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EFFECT AND
also be published if their purpose is to enforce or implement
existing law pursuant to a valid delegation.
- In contrast with Interpretative regulations, the purpose is
APPLICATION OF
only
Only Philippine Laws are covered by this presumption. - A retroactive law is one intended to affect transactions
There is no consclusive presumption when it comes to which occurred, or rights which accrued, before it became
foreign laws. operative, and which ascribes to them effects not inherent
in nature, in view of the law in force at the time of their
MISTAKE OF FACT occurrence.
Ignorance may either be law or of fact - It is one whch changes or injuriously affects a present
Ignorance of fact may excuse a party from the legal right by going behind it and giving efficacy to anterior
consequences of his conduct; but not ignorance of law. circumstances to defeat it, which effect they did not have
when the right accrued.
1. Ignorance of fact
Ex: If an heir is ignorant of the death of his father, he is General Rule: All statutes are to be construed as having
ignorant of a fact. only a propective operation, unless the legislature expressly
declares or is necessarily implies its retroactivity. In case of
2. Ignorance of Law doubt, the doubt must be resolved against the retrospective
Ex. If an, being aware of his fathers death, and of his own effect.
relationship, he is nevertheless ignorant that certain rights
are vested in him, he is ignorant of the law. Exceptions
Statutes can be given retroactive effect in the following
05 Kasilag vs. Rodriguez (1939) cases:
- The Civil Code does not expressly define what is meant by 1. When the law itself so expressly provides
bad faith, but section 433 of the old Civil Code provides Limitations:
that "Every person who is unaware of any flaw in his title, a. When the retroactivity of a penal statute will make
or in the manner of its acquisition, by which it is it an ex post facto law.
invalidated, shall be deemed a possessor in good faith" b. When the retroactive effect of the statute will
- Good faith maybe a basis of excusable ignorance of the constitute an impairment of the obligation of
law, the petitioner acted in good faith in his enjoyment of contract
the fruits of the land to which was done through his *In these two cases, the provision giving the statute a
apparent acquisition thereof retroactive effect will be held inoperative.
- In accepting the mortgage of the improvements he Penal Laws are given retroactive effect insofar as they
proceeded on the wellgrounded belief that he was not favor the accused.
violating the prohibition regarding the alienation of the
land. 2. In cases of remedial statutes
Remedial Statutes are those which refer to the method of
06 Elegado vs. CA (1989) enforcing rights or of obtaining redress of their invasion.
A judgment which had become final and had been executed Remedial statute, may be made applicable to cases
can no longer be disturbed or modified. In this case, it was pending at the time of its enactment. Thus, with respect to
discussed that it is illogical to suggest that a provisional remedies, forms of proceedings, and limitation of action,
assessment can supersede an earlier assessment which had legislation may be retroactive in character.
clearly become final and executory.
3. In case of curative statutes
Curative statutes are those which undertake to cure
C. RETROACTIVITY OF LAWS errors and irregularities, thereby validating judicial or
administrative proceedings acts of public officers, or private
Art. 4, NCC deed and contracts which otherwise would not produce their
Laws shall have no retroactive effect, unless the contrary is intended consequences by reason of some statutory
provided. disability or the failure to comply with some technical
requirement.
They operate on conditions already existing, and are
Art. 22, RPC
Retroactive Effect of Penal Laws. Penal laws shall have a
necessarily retroactive in operation.
retroactive effect in so far as they favor the person guilty of a
felony, who is not a habitual criminal, as this term is defined in 4. In case of law interpreting others
rule 5 of article 62 of this Code, although at the time of the Those intended to clarify doubts or interpret an exisiting
publication of such laws a final sentence has been pronounced law.
and the convict is serving the same. The principle of retroactivity of such statues is stated by
the civil of Chile, Laws which merely interpret the meaning
of other laws are considered as incorporated in the latter;
Art. 256, FC but they shall not affect judicial decisions which have
This Code shall have retroactive effect insofar as it does not
become final in the meantime
prejudice or impair vested or acquired rights in accordance with
the Civil Code or other laws.
5. In case of laws creating new rights
The principle that a new law shall not have retroactive
Concept of Retroactive Law effect only govern rights arising from acts done under the
rule of the former law
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Kinds of right
1. Political those referring to the participation of persons
D. MANDATORY OR PROHIBITORY in the Government of the State
2. Civil
LAWS a. Rights of personality human rights
Art. 5, NCC b. Family rights include all the rights of a person as
Acts executed against the provisions of mandatory or a member of a family
prohibitory laws shall be void, except when the law itself c. Patrimonial rights property rights
authorizes their validity.
i. Real Rights ex. ownership, mortgage, etc.
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016 Page 4 of 84
ii. Personal Rights ex. right to collect a debt deemed to have given its permission by failure to
interpose its objection during the proceedings. It is an
Waiver: relinquishment of known right with both elementary rule that the existence of a waiver must be
knowledge of its existence and intention to relinquish it. positively demonstrated since a waiver by implication is
not normally countenanced.
Requisites of a Valid Waiver: - The norm is that a waiver must not only be voluntary, but
1. Full Capacity to make the waive must have been made knowingly, intelligently, and with
2. Waiver must be unequivocal sufficient awareness of the relevant circumstances and
3. Rights are existent at the time of the waive likely consequences. There must be persuasive evidence
4. Waiver must not be contrary to law, public policy, morals to show an actual intention to relinquish the right. Mere
or good customs silence on the part of the holder of the right should not be
5. It must not be prejudicial to a third person w/ a right construed as surrender thereof; the courts must indulge
recognized by law every reasonable presumption against the existence and
6. When formalities are required, the same must be validity of such waiver.
complied with
14 Dona Adela vs. Tidcorp (2015) When a law that expressly repeals a prior law is itself repealed,
- There was no written consent given by petitioner or its the first repealed shall not be revived unless so provided.
representative, Epifanio Ramos, Jr., that petitioner was
waiving the confidentiality of its bank deposits. The
provision on the waiver of the confidentiality of Sec 22, Chapter 5, Book I, AC, 1987
petitioners bank deposits was merely inserted in the
When a law that impliedly repeals a prior law is itself repeated,
agreement. It is clear therefore that petitioner is not
the prior law shall be revived, unless the repealing law provides
bound by the said provision since it was without the otherwise.
express consent of petitioner who was not a party and
signatory to the said agreement. Neither can petitioner be
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Ways of Repealing Laws consideration no longer formed part of the public domain
1. Express (Art. 254, 255, FC) when the provisions of Article XII of the Constitution
2. Implied -> Conflict between the old and new, must be became effective, it does not come within the prohibition
resolved in favor of the later law. against the alienation of natural resources; and the
*all previous laws inconsistent with the present law petitioner has the right to a patent therefor upon
are hereby repealed compliance with the terms and conditions prescribed by
*not favored, only presumption as basis law.
- A state may not impair vested rights by legislative
Requisites of Implied Repeals enactment, by the enactment or by the subsequent
1. Laws cover the same subject matter repeal of a municipal ordinance, or by a change in the
2. Latter is repugnant to the earlier constitution of the State, except in a legitimate exercise
Requirement of repugnancy: substantial conflict of the police power.
between new and prior laws
Must be absolutely be incompatible; cannot be
made to stand together
G. JUDICIAL DECISIONS
General vs. Special Laws Art. 8, NCC
Generally, special statute prevails. Judicial decisions applying or interpreting the laws or the
Special law is to be taken as an exception in the Constitution shall form a part of the legal system of the
absence of special circumstances forcing a contrary Philippines.
conclusion.
General law enacted PRIOR to special law: Doctrine of Stare Decisis
Special law exception to the general law Enjoins adherence to judicial precedents and is based on
General law enacted AFTER special law: the principle that once a question of law has been examined
Special law remains unless: and decided, it should be deemed settled and closed to
1. There is an express declaration to the contrary or further argument.
2. There is a clear, necessary and irreconcilable conflict Judicial decisions form part of the legal system of the
or Philippines
3. Unless the sunsequent general law covers the whole No retroactive effect, should not prejudice other parties
subject and is clearly intended to replace the special who relied on the old doctrine
law on the matter.
Legal Effects of Judicial Descisons
Effect of Repeal of Law 1. No publication is required
Cannot impair or affect any vested right, act done, penalty 2. Binding between parties after the lapse of appeal period
accrued, or judgement already final before the repeal. 3. Will bind all future cases with identical facts, until
Exception: Criminal cases, penal statutes favorable reversed by the SC.
to the accused have retroactive effect.
- Without a written notice, the period of thirty days within - Acts, the performance of which has not proven
which the right of legal preemption may be exercised, destructive or injurious and which have been generally
does not start. Nothing in the records and pleadings acquiesced in by society for so long a time as to have
submitted by the parties shows that there was a written ripened into a custom, cannot be held to be unreasonable
notice sent to the respondents. Without a written notice, or imprudent and that, under the circumstances, the
the period of thirty days within which the right of legal driver was not guilty of negligence in so leaving his team
preemption may be exercised, does not start. while assisting in unloading his wagon.
The Congress may provide for the applicability of customary If months are designated by name, they shall be computed by
laws governing property rights or relations in determining the the number of days which they respectively have.
ownership and extent of ancestral domain.
In computing a period, the first day shall excluded, and the last
day included.
29 Montajes vs. People (2012) GENERAL RULE: All citizens or foreigners who sojourn are
- Considering that May 19, 2007 fell on a Saturday, it was subject to all penal laws and laws meant for public security
error for Jose to compute his extension of time on the and safety
first working day after the deadline (Saturday, May 19),
or on May 21, 2007 since when a party is granted an EXCEPTION: Diplomatic agents are immune from suit and
extension of time, the 15-day reckoning period should thus cannot be charged.
start from the last day which is Saturday, Sunday or
holiday, according to the CA.
- The Court, however, allowed to relax the stringency of L. BINDING EFFECT
technical rules where it does not impair the proper
admission of justice Art. 15, NCC
Laws relating to family rights and duties, or to the status,
condition and legal capacity of persons are binding upon
K. APPLICABILITY OF PENAL LAWS citizens of the Philippines, even though living abroad.
Art. 17, NCC When a marriage between a Filipino Citizen and a foreigner is
The forms and solemnities of contracts, wills and other public validly celebrated and a divorce is thereafter validly obtained
instruments shall be governed by the laws of the country in abroad by the alien spouse capacitating him or her to remarry,
which they are executed. the Filipino spouse shall likewise have the capacity to remarry
under Philippine law.
When the acts referred to are executed before the diplomatic or
consular official of the Republic of the Philippines in a foreign
countr, the solemnities established by Philippine laws shall be Lex Nationalli: Citizenship is the basis for determining the
observed in their execution. law applicable
Nationality rule applies regardless of the place of
Prohibitive laws concerning persons, their acts or property, and residence
those which have for their object public order, public policy and Covers family rights and duties, status, conditions and
good customs shall not be rendered ineffective by laws or
legal capacity of persons
judgements promulgated, or by determinations or conventions
agreed upon in a foreign country.
Exception: Art. 26, par. 2, a divorce validly obtained
abroad by alien spouse which capacitates him or her to
remarry capacitates Filipino spouse to remarry under
Philippine law
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30 Tenchavez vs. Escano (1965) application would work undeniable injustice for Filipinos
A Filipino Citizen is prohibited from obtaining a foreign
divorce decree as the Philippines does not admit absolute Art. 17, NCC
divorce, quo ad vincula matrimonii The forms and solemnities of contracts, wills and other public
instruments shall be governed by the laws of the country in
31 Board of Commissioners vs. De La Rosa (1991) which they are executed.
Philippine law follows the lex loci celebrationis rule, which
states that a marriage formally valid where celebrated is When the acts referred to are executed before the diplomatic or
valid everywhere. consular official of the Republic of the Philippines in a foreign
countr, the solemnities established by Philippine laws shall be
observed in their execution.
32 Lavadia vs. Heirs of Luna (2014)
Pursuant to the nationality rule, Philippine laws governed Prohibitive laws concerning persons, their acts or property, and
this case by virtue of both Atty. Luna and Eugenio having those which have for their object public order, public policy and
remained Filipinos until the death of Atty. Luna on July 12, good customs shall not be rendered ineffective by laws or
1997 terminated their marriage. Hence, there is a judgements promulgated, or by determinations or conventions
nonrecognition of absolute divorce between Filipinos has agreed upon in a foreign country.
remained even under the Family Code, even if either or both
of the spouses are residing abroad Lex Loci Celebrationis: Law of the place where the
contract was executed is the basis for determining
Art. 16, NCC applicable law.
Covers only forms and solemnities
Real property as well as personal property is subject to the law
of the country where it is situated. Exceptions:
Par. 1, Art. 26, FC
However, interstate and testamentary successions, both with
Intrinsic validity of Contracts: Validity is determined by:
respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary 1. The law stipulated by the parties
provisions, shall be regulated by the national law of the person 2. If parties are same nationality, their national law shall
whose succession is under consideration, whatever may be the be applied
nature of the property and regardless of the country wherein 3. If not the same nationalities, the law of the place of the
said property may be found. perfection of the obligation shall govern its fulfillment
4. If the above places are not specifid and they cannot be
Lex Rei Sitae: Law of the place where the property is deduced from the nature and circumstances of the
situated is the basis for determining the law applicable obligation, then the law of the passive subject shall apply
Covers both real and personal property
35 Raytheon vs. Rouzie (2008)
Exception: Where the Court held that the local judicial machinery was
1. Order and amount of successful rights adequate to resolve controversies with a foreign element,
2. Intrinsic validity of testamentary provisions the following requisites had to be proved 1. That the
3. Capacity to succeed governed by the national law of Philippine court is one to which the parties may conveniently
decedent resort 2. That the PC is in a position to make intelligent
decisions as to the law and the facts 3. That the PC has or is
33 Testate Estate of Amos Bellis, Bellis vs. Bellis likely to have the power to enforce it decision.
(2014)
- Renvoi doctrine: The doctrine of renvoi is usually Art. 18, NCC
pertinent where the decedent is a national of one country In matters which are governed by the Code of Commerce and
and is domiciled in another. Special Laws, their deficiency shall be supplied by the provision of
- It does not apply to a case where the decedent was a this Code.
citizen of Texas and was domiciled therein at the time of
his death. So that, even assuming that Texas has a In consonance with the principle that on a specific matter, a
conflicts rule providing that the domiciliary law should special law shall prevail over a general law, which shall be
govern successional rights, the same would not result in a resorted to only supply the deficiencies in the former.
reference back (renvoi) to Philippine law, but it would still
refer to Texas law. EXCEPTIONS
- It is, therefore, evident that whatever public policy or 1. Transportation Contracts
good customs may be involved in our system of legitimes, 2. Usurious Contracts
Congress has not intended to extend the same to the 3. Insolvency Laws
succession of foreign nationals. For it has specifically
chosen to leave, the amount of successional rights, to the 35 Tamano vs. Judge Ortiz (1998)
decedents national law. Art. 13 of PD 1083 does not provide for a situation where
the parties were married both in civil and Muslim rites.
34 Del Soccoro vs. Van Wilsem (2014)
- Foreign law, however, should not be applied when its
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Art. 19, NCC * This article is based on the principle contained in art. 19,
Every person must, in the exercise of his rights and in the with which it is very intimately related, that a person, even
performance of his duties, act with justice, give everyone his in the exercise of a formal right, cannot with impunity
due, and observe honesty and good faith. intentionally cause damage to another in a manner contrary
to good morals or public policy.
Exercise of right must be in accordance with the purpose
LOSS OR INJURY
for which it was established, and must not be excessive or
The inury suffered by the plaintiff may refer to any
unduly harsh; there must be no intention to injure another.
determinate right or property, whether material or
otherwise. So long as the requisites of wilfullness and
There is abuse of right when:
contravention of morals or public policy are present, it is
1. Existence of a legal right or duty
immaterial whether the injury has been caused by a positive
2. Said right or duty was exercised in bad faith
act or by an omission.
3. There is intent of prejudicing or injuring another
The act is within this article only when it done wifully.
The act is wilfull if it is done with knowledge of its injurious
Good faith
effect; it is not required that the acts be done purposely to
It is an honest intention to abstain taking any
produce the injury.
unconscientious advantage of another, even through the
forms or technicalities of the law, together with an absence
Conflicts of Interest
of all information or belief of facts which would render the
Unfair meas employed in the course of conflicts of
transaction unconscientious.
interests between individuals or groups may the basis of
Absence of Good Faith is essential to abuse of right.
liability for damages under this article.
Promise to marry
PRINCIPLE OF UNJUST ENRICHMENT
Promise to marry has no obligatory force; therefore, as a
No person should unjustly enrich himself at the expense
rule, its breach cannot give rise to liability for damages.
of another.
Absolute rights
Rights in which their exercise can never be the basis of Art. 22, NCC
liability. Every person who through an act of performance by another,
Ex: Right of parents to refuse or deny their consent to the or any other means, acquires or comes into possession of
something at the expense of the latter without just or legal
marriage of a minor child; Right to deprive ones legal heirs
ground, shall return the same to him.
of an inheritance by giving all the property of the testator to
others, so long as the legitime is not impaired; and the right
to set up nullity of contracts, legal presumptions, and Concept of Action: Accion in Rem Verso
prescription of obligation. Action for recovery of what has been paid without just
cause
Art. 20, NCC Application
Every person who, contrary to law, wilfully or negligently 1. When a thing is acquires by or comes into possession of
causes damage to another, shall indemnify the latter for the another
same. 2. Said acquisition be undue and at the expense of another
* This article furnishes the general sanction for all other Concept of Enrichment
provisions of law which do not especially provide their own Enrichment of a defendant consists in every patrimonial,
sanction. It is broad enough to cover all legal wrongs which physical, or moral advantage, so long as it is appreciable in
do not constitute violations of contract money. It may consist of some positive pecuniary value
incorporated, such as:
Moral Negligence A person is required to act with 1. The enjoyment of a thing belonging to the plaintiff
prudence towards others, but not with charity; the law 2. The benefits from service rendered by the plaintiff
imposes diligence and not altruism. Hence the failure to to the defendant
make sacrifices, or egoism, does not constitute a source of 3. The acquisition of a right, whether real or personal;
liability. There is no civil responsibility for moral fault or 4. The increase of value of property of the defendant
negligence. 5. The improvement of a right of the defendant, such
as the acquisition of a right of preference
6. The recognition of the existence of a right in the
defendant
7. The improvement of the conditions of life of the
defendant
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Requisites for Remedy 2176 of the Civil Code is primary and direct, based on a
1. That the defendant has been enriched persons own negligence which is termed as qausi-delict.
2. That the plaintiff has suffered a loss - Furthermore, as a gun store owner, respondent is
3. That the enrichment of the defendant is without presumed to be knowledgeable about firearms safety and
just or legal ground should have known never to keep a loaded weapon in his
4. That the plaintiff has no other action based on store to avoid unreasonable risk of harm or injury to
contract, quasi-contract, crime, or quasi-delict. others.
* The restitution must cover the loss suffered by the - Respondent has the duty to ensure that all the guns in his
plaintiff, but can never exceed the amount of unjust store are not loaded. With more reason, guns accepted by
enrichment of the defendant if this is less than the loss the store for repair should not be loaded precisely
of the plaintiff. because they are defective and may cause an accidental
discharge such as what happened in this case.
40 People vs. Ritter (1991) - Respondent was clearly negligent when he accepted the
- Court reversed the Trial Courts decision on the crime of gun for repair and placed it inside the drawer without
rape due to the failure of the prosecution to firmly ensuring first that it was not loaded.
establish his guilt.
- It does not, however, necessarily follow that the appellant
is also free from civil liability which is impliedly instituted
with the criminal action. (Rule III, Section 1) The
wellsettled doctrine is that a person while not criminally
liable, may still be civilly liable.
- Ritter was prosecuted for rape with homicide and not
pedophilia, assuming this is a crime by itself. Pedophilia is
clearly a behavior offensive to public morals and violative
of the declared policy of the state to promote and protect
the physical, moral, spiritual and social wellbeing of our
youth. (Article II, Section 13, 1987 Constitution)
- Likewise, The appellant certainly committed acts contrary
to morals, good customs, public order or public policy as
contemplated in Art. 21 of the Civil Code.
PERSONS AND
PERSONALITY Classes of
Distinction
Persons and their
A married woman, twenty-one years of age or over, is Can exist without capacity Requires both (1)
qualified for all acts of civil life, except in cases specified by to act intelligence and (2) will.
law. (n)
Capacity is always
presumed
Person
Any being, physical or moral, real or juridical and legal,
susceptible of rights and obligations, or of being the subject *Juridical capacity and capacity to act are not rights, but
of legal relations. qualities of persons; hence, they cannot be alienated or
renounced. (Tolentino)
Personality is:
- Is product of capacity in law B. COMMENCEMENT AND
- External manifestation of capacity
- Synonymous to juridical capacity
TERMINATION OF PERSONALITY
- Generally, cannot be limited
- Specifically, may suffer limitations because its merely the 1. Natural Persons
result of capacity to act
a. Birth
Characteristics of Civil Personality
1. not a being, but a quality of certain beings Art. II, Sec. 12, 1987 Constitution
2. not a physical element, but a juridical concept The State recognizes the sanctity of family life and shall
3. not an object of contract, or of possession, cannot protect and strengthen the family as a basic autonomous
be impaired by agreement social institution. It shall equally protect the life of the mother
and the life of the unborn from conception. The natural and
4. matter of public interest
primary right and duty of parents in the rearing of the youth
for civic efficiency and the development of moral character
shall receive the support of the Government
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Art. 5, PD 603 (Child and Youth Welfare Code) Art. 259, RPC
Commencement of Civil Personality. - The civil personality of Abortion practiced by a physician or midwife and dispensing of
the child shall commence from the time of his conception, for abortives. - The penalties provided in Article 256 shall be
all purposes favorable to him, subject to the requirements of imposed in its maximum period, respectively, upon any
physician or midwife who, taking advantage of their scientific
Article 41 of the Civil Code.
knowledge or skill, shall cause an abortion or assist in causing
the same..
