CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
*Note: Art 2 of NCC was still good law then. Now, Publication in
PRELIMINARY TITLE
II. Effect and Application of Laws
A. When laws take effect
Revised Administrative Code:
Section 18. When Laws Take Effect. - Laws shall take effect
after fifteen (15) days following the completion of their
publication in the Official Gazette or in a newspaper of general
circulation, unless it is otherwise provided. (CONTROLLING
LAW)
Section 19. Prospectivity. - Laws shall have prospective effect
unless the contrary is expressly provided.
Section 20. Interpretation of Laws and Administrative
Issuances. - In the interpretation of a law or administrative
issuance promulgated in all the official languages, the English
text shall control, unless otherwise specifically provided. In
case of ambiguity, omission or mistake, the other texts may be
consulted.
Section 21. No Implied Revival of Repealed Law.- When a law
which expressly repeals a prior law itself repealed, the law first
repealed shall not be thereby revived unless expressly so
provided.
Section 22. Revival of Law Impliedly Repealed. - When a law
which impliedly repeals a prior law is itself repealed, the prior
law shall thereby be revived, unless the repealing law provides
otherwise.
Section 23. Ignorance of the Law. - Ignorance of the law
excuses no one from compliance therewith.
Section 24. Contents. - There shall be published in the Official
Gazette all legislative acts and resolutions of a public nature; all
executive and administrative issuances of general application;
decisions or abstracts of decisions of the Supreme Court and
the Court of Appeals, or other courts of similar rank, as may be
deemed by said courts of sufficient importance to be so
published; such documents or classes of documents as may be
required so to be published by law; and such documents or
classes of documents as the President shall determine from
time to time to have general application or which he may
authorize so to be published.
The publication of any law, resolution or other official
documents in the Official Gazette shall be prima facie evidence
of its authority.
EO 200. Sec. 2. Article 2 of Republic Act No. 386,
otherwise known as the "Civil Code of the Philippines,"
and all other laws inconsistent with this Executive Order
are hereby repealed or modified accordingly.
Tanada v. Tuvera
Publication in the Official Gazette is mandatory for the
effectivity of the law notwithstanding a provision for effectivity
within the law itself. Laws that were not published in the OG
have no force and effect.
OG or newspaper of general circulation.
B. Ignorance of the law
NCC Article 3. Ignorance of the law excuses no one from
compliance therewith
Kasilag v. Rodriguez
Gross and inexcusable ignorance of law may not be the basis
of good faith, but possible, excusable ignorance may be such
basis. In this case, petitioner was said to be in good faith
despite such ignorance because the court recognized the fact
that we was not a lawyer who could have known the exact
rights under the law on antichresis.
Elegado v. CA
Ignorance of the law, in the case of foreigners, does not excuse
them from compliance.
C. Retroactivity of laws
NCC Article 4. Laws shall have no retroactive effect, unless
the contrary is provided
Cf:
Article 2252. Changes made and new provisions and rules laid
down by this Code which may prejudice or impair vested or
acquired rights in accordance with the old legislation shall have
no retroactive effect.
For the determination of the applicable law in cases which are
not specified elsewhere in this Code, the following articles shall
be observed: (Pars. 1 and 2, Transitional Provisions).
Article 2253. The Civil Code of 1889 and other previous laws
shall govern rights originating, under said laws, from acts done
or events which took place under their regime, even though this
Code may regulate them in a different manner, or may not
recognize them. But if a right should be declared for the first
time in this Code, it shall be effective at once, even though the
act or event which gives rise thereto may have been done or
may have occurred under prior legislation, provided said new
right does not prejudice or impair any vested or acquired right,
of the same origin. (Rule 1)
Article 2254. No vested or acquired right can arise from acts or
omissions which are against the law or which infringe upon the
rights of others. (n)
Article 2255. The former laws shall regulate acts and contracts
with a condition or period, which were executed or entered into
before the effectivity of this Code, even though the condition or
period may still be pending at the time this body of laws goes
into effect. (n)
Article 2256. Acts and contracts under the regime of the old
laws, if they are valid in accordance therewith, shall continue to
be fully operative as provided in the same, with the limitations
established in these rules. But the revocation or modification of
these acts and contracts after the beginning of the effectivity of
this Code, shall be subject to the provisions of this new body of
1
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
laws. (Rule 2a)
Article 2257. Provisions of this Code which attach a civil
sanction or penalty or a deprivation of rights to acts or
omissions which were not penalized by the former laws, are not
applicable to those who, when said laws were in force, may
have executed the act or incurred in the omission forbidden or
condemned by this Code.
If the fault is also punished by the previous legislation, the less
severe sanction shall be applied.
If a continuous or repeated act or omission was commenced
before the beginning of the effectivity of this Code, and the
same subsists or is maintained or repeated after this body of
laws has become operative, the sanction or penalty prescribed
in this Code shall be applied, even though the previous laws
may not have provided any sanction or penalty therefor. (Rule
3a)
Article 2258. Actions and rights which came into being but
were not exercised before the effectivity of this Code, shall
remain in full force in conformity with the old legislation; but
their exercise, duration and the procedure to enforce them shall
be regulated by this Code and by the Rules of Court. If the
exercise of the right or of the action was commenced under the
old laws, but is pending on the date this Code takes effect, and
the procedure was different from that established in this new
body of laws, the parties concerned may choose which method
or course to pursue. (Rule 4)
Article 2259. The capacity of a married woman to execute acts
and contracts is governed by this Code, even if her marriage
was celebrated under the former laws. (n)
Article 2260. The voluntary recognition of a natural child shall
take place according to this Code, even if the child was born
before the effectivity of this body of laws. (n)
Article 2261. The exemption prescribed in article 302 shall also
be applicable to any support, pension or gratuity already
existing or granted before this Code becomes effective. (n)
Article 2262. Guardians of the property of minors, appointed by
the courts before this Code goes into effect, shall continue to
act as such, notwithstanding the provisions of article 320. (n)
Article 2263. Rights to the inheritance of a person who died,
with or without a will, before the effectivity of this Code, shall be
governed by the Civil Code of 1889, by other previous laws,
and by the Rules of Court. The inheritance of those who, with
or without a will, die after the beginning of the effectivity of this
Code, shall be adjudicated and distributed in accordance with
this new body of laws and by the Rules of Court; but the
testamentary provisions shall be carried out insofar as they
may be permitted by this Code. Therefore, legitimes,
betterments, legacies and bequests shall be respected;
however, their amount shall be reduced if in no other manner
can every compulsory heir be given his full share according to
this Code. (Rule 12a)
Article 2264. The status and rights of natural children by legal
fiction referred to in article 89 and illegitimate children
mentioned in article 287, shall also be acquired by children
born before the effectivity of this Code. (n)
Article 2265. The right of retention of real or personal property
arising after this Code becomes effective, includes those things
which came into the creditor's possession before said date. (n)
Article 2266. The following shall have not only prospective but
also retroactive effect:
(1) Article 315, whereby a descendant cannot be
compelled, in a criminal case, to testify against his
parents and ascendants;
(2) Articles 101 and 88, providing against collusion in
cases of legal separation and annulment of marriage;
(3) Articles 283, 284, and 289, concerning the proof of
illegitimate filiation;
(4) Article 838, authorizing the probate of a will on
petition of the testator himself;
(5) Articles 1359 to 1369, relative to the reformation of
instruments;
(6) Articles 476 to 481, regulating actions to quiet title;
(7) Articles 2029 to 2031, which are designed to
promote compromises. (n)
Article 2267. The following provisions shall apply not only to
future cases but also to those pending on the date this Code
becomes effective:
(1) Article 29, Relative to criminal prosecutions wherein the
accused is acquitted on the ground that his guilt has not been
proved beyond reasonable doubt;
(2) Article 33, concerning cases of defamation, fraud, and
physical injuries. (n)
Article 2268. Suits between members of the same family which
are pending at the time this Code goes into effect shall be
suspended, under such terms as the court may determine, in
order that compromise may be earnestly sought, or, in case of
legal separation proceedings, for the purpose of effecting, if
possible, a reconciliation. (n)
Article 2269. The principles upon which the preceding
transitional provisions are based shall, by analogy, be applied
to cases not specifically regulated by them.
RPC Art. 22. Retroactive effect of penal laws. - Penal Laws
shall have a retroactive effect insofar as they favor the persons
guilty of a felony, who is not a habitual criminal, as this term is
defined in Rule 5 of Article 62 of this Code, although at the time
of the publication of such laws a final sentence has been
pronounced and the convict is serving the same.
2
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
FC Art. 256. This Code shall take effect one year after the
completion of its publication in a newspaper of general
circulation, as certified by the Executive Secretary, Office of the
President.
Done in the City of Manila, this 6th day of July, 1987.
David v. Agbay
On the topic of retroactivity, the petitioner here was not allowed
to benefit from the provisions of RA 9225 (Sec 3: Those
natural-born citizens who acquire foreign citizenship AFTER the
effectivity of this act shall retain Ph citizenship). Because the
law is clear that such retention of Ph citizenship only applies to
those who acquired foreign citizenship after the effectivity of RA
9225, petitioner cannot claim that the law has retroactive effect.
It must be noted that petitioner acquired foreign citizenship
BEFORE effectivity of RA 9225.
Abad v. Philcomsat
General rule: Judicial decisions have prospective effect
XPN: The ruling does not enunciate a new legal doctrine or
change the interpretation of the law as to prejudice the parties
and undo their situations established under an old doctrine or
prior interpretation
In the case at bar, the decision of the court validating a
compromise agreement retroacts to the date of the
compromise agreement was entered, and not when the court
promulgated such judgement.
D. Mandatory or Prohibitory laws
NCC Article 5. Acts executed against the provisions of
mandatory or prohibitory laws shall be void, except when the
law itself authorizes their validity.
Article 17 (3). Prohibitive laws concerning persons, their acts
or property, and those which have for their object public order,
public policy and good customs shall not be rendered
ineffective by laws or judgments promulgated, or by
determinations or conventions agreed upon in a foreign
country.
Nerwin v PNOC
This case exemplified the application of a prohibitory law. To be
more particular, the prohibitory law used was Sec 3 of RA 8975
clearly prohibiting the issuance of TRO, preliminary injunctions,
and preliminary mandatory injunctions against government. The
judge in the lower court, despite the prohibition, issued such.
Hence, he was sanctioned by the court.
E. Waiver of rights
NCC Article 6. Rights may be waived, unless the waiver is
contrary to law, public order, public policy, morals, or good
customs, or prejudicial to a third person with a right recognized
by law.
Article 2035. No compromise upon the following questions
shall be valid:
(1) The civil status of persons;
(2) The validity of a marriage or a legal separation;
(3) Any ground for legal separation;
(4) Future support;
(5) The jurisdiction of courts;
(6) Future legitime.
DM Consunji v CA
The case exemplified an invalid waiver of private respondent.
There was an invalid waiver because Private Respondent did
not know that she had two available remedies to her favor.
Alternatively said, she did not know that she was waiving her
right to the other remedy when she chose what she thought
was the only remedy available to her. This negates the rule that
a waiver must be one knowingly made.
Additional Facts: The issue in this case was whether the
private respondent can still file a case against petitioner
company due to the death of her husband, petitioner’s
employee. The main defense of petitioner is that the private
respondent already availed of receiving death benefits under
the Labor Code; hence she validly waived her right to file a suit
against the company under the Civil Code. The Court ruled that
as a general rule, the remedies available to private respondent
is alternative. However, the Court ruled that it the rule does not
apply to respondent because at the time she availed of the
death benefits, she was not aware of the fact that it was the
negligence of petitioner that caused her husband’s death, and
could have pursued a civil case for damages.
Dela Cruz v Dela Cruz
A donation was made that contained the stipulation,
“that to put everything in proper order, I hereby waive all my
share, interest and participation in so far as it refer to the one
half portion (120 SQ. M.) of the above-parcel of land,” Donor
sought to revoke the donation on account of an unfulfilled
condition, donor alleges that “not everything was put in order.”
Court held otherwise. There was no condition in the donation
made. Court ruled that the Donee had the title to the property
as soon as he accepted the donation. The subsequent
interpretation of the donor seems to be an after-thought to
revoke the donation validly made.
Dona Adela v Tidcorp
It is an elementary rule that the existence of a waiver must be
positively demonstrated since a waiver by implication is not
normally countenanced. The norm is that a waiver must not
only be voluntary, but must have been made knowingly,
intelligently, and with sufficient awareness of the relevant
circumstances and likely consequences. There must be
persuasive evidence to show an actual intention to relinquish
the right. Mere silence on the part of the holder of the right
should not be construed as a surrender thereof; the courts must
indulge every reasonable presumption against the existence
and validity of such waiver.
In the case at bar, the document purporting to contain the
waiver of petitioner of her right to confidentiality in regards bank
deposits under RA 1405 (Law on Secrecy of Bank Deposits)
was not even signed by her. She was not a party to the
agreement between the two banks, hence, such document
could not be said to be a waiver of her statutory right.
F. Repeal of laws
NCC Article 7. Laws are repealed only by subsequent
ones, and their violation or non-observance shall not be
excused by disuse, or custom or practice to the contrary.
When the courts declared a law to be inconsistent with
the Constitution, the former shall be void and the latter
3
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
shall govern.
Administrative or executive acts, orders and regulations
shall be valid only when they are not contrary to the laws
or the Constitution
NCC Art 7 cf:
1987 Consti, Art XVIII (Transitory Provisions)
Section 3. All existing laws, decrees, executive orders,
proclamations, letters of instructions, and other executive
issuances not inconsistent with this Constitution shall remain
operative until amended, repealed, or revoked.
FC Art. 254. If any provision of this Code is held invalid, all the
other provisions not affected thereby shall remain valid.
Thornton v Thornton
Settled is the rule in statutory construction that implied repeals
are not favored. “The two laws must be absolutely
incompatible, and a clear finding thereof must surface, before
the inference of implied repeal may be drawn. The rule is
expressed in the maxim, interpretare et concordare leqibus est
optimus interpretendi, i.e., every statute must be so interpreted
and brought into accord with other laws as to form a uniform
system of jurisprudence. The fundament is that the legislature
should be presumed to have known the existing laws on the
subject and not have enacted conflicting statutes. Hence, all
doubts must be resolved against any implied repeal, and all
efforts should be exerted in order to harmonize and give effect
to all laws on the subject.”
In this case, provisions of RA8369 reveal no intent to revoke
the jurisdiction of the CA and SC to issue writs of habeas
corpus relating to custody of minors. It also cannot be said that
the provisions of RA8369, RA7092 and BP129 are absolutely
incompatible since RA8369 does not prohibit the CA and SC
from issuing writs of habeas corpus. Thus, the provisions must
be read in harmony with each other.
Kida v Senate
Section 1 of RA 9054 (organic law of ARMM) must be struck
down for giving RA 9054 the character of being unrepealable.
Section 1 provided that amendments of the organic act needs
2/3 vote of congress. This voting requirement is beyond that
which is mandated by the constitution, requiring only a majority
vote.
Yinlu Bicol v Trans-Asia
Rights pertaining to mining patents issued pursuant to the
Philippine Bill of 1902 and existing prior to November 15, 1935
are vested rights that cannot be impaired although subsequent
legislation prohibited such issuance.
A right is vested when the right to enjoyment has become the
property of some particular person or persons as a present
interest.’ (16 C.J.S. 1173). It is “the privilege to enjoy property
legally vested, to enforce contracts, and enjoy the rights of
property conferred by existing law” (12 C.J. 955, Note 46, No.
6) or “some right or interest in property which has become fixed
and established and is no longer open to doubt or controversy”
(Downs vs. Blount, 170 Fed. 15, 20, cited in Balboa vs.
Farrales, 51 Phil. 498, 502).
The due process clause prohibits the annihilation of vested
rights. ‘A state may not impair vested rights by legislative
enactment, by the enactment or by the subsequent repeal of a
municipal ordinance, or by a change in the constitution of the
State, except in a legitimate exercise of the police power’
G. Judicial decisions
NCC Article 8. Judicial decisions applying or interpreting the
laws or the Constitution shall form a part of the legal system of
the Philippines.
Pesca v Pesca
The guidelines enunciated in the case of Molina for examining
a spouse suffering from psychological incapacity is controlling
and must be used by Courts to decide cases under Art 36 of
the FC, since such ruling forms part of the law of the land.
De Castro v JBC
This SC reversed the ruling of In Re: Valenzuela. The SC now
held that the constitutional ban on midnight appointment IS
NOT applicable to the judiciary, which is the opposite of In Re:
Valenzuela. The Court held that although adherence to
precedent is not rigidly required in constitutional cases, any
departure from the doctrine of stare decisis demands special
justification. The special justification for the reversal
of Valenzuela lies in its intrinsic unsoundness. (This was noted
in the footnote of the case)
Virtucio v Alegarbes
Stare decisis is only applicable to cases decided by the
Supreme Court alone, and not by any lower court.
Republic v Rehman Enterprises
The decision of the Supreme Court in Republic v. Tan
(interpreting the requirements of a declaration that the land is
alienable) was held controlling and applicable to respondents
despite the fact that respondent applied for the registration of
title BEFORE the promulgation of the judgement of Republic v.
Tan.
The Court held that the retroactive application of the ruling
interpreting the law dates back to when the law was originally
passed since this Court’s construction merely establishes the
contemporaneous legislative intent that the interpreted law
carried into effect. Such judicial doctrine does not amount to the
passage of a new law, but consists merely of a construction or
interpretation of a pre–existing one.
CLT Realty v Hi-Grande Feeds Corps
No new doctrine enunciated in re judicial decisions. This case
just mentions that the issue herein has already been resolved
by earlier cases by the Supreme Court, hence, the Court used
the same reasoning.
*Maybe related doctrine: Senate reports are not binding and
conclusive upon the courts but will be examined and evaluated
based on its probative value.
H. Duty to render judgement
NCC Article 9. No judge or court shall decline to render
judgment by reason of the silence, obscurity or insufficiency of
4
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
the laws.
Article 10. In case of doubt in the interpretation or application
of laws, it is presumed that the lawmaking body intended right
and justice to prevail.
RPC Article 5. Duty of the court in connection with acts which
should be repressed but which are not covered by the law, and
in cases of excessive penalties. - Whenever a court has
knowledge of any act which it may deem proper to repress and
which is not punishable by law, it shall render the proper
decision, and shall report to the Chief Executive, through the
Department of Justice, the reasons which induce the court to
believe that said act should be made the subject of legislation.
In the same way, the court shall submit to the Chief Executive,
through the Department of Justice, such statement as may be
deemed proper, without suspending the execution of the
sentence, when a strict enforcement of the provisions of this
Code would result in the imposition of a clearly excessive
penalty, taking into consideration the degree of malice and the
injury caused by the offense.
People v Ritter
In this case, Ritter, the rapist of Rosario, was acquitted on
account of the insufficient rape laws of Philippines in 1991. The
decision of the Court then led to the creation of Republic Act
7610 or the "Special Protection of Children Against Abuse,
Exploitation and Discrimination Act and the amendment of the
Anti-Rape Law of 1997.
I. Presumption and applicability
customs
NCC. Art. 11. Customs which are contrary to law, public order
or public policy shall not be countenanced.
Art. 12. A custom must be proved as a fact, according to the
rules of evidence.
1987 Constitution. Art XII Section 5. The State, subject to the
provisions of this Constitution and national development
policies and programs, shall protect the rights of indigenous
cultural communities to their ancestral lands to ensure their
economic, social, and cultural well-being.
The Congress may provide for the applicability of customary
laws governing property rights or relations in determining the
ownership and extent of ancestral domain.
ROC Rule 22. Sec. 2 . Judicial notice, when discretionary. — A
court may take judicial notice of matters which are of public
knowledge, or are capable to unquestionable demonstration, or
ought to be known to judges because of their judicial functions.
Sec. 3 . Judicial notice, when hearing necessary. — During the
trial, the court, on its own initiative, or on request of a party,
may announce its intention to take judicial notice of any matter
and allow the parties to be heard thereon.
After the trial, and before judgment or on appeal, the proper
court, on its own initiative or on request of a party, may take
judicial notice of any matter and allow the parties to be heard
thereon if such matter is decisive of a material issue in the
case.
Martinez v Van Buskirk
Driver left his team of horses to assist someone else, resulting
in injury to another. Held: Acts, the performance of which has
not proven destructive or injurious and which have been
generally acquiesced in by society for so long a time as to have
ripened into a custom, cannot be held to be unreasonable or
imprudent and that, under the circumstances, the driver was
not guilty of negligence in so leaving his team while assisting in
unloading his wagon.
Tomawis v Balindong
While we recognize the concurrent jurisdiction of the Shari’a
Disctrict Courts and the RTCs with respect to cases involving
only Muslims, the SDC has exclusive original jurisdiction over
all actions arising from contracts customary to Muslims to the
exclusion of the RTCs, as the exception under PD 1083, while
both courts have concurrent original jurisdiction over all other
personal actions. Said jurisdictional conferment, found in Art.
143 of PD 1083, is applicable solely when both parties are
Muslims and shall not be construed to operate to the prejudice
of a non- Muslim, who may be the opposing party against a
Muslim.
J. Legal periods
NCC. Art. 13. When the laws speak of years, months, days or
nights, it shall be understood that years are of three hundred
of sixty-five days each; months, of thirty days; days, of twenty-four
hours; and nights from sunset to sunrise.
If months are designated by their name, they shall be computed
by the number of days which they respectively have.
In computing a period, the first day shall be excluded, and the
last day included. (REPEALED BY RAC)
ROC. Rule 22. Section 1. How to compute time. In computing
any period of time prescribed or allowed by these Rules, or by
order of the court, or by any applicable statute, the day of the
act or event from which the designated period of time begins to
run is to be excluded and the date of performance included. If
the last day of the period, as thus computed, falls on a
Saturday, a Sunday, or a legal holiday in the place where the
court sits, the time shall not run until the next working day.
Sec. 2. Effect of interruption. Should an act be done which
effectively interrupts the running of the period, the allowable
period after such interruption shall start to run on the day after
notice of the cessation of the cause thereof.
The day of the act that caused the interruption shall be
excluded in the computation of the period.
RAC. Section 31. Legal Periods. - "Year" shall be understood
to be twelve calendar months; "month" of thirty days, unless it
refers to a specific calendar month in which case it shall be
computed according to the number of days the specific month
contains; "day," to a day of twenty-four hours; and "night," from
sunset to sunrise.
5
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
Commr. v Primetown
Admin Code governs over the Civil Code with regard to legal
periods. A year is equivalent to 365 days regardless of
whether it is a regular year or a leap year. A calendar month is
“a month designated in the calendar without regard to the
number of days it may contain.” It is the “period of time running
from the beginning of a certain numbered day up to, but not
including, the corresponding numbered day of the next month,
and if there is not a sufficient number of days in the next month,
then up to and including the last day of that month.” To
illustrate,
one calendar month from December 31, 2007 will be from
January 1, 2008 to January 31, 2008; one calendar month from
January 31, 2008 will be from February 1, 2008 until February
29, 2008.
