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PART I THE CIVIL CODE OF THE PHILIPPINES

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

A.

Preliminary Title

Publication

= 08/04/87

 

Effectivity

= 08/03/88

Article 1. This act shall be known as the “Civil Code of the Philippines.”

1. Chapter 1: Effect and Effectivity of Laws

a. When laws become effective EO 200

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.

Tañada v. Tuvera FACTS:

Petitioners were assailing the validity of several Presidential Decrees (so- called 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.”

ISSUES

1. May the law dispense with publication as long as it provides for the date of its effectivity?

2. Must all laws be published?

3. Where must the publication be made to make a law effective?

4. When must the publication be made?

5. What is the purpose of publication?

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

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.

2. 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

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unpublished decrees be published in the O.G. immediately. Therefore, all laws must be published.

3. 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).

4. Publication must be made ‘as soon as possible.’ What this phrase means must be determined on a case-to-case basis.

5. 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.

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. Central Bank Regulations – if it affects the public, publication is necessary.

3. Laws granting citizenship to certain individuals – example: law granting Filipino citizenship to Ms. Mauritius.

4. 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.

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.

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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.

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:

1. 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.

2. Article 1334: Vitiation of consent on the ground of mistake must be mutual.

3. 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.

4. 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.

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?

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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?

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.

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

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

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.

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

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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.

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.

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

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:

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1. Right of redemption –This right can be waived except if it prejudices others.

2. Public land Act – Waiver of Homestead rights is against public policy.

Q: What are the restrictions as to waivers? A:

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)

1.

Capacity –prerequisite to waiver because one must have the will to waive; not valid if made by an incapacitated person.

Art. 9. No judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws.

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.

Q: What are the differences between criminal and civil cases, as far as this provision is concerned?

3.

The waiver must not be against law, public order, public policy, etc.

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

f.

Judicial decisions

to cover the particular situation, the court must decide using:

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)

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 24 th , 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.

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. 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.

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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 CA’s directive to enter judgment since the decision has become final. While the second resolution pertains to the denial of petitioner’s 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 non- publication of the Habaluyas decision in the O.G. as of the time the subject decision of the CA was promulgated.

ISSUE:

O.G. before they can be effective and binding.

Whether the court decisions of a case need to be published in the

HELD:

NO. Contrary to petitioner’s 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.

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.”

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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

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

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.

For Civil laws: What is importance is citizenship.

EXCEPTIONS (in international law)

Our Citizens are covered wherever

1. Diplomatic immunity

they may be as regards:

2. 2. treaty stipulations

1. family rights and duties

3. Philippine embassies abroad

4. vessels or airplanes registered under Philippine laws

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

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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

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

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

WILLS

CONTRACTS

 

Extrinsic Validity

Lex loci celebrationis; if aliens here then according to their nationality, residence or domicile

Lex loci celebrationis Except: property e.g. mortgage, pledge; in which case: LEX SITUS

Intrinsic Validty

National

law

of

the

Parties

can

freely

decedent

stipulate as long as it is not contrary to law

Legal Capacity

National

law

of

the

National law of the parties except if it involves real or personal properties which is governed by LEX SITUS

decedent

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.

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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.

special laws, their deficiency shall be supplied by the provisions of this Code.

In matters which are governed by the Code of Commerce and

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

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.

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 lawyer’s 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:

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.

Whether or not the removal was contrary to the CC provisions on

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.

advantage of his position and of unlawfully refusing to give Curio his clearance.

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 petitioner’s position was declared vacant, was

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.

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

ISSUE: Whether or not Llorente is liable for civil damages. HELD:

obliquity and conscious doing to wrong but rather emanates from the desire of the Board to reorganize itself.

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

b.

Duty to act with justice, observe honesty and good faith

Art. 19. Every person must, in the exercise of his rights and in the

Q: What is the consequence of not observing this article?

 

who were similarly circumstanced in that they all had pending obligations when, their clearances were filed for consideration, warranting similar official action.

performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.

A: In general, the violation of this article will result only in civil liability. In

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

some cases, however, the same act may be the basis of criminal prosecution.

It

is the essence of Article 19 of the CC, under which the petitioner was

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

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

   

ARTICLE 21

 

1.

The

act

is

illegal.

A

law

was

1.

The act is not illegal. No law was

violated.

 

violated, but offended public morals, good customs and public policy.

2.

The act was done willfully or may

2.

The act was done willfully.

 

have been negligently committed.

   

3.

The intent of the offender is not

3.

The

intent

of

the

offender

is

important in determining liability.

immaterial.

 

c. 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 Joy’s 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 Joy’s 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.

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 can’t. 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, didn’t 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.

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Note: Ask Dean if the answer is correct.

wedding by looking for pigs and chickens, inviting friends and relatives and contracting sponsors.

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 didn’t 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

The parents of the girl made some preparations for the

Pangasinan.

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 quasi- delict 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 man’s 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:

Richard’s cows were grazing. Suddenly a storm flooded the valley. The cows ran up the hill where Robert planted vegetables. Robert’s 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

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 x’s 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 won’t be.