Art. 164, FC
General Rule: Birth determines personality (actual)
Children conceived or born during the marriage of the parents
are legitimate. Art. 40, NCC
Birth determines personality; but the conceived child shall be
Children conceived as a result of artificial insemination of the considered born for all purposes that are favorable to it,
wife with the sperm of the husband or that of a donor or both provided it be born later with the conditions specified in the
are likewise legitimate children of the husband and his wife, following article. (29a)
provided, that both of them authorized or ratified such
insemination in a written instrument executed and signed by
them before the birth of the child. The instrument shall be Exception: Civil Personality shall commence
recorded in the civil registry together with the birth certificate
Art. 5, PD 603 (Child and Youth Welfare Code)
of the child. (55a, 258a)
Commencement of Civil Personality. - The civil personality of the
child shall commence from the time of his conception, for all
purposes favorable to him, subject to the requirements of Article
Art. 164, FC
41 of the Civil Code.
Children conceived or born during the marriage of the parents
are legitimate. Birth means the removal of the fetus from the mothers
womb; this may take place either naturally or artificially by
Children conceived as a result of artificial insemination of the
wife with the sperm of the husband or that of a donor or both surgical means.
are likewise legitimate children of the husband and his wife, Before birth, the fetus is not a person, but merely a part
provided, that both of them authorized or ratified such of the internal ograns of the mother.
insemination in a written instrument executed and signed by Existence of personality of natural persons depends upon
them before the birth of the child. The instrument shall be the birth.
recorded in the civil registry together with the birth certificate
of the child. (55a, 258a) Conceived child the law considers the conceived child as
born for all purposes favorable to it, if it is later born alive.
Art. 256, RPC Its personality has two characteristics:
Intentional abortion. - Any person who shall intentionally cause 1. It is essentially limited, because it is only for
an abortion shall suffer: purposes favorable to the child, and
1. The penalty of reclusion temporal, if he shall use any violence
2. It is provisional or conditional, because it depends
upon the person of the pregnant woman.
2. The penalty of prision mayor if, without using violence, he upon the child being thatborn alive late, such that
shall act without the consent of the woman. if it is born not alive, its personality disappers as if
3. The penalty of prision correccional in its medium and it had never existed.
maximum periods, if the woman shall have consented.
Rights of a conceived child Since the conceived child is
Art. 257, RPC already considered as born for purposes favorable to it, it
Unintentional abortion. - The penalty of prision correccional in can acquire and enjoy rights while it is in the mothers
its minimum and medium period shall be imposed upon any womb.
person who shall cause an abortion by violence, but
unintentionally.
Art. 41, NCC
Art. 258, RPC For civil purposes, the foetus is considered born if it is alive at
Abortion practiced by the woman herself of by her parents. - the time it is completely delivered from the mother's womb.
The penalty of prision correccional in its medium and maximum However, if the foetus had an intra-uterine life of less than
periods shall be imposed upon a woman who shall practice seven months, it is not deemed born if it dies within twenty-
abortion upon herself or shall consent that any other person four hours after its complete delivery from the maternal womb.
should do so. (30a)
Any woman who shall commit this offense to conceal her Intra-uterine life When considered born
dishonor, shall suffer the penalty of prision correccional in its 7 months or more Alive upon complete delivery,
minimum and medium periods. even if child dies within 24
months
If this crime be committed by the parents of the pregnant Less then 7 months Alive upon complete delivery +
woman or either of them, and they act with the consent of said 24 hours life
woman for the purpose of concealing her dishonor, the
offenders shall suffer the penalty of prision correccional in its
medium and maximum periods. 44 Geluz vs. CA (1961)
The concept of provisional responsibility cannot be invoked
to obtain damages for and in behalf of an aborted child
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45 Quimguing vs. Icao (1970) - As the Court stated, we hold that within the framework
A conceived child is already entitled to support from its of the Constitution, the estate of Fragrante should be
progenitors. considered an artificial or juridical person for the
purposes of the settlement and distribution of his estate
The conceived child shall be considered born for all which, of course, include the exercise during the
purposes that are favorable to it adds further provided it be judicial administration thereof of those rights and the
born later with the conditions, specified in the following fulfillment of those obligations of his which survived
article (i.e., that the foetus be alive at the time it is after his death.
completely delivered from the mothers womb).
49 Dumlao vs. Syquia (1976)
46 De Jesus vs. Syquia (1933) Since no jurisdiction was acquired over Oria, the judgment
The fact that a fetus is unborn is no impediment to the against him is a patent nullity As far as Oria was concerned,
acquisition of rights. the lower court's judgment against him in the said civil
A fetus, then, can be acknowledged even before it is born. cases is void for lack of jurisdiction over his person. He was
not, and he could not have been, validly served with
47 Continental Steel vs. Montano (2009) summons. He had no more civil personality. His juridical
Rolando Hortillano filed a claim for bereavement leave and capacity, which is the fitness to be the subject of legal
death and accident insurance pursuant to the Collective relations, was lost through death.
Bargaining Agreement (CBA) between the company and
their union. His wife had a premature delivery and the 50 Eugenio vs. Velez (1990)
female fetus died during labor. In affirming the grant of the - A community of properties and interests which are
benefits, the Supreme Court ruled that even a child inside governed by law requires that a man and woman living
the womb already has life and is protected under Art. II, together must not in any way be incapacitated to contract
Sec. 12, 1987 PC. The legitimacy or illegitimacy of a child marriage.
attaches upon his/her conception. Since Hortillano and his - Right to bury a dead person does not include a common
wife were validly married and their child was conceived law husband who is still married hence the custody of the
during their marriage, the child was legitimate upon her dead body of Vitaliana was correctly awarded to her
conception. surviving brothers and sisters
(kk) That if there is a doubt, as between two or more persons Art. 47, NCC
who are called to succeed each other, as to which of them Upon the dissolution of corporations, institutions and other
died first, whoever alleges the death of one prior to the other, entities for public interest or purpose mentioned in No. 2 of
shall prove the same; in the absence of proof, they shall be article 44, their property and other assets shall be disposed of
considered to have died at the same time. (5a) in pursuance of law or the charter creating them. If nothing
has been specified on this point, the property and other assets
shall be applied to similar purposes for the benefit of the
Rule 123 of Sec 60 of Revised Rules of Court resorted to region, province, city or municipality which during the
only if there are no inferential/circumstantial evidences to existence of the institution derived the principal benefits from
be inferred from the same. (39a)
3. Suffrage
Sec. 1, Art. V, 1987 PC
Suffrage may be exercised by all citizens of the Philippines not
otherwise disqualified by law, who are at least eighteen years
of age, and who shall have resided in the Philippines for at least
one year and in the place wherein they propose to vote for at
least six months immediately preceding the election. No
literacy, property, or other substantive requirement shall be
imposed on the exercise of suffrage
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016 Page 19 of 84
(b) Insanity
Art. 189-204, P.D. No. 603
*Child and Youth Welfare Code 1. Marriage
Sec. 6, R.A. No. 9344 Marriage annullable if, by reason of defect or disease of the
Minimum Age of Criminal Responsibility. - A child fifteen (15) mind, was incapable of intelligently consenting.
years of age or under at the time of the commission of the
offense shall be exempt from criminal liability. However, the What is being assailed?
child shall be subjected to an intervention program pursuant to Not the bad bargain of having an insane partner, but that
Section 20 of this Act the consent of the latter was unreal for lack of intelligence.
A child above fifteen (15) years but below eighteen (18) years
of age shall likewise be exempt from criminal liability and be
Test: Whether or not at the time of marriage, party was
subjected to an intervention program, unless he/she has acted capable of understanding the nature and consequences of
with discernment, in which case, such child shall be subjected the marriage.
to the appropriate proceedings in accordance with this Act.
Presumption:
The exemption from criminal liability herein established does Sane until proven otherwise.
not include exemption from civil liability, which shall be Burden of Proof: On the one alleging insanity
enforced in accordance with existing laws.
Once general insanity is proven Presumed continuous
Sec. 7, R.A. No. 9344 Recovery or lucid interval Burden of proof: On the one
Determination of Age. - The child in conflict with the law alleging such claims
shall enjoy the presumption of minority. He/She shall enjoy all
the rights of a child in conflict with the law until he/she is
Intoxicated Presumed incapacited to gve consent
proven to be eighteen (18) years old or older. The age of a child
may be determined from the child's birth certificate, baptismal
certificate or any other pertinent documents. In the absence of Prescriptive Period: Such voidable marriage may only be
these documents, age may be based on information from the assailed during the lifetime of the parties and not on the
child himself/herself, testimonies of other persons, the physical death of either.
appearance of the child and other relevant evidence. In case of
doubt as to the age of the child, it shall be resolved in his/her Subject to Ratification: Only the insane person, after
favor. gaining sanity, is allowed to ratify the marriage by freely
cohabitating with the sane spouse as husband and wife.
Any person contesting the age of the child in conflict with the
law prior to the filing of the information in any appropriate court
may file a case in a summary proceeding for the determination 2. Contracts
of age before the Family Court which shall decide the case
within twenty-four (24) hours from receipt of the appropriate
Par. 2, Art. 1327, NCC
pleadings of all interested parties.
Cannot give consent to contracts: Insane or demented persons
and deafmutes who do not know how to write.
If a case has been fiied against the child in conflict with the law
and is pending in the appropriate court, the person shall file a
Art. 1328, NCC
motion to determine the age of the child in the same court
Contracts entered into during a lucid interval are valid.
where the case is pending. Pending hearing on the said motion,
Contracts agree to in a state of drunkenness or during a
proceedings on the main case shall be suspended.
hypnotic spell are voidable.
In all proceedings, law enforcement officers, prosecutors,
judges and other government officials concerned shall exert all
efforts at determining the age of the child in conflict with the
3. Criminal liability
law.
Par. 1, Art. 12, RPC
59 Atizado vs. People (2010) Criminal Liability
Pursuant to Article 68 (2) of the Revised Penal Code (RPC), An imbecile or an insane person, unless the latter has acted
during a lucid interval.chanrobles virtual law library
when the offender is over 15 and under 18 years of age, the
penalty next lower than that prescribed by law is imposed. When the imbecile or an insane person has committed an act
which the law defines as a felony (delito), the court shall order
his confinement in one of the hospitals or asylums established
for persons thus afflicted, which he shall not be permitted to
leave without first obtaining the permission of the same court.
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016 Page 21 of 84
Discussion on US vs Vaquilar (2) Insane or demented persons, and deaf-mutes who do not
know how to write. (1263a)
Distinction between passion and insanity
Although there have been some decisions to the
contrary, it is now well settled that mere mental Art. 807, NCC
depravity, or moral insanity, so called, which results, If the testator be deaf, or a deaf-mute, he must personally read
not from any disease of mind, but from a perverted the will, if able to do so; otherwise, he shall designate two
condition of the moral system, where the person is persons to read it and communicate to him, in some practicable
mentally sane, does not exempt one from responsibility manner, the contents thereof. (n)
for crimes committed under its influence, Care must be
taken to distinguish between mere moral insanity or Art. 820, NCC
mental depravity and irresistible impulse resulting from Any person of sound mind and of the age of eighteen years or
disease of the mind. more, and not blind, deaf or dumb, and able to read and write,
For insanity to be an exempting circumstance: proof may be a witness to the execution of a will mentioned in article
beyond reasonable doubt. 805 of this Code. (n)
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016 Page 22 of 84
Article 385. The following may ask for the declaration of Article 394. Without prejudice to the provision of the
absence: preceding article, upon the opening of a succession to which an
(1) The spouse present; absentee is called, his share shall accrue to his coheirs, unless
(2) The heirs instituted in a will, who may present an authentic he has heirs, assigns, or a representative. They shall all, as the
copy of the same; case may be, make an inventory of the property. (196a)
(3) The relatives who may succeed by the law of intestacy;
(4) Those who may have over the property of the absentee Article 395. The provisions of the preceding article are
some right subordinated to the condition of his death. (185) understood to be without prejudice to the action of petition for
inheritance or other rights which are vested in the absentee, his
Article 386. The judicial declaration of absence shall not take representatives or successors in interest. These rights shall not
effect until six months after its publication in a newspaper of be extinguished save by lapse of time fixed for prescription. In
general circulation. (186a) the record that is made in the Registry of the real estate which
accrues to the coheirs, the circumstance of its being subject to
Chapter 3 Administration of the Property of the the provisions of this article shall be stated. (197)
Absentee
Article 387. An administrator of the absentee's property shall Article 396. Those who may have entered upon the
be appointed in accordance with article 383. (187a) inheritance shall appropriate the fruits received in good faith so
long as the absentee does not appear, or while his
Article 388. The wife who is appointed as an administratrix of representatives or successors in interest do not bring the proper
the husband's property cannot alienate or encumber the actions. (198)
husband's property, or that of the conjugal partnership, without
judicial authority. (188a)
Art. 41, FC
Article 389. The administration shall cease in any of the A marriage contracted by any person during subsistence of a
following cases: previous marriage shall be null and void, unless before the
(1) When the absentee appears personally or by means of an celebration of the subsequent marriage, the prior spouse had
agent; been absent for four consecutive years and the spouse present
(2) When the death of the absentee is proved and his testate or has a well-founded belief that the absent spouse was already
intestate heirs appear; dead. In case of disappearance where there is danger of death
(3) When a third person appears, showing by a proper under the circumstances set forth in the provisions of Article
document that he has acquired the absentee's property by 391 of the Civil Code, an absence of only two years shall be
purchase or other title. sufficient.
In these cases the administrator shall cease in the performance
of his office, and the property shall be at the disposal of those 69 Olaguer v Purugganan & Locsin (2007)
who may have a right thereto. (190) Limiting the definition of absence to that provided under
Art. 381, CC negates the effect of the power of attorney by
Chapter 4 Presumption of Death creating absurd, if not impossible, legal situations. Art. 381
Article 390. After an absence of seven years, it being unknown provides the necessarily stringent standard that would
whether or not the absentee still lives, he shall be presumed
justify the appointment of a representative by a judge.
dead for all purposes, except for those of succession.
The absentee shall not be presumed dead for the purpose of Among the standards the said article enumerates is that no
opening his succession till after an absence of ten years. If he agent has been appointed to administer the property. In the
disappeared after the age of seventy-five years, an absence of present case, petitioner himself had already authorized
five years shall be sufficient in order that his succession may be agents to do specific acts of administration and thus, no
opened. (n) longer necessitated the appointment of one by the court. On
the other hand, defining the term absence by its everyday
Article 391. The following shall be presumed dead for all usage makes for a reasonable construction, that is, the
purposes, including the division of the estate among the heirs:
state of not being present and the inability to act, given
(1) A person on board a vessel lost during a sea voyage, or an
aeroplane which is missing, who has not been heard of for four the context that the SPA authorizes the agents to attend
years since the loss of the vessel or aeroplane; stockholders meetings and vote in behalf of petitioner, to
(2) A person in the armed forces who has taken part in war, sell the shares of stock and other related acts. This
and has been missing for four years; construction covers the situation wherein petitioner was
(3) A person who has been in danger of death under other arrested and detained.
circumstances and his existence has not been known for four
years. (n)
(i) Insolvency and Trusteeship - There is nothing in the concept of corporate rehabilitation
that would ipso facto deprive the Board of Directors and
Art.1381, NCC corporate officers of a debtor corporation, such as ASB
The following contracts are rescissible: Realty, of control such that it can no longer enforce its
(1) Those which are entered into by guardians whenever the right to recover its property from an errant lessee.
wards whom they represent suffer lesion by more than one-
fourth of the value of the things which are the object thereof; (j) Gender
(2) Those agreed upon in representation of absentees, if the
latter suffer the lesion stated in the preceding number;
(3) Those undertaken in fraud of creditors when the latter Art. II, Sec. 14, 1987 PC
cannot in any other manner collect the claims due them; The State recognizes the role of women in nation-building, and
(4) Those which refer to things under litigation if they have shall ensure the fundamental equality before the law of women
been entered into by the defendant without the knowledge and and men.
approval of the litigants or of competent judicial authority;
(5) All other contracts specially declared by law to be subject to Art. 403, NCC
rescission. (1291a) Notwithstanding the provisions of the preceding article, a
daughter above twenty-one but below twenty-three years of
Art.1491, NCC age cannot leave the parental home without the consent of the
The following persons cannot acquire by purchase, even at a father or mother in whose company she lives, except to become
public or judicial auction, either in person or through the a wife, or when she exercises a profession or calling, or when
mediation of another: the father or mother has contracted a subsequent marriage.
(1) The guardian, the property of the person or persons who (321a)
may be under his guardianship;
(2) Agents, the property whose administration or sale may have
Rule 3, Sec. 4, ROC
been intrusted to them, unless the consent of the principal has
Spouses as parties. Husband and wife shall sue or be sued
been given;
jointly, except as provided by law. (4a)
(3) Executors and administrators, the property of the estate
under administration;
(4) Public officers and employees, the property of the State or
of any subdivision thereof, or of any government-owned or
(k) Physical Incapacity/Disease
controlled corporation, or institution, the administration of which
has been intrusted to them; this provision shall apply to judges Art. 45 (5 & 6), FC
and government experts who, in any manner whatsoever, take A marriage may be annulled for any of the following causes,
part in the sale; existing at the time of the marriage:
(5) Justices, judges, prosecuting attorneys, clerks of superior ...
and inferior courts, and other officers and employees connected (5) That either party was physically incapable of consummating
with the administration of justice, the property and rights in the marriage with the other, and such incapacity continues and
litigation or levied upon an execution before the court within appears to be incurable; or
whose jurisdiction or territory they exercise their respective (6) That either party was afflicted with a sexually-transmissible
functions; this prohibition includes the act of acquiring by disease found to be serious and appears to be incurable. (85a)
assignment and shall apply to lawyers, with respect to the
property and rights which may be the object of any litigation in Art. 46, FC
which they may take part by virtue of their profession; Any of the following circumstances shall constitute fraud
(6) Any others specially disqualified by law. (1459a) referred to in Number 3 of the preceding Article:
(1) Non-disclosure of a previous conviction by final judgment of
the other party of a crime involving moral turpitude;
Art. 2236, NCC (2) Concealment by the wife of the fact that at the time of the
The debtor is liable with all his property, present and future, for marriage, she was pregnant by a man other than her husband;
the fulfillment of his obligations, subject to the exemptions (3) Concealment of sexually transmissible disease, regardless of
provided by law. (1911a) its nature, existing at the time of the marriage; or
(4) Concealment of drug addiction, habitual alcoholism or
70 Umale vs. ASB (2011) homosexuality or lesbianism existing at the time of the
- Corporate rehabilitation is defined as the restoration of marriage.
the debtor to a position of successful operation and No other misrepresentation or deceit as to character, health,
rank, fortune or chastity shall constitute such fraud as will give
solvency, if it is shown that its continuance of operation is
grounds for action for the annulment of marriage. (86a)
economically feasible and its creditors can recover by way
of the present value of payments projected in the plan
Art. 820, NCC
more if the corporation continues as a going concern than Any person of sound mind and of the age of eighteen years or
if it is immediately liquidated. more, and not blind, deaf or dumb, and able to read and write,
- This concept of preserving the corporations business as a may be a witness to the execution of a will mentioned in article
going concern while it is undergoing rehabilitation is 805 of this Code. (n)
called debtor-in-possession or debtor-in-place. This means
that the debtor corporation (the corporation undergoing 71 Heirs of Favis, sr. v GONZALES (2014)
rehabilitation), through its Board of Directors and - It was an error on the part of CA to dismiss the complaint
corporate officers, remains incontrol of its business and based on Art. 151 of the Family Code. The CA ignored the
properties, subject only tothe monitoring of the appointed facts of the case that clearly demonstrated the refusal by
rehabilitation receiver. the respondents to compromise. Instead it ordered the
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016 Page 26 of 84
dismissal of petitioners complaint on the ground that it common child, or a child of the petitioner, to engage in
did not allege what in fact was shown during the trial. In prostitution, or connivance in such corruption or inducement;
other words, the CA chose to refine it review to the (4) Final judgment sentencing the respondent to imprisonment
of more than six years, even if pardoned;
procedural aspect of the case.
(5) Drug addiction or habitual alcoholism of the respondent;
- SC agreed with the findings of the trial court regarding (6) Lesbianism or homosexuality of the respondent;
the validity of the donation. The trial court mentioned in (7) Contracting by the respondent of a subsequent bigamous
its decision that state/condition of the Dr. Favis at the marriage, whether in the Philippines or abroad;
time of execution of the donation must be taken into (8) Sexual infidelity or perversion;
account. Factors such as his age, health and environment (9) Attempt by the respondent against the life of the petitioner;
among others should be considered. Dr. Favis was already or
suffering from different illnesses such as like Hiatal (10) Abandonment of petitioner by respondent without
justifiable cause for more than one year.
hernia, Parkinsons disease and pneumonia, and such
For purposes of this Article, the term "child" shall include a child
illnesses had the effects of impairing his brain or mental by nature or by adoption. (9a)
faculties
- As further held by the trial court, although age of senility
Art. 101, FC
varies from one person to another, to reach the age of 92
If a spouse without just cause abandons the other or fails to
with all those medications and treatment one have comply with his or her obligations to the family, the aggrieved
received for those illnesses, yet claim that his mind spouse may petition the court for receivership, for judicial
remains unimpaired, would be unusual. separation of property or for authority to be the sole
administrator of the absolute community, subject to such
precautionary conditions as the court may impose.