Commr. v Aichi Forging
Reiterates Primetown case supra. Both Article 13 of the Civil
Code and Section 31, Chapter VIII, Book I of the Administrative
Code of 1987 deal with the same subject matter—the
computation of legal periods. Under the Civil Code, a year is
equivalent to 365 days whether it be a regular year or a leap
year. Under the Administrative Code of 1987, however, a year
is
composed of 12 calendar months. Needless to state, under the
Administrative Code of 1987, the number of days is irrelevant.
There obviously exists a manifest incompatibility in the manner
of computing legal periods under the Civil Code and the
Administrative Code of 1987. For this reason, we hold that
Section 31, Chapter VIII, Book I of the Administrative Code of
1987, being the more recent law, governs the computation of
legal periods. Lex posteriori derogat priori.
III. Conflict of Laws
NCC. Art. 14. Penal laws and those of public security and
safety shall be obligatory upon all who live or sojourn in the
Philippine territory, subject to the principles of public
international law and to treaty stipulations.
RPC. Art. 2. Application of its provisions. — Except as provided
in the treaties and laws of preferential application, the
provisions of this Code shall be enforced not only within the
Philippine Archipelago, including its atmosphere, its interior
waters and maritime zone, but also outside of its jurisdiction,
against those who:
1. Should commit an offense while on a Philippine ship or
airship
2. Should forge or counterfeit any coin or currency note of the
Philippine Islands or obligations and securities issued by the
Government of the Philippine Islands; chan robles virtual law
library
3. Should be liable for acts connected with the introduction into
these islands of the obligations and securities mentioned in the
presiding number;
4. While being public officers or employees, should commit an
offense in the exercise of their functions; or
5. Should commit any of the crimes against national security
and the law of nations, defined in Title One of Book Two of this
Code.
NCC. Art. 15. Laws relating to family rights and duties, or to
the status, condition and legal capacity of persons are binding
upon citizens of the Philippines, even though living abroad.
FC Art. 26 par 2. Where a marriage between a Filipino citizen
and a foreigner is validly celebrated and a divorce is thereafter
validly obtained abroad by the alien spouse capacitating him or
her to remarry, the Filipino spouse shall have capacity to
remarry under Philippine law.
Tenchavez v Escano
A foreign divorce between Filipino citizens,, sought and
decreed after the effectivity of the new Civil Code (Republic Act
No. 386), is not entitled to recognition as valid in the
Philippines; and neither is the marriage contracted with another
party by the divorced consort, subsequently to the foreign
decree of divorce, entitled to validity in this country.
Lavaia v Heirs of Luna
The first marriage between Atty. Luna and Eugenia, both
Filipinos, was solemnized in the Philippines on September 10,
1947. The law in force at the time of the solemnization was the
Spanish Civil Code, which adopted the nationality rule. The
Civil Code continued to follow the nationality rule, to the effect
that Philippine laws relating to family rights and duties, or to the
status, condition and legal capacity of persons were binding
upon citizens of the Philippines, although living abroad.
Conformably with the nationality rule, a divorce, even if
voluntarily obtained abroad, did not dissolve the marriage
between Atty. Luna and Eugenia.
Board of Commissioners v de la Rosa
There being no proof of Chinese law relating to marriage, there
arises the presumption that it is the same as that of Philippine
law.
ATCI Overseas Corp v Echin
The Philippines does not take judicial notice of foreign laws,
hence, they must not only be alleged; they must be proven. To
prove a foreign law, the party invoking it must present a copy
thereof and comply with Sections 24 and 25 of Rule 132 of the
Revised Rules of Court.
NCC. Art. 16. Real property as well as personal property is
subject to the law of the country where it is stipulated.
However, intestate and testamentary successions, both with
respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person
whose succession is under consideration, whatever may be the
nature of the property and regardless of the country wherein
said property may be found.
Amos v Bellis
A provision in a foreigner's will that his properties should be
distributed in accordance with Philippine law and not in
accordance with his national law is void, being contrary to
article 16 of the New Civil Code. Where the decedent was a
citizen of Texas and under Texas laws there are no forced
heirs, the system of legitimes in Philippine law cannot be
applied to the succession to the decedent's testate because the
intrinsic validity of the provisions of the decedent's will and the
amount of successional rights are to be determined under
6
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
Texas law.
Tayag v Benguet Consolidated
It is a general rule universally recognized that administration,
whether principal or ancillary, certainly extends to the assets of
a decedent found within the state or country where it was
granted, the corollary being "that an administrator appointed in
one state or country has no power over property la another
state or country". Since, in the case at bar, there is a refusal,
persistently adhered to by the domiciliary administrator in New
York, to deIiver the shares of stocks of Philippine corporation
Benguet owned by the decedent to the ancillary administrator in
the Philippines, there was nothing unreasonable or arbitrary in
considering them as lost and requiring Benguet to issue new
certificates in lieu thereof.
Del Socorro v Van Wilsem
Since the respondent is a citizen of Holland or the Netherlands,
he is subject to the laws of his country, not to Philippine law, as
to whether he is obliged to give support to his child, as well as
the consequences of his failure to do so.
NCC. Art. 17. The forms and solemnities of contracts, wills,
and other public instruments shall be governed by the laws of
the country in which they are executed.
When the acts referred to are executed before the diplomatic or
consular officials of the Republic of the Philippines in a foreign
country, the solemnities established by Philippine laws shall be
observed in their execution.
Prohibitive laws concerning persons, their acts or property, and
those which have, for their object, public order, public policy
and good customs shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions
agreed upon in a foreign country.
Kazuhiro Hasegawa v Kitamura
Lex loci celebrationis, Lex contractus, and most significant
relationship: these three principles in conflict of laws make
reference to the law applicable to a dispute. Necessarily, as the
only issue in this case is that of jurisdiction, choice-of-law rules
are not only inapplicable but also not yet called for. The
question of whether the law of a state can be applied to a
transaction is different from the question of whether the courts
of that state have jurisdiction to enter a judgment.
Raytheon v Rouzie
Where the case is filed in a Philippine court and where the
court has jurisdiction over the subject matter, the parties and
the res, it may or can proceed to try the case even if the rules
of conflict-of-laws or the convenience of the parties point to a
foreign forum. Jurisdiction over the nature and subject matter of
an action is conferred by the Constitution and the law and by
the material allegations in the complaint, irrespective of whether
or not the plaintiff is entitled to recover all or some of the claims
or reliefs sought therein.
NCC. Art. 18. In matters which are governed by the Code of
Commerce and special laws, their deficiency shall be supplied
by the provisions of this Code.
Tamano v Ortiz
In the complaint for declaration of nullity of marriage, it was
alleged that Estrellita and Tamano were married in accordance
with the provisions of the Civil Code. Never was it mentioned
that Estrellita and Tamano were married under Muslim laws or
P.D. No. 1083. That she was in fact married to Tamano under
Muslim laws was first mentioned only in her Motion for
Reconsideration. Since the complaint alleges that the couple
were married in accordance with the Civil Code, it is the said
Code that is applicable in a complaint for declaration of nullity
of marriage.
Llave v Republic
Even granting that there was registration of mutual consent for
the marriage to be considered as one contracted under the
Muslim law, the registration of mutual consent between
Zorayda and Sen. Tamano will still be ineffective, as both are
Muslims whose marriage was celebrated under both civil and
Muslim laws. Besides, the Civil Code governs their personal
status since this was in effect at the time of the celebration of
their marriage.
Zamoranos v People
A Catholic converted to Islam and married a Muslim woman
under Islamic rights. He later obtained a decree of divorce by
“talaq.” Since both were Muslims that married under Muslim
rights, the nature, consequences, and incidents of such
marriage are governed by P.D. No. 1083. One of the effects of
irrevocable talaq, as well as other kinds of divorce, refers to
severance of matrimonial bond, entitling one to remarry.
Pacasum v Zamoranos
The Muslim Code recognizes divorce in marriages between
Muslims, and mixed marriages wherein only the male party is a
Muslim and the marriage is solemnized in accordance with
Muslim law or the Muslim Code in any part of the Philippines.
At present, this is the only law in the Philippines that allows
domestic divorce.
IV. Human Relations
NCC. Art. 19. Every person must, in the exercise of his rights
and in the performance of his duties, act with justice, give
everyone his due, and observe honesty and good faith.
Art. 20. Every person who, contrary to law, wilfully or
negligently causes damage to another, shall indemnify the
latter for the same.
Art. 21. Any person who wilfully causes loss or injury to another
in a manner that is contrary to morals, good customs or public
policy shall compensate the latter for the damage.
Art. 22. Every person who through an act of performance by
another, or any other means, acquires or comes into
possession of something at the expense of the latter without
just or legal ground, shall return the same to him.
Wassmer v Velez
Ordinarily, a mere breach of promise to marry is not an
actionable wrong. But to formally set a wedding and go through
all the necessary preparations and publicity, only to walk out of
it when the matrimony is about to be solemnized, is quite
7
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
different. This is palpably and unjustifiably contrary to good
customs, for which the erring promissor must be held
answerable in damages.
Tanjanco v CA
The case under Article 21, refers to a tort upon a minor who
has been seduced. The essential feature is seduction, that in
law is more than mere sexual intercourse, or a breach of
promise of marriage; it connotes essentially the idea of deceit,
enticement, superior power or abuse of confidence on the part
of the seducer, to which the woman has yielded. Where for one
whole year, plaintiff-appellee, a woman of adult age,
maintained intimate sexual relations with the defendant, with
repeated acts of intercourse, such conduct is incompatible with
the idea of seduction. Plainly, there is here voluntariness and
mutual passion.
Baksh v CA
Where a man's promise to marry is in fact the proximate cause
of the acceptance of his love by a woman and his
representation to fulfill that promise thereafter becomes the
proximate cause of the giving of herself unto him in a sexual
congress, proof that he had, in reality, no intention of marrying
her and that the promise was only a subtle scheme or
deceptive device to entice or inveigle her to accept him and to
obtain her consent to the sexual act, could justify the award of
damages pursuant to Article 21 not because of such promise to
marry but because of the fraud and deceit behind it and the
willful injury to her honor and reputation which followed
thereafter. It is essential, however, that such injury should have
been committed in a manner contrary to morals, good customs
or public policy.
Abanag v Mabute
Mere sexual relations between two unmmaried and consenting
adults are not enough to warrant administrative sanction for
illicit behavior. The Court has repeatedly held that voluntary
intimacy between a man and a woman who are not married,
where both are not under any impediment to marry and where
no deceit exists, is neither a criminal nor an unprincipled act
that would warrant disbarment or disciplinary action.
PERSONS
I. Capacity to Act
NCC. Art. 37. Juridical capacity, which is the fitness to be the
subject of legal relations, is inherent in every natural person
and is lost only through death. Capacity to act, which is the
power to do acts with legal effect, is acquired and may be lost.
Art. 38. Minority, insanity or imbecility, the state of being a
deaf-mute, prodigality and civil interdiction are mere restrictions
on capacity to act, and do not exempt the incapacitated person
from certain obligations, as when the latter arise from his acts
or from property relations, such as easements.
Art. 39. The following circumstances, among others, modify or
limit capacity to act: age, insanity, imbecility, the state of being
a deaf-mute, penalty, prodigality, family relations, alienage,
absence, insolvency and trusteeship. The consequences of
these circumstances are governed in this Code, other codes,
the Rules of Court, and in special laws. Capacity to act is not
limited on account of religious belief or political opinion.
A married woman, twenty-one years of age or over, is qualified
for all acts of civil life, except in cases specified by law.
1. Presumption of capacity
Catalan v Basa
It is interesting to note that the petitioners questioned
Feliciano’s capacity at the time he donated the property, yet did
not see fit to question his mental competence when he entered
into a contract of marriage with Corazon Cerezo or when he
executed deeds of donation of his other properties in their
favor. The presumption that Feliciano remained competent to
execute contracts, despite his illness, is bolstered by the
existence of these other contracts. Competency and freedom
from undue influence, shown to have existed in the other acts
done or contracts executed, are presumed to continue until the
contrary is shown.
2. Restrictions on capacity to act
NCC. Art. 1327. The following cannot give consent to a
contract:
(1) Unemancipated minors;
(2) Insane or demented persons, and deaf-mutes who do not
know how to write.
(a) Minority
RA 6809 (Amending the FC). Art. 234. Emancipation takes
place by the attainment of majority. Unless otherwise provided,
majority commences at the age of eighteen years.
Art. 236. Emancipation shall terminate parental authority over
the person and property of the child who shall then be qualified
and responsible for all acts of civil life, save the exceptions
established by existing laws in special cases.
Contracting marriage shall require parental consent until the
age of twenty-one.
Nothing in this Code shall be construed to derogate from the
duty or responsibility of parents and guardians for children and
wards below twenty-one years of age mentioned in the second
and third paragraphs of Article 2180 of the Civil Code
FC. Art. 5. Any male or female of the age of eighteen years or
upwards not under any of the impediments mentioned in
Articles 37 and 38, may contract marriage.
Art. 45. A marriage may be annulled for any of the following
causes, existing at the time of the marriage:
(1) That the party in whose behalf it is sought to have the
marriage annulled was eighteen years of age or over but below
twenty-one, and the marriage was solemnized without the
consent of the parents, guardian or person having substitute
parental authority over the party, in that order, unless after
attaining the age of twenty-one, such party freely cohabited
with the other and both lived together as husband and wife;
NCC. Art. 1390. The following contracts are voidable or
annullable, even though there may have been no damage to
8
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
the contracting parties:
(1) Those where one of the parties is incapable of giving
consent to a contract;
Art. 1403. The following contracts are unenforceable, unless
they are ratified:
(3) Those where both parties are incapable of giving consent to
a contract.
Art. 1397. The action for the annulment of contracts may be
instituted by all who are thereby obliged principally or
subsidiarily. However, persons who are capable cannot allege
the incapacity of those with whom they contracted; nor can
those who exerted intimidation, violence, or undue influence, or
employed fraud, or caused mistake base their action upon
these flaws of the contract.
Art. 1399. When the defect of the contract consists in the
incapacity of one of the parties, the incapacitated person is not
obliged to make any restitution except insofar as he has been
benefited by the thing or price received by him.
Art. 1489. All persons who are authorized in this Code to
obligate themselves, may enter into a contract of sale, saving
the modifications contained in the following articles.
Where necessaries are those sold and delivered to a minor or
other person without capacity to act, he must pay a reasonable
price therefor. Necessaries are those referred to in Article 290.
Art. 1426. When a minor between eighteen and twenty-one
years of age who has entered into a contract without the
consent of the parent or guardian, after the annulment of the
contract voluntarily returns the whole thing or price received,
notwithstanding the fact the he has not been benefited thereby,
there is no right to demand the thing or price thus returned.
Art. 1427. When a minor between eighteen and twenty-one
years of age, who has entered into a contract without the
consent of the parent or guardian, voluntarily pays a sum of
money or delivers a fungible thing in fulfillment of the obligation,
there shall be no right to recover the same from the obligee
who has spent or consumed it in good faith.
Mercado v Espiritu 1917
The courts have laid down the rule that the sale of real estate,
effected by minors who have already passed the ages of
puberty and adolescence and are near the adult age when they
pretend to have already reached their majority, while in fact
they have not, is valid, and they cannot be permitted afterwards
to excuse themselves from compliance with the obligation
assumed by them or to seek their annulment.
Atizado v People
Other evidence can be show to prove age to lower the penalty
of a crime, as per RA 9344 Juvenile Justice and Welfare act,
Sec 7: The child in conflict with the law shall enjoy the
presumption of minority…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 these documents,
age may be based on information from the child himself/herself,
testimonies of other persons, the physical 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 favor.
(b) Insanity
Family Code. Art. 45, par.2. A marriage may be annulled for
any of the following causes, existing at the time of the
marriage: (2) That either party was of unsound mind, unless
such party after coming to reason, freely cohabited
with the other as husband and wife;
New Civil Code. Art. 1327, par.1. The following cannot give
consent to a contract: (1) Unemancipated minors;
Art. 1328. Contracts entered into during a lucid interval are
valid. Contracts agreed to in a state of drunkenness or during a
hypnotic spell are voidable
Hernandez v. Santos
In pursuant to Rule 103, Sec.50, where the sanity of a person is
at issue, expert opinion is not necessary. The observations of
the trial judge coupled with evidence establishing the person's
state of mental sanity will suffice.
Also, persons who, though of sound mind but by reason of age,
disease, weak mind or other similar causes are incapable of
taking care of themselves and their property without outside
aid, are considered as incompetents who may properly be
placed under guardianship. (Rule 92, Sec. 2, ROC).
People v. Bulagao
Insanity presupposes that the accused was completely
deprived of reason or discernment and freedom of will at the
time of the commission of the crime. Only when there is a
complete deprivation of intelligence at the time of the
commission of the crime should the exempting circumstance of
insanity be considered.
Oropesa v. Oropesa
In order to invoke Rule 92, Sec. 2, ROC, it is required that a
“finding that a person is incompetent should be anchored on
clear, positive and definite evidence.”. It could be any relevant
documentary or testimonial evidence that would attest to the
veracity of his assertion that respondent is incompetent largely
due to his alleged deteriorating medical and mental condition.
(c) Deaf-Mutism
New Civil Code. Art. 1327, par.2. The following cannot give
consent to a contract: (2) Insane or demented persons, and
deaf-mutes who do not know how to write.
Art. 807. If the testator be deaf, or a deaf-mute, he must
personally read the will, if able to do so; otherwise, he shall
designate two persons to read it and communicate to him, in
some practicable manner, the contents thereof.
Art. 820. Any person of sound mind and of the age of eighteen
years or more, and not blind, deaf or dumb, and able to read
and write, may be a witness to the execution of a will
mentioned in Art. 805 of this Code.
(d) Prodigality
9
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
Rules of Court, Rule 92, Sec. 2. Meaning of word
"incompetent." - Under this rule, the word "incompetent"
includes persons suffering the penalty of civil interdiction or
who are hospitalized lepers, prodigals, deaf and dumb who are
unable to read and write, those who are of unsound mind, even
though they have lucid intervals, and persons not being of
unsound mind, but by reason of age, disease, weak mind, and
other similar causes, cannot, without aid, take care of
themselves and manage their property, becoming thereby an
easy prey for deceit and exploitation.
(e) Civil Interdiction
Revised Penal Code, Art. 31. Effect of the penalties of
perpetual or temporary special disqualification. — The penalties
of perpetual or temporal special disqualification for public office,
profession or calling shall produce the following effects:
1.) The deprivation of the office, employment, profession or
calling affected;
2.) The disqualification for holding similar offices or
employments either perpetually or during the term of the
sentence according to the extent of such disqualification..
Art. 34. Civil interdiction. — Civil interdiction shall deprive the
offender during the time of his sentence of the rights of parental
authority, or guardianship, either as to the person or property of
any ward, of marital authority, of the right to manage his
property and of the right to dispose of such property by any act
or any conveyance inter vivos.
Art. 41. Reclusion perpetua and reclusion temporal; Their
accessory penalties. — The penalties of reclusion perpetua and
reclusion temporal shall carry with them that of civil interdiction
for life or during the period of the sentence as the case may be,
and that of perpetual absolute disqualification which the
offender shall suffer even though pardoned as to the principal
penalty, unless the same shall have been expressly remitted in
the pardon.
(f) Family Relations
Family Code, Art. 150. Family relations include those:
(1) Between husband and wife;
(2) Between parents and children;
(3) Among brothers and sisters, whether of the full or half-
blood.
Art. 151. No suit between members of the same family shall
prosper unless it should appear from the verified complaint or
petition that earnest efforts toward a compromise have been
made, but that the same have failed. If it is shown that no such
efforts were in fact made, the same case must be dismissed.
This rules shall not apply to cases which may not be the subject
of compromise under the Civil Code.
(cf) Art. 87. Every donation or grant of gratuitous advantage,
direct or indirect, between the spouses during the marriage
shall be void, except moderate gifts which the spouses may
give each other on the occasion of any family rejoicing. The
prohibition shall also apply to persons living together as
husband and wife without a valid marriage.
(cf) New Civil Code, Art. 1490. The husband and the wife
cannot sell property to each other, except:
(1) When a separation of property was agreed upon in the
marriage settlements; or
(2) When there has been a judicial separation of property under
Art. 191.
Art. 2035. No compromise upon the following questions shall
be valid:
(1) The civil status of persons;
(2) The validity of a marriage or a legal separation;
(3) Any ground for legal separation;
(4) Future support;
(5) The jurisdiction of courts;
(6) Future legitime.
Art. 963. Proximity of relationship is determined by the number
of generations. Each generation forms a degree.
Art. 964. A series of degrees forms a line, which may be either
direct or collateral.
A direct line is that constituted by the series of degrees among
ascendants and descendants.
A collateral line is that constituted by the series of degrees
among persons who are not ascendants and descendants, but
who come from a common ancestor.
Art. 965. The direct line is either descending or ascending. The
former unites the head of the family with those who descend
from him. The latter binds a person with those from whom he
descends.
Art. 966. In the line, as many degrees are counted as there are
generations or persons, excluding the progenitor.
In the direct line, ascent is made to the common ancestor.
Thus, the child is one degree removed from the parent, two
from the grandfather, and three from the great-grandparent.
In the collateral line, ascent is made to the common ancestor
and then descent is made to the person with whom the
computation is to be made. Thus, a person is two degrees
removed from his brother, three from his uncle, who is the
brother of his father, four from his first cousin, and so forth.
Art. 967. Full blood relationship is that existing between
persons who have the same father and the same mother.
Half blood relationship is that existing between persons who
have the same father, but not the same mother, or the same
mother, but not the same father.
(g) Alienage
(cf) Constitution. Art. IV. Citizenship.
Sec. 1. The following are citizens of the Philippines:
1. Those who are citizens of the Philippines at the time of the
adoption of this Constitution;
2. Those whose fathers or mothers are citizens of the
Philippines;
3. Those born before January 17, 1973, of Filipino mothers,
who elect Philippine Citizenship upon reaching the age of
majority; and
4. Those who are naturalized in the accordance with law.
10
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
Sec. 2. Natural-born citizens are those who are citizens of the
Philippines from birth without having to perform any act to
acquire or perfect their Philippine citizenship. Those who elect
Philippine citizenship in accordance with par. (3), Sec. 1 hereof
shall be deemed natural-born citizens.
Sec. 3. Philippine citizenship may be lost or reacquired in the
manner provided by law.
Sec. 4. Citizens of the Philippines who marry aliens shall retain
their citizenship, unless by their act or omission they are
deemed, under the law to have renounced it.
Sec. 5.. Dual allegiance of citizens is inimical to the national
interest and shall be dealt with by law.
