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UP College of Law, Bar Operations 2008
I. CIVIL PERSONALITY
A. CONCEPT AND CLASSES OF PERSONS
Person - any being, natural (Art. 40, CC) or juridical (Art. 42, CC), susceptible to legal rights and obligations, and can be a subject of legal relations.
Kinds of Capacity: (Art. 37, CC) Juridical Capacity Capacity to Act Fitness to be the subject of legal relations. Power to do acts with legal effect Inherent in every natural person Acquired and may be lost Lost only through death Subject to certain restrictions Inherent and ineffaceable attribute of man; attaches to him by the mere fact of his being a man. Conditional and variable, it is acquired and may be lost.
Kinds of persons:
1. NATURAL PERSONS General Rule: Birth determines personality (Art 40). Death extinguishes civil personality (Art 42). Exception: A conceived child is considered born for all purposes that are FAVORABLE to it, provided it be born later (Art 40, 2nd clause) with the following circumstances: 1. It is alive at the time it is completely delivered from the mother's womb. 2. But if the fetus had an intra-uterine life of less than seven months, it should survive for at least 24 hours after its complete delivery. (Art. 41, CC) Test of life: complete respiration.
NB: Burden of proof: The presumption is that it was alive and the burden of proof is on the party who alleges the contrary.
Geluz v. CA, G.R. No. 16439 (1961) An unborn fetus is not endowed with personality. Parents of an unborn fetus cannot sue for damages on its behalf as the fetus, having no personality, does not have rights which it can pass on. The family, however, can recover moral damages.
Effect of Death: The effect of death upon the rights and obligations of the deceased is determined by law, by contract and by will (Art 42, par. 2).
Doubt as to the order of death: If they are called to succeed each other, 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 will be no transmission of rights from one to the other. (Art. 43, CC)
J oaquin v. Navarro, 93 Phil 257 (1953) The rule on Art. 43 was not applied in determining whether the mother or the son died first. There were eyewitnesses who can give evidence as to who died first. It is only applied when it is impossible to determine who died first that the presumption applies.
2. JURIDICAL PERSONS
Kinds of juridical persons: (Art. 44, CC) 1. The State and its political subdivisions; 2. Other corporations, institutions and entities for public interest or purpose, created by law; 3. Corporations, partnerships and associations for private interest or purpose to which the law grants a juridical personality.
Governing laws: Juridical Person Governing law State Constitution Political subdivision Charter Public corporation Charter Private corporation Corporation Code, Articles of Incorporation and By- Laws Partnerships Stipulations of the parties and C I V I L L A W, P E R S O N S A N D F A M I L Y R E L A T I O N P a g e | 2
UP College of Law, Bar Operations 2008 suppletorily by the general provisions on partnership
Juridical persons may acquire and possess property of all kinds, incur obligations, and bring civil or criminal actions (Art. 46, CC)
B. CAPACITY TO ACT AND RESTRICTIONS THEREON
Presumption of Capacity:
Standard Oil Co. v. Arenas 19 Phil 363 (1911) To prove insanity, it has to be proven that: 1) The monomania of wealth was habitual and that it contributed to mental perturbation; 2) that the act was caused by the monomania itself; 3) that the monomania existed at the moment he signed the surety. Capacity to act is presumed unless previously declared incapable by the court.
Restrictions/limitations on capacity to act: (Art. 38, 39, CC,) 1) Minority 2) Insanity or imbecility 3) State of being deaf-mute 4) Prodigality 5) Civil interdiction 6) Family relations 7) Alienage 8) Absence 9) Married women (Art. 2259, CC)
1. Minority
RA 6809 Majority commences at the age of 18 years.
Effect on Contracts: 1. Minors cannot give consent to a contract. (Art. 1327, CC). 2. The parents consent is binding on the minor. (Shields v. Gross, 58 NY 2d 338) 3. If one of the parties to a contract is a minor, the contract is voidable. (Art.1390, CC) 4. If both parties are minors, the contract is unenforceable. (Art. 1403, CC) 5. Persons who are capable cannot allege the incapacity of the other party. (Art.1379, CC) 6. The minor is not obliged to make restitution except insofar as he has been benefited. (Art. 1399, CC) 7. If there is active representation by the minors that they are of legal age, the contract is valid. (Mercado v. Espiritu, 37Phil. 215) 8. If there is only passive representation, the contract is not valid. The fraud must be actual and not constructive. Mere silence does not constitute fraud. However, the minors must make restitution to the extent they profited from the money received. (Braganza v.de Villa Abrille, 105 Phil. 456)
Effect on Marriage: Marriage contracted by any minor is VOID.
Effect on Crimes: 9 years and below= EXEMPT from criminal liability. (Art. 12, RPC) Over 9 years and under 15 = EXEMPT, (Art. 12, RPC) Unless he acted with discernment = Penalty is lowered by at least 2 degrees. (Art. 68, RPC) 15 years and below 18 = MITIGATING circumstance. (Art. 13, RPC)
2. Insanity
Effect on Contracts: 1) Insane persons cannot give consent to a contract. (Art. 1327, CC) 2) Contracts entered into during a lucid interval are valid. (Art. 1328, CC) 3) The incapacitated person is not obliged to make any restitution except insofar as he has been benefited. (Art. 1399, CC)
Effect on Crimes: Insane persons are EXEMPT from criminal liability unless they acted during a lucid interval. (Art. 12, RPC)
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UP College of Law, Bar Operations 2008 Effect on Marriage: A marriage is VOIDABLE if either party was of unsound mind at the time of the marriage. Except: When the insane person, after coming to reason, freely cohabited with the other.
Dumaguin v. Reynolds 10 Phil. 381 (1952) The presumption of mental incapacity in a person under guardianship for mental derangement may be rebutted by evidence. That person may enter a valid contract provided it is proven 1) That he was not insane at the time he entered into the contract, and 2) That his mental defect did not affect his capacity to appreciate the meaning and significance of the transaction.
3. State of being deaf-mute 1. Deaf-mutes cannot give consent to a contract. (Art. 1327, CC) 2. If the testator is a deaf-mute, he must personally read the will. If unable to read, he must designate 2 persons to read it and communicate to him the contents thereof. (Art. 807, CC) 3. Deaf-mutes cant be witnesses to a will. (Art. 820, CC)
4. Prodigality
Martinez v. Martinez 1 Phil. 182 To make a person legally unfit to run his own affairs, his acts of prodigality must show: 1. A morbid mind, and 2. A tendency to spend or waste the estate so as to expose the family to want or deprive the forced heirs of their inheritance.
5. Civil Interdiction
Civil interdiction deprives the offender during the time of his sentence of the following rights (PA-G-MA-MD) 1. Parental authority, 2. Guardianship as to the person or property of any ward, 3. Marital authority, 4. Management his property 5. Disposition of his property (Art. 34, RPC)
6. Family Relations
Effect on Crimes: 1. No criminal liability if one acts in defense of spouse, ascendants, descendants, brothers or sisters, relatives by affinity and consanguinity within the 4th civil degree provided the requisites in Art. 11and 12 of RPC are followed. 2. Mitigating circumstance: If one acts in immediate vindication of a grave offense committed against his spouse, ascendants, or relatives by affinity within the same degrees. (Art. 13, RPC)
Effect on Marriage: Incestuous and void Marriages between ascendants and descendants; between brothers and sisters, whether full or half blood. (Art. 37, FC)
Effect on Prescription: Prescription does not run between husband and wife. (Art. 1109, CC)
Effect on Property Relations: 1) Husband and wife cannot sell property to each other except: 2) When separation of property was agreed in the marriage settlements; 3) When there has been a judicial separation of property. (Art.1490, CC)
7. Alienage
8. Absence General Rule: Absence of 7 years + unknown whether the absentee still leaves = presumed dead for all purposes. Except: For the purpose of opening his succession, in which case, the absentee is presumed dead C I V I L L A W, P E R S O N S A N D F A M I L Y R E L A T I O N P a g e | 4
UP College of Law, Bar Operations 2008 after 10 years. If disappeared after the age of 75 years, 5 years will be sufficient. (Art.390, CC)
Rule:
The following are presumed dead for ALL purposes, including the division of estate among the heirs: (VA-A-D) 1) A person on board a vessel during a sea voyage, or an aeroplane which is missing, who has not been heard of for 4 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 4 years; 3) A person who has been in danger of death under other circumstances and existence has not been known for 4 years. (Art. 391, CC)
Administration and enjoyment of conjugal partnership where one spouse is absent: 1) The other spouse may assume sole powers of administration. 2) These powers to NOT include disposition or encumbrance without court authority or written consent of the other spouse.
Effect of want of authority/consent: VOID disposition or encumbrance. BUT, the transaction is construed as a CONTINUING OFFER on the part of the consenting spouse and the 3rd person. It may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors. (Art. 124, FC)
9. Married Women
General Rule: A married woman may not sue or be sued alone without joining her husband.
Except: (Rule 3, Sec. 4, ROC) 1. When they are judicially separated. 2. If they have in fact been separated for at least 1 year; 3. When there is a separation of property agreed upon in the marriage settlements; 4. If the administration of all the property in the marriage has been transferred to her; 5. When the litigation is between husband and wife; 6. If the suit concerns her paraphernal property; 7. When the action is upon the civil liability arising from a criminal offense; 8. If the litigation is incidental to the profession, occupation or business in which she is engaged; 9. In any of the civil action referred to in Art. 25-35 CC. 10. In an action upon a quasi-delict.
Note: In cases #7-9, the husband must be joined as party defendant if Art. 163, par. 3 applies.
II. CITIZENSHIP AND DOMICILE
A. FILIPINO CITIZENS 1. Those who are citizens of the Philippines at the time of the adoption of the 1987 Constitution; 2. Those whose fathers or mothers are citizens of the Philippines; 3. Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and 4. Those who are naturalized in accordance with law. (Art IV, 1, 1987Consti.)
B. DOMICILE
For Natural Persons: The place of their habitual residence (Art. 50,CC).
