Persons and Fam ily Relations l Atty.
Randi Torregosa l Reviewer by Tanya Ibaez
RIGHTS AND OBLIGATIONS BETWEEN
HUSBAND AND WIFE
Essential marital obligations :
1. The husband and wife are obliged to live together,
observe mutual love, respect and fidelity, and render
mutual help and support.
2. The husband and wife shall fix the family domicile. In
case of disagreement, the court shall decide.
3. The spouses are jointly responsible for the support of the
family.
4. The right to administer and manage the household
Remedies if one of the spouses neglects his duties or
commits acts which tend to bring danger, dishonor or
injur y to the other or to the family
1. When the inability falls under psychological incapacity
declaration of nullity of marriage
2. When the spouse designated as the administrator of
conjugal or community property is guilty of some acts of
mismanagement, the other spouse can ask the court for
receivership.
3. The aggrieved spouse can ask the court that he or she be
the sole administrator of the conjugal or community
property.
4. Judicial separation of property
5. When the spouse is guilty of physical, psychological,
economic abuse directed against the other, the aggrieved
spouse can ask the court for temporary or permanent
protection order (VAWC)
6. Criminal charges if acts of the other spouse amount to a
crime
7. Injunction (Mandatory and prohibitory injunction)
Prohibitory enjoins or prohibits the commission of an act
Mandatory commands the performance of an act
Can the court issue a mandatory injunction directing the
offending spouse to perform his marital obligations or
prohibitory injunction enjoining the offending spouse from
performing an act?
Prohibitory Yes, the court can issue a prohibitory injunction
against the offending spouse for acts whic h tend to bring
dishonor, danger or injury against the family.
Mandatory No, because marital obligations are personal
and consensual in nature. (Except support failing to do so
would lead to contempt of court)
How about damages in case of breach of marital
obligations?
General Rule: No. Because the conjugal property will be
made to answer for the damages of the other.
Exception: If the property regime is complete separation of
property. (Article 19 abuse of rights principle)
Ty v. Court of Appeals and Edgardo Reyes
Involves an action filed by the husband to declare their marriage void
on the ground that it is bigamous. The second w if e opposed the
action contending that their marriage is valid and by way of
counterclaim, the w if e interposed a claim for damages against the
husband. The trial court ruled in favor of the w if e and granted the
counterclaim for damages but when the case went to the Supreme
Court, the SC deleted the item on damages.
Article 73
Either spouse may exercise any legitimate profession,
occupation, business or activity without the consent of the
other. The latter may object only be on valid, serious and
moral grounds.
IMMORAL occupation without consent:
When ob jection is raised b y the other spouse:
The court will decide if there is basis on the objection (valid,
serious or moral grounds)
If the court finds it to b e immoral:
The court will determine if benefit redounded to the family
before or after the objection was made.
If before: The debt or obligation incurred by the spouse in
pursuit of the immoral profession shall be chargeable only
against the spouse concerned.
If after: An y debt or obligation incurred by the spouse in
pursuit of the immoral profession may be charged against the
conjugal or community property. (Equitable principle of
estoppel; avoid responsibility and yet continue receiving the
benefits therefore should likewise share in the liability)
MORAL occupation without consent:
Who shall bear the liability of one spouse in pursuit of a
legitimate profession without the consent of the other?
Not governed by Article 73 because 73 speaks of an immoral
or illegal profession. Should be Art 94 par 3 (ACP) or Art
121 par 3 (CPG)
Distinguish between two factual situations :
1. Obligation or loss incurred from an isolated transaction.
Rule: Any obligation incurred cannot be charged against the
ACP or CPG but to the separate exclusiv e properties of the
debtor spouse. In order for the obligation to be chargeable
against the ACP or CPG, there should be proof of actual
benefit that redounded to the family.
Ayala Investment v. CA and Spouses Ching
The husband was the vice president of Philippine Blooming
Mills. When the corporation was suffering from financial
difficulty, the corporation applied for a loan with Ayala
Investment. As a condition for the approval of the loan
application, Ayala required the husband to execute surety
agreement to guarantee the payment of the corporations
corporate loan.
The husband as vice president executed a surety agreement,
binding himself jointly and severally w ith the corporation.
When the corporation failed to pay the loan, Ayala went to
court and filed an action for collection of sums of money not
only against the corporation, but als o against the husband, on
the basis of the surety agreement.
The trial court ruled in favor of Ayala and pending appeal, the
court granted the execution pending appeal. On the strength
thereof, the sheriff levied on execution the properties
belonging to the conjugal partnership.
The w if e objected, contending that the obligation did not
redound to the benefit of the family and therefore the CPG
should not be held liable to satisfy the judgment of the Court.
The Supreme Court sustained the w if es argument. The
contract entered into by the husband is of such nature that it is
NOT normally expected benefit to the family. The husband
was not the recipient of the loan obligation, but only a
guarantor. The benefic iary being the corporation and not the
family.
The only way by whic h the CPG may be held liable to satisfy
the judgment is to show that the family actually benefited out
of the obligation. There should be proof of actual benefit that
redounded to the family.
Persons and Fam ily Relations l Atty. Randi Torregosa l Reviewer by Tanya Ibaez

2. Obligation or loss is incurred in pursuit of an ordinary Depending on the matter it is executed, the rules vary:
transaction normally expected to produce benefit to
the family by its very nature.
Marriage Settlement Separate deed of donation
Rule: Any obligation incurred may be charged against the
ACP or CPG. It is not required that there should be proof of
actual benefit to the family. There must be a marriage There has to be a marriage
settlement but it must stipulate a settlement. Donation by reason
property regime other than ACP of marriage made by one would-
G Tractors Inc. v. CA and Spouses Nicacio because if it is ACP, it w ould be spouse in favor of the other
Involves a contract betw een the husband and G Tractors Inc, be a useless donation for the would-be spouse presupposes a
allegedly w ithout the consent of the wif e where the husband donor would end up being the marriage settlement. (Because if
leased some heavy equipment from Tractors Inc, in pursuit of ow ner just the same. there is no marriage settlement,
his logging business. ACP w ill govern and the
donation w ill be useless)
For failing to pay the stipulated rental for the equipment,
Tractors Inc w ent to court and filed an action for the collection
of sums of money. The court ruled in favor of G Tractors and The donor may not donate more Not subject to the not more than
when the judgment became final, the sheriff levied on than 1/5 of his present property 1/5 limitation because there is
execution the properties belonging to the CPG. because a marriage settlement no possibility of undue influence,
is just like an ordinary contract it being a unilateral contract,
The w ife contended that the obligation incurred by the whic h undergoes the process of executed only by the donor
husband arising from the contract w ith G Tractors is a negotiation w ar of outsmarting without the process of
personal debt of the husband because it was entered into the other. The exercise of undue negotiation.
without her involv ement. influence over the other is a
common occurrence. This
The Supreme Court rejected the argument of the w ife, holding limitation is imposed by law to
that the contract entered into by the husband is of such nature avoid the situation where the
that it is normally expected to produce benefit for the family. It smarter would-be spouse takes
is an exercise of business, normally presumed to be intended advantage of the less smart
for the benefit of the family. Therefore, it is not required that spouse.
there should be actual benefit that redounded to the family,
even if losses are incurred in pursuit of such legitimate activity.
Hence, the conjugal partnership is liable. If the marriage doesnt take If the marriage doesnt take
place donation is void. place donation is not rendered
void because it is not
PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE incorporated in the marriage
settlement. Article 86 only
voidable, 5 years from the time
Article 74 the marriage w as supposed to
The property relations between husband and wife may be take place
governed by:
1. The marriage settlement
2. Provisions of the Fam ily Code Donation made by a third party in favor of either or both
3. Local Customs of the would-be spouses

Marriage Settlement Rules:

A contract between the would-be spouses before the 1. Does not require the execution of a marriage settlement
celebration of the marriage, embodying the terms and 2. Can only be done in a separate deed of donation
conditions of their agreement as to the manner by which their 3. Not governed by the not more than 1/5 limitation because it
property relations is to be governed. (kind of property regime, is a pure act of liberality, no negotiation and no danger of
undue influence
list of properties which they want to be exclusively owned by 4. The donor cannot donate all his properties should retain
them despite the marriage, donations by reason of marriage) some enough for his sustenance and for his compulsory heirs.
If he donates all, it can be subject to collation to the extent that
Donations it impairs the legitime.
Two forms of donations:
1. Donation by reason of marriage Rule on Ordinary Donations
2. Ordinary donation Executed DURING the marriage by one spouse in favor of
the other or by one spouse in favor of a third party with or
Donation by reason of marriage without consent of the other spouse
A kind of donation incorporated in the marriage settlement,
because normally a donation is executed through a separate Rules:
deed of donation.
Simply a donation, the consideration of which is 1. Neither spouse may donate to the other during the marriage,
marriage. regardless of the value of the property or the property regime
that governs their property relations.
Executed before the marriage
Exception: Moderate donation or gif t on the occasion of family
Rules: rejoicing. Moderate depends on the capacity of the donor.
1. May be done by one would-be spouse in favor of the other
spouse. 2. Donations made by either spouse in favor of a third party
2. May be done by a third party in favor of either or both of the involving a property belonging to the ACP or CPG form of
would-be spouses disposition which requires the consent of the other for purposes
of validity. If without consent: Donation is void
Donation by reason of marriage made by one would-be
spouse in fa vor of the other would-be spouse Exception: Charitable purposes or on occasion of family
distress
This donation may be done through:
1. Marriage settlement
2. Separate deed of donation
Persons and Fam ily Relations l Atty. Randi Torregosa l Reviewer by Tanya Ibaez
Instances where donation by reason of marriage is
rendered voidable at the instance of the donor
Article 86
1. If the marriage is not celebrated:
Distinguish between donations by reason of marriage
executed in a marriage settlement from that executed in
a separate deed of donation
Marriage settlement: Donation is void.
Separate deed of donation: Donation is revocable at the
instance of the donor
2. If the marriage is judicially declared as void
General rule: Donation is revocable, 5 years from the
finality of the decision of the court declaring the
marriage void. Applies regardless of whether the donee
acted in bad faith.
Exceptions:
a. If the marriage is declared void on the ground of Art 40
subsequent marriage entered into w ithout the benefit of a
judicial declaration for the absolute nullity the previous
marriage (revoked by operation of law if donee acted in
bad faith)
b. If the marriage is declared void by reason of being
bigamous Art 35 par 4 subsequent marriage is
bigamous and void because the first marriage is valid.
(not revocable but void by reason of public policy Art 739)
3. When there is a decree of legal separation
Except; If donee acted in bad faith revoked by operation of
law
4. When the marriage is annulled
In conflict with Art 50 in relation to Art 43 whic h states that
donations made to the donee w ho acted in bad faith are
revoked by operation of law.
Tw o conflicting views:
(a) Art 86 should prevail over Art 50 and 43 because it is the
later provision
(b) Art 43 is more consistent w ith the purpose of the law
punish the donee who acted in bad faith
5. When the marriage takes place without the consent
of the parents of one or both of the contracting
parties
6. When the donation by reason of marriage is subject
to a resolutory condition and the resolutor y
condition is complied with.
If the donation by reason of marriage is subject to a
resolutory condition, it is immediately valid and
effective. But when the resolutory condition takes place,
it is revocable.
Resolutory condition Suspensive condition
Immediately demandable at Obligation is not demandable
once but deemed until and unless the condition
extinguished upon the is complied w ith.
happening of the condition.
I w ill give you my car now I w ill give you my car if you
but this donation shall be will pass the Bar examination.
revoked when you pass the (It is the passing the Bar
Bar examination. whic h makes the obligation
demandable)
7. When the donee is guilty of acts of ingratitude
(a) Commission of any crime of the donee against
the person, property of honor of the donor or his
wife or children
(b) Imputation by the donee of any crime against the
donor
(c) An y acts involving moral turpitude against the
donor, his wife or children
(d) Unjustifiable refusal to s upport on the part of the
donee if the donee is morally and legally obliged
to give support
SYSTEM OF ABSOLUTE COMMUNITY
What Constitutes Community Property
Article 91. 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.
Except
1. Properties indicated to be exclusive in the marriage
settlement
2. Properties excluded pursuant to Art 92
Properties 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
Except
If 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
Except
Jew elry shall form part of the community property
3. Property acquired before the marriage by either spouse
who has legitimate descendants by a former marriage,
and the fruits as well as the income of such property.
Charges Upon and Obligations of the ACP
Charges, obligations and liabilities that ACP is required by
law to settle. Art 94 obligations chargeable against the ACP
1. Support for the spouses, for the common children and
for the legitimate children of either spouse (support for
illegitimate children is not chargeable against the
common property - personal obligation of the parent
spouse concerned)
However, in case of absence or insuffiency of the
personal properties of the parent spouse to support the
illegitimate child, it may be taken from the common
property by way of advances - subject to
reimbursement, to be charged against the parent
spouse concerned at the time of liquidation.
2. All debts and obligations incurred during the marriage
by the designated administrator spouse for the benefit
of the community. Or the debt and obligation incurred
by the non-administrator spouse, with the consent of
the other, which redounded to the benefit of the family.
(By the administrator spouse, by both, or by one with
the consent of the other)
3. All debts and obligations incurred by either spouse
without the other's consent but redounded to the benefit
of the family.
Distinguish between two situations :
(1) A transaction entered into by either spouse -
isolated: one that is ordinarily not expected to
produce benefit to the family or community.
Ayala investment v. Court of Appeals
In order that the ACP may be held liable is that there must be
proof of actual benefit redounding to the benefit of the
community or family.
Persons and Fam ily Relations l Atty. Randi Torregosa l Reviewer by Tanya Ibaez
(2) Ordinary transaction - by its very nature expected to
produce benefit to the community or family (no need
for evidence of actual benefit)
Tractors Inc v. CA
Even if losses are incurred in pursuit of that activity, so long as
by the very nature of the activity it is normally expected to
produce benefit to the family, the ACP may be held liable even
if it is incurred by only one spouse without the consent of the
other.
4. Taxes, liens, charges and expenses including major or
minor repairs upon the common property.
5. All taxes and expenses for preservation during the
marriage upon the separate properties of either spouse
used by the family. (If the separate property is not
being used for the benefit of the family, this provision
does not apply)
6. Expenses to enable either spouse to complete any
profession for self-improvement
7. Antenuptial debts or debts incurred before the marriage
which redounded to the benefit of the family. (There
must be actual benefit that redounded to the benefit of
the family for ante nuptial debts to be charged against
the ACP.)
8. The value of the property donated or promised by birth
spouses to a common children for the purpose of
completing a vocational or professional course for self-
improvement
9. Personal to the debtor spouse. (a) antenuptial debts
which did not redound to the benefit of the family, (b)
support of the illegitimate children, (c) liability arising
from crime or quasi-delict - when the separate
properties of the debtor spouse are insufficient
(advance reimbursement mechanism)
10. Litigation expenses between spouses unless the suit is
groundless
Article 94
If the assets or properties of the ACP are not sufficient to
satisfy all the obligations, (except par9) the spouses are
solidary liable of the balance of the obligation with their
respective separate properties.
Solidary obligation - when the obligation may be
demandable against more than one debtor. The creditor can
demand the fulfillment of the entire obligation from any of the
debtors.
Example: The creditor can compel either the husband or the
wife to pay the entire obligation. However, the spouse who
was compelled to pay the entire obligation can demand from
the husband his share in the obligation.
Take Note
1. This solidary obligation principle imposed on either
spouse with respect to their separate properties
applies only insofar as the obligations mentioned in
Article 94, except par 9. Because par 9 are personal
liabilities - the only principle applicable is the
advance reimbursement mechanism.
2. Obligations incurred during the marriage by either
spouse without the consent of the other and which
did not redound to the benefit of the family -- not
covered under par 9.
(Only antenuptial debts are covered)
Efren Pana v. Heirs of Jose Juanete
Illustrative of the principle of advance reimbursement mechanism.
Involves a criminal case for murder initially filed against the
husband along with other alleged co-conspirators. But during the
trial, only the w if e was convicted, but the husband w as acquitted.
The w if e was also adjudged civilly liable.
When the civil liability w as sought to be enforced against the ACP,
the husband objected considering that civ il liability arising from
crime is exactly the item mentioned in par 9 -- personal to the w ife,
hence should not be enforced against the community.
The Supreme Court ruled that w hile it is not chargeable against the
community, the ACP how ever is obligated by law to advance.
How ever, it was argued that this advance should be made w hen the
liquidation should be done. But the SC said that there is no
necessity for liquidation first before advance could be made.
Go v. CA
Illustrates an obligation w hic h arose from a breach of contract
consis ting of damages imposed by the court. Involves a video-
taking service during the marriage of spouses Ong. The w if e was
engaged to take the video of the wedding. How ever, she was not
able to deliver the video recording. It w as erased, allegedly. An
action for damages w as filed. Court sustained the plaintiff and an
aw ard of damages was adjudged against the w if e.
But when the civil liability was sought to be enforced, the ACP w as
levied for execution. It was argued that the liability should not be
enforced against the community because it was the personal
obligation of the wif e. This argument was sustained by the SC.
Supreme Court said that while either spouse may pursue a
legitimate profession, business or activity, in this case the contract
was purely between the w if e and spouses Ong. The SC said that it
is the personal obligation of the w if e and theref ore cannot be
enforced against the ACP. The issue on advance reimbursement
mechanism w as not taken up in the case, although the issues are
essentially the same.
Take Note
The SC in Go v. CA invoked Art 94 par 3 mentioned that any
spouse may pursue any legitimate profession, business or
activity. If this is the kind of activity, this is presumed to be for
the benefit of the family and therefore chargeable against the
ACP even when the transaction results in losses, as
distinguished from an isolated transaction.
Go v. CA - video shooting is an occupation presumed to be
for the benefit of the family, consistent with the ruling in
Tractors Inc. But the SC saw it the other way. SC may have
in mind par9. Problem is, it forgets the advance
reimbursement mechanism.
The Supreme Court emphasized the principle of contracts
but overlooks the charges on ACP. The principle that only
parties are liable - true in ordinary contract. But when it
involves liabilities sought to be enforced in the ACP -
provisions of the Family Code.
Atty.T's personal take - ruling in Go is not accurate.
Principle of Advance Reimbursement Mechanism
Different in ACP and CPG
ACP - this principle applies without need for securing the
obligations which pertain to the absolute community -
advances are made
CPG - this mechanism may only be resorted to if the
obligations which pertain to the conjugal partnership are
already covered by the assets of the CPG. In other words,
the obligations pertaining to the partnership are secured first
before the assets of the partnership may be charged with the
personal debts of either spouse under the advance
reimbursement mechanism.
Reason for distinction: In ACP, the spouses have fewer
exclusive properties. In CPG, the spouses are normally
expected to have more separate properties.
Persons and Fam ily Relations l Atty. Randi Torregosa l Reviewer by Tanya Ibaez
Game of chance
Article 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.
Except:
Winnings therefrom shall form part of the community
property.
Ownership, Administration, Enjoyment and Disposition
Of The Absolute Property
Article 96 (ACP) and Art 124 (CPG) are e xactly the same
Rules:
Art 96 and 134
1. Administration and enjoyment of ACP shall belong to
the spouses jointly. Joint administration by the husband
and the wife. BUT in case of disagreement, the
decision of the husband prevails, subject to the right of
the wife to go to court to annul the transaction entered
into by the husband implementing his decision.
2. An y transaction entered into by the husband over
objection by the wife, is revocable - the wife has
right to question the transaction within 5 years from
date of the contract implementing the decision. If
wife does not question within that period, then
contract is valid.
Take Note
The status of the transaction, disposition or encumbrance,
administration of property - re vocable only within 5 years.
Sole power of administration
2nd par of Article 96
In the event that either spouse is incapacitated or unable to
participate in the management, the other spouse may go to
the court through a summary proceeding and ask for the sole
power of administration.
This sole power of administration does not include the right to
dispose or encumber any common property. Onl y acts of
administration and not acts of disposition or encumbrance.
Requirement for disposition or encumbrance to be valid:
1. There must be consent of the non-participating spouse
2. If incapacitated to give consent, court authority is
required.
In the ab sence of a written consent or court order, any
disposition or encumb rance is VOID.
How to distinguish 2nd par from 1st
Legarda and Mauis
An opinion was expressed that the first par of 96 and 123,
pertains only to acts of administration. The rule that says in
case of disagreement, the decision of the husband prevails,
subject to the right of the wife to go to court within 5 years --
applies only if the acts performed by the husband pertaining
to acts of administration. So that if the acts pertain to
disposition or encumberance, there is obly one rule- without
the consent of the other spouse, the disposition or
encumberance is VOID.
Criticized the Supreme Court when it decided the case of
Ravina v. Abrille -- exactl y illustrates the 1st par of 96.
Ravina v. Abrille
Both the husband and the wif e jointly administered the community
property but when the husband decided to dispose of the common
property, the wif e objected to the extent that she even sent a letter to
the prospectiv e buyer making clear her objection to the sale.
The SC ruled that the contract entered into by the husband and the
buyer is revocable. The sale was entered into by the husband
without the consent of the w if e.
Applying the 1st par of Art96 - transaction is only revocable w ithin 5
years from the date of the contract implementing the decision. The
filing of the action to nullify the transaction by the w if e was within the
prescriptive period. The SC did not rule that the transaction is void
even if it was entered into even without the consent of the w if e --
Consistent w ith the 1st par of 96 and 124. If there is objection, the
contract is only revocable -- because the parties exercised joint
administration of the properties.
Mario Schuzi v. Guzon, Fuentes v. Roca and Giang v. Giang
Demonstrative of the 2nd par. One of the spouses sold a common
property without the consent of the other spouse because the latter
was unable to partic ipate in the administration -- separated de facto
for 30 years.
The SC, consistent w ith the 2nd par succinctly ruled that the contract
was VOID because of lack of consent of the other spouse.
Based on these existing jurisprudence, it is now
the
the established that:
the
1st par - joint administration of the property regime, with the
the
knowledge of the other spouse but with objection, thereby
the
resulting in disagreement. -- ONLY REVOC ABLE
Disposition made without the knowledge of the other spouse
even if joint administration -- VOID (because of the absence
of the chance for objection)
However, while VOID, the transaction is considered a
continuing offer on the part of the consenting spouse and the
third party which may be perfected as a binding contract the
moment the court authorizes the transaction or acceptance
by the other spouse.
Most authors are of the opinion that when the non-consenting
spouse eventually gives consent or when the court
authorizes the transaction -- the contract is an altogether
NEW contract.
It is not accurate to say that a void contract is ratified --
because a void contract cannot be ratified. (Hence it is more
of a voidable contract since it is a continuing offer)
When the disposition is made by the wife
First paragraph
Administration jointly exercised by b oth. And in case of
disagreement, husb and's decision prevails. This
contemplates of a situation where the encumbrance or
disposition is from the initiative of the husband.
If the disposition or encumbrance is made by the wife over
the objection of the husband -- DO NOT apply the 1st par of
Art 96
Sta. Maria's opinion:
The transaction entered into by the wife over the
husband's objection
1. Can be assailed as unenforceable (because of lack of
authority)
2. Can be assailed as void on the ground that it was made
contrary to law or policy
Second paragraph
Only one is administering the common property because the
other spouse is incapacitated either due to illness, absence.
Doesn't matter who makes the disposition or encumbrance =
still void
Persons and Fam ily Relations l Atty. Randi Torregosa l Reviewer by Tanya Ibaez
Dissolution of Absolute Community Regime
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
(4) In case of judicial separation of property during the
marriage
under Articles 134 to 138.
Separation in fact
Article 100. The separation in fact between husband and wife
shall not affect the regime of absolute community
Except
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.
Abandonment of failure to comply with obligations to the
family
Article 101. If a spouse without just cause abandons the
other or fails to comply with his or her obligations to the
family, the aggrieved spouse may petition the court for:
1. Receivership
2. Judicial separation of property
3. Authority to be the sole administrator of the absolute
community
A spouse is deemed to have abandoned the other when
Left the conjugal dwelling for a period of 3 months without
any intention of returning. (Failed to give any information as
to his or her whereabouts)
Liquidation of the Absolute Community Assets and
Liabilities
Takes place when the property regime is terminated.
Liquidation follows termination.
When is ACP terminated:
1. Death of either spouse
2. Decree of legal separation
3. Annulment or nullity
4. Judicial separation of property
Article 102. Upon dissolution of the absolute comm unity
regime, the following procedure shall apply:
Procedure:
1. Inventory has to be prepared -- all the common
properties belonging to the ACP and all the separate
properties of either spouse.
2. Personal obligations of the parties shall be paid out of
their separate properties and the obligations pertaining
to the absolute community shall be paid out of the
common property.
3. In case of insufficiency of the ACP to cover all liabilities
-- apply solidary obligation on the part of the spouses
(any balance of the ACP shall be paid by their
respective separate properties)
4. If after deducting all the debts, there remains properties
belonging to them separately -- these shall be returned
to them. If there remains properties belonging to the
ACP (net assets) -- divided equally between the
spouses.
Unless:
a. A different proportion or divis ion was agreed upon in
the marriage settlement
b. There has been a voluntary waiv er of such share
5. The presumptive legitimes of the common children shall
be delivered upon partition
6. The conjugal dwelling and the lot on which it is situated
shall be adjudicated to the spouse with whom the
majority of the common children choose to remain.
Art 102 par 4
Net profits - difference in the market value of the common
property at the time of dissolution and at the time of
celebration of marriage.
Quiao v. Quiao
Different computation of the net profits which is not supported by the
provis ion of the law. Instead of just deducting the market value of the
properties at the time of dissolution as against the market value at
the time of the marriage, the SC ruled that the net profit is
determined by:
1. Determine the market value of the properties at the time of
dissolution
2. Out of these properties, deduct liabilities = net assets
3. Deduct from the net assets the value of the properties at the time
of the marriage
Net profits the remainder of the properties of the parties after
deducting the separate properties of each of the spouses and the
debts.
Art 102 par 4 definition of net proftits applies to both ACP and
CPG
The difference lies in the process of liquidation and
determination of net profits
Important doctrine laid down in Quaio v. Quiao: In
determining the net profits, you have to consider the liabilities
first before determining the difference of the market value of
the properties at the time of marriage vis -a-vis the time of
dissolution.
Article 103
Requirement if the marriage is extinguished by death and
along with it is the dissolution of the property regime (ACP or
CPG):
1. If marriage is extinguished, it carries with it the
extinguishment of the property regime should be
liquidated
2. Requirement is different with dissolution of property
regime by reason of court declaration or judgment
(annulment, nullity or legal separation)
Rule: 103 and 130 w hen marriage is extinguished by death,
the natural process of settlement of the estate will follow.
Special proceedings involving the settlement of the estate of a
deceased person.
The estate may be settled in two ways :
1. Probate testate proceedings - If person died with a will
(will have to be probated and the estate distributed
according to the terms and conditions of the will)
2. Intestate proceedings - If a person died without a will
(the estate will be settled in court and intestacy and
rules on intestate succession will follow)
When a married person dies and left estates belonging
to the conjugal or absolute community
Rule:
Since this involves death settlement of the estate of the
deceased will follow. Normally, if there is a s ettlement
proceeding being instituted, then the liquidation of the ACP or
Persons and Fam ily Relations l Atty. Randi Torregosa l Reviewer by Tanya Ibaez
CPG that has been dissolved will have to be done in the
same intestate proceeding judicial settlement.
When no intestate is being instituted in court:
The surviving spouse is required by law to liquidate the
ACP or CPG through extra-judicial or judicial process.
Extrajudicial Preparing a document denominating the extra
judicial settlement of the estate of the deceased person. The
property there w ill be adjudicated in favor of the estate, payment
of debts and the remaining property will be distributed to the
surviving heirs. Done only if the parties can agree.
Judicial If the parties could not agree, the court w ill decide as to
whic h portion of the property goes to whom.
Effects of non-compliance of liquidation within 1 year
from death of the deceased Art 103 and 130
1. An y disposition of the property belonging to the ACP or
CPG shall be void.
2. If the surviving spouse contracts a subsequent
marriage without complying with the requirement of
liquidation mandatory that the property regime that
will govern the subsequent marriage is complete
separation of property regime.
First effect: Disposition is void
The SC interpreted this provision in an entirely different
way.
Heirs of Protacio Go v. Ester Servacio
Involves a property left by the deceased who was married.
Without liquidation of the CPG, the surviving spouse (husband)
along w ith one of the children, Rito Go, sold a portion of the
estate left by the deceased (w ife). When the other children knew
of the sale, they filed an action to annul the transaction invoking
the provis ion which says that any disposition of the property
belonging to the ACP or CPG w ithout complying with the
requirement of obligation is VOID.
The Supreme Court ruled that if a portion of the property
belonging to the ACP of CPG is sold w ithout complying w ith the
requirement of liquidation, the disposition is not necessarily void
especially if after liquidation it will be determined that the other
heirs who did not participate in the disposition still gets their own
share. Because obviously, the requirement of liquidation is for
the purpose of protecting the interests of the creditors and the
heirs.
If at the end of the day, it can be determined that the other heirs
are still able to get their respective shares, then there is no
problem. The portion sold by tw o is even lesser by what they are
entitled to get.
This is a different rule under Article 96 and 124
Disposition of a property belong to the ACP or CPG made
by one spouse without the consent of the other is VOID.
(Entire transaction is void so the property sold may be
recovered.
The transaction pertaining to the interest of the
consenting spouse is also void. Hence, the entire property
can be recovered from the buyer)
103 What is only void is the portion belonging to the
other non-consenting heirs
The rule now
The disposition made without liquidation is void in so far
as the interest of the non-consenting heirs.
CONJUGAL PARTNERSHIP OF GAINS
Otherwise known as the relative community property regime.
Should be stipulated in the marriage settlement. Jointly
owned by the parties.
Instance where CPG will govern the property relations
When it is stipulated in a marriage settlement (jointly owned
by the spouses)
What governs CPG
1. Marriage settlement
2. Rules on contract of partnership
3. Family Code
When does it commence
Like ACP, CPG commences at the precise moment the
marriage is solemnized
Properties that form part of the conjugal partnership
Spouses place in their common fund all the proceeds,
products, fruits and income of their separate properties and
properties acquired during the marriage through their effort or
industry or by chance. Each spouse retains the capital.
Art. 117. The following are conjugal partnership properties:
1. Properties acquired through onerous title during the
marriage by either spouse
2. Properties acquired by work, labor, industry, profession
or occupation. (Income as a lawyer, any business, etc.)
3. Fruits and income of the common properties and net
fruits of the exclusive properties
4. Share in the hidden treasure (Rule - owner of the
property where the property was found gets everything.
But if a finder is a third party, the finder gets 50% and
the owner of the property gets the other half)
If found in the exclusive properties - CPG
If either spouse is only a finder and the property belongs to
a third party - the finder spouse gets 50% and goes to the
CPG
5. Property acquired through occupation - fishing or hunting
(occupation here is not profession: mode of acquisition -
there is no previous owner)
6. Livestock existing at the time of dissolution in excess of
those brought into the marriage by each
7. An ything acquired by chance, betting, sweepstakes,
gambling, whether legal or illegal. Winnings form part of
the CPG. Losses are suffered by the debtor spouse.
Exclusive property of each spouse
Statutory e xclusions
Art. 109. The following shall be the exclusive property of
each spouse
1. Properties brought by either s pouse into the marriage
2. Properties acquired during the marriage by gratuitous
title
Substantially the same as Art 92 ACP statutory exclusions,
but actually different.
(a) CPG - property acquired during the marriage by
gratuitous title is alw ays exclusiv e property of the
spouse who acquired it without exception)
(b) ACP- property acquired during the marriage by
gratuitous title is exclusive property of the spouse who
acquired it except when the grantor provides that it be
part of the common property.
3. Property acquired by right of redemption, barter or
exchange using the property belonging solely to the
spouse
Redemption right to get back ones property where it was
earlier conveyed to another.
Example: Before the marriage, the husband obtained a loan
from the bank and by way of collateral, he mortgaged his
property. For failure to pay, the bank foreclosed the property
and sold in favor of a third party.
Persons and Fam ily Relations l Atty. Randi Torregosa l Reviewer by Tanya Ibaez
Under the law , if a property mortgaged in foreclosed, the
mortgagor owner has one year to redeem the property sold at
the foreclosure sale.
Rule if the 1 year period falls during the existence of the
marriage. (Property was foreclosed before the marriage but the
redemption period falls due during the marriage)
The property acquired by redemption w ill not form part of
the CPG by express provision of law.
Barter
Same principle holds if either spouse receives another property
during the marriage in exchange or substitution of his or her
ow n exclusiv e property
Rule in ACP is different
When an exclusive property is exchanged w ith another
property, the property will be part of the common property
If separate property is sold during the marriage
What w ill become of the cash or the purchase price
Conflicting views:
1. Exclusive because a sale transaction is essentially a
barter transaction
2. Conjugal because cash in exchange of the property is
the proceeds of the exclusiv e property
3. Exclusive - If the exclusiv e property is sold during the
marriage for the same value
4. If the exclusive property sold during the marriage for profit
(original value exclusiv e; profit conjugal)
4. That which is purchased with exclusive money of the
husband or the wife
Example: Spouse inherited a bank deposit from parents and
purchases a property using such money
Rights of Spouses with regard to their exclusive
properties
1. They retain the ownership, possession, administration
and enjoyment of their exclusive properties.
2. Ma y, 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.
3. Ma y 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.
Damages
In a litigation, either spouse obtains a judgment award in the
form of damages adjudicated by the court. Who gets to own
the damages?
Zulueta v. Pan American World Airways
Husband filed a case against the airline company for breach of
contract of carriage. They won and damages were awarded.
Issues: Whether or not the damages awarded by the court forms part
of the conjugal partnership.
The Supreme Court ruled that if the damages awarded by the court
arose from a transaction financed by the conjugal partnership =
Conjugal. It w as established that the plane tickets were purchased
using conjugal funds. Hence, the damages should be conjugal.
Lilius v. Manila Railroad
Involves a suit for quasi-delict filed against manila railroad arising
from a vehic ular accident. The plaintiffs were awarded. Issue:
Whether or not the damages awarded by the court should form part
of the conjugal partnership. The Supreme Court ruled that the
damages arose from physic al injuries which are personal to the
person concerned. Hence, it is a personal property of the one whose
injury was compensated.
Installment
Article 118. Property bought on installment paid partly from
exclusive funds of either or both spouses and partly from
conjugal funds
It depends.
Exclusive - If the title or the full ownership is vested to the
buyer before the marriage even if part of the purchase price
was paid out of conjugal funds. (subject to reimbursement)
Conjugal - If the title or ownership is vested to the buyer during
the marriage but the buyer spouse w ill have to be reimbursed
for the amount he paid as part of the purchase price.
Take Note:
In either case, any amount advanced by the partnership or by
either or both spouses shall be reimbursed by the owner or
owners upon liquidation of the partnership.
How to determine if title or ownership is vested before or
during the marriage.
Is title or ownership vested by full payment of the purchase
price or by delivery of the property sold?
Credits
Art 119. If either of the spouses extended loan to someone
else but the payment was made during the marriage. (The
loan is exclusively owned by either spouse but the payment
is received during the marriage)
Rules
1. If payment is received during the marriage corresponding to the
principal amount = EXCLUSIVE PROPERTY
2. Payment received during the marriage corresponding to the
interest that accrued before the marriage = EXCLUSIVE
3. Payment received during the marriage corresponding to the
interest that accrued during the marriage = CONJUGAL
(essentially fruits of the exclusive)
If a property is acquired using money borrowed by either
spouse from a third party
Example: Husband borrowed money from a friend and using
such money husband purchased a property. What is the
status of the property purchased:
Rule
An y property acquired during the marriage using the
exclusive money of either spouse = Exclusive
Determining factor: The ownership of the money used in the
repayment of the loan.
If paid out of the exclusiv e money = property is exclusiv e
If paid out of conjugal money - property is conjugal
Wong v. IAC
Transaction entered into by the husband who are separated de facto
with his wif e. Husband borrowed money from his friend to buy a
property. The w if e also borrowed money from w hich she was
charged for estafa. To satisfy the civil liability, the sheriff levied on
execution the property purchased by the husband using the money
he borrowed from his friend.
Issue: Whether or not the property of the husband acquired through
the borrowed money can be levied for execution to satisfy the
obligation w hich was personal to the wif e.
The SC ruled that any property acquired during the marriage is
presumed to be conjugal and there w as no evidence that the money
used for the repayment of the loan belongs exclusiv ely to the
husband. Therefore it is a conjugal property and can be levied for
execution.
Insurance
Persons and Fam ily Relations l Atty. Randi Torregosa l Reviewer by Tanya Ibaez
Suppose a car by the husband with a fire insurance is lost,
who gets to own the insurance proceeds?
Determining factor: the money used for the procurement of
the insurance premium
If paid out of exclusive money- exclusive
If paid out of conjugal money - conjugal
Retirement benefits
Rule if during the marriage, either spouse received retirement
benefits:
It depends on the nature of the retirement benefit.
If onerous - conjugal
If gratuitous - exclusive
When is it onerous and gratuitous?
Gratuitous - extended out of pure liberality by the giv er
Onerous - when the amount is the accumulation of the
portions of the spouse's salary of the years deducted from his
monthly salary
If improvement is introduced to the separate property
Art 120. Rule if on a separate property of either spouse,
improvement is introduced at the expense of the CPG or
through the effort of either or both spouses
The law discourages different ownership over the land and
the building. Ownership should be uniformly owned by one
person.
Rules
1. Conjugal - When the cost of improvement and the
resulting increase in value are more than the value of the
property at the time of the improvem ent (real owner is
entitled to reimbursement during liquidation)
Land 2M
Building 2m
Resulting increase in value 1M
Add the resulting increase 1M to the cost of improvement 2M =
3M
3M > value of the land 2M
2. Exclusive - When the cost of improvement and the
resulting increase are not more than the value of the
property exclusively owned by the spouse at the time of
the improvement (CPG is entitled to reimbursement
during liquidation)
How to determine the greater value
Example: Land belonging to husband exclusively is 2M. Out
of the conjugal funds, a building was constructed during the
marriage on such land. The cost of improvement is 2M.
Land 2M, Building 2M = 4M
Cost of improvement and resulting increase in value of the
property
Due to the improvement, the land now may cost 5M. (1M
resulting increase in value)
Increase in value formula :
Selling bibingka
Rice - 100
Sugar - 50
Coconut - 50
Banana leaves - 50
250 is the production cost
Sold at 500
The additional 250 is the resulting increase in value
Take note
Ownership will only be transferred either to the CPG or to the
spouse upon reimbursement is made during liquidation.
If the property is to be awarded to the CPG, the land
remains to be owned by the spouse before the
reimbursement is made at the time of liquidation.
Significance:
Before the ownership is transferred, the property which
remains under the ownership cannot be levied on
execution to satisfy an obligation pertaining to the CPG.
If the property is to be awarded to the spouse, the land is
considered to be part of the CPG before the
reimbursement is made at the time of liquidation
Significance
The spouse who owns the land cannot insist that he or
she be paid rental for the occupancy of his land, even if
the building belongs to a third party, the CPG. Because
whatever rental that may be due would just the same
end up as a common fund interest income of the
spouse exclusive property.
Charges and Obligations of the CPG
Art. 121. The conjugal partnership shall be liable for:
(1) The support of the spouse, 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
(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 benefited;
(4) All ta xes, 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) Ante-nuptial debts of either spouse insofar as they
have redounded to the benefit of the family;
(8) The value of what is donated or promised by both
spouses in favor of their common legitimate children
for the exclusive purpose of commencing or
completing a professional or vocational course or
other activity for self-improvement; and
(9) Expenses of litigation between the spouses unless the
suit is found to groundless.
The charges and obligations of the CPG are slightly
different from that of ACP
Art 94 (ACP) v. Art121 and 122 (CPG)
Art 94 par 9
Personal debts and obligations are not chargeable against
the ACP, but can be in case of insuffiency subject to advance
reimbursement mechanism
Main difference: In case the debtor spouse has insufficient
exclusive separate properties to satisfy his or her debts or
obligations:
Persons and Fam ily Relations l Atty. Randi Torregosa l Reviewer by Tanya Ibaez
ACP Art 94 - Ad vances subject to reimbursement (no need to Always require court approval whether voluntary or
first cover the obligations of the ACP) involuntary

