Persons HIZON

NOTES ON PERSONS AND FAMILY RELATIONS
Kenneth and King C. Hizon _____________________________________________________________________________________________________________
UNIVERSITY OF SANTO TOMAS

Faculty of Civil Law
A.Y. 2010-2011
First Semester
PERSONS AND FAMILY RELATIONS

Culled from the lectures of DEAN AUGUSTO K. ALIGADA
PRELIMINARY TITLE:
INTRODUCTION
2.
CHAPTER 1: Effect and Application of Laws

3.
ARTICLE 1EThis Act shall be known as the Civil Code of the
Philippines.
ARTICLE 2 Laws shall take effect after 15 days following the
completion of their publication in the Official Gazette,
unless it is otherwise provided.
This Code shall take effect 1 year after publication.
Q: What is Law?
promulgation or legislation
Should there be conflict between law and equity, law
prevails
As long as there is an existing law, equity does not
apply. In other words, equity applies only in the absence
of applicable law.
Q: What is Civil Code?

A: It is a compilation of our civil laws. But it does not mean
that all our civil laws are to be found in the Civil Code because
there are laws which are civilian in character but are not
found in the Civil Code
1
A: In general, according to St. Augustine, Law may be

defined in its most signification as an ordinance of reason
promulgated by competent authority to the common
good/welfare by him who is in charge.
NOTE: CIVIL LAW is not the same with law, it is more
particular.
Q: What is Civil Law?
A: According to Sanchez Roman, Civil Law is a mass of
precepts that determines and regulates the relations of
assistance, authority and obedience among members of
family and those which exist among members of society for
protection of private interests.
Q: What are Special Laws ?

A: These are laws which are civilian in character but are not
included in the Civil Code.
Examples of Special laws are:
a. Family Code
b. Condominium Law
c. Water Code
d. Mortgage Law
2
Q: What was the forerunner of the New Civil Code (NCC)?

A: The Spanish Civil Code of 1889 is the law that preceded
the NCC.
NOTE: Law is not the same with EQUITY.
HISTORY OF THE CIVIL CODE IN THE PHILIPPINES

SPANISH CIVIL CODE OF 1889
Q: What is the distinction between Law and Equity?

A:
LAW
1. Promulgated by legislative
body
EQUITY
Equity is not promulgated
by legislative body because
it emanates from natural
law which does not need
It took effect on either December 7, 1889 (Mijares v. Neri) or

December 8, 1889 (Benedicto v. Ramos). Either is correct
since both dates are backed-up by Supreme Court decisions.
In so far as Civil Code is concerned

Republic Act 386 As Amended, An Act to Ordain and Institute the Civil Code of the
Philippines
2
Facultad de Derecho Civil

Q: Which of the 2 dates should be followed?
2.
3.
4.
A: Both dates are supported by jurisprudence but the

majority view supports December 7, 1889 as the date of the
effectivity of the SCC.
The law provides that it shall take effect 20n days after its
publication in the Gaceta de Manila which was published on
November 17, 1889.
BOOKS UNDER THE NCC

Q: What are the different books under the NCC?
A:
1.
2.
3.
4.
Q: When did it cease to take effect?

A: On August 30, 1950 the SCC ceased to take effect upon the
effectivity of the NCC (Republic Act 386)
Important dates to remember
1.
DECEMBER 7, 1889- effectivity of the Old Spanish Civil

Code of 1889;
NOVEMBER 17, 1889 Spanish Civil Code was
3
published in Gazetta de Manila;
4
AUGUST 30, 1950 ;
-the date when the 1889 Spanish Civil Code ceased to
take effect
- it was also the date when the New Civil Code took
effect (date of effectivity of NCC
2.
3.
Q: What is the basis for saying that it took effect on August

30, 1950?
A: Article 2, of the NCC provides that this Code shall take
effect after such publication.
The NCC was enacted into law on June 18, 1949. It took effect
on August 30, 1950.
Q: When was it published?
A: It was published in the June 1949 issue of the OG.
SOURCES OF THE NCC
Persons
Property, Ownership, and its Modifications
Modes of Acquiring Ownership
Obligations and Contracts
Note: There are 2,270 articles in the NCC and one of its
amendments was the Family Code.
Q: What is the Code Commission?
A: It is the body tasked by the government to draft the NCC.
Q: What is the Official Gazette?
A: It is the official publication of the country/state
Q: How did the NCC became a law?

A: By a Congressional Act, the NCC became a law.
Accordingly, it became a law on the day it was passed by
Congress on June 18, 1949.
Decisions of the Supreme Court

Treaties
Commentaries of authorities
LARA v.DEL ROSARIO

(G.R.N. L-6339. April 20, 1954)
The basis for August 30, 1950 is the case of Lara v. Del
Rosario where the SC mentioned in an obiter dictum that
effectivity date of the NCC is August 30, 1950 or one-year
after the OG was circulated on August 30, 1949 (the date
when the NCC was released for circulation. Actually, it was
the June 1949 issue of the OG which was circulated on August
30, 1949. Also, the NCC was published in a Supplement dated
June 1949 which accompanied the June 1949 issue. Hence,
although the OG is conclusively presumed to be published on
the date of its issue and that law shall take effect one year
after such publication, the SC held in this case that one year
period should be counted from the date of circulation of the
OG.
As such, the SC stated that the Court of Appeals followed the
date of circulation not the date of publication. Furthermore,
7
it was clarified that circulation is not the same as
8
publication.
Q: What are the sources of the New Civil Code?

Accordingly, this was the first judicial declaration on the
effectivity of the NCC as far as the Supreme Court is
concerned.
A:
1.
3
4
Spanish Civil Code of 1889 -many of the provisions

in NCC came from the SCC of 1889; it was the
56
primary source yet it is not the only source ,
This is 20 days before December 7

Same dates for continuity. There can never be a day without the Civil Code
The Law on Obligations and Contracts, Agency, and Partnership came from the United
States
6
It is a combination of the different Civil Code of the world put together : more than 30
countries
7
Circulation- the day it was released or circulated to the public
8
Publication- the day it came out of the press

PEOPLE v. BONJE
(C.A. Feb. 6, 1953)
In the earlier case of People v. Bonje, decided by the Court of
Appeals, it was stated that the NCC took effect on August 30,
1950. This is the case that was adopted by the SC.
Accordingly, the Court of Appeals ruled that the NCC took
effect on August 30, 1950 because the June 1949 issue of the
Official Gazette was released on August 30, 1949. The issue
carried with it, as a supplement, the NCC.
Q: If the NCC took effect on August 30, 1950, did it follow
what Art.2 provides?
A: No. Art. 2 stated that laws shall take effect after 15 days
following the completion of their publication in the Official
Gazette, unless it is otherwise provided. The Code shall take
effect one year after such publication.
not a sine qua non requirement for the effectivity dates.

Here, the presidential issuances contain special provisions as
to the date of their effectivity. They invoke ART.2, NCC, which
states: Laws shall take effect after 15 days following the
completion of their publication in the Official Gazette, unless
it is otherwise provided.
The respondents equate the effectivity of laws with the fact
of publication.
In several cases, the SC has held that publication in the OG is
necessary in those cases where the law itself does not
provide for its effectivity date-- because then, the date of
publication is material for determining its date of effectivity
th
the 15 day following its publicationbut not when the law
itself provides for the date when it goes into effect.
ISSUE: Whether or not, publication in the OG of the
questioned presidential issuances is required.
HELD: Yes, if they are of public nature or of general
applicability.
Before the Tanada Case

The SC held that the clause unless it is otherwise provided
means that publication in the OG is necessary only in those
cases where the legislation itself did not provide for the
effectivity datefor then the date of publication becomes
material in determining the date of effectivity which is the
th
15 day following its publication.
Effectivity date of an Ordinary Law
Q: What is the effectivity date of an ordinary law?
A:
1.
2.
On the date it is expressly provided to take effect;

and
If no such date is made, then after 15 days following
the completion of its publication in the OG or in a
newspaper of general circulation (EO 200, dated
June 18, 1987, modifying Article 2 of the CC)
Hence, publication is indispensible for effectivity of laws. All

laws cannot take effect without publication.
TAADA et al. v. TUVERA et al.

9
(G.R.N. 63915. April 24, 1985)
Petitioners seek a writ of manadamus to compel respondents
to publish in the Offifcial Gazette various PDs, LOIs, General
Orders, Proclamations, EOs, Letters of Implementations, and
AOs. The latter however, argued that publication in the OG is
9
This case was decided during Martial Law period.
In light of other pertinent laws, Article 2 does not preclude

the publication requirement even if the law provides for its
date of effectivity. Thus, Section I of Commonwealth Act 638
provides as follows:
"Section 1. There shall be published in the Official Gazette [1] all
important legislative acts and resolutions of a public nature of the
Congress of the Philippines; [2] all executive and administrative
orders and proclamations, except such as have no general
applicability, (3) decisions or abstracts of decisions of the
Supreme Court and the Court of Appeals as may be deemed by
said courts of sufficient importance to be so published, [4] such
documents or classes of documents as may be required so to be
published by law, and [5] such documents or classes of
documents as the President of the Philippines shall determine
from time to time to have general applicability and legal effect, or
which he may authorize so to be published. x x x"
The clear object of the above-quoted provision is to give the

general public adequate notice of the various laws which are
to regulate their actions and conduct as citizens. Without
such notice and publication, there would be no basis for the
application of the maxim "ignorantia legis non excusat." It
would be the height of injustice to punish or otherwise
burden a citizen for the transgression of a law which he had
no notice whatsoever. not even a constructive one.
Perhaps at no time since the establishment of the Philippine
Republic has the publication of laws taken so vital significance
than at this time when the people have bestowed upon the
President a power heretofore enjoyed solely by the
legislature. While the people are kept abreast by the mass
media of the debates and deliberations in the Batasan
Pambansa - and for the diligent ones, ready access to the
legislative records - no such publicity accompanies the lawmaking process of the President. Thus, without publication,
the people have no means of knowing what presidential

decrees have actually been promulgated, much less a definite

way of informing themselves of the specific contents and
texts of such decrees.
Xxx
The very first clause of Section I of Commonwealth Act 638
reads: "Mere shall be published in the Official Gazette x x x."
The word "shall" used therein imposes upon respondent
officials an imperative duty. That duty must be enforced if the
Constitutional right of the people to be informed on matters
of public concern is to be given substance and reality. The law
itself makes a list of what should be published in the Official
Gazette. Such listing, to our mind, leaves respondents with no
discretion whatsoever as to what must be included or
excluded from such publication.
The publication of all presidential issuances "of a public
nature" or "of general applicability" is mandated by law.
Obviously, presidential decrees that provide for fines,
forfeitures or penalties for their violation or otherwise
impose a burden on the people, such as tax and revenue
measures, fall within this category. Other presidential
issuances which apply only to particular persons or class of
persons such as administrative and executive orders need not
be published on the assumption that they have been
circularized to all concerned.
It is needless to add that the publication of presidential
issuances "of a public nature" or "of general applicability" is a
requirement of due process. It is a rule of law that before a
person may be bound by law, he must first be officially and
specifically informed of its contents.
Thus, presidential issuances of general application, which
have not been published, shall have no force and effect.
REYNALDO V. UMALI v. HON. JESUS P. ESTANISLAO and

HON. JOSE U.ONG
(G.R. No. 104037, May 29, 1992.)
In these cases, the SC cited CALTEX v. CIR. The principal issue
was when a law takes effect.
The SC ruled that even if the BIR regulation states that it shall
take effect upon its approval, publication is still essential. In
no case therefore, is publication is still dispensed with. Even if
the law says that it shall take effect upon approval,
publication is indispensable.
Hence, if the law is not published, it can never take effect.
Accordingly, the unless otherwise provided clause has
nothing to do with the requirement of publication. It refers to
effectivity.
In Umali v. Estanislao, the Congress enacted RA 7167 entitled:
An Act Adjusting the Basic Personal and Additional
Exemptions Allowable to Individuals for Income Tax Purposes
to the Poverty Threshold level. Said law provides for personal
exemptions to individuals on their income tax. Its section 3
states: This act shall take effect upon its approval. The
President signed and approved the said law on December 19,
1991, it was published on January 14, 1992 in Malaya, an
NGC.
On December 26, 1992 respondents promulgated revenue
regulations No 1-92 which provides that: Right to claim the
following exemptions. . . . . Each employee shall be allowed to
claim the following amount of exemption with respect to
compensation paid on or after January 1, 1992 (Section 8).
xxx
xxx
xxx
SEC. 5. EFFECTIVITY. - These regulations shall take effect on
compensation income from January 1, 1992."
EXCEPTIONS TO THE REQUIREMENT OF PUBLICATION

Q: What are the exceptions to the requirement of
publication?
Petitioners thus filed this petition seeking to compel

respondents to implement RA 7167 with respect to taxable
income of individual taxpayers earned or received on or after
01 January 1991, or as taxable year ending 31 December
1991.
A:
1.
2.
Regulations which are merely interpretative;

circulars which are interpretative in nature.
Regulations which are merely internal in nature
within a specific office or department; bulletin or
circulars for internal use.
ISSUE: Whether or not RA 7167 took effect upon its approval

by the President on December 19, 1991.
HELD: No, it took effect on January 30, 1992; after 15 days
following its publication on January 14, 1992 in Malaya.
Caltex Phils, Inc. v. CIR
Note: Implementing Rules are ought to be published.
RENE B. GOROSPE, et al., v. COMISSIONER OF INTERNAL

REVENUE (G.R. No. 104069, May 29, 1992) and
The SC, invoking the 1986 decision in Tanada v. Tuvera, held

that since RA 6965 has no specific date for its effectivity and
since it cannot become effective upon its approval despite its
express statement that it took effect 15 days after 20
September 1990 or on 05 October 1990.

GR: Laws shall take effect after 15 days following the

completion of its publication.
XPN: Unless it is otherwise provided- which accordingly
refers to effectivity and not to publication. Congress may
shorten lengthen the period of 15 days. So, the 15-day period
will apply if the law does not provide otherwise.
Q: What are the laws covered by Article 2 of NCC?
CLARIFICATORY RESOLUTION
11
(G.R.N. 63915. December 29, 1986)
In the SCs previous decision on this course, it ordered the
respondents to publish in the OG all unpublished
presidential issuances which are of general application.
Petitioners now ask for a reconsideration/ clarification of said
decision, specifically:
A: Article 2 covers two kinds of laws:

a.
1.
2.
Laws in general-after 15 days following the

completion of its publication in the OG/NGC.
Civil Code- one year after its publication.
b.
c.
d.
e.
DOCTRINE OF OPERATIVE FACT
What is meant by law of public nature or general

applicability?
Must a distinction be made between laws of general
applicability and laws which are not?
What is meant by publication?
Where is the publication to be made?
When is the publication to be made?
Q: What is the Doctrine of Operative Fact?

A: Acts performed pursuant to a law before such law is
declared unconstitutional are considered as valid. This
doctrine is based on American jurisprudence.
10
(G.R.N. 63915. April 24, 1985)
It refers to the validity of acts done or performed by citizens
pursuant to a law which was not published, and hence
unconstitutional. These acts are valid provided they were
performed before the law was declared void for lack of
publication.
Accordingly, it is true that laws declared unconstitutional are
not lawsthey are inoperative. They confer no rights and
impose no duties. However, this rule must be taken with
qualifications. The actual existence of a law, prior to such a
determination is an operative fact and may have
consequences that cannot justly be ignored. The past cannot
always be erased by a new judicial declaration.
Questions of rights claimed to have become vested of status,
of prior determinations deemed to have finality, and acted
upon accordingly, of public policy in the light of the nature
both of the statute and of its previous application demand
examination.
Thus, the implementation/enforcement of PDs prior to their
publication in the OG is an operative fact that which may
have consequences that cannot be justly ignored.
Q: Was CA 638 a public law?
A: Yes. All laws enacted by the legislature are public laws
including Commonwealth Acts and Republic Acts.
Petitioner then argued that there should be no distinction

between laws of the general applicability and those that are
not; that publication means complete publication; and that
the publication must be made in the OG.
The SG argues that issuances intended only for the internal
administration of a government agency or for particular
persons need not be published; and that the publication must
be in full and in the OG.
ISSUE: Whether or not all laws must be published
HELD:
I.
Publication is indispensable
The clause unless it is otherwise provided in ART.2 refers to

the date of effectivity-not to the publication requirement
which cannot be omitted. This clause does not mean that
Congress may make the law effective immediately upon
approval; or on any other date, without its previous
publication.
Publication is indispensable but Congress may provide that
the usual 15-day period shall be shortened or extended. Thus,
the NCC did not become effective after 15 days from its
publication in the OG but one year after such publicationthe general rule did not apply because it is otherwise
provided.
Thus, it is incorrect to say that under the dispute clause
publication may be dispensed with. This is because such
omission would offend due processit would deny the
public knowledge of the laws that are supposed to govern it.
This is true not only in penal laws but also of non-penal
11
10
This case was decided during Martial Law period.
The Main Decision and the Clarificatory Resolution were not rendered by the same SC.
One was decided during the Martial Law and the other is Post-Edsa.

measures like a law on prescription. Furthermore, for the

conclusive presumption that every person knows the law to
have legal justification, the law must first be published. Also,
section 6 of the Bill of Rights recognizes the right of people to
information on matters of public concernthis surely applies
to legislative enactments of the government.
Publication must also be as soon as possible to give effect to

the law.
II.
President Corazon Aquino promulgated EO 220 amending Art.

2 of NCC on June 18, 1987 which provided that laws may also
be published in a newspaper of general circulation. Pres. Cory
declared a Revolutionary Government:
All laws must be Published
The term law refers to all lawsnot only to those of

general circulation. This is because strictly speaking, all laws
relate to the people in generalalthough some do not apply
to them directly. In fact, a law without any bearing on the
public would be invalid as an intrusion of privacy or as class
legislation or as an ultra vires act of Congress. To be valid, the
law must invariably affect the public interest even if it is
directly applicable only to some persons.
EXECUTIVE ORDER NO. 200
a.
b.
c.
d.
Thus, all statutes including those of local application and

private lawsmust be published as a condition for their
effectivity.
e.
abolished the Congress

Assumed the powers of the Congress under the
Revolutionary Government.
She had 2 functions: that of the President, and that
of the Congress
She overhauled the entire government including the
SC.
She approved the Family Code, not by a Congress
12
Enactment but by an Executive Fiat
Covered by this rule are PDs and Eos promulgated by the

President in the exercise of legislative power. Administrative
rules and regulations must also be published if their purpose
is to enforce or implement existing law pursuant to a valid
delegation.
Q: Distinction between a law of general and particular

application?
However, the following need not be published:
GENERAL APPLICATION
-publication is necessary,
otherwise, law will never be
valid
-applies to everybody (all
citizens) or entire country
a.
b.
III.
Interpretative regulations and those internal in

nature-- regulating only the personnel of
administrative agency and not the public;
LOIs issued by administrative superiors concerning
the rules or guidelines to be followed by their
subordinates in the performance of their duties.
Rules on Publication
Publication must be fullotherwise, it is no publication at all.

This is because the purpose of publication is to inform the
public of the contents of the laws. Obviously, merely
mentioning the PD number, its title, and its whereabouts
cannot satisfy the publication requirementit is not even
substantial compliance.
True the OG is released erratically and its readership is
limited. Thus, newspapers of general circulation could better
perform the function of communicating the laws to the
people as they are more easily available, have a wider
readership, and come out regularly. However, publication in a
newspaper of general circulation is not the one required or
authorized by Art. 2 of NCC. Thus, under it, publication must
be made in the OG not elsewhere as a requirement of
effectivity.
A: Commonwealth Act 638, a public act which gave

distinctions between two laws:
PARTICULAR APPLICATION
-publication is not necessary
to become effective
-applies to particular group in
the
country,
particular
segment of individuals
Q: By what authority was she able to do that?

A: When Pres. Aquino proclaimed the Revolutionary
government, she abolished Congress and assumed both
executive and legislative powers. It was in pursuance to her
legislative powers that she amended Art. 2 of NCC.
Q: Was the two Tanada decisions rendered by the same SC?
A: No. The main decision was rendered during the Marcos
administration. The clarificatory resolution was rendered
during the Revolutionary government when Pres. Aquino
reorganized the entire government set-up which included the
Judiciary. Many SC justices were required to retire and new
justices were appointed.
MAIN DECISION
12
Let it be done

The SC said that it would depend whether it is of General

13
Application or a Particular Application. If the law is Penal in
nature/character, whether it is of general or particular
application, publication is indispensable. In this case,
publication is part of due process.
CLARIFICATORY RESOLUTION
In the Clarificatory Petition, the SC ruled that no distinction
should be made between general and particular law.
Accordingly, not only the Act No., the Title, Preamble, or part
of it must be published; it must be the entire law that must
be published to give notice to the public of the existence of
such law
warned respondents to vacate their shop given its proximity

to the weakened wall. However, respondents did not do so.
Respondents then sued petitioners. The RTC found
petitioners guilty of gross negligence and awarded damages
to the former. On appeal, the CA affirmed RTC in a decision
promulgated on 17 Aug, 1987, a copy of which was received
by petitioners on 25 August, 1987.
Then, on 09 Sept 1987, the last day of the 15-day period to
file an appeal, petitioners filed a motion for extension of time
to file a Motion for reconsideration which the CA denied.
ISSUE: Whether or not the petitioners can file a motion for
extension of time to file Motion for reconsideration
Q: Why is publication necessary?

A: Publication is part of due process- notice must be given to
the public to inform them, otherwise, it will be the peak of
injustice to burden or convict a person for committing an act
which he was not informed.
HELD: The CA correctly applied the rule in Habaluyas

Enterprises, Inc. v. Japzonthat the 15 day period for
appealing or for filing a M/RC cannot be extended. In said
case, the SC held that such an extension cannot be done in
the MTCs, RTCs and the CA, but only in cases before the SC, at
its sound discretion.
*Constructive notice- attained through publication.

Q: Where shall it be published?
A:
a.
b.
Official Gazette;
Newspaper of general circulation (Amended by Pres.
Cory through E.O. 200)
Q: Is there any difference between effectivity and validity?

A: Yes. Article 2 refers to effectivity not to validity of laws.
Although in Bacaya v. IAC, the SC stressed the prospective

application of said rule, and explained the operation of the
grace period. Here petitioners filed their M/ for extension of
time on 09 September, 1987more than 1 year after the
expiration of the grace period on 30 June, 1986. Clearly, it is
no longer within the coverage of the grace period.
Petitioners also argue that the Habaluyas rule does not apply
to this case because the Habaluyas case has not been
published on the OG as of the time the CAs decision was
promulgated. This is unmeritorious. There is NO law requiring
the publication of SC decisions in the OG before they can be
binding and as a condition to their becoming effective.
Q: Should decision of the courts be published?

A: ART.8 - Judicial decisions applying, or interpreting the laws
of the Constitution shall form part of the legal system of the
Philippines.
ROY A. DIZON v.CA

(G.R. No. 111762. July 22, 1999)
The SC ruled that rulings or decisions of the SC, although they
form part of the law of the land, are not contemplated in
Article 2. Thus, they need not be published.
Petitioners owned a burned out building whose firewall
collapsed, thus destroying the tailoring shop of private
respondents causing injury to the latter and killing Marissa
Bernal (daughter). Prior to this incident, petitioners have
It is the counsels duty as a lawyer in active law practice to

keep abreast of SC decisions particularly those where issues
were clarified, consistently reiterated, and published in the
advance reports of SC decisions (GRs) and in such
publications as the SCRA and law journals.
ARTICLE 3 Ignorance of the law excuses no one from
compliance therewith.
NOTE: What a person is presumed to know is that the law
exists, but not the correct interpretation.
The underlying principle that ignorance of the law excuses
no one from compliance therewith is based not only in
expediency, but also on necessity.
This article establishes a conclusive presumption.
Q: To what kind of law does Art. 3 refer to?
13
Laws that impose punishment for its violation or infraction

A: Only Philippine laws or domestic law. More so, it refers

only to mandatory or prohibitory laws, and not to directory
laws.
XPNs:
a.
Q: Who are covered by this provision?
b.
c.
d.
e.
f.
g.
h.
A: Only Filipino citizens.

Q: What are they presumed to know?
A: They are presumed to know the existence of Philippine
laws.
Penal laws favorable to the accused.

PROVIDED: Accused is not a habitual delinquent.
Interpretative statutes
Curative statutes
Laws creating new rights
Emergency laws
Tax laws
Remedial/procedural laws
Unless the contrary provides
Q: What is the nature of that presumption?
Q: To whom does the prospective application of laws be

addressed?
A: It is a conclusive presumption. Otherwise, it will defeat the

purpose of Art.3.
A: It must be addressed to the Courts because Congress can

provide for retroactivity of laws.
Q: Does it mean that it will be easy for foreigners to commit

a wrong and just claim immunity?
Only the Congress may exercise this exception, because only

Congress can enact laws and thus provide for Retroactivity.
However,
it
is
subject
to
limitations:
A: No. Article 14 of the NCC provides that penal law and

those of public security and safety shall be obligatory upon all
who live or sojourn in the Philippine territory, subject to the
principles of public international law and to treaty
stipulations.
XPNS to the XPNS:

The power of Congress to provide for retroactivity is limited.
Constitutional limits where retroactivity would result to:
Q: What if the law is not penal in nature, can we invoke

Article 3?
a.
A: No. If the law is a personal statute then the nationality

theory applies. Foreigners are not subject to our lawsthey
are subject to their own National Law.
Q: Are Filipinos presumed to know all the laws in the
Philippines?
b.
Ex post facto laws or those which makes criminal an

act before the passing of the law and which was
innocent when done.
Laws which impair the obligations of contract.
Q: How about new procedures provided in decisions, can

they be given retroactive effect?
A:
A: No. Distinction must be made between Directory and

Mandatory laws.
Directory
One the observance of
which is not necessary to
the validity of the
proceeding.
Nonobservance of which will
not invalidate the act;
not presumed to know.
Mandatory
One the omission to
follow which renders the
proceeding to which it
relates void. It must be
observed
otherwise
there is a penalty which
may be either that the
act will be void or the
person
will
suffer
consequences.
ARTICLE 4 Laws shall have no retroactive effect, unless the

contrary is provided.
GR: Laws have prospective effect.
NCRA v. CA
Even if there is a new doctrine in procedure there is no need
for publication and it may be given effect immediately.
Nobody acquires vested rights over procedure.
ARTICLE 5 Acts executed against the provisions of
mandatory and prohibitory laws shall be void, except when
the law itself authorizes their validity.
XPNs:
1.
2.
3.
When the law makes the act not void but merely
voidable at the instance of the victim;
When the law makes the act valid but subjects the
wrongdoer to criminal responsibility;
When the law makes the act itself void, but
recognizes some legal effects flowing there from.

DOCTRINE OF PROCESSUAL PRESUMPTION

Q: What is the Doctrine of Processual Presumption?
A: Under this principle, if a party invokes in the Philippines a
foreign law or decision, but it is not properly alleged and
proved, the presumption is that it is the same as the
Philippine law and thus, Philippine law will be applied.
GR: Rights are waivable.

XPNs:
1.
2. 1. It should not be contrary to law, public order, public
policy, morals, good customs;
3.
4. 2. prejudicial to a third person with a right recognized
by law.
ARTICLE 6Rights may be waived, unless the waiver is

contrary to law, public policy, morals or good customs, or
prejudicial to a third person with a right recognized by law.
Requisites for a valid waiver

Q: What are the requisites for a valid waiver?
NOTE: An obligation is not waivable because Art.6 speaks

only of waiver of rights, not of obligations.
Q: What is the distinction between a right and an
obligation?
A:
1.
2.
3.
A:
4.
RIGHT
It is a privilege or power
given to one person and
as a rule demandable of
another.
OBLIGATION
It
connotes
duty
imposed by a person or
by the law. It connotes
subservience.
This is not waivable
unless it is consented to
by the person who has
the right. But this latter
case would no longer be
a waiver, for it would
merely be a renunciation
by the holder of his
rights.
Q: Why does the law allow waiver of rights but not

obligations?
A: Rights connote power which may or may not be exercised.
Whether to exercise it or not depends on the person who has
the power, which is not the case in obligations.
Obligations, on the other hand, connote submission to
power, that is why it cannot be waived. It is dependent upon
the person who has the power to enforce, not the person
upon whom the obligation may be demanded from.
Q: What is waiver?
5.
He must be capacitated to make the waiver;

It must be made clearly;
He must actually have the right which he is
renouncing;
Not contrary to law, public order, public policy,
morals, good customs;
Not prejudicial to a third person with a right
recognized by law.
Q: Would the waiver of a right be invalidated if the one who

made the waiver inflicts injury to another?
A: Mere causing of prejudice does not invalidate the waiver
because the person prejudiced must have a right recognized
by law.
NOTE: Waiver of the obligation to pay the debt to defraud
the creditors---remedy under oblicon is to rescind the
contract.
According to Dean Aligada
Remedy is to enforce his rights against the debtors of A
(Accion Subrogatoria).
If an heir waives his right to an inheritance, his children will
be prejudiced but they have no rights recognized by law
because rights to succession are transmitted only from the
moment of death of the decedent.
As to his creditors, they have rights recognized by law but
only if what was waived what the only property of the heir.
Their remedy is to inherit but only to the extent of the debt.
As to excess in the inheritance the waiver is valid.
A: It is an intentional or voluntary relinquishment of a known

right.
Q: Sex between married persons?
Q: Is the right to waive absolute?
A: This is both a right and a duty. When a person exercises

this right upon the other spouse, the latter has the
A: No. it is subject to limitations imposed by the law.

corresponding duty to comply, unless there are valid and

compelling reasons not to.
ARTICLE 7 Laws are repealed only by subsequent ones, and
their violation or non-observance shall not be excused by
disuse, or custom, or practice to the contrary. When the
courts declare a law to be inconsistent with the
Constitution, the former shall be void and the latter shall
govern.
Administrative or executive acts, orders and regulations
shall be valid only when they are not contrary to the laws or
the Constitution.
REPEAL OF LAWS
Q: How are laws repealed?
is by implication, the prior law is revived, unless the

language of the repealing statute provides
otherwise.
ARTICLE 8 Judicial decisions applying or interpreting the
laws or the Constitution shall form part of the legal system
of the Philippines.
Q: Are judicial decisions laws?
A: No. While judicial decisions apply or interpret the
Constitution or the laws and that they form a part of the legal
system. Still they are NOT LAWS.
Q: Are judicial decisions subject to ART.4 of the NCC?
A: Yes.
A:
1.
2.
Expressly- there is a categorical statement in the

repealing law.
Impliedly- there is no categorical statement; there is
inconsistency between the prior law and the new
law. If there are substantial inconsistencies between
a prior and a subsequent law
NOTE: If the general law was enacted prior to the special law,
the latter is considered as the exception to the general law.
If the general law was enacted after the special law, the
special law remains.
XPNs:
1.
2.
3.
There is an express declaration to the contrary

There is clear, necessary, and irreconcilable conflict
The subsequent general law covers the whole
subject and is clearly intended to replace the special
law on the matter.
Effect if the repealing law is in itself repealed
Q: What is the effect if the repealing law is in itself

repealed?
A:
1.
If the prior law is expressly repealed, the repeal of

the repealing law will not revive the first law, unless
otherwise is provided. Otherwise stated: If there is
an express repeal, the prior law shall not be revived,
unless it is expressly so provided.
2.
If the prior law is impliedly repealed, the repeal of

the repealing law will revive the first law, unless
otherwise provided. Otherwise stated: If the repeal
SPOUSES BENZONAN v. CA
Decisions of the SC are also subject to the provisions of Article 4
(General Rule), meaning that even decisions of the SC cannot have
retroactive effect, unless the decision itself provides the contrary.
PE acquired, through patent and miscellaneous sale from the

Bureau of Lands, a 26,064 square meter land, covered by Free
Patent number 46128 issued on Oct. 1969. On November 24,
OCT No. P-2404 was issued. Then on Feb. 24, 1970, PE
mortgaged said land, together with another lot and some
chattels, as security for a loan of P978,920 with the DBP.
PE defaulted and on June 28, 1977, DBP foreclosed the
mortgage. DBP was the highest bidder, and Certificates of
Sale were issued in its favor. The certificate over the disputed
lot was registered with the Registry of Deeds on Jan. 24,
1978.
PE failed to redeem the land within one year period. Thus, on
Sept. 24, 1979, DBP sold the lot to petitioners for P1,650,000
payable quarterly for 5 years. Petitioners then occupied the
land and introduced further improvements worth P970,000.
Then on July 21, 1983, PE offered to repurchase the lot for
P327,996.00. DBP refused, saying a total of P3,066,739.62
had already been incurred in its preservation, maintenance
and introduction of improvements.
Thus, on Oct. 4, 1983, PE filed a complaint for repurchase
under Sec. 119, Commonwealth Act No. 141 before RTC of
Gen. Santos City. On Nov. 27, 1986, the RTC ruled in PEs
favor. On appeal, the CA affirmed the RTC retroactively
applying the ruling in Belisario v. IAC, the CA held that the 5year repurchase period is counted from the date after the
1yr. period to redeem foreclosed homestead has expired.
Petitioners now argue that the 5-year period of repurchase
should be counted from date of foreclosure sale on 18 June
10

1977 or at the very most from its registration on 24 Jan.1978.

In accordance with the prevailing doctrinal law at the time,
enunciated in Monge v. Angeles, Olivia v. Lamadrid, and
Tupas v. Damasco, pursuant to which PEs right to repurchase
already expired.
ISSUE: Whether or not Belisario ruling applies in this case
HELD: The issue here is when to count the 5-year repurchase
periodfrom the date of the foreclosure sale or from the
expiration of the one year period to redeem the foreclosed
property.
Relying on Belisario v. IAC, the CA ruled that it should be
counted from the expiration of the one year period to
redeem the foreclosed property. Since the one year period to
redeem expired on Jan. 24, 1979 and PE filed case No. 280 on
Oct. 4, 1983 to enforce his right to repurchase, the CA held
that PE exercised his right to repurchase within the 5-yr.
period provided by Sec. 119, C.A. 141 as amended. The 1988
Belisario case reversed the SCs previous rulings in Monge, et
al., v. Angeles, et al., and Tupas v. Damasco, et al., where it
was held that the 5-yr period of repurchase should be
counted from date of conveyance or foreclosure sale.
Petitioners, however, correctly argue that Belisario should
only be applied prospectively, or, after 1988 since it
established a new doctrine. At that time, the prevailing
jurisprudence interpreting Sec. 119, R.A. 141as amended was
the Monge and Tupas rulings.
While the SCs decisions form part of the law of the land, they
are also subject to Art.4, NCC, which states: Laws shall have
no retroactrive effect unless the contrary is provided.
The same consideration underlies our rulings giving only
prospective effect to decisions enunciating said doctrines.
Thus, the SC held in People v. Jabinal that: when a doctrine
of this Court is overruled and a different view is adopted, the
new doctrine should be applied prospectively and should not
apply to parties who had relied on the old doctrine and acted
on the faith thereof.
DOCTRINE OF STARE DECISIS

Q: What is the Doctrine of Stare Decisis?
A: This means adherence to judicial precedents. Once a case
has been decided one way, then another case involving the
same point at issue should be decided in the same manner.
All courts below the SC are bound by this principle. This does
not apply to the SC, which is the only part of the Judiciary
given the power to abandon or change the principles or
doctrines laid down by it.
Q: Do we have that in the Philippines?
A: Yes but not absolute. The doctrine of stare decisis is
applied only to the CA. SC can reverse, modifyitself at any
time.
ARTICLE 9 No judge or court shall decline to render
judgment by reason of the silence, obscurity or insufficiency
of the laws.
When a case is brought before the court, the law imposes
upon the court the duty to decide the case. And this
obligation is imposed on all cases.
Otherwise stated, when a case is brought before the courts,
they are duty bound to render judgment, and they cannot
decline by reason of insufficiency, silence, or obscurity of the
law.
This is true for all kinds of cases whether criminal or civil.
NOTE: The case must be decided on the basis of applicable
laws, even if they are unjustDURA LEX SED LEX.
Q: If there is no applicable law, are the courts still obliged to
render a decision?
A: In civil cases, YES. They can use the ff:
True, there may be special cases where weighty

considerations of equity and social justice will warrant a
retroactive application of doctrine to temper the harshness of
statutory law as if applies to poor farmers or their widows
and orphans. Here, however, there are no such equitable
considerations.
In criminal cases, NO. The case should be dismissed. An

offense is not a crime unless prohibited and punished by law.
Q: Do SC decisions need to be published?
Q: If before the court is a criminal case, and there is no

applicable law to that case, is the court still obliged to
render judgment?
A: No. De Roy v. CA-SC decisions are not laws.
1.
2.
3.
Customs
Statutory construction
Foreign decisions
A: Yes. The court is still obliged to render judgment by

dismissing the case. Just as conviction is a form of judgment,
11

dismissal resulting in acquittal (or vice versa) is also a form of

judgment.
As to civil cases, the court is still bound to render judgment,
and it may decide by applying any rule he desires as long as
the rule chosen is in harmony with the general interest,
order, morals, and public policy. Among such rules may be
the following:
1.
2.
3.
4.
5.
Customs and traditions not contrary to law, public

order, or public policy;
Decisions of foreign and local courts on similar cases;
Opinions of highly qualified writers and professors;
Rules of Statutory Construction; and
Principles laid down in analogous instances.
Courts are given this power only in three cases:

1.
2.
3.
Silence
Obscurity
Insufficiency of the law
Customs and traditions which can be applied in the rendition

of judgments are either national or local customs.
Courts cannot take judicial notice of all kinds of customs. If
the custom is local, no judicial notice; but the court can still
apply the local custom, provided it is alleged and proven.
Q: Why can courts take judicial notice of General customs,
but not of local customs?
A: Because these are customs which are practiced or
observed throughout the country; whereas, local customs are
observed only in particular localities.
Ways by which laws cease to take effect
Q: What is custom?
A: Is a rule of conduct established by repeated acts and
uniformly observed or practiced as a rule of society thru the
implicit approval of the lawmakers and which is therefore,
generally obligatory and legally binding.
ARTICLE 13When the law speaks of years, months, days or
nights, it shall be understood that years are of 365 days
each; months, of 30 days; days, of 24 hours; and nights from
sunset to sunrise. If months are designated by their name,
they shall be computed by the number of days which they
respectively have. In computing a period, the first day shall
be excluded, and the last day included.
Q: Does this Article apply to computation of pregnancy?
A: No. Art.13 does not apply to computation of the length of
pregnancy of a woman, because this is computed in a
different way.
ARTICLE 14 Penal laws and those of public security and
safety shall be obligatory upon all who live or sojourn in the
Philippine territory, subject to the principles of public
international law and to treaty stipulations.
GR: Philippine penal laws shall be applicable upon all who live
or sojourn in the Philippines. Hence, Art. 14 applies not only
to Filipinos, but also to everyone within the Philippines.
XPN: Philippine penal laws which are subject to (a) Public
International Law and (b) Treaty Stipulations.
NOTE: Under Art.14, Philippine penal laws have no force and
effect beyond Philippine territory unless it falls within the two
abovementioned exceptions.
Q: What are the ways by which laws cease to take effect?

A:
PRINCIPLE OF TERRITORIALITY
Any offense committed within our territory offends the State.
1.
2.
Lapse (self-lapsing)
Repeal
ARTICLE 10 In case of doubt in the interpretation and

application of laws, it is presumed that the lawmaking body
intended right and justice to prevail.
Construction and interpretation come only after it has been
demonstrated that application is impossible or inadequate
without them.
ARTICLE 11Customs which are contrary to law, public order
or public policy shall not be countenanced.
ARTICLE 12 A custom must be proved as a fact, according to
the rules of evidence.
Q: To what kind of laws does Art. 14 refer to?

A: It refers to:
1.
2.
Penal laws
Those for public security/safety.
NOTE: If these laws are violated, the violator becomes subject

to punishment regardless of citizenship, but the infraction
must be committed in the Philippine territory.
XPNs to Art.14:
1.
2.
Accepted Principles of International Law

Immunity from suit
12

3.
Treaty stipulations
ARTICLE 15 Laws relating to family rights and duties, or to

the status, condition and legal capacity of persons are
binding upon citizens of the Philippines, even though living
abroad.
GR: Real property as well as personal property is subject to

the law of the country where it is situated LEX REI SITAE
Real and personal property are subject to the laws of the
country where they are found, regardless of the nationality of
the owner.
Q: To what does Art. 15 refer to?

XPN: Intestate and Testate Succession with respect to:
A: It refers to PERSONAL STATUTES
1.
2.
3.
4.
Family rights and duties

Status
Condition
Legal capacity
Q: What will determine whether or not a person has

capacity to enter into contracts?
1.
2.
3.
Order of succession
Amount of successional rights
Intrinsic Validity of Testamentary Provisions
Accordingly, the National law of the person whose succession

is under consideration shall apply, regardless of the nature of
the property and the place where they are located.
A: National law of the person governs wherever he may be.
Hence, it is clear that this will only apply whenever succession

is involved, and dont you forget that!!!!
The Philippines follows the Nationality theory, not domiciliary

theory, as far as the personal status of a person is concerned.
Moreover, this will apply in intestate and testate succession,

and in the three cases abovementioned.
Q: What are Real statutes?
NOTE: It is essential that the descendant has descendable

interest in the property found in the Philippines for Art. 16
paragraph 2 to apply.
A: These are laws governing real property.

PRINCIPLE OF NATIONALITY
The Law follows the citizen wherever he goes.
REAL STATUTES
ARTICLE 16 Real property as well as personal property is
subject to the law of the country where it is situated.
However, intestate and testamentary successions, both with
respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national
law of the person whose succession is under consideration,
whatever may be the nature of the property and regardless
of the country wherein said property may be
found.
However, intestate and testamentary successions, both with
respect to the order of succession and to amount of
successional rights and to intrinsic validity of testamentary
provisions, shall be regulated by the national law of the
person whose succession is under consideration, whatever
may be the nature of the property and regardless of the
country wherein said property may be found.
Q: To what does Art. 16 refer to?
Our laws DO NOT have application in foreign countries.

Both apply to intestate and testate succession:
1.
2.
Order of succession
Amount of successional rights
Intrinsic validity of tetstamentary provision
Intrinsic validity refers only to testate succession. There can

be no intrinsic validity of tetstamentary provision in intestacy.
*Question that may be answered under Order of
succession: Who shall be entitled to succeed?
*Question that may be answered under amount of
successional rights: How much will the person entitled to
succeed be entitled to?
*Question that may be answered under intrinsic validity:
Are the testamentary provisions valid?
Q: If the validity of the will is put in issue, what law will
govern?
A: It depends, if it refers to extrinsic validity, the law if the
place where the will was executed governs. However, this is
not an absolute rule. Paragraph 2 of Art.17, relating to acts
A: REAL STATUTES or the law on property.
13

executed before diplomatic or consular officials or consular

officials would be the exception.
On the other hand, if it refers to intrinsic validity, the national
law of the decedent will govern.
The CFI Davao, relying on In re Kaufman (117 Cal. 286, 49 Pac

192) held that since Edward was a Californian citizen at the
time of his death, the successional rights and intrinsic validity
of his wills provisions are governed by Californian law, under
which, a testator has the right to dispose of his property in
the way he desires.
ISSUE: Whether or not the Philippine law applies
AZNAR v. CHRISTENSEN-GARCIA
(GRN L-16749 January 31, 1963)
National law, as contained in paragraph 2 of Art.16 refers to
the Conflict of law rule and not to the internal law of the
country of the person referred to.
The Renvoi Doctrine was applied in this case.
In his will executed in Manila on 05 March, 1951, Edward
Christensen
stated
the
following:
1.
2.
3.
That he has only 1 child, Maria Lucy Christensen

(Now, Mrs. Bernard Daney), and that he has no living
ascendants nor descendants except Maria Lucy;
That he gives to Maria Helen Christensen (married to
Eduardo Garcia) who is in no way related to him, P
3,600.00;
That he gives to Maria Lucy all the income from all
his property.
It is in accordance with said will, the executor, in his final

account and project partition, ratified the payment of P3,
600.00 to Helen, and proposed that the residue of the estate
be transferred to Maria Lucy.
Helen then opposed the project of partition insofar as it
deprives her of her legitime as an acknowledged natural
child, since in GRs Nos L- 11483-84, the SC declared her to be
an acknowledged natural child of Edward. She argued that
the distribution of Edwards property should be governed by
Philippine laws. She claimed that the law that should govern
should not be Californian internal law alone, but its entire
law, since several foreign elements are involved. She also
claims that under Sec. 946, Californian Code, the law
Edwards domicile, which is the Philippines apply.
In special proceeding 622, the CFI Davao, Hon. Vicente N. Cusi
Jr. presiding, in Special Proceeding No. 622 of said Court,
dated September 14, 1949, approving among other things the
final accounts of the executor to reimburse Maria Lucy
Christensen the amount of P 3,600.00 paid by her to Helen
Christensen Garcia as her legacy, and declaring Maria Lucy
Christensen entitled to the residue of the property to be
enjoyed during her lifetime, and in case of death without
issue, one-half of said residue to be payable to Mrs. Carrie
Louise C. Borton, etc., in accordance with the provisions of
the will of the testator Edward E. Christensen.
HELD: It is undisputed that at the time of his death, Edward

was a Californian citizen, and that he was domiciled in the
Philippines. He was born in New York, migrated to California
and resided there for 9 years, and in 1913 came to the
Philippines. Since then, he very rarely returned to California,
and only for short visits. He never owned or acquired a home
or properties in California.
Art. 16, NCC governs the validity of his testamentary
dispositions. What must be determined in this case is the
meaning of the term national law as used in Art. 16.
There is no single American law governing the validity of
testamentary provisions in the US, instead, each State of the
Union has its own private law applicable to its citizens only
and in force only within the state. Thus, the national law
indicated in Art.16 cannot refer to any general American law.
It can only refer to the private law of the state to which the
decedent is a citizenin this case, the private law of the
State of California.
The question now, therefore, is what is the law in California
governing the disposition of personal property.
The CFI held that under the California Probate Code, a
testator may dispose of his property by will in the form and
manner he desires. However, Helen invokes Art. 946, Civil
Code of California, which states: If there is no law to the
contrary, in the place where personal property is situated, it
is deemed to follow the person of its owner, and is governed
by the law of his domicile. She argued that under the
doctrine of renvoi, the question of the validity of the
testamentary provision should be referred back to the law of
the decedents domicile, which is the Philippines.
The problem is thiswhen the Conflict of Laws rule of the
forum refers a jural matter to a foreign law for decision, is the
reference to the corresponding conflict of law rule of that
foreign law, or to the purely internal rules of that foreign law,
i.e., to the totality of the foreign law, minus its conflict of laws
rule?
In the theory of the doctrine of renvoi the court of the forum
in determining the question before it, must take into account
the whole law of the other jurisdiction, but also its rules as to
conflict of laws, and then apply the law to the actual question
which the rules of the other jurisdiction prescribe. This may
be the law of the forum. The recognition of the renvoi theory
14

implies that the rules of the conflict of laws are to be

understood as incorporating not only the ordinary or internal
law of the foreign state or country, but its ruler, of the
conflict of laws as well. According to this theory 'the law of a
country' means the whole of its law.
We note that Article 946 of the California Civil Code as its
conflict of laws rule, while the rule applied in In re Kaufman,
supra, its internal law. If the law on succession and the
conflict of law rules of California are to be enforced jointly,
each in its own intended and appropriate sphere, the
principle cited In re Kaufman should apply to citizens living in
the State, but Article 946 should apply to such of its citizens
as are not domiciled in California but in other jurisdictions. The rule laid down of resorting to the law of the domicile in
the determination of matters with foreign element involved is
in accord with the general principle of American law that the
domiciliary law should govern in most matters or rights which
follow the person of the owner.
Maria Lucy argued that what Article 16 of the Civil Code of
the Philippines pointed out as the national law is the internal
law of California. But as above explained the laws of
California have prescribed two sets of laws for its citizens,
one for residents therein and another for those domiciled in
other jurisdictions. Reason demands that we should enforce
the California internal law prescribed for its citizens residing
therein, and enforce the conflict of law rules law for the
citizens domiciled abroad. If we must enforce the law of
California as in comity we are bound to do, as so declared in
Article 16 of our Civil Code, then we must enforce the law of
California in accordance with the express mandate thereof
and as above explained, i.e., apply the internal law for
residents therein, and its conflict of laws rule for those
domiciled abroad.
The conflict of law rule in California, Article 946, Civil Code,
precisely refers back the case, when a decedent is not
domiciled in California, to the law of his domicile, the
Philippines in the case at bar. The court of the domicile
cannot and should not refer the case back to California; such
action would leave the issue incapable of determination
because the case will then be like a football, tossed back and
forth between the two states, between the country of which
the decedent was a citizen and the country of his domicile.
The Philippine court must apply its own law as directed in the
conflict of law rule of the state of the decedent, if the
question has to be decided, especially as the application of
the internal law of California provides no legitime for children
while the Philippine law, Arts. 887 (4) and 894, Civil Code of
the Philippines, makes natural children legally acknowledged
forced heirs of the parent recognizing them.
ISSUE: Whether or not there was a preterition.
HELD: Preterition is the omission of one, some, or all of the

compulsory heirs in the direct line. The effect is that it will
annul the institution of heirs.
Total omission means that:
1.
2.
3.
He is not mentioned in the will or even if mentioned,

he is not instituted as an heir nor expressly
disinherited;
The preterited heir received nothing from the
testator during the latters lifetime by gratuitous
title; and
He has not received anything by intestate
succession.
Helen was not preterited because she has received a legacy.

Proper remedy: Art. 906 of the NCC which provides that any
compulsory heir to whom the testator has left by any title
less than the legitime belonging to him may demand that the
same be fully satisfied.
In other words, she can seek the difference of what was due
her and what was given to her by way of legacy.
NOTE: Natural citizenArt. 269 of the NCC defines it as
children born outside of wedlock by parents, who, at the time
of the conception of the former, were not disqualified by any
impediment to marry each other.
Surviving spouse is a compulsory heir but not in the direct
line (Acain v. IAC)
TESTATE ESTATE OF AMOS G. BELLIS v. EDWARD A. BELLIS et

al.
(GRN L-23678. June 6, 1967)
Amos G. Bellis, born in Texas, was "a citizen of the State of
Texas and of the United States." By his first wife, Mary E.
Mallen, whom he divorced, he had five legitimate children:
Edward A. Bellis, George Bellis (who pre-deceased him in
infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis
Allsman; by his second wife, Violet Kennedy, who survived
him, he had three legitimate children: Edwin G. Bellis, Walter
S. Bellis and Dorothy Bellis; and finally, he had three
illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis and
Miriam Palma Bellis.
On August 5, l952, Amos G. Bellis executed a will in the
Philippines, in which he directed that after all taxes,
obligations, and expenses of administration are paid for, his
distributable estate should be divided, in trust, in the
following order and manner: (a) $240,000.00 to his first wife,
Mary E. Mallen; (b) P120,000.00 to his three illegitimate
children, Amos Bellis, Jr., Maria Cristina Bellis, and Miriam
15

Palma Bellis, or P40,000.00 each and (c) after the foregoing

two items have been satisfied, the remainder shall go to his
seven surviving children by his first and second wives,
namely: Edward A. Bellis, Henry A. Bellis, Alexander Bellis,
and Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis, and
Dorothy E. Bellis, in equal shares.
Subsequently, or on July 8, 1958, Amos G. Bellis died, a
resident of San Antonio, Texas, U.S.A. His will was admitted to
probate in the Court of First Instance of Manila on September
l5, 1958.
On January 8, 1964, preparatory to closing its administration,
the executor submitted and filed its "Executor's Final
Account, Report of Administration and Project of Partition"
wherein it reported, inter alia, the satisfaction of the legacy
of Mary E. Mallen by the delivery to her of shares of stock
amounting to $240,000.00, and the legacies of Amos Bellis,
Jr., Maria Cristina Bellis and Miriam Palma Bellis in the
amount of P40,000.00 each or a total of P120.000.00. In the
project of partition, the executor - pursuant to the "Twelfth"
clause of the testator's Last Will and Testament - divided the
residuary estate into seven equal portions for the benefit of
the testator's seven legitimate children by his first and second
marriages.
On January 17, 1964, Maria Cristina Bellis and Miriam Palma
Bellis filed their respective oppositions to the project of
partition on the ground that they were deprived of their
legitimes as illegitimate children and, therefore, compulsory
heirs of the deceased.
ISSUE: Which law must applyTexas law or Philippine law?
HELD: The Texas law should apply.
In this regard, the parties do not submit the case on, nor even
discuss, the doctrine of renvoi, applied by this Court in Aznar
vs. Christensen Garcia, L-16749, January 31, 1963. Said
doctrine is usually pertinent where the decedent is a national
of one country, and a domicile of another. In the present
case, it is not disputed that the decedent was both a
national of Texas and a domicile thereof at the time of his
death. So that even assuming Texas has a conflict of law rule
providing that the domiciliary system (law of the domicile)
should govern, the same would not result in a reference back
(renvoi) to Philippine law, but would still refer to Texas law.
In the absence, however, of proof as to the conflict of law
rule of Texas, it should not be presumed different from ours.
Article 16, par. 2, and Art. 1039 of the Civil Code, render
applicable the national law of the decedent, in intestate or
testamentary successions, with regard to four items: (a) the
order of succession; (b) the amount of successional rights; (c)
the intrinsic validity of the provisions of the will; and (d) the
capacity to succeed.
Appellants would however counter that Article 17, paragraph

three, of the Civil Code, stating that -"Prohibitive laws
concerning persons, their acts or property, and those which
have for their object public order, public policy and good
customs shall not be rendered ineffective by laws, or
judgments promulgated, or by determinations or conventions
agreed upon in a foreign country." prevails as the exception
to Art. 16, par. 2 of the Civil Code aforequoted. This is not
correct. Precisely, Congress deleted the phrase,
"notwithstanding the provisions of this and the next
preceding article" when they incorporated Art. 11 of the old
Civil Code as Art. 17 of the new Civil Code, while reproducing
without substantial change the second paragraph of Art. 10
of the old Civil Code as Art. 16 in the new. It must have been
their purpose to make the second paragraph of Art. 16 a
specific provision in itself which must be applied in testate
and intestate successions. As further indication of this
legislative intent, Congress added a new provision, under Art.
1039, which decrees that capacity to succeed is to be
governed by the national law of the decedent.
It is therefore evident that whatever public policy or good
customs may be involved in our system of legitimes, Congress
has not intended to extend the same to the succession of
foreign nationals. For it has specifically chosen to leave, inter
alia, the amount of successional rights, to the decedent's
national Law. Specific provisions must prevail over general
ones.
Appellants would also point out that the decedent executed
two wills - one to govern his Texas estate and the other his
Philippine estate - arguing from this that he intended
Philippine law to govern his Philippine estate. Assuming that
such was the decedent's intention in executing a separate
Philippine will, it would not alter the law, for as this Court
ruled in Miciano vs. Brimo, 50 Phil. 867, 870, a provision in a
foreigner's will to the effect that his properties shall be
distributed in accordance with Philippine law and not with his
national law, is illegal and void, for his national law cannot be
ignored in regard to those matters that Article 10 - now
Article 16 - of the Civil Code states said national law should
govern.
Testate Estate of Joseph G. Brimo. JUAN MICIANO v. ANDRE

BRIMO
(GRN 22595 November 1, 1924)
The partition of the estate left by the deceased Joseph G.
Brimo, is in question in this case.
The judicial administrator of this estate filed a scheme of
partition. Andre Brimo, one of the brothers of the deceased,
opposed it. The court, however, approved it.
16

The errors which the oppositor-appellant assigns are: (1) The

approval of said scheme of partition; (2) the denial of his
participation in the inheritance; (3) the denial of the motion
for reconsideration of the order approving the partition; (4)
the approval of the purchase made by Pietro Lanza of the
deceased's business and the deed of transfer of said business;
and (5) the declaration that the Turkish laws are impertinent
to this cause, and the failure not to postpone the approval of
the scheme of partition and the delivery of the deceased's
business to Pietro Lanza until the receipt of the depositions
requested in reference to the Turkish laws.
The appellant's opposition is based on the fact that the
partition in question puts into effect the provisions of Joseph
G. Brimo's will which are not in accordance with the laws of
his Turkish nationality, for which reason they are void as
being in violation of article 10 of the Civil Code which, among
other things, provides the following:
"Nevertheless, legal a testamentary successions, in respect to
the order of succession as well as to the amount of the
successional rights and the intrinsic validity of their
provisions, shall be regulated by the national law of the
person whose succession is in question, whatever may be the
nature of the property or the country in which it may be
situated."
But the fact is that the oppositor did not prove that said
testamentary dispositions are not in accordance with the
Turkish laws, inasmuch as he did not present any evidence
showing what the Turkish laws Are on the matter, and in the
absence of evidence on such laws, they are presumed to be
the same as those of the Philippines. (Lim and Lim vs.
Collector of Customs, 36 Phil., 472.)
It has not been proved in these proceedings What the Turkish
laws are. He, himself, acknowledges it when he desires to be
given an opportunity to present evidence on this point; so
much so that he assigns as an error of the court in not having
deferred the approval of the scheme of partition until the
receipt. of certain testimony requested regarding the Turkish
laws on the matter.
The refusal to give the oppositor another opportunity to
prove such laws does not constitute an error. It is
discretionary with the trial court, and., taking into
consideration that the oppositor was granted ample
opportunity in introduce competent evidence, we find no
abuse of discretion on the part of the court in this particular.
There is, therefore, no evidence in the record that the
national law of the testator Joseph G. Brimo was violated in
the testamentary dispositions in question which, not being
contrary to our laws in force, must be complied with and
executed.
Therefore, the approval of the scheme of partition in this

respect was not erroneous.
In regard to the first assignment of error which deals with the
exclusion of the herein appellant as a legatee, inasmuch as he
is one of the persons designated as such in the will, it must be
taken into consideration that such exclusion is based on the
last part of the second clause of the will, which says:
"Second. I likewise desire to state that although, by law, I am
a Turkish citizen, this citizenship having been conferred upon
me by conquest and not by free choice, nor by nationality
and, on the other hand, having resided for a considerable
length of time in the Philippine Islands where I succeeded in
acquiring all of the property that I now possess, it is my wish
that the distribution of my property and everything in
connection with this, my will, be made and disposed of in
accordance with the laws in force in the Philippine Islands,
requesting all of my relatives to respect this wish, otherwise, I
annul and cancel beforehand whatever disposition found in
this will favorable to the person or persons who fail to comply
with this request."
The institution of legatees in this will is conditional, and the
condition is that the instituted legatees must respect the
testator's will to distribute his property, not in accordance
with the laws of his nationality, but in accordance with the
laws of the Philippines.
If this condition as it is expressed were legal and valid, any
legatee who fails to comply with it, as the herein oppositor
who, by his attitude in these proceedings has not respected
the will of the testator, as expressed, is prevented from
receiving his legacy.
The fact is, however, that the said condition is void, being
contrary to law, for article 792 of the Civil Code provides the
following: "Impossible conditions and those contrary to law
or good morals shall be considered as not imposed and shall
not prejudice the heir or legatee in any manner whatsoever,
even should the testator otherwise provide."
Said condition then, in the light of the legal provisions above
cited, is considered unwritten, and the institution of legatees
in said will is unconditional and consequently valid and
effective even as to the herein oppositor.
It results from all this that the second clause of the will
regarding the law which shall govern it, and to the condition
imposed upon the legatees, is null and void, being contrary to
law.
Renvoi Doctrine
Q: When does the Renvoi Doctrine apply?
17

2.
Prohibitive laws concerning persons, their acts or

property, and those which have for their object public
order, public policy and good customs shall not be
rendered ineffective by laws or judgments
promulgated, or by determinations or conventions
agreed upon in a foreign country.
A: It is applied when one state follows the Domiciliary theory,

and another state follows the Nationality theory
In the Aznar case, the Renvoi Doctrine was applied by the
Philippines by not tossing the problem to California and thus
applying the Philippine law.
Q: What will govern the extrinsic validity of contracts?