For Juridical Persons: C I V I L L A W, P E R S O N S A N D F A M I L Y R E L A T I O N P a g e | 5
UP College of Law, Bar Operations 2008 The place where their legal representation is established, or where they exercise their primary functions, unless there is a law or other provision that fixes the domicile (Art.51, CC).
Domicile vs. Residence: 1. While domicile is permanent (there is intent to remain), 2. residence is temporary and may be changed anytime (there is no necessary intent to remain).
Requisites of Domicile: 1. Physical Presence 2. Intent to remain permanently
Kinds of Domicile: 1. Domicile of Origin Domicile of parents of a person a tthe time he was born. 2. Domicile of Choice Domicile chosen by a person, changing his domicile of origin. A 3rd requisite is necessary intention not to return to ones domicile as his permanent place. 3. Domicile by Operation of Law (i.e.,Article 69, domicile of minor)
Construction of residence: 1) Although residence and domicile are used interchangeably, they are NOT synonymous in connection with citizenship, jurisdiction, limitations, school privileges, probate and succession. (Uytengsu v. Republic,1954) 2) As used in the Naturalization Law, residence means actual and substantial residence, not domicile. (Uytengsu v. Republic, 1954) 3) HOWEVER, in election law, residence is synonymous with domicile. (Romualdez- Marcos v. Comelec, 1995)
III. MARRIAGE
A. DEFINITION AND NATURE OF MARRIAGE
Definition of Marriage: 1) A special contract 2) of permanent union 3) between a man and a woman 4) entered into in accordance with law 5) for the establishment of conjugal and family life. 6) It is the foundation of the family and 7) an inviolable social institution 8) whose nature, consequences, and incidents are governed by law and notsubject to stipulation, 9) except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code. (Art. 1, FC)
Breach of promise to marry:
Tanjanco v. CA 18 SCRA 994 Breach of promise to marry is not an actionable wrong. The fact that the woman agreed to have sexual intercourse for a year does not constitute seduction but mutual passion.
Wassmer v. Velez 12 SCRA 648 While mere breach is not an actionable wrong, Velez is still liable under Art. 21 of the Civil Code which provides that when a person willfully causes loss or injury contrary to good custom, he shall compensate the latter for damages (costs of the wedding preparations). It is the abuse of right which can be a cause for moral or material damages.
Trinidad v. CA 289 SCRA 188 (1998) Absence of a marriage certificate is not proof of absence of marriage. To prove the fact of marriage, the following would constitute competent evidence: 1) the testimony of witnesses to matrimony; 2) the couples public cohabitation; and 3) birth and baptismal certificates of children born during the union.
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UP College of Law, Bar Operations 2008 Presumption of marriage: In case of doubt, all presumptions favor the solidarity of the family. Thus, every intendment of law or facts leans towards the validity of marriage, the indissolubility of the marriage bonds, etc. (Art. 221, FC)
B. ESSENTIAL REQUISITES OF MARRIAGE 1) Legal Capacity of contracting parties who must be Male and Female; 2) Consent freely given in the presence of the solemnizing officer. (Art. 2, FC)
J ones v. Hallahan 501 S.W. 2d 588 A license to enter into a same-sex marriage is a nullity since the parties are incapable of entering into a marriage as the term is defined. Marriage is defined by law as one entered into by a man and a woman.
People v Santiago 51 Phil 68 When a person only married another to avoid prosecution because he raped her the same morning, the marriage is void for absence of consent on the part of the rapist. It was a mere ruse for him to escape criminal liability.
Effects of absence of and defect in the requisites of marriage: (Art. 4, FC)
Absence Defect Irregularity Essential Void* Voidable Formal Void* No effect on validity but party responsible will be liable.
*Except when it is solemnized by an unauthorized person with either or both contracting parties having good faith that he had authority to do so (Art 35, par. 2)
C. FORMAL REQUISITES OF MARRIAGE (SO-ML-MC) 1) Authority of the solemnizing officer; 2) A valid marriage license; 3) Marriage ceremony (Art 3, FC)
a. Authority of solemnizing officer Who are authorized to solemnize marriages? (JPSMCM) 1) Any incumbent member of the judiciary within the courts jurisdiction (Art. 7, par.1); 2) Any priest, rabbi, imam, or minister of any church or religious sect a) Must be authorized by his church or religious sect. b) Must be registered with the civil registrar general. c) Must act within the limits of the written authority granted by the Church. d) At least one of the parties must be a member of the church or religious sect to which the solemnizing officer belongs. (Art. 7, par. 2) 3) Ship captain or airplane chief in thefollowing cases; a) Where one or both of the parties are in articulo mortis, b) While the ship is at sea or c) While the plane is in flight, or d) At stopovers or ports of call (Art 7,par. 3; Art 31, FC). 4) Any military commander of a unit to which a chaplain is assigned, in the absence of the latter (Art 7, par. 4 FC); Can only solemnize marriages in articulo mortis between persons within the zone of military operation, whether members of the armed forces or civilians (Art 32, FC). 5) Consul-general, consul, or vice consul (Art.7, par. 5 FC) Can solemnize marriages between Filipino citizens abroad. The issuance of the marriage license and the duties of the local civil registrar shall also be performed by said consular official. (Art. 10, FC) 6) Mayors (LGC)
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UP College of Law, Bar Operations 2008 b. Marriage License
Marriages exempt from marriage license requirement: (ARMC) 1) Marriage in articulo mortis (Art. 27, FC) 2) Marriage in remote and inaccessible places (Art. 28, FC) 3) Marriages by Muslims and cultural minorities. (Art. 33, FC) 4) Marriage by parties with who have cohabited for at least 5 years. (Art. 34,FC)
Ninal v Badayog GR 133778 (2000) There must be no legal impediment during the entire five or more years that the parties are living as husband and wife.
Things to do at the local civil registrar: 1) File an application of marriage license at the proper local civil registrar. (Art.11, FC) 2) Present birth or baptismal certificate. (Art. 12, FC) 3) If aged 18-21 years, present parental consent. (Art. 14, FC) 4) If aged 21-25, present parental advice. (Art. 15, FC) 5) If aged 18-25, present certificate of marriage counseling from your priest. (PD 965) 6) Pay the required fees. (Art 19, FC) 7) If foreigner, present certificate of legal capacity issued by diplomat or consular officials. (Art. 21, FC)
c. Marriage Ceremony There is no particular form or religious rite required by law. (Art. 6, FC)
Minimum requirements by law: 1. The contracting parties appear personally before the solemnizing officer 2. They declare in the presence of at least two witnesses of legal age, 3. That they take each other as husband and wife 4. The declaration shall be contained in the marriage certificate, 5. Which shall be signed by the contracting parties and their witnesses and attested by the solemnizing officer. (Art. 6, FC) Note: In a marriage in articulo mortis, when one or both parties are unable to sign the marriage certificate, it shall be sufficient for one of the witnesses to write the name of said party, which shall be attested by the solemnizing officer. (Art 6, par. 2)
Places where marriage may be celebrated (CCO): (Art. 8, FC) General Rule: 1. Chambers of the judge or in open court; 2. Church, chapel, or temple 3. Office of the Consul-general, consul, or vice-consul, as the case may be. Exceptions: 1. Marriage in articulo mortis; 2. Marriage in a remote place in accordance with Art. 29; 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 then in a sworn statement.
D. MARRIAGES CELEBRATED ABROAD General Rule: Marriages solemnized outside the RP in accordance with the law of the foreign country shall be valid in the Philippines (lex loci celebrationis). (Art. 26, FC)
Exceptions: (AgeBI53PIPP) 1. Marriage between persons below 18 years old Art. 35(1) 2. Bigamous or polygamous marriage Art. 35(4) 3. Mistake in identity Art. 35 (5) 4. Marriages void under Article 53 Art.35 (6) 5. Psychological incapacity Art. 36 6. Incestuous marriages Art. 37 7. Marriage void for reasons of public policy Art. 38
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UP College of Law, Bar Operations 2008 IV. VOID MARRIAGES
A. GROUNDS
a. Under Art. 35 1. Contracted by anyone below 18 years old, even with consent of parents 2. Solemnized by anyone not authorized to do so, except when one or both parties believe that the solemnizing officer had authority to do so. 3. There is no marriage license, except in marriage under exceptional circumstances 4. It is bigamous or polygamous, except when first spouse has been absent for four years, or two years under extraordinary circumstances, and the remaining spouse has a well- founded belief that the absent spouse is dead, and is judicially declared presumptively dead. (Art.41) 5. There is a mistake in identity of the other contracting party. 6. The subsequent marriage is void under Art. 53: Marriage is void when Art. 52 is not complied with: the following must be recorded in the appropriate civil registry: a) Judgment of annulment or of absolute nullity of marriage; b) Partition and distribution of the properties of the spouses c) Delivery of presumptive legitimes of the children.
b. Under Art. 36 7. Psychological incapacity of any contracting party, at the time of the celebration of the marriage, to comply with the essential marital obligations.
c. Under Art. 37 (Incestuous Relationships) 8. Between ascendants and descendants of any degree, legitimate or illegitimate. 9. Between brothers and sisters, whether full or half-blood, legitimate or illegitimate.
d. Under Art. 38 (For Reasons of Public Policy) 10. Between collateral blood relatives, legitimate or illegitimate, up to the fourth civil degree. 11. Between step-parents and step-children. 12. Between parents-in-law and children-in- law. 13. Between adopting parent and adopted child. 14. Between the surviving spouse of the adopting parent and the adopted child. 15. Between the surviving spouse of the adopted child and the adopter. 16. Between an adopted child and a legitimate child of the adopter. 17. Between adopted children of the same adopter. 18. Between parties where one, with the intention to marry the other, killed that other person's spouse, or his or her own spouse.
The following CAN marry each other: 1) Brother-in-law and sister-in-law 2) Stepbrother and stepsister 3) Guardian and ward 4) Adopted child and illegitimate child of the adopted
e. Under Art. 44 Subsequent marriage contracted under Art. 41 and both parties are in bad faith.