CPG Art 121 and 122 - The CPG can only be made to make 1. Voluntary - Does not require any cause: mutual
the advances once the obligations of the CPG are satisfied agreement of the parties. Filing of a petition for
(principle of exhaustion) voluntary separation of their properties (both should
file)
Reason for distinction: In ACP, the spouses have fewer
exclusive properties. In CPG, the spouses are normally 2. Involuntary - When there is cause (aggrieved party is
expected to have more separate properties. the one filing the petition)
(a) Civil interdiction
However, the Supreme Court ruled in the case of Pana v. (b) Absentee
Heirs of Juanete that there is no need to wait for liquidation (c) Loss of parental authority
for advances to be made in the conjugal partnership * The above three grounds require final judgment by the
court
Efren Pana v. Heirs of Jose Juanete (d) Abandonment for 3 months
Illustrative of the principle of advance reimbursement mechanism. (e) Mismanagement
Involves a criminal case for murder initially filed against the (f) Separation de facto for 1 year
husband along with other alleged co-conspirators. But during the
trial, only the w if e was convicted, but the husband w as acquitted. Revival of Property Regime
The w if e was also adjudged civilly liable. Suppose the court granted the judicial separation of property,
may the parties agree to revive their property regime?
When the civil liability was sought to be enforced against the CPG,
the husband objected considering that civil liability arising from
crime is exactly the item mentioned in par 9 -- personal to the w ife, YES. Grounds for revival: (depends on the kind of judicial
hence should not be enforced against the conjugal partnership. separation)