(h) Absence
New Civil Code, Title XIV. Absence.
CHAPTER 1. Provisional Measures in Case of Absence
Art. 381. When a person disappears from his domicile, his
whereabouts being unknown, and without leaving an agent to
administer his property, the judge, at the instance of an
interested party, a relative, or a friend, may appoint a person to
represent him in all that may be necessary.
This same rule shall be observed when under similar
circumstances the power conferred by the
absentee has expired.
Art. 382. The appointment referred to in the preceding article,
having been made, the judge shall take the necessary
measures to safeguard the rights and interests of the absentee
and shall specify the powers, obligations and remuneration of
his representative, regulating them, according to the
circumstances, by the rules concerning guardians.
Art. 383. In the appointment of a representative, the spouse
present shall be preferred when there is no legal separation.
If the absentee left no spouse, or if the spouse present is a
minor, any competent person may be appointed by the court.
CHAPTER 2. Declaration of Absence
Art. 384. Two years having elapsed without any news about
the absentee or since the receipt of the last news, and five
years in case the absentee has left a person in charge of the
administration of his property, his absence may be declared.
Art. 385. The following may ask for the declaration of absence:
(1) The spouse present;
(2) The heirs instituted in a will, who may present an authentic
copy of the same;
(3) The relatives who may succeed by the law of intestacy;
(4) Those who may have over the property of the absentee
some right subordinated to the condition of his death.
Art. 386. The judicial declaration of absence shall not take
effect until six months after its publication in a newspaper of
general circulation.
CHAPTER 3. Administration of the Property of the
Absentee
Art. 387. An administrator of the absentee's property shall be
appointed in accordance with Article 383.
Art. 388. The wife who is appointed as an administratrix of the
husband's property cannot alienate or encumber the husband's
property, or that of the conjugal partnership, without judicial
authority.
Art. 389. The administration shall cease in any of the following
cases:
(1) When the absentee appears personally or by means of an
agent;
(2) When the death of the absentee is proved and his testate or
intestate heirs appear;
(3) When a third person appears, showing by a proper
document that he has acquired the absentee's property by
purchase or other title.
In these cases the administrator shall cease in the performance
of his office, and the property shall be at the disposal of those
who may have a right thereto.
CHAPTER 4. Presumption of Death
Art. 390. After an absence of seven years, it being unknown
whether or not the absentee still lives, he shall be presumed
dead for all purposes, except for those of succession.
The absentee shall not be presumed dead for the purpose of
opening his succession till after an absence of ten years. If he
disappeared after the age of seventy-five years, an absence of
five years shall be sufficient in order that his succession may be
opened.
Art. 391. The following shall be presumed dead for all
purposes, including the division of the estate among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an
aeroplane which is missing, who has not been heard of for four
years since the loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war,
and has been missing for four years;
(3) A person who has been in danger of death under other
circumstances and his existence has not been known for four
years.
Art. 392. If the absentee appears, or without appearing his
existence is proved, he shall recover his property in the
condition in which it may be found, and the price of any
property that may have been alienated or the property acquired
therewith; but he cannot claim either fruits or rents.
CHAPTER 5. Effect of Absence Upon the Contingent
Rights of the Absentee
Art. 393. Whoever claims a right pertaining to a person whose
existence is not recognized must prove that he was living at the
time his existence was necessary in order to acquire said right.
Art. 394. Without prejudice to the provision of the preceding
article, upon the opening of a succession to which an absentee
is called, his share shall accrue to his coheirs, unless he has
heirs, assigns, or a representative. They shall all, as the case
may be, make an inventory of the property.
Art. 395. The provisions of the preceding article are understood
to be without prejudice to the action of petition for inheritance or
other rights which are vested in the absentee, his
representatives or successors in interest. These rights shall not
be extinguished save by lapse of time fixed for prescription. In
the record that is made in the Registry of the real estate which
accrues to the coheirs, the circumstance of its being subject to
the provisions of this article shall be stated.
11
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
(6) Any others specially disqualified by law.
Art. 396. Those who may have entered upon the inheritance
shall appropriate the fruits received in good faith so long as the Art. 2236. The debtor is liable with all his property, present and
absentee does not appear, or while his representatives or future, for the fulfillment of his obligations, subject to the
successors in interest do not bring the proper actions. exemptions provided by law.

Family Code. Art. 41. A marriage contracted by any person (j) Gender
during subsistence of a previous marriage shall be null and
void, unless before the celebration of the subsequent marriage,
the prior spouse had been absent for four consecutive years Constitution. Art. II, Sec. 14. The State recognizes the role of
and the spouse present has a well-founded belief that the women in nation-building, and shall ensure the fundamental
absent spouse was already dead. In case of disappearance equality before the law of women and men.
where there is danger of death under the circumstances set
forth in the provisions of Article 391 of the Civil Code, an (cf) New Civil Code. Art. 403. Notwithstanding the provisions
absence of only two years shall be sufficient. of the preceding article, a daughter above twenty-one but below
twenty-three years of age cannot leave the parental home
For the purpose of contracting the subsequent marriage under without the consent of the father or mother in whose company
the preceding paragraph the spouse present must institute a she lives, except to become a wife, or when she exercises a
summary proceeding as provided in this Code for the profession or calling, or when the father or mother has
declaration of presumptive death of the absentee, without contracted a subsequent marriage.
prejudice to the effect of reappearance of the absent spouse.
(cf) Rules of Court. Rule 3, Sec. 4. Spouses as parties. —
(i) Insolvency and Trusteeship Husband and wife shall sue or be sued jointly, except as
provided by law.
New Civil Code. Art. 1381. The following contracts are
rescissible: (k) Physical Incapacity/Disease
(1) Those which are entered into by guardians whenever the
wards whom they represent suffer lesion by more than one
Family Code. Art. 45. A marriage may be annulled for any of
fourth of the value of the things which are the object thereof;
the following causes, existing at the time of the marriage:
(2) Those agreed upon in representation of absentees, if the
(5) That either party was physically incapable of consummating
latter suffer the lesion stated in the preceding number;
the marriage with the other, and such incapacity continues and
(3) Those undertaken in fraud of creditors when the latter
appears to be incurable; or
cannot in any other manner collect the claims due them;
(6) That either party was afflicted with a sexually-transmissible
(4) Those which refer to things under litigation if they have been
disease found to be serious and appears to be incurable.
entered into by the defendant without the knowledge and
approval of the litigants or of competent judicial authority;
Art. 46. Any of the following circumstances shall constitute
(5) All other contracts specially declared by law to be subject to
fraud referred to in Number 3* of the preceding Article:
rescission.
(1) Non-disclosure of a previous conviction by final judgment of
the other party of a crime involving moral turpitude;
Art. 1491. The following persons cannot acquire by purchase,
(2) Concealment by the wife of the fact that at the time of the
even at a public or judicial auction,
marriage, she was pregnant by a man other than her husband;
either in person or through the mediation of another:
(3) Concealment of sexually transmissible disease, regardless
(1) The guardian, the property of the person or persons who
of its nature, existing at the time of the marriage; or
may be under his guardianship;
(4) Concealment of drug addiction, habitual alcoholism or
(2) Agents, the property whose administration or sale may have
homosexuality or lesbianism existing at the time of the
been intrusted to them, unless the consent of the principal has
marriage.
been given;
(3) Executors and administrators, the property of the estate
No other misrepresentation or deceit as to character, health,
under administration;
rank, fortune or chastity shall constitute such fraud as will give
(4) Public officers and employees, the property of the State or
grounds for action for the annulment of marriage.
of any subdivision thereof, or of any government-owned or
controlled corporation, or institution, the administration of which
*Art. 45(3): That the consent of either party was obtained by
has been intrusted to them; this provision shall apply to judges
fraud, unless such party afterwards, with full knowledge of the
and government experts who, in any manner whatsoever, take
facts constituting the fraud, freely cohabited with the other as
part in the sale;
husband and wife.
(5) Justices, judges, prosecuting attorneys, clerks of superior
and inferior courts, and other officers and employees
connected with the administration of justice, the property and New Civil Code. Art. 820. Any person of sound mind and of
rights in litigation or levied upon an execution before the court the age of eighteen years or more, and not blind, deaf or dumb,
within whose jurisdiction or territory they exercise their and able to read and write, may be a witness to the execution
respective functions; this prohibition includes the act of of a will mentioned in Article 805 of this Code.
acquiring by assignment and shall apply to lawyers, with
respect to the property and rights which may be the object of Heirs of Favis, Sr. v. Gonzales, et. al.
any litigation in which they may take part by virtue of their To determine the intrinsic validity of the deed of donation
profession; subject of the action for annulment, the mental state/condition
12
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
of the donor at the time of its execution must be taken into
account. Factors such as his age, health and environment
among others should be considered.
Although age of senility varies from one person to another, to
reach the age of 92 with all those medications and treatment
one have received for those illnesses, yet claim that his mind
remains unimpaired, would be unusual.
A. Natural persons
New Civil Code. Art. 40. Birth determines personality; but the
conceived child shall be considered born for all purposes that
are favorable to it, provided it be born later with the conditions
specified in the following article.
Art. 41. For civil purposes, the foetus is considered born if it is
alive at the time it is completely delivered from the mother's
womb. However, if the foetus had an intra-uterine life of less
than seven months, it is not deemed born if it dies within
twenty-four hours after its complete delivery from the maternal
womb.
De Jesus v. Syquia
(P filed a case for damages against father of her children; he
also failed to keep his promise to marry her.)
The law fixes no period during which a child must be in the
continuous possession of the status of a natural child. The word
"continuous" in Art. 135(2) of the Civil Code does not mean that
the concession of status shall continue forever, but only that it
shall not be of an intermittent character while it continues.
*Art. 135(2), old CC: The father may be compelled to
acknowledge his natural child in the following cases: (2) When
the child has been in the uninterrupted possession of the status
of a natural child of the defendant father, justified by the
conduct of the father himself or that of his family.
Geluz v. CA
(father of unborn child due to abortion sued the doctor)
Personality begins at conception. This personality is called
presumptive personality. It is, of course, essential that birth
should occur later, otherwise the fetus will be considered as
never having possessed legal personality.
Since an action for pecuniary damages on account of injury or
death pertains primarily to the one injured, it is easy to see that
if no action for damages could be instituted on behalf of the
unborn child on account of injuries it received, no such right of
action could derivatively accrue to its parents or heirs. Parents
may be entitled to damages only if such damages are inflicted
directly upon them.
Continental Steel vs. Montano
(parents claim death benefits for their unborn child due to
miscarriage - granted)
Certainly, a child in the womb has life. But nevertheless, life
should not be equated to civil personality. Moreover, while the
Civil Code expressly provides that civil personality may be
extinguished by death, it does not explicitly state that only those
who have acquired juridical personality could die. Hence, the
unborn child (fetus) is already a legitimate dependent the
moment it was conceived (meeting of the sperm and egg cell).
Quimiging v. Icao
A mother has a right to support of the child she was carrying.
Art. 40 recognizes the provisional personality of the unborn
child, which includes its right to support from its progenitors,
even it is only “en ventre de sa mere.” Article 742 of the same
Code holds that, just as a conceived child, it may receive
donations through persons that legally represent it. Readings of
Articles 40, 854 of the Civil Code and Article 29 of the Spanish
Code also further strengthen the case for reversal of order.
New Civil Code. Art. 42. Civil personality is extinguished by
death.
The effect of death upon the rights and obligations of the
deceased is determined by law, by contract
and by will.
Limjoco v. Intestate Estate of Pio Fragante
The estate or the mass of property, rights and assets left by the
decedent should be considered an artificial or juridical person
for the purposes of the settlement and distribution of his estate
which, include the exercise during the judicial administration of
those rights and the fulfillment of those obligations of his estate
which survived after his death. The reason for this legal fiction
is the avoidance of injustice or prejudice resulting from the
impossibility of exercising such legal rights and fulfilling such
legal obligations of the decedent as survived after his death
unless the fiction is indulged.
Dumlao v. Quality Plastics
(judgment against the deceased is considered void for lack of
jurisdiction over his person)
The deceased, could not have been, validly served with
summons. He had no more civil personality. His juridical
capacity, which is the fitness to be the subject of legal relations,
was lost through death.
Eugenio v. Velez
The provisions of the Civil Code, unless expressly providing to
the contrary as in Article 144, when referring to a "spouse"
contemplate a lawfully wedded spouse. Thus, the right to bury
a dead person does not include a common-law husband who is
still married.
Berot v. Siapno
Considering that capacity to be sued is a correlative of the
capacity to sue, to the same extent, a decedent does not have
the capacity to be sued and may not be named a party
defendant in a court action.
New Civil Code. Art. 43. If there is a doubt, as between two or
more persons who are called to succeed each other, as to
which of them died first, whoever alleges the death of one prior
to the other, shall prove the same; in the absence of proof, it is
presumed that they died at the same time and there shall be no
transmission of rights from one to the other. (same as Rules of
Court, Rule 131, Sec. 33, par (kk).
Joaquin v. Navarro
13
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
The inference of survivorship cannot rest upon mere surmise,
speculation, or conjecture. "If the matter is left to probably, then
the statue of the presumption." From section 69 (ii) of Rule 123,
the evidence of the survivorship need not be direct; it may be
indirect, circumstantial, or inferential. Where there are facts,
known or knowable, from which a rational conclusion can be
made, the presumption does not step in, and the rule of
preponderance of evidence controls.
B. (Juridical Persons excluded from
Bar Coverage)
II. Citizenship and Domicile
Constitution. Art. IV. Sec. 1. Section 1. The following are
citizens of the Philippines:
1. Those who are citizens of the Philippines at the time of the
adoption of this Constitution;
2. Those whose fathers or mothers are citizens of the
Philippines;
3. Those born before January 17, 1973, of Filipino mothers,
who elect Philippine Citizenship upon reaching the age of
majority; and
4. Those who are naturalized in the accordance with law.
New Civil Code. Art. 50. For the exercise of civil rights and the
fulfillment of civil obligations, the domicile of natural persons is
the place of their habitual residence.
Family Code. Art. 68. The husband and wife are obliged to live
together, observe mutual love, respect and fidelity, and render
mutual help and support.
Art. 69. The husband and wife shall fix the family domicile. In
case of disagreement, the court shall decide.
The court may exempt one spouse from living with the other if
the latter should live abroad or there are other valid and
compelling reasons for the exemption. However, such
exemption shall not apply if the same is not compatible with the
solidarity of the family.
(cf)
NCC, Article 110. The husband shall fix the residence of the
family. But the court may exempt the wife from living with the
husband if he should live abroad unless in the service of the
Republic.
(cf)
FC, Art. 55. A petition for legal separation may be filed on any
of the following grounds:
(1) Repeated physical violence or grossly abusive conduct
directed against the petitioner, a common child, or a child of the
petitioner;
(2) Physical violence or moral pressure to compel the petitioner
to change religious or political affiliation;
(3) Attempt of respondent to corrupt or induce the petitioner, a
common child, or a child of the petitioner, to engage in
prostitution, or connivance in such corruption or inducement;
(4) Final judgment sentencing the respondent to imprisonment
of more than six years, even if pardoned;
(5) Drug addiction or habitual alcoholism of the respondent;
(6) Lesbianism or homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent bigamous
marriage, whether in the Philippines or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the petitioner;
or
(10) Abandonment of petitioner by respondent without
justifiable cause for more than one year.
For purposes of this Article, the term "child" shall include a child
by nature or by adoption.
Art. 101. If a spouse without just cause abandons the other or
fails to comply with his or her obligations to the family, the
aggrieved spouse may petition the court for receivership, for
judicial separation of property or for authority to be the sole
administrator of the absolute community, subject to such
precautionary conditions as the court may impose.
The obligations to the family mentioned in the preceding
paragraph refer to marital, parental or property relations.
A spouse is deemed to have abandoned the other when her or
she has left the conjugal dwelling without intention of returning.
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
presumed to have no intention of returning to the conjugal
dwelling.
Art. 152. The family home, constituted jointly by the husband
and the wife or by an unmarried head of a family, is the
dwelling house where they and their family reside, and the land
on which it is situated.
(cf) New Civil Code. Art. 110. The husband and wife are
obliged to live together, observe mutual love, respect and
fidelity, and render mutual help and support.
Romualdez-Marcos v. COMELEC
(long doctrine to capture everything)
Domicile includes the twin elements of "the fact of residing or
physical presence in a fixed place" and animus manendi, or the
intention of returning there permanently.
Residence implied that factual relationship of an individual to a
certain place. It is the physical presence of a person in a given
country.
Distinction: Residence involves the intent to leave when the
purpose for which the resident has take up his abode ends. If a
person’s intent is to remain, it becomes his domicile. There can
be several residence but one one domicile.
Domicile of origin is not easily lost. One must demonstrate:
1. An actual removal or an actual change of domicile;
2. A bona fide intention of abandoning the former place of
residence and establishing a new one; and
3. Acts which correspond with the purpose.
In the Civil Code, there is an obvious difference between
domicile and residence. Residence, the relation is one of fact,
while in domicile, it is legal or juridical, independent of the
necessity of physical presence.
Vilando v. HRET
An attack on a person’s citizenship may only be done through a
14
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
direct action.
An application for an alien certificate of registration (ACR) is not
an indubitable proof of forfeiture of Philippine citizenship. Thus,
the act of obtaining an ACR by was not tantamount to a
repudiation of original citizenship. Neither did it result in an
acquisition of alien citizenship.
David v. Agbay
While Sec. 2 of RA 9225 declares that Filipinos who have
become citizens of another country shall be deemed “not to
have lost their Philippine citizenship,” such is qualified by the
phrase “under the conditions of this Act.” Sec. 3 lays down such
conditions for two categories. 1st par: natural-born Filipinos
who have lost their citizenship by naturalization in a foreign
country; 2nd par: natural-born Filipinos who became foreign
citizens after RA 9225 took effect. The taking of oath of
allegiance is required for both
Poe-Llamanzares v. COMELEC
Citizenship: The Constitution has no express intention to deny
foundlings the status of Filipinos. In fact, even our domestic
adoption laws support the principle that foundlings are Filipinos
for an adoptee must always be a Filipino. Also, international law
supports the principle that a foundling is presumed born of
citizens of the country where he is found.
Domicile: First case where the former Filipino's evidence of
change in domicile is extensive and overwhelming to prove her
animus manendi to the Philippines and animus non revertendi
to USA.
Also, echoing Romualdez case as to certificate of candidacy: It
is the fact of residence, not a statement in a COC which ought
to be decisive in determining whether or not an individual has
satisfied the constitutions residency qualification requirement.
III. Surnames
New Civil Code. Art. 364. Legitimate and legitimated children
shall principally use the surname of the father.
Art. 365. An adopted child shall bear the surname of the
adopter.
Art. 366. A natural child acknowledged by both parents shall
principally use the surname of the father. If recognized by only
one of the parents, a natural child shall employ the surname of
the recognizing parent.
Art. 367. Natural children by legal fiction shall principally
employ the surname of the father.
Art. 368. Illegitimate children referred to in article 287 shall
bear the surname of the mother.
Art. 369. Children conceived before the decree annulling a
voidable marriage shall principally use the surname of the
father.
Art. 370. A married woman may use:
(1) Her maiden first name and surname and add her husband's
surname, or
(2) Her maiden first name and her husband's surname or
(3) Her husband's full name, but prefixing a word indicating that
she is his wife, such as "Mrs."
Art. 371. In case of annulment of marriage, and the wife is the
guilty party, she shall resume her maiden name and surname.
If she is the innocent spouse, she may resume her maiden
name and surname. However, she may choose to continue
employing her former husband's surname, unless:
(1) The court decrees otherwise, or
(2) She or the former husband is married again to another
person.
Art. 372. When legal separation has been granted, the wife
shall continue using her name and surname employed before
the legal separation.
Art. 373. A widow may use the deceased husband's surname
as though he were still living, in accordance with article 370.
Art. 374. In case of identity of names and surnames, the
younger person shall be obliged to use such additional name or
surname as will avoid confusion.
Art. 375. In case of identity of names and surnames between
ascendants and descendants, the word "Junior" can be used
only by a son. Grandsons and other direct male descendants
shall either:
(1) Add a middle name or the mother's surname, or
(2) Add the Roman numerals II, III, and so on.
Art. 376. No person can change his name or surname without
judicial authority.
Art. 377. Usurpation of a name and surname may be the
subject of an action for damages and other relief.
Art. 378. The unauthorized or unlawful use of another person's
surname gives a right of action to the latter.
Art. 379. The employment of pen names or stage names is
permitted, provided it is done in good faith and there is no injury
to third persons. Pen names and stage names cannot be
usurped.
Art. 380. Except as provided in the preceding article, no person
shall use different names and surnames.
Family Code. Art. 176. Illegitimate children shall use the
surname and shall be under the parental authority of their
mother, and shall be entitled to support in conformity with this
Code. The legitime of each illegitimate child shall consist of
one-half of the legitime of a legitimate child. Except for this
modification, all other provisions in the Civil Code governing
successional rights shall remain in force.
RA 9255 (An Act Allowing Illegitimate Children To Use The
Surname of Their Father, Amending For The Purpose
Article 176 of the Family Code) [Feb. 2004]
Art. 176: Illegitimate children shall use the surname and shall
be under the parental authority of their mother, and shall be
entitled to support in conformity with this Code. However,
illegitimate children may use the surname of their father if their
filiation has been expressly recognized by the father through
the record of birth appearing in the civil register, or when an
admission in a public document or private handwritten
instrument is made by the father. Provided, the father has the
right to institute an action before the regular courts to prove
non-filiation during his lifetime. The legitime of each illegitimate
15
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
child shall consist of one-half of the legitime of a legitimate
child.
Naldoza v. Republic
The change of name is allowed only when there are proper and
reasonable causes for such change (Sec. 5, Rule 103, ROC).
Where the petitioners are minors, the courts should take into
account whether the change of name would redound their
welfare or would prejudice them.
To discard altogether father's surname thus removing the
prima-facie evidence of their paternal provenance or ancestry,
is a serious matter in which, ordinarily, the minors and their
father should be consulted. The mother's desire should not be
the sole consideration.
Yasin v. Hon. Judge Shari'a Court
(P divorced from husband and wants to use her maiden name.)
When petitioner married her husband, she did not change her
name but only her civil status. The onerous requirements of
Rule 103 on change of name should not be applied to judicial
confirmation of the right of a divorced woman to resume her
maiden name and surname. In the absence of a specific rule or
provision governing such a proceeding, where sufficient facts
have been alleged supported by competent proof as annexes,
which appear to be satisfactory to the court, such petition for
confirmation of change of civil status and/or to resume the use
of maiden name must be given due course and summarily
granted as in fact it is a right conferred by law.