D. DOMICILE AND RESIDENCE OF The obligations to the family mentioned in the preceding
PERSONS paragraph refer to marital, parental or property relations.
A spouse is deemed to have abandoned the other when her or
she has left the conjugal dwelling without intention of returning.
1. Juridical Persons The spouse who has left the conjugal dwelling for a period of
three months or has failed within the same period to give any
information as to his or her whereabouts shall be prima facie
Art. 51, NCC
presumed to have no intention of returning to the conjugal
When the law creating or recognizing them, or any other
dwelling. (178a)
provision does not fix the domicile of juridical persons, the same
shall be understood to be the place where their legal
representation is established or where they exercise their Art. 149, FC
principal functions. (41a) The family, being the foundation of the nation, is a basic social
institution which public policy cherishes and protects.
Consequently, family relations are governed by law and no
custom, practice or agreement destructive of the family shall be
2. Natural Persons recognized or given effect. (216a, 218a)
INTRODUCTION TO Section 3. Article 236 of the same Code is also hereby amended to
read as follows:
FAMILY CODE "Art. 236. Emancipation shall terminate parental authority over
the person and property of the child who shall then be qualified and
responsible for all acts of civil life, save the exceptions established
by existing laws in special cases.
A. EFFECT AND RETROACTIVITY "Contracting marriage shall require parental consent until the age of
twenty-one.
E.O. No. 209, as amended by E.O. No. 207
"Nothing in this Code shall be construed to derogate from the duty
or responsibility of parents and guardians for children and wards
Sec. 1. Article 26 of the Executive Order No. 209 is hereby below twenty-one years of age mentioned in the second and third
amended to read as follows: paragraphs of Article 2180 of the Civil Code."
"Art. 26. All marriage solemnized outside the Philippines Section 4. Upon the effectivity of this Act, existing wills, bequests,
in accordance with the laws in force in the country where donations, grants, insurance policies and similar instruments
they were solemnized, and valid there as such, shall also containing references and provisions favorable to minors will not
be valid in this country, except those prohibited under retroact to their prejudice.
Articles 35(1), (4), (5) and (6), 36, 37 and 38.
Section 5. This Act shall take effect upon completion of its
publication in at least two (2) newspapers of general circulation.
Where a marriage between a Filipino citizen and a
foreigner is validly celebrated and a divorce is thereafter
R.A. No. 7610
validly obtained abroad by the alien spouse capacitating
him or her to remarry, the Filipino spouses shall have
AN ACT PROVIDING FOR STRONGER DETERRENCE AND
capacity to remarry under Philippine law."
SPECIAL PROTECTION AGAINST CHILD ABUSE,
EXPLOITATION AND DISCRIMINATION, AND FOR OTHER
Sec. 2. Article 36 of Executive Order No. 209 is hereby amended to PURPOSES.
read as follows:
Art. 256, FC
"Art. 36. A marriage contracted by any party who, at the This Code shall have retroactive effect insofar as it does not
time of the celebration, was psychologically incapacitated prejudice or impair vested or acquired rights in accordance with the
to comply with the essential marital obligations of Civil Code or other laws.
marriage, shall likewise be void even if such incapacity
becomes manifest only after its solemnization." Art. 36, FC
A marriage contracted by any party who, at the time of the
celebration, was psychologically incapacitated to comply with the
Sec. 3. Article 39 of the Executive Order No. 209 is hereby essential marital obligation of marriage, shall likewise be void ecen
amended to read as follows: if such incapacity becomes manifest only after its solemnization.
"Art. 39. The action or defense for the declaration of Art. 39, FC
absolute nullity of marriage shall not prescribe. However, The action or defense for the declaration of absolute nullity of a
in the case of marriages celebrated before the effectivity marriage shall not prescribe.
of this Code and falling under Article 36, such action or
defense shall have taken effect." Art. 105, FC
In case the future spouses agree in the marriage settlements that
the regime of conjugal partnership of gains shall govern their
Sec. 4. This Executive Order shall take effect upon the effectivity of
property relations during marriage, the provisions in this Chapter
the Family Code of the Philippines.
shall be of supplementary application.
Art. 255, FC
If any provision of this Code is held invalid, all the other provisions
not affected thereby shall remain valid.
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016 Page 30 of 84
MARRIAGE &
violations.
Termination
Only by death or annulment, Can be dissolved by mutual
A man and woman not legally married who cohabit for many
Art. 14, P.D. No. 1083 years as husband and wife, who represent themselves to
Nature. Marriage is not only a civil contract but a social institution. the public as husband and wife, and who are reputed to be
Its nature, consequences and incidents are governed by this Code husband and wife in the community where they live may be
and the Shari'a and not subject to stipulation, except that the considered legally married in common law jurisdictions but
marriage settlements may to a certain extent fix the property not in the Philippines.
relations of the spouses. - The provisions of the Civil Code, unless expressly
providing to the contrary as in Article 144, when referring
79 Goitia vs. Campos-Rueda (1916) to a spouse contemplate a lawfully wedded spouse.
A marriage partakes of the nature of an ordinary
contract. But it is something more than a mere contract. It 85 Calimag vs. Heirs of Macapaz (2016)
is a new relation, the rights, duties and obligations of which It is well settled that other proofs can be offered to
rest not upon the agreement of the parties but upon the establish the fact of a solemnized marriage. Jurisprudence
general law which defines and prescribes those rights, teaches that the fact of marriage may be proven by relevant
duties and obligations. Marriage is an institution, in the evidence other than the marriage certificate. Hence, even a
maintenance of which in its purity the public is deeply person's birth certificate may be recognized as competent
interested. It is a relation for life and the parties cannot evidence of the marriage between his parents.
terminate it at any shorter period by virtue of any contract
they may make.
C. AGREEMENTS PRIOR TO
The law will not permit the husband to evade or terminate
his obligation to support his wife if the wife is driven away
MARRIAGE
from the conjugal home because of his wrongful acts. In
the case at bar, the wife was forced to leave the conjugal 1. Stipulations in Marriage
abode because of the lewd designs and physical assault of Art. 1, FC (see above)
the husband, she can therefore claim support from the
Art. 221, NCC
husband for separate maintenance even outside the
(1) Any contract for personal separation between husband and
conjugal home. wife;
(2) Every extra-judicial agreement, during marriage, for the
80 Sermonia vs. Republic dissolution of the conjugal partnership of gains or of the absolute
- The prescriptive period for the crime of bigamy should be community of property between husband and wife;
counted only from the day on which the said crime was (3) Every collusion to obtain a decree of legal separation, or of
discovered by the offended party, the authorities or their annulment of marriage;
agency. (4) Any simulated alienation of property with intent to deprive the
compulsory heirs of their legitime.
81 Perido vs. Perido (1975)
The presumption that persons living together husband and 86 Espinosa vs. Atty. Omana (2011)
wife are married to each other may be overcome only by SC has ruled that the extrajudicial dissolution of the
cogent proof on the part of those who allege the illegitimacy conjugal partnership without judicial approval is void. The
of children, explaining the rationale behind this presumption Court has also ruled that a notary public should not facilitate
the disintegration of a marriage and the family by
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016 Page 32 of 84
thereafter, a Justice of the Court of Appeals who cannot but HUNDRED NINE, AND FOR OTHER PURPOSES
have been fully aware of the consequence of a marriage Section 1. Article 234 of Executive Order No. 209, the Family
celebrated with all the necessary legal requisites. Code of the Philippines, is hereby amended to read as follows:
"Art. 234. Emancipation takes place by the attainment of
majority. Unless otherwise provided, majority commences at the
2. Essential Requisites age of eighteen years."
Section 2. Articles 235 and 237 of the same Code are hereby
(a) Legal Capacity repealed.
Section 3. Article 236 of the same Code is also hereby
amended to read as follows:
Legal capacity of the contracting parties is defined in "Art. 236. Emancipation shall terminate parental authority over
Art. 5 in relation to Art. 14 of the family code. This the person and property of the child who shall then be qualified
capacity requires, not only the minimum age provided and responsible for all acts of civil life, save the exceptions
by law, but also the parties should have no existing established by existing laws in special cases.
impediment between them. The impediment may be an "Contracting marriage shall require parental consent until the
existing relationship or a subsisting prior marriage. age of twenty-one.
"Nothing in this Code shall be construed to derogate from the
duty or responsibility of parents and guardians for children and
(i) Gender wards below twenty-one years of age mentioned in the second
and third paragraphs of Article 2180 of the Civil Code."
Art. 2 (1), FC Section 4. Upon the effectivity of this Act, existing wills,
No marriage shall be valid, unless these essential requisites are bequests, donations, grants, insurance policies and similar
present: instruments containing references and provisions favorable to
(1) Legal Capacity of the contracting parties who must be minors will not retroact to their prejudice.
a male and a female; and Section 5. This Act shall take effect upon completion of its
publication in at least two (2) newspapers of general circulation.
Cf. Art. 148, FC
In cases of cohabitation not falling under the preceding Article, Cf. Art. 21, FC
only the properties acquired by both of the parties through their When either or both of the contracting parties are citizens of a
actual joint contribution of money, property, or industry shall be foreign country, it shall be necessary for them before a
owned by them in common in proportion to their respective marriage license can be obtained, to submit a certificate of legal
contributions. In the absence of proof to the contrary, their capacity to contract marriage, issued by their respective
contributions and corresponding shares are presumed to be diplomatic or consular officials.
equal. The same rule and presumption shall apply to joint Stateless persons or refugees from other countries shall, in lieu
deposits of money and evidences of credit. of the certificate of legal capacity herein required, submit an
affidavit stating the circumstances showing such capacity to
If one of the parties is validly married to another, his or her contract marriage. (66a)
share in the co-ownership shall accrue to the absolute
community or conjugal partnership existing in such valid Art. 344, RPC
marriage. If the party who acted in bad faith is not validly Prosecution of the crimes of adultery, concubinage, seduction,
married to another, his or her shall be forfeited in the manner abduction, rape and acts of lasciviousness. - The crimes of
provided in the last paragraph of the preceding Article. adultery and concubinage shall not be prosecuted except upon
a complaint filed by the offended spouse.
The foregoing rules on forfeiture shall likewise apply even if
both parties are in both faith. (144a) The offended party cannot institute criminal prosecution without
including both the guilty parties, if they are both alive, nor, in
94 Silverio vs. Republic (2007) any case, if he shall have consented or pardoned the offenders.
A persons sex is an essential factor in marriage and family
relations. It is a part of a persons legal capacity and civil The offenses of seduction, abduction, rape or acts of
status. There is no such special law in the Philippines lasciviousness, shall not be prosecuted except upon a complaint
governing sex reassignment and its effects. filed by the offended party or her parents, grandparents, or
guardian, nor, in any case, if the offender has been expressly
pardoned by the above named persons, as the case may be.
(ii) Age
In cases of seduction, abduction, acts of lasciviousness and
Art. 5, FC rape, the marriage of the offender with the offended party shall
Any male or female of the age of eighteen years or upward not extinguish the criminal action or remit the penalty already
under any of the impediments mentioned in Articles 37 and 38, imposed upon him. The provisions of this paragraph shall also
may contract marriage. (54a) be applicable to the co-principals, accomplices and accessories
after the fact of the above-mentioned crimes.
Art. 35 (1), FC
Art. 35. The following marriages shall be void from the In the civil code, the minimum age of marriage was 14
beginning: for females and 16 for males. Keeping to the
(1) Those contracted by any party below eighteen years of age conventional view that people get married to have
even with the consent of parents or guardians;
children, it was physiological capability to procreate
which determined the minimum age to marry.
RA 6809
The Family Code moved up the minimum marriageable
AN ACT LOWERING THE AGE OF MAJORITY FROM
TWENTY-ONE TO EIGHTEEN YEARS, AMENDING FOR age and made such requiremtn uniform for both male
THE PURPOSE EXECUTIVE ORDER NUMBERED TWO and female. The rationale for this was to avoid
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016 Page 35 of 84
premature marriages, which have been proven to be 98 Avenido vs. Avenido (2014)
the cause of many broken marriages. While a marriage certificate is considered the primary
The new law increase the age of consent for marriage evidence of a marital union, it is not regarded as the sole
to the age of majority at which time the parties are and exclusive evidence of marriage. Jurisprudence teaches
deemed to have attained maturity. that the fact of marriage may be proven by relevant
evidence other than the marriage certificate. Hence, even a
(iii) Absence of impediment persons birth certificate may be recognized as competent
evidence of the marriage between his parents.
Art. 5, FC
Any male or female of the age of eighteen years or upward not In the case at bar, the establishment of the fact of marriage
under any of the impediments mentioned in Articles 37 and 38, was completed by the testimonies of Adelina, Climaco and
may contract marriage. (54a) Tecla; The unrebutted fact of the birth within the
cohabitation of Tecla and Eustaquio of four (4) children
Art. 35, FC coupled with the certificates of the childrens birth and
Art. 35. The following marriages shall be void from the baptism; And the certifications of marriage issued by the
beginning:
parish priest of the Most Holy Trinity Cathedral of Talibon,
(1) Those contracted by any party below eighteen years of age
even with the consent of parents or guardians; Bohol.
(2) Those solemnized by any person not legally authorized to
perform marriages unless such marriages were contracted with 3. Parental Consent
either or both parties believing in good faith that the
solemnizing officer had the legal authority to do so;
(3) Those solemnized without license, except those covered the Art. 14, FC
preceding Chapter; In case either or both of the contracting parties, not having
(4) Those bigamous or polygamous marriages not failing under been emancipated by a previous marriage, are between the
Article 41; ages of eighteen and twenty-one, they shall, in addition to the
(5) Those contracted through mistake of one contracting party requirements of the preceding articles, exhibit to the local civil
as to the identity of the other; and registrar, the consent to their marriage of their father, mother,
(6) Those subsequent marriages that are void under Article 53. surviving parent or guardian, or persons having legal charge of
them, in the order mentioned. Such consent shall be manifested
It is not enough that the parties have the required age
in writing by the interested party, who personally appears
of consent. There must be no legal impediment before the proper local civil registrar, or in the form of an
between them. The legal impediments are mentioned in affidavit made in the presence of two witnesses and attested
Art. 35-38 of the Family Code. before any official authorized by law to administer oaths. The
personal manifestation shall be recorded in both applications for
95 Garcia vs. Recio (2001) marriage license, and the affidavit, if one is executed instead,
A Filipino was divorced by his Australian spouse prior to his shall be attached to said applications. (61a)
acquiring Australian citizenship. To enable him to validly
remarry a Filipino, he was required to either present proof Art. 45 (1), FC
of his legal capacity issued by his Embassy or have the A marriage may be annulled for any of the following causes,
Australian divorce decree recognized by a Philippine court, existing at the time of the marriage:
otherwise his second marriage is void-bigamous.
(1) That the party in whose behalf it is sought to have the
marriage annulled was eighteen years of age or over but below
It is well settled in our jurisdiction that our courts cannot twenty-one, and the marriage was solemnized without the
take judicial notice of foreign laws. Like any other facts they consent of the parents, guardian or person having substitute
must be alleged and proved. Australian marital laws are not parental authority over the party, in that order, unless after
among those matter that judges are supposed to know by attaining the age of twenty-one, such party freely cohabited
reason of their judicial function. The power of judicial notice with the other and both lived together as husband and wife;
must be exercised with caution and every reasonable doubt
upon the subject should be resolved in the negative. REASON FOR PARENTAL CONSENT
The parental consent of parties below 21 years is
96 Te vs. Choa (2000) required in order to supplement the natural incapacity of
The pendency of the civil case for annulment of petitioners such parties, whose inexperience may lead them to a union
marriage did not give rise to a prejudicial question which which is difficult or prejudicial for them.
warranted the suspension of the proceedings in his criminal Such consent is a guaranty for securing, in so far as
case for bigamy since at the time of the alleged commission humanly possible, a stable marriage, which is indispensable
of the crime, his first marriage was, under the law, still valid foundation for a home useful to society.
and subsisting.
EFFECT OF PREVIOUS MARRIAGE A person below 21
97 Nollora vs. People (2011) who has been previously married, but whose marriage has
Even if Nollora was a Muslim at the time of celebration of terminated by death of the spouse does not need parental
both marriages, both marriage ceremonies were not consent to remarry even if he or she is still below 21.
conducted in accordance with the Code of Muslim Personal (Tolentino)
Laws, or PD. No. 1083, thus he cannot assert that he is
entitled to four marriages as a Muslim.
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016 Page 36 of 84
99 Anaya vs. Palaraon (1970) the very least, the proper way to keep himself out of harms
While a woman may detest such non- disclosure of way; thus, there was neither intimidation nor force exerted
premarital lewdness or feel having been thereby cheated into marriage.
into giving her consent to the marriage, nevertheless the
law does not assuage her grief after her consent was (e) Effect of physical incapacity
solemnly given, for upon marriage she entered into an Art. 45 (5), FC
institution in which society, and not herself alone, is A marriage may be annulled for any of the following causes,
interested. The lawmaker's intent being plain, the Court's existing at the time of the marriage:
duty is to give effect to the same, whether it agrees with xxx
the rule or not. (5) That either party was physically incapable of
consummating the marriage with the other, and such
incapacity continues and appears to be incurable; or
(d) Effect of force, intimidation and xxx
undue influence
Art. 45 (4), FC PHYSICAL INCAPACITY Refers to impotence or the
A marriage may be annulled for any of the following causes, total inability to have sexual intercourse with ones spouse.
existing at the time of the marriage: Impotence is the lack of power to copulate and is not
xxx synonymous with sterility.
(4) That the consent of either party was obtained by
force, intimidation or undue influence, unless the
same having disappeared or ceased, such party REQUISITES TO ANNUL MARRIAGE DUE TO
thereafter freely cohabited with the other as husband IMPOTENCY:
and wife; (1) The impotence must be present at the time of the
xxx marriage;
(2) The impotence is incurable
Art. 1335-1337, FC (3) The impotence is continuous
Article 1335. There is violence when in order to wrest
consent, serious or irresistible force is employed. Thus, if either one of the parties is impotent but its
There is intimidation when one of the contracting parties is cause, which could be emotional or physical, is
compelled by a reasonable and well-grounded fear of an
treatable by drug therapy, psychotherapy, surgery or
imminent and grave evil upon his person or property, or upon
the person or property of his spouse, descendants or some other medical intervention, there is no ground for
ascendants, to give his consent. annulling the marriage.
To determine the degree of intimidation, the age, sex and 101 Jimenez vs. Canizeres (1960)
condition of the person shall be borne in mind. Since the only evidence presented was Jimenez's testimony,
there was no sufficient basis to establish the wife's
A threat to enforce one's claim through competent authority, if impotency. However, the court refused to decide the case
the claim is just or legal, does not vitiate consent. (1267a)
based on the lone testimony of the husband. According to
Article 1336. Violence or intimidation shall annul the them, Impotency being an abnormal condition should not
obligation, although it may have been employed by a third be presumed. The presumption is in favor of potency." Their
person who did not take part in the contract. (1268) decision then was to remand the case for further
proceeding.
Article 1337. There is undue influence when a person takes
improper advantage of his power over the will of another, 102 Alcazar vs. Alcazar (2009)
depriving the latter of a reasonable freedom of choice. The Article 45(5) of the Family Code refers to lack of power to
following circumstances shall be considered: the confidential,
copulate. Incapacity to consummate denotes the permanent
family, spiritual and other relations between the parties, or the
fact that the person alleged to have been unduly influenced was inability on the part of the spouses to perform the complete
suffering from mental weakness, or was ignorant or in financial act of sexual intercourse. It may be caused by psychogenic
distress. (n) causes, where such mental block or disturbance has the
The test of force, intimidation and undue influence is result of making the spouse physically incapable of
subjective. The relevant question to be resolved is performing the marriage act
whether the person, taking into account his or her
peculiar circumstnaces, had no choice but to yield. No evidence was presented in the case at bar to establish
There is lack of consent as a consequence of duress. that respondent was in any way physically incapable to
consummate his marriage with petitioner. No evidence was
RATIFICIATION Although there was duress enough to presented in the case at bar to establish that respondent
overcome the will of the contracting party, the voluntary was in any way physically incapable to consummate his
cohabitation with the other spouse, no matter how brief, marriage with petitioner. Petitioner even admitted during
once the force, intimidation or undue influence has ceased, her cross-examination that she and respondent had sexual
will ratify the voidable marriage. intercourse after their wedding and before respondent left
for abroad.
100 Villanueva vs. CA (2006)
When a male spouse is a security guard, it is reasonable to (f) Effect of affliction with STD
assume that he knew the rudiments of self-defense, or, at Art. 45 (5), FC
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016 Page 38 of 84
A marriage may be annulled for any of the following causes, constitutes an absence of formal requisite of marriage;
existing at the time of the marriage: hence, their marriage is void ab initio.
xxx
(6) That either party was afflicted with a sexually-
107 Abbas vs. Abbas (2013)
transmissible disease found to be serious and appears
to be incurable. (85a)
It cannot be said that there was a simple irregularity in the
marriage license that would affect the validity of the
marriage, as no license was presented by the respondent.