The Supreme Court ruled that w hile it is not chargeable against the Involuntary - may be revi ved if the ground for the
community, the CPG how ever is obligated by law to advance. involuntary judicial separation ceases
How ever, it was argued that this advance can only be made if the
other obligations pertaining to the CPG are covered. And this can Voluntary the parties can always file a joint motion for
only be determined upon liquidation. the revival of the previous property regime
But the SC said that for purposes of the advance mechanism
Can the revived property regime b e in turn dissolved again
requirement, it is not necessary to wait for liquidation. Because the
law only says covered, meaning it is enough that at the time the voluntarily or involuntarily?
advances is made, the properties of belonging to the CPG are
enough to cover the obligations pertaining to the CPG. If the judicial separation was decreed involuntarily and
was revived may be dissolved again involuntarily if
What can be done is a provisional or informal liquidation. The there is another ground
danger there is that the possibility cannot be dis counted that the
liquidation is actually made, the properties belonging to the CPG If the judicial separation was decreed involuntarily and
may not be sufficient to satisfy the obligations of the CPG.
was revived may be dissolved again voluntarily
Rule now : There is no necessity for liquidation first before advances
could be made in Conjugal Partnership. If the judicial separation was decreed voluntarily and
was revived may be dissolved again involuntarily
Administration of the Conjugal Partnership Property
The rule is the same with Absolute Community. If the judicial separation was decreed voluntarily was
Art 96 ACP revived may NOT be dissolved again voluntarily
Art 124 - CPG
Take Note
Voluntary can only be availed of once.
Liquidation of Conjugal Property
Art 129 Slight difference with ACP
Rights and Obligations of Spouses after their Property
Regime Is Judicially Dissolved by Judicial Separation
1. Inventory - In the listing of the inventory of properties if
the CPG, any advances made shall be included in the
Effect: Property relations between spouses is now to be
list of properties belonging to the CPG.
governed by complete separation of property regime
Whatever amount the CPG owes to either spouse, shall COMPLETE SEPARATION OF PROPERTY REGIME
be listed as the exclusive properties of either of the
spouses.
Rights:
2. Come up with list of obligations - personal obligations
1. Either spouse has absolute right to enjoy, administer,
and obligations of CPG use, dispose, and encumber any of his or her property
3. Deduct the personal obligations from the separate
without the consent of the other.
properties and deduct the conjugal obligations from the
conjugal properties, etc.
2. To each spouse shall belong all earnings from his or
JUDICIAL SEPARATION OF PROPERTY her profession, business or industry and all fruits,
Four instances where the regime of complete separation of
natural, industrial or civil, due or received during the
properties governs the marriage
marriage from his or her separate property
1. If stipulated in the marriage settlement
3. Can engage in any profession without the consent of
2. Art 103 and 130 If previous marriage was the other
terminated by death and spouse contracts a
subsequent marriage without complying with the
Obligations
requirement of liquidation
3. When during the existence of the marriage, the
1. Jointly responsible for family expenses in proportion of
parties resorted to judicial separation of property their income (in case of insufficiency or default thereof,
to the current market value of their separate properties)