In the Matter of the Adoption of Stephanie Nathy Astorga
Garcia
(Illegitimate child later on adopted by her natural father; wants
to use her mother's name as her middle name)
Under FC 189, the child remains to be an intestate heir of her
natural mother. There is also no law expressly prohibiting the
child’s use of her natural mother’s surname as her middle name
– what the law does not prohibit, it allows. Last, it is already a
Filipino custom to have a middle name which is ordinarily the
surname of the mother.
Being a legitimate child by virtue of her adoption, the child is
entitled to all the rights provided by law to a legitimate child
without discrimination of any kind, including the right to bear the
surnames of her father and her mother.
Remo v. DFA
A married woman has an option but not a duty, to use the
surname of the husband in any of the ways provided (in Art.
370) using her maiden name once she is married because
when a woman marries, she does not change her name but
only her civil status.
Gonzaludo v. People
(acquitted of estafa for false pretenses did not constitute very
cause to induce other party to part with his money; but guilty of
falsification of public document)
There was false or fraudulent misrepresentation when accused
used the fictitious surname "Villaflor" for the purpose of giving
her a semblance of authority to sell the subject property.
Limson v. Gonzalez
An alias is a name or names used by a person or intended to
be used by him publicly and habitually, usually in business
transactions, in addition to the real name by which he was
registered at birth or baptized the first time, or to the substitute
name authorized by a competent authority; a man’s name is
simply the sound or sounds by which he is commonly
designated by his fellows and by which they distinguish him,
but sometimes a man is known by several different names and
these are known as aliases. An alias is thus a name that is
different from the individual’s true name, and does not refer to a
name that is not different from his true name.
Grande v. Antonio
General Rule: An illegitimate child shall use the surname of his
or her mother.
Exception: (RA 9255) In case his or her filiation is expressly
recognized by the father through the record of birth appearing
in the civil register or when an admission in a public document
or private handwritten instrument is made by the father. In such
a situation, the illegitimate child may use the surname of the
father.
Art. 176 gives illegitimate children the right to decide if they
want to use the surname of their father or not. It is not the
father or the mother who is granted by law the right to dictate
the surname of their illegitimate children.
*side note: Ma'am agrees with this decision completely.
IV. Emancipation
RA 6809 (An Act Lowering The Age Of Majority From
Twenty-One To Eighteen Years, Amending For The
Purpose Executive Order Numbered Two Hundred Nine,
And For Other Purposes)
Sec. 1. "Art. 234. Emancipation takes place by the attainment
of majority. Unless otherwise provided, majority commences at
the age of eighteen years."
Sec. 2. Arts. 235 and 237 are repealed.
Sec. 3. "Art. 236. Emancipation shall terminate parental
authority over the person and property of the child who shall
then be qualified and responsible for all acts of civil life, save
the exceptions established by existing laws in special cases.
"Contracting marriage shall require parental consent until the
age of twenty-one.
"Nothing in this Code shall be construed to derogate from the
duty or responsibility of parents and guardians for children and
wards below twenty-one years of age mentioned in the second
and third paragraphs of Article 2180 of the Civil Code."
A. Cause of emancipation
Family Code. Art. 234. Emancipation takes place by the
attainment of majority. Unless otherwise provided, majority
commences at the age of twenty-one years.
Emancipation also takes place:
(1) By the marriage of the minor; or
16
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
(2) By the recording in the Civil Register of an agreement in a
public instrument executed by the parent exercising parental
authority and the minor at least eighteen years of age. Such
emancipation shall be irrevocable.
B. Effect of emancipation
Family Code. Art. 236. Emancipation for any cause 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.
(cf) Art. 15. Any contracting party between the age of twenty-
one and twenty-five shall be obliged to ask their parents or
guardian for advice upon the intended marriage. If they do not
obtain such advice, or if it be unfavorable, the marriage license
shall not be issued till after three months following the
completion of the publication of the application therefor. A
sworn statement by the contracting parties to the effect that
such advice has been sought, together with the written advice
given, if any, shall be attached to the application for marriage
license. Should the parents or guardian refuse to give any
advice, this fact shall be stated in the sworn statement.
Art. 221 (but this is already repealed). Parents and other
persons exercising parental authority shall be civilly liable for
the injuries and damages caused by the acts or omissions of
their unemancipated children living in their company and under
their parental authority subject to the appropriate defenses
provided by law.
(cf) New Civil Code. Art. 2180 (pars. 1-3 and 7-8). The
obligation imposed by article 2176 is demandable not only for
one's own acts or omissions, but also for those of persons for
whom one is responsible.
The father and, in case of his death or incapacity, the mother,
are responsible for the damages caused by the minor children
who live in their company.
Guardians are liable for damages caused by the minors or
incapacitated persons who are under their authority and live in
their company.
-- xxx --
Lastly, teachers or heads of establishments of arts and trades
shall be liable for damages caused by their pupils and students
or apprentices, so long as they remain in their custody.
The responsibility treated of in this article shall cease when the
persons herein mentioned prove that they observed all the
diligence of a good father of a family to prevent damage.
V. Rules Governing Persons Who Are Absent
NCC Art 381. When a person disappears from his domicile, his
whereabouts being unknown, and without leaving an agent to
administer his property, the judge, at the instance of an
interested party, a relative, or a friend, may appoint a person to
represent him in all that may be necessary.
This same rule shall be observed when under similar
circumstances the power conferred by the absentee has
expired.
Art 382. The appointment referred to in the preceding article
having been made, the judge shall take the necessary
measures to safeguard the rights and interests of the absentee
and shall specify the powers, obligations and remuneration of
his representative, regulating them, according to the
circumstances, by the rules concerning guardians.
Art 383. In the appointment of a representative, the spouse
present shall be preferred when there is no legal separation.
If the absentee left no spouse, or if the spouse present is a
minor, any competent person may be appointed by the court.
Art 384. Two years having elapsed without any news about the
absentee or since the receipt of the last news, and five years in
case the absentee has left a person in charge of the
administration of his property, his absence may be declared.
Art 385. The following may ask for the declaration of absence:
1) The spouse present;
2) The heirs instituted in a will, who may present an
authentic copy of the same;
3) The relatives who may succeed by the law of
intestacy;
4) Those who may have over the property of the
absentee some right subordinated to the condition of
his death.
Art 386. The judicial declaration of absence shall not take effect
until six months after its publication in a newspaper of general
circulation.
Art 387. An administrator of the absentee's property shall be
appointed in accordance with article 383.
Art 388. The wife who is appointed as an administratrix of the
husband's property cannot alienate or encumber the husband's
property, or that of the conjugal partnership, without judicial
authority.
Art 389. The administration shall cease in any of the following
cases:
1) When the absentee appears personally or by means of
an agent;
2) When the death of the absentee is proved and his
testate or intestate heirs appear;
3) When a third person appears, showing by a proper
document that he has acquired the absentee's
property by purchase or other title.
In these cases the administrator shall cease in the performance
of his office, and the property shall be at the disposal of those
who may have a right thereto.
Art 390. After an absence of seven years, it being unknown
whether or not the absentee still lives, he shall be presumed
dead for all purposes, except for those of succession.
The absentee shall not be presumed dead for the purpose of
opening his succession till after an absence of ten years. If he
disappeared after the age of seventy-five years, an absence of
five years shall be sufficient in order that his succession may be
opened.
Art 391. The following shall be presumed dead for all purposes,
including the division of the estate among the heirs:
1) A person on board a vessel lost during a sea voyage,
or an aeroplane which is missing, who has not been
heard of for four years since the loss of the vessel or
aeroplane;
2) A person in the armed forces who has taken part in
17
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
war, and has been missing for four years;
3) A person who has been in danger of death under other
circumstances and his existence has not been known
for four years.
Art 392. If the absentee appears, or without appearing his
existence is proved, he shall recover his property in the
condition in which it may be found, and the price of any property
that may have been alienated or the property acquired
therewith; but he cannot claim either fruits or rents.
Art 393. Whoever claims a right pertaining to a person whose
existence is not recognized must prove that he was living at the
time his existence was necessary in order to acquire said right.
Art 394. Without prejudice to the provision of the preceding
article, upon the opening of a succession to which an absentee
is called, his share shall accrue to his coheirs, unless he has
heirs, assigns, or a representative. They shall all, as the case
may be, make an inventory of the property.
Art 395. The provisions of the preceding article are understood
to be without prejudice to the action of petition for inheritance or
other rights which are vested in the absentee, his
representatives or successors in interest. These rights shall not
be extinguished save by lapse of time fixed for prescription. In
the record that is made in the Registry of the real estate which
accrues to the coheirs, the circumstance of its being subject to
the provisions of this article shall be stated.
Art 396. Those who may have entered upon the inheritance
shall appropriate the fruits received in good faith so long as the
absentee does not appear, or while his representatives or
successors in interest do not bring the proper actions.
FC Art 41. A marriage contracted by any person during
subsistence of a previous marriage shall be null and void,
unless before the celebration of the subsequent marriage, the
prior spouse had been absent for four consecutive years and
the spouse present has a well-founded belief that the absent
spouse was already dead. In case of disappearance where
there is danger of death under the circumstances set forth in
the provisions of Article 391 of the Civil Code, an absence of
only two years shall be sufficient.
For the purpose of contracting the subsequent marriage under
the preceding paragraph the spouse present must institute a
summary proceeding as provided in this Code for the
declaration of presumptive death of the absentee, without
prejudice to the effect of reappearance of the absent spouse.
Art 96. The administration and enjoyment of the community
property shall belong to both spouses jointly. In case of
disagreement, the husband's decision shall prevail, subject to
recourse to the court by the wife for proper remedy, which must
be availed of within five years from the date of the contract
implementing such decision.
In the event that one spouse is incapacitated or otherwise
unable to participate in the administration of the common
properties, the other spouse may assume sole powers of
administration. These powers do not include disposition or
encumbrance without authority of the court or the written
consent of the other spouse. In the absence of such authority or
consent, the disposition or encumbrance shall be void.
However, the transaction shall be construed as a continuing
offer on the part of the consenting spouse and the third person,
and may be perfected as a binding contract upon the
acceptance by the other spouse or authorization by the court
before the offer is withdrawn by either or both offerors.
Art 101. If a spouse without just cause abandons the other or
fails to comply with his or her obligations to the family, the
aggrieved spouse may petition the court for receivership, for
judicial separation of property or for authority to be the sole
administrator of the absolute community, subject to such
precautionary conditions as the court may impose. The
obligations to the family mentioned in the preceding paragraph
refer to marital, parental or property relations.
A spouse is deemed to have abandoned the other when he or
she has left the conjugal dwelling without intention of returning.
The spouse who has left the conjugal dwelling for a period of
three months or has failed within the same period to give any
information as to his or her whereabouts shall be prima facie
presumed to have no intention of returning to the conjugal
dwelling.
Art 124. The administration and enjoyment of the conjugal
partnership shall belong to both spouses jointly. In case of
disagreement, the husband's decision shall prevail, subject to
recourse to the court by the wife for proper remedy, which must
be availed of within five years from the date of the contract
implementing such decision.
In the event that one spouse is incapacitated or otherwise
unable to participate in the administration of the conjugal
properties, the other spouse may assume sole powers of
administration. These powers do not include disposition or
encumbrance without authority of the court or the written
consent of the other spouse. In the absence of such authority or
consent, the disposition or encumbrance shall be void.
However, the transaction shall be construed as a continuing
offer on the part of the consenting spouse and the third person,
and may be perfected as a binding contract upon the
acceptance by the other spouse or authorization by the court
before the offer is withdrawn by either or both offerors.
Reyes vs. Alejandro
Supreme Court held that the petition must be dismissed as a
judicial declaration of absence is unnecessary when the absent
spouse left no properties. The need to have a person judicially
declared an absentee is when he has properties which have
to be taken cared of or administered by a representative
appointed by the Court (Article 384, Civil Code); the spouse
of the absentee is asking for separation of property (Article
191, Civil Code) or his wife is asking the Court that the
administration of an classes of property in the marriage be
transferred to her (Article 196, Civil Code).
Eastern Shipping vs. Lucero
There is enough evidence to show the circumstances attending
the loss and disappearance of the M/V Eastern Minicon and its
crew. The foregoing facts, quite logically, are sufficient to lead
to a moral certainty that the vessel had sunk and that the
persons aboard had perished with it. Upon this premise, the
rule on presumption of death under Article 391 (1) of the
Civil Code must yield to the rule of preponderance of
evidence. As this Court said in Joaquin vs. Navarro, “Where
there are facts, known or knowable, from which a rational
conclusion can be made, the presumption does not step in, and
the rule of preponderance of evidence controls.”
Manuel vs. People
18
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
In a case where a spouse is absent for the requisite period,
the present spouse may contract a subsequent marriage
only after securing a judgment declaring the presumptive
death of the absent spouse to avoid being charged and
convicted of bigamy; the present spouse will have to adduce
evidence that he had a well-founded belief that the absent
spouse was already dead. Such judgment is proof of the good
faith of the present spouse who contracted a subsequent
marriage; thus, even if the present spouse is later charged with
bigamy if the absentee spouse reappears, he cannot be
convicted of the crime.
Pantollano vs. Korphil
A person missing under the circumstances as those of Vedasto
may not legally be considered as dead until the lapse of the
period fixed by law on presumption of death, and consequently
Imelda cannot yet be considered as a widow entitled to
compensation under the law.1
If we allow the argument that Vedasto’s death should be
considered on the very occurrence of the event from which death
is presumed, then no claim for death compensation benefits
under this circumstance will ever prosper. This is so because the
heirs of a missing seaman have to wait for four years as
provided under Article 391 of the Civil Code before the seaman
is declared as legally dead. After four years, the prescriptive
period for filing money claims under Article 291 of the Labor
Code would, obviously, lapse. This scenario could not have been
the intention of the legislature in enacting a social legislation,
such as the Labor Code.
Republic vs. Granada
Even if the RTC erred in ruling that Yolanda was able to prove
her “well-founded belief” that her absent spouse was already
dead, such order already final and can no longer be modified or
reversed. Indeed, “[n]othing is more settled in law than that when
a judgment becomes final and executory, it becomes immutable
and unalterable. The same may no longer be modified in any
respect, even if the modification is meant to correct what is
perceived to be an erroneous conclusion of fact or law.”
Republic vs. Narceda
For the purpose of contracting the subsequent marriage under
Article 41 of the Family Code, the spouse present must institute
a summary proceeding as provided in this Code for the
declaration of presumptive death of the absentee, without
prejudice to the effect of reappearance of the absent spouse.
Republic vs. Hon. Estrada
The SC dismissed Republic's petition, applying Art. 41 FC (when
prior spouse absent for 4 consecutive years and the spouse
present has a well-founded belief that the absent spouse is
already dead, and that the spouse present must institute a
1
On August 2, 1994, it cannot as yet be presumed that Vedasto is already dead.
“The boat was not lost. This opens up a number of possibilities. …Nothing is
certain. Nobody knows what has happened to him. He could have transferred
to another vessel or watercraft. He could even have swum to safety. Or he
could have died. Or worse, he could have taken his own life. Legal implications
– such as right to compensation, succession, the legal status of the wife – are
so important that courts should not so easily be carried to the conclusion that
the man is dead. The result is that death cannot be taken as a fact…
summary proceeding for declaration of presumptive death).
Diego was absent for 32 years (he would be 75 by now), and it
can be gleaned from the totality of evidence that Diego already
died due the prevalence of the New People's Army in
Malaybalay, Bukidnon (in the mountains). Olemberio also did
inquire as to his whereabouts by going to the SSS to ask about
his remittances and by going to the house of Diego's parents.
VI. FUNERALS
NCC Art 305. The duty and the right to make arrangements for
the funeral of a relative shall be in accordance with the order
established for support, under article 294. In case of
descendants of the same degree, or of brothers and sisters, the
oldest shall be preferred. In case of ascendants, the paternal
shall have a better right.
Art 306. Every funeral shall be in keeping with the social position
of the deceased.
Art 307. The funeral shall be in accordance with the expressed
wishes of the deceased. In the absence of such expression, his
religious beliefs or affiliation shall determine the funeral rites. In
case of doubt, the form of the funeral shall be decided upon by
the person obliged to make arrangements for the same, after
consulting the other members of the family.
Art 308. No human remains shall be retained, interred, disposed
of or exhumed without the consent of the persons mentioned in
articles 294 and 305.
Art 309. Any person who shows disrespect to the dead, or
wrongfully interferes with a funeral shall be liable to the family of
the deceased for damages, material and moral.
Art 310. The construction of a tombstone or mausoleum shall be
deemed a part of the funeral expenses, and shall be chargeable
to the conjugal partnership property, if the deceased is one of the
spouses.
FC Art 195. Subject to the provisions of the succeeding articles,
the following are obliged to support each other to the whole
extent set forth in the preceding article:
1) The spouses;
2) Legitimate ascendants and descendants;
3) Parents and their legitimate children and the legitimate
and illegitimate children of the latter;
4) Parents and their illegitimate children and the legitimate
and illegitimate children of the latter; and
5) Legitimate brothers and sisters, whether of full or half-
blood.
Art. 199. Whenever two or more persons are obliged to give
support, the liability shall devolve upon the following persons in
the order herein provided
(1) The spouse;
(2) The descendants in the nearest degree;
(3) The ascendants in the nearest degree; and
(4) The brothers and sisters. (294a)
VII. ENTRIES IN THE CIVIL REGISTER
NCC Art 407. Acts, events and judicial decrees concerning the
19
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
civil status of persons shall be recorded in the civil register.
Art 408. The following shall be entered in the civil register:
1) Births;
2) marriages;
3) deaths;
4) legal separations;
5) annulments of marriage;
6) judgments declaring marriages void from the beginning;
7) legitimations;
8) adoptions;
9) acknowledgments of natural children;
10) naturalization;
11) loss, or
12) recovery of citizenship;
13) civil interdiction;
14) judicial determination of filiation;
15) voluntary emancipation of a minor; and
16) Changes of name.
Art 409. In cases of legal separation, adoption, naturalization
and other judicial orders mentioned in the preceding article, it
shall be the duty of the clerk of the court which issued the decree
to ascertain whether the same has been registered, and if this
has not been done, to send a copy of said decree to the civil
registry of the city or municipality where the court is functioning.
Art 410. The books making up the civil register and all
documents relating thereto shall be considered public documents
and shall be prima facie evidence of the facts therein contained.
Art 411. Every civil registrar shall be civilly responsible for any
unauthorized alteration made in any civil register, to any person
suffering damage thereby. However, the civil registrar may
exempt himself from such liability if he proves that he has taken
every reasonable precaution to prevent the unlawful alteration.
Art 412. No entry in a civil register shall be changed or
corrected, without a judicial order.
Art 413. All other matters pertaining to the registration of civil
status shall be governed by special laws.
R.A. No. 9048, as amended by RA 101752
Section 1. Authority to Correct Clerical or Typographical Error
and Change of First Name or Nickname. – No entry in a civil
register shall be changed or corrected without a judicial order,
except for clerical or typographical errors and change of first
name or nickname, the day and month in the date of birth or sex
of a person where it is patently clear that there was a clerical or
typographical error or mistake in the entry, which can be
corrected or changed by the concerned city or municipal civil
registrar or consul general in accordance with the provisions of
this Act and its implementing rules and regulations
Section 2. Definition of Terms – As used in this Act, the following
terms shall mean:
1) "City or Municipal civil registrar" refers to the head of the
local civil registry office of the city or municipality, as the
case may be, who is appointed as such by the city or
municipal mayor in accordance with the provisions of
existing laws.
2) "Petitioner" refers to a natural person filing the petition
and who has direct and personal interest in the
correction of a clerical or typographical error in an entry
or change of first name or nickname in the civil register.
3) ‘Clerical or typographical error’ refers to a mistake
committed in the performance of clerical work in writing,
copying, transcribing or typing an entry in the civil
register that is harmless and innocuous, such as
misspelled name or misspelled place of birth, mistake in
the entry of day and month in the date of birth or the sex
of the person or the like, which is visible to the eyes or
obvious to the understanding, and can be corrected or
changed only by reference to other existing record or
records: Provided, however, That no correction must
involve the change of nationality, age, or status of the
petitioner
4) "Civil Register" refers to the various registry books and
related certificates and documents kept in the archives
of the local civil registry offices, Philippine Consulates
and of the Office of the Civil Registrar General.
5) "Civil registrar general" refers to the Administrator of the
National Statistics Office which is the agency mandated
to carry out and administer the provision of laws on civil
registration.
6) "First name" refers to a name or nickname given to a
person which may consist of one or more names in
addition to the middle and last names.
Section 3. Who May File the Petition and Where. – Any person
having direct and personal interest in the correction of a clerical
or typographical error in an entry and/or change of first name or
nickname in the civil register may file, in person, a verified
petition with the local civil registry office of the city or municipality
where the record being sought to be corrected or changed is
kept.
In case the petitioner has already migrated to another place in
the country and it would not be practical for such party, in terms
of transportation expenses, time and effort to appear in person
before the local civil registrar keeping the documents to be
corrected or changed, the petition may be filed, in person, with
the local civil registrar of the place where the interested party is
presently residing or domiciled. The two (2) local civil registrars
concerned will then communicate to facilitate the processing of
the petition.
Citizens of the Philippines who are presently residing or
domiciled in foreign countries may file their petition, in person,
with the nearest Philippine Consulates.
The petitions filed with the city or municipal civil registrar or the
consul general shall be processed in accordance with this Act
and its implementing rules and regulations.
All petitions for the clerical or typographical errors and/or change
of first names or nicknames may be availed of only once.
Section 4. Grounds for Change of First Name or Nickname. –
The petition for change of first name or nickname may be
allowed in any of the following cases:
1) The petitioner finds the first name or nickname to be
ridiculous, tainted with dishonor or extremely difficult to
write or pronounce.
2) The new first name or nickname has been habitually
and continuously used by the petitioner and he has
been publicly known by that by that first name or
nickname in the community: or
3) The change will avoid confusion.
Section 5. Form and Contents of the Petition. – The petition
for correction of a clerical or typographical error, or for change
of first name or nickname, as the case may be, shall be in the
form of an affidavit, subscribed and sworn to before any
person authorized by law to administer oaths. The affidavit
shall set forth facts necessary to establish the merits of the
20
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
petition and shall show affirmatively that the petitioner is
competent to testify to the matters stated. The petitioner shall
state the particular erroneous entry or entries, which are
sought to be corrected and/or the change sought to be made.
The petition shall be supported with the following
documents:
1) A certified true machine copy of the certificate or
of the page of the registry book containing the
entry or entries sought to be corrected or
changed;
2) At least two (2) public or private documents
showing the correct entry or entries upon which
the correction or change shall be based; and
3) Other documents which the petitioner or the city
or municipal civil registrar or the consul general
may consider relevant and necessary for the
approval of the petition.