Declaration of nullity of marriage The action imprescriptible. (Art. 39,FC) For purposes of remarriage, the nullity of a previous marriage may be invoked solely on the basis of a final judicial declaration of nullity (JDN) of the previous marriage. (Art. 40, FC)
Terre v. Terre 211 SCRA 6 Parties are not allowed to assume that their marriage is void even if such is the fact. They must file an action for declaration of nullity C I V I L L A W, P E R S O N S A N D F A M I L Y R E L A T I O N P a g e | 9
UP College of Law, Bar Operations 2008 under Art. 40 before they remarry.
Atienza v. Brillantes 243 SCRA 32 Art. 40 is applicable to remarriages entered into after the effectivity of the Family Code, regardless of the date of the first marriage. The Family Code retroacts to the extent that it does not impair rights.
Domingo v. CA 226 SCRA 572 (1993) A marriage void for lack of marriage license still needs a judicial declaration of such fact even for a purpose OTHER than remarriage (e.g. liquidation, partition, distribution and separation of property between spouses, custody and support of children, and delivery of the latters presumptive legitime). Art. 40 not mean that JDN can only be invoked for purposes of remarriage.
PSYCHOLOGICAL INCAPACITY (Art. 36, FC)
Chi Ming Tsoi v. CA 266 SCRA 234 (1997) Psychological incapacity involves the senseless, constant, and prolonged refusal to comply with the essential marital obligations. Procreation is one of the essential marital obligations under the Family Code. The prolonged refusal of a spouse to have sex with his spouse, even though capable, is equivalent to psychological incapacity.
Santos v. CA G.R. 112109 (1995) Psychological incapacity under Art. 36, FC is not meant to comprehend all possible cases of psychoses. It should refer, rather, to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage. Psychological incapacity must be characterized by: a) gravity, b) juridical antecedence, and c) incurability.
Carating-Siayngco v. Siayngco G.R. No. 158896 (2004) Sexual infidelity, per se, does not constitute psychological incapacity. It must be shown that respondents unfaithfulness is a manifestation of a disordered personality which makes him completely unable to discharge the essential obligations of the marital state and not merely due to his ardent wish to have a child of his own flesh and blood. Mere showing of irreconcilable differences and conflicting personalities does not constitute psychological incapacity.
Republic v. Quintero-Hamano G.R. No. 149498 (2004) In proving psychological incapacity, there should be no distinction between an alien spouse and a Filipino spouse. We cannot be lenient in the application of the rules merely because the spouse alleged to be psychologically incapacitated happens to be a foreign national. The medical and clinical rules to determine psychological incapacity were formulated on the basis of studies of human behavior in general.
Republic v. Molina 268 SCRA 198 (1997), Guidelines for the interpretation of Art. 36: 1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. 2) The root cause of the psychological incapacity must be: a) medically or clinically identified, b) alleged in the complaint, c) sufficiently proven by the experts,* d) clearly explained in the decision. 3) The incapacity must be proven to be existing at the time of the celebration of the marriage. 4) Such incapacity must also be shown to be medically or clinically permanent or incurable. 5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. C I V I L L A W, P E R S O N S A N D F A M I L Y R E L A T I O N P a g e | 10
UP College of Law, Bar Operations 2008 6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221, and 225 of the same Code in regard to parents and their children. 7) Interpretations given by the National Appellate Matrimonial tribunal of the Catholic Church in the Philippines, should be given great respect by our courts. 8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state.**
*NOTE HOWEVER, that in the later case of Marcos v. Marcos (343 SCRA 755; 2000), it was held that there is no need for the respondent to be examined by an expert, as the psychological incapacity may be established by the totality of the evidence presented.
** A.M. No. 02-11-10-SC (March 13, 2003) made the ff. modifications to the Molina doctrine: 1) The appearance of the Solicitor General is no longer necessary. 2) Expert opinion need not be alleged, as long as the physical manifestations of psychological incapacity at the time of celebration of marriage are alleged.
Tenebro v. CA G.R. No. 150758 (2004) The subsequent judicial declaration of nullity of marriage on the ground of psychological incapacity does not retroact to the date of the celebration of the marriage insofar as the Philippine penal laws are concerned. As such, an individual who contracts a second or subsequent marriage during the subsistence of a valid marriage is criminally liable for bigamy, notwithstanding the subsequent declaration that the second marriage is void ab initio on the ground of psychological incapacity.
Buenaventura v. CA G.R. No. 127358 (2005) By declaring the petitioner as psychologically incapacitated (hence beyond the control of the party because of an innate inability), the possibility of awarding moral damages on the same set of facts was negated. The award of moral damages should be predicated, not on the mere act of entering into the marriage, but on specific evidence that it was done deliberately and with malice by a party who had knowledge of his or her disability and yet willfully concealed the same
Mallion v. Alcantara G.R. No. 141528 Res judicata applies to a petition for nullity ofmarriage due to lack of marriage license, where a prior petition for nullity of marriage based on psychological incapacity had been denied. There is only one cause of action for both petitionsthe nullity of the marriage. Moreover, in the first case, petitioner impliedly conceded that the marriage was conduced in accordance with law, since he never raised the issue of lack of marriage license. Petitioner is now bound by this admission.
BIGAMOUS MARRIAGE (Art. 41, FC)
2 Kinds of bigamous marriage:
VOID Bigamous marriage VOIDABLE bigamous marriage Contracted during subsistence of previous marriage Contracted by spouse present upon the presumption of death of first spouse Good faith of remarrying party is immaterial; if in bad faith, he becomes liable for bigamy
General Rule: Marriage contracted by any person during the subsistence of a previous marriage is VOID. Good faith is immaterial here.
Exception: If before the celebration of the subsequent marriage C I V I L L A W, P E R S O N S A N D F A M I L Y R E L A T I O N P a g e | 11
UP College of Law, Bar Operations 2008 1) The first spouse has been absent for four consecutive years, or two years under extraordinary circumstances, and 2) The surviving spouse has a well founded belief that the spouse is dead, and 3) There is a judicial declaration of presumptive death, without prejudice to the effect of the reappearance of the absent spouse. Note: This is a VOIDABLE bigamous marriage.
Exception to the exception: When both parties in the subsequent marriage acted in bad faith, the marriage is still void (Art. 44, FC).
People v. Mendoza 95 Phil. 845 (1954) Mendoza contracted three marriages. He contracted the second marriage during the subsistence of the first marriage. He contracted the third marriage after the death of his first wife. He was prosecuted for bigamy on his third marriage. The Supreme Court held that he is not guilty for bigamy for his third marriage, since his prior subsisting marriage has already been extinguished by the death of his first wife. It is the second marriage that is bigamous.
Morigo v. People G.R. No. 145226 (2004) General Rule: Even if the first marriage is judicially declared void only after contracting the second marriage, the second marriage is still bigamous. Exception: Said second marriage is not bigamous if the first marriage was void due to the fact that no marriage ceremony was solemnized at all. Here, the parties merely signed a marriage contract on their own. No semblance of marriage, no need for judicial declaration of nullity.
B. EFFECTS OF NULLITY (ChiPCuPCDRDIDS) (Arts. 50-54, 43-44) 1) Children considered illegitimate 2) Property Regime is dissolved liquidation, partition and distribution of the properties of the spouses. If either spouse acted in bad faith, his/her share in the net profits will be forfeited: a) In favor of the common children b) If none, in favor of the guilty spouse by previous marriage c) If none, in favor of the children of the innocent spouse. 3) Custody and support of the common children will be decided 4) Presumptive legitimes must be delivered 5) Creditors of the spouses and of the absolute community or conjugal partnership must be notified of the proceedings of liquidation. 6) Conjugal dwelling given to the spouse with whom majority of the children choose to remain. 7) Parties can remarry after compliance with Art. 52, FC. 8) Donation propter nuptias remains valid, (but if the donee contracted marriage in bad faith, donations will be revoked) 9) Insurance benefits innocent spouse may revoke designation of guilty party as beneficiary, even if such designation is irrevocable 10) Donations - If both parties of subsequent marriage acted in bad faith, any donations and testamentary dispositions made by one party to the other by reason of marriage will be revoked 11) Succession Rights Party in bad faith disqualified to inherit from innocent spouse, whether testate or intestate
Note: Except for #1, the above also effects apply to marriages which are annulled (and to voidable bigamous marriages.)
V. VOIDABLE MARRIAGES
A. GROUNDS (CIF-mspd-FIS) (Art. 45, FC) 1. One of the parties is 18 or above but below 21, and there is no parental consent. 2. Either party was of unsound mind (insanity). 3. The consent of either party was obtained through fraud (different from mistake in identity): C I V I L L A W, P E R S O N S A N D F A M I L Y R E L A T I O N P a g e | 12
UP College of Law, Bar Operations 2008 a) through non-disclosure of a previous conviction of a crime involving moral turpitude; b) through concealment of the wife of the fact that she was pregnant by another man; c) through concealment of a sexually transmitted disease, even if not serious or incurable;* d) through concealment of drug addiction, habitual alcoholism or homosexuality/lesbianism. (Art.46, FC) 4. The consent of either party was obtained through force, intimidation, or undue influence. 5. Either party is physically unable to consummate the marriage (impotence; this is different from sterility). 6. Either party has a serious and incurable sexually-transmissible disease, even if not concealed.*
*STD: Art. 45 v. Art. 46
Art. 45 STD Art. 46 STD Ground for annulment The STD is a type of fraud which is a ground for annulment Does not have to be concealed Must be concealed
Must be serious and incurable Need not be serious nor incurable It is the concealment that gives rise to the annulment The STD itself is the ground for annulment
Buccat v Buccat 72 Phil. 19 It held that it is unbelievable that the wife could have concealed the fact that she was 6 months pregnant at the time of the marriage. Annulment not granted.
Aquino v Delizo 109 Phil. 21 The Supreme Court granted annulment because the wife concealed the fact that she was 4 months pregnant during the time of the marriage. It argued that since Delizo was naturally plump, Aquino could hardly be expected to know, by mere looking, whether or not she was pregnant at the time of the marriage.