Judicial separation of property

Persons and Fam ily Relations l Atty. Randi Torregosa l Reviewer by Tanya Ibaez
2. Solidarily liable with their respective separate properties
with their creditors relating to family expenses (veco,
pldt bills)
UNIONS WITHOUT MARRIAGE OR UNDER A VOID
MARRIAGE
Art 147 and 148 Property Regimes of Void Marriages (Co -
Ownership)
Parties who are not legally married or under a void marriage
ARTICLE 147
1. A union between a man and a woman cohabiting with
each other, without the benefit of marriage but are
capacitated to marry each other.
2. Union under a void marriage; Capacitated to marry but
under a void marriage. Void marriages other than void
because of incapacity to marry. (Age, sex, legal
impediment)
(a) Void for absence of essential and formal reqs
(except lack of capacity to marry due to age, sex,
legal impediment)
(b) Void for psychological incapacity
(c) Void under Art 53 -- marriage dissolved under Art
40 or annulled under Art 45 but one of the parties
failed to comply with the requirement of
liquidation, partition and delivery -- subsequent
marriage is void
(d) Void under Art 44 where a spouse obtained a
judicial declaration of presumptive death of his
former spouse. Both spouses in the subsequent
marriage acted in bad faith - therefore their
marriage is void
Structure of Property Relations of Art 147
Property regime: Co-ownership
1. Wages and salaries earned during the cohabitation - co
owned by both even if earned only by one of them.
2. Properties acquired during the cohabitation by either
spouses using his or her exclusive money - exclusive
separate property (there must be proof that the money
used exclusive belongs to the spouse who purchases
the property)
3. Properties acquired by both through their effort or
industry -- co ownership
4. If only one of the parties is acting in good faith, the share
of the party in bad faith on the co-ownership is forfeited:
Forfeited in favor of their: (different from the rule of
forfeiture under Art 43)
(1) Common children or descendants
(2) Party's respective descendants
5. Income and fruits of the separate exclusive properties --
exclusive
*Before the partition of the properties owned in common, neither of
the parties may dispose nor encumber any property owned in
common to a third party. BUT either of the spose encumber his or
her share to the other co-owner.
Distinction: Art 43 from Art 147 and 148
1. Art 43, what is forfeited is the share of the party in
bad faith in the net profits. In 148, the entire share is
forfeited
2. In 43, order of forfeiture is different (common
children only) In 147 and 148 (common children and
descendants)
3. In 43, second in line is the descendants of the guilty
spouse, in 147 and 148 party's respective
descendants
ARTICLE 148
1. Union between a man and a woman, cohabiting as
husband and wife but are incapacitated to marry each
other
2. Married but marriage is void because they are not
capacitated to marry each other.
(a) Void marriage by reason of Art 4 -- essential
requisite on legal capacity (same sex, below 18)
(b) Void marriage under Art 37 incestuous marriage
(c) Void marriage due to public policy Art 38
(d) Void marriage under Art 35 par4 bigamous
marriage (first marriage valid, subsequent
marriage void and bigamous)
Article 40 - void marriage but falls under ACP or
CPG
Valdez v. RTC and Dino v. Dino
Property regime of void marriages shall be governed by Art 147 and
148 except when it is void by reason of Art 40.
The Supreme Court ruled that w hen the marriage is declared void,
the property regime existing in the marriage is either that under 147
or 148 and so such regime shall be liquidated in accordance w ith the
rules on co-ownership. The only exception is when the marriage is
declared void by reason of Art 40.
Do not be misled by the case of Carino v. Carino, where the
Supreme Court committed a very patent mistake
Carino v. Carino
Involves a policeman named Juanito. His first wif e was Susan Igdao
and the second w if e is Susan Yi. Without obtaining a judicial
declaration of nullity of marriage of his previous marriage, he
contracted a second marriage. Juanito died. The tw o wiv es
scrambled over a piece of Juanitos estate. Claiming that everything
should go to her, the second w ife filed an action in court for the
collection of a sum of money. In support of his position, the second
wif e assailed the validity of the fir st marriage for lack of marriage
license which was duly established.
Issue: Who gets to own the estate left by Juanito?
The Supreme Court ruled that the first marriage is void for lack of
marriage license but it does not mean to say that the second
marriage is valid just because the first marriage is void, because
under Art 40, without the judicial declaration of nullity of marriage,
the subsequent shall likew ise be void for being bigamous. Susan Yi
therefore cannot claim to be the legal w ife.
Since the second marriage is void for being bigamous, the property
regime should be governed by Art 148 (co-ownership). Under 148,
only the properties which are acquired by the parties through their
actual joint contribution. In this case, the property left by Juanito
consis ts of his salary, acquired by Juanito alone. Susan Yi therefore
got nothing.
The Supreme Court made a mistake because the marriage between
Juanito and Susan Yi is exactly the marriage contemplated under
Artic le 40 because the subsequent marriage w as entered into
without the benefit of the judicial declaration of nullity of the first
marriage. Hence, the property regime should have been liquidated
according to the rules of either Art 102 or 129 pursuant to Art 43.
Structure of Property Relations
1. Unlike 147, wages and salaries are exclusive to the
party who earned them
2. Properties acquired using exclusive money exclusive
3. Only properties acquired through actual joint
contribution in money, property and industry can form
part of the co-ownership
4. It is indispensable that the party should show proof of
actual contribution
Persons and Fam ily Relations l Atty. Randi Torregosa l Reviewer by Tanya Ibaez