No petition for correction of erroneous entry concerning the
date of birth or the sex of a person shall be entertained
except if the petition is accompanied by earliest school
record or earliest school documents such as, but not
limited to, medical records, baptismal certificate and other
documents issued by religious authorities; nor shall any
entry involving change of gender corrected except if the
petition is accompanied by a certification issued by an
accredited government physician attesting to the fact that
the petitioner has not undergone sex change or sex
transplant. The petition for change of first name or
nickname, or for correction of erroneous entry concerning
the day and month in the date of birth or the sex of a
person, as the case may be, shall be published at least
once a week for two (2) consecutive weeks in a newspaper
of general circulation.
Furthermore, the petitioner shall submit a certification from the
appropriate law enforcements, agencies that he has no pending
case or no criminal record.
The petition and its supporting papers shall be filed in three (3)
copies to be distributed as follows: first copy to the concerned
city or municipal civil registrar, or the consul general; second
copy to the Office of the Civil Registrar General; and third copy to
the petitioner
Section 6. Duties of the City or Municipal Civil Registrar or the
Consul General. – The city or municipal civil registrar or the
consul general to whom the petition is presented shall examine
the petition and its supporting documents. He shall post the
petition in a conspicuous place provided for that purpose for ten
(10) consecutive days after he finds the petition and its
supporting documents sufficient in form and substance.
The city or municipal civil registrar or the consul general shall act
on the petition and shall render a decision not later than five (5)
working days after the completion of the posting and/or
publication requirement. He shall transmit a copy of his decision
together with the records of the proceedings to the Office of the
Civil Registrar General within five (5) working days from the date
of the decision.
Section 7. Duties and Powers of the Civil Registrar General. –
The civil registrar general shall, within ten (10) working days from
receipt of the decision granting a petition, exercise the power to
impugn such decision by way of an objection based on the
following grounds:
1) The error is not clerical or typographical;
2) The correction of an entry or entries in the civil register
is substantial or controversial as it affects the civil status
of a person; or
3) The basis used in changing the first name or nickname
of a person does not fall under Section 4.
The civil registrar general shall immediately notify the city or
municipal civil registrar or the consul general of the action taken
on the decision. Upon receipt of the notice thereof, the city or
municipal civil registrar or the consul general shall notify the
petitioner of such action.
The petitioner may seek reconsideration with the civil registrar
general or file the appropriate petition with the proper court.
If the civil registrar general fails to exercise his power to impugn
the decision of the city or municipal civil registrar or of the consul
general within the period prescribed herein, such decision shall
become final and executory.
Where the petition is denied by the city or municipal civil registrar
or the consul general, the petitioner may either appeal the
decision to the civil registrar general or file the appropriate
petition with the proper court.
Section 8. Payment of Fees. – The city or municipal civil
registrar or the consul general shall be authorized to collect
reasonable fees as a condition for accepting the petition. An
indigent petitioner shall be exempt from the payment of the
said fee.
The fees collected by the city or municipal civil registrar or the
consul general pursuant to this Act shall accrue to the funds of
the Local Civil Registry Office concerned or the Office of the
Consul General for modernization of the office and hiring of new
personnel and procurement of supplies, subject to government
accounting and auditing rules
Section 9. Penalty Clause. - A person who violates any of the
provisions of this Act shall, upon conviction, be penalized by
imprisonment of not less than six (6) years but not more than
twelve (12) years, or a fine of not less than Ten thousand pesos
(P10,000.00) but not more than One Hundred Thousand pesos
(P100,000.00), or both, at the discretion of the court.
In addition, if the offender is a government official or employee
he shall suffer the penalties provided under civil service laws,
rules and regulations.
Section 10. Implementing Rules and Regulations. - The civil
registrar general shall, in consultation with the Department of
Justice, the Department of Foreign Affairs, the Office of the
Supreme Court Administrator, the University of the Philippines
Law Center and the Philippine Association of Civil Registrars,
issue the necessary rules and regulations for the effective
implementation of this Act not later than three (3) months from
the effectivity of this law.
Section 11. Retroactivity Clause. - This Act shall have
retroactive effect insofar as it does not prejudice or impair vested
or acquired rights in accordance with the Civil Code and other
laws.
Section 12. Separability Clause. - If any portion or provision of
this Act is declared void or unconstitutional, the remaining
portions or provisions thereof shall not be affected by such
declaration.
Section 13. Repealing Clause - All laws, decrees, orders, rules
and regulations, other issuances, or parts thereof inconsistent
with the provisions of this Act are hereby repealed or modified
accordingly.
Section 14. Effectivity Clause. - This Act shall take effect fifteen
(15) days after its complete publication in at least two (2) national
newspapers of general circulation.
21
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
Dela Cruz vs. Gracia
Art. 176 FC, as amended by RA 9255, permits an illegitimate
child to use the surname of his father if the latter had previously
recognized him as his offspring through the record appearing in
the civil register, or an admission made in a public or private
handwritten instrument. The recognition made in any of these
documents is, in itself, a consummated act of acknowledgment of
the child's paternity; hence, no separate action for judicial
approval is necessary. Art. 176 FC also does not explicitly state
the private instrument must be signed by the putative father,
however, it must be read in conjunction with related provisions of
the FC that require his signature.
Braza vs. Registrar
In a special proceeding for correction of entry under Rule 108
(Cancellation or Correction of Entries in the Original Registry),
the trial court has no jurisdiction to nullify marriages and rule on
legitimacy and filiation. Rule 108 of the Rules of Court vis a vis
Article 412 of the Civil Code charts the procedure by which an
entry in the civil registry may be cancelled or corrected. The
proceeding contemplated therein may generally be used only to
correct clerical, spelling, typographical and other innocuous
errors in the civil registry.2
Baldos vs. CA
Under NCSO A.O. No. 1-83, the birth of a child shall be
registered in the office of the local registrar within 30 days from
the time of birth. The registrar, upon receiving an application for
delayed registration, is required to publicly post for at least 10
days a notice of the pending application. If nobody opposes the
registration, he should register the same. Reynaldo's certificate,
as a duly registered public document, is presumed to have gone
through the process prescribed by law for late registration of birth
(presumption of validity). Nieves should have registered her
opposition within the 10-day period.
Corpus vs. Sto. Tomas
Article 407 of the Civil Code states that acts, events and judicial
decrees concerning the civil status of persons shall be recorded
in the civil register. The law requires the entry in the civil registry
of judicial decrees that produce legal consequences touching
upon a person’s legal capacity and status, i.e., those affecting all
his personal qualities and relations, more or less permanent in
nature, not ordinarily terminable at his own will, such as his being
legitimate or illegitimate, or his being married or not. A
judgment of divorce is a judicial decree, although a foreign one,
affecting a person’s legal capacity and status that must be
recorded.
Article 412 of the Civil Code declares that no entry in a civil
register shall be changed or corrected, without judicial order. The
Rules of Court supplements Article 412 of the Civil Code by
specifically providing for a special remedial proceeding by which
entries in the civil registry may be judicially cancelled or
2 A clerical error is one which is visible to the eyes or obvious to the
understanding; an error made by a clerk or a transcriber; a mistake in copying
or writing, or a harmless change such as a correction of name that is clearly
misspelled or of a misstatement of the occupation of the parent. Substantial or
contentious alterations may be allowed only in adversarial proceedings, in
which all interested parties are impleaded and due process is properly
observed.
corrected. Rule 108 of the Rules of Court sets in detail the
jurisdictional and procedural requirements that must be complied
with before a judgment, authorizing the cancellation or
correction, may be annotated in the civil registry. It also requires,
among others, that the verified petition must be filed with the
RTC of the province where the corresponding civil registry is
located; that the civil registrar and all persons who have or claim
any interest must be made parties to the proceedings; and that
the time and place for hearing must be published in a newspaper
of general circulation.
Republic vs. Magpayo
Rule 103 would not suffice. Changes which may affect the civil
status from legitimate to illegitimate are substantial and
controversial alterations which can only be allowed after
appropriate adversary proceedings. Since respondent’s desired
change affects his civil status from legitimate to illegitimate, Rule
108 applies.
Rule 108 clearly directs that a petition which concerns ones civil
status should be filed in the civil registry in which the entry is
sought to be cancelled or corrected that of Makati in the present
case, and all persons who have or claim any interest which
would be affected thereby should be made parties to the
proceeding.
Republic vs. Uy
Even substantial errors in a civil registry may be corrected and
the true facts established provided the parties aggrieved by the
error avail themselves of the appropriate adversary proceeding.3
A reading of Sections 4 and 5, Rule 108 of the Rules of Court
shows that the Rules mandate two sets of notices to different
potential oppositors: (1) The persons named in the petition; and
(2) other persons who are not named in the petition but
nonetheless may be considered interested or affected parties.
Iwasawa vs. Gangan
As public documents, the documentary evidence submitted are
admissible in evidence even without further proof of their due
execution and genuineness. The RTC erred when it disregarded
said documents on the sole ground that the petitioner did not
present the records custodian of the NSO who issued them to
testify on their authenticity and due execution since proof of
authenticity and due execution was not anymore necessary.
Moreover, not only are said documents admissible, they deserve
to be given evidentiary weight because they constitute prima
facie evidence of the facts stated therein. And in the instant case,
the facts stated therein remain unrebutted since neither the
private respondent nor the public prosecutor presented evidence
to the contrary.
3
The respondent seeks the correction of her first name and surname, her
status from "legitimate" to "illegitimate" and her citizenship from "Chinese" to
"Filipino." Thus, respondent should have impleaded and notified not only the
Local Civil Registrar but also her parents and siblings as the persons who have
interest and are affected by the changes or corrections respondent wanted to
make. In this case, it was only the Local Civil Registrar of Gingoog City who was
impleaded as respondent in the petition. The fact that the notice of hearing
was published in a newspaper of general circulation and notice thereof was
served upon the State will not change the nature of the proceedings taken.
22
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
Republic vs. Olaybar
The procedure laid down in Rule 108 is not a summary
proceeding per se. It requires publication of the petition; it
mandates the inclusion as parties of all persons who may claim
interest which would be affected by the cancellation or
correction; it also requires the civil registrar and any person in
interest to file their opposition, if any; and it states that although
the court may make orders expediting the proceedings, it is after
hearing that the court shall either dismiss the petition or issue an
order granting the same. Thus, as long as the procedural
requirements in Rule 108 are followed, it is the appropriate
adversary proceeding to effect substantial corrections and
changes in entries of the civil register.
Onde vs. Office of the Local Civil Registrar
Under R.A. No. 9048, jurisdiction over applications for change of
first name is now primarily lodged with administrative officers.
The intent and effect of said law is to exclude the change of first
name from the coverage of Rules 103 (Change of Name) and
108 (Cancellation or Correction of Entries in the Civil Registry) of
the Rules of Court, until and unless an administrative petition for
change of name is first filed and subsequently denied. The
remedy and the proceedings regulating change of first name are
primarily administrative in nature, not judicial.
Because of the said law, the correction of clerical or
typographical errors can now be made through administrative
proceedings and without the need for a judicial order. The law
removed from the ambit of Rule 108 of the Rules of Court the
correction of clerical or typographical errors.
Republic vs. Dela Vega
The Court finds no error on the part of the CA when it held that
respondent's petition is not for a change of name as
contemplated under Rule 103 of the Rules of Court but for
correction of entries under Rule 108 of the same Rules. What
respondent seeks is the correction of clerical errors which were
committed in the recording of her name and sex. This Court has
held that not all alterations allowed in one's name are confined
under Rule 103 and that corrections for clerical errors may be set
right under Rule 108.4
Felipe Almojuela vs. Republic
Rule 108 of the Rules of Court provides the procedure for the
correction of substantial changes in the civil registry through an
appropriate adversary proceeding. An adversary proceeding is
defined as one "having opposing parties; contested, as
distinguished from an ex parte application, one of which the party
seeking relief has given legal warning to the other party, and
afforded the latter an opportunity to contest it."
A reading of Sections 4 and 5 shows that the Rule mandates two
(2) sets of notices to potential oppositors: one given to persons
named in the petition, and another given to other persons who
are not named in the petition but nonetheless may be considered
interested or affected parties. Consequently, the petition for a
4 Having presented evidence [medical and lab records] that she is biologically
female, and documents [NBI records, school and employment records] that she
has been using Kris Anne since birth, it is evident that she never had any
intention to change her name and sex. What she seeks is simply the removal of
the clerical fault or error in her registered sex and given name, and to set aright
the same to conform to her real sex and name she grew up with.
substantial correction of an entry in the civil registry should
implead as respondents the civil registrar, as well as all other
persons who have or claim to have any interest that would be
affected thereby.
Republic vs. Sali
The petition is for Correction of Entries under Rule 108. As she
sought correction of clerical errors, Rule 108 applies. Petitioner
did not intend to change her name; since she used the name
“Lorena” since birth, she merely sought to remove the clerical
error in her first name.
HOWEVER, when Sali filed the case, RA 9048 was already the
governing law. The law provides that the proceedings for the
change of first name are primarily administrative in nature, and
not judicial. The law vests the city or municipal civil registrar, or
consul general as the case may be, with the power to entertain
petitions for change of first name. Thus, the RTC has no
jurisdiction over this case.
Fujiki v Marinay
Class Notes: Case was mistakenly not included in the Syllabus
but ma’am said this case provides that Rule 108 may be used to
cancel entries in the civil registrar when no marriage took place.
FAMILY RELATIONS
I. MARRIAGE
A. The Concept of and Nature of Marriage
FC Art 1. Marriage is a special contract of permanent union
between a man and a woman entered into in accordance with
law for the establishment of conjugal and family life. It is the
foundation of the family and an inviolable social institution whose
nature, consequences, and incidents are governed by law and
not subject to stipulation, except that marriage settlements may
fix the property relations during the marriage within the limits
provided by this Code.
(cf)
Art 149. The family, being the foundation of the nation, is a basic
social institution which public policy cherishes and protects.
Consequently, family relations are governed by law and no
custom, practice or agreement destructive of the family shall be
recognized or given effect.
(cf)
NCC Art 52. Marriage is not a mere contract but an inviolable
social institution. Its nature, consequences and incidents are
governed by law and not subject to stipulation, except that the
marriage settlements may to a certain extent fix the property
relations during the marriage.
Goitia vs. Campos-Rueda
The obligation on the part of the husband to support his wife is
created merely in the act of marriage. The law provides that the
husband, who is obliged to support the wife, may fulfill the
obligation either by paying her a fixed pension or by maintaining
her in his own home at his option. However, this option given by
23
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
law is not absolute. The law will not permit the husband to evade
or terminate his obligation to support his wife if the wife is driven
away from the conjugal home because of his wrongful acts. In
the case at bar, the wife was forced to leave the conjugal abode
because of the lewd designs and physical assault of the
husband, she can therefore claim support from the husband for
separate maintenance even outside the conjugal home.
Silverio vs. Republic
SC held that Silverio cannot change First Name and Sex on
Ground of reassignment of sex. Even the trial court itself found
that the petition was but petitioner’s first step towards his
eventual marriage to his male fiancé. However, marriage, one of
the most sacred social institutions, is a special contract of
permanent union between a man and a woman.
People vs. Dela Cruz
In the case of Parricide of a spouse, the best proof of the
relationship between the accused and the deceased would be
the marriage certificate. In this case, the testimony of the
accused that he was married to the victim, in itself, is ample
proof of such relationship as the testimony can be taken as an
admission against penal interest. Clearly, then, it was
established that Victoriano and Anna were husband and wife.
De Santis vs. Jalandoni
Contrary to the position taken by the petitioners, the existence of
a previous marriage between Isabel and John Desantis was
adequately established. This holds true notwithstanding the fact
that no marriage certificate between Isabel and John Desantis
exists on record. While a marriage certificate is considered the
primary evidence of a marital union, it is not regarded as the sole
and exclusive evidence of marriage. Jurisprudence teaches that
the fact of marriage may be proven by relevant evidence other
than the marriage certificate. Hence, even a person’s birth
certificate may be recognized as competent evidence of the
marriage between his parents.
Espinosa vs. Omana
SC has ruled that the extrajudicial dissolution of the conjugal
partnership without judicial approval is void. The Court has also
ruled that a notary public should not facilitate the disintegration of
a marriage and the family by encouraging the separation of the
spouses and extrajudicially dissolving the conjugal partnership
Avenido vs. Avenido
While a marriage certificate is considered the primary evidence
of a marital union, it is not regarded as the sole and exclusive
evidence of marriage. The fact of marriage may be proven by
relevant evidence other than the marriage certificate. Hence,
even a person’s birth certificate may be recognized as competent
evidence of the marriage between his parents. Every intendment
of the law leans toward legalizing matrimony. Persons dwelling
together in apparent matrimony are presumed, in the absence of
any counter-presumption or evidence special to the case, to be
in fact married. The reason is that such is the common order of
society, and if the parties were not what they thus hold
themselves out as being, they would be living in the constant
violation of decency and of law.
Cercado-Siga vs. Cercado
The marriage contract is a private document. Under Section 20,
Rule 132, Rules of Court, before a private document is admitted
in evidence, it must be authenticated either by the person who
executed it, the person before whom its execution was
acknowledged, any person who was present and saw it
executed, or who after its execution, saw it and recognized the
signatures, or the person to whom the parties to the instruments
had previously confessed execution thereof.
Considering that petitioners failed to prove the validity of the
marriage between Vicente and Benita, it follows that they do not
have a cause of action in the case for the declaration of nullity of
the Extrajudicial Settlement of the Estate of Vicente and
Leonora.
Tambuyat vs. Tambuyat
The preponderance of evidence points to the fact that Wenifreda
is the legitimate spouse of Adriano. Documentary evidence –
among others, the parties’ respective marriage contracts, which,
together with marriage certificates, are considered the primary
evidence of a marital union – indicates that Adriano was married
to Wenifreda, while Banguis was married to Nolasco – and both
marriages were subsisting at the time of the acquisition of the
subject property and issuance of the certificate of title thereto.
Thus, it cannot be said that Adriano and Banguis were husband
and wife to each other; it cannot even be said that they have a
common-law relationship at all. Consequently, Banguis cannot
be included or named in TCT T-145321 as Adriano’s spouse; the
right and privilege belonged to Wenifreda alone.
Indeed, Philippine Law does not recognize common law
marriages. A man and woman not legally married who cohabit for
many years as husband and wife, who represent themselves to
the public as husband and wife, and who are reputed to be
husband and wife in the community where they live may be
considered legally married in common law jurisdictions but not in
the Philippines.
Calimag vs. Heirs of Macapaz
It is well settled that other proofs can be offered to establish the
fact of a solemnized marriage. Jurisprudence teaches that the
fact of marriage may be proven by relevant evidence other than
the marriage certificate. Hence, even a person's birth certificate
may be recognized as competent evidence of the marriage
between his parents.
B. Requisites
1. Essential Requisites
2. Formal Requisites
FC Art 2. No marriage shall be valid, unless these essential
requisites are present:
1) Legal capacity of the contracting parties who must be a
male and a female; and
2) Consent freely given in the presence of the solemnizing
officer.
Art 3. The formal requisites of marriage are:
1) Authority of the solemnizing officer;
2) A valid marriage license except in the cases provided
for in Chapter 2 of this Title; and
24
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
3) A marriage ceremony which takes place with the
appearance of the contracting parties before the
solemnizing officer and their personal declaration that
they take each other as husband and wife in the
presence of not less than two witnesses of legal age.
Art 5. Any male or female of the age of eighteen years or
upwards not under any of the impediments mentioned in Articles
37 and 38, may contract marriage.
(cf)
Art 45. A marriage may be annulled for any of the following
causes, existing at the time of the marriage:
1) That the party in whose behalf it is sought to have the
marriage annulled was eighteen years of age or over
but below twenty-one, and the marriage was
solemnized without the consent of the parents, guardian
or person having substitute parental authority over the
party, in that order, unless after attaining the age of
twenty-one, such party freely cohabited with the other
and both lived together as husband and wife;
2) That either party was of unsound mind, unless such
party after coming to reason, freely cohabited with the
other as husband and wife;
3) That the consent of either party was obtained by fraud,
unless such party afterwards, with full knowledge of the
facts constituting the fraud, freely cohabited with the
other as husband and wife;
4) That the consent of either party was obtained by force,
intimidation or undue influence, unless the same having
disappeared or ceased, such party thereafter freely
cohabited with the other as husband and wife;
5) That either party was physically incapable of
consummating the marriage with the other, and such
incapacity continues and appears to be incurable; or
6) That either party was afflicted with a sexually-
transmissible disease found to be serious and appears
to be incurable.
(cf)
NCC Art 53. No marriage shall be solemnized unless all these
requisites are complied with:
1) Legal capacity of the contracting parties;
2) Their consent, freely given;
3) Authority of the person performing the marriage; and
4) A marriage license, except in a marriage of exceptional
character.
DISCUSSION:
1. Difference in Sex
FC Art 2 (1). Legal capacity of the contracting parties who must
be a male and a female
Art 4 (1). The absence of any of the essential or formal
requisites shall render the marriage void ab initio, except as
stated in Article 35 (2).
Art 39. The action or defense for the declaration of absolute
nullity of a marriage shall not prescribe.
Silverio vs. Republic
SC held that Silverio cannot change First Name and Sex on
Ground of reassignment of sex. Even the trial court itself found
that the petition was but petitioner’s first step towards his
eventual marriage to his male fiancé. However, marriage, one of
the most sacred social institutions, is a special contract of
permanent union between a man and a woman.5
2. Some Form of Ceremony
FC Art 3 (3). A marriage ceremony which takes place with the
appearance of the contracting parties before the solemnizing
officer and their personal declaration that they take each other as
husband and wife in the presence of not less than two witnesses
of legal age.
Art 4 (1). The absence of any of the essential or formal
requisites shall render the marriage void ab initio, except as
stated in Article 35 (2).
Art 6. No prescribed form or religious rite for the solemnization of
the marriage is required. It shall be necessary, however, for the
contracting parties to appear personally before the solemnizing
officer and declare in the presence of not less than two
witnesses of legal age that they take each other as husband and
wife. This declaration shall be contained in the marriage
certificate which shall be signed by the contracting parties and
their witnesses and attested by the solemnizing officer.
In case of a marriage in articulo mortis, when the party at the
point of death is unable to sign the marriage certificate, it shall be
sufficient for one of the witnesses to the marriage to write the
name of said party, which fact shall be attested by the
solemnizing officer.
Art 8. The marriage shall be solemnized publicly in the chambers
of the judge or in open court, in the church, chapel or temple, or
in the office the consul-general, consul or vice-consul, as the
case may be, and not elsewhere, except in cases of marriages
contracted on the point of death or in remote places in
accordance with Article 29 of this Code, or where both of the
parties request the solemnizing officer in writing in which case
the marriage may be solemnized at a house or place designated
by them in a sworn statement to that effect.