The sexually transmissible disease that must have been
No marriage license was proven to have been issued by
present at the time of the celebration of the marriage
Gloria and Syed, based on the certification of the Municipal
must be serious and incurable.
Civil Registrar of Carmona, Cavite and Glorias failure to
produce a copy of the alleged marriage license
NO RATIFICATION FOR THIS CIRCUMSTANCE
The law does not consider the voluntary cohabitation
108 Kho vs. Republic (2016)
by the health spouse with the afflicted spouse as
Respondent failed to present evidence to support her
ratification.
allegation that she and the petitioner was able to obtain a
Despite willingness of the healthy spouse to have
marriage license.
sexual relations with the afflicted spouse, the law, as a
public health measure, offers the healthy spouse a way
The Court claimed that for a marriage to be considered void
out of the marriage in order to shield the latter and any
on the absence of marriage license, the law requires that
possible offspring from acquiring the disease.
the absence of such marriage license must be apparent on
the marriage contract, or at the very least, supported by a
certification from the local civil registrar that no such
5. Formal Requisites marriage license was issued to the parties which the
petitioner was able to present.
(a) Marriage license
1. Where to apply
103 Republic vs. CA (1994) Art. 9, FC
The certification of due search and inability to find issued by the
A marriage license shall be issued by the local civil registrar of the
civil registrar of Pasig enjoys probative value, he being the officer
city or municipality where either contracting party habitually
charged under the law to keep a record of all data relative to the resides, except in marriages where no license is required in
accordance with Chapter 2 of this title.
issuance of a marriage license. Based on said certification, the Court
held that there is absence of a marriage license that would render Art. 10, FC
Marriages between Filipino citizens abroad may be solemnized by a
the marriage void ab initio.
consul-general, consul or vice-consul of the Republic of the
Philippines. The issuance of the marriage license and the duties of
104 Sy vs. CA (2000) the local civil registrar and of the solemnizing officer with regards
The date of issue of the marriage license and marriage certificate,
to the celebration of marriage shall be performed by said consular
September 17, 1974, is contained in their marriage contract. The official.
date of celebration of their marriage, however, is November 15,
1973. Thus, on the day of the marriage ceremony, there was no VENUE OR PLACE OF MARRIAGE:
marriage license. 1. Solemnized by Judiciary member chamber of the judge
or sala in open court
105 Alcantara vs. Alcantara (2007) 2. Religious solemnizer church, temple, chapel of the
The certification issued by the local civil registrar enjoys the solemnizer involved
presumption that official duty has been regularly performed 3. Consul, Consul-general, Vice-Consul celebrated at office
and the issuance of the marriage license was done in the
regular conduct of official business. Issuance of a marriage EXCEPTIONS:
license in a city or municipality, not the residence of either 1. Marriage in point of death
contracting party, and issuance of a marriage license 2. Marriage contracted in a remote places (Art. 29)
despite the absence of publication, or prior to the 3. Both parties request solemnizing officer in writing and
completion of the 10-day period for publication, are under oath to solemnize elsewhere
considered mere irregularities that do not affect the validity
of the marriage. An irregularity in any of the formal 2. Requirements for issuance
requisites of marriage does not affect its validity but the
party or parties responsible for the irregularity are civilly, a. Application
criminally and administratively liable Art. 11, FC
Where a marriage license is required, each of the contracting
106 De Castro vs. De Castro (2008) parties shall file separately a sworn application for such license
The Court ruled that the false affidavit executed by the two with the proper local civil registrar which shall specify the
parties has no value at all for there was no continuous following:
cohabitation that took place. In effect, since the affidavit (1) Full name of the contracting party;
(2) Place of birth;
was considered as a mere scrap of paper, the parties were
(3) Age and date of birth;
not exempted from the marriage license requirement. (4) Civil status;
Thus, their failure to obtain and present a marriage license
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016 Page 39 of 84
(5) If previously married, how, when and where the previous In case of previous marriage
marriage was dissolved or annulled; Art. 13, FC
(6) Present residence and citizenship; In case either of the contracting parties has been previously
(7) Degree of relationship of the contracting parties; married, the applicant shall be required to furnish, instead of the
(8) Full name, residence and citizenship of the father; birth or baptismal certificate required in the last preceding article,
(9) Full name, residence and citizenship of the mother; and the death certificate of the deceased spouse or the judicial
(10) Full name, residence and citizenship of the guardian or person decree of the absolute divorce, or the judicial decree of
having charge, in case the contracting party has neither father nor annulment or declaration of nullity of his or her previous
mother and is under the age of twenty-one years. marriage.
The applicants, their parents or guardians shall not be required to
exhibit their residence certificates in any formality in connection In case the death certificate cannot be secured, the party shall
with the securing of the marriage license. make an affidavit setting forth this circumstance and his or her
actual civil status and the name and date of death of the deceased
Where? Local Civil Registrar of the City or Municipality spouse.
where either contracting party habitually resides.
*license obtained elsewhere --- mere irregularity
Parental Consent
What must be specified? Art. 11 Art. 14, FC
In case either or both of the contracting parties, not having been
emancipated by a previous marriage, are between the ages of
Document Accompanying the Application eighteen and twenty-one, they shall, in addition to the requirements
1. Birth Certificate or Baptismal Certificate (Art.12) of the preceding articles, exhibit to the local civil registrar, the
2. Death Certificate of Spouse, Divorce Decree, etc. (Art.13) consent to their marriage of their father, mother, surviving parent
3. Parental Consent (Art.14) or guardian, or persons having legal charge of them, in the order
4. Parental Advice (Art.15) mentioned. Such consent shall be manifested in writing by the
5. Certificate of Marriage Counseling (Art. 16) interested party, who personally appears before the proper local
6. Certificate of Legal Capacity civil registrar, or in the form of an affidavit made in the presence of
two witnesses and attested before any official authorized by law to
administer oaths. The personal manifestation shall be recorded in
b. proof of capacity both applications for marriage license, and the affidavit, if one is
Art. 12, FC executed instead, shall be attached to said applications.
The local civil registrar, upon receiving such application, shall require
the presentation of the original birth certificates or, in default
Art. 84, NCC
thereof, the baptismal certificates of the contracting parties or
copies of such documents duly attested by the persons
No marriage license shall be issued to a widow till after three
having custody of the originals. These certificates or certified
hundred days following the death of her husband, unless in the
copies of the documents by this Article need not be sworn to and
meantime she has given birth to a child.
shall be exempt from the documentary stamp tax. The signature and
official title of the person issuing the certificate shall be sufficient
proof of its authenticity.
c. parental advice
If either of the contracting parties is unable to produce his birth or Art. 15, FC
baptismal certificate or a certified copy of either because of the Any contracting party between the age of twenty-one and twenty-
destruction or loss of the original or if it is shown by an affidavit of five shall be obliged to ask their parents or guardian for advice upon
such party or of any other person that such birth or baptismal the intended marriage. If they do not obtain such advice, or if it be
certificate has not yet been received though the same has been unfavorable, the marriage license shall not be issued till after three
required of the person having custody thereof at least fifteen days months following the completion of the publication of the
prior to the date of the application, such party may furnish in lieu application therefor. A sworn statement by the contracting parties
thereof his current residence certificate or an instrument drawn up to the effect that such advice has been sought, together with the
and sworn to before the local civil registrar concerned or any public written advice given, if any, shall be attached to the application for
official authorized to administer oaths. marriage license. Should the parents or guardian refuse to give any
advice, this fact shall be stated in the sworn statement
Such instrument shall contain the sworn declaration of two witnesses
of lawful age, setting forth the full name, residence and citizenship of For Contracting Parties who are 21-23 years old.
such contracting party and of his or her parents, if known, and the If no advice given marriage license shall not be issued till
place and date of birth of such party.
after 3 months
The nearest of kin of the contracting parties shall be preferred as
witnesses, or, in their default, persons of good reputation in the d. marriage counseling
province or the locality. Art. 16, FC
In the cases where parental consent or parental advice
The presentation of birth or baptismal certificate shall not be required is needed, the party or parties concerned shall, in addition to the
if the parents of the contracting parties appear personally before the requirements of the preceding articles, attach a certificate issued
local civil registrar concerned and swear to the correctness of the by a priest, imam or minister authorized to solemnize marriage
lawful age of said parties, as stated in the application, or when the under Article 7 of this Code or a marriage counselor duly
local civil registrar shall, by merely looking at the applicants upon accredited by the proper government agency to the effect that the
their personally appearing before him, be convinced that either or contracting parties have undergone marriage counseling.
both of them have the required age.
Failure to attach said certificates of marriage counseling shall
suspend the issuance of the marriage license for a period of three
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016 Page 40 of 84
months from the completion of the publication of the application. and shall be deemed automatically canceled at the expiration of
Issuance of the marriage license within the prohibited period shall the said period if the contracting parties have not made use of it.
subject the issuing officer to administrative sanctions but shall not The expiry date shall be stamped in bold characters on the face
affect the validity of the marriage. of every license issued.
h. family planning certificate, Art. 30. The original of the affidavit required in the last
P.D. No. 965 preceding article, together with the legible copy of the marriage
A DECREE REQUIRING APPLICANT FOR MARRIAGE contract, shall be sent by the person solemnizing the marriage
LICENSE TO RECEIVE INSTRUCTIONS ON FAMILY to the local civil registrar of the municipality where it was
PLANNING AND RESPONSIBLE PARENTHOOD performed within the period of thirty days after the performance
of the marriage. (75a)
3. Place where valid Art. 31. A marriage in articulo mortis between passengers or
Art. 20, FC crew members may also be solemnized by a ship captain or by
The license shall be valid in any part of the Philippines for an airplane pilot not only while the ship is at sea or the plane is
a period of one hundred twenty days from the date of issue, in flight, but also during stopovers at ports of call. (74a)
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016 Page 41 of 84
When the acts referred to are executed before the diplomatic or 124 Republic vs. Orbecido III (2005)
consular officials of the Republic of the Philippines in a foreign Art. 26 applies where the parties were Filipino citizens at the
country, the solemnities established by Philippine laws shall be time of the marriage and later on, one of them becomes
observed in their execution. naturalized as a foreign citizen and obtains a divorce
xxx
decree: the reckoning point is their citizenship at the time
the valid divorce is obtained abroad by the alien spouse
(b) As to substantive requirements capacitating the latter to marry.
Art. 15, NCC
Laws relating to family rights and duties, or to the status, Filipino spouse should be allowed to remarry as if he or she
condition and legal capacity of persons are binding upon citizens
was a foreigner at the time of the solemnization of
of the Philippines, even though living abroad.
marriage. To rule otherwise would sanction absurdity and
injustice.
Art. 17 (3), NCC
xxx
Prohibitive laws concerning persons, their acts or property, and 125 Fujiki vs. Marinay (2013)
those which have for their object public order, public policy and Where the Court reiterated that for Philippine courts to
good customs shall not be rendered ineffective by laws or recognize a foreign judgment relating to the status of a
judgments promulgated, or by determinations or conventions marriage where one of the parties is a citizen of a foreign
agreed upon in a foreign country. country, the petitioner only need to prove the foreign
judgment as a fact under the Rules of Court.
2. Special rule in Marriage
Petitioner may prove the Japanese Family Court judgment
(a.) Lex Loci Celebrationis through: 1) an official publication or 2) a certification or
copy attested by the officer who has custody of the
judgment. The Court further held that A.M. No. 02-11-10-SC
Art. 26, FC does not apply to a petition for recognition of foreign
All marriages solemnized outside the Philippines, in accordance
judgment as this would mean that the trial court and the
with the laws in force in the country where they were
solemnized, and valid ther as such, shall also be valid in this parties will litigate the case anew.
country, except those prohibited under Articles 35(1), (4), (5),
(6), 36, 37 and 38 It will defeat the purpose of recognizing foreign judgment,
which is to limit repetitive litigation on claims and issues.
When a marriage between a Filipino Citizen and a foreigner is Once a foreign judgment is admitted and proven in a
validly celebrated and a divorce is thereafter validly obtained Philippine Court, it can only be repelled on ground external
abroad by the alien spouse capacitating him or her to remarry, to its merits.
the Filipino spouse shall likewise have the capacity to remarry
under Philippine law.
There is, therefore, no reason to disallow Fujiki to simply
prove as a fact the Japanese Family Court judgment
Art. 21, FC nullifying the marriage between Marinay and Maekara on
When either or both of the contracting parties are citizens of a the ground of bigamy. While Ph has no divorce law, the Jap
foreign country, it shall be necessary for them before a Family Court judgment is fully consistent with Ph public
marriage license can be obtained, to submit a certificate of policy, as bigamous marriages are declared void from the
legal capacity to contract marriage, issued by their respective beginning under Art. 35(4), FC.
diplomatic or consular officials.
Stateless persons or refugees from other countries shall, in lieu (b.) Exceptions
of the certificate of legal capacity herein required, submit an Art. 26, FC
affidavit stating the circumstances showing such capacity to See Above
contract marriage.
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016 Page 46 of 84
Art. 234, FC
126 Lesaca vs. Lesaca (1952) Emancipation takes place by the attainment of majority.
The mere fact that money owed was returned or repaid Unless otherwise provided, majority commences at the age of
eighteen years.
after marriage cannot convert it to conjugal property if there
is no proof that the sum paid was earned by the joint efforts
of the deceased and his widow. 130 So vs. Valera
A married couple cannot simply nullify their marriage
127 Yaptinchay vs. Torres (1969) through the non-appearance of one spouse and the
There must be proof that the property acquired by the uncorroborated declaration by the other spouse that the
labor, industry or efforts of both parties in an amorous marriage did not really take place.
relationship.
131 De Castro vs. De Castro
128 Eugenio vs. Velez (1990) A false affidavit of 5 year cohabitation results in the absence
A community of properties and interests which are governed of a valid marriage license.
by law requires that the man and woman living together
must not in any way be incapacitated to contract marriage. 132 Republic vs. Dayot (2008)
A marriage performed without the corresponding marriage
129 Estrada vs Escritor (2003) license is void, this being nothing more than the legitimate
On the basis of the constitutional freedom in the exercise of consequence flowing from the fact that the license is the
religion, a divided Court remanded to the Office of the Court essence of the marriage contract, in stark contrast to the
Administrator(which had earlier opined that the cohabitation old Marriage Law, whereby the absence of a marriage
of persons married to others violated the judiciarys high license did not make the marriage void; The rationale for
standard of morality and decency), to demonstrate how the the compulsory character of a marriage license under the
interest of preserving the integrity of the judiciary is so Civil Code is that it is the authority granted by the State to
compelling that it should override a plea of religious the contracting parties, after the proper government official
freedom nor is it shown that the means employed by the has inquired into their capacity to contract marriage.
govt. in pursuing its interest is the least restrictive to
respondents religious exercise. 133 Abbas vs. Abbas
See case 107
134 Kho vs. Republic
G. VOID MARRIAGES See case 108
Art. 39, FC and Dorothy could marry. Jordan sought to defend himself
The action or defense for the declaration of absolute nullity of a by claiming that he had believed in good faith that his prior
marriage shall not prescribe. marriage with complainant Dorothy Terre was null and void
ab initio and that no action for judicial declaration of nullity
Art. 41, FC was necessary. The Court considered this as a spurious
A marriage contracted by any person during subsistence of a defense. Jordan Terre, being a lawyer, knew or should
previous marriage shall be null and void, unless before the have known that such an argument ran counter to the
celebration of the subsequent marriage, the prior spouse had prevailing case law of the court, which holds that for
been absent for four consecutive years and the spouse present
purposes of determining whether a person is legally free to
has a well-founded belief that the absent spouse was already
dead. In case of disappearance where there is danger of death contract a second marriage, a judicial declaration that the
under the circumstances set forth in the provisions of Article first marriage was null and void ab initio is essential. His
391 of the Civil Code, an absence of only two years shall be second marriage must be regarded as bigamous and
sufficient. criminal in character.
spouse has not been judicially declared presumptively dead; 147 Capili vs. People (2013)
(3)He contracts a subsequent marriage; (4) And the Case where a Bigamy charged lodged, Mr. Capili filed a
subsequent marriage would have been valid had it not been Motion to Suspend Proceeding as his second wife had filed a
for the existence of the first. case for nullity of their marriage on the ground that it was
void. The nullity was granted; thus, Mr. Capili filed a Motion
The first element of bigamy as a crime requires that the to Dismiss, which was granted by the criminal court a quo.
accused must have been legally married. But in this case, The Court ruled that the subsequent declaration of nullity of
legally speaking, the petitioner was never married to Lucia the second marriage is not a ground for dismissal of the
Barrete. Thus, there is no first marriage to speak of. Under criminal case for Bigamy.
the principle of retroactivity of a marriage being declared
void ab initio, the two were never married from the 148 Abbas vs. Abbas (2013)
beginning. The existence and the validity of the first The court conveniently overlooked, perhaps intentionally,
marriage being an essential element of the crime of bigamy, their own finding of the fact that Syed and Gloria met and
it is but logical that a conviction for said offense cannot be got married in Taiwan. There is no discussion as to the
sustained where there is no first marriage to speak of. The validity of this first marriage which, by all intents and
petitioner, must, perforce be acquitted of the instant charge purposes, could well have been merely a ratification of
some sort, and, therefore, no marriage license would have
143 Tenebro vs. CA (2004) been needed- following the logic in the Zamoranos case.
The subsequent judicial declaration of nullity of marriage on
the ground of psychological incapacity does not retract to 149 Fujiki vs. Marinay (2013)
the date of the celebration of the marriage insofar as the *See case no. 125
Philippines penal laws are concerned. As such, an individual
who contracts a second or subsequent marriage during the 150 People vs. Odtuhan (2013)
substinence of a valid marriage is criminally liable for The SC reversed the CA and opined that in a Motion to
bigamy, notwithstanding the subsequent declaration that Quash, there is hypothetical admission of the facts alleges in
the second marriage is void ab initio on the ground of the information.
psychological incapacity (Justice Vitug, Concurring Opinion
& Justice Carpio, Dissent) In reversing the CA, the Court unfortunately used as bases
the cases of Montanez, Teves and Antone. Unfortunate,
144 Teves vs. People (2011) because these cases deal with marriages which are not void
The requirement for a declaration of absolute nullity od a due to absence of a formal requisite, such as a marriage
marriage is also for the protection of the spouse who, license.
believing that his or her marriage is illegal and void, marries
again. With the judicial declaration of the nullity of his or 151 Iwasawa vs. Gangan (2013)
her marriage, the person who marries again cannot be There is no question that the documentary evidence
charged with bigamy. A judicial declaration of marriage can submitted by petitioner are all public documents. As
be contracted; or else, what transpires is a bigamous provided in the Civil Code:
marriage, reprehensible and immoral. ART. 410. The books making up the civil register and all
documents relating thereto shall be considered public
145 Nollora vs. People (2011) documents and shall be prima facie evidence of the facts
therein contained.
The circumstances in the present case satisfy all the
As public documents, they are admissible in evidence even
elements of bigamy. 1) Nollora is legally married to Pinat; 2)
without further proof of their due execution and
Nollora and Pinats marriage has not been legally dissolved
genuineness. Thus, the RTC erred when it disregarded said
prior to the date of the second marriage; 3) Nollora
documents on the sole ground that the petitioner did not
admitted the existence of his second marriage to Geraldino;
present the records custodian of the NSO who issued them
and 4) Nollora and Geraldinos marriage has all the essential
to testify on their authenticity and due execution since proof
requisites for validity except for the lack of capacity of
of authenticity and due execution was not anymore
Nollora due to his prior marriage.
necessary. Moreover, not only are said documents
admissible, they deserve to be given evidentiary weight
146 Montanez vs. Cipriano (2012)
because they constitute prima facie evidence of the facts
The SC held that the felony is consummated on the
stated therein. And in the instant case, the facts stated
celebration of the second marriage or subsequent marriage;
therein remain unrebutted since neither the private
that the annulment of respondents first marriage on the
respondent nor the public prosecutor presented evidence to
ground of psychological incapacity was of no effect as there
the contrary.
is a recognition written into the law itself that such a
marriage, although void ab initio, may still produce legal
152 SSS vs. Azote (2015)
consequences; and that Art. 40, which is a rule of
Applying Section 8(e) and (k) of R.A. No. 8282 (SS Law), it
procedure, should be applied retroactively because Art. 256,
is clear that only the legal spouse of the deceased member
FC itself provides that said Code shall have retroactive
is qualified to be the beneficiary of the latters SS benefits.
effect insofar as it does not prejudice or impair vested or
In this case, there is a concrete proof that Edgardo
acquired rights.
contracted an earlier marriage with another individual as
evidenced by their marriage contract. Edgardo even
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016 Page 50 of 84
acknowledged his married status when he filled out the (4) The innocent spouse may revoke the designation of the
1982 Form E4 designating Rosemarie as his spouse. other spouse who acted in bad faith as beneficiary in any
insurance policy, even if such designation be stipulated as
irrevocable; and
Settled is the rule that whoever claims entitlement to the
(5) The spouse who contracted the subsequent marriage in
benefits provided by law should establish his or her right bad faith shall be disqualified to inherit from the innocent
thereto by substantial evidence. Edna could not adduce spouse by testate and intestate successon. (n)
evidence to prove that the earlier marriage of Edgardo was
either annulled or dissolved or whether there was a Art. 44, FC
declaration of Rosemaries presumptive death before her If both spouses of the subsequent marriage acted in bad faith,
marriage to Edgardo. What is apparent is that Edna was the said marriage shall be void ab initio and all donations by reason
second wife of Edgardo. Considering that Edna was not able of marriage and testamentary dispositions made by one in favor
of the other are revoked by operation of law. (n)
to show that she was the legal spouse of a deceased
member, she would not qualify under the law to be the
Art. 390, NCC
beneficiary of the death benefits of Edgardo.