5. If the party who acted in bad faith is validly married -
salary and wages during the cohabitation belong to the
ACP or CPG of the valid marriage
Any property acquired during cohabitation - belongs to the
ACP or CPG existing in the valid marriage
Judicial constitution done by a filing a petition in court for the
constitution of the family home.
Extra-judicial constitution executing a judicial affidavit of
constitution of family home and have this affidavit registered in the
corresponding registry of property

If the party who acted in bad faith is not married - share in Before August 3, 1988 person constitution family home was
the properties is forfeited required to do positive act either judicially or extra-judicially

Procopio Villanueva v. CA
Husband w as separated de facto w ith his w if e to cohabit w ith Pacita.
Husband acquired various properties during the cohabitation
registered under the name of Pacita.
Whether or not the property is Pacita's or that of the CPG or ACP of
the valid marriage.
But this requirement can now be dispensed with, with the
advent of Family Code, because under the same, constitution
of the family home comes automatic by the mere act of
occupying the house and lot. Mere occupation of the house
and lot of the family residence constitutes constitution of
the family home.

SC ruled that w hatever property acquired during the existence of the Operative act which constitutes constitution of the family
ACP or CPG, is presumed to be the property of the CPG or ACP, home = occupancy of the house and lot as family residence
even if acquir ed during cohabitation.
What happens to the family residence which existed
Same principle in the case of Bell Cordero v. CA and Josefina v. Iron even before August 3, 1988 but the occupants did not
Works resort to judicial or extra-judicial constitution of their
family home
Bell Cordero v. CA In contemplation of law, no family home was constituted by
Husband abandoned his family to cohabit w ith another woman. SC the family. Therefore, the house and lot occupied by the
ruled that all properties acquired during the cohabitation are family at that time, did not enjoy the benefit now being
properties of the existing CPG or ACP.
enjoyed by the family home (exemption from fore sale,
execution or attachment)
STRUCTURE OF PROPERTY RELATIONS What happens upon the effectivity of the Family Code in so far as
Property regime: Co-ow nership these family residences are concerned
They are deemed to be constituted as a family upon the effectivity of
ARTICLE 47 ARTICLE 48 the family code without need for doing any positive act other than the
occupation.
Wages and Co-ow ned even if Exclusive TAKE NOTE:
salaries earned only by one 1. A person is only allowed to constitute one family home
of them 2. A person may be only allow ed to be a benefic iary of one
family home
Properties Exclusive (there Exclusive (no proof For purposes of constitution, what is required is permanent or
acquired using must be proof that needed)
actual occupancy as opposed to mere constructive or
exclusive money the money used
exclusive belongs temporary occupancy
to the spouse who
purchases the In whose property may a family home be constituted
property) 1. On a property belonging either to the ACP or CPG
of the marriage
Properties Co-ow nership (no Co-ow nership (there 2. On the exclusive separate properties of either
acquired by both need to prove must be proof of actual spouse with the consent of the owner
through their actual participation in the 3. On a property owned by the unmarried head of the
effort or participation) acquisition of property)
family (including a widow or a widower; member of
the family who are not married)
Spouse acted in Share in the net If married salaries and *Rentals are not allow ed because it is owned by a third party (you
bad faith profits is forfeited wages during the can be ejected any time
cohabitation belong to
the ACP or CPG of the Who may constitute the family home?
valid married
1. The husband and the wife who must constitute the
If unmarried apply the family home jointly (not allowed in cases of
rule on forfeiture separation de facto)
2. The unmarried head of the family (widow or widower
or any single member of the family)
Income and fruits Exclusive Exclusive 3. An y of the beneficiaries, provided there is consent
of the separate of the owner of the property (property owned by
exclusive either of the spouses or the unmarried head of the
properties family; e ven if the owner does not actually occupy)

Manacop v. Court of Appeals

THE FAMILY
The Family Home
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.
How the family home constituted
Before the effectivity of the Family Code on August 3, 1988
the constitution of the family home required or may be done
through either of the following ways:
Under the law , only two are allow ed to constitute the family home.
But the Supreme Court ruled in this case that any beneficiary may
constitute the family home provided there is consent of the owner of
the property.
Who are beneficiaries of the family home
1. The husband and the wife
2. The unmarried head of the family
3. An y of their parents, children, ascendants,
descendants, legitimate or illegitimate brothers or
sisters
Persons and Fam ily Relations l Atty. Randi Torregosa l Reviewer by Tanya Ibaez
Any member of the family may b e a b eneficiary provided that:
1. Must be living in the family home
2. Must be dependent on the head of the family for
legal support
Requirement on legal support
The beneficiary must be in a situation where the head of the
family is legally obliged to give support. Therefore, the law on
support must be followed.
Law on support
If the obligation to support devolves on two or more persons,
the person entitled to ask for support cannot just demand
support from any of them or all of them at the same time
Order of liability
1. Spouses
2. Ascendants
3. Descendants
4. Collateral blood relatives
Patricio v. Dario
There was a family home occupied by the spouses with their two
children and their grandson. The husband died and the so the
surviving spouse and the children extra-judicially settled the estate of
the husband including the family home.
One of the children objected to the actual partition contending that
his son (the grandson of the deceased) who was still a minor is
staying in the family home and under Art 159 a family home cannot
be partitioned so long as a minor beneficiary still resides in the family
home.
Issue: Whether the grandson of the deceased can be considered as
a benefic iary in contemplation of law?
The beneficiary must be dependent on the head of the family for
legal support. The support Court ruled that under Art 199 the order of
liability should be follow ed. In this case, the grandson had his own
father and there is no show ing that the father is unable or
incapacitated to support his son, who is the grandson of the
deceased.
Since the father is the one obligated by law to give support, the
grandmother cannot be deemed required to give legal support under
the circumstances.
For a family home to be considered a family home
The law provides for a fixed value of the property
Family dw elling in urban areas value should not be more
than 300k
Family dw elling in rural areas value should not be more than
200k
A house and lot more than the value fixed by law is
technically not considered a family home those who have
less in life should have more in law. Hence people who can
afford to construct a house more than the value fixed by law
are those who can afford and therefore need no protection
from the law.
Benefits of a Family Home
Exempted from fore sale, execution or attachment. (cannot
be levied for execution for satisfying obligations incurred)
Exceptions: (Preferred creditors)
(a) Non-payment of taxes
(b) Obligations incurred before the constitution of the family
home
(c) Obligations secured by the premises incurred either before
or after the constitution of the family home (obtained a loan
and as a collateral, a real estate mortgage was instituted
over the family home)
(d) Obligations due to laborers, mechanics, workers leins w ho
constructed the family
Rule on satisfaction of claims m ay vary depending on the
kind of creditors and the value of the house and lot
Preferred creditors
Situations:
1. Family home 300k, claim of preferred creditor 300k = can
levy the execution of the family home, sell at public auction
and the proceeds w ill be used to satisfy the 300k
obligation.
2. Family home 300k, claim of preferred creditor 100k = claim
of 100k may be satisfied from the family home.
3. Family home 300k, claim of preferred creditor 500k =
family home can be levied on execution and the 300k shall
be used to satisfy the 500k obligation. Hence, debtor still
ow es 200k
Ordinary creditors
Situations:
1. Family home 300k, claim of ordinary creditor 300k =
creditor cannot do anything, cannot ask the court for a levy
on execution of the family home because the home is
exempted from execution
2. Ordinary creditor has reason to believe that the value of
the house and lot at the time of constitution is more than
the 300k fixed by law or at the time of the constitution, the
family home w as worth 3000k but over the years, the value
increased because of some improvements voluntarily
made on the house and lot: Value of the property now
500k, claim of ordinary
creditor 500k = creditor may ask the court for an order that
the family home be sold at public auction. If the court
believes that the amount is really more than the amount
fixed by law, the court will order the auction sale of the
family home.
During the public auction, family home has 500k proceeds,
claim of ordinary creditor 500k = Artic le 160 provides that
the first 300k out of the proceeds of the 500k w ill be given
to the debtor, the excess of 200k is the only amount the
creditor may claim in partial satisfaction of his claims.
At public auction no bid low er than the fix ed amount fixed
by law can be accepted.
Take note:
Under the last rule w here property is worth more than the
amount fixed by law, Art 160 applies only if the resulting
increase of the value is due to improvements voluntarily done
by the benefic iaries.
If the improvements were caused by factors other than their
ow n voluntary improvements Art 160 does not apply and
therefore the benefic iaries should not be punished. The
resulting increase cannot be invoked to justify the sale of the
house.
Effect if family home is sold by the owner
Requirement if the owner of the property on which the family
home is constituted decides the dispose of the property:
1. They should need the consent of the owner of the
property
2. Consent of the persons who constituted the family
home
3. Consent of the spouse of the person who
constituted the family home
4. Written consent of the majority of the beneficiaries
However, the law does not express provide as to the status
of the transaction disposing or encumbering the family home
without the consent of the beneficiaries. (fertile ground for
controversies)
Logical view
The transaction should not be enforceable when the transaction is
entered into by someone who is not fully authorized. Or void for
being against the provision of the law.
Persons and Fam ily Relations l Atty. Randi Torregosa l Reviewer by Tanya Ibaez