On the other hand, in Bellis case, the Renvoi doctrine was not
applied.
Likewise, in the case of Miciano v. Brimo, the Renvoi doctrine
was not applied.
NOTE:
A: As to extrinsic validity, the law of the place of the

execution of the contract will govern. This is subject to the
exception in par. 2 of Art. 17.
Q: What will govern the intrinsic validity of contractual
provisions?
Article 14- Penal Statutes

Article 15- Personal Statutes
Article 16- Real Statutes
A: The law that will govern is:

1.
Law agreed upon or chosen by the parties

(INTENTION). Otherwise stated, if the parties
adopted or chose a specific law to govern in case of
dispute, which law will govern.
2.
In the absence of such agreement and both parties

are of the same nationality, the national law will
apply (NATIONALITY LAW);
3.
If they are of different nationalities, it will depend on

the cause of the issue:
ARTICLE 17 The forms and solemnities of contracts, wills,

and other public instruments shall be governed by the laws
of the country in which they are executed.
When the acts referred to are executed before the
diplomatic or consular officials of the Republic of the
Philippines in a foreign country, the solemnities established
by Philippine laws shall be observed in their execution.
Prohibitive laws concerning persons, their acts or property,
and those which have for their object public order, public
policy and good customs shall not be rendered ineffective
by laws or judgments promulgated, or by determinations or
conventions agreed upon in a foreign country.
a.
b.
NOTE: Article 17 has no application to the intrinsic validity of
the instruments mentioned therein.
GR: The forms and solemnities of contacts, wills, and other
public instruments are governed by the laws of the country in
which they are executed (PLACE OF EXECUTION or LEX LOCI
CELEBRATIONIS).
As regards the nature of the contract--- law

of the place where the contract was
perfected governs.
As regards performance or fulfillmentlaw
of the place of performance.
If none of the above applies, then it will be governed by the

LAW OF THE DOMICILE OF THE DEBTOR.
NOTES
Par.1 is the general rule; while pars. 2 and 3 are the
exceptions.
XPNs:
1.
When the acts referred to are executed before the

diplomatic or consular officials of the Republic of the
Philippines in a foreign country, the solemnities
established by Philippine laws shall be observed in
their execution.
BASIS: Principle of Extraterritoriality. They are
considered as extensions of the territory of the
Philippines.
18

PERSONS
Persons refer to any being natural or juridical, capable of
possessing legal rights and obligations.
Q: What are the two kinds of persons under the law?
Juridical Personality
Q: What is juridical personality?
A: This is the same as Personality. Birth marks the beginning
of juridical personality.
A:
Juridical Capacity
1.
2.
Natural-human beings created by God through the

intervention of the parents
Juridical- those created by law; artificial beings
created by law with certain powers and
prerogatives. Examples are corporations and
partnerships.
Q: Can human beings die?
Q: What is Juridical Capacity?

A: It is the fitness to be the subject of legal relations. It is
inherent in natural persons, and lost only through death.
It cannot be regulated, reduced, limited or abolished even by
law; because it is lost only through death, except in case of
the estate of the deceased persons which continues his
personality.
A: Yes
Q: When did you acquire it?
Q: How about juridical persons?
A: Yes. Legal death!
A: As long as a person is born in accordance with law, he

acquires juridical capacity.
Q: Do they have the same rights and obligations?
Q:
A: No.
A: Because they are creations of law. What the law creates, it

can abolish. Unlike in natural persons, the juridical capacity
co-exists with the person.
NOTE: Natural persons can do anything as long as it is not

prohibited by law. On the other hand, juridical persons are
entities of limited power; they can do only such acts that are
allowed or granted to it by law.
If a particular act is not allowed to be done by a juridical
persons but the same is done then the act is ULTRA VIRES.
Why
is
it
not
inherent
in
juridical
persons?
Q: What do you mean by inherent?

A: This means that Juridical capacity is born with the person
and continuous to exist as long as the natural person exists. It
need not be given to natural persons; all that is necessary is
that the person should be born in accordance with the law.
Natural persons v. Juridical persons

Q: Distinguish between natural and juridical persons?
A: Natural persons have broader rights and powers not
available to Juridical persons. On the other hand, Juridical
persons have limited rights and powers, generally only those
given by law.
Natural persons can do anything, provided it is not prohibited
by law. On the hand, juridical persons can only do those acts
allowed by law.
ARTICLE 37 Juridical capacity, which is the fitness to be the
subject of legal relations, is inherent in every natural
person, and is lost only through death. Capacity to act,
which is the power to do acts with legal effect, is acquired
and may be lost.
NOTE: Juridical personality or capacity is not necessarily coterminus with the life of a person.
Capacity to Act
Q: What is capacity to act?
A: It is the power to do acts with legal effect. It may be
acquired and may be lost.
Q: When a person has Juridical capacity, does it follow that
such person has capacity to act?
A: No. A person may have JC but not necessarily CTA. But if a
person has CTA, he necessarily has JC.
Q: Distinguish between Juridical capacity and Capacity to
act?
19

A:
JURIDICAL CAPACITY
Fitness to be the subject
of legal relations
Inherent
Only through death
Can exist without CTA
No limitations
CAPACITY TO ACT
Power to do acts with
legal effects
Through the fulfillment
of special legal requisites
Though death and other
legal causes
Cannot exist without
juridical capacity
Article 38, 39, among
others
Q: If the natural person ceases to exist, can his juridical

personality survive?
A: Yes.
ANGEL T. LIMJOCO v. INTESTATE ESTATE OF PEDRO O.

FRAGANTE
(GR No. L-770 April 27, 1948)
Pedro 0. Fragante applied for a certificate of public
convenience before the Public Service Commission (PSC) to
install, maintain and operate an ice plant in San Juan, Rizal.
During the pendency of his application, Pedro died.
Then, on 21 May, 1946, the PSC ordered that a certificate of
public convenience be issued to the intestate Estate of Pedro
Fragante, since public interest and convenience will be
promoted in a proper and suitable manner by authorizing the
operation and maintenance of another ice plant of 2-1/2 tons
in San Juan. It authorized the Intestate Estate, through its
Special Administrator, to maintain and operate such ice plant
and to sell the assignment produced therein.
ISSUE: Whether or not the estate of Fragante is a person
HELD: The SC of Indiana has held that since a decedents
estate is in law regarded as a person, a forgery committed
after the death of the man whose name purports to be signed
to the instrument may be prosecuted as with the intent to
defraud the estate. It held that PERSON in its legal
signification, is a generic termit includes ARTIFICIAL and
NATURAL persons.
A natural person is a human being. On the other hand,
artificial persons include (1) a collection or succession of
natural persons forming a corporation; (2) a collection of
property to which the law attributes the capacity of having
rights and duties.
The second class is recognized only to a limited extent
examples are the estate of a bankrupt or deceased person.
Philippine cases also recognize the correctness of said

definitions. They declare that it is sufficient, in pleading a
claim against a decedents estate, to designate the defendant
as the estate of the deceased person, naming him. In fact,
unless this definition is accepted, there would be a failure of
justice, as when forgery is committed after the death of the
person whose name is forged; and this is a result to be
avoided if it can be done consistent with principle.
It seems reasonable that the estate of a decedent should be
regarded as an artificial person. It is the creation of law for
the purpose of enabling a disposition of the assets to be
properly made; and, although natural persons as heirs,
devisees, or creditors, have an interest in the property, the
artificial creature is a distinct legal entity.
Here, there would also be a failure of justice unless the estate
of Pedro O. Fragante is considered a "person", for the
quashing of the proceedings for no other reason than his
death would entail prejudicial results to his investment
amounting to P35.000.00 as found by the commission, not
counting the expenses and disbursements which the
proceeding can be presumed to have occasioned him during
his lifetime, let alone those defrayed by the estate thereafter.
Petitioner raises the decisive question of whether or not the
estate of Pedro O. Fragante can be considered a "citizen of
the Philippines" within the meaning of section 16 of the
Public Service Act, which states that certificates of public
convenience or certificates of public convenience and
necessity can "only to citizens of the Philippines or of the
United States or to corporations, copartnerships,
associations, or joint-stock companies constituted and
organized under the laws of the Philippines.
The underlying reason for the legal fiction by which, for
certain purposes, the estate of a deceased person is
considered a "person" is the avoidance of injustice or
prejudice resulting from the impossibility of exercising such
legal rights and fulfilling such legal obligations of the
decedent as survived after his death unless the fiction is
indulged.
Clearly, within the Constitutions framework, the estate of
Pedro Fragante should be considered as an artificial or
juridical person for the purposes of the settlement and
distribution of his estate which, of course, include the
exercise during the judicial administration thereof of those
rights and the fulfillment of those obligations of his which
survived after his death. One of those rights was the one
involved in his pending application before the Public Service
Commission in the instant case, consisting in the prosecution
of said application to its final conclusion. As stated above, an
injustice would ensue from the opposite course.
If by legal fiction his personality is considered extended so
that any debts or obligations left by, and surviving, him may
20

be paid, and any surviving rights may be exercised for the

benefit of his creditors and heirs, respectively, we find no
sound and cogent reason for denying the application of the
same fiction to his citizenship, and for not considering it as
likewise extended for the purposes of the aforesaid
unfinished proceeding before the Public Service Commission.
Pedro O. Fragante was a Filipino citizen, and as such, if he had
lived, in view of the evidence of record, he would have
obtained from the commission the certificate for which he
was applying. The situation has suffered but one change, and
that is, his death. His estate was that of a Filipino citizen. And
its economic ability to appropriately and adequately operate
and maintain the service of an ice plant was the same that it
received from the decedent himself. In the absence of a
contrary showing, which does not exist here, his heirs may be
assumed to be also Filipino citizens; and if they are not, there
is the simple expedient of revoking the certificate or enjoining
them from inheriting it.
Restrictions on the Capacity to Act

Q: What are the restrictions on the Capacity to Act?
A:
ARTICLE 38 Minority, insanity or imbecility, the state of
being deaf-mute, prodigality and civil interdiction are mere
restrictions on the capacity to act, and do not exempt the
incapacitated person from certain obligations, as when the
latter arise from his acts or from property relations, such as
easements.
Q: What are the limitations on CTA?
A: The following are restrictions on CTA:
1.
2.
3.
4.
5.
6.
Estate as a Juridical Entity
Minority
Insanity
Imbecility
The state of being deaf-mute
Prodigality
Civil interdiction
Q: What is the nature of an estate?

Modifications of the Capacity to Act
A: The Estate should be considered as an artificial or juridical
person for the purposes of the settlement and distribution of
his estate which include the exercise during the juridical
administration thereof of these rights and fulfillment of
obligations which survived after the death of the natural
person.
Dean Aligada: The wisdom of such pronouncement was
questioned because the estate is not created by law. As such,
it cannot be given personality and should not be considered
as a Juridical person.
NOTE: There may be an occasion where a person may die but
upon his death there are still obligations which are owing to
him or which he owes. There are situations where Personality
must survive the dead, and the estate of the deceased person
will continue his personality.
If a person dies with an estate, the personality survives the
decedent because the estate is considered as an extension of
the deceased person.
Q: What are the modifications on the capacity to act?

A:
ARTICLE 39 The following circumstances, among others,
modify or limit capacity to act: age, insanity, imbecility, the
state of being deaf-mute, penalty, prodigality, family
relations, alienage, absence, insolvency and trusteeship. The
consequences of these circumstances are governed in this
Code, other codes, the Rules of Court, and in special laws.
Capacity to act is not limited on account of religious belief or
political opinion.
A married woman, 21 years of age or over, is qualified for all
acts of civil life, except in cases specified by law.
NOTE: This is broader in scope than art 38, but enumerates
situations which merely modify the capacity to act.
Q: What is the significance of Articles 38 and 39?
If a person dies without an estate, then his juridical

personality or capacity ends upon death.
A: They make an overview of the situation that qualifies a

persons power to undertake acts which can produce legal
effects.
The estate of the decedent is considered as a juridical person,

meaning an artificial being created by law and given rights by
law.
Q: Is marriage a limitation on CTA of women?

A: Under the NCC, marriage seems to be a limitation on CTA
because a married woman is denied certain acts which she
could very well do when she is still single.
21

However, under the Family Code, marriage is no longer a

limitation.
XPN: If the child had an intra-uterine life of less than 7

months, it must survive for at least 24 hours after its
complete delivery from the maternal womb (this is
mandatory). The cause of death is immaterial.
Q: Is viability of the child necessary in the exception?
ARTICLE 40 Birth determines personality; but the conceived

child shall be considered born for all purposes that are
favorable to it, provided it be born later with the conditions
specified in the following article.
ARTICLE 41For civil purposes, the foetus is considered born
if it is alive at the time it is completely delivered from the
mothers womb. However, if the foetus had an intra-uterine
life of less than 7 months, it is not deemed born if it dies
within 24 hours after its complete delivery from the
maternal womb.
A: No. What is necessary is that it is alive at the time it is

born.
NOTE: The requirement of human form has been eliminated,
because it has been proved by medical science that no
monster can be born of human beings.
The cutting of the umbilical cord is a condition for complete
delivery.
Q: Can a conceived/unborn child be acknowledged?
ARTICLE 42 Civil Personality is extinguished by death.

The effect upon the rights and obligations of the deceased is
determined by law, by contract and by will.
A: Yes. A conceived child may be acknowledged even before

it is born. Recognition or acknowledgement of an unborn
child is an act beneficial to the child.
Q: When does personality begin?

A: There are two kinds of Personality:
1.
2.
Actual Personalityat the time of birth; begins from

the moment of birth.
Presumptive Personality as acquired from the
moment or at the time of conception.
PRESUMPTIVE PERSONALITY
Q: Does the law grant presumptive personality?

A: Yes. Under Art. 40, the conceived child shall be considered
born for all purposes that are favorable to it, provided it be
born later with the conditions specified in the following
article.
Two conditions must exist, accordingly:
1.
2.
Civil Beneficial purpose

That the child be born later in accordance with law.
NOTE: The law says that the fetus is considered born only for
civil purposes (Art. 41) which are beneficial (Art. 40).
Q: When is a fetus considered born?
A:
GR: If alive at the time it is completely delivered from the
mothers womb, provided it had an intra-uterine life of not
less than 7 months
ANTONIA L. DE JESUS et al. v. CESAR SYQUIA

(GRN 39110 November 28,1933)
Cesar Syquia was of the age of twenty-three years, and an
unmarried scion of a prominent family in Manila, being
possessed of a considerable property in his own right. His
brother-in-law, Vicente Mendoza is the owner of a barber
shop in Tondo, where the defendant was accustomed to go
for tonsorial attention. In the month of June Antonia Loanco,
a likely unmarried girl of the age of twenty years, was taken
on as cashier in this barber shop. Syquia was not long in
making her acquaintance and amorous relations resulted, as
a consequence of which Antonia was gotten with child and a
baby boy was born on June 17, 1931. The defendant was a
constant visitor at the home of Antonia in the early months of
her pregnancy, and in February, 1931, he wrote and placed in
her hands a note directed to the padre who was expected to
christen the baby. This note was as follows:
"Saturday, 1.30 p. m.
"February 14, 1931
"Rev. FATHER,
"The baby due in June is mine and I should like for my name to be given to
it.
"CESAR SYQUIA"
When Antonia was able to leave the hospital, Syquia took

her, with her mother and the baby, to a house at No. 551
Camarines Street, Manila, where they lived together for
about a year in regular family style, all household expenses,
including gas and electric light, being defrayed by Syquia. In
course of time, however, the defendant's ardor abated and,
when Antonia began to show signs of a second pregnancy,
22

the defendant decamped, and he is now married to, another

woman. A point that should here be noted is that when the
time came for christening the child, the defendant, who had
charge of the arrangements for this ceremony, caused the
name Ismael Loanco to be given to him, instead of Cesar
Syquia, Jr., as was at first planned.
ISSUE: Whether or not the note to the padre in connection
with the letters written by the defendant to the mother
during pregnancy proves an acknowledgement of paternity?
HELD:
Upon this point we have no hesitancy in holding that the
acknowledgment thus shown is sufficient. It is a universal rule
of jurisprudence that a child, upon being conceived, becomes
a bearer of legal rights and capable of being dealt with as a
living person. The fact that it is as yet unborn is no
impediment to the acquisition of rights. The problem here
presented of the recognition of an unborn child is really not
different from that presented in the ordinary case of the
recognition of a child already born and bearing a specific
name. Only the means and resources of identification are
different. Even a bequest to a living child requires oral
evidence to connect the particular individual intended with
the name used.
It seems to us that the only legal question that can here arise
as to the sufficiency of the acknowledgment is whether the
acknowledgment contemplated in subsection 1 of article 135
of the Civil Code must be made in a single document or may
be made in more than one document, of indubitable
authenticity, written by the recognizing father. Upon this
point we are of the opinion that the recognition can be made
out by putting together the admissions of more than one
document, supplementing the admission made in one letter
by an admission or admissions made in another. In the case
before us the admission of paternity is contained in the note
to the padre and the other letters suffice to connect that
admission with the child then being carried by Antonia L. de
Jesus. There is no requirement in the law that the writing
shall be addressed to one, or any particular individual. It is
merely required that the writing shall be indubitable.
the birth of this child the defendant supplied a home for it

and the mother, in which they lived together with the
defendant. This situation continued for about a year, and
until Antonia became enceinte a second time, when the idea
entered the defendant's head of abandoning her. The law
fixes no period during which a child must be in the
continuous possession of the status of a natural child; and the
period in this case was long enough to evince the father's
resolution to concede the status. The circumstance that he
abandoned the mother and child shortly before this action
was started is unimportant. The word "continuous" in
subsection 2 of article 135 of the Civil Code does not mean
that the concession of status shall continue forever, but only
that it shall not be of an intermittent character while it
continues.
What has been said disposes of the principal feature of the
defendant's appeal. With respect to the appeal of the
plaintiffs, we are of the opinion that the trial court was right
in refusing to give damages to the plaintiff, Antonia Loanco,
for supposed breach of promise to marry. Such promise is not
satisfactorily proved, and we may add that the action for
breach of promise to marry has no standing in the civil law,
apart from the right to recover money or property advanced
by the plaintiff upon the faith of such promise. This case
exhibits none of the features necessary to maintain such an
action. Furthermore, there is no proof upon which a
judgment could be based requiring the defendant to
recognize the second baby, Pacita Loanco.
Q: What is the status of a recognition extended by a
putative father to his conceived child?
A: It is conditionally valid. The validity of such
acknowledgement depends upon the child being born later in
accordance with law.
Q: Will donations made to an unborn child be valid?
A: It depends as to the kind of donation.
1.
2.
The second question that presents itself in this case is

whether the trial court erred in holding that Ismael Loanco
had been in the uninterrupted possession of the status of a
natural child, justified by the conduct of the father himself,
and that as a consequence, the defendant in this case should
be compelled to acknowledge the said Ismael Loanco, under
No. 2 of article 135 of the Civil Code. The facts already stated
are sufficient, in our opinion, to justify the conclusion of the
trial court on this point, and we may add here that our
conclusion upon the first branch of the case that the
defendant had acknowledged this child in the writings above
referred to must be taken in connection with the facts found
by the court upon the second point. It is undeniable that from
Simple donationpurely gratuitous, it is beneficial

hence it is valid.
Onerous or honorary donationnot beneficial,
hence it is not valid.
If you make a donation to a conceived child, it will be

conditionally valid and if he does not acquire personality then
the donation becomes void.
Q: In order that a child be considered born, is it necessary
that the child be viable (ability to survive)?
A: No.
Q: When is a child considered born?
23

A:
GR: For civil purposes, the fetus is considered born if it is alive
at the time it is completely delivered from the mothers
womb. Hence, no matter how short it had lived, as long as it
is alive when it has acquired personality.
Q: What do you mean by complete delivery?
A: Complete delivery means that the umbilical cord was cut
already.
XPN: However, if the fetus had an intra-uterine life of less
than seven months, it is not deemed born if it dies within
twenty-four hours after its complete delivery from the
maternal womb.
NOTE: So as not to acquire personality under the exception,
the cause of the death is immaterial.
Q: Suppose it is a case of an aborted child, can damages be
recovered from the abortionist?
A: No.
ANTONIO GELUZ v. THE HON. COURT OF APPEALS and

OSCAR LAZO
(GRN L-16439 July 20, 1961)
This case involves an action for actual damages brought by the
husband of a woman who had an abortion. The SC ruled that if a
physician operates on a pregnant woman and succeeds in aborting
the foetus, the parents would normally be entitled only to moral
damages (distress, disappointment of parental expectation) and to
exemplary damages, if warranted, but not to actual damages
(injury to rights of the deceased, his right to life and physical
integrity). Article 2206 of NCC which grants P 3,000.00 for the
death of a person does not cover the case of an unborn foetus,
since this is not endowed with personality. And even moral
damages cannot be recovered by the husband of a woman from
the physician if said husband took no steps to investigate the
causes of the abortion. In this case, only moral damages were
awarded to the patents.
This petition for certiorari brings up for review the question

whether the husband of a woman, who voluntarily procured
her abortion, could recover damages from the physician who
caused the same.
The facts are set forth in the majority opinion as follows:
"Nita Villanueva came to know the defendant (Antonio Geluz)
for the first time in 1948-through her aunt Paula Yambot. In
1950 she became pregnant by her present husband before
they were legally married. Desiring to conceal her pregnancy
from her parent, and acting on the advice of her aunt, she
had herself aborted by the defendant. After her marriage
with the plaintiff, she again became pregnant. As she was

then employed in the Commission on Elections and her
pregnancy proved to be inconvenient, she had herself
aborted again by the defendant in October 1958. Less than
two years later, she again became pregnant. On February 21,
1955, accompanied by her sister Purificacion and the latter's
daughter Lucida, she again repaired to the defendant's clinic
on Carriedo and P. Gomez streets in Manila, where the three
met the defendant and his wife. Nita was again aborted, of a
two month old foetus, in consideration of the sum of fifty
pesos, Philippine currency. The plaintiff was at this time in
the province of Cagayan, campaigning for his election to the
provincial board; he did not know of, nor gave his consent to,
the abortion."
It is the third and last abortion that constitutes plaintiffs basis
in filing this action and award of damages.
ISSUE: Whether or not the award of damages is proper.
HELD: The Court of Appeals and the trial court predicated the
award of damages in the sum of P3, 000.00 upon the
provisions of the initial paragraph of Article 2206 of the Civil
Code of the Philippines. This we believe to be error, for the
said article, in fixing a minimum award of P3,000 for the
death of a person, does not cover the case of an unborn
foetus that is not endowed with personality. Being incapable
of having rights and obligations.
Since an action for pecuniary damages on account of personal
injury or death pertains primarily to the one injured, it is easy
to see that if no action for such damages could be instituted
on behalf of the unborn child on account of the injuries it
received, no such right of action could derivatively accrue to
its parents or heirs. In fact, even if a cause of action did
accrue on behalf of the unborn child, the same was
extinguished by its pre-natal death, since no transmission to
anyone can take place from one that lacked juridical
personality (or juridical capacity, as distinguished from
capacity to act). It is no answer to invoke the provisional
personality of a conceived child (conceptus pro nato habetur)
under Article 40 of the Civil Code, because that same article
expressly limits such provisional personality by imposing the
condition that the child should be subsequently born alive:
"provided it be born later with the conditions specified in
the following article". In the present case, there is no
dispute that the child was dead when separated from its
mother's womb.
This is not to say that the parents are not entitled to collect
any damages at all. But such damages must be those inflicted
directly upon them, as distinguished from the injury or
violation of the rights of the deceased, his right to life and
physical integrity. Because the parents cannot expect either
help, support or services from an unborn child, they would
normally be limited to moral damages for the illegal arrest of
the normal development of the spes hominis that was the
24

foetus, i.e., on account of distress and anguish attendant to

its loss, and the disappointment of their parental
expectations (Civ. Code, Art. 2217), as well as to exemplary
damages, if the circumstances should warrant them (Art.
2230). But in the case before us, both the trial court and the
Court of Appeals have not found any basis for an award of
moral damages, evidently because the appellee's indifference
to the previous abortions of his wife, also caused by the
appellant herein, clearly indicates that he was unconcerned
with the frustration of his parental hopes and affections. The
lower court expressly found, and the majority opinion of the
Court of Appeals did not contradict it, that the appellee was
aware of the second abortion; and the probabilities are that
he was likewise aware of the first. Yet despite the suspicious
repetition of the event, he appeared to have taken no steps
to investigate or pinpoint the causes thereof, and secure the
punishment of the responsible practitioner. Even after
learning of the third abortion, the appellee does not seem to
have taken interest in the administrative and criminal cases
against the appellant. His only concern appears to have been
directed at obtaining from the doctor a large money
payment, since he sued for P50,000 damages and P3,000
attorneys fees, an "indemnity" claim that, under the
circumstances of record, was clearly exaggerated.
NOTE: The Rule on Survivorship is intended to substitute

facts. Thus, if facts are known, the Rule of Survivorship will
not apply.
ARTICLE 43 If there is doubt, as between 2 or more persons

who are called to succeed each other, as to which of them
died first, whoever alleges the death of one prior to the
other, shall prove the same; in the absence of proof, it is
presumed that they died at the same time and there shall be
no transmission of rights from one to the other.
Rules on Survivorship
Q: What are the laws governing the rules on survivorship?
A:
1.
2.
Civil Code (Article 43) -- this applies only when

succession is involved.
Rules of Court (Rule 131, Sec 5 (j)) regardless of
whether succession is involved or not. But it applies
only if the cause of death is a calamity.
Q: What are the distinctions between these 2 laws?

A:
Civil Code
Rules of Court
Cause of death is immaterial;
Enumerates the cause of

death;
Does not apply in cases
involving succession
Applies if
involved;
succession
is
25

EXECUTIVE ORDER NO. 209

THE FAMILY CODE OF THE PHILIPPINES
July 6, 1987
MARRIAGE
Q: What is the status of an agreement between a married

man and woman to part ways or live separately?
A: Void
Q: What kind of marriage is contemplated by law?
HISTORY OF THE MARRIAGE LAW IN THE COUNTRY

Marriage law is never contained in the Spanish Code and
before the NCC, our Marriage Law was contained in a Special
Law (ACT 3613).
A: The law contemplates a heterosexual marriage and a

ceremonial marriage.
The FC expressly requires that the parties to a marriage
should be of different sexes.
Q: What cannot be the subject of stipulation?

A: The following cannot be the subject of Stipulation:
1.
2.
3.
Incidents;
Nature; and
Consequences of Marriage
OLD MARRIAGE LAW
Our Old Marriage Law contained only two essential

requisites:
1.
2.
Legal Capacity of the contracting parties; and

Consent
NOTE: Marriage ceremony became a requisite only by

implication.
FAMILY CODE
Insofar as the Essential requisites are concerned, the FC
referred back to the Old Marriage Law.
Chapter 1. Requisites of Marriage
ARTICLE 1 Marriage is a special contract of permanent union
between a man and a woman entered into in accordance
with law for the establishment of conjugal and family life. It
is the foundation of the family and an inviolable social
institution whose nature, consequences, and incidents are
governed by law and not subject to stipulation, except that
marriage settlements may fix the property relations during
the marriage within the limits provided by this Code.
NOTE: Under the CC, the definition of marriage is not
complete. It does not say who can enter into the contract of
marriage or what is the purpose of marriage.
Q: What is the status of an agreement between a single man
and woman to part ways or live separately?
A: Valid
Q: How about marriages between persons who undergone

transsexual operation?
A: There is no jurisprudence yet on this matter. But there is a
case right now that is pending in the SC involving a man who
underwent transsexual operation performed in Bangkok. He
wanted to get married so he filed a petition in court for a
change in the entries in his birth certificate. He wanted to
change his name and his gender from male to female.
The OSG was not furnished with a copy of the petition so
when the scheduled date for hearing came, there was no
opposition so the ISG was declared in default and the trial
court granted the petition.
The OSG was now furnished with a copy of the decision and it
appealed to the SC. It argued that (1) although petitioner had
undergone sexual transformation, this is not enough to
convert him from male to female (he did not have a uterus)
and (2) what was created by the doctor was simply an
opening or a wound (still not the same as what a woman
has).
Q: Under the CC, does the law require difference in sex
before a marriage can be celebrated?
A: No, There was no provision indicating who can enter in a
contract of marriage. There was only an implication that such
was intended by the CC to be between a man and a woman.
It was in the FC that the first time the law was explicit in
stating that requirement twice. Under Art.1 in the definition
of marriage; and Art. 5 by stating any male or female of the
age 16 years or upwards not under any impediments may
contract marriage.
ARTICLE 2 No marriage shall be valid, unless these essential
requisites are present:
(1) Legal capacity of the contracting parties who must be a
male and a female; and
(2) Consent freely given in the presence of the solemnizing
officer.
26

ARTICLE 3 The formal requisites of marriage are:

Common-Law Marriage
(1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases provided for
in Chapter 2 of this Title; and
(3) A marriage ceremony which takes place with the
appearance of the contracting parties before the
solemnizing officer and their personal declaration that they
take each other as husband and wife in the presence of not
less than two witnesses of legal age.
Q: What do you mean by common-law-marriage?

A:It is the union between 2 persons who live together as
husband and wife by mere agreement. This is not recognized
by law.
NOTE: Only Ceremonial marriages are recognized by law.
Essential Requisites of Marriage

Q: What are the essential requisites of marriage?
Tomas Eugenio Sr. v. Hon. Alejandro M. Velez

(G.R. No. 85140, May 17, 1990)
A:
1.
2.
Legal capacity of the contracting parties who must

be male or female; and
Consent freely given before the Solemnizing officer.
Q: How do you determine the Legal Capacity of the

Contracting Parties?
A: It is determined by:
1.
2.
3.
Difference in sex
Age
Absence of impediments in the relationship
(impediments under Art. 37 and Art.38).
Under the Civil Code, difference in sex is not provided for.

The FC adopted a uniform age of both parties. Both parties
have to be at least 18 years of age at the time of celebration
of marriage.
Q: What do you mean by consent?
A: Consent must not only be free, it must also be intelligent.
It refers to the consent of the contracting parties and not to
parental consent. Pregnancy is not a proof of consent to
marriage.
NOTE: Free and Intelligent Consentgives rise to Legal
Consent
Formal Requisites of Marriage
1.
2.
3.
Authority of the Solemnizing Officer, except if either or

both of the Contracting parties believed in good faith
that the solemnizing officer had authority to solemnize
the Marriage.
Valid marriage license, except Marriages exempt from
the license requirement
Marriage ceremony
A man and a woman were not legally married but they cohabitated
for many years and represented themselves as husband and wife.
They may be considered as legally married in common law
jurisdictions but not in the Philippines.
Unaware of the death on 28 August 1988 of Vitaliana Vargas

(Vitaliana, for brevity), her full blood brothers and sisters,
herein private respondents (Vargases, for brevity) filed on 27
September 1988, a petition for habeas corpus before the RTC
of Misamis Oriental (Branch 20, Cagayan de Oro City) alleging
that Vitaliana was forcibly taken from her residence
sometime in 1987 and confined by herein petitioner in his
palacial residence in Jasaan, Misamis Oriental. Despite her
desire to escape, Vitaliana was allegedly deprived of her
liberty without any legal authority. At the time the petition
was filed, it was alleged that Vitaliana was 25 years of age,
single, and living with petitioner Tomas Eugenio.
The respondent court in an order dated 28 September 1988
issued the writ of habeas corpus, but the writ was returned
unsatisfied. Petitioner refused to surrender the body of
Vitaliana (who had died on 28 August 1988) to the
respondent sheriff, reasoning that a corpse cannot be the
subject of habeas corpus proceedings; besides, according to
petitioner, he had already obtained a burial permit from the
Undersecretary of the Department of Health, authorizing the
burial at the palace quadrangle of the Philippine Benevolent
Christian Missionary, Inc. (PBCM), a registered religious sect,
of which he (petitioner) is the Supreme President and
Founder.
Petitioner also alleged that Vitaliana died of heart failure due
to toxemia of pregnancy in his residence on 28 August 1988.
As her common law husband, petitioner claimed legal
custody of her body. These reasons were incorporated in an
explanation filed before the respondent court. Two (2) orders
dated 29 and 30 September 1988 were then issued by
respondent court, directing delivery of the deceased's body
to a funeral parlor in Cagayan de Oro City and its autopsy.
Petitioner (as respondent in the habeas corpus proceedings)
filed an urgent motion to dismiss the petition therein,
27

claiming lack of jurisdiction of the court over the nature of

the action under sec. 1(b) of Rule 16 in relation to sec. 2, Rule
72 of the Rules of Court. 1 A special proceeding for habeas
corpus, petitioner argued, is not applicable to a dead person
but extends only to all cases of illegal confinement or
detention of a live person.
The court denied the petition.
Between the two (2) consolidated petitions, the following
issues are raised:
XXX
1.
interpretation of par. 1, Art. 294 of the Civil Code

(Art. 199 of the new Family Code) which states:
'ART. 294.
The claim for support, when proper and
two or more persons are obliged to give it, shall be made in
the following order:
(1) From the spouse;
Petitioner claims he is the spouse contemplated under Art.
294 of the Civil Code, the term spouse used therein not being
preceded by any qualification; hence, in the absence of such
qualification, he is the rightful custodian of Vitaliana's body.
Vitaliana's brothers and sisters contend otherwise. Indeed,
Philippine Law does not recognize common law marriages. A
man and woman not legally married who cohabit for many
years as husband and wife, who represent themselves to the
public as husband and wife, and who are reputed to be
husband and wife in the community where they live may be
considered legally "married" in common law jurisdictions but
not in the Philippines.
sanctioned by a sacrament or legal tie and another who are

husband and wife de facto. 23 But this view cannot even
apply to the facts of the case at bar. We hold that the
provisions of the Civil Code, unless expressly providing to the
contrary as in Article 144, when referring to a "spouse"
contemplate a lawfully wedded spouse. Petitioner vis-a-vis
Vitaliana was not a lawfully-wedded spouse to her, in fact, he
was not legally capacitated to marry her in her lifetime.
Custody of the dead body of Vitaliana was correctly awarded
to her surviving brothers and sisters (the Vargases). Section
1103 of the Revised Administrative Code provides:
"Sec. 1103. Persons charged with duty of burial. - The
immediate duty of burying the body of a deceased person,
regardless of the ultimate liability for the expense thereof,
shall devolve upon the persons hereinbelow specified:
xxx
xxx
xxx
"(b) If the deceased was an unmarried man or woman, or a
child, and left any kin, the duty of burial shall devolve upon
the nearest of kin of the deceased, if they be adults and
within the Philippines and in possession of sufficient means
to defray the necessary expenses."
Lichaoco-de Leon v. CA
Husband and wife agreed to end their marriage. The SC held
that such an agreement is void because it is contrary to law,
public policy and morals. Marriage can only be terminated in
accordance with the grounds provided by law.
Q: Do we have a law that prohibits transsexual operations?
A: None.
While it is true that our laws do not just brush aside the fact
that such relationships are present in our society; and that
they produce a community of properties and interests which
is governed by law, 20 authority exists in case law to the
effect that such form of co-ownership requires that the man
and woman living together must not in any way be
incapacitated to contract marriage. 21 In any case, herein
petitioner has a subsisting marriage with another woman, a
legal impediment which disqualified him from even legally
marrying Vitaliana. In Santero vs. CFI of Cavite, 22 the Court,
thru Mr. Justice Paras, interpreting Art. 188 of the Civil Code
(Support of Surviving Spouse and Children During Liquidation
of Inventoried Property) stated: "Be it noted however that
with respect to 'spouse', the same must be the 'legitimate
spouse' (not common-law spouses . . .)."
There is a view that under Article 332 of the Revised Penal
Code, the term "spouse" embraces common law relation for
purposes of exemption from criminal liability in cases of theft,
swindling and malicious mischief committed or caused
mutually by spouses. The Penal Code article, it is said, makes
no distinction between a couple whose cohabitation is
Distinguish between voluntary and involuntary sexual

transformation. Which is always voluntary.
Under Art. 262 of the RPC, mutilation is committed by any
person who shall intentionally mutilate another by depriving
him, either totally or partially, of some essential organ for
reproduction.
ARTICLE 4 The absence of any of the essential or formal
requisites shall render the marriage void ab initio, except as
stated in Article 35 (a).
A defect in any of the essential requisites shall render the
marriage voidable as provided in Article 45.
An irregularity in the formal requisites shall not affect the
validity of the marriage but the party or parties responsible
for the irregularity shall be civilly, criminally
administratively liable.
28

ARTICLE 5 Any male or female of the age of eighteen years

or upwards not under any of the impediments mentioned in
Articles 37 and 38, may contract marriage.
ARTICLE 6 No prescribed form or religious rite for the
solemnization of the marriage is required.
It shall be necessary, however, for the contracting parties to
appear personally before the solemnizing officer and
declare in the presence of not less than two witnesses of
legal age that they take each other as husband and wife.
This declaration shall be contained in the marriage
certificate which shall be signed by the contracting parties
and their witnesses and attested by the solemnizing officer.
In case of a marriage in articulo mortis, when the party at
the point of death is unable to sign the marriage certificate,
it shall be sufficient for one of the witnesses to the marriage
to write the name of said party, which fact shall be attested
by the solemnizing officer.
parties believed in good faith that he had authority to

solemnize marriages.
As long as one of the parties is acting in good faith, the law
protects the party; therefore, the Marriage is still valid even if
1 party acted in bad faith, as to the authority of the
solemnizing officer.
2.
Marriages of Exceptional Character

a.
b.
c.
d.
3.
Q: What are the requisites of marriage under the FC?
Valid marriage license
Marriages among Muslims/members of ethnic

cultural communities provided such were
solemnized in accordance with their customs, rites
and practices.
Marriage in articulo mortis
Marriages in remote places
Cohabitation for at least 5 years
Marriage ceremonyis absolutely required to
distinguish a legal and valid marriage from commonlaw marriages. It takes place by the:
A: The formal requisites are under Art.3 and the essential

requisites are under Art. 2.
a.
Essential Requisites of Marriage
b.
1.
2.
Legal capacity of the contracting parties who must

be male or female; and
Consent freely given before the Solemnizing officer.
c.
Appearance of the contracting parties before

the solemnizing officer;
Their personal declaration that they take each
other as husband and wife;
In the presence of not less than 2 witnesses of
legal age.
NOTE: There is no specific ceremony which is required.

Formal Requisites of Marriage
1.
Authority of the Solemnizing Officer:

a.
b.
c.
d.
e.
f.
Incumbent judiciary member

Priest, rabbi, imam or minister of any
church/religious sect duly authorized provided
at least one of the parties belongs to such
church or religious sect
Ship captain or airplane chiefmarriage in
articulo mortis (even during stop-overs)
Consul-general, consul or vice-consulprovided
both parties are Filipinos
Military commander of a unit in the absence of
a chaplainin articulo mortis
Mayors (Art. 444 and 445 of the Local
Government Code)
NOTE: January 1, 1992- effectivity of the Local Government

Code; it returned the authority of Mayors to solemnize
marriages.
The parties are required to sign the marriage contract. The

contract is a proof that the marriage has taken place. But this
is not a requisite for a valid marriage. Thus, even if the parties
failed to sign the contract, the marriage is valid.
Q: How should the declaration be made by the parties?
A: The law does not specify. It may be in any way, as long as it
is indicative of consent. It need not be given orally; it can be
in writing.
Q: What if the solemnizing officer forgets to ask the
question? And since there is no question, there would be no
answer, what happens then?
A: Manifestation of consent is not always through verbal
manifestation. The act of signing the contract is a
manifestation of consent. So, even if the question is not
asked, the consent has still been manifested (Carganilla v.
Familiar).
If the marriage is solemnized before this date and within the

effectivity of the FC, then it is void, if solemnized by municipal
or city mayor, except if either or both of the contracting
29

liable; shall not

affect the Marriage
bit it renders the
guilty party liable.
Personal appearance
Required by law regarding marriages in the Philippines. It
does not apply to Marriages abroad.
Marriage by Proxy
NOTE: Under the Act 3613 which is the forerunner of the CC,
there are only 2 essential requisites:
Q: Is marriage by proxy valid?

A:
a.
b.
If celebrated in the Philippines, such marriage is

absolutely null and void.
If celebrated abroad and according to the laws of the
country where it was celebrated, and the Marriage
by proxy is valid there, it is valid in the Philippines.
The reason for this is that the limitations imposed by
law on Foreign marriages do not include marriages
by proxy.
Marriage in Articulo Mortis
Q: What do you mean by marriage in articulo mortis?
1.
2.
Legal capacity
Consent of the parties
Under the old law, the authority of the solemnizing officer is

not an essential requisite and the marriage is valid if parties
in good faith.
Marriages contracted before the issuance of a marriage
license remains valid. Its validity is not affected by the
absence of marriage license.
If a person solemnized the marriage without authority but
the parties believed in good faith that the solemnizing officer
had authority to do so, the marriage remains valid.
A: It is marriage contracted at the point of death. Here, it is

the solemnizing officer who appears or goes to the
contracting parties, and not one wherein the contracting are
the ones who appear before the solemnizing officer.
Good faith refers to the absence of knowledge that the

solemnizing officer had no authority to solemnize the
marriage. It made it impliedly.
At least one of the contracting parties should be at the point

of death.
Before the advent of the FC, the CC did not make an express
distinction between essential and formal requisites. It was
only implied.
Q: What do you mean by at the point of dying?
NOTE: The Civil Code provided for 4 essential requisites:
A: It means that the party must be actually dying at the time

of the celebration of the Marriage.
NOTE: Remember that it must be either or both of the
contracting parties who must be at the point of death.
After the Marriage ceremonythe contracting parties must
sign the Marriage contract. If the marriage is in articulo
mortis, if the dying party can sign, he shall sign. But if he
cannot sign, one of the witnesses must write the dying
persons name.
Absence of the
Essential or
Formal
Requisites
Void ab initio
marriage
1.
2.
3.
4.
Legal capacity
Consent of the parties
Authority of the solemnizing officer
Marriage license (subject to exceptions of marriages
of exceptional character)
The formal requisite of marriage ceremony refers to the act

of the parties to a contract of marriage appearing before the
solemnizing officer and there personally declare that they are
taking each other as husband and wife. This constitutes as
their manifestation of consent.
Defect in
Essential
Requisites
Irregularity in
Formal Requisites
Under the CC, the authority of the solemnizing officer

became one of the essential requisites and the absence of the
authority renders the marriage void.
Voidable
marriage
Valid marriage but

the
party
responsible for such
shall
be
civilly,
criminally,
and
administratively
The authority of the solemnizing officer has become an

essential requisite, likewise with marriage license.
The only thing to ask is did the solemnizing officer have
authority. If no, the marriage is automatically void. The good
faith of the parties is immaterial.
30

Under the FC
GR: If the solemnizing officer has no authority, the marriage is
void for lack or absence of formal requisite.
XPN:
Good faith marriages
1.
Good faith marriages (Art. 35, par.2)When either or

both of the contracting parties believed in good faith that
the solemnizing officer has authority, the marriage
remains valid.
The law supports or protects a party who acted in good
faith and punishes one who acted in bad faithhe/she is
in bad faith becomes tie until the end of his life to
man/woman he/she never intended to marry.
ARTICLE 7 Marriage may be solemnized by:

(1) Any incumbent member of the judiciary within the
court's jurisdiction;
(2) Any priest, rabbi, imam, or minister of any church or
religious sect duly authorized by his church or religious sect
and registered with the civil registrar general, acting within
the limits of the written authority granted by his church or
religious sect and provided that at least one of the
contracting parties belongs to the solemnizing officer's
church or religious sect;
(3) Any ship captain or airplane chief only in the case
mentioned in Article 31;
(4) Any military commander of a unit to which a chaplain is
assigned, in the absence of the latter, during a military
operation, likewise only in the cases mentioned in Article
32;
(5) Any consul-general, consul or vice-consul in the case
provided in Article 10.
Q: What if both parties acted in bad faith?

SOLEMNIZING OFFICERS
A: The marriage is void because of the absence of one of the
formal requisites.
Marriages solemnized outside the Philippines
2.
Under Art. 26all marriages solemnized outside the

Philippines in accordance with the laws in force in
the country where they were solemnized and valid
there are as such, shall be valid in this country,
except those under Art. 35 (1), (4), (5), (6), 36, 37,
and 38.
In conjunction with Art.10 which provides that
marriages between Filipino citizens abroad may be
solemnized by a consul-general, consul, vice-consul
of the Republic of the Philippines.
Q: Who are authorized to solemnize marriage?

A: Art. 7 of the FC provides for those persons who can
solemnize marriage.
1.
2.
3.
4.
5.
6.
Incumbent Judiciary member;

Priest, Rabbi, Imam or minister of any church/
religious sect duly authorized provide at least one of
the parties belongs to such church or religious sect.
Ship captain or airplane chiefin articulo mortis;
even during stopovers
Consul-general, consul or vice-consulprovided
both parties are Filipinos;
Military commander of a unit in absence of
chaplainin articulo mortis;
Mayors (Art. 444 and 445 of LGC)
Q: What are the requisites for this rule to apply?

NOTE: Originally, the enumeration in Art. 7 was exclusive. But
when the Local Government Code took effect, City and
Municipal Mayors were given authority.
A:
1.
2.
The marriage must be between Filipino citizens

abroad; and
It has to be solemnized by a consul-general, consul,
vice-consul in the place of their assignment abroad.
If these conditions are not met, these consul-generals,

consuls, vice-consuls do not have authority to solemnize the
marriage.
XPN to the XPN: Foreign marriages such as between two
foreigners or between a Filipino and a foreigner solemnized
by a consul-general, consul, or vice-consul will be recognized
as valid abroad or in the place where they were celebrated
(See Art. 26).
Incumbent member of the judiciary

Under par.1, the law says within the courts jurisdiction
with respect to judgesthis refers to their territorial
jurisdiction (judicial jurisdiction).
With respect to SC justices, CA justices and in the SB, the
authority extends to the entire Philippine territory.
Q: Does it mean that if a judge solemnized marriage outside
his territorial jurisdiction, he is without authority?
31

A: In the case of Navarro v. Dumagloy, the Court did not

squarely rule on the status of the marriage. It is clear that the
power of a judge to solemnize marriage is limited within his
territorial jurisdiction and outside his territorial jurisdiction
the judge is without authority.
RODOLFO G. NAVARRO v. JUDGE HERNANDO C. DOMAGTOY

(A.M. No. MTJ-96-1088. July 19, 1996)
The complainant in this administrative case is the Municipal
Mayor of Dapa, Surigao del Norte, Rodolfo G. Navarro. He
has submitted evidence in relation to two specific acts
committed by respondent Municipal Circuit Trial Court Judge
Hernando Domagtoy, which, he contends, exhibits gross
misconduct as well as inefficiency in office and ignorance of
the law.
First, on September 27, 1994, respondent judge solemnized
the wedding between Gaspar A. Tagadan and Arlyn F. Borga,
despite the knowledge that the groom is merely separated
from his first wife.
Second, it is alleged that he performed a marriage ceremony
between Floriano Dador Sumaylo and Gemma G. del Rosario
outside his court's jurisdiction on October 27, 1994.
Respondent judge holds office and has jurisdiction in the
Municipal Circuit Trial Court of Sta. Monica-Burgos, Surigao
del Norte. The wedding was solemnized at the respondent
judge's residence in the municipality of Dapa, which does not
fall within his jurisdictional area of the municipalities of Sta.
Monica and Burgos, located some 40 to 45 kilometers away
from the municipality of Dapa, Surigao del Norte.
ISSUE: WON, the Sumaylo marriage is valid
HELD:
Article 41 of the Family Code expressly provides:
"A marriage contracted by any person during the subsistence
of a previous marriage shall be null and void, unless before
the celebration of the subsequent marriage, the prior spouse
had been absent for four consecutive years and the spouse
present had a well-founded belief that the absent spouse was
already dead. In case of disappearance where there is danger
of death under the circumstances set forth in the provisions
of Articles 391 of the Civil Code, an absence of only two years
shall be sufficient.
For the purpose of contracting the subsequent marriage
under the preceding paragraph, the spouse present must
institute a summary proceeding as provided in this Code for
the declaration of presumptive death of the absentee,
without prejudice to the effect of reappearance of the absent
spouse."
There is nothing ambiguous or difficult to comprehend in this

provision. In fact, the law is clear and simple. Even if the
spouse present has a well-founded belief that the absent
spouse was already dead, a summary proceeding for the
declaration of presumptive death is necessary in order to
contract a subsequent marriage, a mandatory requirement
which has been precisely incorporated into the Family Code
to discourage subsequent marriages where it is not proven
that the previous marriage has been dissolved or a missing
spouse is factually or presumptively dead, in accordance with
pertinent provisions of law.
In the case at bar, Gaspar Tagadan did not institute a
summary proceeding for the declaration of his first wife's
presumptive death. Absent this judicial declaration, he
remains married to Ida Pearanda. Whether wittingly, or
unwittingly, it was manifest error on the part of respondent
judge to have accepted the joint affidavit submitted by the
groom. Such neglect or ignorance of the law has resulted in a
bigamous, and therefore void, marriage. Under Article 35 of
the Family Code, "The following marriage shall be void from
the beginning: (4) Those bigamous x x x marriages not falling
under Article 41."
The second issue involves the solemnization of a marriage
ceremony outside the court's jurisdiction, covered by Articles
7 and 8 of the Family Code, thus:
"Art. 7.
Marriage may be solemnized by:
(1)
Any incumbent member of the judiciary within the court's
jurisdiction;
Art. 8. The marriage shall be solemnized publicly in the

chambers of the judge or in open court, in the church, chapel
or temple, or in the office of the consul-general, consul or
vice-consul, as the case may be, and not elsewhere, except in
cases of marriages contracted on the point of death or in
remote places in accordance with Article 29 of this Code, or
where both parties request the solemnizing officer in writing
in which case the marriage may be solemnized at a house or
place designated by them in a sworn statement to that
effect."
Respondent judge points to Article 8 and its exceptions as the
justifications for his having solemnized the marriage between
Floriano Sumaylo and Gemma del Rosario outside of his
court's jurisdiction. As the aforequoted provision states, a
marriage can be held outside of the judge's chambers or
courtroom only in the following instances: (1) at the point of
death, (2) in remote places in accordance with Article 29 or
(3) upon request of both parties in writing in a sworn
statement to this effect. There is no pretense that either
Sumaylo or del Rosario was at the point of death or in a
remote place. Moreover, the written request presented
addressed to the respondent judge was made by only one
party, Gemma del Rosario.4
32

More importantly, the elementary principle underlying this

provision is the authority of the solemnizing judge. Under
Article 3, one of the formal requisites of marriage is the
"authority of the solemnizing officer." Under Article 7,
marriage may be solemnized by, among others, "any
incumbent member of the judiciary within the court's
jurisdiction." Article 8, which is a directory provision, refers
only to the venue of the marriage ceremony and does not
alter or qualify the authority of the solemnizing officer as
provided in the preceding provision.
Non-compliance
herewith will not invalidate the marriage.
XXX
Inasmuch as respondent judge's jurisdiction covers the
municipalities of Sta. Monica and Burgos, he was not clothed
with authority to solemnize a marriage in the municipality of
Dapa, Surigao del Norte. By citing Article 8 and the
exceptions therein as grounds for the exercise of his
misplaced authority, respondent judge again demonstrated a
lack of understanding of the basic principles of civil law.
A:
GR: Marriages must be solemnized publicly either in the
Chambers or open courts, Churches, or temples, offices of the
Consuls, Mayors, etc.
Accordingly, the Court finds respondent to have acted in

gross ignorance of the law. The legal principles applicable in
the cases brought to our attention are elementary and
uncomplicated, prompting us to conclude that respondent's
failure to apply them is due to a lack of comprehension of the
law.
Priest, rabbi, imam, or minister of any church or religious

sect
The judiciary should be composed of persons who, if not

experts, are at least, proficient in the law they are sworn to
apply, more than the ordinary laymen. They should be skilled
and competent in understanding and applying the law. It is
imperative that they be conversant with basic legal principles
like the ones involved in instant case.6 It is not too much to
expect them to know and apply the law intelligently.7
Otherwise, the system of justice rests on a shaky foundation
indeed, compounded by the errors committed by those not
learned in the law. While magistrates may at times make
mistakes in judgment, for which they are not penalized, the
respondent judge exhibited ignorance of elementary
provisions of law, in an area which has greatly prejudiced the
status of married persons.
XPNs:
1.
2.
3.
NOTE: Good faith of the parties will cure the lack of authority
of the solemnizing officer.