Corpuz v. Ochoterena AM No. RTJ-04-1861 (2004) In a legal separation or annulment case, a prior collusion investigation by the prosecuting attorney is a condition sine qua non for further proceedings if the defendant fails to answer. A certification by the prosecutor that he was present during the hearing and even cross-examined the plaintiff does not suffice to comply with the mandatory requirement.
Ground (Art. 45) Who can file (Art. 47) Prescription (Art. 47)
Ratification (Art. 45)
Lack of parental consent 1. Underage party 1. 5 years after attaining 21. Free cohabitation after attaining age of 21. 2. Parent or guardian 2. Before child reaches 21. Insanity 1. Sane spouse with no knowledge of the others insanity 2. Legal guardian of insane party 1. Any time before the death of insane party
Free cohabitation of insane party after coming to reason
3. Insane party 2. During lucid interval or after regaining sanity, and before Fraud Injured death party (defrauded party) Five years after discovery of fraud Free cohabitation after having full knowledge of C I V I L L A W, P E R S O N S A N D F A M I L Y R E L A T I O N P a g e | 13
UP College of Law, Bar Operations 2008 fraud Force, intimida tion, undue influence Injured party
Five years after disappea -rance of force or intimidation Free cohabitation after the force has ceased or disappeared
Impoten ce Healthy party Five years After marriage Deemed ratified when action prescribes STD Healthy party Five years after marriage Deemed ratified when action prescribes
B. MARRIAGE WHEN ONE SPOUSE IS ABSENT
Requirements for subsequent marriage to be valid when prior spouse is absent: (Art. 41, FC) 1. The prior spouse had been absent for 4 consecutive years, or 2 years in cases under Art. 391 CC. 2. The spouse present has a well-founded belief that the absent spouse was already dead. 3. The spouse present must institute a summary proceeding for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.
Effect of reappearance of absent spouse: General rule: The subsequent marriage remains valid. Exception: It is automatically terminated by the recording of the affidavit of reappearance of the absent spouse. Exception to the exception: If there is a judgment annulling the previous marriage or declaring it void ab initio. (Art.42, FC)
Republic v. Bermudez-Lorino G.R. No. 160258 (2005) The RTC rendered a decision declaring the presumptive death of respondents absent spouse based on Art. 41, FC. The Republic appealed the decision to the CA. Applying Art. 247 FC, the SC ruled that the CA did not have jurisdiction over the appeal because summary proceedings are immediately final and executory, and therefore unappealable.
C. EFFECTS OF PENDING ACTIONS/DECREE (Art. 49, FC)
1. The court shall provide for the support of the spouses, 2. The custody of the common children, giving paramount consideration to their moral and material welfare, their choice of parent with whom they wish to remain. 3. The court shall also provide for visitation rights of other parent.
No child under 7 years shall be separated from the mother unless there is a compelling reason to do so.
To prevent collusion between the parties, fabrication or suppression of evidence, the prosecuting attorney or fiscal shall appear on behalf of the State. (Art. 48, FC)
D. VOID MARRIAGES vs. VOIDABLE MARRIAGES
Void Marriage Voidable Marriage Nature INEXISTENT from the beginning VALID until annulled by court Covalidation CANNOT be covalidated CAN be covalidated by prescription or free cohabitation Effect on property No Community Property, only Co-ownership ACP exists unless another system is instituted through marriage C I V I L L A W, P E R S O N S A N D F A M I L Y R E L A T I O N P a g e | 14
UP College of Law, Bar Operations 2008 settlement
Legitimacy of children General rule: Children are ILLEGITIMATE (Art. 165) Exception: In void marriages by reason of psychologica l incapacity (Art. 36) or non-partition of properties in a previous marriage (Art. 53), children are considered LEGITIMATE Children are LEGITIMATE if conceived before decree of annulment
How to impugn May be attacked DIRECTLY or COLLATERALLY , except for purpose of remarriage (there must be JDN) Can only be attacked DIRECTLY (there must be annulment decree)
Effect of death of parties May still be impugned after death of parties Can no longer be impugned after death of parties
E. JURISDICTION
Tamano v. Ortiz 291 SCRA 584 (1998) PD No. 1083 (Code of Muslim Personal Laws of the Philippines) does not provide for a situation where the parties were married both in civil and Muslim rites. Consequently, the shari'a courts are not vested with original and exclusive jurisdiction when it comes to marriages celebrated under both civil and Muslim laws. Hence, the Regional Trial Courts have jurisdiction over such cases.
VI. LEGAL SEPARATION
A. GROUNDS (VAPIDHIBLA) (Art. 55, FC) 1. Repeated physical violence or grossly abusive conduct directed against petitioner, a common child, or a child of the petitioner. 2. Physical violence or moral pressure to compel petitioner to change religious or political affiliation. 3. Attempt of respondent to corrupt or induce petitioner, a common child, or child of petitioner, to engage in prostitution or connivance in such corruption or inducement. 4. Final judgment sentencing respondent to imprisonment of more than 6 years, even if pardoned (executive pardon, not pardon from offended party). 5. Drug addiction or habitual alcoholism of respondent. a) When it existed from the time of celebration, and concealed from petitioner, can be a ground for annulment of marriage. b) When it occurred only after the marriage, it is only a ground for legal separation, whether concealed or not. 6. Lesbianism or homosexuality of respondent. Same as rules on drug addiction 7. Contracting by respondent of a subsequent bigamous marriage, whether in the Philippines of abroad. 8. Sexual infidelity or perversion. 9. Attempt on the life of petitioner by respondent. There is no need for criminal conviction. 10. Abandonment of petitioner by respondent without justifiable cause for more than one year.
Gandioco v Pearanda 155 SCRA 725 (1989) In sexual infidelity as a ground for legal separation, there is no need for prior conviction for concubinage, because legal separation only requires a preponderance of evidence, as opposed to proof beyond reasonable doubt required in concubinage.
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UP College of Law, Bar Operations 2008
Lapuz v. Eufemio 43 SCRA 177 The action of the plaintiff in filing for legal separation does not survive after her death. Death of either spouse dissolves the marriage. An action for legal separation is purely personal between the spouses.
Dela Cruz. v. Dela Cruz 22 SCRA 333 Abandonment is not mere physical abandonment but also financial and moral desertion. There must be an intention never to return.
B. DEFENSES
Grounds for denying legal separation (4CMRPD) (Art. 56, FC) 1. Condonation by aggrieved party 2. Consent by aggrieved party to the commission of the offense 3. Connivance between parties in the commission of the offense 4. Mutual guilt in ground for legal separation 5. Collusion between parties to obtain decree of legal separation 6. Prescription of action for legal separation (5 years from occurrence of the cause of action) 7. Death of either party during pendency of action (Lapuz-Sy v Eufemio, G.R. No. L- 30977, 1972) 8. Reconciliation of parties during pendency of action (Art. 66 par.1)
C. WHEN TO FILE/TRY ACTIONS
Prescription: Action prescribes in five years from occurrence of cause (Art. 57, FC)
Reconciliation period: Action cannot be tried before six months have elapsed since the filing of the petition (Art. 58.FC)
Attempts on reconciliation: Action cannot be tried unless the court has attempted to reconcile the spouses, and determined that despite such efforts, reconciliation is highly improbable (Art. 59, FC)
Confession: No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment (Art. 60, par. 1. FC)
Collusion: The court shall assign the prosecuting attorney or fiscal to make sure that there is no collusion between the parties, and that evidence is not fabricated or suppressed (Art.60, par. 2, FC)
D. EFFECTS OF FILING PETITION FOR LEGAL SEPARATION (LAC) 1. The spouses are entitled to live separately (Art. 61, par. 1. FC). 2. Administration of Community or Conjugal Property If there is no written agreement between the parties, the court shall designate one of them or a third person to administer the ACP or CPG. (Art.61, par. 2, FC) 3. Custody of children The court shall give custody of children to one of them, if there is no written agreement between the spouses. It shall also provide for visitation rights of the other spouse. (Art. 62, cf.Art. 49. FC)
E. EFFECTS OF DECREE FOR LEGAL SEPARATION 1. The spouses can live separately (Art. 63. FC) 2. The ACP of CPG shall be dissolved and liquidated, and the share of the guilty spouse shall be forfeited in favor the common children, previous children, or innocent spouse (Art. 63. cf. Art. 42, par. 2). C I V I L L A W, P E R S O N S A N D F A M I L Y R E L A T I O N P a g e | 16
UP College of Law, Bar Operations 2008 3. Custody of the minor children shall be awarded to the innocent spouse (Art. 63. FC) 4. Guilty spouse shall be disqualified from inheriting from innocent spouse by intestate succession. The provisions in favor of the guilty party in the will of the innocent spouse shall also be revoked by operation of law. (Art. 63, FC) 5. Donation propter nuptias in favor of the guilty spouse may be revoked (Art. 64. FC) 6. Innocent spouse may also revoke designation of guilty spouse as beneficiary in an insurance policy, even if such stipulations are irrevocable (Art. 64. FC). 7. Obligation for mutual support ceases, but the court may order the guilty spouse to support the innocent spouse. (Art. 198,FC) 8. The wife shall continue to use the surname of the husband even after the decree for legal separation. (Art. 372, CC)
F. RECONCILIATION
How done: Should the spouses reconcile, they should file a corresponding joint manifestation under oath of such reconciliation. (Art. 65, FC)
Effects of Reconciliation: 1. Proceedings for legal separation shall be terminated at whatever stage. (Art. 66, FC) 2. If there is a final decree of legal separation, it shall be set aside. (Art.66, FC) 3. The separation of property and forfeiture of share of guilty spouse shall subsist, unless the spouses agree to revive their former property regime or to institute another property regime. ( Art. 66 cf. Art. 67, FC) 4. Joint custody of children is restored. 5. The right to intestate succession by 6. guilty spouse from innocent spouse is restored. 7. The right to testamentary succession depends on the will of the innocent spouse.