Effect if the owner of the property constituted as family
home dies
Rules:
1. When the owner of the house and lot dies
succession follows
If the decedent left no w ill property is automatically
transferred to the compulsory heir s. The surviving spouse
and the children become co-owners of the property left by
the deceased.
Under normal circumstances
The law does not compel a co-ow ner to live w ith the co-
ow ner forever and allows division of the property. But
under family home the law does not allow partition for a
certain period.
Patricio v. Dario
Rules if the ow ner of the property constituted as family
home dies:
1. If the ow ner of the family home dies and there is no
surviving beneficiary staying in the family home the
family home ceases and so it can be immediately
partitioned by the surviving heirs (because the
purpose of the family home is no longer existing
shelter the benefic iaries)
2. If the ow ner dies and there are surviving beneficiaries
staying in the family home the family may not be
extra judicially partitioned w ithin a period of 10 years
from death or even longer if a minor benefic iary
continues to stay therein.
Ways of partition
Operative fact: The conception and the birth must
take place before the decision of nullity or
annulment becomes final
3. Children conceived or born in a void marriage under
Art 53 (non-compliance with partition, liquidation,
recording etc.)
4. An y artificially inseminated child
Illegitimate Children
1. Children conceived and born outside of a valid
marriage (no marriage at all; common law
relationship can always be legitimated by a
subsequent marriage of the parents if they are
capacitated to marry)
2. Children conceived and born within a void marriage
except Art 36 and Art 53
3. Children conceived and born during the existence of
a valid marriage (delivered by a wife but was
fathered other than the husband)
Right to impugn legitimacy of the child
Right granted to husbands to disown the child
Do not be misled:
Action to impugn legitimacy does not mean that if the action
prospers, the child becomes the illegitimate child of the
impugning husband = no relationship at all that exists
between the husband and the child. (only deemed to be the
illegitimate child of the wife)

Judicial partition Extrajudicial partition Grounds for impugning legitimacy

If the parties cannot agree for
themselves, they can go to the
court and demand for judicial
partition. The court orders the
parties.
1.
By executing a document
denominated as extra-
judicial partition to be
signed by all the parties
concerned. No need for
2.
court order. Just have to
register the document in the
registry of deeds where the
property is located.
Impossibility of sexual intercourse caused by:
a. Physical incapacity of the husband
b. Distance
c. Serious illness
Biological or scientific reasons
a. DNA test if negative, conclusive evidence of
non-paternity; if 99.9% prima facie evidence for
paternity but can still be challenged for it is only
presumptive

Prohibited w ithin the first 10 Prohibited w ithin the first 10 Lucas v. Lucas
years from death of the ow ner years from death of the The court can alw ays compel the conduct of DNA test to
or even longer if a minor ow ner or even longer if a determine issue of paternity. But in order to avoid abuse
benefic iary continues to stay minor beneficiary continues and indiscriminate resort to paternity test to protect
therein. to stay therein. wealthy people there is a need for the court to conduct
hearing in order to establish prima facie evidence of
Exception: If the court finds No exceptions paternity. Hence, there should be reasonable basis to
compelling reason even before conduct paternity test before the court w ill order it conduct
the expiration of the 10 year to avoid abuse.
period, the family home may be
partitioned. 3. When the consent, authority or ratification to the
artificial insemination was vitiated by fraud,
(If family lived in chaos or
intimidation or undue influence
disharmony)
Because maternity is a fact and paternity is a mystery, the
law deems it necessary to provide presumptions in law to
PATERNITY AND FILIATION address questions where evidentiary may not be likely
Paternity civil status of the father with regard to his child obtained
Maternity civil status of the mother with regard to her child
Filiation civil status of the child with regard to his or her Presumptions relative to the filiation of the child
parents 1. A child born after the termination of the first marriage.

Two kinds of filiation A child born before 180 days follow ing the celebration of the
1. Natural filiation subsequent marriage is presumed to have been conceived
during the previous marriage. Provided the child w as born
a. Legitimate during the 300 days follow ing the termination of the first
b. Illegitimate marriage.
2. Adoptive filiation A child born after 180 days following the celebration of the
subsequent marriage is presumed to have been conceived
Legitimate Children during the subsequent marriage EVEN if the child w as born
1. Children who are conceived or born within a valid within the 300 days follow ing the termination of the first
marriage. marriage.