Martinez vs. Tan
A marriage took place as shown by the certificate of the justice of
the peace, signed by both contracting parties, which certificates
gives rise to the presumption that the officer authorized the
marriage in due form, the parties before the justice of the peace
declaring that they took each other as husband and wife, unless
the contrary is proved, such presumption being corroborated in
this case by the admission of the woman to the effect that she
had contracted the marriage certified to in the document signed
by her, which admission can only mean the parties mutually
agreed to unite in marriage when they appeared and signed the
said document which so states before the justice of the peace
who authorized the same.
5
One of its essential requisites is the legal capacity of the contracting parties
who must be a male and a female. To grant the changes sought by petitioner
will substantially reconfigure and greatly alter the laws on marriage and family
relations. It will allow the union of a man with another man who has
undergone sex reassignment (a male-to-female post-operative transsexual).
Second, there are various laws which apply particularly to women such as the
provisions of the Labor Code on employment of women, certain felonies under
the Revised Penal Code and the presumption of survivorship in case of
calamities under Rule 131 of the Rules of Court, among others. These laws
underscore the public policy in relation to women which could be substantially
affected if petitioner’s petition were to be granted.
25
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
Morigo vs. People
The trial court found that there was no actual marriage ceremony
performed between Lucio and Lucia by a solemnizing officer.
Instead, what transpired was a mere signing of the marriage
contract by the two, without the presence of a solemnizing
officer. The trial court thus held that the marriage is void ab initio,
in accordance with Articles 3 and 4 of the Family Code. This
simply means that there was no marriage to begin with; and that
such declaration of nullity retroacts to the date of the first
marriage. In other words, for all intents and purposes, reckoned
from the date of the declaration of the first marriage as void ab
initio to the date of the celebration of the first marriage, the
accused was, under the eyes of the law, never married.
C. Legal Capacity
FC Art 2 FC Art. 2. No marriage shall be valid, unless these
essential requisites are present:
(1) Legal capacity of the contracting parties who must be a male
and a female; and
(2) Consent freely given in the presence of the solemnizing
officer. (53a)
1. Age
FC Art. 5. Any male or female of the age of eighteen years or
upwards not under any of the impediments mentioned in Articles
37 and 38, may contract marriage. (54a)
FC Art. 35. The following marriages shall be void from the
beginning:
(1) Those contracted by any party below eighteen years of age
even with the consent of parents or guardians;
FC Art. 39. The action or defense for the declaration of absolute
nullity of a marriage shall not prescribe. (As amended by
Executive Order 227 and Republic Act No. 8533; The phrase
"However, in case of marriage celebrated before the effectivity of
this Code and falling under Article 36, such action or defense
shall prescribe in ten years after this Code shall taken effect" has
been deleted by Republic Act No. 8533 [Approved February 23,
1998]).
FC Art. 45. A marriage may be annulled for any of the following
causes, existing at the time of the marriage:
(1) That the party in whose behalf it is sought to have the
marriage annulled was eighteen years of age or over but below
twenty-one, and the marriage was solemnized without the
consent of the parents, guardian or person having substitute
parental authority over the party, in that order, unless after
attaining the age of twenty-one, such party freely cohabited with
the other and both lived together as husband and wife;
FC Art. 37. Marriages between the following are incestuous and
void from the beginning, whether relationship between the
parties be legitimate or illegitimate:
(1) Between ascendants and descendants of any degree; and
2. Relationship
FC Art. 37. Marriages between the following are incestuous and
void from the beginning, whether relationship between the
parties be legitimate or illegitimate:
(1) Between ascendants and descendants of any degree; and
(2) Between brothers and sisters, whether of the full or half
blood. (81a)
FC Art. 38. The following marriages shall be void from the
beginning for reasons of public policy:
(1) Between collateral blood relatives whether
legitimate or illegitimate, up to the fourth civil degree;
(2) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
(4) Between the adopting parent and the adopted child;
(5) Between the surviving spouse of the adopting parent and the
adopted child;
(6) Between the surviving spouse of the adopted child and the
adopter;
(7) Between an adopted child and a legitimate child of the
adopter;
(8) Between adopted children of the same adopter; and
(9) Between parties where one, with the intention to marry the
other, killed that other person's spouse, or his or her own
spouse. (82)
FC Art. 39. The action or defense for the declaration of absolute
nullity of a marriage shall not prescribe. (As amended by
Executive Order 227 and Republic Act No. 8533; The phrase
"However, in case of marriage celebrated before the effectivity of
this Code and falling under Article 36, such action or defense
shall prescribe in ten years after this Code shall taken effect" has
been deleted by Republic Act No. 8533 [Approved February 23,
1998]).
3. Prior Marriage
FC Art. 35. The following marriages shall be void from the
beginning:
(4) Those bigamous or polygamous marriages not falling under
Article 41;
(6) Those subsequent marriages that are void under Article 53.
FC Art. 40. The absolute nullity of a previous marriage may be
invoked for purposes of remarriage on the basis solely of a final
judgment declaring such previous marriage void. (n)
FC Art. 41. A marriage contracted by any person during
subsistence of a previous marriage shall be null and void, unless
before the celebration of the subsequent marriage, the prior
spouse had been absent for four consecutive years and the
spouse present has a well-founded belief that the absent spouse
was already dead. In case of disappearance where there is
danger of death under the circumstances set forth in the
provisions of Article 391 of the Civil Code, an absence of only
two years shall be sufficient.
For the purpose of contracting the subsequent marriage under
the preceding paragraph the spouse present must institute a
summary proceeding as provided in this Code for the declaration
of presumptive death of the absentee, without prejudice to the
effect of reappearance of the absent spouse. (83a)
FC Art. 42. The subsequent marriage referred to in the
preceding Article shall be automatically terminated by the
recording of the affidavit of reappearance of the absent spouse,
unless there is a judgment annulling the previous marriage or
declaring it void ab initio.
A sworn statement of the fact and circumstances of
reappearance shall be recorded in the civil registry of the
26
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
residence of the parties to the subsequent marriage at the
instance of any interested person, with due notice to the spouses
of the subsequent marriage and without prejudice to the fact of
reappearance being judicially determined in case such fact is
disputed. (n)
FC Art. 43. The termination of the subsequent marriage referred
to in the preceding Article shall produce the following effects:
(1) The children of the subsequent marriage conceived prior to
its termination shall be considered legitimate;
(2) The absolute community of property or the conjugal
partnership, as the case may be, shall be dissolved and
liquidated, but if either spouse contracted said marriage in bad
faith, his or her share of the net profits of the community property
or conjugal partnership property shall be forfeited in favor of the
common children or, if there are none, the children of the guilty
spouse by a previous marriage or in default of children, the
innocent spouse;
(3) Donations by reason of marriage shall remain valid, except
that if the donee contracted the marriage in bad faith, such
donations made to said donee are revoked by operation of law;
(4) The innocent spouse may revoke the designation of the other
spouse who acted in bad faith as beneficiary in any insurance
policy, even if such designation be stipulated as irrevocable; and
(5) The spouse who contracted the subsequent marriage in bad
faith shall be disqualified to inherit from the innocent spouse by
testate and intestate succession. (n)
FC Art. 44. If both spouses of the subsequent marriage acted in
bad faith, said marriage shall be void ab initio and all donations
by reason of marriage and testamentary dispositions made by
one in favor of the other are revoked by operation of law. (n)
FC Art. 52. The judgment of annulment or of absolute nullity of
the marriage, the partition and distribution of the properties of the
spouses and the delivery of the children's presumptive legitimes
shall be recorded in the appropriate civil registry and registries of
property; otherwise, the same shall not affect third persons. (n)
FC Art. 53. Either of the former spouses may marry again after
compliance with the requirements of the immediately preceding
Article; otherwise, the subsequent marriage shall be null and
void.
FC Art. 39. The action or defense for the declaration of absolute
nullity of a marriage shall not prescribe. (As amended by
Executive Order 227 and Republic Act No. 8533; The phrase
"However, in case of marriage celebrated before the effectivity of
this Code and falling under Article 36, such action or defense
shall prescribe in ten years after this Code shall taken effect" has
been deleted by Republic Act No. 8533 [Approved February 23,
1998]).
NCC Art. 390. After an absence of seven years, it being
unknown whether or not the absentee still lives, he shall be
presumed dead for all purposes, except for those of succession.
The absentee shall not be presumed dead for the purpose of
opening his succession till after an absence of ten years. If he
disappeared after the age of seventy-five years, an absence of
five years shall be sufficient in order that his succession may be
opened. (n)
NCC Article 391. The following shall be presumed dead for all
purposes, including the division of the estate among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an
aeroplane which is missing, who has not been heard of for four
years since the loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war, and
has been missing for four years;
(3) A person who has been in danger of death under other
circumstances and his existence has not been known for four
years. (n)
FC Art. 55 A petition for legal separation may be filed on any of
the following grounds:
(7) Contracting by the respondent of a subsequent bigamous
marriage, whether in the Philippines or abroad;
Art. 101. If a spouse without just cause abandons the other or
fails to comply with his or her obligations to the family, the
aggrieved spouse may petition the court for receivership, for
judicial separation of property or for authority to be the sole
administrator of the absolute community, subject to such
precautionary conditions as the court may impose.
The obligations to the family mentioned in the preceding
paragraph refer to marital, parental or property relations.
A spouse is deemed to have abandoned the other when her or
she has left the conjugal dwelling without intention of returning.
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
presumed to have no intention of returning to the conjugal
dwelling. (178a)
Republic v. Nolasco (1993)
Nolasco filed a petition for the declaration of presumptive death
of his wife, which was not granted. He should have proved that
he conducted a search for his wife with such diligence as to
give rise to a well-founded belief that she is dead.
Garcia v. Recio (2001)
Re: Certificate of Legal Capacity required by Family Code
Article 21: because legal capacity is dictated by the national law
of a person, the certificate would have been prima facie
evidence of Recio's capacity to marry based on Australian law.
However, he presented no such certificate.
Te v. CA, Choa (2000)
Outcome of civil case for annulment does not present a
prejudicial question with respect to the criminal case for bigamy
as FC Art. 40 states that the absolute nullity of a previous
marriage may not be invoked for purposes of remarriage unless
there is a final judgment declaring such previous marriage void.
Thus, under the law, a marriage, even one which is void or
voidable, shall be deemed valid until otherwise declared in a
27
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
judicial proceeding. At the time of the alleged commission of
the crime, the first marriage was, under the law, still valid and
subsisting.
Nollora v. People (2011)
Nollora’s sole defense to the bigamy charge against him was
his Muslim faith, alleging that this allows him to marry more
than once. However, both marriage ceremonies were not
conducted in accordance with the Code of Muslim Personal
Laws (PD 1083). Article 13(2) of the Code of Muslim Personal
Laws states that in case of a marriage between a Muslim and a
non-Muslim, solemnized not in accordance with Muslim law or
this Code, the FC shall apply, thus, Nollora cannot claim
exemption from liability for the crime of bigamy.
SSS v. Jarque vda de Bailon (2006)
If the absentee reappears, but no step is taken to terminate the
subsequent marriage, either by affidavit or by court action, such
absentees mere reappearance, even if made known to the
spouses in the subsequent marriage, will not terminate such
marriage.
Republic v. Sareñogon (2016)
The law did not define what is meant by "well-founded belief”
and it depends upon the circumstances of each particular case.
The degree of diligence and reasonable search required by law
is not met when: (1) there is failure to present the persons from
whom the present spouse allegedly made inquiries especially
the absent spouse''s relatives, neighbors, and friends; (2) there
is failure to report the missing spouse's purported
disappearance or death to the police or mass media; and (3)
the present spouse''s evidence might or would only show that
the absent spouse chose not to communicate, but not
necessarily that the latter was indeed dead.
Rationale: To prevent possible collusion of spouses in nullifying
their marriage, the Court has consistently applied the "strict
standard" approach.
Republic v. Tampus (2016)
Four requisites for declaration of presumptive death:
1. That the spouse has been missing for 4 years or 2 years,
when there exists danger of death
2. Present spouse wishes to remarry
3. Present spouse has a well-founded belief that the absentee
spouse is dead
4. Present spouse files a summary proceeding.
Here, Nilda failed to show what efforts she made apart from
claiming that she "inquired to the best of her abilities", thus
there can be no well-founded belief.
Wiegel v. Sempio-Diy (1986)
Regardless of whether her marriage w/ Maxion is void or
voidable, she would still be regarded as a married woman at
the time she contracted her marriage with respondent Karl
Wiegel. Even if it was void, still need a judicial declaration to
declare it so; and if it’s voidable, it’s valid until it’s annulled
Terre v. Terre (1992)
For purposes of determining whether a person is legally free to
contract a second marriage, a judicial declaration that the first
marriage was null and void ab initio is essential.
Bobis v. Bobis (2000)
The fact that respondent was still married when he entered into
the second marriage cannot be erased by a possible
subsequent decision in the civil action for nullity Decision in civil
case is not essential to the determination of the criminal
charge. Judicial declaration of the nullity of the first marriage is
absolutely essential.
Mercado v. Tan
The fact that the first marriage is void from the beginning is not
a defense in a bigamy charge. As with a voidable marriage,
there must be a judicial declaration of the nullity of a marriage
before contracting the second marriage.
Morigo v. People (2004)
Morigo’s marriage with Barrete is void ab initio considering that
they merely signed a marriage contract BUT there was no
actual marriage ceremony performed between them by a
solemnizing officer. The petitioner does not need to file
declaration of the nullity of his marriage when he contracted his
second marriage with Lumbago. Hence, he did not commit
bigamy.
Tenebro v. CA (2004)
Subsequent JDN of marriage on the ground of psychological
incapacity does not retroact to the date of the celebration of the
marriage.
J. Vitug: With exception to a void marriage due to psychological
incapacity, the absolute nullity of a previous marriage may
constitute a valid defense against bigamy. Void marriages are
inexistent from the very beginning, and no judicial decree is
required to establish their nullity.
Psychological incapacity, a newly-added ground for the nullity
of a marriage under the Family Code, breaches neither the
essential nor the formal requisites of a valid marriage. And
unlike the other grounds for nullity of marriage (i.e.,
relationship, minority of the parties, lack of license, and mistake
in the identity of the parties) which are capable of relatively
easy demonstration, psychological incapacity, however, being a
mental state may not so readily be as evident. It would have
been logical for the Family Code to consider such a marriage
explicitly voidable rather than void if it were not for apparent
attempt to make it closely coincide with the Canon Law rules
and nomenclature.
28
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
Montanez v. Cipriano (2012)
At the time respondent contracted the second marriage, the
first marriage was still subsisting as it had not yet been legally
dissolved. The subsequent judicial declaration of nullity of the
first marriage would not change the fact that she contracted the
second marriage during the subsistence of the first marriage.
Capili v. People (2013)
It is a settled rule that the criminal culpability attaches to the
offender upon the commission of the offense, and from that
instant, liability appends to him until extinguished as provided
by law. It is clear then that the crime of bigamy was committed
by petitioner from the time he contracted the second marriage
with private respondent.
Abbas v. Abbas (2013)
The certification of the Local Civil Registrar that their office had
no record of a marriage license was adequate to prove the non-
issuance of said license and since the presumed validity of the
marriage of the parties had been overcome, it became a
burden of the party alleging a valid marriage to prove that the
marriage was valid and that the required marriage license had
been secured. Gloria has failed to discharge that burden, and
Art. 35(3), FC provides that a marriage solemnized without a
license is void from the beginning, except those exempt from
the license requirement under Arts. 27 to 34.
People v. Odtuhan (2013)
Respondent moved to quash the information on the ground that
the facts do not charge the offense of bigamy and his criminal
liability has been extinguished because of the subsequent
declaration of the first marriage. SC disagrees as matters of
defense cannot be raised in a motion to quash, and,
furthermore, declaration of absolute nullity of marriage is
required before a valid subsequent marriage can be contracted.
Iwasawa v. Gangan (2013)
JDN is required before a valid subsequent marriage can be
contracted or else what transpires is a bigamous marriage,
which is void from the beginning as provided in Article 35 (4) of
the FC.
Republic v. Cantor (2013)
The law did not define what is meant by “well-founded belief.” It
depends upon the circumstances of each particular case. Its
determination remains on a case-to-case basis. To be able to
comply with this requirement, the present spouse must prove
that his/her belief was the result of diligent and reasonable
efforts and inquiries to locate the absent spouse and that based
on these, s/he believed that the absent spouse is already dead.
It requires exertion of active effort and not a mere passive one.
Lasanas v. People (2014)
Securing a JDN of the first marriage prior to the subsequent
marriage is absolutely essential. The crime of bigamy was
consummated from the moment he contracted the second
marriage without his marriage to Socorro being first judicially
declared null and void, because at the time of the celebration of
the second marriage, his marriage to Socorro was still deemed
valid and subsisting due to such marriage not being yet
declared null and void by a court of competent jurisdiction.
SSC v. Azote (2015)
Pursuant to Art. 41, Edna should have established that there
was no impediment or that the impediment was already
removed at the time of the celebration of her marriage to
Edgardo, but this she failed to do. In this case, there is concrete
proof that Edgardo contracted an earlier marriage with another
individual as evidenced by their marriage contract, and Edna
did not adduce evidence to prove that the earlier marriage was
either annulled or dissolved or whether there was a declaration
of the first spouse’s presumptive death before Edna’s marriage
to Edgardo. Considering that Edna was not able to show that
she was the legal spouse of the deceased-member, she would
not qualify under the law to be the beneficiary of Edgardo’s
death benefits.
Republic v. Hon. Estrada (2015)
Diego's absence for more than 30 years, which far exceeded
the law-required four years of absence, is more than enough to
declare him presumptively dead for all legal intents and
purposes. Further, it can be clearly gleaned from the totality of
evidence that Diego had already died due to the prevalence of
New People's Army in Malaybalay.
Republic v. Villanueva (2015)
Art. 41 provides that before a judicial declaration of
presumptive death may be granted, the present spouse must
prove that he/she has a well-founded belief that the absentee is
dead. This strict standard approach ensures that a petition for
declaration of presumptive death is not used as a tool to
conveniently circumvent the laws in light of the State's policy to
protect and strengthen the institution of marriage.
Santiago v. Phils (2015)
Petitioner’s defense in this criminal case of bigamy, is that her
marriage with Santos was void for having been secured without
a marriage license. But it was they themselves who perpetrated
a false Certificate of Marriage by misrepresenting that they
were exempted from the license requirement based on their
fabricated claim that they had already cohabited as husband
and wife for at least five years prior their marriage.
Consequently, it will be the height of absurdity to allow
petitioner to use her illegal act to escape criminal conviction.
4. Article 53 & 52
FC Art. 53. Either of the former spouses may marry again after
compliance with the requirements of the immediately preceding
29
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
Article; otherwise, the subsequent marriage shall be null and
void.
FC Art. 52. The judgment of annulment or of absolute nullity of
the marriage, the partition and distribution of the properties of
the spouses and the delivery of the children's presumptive
legitimes shall be recorded in the appropriate civil registry and
registries of property; otherwise, the same shall not affect third
persons. (n)
5. Crime
FC Art. 38. The following marriages shall be void from the
beginning for reasons of public policy:
(9) Between parties where one, with the intention to marry the
other, killed that other person's spouse, or his or her own
spouse.
6. Physical Incapacity
FC Art. 45. A marriage may be annulled for any of the following
causes, existing at the time of the marriage:
(5) That either party was physically incapable of consummating
the marriage with the other, and such incapacity continues and
appears to be incurable; or
FC Art. 47. The action for annulment of marriage must be filed
by the following persons and within the periods indicated
herein:
(5) For causes mentioned in number 5 and 6 of Article 45, by
the injured party, within five years after the marriage.
Jimenez v. Canizares (1960)
Husband filed case to annul marriage with wife because her
vagina was allegedly too small for copulation, but she refused
to submit to a physical exam. SC ruled that wife must be
compelled to take the exam as the presumption is in favor of
potency and this cannot be overcome by the sole testimony of
husband.
Alcazar v. Alcazar (2009)
Incapacity to consummate denotes permanent inability on the
part of the spouses to perform the complete act of sexual
intercourse. No evidence was presented to establish this.
7. Psychological Incapacity
FC Art. 36. A marriage contracted by any party who, at the time
of the celebration, was psychologically incapacitated to comply
with the essential marital obligations of marriage, shall likewise
be void even if such incapacity becomes manifest only after its
solemnization.
FC Art. 68. The husband and wife are obliged to live together,
observe mutual love, respect and fidelity, and render mutual
help and support.
FC Art. 69. The husband and wife shall fix the family domicile.
In case of disagreement, the court shall decide.
The court may exempt one spouse from living with the other if
the latter should live abroad or there are other valid and
compelling reasons for the exemption. However, such
exemption shall not apply if the same is not compatible with the
solidarity of the family.
FC Art. 68. The spouses are jointly responsible for the support
of the family. The expenses for such support and other conjugal
obligations shall be paid from the community property and, in
the absence thereof, from the income or fruits of their separate
properties. In case of insufficiency or absence of said income or
fruits, such obligations shall be satisfied from the separate
properties.
FC Art. 71. The management of the household shall be the
right and the duty of both spouses. The expenses for such
management shall be paid in accordance with the provisions of
Article 70. (115a)
FC Art. 72. When one of the spouses neglects his or her duties
to the conjugal union or commits acts which tend to bring
danger, dishonor or injury to the other or to the family, the
aggrieved party may apply to the court for relief. (116a)
FC Art. 73. Either spouse may exercise any legitimate
profession, occupation, business or activity without the consent
of the other. The latter may object only on valid, serious, and
moral grounds.
In case of disagreement, the court shall decide whether or not:
(1) The objection is proper; and
(2) Benefit has occurred to the family prior to the objection or
thereafter. If the benefit accrued prior to the objection, the
resulting obligation shall be enforced against the separate
property of the spouse who has not obtained consent.
The foregoing provisions shall not prejudice the rights of
creditors who acted in good faith.
Santos v. CA (1995)
Failure of Julia to return home or to communicate with her
husband for more than 5 years does not constitute
psychological incapacity. "Psychological incapacity" should
refer no less than a mental, not physical, incapacity that causes
a party to be truly incognitive of the basic marital covenants that
must be assumed and discharged by the parties to the
marriage.
Chi Ming Tsoi v. CA (1997)
The abnormal reluctance or unwillingness to consummate his
marriage is strongly indicative of a serious personality disorder
which to the mind of the SC clearly demonstrates an utter
insensitivity or inability to give meaning and significance tot the
marriage within the meaning of Article 36 of the Family Code.
Republic v. Olaviano Molina (1997)
Molina Guidelines
30
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
1. The plaintiff (the spouse who filed the petition in court) has
burden of showing the nullity of the marriage. Our laws cherish
the validity of marriage and unity of the family, so any doubt is
resolved in favor of the existence/continuation of the marriage.