G. DIVORCE General Rule: Decrees of absolute divorce obtained by Filipinos abroad have no validity and are not recognized in the Phil. dfd Exception (partial recognition of absolute divorce): When the divorce is validly obtained by the alien spouses abroad which capacitates him/her to remarry, the Filipino spouse shall likewise have the capacity to remarry. (Art. 26, par. 2FC)
Twin elements for the application of par. 2, Art. 26, FC: 1. There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and 2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry.
Republic v. Orbecido G.R. No. 154380 (2005) Given a valid marriage between 2 Filipino citizens, where one party is later naturalized as a foreign citizen and obtains a valid divorce decree capacitating him or her to remarry, the Filipino spouse remarry under Philippine law. The RECKONING POINT is not the citizenship of the parties at the time of the celebration of the marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry.
VII. RIGHTS AND OBLIGATIONS BETWEEN HUSBAND & WIFE
A. OBLIGATION OF SPOUSES (Arts. 68-71, FC) 1. Live together 2. Observe mutual love, respect, and fidelity 3. Render mutual help and support 4. Fix the family domicile. C I V I L L A W, P E R S O N S A N D F A M I L Y R E L A T I O N P a g e | 17
UP College of Law, Bar Operations 2008 In case of disagreement, the court shall decide. 5. Jointly support the family. 6. Manage the household.
B. RIGHTS OF SPOUSES (Arts. 72-73, FC) 1. In case the other spouse neglects his or her duties or commit acts which tend to bring danger, dishonor or injury to the family, the aggrieved party may apply the court for relief. 2. Either spouse may exercise any legitimate profession, without need for consent of the other. a) The other spouse may only object on valid, serious, and moral grounds. b) In case of disagreement, the Court shall decide whether (1) the objection is proper, and (2) benefit has accrued to the family before OR after the objection. i. If BEFORE, enforce obligation against the separate property of spouse who has not obtained consent. ii. If AFTER, enforce obligation against community property
C. USE OF SURNAME
1. Married Women: (Art. 370, CC) A married woman may use: 1. Her maiden first name and surname and add her husband's surname, or 2. Her maiden first name and her husband's surname or 3. Her husband's full name, but prefixing a word indicating that she is his wife, such as Mrs.
Yasin v. Sharia District Court G.R. No. 94986 (1995) The woman only has an option and not a duty to use the surname of her husband, as provided for in Art. 370, CC. Moreover, when her husband dies, the woman can revert to her old name without need for judicial declaration.
2. Widows: A widow may use the deceased husbands surname as though he were still living. (Art. 373, CC)
3. Mistresses: Legamia v I AC G.R. No. 63817 (1984) The Supreme Court allowed the mistress to use her live-in partners name, since everyone already knew that she was a mistress, so as to avoid confusion.
4. Divorcees Tolentino v. CA G.R. No. 41427 (1988) A divorced woman may continue using the surname of her former husband. Philippine laws are silent in this issue. Moreover, there is no usurpation as she never represented herself as Mrs. Arturo Tolentino after the divorce, but simply as Mrs. Consuela David-Tolentino.
VIII. PROPERTY RELATIONS BETWEEN SPOUSES
A. GENERAL PROVISIONS
Order to be followed: (ARTS. 74, 75, FC): 1. Marriage settlements before marriage spouses can agree to whatever regime they want, be it ACP, CPG, or complete separation. 2. Family Code If there are no marriage settlements, or if the regime agreed upon is void, the Absolute Community of Property will be followed 3. Local Customs
General Rule: (Art. 80, FC) Property relations between Filipino spouses are governed by Philippine laws, regardless of the place of marriage and their residence. Hence: The rule that ACP is the default mode of property relations absent any marriage settlement applies to all Filipinos, regardless C I V I L L A W, P E R S O N S A N D F A M I L Y R E L A T I O N P a g e | 18
UP College of Law, Bar Operations 2008 of the place of the marriage and their residence. Exceptions: (Art. 80, FC) 1. Where both spouses are aliens 2. As to the extrinsic validity of contracts 3. Contrary stipulation
Requirements for Marriage Settlements: (Art. 77, FC) 1. Must be in writing (public or private) 2. Signed by the parties 3. Executed before the celebration of the marriage 4. If party needs parental consent, parent/guardian must be a party to the settlement 5. If party is under civil interdiction or other disability (not including insanity), court appointed guardian must be a party 6. Must be registered in local civil registry to affect third persons (If not registered, will not prejudice third persons, ACP will apply)
General Rule: All modifications to the marriage settlement must be made before the marriage is celebrated. Exceptions: 1. Legal Separation (Art. 63 (2), FC) The property regime is dissolved. 2. Revival of the former property regime upon reconciliation if the spouses agree (Art. 66 (2)) 3. A spouse may petition the court for: a) Receivership b) Judicial separation of property, or c) The authority to be the sole administrator of the conjugal partnership If the other spouse abandons the other without just cause or fails to comply with his or her obligations to the family. (Art. 128) 4. Judicial Dissolution (Arts. 135 and 136)
B. DONATIONS BY REASON OF MARRIAGE
Requisites of donations propter nuptias: (Art. 82, FC) 1. Made before the celebration of marriage 2. Made in consideration of the marriage 3. In favor of one or both spouses
Donations excluded: 1. Ordinary wedding gifts given after the celebration of the marriage 2. Donations in favor of future spouses made before marriage but not in consideration thereof 3. Donations made in favor of persons other than the spouses even if founded on the intended marriage
Who may donate: 1. spouses to each other 2. parents of one or both spouses 3. 3rd persons to either or both spouses
Solis v. Barroso 53 Phil. 912 (1928) Moreover, in donations propter nuptias, the marriage is really a consideration but not in the sense of giving birth to the obligation. There can be a valid donation even if the marriage never took place. However, the absence of marriage is a ground for the revocation of the donation.
Mateo v. Lagua G.R. No. 26270 (1969) Donations propter nuptias are without onerous consideration, marriage being merely the occasion or motive for the donation, not its cause. Being liberalities, they remain subject to eduction for inofficiousness upon the donors death, if they should infringe the legitime of a forced heir.
Distinguished from Ordinary Donations:
DONATIONS PROPTER NUPTIAS ORDINARY DONATIONS Does not require express acceptance Express acceptance necessary May be made by minors (Art. 78) Cannot be made by minors May include future property Cannot include future property If present property is donated and property is not absolute community, limited to 1/5 No limit to donation of present property provided legitimes are not impaired C I V I L L A W, P E R S O N S A N D F A M I L Y R E L A T I O N P a g e | 19
UP College of Law, Bar Operations 2008 Grounds for revocation - In Art. 86 Grounds for revocation in donation laws
RULES:
1. Before Marriage General Rule: Future spouses cannot donate to each other more than 1/5 of their present property (excess shall be considered void) (Art. 84, FC) Exception: If they are governed by ACP.
2. During Marriage General Rule: Spouses cannot donate to each other, directly or indirectly (donations made by spouses to each other during the marriage are void) (Art. 87, FC) Exception: Moderate gifts on the occasion of any family rejoicing.
Grounds for Revocation of Donation Propter Nuptias (Art. 86, FC) 1. If the marriage is not celebrated or judicially declared void ab initio, except donations made in settlements. 2. When the marriage takes place without the consent of the parents or guardians, as required by law. 3. When the marriage is annulled, and the donee acted in bad faith. 4. Upon legal separation, if the donee is the guilty spouse. 5. If there is a resolutory condition, and it is not complied with. When donee has committed an act of ingratitude: (Art. 765, CC) a) An offense against person or property of donor, or his wife or children under parental authority b) An imputation to the donor of any criminal offense, or any act involving moral turpitude, even if proven, unless the crime is committed against the donee, his wife or children under his authority. c) Refusing to support the donor, if he/she is legally required to do so.
*The action for filing for revocation of donation prescribes.
Matabuena v Cervantes 38 SCRA 284 (1971) The donation between common-law spouses falls within the provision prohibiting donations between spouses during marriage.
Harding v. Commercial Union 38 Phil. 464 (1918) The prohibition on donations can only be assailed by persons who bear such relation to the parties or the property itself, that their rights are being interfered with. Here, the insurance company of the donated car cannot assail the validity of the donation.
Sumbad v. CA G.R. No. 106060 (1999) The donation made by a man to a woman was held valid because no proof was shown that they were still living in a common-law relationship at the time of the donation.
C. ABSOLUTE COMMUNITY OF PROPERTY
1. IN GENERAL
When it commences: At the precise moment of the celebration of the marriage (Art. 88, FC). However, if the marriage is celebrated before the Family Code took effect (1988), the default property regime is the Conjugal Partnership of Gains (CPG).
Waiver of Rights: (Art. 89, FC) General Rule: NOT ALLOWED Exceptions: C I V I L L A W, P E R S O N S A N D F A M I L Y R E L A T I O N P a g e | 20
UP College of Law, Bar Operations 2008 1. When there is judicial separation of property 2. When there is legal separation 3. When the marriage is dissolved (by death of one of the spouses) 4. When the marriage is annulled
2. WHAT CONSTITUTES COMMUNITY PROPERTY
What it consists: All the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter. (Art. 91, FC) Under the ACP, spouses cannot exclude specific properties from the regime.
What is Excluded (BGM): (Art. 92, FC) 1. Properties acquired by a gratuitous title, i.e. donation, inheritance by testate and intestate succession, including the fruits of such properties EXCEPT: When it was expressly provided by the donor or testator that the property shall form part of the ACP
2. Properties for personal use EXCEPT: Jewelry - they form part of the ACP
3. Properties acquired before the marriage, for those with legitimate descendants with a former marriage (to protect rights of children by a former marriage). Presumption: All properties acquired during the marriage form part of the ACP, unless it be proven that they are excluded. (Art. 93, FC)
3. CHARGES UPON THE ACP (Art. 94, FC): (4 debts, 2 taxes, 2 expenses, support, donation) 1. Support A. Spouses i. Even if not living together except when a spouse leaves conjugal home without just cause ii. Even during pendency of action for legal separation or annulment of marriage B. Common children C. Legitimate children of previous marriage
2. Debts and Obligations Contracted During Marriage A. Either by both spouses or one of them, with the consent of the other. B. In (2) and (3), creditors need not prove that the debts benefited the family.