A:
1.
2.
3.
4.
Duly authorized by his church or religious sect

Registered with the civil register general
Acting within the limits of the written authority
granted by his church or religious sect
At least one of the contracting parties belongs to the
solemnizing officers church or religious sect
Consul General, Consuls, Vice-Consuls

A:
1.
2.
ARTICLE 8 The marriage shall be solemnized publicly in the

chambers of the judge or in open court, in the church,
chapel or temple, or in the office the consul-general, consul
or vice-consul, as the case may be, and not elsewhere,
except in cases of marriages contracted on the point of
death or in remote places in accordance with Article 29 of
this Code, or where both of the parties request the
solemnizing officer in writing in which case the marriage
may be solemnized at a house or place designated by them
in a sworn statement to that effect. (57a)
Marriages in articulo mortis

Marriages in remote places in accordance with Art.
29
Where both parties request the Solemnizing officer
in writing that the marriage be solemnized in a
different place, and such place must be specified
under oath. But notice that it need not be made
under oath, only the place must be specified under
oath.

abroad
In their place of assignment
Ship captain, airplane chief

A:
1.
2.
Marriage in articulo mortis between passengers or

crew members
Only while the ship is at sea or the plane is in flight
including during stopovers at ports at call.
Q: Where should the marriage be solemnized?
33

Q: If the ship is still moored at the pier and the passengers

had a heart attack, can the ship captain solemnize marriage?
A: Yes, if it is a stopover, as long as the voyage is not yet
complete.
Military commander of a unit
A: No.
NOTE: With respect to incumbent members of the judiciary,
priests, rabbi, imams, or ministers and mayors, they can
solemnize any kind of marriage. On the other hand, with
respect to ship captains, airplane chiefs, and military
commanders, they can only solemnize marriages in articulo
mortis. Lastly, with respect to consul-generals, consuls, or
vice-consuls, they can solemnize marriage only in special
cases specified by law between Filipino citizens abroad.
A:
1.
2.
3.
He must be commissioned officer

A chaplain is assigned but is absent during military
operation. The situation is one of emergency. But
war was not required.
Marriage is in articulo mortis between persons
within the zone of military operations, whether
members of the armed forces or civilians.
The Code Committee considers that the unit must be a

battalion, not just a company.
Q: In a military unit, there is a general, a colonel, a major
and a sergeant. The major died but before his death, he
designated a sergeant as the commander of the unit, can
the latter solemnize marriage?
A: Yes. It is not necessary that one is a commissioned officer
Sempio-Dys opinion: No. He must be a commissioned
officer.
Q: Marriage was solemnized by the sergeant, when he was
at the point of death, he is one of the contracting parties.
What is the status of the marriage?
A: Marriage is void. The contracting of a marriage presuppose
the presence of at least 3 partiesthe 2 contracting parties
and the solemnizing officer.
Municipal and City Mayors
To be added in the enumeration under Art. 7 are municipal
or city mayors as provided under the LGC of 1991 which took
effect on January 1, 1991.
Q: A Mayor solemnized marriage after August 3, 1988 but
before January 1, 1991. What is the status of the marriage?
A: The marriage is void because of the lack of authority of the
solemnizing officer. But, if the parties believed in good faith,
the marriage is valid.
Q: Can all persons, authorized to solemnize marriage under
FC and LGC solemnize all kinds of marriages?
ARTICLE 9 A marriage license shall be issued by the local civil

registrar of the city or municipality where either contracting
party habitually resides, except in marriages where no
license is required in accordance with Chapter 2 of this Title.
(58a)
Difference between Marriage License and a Marriage
Contract
Q: What is the difference between a marriage license and a
marriage contract?
A:
MARRIAGE LICENSE
MARRIAGE CONTRACT
Authorization given by Proof that a marriage
the State to persons has been celebrated
contemplating Marriage,
to enter into a contract
of marriage
Effect if either or both are absent
GR:
Absence
will Absence will not affect
invalidate the marriage.
the validity of the
XPN:
marriage
Marriages exempt from
the license requirement
NOTE: Mere presentation of documents in applying for a
marriage license is sufficient. The parties here are not yet
contracting parties, they are just applicants for a license.
If either or both the applicants are between 18 and 21,
parental consent is necessary. But if one of them has been
emancipated by previous marriage, parental consent is no
longer necessary as to the applicant.
The above rule has been modified by Act 6809: As long as a
party to a contract of Marriage is between 18 and 21; for that
party, parental consent is always necessary.
ARTICLE 10Marriages between Filipino citizens abroad may
be solemnized by a consul-general, consul or vice-consul of
the Republic of the Philippines. The issuance of the marriage
license and the duties of the local civil registrar and of the
solemnizing officer with regard to the celebration of
marriage shall be performed by said consular official. (75a)
34

ARTICLE 11 Where a marriage license is required, each of the

contracting parties shall file separately a sworn application
for such license with the proper local civil registrar which
shall specify the following:
(1) Full name of the contracting party;
(2) Place of birth;
(3) Age and date of birth;
(4) Civil status;
(5) If previously married, how, when and where the previous
marriage was dissolved or annulled;
(6) Present residence and citizenship;
(7) Degree of relationship of the contracting parties;
(8) Full name, residence and citizenship of the father;
(9) Full name, residence and citizenship of the mother; and
(10) Full name, residence and citizenship of the guardian or
person having charge, in case the contracting party has
neither father nor mother and is under the age of twentyone years.
The applicants, their parents or guardians shall not be
required to exhibit their residence certificates in any
formality in connection with the securing of the marriage
license. (59a)
ARTICLE 12The local civil registrar, upon receiving such
application, shall require the presentation of the original
birth certificates or, in default thereof, the baptismal
certificates of the contracting parties or copies of such
documents duly attested by the persons having custody of
the originals. These certificates or certified copies of the
documents by this Article need not be sworn to and shall be
exempt from the documentary stamp tax. The signature and
official title of the person issuing the certificate shall be
sufficient proof of its authenticity.
If either of the contracting parties is unable to produce his
birth or baptismal certificate or a certified copy of either
because of the destruction or loss of the original or if it is
shown by an affidavit of such party or of any other person
that such birth or baptismal certificate has not yet been
received though the same has been required of the person
having custody thereof at least fifteen days prior to the date
of the application, such party may furnish in lieu thereof his
current residence certificate or an instrument drawn up and
sworn to before the local civil registrar concerned or any
public official authorized to administer oaths. Such
instrument shall contain the sworn declaration of two
witnesses of lawful age, setting forth the full name,
residence and citizenship of such contracting party and of
his or her parents,if known, and the place and date of birth
of such party. The nearest of kin of the contracting parties
shall be preferred as witnesses, or, in their default, persons
of good reputation in the province or the locality.
The presentation of birth or baptismal certificate shall not
be required if the parents of the contracting parties appear
personally before the local civil registrar concerned and

swear to the correctness of the lawful age of said parties, as
stated in the application, or when the local civil registrar
shall, by merely looking at the applicants upon their
personally appearing before him, be convinced that either
or both of them have the required age. (60a)
ARTICLE 13In case either of the contracting parties has been
previously married, the applicant shall be required to
furnish, instead of the birth or baptismal certificate required
in the last preceding article, the death certificate of the
deceased spouse or the judicial decree of the absolute
divorce, or the judicial decree of annulment or declaration
of nullity of his or her previous marriage.
In case the death certificate cannot be secured, the party
shall make an affidavit setting forth this circumstance and
his or her actual civil status and the name and date of death
of the deceased spouse. (61a)
ARTICLE 14In case either or both of the contracting parties,
not having been emancipated by a previous marriage, are
between the ages of eighteen and twenty-one, they shall, in
addition to the requirements of the preceding articles,
exhibit to the local civil registrar, the consent to their
marriage of their father, mother, surviving parent or
guardian, or persons having legal charge of them, in the
order mentioned. Such consent shall be manifested in
writing by the interested party, who personally appears
before the proper local civil registrar, or in the form of an
affidavit made in the presence of two witnesses and
attested before any official authorized by law to administer
oaths. The personal manifestation shall be recorded in both
applications for marriage license, and the affidavit, if one is
executed instead, shall be attached to said applications.
(61a)
ARTICLE 15Any contracting party between the age of
twenty-one and twenty-five shall be obliged to ask their
parents or guardian for advice upon the intended marriage.
If they do not obtain such advice, or if it be unfavorable, the
marriage license shall not be issued till after three months
following the completion of the publication of the
application therefor. A sworn statement by the contracting
parties to the effect that such advice has been sought,
together with the written advice given, if any, shall be
attached to the application for marriage license. Should the
parents or guardian refuse to give any advice, this fact shall
be stated in the sworn statement. (62a)
ARTICLE 16In the cases where parental consent or parental
advice is needed, the party or parties concerned shall, in
addition to the requirements of the preceding articles,
attach a certificate issued by a priest, imam or minister
authorized to solemnize marriage under Article 7 of this
Code or a marriage counselor duly accredited by the proper
government agency to the effect that the contracting parties
35

have undergone marriage counseling. Failure to attach said

certificates of marriage counseling shall suspend the
issuance of the marriage license for a period of three
months from the completion of the publication of the
application. Issuance of the marriage license within the
prohibited period shall subject the issuing officer to
administrative sanctions but shall not affect the validity of
the marriage.
Should only one of the contracting parties need parental
consent or parental advice, the other party must be present
at the counseling referred to in the preceding paragraph. (n)
2.
If neither parent appears, it should be in a sworn

statement (under oath)
NOTE: If this requirement is not complied with, or it was

irregularly followed, the marriage is voidable.
The law requires that the consent should be given to marry a
specific person, otherwise, it would not be a valid consent.
Requirements for the issuance of a Marriage License to
Contracting Parties between ages 18 and 25:
Between 18 and 21
ARTICLE 17
Between 21 and 25
The local civil registrar shall prepare a notice which shall
contain the full names and residences of the applicants for a
marriage license and other data given in the applications.
The notice shall be posted for ten consecutive days on a
bulletin board outside the office of the local civil registrar
located in a conspicuous place within the building and
accessible to the general public.
This notice shall request all persons having knowledge of
any impediment to the marriage to advise the local civil
registrar thereof. The marriage license shall be issued after
the completion of the period of publication. (63a)
NOTE: In dealing with parental consent, it has already been
modified by Act 6809.
Between 18 and 25
Law requires Parental

Consent
Law requires Parental
Advice
Law requires Marriage
Counseling for both the
contracting parties
Q: What is the effect if parental consent is absent?

A: It renders marriage voidable. If it is absent, the marriage
license should not be issued. But if the marriage is still
solemnized, it is voidable
Q: What is the effect if parental advice is absent when
required by law?
A: No effect on the validity. But the contracting parties should
wait for 3 months before the issuance of the license.
Parental Consent
Q: What is the effect of absence of marriage counseling?
Q: Who can give parental consent?
A: The law imposes a waiting period of 3 months from the
completion of publication of the application before the
issuance of the license.
A:
1.
2.
3.
4.
If both parties are alive, the father, or in his absence,

the mother
If one of them is already deceased, the surviving
parent (whether father or mother) as authorized to
give consent.
Guardians
Persons having substitute parental authority
(in the order givenif the order isnt followed, the
consent is not valid, and it will render the marriage
voidable on the ground of lack of parental consent.)
NOTE: If inspite of the absence of parental consent, the

marriage is still solemnized, it is voidable at the instance of
the following:
a.
b.
Parent whose consent was not obtained. The action

should be filed before the minor party reaches the
age of 21.
The party who is required to get parental consent
but did not do so. The action should be filed within 5
years after reaching the age of 21.
Form of parental consent

Q: In what form should the consent be?
The party above 21 is not allowed by law to petition for

annulment of such marriage because he has no cause of
action.
A:
Modes of Ratification of Defective Marriages:
1.
If the parent or person giving consent appears

before the Civil Registrar, a simple written consent is
sufficient.
1.
2.
Art.45Free cohabitation
Art. 47Prescription
36

If the previous marriage was terminated by death of the

spouse, the law does not require a statement on the cause of
death, only the date thereof.
Q: Does the law recognize Absolute Divorce?
A: Act 2710 was the Absolute Divorce Law. Divorces granted
under said law shall be recognized by our law. As to foreign
divorces, our law does not require a decree of divorce, only a
showing capacity to contract marriage (Certificate of Legal
Capacity to Contract Marriage) issued by the foreigners
consular office if he is to get married here. (refer Art. 21 with
Art. 13)
NOTE: If the Civil Registrar issues marriage license even if a
party is below 21, without requiring parental consent, just by
looking at the party and believing that he is above 21, the
marriage contracted based on such license shall be void.
Breach of Promise to Marry

Bunyag v. Court of Appeals
This case refers to a Breach of Promise to Marry. Two actions
were filed: a civil action for Breach of Promise to Marry, and a
Criminal Action for forcible abduction with rape. The Criminal
Action was dismissed by the Fiscal. In the civil case, the father
and son were made defendants because both of them gave
the promise. Bunyag, Jr., not the father, was held liable for
damages.
GR: Breach of promise to marry per se is not actionable in
this jurisdiction, in order to prevent unscrupulous women
from taking advantage of the poor men.
XPN:Damages may be awarded by the Court in case of Breach
of Promise to marry, premised on Article 21 (Human
Relations) in relation to par. 10 of Art. 2219 (Law on Torts). In
the Bunyag case, the court premised its award of damages on
the above provisions of the law. Art 2219 provides that any
person who willfully causes loss or injury to another in a
manner contrary to law, public morals, and good customs
must answer for the same.
ARTICLE 20 The license shall be valid in any part of the
Philippines for a period of one hundred twenty days from
the date of issue, and shall be deemed automatically
canceled at the expiration of the said period if the
contracting parties have not made use of it. The expiry date
shall be stamped in bold characters on the face of every
license issued. (65a)
ARTICLE 21 When either or both of the contracting parties
are citizens of a foreign country, it shall be necessary for
them before a marriage license can be obtained, to submit a

certificate of legal capacity to contract marriage, issued by
their respective diplomatic or consular officials.
Stateless persons or refugees from other countries shall, in
lieu of the certificate of legal capacity herein required,
submit an affidavit stating the circumstances showing such
capacity to contract marriage. (66a)
ARTICLE 22 The marriage certificate, in which the parties
shall declare that they take each other as husband and wife,
shall also state:
(1) The full name, sex and age of each contracting party;
(2) Their citizenship, religion and habitual residence;
(3) The date and precise time of the celebration of the
marriage;
(4) That the proper marriage license has been issued
according to law, except in marriage provided for in Chapter
2 of this Title;
(5) That either or both of the contracting parties have
secured the parental consent in appropriate cases;
(6) That either or both of the contracting parties have
complied with the legal requirement regarding parental
advice in appropriate cases; and
(7) That the parties have entered into marriage settlement,
if any, attaching a copy thereof. (67a)
ARTICLE 23It shall be the duty of the person solemnizing the
marriage to furnish either of the contracting parties the
original of the marriage certificate referred to in Article 6
and to send the duplicate and triplicate copies of the
certificate not later than fifteen days after the marriage, to
the local civil registrar of the place where the marriage was
solemnized. Proper receipts shall be issued by the local civil
registrar to the solemnizing officer transmitting copies of
the marriage certificate. The solemnizing officer shall retain
in his file the quadruplicate copy of the marriage certificate,
the copy of the marriage certificate, the original of the
marriage license and, in proper cases, the affidavit of the
contracting party regarding the solemnization of the
marriage in place other than those mentioned in Article 8.
(68a)
ARTICLE 24 It shall be the duty of the local civil registrar to
prepare the documents required by this Title, and to
administer oaths to all interested parties without any
charge in both cases. The documents and affidavits filed in
connection with applications for marriage licenses shall be
exempt from documentary stamp tax. (n)
ARTICLE 25The local civil registrar concerned shall enter all
applications for marriage licenses filed with him in a registry
book strictly in the order in which the same are received. He
shall record in said book the names of the applicants, the
date on which the marriage license was issued, and such
other data as may be necessary. (n)
37

ARTICLE 26All marriages solemnized outside the Philippines,

in accordance with the laws in force in the country where
they were solemnized, and valid there as such, shall also be
valid in this country, except those prohibited under Articles
35 (1), (4), (5) and (6), 3637 and 38. (17a)
Where a marriage between a Filipino citizen and a foreigner
is validly celebrated and a divorce is thereafter validly
obtained abroad by the alien spouse capacitating him or her
to remarry, the Filipino spouse shall have capacity to
remarry under Philippine law. (As amended by Executive
Order 227)
NOTE: Under Art. 26, par. 2the Filipino spouse may either
be a man or woman. But in no case may the Filipino spouse
be the plaintiff in the action for divorce.
It is not enough that the divorce is validly obtained. It is also
necessary that the foreigner who obtained the divorce be
capacitated by his National Law to remarry.
Differences in Opinion between Justice Sempio-Dy and Dean
Aligada regarding the term Foreigner
Sempio-Dy- the term foreigner does not refer to Filipinos
who were Naturalized in a foreign country. In short, it does
not refer to former Filipino citizens. This is to prevent the
moneyed class from taking advantage of this provision of law.
Aligada- We should not distinguish between an alien and a
former Filipino citizen. So, the view of Justice Dy is doubtful.
There is no jurisprudence at present regarding this problem.
However, since Justice Dy was one of the members of the
Code Commission that drafted the Family Code, her view
should be considered.
Alice Reyes Van Dorn v. Hon. Manuel V. Romillo

G.R. No. L-68470, October 8, 1985.
This case was brought before the effectivity of the Family Code.
The SC based its decision on the fact that the first husband declared
that he and his former Filipina wife did not have any conjugal
partnership during the course of their divorce proceedings. Thus,
the court did not touch on the validity of the second marriage of
the Filipina with another foreigner (Van Dorn).
The basic background facts are that petitioner is a citizen of

the Philippines while private respondent is a citizen of the
United States; that they were married in Hongkong in 1972;
that, after the marriage, they established their residence in
the Philippines; that they begot two children born on April 4,
1973 and December 18, 1975, respectively; that the parties
were divorced in Nevada, United States, in 1982; and that
petitioner has re-married also in Nevada. this time to
Theodore Van Dorn Dated June 8, 1983, private respondent
filed suit against petitioner in Civil Case No. 1075-P of the

Regional Trial Court, Branch CXV, in Pasay City, stating that
petitioner's business in Ermita, Manila, (the Galleon Shop, for
short), is conjugal property of the parties, and asking that
petitioner be ordered to render an accounting of that
business, and that private respondent be declared with right
to manage the conjugal property. Petitioner moved to dismiss
the case on the ground that the cause of action is barred by
previous judgment in the divorce proceedings before the
Nevada Court wherein respondent had acknowledged that he
and petitioner had "no community property" as of June 11,
1982. The Court below denied the Motion to Dismiss in the
mentioned case on the ground that the property involved is
located in the Philippines so that the Divorce Decree has no
bearing in the case. The denial is now the subject of this
Certiorari proceeding.
For resolution is the effect of the foreign divorce on the
parties and their alleged conjugal property in the Philippines.
Petitioner contends that respondent is estopped from laying
claim on the alleged conjugal property because of the
representation he made in the divorce proceedings before
the American Court that they had no community of property;
that the Galleon Shop was not established through conjugal
funds; and that respondent's claim is barred by prior
judgment.
For his part, respondent avers that the Divorce Decree issued
by the Nevada Court cannot prevail over the prohibitive laws
of the Philippines and its declared national policy; that the
acts and declaration of a foreign Court cannot, especially if
the same is contrary to public policy, divest Philippine Courts
of jurisdiction to entertain matters within its jurisdiction.
For the resolution of this case, it is not necessary to
determine whether the property relations between petitioner
and private respondent, after their marriage, were upon
absolute or relative community property, upon complete
separation of property, or upon any other regime. The pivotal
fact in this case is the Nevada divorce of the parties.
The Nevada District Court, which decreed the divorce, had
obtained jurisdiction over petitioner who appeared in person
before the Court during the trial of the case. It also obtained
jurisdiction over private respondent who, giving his address
as No. 381 Bush Street, San Francisco, California, authorized
his attorneys in the divorce case, Karp & Gradt, Ltd., to agree
to the divorce on the ground of incompatibility in the
understanding that there were neither community property
nor community obligations. As explicitly stated in the Power
of Attorney he executed in favor of the law firm of KARP &
GRAD LTD., 336 W. Liberty, Reno, Nevada, to represent him in
the divorce proceedings:
xxxxxx
"You are hereby authorized to accept service of Summons, to
file an Answer, appear on my behalf and do all things
38

necessary and proper to represent me, without further

contesting, subject to the following.
"1. That my spouse seeks a divorce on the ground of
incompatibility.
"2. That there is no community of property to be adjudicated
by the Court.
"3. That there are no community obligations to be
adjudicated by the court.
x x x x x x"
There can be no question as to the validity of that Nevada
divorce in any of the States of the United States. The decree
is binding on private respondent as an American citizen. For
instance, private respondent cannot sue petitioner, as her
husband in any State of the Union. What he is contending in
this case is that the divorce is not valid and binding in this
jurisdiction, the same being contrary to local law and public
policy.
be discriminated against in her own country if the ends of

justice are to be served.
NOTE: The provision of Art. 26 par. 2 does not mean that we

have absolute divorce in the Philippines, nor does it mean
that we recognize absolute divorce.
The rationale behind the provision is only to equalize the
Filipino spouse with the foreigner spouse, not for the purpose
of recognizing absolute divorce.
MARRIAGES EXEMPTED FROM LICENCE REQUIREMENT
Q: What are the marriages exempt from securing a Marriage
License?
A:
It is true that owing to the nationality principle embodied in

Article 16 of the Civil Code, only Philippine nationals are
covered by the policy against absolute divorces the same
being considered contrary to our concept of public policy and
morality. However, aliens may obtain divorces abroad, which
may be recognized in the Philippines, provided they are valid
according to their national law. In this case, the divorce in
Nevada released private respondent from the marriage from
the standards of American law, under which divorce dissolves
the marriage. As stated by the Federal Supreme Court of the
United States in Atherton vs. Atherton, 45 L. Ed. 794, 799:
existing status or domestic relation of husband and wife, and
to free them both from the bond. The marriage tie, when
thus severed as to one party, ceases to bind either. A
husband without a wife, or a wife without a husband, is
unknown to the law. When the law provides, in the nature of
a penalty, that the guilty party shall not marry again, that
party, as well as the other, is still absolutely freed from the
bond of the former marriage."
In the case of Marriages in remote places and those between

parties who cohabitated for at least 5 years, the following
cannot solemnize:
Thus, pursuant to his national law, private respondent is no

longer the husband of petitioner. He would have no standing
to sue in the case below as petitioner's husband entitled to
exercise control over conjugal assets. As he is bound by the
Decision of his own country's Court, which validly exercised
jurisdiction over him, and whose decision he does not
repudiate, he is estopped by his own representation before
said Court from asserting his right over the alleged conjugal
property.
ARTICLE 27In case either or both of the contracting parties

are at the point of death, the marriage may be solemnized
without necessity of a marriage license and shall remain
valid even if the ailing party subsequently survives. (72a)
1.
2.
3.
4.
1.
2.
3.
Marriages in articulo mortis

Marriages in remote places
Legal Ratification by Cohabitation5 years
cohabitation
Marriages in Muslims and between those of ethnic
cultural communities.
Ship captains or airplane chiefs; and

Military commanders
Generally, consuls cannot solemnize these marriages
because they can only solemnize special marriages
or in special circumstances. As an exception, consuls
can solemnize marriages between persons who
cohabitated for 5 years if both are Filipino citizens
and they are abroad in the foreign assignments of
those officials.
Q: What is marriage in articulo mortis?

A: Marriage at the point of death
To maintain, as private respondent does, that, under our

laws, petitioner has to be considered still married to private
respondent and still subject to a wife's obligations under
Article 109, et. seq. of the Civil Code cannot be just.
Petitioner should not be obliged to live together with,
observe respect and fidelity, and render support to private
respondent. The latter should not continue to be one of her
heirs with possible rights to conjugal property. She should not
Q: What if the parties are healthy, but it is the solemnizing

officer who is dying. Will the marriage be valid?
A: No. The party at the point of death must refer to either or
both of the contracting parties.
Q: Suppose the dying party survives?
39

A: The case of Loria vs. Felix

Q: What are the obligations of the solemnizing officer?
A:
1.
2.
The solemnizing officer must ascertain if both parties

have all the qualifications or any of the impediments
Once satisfied with the qualifications of the parties,
solemnize the marriage and execute an affidavit
Arsenio De Loria and Ricarda de Loria v. Felipe Apelan Felix,

G.R. No. L-9005, June 20, 1958
Review of a decision of the Court of Appeals, involving the
central issue of the validity of the marriage in articulo mortis
between Matea. de la Cruz and Felipe Apelan Felix came
seriously ill. Knowing her critical condition, two young ladies
of legal age dedicated to the service of God, named Carmen
Ordiales and Judith Vizcarra visited and persuaded her to go
to confession. They fetched Father Gerardo Bautista, Catholic
parish priest of Pasay. The latter, upon learning that the
penitent had been living with Felipe Apelan Felix without
benefit of marriage, asked both parties to ratify their union
according to the rites of his Church. Both agreed. Whereupon
the priest heard the confession of the bed-ridden old woman,
gave her Holy Communion, administered the Sacrament of
Extreme Unction and then solemnized her marriage with
Felipe Apelan Felix in articulo mortis, Carmen Ordiales and
Judith Vizearra acting as sponsors or witnesses. It was then
January 29 or 30, 1945.
After a few months, Matea recovered from her sickness; but
death was not to be denied, and in January 1946, she was
interred in Pasay, the same Fr. Bautista performing the burial
ceremonies.
On May 12, 1952, Arsenio de Loria, and Ricarda de Loria filed
this complaint to compel defendant to render an accounting
and to deliver the properties left by the deceased. They are
grandchildren of Adriana de la Cruz, sister of Matea, and
claim to be the only surviving forced heirs of the latter. Felipe
Apelan Felix resisted the action, setting up his rights as
widower. They obtained favorable judgment in the court of
first instance, but on appeal the Court of Appeals reversed
and dismissed the complaint.
Their request for review here was given due course
principally to consider the legal question-which they amply
discussed in their petition and printed brief-whether the
events which took place in January 1945 constituted, in the
eyes of the law, a valid and binding marriage.
According to the Court of Appeals:
"There is no doubt at all in the mind of this Court, that Fr.

Gerardo Bautista, solemnized the marriage in articulo mortis
of Defendant Apelan Felix and Matea de la Cruz, on January
29 and 30, 1945, under the circumstances set forth in the
reverend's testimony in court. Fr. Bautista, a respectable old
priest of Pasay City then, had no reason to side one or the
other. * * * Notwithstanding this positive evidence on the
celebration or performance of the marriage in question,
Plaintiffs-Appellees contend that that the same was not in
articulo mortis, because Matea de la Cruz was not then on
the point of death. Fr. Bautista clearly testified, however, that
her condition at the time was bad; she was bed-ridden; and
according to his observation, she might die at any moment
(Exhibit 1), so apprehensive was he about her condition that
he decided in administering to her the sacrament of extreme
unction, after hearing her confession. x x x The greatest
objection of the Appellees and the trial court against the
validity of the marriage under consideration, is the admitted
fact that it was not registered."
The applicable legal provisions are contained in the Marriage
Law of 1929 (Act No. 3613) as amended by Commonwealth
Act No. 114 (Nov. 1936) specially sections 1, 3, 20 and 21.
There is no question about the officiating priest's authority to
solemnize marriage. There is also no question that the parties
had legal capacity to contract marriage, and that both
declared before Fr. Bautista and Carmen Ordiales and Judith
Vizcarra that "they took each other as husband and wife."
The appellants' contention of invalidity rests on these
propositions:
(a) There was no "marriage contract" signed by the
wedded couple the witnesses and the priest, as
required by section 3 of the Marriage Law; and
(b) (b) The priest filed no affidavit, nor recorded the
marriage with the local civil registry.
The factual basis of the first proposition-no signing may
seriously be doubted. The Court of Appeals made no finding
thereon. Indeed if anything, its decision impliedly held such
marriage contract to have been executed, since it said "the
marriage in articulo mortis was a fact", and the only question
at issue was whether "the failure of Fr. Bautista to send
copies of the certificate of marriage in question to the Local
Civil Registrar and to register the said marriage in the Record
of Marriages of the Pasay Catholic Church * * * renders the
said marriage invalid." And such was the only issue tendered
in the court of first instance. (See p. 14, 34, Record on
Appeal.)
However, we may as well face this second issue: Does the
failure to sign the "marriage certificate or contract"
constitute a cause for nullity?
Marriage contract is the "instrument in triplicate" mentioned
in sec. 3 of the Marriage Law which provides:
40

"SEC. 3. Mutual Consent.-No particular form for the

ceremony of marriage is required, but the parties with legal
capacity to contract marriage must declare, in the presence
of the person solemnizing the marriage and of two witnesses
of legal age, that they take each other as husband and wife.
This declaration shall be set forth in an instrument in
triplicate, signed by signature or mark by the contracting
parties and said two witnesses and attested by the person
solemnizing the marriage. (Italics ours) .
In the first place, the Marriage Law itself, in sections 28, 29
and 30 enumerates the causes for annulment of marriage.
Failure to sign the marriage contract is not -one of them.
In the second place, bearing in mind that the "essential
requisites for marriage are the legal capacity of the
contracting parties and their consent" (section 1), the latter
being manifested by the declaration of "the parties" "in the
presence of the person solemnizing the marriage and of two
witnesses of legal age that they take each other as husband
and wife"-which in this case actually occurred. We think the
signing of the marriage contract, or certificate was required
by the statute simply for the purpose of evidencing the act.
No statutory provision or court ruling has been cited making
it an essential requisite-not the formal requirement of
evidentiary value, which we believe it is. The fact of marriage
is one thing; the proof by which it may be established is quite
another.
"Certificate and Record.-Statutes relating to the
solemnization of marriage usually provide for the issuance of
a certificate of marriage and for the registration or recording
of marriage * * * Generally speaking, the registration or
recording of a marriage is not essential to its validity, the
statute being addressed to the officials issuing the license,
certifying the marriage, and making the proper return and
registration or recording." (Sec. 27 American Jurisprudence
"Marriage" p. 197-198.)
"Formal Requisites.- * * *The general rule, however, is that
statutes which direct that a license must be issued and
procured, that only certain persons shall perform the
ceremony, that a certain number of witnesses shall be
present, that a certificate of the marriage shall be signed,
returned, and recorded, and that persons violating the
conditions shall be guilty of a criminal offense, are addressed
to persons in authority to secure publicity and to require a
record to be made of the marriage contract. Such statutes do
not void common-law marriages unless they do so expressly,
even where such marriage are entered into without obtaining
a license and are not recorded. It is the purpose of these
statutes to discourage deception and seduction, prevent illicit
intercourse under the guise of matrimony, and relieve from
doubt the status of parties who live together as man and
wife, by providing competent evidence of the marriage. * *
*." (Section 1.5 American Jurisprudence "Marriage" pp. 188-
189.) Italics Ours. (See also Corpus Juris Secunduin "Marriage"

Sec. 33.)
And our law says, "no marriage shall be declared invalid
because of the absence of one or several formal
requirements of this Act * * *." (Section 27.)
In the third place, the law, imposing on the priest the duty to
furnish to the parties copies of such marriage certificate
(section 16) and punishing him for its omission (section 41)
implies his obligation to see that such "certificate" is
executed accordingly. Hence, it would not be fair to visit upon
the wedded couple in the form of annulment, Father
Bautista's omission, if any, which apparently had been caused
by the prevailing disorder during the liberation of Manila and
its environs.
Identical remarks apply to the priest's failure to make and file
the affidavit required by sections 20 and 21. It was the
priest's obligation; non-compliance with it, should bring no
serious consequences to the married pair, especially where as
in this case, it was caused by the emergency.
"The mere fact that the parish priest who married the
plaintiff's natural father and mother, while the latter was in
articulo mortis, failed to send a copy of the marriage
certificate to the municipal secretary, does not invalidate said
marriage, since it does not appear that in the celebration
thereof all requisites for its validity were not present, the
forwarding of a copy of the marriage certificate not being one
of the requisites." (Jones vs. Hortiguela, 64 Phil. 179.) See also
Madridejo vs. De Leon, 55 Phil. I.
The law permits in articulo, mortis marriages, without
marriage license; but it requires the priest to make the
affidavit and file it. Such affidavit contains the data usually
required for the issuance of a marriage license. The first
practically substitutes the latter. Now then, if a marriage
celebrated without the license is not voidable (under Act
3613), 5 this marriage should not also be voidable for lack of
such affidavit.
In line with the policy to encourage the legalization of the
union of men and women who have lived publicly in a state of
concubinage 6, (section 22), we must hold this marriage to be
valid.
The widower, needless to add, has better rights to the estate
of the deceased than the plaintiffs who are the grandchildren
of her sister Adriana. "In the absence of brothers or sisters
and of nephews, children of the former, * * * the surviving
spouse * * * shall succeed to the entire estate of the
deceased." (Art 952, Civil Code.)
41

ARTICLE 28 If the residence of either party is so located that

there is no means of transportation to enable such party to
appear personally before the local civil registrar, the
marriage may be solemnized without necessity of a
marriage license. (72a)
Q: What does marriage in remote places contemplate?
A: It refers to places wherein there are no means of
communication
If there are available animals or Bangka, it is not a remote
place.
A person is not a means of transportation. The piggy back
cannot be considered as a means of communication.
Q: When does Article 72 of the New Civil Code apply?
A: It applies only if the FEMALE resides more than 15
kilometers from the municipal building.*
*But under the Family Code, the rule will already apply
whether the party is a male or a female. The Family Code
does not specify the distance of the residence of either party
from the municipal building.
ARTICLE 29 In the cases provided for in the two preceding
articles, the solemnizing officer shall state in an affidavit
executed before the local civil registrar or any other person
legally authorized to administer oaths that the marriage was
performed in articulo mortis or that the residence of either
party, specifying the barrio or barangay, is so located that
there is no means of transportation to enable such party to
appear personally before the local civil registrar and that the
officer took the necessary steps to ascertain the ages and
relationship of the contracting parties and the absence of
legal impediment to the marriage. (72a)
ARTICLE 30 The original of the affidavit required in the last
preceding article, together with the legible copy of the
marriage contract, shall be sent by the person solemnizing
the marriage to the local civil registrar of the municipality
where it was performed within the period of thirty days
after the performance of the marriage. (75a)
1.
2.
Ascertain if the parties possesses all the

qualifications and none of the disqualifications
(absence of the impediments to marry)
Affidavit that the marriage was in articulo mortis or
in remote places.
Q: What is the effect of the failure to comply with the

obligations of the solemnizing officer?
A: The marriage is still valid because the obligation is not
imposed upon the parties but upon the solemnizing officer.
Q: What if the affidavit required from the contracting
parties was not executed?
A: If the affidavit is required of the contracting parties, failure
to execute such will nullify the marriage, because it takes the
place of the Marriage License. Such affidavit of the
contracting parties is what excuses the parties from getting a
License.
Marriage in
Articulo
Mortis
Only
1
affidavit
Affidavit
that
the
marriage
was
in
articulo
mortis
Remote
Places
5 Years Cohabitation
Only
1
affidavit
Affidavit
that
the
marriage
was
in
remote
places
2
affidavits
are
required
1. Affidavit by the
solemnizing
officer
2. Affidavit by the
contracting
parties
NOTE: It is only in the case of cohabitation for at least 5 years

under Art. 34 that the law requires 2 affidavits, one by the
Solemnizing Officer and the other by the Contracting parties,
because as regards marriages in articulo mortis and marriage
in remote places, these are situations which can easily be
ascertained by the solemnizing officer.
However, as regards the case of cohabitation for at least 5
years, no matter how long and how much the solemnizing
officer looks into the parties, he can never ascertain that they
cohabitated together for 5 years. It is only the contracting
parties who can ascertain this. Thus, their affidavit of such
fact is required.
Obligations of the solemnizing officer

Q: What are the obligations of the solemnizing officer in
marriages in articulo mortis and in remote places?
A: Art. 29 an Art. 30 provides for the obligations of the
solemnizing officer in marriages in articulo mortis and in
remote places:
ARTICLE 31 A marriage in articulo mortis between

passengers or crew members may also be solemnized by a
ship captain or by an airplane pilot not only while the ship is
at sea or the plane is in flight, but also during stopovers at
ports of call. (74a)
ARTICLE 32 A military commander of a unit, who is a
commissioned officer, shall likewise have authority to
solemnize marriages in articulo mortis between persons
42

within the zone of military operation, whether members of

the armed forces or civilians. (74a)
The reason for the 5 consecutive year period is to allow existence of

impediment during this period will encourage immorality.
ARTICLE 33 Marriages among Muslims or among members

of the ethnic cultural communities may be performed
validly without the necessity of marriage license, provided
they are solemnized in accordance with their customs, rites
or practices. (78)
May the heirs of a deceased person file a petition for the

declaration of nullity of his marriage after his death?
Q: What is it that does away with the license requirement?

A: It is the fact that the marriage was celebrated in
accordance with the corresponding customs, rites, and
traditions.
NOTE: To be exempted, it is essential that the parties belong
to the cultural communities or are Muslims.
Under the Family code, the place of the celebration of
marriages without the marriage license between Muslims or
members of the ethnic cultural communities is no longer
essential or material for their validity. The marriage may be
solemnized in a Non-Muslim area, as long as it is performed
in accordance with the customs, rites, and practices.
ARTICE 34 No license shall be necessary for the marriage of
a man and a woman who have lived together as husband
and wife for at least five years and without any legal
impediment to marry each other. The contracting parties
shall state the foregoing facts in an affidavit before any
person authorized by law to administer oaths. The
solemnizing officer shall also state under oath that he
ascertained the qualifications of the contracting parties are
found no legal impediment to the marriage. (76a)
Legal Ratification by Cohabitation
A:
1.
2.
3.
When a man and a woman live together exclusively

as husband and wife without the benefit of marriage
For continuous or consecutive period of at least 5
years
The parties have no impediment to get married
Engrace Nial v. Norma Bayadog

G.R. No. 133778, March 14, 2000
The nature of the relationship should be a perfect union that is
valid under the law but rendered imperfect only by the absence of
the marriage contract. The absence of impediment must be during
the 5-year period and the period of cohabitation must be at least 5
consecutive years prior to the marriage.
Pepito Nial was married to Teodulfa Bellones on September

26, 1974. Out of their marriage were born herein petitioners.
Teodulfa was shot by Pepito resulting in her death on April
24, 1985. One year and 8 months thereafter or on December
11, 1986, Pepito and respondent Norma Badayog got married
without any marriage license. In lieu thereof, Pepito and
Norma executed an affidavit dated December 11, 1986
stating that they had lived together as husband and wife for
at least five years and were thus exempt from securing a
marriage license. On February 19, 1997, Pepito died in a car
accident. After their fathers death, petitioners filed a petition
for declaration of nullity of the marriage of Pepito to Norma
alleging that the said marriage was void for lack of a marriage
license. The case was filed under the assumption that the
validity or invalidity of the second marriage would affect
petitioners successional rights. Norma filed a motion to
dismiss on the ground that petitioners have no cause of
action since they are not among the persons who could file
an action for "annulment of marriage" under Article 47 of the
Family Code.
Judge Ferdinand J. Marcos of the Regional Trial Court of
Toledo City, Cebu, Branch 59, dismissed the petition after
finding that the Family Code is "rather silent, obscure,
insufficient" to resolve the following issues:
(1) Whether or not plaintiffs have a cause of action
against defendant in asking for the declaration of the
nullity of marriage of their deceased father, Pepito
G. Nial, with her specially so when at the time of
the filing of this instant suit, their father Pepito G.
Nial is already dead;
(2) Whether or not the second marriage of plaintiffs
deceased father with defendant is null and void ab
initio;
(3) Whether or not plaintiffs are estopped from assailing
the validity of the second marriage after it was
dissolved due to their fathers death.
Thus, the lower court ruled that petitioners should have filed
the action to declare null and void their fathers marriage to
respondent before his death, applying by analogy Article 47
of the Family Code which enumerates the time and the
persons who could initiate an action for annulment of
marriage. Hence, this petition for review with this Court
grounded on a pure question of law.
This petition was originally dismissed for non-compliance
with Section 11, Rule 13 of the 1997 Rules of Civil Procedure,
and because "the verification failed to state the basis of
petitioners averment that the allegations in the petition are
true and correct." It was thus treated as an unsigned
43

pleading which produces no legal effect under Section 3, Rule

7, of the 1997 Rules.3 However, upon motion of petitioners;
this Court reconsidered the dismissal and reinstated the
petition for review.
The two marriages involved herein having been solemnized
prior to the effectivity of the Family Code (FC), the applicable
law to determine their validity is the Civil Code which was the
law in effect at the time of their celebration. A valid marriage
license is a requisite of marriage under Article 53 of the Civil
Code, the absence of which renders the marriage void ab
initio pursuant to Article 80(3)7 in relation to Article 58.8 The
requirement and issuance of marriage license is the States
demonstration of its involvement and participation in every
marriage, in the maintenance of which the general public is
interested. This interest proceeds from the constitutional
mandate that the State recognizes the sanctity of family life
and of affording protection to the family as a basic
"autonomous social institution." Specifically, the Constitution
considers marriage as an "inviolable social institution," and is
the foundation of family life which shall be protected by the
State. This is why the Family Code considers marriage as "a
special contract of permanent union" and case law considers
it "not just an adventure but a lifetime commitment."
However, there are several instances recognized by the Civil
Code wherein a marriage license is dispensed with, one of
which is that provided in Article 76, referring to the marriage
of a man and a woman who have lived together and
exclusively with each other as husband and wife for a
continuous and unbroken period of at least five years before
the marriage. The rationale why no license is required in such
case is to avoid exposing the parties to humiliation, shame
and embarrassment concomitant with the scandalous
cohabitation of persons outside a valid marriage due to the
publication of every applicants name for a marriage license.
The publicity attending the marriage license may discourage
such persons from legitimizing their status. To preserve peace
in the family, avoid the peeping and suspicious eye of public
exposure and contain the source of gossip arising from the
publication of their names, the law deemed it wise to
preserve their privacy and exempt them from that
requirement.
There is no dispute that the marriage of petitioners father to
respondent Norma was celebrated without any marriage
license. In lieu thereof, they executed an affidavit stating that
"they have attained the age of majority, and, being
unmarried, have lived together as husband and wife for at
least five years, and that we now desire to marry each other."
The only issue that needs to be resolved pertains to what
nature of cohabitation is contemplated under Article 76 of
the Civil Code to warrant the counting of the five year period
in order to exempt the future spouses from securing a
marriage license. Should it be a cohabitation wherein both
parties are capacitated to marry each other during the entire
five-year continuous period or should it be a cohabitation
wherein both parties have lived together and exclusively with

each other as husband and wife during the entire five-year
continuous period regardless of whether there is a legal
impediment to their being lawfully married, which
impediment may have either disappeared or intervened
sometime during the cohabitation period?
Working on the assumption that Pepito and Norma have lived
together as husband and wife for five years without the
benefit of marriage, that five-year period should be
computed on the basis of a cohabitation as "husband and
wife" where the only missing factor is the special contract of
marriage to validate the union. In other words, the five-year
common-law cohabitation period, which is counted back
from the date of celebration of marriage, should be a period
of legal union had it not been for the absence of the
marriage. This 5-year period should be the years immediately
before the day of the marriage and it should be a period of
cohabitation characterized by exclusivity meaning no third
party was involved at any time within the 5 years and
continuity that is unbroken. Otherwise, if that continuous 5year cohabitation is computed without any distinction as to
whether the parties were capacitated to marry each other
during the entire five years, then the law would be
sanctioning immorality and encouraging parties to have
common law relationships and placing them on the same
footing with those who lived faithfully with their spouse.
Marriage being a special relationship must be respected as
such and its requirements must be strictly observed. The
presumption that a man and a woman deporting themselves
as husband and wife is based on the approximation of the
requirements of the law. The parties should not be afforded
any excuse to not comply with every single requirement and
later use the same missing element as a pre-conceived
escape ground to nullify their marriage. There should be no
exemption from securing a marriage license unless the
circumstances clearly fall within the ambit of the exception. It
should be noted that a license is required in order to notify
the public that two persons are about to be united in
matrimony and that anyone who is aware or has knowledge
of any impediment to the union of the two shall make it
known to the local civil registrar. The Civil Code provides:
Article 63: "x x x. This notice shall request all persons having
knowledge of any impediment to the marriage to advice the
local civil registrar thereof. x x x."
Article 64: "Upon being advised of any alleged impediment to
the marriage, the local civil registrar shall forthwith make an
investigation, examining persons under oath. x x x" Sdaad
This is reiterated in the Family Code thus:
Article 17 provides in part: "x x x. This notice shall request all
persons having knowledge of any impediment to the
marriage to advise the local civil registrar thereof. x x x."
44

Article 18 reads in part: "x x x. In case of any impediment

known to the local civil registrar or brought to his attention,
he shall note down the particulars thereof and his findings
thereon in the application for a marriage license. x x x."
This is the same reason why our civil laws, past or present,
absolutely prohibited the concurrence of multiple marriages
by the same person during the same period. Thus, any
marriage subsequently contracted during the lifetime of the
first spouse shall be illegal and void, subject only to the
exception in cases of absence or where the prior marriage
was dissolved or annulled. The Revised Penal Code
complements the civil law in that the contracting of two or
more marriages and the having of extramarital affairs are
considered felonies, i.e., bigamy and concubinage and
adultery. The law sanctions monogamy.
In this case, at the time of Pepito and respondents marriage,
it cannot be said that they have lived with each other as
husband and wife for at least five years prior to their wedding
day. From the time Pepitos first marriage was dissolved to
the time of his marriage with respondent, only about twenty
months had elapsed. Even assuming that Pepito and his first
wife had separated in fact, and thereafter both Pepito and
respondent had started living with each other that has
already lasted for five years, the fact remains that their fiveyear period cohabitation was not the cohabitation
contemplated by law. It should be in the nature of a perfect
union that is valid under the law but rendered imperfect only
by the absence of the marriage contract. Pepito had a
subsisting marriage at the time when he started cohabiting
with respondent. It is immaterial that when they lived with
each other, Pepito had already been separated in fact from
his lawful spouse. The subsistence of the marriage even
where there was actual severance of the filial companionship
between the spouses cannot make any cohabitation by either
spouse with any third party as being one as "husband and
wife".
Having determined that the second marriage involved in this
case is not covered by the exception to the requirement of a
marriage license, it is void ab initio because of the absence of
such element.
The next issue to be resolved is: do petitioners have the
personality to file a petition to declare their fathers marriage
void after his death?
Contrary to respondent judges ruling, Article 47 of the Family
Code20 cannot be applied even by analogy to petitions for
declaration of nullity of marriage. The second ground for
annulment of marriage relied upon by the trial court, which
allows "the sane spouse" to file an annulment suit "at any
time before the death of either party" is inapplicable. Article
47 pertains to the grounds, periods and persons who can file
an annulment suit, not a suit for declaration of nullity of
marriage. The Code is silent as to who can file a petition to
declare the nullity of a marriage. Voidable and void marriages

are not identical. A marriage that is annulable is valid until
otherwise declared by the court; whereas a marriage that is
void ab initio is considered as having never to have taken
place and cannot be the source of rights. The first can be
generally ratified or confirmed by free cohabitation or
prescription while the other can never be ratified. A voidable
marriage cannot be assailed collaterally except in a direct
proceeding while a void marriage can be attacked collaterally.
Consequently, void marriages can be questioned even after
the death of either party but voidable marriages can be
assailed only during the lifetime of the parties and not after
death of either, in which case the parties and their offspring
will be left as if the marriage had been perfectly valid. That is
why the action or defense for nullity is imprescriptible, unlike
voidable marriages where the action prescribes. Only the
parties to a voidable marriage can assail it but any proper
interested party may attack a void marriage. Void marriages
have no legal effects except those declared by law concerning
the properties of the alleged spouses, regarding coownership or ownership through actual joint contribution,
and its effect on the children born to such void marriages as
provided in Article 50 in relation to Article 43 and 44 as well
as Article 51, 53 and 54 of the Family Code. On the contrary,
the property regime governing voidable marriages is
generally conjugal partnership and the children conceived
before its annulment are legitimate.
Contrary to the trial courts ruling, the death of petitioners
father extinguished the alleged marital bond between him
and respondent. The conclusion is erroneous and proceeds
from a wrong premise that there was a marriage bond that
was dissolved between the two. It should be noted that their
marriage was void hence it is deemed as if it never existed at
all and the death of either extinguished nothing.
Jurisprudence under the Civil Code states that no judicial
decree is necessary in order to establish the nullity of a
marriage. "A void marriage does not require a judicial decree
to restore the parties to their original rights or to make the
marriage void but though no sentence of avoidance be
absolutely necessary, yet as well for the sake of good order of
society as for the peace of mind of all concerned, it is
expedient that the nullity of the marriage should be
ascertained and declared by the decree of a court of
competent jurisdiction." "Under ordinary circumstances, the
effect of a void marriage, so far as concerns the conferring of
legal rights upon the parties, is as though no marriage had
ever taken place. And therefore, being good for no legal
purpose, its invalidity can be maintained in any proceeding in
which the fact of marriage may be material, either direct or
collateral, in any civil court between any parties at any time,
whether before or after the death of either or both the
husband and the wife, and upon mere proof of the facts
rendering such marriage void, it will be disregarded or
treated as non-existent by the courts." It is not like a voidable
marriage which cannot be collaterally attacked except in
45

direct proceeding instituted during the lifetime of the parties

so that on the death of either, the marriage cannot be
impeached, and is made good ab initio. But Article 40 of the
Family Code expressly provides that there must be a judicial
declaration of the nullity of a previous marriage, though void,
before a party can enter into a second marriage and such
absolute nullity can be based only on a final judgment to that
effect. For the same reason, the law makes either the action
or defense for the declaration of absolute nullity of marriage
imprescriptible. Corollarily, if the death of either party would
extinguish the cause of action or the ground for defense, then
the same cannot be considered imprescriptible.
However, other than for purposes of remarriage, no judicial
action is necessary to declare a marriage an absolute nullity.
For other purposes, such as but not limited to determination
of heirship, legitimacy or illegitimacy of a child, settlement of
estate, dissolution of property regime, or a criminal case for
that matter, the court may pass upon the validity of marriage
even in a suit not directly instituted to question the same so
long as it is essential to the determination of the case. This is
without prejudice to any issue that may arise in the case.
When such need arises, a final judgment of declaration of
nullity is necessary even if the purpose is other than to
remarry. The clause "on the basis of a final judgment
declaring such previous marriage void" in Article 40 of the
Family Code connotes that such final judgment need not be
obtained only for purpose of remarriage.
NOTE: According to Dean Aligada, the Family Code and the

Civil Code on this provision of the law seeks to give a chance
for the parties to legalize their union. Thus, broken period will
suffice.
Classification of Marriage under the Family Code:
Q: What are the 3 kinds of marriages under the FC?
A:
1.
2.
3.
Valid marriage
Voidable marriage
Void marriagethose covered by Articles 35, 36, 37,
and 38.
Q: Distinguish between Void and Voidable marriages.

A:
VOID MARRIAGES
Non-existent
from
solemnization
Can
never
be
convalidated
Co-ownership property
VOIDABLE MARRIAGES
Valid until annulled
Convalidated
by
cohabitation of parties
Absolute
community
regime
property except if other

property regime was
agreed upon
legitimate
GR: illegitimate
XPN: Those conceived or
born of marriages voided
under
Art.
36
(Psychological Capacity)
or Art. 52 in relation to
Art. 53
Can be Directly or
collaterally attack
Imprescriptible
Only direct attack

Prescriptibleperiod
depends on ground for
annulment
VOID MARRIAGES
ARTICLE 35 The following marriages shall be void from the
beginning:
(1) Those contracted by any party below eighteen
years of age even with the consent of parents or
guardians;
(2) Those solemnized by any person not legally
authorized to perform marriages unless such
marriages were contracted with either or both
parties believing in good faith that the solemnizing
officer had the legal authority to do so;
(3) Those solemnized without license, except those
covered the preceding Chapter;
(4) Those bigamous or polygamous marriages not
failing under Article 41;
(5) Those contracted through mistake of one
contracting party as to the identity of the other;
and
(6) Those subsequent marriages that are void under
Article 53.
NOTE: Art. 35, par.5- Mistake in Identity- this refers to
mistake in the identity of the other contracting party in order
to make the marriage void.
Art. 35, par.6- Subsequent Marriages that are void under
Art.53: This refers to the Recording in the Civil Registry of the
Judgment of Annulment or Declaration of Nullity of Marriage,
the Partition and Distribution of the properties, and the
Delivery of the Presumptive Legitimes in the appropriate Civil
Registries or Registries of Property.
ARTICLE 36 A marriage contracted by any party who, at the
time of the celebration, was psychologically incapacitated to
comply with the essential marital obligations of marriage,
shall likewise be void even if such incapacity becomes
46

manifest only after its solemnization. (As amended by

Executive Order 227)
1.
2.
NOTE: One of the void marriages under the FC is under Sec.

36 which has no counter-part in the CC.
This was the result of the clamor of the women for a law on
absolute divorce.
The members of the Code Committee thought of this as the
answer to such clamor. It serves as a happy compromise
between those who want absolute divorce and those who are
against it.
This provision was taken from Canon Law. When the FC
became a law, together with Art. 36, we had no jurisprudence
on this matter and so the SC had to rely on the decisions
regarded by the Matrimonial Tribunal regarding psychological
incapacity.
Under Canon Law, a marriage is either valid or void. There is
no annulment, only declaration of nullity. Under the Canon
Law, when a marriage is void, it remains void.
What we took from Canon law is the provision on
psychological incapacity.
Take note that the law does not define psychological
incapacity. It says incapacity to comply with the essential
obligations of marriage.
Rights and obligations of the spouses
In Art. 68, you will find the rights and obligations of the
spouses to each other:
a.
Incapacity to perform the Marital Act

Incapacity to comply with the essential obligations of
marriage.
Either or both of the parties may be declared Psychologically

Incapacitated.
Santos v. CA
In this case, the SC ruled that the mere absence for a period
of 5 years does not constitute Psychological incapacity to
comply with the essential marital obligations of marriage.
The psychologically incapacitated person can ask the court to
declare his marriage void.
After a person has been declared psychologically
incapacitated, he can still re-marry, provided it is shown that
the incapacity no longer exists (Dean Aligada)
According to J. Sempio-Dy, the fact of psychological
incapacity of the person will be revealed anyway when the
parties apply for marriage license for the second marriage
and the other party is thus placed on guard to conduct
discreet investigation about the matter. She also referred to
Fr. Healy who said that a psychologically incapacitated person
may be all right for one but not for another because the
former relationship compensates while the latter aggravates
the problem.
Q: In relation to Art. 45, may the grounds for annulment or
legal separation be utilized as grounds for declaration of
nullity under psychological incapacity?
Live together- means under the same roof;

includes sexual intercourse
love each other- love cannot be commanded. This
did not exist under the CC.
respect each other
observe fidelity to one another
render mutual help and support
A: It depends. There are grounds for annulment or legal

separation which can be utilized as grounds for psychological
incapacity. There are grounds common to psychological
incapacity and legal separation.
If you cannot comply with these obligations, something may

be wrong with you psychologically and this becomes a ground
for declaration of nullity.
A: They may be utilized as grounds as long as the action to be

brought has not yet prescribed.
b.
c.
d.
e.
Q: When may they be used?
Q: Is impotency included in Psychological Incapacity?

Incapacity- must exist at the time of the celebration of the
marriage, although it may become manifest only during the
marriage.
KINDS OF INCAPACITY UNDER FC
A: Yes.
In their book Canons and Commentaries on Marriage,
Ignatius Gramunt, Javier Hervada and LeRoy Wauck wrote
that the incapacity consists of the ff:
Q: What are the kinds of Incapacity under the Family Code?

