was performed by a duly authorized solemnizing officer. Lucio and Lucia merely signed a marriage contract on their own. The mere private act of signing a marriage contract bears no semblance to a valid marriage and thus, needs no judicial declaration of nullity. Such act alone, without more, cannot be deemed to constitute liable for bigamy unless he first secures a judicial declaration of nullity before he contracts a subsequent marriage. Thus, Lucio was not married to Lucia at the time he contracted the marriage with Maria Jececha. Lucio was acquitted. Tenebro v. CA FACTS: Veronico Tenebro, contracted marriage with Leticia Ancajas on April 10, 1990. They lived together continuously and without interruption until the latter part of 1991, when Tenebro informed Ancajas that he had been previously married to a certain Hilda Villareyes on November 10, 1986. Invoking the previous marriage, Tenebro left the conjugal dwelling which he shared with Ancajas, stating that he was going to cohabit with Villareyes. On January 25, 1993, Tenebro contracted yet another marriage, this one with a certain Nilda Villegas. When Ancajas learned of this third marriage, she verified from Villreyes whether the latter was indeed married to Tenebro. Villareyes confirmed that Tenebro was indeed his husband. Thereafter, Ancajas filed a complaint for bigamy against Tenebro Tenebros defense: he and Villareyes were not validly married to each other since no marriage ceremony took place to solemnize their union. He said that he signed a marriage contract merely to enable her to get the allotment from his office in connection with his work as a seaman. RTC: guilty
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accused could simply file a petition to declare his previous marriage void and invoke the pendency of that action as a prejudicial question in the criminal case. The outcome of the civil case for annulment of petitioners marriage to Narcisa had no bearing upon the determination of Salvadors innocence or guilt in the criminal case for bigamy, because all that is required for the charge of bigamy, because all that is required for the charge of bigamy to prosper is that the first marriage is subsisting at the time the second marriage is contracted. 7. a. Voidable Marriages Grounds
(5) That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or (6) That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable. (85a) - Regarding the above prescriptive periods, they are normally counted from the time the defect has ceased. Except: When the action is not brought by a spouse (in cases of insanity or lack of parental consent). Incurable causes counted from the time of celebration (since theyre neverending!) (impotency, STD) Lack of Parental Consent Q: To whom does the first ground apply? The baby (between 18 and 21) that didnt get the approval of mommy and daddy. Q: Who may file the action? The parents, guardian, etc. The party whose parent did not give consent. Q: If both are between 18 and 21 and both their sets of parents didnt give consent, who may bring the action? Both sets of parents. Either separately or jointly. The principle of in pari delicto doesnt apply in this case. Thus, even if both sets of parents failed to consent, they can both still file. Q: If one set gave their consent but the other didnt? Those who didnt give their consent can file. Q: If the parents file, but the parties love each other a la Capulet v. Montague can the evil, cold-hearted court still annul the marriage? Hells yeah, Shakespeare. Besides, the lovers can still remarry at 21. Q: Can the spouses bring the action? Yes. Upon reaching 21.
Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage: (1) That the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over but below twenty-one, and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and both lived together as husband and wife; (2) That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife; (3) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife; (4) That the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife;
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Q: If both didnt get the consent, can either of them file upon reaching 21? Does Captain Barbell wear yellow? Yup! Q: Suppose only the wife was under 21, and didnt get consent? Can she file when shes 21? Does Captain Barbell have red briefs? Yup! Q: In the foregoing case, can the husband (who was over 21 when they got married) file? Does Captain Barbell have brown briefs? NO. (But I do, because Im foregoing taking a poop for this reviewer) Q: When may the action be filed? Anytime before 21 by the parents, etc. who didnt give consent Within 5 years after reaching the age of 21 by the party whose parents didnt consent. The action is allowed past the age of 21 since this deals with a lack of an essential requisite. Q: How is the marriage ratified? By cohabitation after reaching 21. Any cohabitation before 21 will not ratify the marriage. Even if you have sex during that time. Even if its in the butt. Q: What is cohabitation? Act of consummating the marriage i.e., F-U-C-K-I-N-G (including in the butt). Q: Can the parties file for annulment after ratification? No. The ratification cures the defect. In other words, love conquers all. Q: Can the parents ratify by giving their consent after the celebration? No. They can never ratify. The only means of ratification is cohabitation. (Even if the parents have sex with each other in the butt). Q: May the attendance of the parents at the wedding ceremony be construed as consent? No. Consent has to be given in a specific form included in the marriage license application. If the parents/parties fail to comply with this, theres no consent. Q: What if the parents consent after the marriage? Still voidable. Consent must be given before the celebration.
Q: What if the parents didnt give consent, but then they saw their grandchild (who didnt look like a little gremlin) and fell in love with him, then they gave their consent. BUT, upon realizing that he did look like a little gremlin, they decided to file an action for annulment. What happens then? They can still file. Q: What is the effect of cohabitation after the decree of annulment has been issued? None. Except for some sweet, sweet lovin. But legally, none. Insanity - this is not the same concept as insanity under succession Q: When should the insanity exist? At the time of the marriage. Q: What does at the time of marriage mean? The precise moment when the marriage is sealed i.e., the moment the party gives his consent. It doesnt refer to the day or the hour that the ceremony takes place. So, even if at the beginning of the ceremony the spouse was sane, but at the precise moment when he is about to say I do, nabaliw, the marriage is voidable. (Of course, that could just be cold feet, but who are we to judge? Q: What is the presumption regarding sanity? If insane before the marriage and thereafter, but theres no proof that he was nuts at the precise moment of giving consent, hes presumed insane at the time of giving consent. But, this is merely a REBUTTABLE presumption. If the insane spouse can prove otherwise, then the marriage is valid. Q: Who may file? Sane spouse if he had NO KNOWLEDGE of the insanity Relative, guardian, etc. Insane spouse - The requirement of lack of knowledge of the sane spouse, capacitating him to file the action for annulment is different when it comes to psychological incapacity. In the latter case, theres no knowledge requirement.
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Q: If the parents knew of the insanity, can they still file? Yes. Q: Whats the prescriptive period? If by the sane spouse, most commentators seem to think that it is any time before the death of the crazy one. But Dean Del says Hells no, biatch. That shiznit aint fo me, ya hear?! Thus, the anytime before the death phrase only refers to the parents of the crazy one (notice the semi-colon in the provision). Thus, the FC does not provide for a period. Of course, since its not the intent of the Code Commission to make this imprescriptible, considering that the nature of a voidable marriage makes it prescriptible, then apply art. 1149 of the Civil Code: All actions whose period arent fixed prescribe in five years from the time the right of action accrues. Thus, if its the sane spouse filing the petition, the prescriptive period is 5 YEARS FROM THE DISCOVERY OF THE INSANITY. If filed by the parent, etc. of Mr. Crazy, then anytime before this death. The Dean says that this is basically making it imprescriptible! (since when dies, the marriage is terminated). If filed by the insane spouse. Either during a lucid interval or after regaining sanity. Again, however, our benevolent Dean has an enlightened explanation. After regaining sanity, the ex-Mr. Crazy should be given 5 YEARS FROM THE TIME HE REGAINED HIS SANITY. Q: Will the action, filed while Mr. Crazy is still crazy, prosper? Yes. Q: How is the marriage ratified? Free cohabitation after the spouse regained sanity. If during, any act of cohabitation will not ratify the marriage, even if the sane spouse already knows of the insanity. Q: Can the guardian over the person or property of Mr. Crazy give his consent? No. The consent required in this case is personal. It must be given by the parties themselves. Q: If the spouse was crazy at the time of the marriage, then undergoes a lucid interval for one month, and upon realizing that his spouse is hideous, becomes insane again, can he file?
Yes. During the lucid interval. Why wait? She wont get any better looking. Plastic surgery isnt that good. Q: What if he continues to cohabit with the ugly spouse during his lucid interval (because, despite her looks, she has a hypnotic vagina), and then becomes nuts again? The cohabitation during the lucid interval ratifies the marriage. The reversion to his former condition wont make the marriage voidable again. Fraud Art. 46. Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding Article: (1) Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude; (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; (3) Concealment of sexually transmissible disease, regardless of its nature, existing at the time of the marriage; or (4) Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time of the 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. (86a) Q: Whats the meaning of fraud in ordinary contracts? The use of insidious words or machinations in order to obtain consent from a party. Q: Whats the meaning of fraud as applied to the contract of marriage? Its obviously not the same. In marriage and for annulment, fraud is strictly limited to the instances in Art. 46. Any other fraudulent act, if not mentioned there, cant justify the annulment. So, for example, if your girlfriend tells you that when you get married, shell be a freak in the sheets so to speak, but turns out to be allergic to the penis, youre screwed, my friend. This is not one of the grounds of fraud.
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Previous final conviction Q: Whatre the elements? Final conviction Crime involves moral turpitude The conviction exists/is final at the time of celebration (so if the conviction occurs during the marriage, its not a ground) Non-disclosure of the conviction Q: JC STM RULES De Veyra was convicted of homicide. He appealed. Pending the appeal, he married some Wonder Woman, but didnt disclose the incident. Wonder Woman later on found out and wanted to annul the marriage. Will her action prosper? No. The provision says that the conviction has to be both previous and final. So, if the case is pending appeal, its obviously not final. As such, no ground for annulment exists. Q: JC was convicted for jaywalking. Again, he didnt disclose this to his future wife. Can she thereafter annul the marriage? No. This isnt a crime involving moral turpitude. Q: What is a crime involving moral turpitude? One that reflects on the moral character of the accused e.g., estafa, perjury, homicide, etc. It does not include crimes based on negligence e.g., homicide through reckless imprudence. Q: JC was convicted and sentenced for 10 days. Can the marriage be annulled? Depends. For annulment, whats important is that the crime involves moral turpitude (as an aside, typing turpitude over and over again officially SUCKS). So, if the crime here involves moral turpitude, then the marriage can be annulled. Q: What if the crime involved moral turpitude (there it is again, I hate that fucking word), but JC was only sentenced to pay a fine. Is there annulment? Yes. The penalty isnt limited by the law to imprisonment only. So long as theres a crime of moral turpitude (AAAAARRGGGHHHH!!!!), the conviction can be ground for fraud, and thus for annulment.
- The conviction must have been issued in a separate case. The crime cant be proven in the same annulment case because what you need to prove in the annulment is the already previous final conviction. Conviction of a Crime in Nullity, Annulment and Legal Separation Nullity Annulment Legal Separation The crime is limited to that of killing ones spouse (parricide) or the crime of killing the spouse of another for the purposes of marrying that person Concealment is immaterial. You dont need a conviction. Length of penalty immaterial. Pregnancy - this crime can only be committed by women. Duh! Men rule! Q: What must be concealed? The pregnancy itself; AND That another man is the father. Q: When must the pregnancy exist? At the time of celebration. Q: Ilards got pregnant by Felix and gave birth to a mutant prior to her marriage with Franco. Franco later finds out. Will his action for annulment prosper? No. The pregnancy must exist at the time of celebration, NOT before. The reason for this ground is to prevent confusion as to paternity (unless the kids freaking ugly, then noones gonna claim paternity). Non-disclosure of Crimes involving moral turpitude Crime must have a penalty of more than 6y imprisonment. There is no limit as to the kind of crime. The stress is on the penalty. Concealment is immaterial. Need a conviction. Imprisonment for more than 6y.
Concealment is essential in order that you can say it amounts to fraud. Need a conviction. Length of penalty immaterial.
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a child (not the pregnancy) prior to marriage wont lead to confusion (since the kid would be legit if born in the marriage). Q: Ilards got pregnant by Mang Nats after her marriage to Franco. Can Franco file? No. The pregnancy must exist at the time of the marriage. Of course, Franco can file a case for legal separation. Q: Ilards goes out and, due to her insatiable appetite for BIRD, sleeps with different men. She then gets married. At the time of her marriage, she was 2 weeks pregnant with some other guy (not the husband). She was, however, unaware of this because she took precautions (like coating the inside of her pekers with Ben-Gay). If the husband later finds out, can he file? No. Concealment presupposes knowledge. If one doesnt know shes pregnant, then obviously theres no intention to mislead. According to the Dean, this line of thinking prescinds from the fact that fraud is used as the basis for the ground. But, if one wants to argue the other way, use the basis as uncertain paternity, in which case, intention to mislead is not a requisite. Also, during the first 2 weeks of pregnancy, you can rarely tell that youre pregnant. Unless you have a mutant vagina, like some people I know. (Ahem, ahem). Q: Ilards was 3 months pregnant at the time of her marriage. An annulment case was filed by her husband. She claimed that she didnt know, thus there was no concealment. Will the action prosper? It depends on the proof presented. At this stage, its harder to prove lack of knowledge of pregnancy biological changes are obvious, not getting period, etc. Q: Ilards, if 5 months preggers at the time of her marriage. Will the annulment prosper? As a general rule, you cant conceal pregnancy if its already at this stage because its pretty darn obvious. Therefore, though the woman fails to make a disclosure, the husband ought to know that shes knocked up. There are, however, exceptions. The SC, in one case, recognized the instance wherein the woman was naturally round and plump, and had a big ol booty thus the concealment was upheld. Of course, in that same case, the SC said that if the circumstances were otherwise, then her husband shouldve known about the pregnancy even if there was no disclosure. Jang Moreno is a sex-god.
Q: Ilards is 5 months pregnant. Franco, knowing that, and assuming the child to be his, married her (much to the chagrin of non-morons everywhere). He later on found out the kid wasnt his and filed for annulment. During the trial, Ilards claims that there was no concealment because she thought he knew that the kid wasnt his; and that, if he had simply asked, she wouldve told him the truth. Will the action prosper? The underlying issue in this case is whether or not there exists an obligation to disclose the pregnancy by another man (i.e., the second aspect of the concealment). This is debatable. In other words, I just wasted my time and yours by typing something that has no definite answer. And I just realized it after I typed. Shet. If, however, pregnancy is apparent and the man has still yet to tap dat ass, then he has no basis to presume the child is his (no, Jang, you cannot get a woman pregnant if you do it in her butthole.) Q: What if the kid was stillborn or eventually dies? Same rules. Q: May damages be awarded? If you actually spend for the hospitalization, and all other fun stuff, then of course you can get actual damages. According to the Dean, moral damages might be awarded so long as you can prove one of the grounds. (e.g., besmirched reputation, and other) Q: Who can file? The husband, silly. It can never be the woman, since shes not the injured party. Being a skanky ho is not tantamount to injury contemplated by law. Q: Whats the prescriptive period? 5 years from knowledge of the pregnancy by another man. (i.e., 5 years for knowing that your wife is a skank OR 5 years from having your pride handed to you on a platter) Q: Ilards is 2 months preggers. Thereafter, she had sex with Felix. Then she told him that he was the dad. They got married. Felix treated the child as his until the kid, at 8 years old, began to outgrow him, get red hair and become just a little bit overweight. Then, one day, he looked at the child and realized that the kid looked really familiar it was a younger version of Kuya Nio! Felix, ashamed (because Ilards said Kuya Nio had a bigger bird), filed an
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action for annulment on the 9th birthday of Kuya Jr. Will the annulment prosper? Yes. Knowledge of the pregnancy by another man need not take place at any time before birth. It can come to the husbands attention even after the woman has delivered, and may even come to his attention years after the birth. STD Q: What you mean by an STD? (What kind of a question is this? Who the hell wrote the original reviewer? Were they in the stone-age?) It is a disease that can be transferred from one to another by the insertion of the penis in the vagina, the penis in the rectum, the penis in the mouth, the vagina in the mouth, etc. For this ground, however, it is not required that the disease be actually transmitted. Its sufficient if it MAY be transmitted through fucking. Cliff Sawit has a big penis. Thus, if you get syphilis through an injection, its considered an STD and would fall under this ground. Q: What does regardless of its nature mean? Means that the STD under this ground can be either curable or incurable, provided that it is present at the time of the marriage and that its existence was concealed. Q: What is the reason for this ground? Protection of the health of the spouses. Thus, if one spouse got crabs (not the type you eat), but was cured before the marriage, it wont be a ground since it wont jeopardize the health of the spouses. Q: If the existence of the STD was disclosed, can the non-STD carrying spouse file an action for annulment? The healthy spouse cant file an action for fraud since there was no concealment involved. But, if the disease is serious and appears to be incurable, the spouse can file an action for annulment under Art. 45(6). Q: Who can bring an action for the annulment of marriage based on fraud because of concealment of a sexually transmissible disease? The law states that only the injured party can file a case for the annulment of marriage. When the law states injured party it does not refer to physical injury due to contamination of the disease (thus the uninjured party need
not acquire the disease) but the party who has been defrauded and thereby also injured. Q: What is the prescriptive period for this ground? Five years from the discovery of the fraud. Concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism Q: Mr. A concealed from his wife that he goes out drinking every Friday night with his barkada. Can his wife file a case for the annulment of marriage on the ground of concealment of habitual alcoholism? No. Habitual Alcoholism under this ground contemplates a disease. Q: Mrs. A filed a case for the annulment of marriage based on the ground of concealment of homosexuality. Mr. A claims that there was no concealment because he only discovered his homosexuality after their marriage. Will such a defense prosper? There are cases where homosexuals and lesbians refuse to acknowledge their homosexuality until after their marriage. In these cases, there can be no concealment and as such, the action of annulment of marriage cannot prosper. Q: Mr. A has sexual relations with both men and women. Does he fall under the term homosexuals? The literal definition of homosexuality is attraction to the same sex. Thus, a person attracted to both men and women is not, in the true sense of the word, a homosexual. But Dean thinks that the intent of the family code is to cover all forms of sexual perversion and thus, this ground may cover a bisexual. Note: The law covers both practicing and non-practicing homosexuals because the law does not distinguish. 4) Force, Intimidation, or Undue Influence Q: What is force? There is force when in order to wrest consent, violence is employed. Q: What is undue influence?
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There is undue influence when a person takes improper advantage of his power over the will of another, depriving the latter of a reasonable freedom of choice. Q: What is intimidation? There is undue influence when one of the contracting parties is compelled by a reasonable and well-grounded fear of an imminent and grave evil upon his person or property, or upon the person or property of his spouse, descendants or ascendants, to give his consent. Note: The definitions of force, intimidation, and undue influence are the same as those applied in ordinary contracts. Q: What is the reason for these grounds? Vitiation of consent. Q: Can the force, intimidation, or undue influence be exercised by a 3rd person? YES. Just like in ordinary contracts, force, intimidation, or undue influence may be committed by a 3rd person. An example is a shotgun marriage where the father threatens you with a gun to marry his daughter. This is differentiated from fraud which must be committed by one of the parties to the marriage. Q: Is undue influence synonymous with reverential fear? No. An example of reverential fear is a case where X wants to please his parents and decides to marry the girl they like. In this case, there is no ground for annulment because X knew what he was entering into, and he still exercised his free will. Consent is not vitiated. Q: What kind of intimidation is a ground for annulment of marriage? Intimidation must be evil and imminent or based on a well-grounded fear. As such, one must make a distinction as to the nature and gravity of the intimidation. If the intimidation is slight, e.g. I will punch you, I will make sure that you dont graduate with honors, then it is not sufficient for the annulment of marriage. The threat of disinheritance is not a sufficient ground for annulment. Also, if intimidation has a legal basis, as when one is forced to marry a girl because of a threat to prosecute for rape, there would be no legal ground for annulment.
Note: A threat to disbar a person is sufficient to allow annulment of marriage if it has no legal basis. Thus, if the threat is used as a tool for blackmail (without any legal grounds or basis for such a threat) then annulment will not be allowed. Q: Who must commit the fraud, intimidation, or undue influence for it to be a ground? It must be committed by either the guilty spouse or a 3rd person. Q: Who should bring the action? The action may be brought by a friend of the injured spouse within 5 years from the time the cause ceases and may be ratified when the spouses freely cohabit after the cause has ceased or disappeared. 5) Impotency Q: What is impotency? Impotency is the inability to perform the marital act (S-E-X) because of some incapacity of one of the parties. It applies to both sexes. A woman can also be impotent, in the legal sense. Unlike the old Civil Code, the Family Code has a provision regarding relative impotency. A man is relatively impotent when he is impotent with regard to his wife yet potent with other women. In such case, annulment may be had. Q: What is the difference between sterility and impotency? Sterility is the inability to produce an offspring. Often a spouse who is sterile or barren will resort to adoption to have children. It is not a ground for annulment. On the other hand, impotency is the inability to have sex and is a ground for annulment. In men, for example, impotency is the inability to have an erection. Q: Is there impotency in women? Theoretically, women can always have sex. There are cases, however, when the vagina is so small as to prevent the entry of the penis. In such a case, the SC ruled that the marriage may be annulled. But that cases was decided a long time ago when appropriate technology did not yet exist. Now, such a defect can be cured through surgery, and there would not be a ground for annulment as the defect is not incurable. Nevertheless, the old case shows that the SC decided that a woman can be impotent if she cannot consummate the marital act because of a physical defect of her organ. Where there is no opening or if it were too small, such that the woman cannot have sex without excessive pain or injury, there may be ground for annulment.
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Moreover, since relative impotency is now the rule, the wifes vagina can only be too small in relation to the husbands penis. The marriage can be annulled if the opening is too small for the husband, even if it were just right for lesser, or rather, other men. Q: What if you were potent when the marriage was celebrated and then subsequently became impotent, what then? Unfortunately, impotency after the celebration of the marriage is not a ground for annulment, or even legal separation. Q: What if both parties are impotent? Can the parties file an action for annulment? Theoretically, there is no injured party, therefore there is no party authorized to file the action. However, it can be interpreted the other way around. Since both are impotent with respect to each other, either can file the action since each was injured by the other. The problem is that there is no jurisprudence on this. However, the basis of the ground is that the marital act is an essential marital obligation and if it cannot be done, there should be aground for annulment. Therefore either party can file the action. NOTE: Justice Sempio-Diy says that no party can file the action since there is no injured party. However if you look into the reason for getting married and the fact that one of the essential marital obligations is to perform the marital act, then either party can file the action since they are injured by such occurrence. Deans position is the second one. (They can still be potent with others.) Q: What is required in order for impotency to be a ground? Impotency must be continuous and incurable. Therefore, if it can be corrected by medication, ointments, creams, or surgery, then it is not incurable and is not a ground. Q: Who can file? 1. The injured party or the potent one can file the action for annulment. However, the party filing the case must prove the impotency. One can prove it thought the examination of doctors, but not through demos. Q: What if the spouse already knew of the impotency before the marriage? He can still bring the case for annulment. Knowledge in this case is not relevant since the law does not require you to be ignorant of such a fact. The
reason is that the impotency must be continuous and incurable. Besides, the spouse might have hoped things would get better. Q: Is it possible to ratify this defect through cohabitation? NO. The Family Code requires impotency be serious and incurable. Therefore there is no such thing as ratification based on this ground. Besides, the FC does not provide for ratification of marriages where one spouse was impotent at the time of the celebration of the marriage. Q: What if the penis was cut off a la Bobbitt? Magpusoy na lang kayo. Again, this is not a ground for annulment. The ground must exist at the time of the marriage, not during or after. 6) Serious and Incurable Sexually Transmissible Diseases Q: What is the difference between the sexually transmissible diseases in Art. 45 and 46? Article 45 The STD itself is a ground for annulment. The STD doesnt have to be concealed. The STD must be serious and incurable. Article 46 The STD is a type of fraud, which in turn is the ground for concealment. The STD must be concealed. The STD does not have to be serious and incurable.
1. 2. 3.
1.
2. 3.
Q: Give an example of an STD that is serious, incurable, and is often not concealed. AIDS. One can acquire it at the time of marriage without knowing. Without knowledge, concealment is not possible. And because of its seriousness and incurability, Article 45 will apply. Q: Who can file for annulment in case of sexually transmissible disease? The injured party (the healthy spouse) is the only one who can file the action. Q: What if both husband and wife are afflicted? In case both are afflicted, there is no injured party. The determination as to who is the injured party should be made from the time of the marriage and
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not at the time of the institution of the action. Therefore you cannot raise the defense that the other party cannot file the action since she had already been afflicted, and therefore, no longer an injured party. The 5-year prescriptive period is counted from the time of the marriage. For health reasons, this cannot be ratified by cohabitation. b. c. Who may bring action to annul; period Ratification Who can file Underaged party Parents & Guardians Insanity Sane spouse When Within 5 years after reaching 21 years Before the underaged party reaches 21 Before the death of the sane party Before the death of either party During lucid interval or after regaining sanity and before the death of the sane spouse Within 5 years from discovery of fraud Within 5 years from cessation of cause Within 5 years after the marriage Ratification Yes, cohabitation after reaching 21 years NO
Serious sexually transmissible disease Pendency of action
Healthy party
Within 5 years after the marriage
no, action prescribes
Ground Lack of parental consent
Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed. In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or confession of judgment. (88a) Art. 49. 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 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 to in Title IX. It shall also provide for appropriate visitation rights of the other parent. (n) Art. 212. In case of absence or death of either parent, the parent present shall continue exercising parental authority. The remarriage of the surviving parent shall not affect the parental authority over the children, unless the court appoints another person to be the guardian of the person or property of the children. (n) Custody of children Q: When we speak of custody of children, to whom do we refer? When we speak of custody of children, we refer to those below 18 years of age. Children of 18 years or above may go wherever they want. (In the case of minor children, we have said that the effect will have to be distinguished between the time of bringing the action and the time when the decree of nullity or annulment has been given. With respect to the custody of the children, if this is considered statutory, whatever arrangement between the spouses may be terminated if in fact the marriage is annulled or declared null and void. If the position is for the maintenance of the marriage, then the children will have to go back to the parents.)
only insane party can ratify during a lucid interval
Parents, guardians, relatives Insane spouse
Yes, cohabitation during a lucid interval
Fraud
Injured party
Force, Intimidation & Undue Influence Impotence
Injured party Potent party
Yes, cohabitation after knowledge of fraud yes, cohabitation after cause has disappeared no, action prescribes
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Q: During the pendency of the action of annulment or nullity of marriage, may custody of minor children be based on a written agreement between the spouses? YES. For purposes of those cases when the action for nullity or annulment is pending before the court, the first thing the court will look for is the written agreement between the parties with respect to the custody of the children. The court will respect the written agreement. Q: During the pendency of the action for annulment or nullity, what shall the court do if there is no written agreement? The court will make provisions for custody based on what is in the best interest of the children. It is possible that the parties will not agree on anything. Many of these cases are really very bitter fights. They really are very much in a fight and they cannot agree on anything, in which case, the court will make provisions for the custody of the children at the time the case is pending. The only criteria followed by the court is that which is in the best interest of the children. Q: During the pendency of the proceedings, what is the nature of the custody ordered by the courts? It is merely temporary custody of the children. Q: During the pendency of the action for annulment or nullity, will the court ask the children for their choice of parent? At this point, the court will not ask the children for their choice because nothing is permanent yet. Q: When will the court ask the children regarding their choice of parent? The choice of the children will be asked at the time the decision has become final and the drecree of nullity of annulment is issued. So once the decision is made for the marriage to be terminated, the court will make provisions or part of its decision will be for the purpose of arranging for custody of the children. Q: Are the courts obliged to ask the child to make a choice? No. Q: When the decree of annulment or nullity is issued, will the court ask for a written agreement between the spouses? No. The court will no longer ask for a written agreement between the spouses because this is also in conformity with the decision of the court. The
primordial consideration is what is in the best interest of the children, and in making the decision, the court will ask the children for their choice. Q: Must the court follow the choice of the children in granting custody? No. Even the court does ask, it doesnt necessarily have to follow the choice of the children. The court will try to give way to the choice of the children unless their choice of parent is not in their best interest. The child will be asked to choose if he is old enough to understand. Q: If the children are below 7 years of age, to whom shall their custody be given? If the children are below 7 years of age, they are presumed to have chosen their mother. They should not be separated from their mother unless she is unfit to take care of the children. Q: What is the reason for not separating the children from their mother? This is because of the bond that exists between the mother and the child. It is the mother who can best take care of her children. Q: What does unfitness mean? Unfitness is not determined by morality or wealth. Whether the mother is physically fit to take care of the children is normally based on health reasons. In later decisions of the court, moral fitness is invoked because of certain actions on the part of the mother. Q: Can custody be denied on ground of moral unfitness? Yes. In one case, custody was denied because the mother was living with the childs uncle (brother of the childs father). In this case, the court said that the child cannot grow up in that kind of environment. In another case, custody was also denied to the mother because she was a prostitute and she brought her customers to the house. Its all right to be a prostitute as long as she doesnt bring customers to the house. The moment she does, then thats a different story. It gives children the wrong impression. Q: In recent cases, what is the main consideration in determining fitness? The main consideration in recent cases has been whether the child can grow up with a normal attitude. In a place where multiple acts of immorality occur, the court would deny custody. The court must decide, using its discretion, what is in the best interest of the child.
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Q: If the child is less than 7 years old, custody will be awarded to the mother if there is no ground to declare her unfit. What happens when the child reaches 7 years of age? Can the judgment be changed? Yes. It is possible to change the judgment as long as the child has passed the mandatory age of 7 years. The husband may institute a case for custody of the children. In that case, the father may allege that it is in the best interest of the child that custody be turned over from the mother to him. Support of Minor Children and of the Spouses Q: When we speak of support, what kind of support do we refer to? Support can mean support before or after the termination of the marriage, or support of the spouses or of the children. Support: A. Support of Children a. b. B. Pending action for nullity or annulment After decree of nullty or annulment
same amount of support. It is dependent on the capacity of the spouses and on the needs of the children. Q: Does a judgment for support become final? Any judgment for support never becomes final because at any stage, the judgment can be changed by the court in the same case. These cases remain in the dockets of the court and may be changed. Q: May support be asked for in a separate action? May it be asked for in the same action for the declaration of nullity or annulment of marriage? An action for support may be in a separate action. If it is possible for one to institute a separate action, it is also possible for the court to make provisions for support in the action for declaration of annulment or nullity of the marriage. Q: is it possible for the spouses to agree on the support of the children? Yes, the court will assess any voluntary agreement for the support of the children. Once the written agreement is approved by the court then it becomes part of the judgment. Any time you wish to change it, you must then file the necessary pleading together with the necessary motion in court. Q: What must the court consider in granting support to the children? Regardless of who is at fault, judgment for support of the children will always be dependent on the resources of the spouses and the needs of the children. Q: During the pendency of the action for nullity or annulment of marriage, how shall the spouses be supported? GENERAL RULE: The spouses will have to be supported from the conjugal or absolute community property. There is no liquidation yet. Note that later Family Code provisions say that whatever they receive during the pendency of the proceedings is considered an advance on their share of the conjugal or absolute community property. Once the marriage is terminated, it shall be considered as an advance on their share. EXCEPTION: The right of the spouses to receive support depends on the provisions of the Rules of Court. Support will be denied if the evidence is strong that he/she is guilty of the cause of the annulment or nullity of marriage.
Support of spouses a. b. Pending action for nullity or annulment After decree of nullty or annulment
Q: During the pendency of the action for nullity or annulment of marriage, how shall the children be supported? In the case of the children, the children will have to be supported out of the conjugal partnership or absolute community property. There is no termination of the conjugal partnership or absolute community yet. Q: After the declaration of nullity or annulment of the marriage, how shall the children be supported? After the termination, support will continue, but it will be borne by the spouses. The children will have to be supported out of the separate properties of the spouses after liquidation. After liquidation, the decision of the court will always say that the children will be supported by both parents. If this is supposed to be equal, it must be proportionate to the income and properties of the spouses. We may have a case where the housewife has no income while the husband does. They cannot give the
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Q: Give examples wherein support may be denied to a spouse during the pendency of the proceedings. If the reason for the nullity of the marriage is that the wife was previously married, the 2nd marriage being therefore null and void. Should evidence of guilt be strong, for instance if the husband is able to present 2 marriage certificates as evidence of 2 marriages, then support can be denied even during the pendency of the action for nullity. The reason for this is that it is almost certain that the marriage will be terminated and that she is guilty of the cause for nullity. Based on the Rules of Court, the court may deny support pendente lite. There was also the case where the woman was guilty of adultery On the basis of the wifes final conviction of adultery, the court denied support pendente lite. Evidence was strong that she was guilty of the cause for legal separation. The same principle applies to declaration of nullity or annulment. Q: What is the basis of the action for the declaration of nullity or annulment is something involuntary? Will support pendente lite be denied? If you refer to impotence or insanity or something involuntary, no one is at fault. During the pendency of the proceedings, the spouses will be supported out of the conjugal or absolute community property. Q: After the termination of the marriage, how shall the spouses be supported? In case of brothers, sisters, or children, relationship is the basis of support. In the case of the spouses, the basis of support is the fact of marriage. The moment the marriage is terminated, there is absolutely no obligation to give support. In case of annulment of declaration of nullity, regardless of who is at fault, the marriage is terminated and there is no obligation to give support to the other spouse. Q: Is the rule the same in cases of legal separation? The rule is different for legal separation, where the marriage bond is not severed. 8. Procedure and Effects of Termination of Marriage
Note: After the termination of the marriage, the court will not allow written agreements of the parties because the written agreements during the pendency of the case are merely temporary. General Rule: Spouses are to be supported from the conjugal or absolute community of property Amount received considered advance on their share Exception: Rules of Court; Support denied to spouse guilty of cause of nullity or annulment and there is strong evidence of the same After decree: No obligation to give support Q: What are the other effects of the decree of annulment and declaration of nullity? What automatically flows out of the decree is the liquidation of the conjugal or absolute community of property. Liquidation must be held after the termination of the marriage. Q: Do you have to make a prayer for the liquidation of the conjugal or absolute community of property? Liquidation is automatic. Normally, court decisions make provisions for the liquidation of the conjugal or absolute community of property. Some decisions make a general statement that the conjugal or absolute community of property will be liquidated in accordance with the decision. Liquidation is a necessary consequence. Q: What shall be the effect if there is no liquidation of the conjugal or absolute community of property? You must liquidate, otherwise the subsequent marriage that you enter into will be null and void. Liquidation must be done whether it is on account of annulment or nullity of marriage. Q: What are the other effects of the decree of nullity or annulment of the marriage? Aside from liquidation, the delivery of presumptive legitime of the children is a necessary consequence.
NOTE: Please see page 93-A for a separate table on the effects of termination of marriage.
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Tuason v. CA FACTS: Mrs. Tuason filed a petition for annulment or declaration of nullity of her marriage with Petitioner, on the ground of psychological incapacity. Petitioner answered the complaint the suit resulted to a no-holds barred litigation. When Respondent rested her case, Petitioner failed to appear and was subsequently delcared in default. The Trial Court decided in favor of Respondent. Since no appeal was had, Respondent sought for the dissolution of the CPG. Petitioner opposed and sought relief from judgment ISSUE: WON a petition for relief from judgment is warranted? HELD: No. 1. The TC's decision became final and executory. There is no showing of: (a) fraud, accident, mistake or excusable negligence and (b) a meritorious defense or cause of action. 2. There is no violation of due process despite Petitioner's confinement or rehabilitation. The failure of his counsel to inform the court of this fact is not excusable and binding upon him. Likewise is his counsel's failure to inform him of the adverse judgment to enable him to appeal. 3. There was no need for the prosecutor to intervene since the court's declaration of his default. The prosecutor will only intervene to determine WON there is collusion or evidence fabricated, particularly if the Respondent of a case did not answer a complaint. In this case, Petitioner did reply to the complaint and actively participated in the case Ancheta v. Ancheta FACTS: Petitioner and Respondent were married but lived separately. Petitioner sought to dissolve the CPG and obtain a judicial separation of property. The judgment, conformable to a compromise agreement, was rendered where Respondent will vacate the house and have Petitioner and kids live there. Later Respondent wanted to marry again and filed for declaration of nullity alleging Petitioner was psychologically incapacitated. In the petition, he indicated Petitioner's old address. Thus summons was served to the old address, received by their son. The Sheriff did not indicate to the court of the substituted service; hence, Petitioner did not appear, declared in default and Respondent was able to obtain the declaration through ex-parte proceedings, without any objection from the Prosecutor. Petitioner filed to annul the order of nullity alleging (a) extrinsic fraud with regard to the address alleged and (b) lack of jurisdiction to render the decision. CA
dismissed the petition because Petitioner failed to avail of other available remedies ie, new trial, appeal and petition for relief, to name a few ISSUE: WON the order declaring nullity of marriage ought to be annulled. HELD: Yes. 1. Extrinsic Fraud - Petitioner must allege that the ordinary remedies are no longer available through no fault of hers. He must also justify for failure to avail of these remedies. In the case at bar, she failed to allege that these remedies are no longer available through no fault of her own. 2. Lack of Jurisdiction - The CA overlooked this ground since it was not stated as a cause of action. However, it was in the material allegations of her petition. It may be assailed at any time, directly or collaterally or by resisting judgment or final order in any action whenever invoked provided it is not barred by laches. A. Substituted Service - Modes of service should be strictly followed and substituted service is a derogation of the usual method. A cursory reading of the petition yields to a prima facie meritorious case. The Sheriff did not state the fact of substituted service or the impossibility to locate the Defendant [Petitioner in the case at bar]. B. Trial Court and Prosecutor - Prosecutor is the counsel for the state, to be ordered by the Court to object when there is collusion or fabricated evidence. He is the equivalent function of the defensor vinculi in Canon Law Yu v. Yu FACTS: Petitioner Eric Yu filed a petition for habeas corpus against his estranged wife Caroline for having allegedly withheld from him the custody of their minor child Bianca. Respondent Caroline filed a petition for declaration of nullity against petitioner. Subsequently, the petition for habeas corpus was dismissed by the CA. Meanwhile, petitioner filed his own petition for declaration of nullity of marriage and dissolution of the absolute community of property before the Pasig RTC, with prayer for the award to him of the sole custody of Bianca. Respondent argues that the Pasig RTC never acquired jurisdiction over the custody issue raised therein. She claims that for the Pasig court to acquire
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jurisdiction over the custody issue after the dismissal of the habeas corpus petition before the Court of Appeals, petitioner must re-plead his cause of action for custody and invoking said cause anew. ISSUE: WON the Pasig RTC acquired jurisdiction over the issue of custody HELD: The Pasig RTC acquired jurisdiction. By petitioners filing of the case for declaration of nullity of marriage before the Pasig RTC he automatically submitted the issue of the custody of Bianca as an incident thereof. After the appellate court subsequently dismissed the habeas corpus case, there was no need for petitioner to replead his prayer for custody for the custody issue in a declaration of nullity case is deemed pleaded. Section 21 of the Rule on Declaration Of Absolute Nullity Of Void Marriages and Annulment of Voidable Marriages provides that upon entry of judgment granting the petition, or in case of appeal, upon receipt of entry of judgment of the appellate court granting the petition, the Family Court shall proceed with liquidation, partition and distribution of the properties of the spouses, including custody, support of common children. The petition filed by petitioner for the declaration of nullity of marriage before the Pasig RTC is the more appropriate action to determine the issue of who between the parties should have custody over Bianca in view of the express provision of the second paragraph of Article 50 of the Family Code. This must be so in line with the policy of avoiding multiplicity of suits. Presumptive Legitime
legitimes, unless such matters had 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 Articles 102 and 129. Art. 43. The termination of the 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; (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 said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or in default of children, the innocent spouse; (3) Donations by reason of marriage shall remain valid, except that 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 bad faith as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and (5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession. (n) Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by reason of marriage
9.
Art. 50. The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and by Article 44 shall also apply in the proper cases to marriages which are declared ab initio or annulled by final judgment under Articles 40 and 45. 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 third presumptive
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and testamentary dispositions made by one in favor of the other are revoked by operation of law. (n) Art. 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 enforcement 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 of both of 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. (n) Art. 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 children's presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect third persons. (n) Q: How do you distinguish true legitime as used in succession from presumptive legitime as used in the Family Code? TRUE LEGITIME PRESUMPTIVE LEGITIME 1.) It is that part of the estate 1.) This comes from the of a deceased person separate assets of the which has to be parents after liquidation mandatorily set aside for and partition. the heirs. 2.) This is delivered to the compulsory heirs after death of a party, after succession opens. 2.) This is delivered to the heir after termination of the marriage before succession opens.
NOTE: Presumptive legitime is called presumptive because at the time the marriage is terminated either by decree of annulment or declaration of nullity, it approximates the amount of legitime the children would receive from their parents. Q: What is the basis of the computation of presumptive legitime? The presumptive legitime is computed based on the inventory and assets of the spouses as of the time of the termination of the marriage. Q: Outline the procedure in getting the presumptive legitime. PROCEDURE: 1. Get the total assets conjugal partnership or absolute community assets. 2. Liquidate the assets Prepare the inventory, then pay off the debts of the conjugal partnership or absolute community assets. Derive the net assets after payment of debts Proceed with the process of dissolution by giving each spouse his or her conjugal share. Each share then becomes the separate property of the spouse.
3. 4.
NOTE: The decree of annulment/declaration of nullity automatically requires the spouses to liquidate the assets. Otherwise, the subsequent marriage would be void. Q: Suppose out of liquidation of the conjugal partnership/absolute community property, each spouse gets P1,000 each. What is the presumptive legitime of the child? P1,000. To illustrate: husband wife a b x y Given the whole square as the total conjugal or community assets, after liquidation and partition, the husband technically gets the parts coded as a and x, while the wife technically gets parts b and y. We then get
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half of what each spouse gets and give that to the child. Computation shows that the total conjugal assets amount to P2,000 since each spouse gets P1,000. Get half of what each spouse gets and you get P500 from each spouse, to be given to the child as presumptive legitime. The kid therefore gets P500 + P500 = P1,000. Note: Presumptive Legitime does not take the place of the other assets which the child is supposed to get by reason of the termination of marriage of his parents. Ex. Child is also entitled to support even after the termination of the marriage. (This applies whether or not the kid is a minor.) Rule in support: The amount of support depends on the resources of the giver and the needs of the recipient. Q: Assuming the same facts in the above case, the presumptive legitime is P500 from the fathers assets alone. Where will the child get his support? Support will come from the income which the father will earn in the future. Q: Aside from presumptive legitime and support, what else would the child get from his parents by reason of the termination of their marriage? The child may also get some of the property by reason of forfeiture. Forfeiture Q: When can the child be entitled to forfeiture? It is possible that the marriage was terminated because one spouse is guilty of any of the grounds for annulment. Q: What kind of marriages does Article 43 refer to? This provision refers only to the automatic termination of subsequent marriages under Article 41 (an absent spouse who was declared as presumptively dead files an affidavit of reappearance). Therefore, the enumerated effects of Article 43 refer only to this kind of marriage. Q: But have these effects not been expanded to cover other void or voidable marriages? Yes. Article 50 paragraph 1 has expanded the applicability of these effects to other marriages, namely: 1. All marriages that have been declared void ab initio.
2.
Marriages annulled by final judgment under Article 40 and Article 45 (this refers to the grounds for annulling a voidable marriage).
Q: What does Article 43 (2) provide? 1. There must be a liquidation of the absolute community of property or conjugal partnership of gains once there is a termination of the subsequent marriage. 2. There must be a determination of whether one of the spouses was guilty of bad faith in contracting said subsequent marriage. This is important because if one of them was in bad faith then there should be a forfeiture of his/her share.
Q: What happens to the share of the spouse in bad faith? His or her share shall be forfeited in favor of the following in the order mentioned: 1. The common children (if there are common children, forfeiture will always be in favor of the common children) 2. 3. The children of the guilty spouse by a previous marriage The innocent spouse
Q: What happens if there is no spouse in bad faith? Then there will be no forfeiture. Examples of cases where spouses are not in bad faith are in cases of insanity, sexually transmissible diseases, and psychological incapacity. Q: What if both spouses were in bad faith? Then Article 44 should apply. Article 44 says that a subsequent marriage contracted by both parties in bad faith is null and void. And the effect of this marriage is that donations propter nuptias and testamentary disposition made by one in favor of the other are revoked by operation of law. Q: Does the provision on forfeiture apply to cases where both spouses are in bad faith? No. Article 43 (2) is very specific in stating that there shall only be a forfeiture in cases where either of the spouses are in bad faith. If both of the spouses are in bad faith then it should be Article 44 that should apply. And
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this article refers to only two effects: that donations propter nuptias and testamentary dispositions are revoked by operation of law. Furthermore, the concept of in pari delicto does not apply to annulment of marriages or declaration of nullity of marriages. It only applies to cases of legal separation. Q: How do you determine the amount to be forfeited? The share of the guilty spouse in the conjugal partnership/absolute community is in fact forfeited in favor of common children. Theoretically, the children could get the whole share of the guilty spouse. Q: What happens if after the forfeiture, the guilty spouse has no more assets? Where can the child get his presumptive legitime? If that is the case, then the child is not entitled to presumptive legitime. However, it is possible that the guilty spouses assets subject to forfeiture is not the entirety of his assets. Take for instance: If we are talking about the conjugal partnership of gains, only the profits are supposed to be forfeited. If the guilty spouse has separate property, the child can still claim his presumptive legitime. SUMMARY: 1. Upon termination of marriage, the spouses are bound to deliver the following to their children: a. b. c. Presumptive legitime share of each parent Support Forfeiture entire share of guilty parent goes to common children
1.
Forfeiture because it is possible that after forfeiture proceedings, one of the spouses would be left with nothing. Presumptive legitime computed on the remaining assets. Support we presume that the spouses would earn income even after termination of the marriage.
2. 3.
Q: What happens if later on, succession opens? Assume marriage is terminated in 1994 and the mother later dies in the year 2000. The assets of the parents after termination of marriage would either contract or grow. In computing the assets subject of legitime, there is the process of collation. Collation includes presumptive legitime as part of assets. You deducts presumptive legitime because the heir already received this beforehand. Assuming that the amount of assets upon termination of marriage is P1,000 and it grew to P2,000 upon the mothers death. The kid already got P500 as presumptive legitime in 1994. The kid will later get another P500 out of the balance in the year 2000. This is because the total legitime to be received by the child is of P2,000 which is P1,000. RULES FOR SUPPORT OF SPOUSES IN LEGAL SEPARATION After Decree of Legal Separation Guilty Spouse: The guilty spouse CAN or MAY be denied support. This is something that is discretionary for the court. Innocent Spouse: It is possible for the innocent spouse to get support from the guilty spouse. (This is something that may not be done in case of annulment or nullity of marriage where the marriage is terminated between the spouses.) Q: Under Article 41 of the Family Code (reappearance of the absent spouse), how is support and custody of the children obtained? With respect to support and custody of children, once the marriage is terminated these issues (custody and support) may not be litigated in the case for termination of marriage. Termination under Article 41 is automatic from the time of filing of notice of reappearance of the absent spouse. If they cannot, then the only thing that they can do is to file a separate proceeding. One will have to file an action for custody and prove that it is required for purposes of the support of the children. A separate proceeding must be filed for the custody or support of the children. Whoever wants custody must file
2. 3.
The above-mentioned benefits do not exclude each other. The children have the right to compel their parents to deliver to them their presumptive legitime.
The requirement of the Family Code is not just to set aside, but to deliver the presumptive legitime of children. Q: What is the order of preference?
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an action for the same. In case of support, you will have to file the necessary action. ANNULMENT OR NULLITY OF MARRIAGE SUMMARY OF RULE ON SUPPORT AND CUSTODY Support of Children: Pendente lite: Children to be supported from the conjugal or absolute community of property After Decree: Children to be supported from the separate properties of the spouses based on parents resources and childrens needs Support of Spouses: Pendente Lite: Art. 86. A donation by reason of marriage may be revoked by the donor in the following cases: xxx 3. When the marriage is annulled, and the done acted in bad faith In annulment of marriage, there is an inconsistency between Article 43 and Article 86(3) because Art. 43 makes the revocation mandatory while in Art. 86 revocation becomes merely directory. There is no inconsistency when it comes to void marriages since donations propter nuptias are automatically revoked. Art. 43 is, however, consistent with Art. 86 when it states that revocation of designation of the spouse as beneficiary in life insurance may be revocable. NOTE: If marriage is terminated by reason of Art. 41, delivery of presumptive legitime is not required because Art. 532 specifically covers decree of annulment/declaration of nullity of marriage only. Q: Is there a requirement of resignation in the delivery of presumptive legitime? The judgment of annulment or absolute nullity of marriage, the partition and distribution of the properties of the spouses, and the delivery of the childrens presumptive legitimes shallbe recoreded: a.) In the appropriate civil registry and b.) In the registries of property of the places where the real properties distributed and delivered are located. B. Legal Separation
INTRODUCTION In the Philippines, we do not allow divorce. We only allow legal separation. Legal separation means that the couple can live separately from each other because it is a separation from bed and board. However, this does not mean that a spouse can enter into a subsequent marriage because legal separation does not cut off the marital bonds. The spouses are still considered married to each other but there is no obligation to live as husband and wife. The effect of this is that if the wife goes out with other men or if the husband goes out with other women, there is still the danger of committing adultery or concubinage provided the elements of the crime are present. Therefore, legal separation allows the couple to live separately from each other but it does not allow them to contract a subsequent marriage, and neither does it allow them to get into extra-marital affairs. Furthermore, legal separation provides for the liquidation of the conjugal or absolute community of property. To this extent, it is the same as in declaration of nullity of marriages or in the annulment of marriages. Accordingly, they are all the same insofar as properties are concerned but as to personal relations, legal separation is quite different from the two because it does not cut off the marriage bonds. And finally, as to the causes of legal separation, the have to exist AFTER the celebration of the marriage. Unlike in annulment of marriages and declaration of nullity, the grounds therefore exist at the time of the celebration of the marriage. 1. I. Grounds
Art. 55. A petition for legal separation may be filed on any of the following grounds: II. (1) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner; III. (2) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation; IV. (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; V. (4) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned; VI. (5) Drug addiction or habitual alcoholism of the respondent; VII. (6) Lesbianism or homosexuality of the respondent;
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VIII.
(7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad; IX. (8) Sexual infidelity or perversion; X. (9) Attempt by the respondent against the life of the petitioner; or XI. (10) Abandonment of petitioner by respondent without justifiable cause for more than one year. XII. For purposes of this Article, the term "child" shall include a child by nature or by adoption. (9a) Repeated Physical Violence or Grossly Abusive Conduct Q: This ground really speaks of two grounds. What are they? 1. Repeated physical violence this means that in cannot be just one act of physical violence. It has to be repeated. How many times is repeated? There is no jurisprudence on this. But what is important here is that the act has been done a number of times and the act involves physical harm. 2. Grossly abusive conduct this, as distinguished from the above, does not refer to the number of times the act is committed. The ground can involve only ONE act but the act is GROSSLY abusive conduct. This may be an act which subjects the spouse to humiliation or shame. Ex. Incessant nagging by a spouse, humiliating a spouse in front of his/her friends or calling him/her names in front of his/her friends.
were not very specific in including actions against the guilty spouses child then they should not be included. She believes that this provision of law talks about the grounds for legal separation. The focus here is the marriage relations of the husband and wife. The grounds mentioned here should be committed against the innocent spouse, whether directly or indirectly. So if it is committed against the innocent spouse, obviously, there is a reason for separation from bed and board. If it is committed against the common children then this is an indirect offense against the innocent spouse. If it is committed against the innocent spouses own child then again there is an indirect offense against the innocent spouse. But when the guilty spuse commits it against his or her own child, there is really no offense against the innocent spouse. The guilty spouse should be held liable under a different provision of law. The child can institute a separate action against the guilty spouse. The latter can be deprived of parental authority. Therefore, there is a reason for not including it as a ground for legal separation. Be that as it may, the framers did intend that they should be covered. Therefore, their intention should prevail. last say: INCLUDED (intent of framers)
Physical Violence or Moral Pressure to Compel the Petitioner to Change Religion or Political Affiliation Q: This ground also talks of two grounds, what are they? 1. Physical violence to compel a change in religion or political affiliation As distinguished from the first ground mentioned above, the physical violence in this case need not be repeated. A single act of physical violence would be sufficient as a ground for legal separation. Moral pressure to compel a change in religion or political affiliation This refers to any other kind of pressure that is not physical. Ex. If the wife says to the husband, I will not sleep with you again for one year until you become an NPC member.
Q: These actions are committed against who? 1. The petitioner this refers to the innocent spouse 2. 3. A common child (legitimate AND illegitimate) The petitioners child
2.
Q: What happens if the act is committed by the guilty spouse on his own child but who is not a child of the innocent spouse? Certain commentators do believe that there is a ground for legal separation. This is based on the fact that the deliberations of the framers of the Family Code show that they intended to include them. The principle that the intention of the framers of the law should prevail is applied here. However, the law does not reflect this intention. It is the position of Dean Del-Castillo that since the framers of the Family Code
Q: If Marife subjects Happy to several beatings in order to convert him into the INK religino, can this be a ground for legal separation? Yes. This ground applies to all kinds of religion.
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Q: If Pitsy is a member of the Abu Sayaf and he beats his wife in order for her to become an Abu Sayaf follower, can this situation fall under this provision? No, because most people really consider them as bandits and not a political entity. (GAC?) Q: What if Chelo was pressured by her husband to transfer from LakasNUCD to NPC, can this be a ground for legal separation? Yes, because this involves moral pressure to compel the spouse to change her political affiliation. What is involved here is a change in political ideology. Q: What is Chelos husband merely pressured her to vote for Danding during the last presidential election but did not pressure her to become an NPC member, can there be a ground for legal separation? No. This is different from compelling one to change his/her political affiliation. Does it amount to the same thing? Q: Can the physical violence or moral pressure stated here be asserted on the children? No. This ground specifically mentions that the physical violence or moral pressure is exerted only on the petitioner. The children are not excluded. Attempt to Corrupt Petitioner or Child to Engage in Prostitution Q: The attempt to corrupt or induce into prostitution is directed against who? 1. The petitioner 2. A common child 3. The petitioners child intent to induce GSs kid *As to the children, it does not matter whether they are male or female. And, we should also include here the intention of the members of the Committee attempts to corrupt the guilty spouses own child.
Q: Can this ground apply to a situation where the wife compels the husband to have relationships with other women or when the husband compels the wife to have relations with other men? Yes, for as long as this is done for profit. Q: What if there was compulsion to do it? What if the spouses agree that the wife must sell herself in order for them to have money, is there still a ground for legal separation? Is this not equal to corrupt? No. It seems that the elements of compulsion and voluntariness are important here. Q: Can this apply to children forced to do pornographic movies? Yes. This provision should apply to all kinds of sexual acts done for profit. Q: Does corruption include begging? No. Begging is only a ground for suspension of political authority and not a ground for legal separation. The acts involved here should be directed to prostitution. Q: The law says attempt to corrupt into prostitution. Supposing there was a successful corruption into prostitution, would there still be a ground for legal separation? Yes. We should not construct the meaning of this provision to merely an attempt. This provision should include the other stages like frustrated and consummated. Final Judgment Sentencing Respondent to More Than Six Years Imprisonment Q: What are the requirements in order for this ground to apply? 1. The spouse must have been convicted by final judgment. 2. He must have been sentenced to more than 6 years imprisonment. *Many of the grounds for legal separation are criminal acts. But for purposes of legal separation, there need not be conviction except for this ground. So in all other cases like attempt on the life, physical violence, etc., a criminal suit is filed against the guilty spouse but for purposes of legal separation, the innocent spouse can prove those actions in the proceeding for legal separation and the latter being a civil case, proof beyond reasonable doubt is required. However, when we talk of this ground, conviction is
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necessary because the test is the penalty actually imposed. Which means that if there is no conviction then there is no penalty yet. Q: When should the conviction occur? At any time during the marriage. If the guilty spouse was convicted after the celebration of the marriage, the proper question to ask is, what is the penalty? and not what is the crime? If the penalty is more than six years then this should be a ground for legal separation. Q: Does the crime have to involve moral turpitude? No. It can be any crime provided the penalty imposed is more than 6 years. *If this sentence had been served and it is concealed and involves moral turpitude, this can be a ground for annulment of marriage. (old reviewer) Q: What is the meaning of the phrase even if pardoned? This refers to the pardon of the Chief Executive (the President) and not the pardon of the offended party or innocent spouse. A pardon merely allows the spouse not to serve the sentence but it does not erase the crime committed nor the sentence imposed. If the pardon was granted by the offended spouse, this can only be a ground for the dismissal of the action for legal separation. Drug Addiction or Habitual Alcoholism Lesbianism or Homosexuality Q: What does lesbianism or homosexuality mean? This means attachment by one spouse to the same sex for sexual fulfillment. Q: Distinguish these 4 grounds from those of void and voidable marriages. If the 4 grounds were present at the time of the marriage and has deprived the spouse of the capacity to perform the essential marital obligations of marriage then these can be grounds for declaration of nullity due to psychological incapacity (Art. 36). If the 4 grounds were present at the time of the marriage but were concealed from the other spouse, such shall constitute fraud which is the ground for annulment of marriage. (I cant decipher the notes in this part )