3. Debts Contracted by one Spouse Without Consent of the other ACP liable only to the extent that the debt benefited the family. 4. Tax, Liens, Repairs on Community Property Includes both major and minor repairs
5. Taxes and Expenses for Mere preservation of Separate properties Applies only to separate properties by either spouse being used by the family, not those that do not benefit the family. Expenses limited to minor repairs.
6. Expenses for professional, Vocational, or Self-Improvement Course of Spouses
7. Ante-nuptial Debts that Benefited the Family If the ante-nuptial debt did not benefit the family, applicable rule is (9).
8. Donations by Both Spouses to Common Legitimate Children
9. Ante-Nuptial Debts not under (7), Support of Illegitimate Children, Liabilities of Either Spouse Arising from Crime or Quasi-Delict a) Only ff the debtor-spouse has no exclusive property or his or her property is insufficient. b) The payments by the ACP are deemed advances to be deducted from the share of the guilty spouse upon the liquidation of the absolute community.
10. Expenses of Litigation between Spouses
4. ADMINISTRATION, OWNERSHIP AND DISPOSITION OF ACP
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UP College of Law, Bar Operations 2008 Administration of property: Belongs to both spouses jointly. If they disagree the husbands decision prevails. However, the wife has five years from the date of the decision to go to court for recourse. Otherwise, it is presumed that she agreed with the husbands decision. (Art. 96, FC) Except: When the other spouse is incapacitated, or unable to participate in the administration (e.g. when abroad).
Disposition of property: Either spouse may, through a will, dispose his/her interest in the community property. (Art. 97, FC) However, the will should refer only to his/her own share in the community property.
Donation of property: Donation of one spouse without the consent of the other is not allowed (Art. 98, FC) Except: 1. Moderate donations to charity due to family rejoicing or distress; 2. Moderate gifts by each spouse to the other due to family rejoicing. (note: Whats moderate depends on the socio- economic status of the family)
5. DISSOLUTION OF ACP terminates upon: (Art. 99, FC) 1. Death of either spouse follow rules in Art. 103 2. Legal Separation follow rules in Arts. 63 and 64 3. Annulment or judicial declaration of nullity follow rules in Arts. 50 to 52 4. Judicial separation of property during marriage follow rules in Arts. 134 to 138
Rules on De Facto Separation:(ART. 100, FC): De facto separation does not affect the ACP. EXCEPT that: 1. Spouse who leaves the conjugal home without just cause shall not be entitled to support. He/She, however, is still required to support the other spouse and the family. 2. If consent is necessary for transaction but is withheld or otherwise unobtainable, authorization may be obtained from the court. 3. Support for family will be taken from the ACP. 4. If ACP is insufficient, spouses shall be solidarily liable. 5. If it is necessary to administer or encumber separate property of spouse who left, spouse present may ask for judicial authority to do this. 6. If ACP is not enough and one spouse has no separate property, spouse who has property is liable for support, according to provisions on support.
Abandonment: (Art. 101, FC) Present spouse may petition the court for: A. receivership; B. judicial separation of property; or C. authority to be the sole administrator of the absolute community, subject to precautionary conditions that the court may impose.
*Spouse is prima facie considered to have abandoned the other spouse and the family if: 1) he/she has left for a period of three months, 2) he/she has failed to inform his/her whereabouts for a period of three months.
6. LIQUIDATION OF ASSETS AND LIABILITIES
Process of liquidation of ACP: (Art. 102, FC) 1) Inventory of assets of ACP and of spouses, with market values. 2) Obligations are paid with community property, and separate obligations not charged to ACP paid by respective assets of spouses. 3) Balance, or net remainder is divided equally between the spouses, irrespective of how much each brought into the community. 4) If obligations exceed the assets of the ACP, nothing is divided. Creditors can go after C I V I L L A W, P E R S O N S A N D F A M I L Y R E L A T I O N P a g e | 22
UP College of Law, Bar Operations 2008 the separate properties of the spouses, which are solidarily liable for the deficiency. 5) If personal obligations of a spouse exceed his/her separate property, creditor can go after the share of the spouse on the net remainder of the ACP, without prejudice to the provisions of law on forfeitures and delivery of presumptive legitimes. 6) After covering all community obligations and obligations of spouses, balance of separate properties shall be delivered to respective spouses or their heirs, and they will also divide into two equal shares whatever is left of the community assets, without prejudice to the provisions of law on forfeitures and delivery of presumptive legitimes.
Rules in Case of Termination of Marriage by Death of One of the Spouses: (Art. 103, FC) 1. The community property shall be liquidated in the same proceeding for the settlement of the estate of the deceased spouse. 2. If no such judicial settlement proceeding is instituted, surviving spouse shall liquidate the community property either judicially or extrajudicially within one year from the death of the deceased spouse.
Procedure for Liquidation of Community Properties of Two Marriages: (Art. 104, FC) 1. Determine the capital, fruits, and income of each community upon such proof as may be considered according to the rules of evidence. 2. In case of doubt as to which community the existing properties belong, they shall be divided between two communities in proportion to the capital and duration of each.
Onas v. J avillo 59 Phil. 733 (1934) Javillo contracted 2 marriages. SC ruled that each absolute community should be considered owner of the parcels of land acquired during its existence. Death discontinues ACP.
Vda. De Delizo v. Delizo G.R. No 32820 (1976) In case of doubt as to which community the existing properties belong, the same shall be divided between the different communities in proportion to the capital and duration of each.
D. CONJUGAL PARTNERSHIP OF GAINS
WHERE IT APPLIES: 1. For marriages before the implementation of the Family Code. 2. For marriages after the Family Code, if agreed to by the parties through a marriage settlement.
HUSBAND AND WIFE PLACE IN COMMON FUND: 1. The proceeds, products, fruits, and income of their separate properties; 2. Everything acquired by them within marriage through their own efforts; 3. Everything acquired by them by chance
EXCLUSIVE PROPERTIES OF THE SPOUSES:
A. Property by direct acquisition, or property that is originally exclusive: 1. Property brought into marriage by each spouse as his/her own Art. 109(1) 2. Property acquired by either spouse during the marriage by gratuitous title Art 109 (2)
B. Property by substitution: 3. Property acquired by right of redemption, by barter, or by exchange with property belonging to either spouse Art. 109 (3) 4. Property purchased with exclusive money of either spouse- Art. 109 (4)
C. Other Separate Property: 5. Collection of credits belonging to one spouse exclusively 6. Sale of separate property of a spouse C I V I L L A W, P E R S O N S A N D F A M I L Y R E L A T I O N P a g e | 23
UP College of Law, Bar Operations 2008 7. Indemnity paid in cash of expropriation of separate property or under an insurance policy covering separate property. 8. Possession does not affect ownership of separate property.
PROPERTIES THAT COMPOSE CPG: 1) Acquired by Onerous Title during the Marriage at Expense of Common Fund (Art. 117 (1)); 2) Acquired through the Labor, Industry, Work, Profession of Either or both Spouses (Art. 117 (2)); 3) Fruits from common property; 4) Net fruits of exclusive property of each spouse (Art. 117 (3)); 5) Share of either spouse in hidden treasure, whether as finder or owner of property where treasure is found (Art. 117(4)); 6) Acquired through occupation such as fishing or hunting (Art. 117 (5)); 7) Livestock existing at dissolution of partnership in excess of what is brought by either spouse to the marriage (Art. 117 (6)); 8) Acquired by chance, such as winnings from gambling or betting (Art. 117 (7))
NOTE: 1. If winning ticket is bought by a spouse with his or her own money or was given gratuitously by a friend = the prize will be separate property of the spouse who owns the ticket 2. If winning ticket is bought by conjugal funds = prize is conjugal presumption is ticket bought during marriage is bought by conjugal funds
Property bought on installments paid partly from exclusive funds of the spouses and partly from conjugal funds: a) If full ownership is vested before the marriage it shall belong to the buyer spouse b) If full ownership was vested during the marriage it shall belong to the conjugal partnership
Property belonging to one spouse converted into another kind totally different in nature from its original form during marriage becomes conjugal in the absence of proof that the expenses of conversion were exclusively for the account of the original owner-spouse, subject to reimbursement of the value of the original property from the conjugal partnership
Upon dissolution of marriage or partnership, the net gains or benefits from the partnership shall be divided equally between the spouses, unless they have agreed on another manner of division in their marriage settlement.
Money received under the Social Security Act is not conjugal, although the employee- spouse contributes to the SSS with his salaries, but belongs to the designated beneficiary under the Social Security Law
Intellectual property, like copyright or patent, should, according to Tolentino, citing Planiol and Ripert, be considered separate property of the spouse who produces or invents or discovers it, this property being of a special type, almost a part of one's person or taken from his personality and the physical or external manifestation of his intellect or genius, that it is not simply a product of one's work or industry but should be considered as pertaining exclusively to its creator
Business property like trade-marks, trade names, service marks, business goodwill, and similar kinds of property are, however, merely accessories to some commercial establishment or product, so that if such establishment or product is separate property of one spouse, then the business property is separate property, the same being an accessory that follows the principal; but all benefits or earnings derived from these different kinds of property during the marriage should belong to the conjugal C I V I L L A W, P E R S O N S A N D F A M I L Y R E L A T I O N P a g e | 24
UP College of Law, Bar Operations 2008 property (Tolentino, id., citing the same authority).