After an absence of seven years, it being unknown whether or
not the absentee still lives, he shall be presumed dead for all
(c) Subsequent marriage, upon purposes, except for those of succession.
reappearance of absent spouse The absentee shall not be presumed dead for the purpose of
opening his succession till after an absence of ten years. If he
Art. 41, FC
disappeared after the age of seventy-five years, an absence of
A marriage contracted by any person during the subsistence of
five years shall be sufficient in order that his succession may be
a previous marriage shall be null and void, unless before the
opened. (n)
celebration of the subsequent marriage, the prior spouse had
been absent for four consecutive years and the spouse present
Art. 391, NCC
had a well-founded belief that the absent spouse was already
The following shall be presumed dead for all purposes, including
dead. In case of disappearance where there is danger of death
the division of the estate among the heirs:
under the circumstances set forth in the provisions of Article
(1) A person on board a vessel lost during a sea voyage, or an
391 of the Civil Code, an absence of only two years shall be
aeroplane which is missing, who has not been heard of for
sufficient.
four years since the loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war,
For the purpose of contracting the subsequent marriage under
and has been missing for four years;
the preceding paragraph, the spouse present must institute a
(3) A person who has been in danger of death under other
summary proceeding as provided in this code for the declaration
circumstances and his existence has not been known for
of presumptive death of the absentee, without prejudice to the
four years. (n)
effect of reappearance of the absent spouse. (83a)
Art. 55, FC
Art. 42, FC
A petition for legal separation may be filed on any of the
The subsequent marriage referred to in the preceding article
following grounds:
shall be automatically terminated by the recording of the
XXX
affidavit of reappearance of the absent spouse, unless there is a
(9) Attempt by the respondent against the life of the
judgment annulling the previous marriage or declaring it void ab
petitioner; or
initio.
XXX
A sworn statement of the fact and circumstances of
reappearance shall be recorded in the civil registry of the Art. 101, FC
residence of the parties to the subsequent marriage at the If a spouse without just cause abandons the other or fails to
instance of any interested person, with due notice to the comply with his or her obligations to the family, the aggrieved
spouses of the subsequent marriage and without prejudice to spouse may petition the court for receivership, for judicial
the fact of the reappearance being judicially determined in case separation of property or for authority to be the sole
such fact is disputed. (n) administrator of the absolute community, subject to such
precautionary conditions as the court may impose.
Art. 43, FC
The termination of the subsequent marriage referred to in the The obligations to the family mentioned in the preceding
preceding Article shall produce the following effects: paragraph refer to marital, parental or property relations.
(1) The children of the subsequent marriage conceived prior to
its termination shall be considered legitimate, and their A spouse is deemed to have abandoned the other when her or
custody and support in case of dispute shall be decided by she has left the conjugal dwelling without intention of returning.
the court in a proper proceeding; The spouse who has left the conjugal dwelling for a period of
(2) The absolute community of property or the conjugal three months or has failed within the same period to give any
partnership, as the case may be, shall be dissolved and information as to his or her whereabouts shall be prima facie
liquidated, but if either spouse contracted said marriage in presumed to have no intention of returning to the conjugal
bad faith, his or her share of the net profits of the dwelling. (178a)
community property or conjugal partnership property shall
be forfeited in favor of the common children or, if there are General Rule: The subsequent bigamous marriage under
none, the children of the guilty spouse by a previous Art. 41, FC remains valid despite reappearance of the
marriage or in default of children, the innocent spouse; absentee spouse
(3) Donations by reason of marriage shall be remain valid,e
xcept that if the donee contracted the marriage in bad faith
as beneficiary in any insurance policy, even if such
Exception: Subsequent marriage is automatically
designation be stipulated as irrevocable; and terminated if the reappearance was recorded in a sworn
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016 Page 51 of 84
statement in the civil registry of the residence of the parties inquiries to locate the absent spouse and that based on
to the subsequent marriage at the instance of any these efforts and inquiries, he/she believes that under the
interested person with due notice to said spouses, without circumstances, the absent spouseis already dead. It requires
prejudice to the fact of reappearance being judicially exertion of active effort (not a mere passive one).
determined in case such fact is disputed.
158 Republic vs. Hon. Estrada (2015)
Exception to the exception: If there was a previous Diego's absence for more than 30 years, which far exceeded
judgment declaring the first marriage a nullity, the the law-required four years of absence, is more than
subsequent marriage remains valid. enough to declare him presumptively dead for all legal
intents and purposes. Further, it can be clearly gleaned from
153 Jones vs. Hortiguela (1937) the totality of evidence that Diego had already died due to
Absence should be counted from the date on which the last the prevalence of New People's Army in Malaybalay.
news concerning the absentee was received.
159 Republiv vs. Villanueva (2015)
154 Repulic vs. Nolasco (1993) Applying the standard set forth by the Court in the
There is no well-founded belief that the absent spouse is previously cited cases, particularly Cantor, Ednas efforts
already dead when the present party fails to conduct a failed to satisfy the required well-founded belief of her
diligent search for the missing party. absent husbands death.
Reason: This is intended to protect the present spouse from Her claim of making diligent search and inquiries remained
criminal persecution for Bigamy. However, if the bigamous unfounded as it merely consisted of bare assertions without
marriage was committed abroad, the guilty party cannot be any corroborative evidence on record. She also failed to
criminally prosecuted for bigamy in the Philippines as our present any person from whom she inquired about the
penal statutes are territorial in nature. whereabouts of her husband. She did not even present her
children from whom she learned the disappearance of her
155 Bienvenido vs. CA (1994) husband. In fact, she was the lone witness. Following the
The spouse who left cannot be the spouse who will seek to basic rule that mere allegation is not evidence and is not
declare the other spouse presumptively dead. equivalent to proof, the Court cannot give credence to her
claims that she indeed exerted diligent efforts to locate her
156 SSS vs. Jarque (2006) husband
Old Civil Code applies in the present case since the two
marriages involved were solemnized before effectivity of FC] 160 Republic vs. Tampus (2016)
Under the Old Civil Code, in cases wherein Art. 83 applies, The "well-founded belief' in the absentee's death requires
marriages under any of the exceptional cases described the present spouse to prove that his/her belief was the
therein is deemed valid until declared null and void by a result of diligent and reasonable efforts to locate the absent
competent court. It follows that the obligation to prove spouse and that based on these efforts and inquiries,
nullity of these marriages rests on the part assailing the he/she believes that under the circumstances, the absent
second marriage. spouse is already dead. It necessitates exertion of active
effort, not a passive one.
If the absentee reappears, but no step is taken to terminate
the subsequent marriage, either by affidavit or by court Nilda made no further efforts to find her husband. She could
action, such absentees mere reappearance, even if made have called or proceeded to the AFP headquarters to
known to the spouses in the subsequent marriage, will not request information about her husband, but failed to do so.
terminate such marriage. Since the second marriage has She didn not even seek help of authorities or AFP itself in
been contracted because of a presumption that the former finding him. Nilda failed to actively look for her missing
spouse is dead, such presumption continues inspite of the husband, and her purported earnest efforts to find him by
spouses physical reappearance, and by fiction of law, he or asking Dantes parents, relatives, and friends did not satisfy
she must still be regarded as legally an absentee until the the strict standard and degree of diligence required to
subsequent marriage is terminated as provided by law. create a well-founded belief of his death.
degree, to elucidate the inquiry or assist to a determination The management of the household shall be the right and the
probably founded in truth. Any fact or circumstance relating duty of both spouses. The expenses for such management shall
to the character, habits, conditions, attachments, prosperity be paid in accordance with the provisions of Article 70. (115a)
and objects of life which usually control the conduct of men,
Art. 72, FC
and are the motives of their actions, was, so far as it tends When one of the spouses neglects his or her duties to the
to explain or characterize their disappearance or throw light conjugal union or commits acts which tend to bring danger,
on their intentions, competence evidence on the ultimate dishonor or injury to the other or to the family, the aggrieved
question of his death. party may apply to the court for relief. (116a)
The belief of the present spouse must be the result of Art. 73, FC
proper and honest to goodness inquiries and efforts to Either spouse may exercise any legitimate profession,
occupation, business or activity without the consent of the
ascertain the whereabouts of the absent spouse and
other. The latter may object only on valid, serious, and moral
whether the absent spouse is still alive or is already dead. grounds.
Whether or not the spouse present acted on a well founded
belief of death of the absent spouse depends upon the In case of disagreement, the court shall decide whether or not:
inquiries to be drawn from a great many circumstances (1) The objection is proper, and
occurring before and after the disappearance of the absent (2) Benefit has occurred to the family prior to the objection or
spouse and the nature and extent of the inquiries made by thereafter. If the benefit accrued prior to the objection, the
present spouse. resulting obligation shall be enforced against the separate
property of the spouse who has not obtained consent.
(d) Bad faith of both spouses The foregoing provisions shall not prejudice the rights of
Art. 44, FC creditors who acted in good faith. (117a)
If both spouses of the subsequent marriage acted in bad faith,
said marriage shall be void ab initio and all donations by reason RA 8533
of marriage and testamentary dispositions made by one in favor
of the other are revoked by operation of law. (n) AN ACT AMENDING TITLE I, CHAPTER 3, ARTICLE 39 OF
EXECUTIVE ORDER NO. 209, OTHERWISE KNOWN AS
(e) Psychological Incapacity THE FAMILY CODE OF THE PHILIPPINES, NULLIFYING
Art. 36, FC THE PRESCRIPTIVE PERIOD FOR ACTION OR DEFENSES
A marriage contracted by any party who, at the time of the GROUNDED ON PSYCHOLOGICAL INCAPACITY
celebration, was psychologically incapacitated to comply with
the essential marital obligations of marriage, shall likewise be Section 1. Title I, Chapter 3, Article 39 of Executive Order No.
void even if such incapacity becomes manifest only after its 209, otherwise known as the Family Code of the Philippines, is
solemnization. (As amended by Executive Order 227) hereby amended to read as follows:
TITLE I MARRIAGE
Art. 39, FC
CHAPTER 3 VOID AND VOIDABLE MARRIAGES
The action or defense for the declaration of absolute nullity shall
Art. 39. The action or defense for the declaration of absolute
not prescribe. However, in case of marriage celebrated before
nullity of a marriage shall not prescribe.
the effectivity of this Code and falling under Article 36, such
action or defense shall prescribe in ten years after this Code
shall taken effect. (As amended by Executive Order 227) (n) 162 Santos vs. CA (1995)
Requisites of Psychological Incapacity
Art. 68, FC 1. Juridical Antecedence- must be rooted in the history of
The husband and wife are obliged to live together, observe the party antedating the marriage, although the overt
mutual love, respect and fidelity, and render mutual help and manifestations may emerge only after the marriage
support. (109a) 2. Incurability- must be incurable or, even if it were
otherwise, the cure would be beyond the means of the
Art. 69, FC
party involved; and
The husband and wife shall fix the family domicile. In case of
disagreement, the court shall decide. 3. Gravity- must be grave/serious such that the party would
be incapable of carrying out the ordinary duties required in
The court may exempt one spouse from living with the other if marriage.
the latter should live abroad or there are other valid and
compelling reasons for the exemption. However, such The court ruled that there is psychological incapacity
exemption shall not apply if the same is not compatible with the in the following instances:
solidarity of the family. (110a) 163 Chi Ming Tsoi vs CA (1997)
May invoke a senseless, protracted and constant refusal to
Art. 70, FC
The spouses are jointly responsible for the support of the comply with the essential marital obligations by one or both
family. The expenses for such support and other conjugal of the spouses although he, she or they are physically
obligations shall be paid from the community property and, in capable of performing such obligations.
the absence thereof, from the income or fruits of their separate
properties. In case of insufficiency or absence of said income or 169 Antonio vs. Reyes (2005)
fruits, such obligations shall be satisfied from the separate A person who is unable to distinguish between fantasy and
properties. (111a) reality would be unable to comprehend the legal nature of
the marital bond much less its psychic meaning and the
Art. 71, FC
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016 Page 53 of 84
obligations attached to the marriage, including parenting. totality, should be sufficient to convince the court of the
One unable to adhere to reality cannot be expected to psychological incapacity of the party concerned.
adhere as well to any legal or emotional commitments. No expert witness is required
164 Republic vs. Molina (1997) 167 Republic vs. Dadag (2001)
The court herein laid down the following guidelines in the There was failure to comply with the guideline which
interpretation and application of Art. 36 of the Family Code: requires that the root cause of psychological incapacity must
(1) The burden of proof to show the nullity of the be medically or clinically identified and sufficiently proven by
marriage belongs to the plaintiff. This is to be investigated experts, since no psychiatrist or medical doctor testifies as
by the OSG fro collusion to the alleged psychological incapacity of the spouse.
(2) The root cause of the psychological incapacity
must be: (a) medically or clinically identified, (b) alleged in 168 Republic vs. Quintero-Hamano (2004)
the complaint, (c) sufficiently proven by the experts, (d) There is no distinction between an alien spouse and a
clearly explained in the decision. Filipino spouse. Hence, the norms used for determining
(3) The incapacity must be proven to be existing at psychological incapacity should apply to any person,
the time of the celebration of the marriage. regardless of nationality.
(4) Such incapacity must also be shown to be
medically or clinically permanent or incurable. 169 Antonio vs. Reyes (2005)
(5) Such illness must be grave enough to bring about *See after case no. 163
the disability of the party to assume the essential
obligations of marriage. 170 Republic vs. Tanyag-San Jose (2007)
(6) The essential marital obligations must be those There is no requirement that the person sought to be
embrace by Art. 68-71 of the Family Code as regards the declared psychologically incapacitated should be personally
husband and wife as well as Art. 220, 221, and 225 of the examined by a physician or psychologist as a condition sine
same Code in regard to parents and their children. qua non to arrive at such declaration. It can be proven by
(7) Interpretations given by the Natl Appellate independent means that one is psychologically
Matrimonial Tribunal of the Catholic Church in the incapacitated; there is no reason why the same should not
Philippines, while not controlling/decisive, should be given be credited.
great respect by our courts.
(8) The trial court must order the prosecuting attorney 171 Almelor vs. RTC Las Pinas (2008)
or fiscal and the SolGen to appear as counsel for the state. The SC emphasized that homosexuality per se is not a
No decision shall be handed down unless the SolGen issues ground to nullify a marriage. It is the concealment of
a certification. homosexuality that would. In the case at bar however, it is
not proven that Manuel is a homosexual. The lower court
Short version: (PROBE-PIG) should not have taken the publics perception against
1. Incapacity must be Permanent and incurable Manuels sexuality. Even granting that Manuel is indeed a
2. Root cause of the psychological incapacity must be: homosexual, there was nothing in the complaint or
a. Medically or clinically identified anywhere in the case was it alleged and proven that Manuel
b. Alleged in the complaint: sufficiently proven by experts, hid such sexuality from Leonida and that Leonidas consent
clearly explained in the decision had been vitiated by such.
3. Marital Obligations refer to Art. 68-71, 220,221-225, FC
4. Plaintiff has Burden of proof 172 Te vs Te (2009)
5. Incapacity proven to be Existing at the time of the SC stressed that it is the court, on a case to case basis,
marriage which determines whether a party to a marriage is
6. Trial court must order the Prosecuting attorney or the psychologically incapacitated and that each case should be
fiscal and the SolGen to appear for the state related differently. In ruling that the Molina case was
7. Interpretations of the National Apellate Matrimonial inapplicable, the court declared that cases of psychological
Tribunal of the Catholic Church of the Philippines while not incapacity should be decided not on the basis of a priori
controlling should be given great respect. assumptions, predictions or generalizations but according to
8. Illness is Grave enough to bring about disability to its own facts.
assume essential marital obligations.
While it was not suggesting the abandonment of the Molina
165 Hernandez vs. CA (1999) doctrine, it ruled that said doctrine has become a strait
Expert testimony should have been presented to establish jacket, forcing all sizes to fit into and be bound by it, and in
the precise cause of private respondents psychological conveniently applying said doctrine, has allowed diagnosed
incapacity, if any, in order to show that it existed at the sociopaths, nymphomaniacs, schizophrenics to continuously
inception of marriage. debase and pervert the sanctity of marriage.
spouse.
Dr. Zalsos failed to:
174 Halili vs. Halili (2009) 1) identify in reasonable detail how Ns condition is deeply
On a motion for reconsideration, the SC reversed it denial of rooted, grave and incurable.
a petition for declaration of nullity of marriage on Art. 36; 2) show the types of tests she did
ruled that the testimony of petitioners expert witness 3) show incapacity existed at the time of marriage.
revealed that petitioner was suffering from dependent 4) provide scientific basis on incurability
personality disorder; and found that individuals with
diagnosable personality disorders usually have long-term Psychological incapacity most serious of conditions only
concerns; thus, therapy may be long-term.
181 Vinas vs. Parel-Vinas (2015)
175 Najera vs. Najera (2009) Cumulative testimonies of G, Dr. T and Cousin are not
When the basis for declaration of nullity of marriage by the sufficient to prove the root cause, gravity and incurability of
National Apellate Matrimonial Tribunal is not in the 3rd M.Gs condition. Departure from home of M.G. does not
paragraph of Canon 1095 which mentions causes of a constitute inability to live with husband as the two were able
psychological nature, but the second par. of Canon 1095 to live together for 7 years.
which refers to those who suffer from a grave lack of
discretion of judgment concerning essential matrimonial There is inadequate basis for the Court to conclude that
rights and obligations to be mutually given and accepted, M.G. is indeed psychologically incapacitated.
the decision of the Tribunal is no persuasive on the Court.
182 Malilin vs. Jamesolamin (2015)
176 Camacho-Reyes vs. Reyes R.M. failed to establish the psych incapacity of L.J.
A recommendation for therapy does not automatically imply As correctly found by the CA, sexual infidelity or perversion
curability. and abandonment do not, by themselves, constitute
grounds for psychological incapacity.
177 Kalaw vs. Fernandez (2011)
Immaturity and irresponsibility in performing their marital (f) Incestuous Marriages
and familial obligations, sexual infidelity per se, and Art. 37, FC
acrimony may be grounds for legal separation, but not for Marriages between the following are incestuous and void from
psychological incapacity that voids a marriage. the beginning, whether relationship between the parties be
legitimate or illegitmate:
178 Kalaw vs. Fernandez (2015) (1) Between ascendants and descendants of any degree;
and
In 2015, with Justice Lucas Bersamin as ponente, the
(2) Between brothers and sisters, whether the full or half-
Supreme Court reconsidered its earlier decision. The blood.
Supreme Court, lest it be misunderstood, explicitly stated
that its not abandoning Molina. The Court, bound by the See Art. 963-967, NCC
same set of proven facts, clarified that the failure to show Relationship, Legal and Intestate Succession
the frequency of mahjong sessions does not preclude
a finding of psychological incapacity. Its not the (g) Marriages against Public Policy
FREQUENCY of the mahjong sessions; its the fact that the Art. 38, FC
respondent-wife should have known that bringing her The following marriages shall be void from the beginning for
children along her children of very tender ages to her reasons of public policy:
mahjong sessions would expose them to a culture of (1) Between collateral blood relatives, whether legitimate or
gambling and other vices that would erode their moral illegitimate, up to the fourth civil degree;
fiber. This, based on the totality of facts in the case, (2) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
supports the finding of psychological incapacity. This ruling
(4) Between the adopting parent and the adopted child;
is very much consistent with the Molina Doctrine. There is (5) Between the surviving spouse of the adopting parent and the
no relaxation of the rules in this respect. adopted child;
(6) Between the surviving spouse of the adopted child and the
179 Mendoza vs. Republic (2012) adopter;
Even if the expert opinions of psychologists are not (7) Between an adopted child and a legitimate child of the
conditions sine qua non in the granting of petitions for adopter;
declaration of nullity of marriage, the actual medical (8) Between adopted children of the same adopter; and
(9) Between parties where one, with the intention to marry the
examination is to be dispensed with only if the totality of
other, killed that other persons spouse, or his or her own
evidence presented is enough to support a finding of spouse.
psychological incapacity. What is essential is the presence
of evidence that can adequately establish the partys Mnemonics: CS-PASS-AKA
psychological condition.
Art. 38(6), FC vs. Art. 80(6), NCC vs. Art. 246 RPC vs.
180 Republic vs. De Gracia (2014) Art. 80(7) and 82 vs. Arts. 963-967, NCC
SC reversed decisions as the court believes that Ns refusal
to live with R and to assume wife and mom duties do not The following can now marry each other:
rise to the level of psychological incapacity.