1.
A:
A true inability to commit oneself to the essentials of

marriage
47

November 5, 1992. Nevertheless, the prosecutor found no evidence of
2. This inability to commit oneself must refer to the
collusion and recommended that the case be set for trial.
3.
essential obligations of marriage; the conjugal act,

the community of life and love, the rendering of
mutual help, the procreation and education of
offspring.
The inability must be tantamount to a psychological
abnormality. The mere difficulty of assuming these
obligations, which could be overcome by normal
effort. It must be a true psychological disorder that
incapacitates a person from giving what is due.
Dr. Gerardo Veloso, a former Presiding Judge of the

Metropolitan Marriage Tribunal of the Catholic Archdiocese
of Manila who opines that psychological incapacity must be
characterized by:
1.
2.
3.
Gravity- the incapacity must be grave or serious such

that the party would be incapable of carrying out the
ordinary duties required in marriage.
Juridical Antecedence- the incapacity must be
rooted in the history of the party antedating the
marriage, although the over manifestation may
emerge only after the marriage; and
Incurability- the incapacity must be incurable, or if
curable, the cure would be beyond the means of the
party involved.
Lucita Estrella Hernandez v. CA

G.R. No. 126010, December 8, 1999
Petitioner Lucita Estrella Hernandez and private respondent Mario C.
Hernandez were married at the Silang Catholic Parish Church in Silang, Cavite
on January 1, 1981 (Exh. A). Three children were born to them, namely,
Marie, who was born on May 3, 1982 (Exh. B),3 Lyra, born on May 22, 1985
(Exh. C),4 and Marian, born on June 15, 1989 (Exh. D).
On July 10, 1992, petitioner filed before the Regional Trial Court, Branch 18,
Tagaytay City, a petition seeking the annulment of her marriage to private
respondent on the ground of psychological incapacity of the latter. She
alleged that their marriage up to the time of the filing of the suit, private
respondent failed to perform his obligation to support the family and
contribute to the management of the household, devoting most of his time
engaging in drinking sprees with his friends. She further claimed that private
respondent, after they were married, cohabited with another woman with
whom he had an illegitimate child, while having affairs with different women,
and that, because of his promiscuity, private respondent endangered her
health by infecting her with a sexually transmissible disease (STD). She
averred that private respondent was irresponsible, immature and
unprepared for the duties of a married life. Petitioner prayed that for having
abandoned the family, private respondent be ordered to give support to
their three children in the total amount of P9,000.00 every month; that she
be awarded the custody of their children; and that she be adjudged as the
sole owner of a parcel of land located at Don Gregorio Subdivision I in Bo.
Bucal, Dasmarias, Cavite, purchased during the marriage, as well as the jeep
which private respondent took with him when he left the conjugal home on
June 12, 1992.
On October 8, 1992, because of private respondents failure to file his
answer, the trial court issued an order directing the assistant provincial
prosecutor to conduct an investigation to determine if there was collusion
between the parties. Only petitioner appeared at the investigation on
Based on the evidence presented by the petitioner, the facts are as follows:
Petitioner and private respondent met in 1977 at the Philippine Christian
University in Dasmarias, Cavite. Petitioner, who is five years older than
private respondent, was then in her first year of teaching zoology and
botany. Private respondent, a college freshman, was her student for two
consecutive semesters. They became sweethearts in February 1979 when
she was no longer private respondents teacher.
On January 1, 1981, they were married.
Private respondent continued his studies for two more years. His parents
paid for his tuition fees, while petitioner provided his allowances and other
financial needs. The family income came from petitioners salary as a faculty
member of the Philippine Christian University. Petitioner augmented her
earnings by selling Tupperware products, as well as engaging in the buyand-sell of coffee, rice and polvoron.
From 1983 up to 1986, as private respondent could not find a stable job, it
was agreed that he would help petitioner in her businesses by delivering
orders to customers. However, because her husband was a spendthrift and
had other women, petitioners business suffered. Private respondent often
had smoking and drinking sprees with his friends and betted on fighting
cocks. In 1982, after the birth of their first child, petitioner discovered two
love letters written by a certain Realita Villena to private respondent. She
knew Villena as a married student whose husband was working in Saudi
Arabia. When petitioner confronted private respondent, he admitted having
an extra-marital affair with Villena. Petitioner then pleaded with Villena to
end her relationship with private respondent. For his part, private
respondent said he would end the affairs, but he did not keep his promise.
Instead, he left the conjugal home and abandoned petitioner and their child.
When private respondent came back, however, petitioner accepted him,
despite private respondents infidelity in the hope of saving their marriage.
Upon the recommendation of a family friend, private respondent was able to
get a job at Reynolds Philippines, Inc. in San Agustin, Dasmarias, Cavite in
1986. However, private respondent was employed only until March 31,
1991, because he availed himself of the early retirement plan offered by the
company. He received P53,000.00 in retirement pay, but instead of spending
the amount for the needs of the family, private respondent spent the money
on himself and consumed the entire amount within four months of his
retirement.
While private respondent worked at Reynolds Philippines, Inc., his smoking,
drinking, gambling and womanizing became worse. Petitioner discovered
that private respondent carried on relationships with different women. He
had relations with a certain Edna who worked at Yazaki; Angie, who was an
operator of a billiard hall; Tess, a Japayuki; Myrna Macatangay, a secretary
at the Road Master Drivers School in Bayan, Dasmarias, Cavite, with whom
he cohabited for quite a while; and, Ruth Oliva, by whom he had a daughter
named Margie P. Oliva, born on September 15, 1989 (Exh. E). When
petitioner confronted private respondent about his relationship with Tess, he
beat her up, as a result of which she was confined at the De la Salle
University Medical Center in Dasmarias, Cavite on July 4-5, 1990 because of
cerebral concussion (Exh. F).
According to petitioner, private respondent engaged in extreme promiscuous
conduct during the latter part of 1986. As a result, private respondent
contracted gonorrhea and infected petitioner. They both received treatment
at the Zapote Medical Specialists Center in Zapote, Bacoor, Cavite from
October 22, 1986 until March 13, 1987 (Exhs. G & H).
Petitioner averred that on one occasion of a heated argument, private
respondent hit their eldest child who was then barely a year old. Private
respondent is not close to any of their children as he was never affectionate
and hardly spent time with them.
On July 17, 1979, petitioner entered into a contract to sell (Exh. J)13 with F &
C Realty Corporation whereby she agreed to buy from the latter a parcel of
land at the Don Gregorio Heights Subdivision I in Bo. Bucal, Dasmarias,
48

Cavite and placed a partial payment of P31,330.00. On May 26, 1987, after
provisions of Article 46, paragraph (3) of the same law should be taken in
full payment of the amount of P51,067.10, inclusive of interests from
conjunction with Article 45, paragraph (3) of the same code, and a careful
monthly installments, a deed of absolute sale (Exh. K)14 was executed in her
reading of the two (2) provisions of the law would require the existence of
favor and TCT No. T-221529 (Exh. M)15 was duly issued.
this ground (fraud) at the time of the celebration of the marriage. Hence, the
annulment of petitioners marriage with the respondent on this ground, as
According to petitioner, on August 1, 1992, she sent a handwritten letter to
alleged and proved in the instant case, cannot be legally accepted by the
private respondent expressing her frustration over the fact that her efforts to
Court.
save their marriage proved futile. In her letter, petitioner also stated that
she was allowing him to sell their owner-type jeepney and to divide the
Petitioner appealed to the Court of Appeals which, on January 30, 1996,
proceeds of the sale between the two of them. Petitioner also told private
rendered its decision affirming the decision of the trial court. Citing the
respondent of her intention to file a petition for the annulment of their
ruling in Santos v. Court of Appeals, the Court of Appeals held:
marriage.
It is clear in the above law and jurisprudence that the psychological
It does not appear that private respondent ever replied to petitioners letter.
incapacity of a spouse, as a ground for declaration of nullity of marriage,
By this time, he had already abandoned petitioner and their children. In
must exist at the time of the celebration of marriage. More so, chronic
October 1992, petitioner learned that private respondent left for the Middle
sexual infidelity, abandonment, gambling and use of prohibited drugs are not
East. Since then, private respondents whereabouts had been unknown.
grounds per se, of psychological incapacity of a spouse.
Ester Alfaro, petitioners childhood friend and co-teacher at the Philippine
Christian University, testified during the hearing on the petition for
We agree with the Solicitor General that petitioner-appellant failed to prove
annulment. She said that sometime in June 1979, petitioner introduced
that her respondent-husband was psychologically incapacitated at the time
private respondent to her (Alfaro) as the formers sweetheart. Alfaro said
of the celebration of the marriage. Certainly, petitioner-appellants
she was not impressed with private respondent who was her student in
declaration that at the time of their marriage her respondent-husbands
accounting. She observed private respondent to be fun-loving, spending
character was on the borderline between a responsible person and the
most of his time with campus friends. In November 1980, when petitioner
happy-go-lucky, could not constitute the psychological incapacity in
asked Alfaro to be one of the secondary sponsors at her forthcoming
contemplation of Article 36 of the Family Code. In fact, petitioner-appellant
wedding, Alfaro wanted to dissuade petitioner from going through with the
herself ascribed said attitude to her respondent-husbands youth and very
wedding because she thought private respondent was not ready for married
good looks, who was admittedly several years younger than petitionerlife as he was then unemployed. True enough, although the couple appeared
appellant who, herself, happened to be the college professor of her
happy during the early part of their marriage, it was not long thereafter that
respondent-husband. Petitioner-appellant even described her respondentprivate respondent started drinking with his friends and going home late at
husband not as a problem student but a normal one (p. 24, tsn, Dec. 8,
night. Alfaro corroborated petitioners claim that private respondent was a
1992).
habitual drunkard who carried on relationships with different women and
continued hanging out with his friends. She also confirmed that petitioner
The acts and attitudes complained of by petitioner-appellant happened after
was once hospitalized because she was beaten up by private respondent.
the marriage and there is no proof that the same have already existed at the
After the first year of petitioners marriage, Alfaro tried to talk to private
time of the celebration of the marriage to constitute the psychological
respondent, but the latter accused her of meddling with their marital life.
incapacity under Article 36 of the Family Code.
Alfaro said that private respondent was not close to his children and that he
had abandoned petitioner.
On April 10, 1993, the trial court rendered a decision dismissing the petition
for annulment of marriage filed by petitioner. The pertinent portion of the
decision reads: The Court can underscore the fact that the circumstances
mentioned by the petitioner in support of her claim that respondent was
psychologically incapacitated to marry her are among the grounds cited by
the law as valid reasons for the grant of legal separation (Article 55 of the
Family Code) - not as grounds for a declaration of nullity of marriages or
annulment thereof. Thus, Article 55 of the same code reads as follows:
Art. 55. A petition for legal separation may be filed on any of the following
grounds:
(1) Repeated physical violence or grossly abusive conduct directed against
the petitioner, a common child, or a child of the petitioner;
....
(5) Drug addiction or habitual alcoholism of the respondent;
....
(8) Sexual infidelity or perversion;
....
(10) Abandonment of petitioner by respondent without justifiable cause for
more than one year.
....
If indeed Article 36 of the Family Code of the Philippines, which mentions
psychological incapacity as a ground for the declaration of the nullity of a
marriage, has intended to include the above-stated circumstances as
constitutive of such incapacity, then the same would not have been
enumerated as grounds for legal separation.
In the same manner, this Court is not disposed to grant relief in favor of the
petitioner under Article 46, paragraph (3) of the Family Code of the
Philippines, as there is no dispute that the gonorrhea transmitted to the
petitioner by respondent occurred sometime in 1986, or five (5) years after
petitioners marriage with respondent was celebrated in 1981. The
ISSUE: Whether or not the marriage of petitioner and private

respondent should be annulled on the ground of private
respondents psychological incapacity.
HELD: Art. 36 of the Family Code states:
A marriage contracted by any party who, at the time of the celebration, was
psychologically incapacitated to comply with the essential marital obligations
of marriage, shall likewise be void even if such incapacity becomes manifest
only after its solemnization.
In Santos v. Court of Appeals, we held:
Psychological incapacity should refer 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 which, as so expressed by Article 68 of the Family
Code, include their mutual obligations to live together, observe love, respect
and fidelity and render help and support. There is hardly any doubt that the
intendment of the law has been to confine the meaning of psychological
incapacity to the most serious cases of personality disorders clearly
demonstrative of an utter insensitivity or inability to give meaning and
significance to the marriage. This psychological condition must exist at the
time the marriage is celebrated. The law does not evidently envision, upon
the other hand, an inability of the spouse to have sexual relations with the
other. This conclusion is implicit under Article 54 of the Family Code which
considers children conceived prior to the judicial declaration of nullity of the
void marriage to be legitimate.
The other forms of psychoses, if existing at the inception of marriage, like the
state of a party being of unsound mind or concealment of drug addiction,
habitual alcoholism, homosexuality or lesbianism, merely renders the
marriage contract voidable pursuant to Article 46, Family Code. If drug
49

addiction, habitual alcoholism, lesbianism or homosexuality should occur
time of the marriage, are entitled to great weight and even finality. Only
only during the marriage, they become mere grounds for legal separation
where it is shown that such findings are whimsical, capricious, and arbitrary
under Article 55 of the Family Code. These provisions of the Code, however,
can these be overturned.
do not necessarily preclude the possibility of these various circumstances
being themselves, depending on the degree and severity of the disorder,
The conclusion we have reached makes it unnecessary for us to pass upon
indicia of psychological incapacity.
petitioners contentions on the issue of permanent custody of children, the
amount for their respective support, and the declaration of exclusive
Until further statutory and jurisprudential parameters are established, every
ownership of petitioner over the real property. These matters may more
circumstance that may have some bearing on the degree, extent, and other
appropriately be litigated in a separate proceeding for legal separation,
conditions of that incapacity must, in every case, be carefully examined and
dissolution of property regime, and/or custody of children which petitioner
evaluated so that no precipitate and indiscriminate nullity is peremptorily
may bring.
decreed. The well-considered opinions of psychiatrists, psychologists, and
persons with expertise in psychological disciplines might be helpful or even
desirable.
In the instant case, other than her self-serving declarations, petitioner failed
to establish the fact that at the time they were married, private respondent
was suffering from a psychological defect which in fact deprived him of the
ability to assume the essential duties of marriage and its concomitant
responsibilities. As the Court of Appeals pointed out, no evidence was
presented to show that private respondent was not cognizant of the basic
marital obligations. It was not sufficiently proved that private respondent
was really incapable of fulfilling his duties due to some incapacity of a
psychological nature, and not merely physical. Petitioner says that at the
outset of their marriage, private respondent showed lack of drive to work for
his family. Private respondents parents and petitioner supported him
through college. After his schooling, although he eventually found a job, he
availed himself of the early retirement plan offered by his employer and
spent the entire amount he received on himself. For a greater part of their
marital life, private respondent was out of job and did not have the initiative
to look for another. He indulged in vices and engaged in philandering, and
later abandoned his family. Petitioner concludes that private respondents
condition is incurable, causing the disintegration of their union and defeating
the very objectives of marriage.
However, private respondents alleged habitual alcoholism, sexual infidelity
or perversion, and abandonment do not by themselves constitute grounds
for finding that he is suffering from a psychological incapacity within the
contemplation of the Family Code. It must be shown that these acts are
manifestations of a disordered personality which make private respondent
completely unable to discharge the essential obligations of the marital state,
and not merely due to private respondents youth and self-conscious feeling
of being handsome, as the appellate court held. As pointed out in Republic
of the Philippines v. Court of Appeals:
The root cause of the psychological incapacity must be: (a) medically or
clinically identified, (b) alleged in the complaint, (c) sufficiently proven by
experts and (d) clearly explained in the decision. Article 36 of the Family
Code requires that the incapacity must be psychological not physical,
although its manifestations and/or symptoms may be physical. The evidence
must convince the court that the parties, or one of them, were mentally or
physically ill to such an extent that the person could not have known the
obligations he was assuming, or knowing them, could not have given valid
assumption thereof. Although no example of such incapacity need be given
here so as not to limit the application of the provision under the principle of
ejusdem generis (citing Salita v. Magtolis, supra) nevertheless such root
cause must be identified as a psychological illness and its incapacitating
nature fully explained. Expert evidence may be given by qualified
psychiatrists and clinical psychologists.
Moreover, expert testimony should have been presented to establish the
precise cause of private respondents psychological incapacity, if any, in
order to show that it existed at the inception of the marriage. The burden of
proof to show the nullity of the marriage rests upon petitioner. The Court is
mindful of the policy of the 1987 Constitution to protect and strengthen the
family as the basic autonomous social institution and marriage as the
foundation of the family. Thus, any doubt should be resolved in favor of the
validity of the marriage.
Chi Ming Tsoi v. Gina Lao-Tsoi

G.R. No. 119190, January 16, 1997
Man has not invented a reliable compass by which to steer a
marriage in its journey over troubled waters. Laws are
seemingly inadequate. Over time, much reliance has been
placed in the works of the unseen hand of Him who created
all things.
Sometime on May 22, 1988, the plaintiff married the
defendant at the Manila Cathedral, xxx Intramuros Manila, as
evidenced by their Marriage Contract.
After the celebration of their marriage and wedding reception
at the South Villa, Makati, they went and proceeded to the
house of defendant's mother.
There, they slept together on the same bed in the same room
for the first night of their married life.
It is the version of the plaintiff, that contrary to her
expectations, that as newlyweds they were supposed to
enjoy making love, or having sexual intercourse, with each
other, the defendant just went to bed, slept on one side
thereof, then turned his back and went to sleep. There was
no sexual intercourse between them during the first night.
The same thing happened on the second, third and fourth
nights.
In an effort to have their honeymoon in a private place where
they can enjoy together during their first week as husband
and wife, they went to Baguio City. But, they did so together
with her mother, an uncle, his mother and his nephew. They
were all invited by the defendant to join them. [T]hey stayed
in Baguio City for four (4) days. But, during this period, there
was no sexual intercourse between them, since the
defendant avoided her by taking a long walk during siesta
time or by just sleeping on a rocking chair located at the living
room. They slept together in the same room and on the same
bed since May 22, 1988 until March 15, 1989. But during this
period, there was no attempt of sexual intercourse between
them. [S]he claims, that she did not even see her husband's
private parts nor did he see hers.
We, therefore, find no reason to reverse the ruling of respondent Court of

Appeals whose conclusions, affirming the trial courts finding with regard to
the non-existence of private respondents psychological incapacity at the
50

Because of this, they submitted themselves for medical

examinations to Dr. Eufemio Macalalag, a urologist at the
Chinese General Hospital, on January 20, 1989.
The defendant insisted that their marriage will remain valid

because they are still very young and there is still a chance to
overcome their differences.
The results of their physical examinations were that she is

healthy, normal and still a virgin, while that of her husbands
examination was kept confidential up to this time. While no
medicine was prescribed for her, the doctor prescribed
medications for her husband which was also kept
confidential. No treatment was given to her. For her husband,
he was asked by the doctor to return but he never did.
The defendant submitted himself to a physical examination.

His penis was examined by Dr. Sergio Alteza, Jr., for the
purpose of finding out whether he is impotent. As a result
thereof, Dr. Alteza submitted his Doctor's Medical Report.
(Exh. "2"). It is stated there, that there is no evidence of
impotency (Exh. "2-B"), and he is capable of erection. (Exh.
"2-C")
The plaintiff claims, that the defendant is impotent, a closet

homosexual as he did not show his penis. She said, that she
had observed the defendant using an eyebrow pencil and
sometimes the cleansing cream of his mother. And that,
according to her, the defendant married her, a Filipino
citizen, to acquire or maintain his residency status here in the
country and to publicly maintain the appearance of a normal
man.
The doctor said, that he asked the defendant to masturbate

to find out whether or not he has an erection and he found
out that from the original size of two (2) inches, or five (5)
centimeters, the penis of the defendant lengthened by one
(1) inch and one centimeter. Dr. Alteza said, that the
defendant had only a soft erection which is why his penis is
not in its full length. But, still is capable of further erection, in
that with his soft erection, the defendant is capable of having
sexual intercourse with a woman.
The plaintiff is not willing to reconcile with her husband.

On the other hand, it is the claim of the defendant that if
their marriage shall be annulled by reason of psychological
incapacity, the fault lies with his wife.
But, he said that he does not want his marriage with his wife
annulled for several reasons, viz: (1) that he loves her very
much; (2) that he has no defect on his part and he is
physically and psychologically capable; and, (3) since the
relationship is still very young and if there is any differences
between the two of them, it can still be reconciled and that,
according to him, if either one of them has some
incapabilities, there is no certainty that this will not be cured.
He further claims, that if there is any defect, it can be cured
by the intervention of medical technology or science.
The defendant admitted that since their marriage on May 22,
1988, until their separation on March 15, 1989, there was no
sexual contact between them. But, the reason for this,
according to the defendant, was that everytime he wants to
have sexual intercourse with his wife, she always avoided him
and whenever he caresses her private parts, she always
removed his hands. The defendant claims, that he forced his
wife to have sex with him only once but he did not continue
because she was shaking and she did not like it. So he
stopped.
There are two (2) reasons, according to the defendant, why
the plaintiff filed this case against him, and these are: (1) that
she is afraid that she will be forced to return the pieces of
jewelry of his mother, and, (2) that her husband, the
defendant, will consummate their marriage.
To prevent collusion between the parties is the reason why,

as stated by the petitioner, the Civil Code provides that no
judgment annulling a marriage shall be promulgated upon a
stipulation of facts or by confession of judgment (Arts. 88 and
101[par. 2]) and the Rules of Court prohibit such annulment
without trial (Sec. 1, Rule 19).
The case has reached this Court because petitioner does not
want their marriage to be annulled. This only shows that
there is no collusion between the parties. When petitioner
admitted that he and his wife (private respondent) have
never had sexual contact with each other, he must have been
only telling the truth. We are reproducing the relevant
portion of the challenged resolution denying petitioner's
Motion for Reconsideration, penned with magisterial lucidity
by Associate Justice Minerva Gonzaga-Reyes, viz:
"The judgment of the trial court which was affirmed by this
Court is not based on a stipulation of facts. The issue of
whether or not the appellant is psychologically incapacitated
to discharge a basic marital obligation was resolved upon a
review of both the documentary and testimonial evidence on
record. Appellant admitted that he did not have sexual
relations with his wife after almost ten months of
cohabitation, and it appears that he is not suffering from any
physical disability. Such abnormal reluctance or unwillingness
to consummate his marriage is strongly indicative of a serious
personality disorder which to the mind of this Court clearly
demonstrates an 'utter insensitivity or inability to give
meaning and significance to the marriage' within the meaning
of Article 36 of the Family Code (See Santos vs. Court of
Appeals, G.R. No. 112019, January 4, 1995)."4
Petitioner further contends that respondent court erred in
holding that the alleged refusal of both the petitioner and the
51

private respondent to have sex with each other constitutes

psychological incapacity of both. He points out as error the
failure of the trial court to make "a categorical finding about
the alleged psychological incapacity and an in-depth analysis
of the reasons for such refusal which may not be necessarily
due to psychological disorders" because there might have
been other reasons, - i.e., physical disorders, such as aches,
pains or other discomforts, - why private respondent would
not want to have sexual intercourse from May 22, 1988 to
March 15, 1989, in a short span of 10 months.
First, it must be stated that neither the trial court nor the
respondent court made a finding on who between petitioner
and private respondent refuses to have sexual contact with
the other. The fact remains, however, that there has never
been coitus between them. At any rate, since the action to
declare the marriage void may be filed by either party, i.e.,
even the psychologically incapacitated, the question of who
refuses to have sex with the other becomes immaterial.
Petitioner claims that there is no independent evidence on
record to show that any of the parties is suffering from
psychological incapacity. Petitioner also claims that he
wanted to have sex with private respondent; that the reason
for private respondent's refusal may not be psychological but
physical disorder as stated above.
We do not agree. Assuming it to be so, petitioner could have
discussed with private respondent or asked her what is ailing
her, and why she balks and avoids him every time he wanted
to have sexual intercourse with her. He never did. At least,
there is nothing in the record to show that he had tried to
find out or discover what the problem with his wife could be.
What he presented in evidence is his doctor's Medical Report
that there is no evidence of his impotency and he is capable
of erection. Since it is petitioner's claim that the reason is not
psychological but perhaps physical disorder on the part of
private respondent, it became incumbent upon him to prove
such a claim.
If a spouse, although physically capable but simply refuses to
perform his or her essential marriage obligations, and the
refusal is senseless and constant, Catholic marriage tribunals
attribute the causes to psychological incapacity than to
stubborn refusal. Senseless and protracted refusal is
equivalent to psychological incapacity. Thus, the prolonged
refusal of a spouse to have sexual intercourse with his or her
spouse is considered a sign of psychological incapacity.
Evidently, one of the essential marital obligations under the
Family Code is "To procreate children based on the universal
principle that procreation of children through sexual
cooperation is the basic end of marriage." Constant nonfulfillment of this obligation will finally destroy the integrity
or wholeness of the marriage. In the case at bar, the
senseless and protracted refusal of one of the parties to fulfill
the above marital obligation is equivalent to psychological

incapacity.
As aptly stated by the respondent court,
An examination of the evidence convinces us that the
husband's plea that the wife did not want carnal intercourse
with him does not inspire belief. Since he was not physically
impotent, but he refrained from sexual intercourse during the
entire time (from May 22, 1988 to March 15, 1989) that he
occupied the same bed with his wife, purely out of sympathy
for her feelings, he deserves to be doubted for not having
asserted his rights even though she balked (Tompkins vs.
Tompkins, 111 Atl. 599, cited in I Paras, Civil Code, at p. 330).
Besides, if it were true that it is the wife who was suffering
from incapacity, the fact that defendant did not go to court
and seek the declaration of nullity weakens his claim. This
case was instituted by the wife whose normal expectations of
her marriage were frustrated by her husband's inadequacy.
Considering the innate modesty of the Filipino woman, it is
hard to believe that she would expose her private life to
public scrutiny and fabricate testimony against her husband if
it were not necessary to put her life in order and put to rest
her marital status.
We are not impressed by defendant's claim that what the
evidence proved is the unwillingness or lack of intention to
perform the sexual act, which is not psychological incapacity,
and which can be achieved "through proper motivation. After
almost ten months of cohabitation, the admission that the
husband is reluctant or unwilling to perform the sexual act
with his wife whom he professes to love very dearly, and who
has not posed any insurmountable resistance to his alleged
approaches, is indicative of a hopeless situation, and of a
serious personality disorder that constitutes psychological
incapacity to discharge the basic marital covenants within the
contemplation of the Family Code.
While the law provides that the husband and the wife are
obliged to live together, observe mutual love, respect and
fidelity (Art. 68, Family Code), the sanction therefore is
actually the "spontaneous, mutual affection between
husband and wife and not any legal mandate or court order"
(Cuaderno vs. Cuaderno, 120 Phil. 1298). Love is useless
unless it is shared with another. Indeed, no man is an island,
the cruelest act of a partner in marriage is to say "I could not
have cared less." This is so because an ungiven self is an
unfulfilled self. The egoist has nothing but himself. In the
natural order, it is sexual intimacy which brings spouses
wholeness and oneness. Sexual intimacy is a gift and a
participation in the mystery of creation. It is a function which
enlivens the hope of procreation and ensures the
continuation of family relations.
It appears that there is absence of empathy between
petitioner and private respondent. That is - a shared feeling
which between husband and wife must be experienced not
only by having spontaneous sexual intimacy but a deep sense
52

of spiritual communion. Marital union is a two-way process.

An expressive interest in each other's feelings at a time it is
needed by the other can go a long way in deepening the
marital relationship. Marriage is definitely not for children
but for two consenting adults who view the relationship with
love, respect, sacrifice and a continuing commitment to
compromise, conscious of its value as a sublime social
institution.
This Court, finding the gravity of the failed relationship in
which the parties found themselves trapped in its mire of
unfulfilled vows and unconsummated marital obligations, can
do no less but sustain the studied judgment of respondent
appellate court.
Ramon Velasco v. Norma Velasco
Brenda B. Marcos v. Wilson Marcos

G.R. No. 136490, October 19, 2000
Psychological incapacity, as a ground for declaring the
nullity of a marriage, may be established by the totality of
evidence presented. There is no requirement, however, that
the respondent should be examined by a physician or a
psychologist as a conditio sine qua non for such declaration.
In sum, this Court cannot declare the dissolution of the
marriage for failure of petitioner to show that the alleged
psychological incapacity is characterized by gravity, juridical
antecedence and incurability; and for her failure to observe
the guidelines outlined in Molina.
It was established during the trial that the parties were
married twice: (1) on September 6, 1982 which was
solemnized by Judge Eriberto H. Espiritu at the Municipal
Court of Pasig and (2) on May 8, 1983 which was solemnized
by Rev. Eduardo L. Eleazar, Command Chaplain, at the
Presidential Security Command Chapel in Malacaang Park,
Manila. Out of their marriage, five (5) children were born.
"Appellant Wilson G. Marcos joined the Armed Forces of the
Philippines in 1973. Later on, he was transferred to the
Presidential Security Command in Malacaang during the
Marcos Regime. Appellee Brenda B. Marcos, on the other
hand, joined the Women's Auxilliary Corps under the
Philippine Air Force in 1978. After the Edsa Revolution, both
of them sought a discharge from the military service.
"They first met sometime in 1980 when both of them were
assigned at the Malacaang Palace, she as an escort of Imee
Marcos and he as a Presidential Guard of President Ferdinand
Marcos. Through telephone conversations, they became
acquainted and eventually became sweethearts.
"After their marriage on September 6, 1982, they resided at

No. 1702 Daisy Street, Hulo Bliss, Mandaluyong, a housing
unit which she acquired from the Bliss Development
Corporation when she was still single.
"After the downfall of President Marcos, he left the military
service in 1987 and then engaged in different business
ventures that did not however prosper. As a wife, she always
urged him to look for work so that their children would see
him, instead of her, as the head of the family and a good
provider. Due to his failure to engage in any gainful
employment, they would often quarrel and as a
consequence, he would hit and beat her. He would even
force her to have sex with him despite her weariness. He
would also inflict physical harm on their children for a slight
mistake and was so severe in the way he chastised them.
Thus, for several times during their cohabitation, he would
leave their house. In 1992, they were already living
separately.
"All the while, she was engrossed in the business of selling
"magic uling" and chickens. While she was still in the military,
she would first make deliveries early in the morning before
going to Malacaang. When she was discharged from the
military service, she concentrated on her business. Then, she
became a supplier in the Armed Forces of the Philippines
until she was able to put up a trading and construction
company, NS Ness Trading and Construction Development
Corporation.
"The 'straw that broke the camel's back' took place on
October 16, 1994, when they had a bitter quarrel. As they
were already living separately, she did not want him to stay in
their house anymore. On that day, when she saw him in their
house, she was so angry that she lambasted him. He then
turned violent, inflicting physical harm on her and even on
her mother who came to her aid. The following day, October
17, 1994, she and their children left the house and sought
refuge in her sister's house.
"On October 19, 1994, she submitted herself [to] medical
examination at the Mandaluyong Medical Center where her
injuries were diagnosed as contusions (Exh. G, Records, 153).
"Sometime in August 1995, she together with her two sisters
and driver, went to him at the Bliss unit in Mandaluyong to
look for their missing child, Niko. Upon seeing them, he got
mad. After knowing the reason for their unexpected
presence, he ran after them with a samurai and even [beat]
her driver.
"At the time of the filing of this case, she and their children
were renting a house in Camella, Paraaque, while the
appellant was residing at the Bliss unit in Mandaluyong.
53

"In the case study conducted by Social Worker Sonia C.

Millan, the children described their father as cruel and
physically abusive to them (Exh. UU, Records, pp. 85-100).
requirement for a declaration of psychological incapacity.

Nevertheless, the totality of the evidence she presented does
not show such incapacity.
"The appellee submitted herself to psychologist Natividad A.

Dayan, Ph.D., for psychological evaluation (Exh. YY, Records,
pp. 207-216), while the appellant on the other hand, did not.
Preliminary Issue: Need for Personal Medical Examination
"The court a quo found the appellant to be psychologically

incapacitated to perform his marital obligations mainly
because of his failure to find work to support his family and
his violent attitude towards appellee and their children, x x
x."3
Ruling of the Court of Appeals
Reversing the RTC, the CA held that psychological incapacity
had not been established by the totality of the evidence
presented. It ratiocinated in this wise:
"Essential in a petition for annulment is the allegation of the
root cause of the spouse's psychological incapacity which
should also be medically or clinically identified, sufficiently
proven by experts and clearly explained in the decision. The
incapacity must be proven to be existing at the time of the
celebration of the marriage and shown to be medically or
clinically permanent or incurable. It must also be grave
enough to bring about the disability of the parties to assume
the essential obligations of marriage as set forth in Articles 68
to 71 and Articles 220 to 225 of the Family Code and such
non-complied marital obligations must similarly be alleged in
the petition, established by evidence and explained in the
decision.
"In the case before us, the appellant was not subjected to any
psychological or psychiatric evaluation. The psychological
findings about the appellant by psychiatrist Natividad Dayan
were based only on the interviews conducted with the
appellee. Expert evidence by qualified psychiatrists and
clinical psychologists is essential if only to prove that the
parties were or any one of them was mentally or psychically
ill to be truly incognitive of the marital obligations he or she
was assuming, or as would make him or her x x x unable to
assume them. In fact, he offered testimonial evidence to
show that he [was] not psychologically incapacitated. The
root cause of his supposed incapacity was not alleged in the
petition, nor medically or clinically identified as a
psychological illness or sufficiently proven by an expert.
Similarly, there is no evidence at all that would show that the
appellant was suffering from an incapacity which [was]
psychological or mental - not physical to the extent that he
could not have known the obligations he was assuming: that
the incapacity [was] grave, ha[d] preceded the marriage and
[was] incurable."
HELD: We agree with petitioner that the personal medical or
psychological examination of respondent is not a
Petitioner contends that the testimonies and the results of

various tests that were submitted to determine respondent's
psychological incapacity to perform the obligations of
marriage should not have been brushed aside by the Court of
Appeals, simply because respondent had not taken those
tests himself. Petitioner adds that the CA should have
realized that under the circumstances, she had no choice but
to rely on other sources of information in order to determine
the psychological capacity of respondent, who had refused to
submit himself to such tests.
In Republic v. CA and Molina, the guidelines governing the
application and the interpretation of psychological incapacity
referred to in Article 36 of the Family Code9 were laid down
by this Court as follows:
"1) The burden of proof to show the nullity of the marriage
belongs to the plaintiff. Any doubt should be resolved in favor
of the existence and continuation of the marriage and against
its dissolution and nullity. This is rooted in the fact that both
our Constitution and our laws cherish the validity of marriage
and unity of the family. Thus, our Constitution devotes an
entire Article on the Family, recognizing it 'as the foundation
of the nation.' It decrees marriage as legally 'inviolable,'
thereby protecting it from dissolution at the whim of the
parties. Both the family and marriage are to be 'protected' by
the state.
xxx
xxx
xxx
2)
The root cause of the psychological incapacity must
be: (a) medically or clinically identified, (b) alleged in the
complaint, (c) sufficiently proven by experts and (d) clearly
explained in the decision. Article 36 of the Family Code
requires that the incapacity must be psychological - not
physical, although its manifestations and/or symptoms may
be physical. The evidence must convince the court that the
parties, or one of them, was mentally or psychically ill to such
an extent that the person could not have known the
obligations he was assuming, or knowing them, could not
have given valid assumption thereof. Although no example of
such incapacity need be given here so as not to limit the
application of the provision under the principle of ejusdem
generis, nevertheless such root cause must be identified as a
psychological illness and its incapacitating nature fully
explained. Expert evidence may be given by qualified
psychiatrists and clinical psychologists.
3)
The incapacity must be proven to be existing at 'the
time of the celebration' of the marriage. The evidence must
show that the illness was existing when the parties
exchanged their 'I do's.' The manifestation
54

of the illness need not be perceivable at such time, but the

illness itself must have attached at such moment, or prior
thereto.
4)
Such incapacity must also be shown to be medically
or clinically permanent or incurable. Such incurability may be
absolute or even relative only in regard to the other spouse,
not necessarily absolutely against everyone of the same sex.
Furthermore, such incapacity must be relevant to the
assumption of marriage obligations, not necessarily to those
not related to marriage, like the exercise of a profession or
employment in a job. Hence, a pediatrician may be effective
in diagnosing illnesses of children and prescribing medicine to
cure them but not be psychologically capacitated to
procreate, bear and raise his/her own children as an essential
obligation of marriage.
5)
Such illness must be grave enough to bring about the
disability of the party to assume the essential obligations of
marriage. Thus, 'mild characteriological peculiarities, mood
changes, occasional emotional outbursts cannot be accepted
as root causes. The illness must be shown as downright
incapacity or inability, not a refusal, neglect or difficulty,
much less ill will. In other words, there is a natal or
supervening disabling factor in the person, an adverse
integral element in the personality structure that effectively
incapacitates the person from really accepting and thereby
complying with the obligations essential to marriage.
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.
Such non-complied marital obligation(s) must also be stated
in the petition, proven by evidence and included in the text of
the decision.
7)
Interpretations given by the National Appellate
Matrimonial Tribunal of the Catholic Church in the
Philippines, while not controlling or decisive, should be given
great respect by our courts.
xxx
xxx
xxx
(8)
The trial court must order the prosecuting attorney
or fiscal and the Solicitor General to appear as counsel for the
state. No decision shall be handed down unless the Solicitor
General issues a certification, which will be quoted in the
decision, briefly stating therein his reasons for his agreement
or opposition, as the case may be, to the petition. The
Solicitor General, along with the prosecuting attorney, shall
submit to the court such certification within fifteen (15) days
from the date the case is deemed submitted for resolution of
the court. The Solicitor General shall discharge the equivalent
function of the defensor vinculi contemplated under Canon
1095."10
The guidelines incorporate the three basic requirements

earlier mandated by the Court in Santos v. Court of
Appeals:11 "psychological incapacity must be characterized
by (a) gravity (b) juridical antecedence, and (c) incurability."
The foregoing guidelines do not require that a physician
examine the person to be declared psychologically
incapacitated. In fact, the root cause may be "medically or
clinically identified." What is important is the presence of
evidence that can adequately establish the party's
psychological condition. For indeed, if the totality of evidence
presented is enough to sustain a finding of psychological
incapacity, then actual medical examination of the person
concerned need not be resorted to.
Article 36 of the Family Code, we stress, is not to be confused
with a divorce law that cuts the marital bond at the time the
causes therefor manifest themselves. It refers to a serious
psychological illness afflicting a party even before the
celebration of the marriage. It is a malady so grave and so
permanent as to deprive one of awareness of the duties and
responsibilities of the matrimonial bond one is about to
assume. These marital obligations are those provided under
Articles 68 to 71, 220, 221 and 225 of the Family Code.
Neither is Article 36 to be equated with legal separation, in
which the grounds need not be rooted in psychological
incapacity but on physical violence, moral pressure, moral
corruption, civil interdiction, drug addiction, habitual
alcoholism, sexual infidelity, abandonment and the like.12 At
best, the evidence presented by petitioner refers only to
grounds for legal separation, not for declaring a marriage
void.
Because Article 36 has been abused as a convenient divorce
law, this Court laid down the procedural requirements for its
invocation in Molina. Petitioner, however, has not faithfully
observed them.
Sy v. CA
Terre v. Terre
The Court held in this case that for the purpose of determining
whether a person is legally free to contract a second marriage, a
judicial declaration that the first marriage was null and void ab initio
is essential. Even if we were to assume, arguendo merely, that
Jordan Terre held that mistaken belief in good faith, the same result
will follow.
Roberto Domingo v. CA
55

Delia filed a petition for declaration of nullity of separation of

property. Roberto was already married to Emerline. Delia
came to know about this after she received a subpoena
charging them of bigamy.
(8) Between adopted children of the same adopter; and

(9) Between parties where one, with the intention to marry
the other, killed that other person's spouse, or his or her
own spouse. (82)
Roberto did not answer the complaint and filed a motion to

dismiss on the ground that no allegation in the complaint
shows that Delia has the intention to remarry. The motion to
dismiss was denied. Roberto sought interpretation of Art. 40
by the SC.
Q: What is the basis for the prohibition under Art. 38?
ISSUE: In an action for declaration of nullity of marriage, is it

necessary to make an allegation that petitioner intends to
remarry?
A: Yes.
HELD: No.
The bringing of an action for declaration of nullity of marriage
nd
is not only necessary for purposes of contracting a 2
marriage. There are other instances such as in the case of an
action for liquidation, partition, distribution, and separation
of property between erstwhile spouses, as well as in an
action for the custody and support of their common children
and the delivery of the latters presumptive legitimes.
INCESTIOUS MARRIAGES
ARTICLE 37 Marriages between the following are incestuous
and void from the beginning, whether relationship between
the parties be legitimate or illegitimate:
(1) Between ascendants and descendants of any degree; and
(2) Between brothers and sisters, whether of the full or half
blood. (81a)
Q: What is the basis for the prohibition under Art. 37?
A: It is the relationship by blood.
VOID MARRIAGES FOR REASONS OF PUBLIC POLICY
ARTICLE 38The following marriages shall be void from the
beginning for reasons of public policy:
(1) Between collateral blood relatives whether legitimate or
illegitimate, up to the fourth civil degree;
(2) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
(4) Between the adopting parent and the adopted child;
(5) Between the surviving spouse of the adopting parent and
the adopted child;
(6) Between the surviving spouse of the adopted child and
the adopter;
(7) Between an adopted child and a legitimate child of the
adopter;
A: It is because of public policy.

Q: Does it apply to adopted children?
Remember that the enumeration is exclusive. Any

relationship is deemed excluded and limited to these
relationships expressly provided by law.
PRESCRIPTION OF ACTIONS OR DEFENSES FOR
DECLARATION OF NULLITY OF MARRIGAE
ARTICLE 39 The action or defense for the declaration of
absolute nullity of a marriage shall not prescribe. (As
amended by Executive Order 227 and Republic Act No. 8533;
The phrase "However, in case of marriage celebrated before
the effectivity of this Code and falling under Article 36, such
action or defense shall prescribe in ten years after this Code
shall taken effect" has been deleted by Republic Act No.
8533 [Approved February 23, 1998]).
GR: An action or defense for declaration of nullity of marriage
is imprescriptible.
XPN: If it is based on Art. 3610 years from the effectivity
date of the Family Code, for marriages contracted before the
effectivity date of the FC.
BRINGING OF ACTION FOR DECLARATION OF NULLITY OF
MARRIAGE
LILIA OLIVIA WIEGEL v. HON. ALICIA SEMPIO-DIY AND KARL
HEINZ WIEGEL
G.R. No. L-53703, August 19, 1986
In an action (Family Case No. 483) filed before the erstwhile
Juvenile and Domestic Relations Court of Caloocan City,
herein respondent Karl Heinz Wiegel (plaintiff therein) asked
for the declaration of Nullity of his marriage (celebrated on
July, 1978 at the Holy Catholic Apostolic Christian Church
Branch in Makati, Metro Manila) with herein petitioner Lilia
Oliva Wiegel (Lilia, for short, and defendant therein) on the
ground of Lilia's previous existing marriage to one Eduardo A.
Maxion, the ceremony having been performed on June 25,
1972 at our Lady of Lourdes Church in Quezon City. Lilia,
while admitting the existence of said prior subsisting
marriage claimed that said marriage was null and void, she
and the first husband Eduardo A. Maxion having been
allegedly forced to enter said marital union. In the pre-trial
56

that ensued, the issue agreed upon by both parties was the
status of the first marriage (assuming the presence of force
exerted against both parties): was said prior marriage void or
was it merel voidable? Contesting the validity of the pre-trial
order, Lilia asked the respondent court for an opportunity to
present evidence (1)
that the first marriage was vitiated by force
exercised upon both her and the first husband; and
(2)
that the first husband was at the time of the
marriage in 1972 already married to someone else.
Respondent judge ruled against the presentation of evidence
because the existence of force exerted on both parties of the
first marriage had already been agreed upon. Hence, the
present petition for certiorari assailing the following Orders
of the respondent Judge (1)
the Order dated March 17, 1980 in which the parties
were compelled to submit the case for resolution based on
"agreed facts;" and
(2)
the Order dated April 14, 1980, denying petitioner's
motion to allow her to present evidence in her favor.
We find the petition devoid of merit.
There is no need for petitioner to prove that her first
marriage was vitiated by force committed against both
parties because assuming this to be so, the marriage will not
be void but merely viodable (Art. 85, Civil Code), and
therefore valid until annulled. Since no annulment has yet
been made, it is clear that when she married respondent she
was still validly married to her first husband, consequently,
her marriage to respondent is VOID (Art. 80, Civil Code).
There is likewise no need of introducing evidence about the
existing prior marriage of her first husband at the time they
married each other, for then such a marriage though void still
needs according to this Court a judicial declaration 1 of such
fact and for all legal intents and purposes she would still be
regarded as a married woman at the time she contracted her
marriage with respondent Karl Heinz Wiegel); accordingly,
the marriage of petitioner and respondent would be regarded
VOID under the law.
ARTICLE 40 The absolute nullity of a previous marriage may

be invoked for purposes of remarriage on the basis solely of
a final judgment declaring such previous marriage void. (n)
ARTICLE 41A marriage contracted by any person during
subsistence of a previous marriage shall be null and void,
unless before the celebration of the subsequent marriage,
the prior spouse had been absent for four consecutive years
and the spouse present has a well-founded belief that the

absent spouse was already dead. In case of disappearance
where there is danger of death under the circumstances set
forth in the provisions of Article 391 of the Civil Code, an
absence of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage
under the preceding paragraph the spouse present must
institute a summary proceeding as provided in this Code for
the declaration of presumptive death of the absentee,
without prejudice to the effect of reappearance of the
absent spouse. (83a)
NOTE: Under Art. 35 par. 1, defect in legal capacitybelow
18 years old even with the consent of the parents or
guardians.
Consent or parents cannot validate the marriage. The
essential requisite of legal capacity is missing because of the
age or minority of the contracting parties.
In our jurisdiction, we follow the Nationality Theory (Art. 15).
The capacity to enter into contracts if governed by the law of
the Nationality. A Filipino who is capacitated to enter into
contracts under Philippine laws can also enter into contracts
abroad. The capacity will follow him, wherever he may go.
The same is true when he is incapacitated under Philippine
laws, his incapacity will follow him.
With respect to aliens, if they have capacity under their laws,
they are also capacitated here in the Philippines.
Under par. 2, the cause of nullity is the lack of authority of
the solemnizing officer.
Q:
How
come
it
is
cause
of
nullity
here?
A:
GR: Although not an essential requisite, the authority of the
solemnizing officer is a formal requisite and the absence of
which renders the marriage void (Art.4).
XPNs:
1.
Good faith marriages (Art. 35, par.2)when either

or both of the contracting parties believed in good
faith that the solemnizing officer has authority the
marriage remains valid.
Ratio: the law supports/protects a party who acted
in good faith and punishes one who acted in bad
faith. He or she who is in bad faith becomes tied
until the end of his life to a man/woman he/she
never intended to marry.
Q: What if both parties acted in bad faith?
57

declaration of presumptive death of the

absentee, without prejudice to the effect of
reappearance of the absent spouse. (83a)
A: The marriage is void because of the absence of one of the

formal requisites.
2.
Under Art. 26All marriages solemnized outside the

Philippines in accordance with the laws in force in
the country where they were solemnized and valid
there as such, shall also be valid in this country,
except those under Art. 35 (1), (4), (5), (6), Arts. 36,
37, and 38.
NOTE: In conjunction with Art. 10 which provides that

marriage between Filipino citizens abroad may be solemnized
by a Consul-General, Consul, Vice-Consul of the Republic of
the Philippines
Requisites:
1.
2.

abroad
It has to be solemnized by a Consul-General, Consul,
Vice-Consul of the Republic of the Philippines in the
place of their assignment abroad.
To avoid confusion, refer to the spouse who has an absent

spouse as spouse present
Take note of the period of absence required in ordinary cases,
at least 4 consecutive years, while in special cases (Art. 391),
absence of only 2 years shall be sufficient. It need not to be
consecutive.
TERMINABLE BIGAMOUS MARRIAGE (TBM):
It is a bigamous marriage but is considered as valid. It is an
exception to the general rule that bigamous marriages are
void. Therefore, a bigamous marriage is not always void.
Q: What are the requisites for contracting a subsequent
terminable marriage?
A:
1.
If the conditions are not met, theses Consul-General, Consul,

Vice-Consul do not have authority to solemnize the marriage.
2.
XPN: Foreign marriages such as between 2 foreigners or
between a Filipino and a foreigner solemnized by a ConsulGeneral, Consul, Vice-Consul will be recognized as also valid
here if they are recognized as valid abroad or in the place
where they were celebrated.
3.
NOTE: Under Art. 35, par. 4, bigamous or polygamous

marriages are void.
Absence of 4 consecutive years in case of an

ordinary absence. In case of an extra-ordinary
absence, absence of 2 years shall be sufficient.
The spouse who contracted the second marriage has
a well-founded belief that the absent spouse is dead.
Institute summary proceedings for the declaration of
presumptive death of the absent spouse in court,
and the subsequent marriage has been contracted
after the declaration of the presumptive death of
the absent spouse in the summary proceeding.
The spouse present is required by law to be in good
faith.
XPN:
Q: Give instances of Extra-Ordinary Absence.
Art. 41 which provides that:
A marriage contracted by any person during
subsistence of a previous marriage shall be
null and void, unless before the celebration of
the subsequent marriage, the prior spouse
had been absent for four consecutive years
and the spouse present has a well-founded
belief that the absent spouse was already
dead. In case of disappearance where there is
danger of death under the circumstances set
forth in the provisions of Article 391 of the
Civil Code, an absence of only two years shall
be sufficient.
A: For all purposes, including the division of estate, a person

is considered dead in the ff. circumstances:
a.
b.
c.
A person on board a vessel lost during a sea voyage,

or an airplane which is missing, who has not been
heard of for 4 yrs. since the loss of the vessel or
airplane.
A person in the armed forces who has taken part in
war, and has been missing for 4 years.
A person who has been in danger of death under
other circumstances and his existence has not been
known for 4 years.
Q: Why is the 2
For the purpose of contracting the subsequent
marriage under the preceding paragraph the
spouse present must institute a summary
proceeding as provided in this Code for the
nd
marriage said to be bigamous?
nd
A: The 2 marriage is a terminable bigamous marriage

contracted during the existence of a prior marriage.
58

st
Remember that the 1 marriage is not rendered void neither

is it dissolved.
NOTE: Take note that a judicial declaration of presumptive

death is different from declaration of death, what the spouse
present seeks is merely for a presumptive death.
Q: TBM is an exception to what?

A: TBM is an exception to bigamous marriage (Art. 35, par.4).
Q: Are there exceptions to polygamous marriages?
A: None. The only exception to par. 4 is TBM which is not the
same as polygamous marriages. Thus, TBM is not an
exception to polygamous marriage.
NOTE: In TBM, the spouse present has a well-founded belief
that the absent spouse was already dead.
Q: When should that well-founded belief begin and when
shall it end?
A: The well-founded belief will start after diligent effort to
search for the absent spouse upon the expiration of four or
two years, depending on the kind of absence involve
(whether ordinary or special, as the case may be)
Q: What will constitute diligent search? Is it mandatory for
the spouse present to take actions in looking for the absent
spouse?
A: We should first take note that the provision of the law is
not originally Filipino. It has a CC counterpart which is on
voidable bigamous marriage marriages (Art. 83, par. 2). It was
taken from American Law, specifically from the law of
California.
The Supreme Court of California made a distinction between
abandonment and simple disappearance.
The obligation to search for the absent spouse applies only in
case of simple disappearance and not in the case of
abandonment. It is the duty of the spouse who abandoned to
return.
Q: Does good faith of the second spouse affect the validity
of the subsequent marriage?
A: No. The law does not care as to the good faith or bad faith
nd
of the 2 spouse. The marriage remains valid.
Q: Upon the disappearance of absent spouse after 4 years,
can the present spouse remarry?
A: No. The law provides that for the purpose of contracting a
subsequent marriage, the spouse present must institute a
summary proceeding for judicial declaration of presumptive
death of the absentee.
In Re Szatraw: Petittion for Presumption of Death of Nicolai

Szatraw
G.R. No. L-1780, 31 August 1948
The disputable presumption established by the -rule of evidence
that a person not heard from in seven years is dead, may arise and
be invoked and made in a case, either in an action or in a special
proceeding, which is tried or heard by, and submitted for decision
to, a competent court. Independently of such an action or special
proceeding, the presumption of death cannot be invoked, nor can it
be made the subject of an action or special proceeding.
Pleading under oath that she is the lawful wife of Nicolas

Szatraw, a Polish citizen, to whom she was married in Manila
on November, 1936, whom she bore a child named Alexis
Szatraw born on 8 September 1937, with whom she had lived
from the time they were married until February, 1940, when
her husband, on the pretext that he would call on some
friends, departed from the conjugal abode carrying the child
along with him and never returned, about whose
whereabouts she made inquiries from among her husband's
friends and countrymen and learned that her husband and
child had left for Shanghai, where, according, however, to
information obtained from Polish citizens who had arrived
from that place, he and the child had not been seen and
could not be found; that all her efforts to know the
whereabouts of her husband and child were in vain; and that,
because of her husband's absence for more than seven years
during which she has not heard any news from him and about
her child, she believes that he is dead, Consuelo Sors prays
that her husband be declared dead and that her parental
authority over her child, should the latter be alive and later
on appear, be preserved.
The foregoing facts pleaded in the petition were proved. The
evidence further shows that she and her husband did not
acquire any property during their marriage and that his life
was not insured.
Upon the foregoing evidence the trial court dismissed the
petition on the ground that it is not for the settlement of the
estate of the absentee, and because the rule of evidence
establishing the presumption that a person unheard from in
seven years is dead, does not create a right upon which a
judicial pronouncement or a decree may be predicated. The
petitioner has appealed.
The petition is not for the settlement of the estate of Nicolai
Szatraw, because it does not appear that he possessed
property brought to the marriage and because he had
acquired no property during his married life with the
petitioner. The rule invoked by the latter is merely one of
59

evidence which permits the court to presume that a person is

dead after the fact that such person had been unheard from
in seven years had been established. This presumption may
arise and be invoked and made in a case, either in an action
or in a special proceeding, which is tried or heard by, and
submitted for decision to, a competent court. Independently
of such an action or special proceeding, the presumption of
death cannot be invoked, nor can it be made the subject of
an action or special proceeding. In this case, there is no right
to be enforced nor is there a remedy prayed for by the
petitioner against her absent husband. Neither is there a
prayer for the final determination of his right or status or for
the ascertainment of a particular fact (Hagans vs. Wislizenus,
42 Phil. 880), for the petition does not pray for a declaration
that the petitioner's husband is dead, but merely asks for a
declaration that he be presumed dead because he had been
unheard from in seven years. If there is any pretense at
securing a declaration that the petitioner's husband is dead,
such a pretension cannot be granted because it is
unauthorized. The petition is for a declaration that the
petitioner's husband is presumptively dead. But this
declaration, even if judicially made, would not improve the
petitioner's situation, because such a presumption is already
established by law.
A judicial pronouncement to that effect, even if final and
executory, would still be a prima facie presumption only. It is
still disputable. It is for that reason that it cannot be the
subject of a judicial pronouncement or declaration, if it is the
only question or matter involved in a case, or upon which a
competent court has to pass. The latter must decide finally
the controversy between the parties, or determine finally the
right or status of a party or establish, finally a particular fact,
out of which certain rights and obligations arise or may arise;
and once such controversy is decided by a final judgment, or
such right or status determined, or such particular fact
established, by a final decree, then the judgment on the
subject of the controversy, or the decree upon the right or
status of a party or upon the existence of a particular fact,
becomes res judicata, subject to no collateral attack, except
in a few rare instances especially provided by law. It is,
therefore, clear that a judicial declaration that a person is
presumptively dead, because he had been unheard from in
seven years. being a presumption juris tantum only, subject
to contrary proof, cannot reach the stage of finality or
become final. Proof of actual death of the person presumed
dead because he had been unheard from in seven years,
would have to be made in another proceeding to have such
particular fact finally determined. If a judicial decree declaring
a person presumptively dead, because he had not been heard
from in seven years, cannot become final and executory even
after the lapse of the reglementary period within which an
appeal may be taken, for such presumption is still disputable
and remains subject to contrary proof, then a petition for
such a declaration is useless, unnecessary, superfluous and of
no benefit to the petitioner. The Court should not waste its
valuable time and be made to perform a superfluous and

meaningless act.
Little effort is necessary to perceive that a declaration such as
the one prayed for by the petitioner, if granted, may make or
lead her to believe that the marital bonds which bind her to
her husband are torn asunder, and that for that reason she is
or may feel free to enter into a new marriage contract.
The framers of the rules of court, by the presumption
provided for in the rule of evidence in question, did not
intend and mean that a judicial declaration based solely upon
that presumption may be made. A petition for a declaration
such as the one filed in this case may be made in collusion
with the other spouse. If that were the case, then a decree of
divorce that cannot be obtained or granted under the
provisions of the Divorce Law (Act No. 2710) could easily be
secured by means of a judicial decree declaring a person
unheard from in seven years to be presumptively dead. This is
another strong reason why a petition such as the one
presented in this case should not be countenanced and
allowed. What cannot be obtained directly under the
provisions of the Divorce Law could indirectly be secured
under the provisions of Rule 123, section 69 (x). Obviously,
the latter must not be made to prevail over the former.
Q: Is it mandatory to get such declaration?