CHARGES UPON CPG (ART. 121) [cf. Charges to ACP]: (3 debts, 2 taxes, 2 expenses, support, donation) 1. Support of the spouse, their common children, and the legitimate children of either spouse 2. All debts and obligations contracted during the marriage by the designated administrator-spouse for the benefit of the CPG, or by both spouses or by one of them with the consent of the other 3. Debts and obligations contracted by either spouse without the consent of the other to the extent that the family may have benefited 4. All taxes, liens, charges, and expenses upon conjugal property 5. All taxes and expenses for mere preservation made during the marriage upon the separate property of either spouse 6. Expenses to enable either spouse to commence or complete a professional, vocational, or other activity for self improvement 7. Ante-nuptial debts of either spouse insofar as they have redounded to the benefit of the family 8. The value of what is donated or promised by both spouses in favor of their common legitimate children for the exclusive purpose of commencing or completing a professional or vocational course or other activity for self-improvement 9. Expenses of litigation between the spouses unless the suit is found to groundless
If the conjugal partnership is insufficient to cover the foregoing liabilities, the spouses shall be solidarily liable for the unpaid balance with their separate properties.
Disposition or encumbrance of conjugal property requires: 1. The consent or approval by both spouses; OR 2. Judicial authority secured in court
Mere awareness of a transaction is NOT consent
Ayala I nvestment v. Ching 286 SCRA272 The Supreme Court ruled that indirect benefits that might accrue to a husband in signing as a surety or guarantee agreement not in favor of the family but in favor of his employer corporation are not benefits that can be considered as giving a direct advantage accruing to the family. Hence, the creditors cannot go against the conjugal partnership property of the husband in satisfying the obligation subject of the surety agreement. A contrary view would put in peril the conjugal partnership by allowing it to be given gratuitously as in cases of donation of conjugal partnership property, which is prohibited.
DISSOLUTION OF CPG (ART. 128): 1) Prepare an inventory of all properties 2) Amounts advanced by the conjugal partnership in payment of personal debts and obligations of either spouse shall be credited to the conjugal partnership. 3) Each spouse shall be reimbursed for the use of his or her exclusive funds in the acquisition of property or for the value of his or her exclusive property, the ownership of which has been vested by law in the conjugal partnership. 4) Debts and obligations of the conjugal partnership shall be paid out of the conjugal assets. 5) Whatever remains of the exclusive properties of the spouses shall be delivered 6) Indemnify loss or deterioration of movables belonging to either spouse, even due to fortuitous event, used for the benefit of the family 7) The net remainder of the conjugal partnership properties, or the profits, which shall be divided equally between husband and wife
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EXCEPTIONS: A. A different proportion or division was agreed upon in the marriage settlements B. There has been a voluntary waiver or forfeiture of such share as provided in this Code.
[NOTE: Dissolution of the conjugal property must be recorded in the registry of property in order to affect third persons dealing with registered property.]
De Ansaldo v. Sheriff of Manila G.R. No. L-43257 (1937) The Supreme Court ruled that the spouses are not co-owners of the conjugal properties during the marriage and cannot alienate the supposed interest of each in the said properties. The interest of the spouses in the conjugal properties is only inchoate or a mere expectancy and does not ripen into title until it appears after the dissolution and liquidation of the partnership that there are net assets
ACP/CPG TERMINATES UPON (ART. 99 AND 126): 1) Death of either spouse follow rules in Art. 103 2) Legal Separation follow rules in Arts. 63 and 64 3) Annulment or judicial declaration of nullity follow rules in Arts. 50 to 52 4) Judicial separation of property during marriage follow rules in Arts. 134 to 138
CPG vs. ACP:
CPG ACP 1. Property acquired before marriage Each spouse retains his/her property; only fruits part of Conjugal property Properties become part of community property
2. Property acquired during Part of conjugal property
Becomes conjugal property.
marriage 3. Upon dissolution of marriage Separate properties are returned; net profits divided equally between spouses or heirs. Net remainder of ACP divided equally between spouses or heirs. 4. basis Capital and properties of spouses kept separate and Distinct from benefits; insurmountable obstacle to presumption of solidarity Mutual trust and confidence between spouses; fosters oneness of spouses
5. Liquidation Exclusive properties will have to be identified and returned, and sometimes, identification is difficult. Easier to liquidate because net remainder of community properties are simply divided between spouses or heirs.
CPG ACP
E. SEPARATION OF PROPERTIES DURING MARRIAGE In the absence of an express declaration in the marriage settlements, the separation of property between the spouses during the marriage shall not take place except by judicial order. (Art. 134) Judicial separation of property may either be voluntary or for sufficient cause.
SUFFICIENT CAUSES FOR JUDICIAL SEPARATION OF PROPERTIES (CALASA) (ART. 135): 1) Spouse of the petitioner has been sentenced to a penalty which carries with it civil interdiction. 2) Spouse of the petitioner has been judicially declared an absentee. 3) Loss of parental authority of the spouse of petitioner has been decreed by the court. 4) Spouse of the petitioner has abandoned the latter or failed to comply with his or her obligations to the family. C I V I L L A W, P E R S O N S A N D F A M I L Y R E L A T I O N P a g e | 26
UP College of Law, Bar Operations 2008 5) The spouse granted the power of administration in the marriage settlements has abused that power. 6) At the time of the petition, the spouses have been separated in fact for at least one year and reconciliation is highly improbable.
Each spouse shall contribute to the family expenses, in proportion to their income. In case of insufficiency, the market value of their separate properties. (Art. 146)
Liability of spouses to the creditors of the family shall be SOLIDARY. (Art. 146, par. 2)
EFFECTS OF SEPARATION OF PROPERTY BETWEEN SPOUSES: 1. ACP or CPG is dissolved and liquidated 2. The liability of the spouses to creditors shall be solidary with their separate properties 3. mutual obligation to support each continues except when there is legal separation 4. rights previously acquired by creditors are not prejudiced
REVIVAL OF PROPERTY REGIME IN THE FF. INSTANCES (ART. 141): 1. When the civil interdiction terminates. 2. When the absentee spouse reappears. 3. When the court, being satisfied that the spouse granted the power of administration in the marriage settlements will not again abuse that power, authorizes the resumption of said administration. 4. When the spouse who has left the conjugal home without a decree of legal separation resumes common life with the other; 5. When parental authority is judicially restored to the spouse previously deprived thereof; 6. When the spouses who have separated in fact for at least one year, reconcile and resume common life. 7. When after voluntary dissolution of the absolute community of property or conjugal partnership has been judicially decreed upon the joint petition of the spouses, they agree to the revival of the former property regime. No voluntary separation of property may thereafter be granted.
TRANSFER OF ADMINISTRATION TO THE OTHER SPOUSE WHEN (GACA) (ART. 142): 1) When one spouse becomes the guardian of the other. 2) When one spouse is judicially declared an absentee. 3) When one spouse is sentenced to a penalty which carries with it civil interdiction. 4) When one spouse becomes a fugitive from justice or is in hiding as an accused in a criminal case.
If the other spouse is not qualified by reason of incompetence, conflict of interest, or any other just cause, the court shall appoint a suitable person to be the administrator.
F. PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE
Art.147 Art.148 Applicability 1. man and woman 2. living together As husband and wife 3. with capacity to marry (Art.5 Without any legal impediment) at least 18 years old not Art. 37 (incestuous void marriage) not Art.38 (void marriage by reason of public policy) not bigamous 4. other void Marriages due to absence of formal requisite 1. man and woman 2. living together as husband and wife 3. NOT capacitated to marry (Art.35(1) under 18 years old) 4. adulterous relationship (e.g. concubinage) 5. bigamous/ polygamous marriage (Art.35(4)) 6. incestuous marriages under Art.37 7. Void marriages by reason of public policy C I V I L L A W, P E R S O N S A N D F A M I L Y R E L A T I O N P a g e | 27
UP College of Law, Bar Operations 2008 under Art.38 Salaries and wages Owned in equal shares Separately owned by parties Properties acquired through exclusive funds Remains exclusive provided there is proof
Remains exclusive Properties Acquired by both through work or industry Governed by rules on co- ownership
Owned in common in proportion to respective contribution
Properties acquired while living together Owned in equal shares since it is presumed to have been acquired through joint efforts if one party did not participate in acquisition, presumed to have contributed through care and maintenance of family and household No presumption of joint acquisition. When there is evidence of joint acquisition but none as to the extent of actual contribution, there is a presumption of equal sharing Forfeiture When only one of the parties is in good faith, the share of the party in bad faith shall be forfeited: 1. In favor of Their common children
2. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants
If one party is validly married to another: - his/her share in the co-owned properties will accrue to the ACP/CPG of his/her existing valid marriage.
If the party who acted in bad faith is not validly married to another, his/her share shall be forfeited in the same manner as that provided in Art 147.
The same rules 3. In the absence of such descendants, such share belongs to the innocent party on forfeiture shall apply if both parties are in bad faith
IX. THE FAMILY
FAMILY basic social institution which public policy cherishes and protects hence, no suit between members of the family shall prosper unless compromise between parties has failed.
FAMILY RELATIONS INCLUDE: 1. Between husband and wife 2. Between parents and children 3. Among other ascendants and descendants 4. Among brothers and sisters, full or half blood.
General Rule: For a suit between members of the same family to prosper, the following are required: A. Earnest efforts towards a compromise have been made B. Such efforts have failed C. Such earnest efforts and the fact of failure must be alleged
[NOTE: The case will be dismissed if it is shown that no such efforts were made.]
Exceptions to the general rule (VJLAFF): a) Civil status of persons, b) Validity of marriage or a legal separation, c) Any ground for legal separation, d) Future support, e) Jurisdiction of courts, f) Future legitime
Hontiveros v. RTC 309 SCRA 340 (1999) Whenever a stranger is a party in a case involving family members, the requisite showing of earnest efforts to compromise is no longer mandatory, as such inclusion of a stranger takes the case out of the ambit of FC 151.
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FAMILY HOME - dwelling place of a person and his family
Guidelines: 1. It is deemed constituted from time of actual occupation as a family residence 2. It must be owned by person constituting it 3. It must be permanent 4. Rule applies to valid and voidable and even to common-law marriages under Arts.147 and 148 5. It continues despite death of one or more spouses or unmarried head of family for 10 years or as long as there is a minor beneficiary (Art.159) 6. Can only constitute one family home
GENERAL RULE: The family home is exempt from: 1. Execution 2. Forced sale 3. Attachment Exceptions in the exemption of the family home from execution (Art. 156): 1. Nonpayment of taxes. 2. Debts incurred prior to the constitution of the family home. 3. Debts secured by mortgages on the premises before or after such constitution. 4. Debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered service or furnished material for the construction of the building.