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

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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 officer’s 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. That the defendant can be a public official charged with the performance of official duties

2. That there be a violation of an official duty in favor of an individual

3. That there be wilfullness or negligence in the violation of such official duty; and

4. 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 president’s 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 official’s 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 Tabuena’s 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.

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.

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.

His acquittal is grounded on the court’s finding that he did not commit the crime

2.

The action has already prescribed

3.

There are justifying circumstances except in the case of avoidance of greater evil or injury

h.

Independent Civil Actions and Prejudicial Questions

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.

g. Damages despite acquittal in criminal case

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.

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.

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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.

Art 31 – when the civil action is not based on the felony complained of

proceed with the criminal case to determine whether the accused is guilty or innocent

2. Art 32 – violation of the bill of rights

3. Art 33 – defamation, fraud, physical injuries

4. Art 34 – failure of the member of the police force to render aid and protection

5. Art 2176 – quasi-delicts

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 case’s 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: 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:

Q: Between the civil case and criminal case, which should be filed first?

NO. A civil action for declaration of nullity of documents and for

It

does not matter which between the civil and criminal case was filed ahead

damages does not constitute a prejudicial question to a criminal case for

as

long as there are two cases pending: one involving criminal and the other

estafa where the alleged prejudicial question in the civil case does not

involving civil and both cases are interrelated so much so that the decision

determine the guilt or innocence of the accused in the criminal action.

in

the civil action is determinative of the guilt or innocence of the accused in

Thus, even on the assumption that documents are declared null, it does

the criminal cases.

not ipso facto follow that such declaration of nullity shall exonerate the

Q: Do they have to be pending in two courts?

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.

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

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

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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 Arthur’s 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 Arthur’s 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.

Persons

1. 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

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

Capacity to Act

The fitness to be subject to legal relations

The power to do acts with legal effect

Passive attribute

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:

1. 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 mother’s womb

2. 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)

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 one’s properties which will have to be determined and passed on in accordance with the rules of succession. Rules of succession, however, cover only one’s properties and not one’s person.

Q: When does capacity to act end? Capacity to act also ends at the moment of death

SUMMARY:

 

Juridical Capacity

Capacity to Act

Start

Birth

Emancipation

End

Death

Death

b. 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 one’s capacity to act? In the case of minority (below 18), insanity (where a person’s 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 one’s 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 one’s 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 one’s 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 person’s 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?

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)

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)

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)

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 doesn’t 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 one’s 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 one’s 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. Chapter 2: Natural Persons

a. When personality begins and ends

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))

TWO

PERSONS PERISH IN THE SAME CALAMITY, SUCH AS WRECK, BATTLE, OR CONFLAGRATION, AND IT IS NOT SHOWN WHO DIED FIRST, AND THERE ARE NO PARTICULAR CIRCUMSTANCES FROM WHICH IT CAN BE

INFERRED,

THE

PROBABILITIES RESULTING FROM THE STRENGTH AND THE AGE OF THE

SEXES, ACCORDING TO THE FOLLOWING RULES:

1. IF BOTH WERE UNDER THE AGE OF FIFTEEN YEARS, THE

(JJ)

THAT

EXCEPT

FOR

PURPOSES

OF

SUCCESSION,

WHEN

THE

SURVIVORSHIP

IS

DETERMINED

FROM

OLDER IS DEEMED TO HAVE SURVIVED;

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2. IF BOTH WERE ABOVE THE AGE SIXTY, THE YOUNGER IS

DEEMED TO HAVE SURVIVED;

3. IF ONE IS UNDER FIFTEEN AND THE OTHER ABOVE

SIXTY, THE FORMER IS DEEMED TO HAVE SURVIVED;

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

SEX BE DIFFERENT, THE MALE IS DEEMED TO HAVE SURVIVED, IF THE SEX BE THE SAME, THE OLDER;

5. IF ONE BE UNDER FIFTEEN OR OVER SIXTY, AND THE

OTHER BETWEEN THOSE AGES, THE LATTER IS DEEMED TO HAVE SURVIVED.

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.

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

Rules of Court

Person who died must be called upon to succeed each other. They may or may not die as a result of a calamity

The person concerned must have died as a result of a calamity. They may or may not be required to succeed each other.

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. Chapter 3: Juridical Persons

a. 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

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. 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.

Domicile

 

1.

Kinds

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

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.

2. 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-à-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 child’s 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. not provided, then where their legal representation is established;

If

Q: What are the principles of domicile?

or

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-à-vis citizenship where there can be a stateless

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

purpose of agreement to allow each and everyone of them to remarry

without objection or reservation

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.

entered into for the

.". His defense: the agreement was made

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 you’re 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

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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

contracting parties to terminate the contract

Any person with the capacity to act can enter into an ordinary contract

Only a man and a woman can enter into a contract of marriage

The breach of an ordinary contract gives rise to an action for damages

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:

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 depend on the stipulation of the contracting parties unless those stipulations are against the law, public policy, public order, morals or good customs

In

marriage, the nature,

consequences and incidents are governed by law except with reference to marriage settlements

The legal age for ordinary contracts is the age of majority

The legal age for entering into a contract of marriage is the age of majority however there are other legal requirements for those below the ages of 21 and 25

An ordinary contract may end either through:

In

marriage, only death or the

annulment of marriage for legal

1. Express provision of law

causes dissolves the marriage

2. Expiration of the term for which the contract was executed

contract

3. Fulfillment of the purpose of the contract or

4. Mutual agreement by the

(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

Formal Requirements

Absent

Void

Void

Irregularity

 

No such thing as defective legal capacity; its either present or absent. But the provision says voidable

Voidable

Q:

requirements?