A: No. It only applies if the spouse present wants to remarry.
Q: Before the spouse present can remarry, he or she must
get such declaration?
A: Not all the time. The need for the declaration only applies
in the absence of proof that absentee is already dead.
NOTE: If there is a proof there is no need for the declaration
of presumptive death.
Art. 41 only applies in the absence of proof of death. If there
is proof of death (sure of the fact of death), do not apply this
provision, not even the provisions of the TBM because one of
the causes of dissolution of marriage is the death of either
spouse.
Art. 390, par. 1 of the CC provides: After an absence of 7
years, it being unknown whether or not the absentee still
lives, he should be presumed dead for all purposes, except
for those of succession.
Q: How about the absent spouse, can he also remarry?
Why?
A: He cannot contract a subsequent marriage. The right to remarry is given by law to the spouse present and not the
absent spouse, because the reason of the law for allowing the
60

present spouse to remarry is the presumed death of the

absent spouse.
Q: In order to terminate the subsequent marriage, is it
necessary for the absent spouse to reappear?
A: No. As long as any interested party knows of his
reappearance files an affidavit of the circumstances and the
fact of reappearance.
If the affidavit is not based on facts, even if executed and
recorded, it will not terminate the subsequent marriage.
All that the law requires for the termination of the
subsequent marriage is the recording of the Affidavit of
Reappearance within the proper civil registry. No action for
annulment is necessary.
It is not necessary for the absent spouse to reappear. It is
sufficient for the affidavit to state that he is alive. As such,
there is no need of proof.
But once it is disputed, then the proof has to be presented.
Q: Who are interested parties? What if the absent spouse,
present spouse and the subsequent spouse of the present
spouse dont want to file an affidavit? What kind of interest
is referred to by law?
Q: Lets say Max and Arlene are husband and wife.
However, due to fortunate circumstances, Max got lost
during a sea voyage to Africa and has not been heard of for
5 years. Back home, after filing all the requirements of law,
Arlene subsequently remarried Bien, her former sweetheart
during elementary days. Now if Marx subsequently shows
up but neither of the 3 dont want to file an affidavit of
reappearance (because Arlene is happier with Ben and Max
is happier living with the Amazonas), who can now file?
A: Any interested party.
Interested parties are not limited to the 3 parties
mentioned above.
Interested simply means that a person has knowledge of
the fact that he is stating in the affidavit.
Interested need not be tangible interest, as long as the
person has factual knowledge that the supposed dead spouse
is in fact alive.
The affidavit is recorded in the Civil Registr of the place where
the parties to the subsequent marriage reside.
Notice should be given to the parties to the subsequent
marriage to apprise them of the existence of the fact and
affidavit, so that if they want to contest it, they may do so.
Once the affidavit is contested, that is the moment that proof

is requiredif the absent spouse does not reappear.
Filing of the affidavit is not mandatory. It is purely voluntary
on the part of the person filing the affidavit.
Q: In the above example, since Arlene is happier with Ben
and Max is happier living with the Amazonas, they make an
arrangement not to file he affidavit. Max appears to Ben
and Arlene and tells Arlene to live happily ever after with
her new found love, and Arlene tells Max that she still loves
him but she loves Ben more. Would this agreement be
valid? Wouldnt it be contrary to morals or public policy?
A: Even if the absent spouse appears to the parties to the
subsequent marriage, they may agree not to file the affidavit.
This would be a valid agreement; it is not contrary to morals
or public policy. Then, if no third party files such affidavit, the
subsequent marriage subsists.
But remember, once a third party who has knowledge that
the absent spouse is still alive files the affidavit of
appearance, thats it. Goodbye Ben; goodbye Amazonas.
The right to file the affidavit of reappearance does not
prescribe. The law does not fix any period for the filing or
recording of the affidavit.
What would not be valid is for the absent spouse and present
spouse to resume Marital Relations before the subsequent
marriage is terminated.
Q: What if after 2 years or any other period Arlene wants to
return to Max because she realizes that Max has superb
hidden qualities which Ben does not have, can she file the
affidavit?
A: Yes, Arlene can fie the affidavit at any time. Her reasons
for filing the affidavit are not material, as long as she has
personal knowledge of Maxs reappearance.
Q: But once the subsequent marriage is terminated, can the
reappearing spouse be compelled to live together with the
present spouse? Lets say Max doesnt want to resume
conjugal relations with Arlene because he realizes that he
doesnt love her anymore, and that he would prefer living in
solitude and eating bananas for the rest of his life. Can
Arlene compel him to live with her?
A: The present spouse is given the same rights a spouse is
given as regards the other spouse who doesnt want to
resume conjugal relations or live in the conjugal dwelling.
Remember that cohabitation is a purely personal obligation
and to compel Max to comply with such obligation would be
61

a violation of his personal liberty which is guaranteed by the

Constitution.
Q: What are the rights of an aggrieved spouse?
A: According to Justice Sempio-Dy, the aggrieved spouse has
the following rights:
1.
2.
3.
To withhold support from the other spouse (Arts.

100 (1) and 127 (1));
To recover moral damages from the other spouse
To ask the court to counsel the other spouse under
Art. 72.
Art. 72 When one of the spouse neglects his or her duties to

the conjugal union or commits acts which tends to bring
danger, dishonor or injury to the other or to the family, the
aggrieved spouse may apply to the court for relief.
The court may admonish or issue an injunction order to the
guilty spouse and even threaten him or her with contempt of
court if he or she refuses to heed the court order.
But remember that the court under pain of contempt, cannot
compel one spouse to live with or return to the other spouse
(Arroyo v. Arroyo, 42 Phil. 54).
Q: Art. 390, par. 1 provides that the person shall be
presumed dead for all purposes. Does that not include
remarriage?
A: Yes.
*The FC shall be followed because it is a later enactment.
present having news of the absentee being alive or if the

absentee, though he has been absent for less than 7 years, is
generally considered dead and believed to be so by the
spouse present at the time of contracting such subsequent
marriage or if the absentee is presumed dead according to
Arts. 390 and 391. The marriage so contracted shall be valid
in any of the 3 cases until declared null and void by a
competent court.
Mere absence of at least 4 years does not put an end to the
st
nd
1 marriage (this is what makes the 2 marriage bigamous.)
ARTICLE 42 The subsequent marriage referred to in the
preceding Article shall be automatically terminated by the
recording of the affidavit of reappearance of the absent
spouse, unless there is a judgment annulling the previous
marriage or declaring it void ab initio.
A sworn statement of the fact and circumstances of
reappearance shall be recorded in the civil registry of the
residence of the parties to the subsequent marriage at the
instance of any interested person, with due notice to the
spouses of the subsequent marriage and without prejudice
to the fact of reappearance being judicially determined in
case such fact is disputed. (n)
Q: Suppose the absent spouse returns and wants to resume
marital relationship with the spouse present, can he do
st
that? (Remember that the spouse of the 1 marriage are still
nd
spouses and the 2 marriage is bigamous)
A: No. The issuance of the declaration of presumptive death
st
suspends the relationship of spouses of the 1 marriage,
including the suspension of all the marital rights and
obligations.
Q: So is judicial declaration still necessary?

A: It would seem that under Art. 390, par. 1 of the CC, there is
no need. The only exception is succession. There is no
jurisprudence yet but it would seem that this is an exception.
The purpose of the judicial declaration of presumptive death
is for the establishment of good faith. It is in the summary
proceeding that you have to prove to the court that you are
in good faith.
Q: Will there still be a need for the declaration of
presumptive death if death is presumed for all purposes?
A: No more. 7 years is long enough to be in hiding if still alive.
NOTE: Art. 390, par. 1 of the CC should be read together with
Art. 83 (2) of the CC which provides that: Any marriage
subsequently contracted by any person during the lifetime of
st
the 1 spouse of such person with any person other than
st
such 1 spouse shall be illegal and void from its performance
st
unless xxx. The 1 spouse had been absent for 7 consecutive
nd
years at the time of the 2 marriage without the spouse
Q: The present spouse appears, can he resume marital rights

and obligations?
A: In case the absent spouse reappears, a sworn statement of
the fact and circumstances of reappearance will be executed
and shall be recorded in the civil registry of the residence of
the parties (see Art. 42).
Q: Upon recording, can he now resume marital rights and
obligations? What is the effect of such recording?
A: Yes. The recording results to the automatic termination of
nd
the 2 marriage (TBM).
Q: Does the absent spouse who reappeared need to inform
the spouse present?
A: The recording of the facts and circumstances and
reappearance is with due notice to the parties of the
subsequent marriage.
62

Q: The reappearing spouse does not want to resume with

the marital rights and obligations, what happens now? Can
the spouse present compel the reappearing spouse? Can the
spouse present claim damages?
A: No. This is very personal obligation not even mandamus
will lie to compel the spouse to come back. The remedy is for
damages because what the reappearing spouse did was not a
nd
righteous act being in bad faith in terminating the 2
marriage (Arroyo v. Arroyo, Atilano v. Chua Ching Beng).
Effects of Termination of the Subsequent Marriage:
ARTICLE 43 The termination of the subsequent marriage
referred to in the preceding Article shall produce the
following effects:
106,CC) were not carried over to the FC. Hence, the

intention is that the rule on forfeiture be absolute.
NOTE: The forfeited share of the guilty spouse refers to his
share in the net profits of the community property or
conjugal partnership property. He does not lose his share in
the community property or conjugal partnership, what he
loses only is his share in the net profits.
The share, which is forfeited, is made in favor of the common
children, or if there are none, the children of the guilty
spouse by a previous marriage, or in default of children, the
innocent spouse.
The rule on forfeiture is absolute. It has no exceptions.
2.
1) The children of the subsequent marriage conceived

prior to its termination shall be considered
legitimate;
2) The absolute community of property or the
conjugal partnership, as the case may be, shall be
dissolved and liquidated, but if either spouse
contracted said marriage in bad faith, his or her
share of the net profits of the community property
or conjugal partnership property shall be forfeited
in favor of the common children or, if there are
none, the children of the guilty spouse by a
previous marriage or in default of children, the
innocent spouse;
3) Donations by reason of marriage shall remain valid,
except that if the donee contracted the marriage in
bad faith, such donations made to said donee are
revoked by operation of law;
4) The innocent spouse may revoke the designation of
the other spouse who acted in bad faith as
beneficiary in any insurance policy, even if such
designation be stipulated as irrevocable; and
5) The spouse who contracted the subsequent
marriage in bad faith shall be disqualified to inherit
from the innocent spouse by testate and intestate
succession. (n)
NOTE: When the law speaks of children by previous
marriage, it refers to legitimate children.
In the absence of common children, the net profits shall be
forfeited in favor of the children of the guilty spouse by a
previous marriage.
Donations (Art. 43, par.3)
Q: What is the effect of the termination of the TBM on

donations propter nuptias (DPN)?
A: As a rule, the donation subsists. The exception is when
there is bad faith on the donee spouse. In such case, the
donation will be revoked by operation of law. However, if the
donor spouse acted in bad faith, this provision does not
apply. The donation in such case will remain valid.
Q: To where should bad faith refer?
A: It must refer to bad faith in contracting of the marriage not
in the acceptance of donation.
Q: To what should bad faith refer?
A: It refers to the knowledge that the absent spouse is still
alive.
3.
Disqualification to succeed
Q: From what is the guilty spouse disqualified?

A: He is disqualified from succeeding.
Q: What is the basis for such disqualification?
A: The guilty spouse is in bad faith in the contraction of
marriage.
Q: The guilty spouse is disqualified to succeed, whether
testate or intestate?
Q: Does it have any effect on the marriage?

A: Only disqualified under testate succession.
A: Art. 43 of the Family Code:
Q: Why?
1.
Forfeiture- this is part of a carryover from the Civil

Code but under the CC, there are exceptions (Art.
A: Because intestacy only takes place when the relationship

between the spouses still exists. Remember that the basis of
63

the right to succeed under testate succession is the

institution of the testator while in intestate succession, the
basis of the right to succeed is the proximity of the
relationship between the parties. Once you terminate the
subsequent marriage (TBM), the parties cease to be husband
and wife and they become former or ex of each other. If
there be no more relationship existing between the parties,
the guilty spouse will be disqualified from what? None. There
will be no basis for the right to succeed, thus, the
disqualification must be limited to testate succession only.
ARTICLE 44 If both spouses of the subsequent marriage

acted in bad faith, said marriage shall be void ab initio and
all donations by reason of marriage and testamentary
dispositions made by one in favor of the other are revoked
by operation of law. (n)
Again, in view of the above considerations, par. 5 is deemed

to refer only to Testate Succession. This provision came from
the effects of legal separation. In legal separation, intestacy
can exist because the marriage still exists.
NOTE: Also, this provision speaks only of Testate Succession.

As such, it is correct.
Remember once the marriage is terminated, it is governed by

the provisions of Arts. 43 and 44.
VOIDABLE MARRIAGES
Q: When does this article apply?

A: This provision takes effect when both parties acted in bad
faith.
ARTICLE 45 A marriage may be annulled for any of the

following causes, existing at the time of the marriage:
Q: Why was intestate succession included?

A: The provisions were lifted from the provisions of Legal
Separation. The members of the Commission were in a hurry
to draft the FC.
NOTE: With respect to the effects of Legal Separation, the
inclusion of both testate and intestate succession is correct
because, the bond between the spouses in case of legal
separation does not severe, and still exists.
One of the other void marriages Art. 35 refers to mistake as
to identity of one of the contracting parties. This provision
also existed in the CC in connection with voidable marriages
because of vitiated consent while in the FC, it is considered as
a ground to declare the marriage void because of the absence
of consent.
Par. 6 refers to subsequent marriage under Art. 53to be
read together with Arts. 50 and 52, which refers to either
annulment or nullity of marriage; both terminates the
marriage. Art.51 is not included because it refers to the
delivery of presumptive legitime.
Q: In case the spouse present dies, who will be entitled to
the legitime as the surviving spouse?
nd
A: Both the reappearing spouse and the spouse of the 2

st
marriage, in as much as the 1 marriage is still valid and not
nd
terminated by the 2 marriage but merely suspends the
nd
marital rights and obligations and the 2 marriage is valid, as
well.
Apply what the court said in Bisalbon v. Beheck. Divide what
the law gives to both spouses. Such that if there be no other
heirs, the entire estate will be divided to both spouses.
1) That the party in whose behalf it is sought to have

the marriage annulled was eighteen years of age or
over but below twenty-one, and the marriage was
solemnized without the consent of the parents,
guardian or person having substitute parental
authority over the party, in that order, unless after
attaining the age of twenty-one, such party freely
cohabited with the other and both lived together as
husband and wife;
2) That either party was of unsound mind, unless such
party after coming to reason, freely cohabited with
the other as husband and wife;
3) That the consent of either party was obtained by
fraud, unless such party afterwards, with full
knowledge of the facts constituting the fraud,
freely cohabited with the other as husband and
wife;
4) That the consent of either party was obtained by
force, intimidation or undue influence, unless the
same having disappeared or ceased, such party
thereafter freely cohabited with the other as
husband and wife;
5) That either party was physically incapable of
consummating the marriage with the other, and
such incapacity continues and appears to be
incurable; or
6) That either party was afflicted with a sexuallytransmissible disease found to be serious and
appears to be incurable. (85a)
NOTE: These are the only voidable marriages under the law.
You have to read this in conjunction with Art. 47 of FC. In case
of Voidable marriages, the defective marriages must exist at
the time of the celebration of the marriage.
64

Grounds under voidable marriage

1.
Lack of parental consent
Absence of parental consent when required:

a.
b.
A: No. The unsoundness of mind came after and not at the

time of the marriage.
At the instance of the party required to get parental

consent but did not obtain the same---within 5 years
from the time he reaches 21.
At the instance of the parent whose consent should
have been obtained but not obtained---within 5
years before he reaches 21.
The failure of the parent to annul the marriage within the

prescriptive period will not change the status of
marriage.
A voidable marriage is a defective marriage-the defect
must exist at the time of the celebration of marriage.
3.
Vitiation of consent
Q: What should consent mean in this provision?

A: Consent should refer to consent to the marriage. It must
always be free from any vice. Thus, it should be free from
fraud, violence, intimidation, or undue influence any of which
renders the marriage voidable.
That the consent of either party was obtained by fraud,
unless such party afterwards, with full knowledge of the facts
constituting the fraud, freely cohabitated with the other as
husband and wife.
That the consent of either party was obtained by force,
intimidation, or undue influence, unless the same having
disappeared or ceased, such party thereafter freely
cohabitated with the other as husband and wife.
Q: What is ratification?
4.
A: It is the process by which you cure the defect or cleanse
the contract of its defects.
Q: Can the marriage be ratified?
A: Yes. Voidable marriages as a rule can be ratified by:
a.
b.
Free cohabitation
Prescription
Q: Who are the parties who can bring an action to annul?

A: There are 2 parties who can bring an action to annul under
par. 1:
Impotence
Q: Suppose Mr. Angs tool is miniature. His wife complained

that the former cannot satisfy her. Is that impotence? Can
the marriage be annulled on that ground?
A: No. The law does not prescribe a definite measurement. It
leaves that to nature.
Q: What is impotence?
A: It is the inability to copulate; the inability to perform the
conjugal act. It does not mean the inability to satisfyas long
as you can perform the act.
Q: What kind of impotence does the law refer to?
a.
b.
Child
Parent
Q: Can the parent ratify under the defect under Art. 45?
A: Under the Civil Code, it must be universal impotency. But

under the Family Code, the law does not require universal
impotency, relative impotency is enough.
A: No. The parent cannot ratify under Art. 45, but under Art.
47 yes by allowing the period to prescribe.
Q: If Mr. Ang cannot plant his flag, who is impotent between

the two parties?
2.
Unsoundness of mind of only one of the contracting

parties
A: It depends on the reason why he cannot do so.

a.
Q: What if both parties are of unsound mind?

b.
A: If both parties are of unsound mindVOID. There is
complete or total absence of the consent.
Q: If he or she becomes of unsound mind after, can the
marriage be annulled?
If this organ is normal but his wifes is not (e.g. too

small), the wife is impotent
If the wifes organ is normal and Mr. Angs organ is
not, then the husband is impotent.
Q: If the husband is normal, but the wifes organ is too small

to admit penetration, does that make the wife impotent?
65

A: Not yet. If the defect can be remedied with surgical

intervention without putting her life in danger, then, no.
Q: Can we say the same when it comes to the husband?
Impotence
of
one party
Serious STD
A: No. You cannot chop it to make it smaller
Potent
party
Within
5
years after
marriage
Healthy
Party
Within
5
years after
marriage
Cannot be
ratified
but action
prescribes
Cannot be
ratified
but action
prescribes
Source: U.P. Civil Code Reviewer
Enriquez v. Republic
The wife in this case refused to submit to physical
examination. The trial court said she is impotent.
EFFECTS OF TERMINATION OF MARRIAGE
Held: Impotency is never presumed. It must always be

established and proven as a fact.
5.
Sexually Transmissible Disease
This applies as long as the disease is transmissible by the

sexual act.
Status of
Children
Voidable bigamous
marriage
(Art 41
Children
of
subsequent
marriage conceived
before
its
termination
legitimate
Declaration
of nullity
Annulmen
t
Illegitimate
except Art
36 and Art
53
ACP/CPG shall be
liquidated.
Same
Children
conceived
or
born
before
annulmen
t
decree
legitimate
Same
Same
Same
RULES ON FILING AN ACTION FOR ANNULMENT:

Grounds for
annulment
Ratification
Lack
of
parental
consent
Who can
file
Prescriptive
period
Ratification
Party under
Age Parent
or guardian
Within
5
years after
attaining 21
Before child
reaches 21
Before
death
of
other party
Free
cohabitation
after
reaching 21
Sane
spouse
Insanity of
one
party
Guardian of
insane
spouse
Insane
spouse
Fraud
Force,
intimidation
or
undue
influence
Injured
party
Injured
party
Anytime
before the
death
of
either party
During the
lucid
interval
or
after
regaining
sanity
also before
death
of
other party
Within
5
years from
discovery of
fraud
Within
5
years from
the
cessation of
cause
Free
cohabitation
after insane
regains
sanity
Free
cohabitation
after
knowledge
of
fraud
Free
cohabitation
after cause
has
disappeared
Property
Relations
Donations
Propter
Nuptias
Spouse
who
contracted the
marriage in bad
faith, his/her share
in the net profits of
community
property shall be
forfeited in favor of
common children
or if there are
none, children of
the guilty spouse
by
previous
marriage or in
default,
the
innocent spouse
Shall remain VALID
except If donee
contracted
the
marriage in bad
faith,
donations
propter
nuptias
made to the donee
are revoked by
operation of law.
If both spouses
acted in bad faith,
donations propter
nuptias made by
one in favor of the
other are revoked
by operation of
66

Insurance
Succession
law.
If one spouse acted
in
bad
faith,
innocent
spouse
may revoke his
designation
as
beneficiary in the
insurance
policy
even
if
such
designation
be
stipulated
irrevocable
If
one
spouse
contracted
the
marriage in bad
faith, he shall be
disqualified
to
inherit from the
innocent
spouse
both testate and
intestate
Same
Can
still
be
impugned
even
after death of
parties
Same
Q: Distinguish annulment from legal separation?

A:
DISTINCTION BETWEEN VOID AND VOIDABLE MARRIAGE

Q: What are the distinctions between void and voidable
marriage?
A:
As to susceptibility
to
ratification
As to effect on
property
As to effect on
Children
VOID
Inexistent from the
time
of
performance
Cannot be ratified
No
community
property, only
co-ownership (Art
147)
Children
illegitimate
are
Exceptions:
In case of psycho
incapacity
(Art 36)
As to how
marriage may be
impugned
i.e. there must be a

decree
of
annulment
Can no longer be
impugned
after
death of
one of the parties

Same
As to nature
purpose of
remarriage, there
must be judicial
declaration
of
nullity.
Same
Children born of
subsequent
marriage (Art 53)
May be attacked
directly or
collaterally but for
VOIDABLE
Valid until annulled
Can be ratified
either
by
free
cohabitation or
prescription
Absolute
community exists
unless
another
system is
agreed upon in
marriage
settlement
Children
are
legitimate if
conceived before
decree
of
annulment
Annulment
The
marriage
was
defective at the very
beginning
The cause for annulment
must be already existing
at the time of the
marriage
There are seven grounds
for annulment
Annulment dissolves the
marriage bond; the
parties are free to marry
again
The
grounds
are
generally those given in
the lex loci celebrationis
there are ten grounds

for legal separation
The marriage remains
The very validity of the

marriage itself is not
questioned
ARTICLE 46 Any of the following circumstances shall

constitute fraud referred to in Number 3 of the preceding
Article:
1.
2.
3.
4.
Cannot be attacked
collaterally,
only
directly,
Legal Separation
There was no defect of
the marriage at the
beginning
The cause for legal
separation arises after
the marriage celebration
Non-disclosure of a previous conviction by final

judgment of the other party of a crime involving
moral turpitude;
Concealment by the wife of the fact that at the
time of the marriage, she was pregnant by a man
other than her husband;
Concealment of sexually transmissible disease,
regardless of its nature, existing at the time of the
marriage; or
Concealment of drug addiction, habitual alcoholism
or homosexuality or lesbianism existing at the time
of the marriage.
No other misrepresentation or deceit as to character,

health, rank, fortune or chastity shall constitute such fraud
67

as will give grounds for action for the annulment of

marriage. (86a)
A: Homosexual / Lesbianisma person who attaches with

the same sex for sexual fulfillment. This does not refer merely
to attraction.
FRAUDS
5.
1.
Non-disclosure of a previous conviction by final

judgment of a crime involving moral turpitude
Concealment
alcoholism.
of
drug
addiction
or
habitual
NOTE: Remember that alcoholism must be habitual

Q: What will make the marriage fraudulent?
A: It is not the conviction that will made it fraudulent. It is the
concealment of the conviction.
Q: What kind of conviction is required?
A: The conviction must be by final judgment.
Always remember the last paragraph of this article. No other

misrepresentation or deceit as to:
1.
2.
3.
4.
5.
NOTE: This circumstance applies to either of the spouses.

Q: Is penalty relevant?
A: The penalty is immaterial. What is material is the nature of
the crime for which he or she has been convicted, which
would involve moral turpitude.
2.
Concealment by the wife of the fact that at the

time of the marriage, she was pregnant by a man
other than her husband
NOTE: This circumstance applies only to the wife. She must

be pregnant by a man other than her husband at the time of
marriage.
Character
Health
Rank
Fortune
Chastity shall amount to fraud as will give grounds
for action for the annulment of marriage
NOTE: All the grounds of fraud are not frauds for annulment
of marriage. These are only circumstances that constitute
fraud. Therefore, they must have been concealed to
constitute fraud that would be a ground for annulment a
marriage.
Modes of Ratification:
Q: What are the modes of ratification?
A: Ratification may either be by:
1.
2.
Cohabitation; or
Prescription
It is important that the pregnancy must not be visible.

All defective marriages are susceptible to ratification, except:
Q: Will the mere fact that the pregnancy of the wife was not
visible and that she was pregnant by a man other than her
husband amount to concealment to constitute fraud if it
was not conveyed by the wife?
A: If the husband did not know, it will constitute fraud. But if
the husband knows, it will not constitute fraud.
Q: What is the reason for this provision?
A: The husband has the right to require of his wife not to bear
to his bed aliens to his blood and lineage, unless he waives
such right.
3.
4.
Concealment of a sexually transmissible disease,

regardless of its nature, existing at the time of
marriage.
Concealment of homosexuality or lesbianism.
Q: What is homosexual or lesbiabnism?
1.
2.
Impotency; and
Having a sexually transmissible disease.
If by ratification is meant cohabitation, impotency and having

a sexually transmissible are not subject to ratification.
If by ratification is meant prescription, impotency and having
a sexually transmissible disease are subject to ratification.
Cohabitationto have sexual intercourse, even if once and
even short, and living together. The sexual intercourse must
have been done freely. If there was force employed, it will
not ratify the marriage, regardless of the number of times it
was done.
Q: Ms. Lopez married Mr. Ang, who turned out to be gay.
Can the former ask that the marriage be annulled on the
ground of homosexuality?
A: No. Concealment of homosexuality is what constitutes
fraud which in turn is a ground for annulment.
68

Q: Mr. Ang was very choosy, wants the wife to be a virgin,

but wife turns out not to be a virgin; Can the marriage be
annulled?
A: No. In marriage there are no warranties. Marriage even
defies description.
ARTICLE 47 The action for annulment of marriage must be
filed by the following persons and within the periods
indicated herein:
1.
2.
3.
4.
5.
For causes mentioned in number 1 of Article 45 by

the party whose parent or guardian did not give his
or her consent, within five years after attaining the
age of twenty-one, or by the parent or guardian or
person having legal charge of the minor, at any
time before such party has reached the age of
twenty-one;
For causes mentioned in number 2 of Article 45, by
the same spouse, who had no knowledge of the
other's insanity; or by any relative or guardian or
person having legal charge of the insane, at any
time before the death of either party, or by the
insane spouse during a lucid interval or after
regaining sanity;
the injured party, within five years after the
discovery of the fraud;
the injured party, within five years from the time
the force, intimidation or undue influence
disappeared or ceased;
For causes mentioned in number 5 and 6 of Article
45, by the injured party, within five years after the
marriage. (87a)
ARTICLE 48 In all cases of annulment or declaration of

absolute nullity of marriage, the Court shall order the
prosecuting attorney or fiscal assigned to it to appear on
behalf of the State to take steps to prevent collusion
between the parties and to take care that evidence is not
fabricated or suppressed.
In the cases referred to in the preceding paragraph, no
judgment shall be based upon a stipulation of facts or
confession of judgment. (88a)
ARTICLE 49During the pendency of the action and in the
absence of adequate provisions in a written agreement
between the spouses, the Court shall provide for the
support of the spouses and the custody and support of their
common children. The Court shall give paramount
consideration to the moral and material welfare of said
children and their choice of the parent with whom they wish
to remain as provided to in Title IX. It shall also provide for
appropriate visitation rights of the other parent. (n)
ARTICLE 50The effects provided for by paragraphs (2), (3),

(4) and (5) of Article 43 and by Article 44 shall also apply in
the proper cases to marriages which are declared ab initio
or annulled by final judgment under Articles 40 and 45.
The final judgment in such cases shall provide for the
liquidation, partition and distribution of the properties of
the spouses, the custody and support of the common
children, and the delivery of third presumptive legitimes,
unless such matters had been adjudicated in previous
judicial proceedings.
All creditors of the spouses as well as of the absolute
community or the conjugal partnership shall be notified of
the proceedings for liquidation.
In the partition, the conjugal dwelling and the lot on which
it is situated, shall be adjudicated in accordance with the
provisions of Articles 102 and 129.
NOTE: Art. 50 is the basic provision which speaks of
judgments in annulment or nullity of marriages. It shall
provide for the dissolution of the economic system or
property relations of the marriage, liquidation, partition, and
distribution of the properties of the spouses, the custody and
support of the common children, and the delivery of the
presumptive legitimes, unless such matters had been
adjudicated in previous judicial proceedings.
Under this Article the provisions of Art. 43 (except paragraph
1 regarding children) and Art. 44 which provide for the effects
of the termination of the subsequent terminable bigamous
marriage shall apply to Art. 40 (final judgment declaring a
previous marriage VOID) and Art. 45 (Voidable Marriages).
According to Atty. Aligada, it is inconceivable to apply Art. 43
and 44 to a void marriage. Note Arts. 147 and 148. Also note
that the property relations of a void marriage shall be
governed by the Rules on Co-ownership.
PRESUMPTIVE LEGITIMES
ARTICLE 51In said partition, the value of the presumptive
legitimes of all common children, computed as of the date
of the final judgment of the trial court, shall be delivered in
cash, property or sound securities, unless the parties, by
mutual agreement judicially approved, had already provided
for such matters.
The children or their guardian or the trustee of their
property may ask for the enforcement of the judgment.
The delivery of the presumptive legitimes herein prescribed
shall in no way prejudice the ultimate successional rights of
the children accruing upon the death of either of both of the
parents; but the value of the properties already received
69

under the decree of annulment or absolute nullity shall be

considered as advances on their legitime. (n)
A:
1.
NOTE: This article provides for the Delivery of the

Presumptive Legitimes.
2.
Q: When does the law require the delivery of Presumptive

Legitimes of Common Children?
A: Only when the marriage is terminated either by:
1.
2.
Annulment or
Declaration of Nullity of Marriage
In legal separation, the law does not require the delivery of

presumptive legitimes.
Q: Will every case of termination of marriage give rise to the
delivery of the presumptive legitimes?
A: Not every case of termination of marriage will give rise to
his obligation, as when the cause of the termination is the
death of either spouse. Here, it shall be the final legitime that
will be delivered.
Liquidation after the judgment of annulment or

declaration of nullity of the marriage
Liquidation upon the death of either one of the
parents with respect to whatever property will
remain (after the liquidation of the community or
conjugal property). What is being liquidated here is
no longer community or conjugal property, but the
exclusive property of each spouse.
Remember that even after annulment of the marriage or the

declaration of the nullity of the marriage; the common
children still remain the children of the parents.
Q: What is the purpose of disinheritance?
A: It is to deprive a compulsory heir of his/ her legitime.
Q: Once the presumptive legitime is delivered, may it be
recovered? Can a parent deprive or otherwise recover from
a child his or her presumptive legitime by disinheritance?
A: The presumptive legitime cannot be recovered.
The presumptive legitimes are based on the value of the

property of the spouses after the liquidation; all debts of the
community property or conjugal partnership as well as of the
spouses are paid of.
Collation, or the process wherein advances made are

included in the computation of the estate, does not apply to
presumptive legitimes because it applies only to advances of
the family for acquiring property.
Q: Who may demand delivery of the presumptive legitimes?
There is no provision of law which authorizes recovery of the

Presumptive Legitimes.
A: The children, guardians or trustees

Q: In what form may the Presumptive legitime be delivered?
The problem of whether or not presumptive legitime may be

subject of recovery in case the common child is disinherited is
not addressed by the Family Code.
A: In cash, properties or sound securities

Q: Who has the right to choose?
A: The spouses have the right to determine the form
*Only common children of the spouses are entitled to
delivery of Presumptive Legitimes
Common children of the spousesrefers to legitimate
children
Q: Do the common children become owners of the
presumptive legitimes?
A: Yes, and they may even dispose. This is subject to the
ultimate successional rights of the children.
Q: What are the two instances when Liquidation Takes
Place?
When the law says that the delivery of the presumptive

legitime shall in no way prejudice the ultimate successional
rights of the children accruing upon the death of either or
both parents, this means that the Presumptive Legitime is
not the Final Legitime and that it is subject to increase upon
the death of either or both parents. It does not apply to
reduction because as regards reduction, the law does not
address this.
ARTICLE 52The judgment of annulment or of absolute nullity
of the marriage, the partition and distribution of the
properties of the spouses and the delivery of the children's
presumptive legitimes shall be recorded in the appropriate
civil registry and registries of property; otherwise, the same
shall not affect third persons. (n)
Q: What should be recorded in the appropriate Civil Registry
and registries of property?
A:
70

1.
2.
3.
Judgment of Annulment or of Absolute Nullity of the

Marriage
Partition and Distribution of the properties of the
spouses
Delivery of the Common Childrens Presumptive
Legitimes
Under the second paragraph, children conceived or born of

the subsequent marriage under this article (failure to comply
with the requirement of recording) are likewise legitimate.
In other words:
LEGITIMATE CHILDREN
Q: What is the effect of Non-compliance with Article 52?

Q: As regards Voidable and Void marriages, who are
considered as legitimate children?
A:
1.
2.
Third persons are not affected

The subsequent marriage shall be null and void (Art.
53)
A:
1.
NOTE: Art. 52 speaks of the recording of the decree of

annulment or judicial declaration of nullity of marriage
together with the judgment of annulment or of absolute
nullity of the marriage, the partition and distribution of the
properties of the spouses and the delivery of the childrens
presumptive legitimes. The compliance to this provision is
mandatory. Only after this time that both parties can
remarry.
However, if the cause of the termination of marriage is
deathdo not apply this. Immediate remarriage can be had.
What must be recorded is the liquidation of the property
relations or the community property or conjugal partnership.
(see Art. 53)
Q: If the surviving spouse is in a hurry to get married
without complying with the liquidation, can he or she still
remarry?
2.
In all annulment cases, where the children are

conceived or born before the judgment of
annulment has become final and executor. This is
because voidable or annullable marriages are valid
until annulled.
As regards Void marriages, only in 2 instances:
a.
b.
Psychological incapacity, where the children are

conceived or born before the declaration of
absolute nullity of the marriage has become
final and executor.
Subsequent marriage without complying with
the requirement of recording the judgment of
annulment or of absolute nullity of the prior
marriage, the partition and distribution of the
properties of the spouses, and the delivery of
the childrens presumptive legitimes in the
appropriate civil registry and registries of
property.
A: Yes. But the property relations of the subsequent marriage

shall be governed by mandatory separation of property.
ARTICLE 53Either of the former spouses may marry again
after compliance with the requirements of the immediately
preceding Article; otherwise, the subsequent marriage shall
be null and void.
The recording of those required by law to be recorded serves
as the authority of the former spouses to remarry, otherwise,
the subsequent marriage shall be void.
ARTICLE 54 Children conceived or born before the judgment
of annulment or absolute nullity of the marriage under
Article 36 has become final and executory shall be
considered legitimate. Children conceived or born of the
subsequent marriage under Article 53 shall likewise be
legitimate.
First paragraph states that children conceived or born before
judgment of annulment or declaration of nullity of the
marriage under Art. 36 (Psychological Incapacity) which has
become final are legitimate children.
TITLE II
LEGAL SEPARATION
ARTICLE 55 A petition for legal separation may be filed on
any of the following grounds:
(1) Repeated physical violence or grossly abusive conduct
directed against the petitioner, a common child, or a child of
the petitioner;
(2) Physical violence or moral pressure to compel the
petitioner to change religious or political affiliation;
(3) Attempt of respondent to corrupt or induce the
petitioner, a common child, or a child of the petitioner, to
engage in prostitution, or connivance in such corruption or
inducement;
(4) Final judgment sentencing the respondent to
imprisonment of more than six years, even if pardoned;
(5) Drug addiction or habitual alcoholism of the respondent;
(6) Lesbianism or homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent bigamous
marriage, whether in the Philippines or abroad;
(8) Sexual infidelity or perversion;
71

(9) Attempt by the respondent against the life of the

petitioner; or
(10) Abandonment of petitioner by respondent without
justifiable cause for more than one year.
For purposes of this Article, the term "child" shall include a
child by nature or by adoption. (9a)
Legal Separation
Must be done thru the
court
Q: Do we have a Divorce Law in the Philippines?

A:
Always involves also

separation of property
May be considered as a
cause of separation of
property
The spouse persons are
necessarily separated
Absolute Divorce-No
Relative Divorce- Yes. That is, Legal
Separation
Two Kinds of Divorces
Q: What are the 2 kinds of divorce?
A:
Q: Do we recognize the effects of Divorce?

(a) Absolute divorce marriage is dissolved
(b) Relative divorce or legal separation marriage is
not dissolved; here the parties are merely separated
from bed and board.
Rules for Absolute Divorce Today Both Under the Civil Code
and the Family Code (Without Prejudice to Moslem
Divorces)
A. If the action is brought here in the Philippines:
1) between Filipinos will not prosper
2) between foreigners will not prosper
B. If the action is brought in a foreign court
1) between Filipinos will not be recognized
here
2) between foreigners recognized here
subject to the following conditions:
a.
b.
the foreign court has jurisdiction to

grant the absolute Divorce
said divorce is recognized as valid
by the personal law of the parties
involved
3) between a Filipino and a foreigner if

obtained by foreigner and valid according
to his personal law valid for both
foreigner and Filipino
Q: What is the distinction between Legal Separation and
Separation of Property?
A:
Separation of Property
If one prior to marriage
may be done thru the
marriage settlement;
If done during the
existence
of
the
marriage must be done
thru the courts
May exist with or
without legal separation
May be considered as
one of the effects of
legal separation
The spouse persons are
not
necessarily separated
A:
GR: No
XPN: Art. 26(2), relating to a marriage between a Filipino
citizen and a foreigner, wherein the latter validly obtained a
divorce abroad, capacitating him or her to remarry.
Q: What are the effects of Legal Separation?
A:
1.
2.
3.
4.
5.
6.
7.
8.
Spouses are entitled to live separately

Marriage bond is not severed
Dissolution of property regime
Forfeiture of the share of the guilty spouse in the net
profits of the ACP/CP
Custody of minor children to innocent spouse
(subject to Article 213 which provides that parental
authority shall be exercised by parent designated by
the Court)
Guilty spouse is disqualified from intestate
succession and provisions made by him in favor of
the innocent spouse in a will shall be revoked
Innocent spouse may revoke the donation made by
him in favor of the offending spouse. However,
alienations, liens and encumbrances registered in
good faith before the recording of the complaint for
revocation in the registries of property shall be
respected.
Innocent spouse may revoke designation of guilty
spouse as beneficiary in insurance policy even if such
designation be stipulated as irrevocable
Q: What are the grounds for the filing of a petition for legal
separation?
72

A:
1.
Repeated Physical Violence

Note that the reason for physical violence is
immaterial.
Q: How many times should the physical violence be
inflicted in order to be considered as repeated?
A: It is a question of fact. The law did not say how
many times. It will depend on the circumstances of
the case and on the court.
2.
Grossly Abusive Conduct

The conduct must be grossly abusive, but the law
does not require repetition, because repetition
qualifies only physical violence
3.
Sexual Infidelity
Q: How is sexual infidelity understood? Does it mean

sexual intercourse with a man or a woman other than the
spouse?
A: Sexual Intercourse is not necessary in order that there
may be sexual infidelity. As long as the act committed
constitutes a clear betrayal of the trust reposed by one
spouse to the other by having or maintaining an illicit love
affair or intimate relations with another person. This simply
means marital unfaithfulness.
Thus, it should not be understood as indulging in sexual
intercourse with another person other than the spouse.
NOTE: There can be sexual infidelity even without
Concubinage.
According to Justice Sempio-Diy, the ground sexual
infidelity gives the court leeway to determine whether the
unfaithfulness of the husband or wife is sufficient to justify
an action for legal separation by the other spouse.
More so, this term takes place of the ground of adultery on
the part of the wife and concubinage on the part of the
husband in the Civil Code.
4.
Perversion
This means that the act is done beyond normal bounds.

As long as there is consent between the spouses, no matter
how they do the act, it will not be perversion. But the
moment one objects, it now becomes perversion, and the
propriety of the act becomes an issue.
Eloisa Goitia vs. Jose Campos Rueda

G.R. No. 11263, November 2, 1916
Marriage is something more than a contract, though founded upon the
agreement of the parties. When once formed a relation is created
between the parties which they cannot change by agreement, and the
rights and obligations of which depend not upon their agreement but
upon the law. The spouses must be faithful to assist, support, and live
with each other.
The wife, who is forced to leave the conjugal abode by her husband
without fault on her part, way maintain action against the husband for
separate maintenance when she has no other remedy notwithstanding
the provisions of article 149 of the Civil Code giving the person who is
obliged to furnish support the option to satisfy it either by paying a fixed
pension or by receiving and maintaining in his own home the one having
the right to the same.
The parties were legally married in the city of Manila on

January 7, 1915, and immediately thereafter established
their residence at 115. Calle San Marcedino, where they
lived together for about a month, when the plaintiff
returned to the home of her parents. The pertinent,
allegations of the complaint are as follows:
"That the defendant, one month after he had contracted
marriage with the plaintiff, demanded of her that she
perform unchaste and lascivious acts on his genital organs;
that the plaintiff spurned the obscene demands of the
defendant and refused to perform any act other than legal
and valid cohabitation; that the defendant, since that date
had continually on other successive dates, made similar
lewd and indecorous demands on his wife, the plaintiff, who
always spurned them, which just refusals of the plaintiff
exasperated the defendant and induced him to maltreat her
by word and deed and inflict injuries upon her lips, her face
and different parts of her body; and that, as the plaintiff was
unable by any means to induce the defendant to desist from
his repugnant desires and cease from maltreating her, she
was obliged to leave the conjugal Abode and take refuge in
the home of her parents."
Marriage in this jurisdiction is a contract entered into in
them anner and with the solemnities established by General
Orders No. 68, in so far as its civil effects are concerned
requiring the consent of the parties. (Garcia vs. Montague,
12 Phil. Rep., 480, citing article 1261, of Civil Code) Upon the
termination of the marriage ceremony, a conjugal
partnership is formed between the parties. (Sy loc Lieng vs.
Encarnacion, 16 Phil. Rep., 137.) To this extent a marriage
partakes of the nature of an ordinary contract. But It is
something more than a mere contract. It is a new relation,
the rights, duties, and obligations of which rest not upon the
agreement of the parties but upon the general law which
defines and prescribes those rights, duties, and obligations.
Marriage is an institution, in the maintenance of which in its
purity the public is deeply interested. It is a relation for life
73

and the parties cannot terminate it at any shorter period by

virtue of any contract they may make. The reciprocal rights
arising from this relation, so long as it continues, are such as
the law determines from time to time, and none other.
When the legal existence of the parties is merged into one
by marriage, the new relation is regulated and controlled by
the state or government, upon principles of public policy for
the benefit of society as well as the parties. And when the
object of a marriage is defeated by rendering its continuance
intolerable to: one of the parties and productive of no
possible good to the community, relief in some, way should
be obtainable. With these principles to guide us, we will
inquire into the status of the law touching and governing the
question under consideration.
Articles 42 to 107 of the Civil Code are not in force in the
Philippine Islands (Benedicto vs. De la Rama, 3 Phil. Rep.,
34). Articles 44 to 78 of the Law of Civil Marriage of 1870, in
force in the Peninsula, were extended to the Philippine
Islands by royal decree on April 13, 1883 (Ebreo vs. Sichon, 4
Phil. Rep., 705). Articles 44, 45, and 48 of this law read:
"ART. 44. The spouses are obliged to be faithful to each
other and to mutually assist each other.
"ART. 45. The husband must live with and protect his
wife. (The second paragraph deals with the
management of the wife's property.)
"ART. 48. The wife must obey her husband, live with
him and follow him when he changes his domicile or
residence.
"Notwithstanding the provisions of the foregoing
paragraph, the court may for just cause relieve her
from this duty when the husband removes his
residence to a foreign country.
And articles 143 and 149 of the Civil Code are as follows:
"ART. 143. The following are obliged to support, each other
reciprocally to the whole extent specified in the preceding
article.
"ART. (149) 49. The person obliged to give support may at his
option, satisfy it, either by paying the pension that may be
fixed or by receiving said maintaining in his own home the
person having the right to the same."
Article 152 of the Civil Code gives the instances when the
obligation to give support shall cease. The failure of the wife
to live with her husband is not one of them. The above
quoted provisions of the Law of Civil Marriage and the Civil
Code fix the duties and obligations of the spouses. The
spouses must be faithful to assist and support each other.
The husband must five with and protect his wife. The wife
must obey and live with her husband and follow him when
he changes his domicile or residence except when he
removes to a foreign country. But, the husband who is
obliged to support his wife may, at his option, do so by
paying her a fixed pension or by receiving and maintaining
her in his own home. May the husband on account of his
conduct toward his wife, lose this option and be compelled
to pay the pension? Is the rule established by Article 149 of

the Civil Code absolute. The supreme court of Spain in its
decision of December 5, 1903, held:
"That in accordance with the ruling of the supreme court of
Spain in its decisions dated May, 11 1897 November 25,
1899, and July 5, 1901, the option which article, 149 grants
the person, obliged to furnish subsistence, between paying
the pension fixed or receiving and keeping in his own house
the, party who is entitled to the same, is, not so absolute as
to prevent cases being considered wherein, either because
this right would be opposed to the exercise preferential
right or because of the existence of some justifiable cause
morally opposed to the removal of the party enjoying the
maintenance, the right of selection must be understood as
being, thereby restricted.
The above was quoted with approval in United States and
De Jesus vs. Alvir (9 Phil. Rep., 576), wherein the court held
that the rule laid down in article 149 of the Civil Code "is not
absolute." But it is insisted that there existed a preexisting
or preferential right in each of these cases which was
opposed to the removal of the one entitled to support. It is
true that in the first the person claiming the option was the
natural father of the child and had married a woman, other
than the child's mother, and in the second the right to
support had already been established by a final judgment in
a criminal case. Notwithstanding these facts, the two can
clearly established the proposition that the option given by
article 149 of the Civil Code may not be exercised in any and
all cases.
From a careful reading of the case just cited and quoted
from it appears quite clearly that the spouses separated
voluntarily in accordance with an agreement previously
made. At least there are strong indications to this effect, for
the court says, "Should the doctrine maintained in the
appeal prevail, it would allow married persons to disregard
the marriage bond and separate from each other of their
own free will." If this be the true basis upon which the
supreme court of Spain rested its decision, then the doctrine
therein enunciated would not be controlling in caw where
one of the spouses was compelled to leave the conjugal
abode by the other or where the husband voluntarily
abandons such abode and the wife seeks to force him to
furnish support. That this is true appears from the decision
of the same high tribunal, dated October 16, 1903. In this
case the wife brought an action for support against her
husband who had willfully and voluntarily abandoned the
conjugal abode without any cause whatever.
But it is argued that to grant support in an independent suit
is equivalent to granting divorce or separation as it
necessitates a determination of the question whether the
wife has a good and sufficient cause for living separate from
her husband; and, consequently, if a court lacks power to
decree a divorce, as in the instant case, power to grant a
74

separate maintenance must also be lacking. The weakness of

this argument lies in the assumption that the power to grant
support in a separate action is dependent upon a power to
grant a divorce. That the one is not dependent upon the
other is apparent from the very nature of the marital
obligations of the spouses. The mere act of marriage,
creates an obligation on the part of the husband to support
his wife. This obligation is founded not so much on the
express or implied terms of the contract of marriage as on
the natural and legal duty of the husband; an obligation, the
enforcement of which is of such vital concern to the state
itself that the law will not permit him to terminate it by his
own wrongful acts in driving his wife to seek protection in
the parental home. A judgment for separate maintenance is
not due and payable either as damages or as a penalty; nor
is it a debt in the strict legal sense of that term, but rather a
judgment calling for the performance of a duty made
specific by the mandate of the sovereign. This is done from
necessity and with a view to preserve the public peace and
the purity of the wife; as where the husband makes so base
demands upon his wife and indulges, in the habit of
assaulting her. The pro tanto separation resulting from a
decree for separate support is not an impeachment of that
public policy by which marriage is regarded as so sacred and
inviolable, in its nature; it is merely a stronger policy
overruling a weaker one; and except in so far only as such
separation is tolerated as a means of preserving the public
peace and morals may be considered, it does not in any
respect whatever impair the marriage contract or for any
purpose place the wife in the situation of a feme sole.
The foregoing are the grounds upon which our short opinion
and order for judgment, heretofore filed in this case rest.
5.
Attempt by one spouse against the life of the other
Q: Is it essential that the attempt is made by the spouse?

rd
A: Even if it is by a 3 person, as long as it is upon the

instigation of the spouse it will constitute a ground for legal
separation, because the act of the person engaged is also the
act of the spouse.
Q: Suppose only one act of physical abuse is committed, i.e.,
the husband punched the wife and she fell on the floor, will
it constitute a ground for legal separation?
A: It does not constitute a ground for legal separation,
because it does not constitute attempt. It is only a ground for
bringing an action for physical injuries. Remember, there
must be a Criminal intent to kill.
Q: Because the husband kept punching the wife, she got a
knife and stabbed the husband when she was punching her.
If the husband did not die, would the act of the wife
constitute an attempt on the life of the husband as a ground
for
legal
separation?
A: An act of self-defense from the actions of the husband will
not be a ground for legal separation.
6.
Corruption or Inducement to Engage in Prostitution
The inducement contemplated in this situation applies only to

women. On the other hand, corruption applies to both male
and female.
DEFENSES AGAINST LEGAL SEPARATION
NOTE: The right of sexual intercourse between the husband

and the wife is not absolute. It is subject to limitations such
as moderateness. The Court did not say what is moderate, it
is looked at on case to case basis.
Q: What is the distinction between Physical Violence in Par.
1 and Physical Violence in Par. 2 of Art.55?
A:
PARAGRAPH 1
Purpose is not essential
PARAGRAPH 2
The purpose or reason is
essential
It has to be repeated
The law does not
require repetition
Criminal Intent to kill is NOT necessary
However, under paragraph 9 of Article 55, relating to the
ground of attempt by one spouse against the life of the other,
criminal intent to kill is necessary.
ARTICLE 56 The petition for legal separation shall be denied

on any of the following grounds:
(1) Where the aggrieved party has condoned the offense or
act complained of;
(2) Where the aggrieved party has consented to the
commission of the offense or act complained of;
(3) Where there is connivance between the parties in the
commission of the offense or act constituting the ground for
legal separation;
(4) Where both parties have given ground for legal
separation;
(5) Where there is collusion between the parties to obtain
decree of legal separation; or
(6) Where the action is barred by prescription. (100a)
Q: What are the defenses against Legal Separation?
A:
1.
2.
3.
Condonation
Consent
Connivance
75

4.
5.
6.
Collusion
Both parties have legal ground
Prescription
However, under the Rules of Court, it is expressly provided by

law that there can be no judgment by default in the above
case. There must always be a proceeding and presentation of
evidence.
ARTICLE 57 An action for legal separation shall be filed

within five years from the time of the occurrence of the
cause. (102)
ARTICLE 61After the filing of the petition for legal

separation, the spouses shall be entitled to live separately
from each other.
An action for legal separation must be commenced/ filed

within 5 years from the time of the occurrence of the cause,
no longer from the time the aggrieved spouse comes to know
of the cause (Art. 57). But an action for legal separation shall
in case be tried before six (6) months shall have elapsed since
the filing of the petition.
The court, in the absence of a written agreement between

the spouses, shall designate either of them or a third person
to administer the absolute community or conjugal
partnership property. The administrator appointed by the
court shall have the same powers and duties as those of a
guardian under the Rules of Court. (104a)
Q: Under this article, what are the obligations of the Courts?
Q: What are the effects of the filing of the petition for legal
separation (According to Dean Aligada)?
A:
A:
1.
2.
3.
Observe the six (6) months cooling-off period

All steps must be taken towards reconciliation
The Decree of Legal Separation should not be based
on stipulation of facts.
ARTICLE 58 An action for legal separation shall in no case be

tried before six months shall have elapsed since the filing of
the petition. (103)
ARTICLE 59 No legal separation may be decreed unless the
Court has taken steps toward the reconciliation of the
spouses and is fully satisfied, despite such efforts, that
reconciliation is highly improbable. (n)
1.
2.
Spouses may now live separately from each other.

This is not mandatory.
In the absence of a written agreement between the
spouses, the court shall order either of the spouses
or a third person to administer the conjugal
properties.
Q: If there is an agreement between the spouses regarding

the designation of administrator of the community or
conjugal property during the pendency of the action for
legal separation, is the court bound to follow it?
ARTICLE 60 No decree of legal separation shall be based

upon a stipulation of facts or a confession of judgment.
A: If in the mind of the court the agreement is not for the

best interest of the parties or the property regime, the court
is not bound by such agreement.
In any case, the Court shall order the prosecuting attorney

or fiscal assigned to it to take steps to prevent collusion
between the parties and to take care that the evidence is
not fabricated or suppressed. (101a)
Benjamin Bugayong v. Leonila Ginez

G.R. No. L-10033, December 28, 1956.
Q: Is a stipulation of facts by the parties valid?

A: Stipulation of Facts is not prohibited by law in action for
legal separation, annulment or declaration of nullity of
marriage. But a decree of legal separation or a judgment of
annulment or declaration of absolute nullity of marriage
should not be based on the stipulation of facts alone. The
reason for this is to prevent collusion or connivance between
the contending parties.
Q: Can the Court declare the respondent spouse in default
and render a judgment by default?
A: The Family Code is silent.
The Supreme Court held that if after the complaint for legal
separation has been commenced, the Spouses have
intercourse with each other that will mean the end of the
case. The plaintiff spouse will lose the right to bring the
action because it will constitute an act of condonation.
Benjamin Bugayong, a serviceman in the United States Navy,
was married to defendant Leonila Ginez on August 27, 1949,
at Asingan, Pangasinan, while on furlough leave. Immediately
after their marriage, the couple lived with the sisters of the
husband in said municipality, but before the latter left to
report back to duty, he and his wife came to an agreement
that Leonila would stay with his sisters who later moved to
Sampaloc, Manila. After some time, or about July, 1951,
Leonila Ginez left the dwelling of her sisters-in-law and
76

informed her husband by letter that she had gone to reside

with her mother in Asingan, Pangasinan, from which place
she later moved to Dagupan City to study in a local college
there.
As early as July, 1951, Benjamin Bugayong began receiving
letters from Valeriana Polangco (plaintiff's sisterin-law) and
some from anonymous writers (which were not produced at
the hearing) informing him of alleged acts of infidelity of his
wife which he did not even care to mention. On crossexamination, plaintiff admitted that his wife also informed
him by letter, which he claims to have destroyed, that a
certain "Eliong" kissed her. All these communications
prompted him in October, 1951 to seek the advice of the
Navy Chaplain as to the propriety of a legal separation
between him and his wife on account of the latter's alleged
acts of infidelity, and he was directed to consult instead the
navy legal department.
In August, 1952, plaintiff went to Asingan, Pangasinan, and
sought for his wife whom he met in the house of one Mrs.
Malalang, defendant's godmother. She came along with him
and both proceeded to the house of Pedro Bugayong, a
cousin of the plaintiff-husband, where they stayed and lived
for 2 nights and 1 day as husband and wife. Then they
repaired to the plaintiff's house and again passed the night
therein as husband and wife. On the second day, Benjamin
Bugayong tried to verify from his wife the truth of the
information he received that she had committed adultery but
Leonila, instead of answering his query, merely packed up
and left, which he took as a confirmation of the acts of
infidelity imputed on her. After that and despite such belief,
plaintiff exerted efforts to locate her and failing to find her,
he went to Bacarra, Ilocos Norte, "to soothe his wounded
feelings".
On November 18, 1952, Benjamin Bugayong filed in the Court
of First Instance of Pangasinan a complaint for legal
separation against his wife, Leonila Ginez, who timely filed an
answer vehemently denying the averments of the complaint
and setting up affirmative defenses. After the issues were
joined and convinced that a reconciliation was not possible,
the court set the case for hearing on June 9, 1953. Plaintiff's
counsel announced that he was to present 6 witnesses but
after plaintiff-husband finished testifying in his favor, counsel
for the defendant orally moved for the dismissal of the
complaint, but the Court ordered him to file a written motion
to that effect and gave plaintiff 10 days to answer the same.
The motion to dismiss was predicated on the following
grounds: (1) Assuming arguendo the truth of the allegations
of the commission of "acts of rank infidelity amounting to
adultery", the cause of action, if any, is barred by the statute
of limitations; (2) That under the same assumption, the acts
charged have been condoned by the plaintiff-husband; and
(3) That the complaint failed to state a cause of action
sufficient for this court to render a valid judgment.
The Civil Code provides:

ART. 97. A petition for legal separation may be filed:
(1) For adultery on the part of the wife and for concubinage
on the part of the husband as defined in the Penal Code; or
(2) An attempt by one spouse against the life of the other.
ART. 100. The legal separation may be claimed only by the
innocent spouse, provided there has been no condonation of
or consent to the adultery or concubinage. Where both
spouses are offenders, a legal separation cannot be claimed
by either of them. Collusion between the parties to obtain
legal separation shall cause the dismissal of the petition.
ART. 102. An action for legal separation cannot be filed
except within one year from and after the date on which the
plaintiff became cognizant of the cause and within five years
from and after the date when such cause occurred.
As the only reason of the lower Court for dismissing the
action was the alleged condonation of the charges of adultery
that the plaintiff-husband had preferred in the complaint
against his wife, We will disregard the other 2 grounds of the
motion to dismiss, as anyway they have not been raised 'in
appellant's assignment of errors.
Condonation is the forgiveness of a marital offense
constituting a ground for legal separation or, as stated in I
Bouvier's Law Dictionary, p. 585, condonation is the
"conditional forgiveness or remission, by a husband or wife of
a matrimonial offense which the latter has committed". It is
to be noted, however, that in defendant's answer she
vehemently and vigorously denies having committed any act
of infidelity against her husband, and even if We were to give
full weight to the testimony of the plaintiff, who was the only
one that had the chance of testifying in Court and link such
evidence with the averments of the complaint, We would
have to conclude that the facts appearing on record are far
from sufficient to establish the charge of adultery, or, as the
complaint states, of "acts of rank infidelity amounting to
adultery" preferred against the defendant. Certainly, the
letter that plaintiff claims to have received from his sister-inlaw Valeriana. Polangco, which must have been too vague
and indefinite as to defendant's infidelity to deserve its
production in evidence; nor the anonymous letters which
plaintiff also failed to present; nor the alleged letter that,
according to plaintiff, his wife addressed to him admitting
that she had been kissed by one Eliong, whose identity was
not established and which admission defendant had no
opportunity to deny because the motion to dismiss was filed
soon after plaintiff finished his testimony in Court, do not
amount to anything that can be relied upon.
But this is not a question at issue. In this appeal, We have to
consider plaintiff's line of conduct under the assumption that
77

he really believed his wife guilty of adultery. What did he do

in such state of mind. In August, 1952, he went to Pangasinan
and looked for his wife and after finding her they lived
together as husband and wife for 2 nights and 1 day, after
which he says that he tried to verify from her the truth of the
news he had about her infidelity, but failed to attain his
purpose because his wife, instead of answering his query on
the matter, preferred to desert him, probably enraged for
being subjected to such humiliation. And yet he tried to
locate her, though in vain. Now, do the husband's attitude of
sleeping with his wife for 2 nights despite his alleged belief
that she was unfaithful to him, amount to a condonation of
her previous and supposed adulterous acts?
not express, that the wrongdoer shall not again commit the
offense; and also that he shall thereafter treat the other
spouse with conjugal kindness. A breach of the condition will
revive the original offense as a ground for divorce.
Condonation may be express or implied'.
The New Civil Code of the Philippines, in its Art. 97, says: A
petition for legal separation may be filed: (1) For adultery on
the part of the wife and concubinage on the part of the
husband as defined in the Penal Code, and in its Art. 100 it
says: The legal separation may be claimed only by the
innocent spouse, provided there has been no condonation of
or consent to the adultery or concubinage. Where both
spouses are offenders, legal separation cannot be claimed by
either of them. Collusion between the parties to obtain legal
separation shall cause the dismissal of the petition.
In- the light of the facts testified to by the plaintiff-husband,

of the legal provisions above quoted, and of the various
decisions above-cited, the inevitable conclusion is that the
present action is untenable.
A detailed examination of the testimony of the plaintiffhusband, especially those portions quoted above, clearly
shows that there was a condonation on the part of the
husband for the supposed ,acts of rank infidelity amounting
to adultery' committed by defendant-wife. Admitting for the
sake of argument that the infidelities amounting to adultery
were committed by the defendant, reconciliation was
effected between her and the plaintiff. The act of the latter in
persuading her to come along with him, and the fact that she
went with him and consented to be brought to the house of
his cousin Pedro Bugayong and together they slept there as
husband and wife for one day and one night, and the further
fact that in the second night they again slept together in their
house likewise as husband and wife-all these facts have no
other meaning in the opinion of this court than that a
reconciliation between them was effected and that there was
a condonation of the wife by the husband. This reconciliation
occurred almost ten months after he, came to know of the
acts of infidelity amounting to adultery.
In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it
has been held that 'condonation is implied from sexual
intercourse after knowledge of the other infidelity. Such acts
necessarily implied forgiveness. It is entirely consonant with
reason and justice that if the wife freely consents to sexual
intercourse after She has full knowledge of the husband's
guilt, her consent should operate as a pardon of his wrong.
In Tiffany's Domestic and Family Relations, section 107 says:
Condonation is the forgiveness of a marital offense
constituting a ground for divorce and bars the right to a
divorce. But it is on the condition, implied by the law when
It has been held in a long line of decisions of the various

supreme courts of the different states of the U. S. that 'a
single voluntary act of sexual intercourse by the innocent
spouse after discovery of the offense is ordinarily sufficient to
constitute condonation, especially as against the husband'.
(27 Corpus Juris Secundum, section 61 and cases cited
therein).
Although no acts of infidelity might have been committed by

the wife, We agree with the trial judge that the conduct of
the plaintiff-husband above narrated despite his belief that
his wife was unfaithful, deprives him, as alleged the offended
spouse, of any action for legal separation against the
offending wife, because his said conduct comes within the
restriction of Article 100 of the Civil Code.
If there had been cohabitation, to what extent must it be to
constitute condonation?
Single voluntary act of marital intercourse between the
parties ordinarily is sufficient to constitute condonation, and
where the parties live in the same house, it is presumed that
they live on terms of matrimonial cohabitation (27 C. J. S.,
section 6-d).
A divorce suit will not be granted for adultery where the
parties continue to live together after it was known (Land vs.
Martin, 15 South 657; Day vs. Day, 80 Pac. 974) or there is
sexual intercourse after knowledge of adultery (Rogers vs.
Rogers, 67 N. J. Eq. 534) or sleeping together for a single night
(Toulson vs. Toulson, 50 Atl. 401, citing Phinizy vs. Phinizy,
114 S. E. 185, 154 Ga. 199; Collins vs. Collins, 193 So. 702),
and many others. The resumption of marital cohabitation as a
basis of, condonation will generally be inferred, nothing
appearing to the contrary, from the fact of the living together
as husband and wife, especially as against the husband
(Marsh vs. Marsh, 14 N. J. Eq. 315).
Q: What is the effect of the death of either party after the

Petition has been filed?
A: This will cause the dismissal of the case.
78

Q: After a decree of legal separation, are you still obliged to

love your spouse?
The action to revoke the donation under this Article must be

brought within five years from the time the decree of legal
separation become final. (107a)
A: No, love cannot be ordered; not even by law.