Art.147 Art.148 Beneficiaries of the family home (Art. 154): 1. Husband and wife, or an unmarried person who is the head of the family 2. Parents (may include parent-in-laws), ascendants, descendants, brothers and sisters (legitimate/illegitimate), who are living in the family home and who depend on the head of the family for support.
Requisites to be a beneficiary: 1. The relationship is within those enumerated, 2. They live in the family home, 3. They are dependent for legal support on the head of the family.
Requirements for the sale, alienation, donation, assignment, or encumbrance of the family home: 1. the written consent of the person constituting it, 2. his/her spouse, and 3. majority of the beneficiaries of legal age
[NOTE: If there is a conflict, the Court will decide.]
In case of death (ART. 159): The family home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of ten years, or as long as there is a minor beneficiary. The heirs cannot partition the home unless the court finds compelling reasons therefor.
Requisites for creditor to avail of the right under article 160: 1. He must be a judgment creditor; 2. His claim is not among those excepted under Article155, and 3. He has reasonable grounds to believe that the family home is worth more than the maximum amount fixed in Article 157
Procedure to avail of right under Article 160: 1. The creditor must file a motion in the court proceeding where he obtained a favorable for a writ of execution against the family home. 2. There will be a hearing on the motion where the creditor must prove that the actual value of the family home exceeds the maximum amount fixed by the FC either at the time of its constitution or as a result of improvements introduced thereafter its constitution. 3. If the creditor proves that the actual value exceeds the maximum amount the court will order its sale in execution. C I V I L L A W, P E R S O N S A N D F A M I L Y R E L A T I O N P a g e | 29
UP College of Law, Bar Operations 2008 4. If the family home is sold for more than the value allowed, the proceeds shall be applied as follows: a. First, the obligation enumerated in Article 155 must be paid b. Then the judgment in favor of the creditor will be paid, plus all the costs of execution c. The excess, if any, shall be delivered
X. PATERNITY AND FILIATION
PATERNITY - the relationship or status of a person with respect to his or her child (paternity includes maternity).
FILIATION - the status of a person with respect to his or her parents.
TYPES OF FILIATION: 1. Natural a. Legitimate (Art. 164) b. Illegitimate (Arts.165, 175, 176) c. Legitimated (Arts. 167-172) 2. By Adoption (R.A. No. 8552 (Domestic Adoption Act) and R.A. No. 8043 (Intercountry Adoption Act)
2 TYPES OF ILLEGITIMATE CHILDREN: 1. Children of parents disqualified to marry each other at conception and marriage. 2. Children of parents qualified to marry each other.
A. LEGITIMATE CHILDREN
GENERAL RULE: Those who are conceived OR born during a valid marriage EXCEPTI ONS to the general rule are those children who are: 1. Conceived as a result of artificial insemination 2. Born of a voidable marriage before decree of annulment 3. Conceived or born before judgment of annulment or absolute nullity under Art. 36 (psychological incapacity) becomes final & executor 4. Conceived or born of a subsequent marriage under Art. 53 (failure to record the judgment, partition and distribution of properties, and delivery of childrens presumptive legitime) 5. Of mothers who may have declared against their legitimacy or was sentenced as an adulteress 6. Legally adopted 7. Legitimated, conceived and born outside of wedlock of parents without impediment at the time of conception and who subsequently married
For children by artificial insemination to be considered legitimate: 1. The artificial insemination is made on the wife, not on another woman AND 2. The artificial insemination on the wife is done with the sperm of the husband, or of a donor, or both the husband and a donor AND 3. The artificial insemination has been authorized or ratified by both spouses on a written instrument executed and signed by them before the birth of the child, AND 4. The written instrument is recorded in civil registry together with the birth certificate of the child
IMPUGNING LEGITIMACY:
Liyao v. Liyao 378 SCRA 563 (2002) A child born within a valid marriage is presumed legitimate even though the mother may have declared against its legitimacy or may have been sentenced as an adulteress. The child himself cannot choose his own filiation. If the husband, presumed to be the father, does not impugn the legitimacy of the child, then C I V I L L A W, P E R S O N S A N D F A M I L Y R E L A T I O N P a g e | 30
UP College of Law, Bar Operations 2008 the status of the child is fixed, and the latter cannot choose to be the child of his mothers alleged paramour.
Grounds to impugn the legitimacy of the child: 1. Physically impossibility for the husband to have sexual intercourse with his wife within the first 120 days of the 300 days which immediately preceded the birth of the child because of: a. Physical incapacity of the husband to have sexual intercourse with his wife b. The fact that the husband and wife were living separately in such a way that sexual intercourse was not possible, or c. Serious illness of the husband which absolutely prevented intercourse. 2. Biological or other scientific grounds that the child could not have been that of the husband, except in the case of children conceived through artificial insemination a. Blood grouping tests can determine non-paternity but not paternity (ex. A-B-O test). b. Human Leukocyte Antigen Test (HLA) can prove identity between child and father with a probability exceeding 98%. c. DNA test d. Vasectomy [NOTE: SEMPIO- DIY:A double vasectomy, together with other pieces of evidence, can show the impossibility of the alleged father siring his supposed child; STA. MARIA: The fact that the husband has undergone vasectomy is not enough proof to rebut the presumption of legitimacy (Cocharan v. Cocharan).] 3. Written authorization or ratification of either parent of children conceived through artificial insemination, when the was obtained through mistake, fraud, violence, intimidation, or undue influence.
Who can impugn the legitimacy of a child General Rule: Only the husband can impugn the legitimacy of a child. Exceptions: The heirs of the husband may impugn the childs filiation in the following cases: a. If the husband dies before the expiration of period for filing the action b. If the husband dies after filing without desisting
If the child was born after the death of the husband.
When to impugn the legitimacy of a child:
1. Within 1 year from knowledge of the birth or its recording in the civil register, if the impugner resides in the city or municipality where the birth took place or was recorded;
2. Within 2 years from knowledge of the birth or its recording in the civil register, if the impugner resides in the Philippines other than in the city or municipality where the birth took place or was recorded;
3. Within 3 years from knowledge of the birth or its recording in the civil register, if the impugner resides abroad
NOTE: Legitimacy cannot be collaterally attacked. It can only be impugned in a direct action.
If the birth of the child has been concealed or was unknown to the husband or his heirs, the above periods shall be counted: 1. From the discovery or knowledge of the birth of the child 2. From the discovery or knowledge of the fact of registration of the birth, whichever is earlier.
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IN CASE OF TWO MARRIAGES OF THE MOTHER:
For the child to be considered the child of the 1st husband, the following requisites must concur: 1. The mother must have married again within 300 days from the termination of her first marriage 2. The child was born within the same 300 days after the termination of the former marriage of its mother 3. The child was born before 180 days after the solemnization of its mother's 2nd marriage
For the child to be considered the child of the 2nd husband, the following requisites must concur: 1. The mother must have married again within 300 days from the termination of the marriage. 2. The child was born within the same 300 days after the termination of its mother's first marriage. 3. The child was born after 180 days following the solemnization of its mother's second marriage. NOTE: The first marriage must be terminated either by death or annulment.
There is no presumptive rule on the status of a child born after 300 days following the termination of the marriage. (Art. 169) [Reason: 300 days is the longest period of gestation.]
B. PROOF OF FILIATION 1. The record of birth appearing in the civil register or a final judgment. 2. An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned.
Or, in their Absence: 1. The open and continuous possession of the status of a legitimate or illegitimate child; or 2. Any other means allowed by the Rules of Court and special laws.
J ison v. CA 286 SCRA 495 (1998) To prove open and continuous possession of the status of an illegitimate child, there must be evidence of the manifestation of the permanent intention of the supposed father to consider the child as his, by continuous and clear manifestations of parental affection and care, which cannot be attributed to pure charity.
Continuous means uninterrupted and consistent, but does not require any particular length of time.
Cabatania v.CA G.R. No. 124814 (2004) A certificate of live birth purportedly identifying the putative father is not competent evidence of paternity when there is no showing that the putative father had a hand in the preparation of said certificate. The local civil registrar has no authority to record the paternity of an illegitimate child on the information of a third person. While a baptismal certificate may be considered a public document, it can only serve as evidence of the administration of the sacrament on the date specified but not the veracity of the entries with respect to the childs paternity. Thus, certificates issued by the local civil registrar and baptismal certificates are per se inadmissible in evidence as proof of filiation and they cannot be admitted indirectly as circumstantial evidence to prove the same.
Herrera v. Alba G.R No. 148220 (2005) To be effective, the claim of filiation must be made by the putative father himself and the writing must be the writing of the putative father. A notarial agreement to support a child whose filiation is admitted by the putative father was considered acceptable evidence. Letters to the mother vowing to be a good father to the child and pictures of the putative father cuddling the child on various occasions, together with the C I V I L L A W, P E R S O N S A N D F A M I L Y R E L A T I O N P a g e | 32
UP College of Law, Bar Operations 2008 certificate of live birth, proved filiation. However, a student permanent record, a written consent to a fathers operation, or a marriage contract where the putative father gave consent, cannot be taken as authentic writing. Standing alone, neither a certificate of baptism nor family pictures are sufficient to establish filiation.
ACTION TO CLAIM LEGITIMACY 1. The child can bring the action during his lifetime 2. If the child dies after reaching majority without filing an action, his heirs can longer file the action after death 3. If the child dies during minority in the state of insanity, his heirs can file the action for him within 5 years from the childs death 4. If the child dies after commencing the action, the action will survive and his heirs will substitute for him
Cleverock Energy Corporation, and Cross-Appellant v. Martin Trepel and Trepel Petroleum Corporation, and Cross-Appellees, 609 F.2d 1358, 10th Cir. (1979)