If the 4 grounds were not concealed from the other spouse or if they arose after the marriage then these can be grounds for legal separation. Q: What if the wife tolerates her husband who is a drug addict, can there still be a ground for legal separation? Yes. Toleration should be distinguished from consent. If the wife encouraged the husband to become a drug addict or if both spouses are drug addicts then the court should disallow the proceeding for legal separation to continuing. Contracting by One Spouse of Another Marriage Q: Why is there need to include this as a ground for legal separation? The law frowns on infidelity. Q: What if a Filipino goes to the US and contracts a subsequent marriage with an American but does not have sexual intercourse with her. Here merely married her in order to acquire a green card. They even live separately. Would there still be a ground for legal separation? Yes. Q: Even if there was no infidelity committed as when the Filipino tells his first spouse that he is doing this only tob e able to stay in the US and earn money for their family? Yes, because the law does not distinguish whether the second marriage was consummated or not. It is the act of contracting the marriage whether here or abroad which gives rise to the ground for legal separation. However, if it can be proved that the Filipino wife consented to such an arrangement or connived with the husband then the action should be dismissed. Q: If the husband did not contract a subsequent marriage but is only living with another woman, is there a ground for legal separation? Yes, but the ground is not contracting a bigamous marriage but rather sexual infidelity. (under a different ground) *If the subsequent marriage was celebrated abroad, criminal charges of bigamy cannot be filed here due to the principle of territoriality. However, the civil action for legal separation due to this ground can be filed here in the Philippines.
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Sexual Infidelity or Perversion Q: What does sexual infidelity mean? There is sexual infidelity when one of the spouses have sexual intercourse with another other than his or her spouses. This ground embraces adultery and concubinage. This ground takes the place of adultery on the part of the wife and concubinage on the part of the husband in the Civil Code. This change answers the demands of Filipino women for the elimination of the double standard between men and women since concubinage on the part of the husband is very hard to prove (the man usually just keeps a mistress in another place but goes home to his wife every evening) while one sexual intercourse with another man is already adultery on the part of the wife. Q: What is sexual perversion? It is something done outside of the ordinary. It is forced upon the other spouse or on another person. And the perversion must be sexual. This does not refer to any other kind of perversion. Q: What if there was no force committed that the act done was sexually perverted is there still a ground for legal separation? No. There must be no consent on the part of the spouse. * For these two grounds, the court is given leeway in determining whether the acts of the spouse fall under these two grounds and justify an action for legal separation. They may be determined on a case-to-case basis. Attempt Against the Life of the Other Q: If the husband merely beats the wife, it is enough to constitute an attempt against the life of the other? No, this ground presupposes an intent to kill. If the husband merely beats the wife, this may constitute physical violence and which if repeated may also be a ground for legal separation. Q: Does this ground include all the stages of commission of a felony? No. This includes all the stages of a commission except consummated as then there would no longer be a need to file for legal separation as the marriage has already been terminated by the death of the spouse.
Q: Must there be a previous conviction? No. It is not necessary for the spouse who attempted against the other to be convicted for the legal separation to be granted. As a petition for legal separation is civil in nature, what is necessary only is a preponderance of evidence and not proof beyond reasonable doubt. Q: Is there any exception to the rule? Yes, as when the act of the respondent spouse was justified, as when a husband catches the wife in the act of adultery. Lso when the respondent spouse acts in self-defense or in defense of a child against the unlawful aggression of the other spouse. Q: Is there a ground for legal separation if the act is the result of criminal negligence? No, because in this case there would be an absence of intent to kill. Abandonment of One Spouse by the Other for More Than One Year without justifiable cause without intent to return
Q: From what period is the abandonment counted for there to be a ground for legal separation? The period is to be counted from abandonment. Q: Can the spouse file for legal separation from the mere occurrence of the abandonment? No. It is necessary for the spouse to wait for a period of one year. Q: What must the nature of the abandonment be? It is necessary that the abandonment be without justifiable cause and without intention of returning. Q: If there is only physical separation between the spouses, but they still support each other and also support and maintain the children, is there abandonment? No, this case does not constitute abandonment.
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Q: Is there any other provision in the Family Code which provide for a shorter period of time for abandonment to be considered? Yes. A later provision in the Family Code provides that abandonment is presumed from an absence of three months. This case, however, does not give the abandoned spouse the right to file for legal separation. At this stage, your remedies are limited to asking for the judicial separation of property, transfer of administration and receivership. In short, after an absence for three months the abandoned spouses remedy is limited only to property relations. In order to have a remedy with respect to private relations, the abandoned spouse must wait for a period of one year. (some scribbles I cant decipher) 2. Procedure
Code previously required at least one year residency before one may avail of the remedy of legal separation from Philippine courts. Q: Who must institute the action? The FC is explicit that the action must be instituted by the innocent spouse. Thus, if both spouses have given ground for legal separation, they are both disqualified from instituting the action. For them to be disqualified, it is not necessary that they have given the same ground for legal separation. As there is no hierarchy in the grounds provided by law, so long as one has given ground for legal separation he or she should be disqualified from filing the action. It is not a defense that the ground given by the other be graver or shows a more despicable character. Q: What is the prescriptive period for filing an action for legal separation? The period is five (5) years counted from the occurrence of the cause. (knowledge not required) Q: Is the prescriptive period also counted from the time of the knowledge? No. Such was provided only in the Old Civil Code which has been eliminated under the FC. Q: What is the implication of the reckoning period for the filing of an action for legal separation? This implies that the period shall begin to run even if the offended spouse had no knowledge thereof whatsoever. Thus the five year period may lapse even if the other spouses was totally ignorant of the cause. Q: What is the procedure in an action for legal separation? same: cooling off period The procedure is almost the same in all aspects as that of an action for the declaration of nullity and annulment. The only difference is that it is only in an action for legal separation that there is the 6 (six) month cooling off period. Q: What must be done during this cooling off period? The judge must exert every available effort to make sure that the persons reconcile. It is also to afford the parties time to think about the implications of the action he or she has instituted.
Article 57. An action for legal separation shall be filed within five years from the time of the occurrence of the cause. Article 58. An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the petition. 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. Art. 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. (101a) Q: When can an action for legal separation be instituted? As a general rule, an action for legal separation may be instituted from the time the cause or ground occurs. The exception in this case of abandonment which erquires a period of one year from the abandonment before the action for legal separation may be filed. (some scribbles that I cant decipher) Q: Who may avail of the remedy of legal separation Anybody who has a ground for asking for legal separation may so institute the action. This action is not limited to Filipino citizens alone. The Old Civil
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Legal separation presupposes the existence of a valid marriage, thus it is not advisable to precede an action for annulment or nullity or marriage with an action for legal separation because the mere filing of an action for legal separation is deemed an admission of the existence of a valid marriage. Q: What will happen if one of the spouses during the cooling off period commits an act which constitutes as a ground for legal separation? This may then be raised as a defense by the other spouse. The necessity that the action be instituted by an innocent spouse does not contemplate only of the period before the filing of the action. The spouse who initiated the action must be innocent even during the intervening period. Q: Is the court prohibited from making any actions in the case during the cooling off period? No. The court can issue injunctive orders, order the giving of support and such other incidental matters not dealing with the main issue of legal separation. Q: What is the effect of the absence of a cooling off period to the decree of legal separation? decree void The absence of a cooling off period shall be a ground for the declaration of nullity of the decree. It is a procedural requirement which if not followed may be a ground for reversing the judgment in the action. Q: When can the action be set for hearing? It is only when the judge has made a determination that there is no possibility of reconciliation between the parties that the action is set for hearing. Q: What is the duty of the fiscal in actions for legal separation? It is the duty of the fiscal to ensure that there is no collusion between the parties. He must submit a report to the effect that there is no collusion between the parties. Q: What if the fiscal finds that there is collusion between the parties? This is a ground for the dismissal of the action. Q: When can the hearing proper be held?
The hearing proper can be held only after the termination of the cooling off period and after the fiscal has submitted a report to the effect that there is no collusion between the parties. Q: Can a decree of legal separation be granted based on a stipulation of facts or a confession of judgment? No. As in the case of an action for the declaration of nullity of marriage and annulment, a decree of legal separation cannot be granted based on a stipulation of facts or a confession of judgment. refuses to live with the other spouse depsite dismissal of action for legal separation penalty: ground for denial of the right to receive support if refusal for (cant decipher)
Pacete v. Carriaga FACTS: A and B are spouses, and A (husband) married C. A acquired vast properties and placed them under his, C's or their children's names. B filed this case to (1) Nullify the A and C marriage and (2) be legally separated with A. In the case, A and C twice asked for 30-days extension. In the second motion, the court granted 20 days. Hence on their third request (for 15 days) the Court denied the motion and declared them in default - granting the prayer of B. Before the SC via petition for certiorari, A and C seek to reverse the default order ISSUE: WON the default order ought to be reversed HELD: Yes. 1. RULE the proper remedy is either to appeal from the judgment by default or file a petition for relief from judgment. EXCEPTION: petition for certiorari when the default order is improperly declared, or even when it is properly declared, where GAD attended the declaration. 2. Court to order the Prosecutor to intervene. Prosecutor to investigate if collusion exists or evidence is fabricated. In legal separation, the case will not be tried before 6 months have elapsed since filing (cooling off period) 3. Petitioner prayed for legal separation. That other remedies, whether principal or incidental, have likewise been sought in the same action cannot dispense, nor excuse compliance, with any of the statutory requirements. 3. Defenses
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Art. 56. The petition for legal separation shall be denied on any of the following grounds: (1) Where the aggrieved party has condoned the offense or act complained of; (2) Where the aggrieved party has consented to the commission of the offense or act complained of; (3) Where there is connivance between the parties in the commission of the offense or act constituting the ground for legal separation; (4) Where both parties have given ground for legal separation; (5) Where there is collusion between the parties to obtain decree of legal separation; or (6) Where the action is barred by prescription. (100a) Q: What must be done in order for such defenses be appreciated by the court? These defenses may be raised either in the answer or at anytime before a judgment is made on the action. Q: What if a spouse who does not file an answer to an action for legal separation filed by the other spouses against him? The court may dictate the other spouse to file an answer. In actions for legal separation, there can be no judgment based on the default of the other. Where the Aggrieved Party has condoned the offense or act complained of Q: What is the meaning of condonation for purposes of legal separation? Condonation is an act of forgiveness. As before one may forgive, the act must have arleady been committed thus this is manifested only after the commission of the ground. Remember that the act of the condonation must be for each and every cause. Thus each sexual intercourse by the wife with another man is a separate act
of adultery and condonation of one act by the husband does not necessarily imply condonation of the other acts. There is no such thing as blanket condonation. You can only forgive specific actions which have already been done and not those which are yet to be done. Q: How is the condonation given? Condonation may either be express or implied. Q: What is the case of an implied condonation? continued cohabitation continuous support
Continued habitation and continuous giving of support after knowledge of the ground has been considered as acts of condonation. Q: Voluntary sexual intercourse with the guilty spouse after full knowledge of the offense has been deemed as condonation. When is not deemed so? There is no condonation if the purpose of the sexual intercourse was a) to save the marriage and maintain harmony b) for purposes of attempting reconciliation but the attempt was unsuccessful Q: Does living together after discovery of the commission of a ground for legal separation necessarily imply condonation? presumably yes, but No. The fact of living together under one roof always give rise to a presumption of cohabitation. But if it is proven that even if the spouses live together, they stay in separate rooms, sleep on different beds, the presumption is rebutted. Q: If the guilty spouse leaves the conjugal home after his or her deeds were discovered and the innocent spouse does not actively look for him or her, is this case of condonation? No, it is the duty of the spouse to return home. Where the Aggrieved Party has Consented to the Commission of the Offense or Act Complained of manifested before commission of the ground
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Q: What is the meaning of consent for purposes of legal separation? It is manifested before the commission of the ground for legal separation. It must be a consent for the specified ground relied upon in the action for legal separation. Q: How is consent given? Consent may either be express or implied. Q: What is a case of an express consent? When a wife agrees to allow the husband to sleep with other girls. Q: What is the nature of such an agreement? Agreements of this character are void and cannot be enforced against the other spouse. It cannot be raised as a defense in a criminal action for adultery or concubinage. But for purposes of legal separation this type of agreement can be used as a defense in an action for legal separation. Q: What does implied consent presuppose? knowledge Implied consent presupposes knowledge. One cannot consent to something he or she does not have knowledge of. Q: What if one of the spouses is gay and such was known to the other at the time of the marriage, can the normal spouse file an action for legal separation? In this case it is clear that one cannot file an action for annulment of marriage on the ground of fraud as there was no concealment as to the real character of the spouse. It may however be used as a ground for legal separation. Knowledge at the time of the marriage is not considered as consent when the normal spouse married the gay spouse relying on the promise of the latter that he will turn straight. Connivance & Collusion Connivance participant Collusion - appearance Connivance involves some participation from the part of the other spouse, whether directly or indirectly. Collusion appears only after and this does not presuppose an existence of a ground for legal separation. There is collusion when the spouses only agree to make it appear that there is a ground for
legal separation when there is actually none or when there is a suppression of evidence of a valid defense. Q: Differentiate connivance and entrapment. Connivance is a case where for example the husband hires a detective to sleep with his wife in order to have evidence for adultery. Entrapment is a case where the husband make it appear to the wife that he is leaving for a week and then surprises the wife in the act of sexual intercourse with another man. Mutual Guilt Q: What is mutual guilt? This is a case where both spouses have been given ground for the filing of an action for legal separation. Q: For this defense to be appreciated, must the ground given be of the same magnitude? No, it is not necessary that the grounds be the same or at least of the same magnitude. For purposes of legal separation all grounds are equal. Prescription (See Previous Discussion) 4. a. Liquidation Effect of death of one of the parties
LAPUZ V. EUFEMIO FACTS: Eufemio S. Eufemio and Carmen Lapuz lived as husband and wife from 1934 to 1943 when Eufemio abandoned Carmen. They had no children but they acquired properties during their marriage. In 1949, Carmen discovered Eufemio cohabiting with another woman, Go Hiok. In 1953, Carmen filed a petition for legal separation and prayed that Eufemio be deprived of his share of the conjugal partnership profits. In 1969, while this case was still pending, Carmen died in a car accident. Eufemio moved to dismiss. ISSUE: Should the petition be dismissed? HELD: YES. An action for legal separation which involves nothing more than bed-and-board separation is purely personal. As such, the death of one of the parties to the action causes the death of the action itself. Moreover, in
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Art. 108, the Code allows the spouses to reconcile and stop the proceedings or even rescind a decree already rendered. Even if this case involves property rights, since these property rights are intransmissible, they cannot survive if the plaintiff dies prior to this decree. These rights are mere effects of a decree of separation, their source being the decree itself. Without the decree these rights do not come into existence. These claims are merely rights in expectation. Macadangdang v. CA FACTS: Filomena Gaviana Macadangdang and Antonio Macadangdang got married in 1946 after living together for 2 years. Their business grew from a humble sari-sari store to an extensive empire engaged in merchandising, trucking, transpo, rice and corn mill stripping, etc. In short, they got really rich. By the time this action was filed, they had 6 kids. After years of wealth and luxury, their relationship worsened. Both accused each other of having extramarital affairs. Married life became intolerable and they separated in 1965. The wife went to Cebu. Later, she went back to Davao and discovered the illicit affairs of her husband. She then initiated a suit for legal separation. The trial court granted said legal separation ordering the husband to pay P10K as support for the wife and the children until an administrator could be appointed to take care of the conjugal properties prior and pending liquidation. Several motions objecting to this was made but the court denied these and ruled in favor of the wife. The husband appealed to the CA. The CA dismissed this appeal. Hence, the case was brought before the SC. Pending the appeal to the SC the husband died. His counsel moved to dismiss the case against him. The wife agreed in principle. ISSUE: Whether the death of the husband rendered the case moot and academic HELD: NO. Note that the lower court had resolved only the issue of legal separation and reserved for supplemental decision the division of the conjugal properties. The decision as regards granting the decree of legal separation is not compatible merely because no liquidation was made. The decision granting legal separation has become final and executory since the law explicitly and clearly provides for the dissolution and liquidation of the conjugal partnership of gains or the absolute community of property as among the effects of the final decree of legal separation. Note that Art. 106
of the Old Civil Code mandates the dissolution and liquidation of the property regime of the spouses upon the finality of the decree of legal separation. Such liquidation and dissolution are necessary consequences of the final decree. This legal effect automatically follows as an inevitable incident. American jurisprudence held that the provisions of the decree of legal separation should definitely and finally determine the property rights and interests of the parties. Furthermore, it has been held that the settlement of some property rights between the parties is an incident of every decree of divorce where there is any property involved. Therefore, the division of the conjugal properties is a mere incident of the decree of legal separation that has become final. The conjugal partnership is automatically dissolved by means of the final decree. Q: What is the difference between the Lapuz case and the Macadangdang case? The difference lies in the time when the spouse died. In Lapuz, the spouse died before a decree of separation had been issued by the trial court. Thus, before the judgment of the trial court could be reversed, the plaintiff-spouse died. As such, the action for legal separation beig purely personal, the action could no longer continue. In any event, the mariage having terminated, the case would be moot and academic. The only reason the father of the wife wanted to continue the action was to obtain a liquidation of the conjugal properties. Remember, one of the effects of a decree of legal separation. In addition, the guilty spouses share in the liquidation is forfeited in favor of either the common children, the children of the guilty spouse, or the innocent spouse, in that order. In the case of Lapuz, there were no common children and neither were there any other children to speak of. Thus, had the action for legal separation continued, the wifes share in the conjugal properties would have been the whole thing i.e., her own share plus the share forfeited by her husband. Then, the wife having died, and the husband being disqualified from succeeding by testate or intestate succession, the parents would have inherited the entire thing. That was why they wanted to continue the legal separation case. To illustrate: (1) Shares of husband and wife if action continued: Share of husband
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(Forfeited in favor of wife) (50%)
Share of wife (50%)
(2) Shares of husband and wife because action was terminated: (due to death) Share of the husband in the Conjugal Assets
NO. Under Article 63(4) the offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. Although the Dean discussed some things in her lecture to the effect that the husband being a guilty spouse disqualified him from inheriting under the laws of succession, i.e., by giving ground for disinheritance or by being an unworthy heir, all that needs to be done is to look at Art. 63(4) for the answer. But, it must be remembered that while all testamentary provisions in favor of the guilty spouse are revoked by operation of law, according to SempioDy, this applies to testamentary provisions existing at the time of the decree of legal separation is issued. Later on, if the innocent spouse makes another will which contains provisions in favor of the guilty spouse, it is perfectly valid. 5. automatic Effects of legal separation pendente lite/after finality
Share of wife Husbands share as surviving spouse
As it was, the SC ruled that these property rights arising from legal separation were merely inchoate rights, i.e., mere expectations. These were not considered as being transmissible by nature to the parents of the wife. The cause of action was not one which survived the death of the wife. The liquidation of the conjugal assets would have to be done in the proceedings for the settlement of the wifes estate. On the other hand, in the Macadangdang case, the plaintiff spouse had died after a decree of legal separation had been issued. What was at issue was the need to liquidate the conjugal property. The SC held that since the decree of legal separation had already become final, the death of the spouse did not render the case moot and academic. The case had already been decided and the defendant spouse had been found by the trial court as having given cause for legal separation. According to the SC, the liquidation of the conjugal properties was but a mere incident to the action for legal separation and is but an effect of the issuance of a decree of legal separation. Therefore, once a decree is issued and becomes final, the results thereof are considered as mere incidents. Thus, the death of one of the spouses after the decree has become final does not result in the dismissal of the action. The liquidation of the properties and the other effects of the decree may still be determined by the court. Q: But couldnt the husband in the Macadangdang case still inherit from the wife, since he is a surviving spouse?
Art. 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. (104a) pending state
Art. 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. (105a) Q: What are the effects of legal separation? children conceived before/after legal separation legit children conceived after annulment illegit even if proven to be fathered by the husband and wife voluntary community voluntary dissolution; can only be revived once (1) The husband and wife are entitled to live aparat. Thus, the husband has no right to sexual intercourse with his wife, and if he forces himself upon her, he can be charged with rape.
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This is of course merely a temporary measure, the continuation of which depends on the outcome of the action for legal separation. On the one hand, if the action is dismissed the wife or husband should return to the conjugal dwelling. But, they cannot be compelled to do so. The consequences of refusing to return to the dwelling could be the loss of the right to demand support or even damages as against the spouse who refuses to return. On the other hand, if the decree of legal separation is issued, the entitlement to live separately is made permanent, unless the spouses reconcile. (2) With respect to the administration of the conjugal or community properties, the spouses can agree in writing as to who will be the administrator thereof. Otherwise, the court will determine who will be the administrator. (3) CUSTODY OF MINOR CHILDREN The spouses can agree in writing as to which of them will have custody during the pendency of the case. In the absence of an agreement, the court will issue an order providing for the custody of the children. At this point, there is no preference as to which spouse will be granted custody. The court will decide on the basis of the best interests of the child. (4) SUPPORT The general rule is that the support of the spouses will come from the absolute or conjugal property because the guilt of the defendant spouse has yet to be established. The exception is found in the Rules of Court. Lerma v. CA FACTS: On 18 November 1969, Concepcion Lerma instituted proceedings for legal separation from her husband Teodor, charging that he had committed concubinage. At the time she filed the case, there was a pending criminal case for adultery against Concepcion which had been filed by Teodoro. During the pendency of the legal separation case, Concepcion moved for, and was granted support pendente lite. Teodoro objected on the ground that the pending adultery case against Concepcion should be considered as a basis to deny her motion to support pendente lite. ISSUE: Is a charge of adultery sufficient basis to deny a spouse support pendente lite during an action for legal separation?
HELD: YES. The Supreme Court has held in the case of Quintana v. Lerma (24 Phil 285) that adultery is a good defense against an application for support pendente lite. Under the Rules of Court, in fact, the court is obliged to make a preliminary finding on the possible outcome of the case in determining whether support pendente lite is applied for. The SC emphasized that the right to separate support or maintenance presupposes the existence of justifiable cause for the spouse claiming the right to live separately. Q: In actions for annulment or nullity of marriage, support granted during the pendency of the proceedings are considered as advances of the share of the spouses in the conjugal or community property. Does the same hold true in actions for legal separation? If a decree of legal separation is issued, it is the opinion of the Dean that during the liquidation of the properties, the support which the spouses received during the pendency of the action should be considered as advances from their share. It goes without saying that if the decree is not issued, there is no liquidation to speak of. After Finality live separately ACP/CPG dissolved & liquidated forfeiture Custody disqualified: from intestate succession; testate provisions revoked & DL
Art. 63. The decree of legal separation shall have the following effects: (1) The spouses shall be entitled to live separately from each other, but the marriage bonds 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 the conjugal partnership, which shall be forfeited in accordance with the provisions of Article 43(2); (3) The custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of Article 213 of this Code; and
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(4) The 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. (106a)
revoked by operation of law. If, however, the innocent spouse subsequently makes a new provision for the guilty spouse in his or her will, it is valid. Q: Without a decree of legal separation, will the fact that the spouse was convicted of adultery or concubinage disqualify him or her from inheriting from the other spouse? According to Sempio-Dy, this would not disqualify the convicted spouse. Article 1032 of the Civil Code does not mention adultery or concubinage as a basis for making an heir unworthy to succeed. Moreover, Article 1002 provides that in case of a legal separation if the surviving spouse gave cause for legal separation, he or she shall not have any of the rights to intestate succession. Thus, there must be a decree of legal separation before unworthiness as an heir may exist. Q: Can the wife drop her husbands family name after the decree of legal separation is issued? NO because the marriage is not terminated. Sempio-Dy cites the case of Laperal v. Republic (6 SCRA 357) which held that wife has been granted legal separation cannot petition to be allowed to revert to her maiden name. To allow the wife to do so would give the impression that she is no longer married when in truth she still is. Art. 64. After the finality of the decree of legal separation, the innocent spouse may revoke the donations made by him or by her in favor of the offending spouse, as well as the designation of the latter as 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. 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 effect 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 become final. (107a) Q: Are donations proper nuptias and designations in insurance policies in favor of the guilty spouse automatically revoked in cases of legal separation?
Q: What are the effects after the decree of legal separation has been issued? LOOK IT UP! Just kidding. (1) The spouses are now entitled to live separately for good. But since the marriage is not terminated, the obligation to mutual fidelity subsists. If either party gets married again, he or she commits adultery or concubinage, respectively. In addition, the wife cannot be compelled to have sexual intercourse with the husband. If the husband and wife start living together again, the Dean said that this would amount to the annulment of the decree of legal separation. This may be true, but until the spouses actually file a joint manifestation under oath to that effect with the court which issued the decree of legal separation, the decree is not set aside. (2) CUSTODY OF MINOR CHILDREN The custody of the children is given to the innocent spouses, except for the children under seven years of age who are to remain in the custody of the mother as a general rule. So even if the wife is the guilty spouse, the children under 7 years of age stay with her, unless the court finds that she is unfit to care for them. (3) SUPPORT: Since the marriage is not terminated, the basis for the right to support still exists. As a general rule, however, is that there is no obligation to give support after the decree is issued. The court MAY require the guilty spouse to support the innocent spouse. This is not automatic and is left to the discretion of the court. Of course, the children will continue to receive support from the separate properties of the spouses. Q: Is the guilty spouse entitled to legitime from the innocent spouse? NO. The guilty spouse is automatically disqualified from succeeding by intestate succession from the innocent spouse. As we have stated above, the provisions in the innocent spouses will in favor of the guilty spouse are
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insurance 5 years also nope! NO. Unlike in the case of annulment or nullity of marriages, there is no doubt that a decree of legal separation only entitles the innocent spouse to revoke the donation which he or she made to the guilty spouse. Article 64 uses the word MAY and thus the choice is with the innocent spouse. Of course, the revocation of donations proper nuptias must be done within 5 years from the date of the decree of legal separation became final. Also, with respect to donations, the revocation must be registered in the proper registries of property in order to affect third parties. With respect to designations of the guilty spouse as a beneficiary in an insurance policy, the innocent spouse may revoke the same even if the designation is considered irrevocable. Also, there is no prescriptive period for the revocation of the designation in the insurance policy. The same may be revoked as long as the policy is ineffective. Sabalones v. CA FACTS: Samson T. Sabalones was an ambassador , married to Remedios GaviolaSabalones. When Sabalones retired in 1985 and came back to the Philippines but not to his wife and their children. Four years later, he filed an action for judicial authorization to sell a building and lot located at #17 Eisenhower St., Greenhills, San Juan, Metro Manila, belonging to the conjugal partnership. In her answer, his wife opposed the authorization because she and the children were dependent on rentals from another conjugal property for support. She also informed the court that he had not returned to his legitimate family and was instead maintaining a separate residence with a second wife, Thelma Cumareng and their three children. In her prayer, she asked the court to grant the decree of legal separation and order the liquidation of their conjugal properties, with forfeiture of her husband's share therein because of his adultery. The court decreed the legal separation of the spouses and the forfeiture of the petitioner's share in the conjugal properties, declaring as well that he was not entitled to support from his respondent wife. This decision was appealed to the respondent court. Pendente lite, the respondent wife filed a motion for the issuance of a writ of preliminary injunction to enjoin the petitioner from interfering with the administration of their properties in Greenhills and Forbes Park. CA granted the preliminary injunction.
The petitioner now assails this order, arguing that since Art. 124 of the Family Code provides for a joint administration of the conjugal properties by the husband and wife, no injunctive relief can be issued against one or the other because no right will be violated. He also notes that the CA failed to appoint an administrator of the conjugal assets as mandated by Art. 61. ISSUE: WON the wife may be allowed to continue with her administration pending the appointment of an administrator over the whole mass of conjugal assets HELD: The wife may thus be allowed. Art. 124 does indeed grant to the spouses joint administration over the conjugal properties. However, Article 61 states that after a petition for legal separation has been filed, the trial court shall, in the absence of a written agreement between the couple, appoint either one of the spouses or a third person to act as the administrator. While it is true that no formal designation of the administrator has been made, such designation was implicit in the decision of the trial court denying the petitioner any share in the conjugal properties (and thus also disqualifying him as administrator thereof). That designation was in effect approved by the Court of Appeals when it issued in favor of the respondent wife the preliminary injunction now under challenge. The primary purpose of the provisional remedy of injunction is to preserve the status quo of the things subject of the action or the relations between the parties and thus protect the rights of the plaintiff respecting these matters during the pendency of the suit. The wife has been administering the subject properties for almost 19 years now, apparently without complaint on the part of the petitioner. In her motion for the issuance of a preliminary injunction, the respondent wife alleged that the petitioner's harassment of their tenant at Forbes Park would jeopardize the lease and deprive her and her children of the income therefrom on which they depend for their subsistence. These allegations, none of which was refuted by the husband, show that the injunction is necessary to protect the interests of the private respondent and her children and prevent the dissipation of the conjugal assets. 6. Reconciliation effects
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Art. 65. If the spouses should reconcile, a corresponding joint manifestation under oath duly signed by them shall be filed with the court in the same proceeding for legal separation. (n) Art. 66. The reconciliation referred to in the preceding Articles shall have the following consequences: (1) The legal separation proceedings, if still pending, shall thereby be terminated at whatever stage; and (2) The final decree of legal separation 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. The court's order containing the foregoing shall be recorded in the proper civil registries. (108a) Art. 67. The agreement to revive the former property regime referred to in the preceding Article shall be executed under oath and shall specify: (1) The properties to be contributed anew to the restored regime; (2) Those to be retained as separated properties of each spouse; and (3) The names of all their known creditors, their addresses and the amounts owing to each. The agreement of revival and the motion for its approval shall be filed with the court in the same proceeding for legal separation, with copies of both furnished to the creditors named therein. After due hearing, the court shall, in its order, take measure to protect the interest of creditors and such order shall be recorded in the proper registries of properties. The recording of the ordering in the registries of property shall not prejudice any creditor not listed or not notified, unless the debtor-spouse has sufficient separate properties to satisfy the creditor's claim. (195a, 108a)
Q: How is legal separation different from other cases like declaration of nullity or annulment? effect of reconciliation (vis-a-vis to children) still legitimate, joint custody, receive support: o revival of property regime from the ACP/CPG o separation of property after leg sep fixing the resources of the respective spouses Unlike other cases, a decree of legal separation never becomes final. The records of the case will always remain with the court in which it was tried because at any stage, even after the so-called finality of the judgment (final in a sense that there is no more appeal), one can still make additional filings and there can still be additional effects which can be felt after the issuance of a decree of legal separation. One of these is reconciliation. Q: Is reconciliation is different from mere condonation. Reconciliation is more than just forgiving. It involves forgiving and forgetting and getting back together again as if nothing happened. It is possible for a spouse to condone what the other has done but their relationship will never be the same again. In reconciliation, however, aside from forgiving, the parties also decide to live together just like the time before the issuance of a decree of legal separation. Q: What is the effect of reconciliation on the proceedings on the decree of legal separation? 1. If the spouses reconcile after the issuance of a decree of legal separation, the decree will be rescinded, although the separation of property or any forfeiture of the share of the guilty spouse already effected shall subsist unless the parties agree to revive their former property regime. 2. If the spouses reconcile after the issuance of a decree of legal separation, the decree will be rescinded, although the separation of proerpty or any forfeiture of the share of the guilty spouse already effected shall subsist unless the parties agree to revive their former property regime. Q: After the spouses have reconciled, can they still file an action for legal separation against the other? Yes. After reconciliation, if one of the spouses commits another act constituting a ground for legal separation, the innocent spouse can file another action for legal separation based on the new ground.
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Q: In order for the court to rescind the decree of legal separation, it has to be advised of the fact of reconciliation. How do the parties inform the court of the fact of reconciliation? The law requires the parties to submit a joint manifestation under oath duly signed by them. The joint manifestation must be filed in the court which issued the decree of legal separation or where the action is pending. Thereafter, the court will issue a decree rescinding the decree of legal separation. Q: What will happen if the parties do not file a joint manifestation? There can be no formal declaration of the rescission of the decree of legal separation. Q: What will happen if the parties do not file a joint manifestation? There can be no formal declaration of the rescission of the decree of legal separation. It is however incorrect to say that they are still legally separated if they do not file a joint manifestation because truthfully, they should be considered as being married and no longer legally separated in view of the reconciliation. The formality of filing a joint manifestation under oath should only be confirmation that the parties have in fact reconciled and will only be the basis for the court to issue a formal decree for rescission of legal separation. The fact of reconciliation is the one which actually rescinds the decree of legal separation. (Note: According to Justice Sempio-Dy, however, it is only upon the issuance of a court order setting aside the decree of legal separation that said decree becomes ineffective.) Q: Is there a need to register the court order setting aside the decree of legal separation? Yes. The court order setting aside the decree of legal separation shall be recorded in the civil registry where said decree was entered, as well as the civil registry of the place where the parties reside, if they have changed residence after the decree. rescission should also be recorded
Q: What is the effect of the reconciliation between husband and wife on their property relations? 1. The separation of property between the spouses and any forfeiture in the share of the guilty spouse shall continue to subsist after the reconciliation, unless the spouses agree to revive their former property regime. If the spouses agree to revive their former property regime, they shall execute an agreement under oath specifying: a. the properties they are controlling anew to the restored regime; b. the properties retained by each spouse as separate property; c. the names and addresses of all known creditors of each spouse, the amounts owing to each, and the liens held by each, if any. The spouses should then submit to the court the agreement of revival together with a motion asking for its approval. Copies of said agreement and motion shall be furnished the creditors named therein. After due hearing, the court shall issue an order approving the agreement but it shall take measures to protect the interest of the creditors named therein. The court order approving the parties agreement shall be recorded in the proper registries of property in all the places where the spouses have properties. Such recording, however, shall not affect creditors who have not been notified of the proceedings.
2.
3. 4. 5.
Q: After the issuance of a decree of legal separation and the liquidation of the absolute community or the conjugal partnership, there will be separation of property. In case of reconciliation, will the former property regime be automatically revived? No. The revival of the former property relations is not automatic. The spouses will have to file the necessary pleading in court to inform it that they are reviving their former property regime. Q: Is it possible for the parties to reconcile and have the decree of legal separation rescinded without the old property regime? Yes, it is not mandatory to bring back the properties to the former property regime. The parties can opt for a rescission of the decree of legal separation without however disturbing the regime of separation of property. Once the
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community of property has been liquidated, there is no obligation on their part to go back to the absolute community of property. Q: If the spouses decide to go back to absolute community or conjugal partnership, what will happen to the properties which were liquidated and have become separate properties after the issuance of the decree of legal separation? If the spouses want to revive their old property regime, their properties will have to be contributed anew to the conjugal or absolute community. The spouses may choose which properties they may want to contribute anew. Those which are not contributed anew remain to be separate properties of the spouses. Q: Are the spouses required to seek court approval in case they want to revive their former property regime? Yes. The revival of the old property regime as well as the contribution of new properties or properties which were formerly included in the absolute community of property of conjugal partnership of gains require a process of approval by the courts which issued the decree of legal separation. The purpose of the court approval is to protect the creditors. This also explains the need to state the names of the creditors and the debts owing to them in the petition filed with the court. Q: How are the creditors prejudiced by the revival of the old property regime? Once a decree of legal separation is issued and a liquidation takes place, the entire community of property is divided into 2. One half goes to the wife and the other goes to the husband. These properties become separate properties. In the meantime that they are governed by separation of property, they will necessarily incur obligations. These will have to be separate obligations which may be charged against their separate properties. If the spouses decide to maintain the separate proeprties despite reconciliation, the creditors are not affected because they can always go after the separate properties of the spouses. But if they agree to bring back the properties to either the conjugal or absolute community of property, the creditors will be prejudiced. How? Separate obligations can only be charged, as a general rule, on separate properties. They cannot be charged, except for limited exceptions, to the absolute community of properties. So that if you bring back all your separate properties to the conjugal or absolute community, in effect, you cut off the right of the creditors to go after these
properties to satisfy the obligation in their favor because not all separate obligations are chargeable to the absolute community or conjugal partnership. That is the reason why the court will require notices to the creditors and will require you to file an inventory of all your credits and how much you owe to each creditors. Q: What happens to creditors who are not listed among the creditors of each of the spouses and are not notified of the proceedings where the spouses bring back their properties to the absolute community or conjugal partnership? They will not be prejudiced by the return of these properties to the absolute community or conjugal partnership. This means that the creditors who have not been notified can go after these properties as if they are not conjugal or absolute community property. So even if the nature of the debt is such that it cannot be ordinarily charged to the conjugal or absolute community of property, they will still be permitted to go after these properties because they have not been notified of the proceedings. As an exception, they will not be allowed to go after these properties if the debtor has adequate separate properties. The reason for the exception is that the debtor still has sufficient property to satisfy the claim of his creditors, so it will not be necessary for them to go after the properties which have been contributed to the absolute community or conjugal partnership. Note, however, that this rule refers to credits which were incurred after the liquidation but before the reconciliation. Q: What is the effect of reconciliation to donations proper nuptias? In case of legal separation, the innocent spouse has the option of revoking donations proper nuptias made in favor of the offending spouse. If the innocent spouse does not revoke the donations proper nuptias, the reconciliation will not change anything. They remain to be donated. But if the innocent spouse revokes the donation proper nuptias after the issuance of a decree of legal separation, the property donated goes back to him. Once there is reconciliation, the innocent spouse can no longer donate the property back to the other spouse because of the prohibition on donation between spouses. In other words, once the donation is revoked, it remains revoked forever. Q: What then can the innocent spouse do if he wants to return the property to the other spouse?
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If he really wants to return the property so that the other spouse can use it, the only way to do that is to agree to return it to the conjugal or absolute community of property. Of course, this is not the same as donation proper nuptias because in donation proper nuptias, the property donated becomes separate properties provided that you are governed by conjugal partnership of gains because if you are governed by absolute community, the effect of donation proper nuptias is different. While donations proper nuptias given before the celebration of the marriage, at the time it is donated, it will be considered as separate property but the rule in absolute community is that all properties belonging to the spouses before the marriage becomes part of the absolute community of property unless you have Q: What then can the innocent spouse do if he wants return the property to the other spouse? If he really wants to return the property so that the other spouse can use it, the only way to do that is to agree to return it to the conjugal or absolute community of property. Of course, this is not the same as donation propter nuptias because in donation propter nuptias, the property donated becomes separate property provided that you are governed by conjugal partnership of gains because if you are governed by absolute community, the effect of donation propter nuptias is different. While donations propter nuptias given before the celebration of the marriage, at the time it is donated, it will be considered as separate property but the rule in absolute community is that all properties belonging to the spouses before the marriage becomes part of the absolute community of property unless you have legitimate descendants. If you have legitimate descendants at the time of the marriage, once it is donated it is separate property but at the time of the marriage they become absolute community property unless you have legitimate descendants before the celebration of the marriage. There is a difference in effect if you are governed by absolute community or conjugal partnership of gains. Q: What happens to the revocation of the designation as beneficiary in an insurance policy? If it is revoked because of the decree of legal separation, there is nothing which will prohibit the innocent spouse from designating again the other as beneficiary in the insurance policy Q: What is the effect of reconciliation to succession? 1. Intestate succession when the parties are legally separated, it is possible that the offending spouses will not inherit from the
2.
innocent spouse by reason of unworthiness. Reconciliation between the spouses removes such unworthiness, so that after the husband and wife have reconciled, the offending spouse may then be allowed to inherit from the innocent spouse through intestate succession. The reason is that at the time of the latters death, the ground for the prohibition no longer exists. Testate Succession when a decree of legal separation is issued, the provisions in the will of the innocent spouse in favor of the offending spouse are automatically revoked. After reconciliation, the innocent spouse is allowed to institute again (a positive act) the offending spouse as heir
Q: What is the effect of reconciliation on cases where the innocent spouse designated the guilty spouse as testamentary heir after the issuance of the decree of legal separation? If one is designated as a voluntary heir after the issuance of a decree of legal separation then that is a valid designation and will continue to be valid even after there has been reconciliation between the spouses Q: Can the innocent spouse refuse to designate the guilty spouse as testamentary heir? Yes. The institution of a voluntary heir is always voluntary and therefore cannot be compelled even if there has been reconciliation between the spouses. Q: What is the effect of reconciliation on the rights and obligations between husband and wife? After the husband and wife have reconciled, they will have to go back to the same conjugal dwelling and they will be bound by the same rights and obligations as before the issuance of the decree of legal separation. C. Rights and Obligations Between Husband and Wife
Art. 68. The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support. (109a) Art. 69. The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide.
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The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family. (110a) Art. 70. The spouses are jointly responsible for 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 obligations shall be satisfied from the separate properties. (111a) Art. 71. The management of the household shall be the right and the duty of both spouses. The expenses for such management shall be paid in accordance with the provisions of Article 70. (115a) Art. 72. When one of the spouses neglects his or her duties to the conjugal union or commits acts which tend to bring danger, dishonor or injury to the other or to the family, the aggrieved party may apply to the court for relief. (116a) Art. 73. Either spouse may exercise any legitimate profession, occupation, business or activity without the consent of the other. The latter may object only on valid, serious, and moral grounds. In case of disagreement, the court shall decide whether or not: (1) The objection is proper; and (2) Benefit has occurred to the family prior to the objection or thereafter. If the benefit accrued prior to the objection, the resulting obligation shall be enforced against the separate property of the spouse who has not obtained consent. The foregoing provisions shall not prejudice the rights of creditors who acted in good faith. (117a) Q: what are the personal obligations of the spouses to each other? 1. To live together 2. To observe mutual love, respect and fidelity
3. 1.
To render mutual help and support To live together
Q: What is the meaning of the spouses duty to live together? It refers to two things: 1. Actually and physically living together under one roof 2. Cohabitation Q: What is meant by actually and physically living together under one roof? It refers to the obligation of the husband and wife to live in the conjugal dwelling. Thus, the husband and the wife may validly agree to live in separate apartments, but anyone of them may at any time demand that the other live with him or her in his or her apartment because maintaining a conjugal dwelling is an obligation mandated by law Q: Who shall fix the family domicile? The husband and wife shall fix the family domicile. If they disagree, the court will decide but it can only choose among the alternatives presented by the spouses. Q: What will happen if one spouse (eg wife) refuses to live with the other? It depends. If the husband likewise refuses to live with her, then there is no problem. However, if the husband does not like the idea of his wife maintaining a separate dwelling, he can avail of several remedies. He can, for example, refuse to give support to his wife, or sue her for moral damages, or he can seek the court to counsel her under Art 72 of the Family Code. He may not, however, use physical force to compel his wife to move to his house Q: Can one be exempted from living with his or her spouse? Yes but he must first go to court to seek exemption from the obligation of living with his or her spouse. It is quite strange that the parties have to seek exemption from the court. It is very seldom that parties go to court to seek exemption. Nevertheless it is a legal requirement and if the spouse does not comply with this requirement, the other spouse can simply stop sending support. Q: What are the grounds for the court to issue an exemption?
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1. 2.
If the other spouse is living abroad (eg, one spouse works in Europe or in Japan, or if the wife works as a stewardess in a foreign airline, or if the husband has to study abroad.) There are other valid and compelling reasons for the exemption
Q: What could valid and compelling reason to live separately with your spouse? Job constraints. For example, the husband is assigned in Tawi-tawi. If the wife does not have anything to do in Manila, she must join her husband in Tawi-tawi. But if she has a job in Manila, or if the children are going to school and there is no adequate schooling in Tawi-tawi, then the wife can validly seek an exemption. That may be considered as valid and compelling reason. On the other hand, if the wife refuses to live with her husband in Tawi-tawi just because she considers herself a city girl and not used to provincial life, that will not be considered a valid and compelling reason to exempt her from the obligation to live with her husband. Q: What is meant by cohabitation? It means not only sharing the same roof but also sharing the same bed. Cohabitation is not only a right. It is also an obligation. Thus, if the husband insists that he wants to make love with his wife tonight, it is her obligation to make love with him tonight. Q: Can one spouse refuse to have sex with the other spouse? Yes. As between husband and wife, they will have to understand each others feelings. However, if the refusal is without justifiable cause that can be ground for withholding of support. Insofar as cohabitation is concerned, while husband and wife can insist on their conjugal rights, they will have to balance the interest and the needs of one another. If one is married to a person who has an unsatisfiable need for sex, then there is reason to refuse and that can also be considered as a justifiable reason for maintaining a separate residence. Likewise, if ones spouse refuses to have sex with him or her except every quarter, that would also be a valid and compelling reason to live separately because one can always insist on your conjugal obligation. 2. Observe mutual love, respect and fidelity of community
Q: How is the duty to observe mutual love different from the obligation of mutual respect and fidelity? With respect to the duty to observe mutual love, the fact that one does not love his or her spouse will not give rise to any legal consequence. It is not a ground for legal separation nor for the termination of the marriage. Even if the husband does not love his wife, as long as he complies with his obligations, there can be no legal consequence. In fact as long as he voluntarily said yes during the marriage, even if he does not love her there is nothing he can do. She cannot seek the issuance of legal processes to compel him to love her. But with respect to the obligations of mutual respect and fidelity, these must be complied with otherwise there will be legal consequences. For example, a violation of the obligation to observe mutual respect may be a cause for legal separation or a violation of the obligation to observe fidelity may be used as a ground for a criminal action for adultery or concubinage. Mutual Respect Q: What does the duty to observe mutual respect mean? It refers to respect for ones person as well as respect for his body. It means that one must not use abusive language, or humiliate or embarrass his or her spouse. Respect for the body of the person means that one should not inflict physical injuries on another person. Violation of this obligation may be a ground for legal separation. (eg grossly abuseive conduct, repeated physical violence) Mutual respect also includes respect for each others profession. The mutual respect provision mandates that husband and wife to recognize their spouse need to grow professionally. Q: Does one need the consent of his or her spouse to exercise his or her profession as to pursue any calling? No. one is not required to get the consent of his or her spouse for as long as he is pursuing a legitimate exercise of profession or business Q: can a spouse object to the exercise of profession by his or her spouse? Yes. But only on valid, serious and moral grounds. For example, if the wife works as a cashier in a massage parlor, the husband has reason to object to her work because it exposes her to the possibilities of being raped or to so much temptation. This may be considered as a legitimate cause for objection.
Mutual Love
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Q: Is the financial capability of the husband considered as a valid reason for the objection? No. under the Civil Code, the husband may object to his wifes exercise of a profession or occupation or engaging in a business if his income is sufficient for the family. Under the Family Code, however, the ability of the husband to provide for all the needs of the family cannot be used as a ground for objection to the others pursuit of profession. Under the Family Code, the ground for the objection must be something serious or something which will give rise to the destruction of the family. Q: Supposing Xs wife is an actress. Does X have a valid reason to object to her showbiz career? Its debatable. If she is an ST star, there is a basis for the objection because it might destroy the solidarity of the family. But if she is a legitimate stage actress, it would seem that X would have no valid reason to object. Q: If the husband objects to the exercise by his wife of her profession and the court finds that there is a valid ground for the objection, can the husband compel his wife to resign from her job? No. The ruling of the court will not affect the right of the wife to exercise her profession. The consequences of such ruling will only affect the properties of the spouses. Q: What will happen if the court finds that the objection is proper? It will only have an effect on the obligations incurred by the spouse exercising the profession, occupation, business or activity. If he or she insists to work, engage in business or exercise his or her profession notwithstanding the objection, all the obligations that he or she will incur will not be charged to the absolute community or conjugal partnership. Q: Is the absolute community or the conjugal partnership liable for the acts or transactions of the spouse who acted without the consent or notwithstanding the objection of the other? It depends. 1. if the benefit has accrued to the family prior to the objection, the absolute community or conjugal partnership is liable for the obligations incurred since all the profits or income from the acts or 2.
transactions of the spouse who acted without the consent of the other became part of the absolute community or conjugal properties If the properties accrued AFTER the objection, the resulting obligations of the spouse who acted without the consent of the other shall be enforced only against his or her separate properties
Note however that the creditors who acted in good faith (ie without knowledge of the objection) are allowed to go after either the absolute community or conjugal properties or the separate properties of the spouse with whom they contracted. WARNING: The official printed text of the Family Code has an error. It indicates that obligations incurred prior to the objection cannot be charged against the absolute community. The Code Commission has explained that it is an error in printing. This should refer only to obligations incurred after the objection because the law does not require prior consent. The objection, if legitimate, can come afterwards, and in anything one spouse does after the objection, he or she will have to assume the risk of all liabilities. But before the objection, because there is no requirement of prior consent, if it is something which will result to the benefit of the family, it will have to be charged to the absolute community or conjugal partnership. The criterion to be used to determine whether it may be charged to the absolute community or conjugal partnership is the BENEFIT WHICH WILL REDOUND TO THE BENEFIT OF THE FAMILY. For example, the wife is a real estate broker and the husband is able to prove later that her continued exercise of her profession will endanger the solidarity of the family because she will have to go to various places and there is great risk of temptation, or that it would be pre-judicial to her health. Any obligation that she may incur after the husbands objection shall be her separate obligation, but all benefits will have to accrue to the conjugal or absolute community. Before the objection, all her earnings and obligations will have to be charged to the absolute community or conjugal partnership.
Mutual Fidelity Q: What is the consequence of a violation of the obligation to observe mutual fidelity?
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The violator may be penalized for adultery or concubinage or he may be sued for legal separation on the ground of sexual infidelity, or he may be deprived of the right to support 3. a. Expenses for support of family and payment of conjugal obligations From where expenses taken
absolute / conjugal property which is principally responsible to the support of the spouses and the children. If one does not have separate properties, then he can incur an advance from the absolute / conjugal property which will be deducted from his share during liquidation. Q: In what order must the obligation to support be satisfied? 1. 2. 3. From the community property or conjugal property From the income or fruits of the separate properties of the spouses From the separate properties of the spouses (in this case, the spouses are solidarily liable to the creditors)
Art. 70. The spouses are jointly responsible for 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 obligations shall be satisfied from the separate properties. Q: To whom are the spouses jointly responsible for? The spouses are jointly responsible not only for their own support but for the support of the whole family. Family under this provision does not refer to the extended family but to the spouses and the children. Though parents and sisters or brothers of the spouses may be entitled to support under the provisions governing support (eg descendants, ascendants, brothers and sisters) but the PRIMARY responsibility of the spouses lies with the members of the family. Thus, if a married individual has insufficient means to support other people aside from his own family, then he will have no obligation to support such other people. This is because the obligation of support depends on the financial resources of the giver. Q: A is the son of B. To enable A to finish his education, B sacrificed and worked very hard until his son was able to obtain a college degree. A graduated and is now working at a small firm. He married a year later. Because of insufficient funds and a growing family, A could no longer support B. B claims, however, that A has an obligation to reciprocate the support B gave him. Is such contention true? No. prior to As marriage, A may have a legal obligation to support B but after the marriage, As primary responsibility rests with his family. Although it is clearly a Filipino tradition to reciprocate the support that ones parents have showered on a person, such reciprocity has no legal basis once the child is married and has insufficient funds to support his parents. Also it must be noted that support given to the parents and brothers or sisters must be charged to the separate property of the spouse and not to the
Q: What is the order of payment provided for in Art. 94 and Art. 121 (general obligations)? Art. 94. The absolute community of property shall be liable for: xxx If the community property is insufficient to cover the foregoing liabilities, except those falling under paragraph (9), the spouses shall be solidarily liable for the unpaid balance with their separate properties. Art. 121. The conjugal partnership shall be liable for: xxx If the conjugal partnership is insufficient to cover the foregoing liabilities, the spouses shall be solidarily liable for the unpaid balance with their separate properties These articles prescribe only two sources for the satisfaction of the obligation to support in the following order: 1. Absolute/conjugal property 2. Separate personal property Q: Is there a discrepancy between Art 70 and Art 94 and Art 121? Art 70 Arts 94 and 121 Provides for three sources Provides for only two sources Sources Order 1. 2. Community/conjugal property Income or fruits of the separate properties of the spouses Separate properties of the spouses 1. 2. Community/conjugal property Separate properties
3.
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FOR PROPER REMEDY, WHICH MUST BE AVAILED OF WITHIN FIVE YEARS FROM THE DATE OF THE CONTRACT IMPLEMENTING SUCH DECISION.
FOR PROPER REMEDY, WHICH MUST BE AVAILED OF WITHIN FIVE YEARS FROM THE DATE OF THE CONTRACT IMPLEMENTING SUCH DECISION.
Q: How do we reconcile these provisions? Art 70 refers to the order in satisfying the obligation to support while Arts 94 and 121 refer to the order in satisfying all other kinds of obligations. As such, if the issue is regarding the obligation to support, one must use the order provided in Art 70. On the other hand, if the issue relates to any other obligations, use Arts. 94 and 121. Also one must note the distinction regarding the conjugal partnerships and community propertys treatment of the fruits and separate properties. Under the conjugal partnership of gains, fruits of separate properties are considered conjugal properties while under the absolute community property, they are considered as separate properties. Thus one may also reconcile the provisions even with regard to the satisfaction of the obligation to support in the following manner: Art 70 Absolute / conjugal property Fruits of separate properties Separate properties Art 94 Absolute property Fruits of separate properties (as part of the separate properties) Separate properties Art 121 Conjugal property Fruits of separate properties (as part of the conjugal property) Separate properties
IN THE EVENT THAT ONE SPOUSE IS