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016 Page 55 of 84
1. Brother-in-law & Sister-in-law parties shall cause the publication of the Decree once in a
2. Stepbrother & Stepsister newspaper of general circulation.
3. Guardian and ward (c) The registered Decree shall be the best evidence to prove the
declaration of absolute nullity or annulment of marriage and shall
4. Adopted & Illegitimate child, parents and relatives by
serve as notice to third persons concerning the properties of
consanguinity or affinity of the adopter petitioner and respondent as well as the properties or presumptive
5. Parties who have been convicted of adultery or legitimes delivered to their common children.
concubinage
6. Collateral relatives by the half blood
2. Who Can Invoke Nullity
Art. 36, FC
Views on Termination of Marriage on the Affinity
A marriage contracted by any party who, at the time of the
Prohibition celebration, was psychologically incapacitated to comply with the
1. Relationship by affinity terminates with the termination of essential marital obligation of marriage, shall likewise be void even
marriage whether or not there are children in the marriage if such incapacity becomes manifest only after its solemnization.
2. Relationship by affinity is dissolved if one of the spouses
dies and the spouses have no living issues or children | It Art. 39, FC
does not cease if there are living issues or children in whose The action or defense for the declaration of absolute nullity of a
veins the blood of the parties are commingled as marriage shall not prescribe.
relationship by affinity continues.
Art. 40, FC
3. Continuing Affinity View What the PH follows The absolute nullity of previous marriage may be invoked for
Never terminates even with death purposes of remarriage on the basis solely of a final judgment
declaring such previous marriage void.
(h) Non-Compliance under Art. 53, 52 | Sec.
Sec. 2, A.M. 02-11-10-SC
21, 22 and 23, A.M. No. 02-11-10-SC, March xxx A petition for Declaration of Absolute Nullity of a Void Marriage
4, 2003 may be filed solely by the husband or the wife.
Art. 52, FC
The judgment of annulment or of absolute nullity of the marriage,
183 Ninal vs. Bayadog (2000)
the partition and distribution of the properties of the spouses, and
the delivery of the childrens presumptive legitimes shall be
For purposes other than remarriage, such as but not limited
recorded in the appropriate civil registry and registries of property; to determination of heirship, legitimacy or illegitimacy of a
otherwise, the same shall not affect third persons. (n) child, settlement of estate, dissolution of property regime or
Art. 53, FC criminal case, other evidence is acceptable to show the
Either of the former spouses may marry again after complying nullity of marriage so long as it is essential to the
with the requirements of the immediately preceding Article; determination of the case.
otherwise, the subsequent marriage shall be null and void.
On Proof of Divorce
Sec. 21, A.M. No. 02-11-10-SC
Upon entry of the judgment granting the petition, or, in case of
184 Amor-Catalan vs CA (2007)
appeal, upon receipt of the entry of judgment of the appellate Party pleading it must prove divorce as a fact and
court granting the petition, the Family Court, on motion of either demonstrate its conformity to the foreign law allowing it,
party, shall proceed with the liquidation, partition and distribution which must be proved as courts cannot take judicial notice
of the properties of the spouses, including custody, support of of foreign laws. If a valid divorce decree has been obtained
common children and delivery of their presumptive legitimes abroad, there is no more need to file an action to nullify the
pursuant to Articles 50 and 51 of the Family Code unless such marriage. The plaintiff has no more personality to sue since
matters had been adjudicated in previous judicial proceedings.
the marriage bond has already been severed.
Sec. 22, A.M. No. 02-11-10-SC
The court shall issue the Decree of declaration of absolute nullity
or annulment of marriage after compliance with the following 185 Enrico vs. Heirs od Medinacelli (Eulogio and
requirements: Trinidad)(2007)
(1) registration of the entry of judgment granting the petition for Pursuant to A.M. No. 02-11-10-SC, a petition for declaration
declaration of nullity or annulment of marriage in the Civil Registry of absolute nullity of void marriages may be filed solely by
where the marriage was celebrated and in the Civil Registry of the the husband or the wife. Thus, compulsory or intestate heirs
place where the Family Court is located; (2) registration of the can question the validity of the marriage of the spouses, not
approved partition and distribution of the properties of the
in a proceeding for the declaration of nullity, but upon the
spouses, in the proper
Register of Deeds where the real properties are located; and (3)
death of a spouse in a proceeding for the settlement of the
the delivery of the childrens presumptive legitimes in cash, estate of the deceased spouse filed in the regular courts.
property, or sound securities. The court shall quote in the Decree
the dispositive portion of the judgment entered and attach to the 186 Carlos vs. Sandoval (2008)
Decree the approved deed of partition. Heir can still question the validity of the marriage of the
Sec. 23, A.M. No. 02-11-10-SC spouses, not in a proceeding for declaration of nullity, but
(a) The prevailing party shall cause the registration of the Decree upon the death of a spouse in a proceeding for the
in the Civil Registry where the marriage was registered, the Civil
settlement of the estate of the deceased spouse in the
Registry of the place where the Family Court is situated, and in the
National Census and Statistics Office. He shall report to the court
regular courts.
compliance with this requirement within thirty days from receipt of
the copy of the Decree.
(b) In case service of summons was made by publication, the
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187 Ablaza vs Republic (2010) true and genuine union but the exposure of an
The marriage of C and L is governed by the Civil Code, invalid one as well. Thus, in all cases for annulment,
hence A.M. 02-11-10-SC is not in force. While the Civil Code declaration of nullity of marriage and legal
does not grant the right to file for declaration of nullity, separation, the prosecuting attorney or fiscal is
Ablaza, as a brother of the deceased, have material interest ordered to appear on behalf of the State for the
on the matter. purpose of preventing any collusion between the
parties and to take care that their evidence is not
3. When to File Action for Declaration of fabricated or suppressed.
Nullity There is no evidence that the State participated in the
Art. 39, FC prosecution of the case not just at the trial level but on
The action or defense for the declaration of absolute nullity
appeal with the Court of Appeals as well. Other than the
of a marriage shall not prescribe.
------in relation to: manifestation filed with the trial court on November 16,
Art. 255,FC 1994, the State did not file any pleading, motion or position
If any provision of this Code is held invalid, all the other paper, at any stage of the proceedings.
provisions not affected thereby shall remain valid.
Art. 256, FC With this, SC decline to rule on the factual disputes of the
This Code shall have retroactive effect insofar as it does case, as it is within the province of the trial court upon
not prejudice or impair vested or acquired rights in proper re-trial.
accordance with the Civil Code or other laws.
Void marriages can still be questioned even after the death No Motion to Dismiss, No Declaration of Default
of either pary. 189 Ancheta vs. Ancheta
SC was alarmed with the procedural happenings that
In view, however, of A.M. No. 02-11-10-SC, it now appears occurred in the TC as the actuations of the trial court and
that a direct proceeding for the purposes of obtaining a the public prosecutor are in defiance of Art. 48, FC
judicial declaration of nullity of a void marriage may no
longer be filed after the death of either of the part to such The trial court and the public prosecutor also ignored Rules
void marriage. on Civil Procedure where No defaults in actions for
annulment of marriage or for legal separation If the
This does not mean, however, that a void marriage may no defendant in an action for annulment of marriage or for
longer be questioned post death. legal separation fails to answer, the court shall order the
prosecuting attorney to investigate whether or not a
4. Procedures in Actions for Declaration collusion between the parties exists, and if there is no
of Nullity collusion, to intervene for the State in order to see to it that
the evidence submitted is not fabricated.
(a) Requisites for Valid Remarriage 190 Republic vs. CA
The following are void subsequent marriages:
Payment cannot be a sign of collusion as her share in her
1. Without judicial declaration of nullity of previous void
conjugal abode was a specific prayer she made despite
marriage (Art. 40)
admission to psych incapacity.
2. Without judicial declaration of presumptive death of
SC dismissed petition, marriage subsists.
absent spouse (Art. 41)
3. Where the absent spouse was presumed dead, and both
A grant of annulment of marriage or legal separation by
the present spouse and would-be spouse were in bad faith
default = danger of collusion.
in contracting marriage (Art. 44)
4. Failure to comply with Art. 52 requiring the proper
In all cases for annulment, declaration of nullity of marriage
settlement of the legitimes from the previous marriage (Art.
and legal separation the prosecuting attorney or fiscal is
53, FC)
ordered to appear on behalf of the State
(b) Safeguard against Collusion Purpose: prevent any collusion between the parties and to
take care that their evidence is not fabricated or
Role of the Public Prosecutor
suppressed.
188 Malcampo-Sin vs. Sin
In remanding the case to the trial court for re-trial, the
The prosecuting attorney or fiscal may oppose the
Supreme Court explained
application for legal separation or annulment through the
It can be argued that since the lower court dismissed the
presentation of his own evidence, if, in his opinion, the
petition, the evil sought to be prevented (i.e ., dissolution of
proof = dubious and fabricated
the marriage) did not come about, hence, the lack of
participation of the State was cured. Not so. The task of
protecting marriage as an inviolable social institution Service of Summons
requires vigilant and zealous participation and not mere pro- 191 Yuk Ling Ong vs. CA
forma compliance. The protection of marriage as a Jurisdiction over the defendant is acquired either upon a
sacred institution requires not just the defense of a valid service of the summons or the defendants voluntary
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016 Page 57 of 84
6. Effect of res judicata with the requirements of the immediately preceding Article;
otherwise, the subsequent marriage shall be null and void.
196 Mallion vs. Alcantara
Failure to raise the absence of a marriage license in a Art. 54, FC
petition for declaration of nullity based on Art. 36 is res Children conceived or born before the judgment of annulment or
judicata and one can no longer question the validity of the absolute nullity of the marriage under Article 36 has become final
marriage. and executory shall be considered legitimate. Children conceived
or born of the subsequent marriage under Article 53 shall
Res judicata is defined as a matter adjudged; a thing likewise be legitimate.judgment of annulment or absolute nullity
of the marriage under Article 36 has become final and executory
judicially acted upon or decided; a thing or matter settled by
shall be considered legitimate. Children conceived or born of the
judgment. It also refers to the rule that a final judgment or subsequent marriage under Article 53 shall likewise be legitimate.
decree on the merits by a court of competent jurisdiction is
conclusive of the rights of the parties or their privies in all Art. 198, FC.
later suits on points and matters determined in the former During the proceedings for legal separation or for annulment of
suit. marriage, and for declaration of nullity of marriage, the spouses
and their children shall be supported from the properties of the
Based on res judicata, the SC validated a void marriage on absolute community or the conjugal partnership. After the final
the basis of a procedural rule. judgment granting the petition, the obligation of mutual support
between the spouses ceases. However, in case of legal
separation, the court may order that the guilty spouse shall give
7. Effects of the Final Judgment support to the innocent one, specifying the terms of such order.
(292a)
(a) In General
Art. 50, FC. Art. 213, FC.
The effects provided for by paragraphs (2), (3), (4) and (5) of In case of separation of the parents, parental authority shall be
Article 43 and by Article 44 shall also apply in the proper cases to exercised by the parent designated by the Court. The Court shall
marriages which are declared ab initio or annulled by final take into account all relevant considerations, especially the
judgment under Articles 40 and 45. choice of the child over seven years of age, unless the parent
chosen is unfit. (n)
The final judgment in such cases shall provide for the liquidation,
partition and distribution of the properties of the spouses, the The Family Code provides in Art. 50-54, the same
custody and support of the common children, and the delivery of effects of the setting aside of all defective marriage,
third presumptive legitimes, unless such matters had been whether they are void ab initio, or voidable, or a
adjudicated in previous judicial proceedings.
subsequent marriage terminated upon reappearance of
All creditors of the spouses as well as of the absolute community
a spouse presumed to be dead.
or the conjugal partnership shall be notified of the proceedings
for liquidation. 1. There will be liquidation, partition, and distribution
of the properties of the spouses.
In the partition, the conjugal dwelling and the lot on which it is
situated, shall be adjudicated in accordance with the provisions Liquidation involves the inventory of the properties and
of Articles 102 and 129. payment of the obligations of the spouses and the
marriage. All creditors shall be ratified so that they can
Art. 51, FC.
In said partition, the value of the presumptive legitimes of all
assert their claims and be paid. After payment of the
common children, computed as of the date of the final judgment creditors, the remaining properties will constitute the
of the trial court, shall be delivered in cash, property or sound assets of the spouses.
securities, unless the parties, by mutual agreement judicially
approved, had already provided for such matters. Partition is the process in which the remaining
properties will be divided into the various portions to be
The children or their guardian or the trustee of their property allocated to all the parties. In general, these properties
may ask for the enforcement of the judgment.
are classified into capital of the spouses and the net
The delivery of the presumptive legitimes herein prescribed shall
profits depends upon whether the spouses have an ACP
in no way prejudice the ultimate successional rights of the or CPG.
children accruing upon the death of either of both of the parents;
but the value of the properties already received under the decree * NET PROFITS IN ACP and CPG
of annulment or absolute nullity shall be considered as advances (a) Net profits in the ACP is the increase in the value of
on their legitime. (n) the properties of the spouses from the celebration of
the marriage to the time of its termination; while
Art. 52, FC.
(b) Net profits in the CPG are all the fruits of the
The judgment of annulment or of absolute nullity of the
marriage, the partition and distribution of the properties of the
separate properties of the spouses and the products of
spouses and the delivery of the children's presumptive legitimes their labor and industry.
shall be recorded in the appropriate civil registry and registries of
property; otherwise, the same shall not affect third persons. (n) Distribution is the delivery to the spouses and the
children, in the proper cases, of the shares or
Art. 53, FC properties allocated to them respectively in the
Either of the former spouses may marry again after compliance partition.
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(1) The man and the woman must be capacitated to marry (e) On legitimes of the common
each other;
(2) They live exclusively with each other as husband and
children
Art. 50, FC
wife; and
The effects provided for by paragraphs (2), (3), (4) and (5) of
(3) Their union is without the benefit of marriage, or their Article 43 and by Article 44 shall also apply in the proper cases to
marriage is void marriages which are declared ab initio or annulled by final
judgment under Articles 40 and 45.
Under Article 496 of the Civil Code, [p]artition may be made
by agreement between the parties or by judicial The final judgment in such cases shall provide for the liquidation,
proceedings. x x x. It is not necessary to liquidate the partition and distribution of the properties of the spouses, the
properties of the spouses in the same proceeding for custody and support of the common children, and the delivery of
third presumptive legitimes, unless such matters had been
declaration of nullity of marriage.
adjudicated in previous judicial proceedings.
For Article 147 of the Family Code to apply, the All creditors of the spouses as well as of the absolute community
following elements must be present: or the conjugal partnership shall be notified of the proceedings
(1) The man and the woman must be capacitated to marry for liquidation.
each
other; In the partition, the conjugal dwelling and the lot on which it is
(2) They live exclusively with each other as husband and situated, shall be adjudicated in accordance with the provisions
of Articles 102 and 129.
wife; and
(3) Their union is without the benefit of marriage, or their Art. 51, FC
marriage is void In said partition, the value of the presumptive legitimes of all
common children, computed as of the date of the final judgment
In this case, petitioners marriage to respondent was of the trial court, shall be delivered in cash, property or sound
declared void under Article 3615 of the Family Code and not securities, unless the parties, by mutual agreement judicially
under Article 40 or 45. Thus, what governs the liquidation of approved, had already provided for such matters.
properties owned in common by petitioner and respondent
The children or their guardian or the trustee of their property
are the rules on co-ownership. The rules on co-ownership
may ask for the enforcement of the judgment.
apply and the properties of the spouses should be liquidated
in accordance with the Civil Code provisions on co The delivery of the presumptive legitimes herein prescribed shall
ownership. Under Article 496 of the Civil Code, [p]artition in no way prejudice the ultimate successional rights of the
may be made by agreement between the parties or by children accruing upon the death of either of both of the parents;
judicial proceedings. x x x. It is not necessary to liquidate but the value of the properties already received under the decree
the properties of the spouses in the same proceeding for of annulment or absolute nullity shall be considered as advances
declaration of nullity of marriage. on their legitime. (n)
Art. 52, FC
199 Yu vs. Reyes-Carpio The judgment of annulment or of absolute nullity of the
Art. 50, FC, in relation to Art. 43, provides that the marriage, the partition and distribution of the properties of the
community or conjugal property regime shall be dissolved spouses and the delivery of the children's presumptive legitimes
and liquidated. Dissolution and liquidation follow the rules shall be recorded in the appropriate civil registry and registries of
stated in Art. 102 or 129, FC. property; otherwise, the same shall not affect third persons. (n)
legitimate child. Except for this modification, all other provisions (f) On the status and custody of children
in the Civil Code governing successional rights shall remain in
Art. 54, FC
force. (287a)
Children conceived or born before the judgment of annulment or
absolute nullity of the marriage under Article 36 has become final
Art. 908, FC and executory shall be considered legitimate. Children conceived
To determine the legitime, the value of the property left at the or born of the subsequent marriage under Article 53 shall
death of the testator shall be considered, deducting all debts and likewise be legitimate.
charges, which shall not include those imposed in the will.
Art. 176, FC
To the net value of the hereditary estate, shall be added the
Illegitimate children shall use the surname and shall be under the
value of all donations by the testator that are subject to collation,
parental authority of their mother, and shall be entitled to
at the time he made them. (818a)
support in conformity with this Code. The legitime of each
illegitimate child shall consist of one-half of the legitime of a
Art. 1061, FC legitimate child. Except for this modification, all other provisions
Every compulsory heir, who succeeds with other compulsory in the Civil Code governing successional rights shall remain in
heirs, must bring into the mass of the estate any property or force. (287a)
right which he may have received from the decedent, during the
lifetime of the latter, by way of donation, or any other gratuitous
title, in order that it may be computed in the determination of (g) On use of surnames
the legitime of each heir, and in the account of the partition. Art. 371, FC
(1035a) In case of annulment of marriage, and the wife is the guilty
party, she shall resume her maiden name and surname. If she is
Sec. 21, A.M. No. 02-11-10-SC the innocent spouse, she may resume her maiden name and
Liquidation, partition and distribution, custody, support of surname. However, she may choose to continue employing her
common children and delivery of their presumptive iegltimes. - former husband's surname, unless:
Upon entry of the judgment granting the petition, or, in case of
appeal, upon receipt of the entry of judgment of the appellate (1) The court decrees otherwise, or
court granting the petition, the Family Court, on motion of either
party, shall proceed with the liquidation, partition and distribution (2) She or the former husband is married again to another
of the properties of the spouses, including custody, support of person.
common children and delivery of their presumptive legitimes
pursuant to Articles 50 and 51 of the Family Code unless such 201 Yasin vs. Sharia Court
matters had been adjudicated in previous judicial proceedings. - While it is true that under Article 376 of the Civil Code, no
person can change his name or surname without judicial
Art. 147, FC authority, nonetheless, the only name that may be
When a man and a woman who are capacitated to marry each changed is the true and official name recorded in the Civil
other, live exclusively with each other as husband and wife Register.
without the benefit of marriage or under a void marriage, their - When a woman marries a man, she need not apply
wages and salaries shall be owned by them in equal shares and
and/or seek judicial authority to use her husband's name
the property acquired by both of them through their work or
industry shall be governed by the rules on coownership. by prefixing the word "Mrs." before her husband's full
name or by adding her husband's surname to her maiden
In the absence of proof to the contrary, properties acquired while first name. The law grants her such right (Art. 370, Civil
they lived together shall be presumed to have been obtained by Code). Similarly, when the marriage ties or vinculum no
their joint efforts, work or industry, and shall be owned by them longer exists as in the case of death of the husband or
in equal shares. For purposes of this Article, a party who did not divorce as authorized by the Muslim Code, the widow or
participate in the acquisition by the other party of any property divorcee need not seek judicial confirmation of the
shall be deemed to have contributed jointly in the acquisition
change in her civil status in order to revert to her maiden
thereof if the former's efforts consisted in the care and
maintenance of the family and of the household. name as the use of her former husband's name is optional
and not obligatory for her.
Neither party can encumber or dispose by acts inter vivos of his
or her share in the property acquired during cohabitation and 202 BAR MATTER NO. 205 PETITION TO USE
owned in common, without the consent of the other, until after MAIDEN NAME IN PETITION TO TAKE THE 2006 BAR
the termination of their cohabitation. EXAMS, JOSEPHINE P. UY-TIMOSA
Following the Courts decision in Yasin v Sharia Court, "Even
When only one of the parties to a void marriage is in good faith,
the share of the party in bad faith in the coownership shall be
under the Civil Code, the use of the husband's surname
forfeited in favor of their common children. In case of default of during the marriage (Art. 370, Civil Code) ,after the
or waiver by any or all of the common children or their annulment of marriage(Art. 371, Civil Code)and after the
descendants, each vacant share shall belong to the respective death of the husband(Art. 373, Civil Code) is permissive
surviving descendants. In the absence of descendants, such and not obligatory x x x.
share shall belong to the innocent party. In all cases, the
forfeiture shall take place upon termination of the cohabitation. When petitioner married her husband, she did not change
(144a) hername but only her civil status. Neither was she required
to secure judicial authority to use the surname of her
husband after the marriage as nol aw requires it."
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016 Page 62 of 84
202 Remo vs. DFA selling coowners were thereby effectively transferred,
A problem arises when the Filipino lives abroad. For making the buyer (Servacio) a coowner of Martas share.
example, a Filipina lives abroad and marries a foreigner. She
adopts his name and takes out a Filipino passport in the
name of her spouse. Should the marriage break down, the
H. VOIDABLE MARRIAGES
foreign spouse can validly divorce her. After the divorce
becomes final, the Filipino can remarry abroad. However, 1. Void vs. Voidable Marriages
she cannot obtain a new passport in her new husbands Art. 4, FC
name without having the first divorce recognized. Absence of any of the essential or formal requisites shall render
the marriage void ab initio, except as stated in Article 35(2).