Q: How about mutual respect?
A decree of legal separation per se does not produce any

effect. What produces effect is a final decree of legal
separation.
A: It is taken on a case to case basis.

Q: What are the effects of a Decree of Legal Separation?
Q: How about mutual fidelity?
A:
A: Yes, this is an obligation that cannot be done away with
because if it is violated, it may give rise to criminal liability.
ARTICLE 62 During the pendency of the action for legal
separation, the provisions of Article 49 shall likewise apply
to the support of the spouses and the custody and support
of the common children. (105a)
1.
2.
ARTICLE 63 The decree of legal separation shall have the

following effects:
(1) The spouses shall be entitled to live separately from each
other, but the marriage bonds shall not be severed;
(2) The absolute community or the conjugal partnership
shall be dissolved and liquidated but the offending spouse
shall have no right to any share of the net profits earned by
the absolute community or the conjugal partnership, which
shall be forfeited in accordance with the provisions of
Article 43(2);
(3) The custody of the minor children shall be awarded to
the innocent spouse, subject to the provisions of Article 213
of this Code; and
(4) The offending spouse shall be disqualified from
inheriting from the innocent spouse by intestate succession.
Moreover, provisions in favor of the offending spouse made
in the will of the innocent spouse shall be revoked by
operation of law. (106a)
ARTICLE 64 After the finality of the decree of legal
separation, the innocent spouse may revoke the donations
made by him or by her in favor of the offending spouse, as
well as the designation of the latter as beneficiary in any
insurance policy, even if such designation be stipulated as
irrevocable.
The revocation of the donations shall be recorded in the
registries of property in the places where the properties are
located. Alienations, liens and encumbrances registered in
good faith before the recording of the complaint for
revocation in the registries of property shall be respected.
The revocation of or change in the designation of the
insurance beneficiary shall take effect upon written
notification thereof to the insured.
Right of the spouses to live separately in bed

board. But the marriage bonds are not severed.
Automatic dissolution and liquidation of
Conjugal Partnership or Community Property.
always carries the rule on forfeiture of the
profits against the offending spouse.
and
the
This
Net
Rule on Forfeiture: does not admit of any exception.

It is absolute.
3.
Custody of the minor children shall be awarded to

the innocent spouse, subject to Art. 213 of the
Family Code.
In case the child is more than seven (7) years old,
such child can choose but this is not absolute
because if the parent chosen is disqualified the court
will intervene.
Q: Suppose the innocent spouse is not capacitated
to take care of the children, and is therefore not fit
to have custody over them, shall the children be
awarded to the guilty spouse?
A: If the child is below seven (7), the child must
remain with the mother, unless she is unfit or unless
the court decides otherwise. The court is not
precluded from appointing a guardian.
If the child is above seven (7), he is given the right to
choose. But if he chooses the guilty spouse, the
court shall intervene.
Article 213 provides that in case of separation of
the parents, parental authority shall be exercised by
the parent designated by the Court. The court shall
take into account all relevant considerations,
especially the choice of the child over seven (7) years
of age, unless the parent chosen is unfit.
Q: What are the instances that may justify the
Separation of the Child from the Mother?
A:
a.
Health
79

b.
Economic reasons
These are the compelling reasons for

which
parental
authority over a child may be deprived from the mother
even if such child is less than seven (7) years of age.
Q: To what extent is the disqualification to succeed?

A: Disqualification is not limited to the legitime. It may extend
to legacies and devices.
Q: May the guilty spouse still succeed?
Morality is not an instance, because

the child is of
tender age and does
not know what is moral or
immoral.
4.
The guilty spouse is disqualified to inherit. In legal

separation, this disqualification applies to both
testate and intestate succession because the
marriage bond is not severed.
The rule applies also to the Legitime of the guilty
spouse, as well as to legacies and devices. An
exception would be when, after the decree of Legal
separation, the innocent spouse rewrites the will
and institutes the guilty spouse as an heir.
A: Any testamentary provision in the will in favor of the guilty

spouse will be revoked.
In every decree of legal separation, the court always declares
who is the guilty and innocent spouse. This is automatic.
The mere fact of reinstating the guilty spouse does not give
him the right to succeed. Such act has to be accompanied by
reconciliation.
NOTE: Reinstitution has to be accompanied by Reconciliation
for the guilty spouse to succeed the innocent spouse.
Q: Who may exercise the power of revocation?
5.
Obligation which the law imposes upon the spouses

to support each other is removed, except when the
court orders the guilty spouse to support the
innocent spouse.
Additional effects (Art. 64)

6.
Any donation made to the guilty spouse may be

revoked. This refers to donations made before the
marriage.
In Art. 43, the law is clear that in Terminable
Bigamous Marriage, the revocation applies to
Donation Propter Nuptias.
In Art. 64 (1), the law speaks of donations in general.
The donation need not be a donation propter
nuptias. Revocation here is discretionary upon the
innocent spouse.
Q: Within what time may donation be revoked?
A: Within 5 years from the time the decree of legal
separation becomes final. There must be an action
brought for the revocation of the donation within
the five (5)-year prescriptive period.
7.
The innocent spouse may also revoke the

designation of the offending spouse as beneficiary in
any insurance policy, even if the designation is
stipulated as irrevocable.
NOTE: Period of five (5) years-refers only to the revocation of

the donation. It does not refer to the revocation of the
designation in the insurance policy.
rd
A: Donations propter nuptias may be made by 3 persons,

but in the law, right to revoke may be made only by the
innocent spouse.
rd
Q: Why is the right to revoke denied to a 3 person?

A: Third persons who have made donations to the guilty
spouse are not given the right to revoke because the case is
between the spouses. The injured and offending spouse are
either of the spouses.
All kinds of donations may be recovered by the innocent
spouse which he or she has made in favor of the offending
spouse, whether ordinary donations or donations propter
nuptias. There is no express provision specifying the donation
which may be revoked.
As to designation of beneficiary, the right to revoke is given
again to the innocent spouse. The designation of the guilty
spouse as beneficiary by the innocent spouse in an insurance
policy may be revoked by the latter, even if such designation
be stipulated as irrevocable.
According to Dean Aligada, the provision in Article 64 stating
that the revocation of or change in the designation of the
insurance beneficiary shall take effect upon written
notification thereof to the insured is WRONG! It should be
read as: it will take effect the moment the insured gives
notice to the insurer.
The reason why the provision is wrong is because the insurer
could take his own sweet time in giving notice; and in the
meantime, the innocent spouse could die and the guilty
spouse may get his benefits.
80

ARTICLE 65 If the spouses should reconcile, a corresponding

joint manifestation under oath duly signed by them shall be
filed with the court in the same proceeding for legal
separation. (n)
Q: In case of reconciliation, the corresponding Joint
Manifestation must be?
A:
1.
2.
3.
4.
But the separation of property and any forfeiture of the share

of the guilty spouse already effected shall subsist, unless
spouses agree to revive their former property regime.
Q: Distinguish between reconciliation and pardon.
PARDON
Unilateral
There is no need for
acceptance
RECONCILIATION
Bilateral
There must be acceptance by
both parties
In writing;
Under oath;
Signed by the parties; and
Filed with the court which rendered the Decree of
Legal Separation, in the same proceeding.
Q: Can the spouses agree to return what was forfeited in

case of reconciliation?
ARTICLE 66 The reconciliation referred to in the preceding

Articles shall have the following consequences:
ARTICLE 67 The agreement to revive the former property

regime referred to in the preceding Article shall be executed
under oath and shall specify:
(1) The legal separation proceedings, if still pending, shall

thereby be terminated at whatever stage; and
(2) The final decree of legal separation shall be set aside, but
the separation of property and any forfeiture of the share of
the guilty spouse already effected shall subsist, unless the
spouses agree to revive their former property regime.
The court's order containing the foregoing shall be recorded
in the proper civil registries. (108a)
The effects of reconciliation will depend upon when the
reconciliation takes place
Q: What are the effects of reconciliation upon Legal
Separation?
A:
1.
2.
3.
4.
5.
If it occurs BEFORE the filing of the petition for Legal

Separation, the innocent spouse loses the right to
file the same;
If the proceedings are STILL PENDING, they will be
terminated at whatever stage;
If there is already a FINAL DECREE OF LEGAL
SEPARATION, it will be set aside by a court order to
that effect;
Effect upon the person- this means that there will
be resumption of Martial Relations, which means
living together, including sexual relation between
spouses;
Effect upon the property- As a rule, the separation
of property will subsist, except when the spouses
agree to revive their original property relations.
NOTE: The parties cannot choose an economic
system different from that prior to the Legal
Separation.
A: The law does not prohibit this. What is not prohibited by

law can be done.
(1) The properties to be contributed anew to the restored

regime;
(2) Those to be retained as separated properties of each
spouse; and
(3) The names of all their known creditors, their addresses
and the amounts owing to each.
The agreement of revival and the motion for its approval
shall be filed with the court in the same proceeding for legal
separation, with copies of both furnished to the creditors
named therein. After due hearing, the court shall, in its
order, take measure to protect the interest of creditors and
such order shall be recorded in the proper registries of
properties.
The recording of the ordering in the registries of property
shall not prejudice any creditor not listed or not notified,
unless the debtor-spouse has sufficient separate properties
to satisfy the creditor's claim. (195a, 108a)
If the spouses agree to revive their former property regime,
there must be an Agreement executed under oath to that
effect.
The omission of any creditor from the list will not prejudice
the right of such creditor.
RIGHT AND OBLIGATIONS BETWEEN HUSBAND AND WIFE

Art. 68. The husband and wife are obliged to live together,
observe mutual love, respect and fidelity, and render
mutual help and support.
Right to live together
81

This includes the right of the spouses to cohabit, the right of

consortium, and the right to sexual intercourse. Any person
who impairs the exercise of such right becomes liable for
damages.
The Supreme Court distinguished between damages which
would be considered as conjugal property or as exclusive
property of each spouse:
CONJUGAL
Damages awarded as
compensation
for
hospitalization expenses
Damages awarded as
compensation for loss of
income
RATIO:
Any
income
received by the spouse
during the Marriage shall
be
considered
as
conjugal property.
EXCLUSIVE PROPERTY
Moral damages
NOTE: The obligation of the spouses to render Mutual Help

and Support includes the rendition of medical attendance.
Right of Consortium
This refers to the right to enjoy the company of the other
spouse.
Support of the Family
The expenses for such support and other conjugal obligations
shall be paid from either from the Absolute Community
Property or the Conjugal Partnership Property.
1.
2.
If it is insufficient or absent, from the fruits of the

exclusive property of each spouse;
If it is still insufficient or absent, from the separate
property of each spouse.
The spouses are jointly liable for the support of the family.
Pelayo V. Lauron
In this case, a pregnant woman gave birth while visiting her
in-laws. The father-in-law was sued by the doctor for medical
bills.
The Supreme Court held that the father-in-law is not liable to
pay the medical bills. It is the husband who is liable.
Q: Distinguish between support of the family and expenses
of the family/marriage?
SUPPORT
Expenses necessary for the
maintenance of the family.
EXPENSES
All other expenses outside of
support.
NOTE: This distinction was found in the Civil Code. However,

this distinction has been abolished in the Family Code.
Right to Manage the Household
Family Code gives this right to both spouses. All expenses
shall be answered by the Community or Conjugal Partnership
primarily. If insufficient, see the above discussion.
Q: When may the spouse not follow the other abroad?
A: Only when the court finds valid and compelling reasons for
such.
NOTE: Either spouse may object to the exercise by the other
spouse of a profession or business.
Art. 69. The husband and wife shall fix the family domicile.
In case of disagreement, the court shall decide. The court
may exempt one spouse from living with the other if the
latter should live abroad or there are other valid and
compelling reasons for the exemption. However, such
exemption shall not apply if the same is not compatible with
the solidarity of the family.
Art. 70. The spouses are jointly responsible for the support
of the family. The expenses for such support and other
conjugal obligations shall be paid from the community
property and, in the absence thereof, from the income or
fruits of their separate properties. In case of insufficiency or
absence of said income or fruits, such obligations shall be
satisfied from the separate properties.
Art. 71. The management of the household shall be the right
and duty of both spouses. The expenses for such
management shall be paid in accordance with the provisions
of Article 70.
Art. 72. When one of the spouses neglects his or her duties
to the conjugal union or commits acts which tend to bring
danger, dishonor or injury to the other or to the family, the
aggrieved party may apply to the court for relief.
Art. 73. Either spouse may exercise any legitimate
profession, occupation, business or activity without the
consent of the other. The latter may object only on valid,
serious, and moral grounds.
In case of disagreement, the court shall decide whether or
not:
(1) The objection is proper, and
A:
82

(2) Benefit has accrued to the family prior to the objection

or thereafter. If the benefit accrued prior to the objection,
the resulting obligation shall be enforced against the
community property. If the benefit accrued thereafter, such
obligation shall be enforced against the separate property of
the spouse who has not obtained consent.
A: Stipulation need not be related to the marriage. They may

stipulate on anything, subject to the limitations imposed by
law on contracts.
Q: May the marriage settlement be changed?
A:
The foregoing provisions shall not prejudice the rights of

creditors who acted in good faith.
1.
PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE

Chapter 1. General Provisions
2.
Q: What are the 2 aspects wherein marriage produces

effects?
Before the celebration of the marriage, a marriage

may be changed by the parties without judicial
approval. No person is compelled to enter into a
marriage settlement. They may even do away with
the marriage settlement;
After the celebration of the marriage, a marriage
settlement can still be changed but judicial approval
is necessary.
Q: Who may enter into a Marriage Settlement?

A:
A: Future spouses.
1.
2.
Upon the person of the parties

Upon the properties of the parties
Marriage Settlement
It cannot be executed after the marriage has been
celebrated. So it is entered into, not by spouses, but by future
spouses.
Q: What governs the property relations of spouses?
A:
1.
2.
3.
The agreement of the parties

The Family Code
Local customs
Q: What is the nature of marriage settlements?

A: It is always in the nature of a contract. Since it is a
contract, it is subject to the limitations on contracts under
Article 1306 of the NCC. Thus, the stipulations therein should
not be contrary to law, morals, public policy, public order or
good customs.
Q: What are the requisites of a valid marriage contract?
A:
1.
2.
3.
It should be in writing;
Signed by the parties; and
It should be executed before the marriage.
Q: What may the parties provide in the marriage

settlement?
Art. 74. The property relations between husband and wife

shall be governed in the following order:
(1) By marriage settlements executed before the marriage;
(2) By the provisions of this Code; and
(3) By the local customs.
Art. 75. The future spouses may, in the marriage
settlements, agree upon the regime of absolute community,
conjugal partnership of gains, complete separation of
property, or any other regime. In the absence of marriage
settlements, or when the regime agreed upon is void, the
system of absolute community of property as established in
this Code shall govern.
Art. 76. In order that any modification in the marriage
settlements may be valid, it must be made before the
celebration of the marriage, subject to the provisions of
Articles 66, 67, 128, 135 and 136.
Art. 77. The marriage settlements and any modification
thereof shall be in writing, signed by the parties and
executed before the celebration of the marriage. They shall
not prejudice third persons unless they are registered in the
local civil registry where the marriage contract is recorded
as well as in the proper registries of property.
Art. 78. A minor who according to law may contract
marriage may also enter into marriage settlements, but they
shall be valid only if the persons designated in Article 14 to
give consent to the marriage are made parties to the
agreement, subject to the provisions of Title IX of this Code.
Under this Article, minors may enter into a marriage
settlement provided that the parents or guardians whose
consent is required under Article 14 should take part in the
execution of the marriage settlement. Under the FC, a minor
83

is a person below 21 years of age and the minimum of age is

18. However, Art. 78 was repealed by R.A. 6809.
DONATIONS PROPTER NUPTIAS (DPN)
Under RA 6809, future spouses between 18 and 21 may now

enter into a marriage settlement even without the consent of
the parents, or their participation therein. It doesnt speak of
minors anymore. The age of majority has been reduced from
21 to 18. Yet, if the person is still between 18 and 21, he still
needs parental consent to enter into marriage. However, for
purposes of executing a marriage settlement, he may execute
by himself because he is qualified for all acts of civil life.
Art. 82. Donations by reason of marriage are those which

are made before its celebration, in consideration of the
same, and in favor of one or both of the future spouses.
Q: Are marriage settlements covered by the Statute of

Frauds?
Art. 84. If the future spouses agree upon a regime other

than the absolute community of property, they cannot
donate to each other in their marriage settlements more
than one-fifth (1/5) of their present property. Any excess
shall be considered void.
A: No, it is not governed by Statute of Frauds because the

writing that is required by law for marriage is not for
enforceability but validity.
A marriage settlement need not be in a public instrument or
in a particular material for purposes of validity. However, to
bind third persons, the marriage settlement is required to be
registered in the Civil Registry. Thus, it must be in a public
instrument to bind third persons. Either parties may compel
the other to reduce the marriage settlement which is in plain
writing into a public instrument.
Art. 79. For the validity of any marriage settlements
executed by a person upon whom a sentence of civil
interdiction has been pronounced or who is subject to any
other disability, it shall be indispensable for the guardian
appointed by a competent court to be made a party thereto.
Art. 80. In the absence of a contrary stipulation in a
marriage settlements, the property relations of the spouses
shall be governed by Philippine laws, regardless of the place
of the celebration of the marriage and their residence.
This rule shall not apply:
(1) Where both spouses are aliens;
(2) With respect to the extrinsic validity of contracts
affecting property not situated in the Philippines and
executed in the country where the property is located; and
(3) With respect to the extrinsic validity of contracts entered
into in the Philippines but affecting property situated in a
foreign country whose laws require different formalities for
their extrinsic validity.
Art. 83. These donations are governed by the rules on

ordinary donations established in Title III of Book III of the
Civil Code, insofar as they are not modified by the following
articles.
Donations of future property shall be governed by the

provisions on testamentary succession and the
formalities of wills.
Art. 85. Donations by reason of marriage of property subject
to encumbrances shall be valid. In case of foreclosure of the
encumbrance and the property is sold for less than the total
amount of the obligation secured, the donee shall not be
liable for the deficiency. If the property is sold for more than
the total amount of said obligation, the donee shall be
entitled to the excess.
Art. 86. A donation by reason of marriage may be revoked
by the donor in the following cases:
(1) If the marriage is not celebrated or judicially declared
void ab initio except donations made in the marriage
settlements, which shall be governed by Article 81;
(2) When the marriage takes place without the consent of
the parents or guardian as required by law;
(3) When the marriage is annulled, and the donee acted in
bad faith;
(4) Upon legal separation, the donee being the guilty
spouse;
(5) If it is with a resolutory condition and the condition is
complied with;
(6) When the donee has committed an act of ingratitude as
specified by the provisions of the Civil Code on donations in
general.
DPN can be made to either or both of the FUTURE SPOUSES.
Art. 81. Everything stipulated in the settlements or contracts

referred to in the preceding articles in consideration of a
future marriage, including donations between the
prospective spouses made therein, shall be rendered void if
the marriage does not take place.
However, stipulations that do not depend upon the
celebration of the marriage shall be valid.
DPN can only be made BEFORE the marriage.

Donations propter nuptias may be made in the:
1.
2.
Marriage settlement;
Separate writing
84

Marriage settlement
If the marriage does not take
place, the donation is
automatically revoked. Also,
the donation propter nuptias
is automatically revoked if
the marriage is celebrated
but is declared VOID.
Separate writing
If the marriage does not take
place, the donation is not
automatically revoked.
Q: What are the requisites for a valid donation propter

nuptias?
1.
2.
Q: May encumbered properties be subject of DPN under the

FC?
A: Yes, in case the property donated is foreclosed.
1.
A:
1.
2.
3.
Q: To be valid, in what form should a donation propter

nuptias be?
A: The form will depend on what is being given:
1.
2.
2.
Donation is made in consideration of marriage;

Before the marriage;
In favor of 1 or both of the future spouses.
Even third parties may make a donation propter nuptias. A

future spouse may be a donor, but it is not necessary that the
donor be a future spouse.
If what is being donated is present property, as to

form, the law on donations in general shall govern
(Art. 748 and 749 of the NCC).
If what is being given is future property, as to form,
the provisions on Testamentary Succession and the
formalities of wills shall govern. It must be contained
in a will.
In case of excessthe owner of the property foreclosed is the

DE and no longer the DR. Thus, the DE should receive the
excess.
Q: Are DPN revocable?
A: It depends:
1.
A:
2.
2.
Present propertyexisting property; may be real or

personal;
Future propertyproperties which do not exist yet.
Properties to be acquired.
Q: Is a wedding gift a donation propter nuptias?
If the proceeds realized from the sale is less than the

amount secured, the DE shall not be liable for the
deficiency;
If the proceeds realized is more than the amount
secured by the property, the excess shall belong to
the DE.
RATIO: In case of deficiency, the donor was the one who

benefited from the foreclosure and he was the owner at the
time the property was encumbered. Thus, the donor shall
bear the deficiency.
Q: What may be donated?
1.
Absolute community regimeno limit as to the

amount;
Any other regimecannot be over 1/5 of the
present property.
Present property- Any of the grounds/cases under

Article 86 should be present.
NOTE: GR: Mere presence of any or all of the 6
grounds for the revocation of the will not result in
the automatic revocation of the DPN.
XPN: Par. 1 of Art. 86, if the DPN is contained in the
marriage settlement.
Future property- Can be revoked at any time before
the death of the DR, because wills are revocable at
any time (ambulatory in nature), and the revocation
of the will shall carry with it the revocation of the
donation. No grounds are specified.
Q: What are the circumstances which will result in the

automatic revocation of the DPN?
A: Determine the time that is given:

A:
1.
2.
3.
If before the marriage celebration-it is DPN;

If after the marriage is celebrated, it is not a DPN;
If while the marriage is being celebrated, such
circumstance does not amount to before. Thus, it
is not a DPN.
Q: How much may be donated?
(1) If the marriage is not celebrated or judicially declared

void ab initio except donations made in the marriage
settlements, which shall be governed by Article 81
This is the only circumstance which results in the automatic
revocation of the DPN (Contrary to Sempio-Dy-p.120).
A:
85

Under Art. 81, everything stipulated in the marriage

settlement including donations between the future spouses
shall be rendered void if the marriage does not take place.
XPNs: Stipulations that do not depend upon the celebratiob
of the marriage shall be valid.
Revocation
Art. 87. Every donation or grant of gratuitous advantage,

direct or indirect, between the spouses during the marriage
shall be void, except moderate gifts which the spouses may
give each other on the occasion of any family rejoicing. The
prohibition shall also apply to persons living together as
husband and wife without a valid marriage.
GR: To revoke a DPN, an action to Revoke is necessary.
This provision refers to donations between the spouses

during the marriage. This situation is distinct from the
provision on donations made by one person to a third person.
XPN: Par. 1 of Art. 81.
Q: What are the prohibited donations under the FC?
(2) When the marriage takes place without the consent of

the parents or guardian as required by law;
Where consent is not given when such consent is required by
law, the donation is REVOCABLE.
The law contemplates of VOIDABLE marriage. Annulment is
not necessary to revoke the DPN, because the mere absence
of consent gives rise to the ground already.
A: Those donations made during the marriage. Refer to Art.

87 (donations between the spouses), Art. 98 (donations of
any Community Property be either spouse to a third person),
and Art. 125 (donations of any conjugal partnership property
made by either spouse to a third person).
Art. 98. Neither spouse may donate any community
property without the consent of the other.
(3) When the marriage is annulled, and the donee acted in

bad faith;
However, either spouse may, without the consent of the

other, make moderate donations from the community
property for charity or on occasions of family rejoicing or
family distress.
These refer to VOIDABLE marriage on grounds other than lack

of parental consent; as regards lack of parental consent, it is
already been stated that Annulment of Marriage is no longer
necessary.
Art. 125. Neither spouse may donate any conjugal

partnership property without the consent of the other.
Under Par. 3, if it was the donor who acted in bad faith, he

cannot revoke. This refers to the circumstance where it was
the DE who acted in BF.
Under Art.86, an action to revoke is necessary, contrary to
Art. 43 (3) and Art. 50 (referring to marriages which are
declared void ab initio or annulled by final judgment). The
only XPN is when the DPN is contained in the Marriage
settlement in par. 1 of Art. 86.

other, make moderate donations from the conjugal
partnership property for charity or on occasions of family
rejoicing or family distress.
GR: Spouses cannot donate to each other during the life of
the marriage.
1.
Justice Sempio-Dy states that when the marriage is declared

void ab initio or annulled, and the DE acted in BF, the DR
being the other spouse, the donation is revoked by operation
of law. As such, under these circumstances, there is no need
for an action for revocation.
2.
3.
Q: State the difference between par. 2 and par. 3.

A:
Par. 2
Refers to a voidable marriage
because of the absence of
the consent required by law.
No annulment is required.
Donations by one spouse to other which does not

fall under the exception (moderate gifts which the
spouses may give to each other on the occasion of
any family rejoicing);
Indirect donations- gratuitous advantage given by
one spouse to the other spouse;
Donations between persons living together as
husband and wife without the benefit of a valid
marriage, subject to the same exception as in
number 1.
Q: When will a donation be considered moderate?

Par. 3
Refers to any of the ground
for Annulment, but there
must be an Annulment of the
Marriage.
A:
Harding v. Commercial Assurance Corp.
86

It will depend on the financial capacity, means and status of

the DR. The donation by the husband of a car to the wife was
considered as moderate in this case.
If the donation is not moderate, the persons who can assail
its validity are only those persons who may have an interest
in the property donated, such as creditors or heirs.
On the occasion of family rejoicing
Q: Who will determine the occasion? When will the
occasion be said to be of a family rejoicing?
A: This is left by the law to the parties themselves. the parties
determine what occasion is worth remembering that they
may be considered as family rejoicing. E.g.: Commemoration
st
of 1 kiss.
A:
GR: At the precise moment of the celebration of the
marriage. Any agreement to the contrary shall not be valid.
XPN: If the future spouses chose a combination of the
different economic systems, in which case, their agreement
as embodied in the marriage settlement shall take effect om
accordance with what they have agreed upon.
Q: In how many ways may the ACP be had?
A:
1.
2.
3.
Q: What are the different economic systems from which

future spouses may choose to govern their marriage?
When no economic system/regime is adopted;

When the same is void or invalid; and
When it is agreed upon/chosen by the future
spouses.
NOTE: The ACP is not the only economic system that may be
had in 3 ways. The system of C/ASP can also be had in 3 ways:
A:
1.
2.
3.
4.
Absolute Community of Property (ACP);

Conjugal Partnership of Gains (CPG);
Complete/ Absolute Separation of Property (C/ASP);
and
A combination of any or all of the 3, or any other
system, such as the Dotal/Dowry System or
Complete Merger System.
Q: Is the dowry system a valid property regime?
1.
2.
3.
When chosen by the future spouses and adopted in

the marriage settlement;
When the chosen economic system is dissolved,
resulting in separation of property;
If a prior marriage has been dissolved by the death
of a spouse, and the surviving spouse contracts a
subsequent marriage without liquidating the former
ACP, the property relations of the subsequent
marriage shall be governed by the mandatory
system of separation of property.
A: Although the FC is silent on this, there is no provision that

prohibits the adoption of this system and what is not
prohibited by law may be adopted.
The CPG can be had only by adopting it in a marriage

settlement.
Q: When must the future spouses choose the economic

system to govern the property relations during their
marriage?
To adopt the CSP , the CPG and any other economic system
other than the ACP, it has to be adopted in the marriage
settlement.
A: Future spouses must choose the economic system before

and not after the celebration of their marriage.
May be had is different from adopting, because the latter is

only possible through a marriage settlement.
Q: How will the future spouses choose the property regime?
Q: May the spouses, during the marriage change the

economic system agreed upon before the marriage?
A:
1.
2.
Expressly-by adopting or providing in the marriage

settlement. This applies to any economic
system/regime.
Impliedly- by implication when the spouses do not
make an express choice or the system adopted is
void or invalid. In this case, the law presumes that
they choose the ACP.
Q: When will their choice take effect?
A: Yes, because during the marriage they may choose to

dissolve the chosen economic system.
ABSOLUTE COMMUNITY OF PROPERTY (ACP)

ACP is not co-ownership as provided by the law on Property.
Q: State the difference between AC and co-ownership.
87

Absolute Community
All properties belonging to
each spouse at the time of
the celebration of the
marriage shall be owned by
both, and these become the
community of property. As a
rule, a spouse cannot dispose
of any of the properties
he/she has brought into the
marriage
without
the
consent of the other spouse.
To give effect to the AC, the
spouses do not have to
execute any instrument and
no judicial approval is
necessary.
Co-ownership
The interest of the co-owner
is only to the extent of what
he has contributed to the coownership and he may
dispose of what he has
contributed.
Art. 88. The absolute community of property between

spouses shall commence at the precise moment that the
marriage is celebrated. Any stipulation, express or implied,
for the commencement of the community regime at any
other time shall be void.
This provision applies only if the parties adopted only 1 kind
of property relation to govern their marriage, more
particularly the ACP.
Q: Under the AC, how much is the interest of each spouse in
the CP?
Q: When will their interests become actual?

A: Upon the termination of the ACP. However, the waiver
must be executed in a public instrument and duly recorded.
Art. 90. The provisions on co-ownership shall apply to the
absolute community of property between the spouses in all
matters not provided for in this Chapter.
Art. 91. Unless otherwise provided in this Chapter or in the
marriage settlements, the community property shall consist
of all the property owned by the spouses at the time of the
celebration of the marriage or acquired thereafter.
Art. 92. The following shall be excluded from the community
property:
(1) Property acquired during the marriage by gratuitous title
by either spouse, and the fruits as well as the income
thereof, if any, unless it is expressly provided by the donor,
testator or grantor that they shall form part of the
community property;
(2) Property, for personal and exclusive use of either spouse.
However, jewelry shall form part of the community
property;
(3) Property acquired before the marriage by either spouse
who has legitimate descendants [under CC - children only,
but JBL loved his grandchildren] by a former marriage, and
the fruits as well as the income, if any, of such property.
The ACP does not cover all properties. The exclusions are:
A: Each spouse has an interest in the community property,

but whatever interest they may have is only inchoate, which
becomes actual at the dissolution of the community property.
1.
Art. 89. No waiver of rights, interests, shares and effects of

the absolute community of property during the marriage
can be made except in case of judicial separation of
property.
Q: What are the 2 ways of acquiring properties by

gratuitous title?
When the waiver takes place upon a judicial separation of

property, or after the marriage has been dissolved or
annulled, the same shall appear in a public instrument and
shall be recorded as provided in Article 77.
The interest of the spouse cannot be waived, renounced or
disposed of during the existence of the marriage, as long as
the marriage exists.
This rule is true even if one of the spouses did not bring
anything into the marriage but himself.
Q: When can the spouses waive their share in the
community property?
Donation and giftsapplies only to donations made

during the marriage. Fruits and income are also
excluded. They become CP if the donor or grantor
expressly provides that such property should
become of the CP.
A:
a.
b.
2.
Donation
Succession
Properties for the exclusive and personal use of each

spousethese properties refer to personal
properties like clothing;
Q: What if the wife barrows the brief of the
Husband and use it. Can we say that once a
property is used by both spouses it is no longer for
the exclusive use of one spouse, and will no longer
fall under par. 2?
A: Once their interests become ACTUAL.
88

A: The fact that the spouse allows the other to use a

personal property does not exclude it from the
exclusions in par. 2 of Art. 92. What is determinative
is intended use, not actual use.
NOTE: Jewelries are excluded from the exclusions.
RATIO: They are valuable and considered an asset of
the CP. In other words, they are excluded because of
their value.
Q: Suppose the jewelries are fake?
A: The reason given by the Code Committee for
excluding jewelries from the exclusions is because of
their value. According to Dean Aligada, if the value is
the reason for the exception, this means that fakes
are not excluded or exempted from the exclusions,
and that only originals are excluded or exempted
from the exclusions.
3.
Properties acquired before the marriage by either

spouse who has legitimate descendants. Fruits and
income of such property are also excluded.
These are excluded because they are considered as
reserved properties for the benefit of the legitimate
descendants of either spouse.
This exclusion also existed under the NCC. It was
called Reservable Properties for the benefit of
legitimate children.
Under the FC, it is expanded because it provides not
only for legitimate children, but moreso for
legitimate descendants. So, grandchildren are also
included.
Art. 93. Property acquired during the marriage is presumed

to belong to the community, unless it is proved that it is one
of those excluded therefrom.
This creates only a rebuttable presumption subject to proof
top the contrary. If it is shown that the property falls under
the exception, the presumption does not apply.
De Leon v. RFC
In order that the presumption may apply, it has to be shown
or established that the properties were acquired during the
marriage.
Jocson v. CA
The property in this case is claimed to be conjugal for the
reason that it was acquired during the marriage.
This involves a piece of land brought under the coverage of

the Torrens system. According to the claimant, the property
was acquitted during the marriage and thus, conjugal.
The SC held that the date appearing in the TCT covering the
property is not proof or indication of the date of acquisition
of said property and that the property was acquired during
the marriage. It is only proof of the time when the title of the
owner over the property has been registered, or that it was
only registered during the marriage. It is possible that the
property belonged to the wife even before the issuance of
the TCT.
Before the presumption may arise, it must be shown that the
property was acquired during the marriage. It must be
established when the property was acquired.
Art. 94. The absolute community of property shall be liable
for:
(1) The support of the spouses, their common children, and
legitimate children of either spouse; however, the support
of illegitimate children shall be governed by the provisions
of this Code on Support;
(2) All debts and obligations contracted during the marriage
by the designated administrator- spouse for the benefit of
the community, or by both spouses, or by one spouse 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 been benefited;
(4) All taxes, liens, charges and expenses, including major or
minor repairs, upon the community property;
(5) All taxes and expenses for mere preservation made
during marriage upon the separate property of either
spouse used by the family;
(6) Expenses to enable either spouse to commence or
complete a professional or vocational course, 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 selfimprovement;
(9) Antenuptial debts of either spouse other than those
falling under paragraph (7) of this Article, the support of
illegitimate children of either spouse, and liabilities incurred
by either spouse by reason of a crime or a quasi-delict, in
case of absence or insufficiency of the exclusive property of
the debtor-spouse, the payment of which shall be
considered as advances to be deducted from the share of
the debtor-spouse upon liquidation of the community; and
(10) Expenses of litigation between the spouses unless the
suit is found to be groundless.
89

If the community property is insufficient to cover the

foregoing liabilities, except those falling under paragraph
(9), the spouses shall be solidarily liable for the unpaid
balance with their separate properties.
Q: What are the 4 conditions for expenses to be chargeable

against the ACP?
A:
Q: What are the expenses that the law allows to be paid out
of the community property?
a.
b.
A:
c.
d.
1.
The support of the spouses and legitimate children

6.
The legitimate children need not be common children. As to

illegitimate children, the exclusive property of the illegitimate
parent should answer for their support.
2.
All debts and obligations contracted during the

marriage by the designated administrator- spouse for
the benefit of the community, or by both spouses, or by
one spouse with the consent of the other;
a.
b.
c.
3.
Obligation must exist during the marriage;

Object of the expenses should be an exclusive
property of 1 of the spouses;
Solely for the preservation of the property; and
Must be used by the family.
When the obligation is contracted by only one

spouse;
i.
Such spouse should be the designated
administrator-spouse;
ii.
The obligation shall be for the benefit of the
community.
When it is contracted by both spouses, the purpose
is no longer material;
When the obligation is contracted by only 1 spouse,
but with the consent of the other, this is equivalent
now to an obligation contracted by both spouses. So,
the purpose is also no longer material.
Expenses to enable either spouse to commence or

complete a professional or vocational course, or other
activity for self-improvement;
Q: Is it only the tuition fee for the course to be pursued that

is chargeable against the CP? What are the expenses that
can be charged against the CP?
A: No, all incidental expenses necessary to commence or
complete the course are chargeable against the CP.
NOTE: Under the FC, these expenses may either be for
commencing or completing a professional or vocational
course.
Q: Suppose the spouses decide to shift to another course,
will the charge of the next course be also against the CP?
What if the spouse just keeps on shifting courses, will the CP
be charged against the expenses of each and every course
commenced?
A: The expenses shall be chargeable against the CP when the
spouse concerned pursues his course diligently. Actually, the
law does not provide expressly for diligent pursuit, but this
must be understood as a requirement of this provision.
Obligations contracted by one spouse

This provision includes shifting from one course to another.
GR: The obligation shall be paid by the spouse who

contracted the obligation.
XPN: If the obligation redounded to the benefit of the family,
even after the other spouse objects thereto, the obligation
shall be borne by the family. But the excess shall be a
personal obligation.
4.
The object of the taxes, liens, charges and expenses is

the CP;
5.
The expenses referred to by law are only taxes and

expenses for mere preservation to be chargeable
against the ACP.
Q: But what if the spouse diligently pursues the course he

has chosen, but because he keeps on failing against his will,
it has already taken her 10 years and he still hasnt reached
th
4 year?
A: It does not mean that as long as the spouse pursues his
course diligently he can charge all the expenses against the
CP. If it is found out that he is unfit to pursue the course, the
expenses incurred shall not be charged against the CP. The
assets of the CP should not be depleted or wasted uselessly.
7.
Ante-nuptial debts of either spouse insofar as they have

Q: What is it that shall be preserved?
GR: These are the personal obligations of the debtor spouse.
A: A property that belongs exclusively to 1 of the spouses.
XPN: If they have redounded to the benefit of the family,

they are chargeable against the CP.
90

Under Art. 94, the expenses and obligations mentioned by

law can be classified into 2 kinds, namely:
a.
b.
Obligations for the benefit of the family and

therefore chargeable against the CP;
Obligations which are personal to the DR-spouse and
therefor not chargeable against the CP. The exclusive
properties of the DR-spouse shall answer for this
type of obligations.
XPN: Antenuptial debts of either spouse other than
those falling under paragraph (7) of this Article, the
support of illegitimate children of either spouse, and
liabilities incurred by either spouse by reason of a
crime or a quasi-delict, in case of absence or
insufficiency of the exclusive property of the debtorspouse, the payment of which shall be considered as
advances to be deducted from the share of the
debtor-spouse upon liquidation of the community.
8.
9.
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
If the debtor-spouse doesnt have any exclusive
property, or it is insufficient to cover his personal
obligations, they can be charged against the CP. But
once paid, it shall be considered as an advance on the
share of the DR-spouse in the CP upon liquidation.
A: The law sets a different rule under the CPG. Accordingly,

when a debt or obligation is personal to the debtor-spouse,
the same rule in ACP shall apply, in that the exclusive
properties of the DR-spouse shall answer for the same.
Q: What is the difference?
A: If the DR-spouse has no exclusive property, or if it is
insufficient, the CPG shall answer for the same, provided the
obligations of the conjugal partnership property are covered.
Note that the law does not say that it should first be paid. All
that it says is that it should be covered, meaning that the
conjugal partnership properties should be sufficient to cover
all its debts and obligations.
So in CPG, the 3 obligations cannot be paid out of the
conjugal partnership property, except if the spouse liable
does not have sufficient property or no property, in which
case it will be paid by the conjugal partnership; provided all
the liabilities of the conjugal partnership have already been
recovered. But at the time of the stipulation of the
partnership, such spouse shall be charged for what has been
paid.
10. Expenses of litigation between the spouses unless
the suit is found to be groundless.
Art. 95. Whatever may be lost during the marriage in any
game of chance, betting, sweepstakes, or any
other kind of gambling, whether permitted or prohibited by
law, shall be borne by the loser and shall not be
charged to the community but any winnings therefrom shall
form part of the community property.
Requisites:
a.
b.
The DR-spouse has no exclusive property of his own;

or
His/her exclusive properties are insufficient to cover
his personal debts and obligations.
Q: What are the 3 obligations which are personal but

allowed to be paid from the CP?
A:
a.
b.
c.
Ante-nuptial debts of either spouse other than those

which have redounded to the benefit of the famiy;
Support of illegitimate spouse of either spouse; and
Obligations arising from crimes or quasi-delicts.
Under par.9, although these 3 obligations are personal, if the

spouse has no separate property to cover them, these
obligations will be paid by the CP.
Q: Is the same rule in ACP as regards personal obligations of
a spouse applicable in CPG?
Art. 96. The administration and enjoyment of the

community property shall belong to both spouses jointly. In
case of disagreement, the husband's decision shall prevail,
subject to recourse to the court by the wife for proper
remedy, which must be availed of within five years from the
date of the contract implementing such decision.
In the event that one spouse is incapacitated or otherwise
unable to participate in the administration of the common
properties, the other spouse may assume sole powers of
administration. These powers do not include the powers of
disposition or encumbrance which must have the authority
of the court or the written consent of the other spouse. In
the absence of such authority or consent, the disposition or
encumbrance shall be void. However, the transaction shall
be construed as a continuing offer on the part of the
consenting spouse and the third person, and may be
perfected as a binding contract upon the acceptance by the
other spouse or authorization by the court before the offer
is withdrawn by either or both offerors.
GR: Both spouses exercise joint powers of administration.
91

XPN: Incapacity of either spouse, or when one spouse is

unable to participate in the management or administration of
the property, the capacitated spouse may assume sole
powers of administration. This means that judicial
administration is necessary. Assumption is automatic.
The SC ruled that a contract of lease is an act of

encumbrance. It can be considered as an act of qualified
alienation because during the period of lease, in effect, the
lessor cannot use the property nor dispose of it. A lien is
created over the property in favor of the lessee.
As regards encumbrance or dispositionthere is a separate

rule because it is beyond the powers of administration.
Written consent or judicial authorization is necessary.
Written consent comes first, and the judicial authorization
comes after it. It is only when the written consent cannot be
obtained that judicial authorization becomes necessary.
An act of leasing is an act of encumbrance. Thus, there must

be a written consent from the wife or there must be judicial
authorization.
Q: Suppose the period is less than 1 year?
A: The ruling is silent on this point.
Without any written consent or judicial authorization, the

disposition or encumbrance becomes void. But the contract
shall be considered a continuing offer. This applies to both
real and personal properties.
Q: What is encumbrance?
As to encumbrance or disposition, the wife or the husband

need not go to court to compel the other spouse to give his
or her consent to the transaction, because the court already
gives the former spouse a remedy i.e. to obtain judicial
authorization.
A: A burden is imposed on the property. a lien is created on

the property.
Q: Regarding encumbrance or diposition of community

property, when should written consent be given?
Q: What is disposition?
A:
A: An act whereby a person parts with ownership of the

property. it is not necessarily a sale.
Under the ACP, it is still possible for the spouses to have
exclusive property regardless of Art. 91, because of the XPNs
in Art. 91 wherein ownership is retained by either of the
spouses.
Q: Can a spouse donate CP (referring to donation of CP, not
to the other spouse but to a third person under Art. 98?
A: The answer would be yes provided the consent of the
other spouse is obtained. But, Art. 98 should be read with Art.
86 because it is actually an act of disposition. So, written
consent is necessary even if it is not provided for under Art.
98.
1.
If the consent of the spouse is given before the

transaction, it will validate the act/sale of the other
spouse.
2.
If the consent is given after the transaction, under

the law, if consent was not given, the transaction is
VOID. Void transactions are non-existent and thus
cannot be ratified.
So, written consent should be given BEFORE the transaction.

The same rule in Art. 96 applies in case of CPG.
Art. 97. Either spouse may dispose by will of his or her
interest in the community property.
This does not apply to disposition inter vivos. It applies to
dispositions mortis causa.
Roxas v. CA
The SC interpreted the term encumbrance. The case was
decided under the CC involving lease. But the doctrine is
applicable to the FC.
In this case, the husband leased a community property
without the consent of the wife. The issue was WON the
lease was considered an encumbrance requiring the consent
the wife (not written). According to the wife, her consent was
necessary while according to the husband, the wifes consent
was not necessary because leasing is not an act of
encumbrance.
Q: What is that the law allows the spouses to dispose of by

will?
A: Only the ideal share of each spouse, not specific property.
Q: If what the spouse disposes of is not the ideal share but a
specific property, what is the effect?
A:
GR: Void.
XPN: If after liquidation, the property disposed of was
adjudicated to the spouse concerned.
92

Art. 98. Neither spouse may donate any community

property without the consent of the other.
other, make moderate donations from the community
property for charity or on occasions of family rejoicing or
family distress.
under a void marriage. Here, their property relations are

governed by the Rules on Co-ownership.
Under the CC: A void marriage can never rise to conjugal
property nor absolute community of property. This is the
reason why it does not include declaration of absolute nullity
as a cause for termination of the conjugal partnership.
NOTE: What is prohibited is unilateral donation.
But under the FC, declaration of absolute nullity was included

as one of the grounds, implying that there can be a
community of property even if the marriage is void.
Under Art. 87, the donation is between spouses or to a

common law spouse. Under Art. 98, the donation is made to
rd
a 3 person.
Opinion of Justice Puno:
Since donation is an act of disposition, the consent of the

other spouse to the donation should be a written consent.
The exception to the rule that neither spouse may donate any
property without the consent of the other is when moderate
donations are made for charity or on occasions of family
Art. 99. The absolute community terminates:
(1) Upon the death of either spouse;
(2) When there is a decree of legal separation;
(3) When the marriage is annulled or declared void; or
(4) In case of judicial separation of property during the
marriage under Articles 134 to 138.
Q: What are the instances that terminate AC?
A:
1.
2.
3.
4.
Upon the death of either spouse;

When there is a decree of legal separation;
When the marriage is annulled or declared void; or
In case of judicial separation of property during the
marriage.
NOTE: The only instances when both the marriage and the
community property are terminated:
1.
2.
Death of either spouse; and

Annulment of marriage.
Under Art. 99, the law provides for declaration of nullity of

the marriage as a cause for the termination of the community
property. Here, the law is specific.
Q: Is there CP if the marriage is void?
A: There is no CP if the marriage is void. The reason is the
provisions of Art. 147and Art. 148. They provide for what will
govern the property relations of persons living exclusively
with each other as husband and wife but are not married, or
There can be community property even if the marriage is

void, if the cause/ground is psychological incapacity under
Art. 36.
Opinion of Dean Aligada
He cannot accept that there can be community property if
the marriage is void. Justice Dy, said that Art. 147 and 148
should be noted, implying that the provision of Art. 99
regarding nullity of marriage is WRONG. There is no
jurisprudence reading thus matter.
Art. 147 and 148 do not even regard the persons concerned
as spouses because in the first place, there is no marriage to
speak of.
Art. 147 to apply, there must be exclusivity of relationship,
meaning that there is no sharing with other persons. The
persons should live with each other only. The Article states
that the persons live exclusively with each other as husband
and wife.
Art. 147. When a man and a woman who are capacitated to
marry each other, live exclusively with each other as
husband and wife without the benefit of marriage or under
a void marriage, their wages and salaries shall be owned by
them in equal shares and the property acquired by both of
them through their work or industry shall be governed by
the rules on co-ownership.
In the absence of proof to the contrary, properties acquired
while they lived together shall be presumed to have been
obtained by their joint effortsm work or industry, and shall
be owned by them in equal shares. For purposes of this
Article, a party who did not participate in the acquisition by
the other party of any property shall be deemed to have
contributed jointly in the acquisition thereof if the former's
efforts consisted in the care and maintenance of the family
and of the household.
Neither party can encumber or dispose by acts inter vivoc of
his or her share in the property acquired during cohabitation
93

and owned in common, without the consent of the other,

until after the termination of their cohabitation.
When only one of the parties to a void marriage is in good
faith, the share of the party in bad faith in the co-ownership
shall be forfeited in favor of their common children. 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.
In the absence of descendants, such share shall belong to
the innocent party. In all cases, the forfeiture shall take
place upon termination of the cohabitation.
Art. 148. In cases of cohabitation not falling under the
preceding Article, only the properties acquired by both of
the parties through their actual joint contribution of money,
property, or industry shall be owned by them in common in
proportion to their respective contributions. In the absence
of proof to the contrary, their contributions and
corresponding shares are presumed to be equal. The same
rule and presumption shall apply to joint deposits of money
and evidences of credit.
If one of the parties is validly married to another, his or her
share in the co-ownership shall accrue to the absolute
community or conjugal partnership existing in such valid
marriage. If the party who acted in bad faith is not validly
married to another, his or her share shall be forfeited in the
manner provided in the last paragraph of the preceding
Article.
The foregoing rules on forfeiture shall likewise apply even if
both parties are in bad faith.
A: The separation between husband and wife without judicial

approval. Even if the separation was factual, it was not
blessed with judicial approval.
Separation de facto has no effect on the community property.
The community property continues to exist. There is no
exception. However, the spouse who leaves or refuses to live
in the conjugal dwelling without just cause, shall not have the
right to be supported.
The mere act of leaving the conjugal dwelling or refusing to
live therein will not deprive such spouse of the right to
support. It should be without just cause. Refer to the case of
Goitia v. Campos Rueda.
Goitia v. Campos Rueda
Here, the husband demanded that his wife perform oral sex.
The wife did not accede to the request of the husband, but
instead she left the conjugal dwelling and brought an action
for support against the husband.
The husband contended that he did not drive his wife out of
the conjugal dwelling. So, if she wants support, she should
return to the conjugal dwelling.
The SC ruled that because of the husbands barbaric
demands, he practically drove his wife out of the conjugal
dwelling. As such, the leaving of the wife was with just cause,
and she is entitled to support even if she is not leaving in the
conjugal dwelling.
The right to sexual intercourse is not absolute, it should be
performed moderately. However, the SC did not define what
is moderate.
SEPARATION DE FACTO
Art. 100. The separation in fact between husband and wife
shall not affect the regime of absolute community except
that:
(1) The spouse who leaves the conjugal home or refuses to
live therein, without just cause, shall not have the right to
be supported;
(2) When the consent of one spouse to any transaction of
the other is required by law, judicial authorization shall be
obtained in a summary proceeding;
(3) In the absence of sufficient community property, the
separate property of both spouses shall be solidarily liable
for the support of the family. The spouse present shall, upon
proper petition in a summary proceeding, be given judicial
authority to administer or encumber any specific separate
property of the other spouse and use the fruits or proceeds
thereof to satisfy the latter's share.
Q: What is separation de facto?
Judicial authorization under par.2 takes place of the consent

of the other spouse.
Under par.3, what the court may only authorize are acts of
encumbrance and administration, but NEVER acts of
disposition.
Whatever may be realized as the proceeds of the
encumbrance shall answer for the share of the spouse who
leaves without just cause.
Q: What are the effects of separation de facto upon the
community property (same as the CPG)?
A:
1.
The community property is not affected. However,

the spouse who leaves the conjugal dwelling or
refuses to live therein without just cause shall have
no right to be supported.
94

Arroryo v. Arroyo
The spouse who leaves the conjugal dwelling without just
cause cannot be controlled to live therein. However, such
spouse shall be held liable to sanctions provided by law, such
as denial of the right of support.
Dadivas v. Villanueva
When a spouse maintains illicit relations with other women
and treats his wife roughly, the latter has the right to leave
the conjugal home and is still entitled to be supported.
2.
3.
If the consent of the one who leaves is necessary,

and it cannot be denied, the innocent spouse may
ask the court for authorization, in lieu of the consent
of the other spouse. This applies in cases of
encumbrance or disposition of property;
If the community property is insufficient for support
of the family, or if there is no community property to
answer for the expenses, the spouses shall be
solidarily liable for the support of the family. If the
absent spouse has properties, the spouse present
can ask the court for the administration of such
properties, and the fruits or proceeds thereof shall
be used to satisfy the absent spouses share.
The present spouse cannot dispose the separate
properties of the absent spouse, he can only
encumber the same with the authority of the court.
Art. 101. If a spouse without just cause abandons the other

or fails to comply with his or her obligations to the family,
the aggrieved spouse may petition the court for
receivership, for judicial separation of property or for
authority to be the sole administrator of the absolute
community, subject to such precautionary conditions as the
court may impose.
The obligations to the family mentioned in the preceding
paragraph refer to marital, parental or property relations.
Q: What are the 2 acts covered by this article?
A:
1.
2.
Refers to abandonment without just cause; and

Failure to comply with the obligations to the family.
Obligations to the family refer to marital, parental or

property relations.
Q: What are the remedies?
A:
1.
Receivership;
2.
3.
Judicial separation of property; and

Authority to be the sole administrator of the
community or conjugal property.
Q: When does the law presume abandonment?