INCAPACITATED OR OTHERWISE UNABLE TO PARTICIPATE IN THE ADMINISTRATION OF THE COMMON PROPERTIES, THE OTHER SPOUSE MAY ASSUME SOLE POWERS OF ADMINISTRATION. THESE POWERS DO NOT INCLUDE 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.
IN THE EVENT THAT ONE SPOUSE IS

INCAPACITATED OR OTHERWISE UNABLE TO PARTICIPATE IN THE ADMINISTRATION OF THE CONJUGAL PROPERTIES, THE OTHER SPOUSE MAY ASSUME SOLE POWERS OF ADMINISTRATION. THESE POWERS DO NOT INCLUDE 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 CONSTRUED AS A CONTINUING OFFER ON THE PART OF THE CONSENTING SPOUSE AND THE THIRD PERSON, AND MAY BE PERFECTED AS A BINDING CONTRACT UPON THE ACCEPTANCE BY THE OTHER SPOUSE OR AUTHORIZATION BY THE COURT BEFORE THE OFFER IS WITHDRAWN BY EITHER OR BOTH OFFERORS.
HOWEVER, THE TRANSACTION SHALL

BE CONSTRUED AS A CONTINUING OFFER ON THE PART OF THE CONSENTING SPOUSE AND THE THIRD PERSON, AND MAY BE PERFECTED AS A BINDING CONTRACT UPON THE ACCEPTANCE BY THE OTHER SPOUSE OR AUTHORIZATION BY THE COURT BEFORE THE OFFER IS WITHDRAWN BY EITHER OR BOTH OFFERORS.
First Second
Third
A. Administration Q: What does joint administration mean? Joint administration means that for every act of administration, both husband and wife must agree Q: What if both spouses cannot agree? Art 96 provides that in case of disagreement, the husbands decision shall prevail (no need to go to court). But the wife can always go to court and seek the appropriate remedies, ie, receivership, transfer of administration (specially if husband is mismanaging the properties), separation of the properties of the spouses whether voluntary or under Art 135.
Administration can be given to only one spouse (or to a bank etc) Absolute Community ART. 96. THE ADMINISTRATION AND
ENJOYMENT OF THE COMMUNITY PROPERTY 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
Conjugal Partnership 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
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COURT FOR RECEIVERSHIP, FOR JUDICIAL SEPARATION OF PROPERTY OR FOR AUTHORITY TO BE THE SOLE ADMINISTRATOR OF THE ABSOLUTE
COURT FOR RECEIVERSHIP, FOR JUDICIAL SEPARATION OF PROPERTY, OR FOR AUTHORITY TO BE THE SOLE ADMINISTRATOR OF THE CONJUGAL PARTNERSHIP PROPERTY, SUBJECT TO SUCH PRECAUTIONARY CONDITIONS AS THE COURT MAY IMPOSE.
Q: Within what period must the wife go to court? The wife must go to court within five years from the date of the contract implementing the husbands decision and if there is no contract, from the time of the husbands act. Q: What is the obligation of the court when the wife avails of this remedy within five years? It is not the business of the court to investigate whether the decision of the husband is proper or not. The courts authority is limited to the determination whether the husband has abused his discretion. The court cannot make the decision in behalf of the spouses. It must simply find out whether the husband abused the powers of administration before it will grant the relief prayed to by the wife. Q: What if one spouse is unable to participate (resides in Saudi Arabia) or is incapacitated (low IQ) to administer the properties? In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the common properties, the other spouse may assume sole power of administration not including disposition or encumbrance which must have the authority of the court or the written consent of the other spouse Q: Does the spouse need to acquire a court order before it can exercise sole administration in case of incapacity of the other spouse? No. the phrase assume sole administration means that one can immediately assume sole administration without going to court. Cases of incapacity or inability to participate in the administration of the properties must be distinguished from the other causes where court approval is necessary. These other causes wherein court approval is necessary can be found in Art. 101 and 128. Absolute Community ART. 101. IF A SPOUSE WITHOUT JUST
CAUSE ABANDONS THE OTHER OR FAILS TO COMPLY WITH HIS OR HER OBLIGATIONS TO THE FAMILY, THE AGGRIEVED SPOUSE MAY PETITION THE
COMMUNITY, SUBJECT TO SUCH PRECAUTIONARY CONDITIONS AS THE COURT MAY IMPOSE.
THE OBLIGATIONS TO THE FAMILY

MENTIONED IN THE PRECEDING PARAGRAPH REFER TO MARITAL, PARENTAL OR PROPERTY RELATIONS.
THE OBLIGATIONS TO THE FAMILY

MENTIONED IN THE PRECEDING PARAGRAPH REFER TO MARITAL, PARENTAL OR PROPERTY RELATIONS.
A SPOUSE IS DEEMED TO HAVE

ABANDONED THE OTHER WHEN HER OR SHE HAS LEFT THE CONJUGAL DWELLING WITHOUT INTENTION OF RETURNING. THE SPOUSE WHO HAS LEFT THE CONJUGAL DWELLING FOR A PERIOD OF THREE MONTHS OR HAS FAILED WITHIN THE SAME PERIOD TO GIVE ANY INFORMATION AS TO HIS OR HER WHEREABOUTS SHALL BE PRIMA FACIE PRESUMED TO HAVE NO INTENTION OF RETURNING TO THE CONJUGAL DWELLING
A SPOUSE IS DEEMED TO HAVE

ABANDONED THE OTHER WHEN HE OR SHE HAS LEFT THE CONJUGAL DWELLING WITHOUT INTENTION OF RETURNING. THE SPOUSE WHO HAS LEFT THE CONJUGAL DWELLING FOR A PERIOD OF THREE MONTHS OR HAS FAILED WITHIN THE SAME PERIOD TO GIVE ANY INFORMATION AS TO HIS OR HER WHEREABOUTS SHALL BE PRIMA FACIE PRESUMED TO HAVE NO INTENTION OF RETURNING TO THE CONJUGAL DWELLING
SUMMARY: Sole administration WITHOUT court approval may be exercised in the following cases: 1. Incapacity (incapacity need not be declared by the court) or 2. Inability to participate in the joint administration of properties Sole administration WITH court approval may be exercised in the following cases: 1. Abandonment of the other spouse a. Left the conjugal dwelling for a period of three months b. Failed within the period of three months to give any information as to his whereabouts
Conjugal Partnership ART. 128. IF A SPOUSE WITHOUT JUST

CAUSE ABANDONS THE OTHER OR FAILS TO COMPLY WITH HIS OR HER OBLIGATION TO THE FAMILY, THE AGGRIEVED SPOUSE MAY PETITION THE
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2. 3.
Failure to comply with his or her obligations to the family The spouse has abused his or her powers of administration
Absolute Community 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 OCCASIONS OF FAMILY REJOICING OR FAMILY DISTRESS.
Conjugal Partnership 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 CONJUGAL PARTNERSHIP PROPERTY FOR CHARITY OR ON OCCASIONS OF FAMILY REJOICING OR FAMILY DISTRESS.
B. Dispositions Q: What are the acts of disposition? Acts of disposition include sale, transfer, assignment or donation Q: What is the requirement as to the disposition of absolute or conjugal properties? Disposition of absolute or conjugal properties, whether real or personal require the unanimous consent of both husband and wife Q: A bought his wife a refrigerator for their first wedding anniversary. On their 25th anniversary, he decided to sell it so he can buy a new one. The wife, however, does not want to part with the refrigerator and therefore did not consent to the sale of the refrigerator. What is the effect of the wifes lack of consent to the act of disposition? The law provides that in the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both spouses. It must be noted that this provision brought about a confusion of the laws governing void and voidable transactions. Obligations and contracts law provide that a void contract cannot be ratified. But in this case we encounter a hybrid: the transaction involving an act of disposition is void, however it remains valid as a continuing offer which can be accepted at any time by reason of the consent of the non-consenting spouse. In effect, the void contract is in reality a voidable contract because it can be ratified. However, the Family Code uses the term void. Another difficulty with this provision is the fact that there is no deadline prescribed for the other spouse to give his or her consent to the transaction. Thus, one can validate a void contract 10 or 20 years after it has been entered into.
Q: Mr A decides to donate a car to Mr B without the prior consent of his wife. Is such donation valid? No. an act of donation is an act of disposition. Thus, for any donation of absolute or conjugal property, both husband and wife must agree to such donation. Otherwise, such donation shall be void. One must also note the rules on the formalities of donation eg, it must be written if it involves real properties and must be in a public instrument, with the signatures of both husband and wife. Otherwise, the donation shall be considered void. Q: Mrs A wanted to give P50.00 during the celebration of the mass. She asked the permission of Mr. A. Mr. A disagreed. If Mrs. A proceeded to donate the P50.00 will such donation be void? No. RULE: a donation requires the consent of both husband and wife to be considered valid. EXCEPTION: if the donation is a moderate donation for charity, then such donation does not require the consent of the husband. Q: Mrs. A wants to give her mother a gift worth P500.00 for her birthday. Can she donate such gift without the consent of her husband? Yes. The gift may be considered a moderate donation on occasion of a family rejoicing. Hence, there is no need for the consent of the other spouse. Q: The relative of Mrs. A died. She wants to give P2,000.00 to the family of her deceased relative. Does she need the prior consent of her husband before she can donate the money?
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No. the donation may be considered a moderate donation on the occasion of a family distress. As such, there is no need for consent from the other spouse. Q: How does one determine what is moderate? The definition of moderate is not fixed for it would depend on the resources of the absolute or conjugal property of the spouses. If one earns a P100,000 monthly salary, a P5,000 donation is moderate. If a person earns P5,000 monthly, however a P500 donation is not moderate. Q: Mr A gave Mrs B a necklace. Can Mrs. B accept such donation without the prior consent of her husband? Yes. Unlike the Civil Code, the consent of the husband is required before the wife can accept any donation. The rationale behind this provision was to avoid alienation of affection. However, such provision was deleted by the Family Code. Under the Family Code, there is no provision requiring consent of the other spouse prior to acceptance of a donation. Thus, one can accept or reject a donation without the consent of the other spouse. 4. Management of Household
(2) Benefit has occurred to the family prior to the objection or thereafter. If the benefit accrued prior to the objection, the resulting obligation shall be enforced against the separate property of the spouse who has not obtained consent. The foregoing provisions shall not prejudice the rights of creditors who acted in good faith. (117a) NOTE: Par. 2 of the second paragraph of this article should read: (2) Benefit has accrued to the family prior to the objection or thereafter. If the benefit accrued prior to the objection the resulting obligation shall be enforced against the community property. If benefit accrued thereafter, such obligation shall be enforced against separate property of the spouse who has not obtained consent. Q: What does legitimate mean? Legitimate refers to a profession, occupation, business, or activity that is not only lawful but is also honest and moral Q: What is the obligation of the court if there is disagreement as to the profession of one spouse? The court will determine: 1. Whether the objection is proper 2. Whether benefit has accrued to the family prior to the objection or thereafter Go v. CA FACTS: Petitioners Nancy and Alex Go provided for the video coverage of the wedding of the respondent spouses Ong for a fee. However, they accidentally erased it so when it was sought to be claimed by respondents, the petitioners could no longer give it. The court imposed a liability for damages based on Art. 1170 of the Civil Code: contravention of the tenor of the obligation. ISSUE: Are the petitioner-spouses jointly and severally liable for the damages awarded to respondents? HELD: NO. Under Art. 73 of the Family Code, the wife may exercise any profession, occupation or engage in business without the consent of the husband. In this case, it was only petitioner Nancy Go who entered
Art. 71. The management of the household shall be the right and the duty of both spouses. The expenses for such management shall be paid in accordance with the provisions of Article 70. Management of the household refers to the taking care of the groceries, washing the dishes, taking care of the kids, cleaning the toilet. This must be shared responsibility, shared management, shared obligation of the husband and wife. 5. Exercise of Profession
Art. 73. Either spouse may exercise any legitimate profession, occupation, business or activity without the consent of the other. The latter may object only on valid, serious, and moral grounds. In case of disagreement, the court shall decide whether or not: (1) The objection is proper; and
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into the contract with private respondent, she was acting alone for her sole interest. Consequently, she is solely liable to private respondents for the damages awarded below, pursuant to the principle that contracts produce effect only as between the parties who execute them. Institution and Defense of actions Q: Must the wife implead her husband when she files a suit? No. it must be noted that the provision requiring that a wife must implead a husband before instituting or defending an action has been deleted from the Family Code. Although the Rules of Court still contain a similar provision such rule cannot be considered controlling because substantive rights cannot be amended by procedural rules. Thus, the wife can sue and be sued in her own capacity without impleading her husband unless she is suing on the basis of a conjugal or absolute obligation. D. Property Relations Between Husband and Wife 1. How governed Art. 74. The property relationship between husband and wife shall be governed in the following order: (1) By marriage settlements executed before the marriage; (2) By the provisions of this Code; and (3) By the local custom. (118) Under the above article, the agreement of the parties embodied in the marriage settlement executed by them before their marriage prevails over the provisions of the law on the matter of their property relations during their marriage Q: What shall govern the property relations of spouses? The property relations of the spouses shall be governed by: 1. Marriage settlements executed before the marriage Marriage settlement which is also called antenuptial agreement, is a contract entered into by a man and woman who intend to get married, fixing the property regime that
will govern their present and future properties during their marriage This is the ONLY EXCEPTION allowing the parties to enter into an agreement governing their relationship, because only property erlations are governed It is a contract limited to property relations Personal relations are covered by the rule on inviolability of marriage. But provisions on personal relations can be included as long as such are in compliance with the law
2.
The provisions of the Code or Philippine Law This is in case there is no marriage settlement or the marriage settlement is void If at least one of the parties to the marriage is a Filipino, the Family Code shall govern their property relations. If both spouses are aliens we cannot use the provisions of the Family Code because we adhere to the principle of nationality. If there is mixed nationality, ie husband is Filipino while the wife is an alien, however, the Philippines will consider their marriage as being governed by the absolute community of property. Even if according to the laws of the alien spouse their property relationship is conjugal partnership, the Philippines will still consider their property regime as being governed by the absolute community of property. If conflict arises, however, it will be settled in accordance with the rules of public international law Under the Family Code, if there is no marriage settlement, the property regime of ABSOLUTE COMMUNITY OF PROPERTY (ACP) shall govern. This is actually an extension of the NATIONALITY PRINCIPLE because whether the marriage is celebrated here or abroad, or whether the couple are living here or broad, for so long as at least one of the parties is a Filipino, then in the absence of a marriage settlement, the Family Code will apply and their property relations will be that of ACP
EXCEPTION: Article 80
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Art. 80. In the absence of a contrary stipulation in a marriage settlement, the property relations of the spouses shall be governed by Philippine laws, regardless of the place of the celebration of the marriage and their residence. This rule shall not apply: (1) Where both spouses are aliens; (their national laws will apply) (2) With respect to the extrinsic validity of contracts affecting property not situated in the Philippines and executed in the country where the property is located; (extrinsic validity of the contract will be governed by the LEX SITUS or the law of the country where the property is situated) and (3) With respect to the extrinsic validity of contracts entered into in the Philippines but affecting property situated in a foreign country whose laws require different formalities for its extrinsic validity. (124a) (LEX SITUS applies. the contract is executed in the Philippines and there is no proof to the extrinsic requirements according to the law where the property is situated. there exists a presumption that the formalities are the same as those required under Philippine Law. therefore, if one wants to use the formalities according to the law where the property is situated, one must present proof that such laws are different from those of the Philippines. if there is no proof regarding the difference between the two laws, there is a presumption that they are the same. application of this provision does not mean imposition of Philippine law but merely application of our laws because of a presumption) SUMMARY Apply the law of the place where the property is located (lex situs). But if one cannot prove the law of the place where the property is located, it is presumed to be the same as Philippine law Note: Marriages entered into before the effectivity of the Family Code are not affected by this provision, meaning in the absence of a marriage settlement, their property regime will be Capital Partnership of Gains (CPG).
But any amendment in the Family Code regarding the regime of the CPG must necessarily affect the property regime of those couples. 3. 2. Local Customs isolated cases: example: dowry system Marriage Settlements
Art. 75. The future spouses may, in the marriage settlements, agree upon the regime of absolute community, conjugal partnership of gains, complete separation of property, or any other regime. In the absence of a marriage settlement, or when the regime agreed upon is void, the system of absolute community of property as established in this Code shall govern. (119a) Art. 76. In order that any modification in the marriage settlements may be valid, it must be made before the celebration of the marriage, subject to the provisions of Articles 66, 67, 128, 135 and 136. (121) Art. 77. The marriage settlements 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 the marriage contract is recorded as well as in the proper registries of properties. (122a) Q: What are the property regimes that may be agreed upon in the marriage settlement? The future spouse may, in their marriage settlement, agree on: 1. The regime of absolute community 2. Conjugal partnership of gains 3. Complete separation of property 4. A combination of the above regimes 5. Any other regime like the dowry system The marriage settlement can provide in general way but the regime or combination of regimes that the parties want but once a regime is chosen, all properties are governed by that regime. The parties cannot exclude specific properties from the regime.
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Whatever by the regime agreed upon, it must not be contrary to law, morals, good customs, public order or public policy. Q: Suppose the parties in their marriage settlement expressly reject the absolute community regime established by the Family Code but do not agree on any system to govern their property relations during their marriage, what system will apply? 1. 2. 3. First determine the intention of the parties as to what system they really want and for this purpose, their contemporaneous and subsequent acts shall be considered (art 1371 NCC) If the intention cannot be ascertained, then apply the local custom in accordance with par 3 of art 74 of the FC If there is no local custom, apply the rules on co-ownership
4. 5. 6.
With respect to the formal requirements, the marriage settlement must be in writing for enforceability The marriage must subsequently be celebrated and the marriage must be valid The marriage settlement must be registered with the local civil registrar otherwise it is not binding on third parties. This is a nonessential requisite and not for purposes of validity between the spouses. It must however be a public instrument to be (cant decipher)
Q: Suppose the parties did not enter into a marriage settlement? Apply also the system of absolute community Q: Suppose some provisions of the marriage settlement are void or some are valid. What is the effect? The nullity of the void provisions will not nullify the valid ones, provided the later can stand by themselves Q: What if the marriage settlement is completely void? In this case, the system of absolute community established in the Family Code should be applied a. Requirements
Note: the parties cannot stipulate therein that they can have personal relations with other people, because that will be a void provision. Note, however, that the nullity of one provision will not render the whole document invalid. The document will still be valid, minus that particular void provision. Q: When should a change or modification in the MS be made? RULE: any change or modification must be done before the marriage, which will not require court approval. After the celebration of marriage, the property relation is fixed either because it is fixed by a marriage settlement or by the Code. No change will be allowed even with court approval (Art. 76, FC) EXCEPTION: 1. In cases of conciliation after legal separation has been granted, the parties are given the discretion to decide which properties shall remain separate properties and which properties will become absolute or conjugal property 2. In case of receivership, separation of property (voluntary or for cause) or change to sole administration, on the grounds provided for by law, there would also be a modification of the prior marriage settlement. In cases such as these, one of the spouses did not comply with the duties concomitant with the administration (as distinguished from the situation where the sole administration is allowed because one of the spouses is unable to administer the conjugal properties) 3. Valid causes for judicial separation of property3
Q: What are the requirements for a marriage settlement? 1. The parties can stipulate any form of property relations or they can make up their own form as long as none of the stipulations violate the inviolability of marriages. Therefore, the terms of the settlement are not necessarily limited to those concerning the regime of property, but may also contain provisions on the personal relations of the spouses 2. It must be exercised before the celebration of the marriage. If it is not so executed, the regime of property will be ACP 3. The parties to the marriage settlement are only the future spouses (cant decipher) were the donor can be a third party.
ART. 135. ANY OF THE FOLLOWING SHALL BE CONSIDERED SUFFICIENT
CAUSE FOR JUDICIAL SEPARATION OF PROPERTY:
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4.
In case of voluntary dissolution of conjugal/absolute community property regime (Art 136). This does not require the occurrence of any cause except the agreement of the parties.4
NOTE:
(1) THAT THE SPOUSE OF THE PETITIONER HAS BEEN

SENTENCED TO A PENALTY WHICH CARRIES WITH IT CIVIL INTERDICTION; (2) THAT THE SPOUSE OF THE PETITIONER HAS BEEN JUDICIALLY DECLARED AN ABSENTEE; (3) THAT LOSS OF PARENTAL AUTHORITY OF THE SPOUSE OF PETITIONER HAS BEEN DECREED BY THE COURT; (4) THAT THE SPOUSE OF THE PETITIONER HAS ABANDONED THE LATTER OR FAILED TO COMPLY WITH HIS OR HER OBLIGATIONS TO THE FAMILY AS PROVIDED FOR IN ARTICLE
The common denominator among these exceptions is that the modification involved can only be done with the consent of the court. In all exceptions, court approval is required. Where the marriage is celebrated, the only way you can change the marriage settlement is through the courts. The parties by themselves cannot change the marriage settlement Except with respect to reconciliation after legal separation has been obtained, the change can only be from conjugal partnership or absolute community to that of the regime of separation of property. The last three exceptions refer to separation of properties. There is no case where a marriage starts of with separation of properties and then the property regime was changed to conjugal partnership or absolute community of property even in reconciliation after legal separation (because this would only allow you a revival of the former property regime) Capacity of Parties
b.
101; (5) THAT THE SPOUSE GRANTED THE POWER OF