2. Children conceived or born before the order of the A child born after the 300 days following the termination of
court declaring the marriage annulled or void the first = there is no presumption. He who alleges must
became final and executory. prove.
Persons and Fam ily Relations l Atty. Randi Torregosa l Reviewer by Tanya Ibaez
2. An y child born during the existence of a valid marriage of
the mother is presumed to be a legitimate child of the
mother and her husband
Concepcion v. Court of Appeals
Hirardo and Teresa got married and after a year, a child was born
named Jose Hirardo. But as years wore on, the relationship turned
sour. Hirardo filed an action to declare their marriage void by reason
by reason of bigamy because Teresa was already married to Mario
9 years earlier. The court ruled that their marriage was void and so
their child Jose was illegitimate.
But being the illegitimate father, when the court awarded the custody
of their child Jose to the mother, the court allow ed Hirardo visitation
rights. But Teresa did not allow it, she was so furious at Hirardo for
bastardiz ing the status of their child now being an illegitimate child.
Hence, w if e filed a motion for reconsideration that Hirardo should not
be allow ed visitation rights and that Jose should now carry her name
and not that of Hirardo.
The CA finally decided that Hirardo is not entitled to visitation rights
to Jose because Jose is the legitimate child of Mario.
Hirardo and Teresa claimed and proved that Jose is their own child
and Mario w as never a party to the case because for 9 years they
have been separated de facto.
The Supreme Court ruled that any child born during the existence of
a valid marriage is presumed to be a legitimate child of such
marriage. Even if the child is established to have been born in
another relationship, the presumption still applies.
Principles in impugning the legitimacy of the child
1. The action to impugn the legitimacy of the child is a
personal right of the husband. Only the husband may
impugn the legitimacy of his wifes child.
Exceptional situations:
Heirs of the husband may institute the action in behalf of
the husband
(a) If the husband dies before the prescriptive period for
impugning legitimacy expires
(b) If the husband dies during the pendency of the
action to impugn without having desisted therefrom
Consequence of this rule
Not even the father of the illegitimate child can impugn
nor the mother or the child himself.
Concepcion v. Court of Appeals
It w as argued by Hirardo that the child is his own illegitimate
child and invoked Article 66, trying to establish that Mario and
Teresa were already living separately from each other, making
sexual intercourse impossible to happen.
The Supreme Court rejected the argument of Hirardo, saying
that he is not the husband of Teresa. Art 166 can only be
invoked by Mario, the legal husband of Teresa. Even if the
mother declares against the legitimacy of the child, that cannot
impugn the legitimacy of the child.
Liao v. Liao
William Liaos mother was validly married to her husband but
after a while, his mother and the husband separated de facto.
The mother then cohabited w ith Mr. Liao who was also a
married man and out of this cohabitation, William Liao w as
born.
Several years later, Mr. Liao died and a settlement proceeding
was instituted to settle the estate of Mr. Liao. William Liao,
represented by the mother came forward to claim that William is
the illegitimate child of the deceased.
Issue: Whether or not William Liao can claim establish his
illegitimate filiation w ith the deceased.
The Supreme Court said that it cannot be done because the
mother of William is still legally married to her husband. By
claiming in court that William is the illegitimate son of the
deceased, it is in effect impugning the legitimacy of William as
the legitimate son of his mother and the legal husband.
Even the child himself may not impugn his ow n legitimacy
because only the legal husband of his mother is allow ed by law
to impugn Williams legitimacy.
2. The legitimacy of the child may not be collaterally
attacked.
The husband or his heirs must institute a direct action for the
purpose of impugning legitimacy.
Collateral attack - when the is sue is raised in a proceeding
other than in a proceeding intended for that purpose.
Tyson v. Court of Appeals
There w as a property originally owned Teodora. When she
died, she was survived by her husband, nephews and niece,
the children of her brother. After the death, the husband
executed an affidavit of sole adjudication of heirship. He falsely
claimed that he is the sole surviving heir and on that basis, he
was able to sell the property he inherited from Teodora.
When the nephew and niece of Teodora (the children of
Teodoras brother) knew of the sale, they filed an action to
recover the property contending that they are left out as
nephews and niece, because they also inherited properties
from Teodora. Hence, their shares were impaired because of
the sale.
A civil case for reconveyance of the property was filed. One of
the defense interposed by the husband and the buyer was that
the niece and the nephew are not legitimate heirs of Teodora
because they are not legitimate children of Teodoras brother.
The SC ruled that w hen the husband and the buyer questioned
the legitimacy as the niece and nephew of Teodora, they are in
effect impugning the legitimacy of the nephew and niece and
this cannot be done. Impugning the legitimacy of the children
cannot be collaterally attacked. It should be done in a direct
action intended for that very purpose.
Furthermore, only the husband can impugn the legitimacy of the
niece and children, and since the brother of Teodora did not,
then their legitimate filiation is fixed by law and cannot anymore
be impugned.
Prescriptive period for action to impugn
1. When the birth of the child was known to the
husband or the husbands heirs
1 year (if the husband and the child are living in
the same city or municipality)
2 years (if the husband and the child are living
in a different city or municipality but within the
Philippines)
3 years (if the husband or his heirs are living
abroad)
Reckoning of the prescriptive period
Two situations:
1. When the birth was known to the husband
Prescriptive period shall be reckoned from know ledge of birth
or its recording to the local civil registrar.
2. When the birth was concealed or not known to the
husband
Prescriptive period should be counted from (1) discovery or
know ledge of birth of the child, or (2) from the registration of
birth, whichever is earlier.
Problem :
The law is not so clear whether these two reckoning points
both require knowledge.
Discovery knowledge easy
Registration of birth Husband learned of the fact that
his child was not his 5 years after the regis tration of birth
(how to compute the prescriptive period. Can the
husband still file?
The law says discovery of birth or of the fact of regis tration of
birth. The second creates confusion because it is not clear
whether the fact of registration is enough for the prescriptive
period to run or is it required that the husband should learn of
the fact of registration?
Persons and Fam ily Relations l Atty. Randi Torregosa l Reviewer by Tanya Ibaez
The purpose of the short prescriptive period for impugning
the legitimacy of a child
The law favors legitimacy. As much as possible, the law does not
want that the child be in a continuing state of being threatened
with a suit impugning his legitimacy. The longer it takes, the more
prejudicial it is for the child.
The more logical interpretation
The prescriptive period should be counted from:
1. Discovery or know ledge of birth
2. The fact of registration whether the husband did not know
about it because registration serves as construction
notice to the whole world
Take Note
The principles on impugning the legitimacy of a child apply
only if the action really falls under action for impugning
legitimacy.
It should apply to a situation w here the husband dispute that the
child is not his but the fact that the child is the child of his wif e is
not disputed.
If the issue raised in the case is that the child is not the
child of the wife this is not covered by the principles of
impugning legitimacy
Baveria v. Presentacion
A case where a child w as delivered by a housemaid. The
housemaids employers, with the consent of the housemaid,
simulated the death of the child. They made it appear that the
child w as delivered by the wif e (employer).
Years after, the spouses had their one legitimate daughter,
Presentacion. When the husband and the w if e died, the legitimate
daughter questioned that her shares were impaired. The legitimate
child filed an action to nullify the record of birth of Teopecia
available in the local civil registrar on the ground that she w as not
the child of her parents but their housemaid.
By way of defense, Teopecia argued that Presentacion cannot
impugn her legitimacy and that it w as a collateral attack and the
action already prescribed.
The Supreme Court brushed aside the arguments holding that it
was not an action to impugn because an action to impugn where
the principles can apply, can only apply if the husband dispute the
legitimacy of the child, without however disputing the fact that the
child w as a child of his wif e, whic h is not obtaining in this case.
Teopecia w as neither the child of the wif e nor the child of the
husband and therefore any interested party can question and can
be done in a collateral proceeding and does not prescribe. An
action to impugn presupposes a fact that the child is a child of the
wif e. What is dis puted in an action to impugn is the status of the
child as the child of the husband.
De Jesus v. Dizon
Spouse De Jesus during their marriage, tw o daughters were born.
Few years after the birth of the daughters, a third party, Mr. Dizon,
executed a public document where he voluntarily acknowledged
that the two daughters are his two illegitimate children. Mr. Dizon
apparently is also married.
When Mr. Dizon died, these tw o daughters claimed inheritance on
the basis of notarized instrument executed by Mr. Dizon
acknow ledging that the tw o daughters were her illegitimate
daughters.
The Supreme Court said this cannot be done because they are in
effect impugning their own legitimacy, which is not allowed under
the law in impugning filiation.
The issue is not about impugning legitimacy but the
allegation that the child is not even the child of both
spouses
Benitez v. Court of Appeals
When the spouses died, the sister of the husband and the
husbands nephew filed an action to settle the estate of the
husband, Vic ente. This was opposed by someone else who came
forward and claimed that she is the sole surviving heir of the late
spouses.
The sister of the late husband and the nephew contended that she
is an impostor. She is neither the child of the wif e nor the child of
the husband. It was argued that cannot be done in the
proceedings because under the law only the husband, or in
special cases, the heirs, can impugn her legitimacy.
The SC brushed aside the argument contending that it w as not an
action to impugn because it is alleged that she is not the child of
both the husband and the w if e. The action to impugn
contemplates of a situation where the child is established to be the
child of the wif e, but disputed to be the child of the husband.
Hence, the principles to impugn legitimacy do not apply.
Rights of Illegitimate children
1. Right to use the surname of the mother, except if the
father acknowledges the child and the
acknowledgment is made in:
(a) The record of birth in the local civil registrar
(b) Some public instrument
(c) A written private instrument filed by the father.
2. Right to be supported
3. Right to inherit (1/2 of what the legitimate child is
entitled to inherit)
Who exercises parental authority or custody over the illegitimate
child?
Artic le 176 Custody is with the mother. The right to custody springs
from parental authority. He who has parental authority has the
custody of the child.
Art 176 does not provide for qualifications,
but correlate with Art 213
Art 213 If the parents are separated, parental authority and custody
should be exercised by the spouse designated by the court. The
court in making the designation, should consider the follow ing rules:
1. The choice of children over 7 years old must be
considered, except if the parent chosen is unfit
2. Children 7 and below should not be separated from the
mother, unless the court finds compelling reasons
Some authors are of the opinion that:
Artic le 213 applies only when the child is legitimate
Art 176 applies only when the child is illegitimate
The confusion is now settled in the following cases
David v. CA and Tunog v. CA
The child involved was illegitimate but the court applied Art 213 in
the resolution of the issues rais ed in the case. Art 213 applies
whether the child is legitimate or illegitimate. Hence, even if
illegitimate, it is not alw ays assured that custody of the child w ill be
given to the mother.
Tunog v. CA
Mother w as working abroad as a nurse and the child was left w ith the
father. The Supreme Court said that temporarily it is needed that the
custody of the child be awarded to the father.
Compare Art 176 with Art 211
Art 176 Illegitimate child, parental authority and custody is
with the mother
Art 211 The parents, whether legitimate or illegitimate
exercise joint parental authority. In case of disagreement, the
court decides.
It is not always that the mother of the illegitimate child gets
custody because under Art 211, the decision of the husband
prevails subject to the right of the wife to resort to court.
Persons and Fam ily Relations l Atty. Randi Torregosa l Reviewer by Tanya Ibaez
How to reconcile 176 and 211
Article 176 applies
1. If the paternity of the child is unknown or in dispute
2. Even if the paternity of the child is established, but
the father is not living together with the mother and
the child.

Article 211 applies

1. If the paternity is known and father is staying
together with the mother and the child

Legitimation
There can only be legitimation where
1. A child was conceived and born outside of marriage
to parents who are capacitated to marry each other,
2. A child was born outside of marriage to parents who
are disqualified to marry each other by reason of
age.

Take Note:
If the y are disqualified to marry on the ground other than age,
the child cannot be legitimated.

When does legitimation take place

The moment the parents get married. The mere fact of
marriage makes the child legitimate and now entitled to all
the rights and privileges enjoyed by legitimate children.

Procedural requirement
Parents have to execute an affidavit of legitimation so that it
would be appropriately recorded in the local civil registrar.

Action to file legitimation

Ma y be filed by the
1. Child
2. The parents - If child dies before marriage of the parties
(The legitimation retroacts to the time of birth of the child. If the
illegitimate child dies before the marriage but the parents
subsequently married each other.)

Action to impugn legitimation

Ma y be filed by any interested party whose successional
rights are impaired by the presence of the legitimated child.

Proof filiation
Depends on whether legitimate or illegitimate filiation. For
purposes of evidence to establish filiation, the kind of
evidence required for legitimate and illegitimate is the same.
(Primary proof. In its absence, secondary proof)

The only difference is that:

Action to claim legitimate filiation Action may be
filed during the lifetime of the child, even beyond the
death of the parent; does not prescribe.
Action to claim illegitimate filiation - Does not
prescribe, but if the kind of evidence used to
establish illegitimate filiation is secondary evidence
can be filed only during the lifetime of the parent.

Secondary evidence
1. Record of birth in the civil registrar
2. Court judgment
3. Admission made in a public instrument or private
handwritten instrument signed by the parent
concerned.