A: The law does not presume abandonment. What is
presumed in Art. 101 is only lack of intention to return
A: What is abandonment?
A: It is the act of leaving the conjugal dwelling without
intention to return.
Q: How long should the absence be to constitute
abandonment?
A: Absence of 3 months without intention of returning.
Q: When does the law presume lack of intention to return?
A: It is within a period of 3 months the absent spouse fails to
give information as to his or her whereabouts.
As to failure to comply with the obligations to the family,
there is no provision of law as to the length of time. it is a
question of fact, that is, it is taken on a case to case basis.
Art. 102. Upon dissolution of the absolute community
regime, the following procedure shall apply:
(1) An inventory shall be prepared, listing separately all the
properties of the absolute community and the exclusive
properties of each spouse.
(2) The debts and obligations of the absolute community
shall be paid out of its assets. In case of insufficiency of said
assets, the spouses shall be solidarily liable for the unpaid
balance with their separate properties in accordance with
the provisions of the second paragraph of Article 94.
(3) Whatever remains of the exclusive properties of the
spouses shall thereafter be delivered to each of them.
(4) The net remainder of the properties of the absolute
community shall constitute its net assets, which shall be
divided equally between husband and wife, unless a
different proportion or division was agreed upon in the
marriage settlements, or unless there has been a voluntary
waiver of such share as provided in this Code. For purposes
of computing the net profits subject to forfeiture in
accordance with Articles 43, No. (2) and 63, No. (2), the said
profits shall be the increase in value between the market
value of the community property at the time of the
celebration of the marriage and the market value at the
time of its dissolution.
(5) The presumptive legitimes of the common children shall
be delivered upon partition, in accordance with Article 51.
6) Unless otherwise agreed upon by the parties, in the
partition of the properties, the conjugal dwelling and the lot
95

on which it is situated shall be adjudicated to the spouse

with whom the majority of the common children choose to
remain. Children below the age of seven years are deemed
to have chosen the mother, unless the court has decided
otherwise. In case there is no such majority, the court shall
decide, taking into consideration the best interests of said
children.
After the community property is dissolved, liquidation will
follow. This Article refers to liquidation due to any cause
whatsoever except death because liquidation due to death is
covered by Art. 103.
Q: If division is unequal, when does the law allow it?

A: Only when it so provided or agreed upon by the spouses in
the marriage settlement.
If the spouses did not execute a marriage settlement before
the marriage, there can never be unequal division.
5.
Delivery of the presumptive legitimes of the common

children.
Q: How is community property liquidated?
Presumptive legitimes of the common children must be

delivered.
A: The steps to be followed in liquidating the community

property:
Disinheritance is the only way by which a compulsory heir

may be deprived of his or her legitime.
1.
Q: If the presumptive legitimes have been delivered and

subsequently the heir commits an act which is a ground for
disinheritance, can the heir be compelled to return the
legitime?
Preparation of the inventory;
Q: Why should the exclusive property of the spouses be

included in the inventory?
A: Because of the solidarily liability of the spouses for the
debts of the community, in case of insufficiency of the
community property.
A: The law is silent.

Q: How may the presumptive legitimes be delivered to the
common children?
Q: What is the purpose of the inventory?

A: To ascertain all properties belonging to the community
which is the subject of liquidation.
2.
Payment of all debts of the community, which shall be

paid out of:
a.
b.
3.
4.
Community property;
In case the community property is insufficient,
the spouses shall be solidarily liable with their
exclusive property.
If the community property is sufficient, the exclusive

properties shall be returned to the spouses. If the
community property is insufficient, what remains of the
exclusive properties shall be returned to the spouses;
Whatever remains of the properties of the absolute
community shall constitute it is not assets, to be divided
between the spouses.
Q: How are the net assets divided?

A:
GR: Division is equal.
XPN: Unequal division. Such division may be in any
proportion, as long as there is division.
A: Cash, property, sound securities, or by mutual agreement

of the spouses judicially approved (Art. 51).
Q: Do the spouses have the absolute right to agree as to the
form in which the presumptive legitimes are to be
delivered?
A: Such agreement must be duly approved by the court.
6.
Adjudication of the conjugal dwelling and the lot on

which it is situated.
Q: Do the steps in the liquidation of community property

apply to all cases of termination of AC?
A: Whether the AC is terminated with or without the death of
one spouse, the same procedure is to be followed in the
liquidation of the community property. Even if a petition for
the settlement of the estate is filed, the steps in liquidating
the community property should still be followed.
Liquidation simply means the payment of all debts of the AC
and the distribution of the presumptive legitimes of the
common children.
Art. 103. Upon the termination of the marriage by death,
the community property shall be liquidated in the same
proceeding for the settlement of the estate of the deceased.
96

If no judicial settlement proceeding is instituted, the

surviving spouse shall liquidate the community property
either judicially or extra-judicially within six months from
the death of the deceased spouse. If upon the lapse of the
six months period, no liquidation is made, any disposition
or encumbrance involving the community property of the
terminated marriage shall be void.
Should the surviving spouse contract a subsequent marriage
without compliance with the foregoing requirements, a
mandatory regime of complete separation of property shall
govern the property relations of the subsequent marriage.
Even if no liquidation of the community property was had,,
the law does not prohibit the spouses from entering into a
However in the case of termination of the marriage by death
of one spouse, and the surviving spouse did not liquidate the
community property, the mandatory regime of Complete
Separation of Property shall govern the property relations of
the subsequent marriage.
Liquidation may take place simultaneously with the
proceeding for the settlement of the estate of the deceased
spouse. If no judicial settlement proceeding is instituted, the
surviving spouse must liquidate the community property
either judicially or extra-judicially within 1 year from the
death of the deceases spouse.
If no proceeding for the settlement of the estate of the
deceased spouse is instituted, the liquidation of the
community property may be had even if it is not filed with
the court.
between the different communities in proportion to the

capital and duration of each.
Liquidation of the community properties of 2 or more
marriages contracted by the same person before the
effectivity of the FC shall be simultaneous.
The respective capital, fruits and income of each community
shall be determined upon such proof as may be considered
according to the rules on evidence. 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.
Q: Why does Art. 104 apply only to marriages contracted
before the effectivity of the FC?
A: The problem sought to be avoided will never exist under
the FC, because of Art. 103. Under Art. 103, if the subsequent
marriage is celebrated without liquidating the community
property of the prior marriage terminated by death, the
mandatory regime of complete separation of property will
If ever, the problem would arise only as to marriages
contracted under the CC because it never provided for the
same provisions as to Art. 103.
CONJUGAL PARTNERSHIP OF GAINS

This can be adopted only in one way, that is, by providing this
in the marriage settlement.
The liquidation of the community property need not be

through the filing of an action for liquidation with the court
(Judicially). This is merely an option provided by law. so, if
there is no judicial settlement of estate, the liquidation of the
community property need not be through the filing of an
action with the court.
Q: What rules govern the CPG?
The surviving spouse is not completed to liquidate the

community property of the terminated marriage, but if such
spouse does not liquidate within the 1 year period, he/she
cannot dispose, alienate or encumber the community
property. otherwise, the disposition or encumbrance shall be
void.
Q: If a marriage was contracted on May 1985, what law will

govern the property relations of the parties at present?
Art. 104. Whenever the liquidation of the community

properties of two or more marriages contracted by the
same person before the effectivity of this Code is carried
out simultaneously, the respective capital, fruits and
income of each community shall be determined upon such
proof as may be considered according to the rules of
evidence. In case of doubt as to which community the
existing properties belong, the same shall be divided
A:
1.
2.
The agreement; and

If insufficient, the provisions of the FC.
A: The provisions of the FC on CPG, even if the marriage was

celebrated before the effectivity of the FC.
As regards marriages celebrated before the effectivity of the
FC, there is no change in the system. Nut now, they are under
the provisions of the FC.
Art. 105. In case the future spouses agree in the marriage
settlements that the regime of conjugal partnership of gains
shall govern their property relations during the marriage,
the provisions in this Chapter shall be of supplementary
application.
97

Exclusive Properties of each spouse

The provisions of this Chapter shall also apply to conjugal
partnerships of gains already established between spouses
before the effectivity of this Code, without prejudice to
vested rights already acquired in accordance with the Civil
Code or other laws, as provided in Article 256.
Art. 106. Under the regime of conjugal partnership of gains,
the husband and wife place in a common fund the proceeds,
products, fruits and income from their separate properties
and those acquired by either or both spouses through their
efforts or by chance, and upon dissolution of the marriage
or of the partnership, the net gains or benefits obtained by
either or both spouses shall be divided equally between
them, unless otherwise agreed in the marriage settlements.
Q: Discuss the concept of the conjugal partnership of gains
(CPG).
A: The H and the W put in a common fund the fruits and
income of their separate properties. These fruits shall
constitute the common fund. They also put in common fund
those acquired by either or both of them through their efforts
or by chance during the marriage.
The net of these properties shall be divided between the
spouses.
Art. 107. The rules provided in Articles 88 and 89 shall also
apply to conjugal partnership of gains.
(1) That which is brought to the marriage as his or her own;

(2) That which each acquires during the marriage by
gratuitous title;
It may either be:
a.
b.
Donation
succession
NOTE: The test here is the gratuitous title.

(3) That which is acquired by right of redemption, by barter
or by exchange with property belonging to only one of the
spouses;
The test in the exercise of the right of redemption is who has
the right of redemption, even if conjugal funds were used.
The test in the case of Barter or Exchange is to whom the
property given in exchange or barter does belong.
(4) That which is purchased with exclusive money of the
wife or of the husband.
Art. 110. The spouses retain ownership, possession,
administration and enjoyment of their exclusive properties.
Art. 108. The conjugal partnership shall be governed by the

rules on the contract of partnership in all that is not in
conflict with what is expressly determined in this Chapter or
by the spouses in their marriage settlements.
Either spouse may, during the marriage, transfer the

administration of his or her exclusive property to the other
by means of a public instrument, which shall be recorded in
the registry of property of the place where the property is
located.
Art. 109. The following shall be the exclusive property of

each spouse:
Rights of the spouses over their exclusive properties
(1) That which is brought to the marriage as his or her own;

(2) That which each acquires during the marriage by
gratuitous title;
(3) That which is acquired by right of redemption, by barter
or by exchange with property belonging to only one of the
spouses; and
(4) That which is purchased with exclusive money of the
wife or of the husband.
Exclusive properties of the spouses
Under the CC, the exclusive properties of the wife are called
Paraphernal properties, and the exclusive properties of the
husband were called Capital properties.
Under the FC, all such properties are known as the Exclusive
properties of the spouses.
The spouses retain the ownership, possession, administration

and enjoyment of their exclusive properties.
Either spouse may transfer the power of administration over
his or her exclusive property to the other or even to a third
person.
A spouse may mortgage, encumber, alienate or otherwise
dispose of his or her exclusive property without the consent
of the other spouse, and may appear alone in court to litigate
with regard to the same.
Perez v. Perez.
The wife cannot restrained by injunction from selling her
paraphernal property.
PBTC v. Reg. of Deeds Manila
98

The spouses were separated in fact. The wife has exclusive

properties which she did not want to administer herself, so
she transferred the administration thereof to PBTC. The Reg.
of Deeds refused to transfer without the consent of the
husband.
The SC ruled that the wife can transfer the administration of
the exclusive properties to anybody without the consent of
the husband. The power to transfer the administration of
exclusive property limited to the other spouse. It can be
transferred to a third person.
Art. 113. Property donated or left by will to the spouses,

jointly and with designation of determinate shares, shall
pertain to the donee-spouse as his or her own exclusive
property, and in the absence of designation, share and share
alike, without prejudice to the right of accretion when
proper.
Property donated or left by will to both spouses.
If shares are specified, the interest of each spouse will be in
the proportion specified, and these will pertain to their
exclusive property.
Art. 111. A spouse of age may mortgage, encumber, alienate

or otherwise dispose of his or her exclusive property,
without the consent of the other spouse, and appear alone
in court to litigate with regard to the same.
If shares are not specified, then the interest if each spouse

will be equal.
This provides for this qualification in order that a spouse may

dispose of his or property.
In case the other spouse refuses to accept, is incapacitated to

accept, or predeceases the donation of that part pertaining to
him, there will be an accretion, unless prohibited by the
donor or grantor.
This is no longer in effect because of the modification made

by R.A. 6809.
Under R.A. 6809, a person allowed to marry should always be
of age. No minor can contract marriage because the
minimum age of contracting age is 18.
Q: Can a spouse who owns an exclusive property be
deprived of the right to manage his or her own property?
Art. 114. If the donations are onerous, the amount of the

charges shall be borne by the exclusive property of the
donee-spouse, whenever they have been advanced by the
conjugal partnership of gains.
Art. 115. Retirement, benefits, pensions, pensions,
annuities, gratuities, usufructs and similar benefits shall be
governed by the rules on gratuitous or onerous acquisitions
as may be proper in each case.
A: Yes.
Art. 142. The administration of all classes of exclusive
property of either spouse may be transferred by the court to
the other spouse:
Art. 115. Retirement, benefits, pensions, pensions,

annuities, gratuities, usufructs and similar benefits shall be
governed by the rules on gratuitous or onerous acquisitions
as may be proper in each case.
(1) When one spouse becomes the guardian of the other;

(2) When one spouse is judicially declared an absentee;
(3) When one spouse is sentenced to a penalty which carries
with it civil interdiction; or
(4) When one spouse becomes a fugitive from justice or is in
hiding as an accused in a criminal case.
Art. 116. All property acquired during the marriage, whether

the acquisition appears to have been made, contracted or
registered in the name of one or both spouses, is presumed
to be conjugal unless the contrary is proved.
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.
(1) Those acquired by onerous title during the marriage at

the expense of the common fund, whether the acquisition
be for the partnership, or for only one of the spouses;
(2) Those obtained from the labor, industry, work or
profession of either or both of the spouses;
(3) The fruits, natural, industrial, or civil, due or received
during the marriage from the common property, as well as
the net fruits from the exclusive property of each spouse;
(4) The share of either spouse in the hidden treasure which
the law awards to the finder or owner of the property
where the treasure is found;
(5) Those acquired through occupation such as fishing or
hunting;
But the spouse is not precluded from disposing, alienating or

encumbering his or her exclusive property without the
consent of the administrator spouse.
Art. 112. The alienation of any exclusive property of a
spouse administered by the other automatically terminates
the administration over such property and the proceeds of
the alienation shall be turned over to the owner-spouse.
Art. 117. The following are conjugal partnership properties:
99

(6) Livestock existing upon the dissolution of the partnership

in excess of the number of each kind brought to the
marriage by either spouse; and
(7) Those which are acquired by chance, such as winnings
from gambling or betting.
A: This refers to the spontaneous products of the

soil, the young and other products of animals.
Q: What are Industrial fruits?
A: This refers to those produced by lands through
cultivation and labor.
However, losses therefrom shall be borne exclusively by the

loser-spouse.
Q: What are civil fruits?

CONJUGAL PARTNERSHIP PROPERTY
1.
A: This refers to the rents of buildings or the price of

lease of lands.
Those acquired by onerous title during the marriage at

the expense of the common fund
b.
---
Zulueta v. Pan-Am
Agapito v. Molo
Damages awarded in this case are conjugal because first of
all, they are presumed to be conjugal; secondly, the action
was based on breach of contract to marriage which contract
was perfected with the purchase of the airplane tickets with
conjugal funds.
2.
3.
Those obtained from the labor, industry, work or

profession of either or both of the spouses
Fruits
This refers to all kinds of fruits: natural, civil or industrial.

Q: Is the rule that all fruits shall be considered as conjugal
properties absolute?
A: As to the fruits of the CP properties, all fruits are included,
whether natural, civil or industrial and whether due or
received during the marriage.
As to the fruits of the Exclusive properties of the spouses,
there are two exceptions:
a.
Natural fruits pertaining to livestock, particularly the

young of animals because only the excess of the
livestock existing upon the dissolution of the
partnership shall become conjugal.
e.g. The husband brought to the marriage 2 pigs (1
male and 1 female). During the marriage these pigs
gave birth to 2 piglets. Although the 2 piglets are
natural fruits, if upon the dissolution of the
partnership the 2 original pigs have already died, the
piglets will not be considered CP because there
would be no excess.
Note that the law refers to the excess of the number
of each kind of livestock brought to the marriage.
Q: What are Natural fruits?
In this case, the exclusive property of the wife was producing

fruits. These fruits were claimed by the husband as being
conjugal properties. The husband objected when the wife
tried to dispose of her exclusive property, alleging that the
fruits were conjugal.
The SC held that the fruits become conjugal properties only
after they have become NET, that is, at the time of the
liquidation of the conjugal partnership.
Even if the exclusive property of the wife is income
producing, she may still alienate such property.
4.
Share in the Hidden treasure
What becomes conjugal is the share of the finder or the share

of the owner of the land upon which the treasure is found.
Q: What is hidden treasure?
A: It is any hidden and unknown deposit of money, jewelry,
or other precious objects, the lawful ownership of which does
not appear.
5.
Those acquired through occupation such as fishing or

hunting;
6.
Livestock existing upon the dissolution of the

partnership in excess of the number of each kind
brought to the marriage by either spouse;
As already stated, par. 6 is an exception to par. 3 of Art. 117of

the FC.
7.
Those which are acquired by chance, such as winnings

from gambling or betting
Art. 118. Property bought on installments paid partly from

exclusive funds of either or both spouses and partly from
conjugal funds belongs to the buyer or buyers if full
100

ownership was vested before the marriage. In either case,

any amount advanced by the partnership or by either or
both spouses shall be reimbursed by the owner or owner's
upon liquidation of the partnership.
Art. 119. Whenever an amount or credit payable within a
period of time belongs to one of the spouses, the sums
which may be collected during the marriage in partial
payments or by installments on the principal shall be the
exclusive property of the spouse. However, interests falling
due during the marriage on the principal shall belong to the
conjugal partnership.
Property purchased on installment basis
marriage but the full purchase price has not yet been paid.
The property was subject to a conditional sale on
installments where ownership is reserved by the vendor
only to guarantee payment of the purchase price. Could
such property be constituted as Family Home of the
spouses?
A: This problem relates to the second par.of Art. 156 which
provides that when the property is the subject of a
conditional sale on installments where ownership is reserved
by the vendor only to guarantee the payment of the purchase
price, such property may be constituted as a family home.
Here, the full purchase price has not yet been paid; but
notwithstanding this fact, under the above circumstances, the
property may already be constituted as a Family Home.
Q: When did ownership vest?

A: If ownership immediately vested before the marriage, the
property is excusive property of the buyer spouse. But he/she
must reimburse the conjugal partnership upon its liquidation.
If ownership vested during the marriage, the property
belongs to the conjugal partnership.
Castillo case
If a property is acquitted partly with the use of funds of one
spouse and partly with the use of the conjugal funds,
ownership of the property will be divided between such
spouse and the CP. So it is possible for a property to be partly
exclusive
and
partly
conjugal.
But take note that par. 2 of Art. 156 applies only to properties
acquired during the marriage. The reason for thus is that in
the above problem, where property has been bought on
installment basis under the circumstances provided in Art.
118, it would not yet be known if the property will accrue to
the CP or EP. Since under par. 2 of Art. 156 title has not yet
been transferred by the vendor pending full payment, it is not
yet known if the property will accrue to the CP or to the EP of
the spouse concerned.
Art. 120. The ownership of improvements, whether for
utility or adornment, made on the separate property of the
spouses at the expense of the partnership or through the
acts or efforts of either or both spouses shall pertain to the
conjugal partnership, or to the original owner-spouse,
subject to the following rules:
The case was decided before the FC.

Art. 118 is a new provision. It applies to properties bought on
installment basis partly with the use of the funds of 1 spouse
and partly with conjugal funds.
On the other hand, the Castillo case involved property
acquired during the marriage partly with the use of the funds
of 1 spouse and partly with conjugal funds.
The ruling of the SC in Castillo was correct. Yet, authorities
are now divided as to whether such ruling is still possible
because of Art. 118.
The better opinion is that due to the policy considered in Art.
118, even if during the marriage, part of the purchase price
was paid by the exclusive funds of one spouse and partly by
the CPG, it is no longer possible for the property to be partly
conjugal and partly exclusive. This view is in line with the
policy of unifying ownership of properties between the
spouses.
Q: A property was bought on installment basis was paid
partly by the exclusive funds of one of the spouses before
the marriage and partly by conjugal funds during the
When the cost of the improvement made by the conjugal

partnership and any resulting increase in value are more
than the value of the property at the time of the
improvement, the entire property of one of the spouses
shall belong to the conjugal partnership, subject to
reimbursement of the value of the property of the ownerspouse at the time of the improvement; otherwise, said
property shall be retained in ownership by the ownerspouse, likewise subject to reimbursement of the cost of the
improvement.
In either case, the ownership of the entire property shall be
vested upon the reimbursement, which shall be made at the
time of the liquidation of the conjugal partnership.
This article applies when improvement is introduced on an
exclusive property of one spouse. The land must belong to
either spouse. It does not apply when improvement is made
on a conjugal partnership property or on a property of a third
person.
This article refers to any kind of improvement, whether for
utility or adournment, or whether or not it consists in the
construction of a building.
101

Q: Is it necessary that common fund must be used?

A: If the improvement was introduced through the acts or
efforts of either or both spouses, Art. 120 will apply.
If the cost of the improvement and the plus value is more
than the value of the land, then the whole property will
belong to the conjugal partnership.
If the cost of the improvement and the plus value of the
property is less than the value of the land, then it will belong
to the owner spouse.
A: Because at the time of liquidation the improvement may

no longer be existing in which case, there is no need for
reimbursement.
Paterno v. Padilla
The SC ruled in the case that ownership will pass only upon
reimbursement and liquidation.
Calimlia-Canullas v. Fortun
This modified the Paterno case. It provided that the title to
the property will pass at the time of the completion of the
improvement. The owner of the land becomes the creditor of
the CP with respect to the value of the land.
Caltex v. Felias
In this case, conjugal funds were used for an improvement
introduced upon the property belonging to the mother of the
wife. Such property was later on donated by the mother to
the wife during the marriage.
The SC held that the property belongs to the wife, because
she acquired it by gratuitous title.
This case was decided under the CC but the court did not
apply Art. 158 of the CC because it was not applicable since
the improvement was introduced on a property belonging to
a third person.
Art. 158 is the counterpart of Art. 120 of the FC. Such Art..
followed the law on accession but the reverse. The Caltex
case followed the law on accession in general.
Q: Is the donation mentioned in the Caltex case a prohibited
donation?
A: It is not a prohibited donation. The prohibition on donation
in the FC applies only to the spouses.
Art. 120 provides for a formula in determining the character
of the improvement and the property.
Q: State the 2 conditions for the transfer of ownership
under Art. 120.
A:
The ruling in this case was criticized because nowhere in the

law does it say that if no payment is made, the owner of the
land becomes a creditor. This is a defective ruling.
This is the reason why Art. 120 was drafted, specifically to
remedy the problem exemplified by the above 2 cases which
were decided under the CC.
The correct ruling is that provided in the case of Paterno v.
Padillia.
Q: If only of the property of one of the spouses is
improved by the use of the conjugal funds, but the value of
such improvement and the resulting increase in value of the
land is more than the price of the property at the time of
the improvement, what will be transferred? Will it be the
whole property or only that portion on which the
improvement was made?
A: Before, if a portion only of the property is improved, it is
only that portion with reasonable space for entry and exit
which is transferred.
Now, under the FC, regardless of what portion of the
property was improved, the entire property becomes CP
property. The test in determining the true classification of the
property is if the value of the improvement and the resulting
plus value are more than the value of the land or the
property.
Q: May the spouse who owns the principal property dispose
of the same before reimbursement?
1.
2.
Reimbursement of the cost of the land or the cost of

the improvement;
To be paid upon liquidation.
Q: Why should the reimbursement and transfer of

ownership be made at the time of liquidation? Why should
payment be made upon liquidation?
A: Yes, because until liquidation the owner spouse still owns

the property.
Art. 121. The conjugal partnership shall be liable for:
(1) The support of the spouses, their common children, and
the legitimate children of either spouse; however, the
support of illegitimate children shall be governed by the
provisions of this Code on Support;
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(2) All debts and obligations contracted during the marriage

by the designated administrator- spouse for the benefit of
the conjugal partnership of gains, 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 been benefited;
(4) All taxes, liens, charges and expenses, including major or
minor repairs upon the conjugal partnership 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) Antenuptial debts of either spouse insofar as they have
(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 selfimprovement; and
(9) Expenses of litigation between the spouses unless the
suit is found to be 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.
Charges upon the Conjugal partnership
They are the same as those of the community property,
except par. 5 and par. 9 of Art. 94.
Par. 1--Support refers to the spouse and the children
Babao v. Villanueva
Grandchildren are not included.
Par. 5Use of the property by the family is NOT required,
unlike in the case of ACP.
Art. 122. The payment of personal debts contracted by the
husband or the wife before or during the marriage shall not
be charged to the conjugal partnership except insofar as
they redounded to the benefit of the family.
Neither shall the fines and pecuniary indemnities imposed
upon them be charged to the partnership.
However, the payment of personal debts contracted by
either spouse before the marriage, that of fines and
indemnities imposed upon them, as well as the support of
illegitimate children of either spouse, may be enforced
against the partnership assets after the responsibilities
enumerated in the preceding Article have been covered, if
the exclusive property or if it should have no exclusive

property or if it should be insufficient; but at the time of the
liquidation of the partnership, such spouse shall be charged
for what has been paid for the purposes abovementioned.
This article modifies par. 9 of Art. 94. Under Art. 122, the
partnership assets may be charged only if the spouse who is
bound should have no exclusive property or if it should be
insufficient and after the charges upon the CP shall have been
covered.
have been coveredthis does not mean that it is necessary
for the charges to be paid first. It means that there are
sufficient Conjugal properties to answer for the conjugal
debts.
Art. 123. Whatever may be lost during the marriage in any
game of chance, or in betting, sweepstakes, or any other
kind of gambling whether permitted or prohibited by law,
shall be borne by loser and shall not be charged to the
conjugal partnership but any winnings therefrom shall form
part of the conjugal partnership property.
Art. 124. The administration and enjoyment of the conjugal
partnership property shall belong to both spouses jointly. In
case of disagreement, the husband's decision shall prevail,
subject to recourse to the court by the wife for proper
remedy, which must be availed within five years from the
date of the contract implementing such decision.
In the event that one spouse is incapacitated or otherwise
unable to participate in the administration of the conjugal
properties, the other spouse may assume sole powers of
administration. These powers do not include the powers of
disposition or encumbrance which must have the authority
of the court or the written consent of the other spouse. In
the absence of such authority or consent, the disposition
shall be void. However, the transaction shall be construed as
a continuing offer on the part of the consenting spouse and
the third person, and may be perfected as a binding contract
upon the acceptance by the other spouse or authorization
by the court before the offer is withdrawn by either or both
offerors.
Art. 125. Neither spouse may donate any conjugal
partnership property without the consent of the other.
other, make moderate donations from the conjugal
partnership property for charity or on occasions of family
This article prohibits the unilateral donation of either spouse
to a third person, except in case of moderate donations to
from the CP property for clarity or on occasions of family
103

Q: Does this mean that as long as the other spouse

consents, the donation is valid?
A: There must be written consent of the other spouse. This
article should be read in conjunction with the provisions on
Administration and Disposition of Conjugal or Community
Properties.
Art. 126. The conjugal partnership terminates:
(1) Upon the death of either spouse;
(2) When there is a decree of legal separation;
(3) When the marriage is annulled or decreed void;
(4) In case of judicial separation of property during the
marriage under Articles 134 to 138.
Art. 127. The separation in fact between husband and wife
shall not affect the regime of conjugal partnership, except
that:
(1) The spouse who leaves the conjugal home or refuses to
live therein, without just cause, shall not have the right to
be supported;
(2) When the consent of one spouse to any transaction of
the other is required by law, judicial authorization shall be
obtained in a summary proceeding;
(3) In the absence of sufficient conjugal partnership
property, the separate property of both spouses shall be
solidarily liable for the support of the family. The spouse
present shall, upon petition in a summary proceeding, be
given judicial authority to administer or encumber any
specific separate property of the other spouse and use the
fruits or proceeds thereof to satisfy the latter's share.
Art. 128. If a spouse without just cause abandons the other
or fails to comply with his or her obligations to the family,
the aggrieved spouse may petition the court for
receivership, for judicial separation of property, or for
authority to be the sole administrator of the conjugal
partnership property, subject to such precautionary
conditions as the court may impose.
The obligations to the family mentioned in the preceding
paragraph refer to marital parental or property relations.
A spouse is deemed to have abandoned the other when he
or she has left the conjugal dwelling without intention of
returning. The spouse who has left the conjugal dwelling for
a period of 3 months or has failed within the same period to
give any information as to his or her whereabouts shall be
prima facie presumed to have no intention of returning to
the conjugal dwelling.
Art. 129. Upon the dissolution of the conjugal partnership
regime, the following procedure shall apply:
(1) An inventory shall be prepared, listing separately all the
properties of the conjugal partnership and the exclusive
properties of each spouse.
(2) Amounts advanced by the conjugal partnership in

payment of personal debts and obligations of either spouse
shall be credited to the conjugal partnership as an asset
thereof.
(3) Each spouse shall be reimbursed for the use of his or her
exclusive funds in the acquisition of property or for the
value of his or her exclusive property, the ownership of
which has been vested by law in the conjugal partnership.
(4) The debts and obligations of the conjugal partnership
shall be paid out of the conjugal assets. In case of
insufficiency of said assets, the spouses shall be solidarily
liable for the unpaid balance with their separate properties,
in accordance with the provisions of paragraph (2) of Article
121.
(5) Whatever remains of the exclusive properties of the
spouses shall thereafter be delivered to each of them.
(6) Unless the owner had been indemnified from whatever
source, the loss or deterioration of movables used for the
benefit of the family, belonging to either spouse, even due
to fortuitous event, shall be paid to said spouse from the
conjugal funds, if any.
(7) The net remainder of the conjugal partnership properties
shall constitute the profits, which shall be divided equally
between husband and wife, unless a different proportion or
division was agreed upon in the marriage settlements or
unless there has been a voluntary waiver or forfeiture of
such share as provided in this Code.
(8) The presumptive legitimes of the common children shall
be delivered upon partition in accordance with Article 51.
(9) In the partition of the properties, the conjugal dwelling
and the lot on which it is situated shall, unless otherwise
agreed upon by the parties, be adjudicated to the spouse
with whom the majority of the common children choose to
remain. Children below the age of seven years are deemed
to have chosen the mother, unless the best interests of said
children.
Q: What is the procedure for the liquidation of the conjugal
partnership assets?
A:
1.
2.
3.
4.
5.
No payment is required to be made. What is

required by law is crediting. The reason for this is
that the only purpose is to determine the extent of
the CP regime;
The law requires actual payment. To be entitled to
reimbursement, the advance made to either spouse
must have been used by the conjugal partnership in
the acquisition of property. otherwise, it will not fall
under Step 3;
Under the CC, the term used was returned. Under
the FC, the term used is delivered, because the
exclusive properties of the spouses never become
part of the Conjugal partnership properties;
104

6.
Only movables are susceptible to loss;

There must be no intimidation, otherwise the
conjugal partnership is not liable. This refers to any
form indemnification, regardless of how it is
received by the owner spouse, whether in cash or
property.
Although the law clearly provides that the CP shall
not be liable if the owner had been indemnified from
whatever source, the fact that what is referred to is
an indemnification, if it is not equal to the value of
the property lost, the remainder shall be paid by the
CP.
7.
GR: Equal division of the net profits of the conjugal

partnership.
XPN: There may be unequal division when:
a.
b.
It is agreed upon in the marriage settlement;

There is waiver or forfeiture.
An Addendum may be attached to the marriage

settlement before the celebration of the marriage,
because it shall form part of the marriage
settlement.
Waiver may be made after the marriage. It cannot
be made during the marriage because there would
be nothing to waive. During the marriage, the
spouses only have an inchoate right or a mere
expectancy to the net remainder of the CP
properties.
8.
If no judicial settlement proceeding is instituted, the

surviving spouse shall liquidate the conjugal partnership
property either judicially or extra-judicially within one year
from the death of the deceased spouse. If upon the lapse of
the said period no liquidation is made, any disposition or
encumbrance involving the conjugal partnership property of
the terminated marriage shall be void.
Should the surviving spouse contract a subsequent marriage
without compliance with the foregoing requirements, a
mandatory regime of complete separation of property shall
Art. 131. Whenever the liquidation of the conjugal
partnership properties of two or more marriages contracted
by the same person before the effectivity of this Code is
carried out simultaneously, the respective capital, fruits and
income of each partnership shall be determined upon such
proof as may be considered according to the rules of
evidence. In case of doubt as to which partnership the
existing properties belong, the same shall be divided
between and among the different partnerships in
proportion to the capital and duration of each.
Art. 132. The Rules of Court on the administration of estates
of deceased persons shall be observed in the appraisal and
sale of property of the conjugal partnership, and other
matters which are not expressly determined in this Chapter.
Art. 133. From the common mass of property support shall
be given to the surviving spouse and to the children during
the liquidation of the inventoried property and until what
belongs to them is delivered; but from this shall be
deducted that amount received for support which exceeds
the fruits or rents pertaining to them.
Only when the marriage is terminated will there be

an obligation to deliver the presumptive legitimes.
The liquidation of the conjugal partnership assets does not

take place when there is termination of the marriage. Ex. It
may take place also when there is a Judicial Separation of
Property during the marriage.
During the marriage, separation of property shall be valid

only with judicial approval.
What gives rise to the obligation to deliver the presumptive

kegitimes is the termination of the marriage by:
But as a property regime, judicial approval is not necessary. It

must be provided in the marriage settlement.
a.
b.
c.
Death of either spousepresumptive legitimes are

not spoken of here.
Annulment of the marriage;
Declaration of nullity
SEPARATION OF PROPERTY
Separation of property during the marriage may either be:

1.
2.
Art. 130. Upon the termination of the marriage by death,

the conjugal partnership property shall be liquidated in the
same proceeding for the settlement of the estate of the
deceased.
Voluntaryit is based on an agreement of the

spouses with judicial approval.
Involuntaryit is with judicial approval but without
the agreement of the spouses.
This is based on sufficient cause, on grounds specified and

recognized by law.
Q: May the court deny for voluntary separation of property?
105

A: Yes particularly if it will prejudice third parties.

Despite the separation of property, the spouses are still
solidarily liable to the creditors.
Art. 134. In the absence of an express declaration in the
marriage settlements, the separation of
property between spouses during the marriage shall not take
place except by judicial order. Such judicial
separation of property may either be voluntary or for
sufficient cause.
Art. 135. Any of the following shall be considered sufficient
cause for judicial separation of property:
(1) That the spouse of the petitioner has been sentenced to
a penalty which carries with it civil interdiction;
(2) That the spouse of the petitioner has been judicially
declared an absentee;
(3) That loss of parental authority of the spouse of
petitioner has been decreed by the court;
(4) That the spouse of the petitioner has abandoned the
latter or failed to comply with his or her obligations to the
family as provided for in Article 101;
(5) That the spouse granted the power of administration in
the marriage settlements has abused that power; and
(6) That at the time of the petition, the spouses have been
separated in fact for at least one year and reconciliation is
highly improbable.
In the cases provided for in Numbers (1), (2), (3), the
presentation of the final judgment against the guilty or
absent spouse shall be enough basis for the grant of the
decree of judicial separation of property.
Q: What are the sufficient causes for judicial separation of
property?
A:
1.
2.
3.
4.
5.
6.
Civil interdiction
Absentee
Loss of parental authority
Abandonment
Abuse of power of administration
Separation in fact for at least 1 year and
reconciliation is highly improbable.
NOTE: Nos. 1, 2, and 3 require a final judgment and the

presentation of such final judgment is enough basis for the
grant of the decree of judicial separation of property.
In nos. 4,5, and 6 there must be proof of the cause or ground
for separation of property.
An extra-judicial agreement between the spouses to live

separately is not recognized by the law. it must be blessed
with judicial approval.
Q: Will the grant by the court of the petition for judicial
separation of property on the ground of separation in fact of
the spouses for more than 1 year, and that reconciliation is
highly improbable, amount to recognition of the separation
in fact existing between the spouses?
A: Any such grant by the court does not amount to
recognition by law or by the court of the separation in fact. A
judgment granting separation of property and a judgment
recognizing separation in fact are not the same.
Q: May the spouses revive the original/former property
regime existing before the judicial separation of property?
A: Yes. see Art. 141.
Art. 141. The spouses may, in the same proceedings where

separation of property was decreed, file a motion in court
for a decree reviving the property regime that existed
between them before the separation of property in any of
the following instances:
(1) When the civil interdiction terminates;
(2) When the absentee spouse reappears;
(3) When the court, being satisfied that the spouse granted
the power of administration in the marriage settlements will
not again abuse that power, authorizes the resumption of
said administration;
(4) When the spouse who has left the conjugal home
without a decree of legal separation resumes common life
with the other;
(5) When the 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; or
(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 agreed to the revival of the former property regime. No
voluntary separation of property may thereafter be granted.
The revival of the former property regime shall be governed
by Article 67.
Art. 136. The spouses may jointly file a verified petition with
the court for the voluntary dissolution of the absolute
community or the conjugal partnership of gains, and for the
separation of their common properties.
All creditors of the absolute community or of the conjugal
partnership of gains, as well as the personal creditors of the
spouse, shall be listed in the petition notified of the filing
106

thereof. The court shall take measures to protect the

creditors and other persons with pecuniary interest.
the same as the grounds for separation of property except

that they work the other way.
Art. 137. Once the separation of property has been decreed,

the absolute community or the conjugal partnerhsip of gains
shall be liquidated in conformity with this Code.
A mere petition of the aggrieved spouse asking to return the

power of administration to the offending spouse will not
suffice. The court must be satisfied that the spouse will no
longer abuse the power of administration.
During the pendency of the proceedings for separation of

property, the absolute community or the conjugal
partnership shall pay for the support of the spouses and
their children.
Art. 138. After dissolution of the absolute community or of
the conjugal partnership, the provisions on complete
separation of property shall apply.
Art. 138. After dissolution of the absolute community or of
the conjugal partnership, the provisions on complete
separation of property shall apply.
Art. 139. The petition for separation of property and the
final judgment granting the same shall be recorded in the
proper local civil registries and registries of property.
Art. 140. The separation of property shall not prejudice the
rights previously acquired by creditors.
Art. 141. The spouses may, in the same proceedings where
separation of property was decreed, file a motion in court
for a decree reviving the property regime that existed
between them before the separation of property in any of
the following instances:
(1) When the civil interdiction terminates;
(2) When the absentee spouse reappears;
(3) When the court, being satisfied that the spouse granted
the power of administration in the marriage settlements will
not again abuse that power, authorizes the resumption of
said administration;
(4) When the spouse who has left the conjugal home
without a decree of legal separation resumes common life
with the other;
(5) When the 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; or
(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 agreed to the revival of the former property regime. No
voluntary separation of property may thereafter be granted.
The revival of the former property regime shall be governed
by Article 67.
In case of revival after voluntary separation of property, there

can be a second voluntary separation of property. In this
case, mere agreement is sufficient to revive the former
property regime. However, there can be a subsequent
involuntary separation of property.
Mere reconciliation is not sufficient to revive the former
property relations, there must be an agreement. More so, the
revival of the former property regime shall be governed by
the procedure in Art. 67.
Art. 142. The administration of all classes of exclusive
property of either spouse may be transferred by the court to
the other spouse:
(1) When one spouse becomes the guardian of the other;
(2) When one spouse is judicially declared an absentee;
(3) When one spouse is sentenced to a penalty which carries
with it civil interdiction; or
(4) When one spouse becomes a fugitive from justice or is in
hiding as an accused in a criminal case.
If the other spouse is not qualified by reason of
incompetence, conflict of interest, or any other just cause,
the court shall appoint a suitable person to be the
administrator.
This case must be distinguished from Arts. 96 and 124,
wherein one spouse can assume without need of court
authorization, the sole administration of the AC or CP if the
other spouse is (1) incapacitated; or (2) is otherwise unable to
participate in the administration of their common properties.
Q: To whom may the power of administration be given by
the court?
A:
1.
2.
To the other spouse; or

To a third spouse, if the other spouse is
incapacitated.
Q: What are the ways by which the regime of separation of

property may be had?
A:
If the separation of property is INVOLUNTARY (for cause), the

grounds for revival of the former property regime are almost
1.
Agreed upon by the spouses in a marriage

settlement;
107

2.
3.
Judicial separation of property during marriage; and

When the surviving spouse of a previous marriage
terminated by death of the other spouse, contracts a
subsequent marriage without liquidating the
property regime of the terminated marriage within 1
year from the death of the deceased spouse. In this
case, the mandatory regime of complete separation
of property shall govern the property relations of the
Q: The rule is that if no particular regime is agreed upon by

the future spouses, the same being contained in the
marriage settlement, the regime of ACP will govern the
property relations of their marriage. Is this an absolute rule?
A: No. There is 1 exception. The exception is when the
mandatory regime of CSP applies in the case where 1 of the
spouses should fail to liquidate the property relations of her
former marriage which has been terminated by the death of
her former spouse.
Art. 143. Should the future spouses agree in the marriage
settlements that their property relations during the
marriage shall be governed by the regime of separation of
property, the provisions of this Chapter shall be of
suppletory application.
Art. 144. Separation of property may refer to present or
future property or both. It may be total or partial. In the
latter case, the property not agreed upon as separate shall
pertain to the absolute community.
Art. 145. Each spouse shall own, dispose of, possess,
administer and enjoy his or her own separate estate,
without need of the consent of the other. To each spouse
shall belong all earnings from his or her profession, business
or industry and all fruits, natural, industrial or civil, due or
received during the marriage from his or her separate
property.
The liability of the spouses to creditors for family expenses

shall be solidary.
Art. 147. When a man and a woman who are capacitated to
marry each other, live exclusively with each other as
husband and wife without the benefit of marriage or under
a void marriage, their wages and salaries shall be owned by
them in equal shares and the property acquired by both of
them through their work or industry shall be governed by
the rules on co-ownership.
In the absence of proof to the contrary, properties acquired
while they lived together shall be presumed to have been
obtained by their joint effortsm work or industry, and shall
be owned by them in equal shares. For purposes of this
Article, a party who did not participate in the acquisition by
the other party of any property shall be deemed to have
contributed jointly in the acquisition thereof if the former's
efforts consisted in the care and maintenance of the family
and of the household.
Neither party can encumber or dispose by acts inter vivoc of
his or her share in the property acquired during cohabitation
and owned in common, without the consent of the other,
until after the termination of their cohabitation.
This article applies when the man and woman, capacitated to
marry each other, live as husband and wife without the
benefit of marriage or under a void marriage.
This article applies only if the following conditions imposed by
the law are present:
1.
2.
3.
It should be between a man and a woman;

Both must be capacitated to marry each other; and]
Living exclusively with each other as H and W
(without the benefit of marriage or under a void
marriage)
Exclusivity
This article speaks of the rights of the spouses in A/CSP.
Art. 146. Both spouses shall bear the family expenses in
proportion to their income, or, in case of insufficiency or
default thereof, to the current market value of their
separate properties.
The liability of the spouses of creditors for family expenses
shall, however, be solidary.
The spouses are required to put in a common fund a
proportionate share of their income for the support of the
family. In case of insuifficiency or default of the income, the
spouses shall bear the family expenses in proportion to the
current market value of their separate properties.
This excludes multiple alliances on the part of the man and

woman. The man and the woman live with each other ONLY.
There is no sharing with other persons. So if the man shares
the woman with the whole baranagay, or vice versa, there is
no exclusivity.
Furthermore, there must be real cohabitation or living
together as H and W. A mere transient relationship is not
included.
As regards a man and a woman living under a void marriage,
this applies to void marriages where the parties or either of
them does not have an existing valid marriage with anyone
else. Hence, according to Justice Dy, bigamous marriages will
not fall under this article. On the other hand, if the parties do
not have existing marriages with other persons but their
108

marriage is void for other reasons (incestuous marriage), Dy

further states that this article will apply.
if the former's efforts consisted in the care and maintenance

of the family and of the household.
Q: What are its effects?
Art. 148. In cases of cohabitation not falling under the

preceding Article, only the properties acquired by both of
the parties through their actual joint contribution of money,
property, or industry shall be owned by them in common in
proportion to their respective contributions. In the absence
of proof to the contrary, their contributions and
corresponding shares are presumed to be equal. The same
rule and presumption shall apply to joint deposits of money
and evidences of credit.
A:
1.
2.
Wages and salaries of the parties shall be owned by

them in equal shares;
Properties acquired by both of the parties through
their work or industry shall be governed by the rules
on co-ownership.
The governing rule is the rule on co-ownership. Under the

rule on co-ownership, the interest of a co-owner in a property
owned in common cannot go beyond what he/she
contributed to acquire the property. Therefore, it does not
follow that the interest of each party is equal.
Q; Is the contribution of actual effort necessary?
If one of the parties is validly married to another, his or her

share in the co-ownership shall accrue to the absolute
community or conjugal partnership existing in such valid
marriage. If the party who acted in bad faith is not validly
married to another, his or her share shall be forfeited in the
manner provided in the last paragraph of the preceding
Article.
A: No. if there is JOINT EFFORT, the rule on co-owenrship will

govern. Now, as to the extent of the contribution of each
party, the law presumes it as equal. Note that the
presumption is not with respect to the extent of coownership, but only as to the extent of the interest of each
party.
The foregoing rules on forfeiture shall likewise apply even if

both parties are in bad faith.
Co-ownership doesnt necessarily mean equal interest. So,

the law presumes equal contribution in order that their
interest in the property is equal.
Whatever is earned by either party belongs exclusively to

each of them. Only the properties acquitted by them through
their actual joint contribution of money, property or industry
shall be owned by them in common, in proportion to their
respective contribution.
The law says: in the absence of proof to the contrary,

properties acquired while they lived together shall be
presumed to have been obtained by their joint efforts work
or industry, and shall be owned by them in equal shares.
Inspirational contribution
This shall be deemed to be the contribution of a party who
doesnt participate or contribute in the administration of any
property.
Assuming that Sam is the woman and Bebeng is the man.
Assuming further that they are living together exclusively as H
and W without a valid marriage and they are not
incapacitated to marry each other. Bebeng goes to work
everyday while Sam stays home and cleans the house.
Whenever Bebeng goes home at night, Sam cooks for him.
Sam massages Bebeng whenever he is tired. The act of Sam in
taking care of Bebeng is considered as Sams inspirational
contribution.
The law says: a party who did not participate in the
acquisition by the other party of any property shall be
deemed to have contributed jointly in the acquisition thereof
This article applies only in cases of cohabitation when all the

3 conditions are not present. Otherwise, Art. 147 would be
the one to apply.
However, the law still presumes that, in the absence of proof

to the contrary, their contributions and corresponding shares
are equal. The same rule and presumption shall apply to joint
deposits of money and evidences of credit.
Unlike Art. 147, no inspirational share is recognized in Art.
148.
Dean Aligada: Art. 147 and 148 are the reasons why there can
never be ACP or CPG when the marriage is void. The law
doesnt make a distinction as to the cause of nullity of the
marriage, whether it be through the Psychological Incapcity
of one of the spouses or otherwise, as such, we should not
distinguish.
However, the law says that one cause of the termination of
ACP or CPG is the declaration of nullity of the marriage. What
is it talking about? Arts. 147 and 148 provide for the rule on
co-ownership to govern in cases of void marriages and
marriages without the benefit of marriage. Do Arts. 147 and
148 make any distinction? No. So again, what is the law
talking about and what does it refer to, particularly in Art. 99,
109

no. 3 (as to the termination of the Absolute Community) and

Art. 126, no.3 (as to the termination of the CP)?
The family home is deemed constituted on the house and lot

from the time it is occupied as a family residence.
The constitution of the family home is AUTOMATIC.
FAMILY
Art. 149. The family, being the foundation of the nation, is a
basic social institution which public policy cherishes and
protects. Consequently, family relations are governed by
law and no custom, practice or agreement destructive of the
family shall be recognized or given effect.
The family home will exist as such from the time it is

constituted and continues as long as any of the beneficiaries
reside therein.
The family home cannot be constituted on land belonging to
another.
Q: From what is the family home exempt?
Art. 150. Family relations include those:

(1) Between husband and wife;
(2) Between parents and children;
(3) Among other ascendants and descendants; and
(4) Among brothers and sisters, whether of the full or halfblood.
NOTE: Take note that while illegitimate children are not
included, adopted children are included.
A:
1.
2.
3.
Execution
Forced sale; and
AttachmentExcept those provided in Art. 155
Q: Who are the beneficiaries?

A:
Art. 151. No suit between members of the same family shall

prosper unless it should appear from the verified complaint
or petition that earnest efforts toward a compromise have
been made, but that the same have failed. If it is shown that
no such efforts were in fact made, the case must be
dismissed.
This rule shall not apply to cases which may not be the
subject of compromise under the Civil Code.
1.
2.
The H and the W or an unmarried person who is the

head of the family;
Their parents, ascendants, descendants, brothers or
sisters, whether legitimate or illegitimate, who are
living in the family home and depend upon the head
of the family for legal support.
Beneficiaries other than the H and W or unmarried head of

the family cannot establish a Family home.
The exception to this Article 2035 of the NCC.

Art. 2035. No compromise upon the following questions
shall be valid:
(1) The civil status of persons;
(2) The validity of marriage or a legal separation;
(3) Any ground for legal separation;
(4) Future support;
(5) The jurisdiction of courts;
(6) Future legitime. (Civil Code.)
Principles underlying the establishment of the Family Home
The family home is the sacred symbol of the family and the
repository of cherished memories that last a lifetime. It is the
seat and symbol of family affection, and should not be liable
for debts, except in cases provided by law. Also, it encourages
home building.
Q: Who may establish the family home?
If the FH is constituted by the spouses, it must be constituted

on any ACP or CP property or any exclusive property of either
spouse with the consent of the latter.
A FH may be constituted on a property subject to condition
sale on installment basis, where ownership is reserved by the
vendor to guarantee payment.
This is the exception to the rule that the FH must be
established on community or conjugal property of either
spouse or the separate property of either spouse, or on the
property of an unmarried head of the family.
Lawyers Coop. v. Tabora
Tabora bought a set of Am.Jur. from lawyes Coop to be paid
on installment basis. It was provided that as long as the total
purchase price is not paid, ownership remains with Lawyers
Coop. should it get lost, the buyer shall assume responsibility
therefor.
A: The H and W jointly or an unmarried head of the family.
110

The office of Atty. Tabora was burned. He now refuses to pay

on the ground that his obligation is extinguished citing Res
perit domino.
The SC said that the principle will not apply. The provision
that ownership is retained by the seller is valid. It is intended
to secure payment of the purchase price.
Art. 152. The family home, constituted jointly by the
husband and the wife or by an unmarried head of a family,
is the dwelling house where they and their family reside,
and the land on which it is situated.
Art. 153. The family home is deemed constituted on a house
and lot from the time it is occupied as a family residence.
From the time of its constitution and so long as any of its
beneficiaries actually resides therein, the family home
continues to be such and is exempt from execution, forced
sale or attachment except as hereinafter provided and to
the extent of the value allowed by law.
hundred thousand (P200,000) in rural areas, or such

amounts as may hereafter be fixed by law.
In any event, if the value of the currency changes after the
adoption of this Code, the value most favorable for the
constitution of a family home shall be the basis of
evaluation.
For purposes of this Article, urban areas are deemed to
include chartered cities and municipalities whose annual
income at least equals that legally required for chartered
cities. All others are deemed to be rural areas.
Limitation on the value:
1.
2.
3.
4.
Art. 154. The beneficiaries of a family home are:
(1) The husband and wife, or an unmarried person who is
the head of a family; and
(2) Their parents, ascendants, descendants, brothers and
sisters, whether the relationship be legitimate or
illegitimate, who are living in the family home and who
depend upon the head of the family for legal support.
Art. 155. The family home shall be exempt from execution,
forced sale or attachment except:
(1) For nonpayment of taxes;
(2) For debts incurred prior to the constitution of the family
home;
(3) For debts secured by by mortgages on the premises
before or after such constitution;
(4) For debts due to laborers, mechanics, architects,
builders, materialmen and others who have rendered
service or furnished material for the construction of the
building.
Art. 156. The family home must be part of the properties of
the absolute community or the conjugal partnership, or of
the exclusive properties of either spouse with the latter's
consent. It may also be constituted by an unmarried head of
a family on his or her own property.
Nevertheless, property that is the subject of a conditional
sale on installments where ownership is reserved by the
vendor only to guarantee payment of the purchase price
may be constituted as a family home.
Art. 157. The actual value of the family home shall not
exceed, at the time of its constitution, the amount of three
hundred thousand (P300,000) in urban areas and two
Not to exceed 330k in urban areas;

Not to exceed 200k in rural areas;
If the value of the currency charges after the
adoption of the FC, the value most favorable for the
constitution of a FH shall be the basis of the
evaluation;
The introduction of improvements are to be added
to the value of the FH.
A FH may be sold, alienated, donated, assigned or

encumbered under the condition laid down by the law.
Art. 158. The family home may be sold, alienated, donated,
assigned or encumbered by the owner or owners thereof
with the written consent of the person constituting the
same, the latter's spouse, and a majority of the beneficiaries
of legal age. In case of conflict, the court shall decide.
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 for as long as there is a
minor beneficiary, and the heirs cannot partition the same
unless the court finds compelling reasons therefor. This rule
shall apply regardless of whoever owns the property or
constituted the family home.
Art. 160. When a creditor whose claim is not among those
mentioned in Article 155 obtains a judgment in his favor,
and he has reasonable grounds to believe that the family
home is actually worth more than the maximum amount
fixed in Article 157, he may apply to the court which
rendered the judgment for an order directing the sale of the
property under execution. The court shall so order if it finds
that the actual value of the family home exceeds the
maximum amount allowed by law as of the time of its
constitution. If the increased actual value exceeds the
maximum allowed in Article 157 and results from
subsequent voluntary improvements introduced by the
person or persons constituting the family home, by the
owner or owners of the property, or by any of the
beneficiaries, the same rule and procedure shall apply.
111

At the execution sale, no bid below the value allowed for a

family home shall be considered. The proceeds shall be
applied first to the amount mentioned in Article 157, and
then to the liabilities under the judgment and the costs. The
excess, if any, shall be delivered to the judgment debtor.
1.
Naturalrelationship of parent and child resulting

from nature or birth of the child. It may either be:
a.
b.
This article refers to the right of unpreferred creditors. The

creditors who are preferred are those referred to in Art. 155.
2.
Legitimate; or
Illegitimate
Artificialrelationship arising between the parent

and the child by fiction of law or imitation of nature.
Q: What is the remedy of the unpreferred creditor?

Q: What are the kinds of children under the FC (kinds of
natural filiation)?
A:
1.
2.
3.
4.
5.
He must be a judgment creditor;

That his claim is not among those excepted under
Art. 155;
He must have reasonable grounds to believe that the
value of the FH is more than the maximum allowed
by law;
If he can prove no. 3, he can ask the court to sell the
FH;
The creditor is allowed only the excess of the
amount allowed by law.
According to Justice Dyif the creditor succeeds in proving

that the actual value of the FH exceeds the maximum amount
fixed by Art. 157, the court will order its sale on execution. If
the FH is sold for more than the value allowed in Art. 157, the
proceeds shall be applied as follows:
1.
2.
3.
4.
The amount mentioned in Art. 157;

The obligations enumerated in Art. 155 must be
paid;
Therefore, the actual value of the home must not
only exceed the maximum amount fixed in Art. 157,
but the excess must also be over and above all the
claims under Art. 155.
The judgment in favor of the judgment CR will be
paid, plus all the costs of execution;
The excess, if any, shall be delivered to the judgment
DR (the owner or owners of the FH).
Art. 161. For purposes of availing of the benefits of a family

home as provided for in this Chapter, a person may
constitute, or be the beneficiary of, only one family home.
Art. 162. The provisions in this Chapter shall also govern
existing family residences insofar as said provisions are
applicable.
A:
1.
2.
Legitimateone who is conceived or born during

the marriage of the parents;
Illegitimateone who is conceived and born outside
the marriage of the parents.
Q: What are the kinds of legitimate children?