ADMINISTRATION IN THE MARRIAGE SETTLEMENTS HAS ABUSED THAT POWER; AND (6) THAT AT THE TIME OF THE PETITION, THE SPOUSES HAVE BEEN SEPARATED IN FACT FOR AT LEAST ONE YEAR AND RECONCILIATION IS HIGHLY IMPROBABLE.
Q: Who can be the parties to the Marriage Settlement? The parties to the marriage settlement are only the future spouses (unlike the Donation Propter Nuptias where the donor can be a third party) Q: Are there exceptions to this rule? The exceptions are: 2 schools of thought
IN THE CASES PROVIDED FOR IN NUMBERS (1), (2) AND (3), THE PRESENTATION OF THE FINAL JUDGMENT AGAINST THE GUILTY OR
ABSENT SPOUSE SHALL BE ENOUGH BASIS FOR THE GRANT OF THE DECREE OF JUDICIAL SEPARATION OF PROPERTY.
4
ART. 136. THE SPOUSES MAY JOINTLY FILE A VERIFIED PETITION WITH
#1 Art. 78. A minor who according to law may contract marriage may also execute his or her marriage settlements, but they shall be valid only if the persons designated in Article 14 to give consent to the marriage are made parties to the agreement, subject to the provisions of Title IX of this Code. (120a) The minor referred to in this Article is one who can get married with parental consent, that is one who is at least 18 but below 21 years old. In this case the parents of the minor have to be made parties to the marriage settlement and must also sign the document otherwise the settlement will be void. Also the order provided in giving consent to the marriage must be followed in determining which parent must sign. The code provides for this requirement because at the time of the Family Code was made, the age of majority was still fixed at 21. the effect of RA No.
THE COURT FOR THE VOLUNTARY DISSOLUTION OF THE ABSOLUTE COMMUNITY OR THE CONJUGAL PARTNERSHIP OF GAINS, AND FOR THE SEPARATION OF THEIR COMMON PROPERTIES. ALL CREDITORS OF THE ABSOLUTE COMMUNITY OR OF THE CONJUGAL PARTNERSHIP OF GAINS, AS WELL AS THE PERSONAL CREDITORS OF THE SPOUSE, SHALL BE LISTED IN THE PETITION AND NOTIFIED OF THE FILING THEREOF. THE COURT SHALL TAKE MEASURES TO PROTECT THE CREDITORS AND OTHER PERSONS WITH PECUNIARY INTEREST.
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6809 which lowered the age of majority to 18 is still doubtful. Dean Del Castillo, however, feels strongly that the reduction of the age has affected this provision. She opines that the sole basis for the participation of the parents was because those between 18-21 were still considered as minors. Also, if RA 6809 has capacitated the individual to perform all acts of civil life without any need of parental consent except marriage, then an individual at 18 can already enter into a marriage settlement (treats only of properties) which is different from entering into a marriage (treats of the personal aspect). Some however argue that the requirement still holds despite RA 6809. they state that since the law feels that parental consent is necessary before a party between 18 to 21 can enter into marriages then it must also feel that such individual also needs parental guidance and protection before entering into a marriage settlement. Note: there is no equivalent provision in the case of DPNs. Therefore, the DPNs parents participation is not required If the parties to the marriage are below 18, the participation of the parents in the Marriage Settlement will not cure the defect of the marriage settlement because one of the essential requisites of a valid marriage settlement is the marriage takes place. If the marriage cannot take place because the parties are below 18, then the marriage settlement will not be valid. #2 Art. 79. For 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 thereto. (123a) In case of persons under civil interdiction, the participation of the guardian appointed by the court is also required By the phrase other disability means other persons who may enter into a marriage even under some disability, like deaf-mutes, spendthrifts, or insolvents but not insane since they cannot contact marriage even with the consent of their parents or guardians (gist: incapacitated governed by the ordinary rules of contract law) Q: If the parties entered into a marriage settlement and got married at 18 is it valid?
Yes because the validity of the marriage settlement is dependent on the celebration of the marriage. Since the parties entered into marriage when they were already at 18, the settlement is valid (provided parents participated) Note: Difference between Marriage Settlement and ordinary contracts: if you enter into an ordinary contact without consent, the contract is merely voidable. But in case of Marriage Settlements, if the consent of the parties (manifested by their participation in the contract) is not obtained, the MS is void. c. Formalities
Q: What are the formal requirements of a marriage settlement? 1. As between the parties a. Must be in writing (may be private or public instrument) b. Must be signed by the parties c. Must be executed before the marriage d. If a party executing the settlement needs parental consent for the marriage, the parent or guardian whose consent to the marriage is needed must be made a party to the agreement (Art 78) e. If a party executing the settlement is under civil interdiction or any other disability (like deaf-mutism, prodigality, etc but not insanity), the guardian appointed by the court must be made a party to the marriage settlement 2. In order to affect third persons a. All the above requirements as between the parties b. The marriage settlement must be registered in the local civil registry where the marriage contract is recorded as well as in the proper registries of property. Hence a private instrument will not suffice. The government must be in a public document or the same cannot be registered. If the marriage settlement is not registered, it will not prejudice third persons and the ACP will apply as to them Q: Can either party compel the other to reduce the marriage settlement into a public document?
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The Family Code does not state whether the writing is necessary for validity or enforceability or for purpose of convenience only. However, under Art 1203(2), agreements in consideration of marriage (other than mutual promise to marry) are governed by the Statute of Frauds. Therefore, marriage settlements must be in writing otherwise it shall be unforceable. Difference between Marriage Settlement and Donation Propter Nuptias as to formalities Marriage Settlement If it is not in writing, it is unenforceable Donation Propter Nuptias If it does not follow the rules on ordinary donations, it is void
Donations propter nuptias are governed primarily by the Family Code and by the rules on ordinary donations as supplement. Q: Distinguish donations propter nuptias from ordinary donations Donations Propter Nuptias Ordinary Donations Does not require express acceptance Express acceptance is necessary May be made by minors Cannot be made by minors directly but may be made by legal representatives Cannot include future property No limit to donation of present property other than inofficiousness
Art. 81. Everything stipulated in the settlements or contracts referred to in the preceding articles in consideration of a future marriage, including donations between the prospective spouses made therein, shall be rendered void if the marriage does not take place. However, stipulations that do not depend upon the celebration of the marriages shall be valid. Q: What is the reason for the rule? The reason is that since the Marriage Settlement is only an accessory contract dependent for its existence on the intended marriage of the parties, if such marriage does not take place, the Marriage Settlement will become void except for stipulations (like recognition of illegitimate children) that do not depend upon the celebration of the marriage for their validity.
May include future property Once present property is donated and the property regime is (cantt read this part) absolute community, the donation must be limited to 1/5 of properties Grounds for revocation are in Art 865
Grounds for revocation are found in the law on damages
ART. 86. A DONATION BY REASON OF MARRIAGE MAY BE REVOKED BY THE DONOR IN THE FOLLOWING CASES: (1) IF THE MARRIAGE IS NOT CELEBRATED OR JUDICIALLY
DECLARED VOID AB INITIO EXCEPT DONATIONS MADE IN THE MARRIAGE SETTLEMENTS, WHICH SHALL BE GOVERNED BY ARTICLE 81;
3.
Donations by Reason of Marriage
(2) WHEN THE MARRIAGE TAKES PLACE WITHOUT THE CONSENT OF THE PARENTS OR GUARDIAN, AS REQUIRED BY
LAW;
Art. 82. Donations by reason of marriage are those which are made before its celebration, in consideration of the same, and in favor of one or both of the future spouses. (126) Q: How does the Family Code define donations by reason of marriage? Donations by reason of marriage (or ordinary propter nuptias) are those which are made before its celebration, in consideration of the same, and in favor of one or both of the future spouses. Q: what rules govern donations propter nuptias?
(3) WHEN THE MARRIAGE IS ANNULLED, AND THE DONEE