2. The root cause of the psychological incapacity must be (a)
medically or clinically identified, (b) alleged in the complaint, (c)
sufficiently proven by experts and (d) clearly explained in the
decision. Article 36 of the Family Code requires that the
incapacity must be psychological – not physical, although its
manifestations and/or symptoms may be physical. Expert
evidence may be given by qualified psychiatrists and clinical
psychologists.
3. The incapacity must be proven to be existing at “the time of
the celebration” of the marriage. The manifestation of the
illness need not be perceivable at such time, but the illness
itself must have attached at such moment, or prior thereto.
4. Such incapacity must also be shown to be medically or
clinically permanent or incurable. Such incurability may be
absolute or even relative only in regard to the other spouse, not
necessarily absolutely against everyone of the same sex.
Furthermore, such incapacity must be relevant to the
assumption of marriage obligations.
5. Such illness must be grave enough to bring about the
disability of the party to assume the essential obligations of
marriage. Thus, “mild characteriological peculiarities, mood
changes, occasional emotional outbursts” cannot be accepted
as root causes.
6. The essential marital obligations must be those embraced by
Articles 68-71 of the Family Code as regards the husband and
wife, as well as Articles 220, 221 and 225 of the same Code in
regard to parents and their children. Such non-complied marital
obligation(s) must also be stated in the petition, proven by
evidence and included in the text of the decision.
7. Interpretations given by the National Appellate Matrimonial
Tribunal of the Catholic Church in the Philippines, while not
controlling or decisive, should be given great respect by our
courts.
8. The trial court must order the prosecuting attorney or fiscal
and the Solicitor General to appear as counsel for the state.
Antonio v. Reyes (2005)
Psychological incapacity pertains to the inability to understand
the obligations of marriage as opposed to a mere inability to
comply with them. The petitioner, aside from his own testimony
presented a psychiatrist and clinical psychologist who attested
that constant lying and extreme jealousy of Reyes is abnormal
and pathological and corroborated his allegations on his wife’s
behavior, which amounts to psychological incapacity. The court
conclude that petitioner has established his cause of action for
declaration of nullity under Article 36 of the Family Code.
Te v. Te (2009)
There is no requirement that the person to be declared
psychologically incapacitated be personally examined by a
physician, if the totality of evidence presented is enough to
sustain a finding of psychological incapacity. Verily, the
evidence must show a link, medical or the like, between the
acts that manifest psychological incapacity and the
psychological disorder itself.
Azcueta v. RP (2009)
As held in Marcos vs. Marcos [397 Phil. 840 (2000)], there is no
requirement that the respondent spouse should be personally
examined by a physician or psychologist as a condition sine
qua non for the declaration of nullity of marriage based on
psychological incapacity. What matters is whether the totality of
evidence presented is adequate to sustain a finding of
psychological incapacity.
Alcazar v. Alcazar (2009)
Incapacity to consummate denotes permanent inability on the
part of the spouses to perform the complete act of sexual
intercourse. No evidence was presented to establish this.
Halili v. Halili (2009 MR)
Courts should interpret the provision on psychological
incapacity on a case-to-case basis - guided by experience, the
findings of experts and researchers in psychological disciplines
and by decisions of church tribunals.
Najera v. Najera (2009)
The evidence presented by petitioner in regard to the physical
violence or grossly abusive conduct of respondent toward
petitioner and respondent’s abandonment of petitioner without
justifiable cause for more than one year are grounds for legal
separation only and not for annulment of marriage under Article
36 of the Family Code.
Decision of the National Appellate Matrimonial Tribunal is not
persuasive on the court because the ground used therein was
not psychological incapacity,
Camacho v. Reyes (2010)
Respondent’s pattern of behavior manifests an inability or a
psychological incapacity to perform the essential marital
obligations as shown by his: (1) sporadic financial support; (2)
extra-marital affairs; (3) substance abuse; (4) failed business
attempts; (5) unpaid money obligations; (6) inability to keep a
job that is not connected with the family businesses; and (7)
criminal charges of estafa.
These all point to the inevitable conclusion that respondent is
psychologically incapacitated to perform the essential marital
obligations.
Kalaw v. Fernandez (2015)
(Relaxing the Molina guidelines)
In hindsight, it may have been inappropriate for the Court to
impose a rigid set of rules, as the one in Molina, in resolving all
cases of psychological incapacity. Understandably, the Court
was then alarmed by the deluge of petitions for the dissolution
of marital bonds, and was sensitive to the OSG's exaggeration
of Article 36 as the "most liberal divorce procedure in the
world." The unintended consequences of Molina, however, has
taken its toll on people who have to live with deviant behavior,
moral insanity and sociopathic personality anomaly, which, like
31
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
termites, consume little by little the very foundation of their
families, our basic social institutions. Far from what was
intended by the Court, Molina has become a strait-jacket,
forcing all sizes to fit into and be bound by it. Wittingly or
unwittingly, the Court, in conveniently applying Molina, has
allowed diagnosed sociopaths, schizophrenics,
nymphomaniacs, narcissists and the like, to continuously
debase and pervert the sanctity of marriage.
Vinas v. Vinas (2015)
The lack of personal examination or assessment of the
respondent by a psychologist or psychiatrist is not necessarily
fatal in a petition for the declaration of nullity of marriage if the
totality of evidence presented is enough to sustain a finding of
psychological incapacity.
In the instant case, however, this was held insufficient. To
make conclusions and generalizations on the respondent’s
psychological condition based on the information fed by only
one side is, to our mind, not different from admitting hearsay
evidence as proof of the truthfulness of the content of such
evidence.
Mallilin v. Jamesolamin (2015)
Other than his self-serving testimony, no other evidence was
adduced to show the alleged incapacity of Luz, thus, his
testimony was self-serving and had no serious value as
evidence. Additionally, the root cause of the alleged
psychological incapacity of Luz was not medically or clinically
identified, and sufficiently proven during the trial. Based on the
records, Robert failed to prove that her disposition of not
cleaning the room, preparing their meal, washing the clothes,
and propensity for dating and receiving different male visitors,
was grave, deeply rooted, and incurable within the parameters
of jurisprudence on psychological incapacity.
Republic v. Romero (2016)
SC here did not grant the annulment saying that even though
he married his wife not out of love, but out of reverence for the
latter's parents, does not mean that he is psychologically
incapacitated in the context of Article 36 of the Family Code.
Moreover, the Obsessive Compulsive Personality Disorder
which boy allegedly suffered from was not shown to have
juridical antecedence. In like manner, Dr. Psychologist simply
concluded that boy's disorder is incurable but failed to explain
how she came to such conclusion.
Castillo v. Castillo (2016)
The requirement of a judicial decree of nullity does not apply to
marriages that were celebrated before the effectivity of the
Family Code, particularly if the children of the parties were born
while the Civil Code was in force.6
Castillo v. Republic (2017)
Probative force of the testimony of an expert does not lie in a
6
Note: I don’t know why this is under Psychological Incapacity as CA
stated in its decision that petitioner did not pursue the ground of
psychological incapacity in the RTC.
mere statement of her theory or opinion, but rather in the
assistance that she can render to the courts in showing the
facts that serve as a basis for her criterion and the reasons
upon which the logic of her conclusion is founded. Her findings
on Felipe’s supposed lack of parental care that caused his
psychological incapacity is unfounded as she did not interview
anyone with knowledge of his family background and
upbringing. There is no convincing evidence asserted to
establish his psychological condition as being related to his
early life. Likewise, sexual infidelity, among others, must be
established as a manifestation of a disordered personality that
prevents him from discharging marital obligations
Del Rosario v. Del Rosario (2017)
"Irreconcilable differences, sexual infidelity or perversion,
emotional immaturity and irresponsibility, and the like, do not by
themselves warrant a finding of psychological incapacity, as
[these] may only be due to a person's difficulty, refusal, or
neglect to undertake the obligations of marriage that is not
rooted in some psychological illness that Article 36 of the
Family Code addresses." There must be proof of a natal or
supervening disabling factor in the person - an adverse integral
element in the personality structure that effectively
incapacitates the person from really accepting and thereby
complying with the obligations essential to marriage - which
must be linked with the manifestations of the psychological
incapacity.
De la Fuente v. De la Fuente (2017)
Standards for determining psychological incapacity: (1) gravity,
(2) juridical antecedence, (3) incurability. Incapacity "should
refer to no less than a mental (not physical) incapacity that
causes a party to be truly incognitive of the basic marital
covenants that concomitantly must be assumed and discharged
by the parties to the marriage."
D. Consent
FC Art. 45. A marriage may be annulled for any of the following
causes, existing at the time of the marriage:
(1) That the party in whose behalf it is sought to have the
marriage annulled was eighteen years of age or over but
below twenty-one, and the marriage was solemnized without
the consent of the parents, guardian or person having
substitute parental authority over the party, in that order,
unless after attaining the age of twenty-one, such party
freely cohabited with the other and both lived together as
husband and wife;
(2) That either party was of unsound mind, unless such party
after coming to reason, freely cohabited with the other as
husband and wife;
(3) That the consent of either party was obtained by fraud,
unless such party afterwards, with full knowledge of the
facts constituting the fraud, freely cohabited with the other
as husband and wife;
(4) That the consent of either party was obtained by force,
intimidation or undue influence, unless the same having
disappeared or ceased, such party thereafter freely
cohabited with the other as husband and wife;
(5) That either party was physically incapable of consummating
the marriage with the other, and such incapacity continues
32
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
and appears to be incurable; or
(6) That either party was afflicted with a sexually-transmissible
disease found to be serious and appears to be
incurable. (85a)
FC Art. 35. The following marriages shall be void from the
beginning:
(5) Those contracted through mistake of one contracting party as
to the identity of the other; and
FC Art. 39. The action or defense for the declaration of absolute
nullity of a marriage shall not prescribe. (As amended by
Executive Order 227 and Republic Act No. 8533; The phrase
"However, in case of marriage celebrated before the effectivity of
this Code and falling under Article 36, such action or defense
shall prescribe in ten years after this Code shall taken effect"has
been deleted by Republic Act No. 8533 [Approved February 23,
1998]).
a. Insanity
FC Art. 45. A marriage may be annulled for any of the following
causes, existing at the time of the marriage:
(2) That either party was of unsound mind, unless such party
after coming to reason, freely cohabited with the other as
husband and wife
FC Art. 47. The action for annulment of marriage must be filed
by the following persons and within the periods indicated herein:
(2) For causes mentioned in number 2 of Article 45, by the same
spouse, who had no knowledge of the other's insanity; or by any
relative or guardian or person having legal charge of the insane,
at any time before the death of either party, or by the insane
spouse during a lucid interval or after regaining sanity;
b. Fraud
FC Art. 45. A marriage may be annulled for any of the following
causes, existing at the time of the marriage:
(3) That the consent of either party was obtained by fraud,
unless such party afterwards, with full knowledge of the facts
constituting the fraud, freely cohabited with the other as husband
and wife;
FC Art. 46. Any of the following circumstances shall constitute
fraud 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;
(2) Concealment by the wife of the fact that at the time of the
marriage, she was pregnant by a man other than her
husband;
(3) Concealment of sexually transmissible disease, regardless
of its nature, existing at the time of the marriage; or
(4) Concealment of drug addiction, habitual alcoholism or
homosexuality or lesbianism existing at the time of the
marriage.
No other misrepresentation or deceit as to character, health,
rank, fortune or chastity shall constitute such fraud as will give
grounds for action for the annulment of marriage. (86a)
Buccat v. Buccat (1941)
89 days after getting married, Luida, then 9 months pregnant,
gave birth to a son. Godofredo filed for an annulment of their
marriage on the ground that she assured him that she was a
virgin. SC did not find any proof that there was concealment of
pregnancy constituting fraud as a ground for annulment. Clear
and authentic proof is needed in order to nullify a marriage, a
sacred institution in which the State is interested and where
society rests.
Anaya v. Palaroan (1970)
The concealment of a husband’s pre-marital relationship with
another woman was not one of those enumerated that would
constitute fraud as ground for annulment and it is further
excluded by the last paragraph providing that “no other
misrepresentation or deceit as to...chastity” shall give ground for
an action to annul a marriage.
Villanueva v. CA (2006)
Orly seeks to annul his marriage because of a pending bigamy
case filed by Lilia. Also, Orly’s contentions were not concretely
established, taking in consideration that he is a security guard
who is knowledgeable of self-defense. His allegations that he
never had an erection during their sexual intercourse is a lie.
Also, it took him four years to file an action, which only supports
Lilia’s contention that he freely cohabitated with her.
Almelor v. RTC (2008)
Concealment of homosexuality is the proper ground to annul a
marriage, not homosexuality per se. Evidently, no sufficient proof
was presented to substantiate the allegations that Manuel is a
homosexual and that he concealed this to Leonida at the time of
their marriage..
c. Duress
d. Mistake as to identity
e. Disease.
f. No Consent
E. Authority of Solemnizing Officer
F. Marriage License
II. Effect of Defective Marriages on The
Status Of Children
III. Marriage Certificate
IV. Additional Requirements for Annulment
or Declaration Of Nullity
33
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
V. Foreign Marriages and Foreign Divorces
Quita v. CA
If there is a question as to whether a wife was still a Filipino
citizen at the time of her divorce from her husband, the
decedent, the trial court should conduct a hearing to establish
her citizenship.
Aliens may obtain divorces abroad, which may be recognized in
the Philippines, provided they are valid according to their
national law. Once proved that a wife was no longer a Filipino
citizen at the time of her divorce from her husband, then she
could very well lose her right to inherit from the latter.
LLorente v. CA
The Court ruled that aliens may obtain divorces abroad,
provided they are valid according to their national law; Only
Philippine nationals are covered by the policy against absolute
divorces.
Garcia v. Recio
A divorce obtained abroad by an alien may be recognized in
our jurisdiction, provided such decree is valid according to the
national law of the foreigner. However, the divorce decree and
the governing personal law of the alien spouse who obtained
the divorce must be proven. Our courts do not take judicial
notice of foreign laws and judgments; hence, like any other
facts, both the divorce decree and the national law of the alien
must be alleged and proven according to our law on evidence.
Also, the absence of a certificate of legal capacity is merely an
irregularity in complying with the formal requirements
for procuring a marriage license, an irregularity which will not
affect the validity of a marriage celebrated on the basis of a
marriage license issued without that certificate.
Lastly, the Court may not declare the second marriage of a
divorcee null and void on the ground of bigamy where there is a
possibility that, under the foreign law, the divorcee was really
capacitated to remarry as a result of the divorce decree—the
most judicious course is to remand the case to the trial court to
receive evidence, if any, which show the
divorcee’s legal capacity to remarry.
Corpus v. Sto. Tomas
Essentially, FC 26(2) provided the Filipino spouse a substantive
right to have his or her marriage to the alien spouse considered
as dissolved, capacitating him or her to remarry. However, an
action based FC 26(2) is not limited to the recognition of the
foreign divorce decree—if the court finds that the decree
capacitated the alien spouse to remarry, the courts can declare
that the Filipino spouse is likewise capacitated to contract
another marriage.
Only the Filipino spouse can invoke the said provision—the
alien spouse can claim no right under it. But, the unavailability
of the FC 26(2) to aliens does not necessarily strip such aliens
of legal interest to petition the RTC for the recognition of his
foreign divorce decree. The recognition of the foreign divorce
decree may be made in a Rule 108 proceeding itself, as the
object of special proceedings (such as that in Rule 108 of the
Rules of Court) is precisely to establish the status or right of a
party or a particular fact.
Llave v. Republic
A man married both under Muslim Personal Law and Civil Code
contracts a subsequent void bigamous marriage though said to
be divorced under MPL. Because the marriage was celebrated
under both civil and Muslim laws, the Civil Code governs their
personal status and their marriage was never invalidated by PD
1083.
Fujiki v.Marinay
A petition to recognize a foreign judgment declaring a marriage
void does not require relitigation under a Philippine court of the
case as if it were a new petition for declaration of nullity of
marriage.
For Philippine courts to recognize a foreign judgment relating to
the status of a marriage where one of the parties is a citizen of
a foreign country, the petitioner only needs to prove the foreign
judgment as a fact under the Rules of Court.
Also, when Sec. 2(a) states that “[a] petition for declaration of
absolute nullity of void marriage may be filed solely by the
husband or the wife” — it refers to the husband or the wife of
the subsisting marriage. Furthermore, bigamy is a public crime.
Anyone can initiate prosecution for bigamy because any citizen
has an interest in the prosecution and prevention of crimes.
Lavadia v. Heirs of Luna
Wife’s 1st marriage with 1st Husband subsisted up to the time of
his death. Pursuant to the nationality rule, Philippine laws
governed this case by virtue of both Wife and 1 st Husband
having remained Filipinos until the death of Wife terminated
their marriage.
Noveras v. Noveras
Our courts do not take judicial notice of foreign judgments and
laws. For Philippine courts to recognize a foreign judgment
relating to the status of a marriage, the foreign judgment and its
authenticity must be proven as facts under our Rules of
Evidence together with the alien’s applicable national law. Even
if we apply the doctrine of processual presumption, the
recognition of divorce is entirely a different matter because
divorce is not recognized in the Philippines. Absent a valid
34
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
recognition of the divorce decree, it follows that the parties are
still legally married in the Philippines.
Ando v. DFA
A divorce obtained abroad by an alien may be recognized in
our jurisdiction, provided the decree is valid according to the
national law of the foreigner. The presentation solely of the
divorce decree is insufficient; both the divorce decree and the
governing personal law of the alien spouse who obtained the
divorce must be proven. Because our courts do not take judicial
notice of foreign laws and judgment, our law on evidence
requires that both the divorce decree and the national law of
the alien must be alleged and proven like any other fact.
Medina v. Koike
Tthe foreign judgment and its authenticity must be proven as
facts under our rules on evidence, together with the alien's
applicable national law to show the effect of the judgment on
the alien himself or herself.
Both the divorce decree and the governing personal law of the
alien spouse who obtained the divorce must be proven.[30]
Since our courts do not take judicial notice of foreign laws and
judgment, our law on evidence requires that both the divorce
decree and the national law of the alien must be alleged and
proven like any other fact.
VI. Effects of Defective Marriage on Property
Relations
FC. Art. 43- The termination of the subsequent marriage
referred to in the preceding Article shall produce the following
effects:
(1) The children of the subsequent marriage conceived prior to
its termination shall be considered legitimate;
(2) The absolute community of property or the conjugal
partnership, as the case may be, shall be dissolved and
liquidated, but if either spouse contracted said marriage in bad
faith, his or her share of the net profits of the community
property or conjugal partnership property shall be forfeited in
favor of the common children or, if there are none, the children
of the guilty spouse by a previous marriage or in default of
children, the innocent spouse;
(3) Donations by reason of marriage shall remain valid, except
that if the donee contracted the marriage in bad faith, such
donations made to said donee are revoked by operation of law;
(4) The innocent spouse may revoke the designation of the
other spouse who acted in bad faith as beneficiary in any
insurance policy, even if such designation be stipulated as
irrevocable; and
(5) The spouse who contracted the subsequent marriage in bad
faith shall be disqualified to inherit from the innocent spouse by
testate and intestate succession. (n)
FC. Art. 52 – Either of the former spouses may marry again
after compliance with the requirements of the immediately
preceding Article; otherwise, the subsequent marriage shall be
null and void.
FC. Art. 53– Either of the former spouses may marry again
after compliance with the requirements of the immediately
preceding Article; otherwise, the subsequent marriage shall be
null and void.
FC. Art. 50– The effects provided for by paragraphs (2), (3), (4)
and (5) of Article 43 and by Article 44 shall also apply in the
proper cases to marriages which are declared ab initio or
annulled by final judgment under Articles 40 and 45.
The final judgment in such cases shall provide for the
liquidation, partition and distribution of the properties of the
spouses, the custody and support of the common children, and
the delivery of third presumptive legitimes, unless such matters
had been adjudicated in previous judicial proceedings.
All creditors of the spouses as well as of the absolute
community or the conjugal partnership shall be notified of the
proceedings for liquidation.
In the partition, the conjugal dwelling and the lot on which it is
situated, shall be adjudicated in accordance with the provisions
of Articles 102 and 129.
FC. Art. 147– When a man and a woman who are capacitated
to marry each other, live exclusively with each other as
husband and wife without the benefit of marriage or under a
void marriage, their wages and salaries shall be owned by them
in equal shares and the property acquired by both of them
through their work or industry shall be governed by the rules on
co-ownership.
In the absence of proof to the contrary, properties acquired
while they lived together shall be presumed to have been
obtained by their joint efforts, work or industry, and shall be
owned by them in equal shares. For purposes of this Article, a
party who did not participate in the acquisition by the other
party of any property shall be deemed to have contributed
jointly in the acquisition thereof if the former's efforts consisted
in the care and maintenance of the family and of the household.
Neither party can encumber or dispose by acts inter vivos of his
or her share in the property acquired during cohabitation and
owned in common, without the consent of the other, until after
the termination of their cohabitation.
When only one of the parties to a void marriage is in good faith,
the share of the party in bad faith in the co-ownership shall be
forfeited in favor of their common children. In case of default of
or waiver by any or all of the common children or their
descendants, each vacant share shall belong to the respective
surviving descendants. In the absence of descendants, such
share shall belong to the innocent party. In all cases, the
forfeiture shall take place upon termination of the
cohabitation. (144a)
FC. Art. 148– In cases of cohabitation not falling under the
preceding Article, only the properties acquired by both of the
parties through their actual joint contribution of money,
property, or industry shall be owned by them in common in
proportion to their respective contributions. In the absence of
proof to the contrary, their contributions and corresponding
shares are presumed to be equal. The same rule and
presumption shall apply to joint deposits of money and
evidences of credit.
If one of the parties is validly married to another, his or her
share in the co-ownership shall accrue to the absolute
community or conjugal partnership existing in such valid
marriage. If the party who acted in bad faith is not validly
married to another, his or her shall be forfeited in the manner
provided in the last paragraph of the preceding Article.
35
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
The foregoing rules on forfeiture shall likewise apply even if
both parties are in bad faith. (144a)
FC. Art. 63– The decree of legal separation shall have the
following effects:
(1) The spouses shall be entitled to live separately from each
other, but the marriage bonds shall not be severed;
(2) The absolute community or the conjugal partnership shall
be dissolved and liquidated but the offending spouse shall have
no right to any share of the net profits earned by the absolute
community or the conjugal partnership, which shall be forfeited
in accordance with the provisions of Article 43(2);
(3) The custody of the minor children shall be awarded to the
innocent spouse, subject to the provisions of Article 213 of this
Code; and
(4) The offending spouse shall be disqualified from inheriting
from the innocent spouse by intestate succession. Moreover,
provisions in favor of the offending spouse made in the will of
the innocent spouse shall be revoked by operation of
law. (106a)
Ocampo v. Ocampo
The Court held that in a void marriage, as in those declared
void under Article 3610 of the Family Code, the property
relations of the parties during the period of cohabitation is
governed either by Article 147 or Article 148 of the Family
Code.11 Article 147 of the Family Code applies to union of
parties who are legally capacitated and not barred by any
impediment to contract marriage, but whose marriage is
nonetheless void, as in this case.