(h) On hereditary rights A defect in any of the essential requisites shall render the
Art. 43, FC marriage voidable as provided in Article 45.
If there is a doubt, as between two or more persons who are
called to succeed each other, as to which of them died first, An irregularity in the formal requisites shall not affect the
whoever alleges the death of one prior to the other, shall prove validity of the marriage but the party or parties responsible for
the same; in the absence of proof, it is presumed that they died the irregularity shall be civilly, criminally and administratively
at the same time and there shall be no transmission of rights liable. (n)
from one to the other. (33)
Art. 45, FC
Art. 50, FC A marriage may be annulled for any of the following causes,
For the exercise of civil rights and the fulfillment of civil existing at the time of the marriage:
obligations, the domicile of natural persons is the place of their (1) That the party in whose behalf it is sought to have the
habitual residence. (40a) marriage annulled was eighteen years of age or over but below
twenty-one, and the marriage was solemnized without the
Art. 54, FC consent of the parents, guardian or person having substitute
Any male of the age of sixteen years or upwards, and any female parental authority over the party, in that order, unless after
of the age of fourteen years or upwards, not under any of the attaining the age of twenty-one, such party freely cohabited
impediments mentioned in articles 80 to 84, may contract with the other and both lived together as husband and wife;
marriage. (2) (2) That either party was of unsound mind, unless such party
after coming to reason, freely cohabited with the other as
husband and wife;
(i) Effect of death (3) That the consent of either party was obtained by fraud,
Art. 103, FC unless such party afterwards, with full knowledge of the facts
An action for legal separation shall in no case be tried before six constituting the fraud, freely cohabited with the other as
months shall have elapsed since the filing of the petition. (5a, Act husband and wife;
2710) (4) That the consent of either party was obtained by force,
intimidation or undue influence, unless the same having
Art. 130, FC disappeared or ceased, such party thereafter freely cohabited
The future spouses may give each other in their marriage with the other as husband and wife;
settlements as much as one-fifth of their present property, and (5) That either party was physically incapable of consummating
with respect to their future property, only in the event of death, the marriage with the other, and such incapacity continues and
to the extent laid down by the provisions of this Code referring to appears to be incurable; or
testamentary succession. (1331a) (6) That either party was afflicted with a sexually-transmissible
disease found to be serious and appears to be incurable.
203 Heirs of Go vs. Servacio
It is clear that conjugal partnership of gains established Generally, marriage is voidable if there is any defect in the
before and after the effectivity of the Family Code are essential requisites: 1. Legal Consent 2. Legal Consent
governed by the rules found in Chapter 4 (Conjugal
Partnership of Gains) of Title IV (Property Relations between Annulment: judicial or legal process of invalidating a
Husband And Wife) of the Family Code. Hence, any marriage
disposition of the conjugal property after the dissolution of
the conjugal partnership must be made only after the VOID VOIDABLE
liquidation; Otherwise, the disposition is void. Nature
Always void Valid until annuled
Protacio, Sr., although becoming a co-owner with his Susceptibility for convalidation
children in respect of Martas share in the conjugal Incapable of being Can be convalidated by free
partnership, could not yet assert or claim title to any specific convalidated or ratified cohabitation or prescription
portion of Martas share without an actual partition of the Direct/Indirect Impugnation
property being first done either by agreement or by judicial Can be attacked collaterally Can only be attacked
decree. Until then, all that he had was an ideal or abstract or directly in an action filed through a direct action filed
quota in Martas share. Nonetheless, a coowner could sell or by way of defense in court
his undivided share; Hence, Protacio, Sr. had the right to Impugnation after death of either party
freely sell and dispose of his undivided interest, but not the
interest of his coowners. Consequently, the sale by Protacio, Property Relations
Sr. and Rito as coowners without the consent of the other Co-ownership of properties Generally conjugal
coowners was not necessarily void, for the rights of the
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016 Page 63 of 84
through joint or actual partnership or absolute following persons and within the periods indicated herein:
contributions community xxx
Prescription (2) For causes mentioned in number 2 of Article 45, by the sane
spouse who had no knowledge of the others insanity; or by any
Action for declaration of Action prescribes relative, guardian or person having legal charge of the insane,
nullity does not prescribe at any time before the death of either party;
Decree Issues xxx
Decree of Nullity Decree of Annulment Art. 1149, NCC
All other actions whose periods are not fixed in this Code or in
204 Ninal vs. Bayadog (2000) other laws must be brought within five years from the time the
right of action accrues.
The five year period cohabitation of Pepito and Norma was
not the cohabitation contemplated by law. It should be in
the nature of a perfect union that is valid under the law but True test: Whether the party concerned could intelligently
rendered imperfect only by the absence of the marriage consent, that is, he knew what contract he was entering
contract. Pepito had a subsisting marriage at the time when into.
he started cohabiting with respondent. It is immaterial that
when they lived with each other, Pepito had already been Intoxication which results in lack of mental capacity to give
separated in fact from his lawful spouse. The subsistence of consent = unsoundness of mind
the marriage even where there was actual severance of the
filial companionship between the spouses cannot make any 207 Katipunan vs. Tenorio
cohabitation by either spouse with any third party as being There is no ground to annul the marriage. Insanity occurs
one as husband and wife. Hence, the marriage is void ab after the celebration of the marriage does not constitute
initio. acause for nullity. The wife was mentally sound at the time
of the marriage.
2. Grounds for Annulment Note: Definition of Mental illness is usually a broader and
more inclusive term than Insanity. Insanity is usually
(a) Absence of Parental Consent reservedfor describing severe conditions involving psychotic-
like breaks with reality, while Mental Illness can include both
Absence of consent to contract marriage from the parents, severe and milder forms of mental problems (such as
guardian or person exercising substitute parental authority anxiety disorders and mild depressions)
(in that order) over one or both of the parties, where one or
both of the parties is over 18 but below 21. Art. 5, FC
Any male or female of the age of eighteen years or upward not
206 Moe vs. Dinkins (1981) (1982) under any of the impediments mentioned in Articles 37 and 38,
may contract marriage. (54a)
The law is constitutional because the State has a legitimate
interest in protecting minors from immature decision- Par.1, Art. 45, FC
making. Previous case law has recognized constitutional A marriage may be annulled for any of the following causes,
liberty interest in marriage but has not addressed the existing at the time of the marriage:
marriages of minors. The constitutional rights of children (1) That the party in whose behalf it is sought to have the
cannot be equated with adults for three reasons 1.) peculiar marriage annulled was eighteen years of age or over but below
vulnerability of children; 2.) inability to make critical twenty-one, and the marriage was solemnized without the consent
decisions in an informed and mature matter; 3.) the of the parents, guardian or person having substitute parental
authority over the party, in that order, unless after attaining the
importance of the parental role in child-rearing.
age of twenty-one, such party freely cohabited with the other and
both lived together as husband and wife;
This law should not be examined under a strict scrutiny xxx
standard, but rather it must be determined if there is a
rational relationship between the means chosen and the Art. 47, FC
legitimate state interests advanced. The parent consent Art. 47. The action for annulment of marriage must be filed by
requirement ensures that at least one mature person will thefollowing persons and within the periods indicated herein:
participate in the marriage decision. Because of this and (1) For causes mentioned in number 1 of Article 45, by the party
whose parent or guardian did not give his or her consent, within
minors lack of experience, perspective and judgment, the
five years after attaining the age of twenty-one; or by the parent
law is rationally related to a legitimate state interest or guardian or person having legal charge of the minor, at any
time before such party has reached the age of twenty-one;
(b) Insanity
Par.2, Art. 45, FC
A marriage may be annulled for any of the following causes, (c) Fraud
existing at the time of the marriage: Par.3, Art. 45, FC
xxx A marriage may be annulled for any of the following causes,
(2) That either party was of unsound mind, unless such party existing at the time of the marriage:
after coming to reason, freely cohabited with the other as xxx
husband and wife; (3) That the consent of either party was obtained by fraud,
xxx unless such party afterwards, with full knowledge of the facts
Par.2, Art. 47, FC constituting the fraud, freely cohabited with the other as
The action for annulment of marriage must be filed by the
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209 Buccat vs. Buccat (1941) Intimidation: When one of the contracting parties is
Advanced stages of pregnancy (7 months) of the woman at compelled by a reasonable and well-grounded fear of an
the time of the marriage should have been obvious to a first imminent and grave evil upon his person, property or upon
year student of law. the person or property of his spouse, ascendants,
descendants, to give his consent (par. 2, Art. 1335, CC)
210 Aquino vs. Delizo (1960)
When a woman was only 4 months pregnant at the time of Undue Influence: It is when a person take improper
her marriage, her pregnancy would not be readily apparent, advantage of another, depriving the latter of reasonable
especially since she was naturally plump or fat and freedom of choice.
because she must have attempted to conceal the true state
of affairs.
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Factors to consider: confidential, family, spiritual and act of sexual intercourse. It may be caused by psychogenic
other relations between the parties + mental weakness or causes, where such mental block or disturbance has the
ignorance or distress result of making the spouse physically incapable of
performing the marriage act
213 Ruiz vs. Atienza (1903)
As to the threat to obstruct Ruizs admission to the Bar by No evidence was presented in the case at bar to establish
filing charges against him for immorality, the SC said that that respondent was in any way physically incapable to
the authorities are unanimous that it is not such a duress as consummate his marriage with petitioner. No evidence was
to constitute a reason for annulling the marriage. The SC presented in the case at bar to establish that respondent
quoted and where a man marries under the threat of, or was in any way physically incapable to consummate his
constraint from, a lawful prosecution for seduction or marriage with petitioner. Petitioner even admitted during
bastardy, he cannot avoid the marriage on the ground of her cross-examination that she and respondent had sexual
duress. intercourse after their wedding and before respondent left
for abroad.
214 Villanueva vs. CA
When a male spouse is a security guard, it is reasonable to (f) Affliction with STD
assume that he knew the rudiments of self-defense, or, at Par. 6, Art. 45, FC
the very least, the proper way to keep himself out of harms xxx
way; thus, there was neither intimidation nor force exerted (6) That either party was afflicted with a sexually-transmissible
into marriage. disease found to be serious and appears to be incurable
xxx
(e) Physical Incapacity/Impotence Par. 3, Art. 46, FC
Par.5, Art. 45, FC Any of the following circumstances shall constitute fraud
A marriage may be annulled for any of the following causes, referred to in Number 3 of the preceding Article:
existing at the time of the marriage: xxx;
xxx (3) Concealment of a sexually transmissible disease, regardless
where, at the time of its celebration, either party was physically of its nature, existing at the time of the marriage; or
incapable of consummating the marriage with the other and xxx
such incapacity continues and appears to be incurable; No other misrepresentation or deceit as to character, health,
xxx rank, fortune or chastity shall constitute such fraud as will give
Par.5, Art. 47, FC grounds for action for the annulment of marriage.
xxx Par.5, Art. 47, FC
For causes mentioned in numbers 5 and 6 of Article 45, by the xxx
injured party, within five years after the marriage For causes mentioned in numbers 5 and 6 of Article 45, by the
xxx injured party, within five years after the marriage.
xxx
shall be paid out of the conjugal assets. In case of securities, unless the parties, by mutual agreement judicially
insufficiency of said assets, the spouses shall be solidarily approved, had already provided for such matters.
liable for the unpaid balance with their separate properties,
in accordance with the provisions of paragraph (2) of Article The children or their guardian, or the trustee of their property,
121. may ask for the enforcement of the judgment.
(5) Whatever remains of the exclusive properties of the
spouses shall thereafter be delivered to each of them. The delivery of the presumptive legitimes herein prescribed shall
(6) Unless the owner had been indemnified from whatever in no way prejudice the ultimate successional rights of the
source, the loss or deterioration of movables used for the children accruing
benefit of the family, belonging to either spouse, even due to
fortuitous event, shall be paid to said spouse from the Art. 52, FC
conjugal funds, if any. The judgment of annulment or of absolute nullity of the
(7) The net remainder of the conjugal partnership properties marriage, the partition and distribution of the properties of the
shall constitute the profits, which shall be divided equally spouses, and the delivery of the childrens presumptive legitimes
between husband and wife, unless a different proportion or shall be recorded in the appropriate civil registry and registries of
division was agreed upon in the marriage settlements or property; otherwise, the same shall not affect third persons.
unless there has been a voluntary waiver or forfeiture of
such share as provided in this Code. Art. 53, FC
(8) The presumptive legitimes of the common children shall Either of the former spouses may marry again after complying
be delivered upon partition in accordance with Article 51. with the requirements of the immediately preceding Article;
(9) In the partition of the properties, the conjugal dwelling otherwise, the subsequent marriage shall be null and void.
and the lot on which it is situated shall, unless otherwise
agreed upon by the parties, be adjudicated to the spouse *Relate Art. 51 to:
with whom the majority of the common children choose to Article 886, NCC
remain. Children below the age of seven years are deemed Legitime is that part of the testator's property which he cannot
to have chosen the mother, unless the court has decided dispose of because the law has reserved it for certain heirs who
otherwise. are, therefore, called compulsory heirs. (806)
In case there is no such majority, the court shall decide, Article 888, NCC
taking into consideration the best interests of said children. The legitime of legitimate children and descendants consists of
one-half of the hereditary estate of the father and of the mother.
223 Buenaventura v CA
Art.50, FC, in relation to Art. 43, provides that the The latter may freely dispose of the remaining half, subject to
community or conjugal property regime shall be dissolved the rights of illegitimate children and of the surviving spouse as
hereinafter provided. (808a)
and liquidated. Dissolution and liquidation follow the rules
stated in Art. 102 or 129 of the Family Code.
Article 176, FC
Illegitimate children shall use the surname and shall be under the
224 Quiao v Quiao parental authority of their mother, and shall be entitled to
When a couple enters into a regime of absolute community support in conformity with this Code. The legitime of each
the husband and the wife become joint owners of all the illegitimate child shall consist of one-half of the legitime of a
properties of the marriage. Whatever property each spouse legitimate child. Except for this modification, all other provisions
brings into the marriage, and those acquired during the in the Civil Code governing successional rights shall remain in
marriage (except those excluded under Art. 92, FC), form force. (287a)
the common mass of the couples properties.
Article 908, NCC
To determine the legitime, the value of the property left at the
(e) On presumptive legitimes/hereditary death of the testator shall be considered, deducting all debts and
rights charges, which shall not include those imposed in the will.
Art. 50, FC
To the net value of the hereditary estate, shall be added the
The effects provided for in paragraphs (2), (3), (4) and (5) of
value of all donations by the testator that are subject to collation,
Article 43 and in Article 44 shall also apply in the proper cases to
at the time he made them. (818a)
marriages which are declared void ab initio or annulled by final
judgment under Articles 40 and 45.
Article 1061, NCC
The final judgment in such cases shall provide for the liquidation,
Every compulsory heir, who succeeds with other compulsory
partition and distribution of the properties of the spouses, the
heirs, must bring into the mass of the estate any property or
custody and support of the common children, and the delivery of
right which he may have received from the decedent, during the
their presumptive legitimes, unless such matters had been
lifetime of the latter, by way of donation, or any other gratuitous
adjudicated in previous judicial proceedings.
title, in order that it may be computed in the determination of
All creditors of the spouses as well as of the absolute community
the legitime of each heir, and in the account of the partition.
or the conjugal partnership shall be notified of the proceedings
(1035a)
for liquidation.
In the partition, the conjugal dwelling and the lot on which it is
situated, shall be adjudicated in accordance with the provisions Article 102 (5), FC
of Articles 102 and 129. Upon dissolution of the absolute community regime, the
following procedure shall apply:
Art. 51, FC XXX
In said partition, the value of the presumptive legitimes of all
common children, computed as of the date of the final judgment (5) The presumptive legitimes of the common children shall be
of thetrial court, shall be delivered in cash, property or sound delivered upon partition, in accordance with Article 51.
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A sworn statement of the fact and circumstances of spouse to be living, (3) that such former spouse is generally
reappearance shall be recorded in the civil registry of the reputed to be dead and the spouse present so believes at
residence of the parties to the subsequent marriage at the the time of the celebration of the marriage.
instance of any interested person, with due notice to the
spouses of the subsequent marriage and without prejudice to - A judicial presumption of death, even if final and
the fact of the reappearance being judicially determined in case executory, would still be a prima facie presumption only. It
such fact is disputed. is for that reason that it cannot be the subject of a judicial
pronouncement or declaration, if it is the only question or
Art. 43, FC
The termination of the subsequent marriage referred to in the matter involved in a case, or upon which a competent court
preceding Article shall produce the following effects: has to pass. Under the Civil Code, the presumption of death
(1) The children of the subsequent marriage conceived prior is established by law and no court declaration is needed for
to its termination shall be considered legitimate, and their the presumption to arise. In the present case, death of the
custody and support in case of dispute shall be decided by former husband was presumed to have taken place on the
the court in a proper proceeding; 7th year of absence.
(2) The absolute community of property or the conjugal
partnership, as the case may be, shall be dissolved and
liquidated, but if either spouse contracted said marriage in J. Marriages dissolved by a foreign
bad faith, his or her share of the net profits of the
community property or conjugal partnership property shall
judgment
be forfeited in favor of the common children or, if there Art. 15, NCC
are none, the children of the guilty spouse by a previous Laws relating to family rights and duties, or to the status,
marriage or in default of children, the innocent spouse; condition and legal capacity of persons are binding upon citizens
(3) Donations by reason of marriage shall be remain valid, of the Philippines, even though living abroad.
except that if the donee contracted the marriage in bad
faith as beneficiary in any insurance policy, even if such Art. 17, NCC
designation be stipulated as irrevocable; and XXX
(4) The innocent spouse may revoke the designation of the Prohibitive laws concerning persons, their acts or property, and
other spouse who acted in bad faith as beneficiary in any those which have for their object public order, public policy and
insurance policy, even if such designation be stipulated as good customs shall not be rendered ineffective by laws or
irrevocable; and judgments promulgated, or by determinations or conventions
(5) The spouse who contracted the subsequent marriage in agreed upon in a foreign country.
bad faith shall be disqualified to inherit from the innocent
spouse by testate and intestate succession. Art. 26 (2), FC
Every person shall respect the dignity, personality, privacy and
Art. 44, FC peace of mind of his neighbors and other persons. The following
If both spouses of the subsequent marriage acted in bad faith, and similar acts, though they may not constitute a criminal
said marriage shall be void ab initio and all donations by reason offense, shall produce a cause of action for damages, prevention
of marriage and testamentary dispositions made by one in and other relief:
favor of the other are revoked by operation of law. XXX
(2) Meddling with or disturbing the private life or family relations
*Compare with NCC Art. 83, 85(2) and 87 (2); cf RPC of another;
349 XXX
Because our courts do not take judicial notice of foreign (2) A child born after one hundred eighty days following the
laws and judgment, our law on evidence requires that both celebration of the subsequent marriage is considered to have
the divorce decree and the national law of the alien must be been conceived during such marriage, even though it be born
within the three hundred days after the termination of the former
alleged and proven and like any other fact.
marriage. (259a)
for a fee;
(4) To use the postal service to promote the prohibited
acts in subparagraph 1 hereof.
(b) For the manager or officer-in-charge or advertising
manager of any newspaper, magazine, television or radio
station, or other media, or of an advertising agency, printing
company or other similar entities, to knowingly allow, or
consent to, the acts prohibited in the preceding paragraph.
THE LAW ON
equivalent sitting in the place where either of the spouses
resides. (n)
Art. 242, FC
SEPARATION OF Upon the filing of the petition, the court shall notify the other
spouse, whose consent to the transaction is required, of said
petition, ordering said spouse to show cause why the petition
THE SPOUSES should not be granted, on or before the date set in said notice
for the initial conference. The notice shall be accompanied by a
copy of the petition and shall be served at the last known
address of the spouse concerned. (n)
Art. 243, FC
A. CONCEPTS OF SEPARATION & A preliminary conference shall be conducted by the judge
personally without the parties being assisted by counsel. After
DIVORCE the initial conference, if the court deems it useful, the parties
may be assisted by counsel at the succeeding conferences and
250 Benedicto vs. De la Rama (1903) hearings. (n)
There are two forms of separation to which the name of
divorce may be given, and two reasons therefor; there are Art. 244, FC
In case of non-appearance of the spouse whose consent is
many reasons which bring about the separation of those
sought, the court shall inquire into the reasons for his failure to
who appear to be married but are not so by the reason of appear, and shall require such appearance, if possible. (n)
some impediment between them. Of these two reasons, one
is religion and the other the sin of fornification. And the Art. 245, FC
reason why this separation is properly called divorce, in If, despite all efforts, the attendance of the non-consenting
distinction from separation which results from other spouse is not secured, the court may proceed ex parte and
impediments, is that, althought it separates those who were render judgment as the facts and circumstances may warrant. In
married, the marriage nevertheless subsists, and thus it is any case, the judge shall endeavor to protect the interests of the
non-appearing spouse. (n)
that neither one of them can contract a second marriage at
any time excepting in the case of a separation granted by Art. 246. FC
reason of adultery, in which case the surviving spouse may If the petition is not resolved at the initial conference, said
remarry after the death of the other. petition shall be decided in a summary hearing on the basis of
affidavits, documentary evidence or oral testimonies at the sound
discretion of the court. If testimony is needed, the court shall
1. Separation in fact specify the witnesses to be heard and the subject-matter of their
testimonies, directing the parties to present said witnesses. (n)
TITLE XI
SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW Art. 247, FC
Chapter 1. Prefatory Provisions The judgment of the court shall be immediately final and
Art. 238, FC executory. (n)
Until modified by the Supreme Court, the procedural rules
provided for in this Title shall apply as regards separation in fact Art. 248, FC
between husband and wife, abandonment by one of the other, The petition for judicial authority to administer or encumber
and incidents involving parental authority. (n) specific separate property of the abandoning spouse and to use
the fruits or proceeds thereof for the support of the family shall
Chapter 2. Separation in Fact also be governed by these rules. (n)
Art. 239, FC
When a husband and wife are separated in fact, or one has
abandoned the other and one of them seeks judicial Art. 101 (3), FC
authorization for a transaction where the consent of the other XXX
spouse is required by law but such consent is withheld or cannot A spouse is deemed to have abandoned the other when her or
be obtained, a verified petition may be filed in court alleging the she has left the conjugal dwelling without intention of returning.
foregoing facts. The spouse who has left the conjugal dwelling for a period of
three months or has failed within the same period to give any
The petition shall attach the proposed deed, if any, embodying information as to his or her whereabouts shall be prima facie
the transaction, and, if none, shall describe in detail the said presumed to have no intention of returning to the conjugal
transaction and state the reason why the required consent dwelling. (178a)
thereto cannot be secured. In any case, the final deed duly
executed by the parties shall be submitted to and approved by 251 Villanueva vs. Chiong 2008
the court. (n) When the parties are separated in fact and without the
wifes consent, and the husband alienates or encumbers
Art. 240, FC conjugal property prior to the effectivity of the Family Code
Claims for damages by either spouse, except costs of the on August 3, 1988, the same is not void, but merely
proceedings, may be litigated only in a separate action. (n)
voidable.