ACTED IN BAD FAITH; (4) UPON LEGAL SEPARATION, THE DONEE BEING THE GUILTY SPOUSE; (5) IF IT IS WITH A RESOLUTORY CONDITION AND THE CONDITION IS COMPLIED WITH; (6) WHEN THE DONEE HAS COMMITTED AN ACT OF INGRATITUDE AS SPECIFIED BY THE PROVISIONS OF THE CIVIL CODE ON DONATIONS IN GENERAL.
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a.
Requirements
administration of such properties. Any act of disposition performed by the parents or guardian must be made with the consent of the court. Q: Can a minor receive donations? Yes, but acceptance shall be done through his parents or his legal representative. (Art. 741 Civil Code) c. Formalities
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. (127a) Art. 87. Every donation or grant of gratuitous advantage, direct or indirect, between the spouses during the marriage shall be void, except moderate gifts which the spouses may give each other on the occasion of any family rejoicing. The prohibition shall also apply to persons living together as husband and wife without a valid marriage. (133a) Q: What are the requisites of donations propter nuptias? 1. It must be made before the celebration of the marriage: a. It ordinarily takes effect immediately since it would be void once the future spouses become husband and wife by virtue of Art 87 2. It must be made in consideration of the marriage 3. It must be made in favor of one or both of the future spouses b. Capacity of Parties
Q: What law governs the formalities of donations propter nuptias? The rules on ordinary donations shall apply. Non-compliance with the formalities shall make the donation void. Under the present rule, the provisions of statutes of frauds will no longer apply to donations propter nuptias. Q: What are the formalities required in donations propter nuptias? 1. If the donation involves personal property, the donation may be made orally or in writing. Oral donation requires the simultaneous delivery of the thing or of the document representing the thing donated, and acceptance of the thing donated. 2. 3. If the value of the personal property donated exceeds P5K, the donation and the acceptance must be made in writing. If the property donated is an immovable, the donation must be made in a public document. The donation and acceptance may be made in the same or in separate documents.
Q: Who may be a party to a donation proper nuptias? The future spouses, as well as third persons may be parties to a donation propter nuptias. The participation of a third party, however, is limited to that of a donor. Thus, in a donation propter nuptias, the donor can be either of the future spouses or a third person, but the donee must be one or both spouses. Q: Should the parents of either or both spouses be made parties to a donation propter? No. Unlike in marriage settlement, the parents of either or both spouses are not parties to donations propter nuptias. When one reaches the age of 18, parental consent is no longer necessary to capacitate him to make a donation. Under the law, a minor is prohibited from making donations. The parents or guardian of such minor are also prohibited from donating the properties of the minor because their function is limited only to management and
Q: Is the express acceptance of the donee necessary in donations propter nuptias? Yes. The acceptance must also comply with the formalities prescribed by law. NOTE THE FOLLOWING PROVISIONS GOVERNING ORDINARY DONATIONS:
Art. 728. Donations which are to take effect upon the death of the donor partake of the nature of testamentary provisions, and shall be governed by the rules established in the Title on Succession. (620)
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Art. 729. When the donor intends that the donation shall take effect during the lifetime of the donor, though the property shall not be delivered till after the donor's death, this shall be a donation inter vivos. The fruits of the property from the time of the acceptance of the donation, shall pertain to the donee, unless the donor provides otherwise. (n) Art. 734. The donation is perfected from the moment the donor knows of the acceptance by the donee. (623) Art. 735. All persons who may contract and dispose of their property may make a donation. (624) Art. 737. The donor's capacity shall be determined as of the time of the making of the donation. (n) Art. 739. The following donations shall be void: (1) Those made between persons who were guilty of adultery or concubinage at the time of the donation; (2) Those made between persons found guilty of the same criminal offense, in consideration thereof; (3) Those made to a public officer or his wife, descedants and ascendants, by reason of his office. In the case referred to in No. 1, the action for declaration of nullity may be brought by the spouse of the donor or donee; and the guilt of the donor and donee may be proved by preponderance of evidence in the same action. (n) Art. 748. The donation of a movable may be made orally or in writing. An oral donation requires the simultaneous delivery of the thing or of the document representing the right donated. If the value of the personal property donated exceeds five thousand pesos, the donation and the acceptance shall be made in writing, otherwise, the donation shall be void. (632a)
Art. 749. In order that the donation of an immovable may be valid, it must be made in a public document, specifying therein the property donated and the value of the charges which the donee must satisfy. The acceptance may be made in the same deed of donation or in a separate public document, but it shall not take effect unless it is done during the lifetime of the donor. If the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic form, and this step shall be noted in both instruments. (633) d. Properties Covered; Limitations
Art. 84. If the future spouses agree upon a regime other than the absolute community of property, they cannot donate to each other in their marriage settlements more than one-fifth of their present property. Any excess shall be considered void. Donations of future property shall be governed by the provisions on testamentary succession and the formalities of wills. (130a) Q: What properties may be donated by reason of marriage? The donor may donate both present and future properties. The rule in ordinary donations is that one can only donate present property, except if the donation will take effect mortis causa, in which case, it is required that the donation should follow the formalities of a will. The same rule applies to donations propter nuptias Q: What are the rules regarding the limitations of donations propter nuptias? 1. If the donation is made between the spouses a. If the property donated is present property i. If the future spouses agree upon a regime other than absolute community of property, they cannot donate to each other in their marriage settlement more than 1/5 of their present property. Reason for ACP exception: anything you receive as a donation is actually part of the absolute community and those owned by both spouses.
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ii. If the future spouses agree to adopt the regime of ACP, there is no limitation as to the properties which they can donate to each other b. If the property donated is future property i. Art 84, par 2 states that donations of future property shall be governed by the provisions on testamentary succession. This means that donations must not be inofficious, i.e., it must not impair the presumptive legitime of compulsory heirs of the donor. If it impairs the presumptive legitime of the compulsory heirs of the donor, the donation shall be reduced to the extent of the impairment. Therefore, the limit is inoffiousness
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 said obligation, the donee shall be entitled to the excess. Q: May properties subject to an encumbrance be the subject of a donation propter nuptias? Yes. Art 85 provides that donations by reason of marriage subject to encumbrance shall be valid Q: What is the effect of the foreclosure of the property subject to encumbrance? In case of foreclosure of the encumbrance and the property is sold for less than the amount of the obligation secured, the donee shall not be liable for the deficiency. But if the property is sold for more than the total amount of the obligation, the donee shall be entitled to the excess. Before foreclosure, the donor may continue paying. Q: Can the donee file an action against the donor if the mortgaged property which was donated by reason of marriage is subsequently foreclosed? No. The donee however cannot be required to pay any deficiency e. Revocation
2.
If the donation is made by a third party in favor of either or both spouses a. If the property donated is present property i. The donation must not be inofficious, otherwise it can be reduced ii. If the donor is an ascendant or parent and the donation consists of jewelry, clothing or outfit which were given as wedding gifts, the donation is not subject to any limitation. But if the donation involves other properties, then it must not exceed 1/10 of the property disposable by will. The excess shall be subject to a reduction iii. Article. 1070 states: Wedding gifts by parents and ascendants consisting of jewelry, clothing, and outfit, shall not be reduced as inofficious except insofar as they may exceed one-tenth of the sum which is disposable by will. (Dean may have overlooked this) b. If the property donated is future property the only limitation is the donation must be inofficious
Art. 86. A donation by reason of marriage may be revoked by the donor in the following cases: (1) If the marriage is not celebrated or judicially declared void ab initio except donations made in the marriage settlements, which shall be governed by Article 81; (2) When the marriage takes place without the consent of the parents or guardian, as required by law; (3) When the marriage is annulled, and the donee acted in bad faith; (4) Upon legal separation, the donee being the guilty spouse;
Art. 85. Donations by reason of marriage of property subject to encumbrances shall be valid. In case of foreclosure of the encumbrance
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(5) If it is with a resolutory condition and the condition is complied with; (6) When the donee has committed an act of ingratitude as specified by the provisions of the Civil Code on donations in general. (132a) Q: What are the grounds for the revocation of a donation propter nuptias? 1. If the marriage is not celebrated or judicially declared void ab initio, except donations made in the marriage settlements which shall be governed by Art. 81 of the Family Code 2. When the marriage takes place without the consent of the parents or guardian, as required by law 3. When the marriage is annulled, and the donee acted in bad faith 4. Upon legal separation, the donee being the guilty spouse 5. If it is with a resolutory condition and the condition is complied with 6. When the donee has committed an act of ingratitude Q: Is the revocation of donations propter nuptias under Art 86 automatic? No. Art 86 uses the word may. Thus, to revoke the donation, the donor must apply before the court and the application must be based on the grounds enumerated in Art 86 Q: what is the first ground for revocation of donations propter nuptias? The first ground covers two instances: 1. Marriage is not celebrated 2. Marriage is judicially declared void
Q: Does the Art 86 par 3 apply to cases where the marriage is annulled on the ground of lack of parental consent? No. This rule excludes a case where the marriage is annulled on the ground of lack of parental consent because that case is covered by par. 2 of Art 86 PROBLEM: Art 86 conflicts with Art 43. Under Art 86, if the marriage is annulled and there is bad faith on the part of the donee, the donation is only revocable. However, under Art 43, it will be considered a case of automatic revocation. These provisions are irreconcilable because they essentially cover one and the same thing. Sempio-Diy tries to reconcile the two provisions by saying that Art 86 will apply only if the donation is made by third persons but not if it is made by the future spouses. According to Dean Del Castillo, it is difficult to find legal basis for that argument because Art 86 makes no distinction as to who is the donor. As long as its a donation propter nuptias and the marriage is annulled by reason of bad faith of one spouse, then it is considered as recovable. This case would require legislative amendment. This is not like the case of marriages which are judicially declared as void. If you try to reconcile this with Art 43, which states that if the marriage is judicially declared as void and the donee is the spouse in bad faith, then it is considered as automatically revoked. This is still reconcilable because Art 86, par. 1 does not require that it is the donee who must be in bad faith. If the donee is in good faith or if there is no spouse which is in bad faith, you apply Art 86 which means that it is recovable at the option of the donor. Q: What is the fourth ground for revocation of donations propter nuptias? Upon legal separation, the donee being the guilty spouse. Art 86 is consistent with the rules on legal separation. They both provide that a donation made in favor of the guilty spouse is revocable. Q: What is the fifth ground for revocation of donations propter nuptias? If it is with a resolutory condition and the condition is complied with Q: What is strange about the concept of resolutory condition under Art 86 par. 5 of the Family Code? The concept is different from the concept of resolutory condition under the law on obligations and contracts. Under the Oblicon, if an obligation is subject to a resolutory condition, the obligation immediately becomes valid but the moment the resolutory condition happens, the obligation is terminated. In Art 86 of the FC, if the donation is subject to a resolutory
NOTE: NO PAGE 192 IN THE REVIEWER Q: What are the differences between par. 2 and par. 3 of Article 86 Par 2 Par 3 Annulment is not necessary The marriage is actually annulled It applies only to marriages where It applies to all cases of annulment one or both the parties is between except in the case of lack of parental the ages of 18 and 21 consent It applies WON the donee is in good It applies only if the donee is in bad or bad faith faith
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condition and it happens, the donation may be revoked at the instance of the donor. That is not the concept of a resolutory condition under the law on obligations and contracts. Q: What is the sixth ground for revocation of donations propter nuptias? When the donee has committed an act of ingratitude as specified in the Civil Code Q: What are the acts of ingratitude specified? Art. 765. The donation may also be revoked at the instance of the donor, by reason of ingratitude in the following cases: (1) If the donee should commit some offense against the person, the honor or the property of the donor, or of his wife or children under his parental authority; (2) If the donee imputes to the donor any criminal offense, or any act involving moral turpitude, even though he should prove it, unless the crime or the act has been committed against the donee himself, his wife or children under his authority; (3) If he unduly refuses him support when the donee is legally or morally bound to give support to the donor. Q: What are the prescriptive periods for the filing of action for revocation of donations propter nuptias? 1. If the marriage is not celebrated (except Art 81 which are automatically void) a. Written donations 10 years (Art 1144 par 1) b. Oral donations 6 years (Art 1145, par 1) 2. If the marriage is declared void ab initio a. Written donations 10 years b. Oral donations 6 years 3. When the marriage takes place without parental consent a. 4 years being an injury founded upon contract (Art 1146, par 1) 4. If resolutory condition is not complied with a. Written donations 10 years b. Oral donations 6 years 5. When the marriage is annulled a. 4 years 6. If the donee committed an act of ingratitude a. 1 year from the donors knowledge of the fact (Art 769) 7. In case of legal separation
a.
5 years from the time the decree of legal separation has become final (art 64 FC)
Art. 87. Every donation or grant of gratuitous advantage, direct or indirect, between the spouses during the marriage shall be void, except moderate gifts which the spouses may give each other on the occasion of any family rejoicing. The prohibition shall also apply to persons living together as husband and wife without a valid marriage. (133a) 4. a. System of Absolute Community of Property When applicable
Art. 88. The absolute community of property between spouses shall commence at 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. (145a)
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Art. 89. No waiver of rights, 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 a judicial separation of property, or after the marriage has been dissolved or annulled, the same shall appear in a public instrument and shall be recorded as provided 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. (146a) Q: What is the reason for the rule? To avoid undue influence exerted by one spouse to the other Q: What is the difference between waiver under CPG and waiver under ACP? While Art 146 of the CC prohibits waiver of gains or effects of the CPG during the marriage, Art 89 of the FC makes the provision more broad by using the all-inclusive terms rights, interests, shares and effects
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Q: When is waiver allowed? Waiver by one spouse is allowed in the following cases: 1. With the marriage subsisting, in case of a judicial separation of property, which includes the dissolution of the ACP or CPG as a result of legal separation 2. In case the marriage is dissolved by death of one spouse or annulled Q: What is the form of the waiver? 1. The waiver appears in a public instrument 2. Te waiver must be recorded in the office of the local civil registrant where the marriage contract is recorded and in the proper registries of properties Q: Is oral waiver valid? No. There must be a public instrument containing the waiver Q: What is the remedy of the creditor of the spouse who made the waiver? Creditors of the spouse who made the waiver may petition the court to rescind the waiver to the extent of the amount sufficient to cover their credits Q: Does it apply to involuntary waivers? This provision is limited to voluntary waivers, the reason being to avoid undue influence between the spouses, and does not affect judicial transfers Art. 90. The provisions on co-ownership shall apply to the absolute community of property between the spouses in all matters not provided for in this Chapter. b. Properties Covered
All properties belonging to the spouses before the marriage, except those excluded by law, are automatically converted into community or common property, without need of any judicial act on the part of the owner-spouse transferring the same to the community. The same is true with properties acquired by either spouse or in the name of both spouses during the marriage c. Separate Properties
Q: Can the spouses exclude specific properties? The spouses have no option to exclude specific properties from the community.
Art. 92. The following shall be excluded from the community property: (1) Property acquired during the marriage by gratuitous title by either spouse, 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; (2) Property for personal and exclusive use of either spouse. However, jewelry 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. (201a) Q: What does gratuitous title mean? By donation, or testate or intestate succession. Intestacies are included especially as there are more intestacies than testacies. Q: What else are excluded? The fruits and income of the property acquired by donation or succession are excluded Q: Any exceptions? Exception is when the donor, testator or grantor has expressly provided in the donation, will or grant that the property shall form part of the ACP of
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 the marriage or acquired thereafter. Q: What properties do into ACP?
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the spouses, in which case such property and its income and fruits will be community property.
Art. 93. Property acquired during the marriage is presumed to belong to the community, unless it is proved that it is one of those excluded therefrom. (160) Q: To what does the presumption apply The presumption applies to all properties acquired during the marriage. Therefore in order that the presumption can be invoked, the property must be shown to have been acquired during the marriage. The presumption is rebuttable only by strong, clear and convincing evidence. The presumption is stronger when creditors of the spouses are involved than when only the spouses of their successors in interest are involved. The presumption is not rebutted by the mere fact that the deed of sale or certificate of title is in the name of only one spouse. The presumption does not apply to properties excluded from the ACP under Art 92. 5. a. Conjugal Partnership of Gains When applicable
Properties for the personal and exclusive use of either spouse except jewelry Q: What is contemplated in this provision? These are properties not only intended for the personal use of either spouse but those of exclusive use of each Q: Why are jewelry excluded? Even if they are being used exclusively by either spouse because they are valuable and expensive and should form part of the community. Properties acquired before 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 Q: What is the intent of the rule? This rule is intended to protect the rights of legitimate children and descendants of the first marriage since the FC has adopted the system of absolute community between the spouses and if properties of a widow or widower acquired during the first marriage are not excluded from the ACP in her or his second marriage, the rights of the children and descendants of the first marriage over said properties may be prejudiced. Q: What properties are excluded? It excludes from the ACP inheritance from a child by a former marriage who has full blood brothers and sisters, and the presumptive legitime of children by a former marriage. All these excluded properties are already included in the property acquired before the marriage by either spouse who has legitimate descendants by a former marriage? Q: How does this affect the right of children of the second marriage? The above rule does not affect the rights of children of the second marriage to inherit their shares of the properties of their father or mother acquired during his or her first marriage under the law on succession. The rule is intended merely to prevent the merger of properties of the spouse acquired during a former marriage with the other. ACP in the second marriage, if said spouse has legitimate children or descendants by his or her first marriage
Article 105. In case the future spouses agree in the marriage settlements that the regime of conjugal partnership of gains shall govern their property relations during marriage, the provisions in this Chapter shall be of supplementary application. The provisions of this Chapter shall also apply to conjugal partnerships of gains already established between spouses before the effectivity of this Code, without prejudice to vested rights already acquired in accordance with the Civil Code or other laws, as provided in Article 256. Article 106. Under the regime of conjugal partnership of gains, the husband and wife place in a common fund the proceeds, products, fruits and income from their separate properties and those efforts acquired by either or both spouses through their efforts or by chance, and, upon dissolution of the marriage or of the partnership, the net gains or benefits obtained by either or both spouses shall be divided equally between them, unless otherwise agreed in the marriage settlements. Article 107. The rules provided in Articles 88 and 89 shall also apply to conjugal partnership of gains.
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Article 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. Q: What is the conjugal partnership of gains property relation? It is a system of property relations whereby the husband and the wife place in a common fund: 1. the proceeds, products and income of their separate properties (i.e., rentals); 2. everything acquired by them through their efforts (i.e., their work, labor or industry, whether singly or jointly); and 3. everything acquired by them through chance (i.e., winnings from gambling, hidden treasure and those acquired through fishing and hunting). And upon dissolution of the marriage or of the partnership, the net gains or benefits from the partnership shall be divided equally between the spouses, unless they have agreed on another manner of division in their settlement. [Sempio-Diy] Q: When will this property regime apply? For marriages celebrated or to be celebrated after the Family Code takes effect, the regime of conjugal partnership of gains shall only apply when the spouses so provide in a marriage settlement executed prior to the marriage. If they fail to make such a provision, the absolute community of property regime shall apply. For marriages celebrated prior to the effectivity of the Family Code and where the regime of conjugal partnership had already been established between the spouses, this shall continue to govern their property relations. But with respect to provisions under the Family Code on conjugal partnership which have amended provisions of the Civil Code on conjugal partnership, the spouses will now have to be governed by these amendments. Q: When does this property regime commence? It commences at the precise moment that the marriage is celebrated. Any stipulation, express or implied, for the commencement of the regime at any other time shall be void. (Articles 88 and 107).
Q: Can a spouse waive his/her rights, interests, shares and effects in the conjugal partnership during the marriage? NO, except in the following cases: 1. There is judicial separation of property while the marriage is subsisting. 2. The marriage is dissolved either by death or annulment. (Articles 89 and 107) Q: What rules shall govern this property regime? 1. The provisions in the marriage settlement. 2. The provisions in the Family Code. 3. The provisions on ordinary partnership, but only with respect to those not in conflict with what is expressly provided for in the Family Code and in the marriage settlements. (Article 108) Q: Distinguish between absolute community of property and conjugal partnership of gains. Absolute Community of Property All the properties owned by the spouses at the time of marriage become community property. Conjugal Partnership of Gains Each spouse retains his/her property before the marriage and only the fruits and income of such properties become part of the conjugal properties during the marriage. 2. Upon dissolution of the partnership, the separate properties of the spouses are returned and only the net profits of the partnership are divided equally between the spouses or their heirs.
1.
1.
2.
Upon dissolution and liquidation of the community property, what is divided equally between the spouses or their heirs is the net remainder of the properties of the absolute community. b. Properties Covered
Conjugal Partnership Property or Exclusive Property; How to Determine Q: Give the broad guidelines in determining whether property acquired is conjugal or exclusive. If the following requisites are present, the property is conjugal: (DOC)
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1. 2. 3.
The property is acquired during the marriage. The property is acquired on the basis of onerous title. The property was acquired at the expense of the common fund.
Property acquired by onerous title during the marriage at the expense of common fund Q: What does onerous mean? Onerous means that something is received which in return would require some form of payment, either through service or property. It does not have to be for value. NOTES: onerous - purchase - barter/exchange/redemption - labor, work, etc. also falls here Q: Cite examples of property acquired by onerous title. 1. Car bought by the husband for the family using conjugal funds. 2. Car bought by the husband for the use of the wife using conjugal funds even if he placed the car in her name. 3. The husband in an action for damages based on breach of contract and quasi-delict was awarded moral and exemplary damages. The awarded damages are conjugal because the airplane tickets were purchased using conjugal funds. (Zulueta vs. Pan Am Airways, 49 SCRA 1) Q: In spite of #3 above, what is the status of damages received? Actual damages and loss of earning capacity have always been considered as onerous and form part of conjugal property. Likewise, attorneys fees are for services rendered and so, they are conjugal. Moral damages for besmirched reputation, humiliation and embarrassment, on the other hand, are not considered as onerous and are, therefore, exclusive. Exemplary damages which are imposed in order to give an example to the whole world is gratuitous and is also exclusive. (Dean DelCastillo) Property acquired through the labor, industry, work, profession of either or both spouses Q: Cite examples of this. 1. Backpay representing salaries of a spouse, although payment is delayed and made only after the death of one of the spouses. 2. Although under the contract between the husband and the employer, the formers earnings are payable to the wife, the
NOTE: All three requisites must be met regardless of for whose benefit the property is to be used. Anything short of those requirements, invariably, will make the property exclusive. Presumptions Article 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 presumed to be conjugal unless the contrary is proved. Q: What is the presumption as to properties acquired during the marriage? They are presumed to be conjugal unless the contrary is proved. Articles 117 and 109 of the Family Code Article 117. The following are conjugal partnership properties: (1) Those acquired by onerous title during the 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; (3) The fruits, natural, industrial, or civil, due or received during the marriage from the common property, as well as the net fruits from the exclusive property of each spouse; (4) The share of either spouse in the hidden treasure which the law awards to the finder or owner of the property where the treasure is found; (5) The share of either spouse in the hidden treasure which the law awards to the finder or owner of the property where the treasure is found; (6) Those acquired through occupation such as fishing or hunting; (7) Livestock existing upon the dissolution of the partnership in excess of the number of each king brought to the marriage by either spouse; and (8) Those which are acquired by chance, such as winnings from gambling or betting. However, losses therefrom shall be born exclusively by the loser-spouse.
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3.
earnings of the husband are still conjugal. (Rosales de Echaus vs. Gan, 55 Phil. 527) Pensions or retirement pay where premiums are deducted from the salaries of the retired spouse are conjugal. (Bowers vs. Roxas, 69 Phil. 626)
Share of either spouse in hidden treasure, whether as finder or owner of property where treasure is found Q: Give the rules under this provision. 1. If the owner of the property where the treasure is found is one of the spouses and the treasure is found by a stranger, the one-half share of the owner goes to the conjugal partnership. 2. If the property belongs to a stranger and the finder is one of the spouses, the one-half share of the finder-spouse is also conjugal. Property acquired through occupation such as fishing or hunting Q: Why is property acquired through occupation conjugal? Because the property is acquired on the basis of labor, industry and efforts. Q: What kinds of animals and fishes are included in this provision? The provision includes wild animals caught by the husband in the forest while hunting and all kinds of marine life caught while fishing. (The theory here is that the animals and fishes form part of the res nullius.) Livestock existing at dissolution of partnership in excess of what is brought by either spouse to the marriage Q: How do we determine which livestock form part of the conjugal partnership? 1. Count the number of livestock you have at the time of the marriage. 2. Count the number of livestock you have at the time of termination of the conjugal partnership. 3. Deduct #1 from #2. RESULT = Fruits belonging to the conjugal partnership. Q: Give an example of this. Farmer Mon had 3 pigs and 2 horses. Then he got married to Marife. But unfortunately, after just 2 years of marriage, they had their marriage declared null and void on the ground of psychological incapacity on the part of __________. At the time of the termination of the marriage, Mon had already 5 pigs and 3 horses. The 2 pigs and 1 horse are considered as forming part of the conjugal properties of the spouses. As Dean Del-Castillo says, you do not have to make tatak the animals at the beginning of the marriage to indicate that the animal is your exclusive property, you only have to count how many they are.
Fruits from common property, and net fruits of exclusive property of each spouse Q: Cite examples of this. 1. All kinds of fruits from conjugal properties as well as exclusive properties of the spouses, like young of animals, produce of land, earnings from business, etc. are conjugal. 2. If fruits were pending on separate property of a spouse at the time of the marriage, the harvest collected during the marriage is conjugal. 3. The wife, before her marriage, received five years advance in rentals from the tenant of a paraphernal building. One year later, she got married. The rentals for the first year are paraphernal, while the rentals corresponding to the four years falling due during the marriage are conjugal. NOTE: When we speak of fruits of separate properties, the law uses the phrase net fruits, which means that the conjugal partnership cannot collect everything that is earned out of separate properties. The conjugal partnership shall only be entitled to the NET fruits, that is, fruits less the expenses incurred in the maintenance of the separate property. For example, with regard to agricultural crops, you have to deduct the expenses for the gathering of the crops from the value of the fruits gathered. The conjugal partnership will only be entitled to the value of the fruits after the expenses for growing and gathering them are deducted. DEAN DEL-CASTILLO: We must also make a distinction between fruits and increments or appreciation in value. Enzo bought property while he was still single for P100. After he got married, he was able to sell it for P1M. This is clearly a case of appreciation of value of the property and so, the difference in value (P1M less P100) still belongs to Enzo, who exclusively owns the property. However, if he leases the property to Jo, the rentals that he will earn are considered as fruits of that property and therefore, conjugal. (increase in value fruits)
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Property acquired by chance, such as winnings from gambling or betting Q: Give the rules under this provision. All winnings in a game of chance form part of the conjugal partnership. All losses, however, are charged to the separate property of the spouse who incurred them. NOTE: We have to make a distinction between a game of chance and a game of skill. Property acquired on account of a game of skill is conjugal because it is based on efforts and industry of the spouse. If property is lost in a game of skill, such can be charged to the conjugal partnership. This is unlike a game of chance where losses are chargeable on the separate property of the spouse. In the case of basketball stars, where they acquire property on the basis of skill, expenses for training should be chargeable to the common fund. Q: If the winning ticket in a lottery or in the sweepstakes was given to a spouse by a friend, are the winnings conjugal or exclusive? It is believed that the ticket would be considered a donation and the winnings therefrom will not be part of the conjugal property unless the donor expressly provides so. [Sempio-Diy] Article 109. The following shall be the exclusive property of each spouse: (1) That which is brought to the marriage as his or her own; (2) That which each acquires during the marriage by gratuitous title; (3) That which is acquired by right of redemption, by barter or by exchange with property belonging to only one of the spouses; and (4) That which is purchased with exclusive money of the wife or of the husband. Property brought to the marriage by each spouse as his or her own Q: Give examples of this. 1. House and lot or car owned by either spouse before the marriage. 2. Property defectively acquired by either spouse (like under a voidable contract) before the marriage, but the defect in the title was cured during the marriage. 3. Property alienated by either spouse before the marriage but reacquired during the marriage because of the annulment or 4.
rescission of the contract, or the revocation of donation if the property was donated. Donations propter nuptias belongs to each of the spouses on an exclusive and separate basis. It is made before the celebration of the marriage and becomes effective immediately. And it does not matter whether the future spouse or a third person is the donor.
NOTES: key is ownership! Property acquired by either spouse during the marriage by gratuitous title Q: Give examples of this. 1. Property acquired during the marriage by either spouse through testate or intestate succession or by donation. 2. A gratuity given out of pure liberality by an employer to either spouse for long, faithful and dedicated service. Q: What is the status of moderate gifts given during the marriage? Exclusively for CPG, any property acquired during the marriage by gratuitous title is exclusive. Moderate gifts are property acquired through gratuitous title. But make a distinction between jewelry given under ACP and CPG. Under ACP, there is a provision which provides that jewelry is always conjugal regardless of whether it was acquired gratuitously or onerously. Under CPG, there is no such provision. Therefore, if jewelry was given gratuitously then we should follow the rules in CPG and conclude that the jewelry is exclusive property. (Dean Del-Castillo) Property acquired by right of redemption, barter or exchange with exclusive property Q: What is the test in determining whether property acquired by barter or exchange is conjugal or exclusive? The test is to determine the nature of the property you used to barter or exchange for the new property. If the property used in the exchange or barter is exclusive, then the newly acquired property is also exclusive. If the property used in the exchange or barter is conjugal property, then the newly-acquired property is also conjugal.
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Q: What is the test in determining whether the property to be redeemed is conjugal or exclusive? The test is to determine who owns the right of redemption. In the case of a pacto de retro, which was executed prior to the celebration of the marriage, we assume that the spouse used his/her own property for the purpose of the transaction. The right of redemption, therefore, was acquired on the basis of the fact that the property used in the transaction is separate. And so, the right of redemption is also separate. Even if the exercise of the right of redemption is done after the celebration of the marriage, the property redeemed is still separate and exclusive property. If conjugal funds were used to redeem the property then the owner-spouse owes the conjugal funds for the amount used to redeem the property. With regard to property which is conjugal and is the subject of a pacto de retro sale, the right of redemption belongs to the conjugal partnership. Therefore, the property redeemed forms part of the conjugal partnership. Q: Cite examples of these. 1. 2. Barter: Property inherited by wife from her father was exchanged by her with another property. The newly-acquired property is paraphernal. Redemption: Wife sold a piece of land with a right to repurchase before her marriage. During the marriage, she and her husband redeemed it with conjugal funds. The land is still paraphernal but the wife must indemnify the conjugal partnership with the redemption money upon liquidation. Exchange: Wifes paraphernal building was insured before the marriage but burned during the marriage and the wife collected the insurance. The insurance money is paraphernal.
Article 118. Property bought on installments paid partly from exclusive funds of either or both spouses and partly from conjugal funds belongs to the buyer or buyers if full ownership was vested before the marriage and to the conjugal partnership if such ownership was vested during the marriage. In either case, any amount advanced by the partnership or by either or both spouses shall be reimbursed by the owner or owners upon liquidation of the partnership. Q: When does this Article apply? This Article applies when property is bought on installments by either the husband or wife before the marriage but was fully paid only after the marriage using conjugal funds. Q: How is the status of the property determined if it is bought on installments? The status is determined by asking the question: When did ownership transfer? If the property was bought on installment by a spouse before the marriage and the contract of sale is such that ownership was already vested on the buyer-spouse at the time of the execution of the contract, the property is exclusive, even if installments on the price up to full payment came from the conjugal funds. The amounts paid by the conjugal partnership shall, however, be reimbursed to it by the owner-spouse at the time of the liquidation of the partnership. If, however, the contract of sale of installment is such that ownership did not vest on the buyer at the time of the execution of the sale and ownership vested only after the whole price was paid during the marriage and out of conjugal funds, the property is conjugal, but the conjugal partnership shall reimburse the buyer-spouse the installment paid by him or her before the marriage. Q: Give an example of property bought on installment where ownership vested at the time of execution of the contract. Contract of sale. Happy, while still single, bought a car under a contract of sale. Under the law on sales, ownership transfers to him immediately upon the execution of the contract even if he is still amortizing the payments to the car. Happy, therefore, is the exclusive owner of the car even after he gets married.
3.
Property purchased with exclusive money of either spouse Q: Cite examples of this. 1. A diamond ring purchased by the wife with her own money is paraphernal. 2. Land acquired by the wife with her exclusive money is paraphernal, even if her title describes her as A, married to B. Property Bought on Installment
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If Happy uses the salaries earned by him after the marriage, which under CPG is conjugal property, to pay the amortizations on the car then upon the liquidation of conjugal partnership, Happy has to reimburse said amounts. Q: Give an example of property bought on installment where ownership vests only after the full price is paid. Contract to sell. Under the law on sales, ownership is not transferred until full payment of the purchase price is made. DEAN DEL-CASTILLO: One of the ways in determining whether a contract is a contract of sale or a contract to sell is that whenever property is bought on installment basis and it is a basis on a contract of sale, there is a mortgage normally attached to it. Credits Payable Article 119. Whenever an amount or credit payable within a period of time belong 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 the exclusive property of the spouse. However, interests falling due during the marriage on the principal shall belong to the conjugal partnership. Q: When does this Article apply? This Article applies when one of the spouses lends out money or property prior to the celebration of the marriage but only receives back the money or property plus the interests after the celebration of the marriage. Q: Is the money or property you lent out (principal) conjugal or exclusive? Exclusive, even if payment was made before or after the celebration of the marriage, because it is only the return of the money or property lent which is exclusive. Q: Are interests paid conjugal or exclusive? It depends. Interests are considered fruits of the principal property which under CPG should form part of the conjugal property. And so, with respect to interest payments made before the celebration of the marriage, these are considered as exclusive property while interest payments made after the celebration of the marriage are considered conjugal. Donations
Article 113. Property donated or left by will to the spouses, jointly and with designation of determinate shares, shall pertain to the doneespouse as his or her own exclusive property, and in the absence of designation, share and share alike, without prejudice to the right of accretion when proper. Article 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. Q: What is the rule with regard to property donated or left by will to the spouses? If there is a designation of the shares of each spouse in the property, they will own their respective shares exclusively. If there is no designation of the shares of the spouses in the property, then they will share it fifty-fifty, or one-half goes to the wife and the other half to the husband. The property, in this case, is exclusive to the spouses because it is acquired by gratuitous title. Q: Is there a right of accretion between the spouses as regards donated property? YES. The right of accretion takes place when either spouse: 1. refuses to accept; 2. is incapacitated to accept; or 3. predeceases or dies before the perfection of the donation. Q: Is there an exception to the rule on the right of accretion? YES. There can be no right of accretion when the donor provides that there can be no right of accretion in the deed of donation. Retirement benefits, Pensions, Annuities, Gratuities, Usufructs, etc. Article 115. Retirement benefits, pensions, annuities, gratuities, usufructs and similar benefits shall be governed by the rules on gratuitous or onerous acquisitions as may be proper in each case. Q: Are gratuities conjugal or exclusive?
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Being gratuitous, they are exclusive. Gratuities are not based on services rendered but are rewards in consideration of good services/deeds, over and above what is due. There are not based on any legal obligation to pay. Q: Are pensions conjugal or exclusive? Conjugal, because they are normally defined as additional compensation for services rendered. They are income coming from industry or work. Q: Are retirement benefits conjugal or exclusive? It depends. If they are contributory then they are conjugal. If they are noncontributory then they are exclusive. Sarmiento v. IAC FACTS: There are two cases involved here. In the first case, Norma Sarmiento sued her husband, Cesar Sarmiento, for support. The lower court rendered judgment ordering Cesar to pay Norma P500.00 per month as support. Cesar appealed this decision. Norma, on the other hand, moved for execution pending appeal. The CA found Cesars appeal as unmeritorious and dismissed the same. In the second case, Norma brought another action against Cesar for the declaration that the retirement benefits due to Cesar from PNB (Cesar was a former PNB employee) as conjugal and that 50% thereof belonged to her as her share. Cesar failed to appear during the pre-trial conference and was declared in default. The RTC rendered judgment in favor of Norma and ordered PNB to deliver of the retirement benefits due to Cesar to Norma. Hence, this petition for certiorari and prohibition. ISSUE: WON retirement benefits due to the husband is conjugal property of which should be delivered to the wife. HELD: NO, it is not conjugal property. The directive to deliver of the retirement benefits to the wife makes the default judgment illegal because retirement benefits have been adjudged as gratuities or reward for lengthy and faithful service of the recipient and should be treated as separate property of the retiree-spouse. Thus, if the monetary benefits are given gratis by the government because of previous work (like the retirement pay of a provincial auditor in Mendoza vs. Dizon, L-387, October 25, 1956; or that of a Justice of the Peace (Elcar vs. Eclar, CA-40
O.G. 12th Supp. No. 18, p. 86), this is a gratuity and should be considered separate property. COMMENTS: There are two kinds of retirement plans: contributory and non-contributory plans. In the case of the government, it usually has non-contributory plans. That is why in the case of Sarmiento, who was a government employee (PNB), the SC held that the retirement pay was a gratuitous acquisition and therefore, an exclusive and separate property of the husband. But in most private companies, employees contribute to their own retirement plans. So in the case of contributory retirement plans, retirement benefits should form part of the conjugal partnership. Improvements Article 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 spouses shall pertain to the conjugal partnership or to the original owner-spouse, subject to the following rules: When the cost of the improvement made by the conjugal partnership and any resulting increase in value 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 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 ownerspouse, 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 the liquidation of the conjugal partnership. Q: What are the rules regarding ownership of principal and improvements made on the principal? Use the example of land being the principal and a house built on the land as the improvement. Rule 1 IF land = belongs to conjugal partnership house = used conjugal funds
THEN obviously, the land as well as the house belong to the conjugal partnership. Rule 2 IF land = belongs to conjugal partnership
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house = used separate funds THEN the land remains to be conjugal. There can never be any instance where conjugal property becomes separate property through the use of separate funds. Although there are instances where separate property becomes conjugal through the use of conjugal funds. The house, likewise, is conjugal. Article 121 paragraph 4 provides for reimbursable expenses chargeable to the conjugal partnership. This is regardless of the value of the house, that is, even if the house may be worth more than the house, it does not make the house the separate property of the spouse. The conjugal partnership, in this case, must reimburse the spouse who used his/her funds for the amounts spent to build the house. This is illustrative of the principle that the accessory follows the principal. Under the laws on property, the land is always the principal and whatever you build on it will always be the accessory. Rule 3 IF land = belongs to separate property house = used conjugal funds
of the land. In the formula of Sempio-Diy, you are given two distinct values, namely: the cost of the improvement and the increased value of the land. It is not included in the latter cost of the improvement. Therefore: 1. If the value of the land is more than the cost of the house then the land remains as separate property and the house becomes separate property. The owner-spouse of the land has to reimburse the conjugal partnership for the amounts it used to build the house. 2. If the cost of the house is more than the value of the land, then both the house and the land are conjugal. But the conjugal partnership must reimburse the owner-spouse of the land for the value of the land. Q: When does ownership over the entire property vest on the ownerspouse or conjugal partnership, as the case may be? Upon the reimbursement of the improvement or the value of the property, as the case may be. Q: When should reimbursement be made? Reimbursement should be made at the time of liquidation of the conjugal partnership. And so, until reimbursement is made, the owner-spouse still retains ownership over the parcel of land. Q: Can reimbursement be made at any time before liquidation? Of course. Then upon reimbursement, ownership is transferred. Rule 4 IF land = belongs to separate property house = used separate funds
THEN we have to modify the principle that the accessory follows the principal. The Family Code provides that we have to compare the value of the property before the improvement and the value of the improvement. The higher of the two values is the principal. NOTES: whenever the land is conjugal, then the property is always conjugal. Only when the land is exclusive will the rule on comparison of values apply. Q: How do we determine the value of the property (land)? Get its value at the time of acquisition. Q: How do we determine the value of the improvement? Two ways: 1. Add: cost of the improvement on the separate property + resultant increase in the value of the property due to the improvement. [Sempio-Diy] 2. Subtract: value of the land now value of the land at the time of acquisition. (Dean Del-Castillo) NOTE: The reason for the simplified formula of the Dean is that she believes that the cost of the improvement is usually the resultant increase in the value
THEN obviously, both the land and the house are the separate property of that spouse. c. Exclusive Properties
Rights with Respect to Exclusive Properties Article 110. The spouses retain the ownership, possession, administration and enjoyment of their exclusive properties. Either spouse may, during the marriage, transfer the administration of his or her exclusive property to the other by means of a public instrument,
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which shall be recorded in the registry of property of the place where the property is located. Article 111. A spouse of age may mortgage, encumber, alienate or otherwise dispose of his or her exclusive property, without the consent of the other spouse, and to appear alone in court to litigate with regard to the same. Article 112. The alienation of any exclusive property of a spouse administered by the other automatically terminates the administration over such property and the proceeds of the alienation shall be turned over to the owner-spouse. Q: What are the rights of the spouses with respect to their exclusive properties? 1. each spouse has the right to retain ownership, possession, administration and enjoyment of his/her exclusive property. (Article 110 par. 1) 2. As a consequence of the rights of ownership, the owner-spouse may mortgage, encumber, alienate or otherwise dispose of his/her exclusive property without the consent of the other spouse. (Article 111) 3. The owner-spouse can also appear alone in court to litigate with regard to his/her exclusive property. (Article 111) 4. Either spouse may, during the 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 of the place where the property is located. (Article 110 par. 2) 5. The spouse who had transferred administration of his/her property to the other spouse automatically terminates the administration when he/she alienates the property subject of administration. (Article 112) 6. a. Charges upon and obligations of the Absolute Community/Conjugal Partnership Differences
Wong v. IAC FACTS: Romarico Henson married Katrina Pineda. They had 3 children but from early on in the marriage lived separately. During the marriage Romarico purchased a parcel of land in Angeles City with money borrowed from an officemate. Katrina meanwhile incurred an indebtedness to Anita Wong upon her failure to return some jewelry left on consignment and to pay the value thereof. Anita and her husband filed against the Hensons an action for collection of a sum of money. Judgment was rendered ordering the Hensons to pay the Wongs. A writ of execution was issued and Romaricos lots in Angeles were levied upon and sold at public auction. Romarico filed an action for annulment of the courts decision, the levy and the auction sale. He claimed that he had nothing to do with Katrinas business transactions, which he did not authorize, and that the properties levied upon and sold at public auction were his own capital properties. The lower court ruled in his favor and this was affirmed by the IAC. ISSUES: 1. Are the properties in question conjugal? 2. If so, should the properties be made to answer for the indebtedness incurred by Katrina? HELD: 1. YES. Having been acquired during the marriage, the properties are presumed to belong to the conjugal partnership even though the spouses had been living separately. The presumption subsists in the absence of a clear and convincing evidence to prove the properties were exclusively owned by Romarico. While there is proof that he bought the lots with money borrowed from an officemate, it is unclear where he obtained the money to repay the loan. Proof on this matter is very important considering that in determining the nature of property acquired during coverture, the controlling factor is the source of the money used in the purchase. 2. NO. Notwithstanding the conjugal nature of the properties, Katrinas indebtedness may not be paid for by them as her obligation has not been shown by the creditor Wong spouses to be one of the charges against the conjugal partnership. In addition to the fact that her rights over the properties are merely inchoate prior to the liquidation of the conjugal partnership, the consent of her spouse and her authority to incur such indebtedness has not been alleged in the complaint nor proven at the trial.