A:
1.
2.
Legitimated
Adopted
NOTE: Once a child is born, the child is immediately given

status.
There is no more presumption of legitimacy.
Art. 163. The filiation of children may be by nature or by
adoption. Natural filiation may be legitimate or illegitimate.
Art. 164. Children conceived or born during the marriage of
the parents are legitimate.
Children conceived as a result of artificial insemination of
the wife with the sperm of the husband or that of a donor or
both are likewise legitimate children of the husband and his
wife, provided, that both of them authorized or ratified such
insemination in a written instrument executed and signed
by them before the birth of the child. The instrument shall
be recorded in the civil registry together with the birth
certificate of the child.
Q: What are the requisites of artificial insemination?
A:
1.
PATERNITY AND FILIATION

2.
Q: What are the kinds of filiation?
It must be made on the wife and not on another

woman;
The AI of the wife is done by the sperm of the H, the
donor or both the H and the donor;
A:
112

3.
The AI must be ratified in a written instrument,

executed and sighed by the H and the W before the
birth of the child;
The written consent must be recorded in the Civil
Register with the birth certificate of the child.
1.
The fact that the child is born out AI should not appear in the
birth certificate.
A:
4.
Physical impossibilityis that of the husband and not

that of the wife. This must exist at the period of
conception;
Q: What are the causes of physical impossibility?
1.
2.
Q: Can the H or the W, or both of them choose a sperm of

Robin Padilla?
3.
A: No. The donor must be unknown. The donor himself
should not know to whom he is donating his sperm. The
reason for this is to avoid or prevent any controversy or
paternity suits in the future.
Art. 165. Children conceived and born outside a valid
marriage are illegitimate, unless otherwise provided in this
Code.
Q: May a child impugn his own legitimacy?
A: No, a child cannot impugn his own legitimacy nor choose
his legitimacy. Primarily, this right is given to the husband and
secondarily, under certain circumstances, to his heirs.
However, the child cannot do so.
Art. 166. Legitimacy of a child may be impugned only on the
following grounds:
(1) That it was physically impossible 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) The 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 sexual intercourse;
(2) That it is proved that for biological or other scientific
reasons, the child could not have been that of the husband,
except in the instance provided in the second paragraph of
Article 164 (artificial insemination); or
(3) That in case of children conceived through artificial
insemination, the written authorization or ratification of
either parent was obtained through mistake, fraud,
violence, intimidation, or undue influence.
Q: What are the grounds for impugning legitimacy?
A:
Impotency
Husband and wife were living separately in such a
manner that sexual intercourse was impossible;
Serious illness of the H which absolutely prevented
sexual intercourse.
Andal v. Macaraig
Although the H was already suffering from tuberculosis and

his condition then was so serious that he could hardly move
and get up from his bed, his feet were swollen and his voice
hoarse, yet that is no evidence of impotency, nor does ut
prevent carnal knowledge. In short, when a person is affected
by TB that is not a proof of incapacity to perform the sexual
act.
Paralysis
It depends on what kind of paralysis. If total, then this would
prevent sexual intercourse. If partial and the sexual organ is
still functioning, then this would not be a proof of incapacity
to perform the sexual act.
2.
For biological or other scientific reasons, the child could

not have been that of the H, except the case of artificial
insemination;
3.
In case of AI, and the consent of either spouse was

obtained through fraud, mistake and violence.
Q: What are the 3 important periods of pregnancy?

A:
1.
2.
3.
120 days or 4 months-period of conception;

180 days or 6 monthsshortest period of gestation,
when a child may be expelled from a woman and still
live; and
300 days or 10 monthslongest period of
pregnancy.
Art. 167. The children shall be considered legitimate

although the mother may have declared against its
legitimacy or may have been sentenced as an adulteress.
Art. 168. If the marriage is terminated and the mother
contracted another marriage within three hundred days
after such termination of the former marriage, these rules
shall govern in the absence of proof to the contrary:
113

(1) A child born before one hundred eighty days after the
solemnization of the subsequent marriage is considered to
have been conceived during the former marriage, provided
it be born within three hundred days after the termination
of the former marriage;
(2) A child born after one hundred eighty days following the
celebration of the subsequent marriage is considered to
have been conceived during such marriage, even though it
be born within the three hundred days after the termination
of the former marriage.
This article only determines paternity not legitimacy. The
issue in this Article is not the legitimacy of the child, but it is
who is the father. So, in this case the child is legitimate
because legitimacy is not in issue.
XPN: Heirs, under the following cases:

1.
2.
3.
Q: What are the reasons why the right of the H to impugn

the legitimacy of the child is transferred to his heirs in each
of the 3 cases?
A:
1.
This article is similar to Art. 259 of the CC. The only difference
is that while the Civil Code establishes mere presumptions,
under the FC, there are no more presumptions.
2.
In par. 1, the child is given the status of a legitimate child of

the first husband.
In par.2, the child is given the status of a legitimate child of
the second husband.
3.
Art. 169. The legitimacy or illegitimacy of a child born after
three hundred days following the termination of the
marriage shall be proved by whoever alleges such legitimacy
or illegitimacy.
Art. 170. The action to impugn the legitimacy of the child
shall be brought within one year from the knowledge of the
birth or its recording in the civil register, if the husband or,
in a proper case, any of his heirs, should reside in the city or
municipality where the birth took place or was recorded.
H dies before the expiration of any of the prescribed

periods, depending upon the circumstances;
H dies after bringing the action, but before its
termination, without having desisted therefrom;
H dies before the birth of the child.
Here, the H died before the expiration of the period

to bring the action. There is no certainty that, had he
lived until the expiration of the period, he would not
have brought the action. Since he died, the doubt is
to be resolved in favor of the heirs;
Here, the H intended to impugn the legitimacy of the
child. This proved by the bringing of the action.
However, he died before the termination of the
proceedings without desisting therefrom. Therefore,
there is an uncertainty whether or not he would
have desisted if he lived. Again, the doubt is resolved
in favor of the heirs;
Here, the H died the before the birth of the child. He
could not have brought the action. When he died,
the child was not yet born. As such, there is nothing
to impugn yet.
It is only in these 3 cases that the right of the H to bring the

action to impugn the legitimacy of the child is transmitted to
his heirs.
Q: What are the ways of proving the legitimacy of the child?
A:
Period of prescription for bringing an action to impugn the

legitimacy of a child. Either 1 year, 2 years or 3 years.
Art. 171. The heirs of the husband may impugn the filiation
of the child within the period prescribed in the preceding
article only in the following cases:
(1) If the husband should die before the expiration of the
period fixed for bringing his action;
(2) If he should die after the filing of the complaint, without
having desisted therefrom; or
(3) If the child was born after the death of the husband.
Q: Who may bring the action to impugn the legitimacy of
the child?
A:
GR: The right to impugn is given by law principally to the H.
1.
2.
3.
4.
Showing that the parents are H and W;

Conception of the child;
That the child is that of the mother;
That the child is the issue of the father.
The best proof of marriage between a couple is the marriage

contract.
Q: Explain the blood test.
A:If the results are POSITIVE, it does not necessarily mean
that a person is the father of the child. As such, it is not
admissible in evidence. On the other hand, of the results are
NEGATIVE, it means that a person is not the father of the
child. The fact that they are of different blood types indicate
the impossibility of one being the child of the other. So, a
blood is always to the advantage of the alleged or supposed
father.
114

Blood tests then, together with other evidence, like racial or

ethnic difference between the supposed father and the child
can be presented to impugn a childs legitimacy.
The law fixes 3 periods of prescription for an action to
impugn legitimacy.
No period of prescription is fixed by law for an action to claim
legitimacy. It can be brought at may time during the lifetime
of the child, even after the parents have died. It can also be
brought simultaneously with an action to claim successional
rights.
Q: Why the difference in prescriptive periods between an
action to impugn legitimacy and an action to claim
legitimacy?
A: When a child is born under the FC, he is immediately given
a status, either legitimate or illegitimate. If a child is
considered legitimate, it doesnt mean that the legitimate
status cannot be assailed or impugned because the law gives
the H the right/power to impugn the same but the action
should be based on grounds recognized by the law and within
the prescriptive period.
Following the policy of the State under the CC and the FC, the
state is in favor of legitimacy of the child. The leaning of the
state is in favor of the legitimate status of the child, as when
the law leans in favor of the validity of marriage.
(2) An admission of legitimate filiation in a public document

or a private handwritten instrument and signed by the
parent concerned.
In the absence of the foregoing evidence, the legitimate
filiation shall be proved by:
(1) The open and continuous possession of the status of a
legitimate child; or
(2) Any other means allowed by the Rules of Court and
special laws.
Q: What are the means of proving legitimate filiation?
A:
1.
2.
Record of birth appearing in the civil register (birth

certificate) or a final judgment; or
Admission of the legitimate filiation in a public
instrument or private handwritten instrument signed
by the parent concurred.
Q: What are the secondary means of proving filiation?

A:
1.
2.
Open and continuous possession of the status of a

legitimate child; or
By any other means allowed by the Rules of Court
and special laws.
The law fixes a period of prescription for the bringing of an

action to impugn legitimacy, so as not to leave the status of
the child open to question at anytime since after the
expiration of the period of prescription, the legitimacy of the
child remains and it remains unquestionable.
The first are the primary or principal means of proving

filiation.
If there is no period of prescription, it will only result in the

instability of the legitimate status of the child, which may
appear to be open to questions for an indefinite period of
time.
The child cannot choose what he would use as proof because

it is not a matter of choice.
As to the action to claim legitimacy, no period of prescription

is fixed, because if a child succeeds in proving his legitimate
status, it would redound to the benefit of the child.
An action to claim legitimacy is primarily given by the law to
the child. The child can bring the action at anytime during his
lifetime: a child is not barred from claiming legitimate status
even after the death of the putative parent.
Art. 172. The filiation of legitimate children is established by
any of the following:
The last 2 are the secondary means of proving filiation. These

can be availed of only in the absence of the first 2 means.
According to Dy, there is no priority in the first 2 kinds of

evidence and that is why the beginning of the Art. says any.
Hence, any of the first 2 kinds of evidence may be presented,
as the legitimacy of a child is favored by law. in the absence
of any of the evidence mentioned in the first paragraph of
Art. 172, the second paragraph will apply.
Record of Birth
This refers to the Birth Certificate as duly recorded in the
register of births. The Baptismal Certificate is not a record of
birth, it is not a kind of record contemplated by law but it can
be considered under no. 4, as any other means allowed by
the Rules of Court and special laws.
(1) The record of birth appearing in the civil register or a

final judgment; or
115

In the absence of the record of birth, an admission made by

the parent concerned in a public or private handwritten
instrument may be availed of.
Q: What is the difference between an admission in a public
document and one in a private handwritten instrument?
A:
Public Instrument
If an admission appears
herein, it need not be in the
handwriting of the parent
concerned. It
can be
typewritten, but should be
duly acknowledged before a
person
authorized
to
administer oaths.
Private Handwritten
Instrument
It is not enough that the
admission is in handwriting,
it must be in the handwriting
of the parent making the
admission. Furthermore, it
must be signed by such
parent.
No particular length of time is required. This is available even

to a conceived child.
Art. 173. The action to claim legitimacy may be brought by
the child during his or her lifetime and shall be transmitted
to the heirs should the child die during minority or in a state
of insanity. In these cases, the heirs shall have a period of
five years within which to institute the action.
The action already commenced by the child shall survive
notwithstanding the death of either or both of the parties.
Q: Is the right to bring the action to claim legitimacy given to
the child alone?
A: In 2 instances provided by law, the right to claim legitimate
status is transmissible to the heirs of the child. The heirs can
bring the action to claim the legitimate status of the child in
the following instances;
a.
b.
Banas v. Banas
Once upon a time there was a boy named Raymundo who
lived with his mother during his minority. Dr. Bibiano Banas
visited them often and was also attending to all their needs.
One day, while Raymundo was playing outside, Dr. Banas, in
the presence of the mother, wrote Raymundo a note. He
said: Munding, time is precious. You should not be wasting
your time uselessly. Concentrate on your studies, and after
you have studied your lessons, help your mother at home. It
is during your spare time that you can go out and play.
If the child dies during the minority; or

If the child dies in a state of insanity.
The heirs should bring or institute the action within 5 years

from the death of the child.
The action already commenced by the child shall survive
notwithstanding the death of either or both of the parties.
Q: During the lifetime of the child, is this right given to the
child alone?
A:
Dr. Banas closed the note with a complementing ending

which was the cause of this action. The whole note was
written in Spanish: Your Father. Then the Dr. signed his name.
GR: Only the child can bring the action.
After the detah of the good doctor this case was commenced
because Raymundo was claiming successional rights. He
claimed that he was an acknowledged natural child of Dr.
Banas.
XPN: During the minority of the child, the mother can bring
the action because a minor child has no capacity to go to
court. There is no provision of law which says that the child
must wait until he reaches of age. All that the law says is that
an action to claim legitimacy could be made during his
lifetime.
WON the note amounted to an admission that Raymundo

was Dr. Banas son.
The court rejected the claim. The phrase Your Father is not
enough. It is not an admission of ones filiation because we
Filipinos are paternalistic. Even if we are not relayed to each
other, we address one another as Tito, Tita, etc..They are only
paternal expressions. There should be something more.
Pedro, brother of Dr. Banas, issued an affidavit claiming that
the boy was his, which was never denied.
In this case, the mother can bring the action for the child. The
action should be commenced or brought in the name of the
child, the action is between the child and the putative father.
It cannot be brought in the name of the mother because the
mother has no capacity to bring this action. The role of the
mother is to provide assistance to the child who has no
capacity to go to court.
Q: What are the rights of a legitimate chil?
A:
Open and continuous possession of status

1.
Right to use the surname of both parents (Use of

surname of both parents);
116

2.
3.
Right to receive support from the parents,

ascendants and in proper cases, brothers and sisters
(to be supported); Note that descendants are not
included.
Right to be entitled to the legitimate and other
successional rights (succesional rights).
Use of surname
Q: May this right be waived or renounced by the child?

A: Yes, there is a procedure for changing ones name. If you
want to have your surname changed, you must apply to the
court for a change of name. the only limitation is that it
should not be resorted to for an illegal purpose.
Q: If you petition the court for a change of name, are you
not renouncing the name of your father?
A: The difference lies in the period within which an

illegitimate child can bring the action.
If the basis of the action is either the record of birth, a final
judgment or a written admission, the illegitimate child can
bring the action to claim illegitimate filiation at any time
during his lifetime.
If the basis of the action is either the continued possession of
the status of an illegitimate child or any means established by
the Rules of Court or any special law for that purpose, the
action must be brought during the lifetime of the alleged
parent.
Under the CC, proof of bare filiation is not sufficient. What
must be established is recognized filiation.
NOTE: What is allowed to be changed is his/her name and

not the name of someone else.
Under succession law, if a person want to claim successional

rights, it is enough that he proves filaition. However, in the
case of Paulino v. Paulino, it was stated by the SC that it is not
enough that the person establishes mere filiation, it should
be recognized filiatiion that is established.
Successional rights of a legitimate child
Paulino v. Paulino
The legitimate child is entitled to the legitimate which the law

gives to a legitimate child.
The plaintiff, who had already reached majority, brought an

action to compel the defendants to give her a share in the
estate of her alleged illegitimate father.
A: Yes but remember that it must be with judicial approval.
Art. 174. Legitimate children shall have the right:

(1) To bear the surnames of the father and the mother, in
conformity with the provisions of the Civil Code on
Surnames;
(2) To receive support from their parents, their ascendants,
and in proper cases, their brothers and sisters,
in conformity with the provisions of this Code on Support;
(3) To be entitled to the legitime and other successional
rights granted to them by the Civil Code.
Art. 175. Illegitimate children may establish their
illegitimate filiation in the same way and on the same
evidence as legitimate children.
Q: Who are illegitimate children?
The court held that to be entitled to support and other

successional rights from the putative parent, the child must
first prove his filiation to the latter. And it is necessary to
allege in the complaint that the child had been acknowledged
and recognized by the putative parent, as such act of the
latter is the basis of the childs rigtht to inherit from his
estate. There being no allegation of such acknowledgment in
plaintiffs complaint, however, the action become one to
compel recognition which cannot be brought after the death
of the putative parent. Hence, plaintiffs action was held to
have already prescribed.
Then came the FC. It changed the doctrine by reverting to the
old doctrine that it is sufficient, in claiming illegitimate
filiation that what one establishes is bare filiation. Recognized
filiation is no longer recognized by the FC.
A: Those conceived and born outside a valid marriage.

XPNs: Children under Art. 36 and Art. 53.
So, while before acknowledgement by the parent was

essential, this was done away with because recognition is no
longer required by the FC.
Q: What are the ways of establishing filiation?

A: Same as legitimate filiation. The same means of proof for
establishing legitimate filiatiob also apply in establishing
illegitimate filiation.
Q: What is the difference?
Q: Why does the law require that the action be brought

during the lifetime of the putative parent in grounds 3 and
4? Why isnt required in grounds 1 and 2?
A: Three is certainty established under the first 2 means of
proof. The status of a child can no longer be questioned.
117

There is already an established certainty with respect to the

filiation of the child.
With respect to the last 2 means of proof, the certainty
established by the 2 means does not exist under the last 2
means of proof because the only basis here is the enjoyment
of the status of an illegitimate child, but it does not in any
way establish filiation yet.
According to Sempio-Dy:
As regards the first 2 means, there is no longer any question
that the child is really the illegitimate child of the putative
parent. He can therefore claim his right as such even after the
death of his parent including his share in the latters estate as
heir.
As regards the last 2 means of proof, there might still be
question as to whether the child is really the illegitimate child
of the alleged parent or not. It is a truism that unlike
legitimate children who are publicly recognized, illegitimate
children are usually begotten and raised in secrecy. Who then
can be sure of their filiation but the parents themselves? the
putative parent should thus be given the opportunity to
affirm or deny the childs filiation and this, he or she can do
only if the action is filed during his lifetime.
Q: What are the rights of illegitimate children?
A:
Art. 176. Illegitimate children shall use the surname and

shall be under the parental authority of their mother, and
shall be entitled to support in conformity with this Code.
The legitime of each illegitimate child shall consist of one
half of the legitime of a legitimate child.
Art. 177. Only children conceived and born outside of
wedlock of parents who, at the time of the conception of
the former, were not disqualified by any impediment to
marry each other may be legitimated.
Art. 178. Legitimation shall take place by a subsequent valid
marriage between parents. The annulment of a voidable
marriage shall not affect the legitimation.
Art. 179. Legitimated children shall enjoy the same rights as
legitimate children.
Art. 180. The effects of legitimation shall retroact to the
time of the child's birth.
Art. 181. The legitimation of children who died before the
celebration of the marriage shall benefit their descendants.
Art. 182. Legitimation may be impugned only by those who
are prejudiced in their rights, within five years from the time
their cause of action accrues.
Legitimated children
1.
2.
3.
Right to use the surname of the motherthe

illegitimate child shall also be under the parental
authority of the mother;
Right to support;
Right to his legitime-the legitime of each IC shall
consist of of the legitime of a legitimate chid.
Q: What if the father gives his permission to the child to use

his surname? Can that be?
A: The provision has been construed to be mandatory
because of the use by law of the word shall. The law says
that an IC shall not only be under the parental authority of
the mother but shall also use the surname of the mother.
The Civil Register General issues a circular stating that even if
the illegitimate father agrees that his IC could use his
surname, it will not be valid unless it is JUDICIALLY
APPROVED. So, the IC cannot use the surname of the father
unless authorized by the court.
Dean Aigada: This is a restrictive interpretation of the
provision of the NCC. What is wrong is that without the
fathers permission, his name is used or adopted by his IC. But
if the father voluntarily allows his surname to be used, what
is wrong with that.
Q: Who may be legitimated?

A: Only natural children can be legitimated. This is the same
rule as that in the CC.
Q: Who is a natural child?
A: A natural child is a child who, at the time of its inception,
the parents are not barred by any impediment to contract
marriage.
Q: To what does the impediment refer?
A:It refers to any form of disqualification and obstacle
for the parents to marry each other. Both parents must

be free to contract marriage.
NOTE: The absence of impediment should exist at the
time of conception of the child.
Period of conception
The period of conception is the first 120 days of the 300 days
immediately preceding the birth of the child. The
requirement of absence of any impediment applies only
during the period of conception.
118

If during the first 120 days of the 300 days immediately

preceding the birth of the child, there was no impediment
between the parents to marry each other, the child may be
legitimated; even if after its inception or birth, an
impediment exists.
Q: What if Banny brought an action for declaration of nullity

of marriage, on the ground that Max is psychologically
incapacitated to comply with the essential marital
obligations of marriage and it was granted, what is the
status of Vally?
A: He is still legitimated.
In other words, should an impediment exist between the

parents to marry each other after the period of conception, it
will not alter the status of the child as natural.
Q: What are the requisites or conditions for legitimation?
A:
1.
2.
3.
The child must be natural child;

Between the parents, there is no legal impediment
to marry each other at the time of the childs
conception; and
A subsequent valid marriage.
Under the NCC, it requires that the child must be

acknowledged or recognized by both parents. This requisite
has been dispensed with by the FC.
Q: Max and Banny had a child named Vally. At the time
Vally was conceived, Max and Banny were capacitated to
marry each other. When Wally was 13 years old, Max got
married to Ceddie. Out of this marriage, Gabby and Titus
were born. However, Max marriage to Ceddie did not last
long because Ceddie past away while giving birth to Titus.
As a widower, Max fell in love with Nerry. They got married
but soon enough, Nerry died. Their marriage had no issue.
After 20 years, Max met Banny again. They now got married
at last. What is the status of Vally.
Q: When should the subsequent marriage between the
parents of Vally take place.
A: As to the time the subsequent marriage should take place,
the law does not say. The fact that Max contracted several
marriages before his marriage to Banny is immaterial.
At the time Vally was conceived, there must have been
existing impediment for Max to marry Banny. Since the
problem clearly stat6es that there was no impediment, Vally
is a legitimated child.
Q: Suppose2 years after the marriage between Max and
Banny, Banny brings an action for annulment which was
granted by the court? What happens to boy Vally.
A: Annulment does not affect the status of the legitimated
child.
Q: Doesnt Art. 54 apply here?

A:No, because Vally was not begotten of the Void marriage. If
such was the case, Vallywill become legitimate pursuant to
Art. 54. But as a matter of fact, Vally was conceived and born
outside of wedlock.
The reason is that, when Vally was born, Max and Banny were
not yet married. Art. 54 applies only to children born of a void
marriage.
Q: What are the rights of legitimated children?
A: Same as legitimate children.
Under Art. 182, the legitimation of a child may be impugned
by those who will be prejudiced in their rights by the
legitimationthe heirs.
Q: What are the grounds for impugning legitimation?
A:
1.
2.
3.
That the child is not a natural child;

That the subsequent marriage is void;
That the child is not the child of the alleged parents.
Legitimation may be impugned within 5 years from the time

the cause of action accrues. The cause of action accrues at
the moment of death of the parent.
According to Dean Aligada, it is wrong to say that the cause of
action accrues at the death of the putative father because
putative means supposed. Here, there is certainty that
the H is the father.
ADOPTION
Adoption is always JUDICIAL. The proceedings are always
proceedings in rem for which publication is necessary.
Art. 183. A person of age and in possession of full civil
capacity and legal rights may adopt, provided he is in a
position to support and care for his children, legitimate or
illegitimate, in keeping with the means of the family.
Only minors may be adopted, except in the cases where the
adoption of a person of majority age is allowed in this Title
119

In addition, the adopter must be atleast sixteen years older

than the person to be adopted, unless the adopter is the
parent by nature of the adopted, or is the spouse of the
legitimate parent of the person to be adopted.
Q: Who may adopt?
(a) A former Filipino citizen who seeks to adopt a relative by

consanguinity;
(b) One who seeks to adopt the legitimate child of his or her
Filipino spouse; or
(c) One who is married to a Filipino cvitizen and seeks to
adopt jointly with his or her spouse a relative by
consanguinity of the latter.
A: Those persons:
a.
b.
c.
Of age 18 years old;

In possession of full civil capacity and legal rights;
In position to support and care for his legitimate or
illegitimate children, in keeping with the means of
the family.
Aliens not included in the foregoing exceptions may adopt

Filipino children in accordance with the rules on intercountry adoption as may be provided by law.
Q: Who cannot adopt?
A:
The adopter must be at least 16 years older than the person

to be adopted except:
a.
b.
If the adopted is the parent by nature of the person

to be adopted; or
If the adopter is the spouse of the legitimate parent
of the person to be adopted.
1.
2.
3.
Guardian with respect to the ward prior to the

approval of the final accounts rendered upon the
termination of their guardianship relation;
Any person who has been convicted of a crime
involving moral turpitude;
Note that this is regardless of the pemalty.
Alens
RATIO: To approximate natural filiation.

XPN:
Q: Who may be adopted?
(a) A former Filipino citizen who seeks to
adopt a relative by consanguinity;
(b) One who seeks to adopt the legitimate
child of his or her Filipino spouse; or
(c) One who is married to a Filipino cvitizen
and seeks to adopt jointly with his or her
spouse a relative by consanguinity of the
latter
A: Only minors except in cases where the adoption of a

person of majority age is allowed by law under Art. 187 of the
FC:
1.
2.
3.
If the person to be adopted is a child by nature of

the adopter;
If the child by nature of the adopters spouse; or
Prior to the adoption, said person had been
consistently considered and treated by the adopter
as his or her own child during the minority.
Q: May a priest adopt?
Par. B
Only the alien is seeking to
adopt a legitimate child of
the Filipino spouse
A: Under the FC, yes provided he possesses all the

qualifications required by law for a person to be able to
adopt.
One of the spouses must be a Filipino citizen thus, if the latter

is already a naturalized citizen, they cannot adopt a relative
by consanguinity.
If you have legitimate or adopted children, you can still adopt

provided you are qualified such as you possess the financial
capacity to support and care for your children.
Q: Can you adopt your grandmother? Definitely the age

difference is more than 16. So, she calls you mama or papa.
Can this be done?
Art. 184. The following persons may not adopt:
A: No. when it comes to the age difference, the law says that
the adopter must be at least 16 years older than the adopted.
This precludes adoption of a grandparent or of the adopted
being an older party.
(1) The guardian with respect to the ward prior to the

approval of the final accounts rendered upon the
termination of their guardianship relation;
(2) Any person who has been convicted of a crime involving
moral turpitude;
(3) An alien, except:
Par. C
This refers to a joint adoption
of a relative of a Filipino
spouse by consanguinity.
Q: Are the prohibitions provided by law on who cannot

adopt an absolute rule?
A: No.
120

1.
2.
the prohibition applies as long as there is no court

approval of the final accounting to be rendered by
the guardian;
ABSOLUTE;
Q: If the convicted party is absolutely pardoned,
doesnt that erase the effects of conviction as if
there is no conviction at all?
A: The law doesnt distinguish. It simply provides
that as long as there has been a conviction of a crime
involving moral turpitude the prohibition applies. So,
even if the person is pardoned, the disqualification
remains because the basis of the disqualification is
the conviction.
3.
As regards the alien- if the alien doesnt fall under

any of the exceptions, the prohibition is not yet
absolute because he can still adopt under the law on
inter-country adoption (R.A. 8043).
Republic v. CA and Bobiles
Bobiles filed a petition to adopt under PD 603. Here the law

doesnt require joint adoption, provided that the spouse not
adopting gives his or her consent to the adoption. During the
pendency of the proceedings, the FC took effect, requiring
that the H and W must jointly adopt. OSG questioned the
validity of the judgment of the TC which granted the petition
particularly on the ground that the FC required joint adoption
by H and W.
SC ruled that upon the filing of the petition, the rights of the
parties are already vested. It upheld the validity of the decree
of adoption.
At the time the petition was filed, the petitioner complied
with all the requirements prescribed by the law then in force
and the right to file the petition to adopt after compliance
with all such requirements vested with the petitioner.
Enactment of any subsequent law, particularly if remedial in
character should be liberally construed and not strictly as to
prejudice the interest and welfare of the child subject of
adoption.
Republic v. CA and Hughes
The H was an American and the wife was a Filipino citizen
who subsequently became an American citizen. Both of them
filed a petition to adopt 3 relatives by consanguinity of the
wife.
SC ruled that neither of one of them is qualified to adopt. The
wife cannot adopt the nephews and nieces. Since he is now a
foreigner, she cant adopt collateral relatives although they
be related to her by consanguinity. The H also cannto adopt
because he doesnt fall under any of the exceptions. Since the

wife is now an American citizen, both of them are now aliens.
The wife can qualify pursuant to par. 3 (a). The problem in
her case lies, instead, with Art. 185 of E.O 209, expressing as
follows:
Art. 185. Husband and wife must jointly adopt, except in the
following cases:
(1) When one spouse seeks to adopt his own illegitimate
child; or
(2) When one spouse seeks to adopt the legitimate child of
the other.
In this case, the W cannot adopt alone, since Art. 185 requites
a joint adoption by the H and the W, a condition that must be
read along together with Art. 184. Note that none of the
exceptions in Art. 185 applies.
Art. 186. In case husband and wife jointly adopt or one
spouse adopts the legitimate child of the other, joint
parental authority shall be exercised by the spouses in
accordance with this Code.
Q: What are the cases wherein Joint parental authority shall
be exercised by the spouses?
A:
1.
2.
In case H and W jointly adopt; or

One spouse adopts the legitimate child of the other.
Art. 187. The following may not be adopted:

(1) A person of legal age, unless he or she is a child by
nature of the adopter or his or her spouse, or prior to the
adoption, said person had been consistently considered and
treated by the adopter as his or her own child during
minority.
(2) An alien with whose government the Republic of the
Philippines has no diplomatic relations; and
(3) A person who has already been adopted unless such
adoption has been previously revoked or rescinded.
Art. 188. The written consent of the following to the
adoption shall be necessary:
(1) The person to be adopted, if ten years of age or over;
(2) The parents by nature of the child, the legal guardian, or
the proper governmental instrumentality;
(3) The legitimate and adopted childrem, ten years of age or
over, of the adopting parent or parents;
(4) The illegitimate children, ten years of age or over, of the
adopting parent, if living with said parent and the latter's
spouse, if any; and
121

(5) The spouse, if any, of the person adopting or to be

adopted.
Art. 189. Adoption shall have the following effects:
(1) For civil purposes, the adopted child shall be deemed to
be a legitimate child of the adopters and both shall acquire
the reciprocal rights and obligations arising from the
relationship of parent and child, including the right of the
adopted to use the surname of the adopters;
(2) The parental authority of the parents by nature over the
adopted shall terminate and be vested in the adopters,
except that if the adopter is the spouse of the parent by
nature of the adopted, parental authority over the adopted
shall be exercised jointly by both spouses;
(3) The adopted shall remain an intestate heir of his parents
and other blood relatives.
EFFECTS OF ADOPTION
A: A propositus is the descendant who acquires property

from an ascendant, brother, or sister by gratuitous title and
transfer the gratuitous property to the other ascendant by
operation of law.
No to both. The reason is that the relation created by the
adoption is only between the adopter and the adopted.
Q: May an adopted child be a reserve?
A: A reserve is a relative of the propositus within the third
degree and for whom the reservable property is reserved.
No, because whatever relationship is established between
the adopter and the adopted is purely personal between
them.
The relatives of the adopted do not become the relatives of
the adopter and vice versa.
Tamarco v. CA
A 10 year old boy by the name of Adelberto Bondoc shot one
named Jennifer Tamarco with his air riffle. Before the
incident, a petition to adopt Bondoc was already filed in
court. During the pendency of the criminal case, the adoption
was granted.
The parent of Tamarco brought a case against the natural
parents of Bondoc. Bondocs parents alleged that the
adopting parent should be impleaded. According to them, the
effects of the decree of adoption retroact to the time of the
filing of the petition to adopt and because of this the
adopting parents should be held liable for the tortuous act of
the adopted.
The SC denied the contention of Bondocs parent. It held that
it is basic that when the incident happened, Bondoc was still
within the custody of his natural parent and as such, they
should be held liable for the tortuous act of Bondoc. The
adopting parent should not be held liable for the tortuous act
committed before the adoption.
Q: What is the effect of the FC on PD 603 with respect to
adoption?
A: It repealed the substantive provisions of PD 603.
All provisions which are procedural are all retained. There is
no provision on procedure under the FC.
What are the rights of an adopted child
Q: Is the adopted child given the same rights as a legitimate
child? Under the law on succession may an adopted child be
a propositus?
Q: Can an adopted child succeed by right of representation

to the extent of the legitime of the adopter?
A: No.
In the case of right of representation, the one representing is
not succeeding the person being represented but the person
whom the one being represented should have succeeded.
Remember that there is no relation between the adopted and
the adopters parents.
Q: How many can a person adopt?
A: No limit as long as the person adopting has the means to
support and care for not only his legitimate and illegitimate
children but also the person he proposes to adopt.
Q: If a Filipino adopts an alien, will the latter, during
minority follow the citizenship of the former? In other
words, does the adoption confer on the adopted child the
citizenship of the adopter?
A: No.
Cheng Ling v. Galang
The rights of a legitimate child given to an adopted child as
stated in Art. 189, do not include the acquisition of the
citizenship of the adopter. A person cannot acquire
citizenship through adoption because citizenship involves the
exercise of political rights. You cannot grant citizenship to an
alien through adoption.
Citizenship involves political rights. Citizenship can be
conferred only by the state and cannot be granted to an alien
122

through adoption which creates only a relationship between

the adopter and the adopted.
Art. 190. Legal or intestate succession to the estate of the
adopted shall be governed by the following rules:
(1) Legitimate and illegitimate children and descendants and

the surviving spouse of the adopted shall inherit from the
adopted, in accordance with the ordinary rules of legal or
intestate succession;
(2) When the parent, legitimate or illegitimate, or the
legitimate ascendants of the adopted concur with the
adopters, they shall divide the entire estate, one-half to be
inherited by the parents or ascendants and the other half,
by the adopters;
(3) When the surviving spouse or the illegitimate children of
the adopted concur with the adopters, they shall divide the
entire estate in equal shares, one-half to be inherited by the
spouse or the illegitimate children of the adopted and the
other half, by the adopters.
(4) When the adopters concur with the illegitimate children
and the surviving spouse of the adopted, they shall divide
the entire estate in equal shares, one-third to be inherited
by the illegitimate children, one-third by the surviving
spouse, and one-third by the adopters;
(5) When only the adopters survive, they shall inherit the
entire estate; and
(6) When only collateral blood relatives of the adopted
survive, then the ordinary rules of legal or intestate
succession shall apply.
Under the CC, an adopter cannot succeed his adopted child.
This was an absolute rule. If the adopted child dies, it will be
his natural parents will succeed the adopted.
Under PD 603-the provisions of the CC were reproduced but
in a modified form. There was no ABSOLUTE
DISQUALIFICATION. The adopting parent was disqualified
only as long as the adopted is survived by one or both of his
natural parents. If upon the death of the adopted he has no
more living parents, the adopter can succeed the adopted.
If the adopter is survived by the adopted child, concurred by

the formers parents, the adopted does not succeed as a LC.
His share is equal only to the share of an acknowledged
natural child; he does not succeed as a LC. In this case, the
legitimate parents of the adopter are not excluded.
Under FC-the adopted child will succeed to the exclusion of
the legitimate parents of the adopter.
Q: May an adopted child be preterited?
A:
Acain v. IAC
Even adopted children can be subject of Preterition. This is
the only case where this is discussed by the court.
Q: What is the effect of preterition?
A: Total annulment of the institution of heirs.
Q: As to its effect on the kind of succession that takes place,
it will result in what kind of succession?
A: If there are no legacies or devices in the will, it will result in
total intestacy. If there are legacies or devices, it will result in
partial intestacy.
RESCISSION OF ADOPTION
Under the CCthere was a difference between annulment
and rescission.
Under PD 603there was a difference also.
Under the FCthere was no difference or distinction.
Q: Who may bring an action to rescind the adoption?
A:
1.
Under the FCit changed the provisions of PD 603 on this

matter. It allows the adopter to succeed the adopted
together with the natural parents. They will share equally.
Under the CCThe adopted child has the same rights as a
legitimate child. The adopted acquires the same successional
rights as a LC, meaning that they share equally. But the
adopted does not absolutely acquire the same successional
rights as a LC; because it applies, provided the adopted child
concurs with LC of the adopter. If that happens, the adopted
child shall have the same share as the LC (equal division also).
Also, in this case, the legitimate parents of the adopter are
excluded.
If the adopted is a minor or otherwise incapacitated,

the petition may be filed by:
a.
b.
2.
3.
Any person authorized by the court; or

The proper government instrumentality,
acting on behalf of the child on the same
grounds prescribed for loss or suspension of
parental authority.
If the adopted is already 18 years old or more, he or
she may petition the court for the rescission on the
same grounds prescribed for disinheriting as
ascendant;
The adopter may ask for the judicial rescission of the
adoption:
123

a.
b.
c.
If the adopted has committed any act

constituting a ground for disinheriting a
descendant;
When the adopted has abandoned the
home of the adopters during minority for at
least 1 year; or
When the adopted has, by other acts,
definitely repudiated the adoption.
Art. 191. If the adopted is a minor or otherwise

incapacitated, the adoption may be judicially rescinded
upon petition of any person authorized by the court or
proper government instrumentality acting on his behalf, on
the same grounds prescribed for loss or suspension of
parental authority. If the adopted is at least eighteen years
of age, he may petition for judicial rescission of the
adoption on the same grounds prescribed for disinheriting
an ascendant.
Art. 192. The adopters may petition the court for the judicial
rescission of the adoption in any of the following cases:
(1) If the adopted has committed any act constituting a
ground for disinheriting a descendant; or
(2) When the adopted has abandoned the home of the
adopters during minority for at least one year, or, by some
other acts, has definitely repudiated the adoption.
Art. 193. If the adopted minor has not reached the age of
majority at the time of the judicial rescission of the
adoption, the court in the same proceeding shall reinstate
the parental authority of the parents by nature, unless the
latter are disqualified or incapacitated, in which case the
court shall appoint a guardian over the person and property
of the minor.
If the adopted person is physically or mentally handicapped,
the court shall appoint in the same proceeding a guardian
over his person or property or both.
Judicial rescission of the adoption shall extinguish all
reciprocal rights and obligations between the adopters and
the adopted arising from the relationship of parent and
child. The adopted shall likewise lose the right to use the
surnames of the adopters and shall resume his or her
surname prior to the adoption.
The court shall accordingly order the amendment of the
records in the proper registries.
SUPPORT
Art. 194. Support comprises everything indispensable for
sustenance, dwelling, clothing, medical attendance,
education and transportation, in keeping with the financial
capacity of the family.
The education of the person entitled to be supported

referred to in the preceding paragraph shall include his
schooling or training for some profession, trade or vocation,
even beyond the age of majority. Transportation shall
include expenses in going to and from school, or to and from
place of work.
Q: Who are required to support each other?
A:
Art. 195. Subject to the provisions of the succeeding articles,
the following are obliged to support each other to the whole
extent set forth in the preceding article:
(1) The spouses;
(2) Legitimate ascendants and descendants;
(3) Parents and their legitimate children and the legitimate
and illegitimate children of the latter;
(4) Parents and their illegitimate children and the legitimate
and illegitimate children of the latter; and
(5) Legitimate brothers and sisters, whether of the full or
half-blood.
Art. 196. Brothers and sisters not legitimately related,
whether of the full or half-blood, are likewise bound to
support each other to the full extent set forth in Article 194,
except only when the need for support of the brother or
sister, being of age, is due to a cause imputable to the
claimant's fault or negligence.
Art. 197. For the support of legitimate ascendants,
descendants, whether legitimate or illegitimate, and
brothers and sisters, whether legitimately or illegitimately
related, only the separate property of the person obliged to
give support shall be answerable provided that in case the
obligor has no separate property, the absolute community
or the conjugal partnership, if financially capable, shall
advance the support, which shall be deducted from the
share of the spouse obliged upon the liquidation of the
absolute community or of the conjugal partnership.
Q: What are the properties liable for support?
A:
Art. 198. During the proceedings for legal separation or for
annulment of marriage, and for declaration of nullity of
marriage, the spouses and their children shall be supported
from the properties of the absolute community or the
conjugal partnership. After final judgment granting the
petition the obligation of mutual support between the
spouses ceases. However, in case of legal separation, the
court may order that the guilty spouse shall give support to
the innocent one, specifying the terms of such order.
124

Order of Support
Art. 199. Whenever two or more persons are obliged to give
support, the liability shall devolve upon the following
persons in the order herein provided:
(1) The spouse;
(2) The descendants in the nearest degree;
(3) The ascendants in the nearest degree;
(4) The brothers and sisters.
support. The latter alternative cannot be availed of in case

there is a moral or legal obstacle thereto.
Art. 205. The right to receive support under this Title as well
as any money or property obtained as such support shall not
be levied upon an attachment or execution.
Q: When may support be given by a stranger and what are
the rights of such stranger?
A:
Art. 200. When the obligation to give support falls upon two
or more persons, the payment of the same shall be divided
between them in proportion to the resources of each.
However, in case of urgent need and by special
circumstances, the judge may order only one of them to
furnish the support provisionally, without prejudice to his
right to claim from the other obligors the share due from
them.
When two or more recipients at the same time claim
support from one and the same person legally obliged to
give it, should the latter not have sufficient means to satisfy
all claims, the order established in the preceding article shall
be followed, unless the concurrent obligees should be the
spouse and a child subject to parental authority, in which
case the child shall be preferred.
Art. 201. The amount of support, in the cases referred to in
Articles 195 to 196, shall be in proportion to the resources
or means of the giver and to the necessities of the recipient.
Art. 202. Support in the cases referred to in the preceding
article shall be reduced or increased proportionately,
according to the reduction or increase of the necessities of
the recipient and the resources or means of the person
obliged to furnish the same.
Art. 206. When, without the knowledge of the person

obliged to give support, it is given by a stranger, the latter
shall have a right to claim the same from the former, unless
it appears that he gave it without intention of being
reimbursed.
Art. 207. When the person obliged to support another
unjustly refuses or fails to give support when urgently
needed by the latter, any third person may furnish support
to the needy individual, with right of reimbursement from
the person obliged to give support. This Article shall apply
particularly when the father or mother of a child under the
age of majority unjustly refuses to support or fails to give
support to the child whenurgently needed.
Art. 208. In case of contractual support or that given by will,
the excess in amount beyond that required for legal support
shall be subject to levy on attachment or execution.
Furthermore, contractual support shall be subject to
adjustment whenever modification is necessary due to
changes in circumstanced manifestly beyond the
contemplation of the parties.
Q: What does support include or comprise?
A:
Art. 203. The obligation to give support shall be demandable

from the time the person who has a right to receive the
same needs it for maintenance, but it shall not be paid
except from the date of judicial or extra-judicial demand.
Support pendente lite (See Rule 61) may be claimed in
accordance with the Rules of Court.
Payment shall be made within the first five days of each
corresponding month. When the recipient dies, his heirs
shall not be obliged to return what he has received in
advance.
Art. 204. The person obliged to give support shall have the
option to fulfill the obligation either by paying the
allowance fixed, or by receiving and maintaining in the
family dwelling the person who has a right to receive
1.
2.
3.
4.
5.
Natural
Civil
Legal
Judicial
Voluntary or by agreement:
a. Inter vivos
b. Mortis cause
Q: Explain the rule as regards the amount of support.

A: It must be in proportion to:
a.
b.
Means of the obligor; and

Needs of the obligee
125

A judgment granting support is never final. The court may

modify such depending on the means of the obligor or the
needs of the obligee.
Q: State the different options in giving support.
Art. 213. In case of separation of the parents, parental

authority shall be exercised by the parent designated by the
Court. The Court shall take into account all relevant
considerations, especially the choice of the child over seven
years of age, unless the parent chosen is unfit.
A:
1.
2.
Allowance;
Maintenance of the obligee in the obligors house or
in the family dwelling except when there is a moral
or legal obstance.
Support is exempted from attachment or execution that is

future support. Waiver of future support is not valid.
Support in arrears can be the subject of execution or
attachment. Moreso, it can be wauved.
If support is future, it cannot be the subject of compensation.
But if it is in arrears, it can be the subject of compensation,
provided that it is at the instance of the obligee.
Support will continue as long as it is needed.
The mere fact that the obligee is employed will not terminate
support as long as his employment is not sufficient to provide
for his needs.
PARENTAL AUTHORITY
Art. 209. Pursuant to the natural right and duty of parents
over the person and property of their unemancipated
children, parental authority and responsibility shall include
the caring for and rearing of such children for civic
consciousness and efficiency and the development of their
moral, mental and physical character and well-being.
Art. 210. Parental authority and responsibility may not be
renounced or transferred except in the cases authorized by
law.
Art. 211. The father and the mother shall jointly exercise
parental authority over the persons of their common
children. In case of disagreement, the father's decision shall
prevail, unless there is a judicial order to the contrary.
Children shall always observe respect and reverence toward
their parents and are obliged to obey them as long as the
children are under parental authority.
Art. 212. In case of absence or death of either parent, the
parent present shall continue exercising parental authority.
The remarriage of the surviving parent shall not affect the
parental authority over children, unless the court appoints
another person to be the guardian of the person or property
of the children.
No child under seven years of age shall be separated from

the mother, unless the court finds compelling reasons to
order otherwise.
Art. 214. In case of death, absence or unsuitability of the
parents, substitute parental authority shall be exercised by
the surviving grandparent. In case several survive, the one
designated by the court, taking into account the same
consideration mentioned in the preceding article, shall
exercise the authority.
Art. 215. No descendant shall be compelled, in a criminal
case to testify against his parents and grandparents, except
when such testimony is indispensable in a crime against the
descendant or by one parent against the other.
Art. 216. In default of parents or a judicially appointed
guardian, the following persons shall exercise substitute
parental authority over the child in the order indicated:
(1) The surviving grandparent, as provided in Art. 214;
Art. 214. In case of death, absence or unsuitability of the
parents, substitute parental authority shall be exercised by
the surviving grandparent. In case several survive, the one
designated by the court, taking into account the same
consideration mentioned in the preceding article, shall
exercise the authority.
(2) The oldest brother or sister, over twenty one years of
age, unless fit or disqualified; and
(3) The child's actual custodian, over twenty one years of
age, unless unfit or disqualified.
Whenever the appointment of a judicial guardian over the
property of the child becomes necessary, the same order of
preference shall be observed.
Art. 217. In case of foundlings, abandoned, neglected or
abused children and other children similarly situated,
parental authority shall be entrusted in summary judicial
proceedings to heads of children's homed, orphanages and
similar institutions duly accredited by the proper
government agency.
Art. 218. The school, its administrators and teachers, or the
individual, entity or institution engaged in child care shall
have special parental authority and responsibility over the
minor child while under their supervision, instruction or
custody.
126

Authority and responsibility shall apply to all authorized

activities whether inside or outside the premises of the
school, entity or institution.
Art. 222. The courts may appoint a guardian of the child's

property, or a guardian ad litem when the best interests of
the child so require.
Art. 219. Those given the authority and responsibility under

the preceding Article shall be principally and solidarily liable
for damages caused by the acts or omissions of the
unemancipated minor. The parents, judicial guardians or the
persons exercising substitute parental authority over said
minor shall be subsidiarily liable.
Art. 223. The parents or, in their absence or incapacity, the

individual, entity or institution exercising parental authority,
may petition the proper court of the place where the child
resides, for an order providing for disciplinary measures
over the child. The child shall be entitled to the assistance of
counsel, either of his choice or appointed by the court, and a
summary hearing shall be conducted wherein the petitioner
and the child shall be heard. However, if in the same
proceeding the court finds the petitioner at fault,
irrespective of the merits of the petition, or when the
circumstances so warrant, the court may also order the
deprivation or suspension of parental authority or adopt
such other measures as it may deem just and proper.
The respective liabilities of those referred to in the

preceding paragraph shall not apply if it is proved that they
exercised the proper diligence required under the particular
circumstances.
All other cases not covered by this and the preceding
articles shall be governed by the provisions of the Civil Code
on quasi-delicts.
Art. 220. The parents and those exercising parental
authority shall have with respect to their
unemancipated children or wars the following rights and
duties:
(1) To keep them in their company, to support, educate and
instruct them by right precept and good example, and to
provide for their upbringing in keeping with their means;
(2) To give them love and affection, advice and counsel,
companionship and understanding;
(3) To provide them with moral and spiritual guidance,
inculcate in them honesty, integrity, self-discipline, selfreliance, industry and thrift, stimulate their interest in civic
affairs, and inspire in them compliance with the duties of
citizenship;
(4) To enhance, protect, preserve and maintain their
physical and mental health at all times;
(5) To furnish them with good and wholesome educational
materials, supervise their activities, recreation and
association with others, protect them from bad company,
and prevent them from acquiring habits detrimental to their
health, studies and morals;
(6) To represent them in all matters affecting their interests;
(7) To demand from them respect and obedience;
(8) To impose discipline on them as may be required under
the circumstances; and
(9) To perform such other duties as are imposed by law
upon parents and guardians.
Art. 221. Parents and other persons exercising parental
authority shall be civilly liable for the injuries and damages
caused by the acts or omissions of their unemancipated
children living in their company and under their parental
authority subject to the appropriate defenses provided by
law.
Art. 224. The measures referred to in the preceding article

may include the commitment of the child for not more than
thirty days in entities or institutions engaged in child care or
in children's homes duly accredited by the proper
government agency.
The parent exercising parental authority shall not interfere
with the care of the child whenever committed but shall
provide for his support. Upon proper petition or at its own
instance, the court may terminate the commitment of the
child whenever just and proper.
Causes for termination of Parental Authority
Art. 225. The father and the mother shall, jointly exercise
legal guardianship over the property of their unemacipated
common child without the necessity of a court appointment.
In case of disagreement, the father's decision shall prevail,
unless there is a judicial order to the contrary.
Where the market value of the property or the annual
income of the child exceeds P50,000, the parent concerned
shall be required to furnish a bond in such amount as the
court may determine, but not less than 10% ofthe value of
the property or annual income, to guarantee the
performance of the obligations prescribed for general
guardians.
A verified petition for approval of the bond shall be filed in
the proper court of the place where the child resides, or, if
the child resides in a foreign country, in the proper court of
the place where the property or any part thereof is situated.
The petition shall be docketed as a summary special
proceeding in which all incidents and issues regarding the
performance of the obligations referred to in the second
paragraph of this Article shall be heard and resolved.
The ordinary rules on guardianship shall be merely
suppletory except when the child is under substitute
127

parental authority, or the guardian is a stranger, or a parent

has remarried, in which case the ordinary rules on
guardianship shall apply.
Art. 226. The property of the unemancipated child earned or
acquired with his work or industry or by onerous or
gratuitous title shall belong to the child in ownership and
shall be devoted exclusively to the latter's support and
education, unless the title or transfer provides otherwise.
The right of the parents over the fruits and income of the
child's property shall be limited primarily to the child's
support and secondarily to the collective daily needs of the
family.
Art. 227. If the parents entrust the management or
administration of any of their properties to an
unemancipated child, the net proceeds of such property
shall belong to the owner. The child shall be given a
reasonable monthly allowance in an amount not less than
that which the owner would have paid if the administrator
were a stranger, unless the owner, grants the entire
proceeds to the child. In any case, the proceeds thus given in
whole or in part shall not be charged to the child's legitime.
(4) Subject the child or allows him to be subjected to acts of

lasciviousness.
The grounds enumerated above are deemed to include
cases which have resulted from culpable negligence of the
parent or the person exercising parental authority.
If the degree of seriousness so warrants, or the welfare of
the child so demands, the court shall deprive the guilty
party of parental authority or adopt such other measures as
may be proper under the circumstances.
The suspension or deprivation may be revoked and the
parental authority revived in a case filed for the purpose or
in the same proceeding if the court finds that the cause
therefor has ceased and will not be repeated.
Art. 232. If the person exercising parental authority has
subjected the child or allowed him to be subjected to sexual
abuse, such person shall be permanently deprived by the
court of such authority.
Art. 228. Parental authority terminates permanently:
This refers to a permanent loss of parental authority if the

person exercising parental authority has subjected the child
or allowed him to be subjected to sexual abuse.
(1) Upon the death of the parents;

(2) Upon the death of the child;
(3) Upon emancipation of the child.
Art. 233. The person exercising substitute parental authority

shall have the same authority over the person of the child as
the parents.
Art. 229. Unless subsequently revived by a final judgment,

parental authority also terminates:
In no case shall the school administrator, teacher or

individual engaged in child care exercising special parental
authority, inflict corporal punishment upon the child.
(1) Upon adoption of the child;

(2) Upon appointment of a general guardian;
(3) Upon judicial declaration of abandonment of the child in
a case filed for the purpose;
(4) Upon final judgment of a competent court divesting the
party concerned of parental authority; or
(5) Upon judicial declaration of absence or incapacity of the
person exercising parental authority.
IMPORTANT POINTS:
1.
2.
3.
Who exercises parental authority?

Who exercises subsidiary parental authority?
Special parental authority and substitute parental
authority.
Q: Explain the concept of Filial Privilege?

Suspension of parental authority
Art. 230. Parental authority is suspended upon conviction of
the parent or the person exercising the same of a crime
which carries with it the penalty of civil interdiction. The
authority is automatically reinstated upon service of the
penalty or upon pardon or amnesty of the offender.
Art. 231. The court in an action filed for the purpose or in a
related case may also suspend parental authority if the
parent or the person exercising the same;
(1) Treats the child with excessive harshness or cruelty;
(2) Gives the child corrupting orders, counsel or example;
(3) Compels the child to beg, or
A: No person can be compelled to testify in a criminal case

against parents and grandparents except in case it is
indispensable in a crime against the descendants or by one
parent against the other.
Q: Discuss the liabilities of parents for tortuous acts of their
children.
A: This refers to unemancipated children living in their
custody/company and under their parental authority. the
exception is in case of the exercise by the parent concerned
of the diligence of a good father of a family.
EMANCIPATION AND AGE OF MAJORITY
128

Art. 234. Emancipation takes place by the attainment of

majority. Unless otherwise provided, majority commences
at the age of eighteen years. (as amended by RA 6809)
Art. 236. Emancipation shall terminate parental authority
over the person and property of the child who shall then be
qualified and responsible for all acts of civil life, save the
exceptions established by existing laws in special cases.
Contracting marriage shall require parental consent until the
age of 21.
Nothing in this Code shall be construed to derogate from the
duty or responsibility of parents and guardians for children
and wards below 21 years of age mentioned in the second
and third paragraphs of Article 2180 of the Civil Code (as
amended by RA 6809)
NOTES
129

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NOTES ON PERSONS AND FAMILY RELATIONS

Kenneth and King C. Hizon _____________________________________________________________________________________________________________

UNIVERSITY OF SANTO TOMAS

PERSONS AND FAMILY RELATIONS

CHAPTER 1: Effect and Application of Laws

Q: What is Civil Code?

A: In general, according to St. Augustine, Law may be

Q: What are Special Laws ?

Q: What was the forerunner of the New Civil Code (NCC)?

NOTE: Law is not the same with EQUITY.

HISTORY OF THE CIVIL CODE IN THE PHILIPPINES

Q: What is the distinction between Law and Equity?

It took effect on either December 7, 1889 (Mijares v. Neri) or

In so far as Civil Code is concerned

Facultad de Derecho Civil

UNIVERSITY OF SANTO TOMAS

NOTES ON PERSONS AND FAMILY RELATIONS

Q: Which of the 2 dates should be followed?

A: Both dates are supported by jurisprudence but the

BOOKS UNDER THE NCC

Q: When did it cease to take effect?

DECEMBER 7, 1889- effectivity of the Old Spanish Civil

Q: What is the basis for saying that it took effect on August

Q: How did the NCC became a law?

Decisions of the Supreme Court

LARA v.DEL ROSARIO

Q: What are the sources of the New Civil Code?

Spanish Civil Code of 1889 -many of the provisions

This is 20 days before December 7

Facultad de Derecho Civil

UNIVERSITY OF SANTO TOMAS

NOTES ON PERSONS AND FAMILY RELATIONS

not a sine qua non requirement for the effectivity dates.

Before the Tanada Case

On the date it is expressly provided to take effect;

Hence, publication is indispensible for effectivity of laws. All

TAADA et al. v. TUVERA et al.

This case was decided during Martial Law period.

In light of other pertinent laws, Article 2 does not preclude

The clear object of the above-quoted provision is to give the

Facultad de Derecho Civil

UNIVERSITY OF SANTO TOMAS

NOTES ON PERSONS AND FAMILY RELATIONS

decrees have actually been promulgated, much less a definite

REYNALDO V. UMALI v. HON. JESUS P. ESTANISLAO and

EXCEPTIONS TO THE REQUIREMENT OF PUBLICATION

Petitioners thus filed this petition seeking to compel

Regulations which are merely interpretative;

ISSUE: Whether or not RA 7167 took effect upon its approval

Note: Implementing Rules are ought to be published.

RENE B. GOROSPE, et al., v. COMISSIONER OF INTERNAL

The SC, invoking the 1986 decision in Tanada v. Tuvera, held

Facultad de Derecho Civil

UNIVERSITY OF SANTO TOMAS

NOTES ON PERSONS AND FAMILY RELATIONS

GR: Laws shall take effect after 15 days following the

A: Article 2 covers two kinds of laws:

Laws in general-after 15 days following the

DOCTRINE OF OPERATIVE FACT

What is meant by law of public nature or general

Q: What is the Doctrine of Operative Fact?

Petitioner then argued that there should be no distinction

The clause unless it is otherwise provided in ART.2 refers to

This case was decided during Martial Law period.