Art. 241, FC
Jurisdiction over the petition shall, upon proof of notice to the 2. Agreements to separate
other spouse, be exercised by the proper court authorized to Art. 1, FC
hear family cases, if one exists, or in the regional trial court or its Marriage is a special contract of permanent union between a man
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and a woman entered into in accordance with law for the 257 FUJIKI v MARINAY (2013)
establishment of conjugal and family life. It is the foundation of Where the Court reiterated that for Philippine courts to
the family and an inviolable social institution whose nature, recognize a foreign judgment relating to the status of a
consequences, and incidents are governed by law and not
marriage Where one of the parties is a citizen of a foreign
subject to stipulation, except that marriage settlements may fix
the property relations during the marriage within the limits
country, the petitioner only needs to prove the foreign
provided by this Code. (52a) judgment as a fact under the Rules of Court. Petitioner may
prove the Japanese Family Court judgment through: (1) an
Art. 221 (1), NCC official publication or (2) a certification or copy attested by
Article 221. The following shall be void and of no effect: the officer who has custody of the judgment.
(1) Any contract for personal separation between husband and The Court further held that A.M. No. 02-11-10-SC does not
wife; apply to a petition for recognition of foreign judgment as
this would mean that the trial court and the parties will
252 Espinosa vs. Omana (2011) litigate the case anew. It will defeat the purpose of
Lawyers who prepare contracts between spouses which recognizing foreign judgments, which is to limit repetitive
permit separation of the spouses and dissolution of their litigation on claims and issues. Once a foreign judgment is
property regimes without judicial approval may be admitted and proven in a Philippines court, it can only be
reprimanded. These contracts are void for being contratry to repelled on grounds external to its merits, i.e., want of
morals and public policy. jurisdiction, want of notice to the party, collusion, fraud, or
clear mistake of law or fact. There is therefor no reason to
3. Absolute Divorce disallow Fujiki to simply prove as a fact the Japanese Family
Court Judgment nullifying the marriage between Marinay
(a) Divorce under the Family Code and Maekara on the ground of bigamy. While the Philippines
Art. 26 (2), FC has no divorce law, the Japanese Family Court judgment is
XXX fully consistent with Philippine public policy, as bigamous
Where a marriage between a Filipino citizen and a foreigner is marriages are declared void from the beginning under
validly celebrated and a divorce is thereafter validly obtained Article 35(4) of the Family Code. Thus, Fujiki can prove the
abroad by the alien spouse capacitating him or her to remarry, existence of the Japanese Family Court judgment in
the Filipino spouse shall have capacity to remarry under accordance with Rule 132, Sec 24 and 25, in relation to Rule
Philippine law. (As amended by Executive Order 227) 39, Sec 48(b) of the Rules of Court.
or
(10) Abandonment of petitioner by respondent without justifiable 260 Goitia vs. Campos-Rueda
cause for more than one year. Where the husband makes base demands upon his wife and
For purposes of this Article, the term "child" shall include a child
indulges in the habit of assaulting her, she is entitled to live
by nature or by adoption. (9a)
separately from him and demand support.
Sec. 19, RA 9262 (VAWC) 261 Kalaw vs. Fernandez (2011)
Legal Separation Cases. In cases of legal separation, where
Immaturity and irresponsibility in performing their marital
violence as specified in this Act is alleged, Article 58 of the Family
Code shall not apply. The court shall proceed on the main case and familial obligations, sexual infidelity per se, and
and other incidents of the case as soon as possible. The hearing acrimony may be grounds for legal separation, but not for
on any application for a protection order filed by the petitioner psychological incapacity that voids a marriage.
must be conducted within the mandatory period specified in this
Act 262 Republic vs. Quintos (2012)
Her sexual infidelity was not a valid ground for the nullity of
(a) Sexual infidelity or perversion marriage under Article 36 of the Family Code, considering
that there should be a showing that such marital infidelity
*Art. 55 (8), FC was a manifestation of a disordered personality that made
her completely unable to discharge the essential obligations
Art. 36, NCC of marriage.
Pre-judicial questions, which must be decided before any criminal
prosecution may be instituted or may proceed, shall be governed (b) Drug Addiction, Habitual alcoholism,
by rules of court which the Supreme Court shall promulgate and
which shall not be in conflict with the provisions of this Code. lesbianism or homosexuality
ADULTERY AND CONCUBINAGE *FC Art. 55 (5) and (6) compare with FC Art. 46 (4)
Art. 46 (4) is a ground for annulment based on consent
Art, 333, RPC obtained by fraud, which should have been present at the
Who are guilty of adultery. - Adultery is committed by any time of celebration of the marriage. As grounds for legal
married woman who shall have sexual intercourse with a man separation, the conditions mentioned in Art. 55 (5) & (6)
not her husband and by the man who has carnal knowledge of
must have arisen only during the marriage, in which case,
her knowing her to be married, even if the marriage be
subsequently declared void. the prescriptive period is five years from the time of the
Adultery shall be punished by prision correccional in its medium occurrence of the cause.
and maximum periods.
263 Almelor vs. RTC (2008)
If the person guilty of adultery committed this offense while Homosexuality per se is only a ground for legal separation.
being abandoned without justification by the offended spouse, It is its concealment that serves as a valid ground to annul a
the penalty next lower in degree than that provided in the next marriage (FC Art 46(4)).
preceding paragraph shall be imposed.
These rules shall be applicable, under the same circumstances, to (c) Attempting to cause the woman or her child physical harm;
parents with respect to their daughters under eighteen years of
(d) Placing the woman or her child in fear of imminent physical
age, and their seducer, while the daughters are living with their
harm;
parents.
(e) Attempting to compel or compelling the woman or her child
Any person who shall promote or facilitate the prostitution of his to engage in conduct which the woman or her child has the right
wife or daughter, or shall otherwise have consented to the to desist from or desist from conduct which the woman or her
infidelity of the other spouse shall not be entitled to the benefits child has the right to engage in, or attempting to restrict or
of this article.
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restricting the woman's or her child's freedom of movement or 265 Partosa-Jo vs. CA (1992)
conduct by force or threat of force, physical or other harm or Abandonment implies a departure by one spuse with the
threat of physical or other harm, or intimidation directed against avowed intent never to return, followed by prolonged
the woman or child. This shall include, but not limited to, the
absence without just cause, and without in the meantime
following acts committed with the purpose or effect of controlling
or restricting the woman's or her child's movement or conduct:
providing in the least for ones family, although able to do
so. There must be an absolute cession of marital realations,
(1) Threatening to deprive or actually depriving the woman duties, and rights, with the intention of perpetual
or her child of custody to her/his family; separation. This idea is clearly expressed in Art 128.
(2) Depriving or threatening to deprive the woman or her
children of financial support legally due her or her family, or 266 Republic vs. Quintos (2012)
deliberately providing the woman's children insufficient The only fact established here, which Catalina even
financial support; admitted in her Answer, was her abandonment of the
(3) Depriving or threatening to deprive the woman or her conjugal home to live with another man. Yet, abandonment
child of a legal right; was not one of the grounds for the nullity of marriage under
the Family Code. It did not also constitute psychological
(4) Preventing the woman in engaging in any legitimate
incapacity, it being instead a ground for legal separation
profession, occupation, business or activity or controlling the
victim's own mon4ey or properties, or solely controlling the
under Article 55(10) of the Family Code.
conjugal or common money, or properties;
(e) Other Grounds
(f) Inflicting or threatening to inflict physical harm on oneself for
the purpose of controlling her actions or decisions;
*Art. 55 (1), FC
(g) Causing or attempting to cause the woman or her child to The violence must be of serious degree, but does not
engage in any sexual activity which does not constitute rape, by have to amount to an attempt against the life of the
force or threat of force, physical harm, or through intimidation
defendant, which is covered by par. 9. The violence must be
directed against the woman or her child or her/his immediate
family;
repeated, to the extent that common life with defendant
becomes extremely difficult for the plaintiff. The factor
(h) Engaging in purposeful, knowing, or reckless conduct, should be determinative of whether the repeated physical
personally or through another, that alarms or causes substantial violence or the grossly abusive conduct would suffice to
emotional or psychological distress to the woman or her child.
justify legal separation. (Tolentino)
This shall include, but not be limited to, the following acts:
(1) Stalking or following the woman or her child in public or *Art. 55 (2), FC
private places; The physical violence or moral pressure to compel the
(2) Peering in the window or lingering outside the residence plaintiff to change religious or political affiliation need not be
of the woman or her child; repeated. A single incident would be enough. Religious and
political beliefs are human rights which deserve all
(3) Entering or remaining in the dwelling or on the property
protection by the law. But mere arguments to persuade the
of the woman or her child against her/his will;
plaintiff to change should not by itself by sufficient. There
(4) Destroying the property and personal belongings or must be some element of coercion present, whether
inflicting harm to animals or pets of the woman or her child; physical or moral. (Tolentino)
and
(5) Engaging in any form of harassment or violence; *Art. 55 (3)
The guilt for the corruption or inducement to prostitution
(i) Causing mental or emotional anguish, public ridicule or
must be on only one spouse. If both spouses agree that the
humiliation to the woman or her child, including, but not limited
to, repeated verbal and emotional abuse, and denial of financial wife or a daughter engage in prostitution, neither one
support or custody of minor children of access to the woman's should be allowed to obtain legal separation, on the
child/children. principle that a person should come to court with clean
hands. (Tolentino)
*Art. 55 (2)
(d) Abandonment This paragraph referes to a final judgment of more than
six years imprisonment, even if pardoned. The crime for
*FC Art. 55 (10) which the defendant was convictd is immaterial. (Tolentino)
resided in the Philippines for one year prior to the filing of the 269 Araneta vs. Concepcion
petition, unless the cause for the legal separation has taken place The period of six months fixed in Article 103 Civil Code is
within the territory of this Republic. (Sec. 2a, Act No. 2710). intended as a cooling off period to make possible a
reconciliation between the spouses. But this does not have
The Family Code no longer requires the 1 year residency the effect of overriding other provisions such as the
prior to the filing of the petition. As long as the person has determination of the custody of the children, alimony, and
any of the valid grounds enumerated in Art. 55 of the support pendente lite, according to the circumstances.
Family Code, he or she is entitled to file a petition for legal Evidence not affecting the cause of the separation, like the
separation. actual custody of the children, the means conducive to their
welfare and convenience during the pendency of the case,
3. When may petition be filed these should be allowed that the court may determine
Art. 57, FC which is best for their custody.
An action for legal separation shall be filed within five years from
the time of the occurrence of the cause. (102) 270 De Ocampo vs. Florenciano
What the law prohibits is a judgment based exclusively or
Art. 102, NCC mainly on defendants confession. Collusion in divorce or
An action for legal separation cannot be filed except within one legal separation means the agreement between husband
year from and after the date on which the plaintiff became
and wife for one of them to commit, or to appear to
cognizant of the cause and within five years from and after the
date when such cause occurred. (4a, Act 2710) commit, or to be represented in court as having committed,
a matrimonial eoffense, or to suppress evidence of a valid
Under Art. 102 of the Civil Code, the prescriptive period defense, for the purpose of enabling the other to obtain a
for the filing of a petition for legal separation is w/in one divorce.
year from the date the plaintiff became cognizant of the
cause and within five years from the date the cause 271 Lapuz vs. Eufemio
occurred. The first period has been found too short since in An action for legal separation is purely personal and only
Philippine culture, the innocent spouse is expected tos eek the innocent spouse may claim legal separation. The death
advice from family members and guidance from spiritual of one party to the action causes the death of the action
advisers. As a result, many agreeived spouse could not itself.
comply with the requirement of filing a case w/in one year
from cognizance of the ground. (Pangalangan) 272 Samosa-Ramos vs. Vamenta, Jr.
The question of management of exclusive property need not
267 People vs. Zapanta (1951) be left unresolved even during the six-month [cooling off]
Each sexual intercourse constitutes a crime of adultery. period.
There is no constitutional or legal provision which bars the
filling of as many complaints for adultery as there were 273 Gandionco vs. Penaranda
adulterous acts committed, each constituting one crime. A civil action for legal separation, based in concubinage,
may proceed ahead of, or simultaneously with, a criminal
action for concubinage, because said civil action is not one
4. Court procedure in legal separation to enforce the civil liability arising from the offense even if
Art. 58, FC both the civil and criminal actions arise from or are related
An action for legal separation shall in no case be tried before six
to the same offense. Such civil action is one intended to
months shall have elapsed since the filing of the petition. (103)
obtain the right to love separately, with the legal
Art. 59, FC consequences thereof, such as, the dissolution of the
No legal separation may be decreed unless the Court has taken conjugal partnership of gains, custody of offspring, support,
steps toward the reconciliation of the spouses and is fully and disqualification from inheriting from the innocent
satisfied, despite such efforts, that reconciliation is highly spouse, among others.
improbable. (n)
274 Paceta vs. Cariaga Jr.
Art. 60, FC
A petition for certiorari is allowed when the default order is
No decree of legal separation shall be based upon a stipulation of
facts or a confession of judgment. improperly declared; and in an action for legal separation, a
default order is not legally sanctioned.
Sec. 19, RA 9262 (VAWC)
Legal Separation Cases. In cases of legal separation, where 5. Effect of pendency of the petition
violence as specified in this Act is alleged, Article 58 of the Family
Code shall not apply. The court shall proceed on the main case
and other incidents of the case as soon as possible. The hearing
(a) Cooling-off period
on any application for a protection order filed by the petitioner Art. 58, FC
must be conducted within the mandatory period specified in this An action for legal separation shall in no case be tried before six
Act months shall have elapsed since the filing of the petition. (103)
shall be entitled to live separately from each other. 278 Araneta vs. Concepcion
xxx The period of six months fixed in Article 103 Civil Code is
intended as a cooling off period to make possible a
(c) Administration of property reconciliation between the spouses. But this does not have
Art. 61 (2), FC the effect of overriding other provisions such as the
xxx determination of the custody of the children, alimony, and
The court, in the absence of a written agreement between the support pendente lite, according to the circumstances.
spouses, shall designate either of them or a third person to Evidence not affecting the cause of the separation, like the
administer the absolute community or conjugal partnership
actual custody of the children, the means conducive to their
property. The administrator appointed by the court shall have the
same powers and duties as those of a guardian under the Rules welfare and convenience during the pendency of the case,
of Court. (104a) these should be allowed that the court may determine
which is best for their custody.
275 De La Vina vs. Villareal
If the wife can acquire a separate residence when her 279 Lerma vs. CA
husband consents or acquiesces, we see no reason why the Article 198 of the Family Code is not in itself the source of
law will not allow her to do so when the husband unlawfully the legal right to receive support. It merely states that the
ejects her from the conjugal home in order that he may support, not only of the spouses but also of the children,
freely indulge in his illicit relations with another woman. shall be taken from the conjugal property during the
pendency of the legal separation proceeding. It does not
276 Sabalones vs. CA preclude the loss of such right in certain cases. Thus,
Injunction is available when there is not enough evidence to adultery may be a defense in an action for support.
raise the apprehension that entrusting the management of
the conjugal estate to the offending spouse may result in its
improvident disposition to the detriment of his wife and 6. Defenses in actions for legal
children. separation
Art. 56, FC
(d) Support and Custody pendent lite The petition for legal separation shall be denied on any of the
Art. 62, FC following grounds:
During the pendency of the action for legal separation, the
provisions of Article 49 shall likewise apply to the support of the (1) Where the aggrieved party has condoned the offense or act
spouses and the custody and support of the common children. complained of;
(105a) (2) Where the aggrieved party has consented to the commission
of the offense or act complained of;
(3) Where there is connivance between the parties in the
Art. 49, FC
commission of the offense or act constituting the ground for legal
During the pendency of the action and in the absence of
separation;
adequate provisions in a written agreement between the
spouses, the Court shall provide for the support of the spouses (4) Where both parties have given ground for legal separation;
and the custody and support of their common children. The
Court shall give paramount consideration to the moral and (5) Where there is collusion between the parties to obtain decree
material welfare of said children and their choice of the parent of legal separation; or
with whom they wish to remain as provided to in Title IX. It shall (6) Where the action is barred by prescription. (100a)
also provide for appropriate visitation rights of the other parent.
(n)
(a) Consent Art. 56 (2)
Art. 198, FC
Consent differs from condonation in that it is given
During the proceedings for legal separation or for annulment of
marriage, and for declaration of nullity of marriage, the spouses before the commission of a marital offense while the latter
and their children shall be supported from the properties of the is given after. Express consent means telling the other
absolute community or the conjugal partnership. After the final spouses in no unclear terms that he or she is free to have
judgment granting the petition, the obligation of mutual support other liasons. Implied constent refers to acts of indifference
between the spouses ceases. However, in case of legal or giving of corrupt counsel by one spouse to the other from
separation, the court may order that the guilty spouse shall give which the latter may infer that commission of a marital
support to the innocent one, specifying the terms of such order. offense is acceptable to the other spouse. (Pangalangan)
(292a)
280 People vs. Sensano
277 Yangco vs. Rhode
By his long absence, despite his knowledge of the adultery
When the action for the support or alimony is brought by a
of his wife, a husband is deemed to have consented to the
woman who alleges that she is wife, it is necessary for her
adulterous relations of his wife and is barred from instituting
to prove possession of the civil status of a spouse that is, a
a case for adultery, since the sole purpose is filing the
marriage, without which one has no right to the title to
charge is to use it as a ground for legal separation.
husband to wife.
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016 Page 81 of 84
Art. 60, FC
(b) On the custody of children Art. 63 (3)
No decree of legal separation shall be based upon a stipulation of PD 603, (THE CHILD AND YOUTH WELFARE CODE)
facts or a confession of judgment. Article 17. Joint Parental Authority
XXX
In any case, the Court shall order the prosecuting attorney or In case of separation of his parents, no child under five years of
fiscal assigned to it to take steps to prevent collusion between age shall be separated from his mother unless the court finds
the parties and to take care that the evidence is not fabricated or compelling reasons to do so.
PERSONS AND FAMILY RELATIONS | VARGAS | GGO4-2016 Page 82 of 84
The agreement of revival and the motion for its approval shall be
filed with the court in the same proceeding for legal separation,
with copies of both furnished to the creditors named therein.
After due hearing, the court shall, in its order, take measure to
protect the interest of creditors and such order shall be recorded
in the proper registries of properties.
No Marriage Settlement
Yes, at dissolution, liquidation
Irregular Marriage Legitimate Absolute Community of NA
and distribution
Property, Article 102
Legitimate when
Article 50 in relation to
Voidable Marriage conceived or born before Yes if there is Yes, at dissolution, liquidation
Article 43 (2)-(5), Article 102
Article 45 the final decree of bad faith and distribution
or 129
annulment
Legitimate when
Article 53 Void conceived or born before Article 147 (Valdes, by No (And yet, the children are
Yes
Marriage the final decree of nullity inference) legitimate, Art 54.)
(Art 54)
Article 40
Article 50 in relation to Yes, at dissolution, liquidation
subsequent marriage Yes if there is
Illegitimate Article 43 (2)-(5), Article 102 and distribution (And yet, the
to a prior void bad faith
or 129 (Valdes) children are legitimate)
marriage Void
Article 40 first
Illegitimate 147 or 148 Yes No
marriage
No marriage Settlement
Article 41 -1st Yes, at dissolution, liquidation
Legitimate Absolute Community of NA
marriage and distribution
Property, Article 102
Article 41 -2nd
Illegitimate 148 Yes No
bigamous marriage
Article 50 in relation to
Article 41/42 Yes if there is Yes, at dissolution, liquidation
Legitimate Article 43 (2)-(5), Article 102
Terminated Marriage bad faith and distribution
or 129
Article 50 in relation to
Terminated by Death Legitimate Article 43 (2)-(5), Article 102 NA No, as succession occurs.
or 129