NOTE: Please see page 148-A for a separate table on charges and obligations of ACP/CPG
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Moreover, under the Civil Code, a wife may bind the conjugal partnership only when she purchases things necessary for the support of the family; when the administration of the conjugal partnership is transferred to the wife by the courts or by the husband; and when the wife gives moderate donations for charity. Having failed to establish that any of these circumstances occurred, the Wongs may not bind the conjugal assets to answer for Katrinas personal obligation to them although they may proceed against her separate properties. Ayala Investments v. CA FACTS: Respondent Alfredo Ching executed security agreements in favor of PBM, of which he is the EVP, making himself jointly and severally liable for the P50.3M credit line extended to PBM by Ayala Investment and Devt. Corp (AIDC). PBM failed to pay the loan, and 3 of the conjugal properties of respondent Alfredo with his wife Encarnacion were scheduled for auction sale. CA ruled that that the conjugal partnership of private respondents is not liable for the obligation by the respondent-husband. ISSUE: Under Article 161 of the Civil Code, what debts and obligations contracted by the husband alone are considered "for the benefit of the conjugal partnership" which are chargeable against the conjugal partnership? Is a surety agreement or an accommodation contract entered into by the husband in favor of his employer within the contemplation of the said provision? HELD: The security here is not chargeable against the CPG. The burden of proof that the debt was contracted for the benefit of the conjugal partnership of gains, lies with the creditor-party litigant claiming as such. In the case at bar, AIDC failed to prove that the debt was contracted by the respondent husband for the benefit of the CPG. What is apparent from the facts of the case is that the judgment debt was contracted by or in the name of the Corporation PBM and respondent husband only signed as surety thereof. The debt is clearly a corporate debt and AIDCs right of recourse against respondent husband as surety is only to the extent of his corporate stockholdings. It does not extend to the CPG of his family. It is true that the family will benefit in the ff. ways: husbands employment would be prolonged because of the loan he guaranteed, shares of stock of the family with PBM would appreciate if rehabilitation would ensue following the loan obtained, the husbands prestige in the corporation would be enhanced if he succeeds in rehabilitating PBM. However, these are not the benefits contemplated by Article 161 of the Civil Code. The
benefits must be one directly resulting from the loan. It cannot merely be a by-product or a spin-off of the loan itself. The "benefits" contemplated by the exception in Article 122 (Family Code) is that benefit derived directly from the use of the loan. In the case at bar, the loan is a corporate loan extended to PBM and used by PBM itself, not by respondent husband or his family. Moreover, acting as surety is not part of the business of the respondent husband. The fact that on several occasions the lending institutions did not require the signature of the wife and the husband signed alone does not mean that being a surety became part of his profession. Neither could he be presumed to have acted for the conjugal partnership. What is the meaning of for the benefit of the conjugal partnership? The debts contracted by the husband during the marriage relation, for and in the exercise of the industry or profession by which he contributes toward the support of his family, are not his personal and private debts, and the products or income from the wife's own property, which, like those of her husband's, are liable for the payment of the marriage expenses, cannot be excepted from the payment of such debts. (Javier vs. Osmea) The husband, as the manager of the partnership (Article 1412, Civil Code), has a right to embark the partnership in an ordinary commercial enterprise for gain, and the fact that the wife may not approve of a venture does not make it a private and personal one of the husband. (Abella de Diaz vs. Erlanger & Galinger, Inc.) Debts contracted by the husband for and in the exercise of the industry or profession by which he contributes to the support of the family, cannot be deemed to be his exclusive and private debts. (Cobb-Perez vs. Lantin). . . . if he incurs an indebtedness in the legitimate pursuit of his career or profession or suffers losses in a legitimate business, the conjugal partnership must equally bear the indebtedness and the losses, unless he deliberately acted to the prejudice of his family. (G-Tractors, Inc. vs. Court of Appeals) RULES: a) If the husband himself is the principal obligor in the contract, i.e., he directly received the money and services to be used in or for his own business or his own profession, that contract falls within the term . . . . obligations for the benefit of the conjugal partnership." Here, no actual benefit may be proved. It is enough that the benefit to the family is apparent at the time of the signing of the contract. From the very nature of the contract of loan or services, the family stands to benefit from the loan facility or services to be rendered to the business or profession of the husband. It is
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immaterial, if in the end, his business or profession fails or does not succeed. Simply stated, where the husband contracts obligations on behalf of the family business, the law presumes, and rightly so, that such obligation will redound to the benefit of the conjugal partnership. b) On the other hand, if the money or services are given to another person or entity, and the husband acted only as a surety or guarantor, that contract cannot, by itself, alone be categorized as falling within the context of "obligations for the benefit of the conjugal partnership." The contract of loan or services is clearly for the benefit of the principal debtor and not for the surety or his family. No presumption can be inferred that, when a husband enters into a contract of surety or accommodation agreement, it is "for the benefit of the conjugal partnership." Proof must be presented to establish benefit redounding to the conjugal partnership. Ching v. CA FACTS: Petitioner Alfredo Ching (once again) acted as a surety for Cheng Ban Yek & Co., Inc. Family Savings Bank then filed a complaint for collection of a sum of money w/ the CFI of Manila against Cheng and petitioner Ching. The conjugal property belonging to petitioner and his wife Encarnacion were levied upon. Petitioner spouses then filed w/ the CFI of Rizal a petition seeking to declare illegal the levy on attachment upon their conjugal property. TC dismissed for lack of jurisdiction as the subject property were already under custodia legis w/ the CFI of Manila. Meanwhile, the CFI of Manila rendered judgment in favor of the Bank and, consequently, the conjugal properties were sold through public auction. CA affirmed this judgment and this became final. In an effort to prevent the deputy sheriff from consolidating the sale, petitioners filed a second annulment case w/ the RTC of Makati, seeking to declare void the levy and sale on execution of their conjugal property. The petitioners won. The Bank appealed to the CA, which reversed the Makati RTC decision, declaring that the Makati annulment case is barred by res judicata because of the prior Rizal annulment case and Manila collection case. The SC ruled that the Makati annulment case should have been dismissed from the start for lack of jurisdiction. The RTC of Makati does not have the authority to nullify the levy and sale on execution that was ordered by the CFI of Manila, a co-equal court. The determination of whether or not the levy and sale of a property in execution of a judgment was valid, properly falls within the jurisdiction of the court that rendered the judgment and issued the writ of execution.
ISSUE: Is the wife, Encarnacion Ching, who was not a party to the collection case, allowed to file a separate case as a 3rd party claimant without encroaching upon the jurisdiction of a co-equal and coordinate court? HELD: NO. Under Section 16 of Rule 39 of the Rules of Court, a separate and distinct case from that in which the execution has issued is proper if instituted by a stranger to the latter suit. Upon the other hand, if the claim of impropriety on the part of the sheriff in the execution proceedings is made by a party to the action, not a stranger thereto, any relief therefrom may only be applied with, and obtained from, the executing court. This is true even if a new party has been impleaded in the suit. Is a spouse, who was not a party to the suit but whose conjugal property is being executed on account of the other spouse being the judgment obligor, considered a stranger? NO, the husband/wife of the judgment debtor cannot be deemed a stranger to the case prosecuted and adjudged against his wife/husband, which would allow the filing of a separate and independent action. Clearly, it was inappropriate for petitioners to institute a separate case for annulment when they could have easily questioned the execution of their conjugal property in the collection case. In fact, the trial court in the Rizal annulment case specifically informed petitioners that Encarnacion Chings rights could be ventilated in the Manila collection case by the mere expedient of intervening therein. Apparently, petitioners ignored the trial courts advice, as Encarnacion Ching did not intervene therein and petitioners instituted another annulment case after their conjugal property was levied upon and sold on execution. There have been instances where the SC ruled that a spouse may file a separate case against a wrongful execution. However, in those cases, the institution of a separate and independent action was allowed because what were executed upon were the paraphernal or exclusive property of a spouse who was not a party to the case. In those instances, said spouse can truly be deemed a stranger. In the present case, the levy and sale on execution was made upon the conjugal property.
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Article 122. The payment of personal debts contracted by the husband or the wife before or during the marriage shall not be charged to the conjugal partnership except insofar as they redounded to the benefit of the family. Neither shall the fines and indemnities imposed upon them be charged to the partnership. However, the payment of personal debts contracted by either spouse before the marriage, that of fines and indemnities imposed upon them, as well as the support of illegitimate children of either spouse, may be enforced against the partnership assets after the responsibilities enumerated in the preceding Article have been covered, if the spouse who is bound should have no exclusive property or if it should be insufficient; but at the time of the liquidation of the partnership, such spouse shall be charged for what has been paid for the purposes above-mentioned. NOTES: Difference with respect to antenuptial debts that did not redound to the benefit of the family. ACP Article 94(9) CPG Article 122 May be enforced outright from the May only be enforced from conjugal community properties. properties after the other responsibilities (1-9) under Art. 121 have been covered, AND, the spouse who is bound does not have sufficient exclusive property. But at the time of the liquidation of the ACP or CPG, the spouse-debtor shall be charged for what has been paid. (With respect to ACP, it is considered as an advance of his/her share in the ACP upon liquidation.) Charges and Obligations Support (Articles 94[1] for ACP and 121[1] for CPG) Q: Who are the persons entitled to support from the community property/conjugal partnership? a) The spouses; b) Their common children, legitimate or illegitimate; and c) The legitimate children of either spouse. Q: What does support include? Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family. (Article194)
Q: Is it possible for a married couple to have illegitimate children? YES. Common children of the couple born before they were married and at a time when an impediment existed to their being married are considered illegitimate. These children cannot even be legitimated upon the marriage of the parents. But they are entitled to support from the community property/conjugal partnership as common children of the spouses. Q: How are the illegitimate children of the spouses to be supported? They are to receive support from the separate property of the spouse who is their parent. However, where such parent has no separate property or where it is insufficient, the absolute community or the conjugal partnership shall advance the support, which shall be deducted from the spouses share upon liquidation. (Article 197) NOTE: Dean says this is one of those instances where there is bias against illegitimate children. Q: Are these advances for support of illegitimate children of one spouse treated differently under ACP and CPG? YES. Look at Article 94 (9) on ACP and Articles 121 and 122 on CPG. Q: How are the advances for support of illegitimate children of one spouse treated under CPG? Under CPG, before an illegitimate child can be given support advanced from the conjugal partnership, all the obligations listed under Article 121 must first be satisfied. (Article 122) This, in effect, gives preference to the creditors over the illegitimate children of one spouse. Q: Why does the law impose this condition? Under CPG, there is a greater chance that the spouse obliged to give support to his/her illegitimate children still has separate properties with which to satisfy such support, since separate properties of the spouses remain separate even after the marriage. Q: How are advances for support of illegitimate children of one spouse treated under ACP? Under the ACP regime, no such condition is imposed. That is, the support of illegitimate children of one spouse can be advanced directly from the absolute community property (if there is no separate property or if such property is insufficient) as one of the listed charges under Article 94, without first satisfying obligations to other creditors.
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Q: Why is there no such condition imposed under ACP? The reason for this is that under the ACP regime, there is only a slight chance that the spouse obliged to give support to his/her illegitimate children has separate properties, since almost all of his/her properties at the time of the marriage are brought into the community property. DEAN DEL-CASTILLO: The imposition of the condition under the CPG (Article 122 with respect to support of illegitimate children of one spouse) is based on the assumption that such spouse has sufficient separate properties. This is an assumption made by the law which does not properly consider the fact that many couples enter into a marriage without any property of their own, so that even under the CPG property regime the spouses would not have exclusive properties. What happens if there are no separate properties or where the conjugal partnership properties are insufficient to cover even the charges that first should be satisfied under Article 121? Well, too bad for the illegitimate children of that spouse. They will not be able to receive support from the conjugal properties. Debts and Obligations Contracted DURING the marriage (Articles 94 [2], [3] for ACP and 121 [2], [3] for CPG) Q: What are the 4 situations covered by debts contracted DURING the marriage? 1. Where the administrator-spouse alone entered into the obligation; 2. Where both spouses contracted the debt; 3. Where one spouse incurred the debt with the consent of the other; 4. Where one spouse contracted the debt without the consent of the other. Q: How else can these 4 situations be classified? They can be classified basically into 2 groups, to wit? 1. Where only one spouse incurred the debt/obligation a) As the administrator-spouse, or b) Without the consent of the other spouse. 2. Where both spouses incurred the debt/obligation a) Both spouses contracted the debt; or b) One spouse contracted the debt with the consent of the other. Q: When does one spouse become the administrator-spouse?
1. 2. 3.
By agreement of the spouses in the marriage settlement; Where the other spouse is incapacitated or otherwise unable to participate in the administration of the ACP/CPG; Where the court grants sole administration to one spouse because of abandonment, mismanagement, failure to comply with obligations to the family, etc.
Q: When are the debts/obligations incurred by the administrator-spouse chargeable to the ACP/CPG? The debts/obligations incurred by the administrator-spouse are chargeable to the ACP or CPG only when such expense is for the benefit of the family. Q: When are the debts/obligations incurred by only one spouse, without the consent of the other, chargeable to the ACP/CPG? Again, they are chargeable to the ACP/CPG only if such expense has benefited the family. NOTE: As long as the debts/obligations are incurred by only one spouse (either as the administrator-spouse or because of absence of consent of the other spouse), there must be benefit to the family in order that they be chargeable to the ACP/CPG. Q: Why must there be benefit to the family in these cases? As only one spouse is in effect incurring the debt, there is no presumption that the expense was for the benefit of the family. The spouse involved could be incurring the debt for his/her exclusive benefit. Moreover, the spouses have joint administration under the Family Code, and one should not act without the consent of the other. [Sempio-Diy] Q: Who has the burden of proving that the debt/obligation is for the benefit of the family? The creditor. Q: What if the creditor fails to prove that the family benefited? Then the debt or obligation can be charged only against the separate property of the spouse who incurred the debt. (See Wong vs. IAC, infra) Q: Must debts/obligations incurred by both spouses be proven to be for the benefit of the family? NO. Where both spouses incur the debt or where one does so with the consent of the other, the presumption is that such debt was incurred for the
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benefit of the family. Therefore, the creditor need not prove the benefit to the family in order that the debt be chargeable to the ACP/CPG. DEAN DEL-CASTILLO: This is the reason why creditors required both spouses to sign a loan instrument (under the phrase with marital consent), precisely so that the creditor can enforce the obligation against the ACP/CPG and dispensing with the requirement of proving benefit to the family. COMMENT: What is the common denominator of these cases? According to Dean, if the loan is incurred by one spouse for business purposes (i.e. to finance his/her business), for as long as the business itself supports the family in some way, then such loan or other obligation is for the benefit of the family and is chargeable to the ACP/CPG. The loan itself need not benefit the family to be chargeable to the ACP/CPG. NOTES: Look at the nature of the transaction and not the actual result. If he/she went into the business with the view of benefiting the family = chargeable. Taxes, Liens, Charges, Expenses and Repairs on Property (Articles 94 [4], [5] for ACP and 121 [4], [5] for CPG) Q: When are taxes, liens, charges and expenses upon properties chargeable to the ACP/CPG? These are chargeable to the ACP/CPG whenever they are made upon either community properties or conjugal properties. NOTE: 1. Taxes here include those on the community/conjugal property itself and also on its fruits, since the fruits of these properties also belong to the ACP/CPG. 2. Most taxes are treated as expenses for mere preservation. 3. Repairs on community/conjugal properties are borne by the ACP/CPG, whether major or minor. Q: What are major repairs? Major repairs are those caused by extraordinary events such as storms, floods, earthquakes, fire, etc., affecting the substance and not just the enjoyment of the property.
Q: What are minor repairs? Minor repairs are those for mere preservation of the property or those caused by ordinary wear and tear. Q: Are taxes and expenses on separate properties also chargeable to the ACP or CPG? It depends. The rule is different depending on whether the property regime is ACP or CPG. (Compare Article 94 [5] and Article 121 [5]) Under ACP, taxes and expenses for mere preservation are chargeable to the ACP when made upon separate property of either spouse used by the family. Under CPG, there is no such qualification that the separate property be used by the family. Q: What is the reason behind this distinction as regards separate property of the ACP? The reason for the distinction is that the conjugal partnership is the usufructuary of all separate properties of the spouses and is entitled to all their fruits; hence, it is required to pay for all taxes and expenses for mere preservation on said properties since such would really benefit the family. In ACP however, the absolute community is not entitled to the fruits of all properties excluded from the community under Art. 92. Therefore, it has no obligation to pay for the taxes and expenses of preservation of separate properties of the spouses, except only if it is using said properties. (SempioDiy) Q: What kind of expenses on separate properties are chargeable to the ACP/CPG? Expenses on separate properties which are chargeable to the ACP/CPG are limited to those for mere preservation or for minor repairs. Major repairs should already be paid by the owner-spouse (Sempio-Diy). Useful or luxurious expenses on separate properties are also not chargeable to the ACP/CPG (old reviewer) Q: Cite an example of this situation. A building exclusively owned by the wife was completely burned. If she would like to reconstruct the building, she will have to pay with her own exclusive money, since that is no longer an expense for mere preservation but an extraordinary or major repair.
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6.1.4. Expenses for professional, vocational or self-improvement course of either spouse [Articles 94 (6) for ACP and 121 (6) for CPG] Q: What is included in activity for self-improvement? Self-improvement activities include seminars, lectures, speech power lessons, self-defense courses, cooking lessons, etc. (Sempio-Diy) DEAN DEL CASTILLO: Self-improvement could also cover Rotary Club membership and golf club dues, where the spouse concerned uses these activities to meet clients. Beauty parlor expenses and exercise or weight control courses could also be charged to the ACP/CPG, especially if the spouse is in a profession where he/she needs to meet people and look presentable (like models, insurance agents). Q: What is the intention of the law in providing for this? The intention of the law is to encourage the spouses to improve themselves for the benefit not only of their families but of the nation as a whole (Sempio-Diy) 6.1.5. Antenuptial debts that benefited the family [Articles 94 (7) for ACP and 121 (7) for CPG] Q: What are antenuptial debts? These refer to obligations entered into by either spouse before the celebration of the marriage. Q: When are antenuptial debts of either spouse chargeable to the ACP/CPG? They are chargeable to the ACP or CPG when such have redounded to the benefit of the family. Q: Cite examples. 1. expenses incurred by the wife on a building owned by her before the marriage but which became community property after the marriage 2. loans incurred by the husband before the marriage for the purchase of the conjugal home or with which to start a business intended for the support of the family
Q: What if the antenuptial debt did not redound to the benefit of the family (such as fines and damages)? Under ACP, if the antenuptial debt did not redound to the benefit of the family, the applicable law is Art. 94 (9). That is, such antenuptial debt will be charged to the ACP in case of absence or insufficiency of the exclusive property of the debtor-spouse. Under CPG, if the antenuptial debt did not benefit the family, the applicable rule is Art. 122, par. 3. That is, such antenuptial debt will be charged against the CPG in case of absence or insufficiency of the separate property of the debtor-spouse and after all other charges against the CPG under Art. 121 have been covered. Where such antenuptial debt did not benefit the family but is still properly charged against the ACP/CPG, this is treated as an advance from the community property or conjugal partnership, the same to be repaid upon liquidation by the debtor-spouse. 6.1.6. Donations by spouses to children [Articles 94 (8) for ACP and 121 (8) for CPG] Q: What are the requisites under this provision? 1. the donation or promise is made by both spouses; 2. during the marriage; 3. in favor of their common legitimate children; --excludes illegitimate children; must be both common and legitimate 4. for the exclusive purpose of commencing or completing a professional or vocational course or other activity for selfimprovement All these requisites must concur in order that the value of what is donated or promised by the spouses be chargeable to the ACP or CPG. DEAN DEL CASTILLO: Educational expenses already fall under support so this provision really covers those expenses other than for tuition or school. For instance, if the spouses donate a car to their son so that he can get to and from school, the value of the car would be chargeable to the ACP/CPG if they can justify the expense as necessary to complete his education. Q: How are donations other than the above treated?
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1. 2. 3.
donations made by only one spouse are chargeable against the separate property of that spouse donations to third persons can be chargeable to the ACP/CPG if they are moderate gifts made on the occasion of family rejoicing or demise donations between spouses are prohibited, except again moderate gifts made on the occasion of family rejoicing
They are chargeable against the ACP/CPG in case of absence or insufficiency of the separate property of the debtor-spouse. Q: Does the treatment differ under ACP or CPG? YES, the treatments are different. Under ACP, liabilities incurred by either spouse by reason of a crime or quasi-delict are charged against the ACP/CPG as one of the expenses under Art. 94 (9). Under CPG, fines and indemnities imposed upon a spouse are charged against the ACP/CPG only after the other charges under Art. 121 have been satisfied. NOTE: The same rule are applied with regards the following: (1) support of illegitimate children of only one spouse; (2) antenuptial debts that did not benefit the family; (3) fines and indemnities or liabilities for crimes or quasidelicts. 6.2. Spouses solidarily liable to creditors with their separate properties [Articles 94 and 121, last paragraphs] Q: What happens where the absolute community or conjugal partnership is insufficient to cover the enumerated charges? Where either the absolute community or conjugal partnership is insufficient to cover the foregoing charges, the spouses are then solidarily liable for the unpaid balance with their separate properties. Q: What is the reason behind this rule? The reason for this rule is that the spouses are normally joint administrators of the community or conjugal property. Thus, if it incurs more liabilities than it can pay, they must answer to creditors in solidum with their separate properties. (Sempio-Diy) 6.3. Losses/winnings from games of chance and gambling Absolute Community of Property Art. 95. Whatever may be lost during the marriage in any game of chance, betting, sweepstakes, or any other kind of gambling, whether permitted or prohibited by law, shall Conjugal Partnership of Gains 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
6.1.7. Expenses for litigation between spouses [Articles 94 (10) for ACP and 121 (9) for CPG] Q: Cite examples of litigation between spouses. Actions for declaration of nullity or annulment, legal separation, support, physical injuries or separation of property brought by one spouses versus the other. Q: When are litigation expenses between spouses chargeable to the ACP/CPG? These expenses are chargeable against the ACP/CPG as long as some ground exists for bringing the suit. It is not necessary that the spouse who brought the suit actually obtains favorable judgment. Q: When are expenses of litigation between spouses not chargeable to the ACP or CPG? Expenses of litigation between spouses are not chargeable to the ACP or CPG where the suit is fond to be groundless. Q: What is meant by groundless? Groundless means that the action brought was baseless. If the spouse ho brought the suit did not win solely because of insufficiency of evidence or failure to prove, the action is not considered to be groundless. Q: How are litigation expenses of groundless suits paid? If the suit is found to be groundless then the costs are paid for by the separate property if the spouse who brought the action. 6.1.8. Fines and indemnities [Articles 94 (9) for ACP and 122 for CPG] Q: When are fines and indemnities chargeable to the ACP of CPG?
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be borne by the loser and shall not be charged to the community but any winnings therefrom shall form part of the community property.
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.
Q: Does the mere fact of registration in the name of one spouse (i.e. maiden name of the wife) create an indisputable presumption that the property belongs to such spouse? NO. If it is proven that the property was acquired during the marriage, the presumption of ownership by the absolute community/conjugal partnership still applies. The mere fact of registration in the name of one spouse does not confer ownership to the person named. The titling of properties merely confirms what is already existent. Thus, should there be proof that the parties are married and that the property was acquired during the marriage using money or property owned in common, the property shall be treated as part o the conjugal partnership property or by gratuitous title, in which case, the property shall be treated as part of the absolute community. But if there is no proof as to when the property was acquired, the courts will refuse to apply the presumption. This of course refers merely to cases of conjugal partnership of gains, where properties acquired before the marriage are considered as separate properties. This is not the case in absolute community of property where the general rule is all properties owned prior to the marriage shall form part of the absolute community, except when proof has been shown that the spouse has had legitimate descendants prior to the marriage. Q: Happy registered conjugal property in his name saying he was married to Ms. Lomibao, who is actually his mistress. Will it affect the absolute or conjugal partnership properties because he registered it in his name and stated that he was married to another person who is not his wife? NO. It is still the property of the absolute/conjugal partnership properties of the legitimate spouses. The mistress was deemed to have merely held the property in trust for the benefit of the real wife. Q: What presumption is created by the registration of the property in the name of one spouse with the appendage married to? The appendage does not mean that the property is owned by the absolute/conjugal partnership property. It may give an indication that it is merely a description. If the spouse under whose name it was registered can prove that it was acquire using separate funds, it can still be considered as separate or exclusive property or acquired by gratuitous title.
Q: How are losses during the marriage in games of chance, betting, sweepstakes and other kinds of gambling treated? These losses are borne by the losing spouse personally and are not charged against either the community property or conjugal partnership. Q: What about winnings? Winnings from games of chance or gambling, whether permitted or prohibited by law, become part of the community property or conjugal partnership. Q: What if the winning ticket in a lottery was given to a spouse by a friend? It is believed that the ticket would be considered a donation or property acquired by gratuitous title and the winnings therefrom would not form part of the community property or conjugal partnership (Sempio-Diy) 7. a. Ownership, Administration and Disposition of Absolute Community/Conjugal Partnership Properties Presumption of Ownership/Effect of registration in name of one of the spouses
7.1. Presumption of ownership/effect of registration in name of one of the spouses Q: What is the presumption with regards ownership of property acquired during the marriage? It is presumed that the property is part of the absolute community of property or the conjugal partnership property, as the case may be. Q: When does the presumption apply? The presumption applies only when it is proven that the property was acquired during the marriage and in the absence of proof to the contrary. Q: Is it possible that there will still be a conflict as to when the property was acquired despite the fact that the property is registered? YES since the date o registration is not necessarily the date of acquisition
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Important points to remember: Q: When may a spouse / interested party validly invoke the presumption that the disputed property is conjugal? He/she must first present proof that the disputed property was acquired during the marriage before the same may be deemed conjugal (Mendoza v Reyes) Q: If the registration of the property is in the name of one of the spouses only, what is the effect on the presumption that such property is conjugal? a. if the one invoking the presumption failed to show when the property was acquired, the property belongs exclusively to the spouse in whose name the property is registered (Ong v CA) b. if the one invoking the presumption has successfully proven that the property was indeed acquired during the marriage, the fact that the land is later registered in the name of one of the spouses does not destroy its conjugal nature (Mendoza v Reyes) Q: What are some of the instances when the Court ruled that there is no sufficient proof that the disputed property was acquired during the marriage? a. mere use of the surname of the husband in the tax declaration of the subject property is not sufficient proof that said property was acquired during the marriage and is therefore conjugal (Ong v CA) b. a Torrens title issued to Martin Lacerna married to Epifania Magallon is merely descriptive of civil status of Martin and does not necessarily prove that the land is their conjugal property (Magallon v Montejo, Jocson v CA) Magallon v. Montejo ISSUE: Whether a supposed wife may claim property to be community property on the basis of the title of the supposed husband. HELD: NO. From the averments of the petition, it is evident that the petitioner Epifania Magallon relies mainly, if not solely, on the fact that the certificate of title to the land carries her name as the "wife" of the owner named therein, Martin Lacerna. The certificate of homestead stated: "... MARTIN LACERNA, Filipino, of legal age, married to Epifania Magallon ..." The phrase "married to Epifania Magallon written after the name of Martin
Lacerna in said certificate of title is merely descriptive of the civil status of Martin Lacerna, the registered owner, and does not necessarily prove that the land is "conjugal" property of Lacerna and petitioner herein. Neither can petitioner invoke the presumption established in Article 160 of the Civil Code that property acquired during the marriage belongs to the conjugal partnership, there being no proof of her alleged marriage to Martin Lacerna except that which arises by implication from the aforestated entry in the certificate of title and for the far more compelling reason that the homestead claim on the land was shown to have been perfected during Martin Lacerna's previous marriage to a Eustaquia Pichan. Moreover, the presumption does not operate where there is no showing as to when property alleged to be conjugal was acquired. In other words, for the presumption to apply, you have to prove 2 things: 1. That the spouses are actually married, which should be shown by proof other than the mere statement in the certificate of title as in the case above. 2. That the property was acquired during the marriage. Estonina v. CA HELD: The presumption under Article 160 of the Civil Code that all property of the marriage belongs to the conjugal partnership applies only when there is proof that the property was acquired during the marriage. Otherwise stated, proof of acquisition during the marriage is a condition sine qua non for the operation of the presumption in favor of the conjugal partnership. In the case at bench, the petitioners have been unable to present any proof that the property in question was acquired during the marriage of Santiago and Consuelo. They anchor their claim solely on the fact that when the title over the land in question was issued, Santiago was already married to Consuelo as evidenced by the registration in the name of "Santiago Garcia married to Consuelo Gaza". This, however, does not suffice to establish the conjugal nature of the property. In Jocson vs. CA, it was held that the certificate of title is insufficient. The fact that the properties were registered in the name of "Emilio Jocson, married to Alejandra Poblete" is no proof that the properties were acquired during the spouses' coverture. Acquisition of title and registration thereof are two different acts. It is well settled that registration does not confer title but merely confirms one already existing It may be that the properties under dispute were acquired by Emilio Jocson when he was still a bachelor but were registered only after his marriage to Alejandra Poblete, which
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explains why he was described in the certificates of title as married to the latter. Contrary to petitioner's position, the certificates of title show, on their face, that the properties were exclusively Emilio Jocson's, the registered owner. This is so because the words "married to" preceding "Alejandra Poblete" are merely descriptive of the civil status of Emilio Jocson In other words, the import from the certificates of title is that Emilio Jocson is the owner of the properties, the same having been registered in his name alone, and that he is married to Alejandra Poblete. Cruz v. Leis FACTS: After the marriage of Adriano and Gertrudes, the latter acquired from the then Department of Agriculture and Natural Resources (DANR) a parcel of land. The Deed of Sale described Gertrudes as a widow, and subsequently, a TCT was issued in the name of "Gertrudes Isidro," who was also referred to therein as a "widow." Adriano died. Thereafter, Gertrudes obtained a loan from petitioner-spouses. For failure of Gertrudes, however, to repurchase the property in due time (she tried to repurchase but did it beyond the prescribed period), ownership thereof was consolidated in the name of Alexander Cruz in whose name a TCT was issued, canceling the TCT in the name of Gertrudes. Meanwhile, prior to the said consolidation of ownership, part of the property was disposed of to different persons. A distinction of WON the property is conjugal is important as it will determine how much of the property could have properly been disposed of by Gertrudes and the heirs (private respondents) of Adriano in favor of other persons, and how much of the property was transferred to petitionerspouses for failure of Gertrudes to repurchase it. ISSUE: WON the property is conjugal property of the spouses Adriano and Gertrudes. HELD: YES. The RTC rendered a decision in favor of private respondents, holding that the land was conjugal property since the evidence presented by private respondents disclosed that the same was acquired during the marriage of the spouses and that Adriano contributed money for the purchase of the property. Thus, the court concluded, Gertrudes could only sell to petitioner spouses her one-half share in the property. The Court of Appeals affirmed, holding that since the property was acquired during the marriage of Gertrudes to Adriano, the same was presumed to be conjugal property under Article 160 of the Civil Code.
The paraphernal or conjugal nature of the property is not determinative of the ownership of the disputed property. If the property was paraphernal as contended by petitioners, Gertrudes would have the absolute right to dispose of the same, and absolute title and ownership was vested in petitioners upon the failure of Gertrudes to redeem the property. On the other hand, if the property was conjugal as private respondents maintain, upon the death of Adriano Leis, the conjugal partnership was terminated, entitling Gertrudes to one-half of the property. Adriano's rights to the other half, in turn, were transmitted upon his death to his heirs, which includes his widow Gertrudes, who is entitled to the same share as that of each of the legitimate children. Thus, as a result of the death of Adriano, a regime of coownership arose between Gertrudes and the other heirs in relation to the property. Incidentally, there is no merit in petitioners' contention that Gertrudes' redemption of the property from the Daily Savings Bank vested in ownership over the same to the exclusion of her co-owners. We dismissed the same argument by one of the petitioners in Paulmitan vs. Court of Appeals, where one of the petitioners therein claimed ownership of the entire property subject of the case by virtue of her redemption thereof after the same was forfeited in favor of the provincial government for non-payment of taxes. We held however, that the redemption of the land "did not terminate the co-ownership nor give her title to the entire land subject of the co-ownership." Anno v. Anno FACTS: During the marriage of petitioner Dolores Pintiano-Anno and respondent Albert Anno (spouses Anno), they acquired a 4-hectare public, unregistered, virgin, agricultural land in Lamut, Becket, La Trinidad, Benguet. In 1974, the land was declared for tax purposes solely in the name of her husband, respondent Albert Anno, under the tax declaration. Respondent thereafter sold the property, and in the documents he declared that he is the lawful owner and possessor of the subject land. Thus, such documents of transfer did not bear the signature and written consent of petitioner as the wife of the vendor, respondent Albert. ISSUE: Whether the subject land belongs to the conjugal partnership of gains of spouses Anno and thus cannot be validly conveyed by one spouse without the consent of the other.
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HELD: NO, it is not conjugal, petitioner failed to show when the property was acquired by her and her spouse. Indeed, all property of the marriage is presumed to be conjugal in nature. However, for this presumption to apply, the party who invokes it must first prove that the property was acquired during the marriage. Proof of acquisition during the coverture is a condition sine qua non to the operation of the presumption in favor of the conjugal partnership. To prove that spouses Anno acquired the subject land during their marriage, petitioner presented her 1963 marriage contract with respondent Albert and the initial 1974 tax declaration over the property. She likewise testified that she and her husband diligently paid the taxes thereon and worked on the land. However, a careful examination of the records shows that petitioners evidence failed to prove that the subject land belongs to the conjugal partnership of spouses Anno. Petitioner did not identify, either by testimonial or documentary evidence, when she and her husband, respondent Albert, first occupied and possessed the land. While the initial tax declaration she presented was dated 1974, it cannot be automatically deduced therefrom that occupation of the subject land was likewise done in the same year. To so conclude will amount to speculation or conjecture on the part of the court. As correctly pointed out by the appellate court, declaration of a land for taxation purposes cannot be equated with its acquisition for, in the ordinary course of things, occupation of a piece of land usually comes prior to the act of declaring it for tax purposes. More importantly, the 1974 tax declaration presented by petitioner cannot be made a basis to prove its conjugal nature as the land was declared for tax purposes solely in the name of her husband, respondent Albert, who sold the land as his exclusive property. In a long line of cases, this Court has held that tax declarations, especially of untitled lands, are credible proof of claim of ownership and are good indicia of possession in the concept of an owner. b. Joint Administration
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 construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors. 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 proper remedy, which must 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 the conjugal properties, the other spouse may assume sole powers of administration. These powers do not include 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 construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors. Q: Who are charged with the administration of the community/conjugal partnership property? The administration of community/conjugal partnership property belongs to both spouses jointly. This means that both spouses administer together, or each spouse may administer with the consent of the other, expressly or impliedly. However, should the administration be entrusted to only one spouse with the consent of the other, it is necessary for the administrator-spouse to obtain written consent of the other spouse in entering into contracts which either disposes or creates an encumbrance over the community/conjugal partnership property. Otherwise, the contract shall be void. This rule applies regardless of the nature of the property and the amount involved. Q: Does the rule on joint administration apply as well to marriages celebrated prior to the effectivity of the Family Code? YES. The same rule applies to marriages celebrated during the Civil Code.
Art. 96. The administration and enjoyment of the community property 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 proper remedy, which must 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 the common properties, the other spouse may assume sole powers of administration. These powers do not include disposition or encumbrance without authority of the court or the
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i)
Disagreement
spouse may assume sole powers of administration, which do not, however, include the powers of disposition or encumbrance. Q: In the case presented above, how will the administrator spouse dispose or create an encumbrance over the property? The administrator spouse must either seek authority from the courts or obtain the written consent of the other spouse. Q: What is the state of a contract entered into by the administrator spouse without authority from the courts nor the written consent of the other spouse? In the absence of such authority or consent, the disposition or encumbrance shall be VOID. Q: Will such void contract ever ripen into a valid contract? YES. The transaction entered into, despite being void, shall be construed as a continuing offer on the part if the consenting spouse and the third person, and may be perfected as a biding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors. Reyes v. Alejandro FACTS: Erlinda Reynoso filed a petition praying for the declaration of the absence of her husband Roberto L. Reyes alleging that her husband had been absent from their conjugal dwelling since April 1962 and since then had not been heard from and his whereabouts unknown. The petition further alleged that her husband left no will nor any property in his name nor any debts. She stated that her only purpose in filing the petition is to establish the absence of her husband, invoking Article 384 of the Civil Code, among others. ISSUE: May a petition to have a spouse judicially declared an absentee prosper if the absentee spouse has left no properties? HELD: NO. The need to have a person judicially declared an absentee is when he has properties which have to be taken cared of or administered by a representative appointed by the Court (Article 384, Civil Code); the spouse of the absentee is asking for separation of property (Article 191, Civil Code) or his wife is asking the Court that the administration of property in the marriage be transferred to her (Article 196, Civil Code). The petition to
Q: What happens in case of disagreement between the spouses? In case of disagreement between the spouses, the decision of the husband shall prevail, subject to recourse to the court by the wife for a proper remedy. Should the wife decide not to go to court, this implies that she already agreed to the decision of the husband. Q: Within what period should the wife seek recourse to the courts? The wife has within 5 years from the date of the contract implementing the questioned decision to seek recourse to the court. Q: What is the proper relief to be granted by the court? The court cannot impose its own decision over that of the spouses. The court can not supplant the husbands decision. It must choose between the options proposed by the parties. If the husbands decision was erroneous but was the result of his honest judgment, it should be nullified by the court. Q: Can the wife seek relief from the courts even prior to the perfection of the contract implementing the decision? YES. The wife may go to court even before the husband implements his decision on an action for injunction to stop the husband form implementing his decision. Q: Can the party with whom the husband contracted use as a defense his being a third party to the dispute between the husband and the wife? NO. Third persons who deal with the husband cannot complain if the contract is set aside by the court, for by dealing with the husband without the consent of the wife, they are forewarned that the wife is given by law the right to question the transaction in court. ii) Sole/Transfer of Administration
Q: Should any of the spouses be incapacitated or otherwise unable to participate in the administration of the common properties can the capacitated spouse be the sole administrator of the same? YES. In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the community property, then the other
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declare the husband an absentee and the petition to place the management of the conjugal properties in the hands of the wife may be combined and adjudicated in the same proceedings. It will thus be noted that said provisions of the New Civil Code are concerned with absence only with reference to its effects on property. The primordial purpose of this declaration is to provide for an administrator of the property of the absentee. Uy v. CA ISSUE: Whether petitioner Gilda L. Jardeleza as the wife of Ernesto Jardeleza, Sr. who suffered a stroke, a cerebrovascular accident, rendering him comatose, without motor and mental faculties, and could not manage their conjugal partnership property may assume sole powers of administration of the conjugal property under Article 124 of the Family Code and dispose of a parcel of land with its improvements, worth more than twelve million pesos, with the approval of the court in a summary proceedings, to her co-petitioners, her own daughter and son-in-law, for the amount of eight million pesos. HELD: NO, the procedural rules on summary proceedings in relation to Article 124 of the Family Code are not applicable. Because Dr. Jardeleza, Sr. was unable to take care of himself and manage the conjugal property due to illness that had rendered him comatose, the proper remedy was the appointment of a judicial guardian of the person or estate or both of such incompetent, under Rule 93, Section 1, 1964 Revised Rules of Court. In regular manner, the rules on summary judicial proceedings under the Family Code govern the proceedings under Article 124 of the Family Code. The situation contemplated is one where the spouse is absent, or separated in fact or has abandoned the other or consent is withheld or cannot be obtained. Such rules do not apply to cases where the nonconsenting spouse is incapacitated or incompetent to give consent. In this case, the trial court found that the subject spouse "is an incompetent" who was in comatose or semi-comatose condition, a victim of stroke, cerebrovascular accident, without motor and mental faculties, and with a diagnosis of brain stem infarct. In such case, the proper remedy is a judicial guardianship proceedings under Rule 93 of the 1964 Revised Rules of Court. Even assuming that the rules of summary judicial proceedings under the Family Code may apply to the wife's administration of the conjugal property, the law provides that the wife who assumes sole powers of administration has the same powers and duties as a guardian under the
Rules of Court. Consequently, a spouse who desires to sell real property as such administrator of the conjugal property must observe the procedure for the sale of the wards estate required of judicial guardians under Rule 95, 1964 Revised Rules of Court, not the summary judicial proceedings under the Family Code. c. Dispositions/Donations
Art. 97. Either spouse may dispose by will of his or her interest in the community property. Q: Can either spouse specify in his or her will that he or she bequeaths to a certain person a specific property owned by them in common? NO. The law in providing that either spouse may make a disposition by will made reference only to the interest of the respective spouses in the community property. Q: Why is the authority to dispose by will limited only to the interest of either spouse in the community property? The will should refer only to the share of either spouse in their absolute community, since it is not yet known at the time of the making of the will whether such specific property will be adjudicated to the deceased spouse or not at the time of the liquidation of the absolute community. Q: Should the disposition in the will refer to a specific property, is the disposition deemed ineffective? NOT NECESSARILY. If said specific property is adjudicated to the deceased spouse then the disposition can be given effect. 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 occasions of family rejoicing or family distress. 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 conjugal partnership property for charity or on occasions of family rejoicing or family distress. Q: Can either spouse donate community property without the consent of the other?
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NO. Neither spouse may donate community property without the consent of the other. Q: What is the nature of a donation made by one spouse without the consent of the other? The donation made by one spouse without the consent of the other shall be void. Q: What is the nature of a donation made by the husband to his mistress? The donation shall be void not only by virtue of Art. 98 but also by virtue of Art. 739 of the Civil Code. Q: Within what period of time must the non-consenting spouse seek for the declaration of the inexistence of the donation? There is n period. The donation being void is totally inexistent, thus the action or defense for the declaration of its inexistence is imprescriptible Q: What are the exceptions to the general rule that donations made by one spouse without the consent of the other is void? 1. moderate donations to charity; 2. moderate donations on occasions of family rejoicing or family distress; and 3. Moderate gifts of the spouses to each other on the occasion of any family rejoicing. Q: What is a moderate gift? A gift is moderate depending on the: 1. financial circumstances of the couple; 2. value of the property donated; 3. their social position Q: Does the prohibition on donations between spouses apply to parties living together as husband and wife without a valid marriage? Why? YES. The same prohibition should lie for the following reasons: 1. the possibility of undue influence between the parties; and 2. those living in guilt would turn out to be in a better position than those in legal union if the prohibition is not applied to them 8. Ownership, Administration and Disposition of Separate/Exclusive Properties
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 one 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. Q: As a general rule, who owns, administers and disposes of his/her own exclusive property? The owner-spouse is the one who owns, administers and disposes of his/her own exclusive properties. Q: When can the separate property be held liable for common debts? If the community/conjugal partnership is insolvent or insufficient to cover common debts, one can petition the court to enforce such liabilities against the separate property of either spouse. Q: May the administration of the exclusive property of one spouse be transferred to the other spouse? YES. The administration of all classes of exclusive property of either spouse may be transferred by the court to the other spouse in the following cases: 1. when one spouse becomes the guardian of the other; 2. when one 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 hiding as an accused in a criminal case. Q: What if the other spouse has a low IQ and is not capable of administering any property? Article 142 of the Family Code provides that if the other spouse is not qualified by reason of incompetence or any other just cause, the court shall appoint a suitable person to be the administrator. Hence, the exclusive property of one spouse may also be administered by a third person