Why is there a need to distinguish between essential and formal

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. both parties must have the necessary age, the minimum being 18;

b. one party to the marriage must be a (born) a man and the other a woman;

c. 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 children’s 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. 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 twenty- five 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)

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 21 st birthday, do you need parental consent or advice?

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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:

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?

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.

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.

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;

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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 4 th civil degree of affinity or consanguinity.

Q;

degree include?

In includes relationship between:

What do marriages between collateral blood relatives up to 4 th civil

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.

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 Carmela’s mommy?

No. Even if Carmela’s mom is no longer Enzo’s-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 sister- in-law when one’s 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?

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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

constructive death.

regard

to

death,

there

is

a

question

between

actual

death

and

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.

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. 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

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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: 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.

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 party’s 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

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)

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 spouse’s continued existence. The fact that you merely don’t 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

But the Family Code is now strict

though that the other spouse is dead.

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 don’t 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.

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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. The children are legitimate.

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?

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 Lilia’s previous existing marriage to Eduardo Maxion.

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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 Edgardo’s 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

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.

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 the marriage

There is an expression of consent but there are outside factors which influence the consent given.

The marriage is void

The marriage is merely voidable

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: 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 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)

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

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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

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

31;

Article

(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

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. It’s a function of their office.

Q:

solemnize marriages?

What are the limitations as to the authority of the judges or justices to

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1. Jurisdiction

2. 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 priest’s 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:

marriages?

Under what conditions can ship captains or airplane chiefs solemnize

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:

subsequently recovers?

What is the effect on the marriage if the person at the point of death

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. 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.

2. the officiating officer must be a commissioned officer—the officer must command at least a battalion, and he must also at least have a rank of 2 nd lieutenant.

3. the marriage must take place during the conduct of military operations.

4. a chaplain must be assigned to the military an said chaplain must be absent at the time when the couple is to get married.

5. the marriage must be celebrated within the zone of military operations.

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 2 nd 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)

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-

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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 Tarangnan- Pagsanjan, 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 fiancé 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 court’s 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 court’s jurisdiction.

ISSUE: Whether or not the Mayor is liable. HELD:

YES. Inasmuch as respondent judge’s 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

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

(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 Registrar’s Office. It is a formal requirement for a valid marriage.

Q.

What makes a marriage license void?

1. 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

2. if the genuine license had expired

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.

X’s 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 registrar’s 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

Q.

Who is going to give parental consent?

civil registrar but to the court. When you go to the court, you should ask for

a) father;

the issuance of an order of prohibition to be issued against the civil registrar.

b) mother;

 

c) anyone exercising substitute authority;

Q.

Is it possible for the local civil registrar to initiate proceedings in court?

d) persons considered as guardians; and

Yes, but do not rely on it heavily because you cannot expect him to institute

 

e) persons of legal charge

the necessary proceedings. The law says he can, but if he does not or is not

(in the order stated)

willing, there is no consequence.

 

Q.

What if your father is still alive, but despite that you obtained the consent

Q. What must be presented to the civil registrar in obtaining

license? We must make a distinction between applicants for

1. First marriages;

2. Subsequent marriages; and

3. Alien applicants

1.

FIRST MARRIAGES

a marriage

Q. How is age shown?

By presenting a copy of the birth certificate. This is the best evidence of one’s 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.

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?

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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.

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?

Q.

Who are required to go through marriage counseling?

1. Death

If

either of the parties is between the ages of 18 ad 25, BOTH of the parties

2. Annulment of the marriage

must go through marriage counseling.

2. SUBSEQUENT MARRIAGES

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

3)

annulment; in case of declaration of nullity of void marriage- judical decree of

4)

nullity; 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?

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.

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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.

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.

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

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. 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?

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

2)

are at the point of death (marriage in articulo mortis) Article 28-where the residence of either party is so located

3)

that there is no means of transportation to enable such party to appear personally before the local civil registrar (marriage in a remote place) 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

formal requirement. A marriage license is exempt in any case where the

Q. If the marriage is in articulo mortis, do you still have to comply with the

requirement regarding authority of the solemnizing officer? Yes.

foregoing conditions appear. Filing of the affidavit is only a post-marriage

requirement.

 

2.

REMOTE PLACE

Q.

Who are the persons who can solemnize a marriage in articulo mortis?

Essentially all those who are authorized to solemnize marriage under Article

Q.

What is a remote place?

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.