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Q: What is the difference between the transfer of administration of exclusive/separate properties from one spouse to the other and the assumption of sole administration of conjugal properties by one spouse (Art. 96 and 124, FC) Sole administration by one spouse of the absolute community or conjugal properties can be done without need of court approval if the other spouse is incapacitated or when one spouse is otherwise unable to participate in the administration of their common properties. There is no need for court authorization in this case because the spouses have joint administration of the community or conjugal properties so that if one of them is incapacitated or, for any other reason, cannot participate in such administration, the other spouse can assume sole administration of their common properties (SempioDiy, p. 200) Q: May one spouse dispose of the separate property of the other spouse? NO. Only the owner-spouse can dispose of his/her separate properties. Q: H, husband of W, owns as part of his exclusive properties a large house worth P10M. H was later convicted for murder and sentenced to reclusion perpetua. W petitioned and was granted administration of Hs exclusive properties including the house. She then offered to sell it to X. when questioned by X as regards her authority to sell the house, she claims that as an administrator she had authority to sell the house. Is her contention correct? NO. What Art. 142 of the Family Code grants to the transferee is only the right of administration. As such, the transferee may not exercise acts of disposition over the property. Manotoc Realty Inc. v. CA FACTS: Felipe Madlangawa had been occupying a part of the land owned by Clara Tambunting as the latters paraphernal property, with the understanding that he would eventually buy the lot. Clara died and her estate was placed under custodia legis. Felipe then made a downpayment to the husband of Clara, Vicente Legarda, as part of the purchase price of the property he occupied. Around 3 months later, the court appointed Vicente as a special administrator of the estate. ISSUE: WON the sale by Vicente to Felipe was valid.
HELD: NO. Under Arts. 136-137 of the old CC, the wife retains ownership of paraphernal property, and the only way that the husband shall have administration over it is if the wife delivers the same to the husband by means of a public instrument, recorded in the Registry of Property, empowering the latter to administer such property. There is nothing in the records that will show that Vicente was the administrator of the paraphernal properties of Clara during the lifetime of the latter. Thus, it cannot be said that the sale which was entered into by Felipe and Vicente had its inception before the death of Clara and was entered into by the former for and on behalf of the latter, but was only consummated after her death. Vicente, therefore, could not have validly disposed of the lot in dispute as a continuing administrator of the paraphernal properties of Clara. It is also undisputed that the probate court appointed Vicente as administrator of the estate only 3 months after the sale had taken place. The inevitable conclusion is, therefore, that the sale between Vicente and Felipe is void ab initio, the former being neither an owner nor administrator of the subject property. Pursuant to Sec. 1, Rule 89 of the Rules of Court, after the appointment of Vicente as administrator of the estate of Clara, he should have applied before the probate court for authority to sell the disputed property in favor of Felipe. If the probate court approved the request, then Vicente would have been able to execute a valid deed of sale in favor of the Felipe. Unfortunately, there was no effort on the part of the administrator to comply with the above-quoted rule of procedure, nor on that of Felipe to protect his interests. 9. Dissolution of the Absolute Community/Conjugal Partnership Art. 126. The conjugal partnership terminates: (1) Upon the death of either spouse; (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 during the marriage under Articles 134 to 138.
Art. 99. The absolute community terminates: (1) Upon the death of either spouse; (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 during the marriage under Articles 134 to 138.
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a.
Grounds
Q: What are the grounds for the dissolution of the Absolute Community Property or the Conjugal Partnership of Gains? 1. death of one of the parties; 2. declaration of nullity; 3. annulment of marriage; 4. legal separation; 5. Voluntary separation of property on account of Arts. 135 and 136 Art. 135. Any of the following shall be considered sufficient cause for judicial separation of property: (1) That the spouse of the petitioner has been sentenced to a penalty which carries with it civil interdiction; (2) That the spouse of the petitioner has been judicially declared an absentee; (3) That loss of parental authority of the spouse of petitioner has been decreed by the court; (4) That the spouse of the petitioner has abandoned the latter or failed to comply with his or her obligations to the family as provided for in Article 101; (5) That the spouse granted the power of administration in the marriage settlements has abused that power; and (6) That at the time of the petition, the spouses have been separated in fact for at least one year and reconciliation is highly improbable. In the cases provided for in Numbers (1), (2) and (3), the presentation of the final judgment against the guilty or absent spouse shall be enough basis for the grant of the decree of judicial separation of property. (191a) Art. 136. The spouses may jointly file a verified petition with the court for the voluntary dissolution of the absolute community or the conjugal partnership of gains, and for the separation of their common properties. All creditors of the absolute community or of the conjugal partnership of gains, as well as the personal creditors of the spouse, shall be listed in the petition and notified of the filing thereof. The court shall take measures to protect the creditors and other persons with pecuniary interest. NOTE: In the first 3 cases, i.e., death of one of the parties, declaration of nullity and annulment of marriage, not only the property relations is
dissolved, but the marriage is dissolved as well. However, in the case of legal separation and voluntary separation of properties under Arts. 135 and 136, the marriage is not dissolved but the property relationship is. Partosa-Jo v. CA FACTS: The petitioner, Prima Partosa-Jo (wife), had an agreement with the private respondent, Ho Hang (husband), for her to temporarily live with her parents during the initial period of her pregnancy and for him to visit and support her. They never agreed to separate permanently. In 1942, when petitioner returned to respondent, the latter refused to accept her. Petitioner then filed a complaint for judicial separation of conjugal property. ISSUE: WON theres ground for separation of the CPG. HELD: YES. During the rendition of the judgment of the lower court and the CA, the applicable provisions were those under the CC (Art. 78 [3]). The SC nonetheless applied the Family Code since upon the time of appeal thereto, said Code had already taken effect. It held: an appellate court, in reviewing a judgment on appeal, will dispose of a question according to the law prevailing at the term of such disposition, and not according to the law prevailing at the time of rendition of the appealed judgment. The court will therefore reverse a judgment which was correct at the time it was originally rendered where, by statute, there has been an intermediate change in the law which renders such judgment erroneous at the time the case was finally disposed of on appeal. There are 2 grounds for which an aggrieved spouse may file for judicial separation of property under Art. 128 of the FC: 1. Abandonment by a spouse of the other without just cause; and 2. Failure of one spouse to comply with his or her obligations to the family without just cause, even if she said spouse does not leave the other spouse. Abandonment implies a departure by one spouse with the avowed intent never to return, followed by prolonged absence without just cause, and without in the meantime providing in the least for one's family although able to do so. There must be absolute cessation of marital relations, duties and rights, with the intention of perpetual separation. The record shows that as early as 1942, the private respondent had already rejected the petitioner, whom he denied admission to their conjugal home in Dumaguete City when she returned from Zamboanga. The fact that she was not accepted by Ho demonstrates all too clearly that he had no intention of
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resuming their conjugal relationship. Moreover, beginning 1968 until the determination by this Court of the action for support in 1988, the private respondent refused to give financial support to the petitioner. The physical separation of the parties, coupled with the refusal by the private respondent to give support to the petitioner, sufficed to constitute abandonment as a ground for the judicial separation of their conjugal property. In addition, the petitioner may also invoke the second ground allowed by Article 128, for the fact is that he has failed without just cause to comply with his obligations to the family as husband or parent. Apart form refusing to admit his lawful wife to their conjugal home in Dumaguete City, Jo has freely admitted to cohabiting with other women and siring many children by them. The private respondent has not established any just cause for his refusal to comply with his obligations to his wife as dutiful husband. Their separation thus falls also squarely under Article 135 (6) FC, providing as follows: That at the time of the petition, the spouse have been separated in fact for at least one year and reconciliation is highly improbable. Death of one of the parties Art. 103. Upon the termination of the marriage by death, the community property shall be liquidated in the same proceeding for the settlement of the estate of the deceased. If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the community property either judicially or extrajudicially within six months from the death of the deceased spouse. If upon the lapse of the six months period, no liquidation is made, any disposition or encumbrance involving the community property of the terminated marriage shall be void. Should the surviving spouse contract a subsequent marriage Art. 130. Upon the termination of the marriage by death, the conjugal partnership property shall be liquidated in the same proceeding for the settlement of the estate of the deceased. If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the conjugal partnership property either judicially or extra-judicially within six months from the death of the deceased spouse. If upon the lapse of the six-month period no liquidation is made, any disposition or encumbrance involving the conjugal partnership property of the terminated marriage shall be void. Should the surviving spouse
without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage. (n)
contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage. (n)
Q: When is the liquidation done in case one of the spouses die? In case one of the spouses die, liquidation is done during the settlement of the estate of the deceased spouse. There is no need to institute a separate proceeding because it is part of the settlement proceeding. Under the laws of succession and estate taxation, the first step taken during the settlement proceedings of a married person is the liquidation of the absolute community property or the conjugal partnership because what is covered by the rules of succession is only the share of the spouse who died. Thus after liquidation, the estate will be divided into half and only the halfshare of the deceased spouse shall be subjected to settlement proceedings and estate taxes. The other half, on the other hand, will pass on to the surviving spouse as his rightful share. Thus, the procedure followed is the same procedure provided under the rules of succession. Q: What are the different ways of liquidating the Absolute Community Property of the Conjugal Partnership of Gains under this ground? 1. by judicial liquidation (no time limit) 2. by extrajudicial liquidation under Rule 74 of the Revised Rules of court (within 1 year) Q: When must liquidation be completed? The surviving spouse must liquidate the community property either judicially or extrajudicially within one year from the death of the deceased spouse. As a general rule, liquidation must be done within one year. However, if judicial settlement proceeding is instituted then the prescriptive period does not apply because such proceedings normally take longer than a year. Q: A died on Nov. 1, 1994. His wife B failed to liquidate their conjugal property (no judicial settlement). On Nov. 1, 1995, B sold a parcel of land
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belonging to their conjugal property to C. On Nov. 2, 1996, B married C. How would Bs failure to liquidate their conjugal property affect such transactions? Failure to liquidate the conjugal property within one year results to the following consequences: First: Any disposition or encumbrance involving the community property of the terminated marriage shall be void. Hence the sale of the parcel of land by B to C is void. Second: Should the surviving spouse contract a second marriage, a mandatory regime of complete separation of property shall govern the property relations of the second marriage. Thus, Bs marriage to C is valid but their property relations shall be governed by the complete separation of property. Separation of property is necessary to avoid confusion and to protect the heirs of the first spouse. Q: A died on Feb. 1984, or 4 yrs before the Family Code (Aug. 3, 1988), but upon effectivity of the Family Code there has been no liquidation yet, the surviving spouse must liquidate within one year from the effectivity of the Family Code. Hence, B must liquidate the conjugal properties on or before August 3, 1988. (old reviewer) The dissolution must be registered in the registry of property in order to affect third persons dealing in good faith with the property (old reviewer) Annulment and Declaration of Nullity of Marriage Q: What provisions govern dissolution of conjugal properties due to the annulment and declaration of nullity of marriage? Art. 43. The termination of the subsequent marriage referred to in the preceding Article shall produce the following effects: (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 said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or in default of children, the innocent spouse;
Art. 50. (2nd and 3rd paragraph) 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 third presumptive legitimes, unless such matters had 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. Art. 51. (1st paragraph) 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. Art. 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 children's presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect third persons. (n) Art. 53. Either of the former spouses may marry again after compliance with the requirements of the immediately preceding Article; otherwise, the subsequent marriage shall be null and void. Q: When is liquidation done in case the marriage is annulled or has been declared null and void? Liquidation of the conjugal properties is usually ordered by the court upon promulgation of the final judgment annulling the marriage or declaring the marriage null and void. Art. 50 of the Family Code provide that The final judgment in such cases shall provide for the liquidation, partition and distribution of the properties of the spouses Thus, liquidation is done in the same proceeding for the annulment or declaration of nullity of marriage. Q: A and Bs marriage is declared null and void. No liquidation took place after the declaration of nullity. B sold a parcel of land to C. is such disposition valid? NO. Q: A and Bs marriage is annulled. No liquidation took place after the annulment. B subsequently married C. is such marriage valid?
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NO. Art. 53 provide that the subsequent marriage shall be null and void for failure to comply with the requirements of Art. 52. NOTE: Failure to liquidate within one year because of the death of a spouse does not render a subsequent marriage void but only imposes the regime of separation of property to govern the property relations of the second marriage. On the other hand, failure to liquidate after an annulment or declaration of nullity renders the subsequent marriage void due to Arts. 52 and 53. Legal Separation Q: When is liquidation done in cases of legal separation? Art. 63. The decree of legal separation shall have the following effects: (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 the conjugal partnership, which shall be forfeited in accordance with the provisions of Article 43(2); Q: A and B are legally separated. No liquidation was done after the legal separation. B sold a parcel of land belonging to the absolute community property. Is such sale valid? NO. b. Separation with dissolution- effects Article 127. The separation in fact between husband an 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
(3)
obtained in a summary proceeding; In the absence of sufficient community property, the separate property of both spouses shall be solidarily liable for the support of the family. The spouse present shall, upon proper petition in a summary proceeding, be given judicial authority to administer or encumber any specific separate property of the other spouse and use the fruits or proceeds thereof to satisfy the latters share (178a)
(3)
obtained in a summary proceeding; 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 proper petition in a summary proceeding, be given judicial authority to administer or encumber any specific separate property of the other spouse and use the fruits or proceeds thereof to satisfy the latters share. (178a)
Article 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 be supported; (2) When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be
Q: When is there Separation in Fact or Separation De Facto? By separation in fact of de facto between the spouses is meant that they are no longer living together, ie., their cohabitation or common life under the same roof is terminated, although there is no legal separation between them. The absolute community property or conjugal partnership property between the spouses is not affected by their separation de facto except as provided in Art. 100. [Sempio-Diy] Q: Happy and Marife were separated because of Happys infidelities. Happy left the conjugal home and decided to live with his mistress. Every 15th or 30th of the month, however, Happy would wait for Marife to ask for money. He claims that since their marriage is not yet terminated, he is still entitled to support. Is Happys contention correct? NO. The spouse who leaves the conjugal home or refuses to live therein without just cause does not have the right to be supported. Q: Given the same facts above, is Marife, however, entitled to support from Happy?
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YES. Though Happy is not entitled to support from Marife, his obligation to support Marife if the latter needs support, is not, however, extinguished. Q: Marife desires to sell an apartment belonging to the absolute community property. Does she still need the consent of Happy to make such disposition valid? YES. It must be emphasized that the absolute community has not yet terminated by virtue of the separation. Since the law requires that any disposition of the absolute community requires the consent of both spouses then Happys consent must be obtained to make the disposition valid. However, if Happy refuses to give his consent or is not available to give the required consent, then authorization may be obtained from the court in a summary proceeding. Q: How will the family of Happy and Marife be financially supported? 1. 2. Support of the family will be taken from the absolute community property. If the community property is insufficient for such support or in the absence of community property, the separate properties of the spouses shall be solidarily liable for the support of the family. If it is necessary to administer or encumber any specific separate property of the spouse who has left for the support of the family, the spouse present, may upon proper petition in a summary proceeding, ask for judicial authority to administer or share encumber such property and use its fruits or proceeds to satisfy the share of the other spouse in the support of the family. And if the present spouse has no separate property at all, the support of the family shall come solely from the fruits or proceeds of the separate properties of the other spouse. Article 128. If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the aggrieved spouse may petition the court for receivership, for judicial separation of property or for authority to be the sole administrator of the conjugal partnership property,
precautionary conditions as the court may impose. The obligations to the family mentioned in the preceding paragraph refer to marital, parental or property relations. A spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without any intention of returning. The spouse who has left the conjugal dwelling without any intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling. (178a)
subject to such precautionary conditions as the court may impose. The obligations to the family mentioned in the preceding paragraph refer to marital, parental or property relations. A spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without any intention of returning. The spouse who has left the conjugal dwelling without any intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling. (167a, 191a)
3.
Q: distinguish Separation De Facto from Abandonment. Separation de facto is, as already stated, the termination of the cohabitation or common life of the spouses under the same roof, but the spouses might still be complying with their mutual duty of support, as well as their duty to support and maintain the children. Abandonment on the other hand, is not mere separation de facto but implies an intention never to return to the conjugal home and without providing for the needs and maintenance of ones family. Q: In case of abandonment, what is the remedy available to the present spouse? In such case, the present spouse may petition the court for: (a) receivership (b) judicial separation of property; or (c) authority to be the sole administrator of the absolute community, subject to such precautionary conditions as the court may impose Q: When is a spouse presumed to have abandoned the other spouse?
Article 101. If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the aggrieved spouse may petition the court for receivership, for judicial separation of property or for authority to be the sole administrator of the absolute community subject to such
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A spouse is prima facie presumed to have abandoned the other spouse and the family and to have no more intention of returning to the conjugal dwelling if: (a) He or she has left the conjugal dwelling for a period of three months; or (b) He or she has failed within the same period of three months to give any information as to his or her whereabouts. Toda v. CA FACTS: The spouses filed a joint petition for judicial dissolution of conjugal partnership. Along with the petition was a compromise agreement signed by the spouses, providing for their shares in the conjugal properties upon dissolution. The lower court granted dissolution. There were properties (like cash dividends), however, that were disputed after dissolution as to whether it was conjugal or separate. If conjugal, the other spouse has a share, and conversely, if separate, the other does not get a share. One of the agreements with respect to shares of stock was that, upon dissolution, such shares were to be given to the wife. Moreover, properties not otherwise specifically assigned to the wife were to be awarded to the husband. The parties are disputing, among others, on how the cash dividends of such shares should be distributed to the spouses. ISSUE: When does the compromise agreement take effect, from the time the spouses signed it or from the time it was approved by the trial court? HELD: From the time it was approved by the TC. Under Article 190 of the Civil Code, "(i)n the absence of an express declaration in the marriage settlements, the separation of property between spouses during the marriage shall not take place save in virtue of a judicial order." Hence, the separation of property is not effected by the mere execution of the contract or agreement of the parties, but by the decree of the court approving the same. It, therefore, becomes effective only upon judicial approval, without which it is void. Furthermore, Article 192 of said Code explicitly provides that the conjugal partnership is dissolved only upon the issuance of a decree of separation of property. Consequently, the conjugal partnership of the spouses should be considered dissolved only at the time when the TC approved their joint petition for voluntary dissolution of their conjugal partnership. Conformably thereto, the shares of stock awarded to the wife only becomes hers after the TCs approval. And so the cash dividends declared after such date should pertain to the wife, as fruits of her separate property; and that declared prior
to such date ought to be given to the husband, as property w/c are still considered conjugal (fruits of conjugal property are conjugal) not otherwise specifically assigned to the wife. 10. Liquidation of Absolute Community/Conjugal Partnership Assets and Liabilities a. Procedure 10.1 Forfeiture Article 102. Upon dissolution of the absolute community regime, the following procedure shall apply: (1) An inventory shall be prepared shall be prepared, listing separately all the properties of the absolute community and the exclusive properties of each spouse. (2) The debts and obligation of the absolute community shall be paid out of its assets. In case of insufficiency of said assets, the spouses shall be solidarily liable for the unpaid balance with their separate properties in accordance with the provisions of the second paragraph of Article 94. Article 129. Upon the dissolution of the conjugal partnership regime, the following procedure shall apply; (1) An inventory shall be prepared, listing separately all the properties of the conjugal partnership and the exclusive properties of each spouse. (2) Amounts advanced by the conjugal partnership in payment of personal debts and obligations of either spouse shall be credited to the conjugal partnership as an asset there of. (3) Each spouse shall be reimbursed for the use of his or her exclusive funds in the acquisition of property or for the value of his or her exclusive property, the ownership of which has been vested by law in the conjugal partnership. (4)The debts and obligations of the conjugal partnership shall be paid out of the conjugal assets. In case of insufficiency of said assets the spouses shall be solidarily liable for the unpaid balance with their separate properties, in accordance with the provisions of paragraph (2) of Article 121
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(3) Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each of them.
(4) The net remainder of the properties of the absolute community shall constitute its net assets, which shall be divided equally between husband and wife, unless a different proportion or division was agreed upon in the 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 forfeiture in accordance with Articles 43, No. (2) and 63, No. (2), the said profits shall increase in value between the market value of the community property at the time of the celebration of the marriage and the market value at the time of its dissolution
(5) Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each of them. (6) Unless the owner has been indemnified form whatever source, the loss or deterioration of movables used for the benefit of the family, belonging to either spouse even due to fortuitous event, shall be paid to said spouse from the conjugal funds, if any (7) The net remainder of the conjugal partnership properties shall constitute the profits, which shall be divided equally between husband and wife, unless a different proportion or division was agreed upon in the marriage settlement or unless there has been a voluntary waiver or forfeiture of such share as provided in this Code.
YES. Preparation of an inventory is included, however, it may be dispensed with if there is a renunciation of rights in favor of the other spouse. Article 179 of the NCC provides as follows: Article 179. Upon the dissolution of the conjugal partnership, an inventory shall be formed, but such inventory shall not be necessary: (1) If, after the dissolution of the partnership, one of the spouses should have renounced its effects and consequences in the due time or (2) When separation of property has preceded the dissolution of the partnership. Q: What is the difference between the New Civil Code procedure for the liquidation of properties and that of the Family Code? As stated above, liquidation under the New Civil Code may or may not include preparation of an inventory depending on whether there was renunciation made by one spouse. On the other hand, the Family Code requires that an inventory must be made despite the existence or nonexistence of a renunciation. It must be noted that the Family Code does not prohibit renunciation or waive of rights as long as it is contained in a public instrument and is recorded in the civil registry as to bind third persons. Since a waiver of rights might prejudice the creditors of the spouse concerned, preparation of the inventory was made mandatory by the Family Code. Q: Is this waiver in effect a sale or transfer of assets from one spouse the other which is prohibited during the subsistence of marriage? NO. The basis of the prohibition regarding the sale, donation or transfer of properties from one spouse to the other while they are married is that such sale, donation or transfer will prejudice the creditors. In this case, however, the waiver is only allowed to operate after the debts to the creditors have already been paid. As such, one must first have to go through the process of liquidation and the payment of conjugal obligations before one can determine what is being waived in favor of the other spouses. This is the reason why one has to go through all these procedure even if the other spouse has already waived his / her rights in favor of the other. Q: Give instances when one spouse is entitle to reimbursement for the use of his or her exclusive funds by the conjugal partnership.
NOTE: Exclusive properties, however, must not be included in the computation of net profits. Q: Under the New Civil Code, is a preparation of an inventory part of the procedure for the liquidation of conjugal properties?
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1. 2.
Payment of personal debts contracted by the husband or the wife before or during the marriage insofar as they have redounded to the benefit to the family. (Art. 22, FC) taxes and expenses for mere preservation made during the marriage upon the separate property of either spouse which was paid from the exclusive property of the spouse.
Q: What is the Absolute community property or conjugal partnership property is insufficient to pay the community debts? In case of insufficiency of said assets, the spouses shall be solidarily liable for the unpaid balance with their separate properties. However, as between the spouses the liability is equal because under the Family Code the spouses are given joint administration. Whatever remains of their separate property shall thereafter be delivered back to the owner-spouse. Division and delivery of the net assets/profits to both spouses Q: What if the Absolute community property or conjugal partnership property is sufficient to pay the community debts? If the community property is sufficient and there is a remainder after payment of all debts, the remainder shall constitute the net assets / profits which shall be subject to delivery and forfeiture. Q: The family code uses the term net asset when referring to the remainder of the Absolute community property and net profit when referring to the remainder of the conjugal partnership of gains. What is the difference between both? The formula for computing net assets and net profits is the same i.e., assets liabilities net assets/ profits. As such, both net assets and net profits are the bases for the division between husband and wife of the community property. The difference lies in the amount to be forfeited. In Conjugal partnership of gains, the net profit or the share of the spouse in the conjugal partnership property is the amount subject to forfeiture. Therefore, the total share of the spouse in the conjugal partnership property is subject to forfeiture. In Absolute community property, however, the whole amount of the net asset is not subject to forfeiture. In order to get the basis for forfeiture, one must get the net profits which is defined as the increase in the value between the market value of the community property at the time of the celebration of the marriage and the market value at the time of its dissolution (Art. 102, par. 4). The net profits is the amount subject to forfeiture and not the net
Q: Give instances when the ownership of an exclusive property has been vested by law to the conjugal partnership. 1. Property bought on installment paid partly from exclusive funds of either or both spouses and partly from conjugal funds when full ownership was vested during the marriage. (Art. 118, FC) 2. When the cost of improvement made on the separate property of one spouse at the expense of the partnership, and any resulting increase in value are more than the value of the property at the time of the improvement, the entire property of the spouse shall belong to the conjugal partnership, subject to reimbursement of the value of the property of the owner-spouse at the time of the improvement. (Art 120. FC) NOTE: Although theoretically this liability is a conjugal obligation and must fall under the third step ie., payment of conjugal debts, it takes precedence over all kinds of conjugal obligations and thus must come as a preferred step before payment of other obligations. However, no actual payment of money is done at this stage for this procedure merely involves paper computations which is accounted and offset with advances mad by the conjugal partnership made in favor of the spouse. Payment of Absolute Community or Conjugal Partnership obligations Q: What are the obligations required to be paid under this provision? The charges listed under Articles 102 and 129 of the Family Code owing to the: 1. Creditor-spouse 2. Creditor-third person Q: How must the obligations be paid? The obligations must be paid in cash if the creditor is a third person. However, obligations owing to a spouse need not be immediately paid and may be off-set with his/her other debts to the community property or added to his share later on.
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assets. Thus, in absolute community property regimes, a guilty spouse may get his /her share without any amount being forfeited (if there is no increase in the amount of the community property from the celebration of the marriage to its dissolution) or she/he will be liable for forfeiture without receiving any share. Q: how will the net assets / profits be divided between spouses? The net assets / profit shall be divided equally between the spouses unless: (a) (b) a different proportion or division was agreed upon in the marriage settlement, or there has been a voluntary waiver by one spouse of his or her share.
the spouse entitled can live there and both parties will be considered coowners of the conjugal dwelling. b. 10.2 Two or more marriages Two or more marriages Article 131. Whenever the liquidation of the conjugal partnership properties 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 partnership shall be determined upon such proof as may be considered according to the rules of evidence. In case of doubt as to which partnership the existing properties belong, the same shall be divided between and among the different partnerships in proportion to the capital and duration
Delivery of presumptive legitime Q: When is delivery of presumptive legitime required? Delivery of presumptive legitime is required only in cases of annulment and nullity of marriage. It is not required in legal separation, separation of property, voluntary dissolution or death. In cases of death, ther is delivery not of presumptive legitime bu ACTUAL legitime [old reviewer] Q: to whom will the conjugal dwelling and lot be given? Conjugal dwelling and lot shall be adjudicated as follows: (a) In accordance with the agreement of the parties, if any; (b) If the parties did not make any agreement on the matter, it shall be adjudicated to the spouse with who0m the majority of the common children choose to remain; (c) Children below 7 years old are deemed to have chosen the mother unless the child decides otherwise. (d) In case there is no such majority among the children, the court shall decide the matter, taking into consideration the best interests of the children. NOTE: the conjugal dwelling will be part of the spouses share in the community property and is not considered free or extra. As recompense, the other spouse will be given other properties. If there are no other properties left then the spouse entitled to live in the conjugal house and lot must pay the other spouse with cash or other properties. However, in the meantime
Article 104. Whenever the liquidation of the community properties 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 shall be determined upon such proof as ma be considered according to the rules of evidence. In case of doubt as to which community the existing properties belong, the same shall be divided between or among the different communities in proportion to the capital and duration of each (189 a)
Q: What is the procedure in the liquidation of Community properties of two marriages? Unless all the heirs come to an agreement as to how to divide the community properties of two marriages, the following procedure in the liquidation of such properties shall be followed: (1) First, determine the capital fruits and income of each community upon such proof as may be considered according to the rules of evidence. (2) In case of doubt as to which community the existing properties belong, they shall be divided between the two communities in proportion to the capital and duration of each. Q: The first marriage lasted for 10 years and the second marriage for 20 years, and the values of the respective capitals of each marriage had been
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more or less equal. How should the property be divided between the two marriages? In the absence of acceptable evidence, the second marriage will get twice as much properties as those of the first marriage. [Sempio-diy] Q: the first marriage lasted for 18 years and the second, for 46 years. How will the properties be divided? The properties shall be divided in the proportion of 18 to 46, if the capital of either marriage or the contribution of each spouse cannot be determined with mathematical certainty. (De Ocampo v. Delizo, 69 SCRA 216) Dael v. Intermediate APPELLATE COURT FACTS: Cesario Cabutihan got married twice, the first was with Bienvenida Durana (wife1). Around 1 year after wife1 died, Cesario married wife1s sister, Victorina Durana (wife2). Thereafter, Cesario died, with wife 2 also passing a few years later. During the 2nd marriage, the spouses were engaged in a copra business and a public transportation business, with wife2 managing the former. After the demise of Cesario, wife2 and the private respondent-heirs entered into an extra-judicial settlement of his estate. Part of the properties adjudicated to wife2 include the copra business and some of the vehicles used in the transportation business. The lower courts, however, held that the copra business as well as the properties acquired during the 2nd marriage were assets of the conjugal partnership of the 1st marriage. ISSUE: To which marriage do the contested properties belong? HELD: When wife1 died, the first conjugal partnership was automatically dissolved. That conjugal partnership was then converted into an implied ordinary co-ownership. It was also at this point in time that the inheritance was transmitted to the heirs of wife1. Thus, her heirs acquired respective and definite rights over one-half (1/2) of the conjugal partnership property which pertained to wife1. Consequently, whatever fruits or income may thereafter be derived from the properties, including the copra business, would no longer be conjugal but would belong in part to the heirs in proportion to their respective shares. The fruits and income of the other half of the property of the conjugal partnership would exclusively belong to Cesario. The 2nd marriage also produced the corresponding legal consequences. From that moment on, the fruits or income of the separate properties of the
spouses would be conjugal, including those acquired through their industry. Hence, the fruits and income of Cesario's share in the inheritance from wife1 and of his conjugal share in the property of the 1st conjugal partnership would form part of the conjugal partnership properties of the 2nd marriage. The fruits and income derived or acquired through these last-mentioned properties would likewise be conjugal in nature. It would have been ideal had there been a liquidation of the conjugal partnership properties of the 1st marriage. Unfortunately, it cannot be determined from the records the amount of such properties at the time of wife1s demise. There is a dearth of proof on this matter. What appears evident, however, is that, considering the continuity in the operation of the 2 businesses during the 2nd marriage which spanned a period of 14 years, and the fact that after Cesario's death wife2 still actively engaged in the same business until her own death 5 years later, the properties enumerated in the inventories submitted to the probate court could not all have been properties of the first marriage. Inevitably, the problem is how to apportion the properties involved between the two conjugal partnerships. On this score, guidance should be sought from the provisions of the Civil Code to the effect that whenever the liquidation of the partnership of two or more marriages contracted by the same person should be carried out at the same time and there is no evidence to show the capital or the conjugal property belonging to each of the partnerships to be liquidated, the total mass of the partnership property shall be divided between the different partnerships in proportion to the duration of each and to the property belonging to the respective spouses. The 1st marriage existed for approximately 15 years, while the 2nd marriage lasted for about 14 years. Applying the aforestated rule, the 1st conjugal partnership will be prorated a share of fifteen twenty-ninths (15/29) of the properties, while the 2nd conjugal partnership will get fourteen twentyninths (14/29) thereof. Not to be included, however, are the real properties listed as belonging to the estate of Cesario as the latter's inheritance from his parents. One-half of the properties that pertain to the 1st conjugal partnership belong to Cesario as his conjugal share therein, while the other half shall be considered as inherited by him and his 5 children as the heirs of wife1. The properties pertaining to the 2nd partnership shall also be equally divided, one-half to belong to Cesario and the other to wife2 as their respective shares in their conjugal partnership properties. The share of Cesario should then be divided among his heirs, namely, wife 2 and his 5 children.
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Article 132 The Rules of court on the administration of estates of deceased persons shall be observed in the appraisal and sale of property of the conjugal partnership, an other matters which are not expressly determined in this Chapter. Article 133 From the common mass of property, support shall be given to the surviving spouse and to the children during the liquidation of the inventoried property and until what belongs to them is delivered; but from this shall be deducted that amount received for support, which exceeds the fruits or rents pertaining to them. c. Order of payment
enough basis for the grant of the decree of judicial separation of property. Article 136 The spouses may jointly file a verified petition with the court for the voluntary dissolution of the absolute community or the conjugal partnership of gains and for the separation of their common properties. All creditors of the absolute community or of the conjugal partnership of gains as well as the personal creditors of the spouse, shall be listed in the petition and notified of the filing thereof The court shall take measures to protect the creditors and other persons with a pecuniary interest. Article 137 Once the separation of property has been decreed, the absolute community or conjugal partnership of gains shall be liquidated in conformity with this code. During the pendency of the proceeding for separation of property, the absolute community or the conjugal partnership shall pay for the support of the spouses and their children. Article 138 After dissolution of the absolute community or of the conjugal partnership, the provisions on complete separation of property shall apply. Article 139 The petition for separation of property and the final judgment granting the same shall be recorded in the proper local civil registries and registries of property. Article 140 The separation of property shall not prejudice the rights previously acquired by creditors. Q: When may there be a separation of properties during marriage? The ff. are the instances when there may be separation of properties during marriage: 1.) When the future spouses agree in the marriage settlements that their property relations shall be governed by the regime of separation of property (See succeeding topic) 2.) When the spouses enter into a voluntary dissolution of the absolute community or conjugal partnership 3.) When there are sufficient causes for judicial separation of property
Q: What is the order of payment? Follow the ordinary rules of preference among creditors 11. Separation of Properties During Marriage Article 134 In the absence of an express declaration in the marriage settlements, the separation of property between spouses during the marriage shall not take place except by judicial order. Such judicial separation of property may either be voluntary or for sufficient cause. Article 135 Any of the following shall be considered sufficient cause for the judicial separation of property; 1.) That the spouse of the petitioner has been sentenced to a penalty which carries with it civil interdiction; 2.) That the spouse of the petitioner has been judicially declared an absentee; 3.) That loss of parental authority of the spouse of petitioner has been decreed by the court; 4.) That the spouse of the petitioner has abandoned the latter or failed to comply with his or her obligations to the family as provided for in Article 101; 5.) That the spouse granted the power of administration in the marriage settlements has abused that power; and 6.) That at the time of the petition, the spouses have been separated in fact for at least one year and reconciliation is highly improbable; In the cases provided for in #1,2, and 3, the presentation of the final judgment against the guilty or absent spouse shall be
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a.
Voluntary Dissolution
Q: When may a voluntary dissolution of the property relations occur? This can occur upon the option of both of the spouses. The spouses must jointly file a verified petition for voluntary dissolution. Note that judicial approval is required for voluntary dissolution of the absolute community or conjugal partnership. Q: What are the grounds for the voluntary dissolution of the existing property relation in order to have a separation of property during marriage? No grounds exist for voluntary dissolution. The court has the discretion to grant the award or not. If there is no reason at all for the petition, the court may disapprove the same, since the intention of the law is to preserve the absolute community or conjugal partnership as much as possible. However, when the spouses voluntarily agree to enter into a dissolution, but cannot agree as to what properties to divide, the dissolution will be considered involuntary, in which case, any of the grounds in Art. 135 must be present. (old reviewer) b. Grounds for Separation of Properties
spouse leaves without intention of returning, whereas in separation de facto, both spouses agree to live separately. c. Procedure
Q: Discuss the procedure required for a voluntary agreement of separation of properties. 1. File a verified petition with the court for voluntary dissolution of existing property regime. Both spouses must file a joint petition. 2. The petition must list all the creditors of the existing property regime, including guarantors and insurers, as well as personal creditors of the spouses. 3. Notify personally the creditors in the list. 4. Provide for support pendent lite. 5. Enter a decree and the final judgment shall be recorded in the proper local civil registries; and the registry of property. Q: Is there a need for publication of the petition Publication is not prescribed by the Code because it is expensive and does not serve its purpose in most cases because the publication is usually made in newspapers that nobody reads. Besides, Art. 140 provides that the separation of property between the spouses does not prejudice rights previously acquired by creditors. But in exceptional cases, like if the spouses have an extensive business which reaches to may parts of the country, publication may be ordered for the protection of the creditors. d. Revival of old Property Regime
Q: What are the sufficient causes for judicial separation of property? The ff. are the sufficient causes: 1. that the spouse of the petitioner has been sentenced to a penalty which carries with it civil interdiction; 2. that the spouse of the petitioner has been judicially declared an absentee; 3. That loss of parental authority of the spouse of petitioner has been decreed by the court; 4. That the spouse of the petitioner has abandoned the latter or failed to comply with his or her obligations to the family s provided for in Article 101; 5. That the spouse granted the power of administration in the marriage settlements has abused that power; and 6. That at the time of the petition, the spouses have been separated in fact for at least one year and reconciliation is highly improbable NOTE: Only three months of abandonment is required for judicial separation of property as enunciated in Art. 101 (3) whereas one year is required for legal separation of spouses (Art. 55 (10)). In abandonment, the
Article 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 settlements 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;
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5.) When parental authority is judicially restored to the spouse previously deprived thereof; 6.) When the spouses who have been 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 Article 67. Article 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 one spouse is judicially declared an absentee; 3.) When one spouse is sentenced to a penalty which carries with it civil interdiction; 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 in the administrator. Q: What are the grounds for the revival of the old property regime? 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 settlements 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 been 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 Article 67. Article 67. The agreement to revive the former property regime referred to in the preceding Article (Article 66) shall be executed under oath and shall specify: 1.) The properties to be contributed anew to the restored regime; 2.) Those to be retained as separate properties of each spouse; and 3.) The names of all their known creditors, their addresses and the amounts owing to each. The agreement of revival and the motion for its approval shall be filed with the court in the same proceeding for legal separation, with copies of both furnished to the creditors named therein. After due hearing the court shall, in its order, take measures to protect the interest of creditors and such order shall be recorded in the proper registries of properties. The recording of the order in the registries of property shall not prejudice any creditor not listed or not notified, unless the debtor spouse has sufficient separate properties to satisfy the creditors claim. Q: Would reconciliation mean automatic revival of the former property regime? No. Automatic revival does not follow. They must first file a motion in the same proceedings where separation of property was decreed if they want such revival. An automatic revival is very cumbersome as an inventory and a statement of the properties newly contributed by the parties to the revived regime must again be made. And creditors would not know that there has been a reconciliation between the parties and a return to their former regime unless there is a judicial decree to that effect and the decree is registered in the proper civil registries and registry of properties. Q: What is the subject matter tackled in Article 142 It refers to the cases when the court may transfer administration of all classes of exclusive property of one spouse to the other. Q: When can this happen? The court may do so in the ff. instances: 1.) When one spouse becomes the guardian of the other; 2.) When one spouse is judicially declared an absentee;
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3.) When one spouse is sentenced to a penalty which carries with it civil interdiction; 4.) When one spouse becomes a fugitive from justice or is in hiding as an accused in a criminal case. Q: How many times may dissolution and revival occur? The general rule is that dissolution and revival may be done only once. However, when there is another ground for dissolution in Art. 135 that happens, then another dissolution may occur and another revival once said ground disappears. Q: What is the procedure for revival? 1.) File a motion for revival in the same court that granted the separation of properties 2.) List the creditors of both spouses 3.) Notify the creditors 4.) A decision is rendered 12. Regime of Separation of Property Article 143. Should the future spouses agree in the marriage settlements that their property relations during marriage shall be governed by the regime of separation of property, the provisions of this Chapter shall be of suppletory application. Article 144. Separation of property may refer to present or future property or both. It may be total or partial. In the latter case, the property not agree upon as separate shall pertain to the absolute community. Article 145. Each spouse shall own, dispose of, possess, administer and enjoy his or her own separate estate, without need of the consent of the other. To each spouse shall belong all earnings from his or her profession, business or industry and all fruits, natural, industrial or civil or received during the marriage from his or her separate property. Article 146. Both spouses shall bear the family expenses in proportion to their income, or, in case of insufficiency or default thereof, to the current market value of their separate properties. The liability of the spouses to creditors for family expenses shall, however, be solidary. Q: What happens under the regime of separation of property?
Under this regime, each spouse retains ownership, management and control of their properties before the marriage. Those acquired during the marriage, and the earnings, fruits, accessories, etc. of the separate properties shall also be treated as separate properties. Q: When can the regime of separation of property exist? 1.) By agreement of the parties in the marriage settlement; or 2.) Upon a court decree (previous topic) Q: Is there any way by which this regime be changed during the marriage? No. Once the spouses choose separation of property, they are forever bound by it. This is unlike absolute community or conjugal partnership where the spouses may later opt for separation of properties and then later revive the old property regime. Q: How are family expenses shouldered? Family expenses shall be borne by the spouses in proportion to their income, or, in case of insufficiency thereof, by the current market value of their separate properties. However, the spouses may agree upon a different sharing of family expenses. However, as regards creditors, the liability of spouses for family expenses is solidary.
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PART I THE CIVIL CODE OF THE PHILIPPINES A.

For Civil laws: What is importance is citizenship.

ARTICLE 20 1. The act is illegal. A law was violated.

Actions for breach of promise to marry

ART. 29. WHEN THE ACCUSED IN A CRIMINAL PROSECUTION IS ACQUITTED ON

Restrictions and Modifications on Capacity to Act

OR CONFLAGRATION, AND IT IS NOT SHOWN WHO DIED FIRST, AND

OLDER IS DEEMED TO HAVE SURVIVED;

IF BOTH WERE UNDER THE AGE OF FIFTEEN YEARS, THE

DEEMED TO HAVE SURVIVED;

IF BOTH WERE ABOVE THE AGE SIXTY, THE YOUNGER IS

SIXTY, THE FORMER IS DEEMED TO HAVE SURVIVED;

IF BOTH BE OVER FIFTEEN AND UNDER SIXTY, AND THE IF

OTHER BETWEEN THOSE AGES, THE LATTER IS DEEMED TO HAVE

PART II FAMILY CODE OF THE PHILIPPINES (EO No 209) A. Marriage 1. Concept

Essential and Formal Requirements

Q: Why is there a need to distinguish between essential and formal requirements?

Q: What are the instances when the two-year limit apply?

Jurisdiction Period of incumbency.

Due to failure to liquidate property regime, distribute presumptive legitime, etc.

Q: Will divorces obtained in another country be recognized in the Philippines?

Inexistent from time of performance Nope

EFFECT ON PROPERTY EFFECT ON KIDS

HOW IT MAY BE IMPUGNED

Necessity of court declaration

Void Marriages Grounds

Serious sexually transmissible disease Pendency of action

Within 5 years after the marriage

no, action prescribes

Ground Lack of parental consent

only insane party can ratify during a lucid interval

Parents, guardians, relatives Insane spouse

Yes, cohabitation during a lucid interval

Force, Intimidation & Undue Influence Impotence

Injured party Potent party

(Forfeited in favor of wife) (50%)

Share of wife (50%)

Share of wife Husbands share as surviving spouse

To render mutual help and support To live together

IN THE EVENT THAT ONE SPOUSE IS

IN THE EVENT THAT ONE SPOUSE IS

HOWEVER, THE TRANSACTION SHALL

HOWEVER, THE TRANSACTION SHALL

Conjugal Partnership ART. 124. THE ADMINISTRATION AND

COMMUNITY, SUBJECT TO SUCH PRECAUTIONARY CONDITIONS AS THE COURT MAY IMPOSE.

THE OBLIGATIONS TO THE FAMILY

THE OBLIGATIONS TO THE FAMILY

A SPOUSE IS DEEMED TO HAVE

A SPOUSE IS DEEMED TO HAVE

Conjugal Partnership ART. 128. IF A SPOUSE WITHOUT JUST

Absolute Community ART. 98. NEITHER SPOUSE MAY

Conjugal Partnership ART. 125. NEITHER SPOUSE MAY

ART. 135. ANY OF THE FOLLOWING SHALL BE CONSIDERED SUFFICIENT

CAUSE FOR JUDICIAL SEPARATION OF PROPERTY:

(1) THAT THE SPOUSE OF THE PETITIONER HAS BEEN

101; (5) THAT THE SPOUSE GRANTED THE POWER OF

Grounds for revocation are found in the law on damages

Donations by Reason of Marriage

(3) WHEN THE MARRIAGE IS ANNULLED, AND THE DONEE

NOTE: MISSING PAGE

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