VII. Rules on Forfeiture of the Share of The
Guilty Spouse
FC. Art. 43 (2)– The absolute community of property or the
conjugal partnership, as the case may be, shall be dissolved
and liquidated, but if either spouse contracted said marriage in
bad faith, his or her share of the net profits of the community
property or conjugal partnership property shall be forfeited in
favor of the common children or, if there are none, the children
of the guilty spouse by a previous marriage or in default of
children, the innocent spouse;
FC. Art. 50 (1)– The effects provided for by paragraphs (2), (3),
(4) and (5) of Article 43 and by Article 44 shall also apply in the
proper cases to marriages which are declared ab initio or
annulled by final judgment under Articles 40 and 45.
FC. Art. 63 (2)– The absolute community or the conjugal
partnership shall be dissolved and liquidated but the offending
spouse shall have no right to any share of the net profits
earned by the absolute community or the conjugal partnership,
which shall be forfeited in accordance with the provisions of
Article 43(2);
FC. Art. 147 supra
FC. Art. 148– supra
Quiao v. Quiao
Since the trial court found the petitioner the guilty party, his
share from the net profits of the conjugal partnership is forfeited
in favor of the common children, pursuant to Article 63(2) of the
Family Code. Again, lest we be confused, like in the absolute
community regime, nothing will be returned to the guilty party in
the conjugal partnership regime, because there is no separate
property which may be accounted for in the guilty party's favor.
VIII. When There Is Delivery of Presumptive
Legitimes
FC. Art. 102 (5)– (5) The presumptive legitimes of the common
children shall be delivered upon partition, in accordance with
Article 51.
FC. Art. 43 (2)– The absolute community of property or the
conjugal partnership, as the case may be, shall be dissolved
and liquidated, but if either spouse contracted said marriage in
bad faith, his or her share of the net profits of the community
property or conjugal partnership property shall be forfeited in
favor of the common children or, if there are none, the children
of the guilty spouse by a previous marriage or in default of
children, the innocent spouse;
FC. Art. 50 (2)– The final judgment in such cases shall provide
for the liquidation, partition and distribution of the properties of
the spouses, the custody and support of the common children,
and the delivery of third presumptive legitimes, unless such
matters had been adjudicated in previous judicial proceedings.
FC. Art. 51– In said partition, the value of the presumptive
legitimes of all common children, computed as of the date of
the final judgment of the trial court, shall be delivered in cash,
property or sound securities, unless the parties, by mutual
agreement judicially approved, had already provided for such
matters.
The children or their guardian or the trustee of their property
may ask for the enforcement of the judgment.
The delivery of the presumptive legitimes herein prescribed
shall in no way prejudice the ultimate successional rights of the
children accruing upon the death of either of both of the
parents; but the value of the properties already received under
the decree of annulment or absolute nullity shall be considered
as advances on their legitime. (n)
FC. Art. 63 (2)– The absolute community or the conjugal
partnership shall be dissolved and liquidated but the offending
spouse shall have no right to any share of the net profits
earned by the absolute community or the conjugal partnership,
which shall be forfeited in accordance with the provisions of
Article 43(2);
FC. Art. 102– Upon dissolution of the absolute community
regime, the following procedure shall apply:
(1) An inventory shall be prepared, listing separately all the
properties of the absolute community and the exclusive
properties of each spouse.
(2) The debts and obligations of the absolute community shall
be paid out of its assets. In case of insufficiency of said assets,
the spouses shall be solidarily liable for the unpaid balance with
their separate properties in accordance with the provisions of
the second paragraph of Article 94.
(3) Whatever remains of the exclusive properties of the
spouses shall thereafter be delivered to each of them.
36
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
(4) The net remainder of the properties of the absolute
community shall constitute its net assets, which shall be divided
equally between husband and wife, unless a different
proportion or division was agreed upon in the marriage
settlements, or unless there has been a voluntary waiver of
such share provided in this Code. For purpose of computing the
net profits subject to forfeiture in accordance with Articles 43,
No. (2) and 63, No. (2), the said profits shall be the increase in
value between the market value of the community property at
the time of the celebration of the marriage and the market value
at the time of its dissolution.
(5) The presumptive legitimes of the common children shall be
delivered upon partition, in accordance with Article 51.
(6) Unless otherwise agreed upon by the parties, in the partition
of the properties, the conjugal dwelling and the lot on which it is
situated shall be adjudicated to the spouse with whom the
majority of the common children choose to remain. Children
below the age of seven years are deemed to have chosen the
mother, unless the court has decided otherwise. In case there
in no such majority, the court shall decide, taking into
consideration the best interests of said children. (n)
FC. Art. 129– Upon the dissolution of the conjugal partnership
regime, the following procedure shall apply:
(1) An inventory shall be prepared, listing separately all the
properties of the conjugal partnership and the exclusive
properties of each spouse.
(2) Amounts advanced by the conjugal partnership in payment
of personal debts and obligations of either spouse shall be
credited to the conjugal partnership as an asset thereof.
(3) Each spouse shall be reimbursed for the use of his or her
exclusive funds in the acquisition of property or for the value of
his or her exclusive property, the ownership of which has been
vested by law in the conjugal partnership.
(4) The debts and obligations of the conjugal partnership shall
be paid out of the conjugal assets. In case of insufficiency of
said assets, the spouses shall be solidarily liable for the unpaid
balance with their separate properties, in accordance with the
provisions of paragraph (2) of Article 121.
(5) Whatever remains of the exclusive properties of the
spouses shall thereafter be delivered to each of them.
(6) Unless the owner had been indemnified from whatever
source, the loss or deterioration of movables used for the
benefit of the family, belonging to either spouse, even due to
fortuitous event, shall be paid to said spouse from the conjugal
funds, if any.
(7) The net remainder of the conjugal partnership properties
shall constitute the profits, which shall be divided equally
between husband and wife, unless a different proportion or
division was agreed upon in the marriage settlements or unless
there has been a voluntary waiver or forfeiture of such share as
provided in this Code.
(8) The presumptive legitimes of the common children shall be
delivered upon the partition in accordance with Article 51.
(9) In the partition of the properties, the conjugal dwelling and
the lot on which it is situated shall, unless otherwise agreed
upon by the parties, be adjudicated to the spouse with whom
the majority of the common children choose to remain. Children
below the age of seven years are deemed to have chosen the
mother, unless the court has decided otherwise. In case there
is no such majority, the court shall decide, taking into
consideration the best interests of said children. (181a, 182a,
183a, 184a, 185a)
FC. Art. 135–Any of the following shall be considered sufficient
cause for judicial separation of property:
(1) That the spouse of the petitioner has been sentenced to a
penalty which carries with it civil interdiction;
(2) That the spouse of the petitioner has been judicially
declared an absentee;
(3) That loss of parental authority of the spouse of petitioner
has been decreed by the court;
(4) That the spouse of the petitioner has abandoned the latter
or failed to comply with his or her obligations to the family as
provided for in Article 101;
(5) That the spouse granted the power of administration in the
marriage settlements has abused that power; and
(6) That at the time of the petition, the spouses have been
separated in fact for at least one year and reconciliation is
highly improbable.
In the cases provided for in Numbers (1), (2) and (3), the
presentation of the final judgment against the guilty or absent
spouse shall be enough basis for the grant of the decree of
judicial separation of property. (191a)
Dino v. Dino
It is clear from Article 50 of the Family Code that Section 19(1)
of the Rule applies only to marriages which are declared void
ab initio or annulled by final judgment under Articles 40 and 45
of the Family Code. In short, Article 50 of the Family Code does
not apply to marriages which are declared void ab initio under
Article 36 of the Family Code, which should be declared void
without waiting for the liquidation of the properties of the
parties.
Yu v. Reyes-Carpio
Court En Banc Resolution in A.M. No. 02-11-10-SC or the Rule
on Declaration of Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages, particularly, Secs. 19 and 21
of the Rule clearly allow the reception of evidence on custody,
support, and property relations after the trial court renders a
decision granting the petition, or upon entry of judgment
granting the petition
IX. Legal Separation
1. Grounds for Legal Separation
FC. Art. 55– A petition for legal separation may be filed on any
of the following grounds:
(1) Repeated physical violence or grossly abusive conduct
directed against the petitioner, a common child, or a child of the
petitioner;
37
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
(2) Physical violence or moral pressure to compel the petitioner
to change religious or political affiliation;
(3) Attempt of respondent to corrupt or induce the petitioner, a
common child, or a child of the petitioner, to engage in
prostitution, or connivance in such corruption or inducement;
(4) Final judgment sentencing the respondent to imprisonment
of more than six years, even if pardoned;
(5) Drug addiction or habitual alcoholism of the respondent;
(6) Lesbianism or homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent bigamous
marriage, whether in the Philippines or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the petitioner;
or
(10) Abandonment of petitioner by respondent without
justifiable cause for more than one year.
For purposes of this Article, the term "child" shall include a child
by nature or by adoption. (9a)
RA 9262/VAWC. No specific Article. All you need to know is
that there is no 6 month cooling off period. Its that easy. You
cant believe it no?
Kalaw v. Fernandez
Article 36 of the Family Code must not be so strictly and too
literally read and applied given the clear intendment of the
drafters to adopt its enacted version of “less specificity”
obviously to enable “some resiliency in its application.” Instead,
every court should approach the issue of nullity “not on the
basis of a priori assumptions, predilections or generalizations,
but according to its own facts” in recognition of the verity that
no case would be on “all fours” with the next one in the field of
psychological incapacity as a ground for the nullity of marriage;
hence, every “trial judge must take pains in examining the
factual milieu and the appellate court must, as much as
possible, avoid substituting its own judgment for that of the trial
court.
BBB v. AAA
The plaintiff in an annulment case under Article 36 carries the
burden to prove the nullity of the marriage, however, the
respondent, as the defendant spouse, could also establish the
psychological incapacity of the plaintiff spouse if the respondent
raised the matter in her/his answer. The courts are justified in
declaring a marriage null and void under Article 36 of the
Family Code regardless of whether it is the petitioner or the
respondent who imputes the psychological incapacity to the
other as long as the imputation is fully substantiated with proof.
Indeed, psychological incapacity may exist in one party alone
or in both of them, and if psychological incapacity of either or
both is established, the marriage has to be deemed null and
void.
2. Defenses in Actions for Legal
Separation
FC. Art. 56–The petition for legal separation shall be denied on
any of the following grounds:
(1) Where the aggrieved party has condoned the offense or act
complained of;
(2) Where the aggrieved party has consented to the
commission of the offense or act complained of;
(3) Where there is connivance between the parties in the
commission of the offense or act constituting the ground for
legal separation;
(4) Where both parties have given ground for legal separation;
(5) Where there is collusion between the parties to obtain
decree of legal separation; or
(6) Where the action is barred by prescription. (100a)
Art. 60. No decree of legal separation shall be based upon a
stipulation of facts or a confession of judgment.
Lapuz v. Eufremio
An action for legal separation is abated by the death of the
plaintiff, even if property rights are involved. These rights are
mere effects of decree of separation, their source being the
decree itself; without the decree such rights do not come into
existence, so that before the finality of a decree, these claims
are merely rights in expectation. If death supervenes during the
pendency of the action, no decree can be forthcoming, death
producing a more radical and definitive separation; and the
expected consequential rights and claims would necessarily
remain unborn.
Matubis v. Paxedes
The first wife cannot sue the husband and second wife for
concubinage when she expressly gave her consent.
a. Consent
FC, Art 56 (2) Where the aggrieved party has consented to the
commission of the offense or act complained of;
NCC 100- The legal separation may be claimed only by the
innocent spouse, provided there has been no condonation of or
consent to the adultery or concubinage. Where both spouses
are offenders, a legal separation cannot be claimed by either of
them. Collusion between the parties to obtain legal separation
shall cause the dismissal of the petition. (3a, Act No. 2710)
Matubis v. Paxedes
The first wife cannot sue the husband and second wife for
concubinage when she expressly gave her consent.
People v. Sansano
Husband consented to adultery and therefore barred from
action because he gave wife freedom to do whatever she would
like to do.
People v. Scheneckenberger
>BIGAMY: celebration of second marriage while the first is still
existing—offense against civil status which may be prosecuted
at the instance of the state VS. CONCUBINAGE: mere
cohabitation by the husband with a woman who is not his wife;
offense against chastity and may be prosecuted only at the
instance of the offended party
>The document executed by and between the accused and the
38
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
complainant in which they agreed , while illegal for the purpose
for which it was executed , constitutes nevertheless, a valid
consent to the act of concubinage within the meaning of sec
344 of the RPC. There can be no doubt that by such
agreement, each party clearly intended to forego the illicit acts
of the other. Consent bars the offended party from instituting a
criminal prosecution in cases of adultery, concubinage,
seduction, abduction, rape and acts of lasciviousness—given
expressly or impliedly after the crime has
been committed
>PARDON: refers to the offense after its commission VS.
CONSENT: refer to offense prior to its commission
>Prior consent is as effective as subsequent consent to bar the
offended party from prosecuting the offense
b. Condonation
FC. Art. 56 (1)– The petition for legal separation shall be
denied on any of the following grounds:
(1) Where the aggrieved party has condoned the offense or act
complained of;
Ginez v. Bugayong
The act of searching for and sleeping with his wife constitutes
condonation because even if not yet proven, he had a belief in
mind that his wife was already unfaithful yet he still tried to take
her back.
c. Recrimination
FC. Art. 56 (4)– The petition for legal separation shall be
denied on any of the following grounds:
(4) Where both parties have given ground for legal separation;
Brown v. Yambao
Collusion in matrimonial cases being "the act of married
persons in procuring a divorce by mutual consent, whether by
preconcerted commission by one of a matrimonial offense, or
by failure, in pursuance of agreement to defend divorce
proceedings", it was legitimate for the Fiscal to bring to light
any circumstances that could give rise to the inference that the
wife's default was calculated, or agreed upon, to enable
appellant to obtain the decree of legal separation that he
sought without regard to the legal merits of his case. One such
circumstance is obviously the fact of Brown's cohabitation with
a woman other than his wife, since it bars him from claiming
legal separation by express provision of Article 100 of the new
Civil Code. Wherefore, such evidence of such misconduct,
were proper subject of inquiry as they may justifiably be
considered circumstantial evidence of collusion between the
spouses.
d. Collusion/Mutual Consent
FC. Art. 60– No decree of legal separation shall be based upon
a stipulation of facts or a confession of judgment.
In any case, the Court shall order the prosecuting attorney or
fiscal assigned to it to take steps to prevent collusion between
the parties and to take care that the evidence is not fabricated
or suppressed. (101a)
FC. Art. 56 (3), (5)– The petition for legal separation shall be
denied on any of the following grounds:
(3) Where there is connivance between the parties in the
commission of the offense or act constituting the ground for
legal separation;
(5) Where there is collusion between the parties to obtain
decree of legal separation;
(cf)
NCC. Art. 101– No decree of legal separation shall be
promulgated upon a stipulation of facts or by confession of
judgment.
(cf)
NCC. Art. 221 (3)– The following shall be void and of no effect:
(3) Every collusion to obtain a decree of legal separation, or of
annulment of marriage;
Brown v. Yambao
Supra.
Ocampo v. Florenciano
Admission to the investigating fiscal that she committed adultery,
in the existence of evidence of adultery other than such
confession, is not the confession of judgment disallowed by
Article 48 of the Family Code. What is prohibited is a confession
of judgment, a confession done in court or through a pleading.
Where there is evidence of the adultery independent of the
defendant’s statement agreeing to the legal separation, the
decree of separation should be granted since it would not be
based on the confession but upon the evidence presented by the
plaintiff. What the law prohibits is a judgment based exclusively
on defendant’s confession.
Mendoza v. Republic
Petitioner contends that the Court’s Resolution in A.M. No. 02-
11-10 rendered appeals by the OSG no longer required, and that
the appeal by the OSG was a mere superfluity that could be
deemed to have become functus officio if not totally disregarded.
The contention is grossly erroneous and unfounded. The
Resolution nowhere stated that appeals by the OSG were no
longer required. On the contrary, the Resolution explicitly
required the OSG to actively participate in all stages of the
proceedings.
The obvious intent of the Resolution was to require the OSG to
appear as counsel for the State in the capacity of a defensor
vinculi (i.e., defender of the marital bond) to oppose petitions for,
and to appeal judgments in favor of declarations of nullity of
marriage under Article 36 of the Family Code, thereby ensuring
that only the meritorious cases for the declaration of nullity of
marriages based on psychological incapacity-those sufficiently
evidenced by gravity, incurability and juridical antecedence-
would succeed.
Republic v. Encelan
In this case, Cesar's testimony failed to prove Lolita's alleged
psychological incapacity. Cesar testified on the dates when he
learned of Lolita's alleged affair and her subsequent
abandonment of their home, as well as his continued financial
support to her and their children even after he learned of the
affair, but he merely mentioned in passing Lolita's alleged affair
with Alvin and her abandonment of the conjugal dwelling.
39
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
Doctor’s belief that Lolita's refusal to go with Cesar abroad
signified a reluctance to work out a good marital relationship is a
mere generalization unsupported by facts and is, in fact, a rash
conclusion that this Court cannot support.
3. Court procedure in legal separation
FC Art. 58. An action for legal separation shall in no case be
tried before six months shall have elapsed since the filing of the
petition. (103)
FC Art. 59. No legal separation may be decreed unless the Court
has taken steps toward the reconciliation of the spouses and is
fully satisfied, despite such efforts, that reconciliation is highly
improbable. (n)
FC Art. 60. No decree of legal separation shall be based upon a
stipulation of facts or a confession of judgment.
RA 9262 SECTION 19. Legal Separation Cases. – In cases of
legal separation, where 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 on any application for a
protection order filed by the petitioner must be conducted within
the mandatory period specified in this Act.
No confession of judgment
FC Art. 48. In all cases of annulment or declaration of absolute
nullity of marriage, the Court shall order the prosecuting attorney
or fiscal assigned to it to appear on behalf of the State to take
steps to prevent collusion between the parties and to take care
that evidence is not fabricated or suppressed.
In the cases referred to in the preceding paragraph, no judgment
shall be based upon a stipulation of facts or confession of
judgment. (88a)
(cf)
NCC Art. 2035. No compromise upon the following questions
shall be valid:
(1) The civil status of persons;
(2) The validity of a marriage or a legal separation;
(3) Any ground for legal separation;
(4) Future support;
(5) The jurisdiction of courts;
(6) Future legitime. (1814a)
4. Effect of pendency of the petition
a. Cooling-off period
FC Art. 58. An action for legal separation shall in no case be
tried before six months shall have elapsed since the filing of the
petition. (103)
b. Right of consortium
FC Art. 61. After the filing of the petition for legal separation, the
spouses shall be entitled to live separately from each other.
c. Administration of property
FC Art. 61. The court, in the absence of a written agreement
between the spouses, shall designate either of them or a third
person to administer the absolute community or conjugal
partnership property. The administrator appointed by the court
shall have the same powers and duties as those of a guardian
under the Rules of Court. (104a)
d. Support and custody pendent
lite
FC Art. 49. During the pendency of the action and in the
absence of adequate provisions in a written agreement between
the spouses, the Court shall provide for the support of the
spouses and the custody and support of their common children.
The Court shall give paramount consideration to the moral and
material welfare of said children and their choice of the parent
with whom they wish to remain as provided to in Title IX. It shall
also provide for appropriate visitation rights of the other
parent. (n)
5. Effects of decree of legal separation
a. On personal relations
FC Art. 63. The decree of legal separation shall have the
following effects:
(1) The spouses shall be entitled to live separately from
each other, but the marriage bonds shall not be
severed;
(2) The absolute community or the conjugal partnership
shall be dissolved and liquidated but the offending
spouse shall have no right to any share of the net
profits earned by the absolute community or the
conjugal partnership, which shall be forfeited in
accordance with the provisions of Article 43(2);
(3) The custody of the minor children shall be awarded
to the innocent spouse, subject to the provisions of
Article 213 of this Code; and
(4) The offending spouse shall be disqualified from
inheriting from the innocent spouse by intestate
succession. Moreover, provisions in favor of the
offending spouse made in the will of the innocent
spouse shall be revoked by operation of law. (106a)
b. On the custody of children
FC Art. 63. The decree of legal separation shall have the
following effects:
(3) The custody of the minor children shall be awarded to the
innocent spouse, subject to the provisions of Article 213 of this
Code;
FC Art. 213. In case of separation of the parents, parental
authority shall be exercised by the parent designated by the
Court. The Court shall take into account all relevant
considerations, especially the choice of the child over seven
years of age, unless the parent chosen is unfit. (n)
c. On property relations
40
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
FC Art. 63. The decree of legal separation shall have the
following effects:
(2) The absolute community or the conjugal partnership shall be
dissolved and liquidated but the offending spouse shall have no
right to any share of the net profits earned by the absolute
community or the conjugal partnership, which shall be forfeited in
accordance with the provisions of Article 43(2);
Art. 64. After the finality of the decree of legal separation, the
innocent spouse may revoke the donations made by him or by
her in favor of the offending spouse, as well as the designation of
the latter as beneficiary in any insurance policy, even if such
designation be stipulated as irrevocable. The revocation of the
donations shall be recorded in the registries of property in the
places where the properties are located. Alienations, liens and
encumbrances registered in good faith before the recording of
the complaint for revocation in the registries of property shall be
respected. The revocation of or change in the designation of the
insurance beneficiary shall take effect upon written notification
thereof to the insured.
The action to revoke the donation under this Article must be
brought within five years from the time the decree of legal
separation become final.
FC Art. 102. Upon dissolution of the absolute community regime,
the following procedure shall apply:
(4) The net remainder of the properties of the absolute
community shall constitute its net assets, which shall be divided
equally between husband and wife, unless a different proportion
or division was agreed upon in the marriage settlements, or
unless there has been a voluntary waiver of such share provided
in this Code. For purpose of computing the net profits subject to
forfeiture in accordance with Articles 43, No. (2) and 63, No. (2),
the said profits shall be the increase in value between the market
value of the community property at the time of the celebration of
the marriage and the market value at the time of its dissolution.
FC Art. 129. Upon the dissolution of the conjugal partnership
regime, the following procedure shall apply:
(7) The net remainder of the conjugal partnership properties shall
constitute the profits, which shall be divided equally between
husband and wife, unless a different proportion or division was
agreed upon in the marriage settlements or unless there has
been a voluntary waiver or forfeiture of such share as provided in
this Code.
Quaio v. Quiao (2012)
Rita filed a complaint for legal separation against petitioner
Brigido. RTC rendered a decision declaring the legal separation
with Brigido’s share, however, of the net profits earned by the
conjugal partnership forfeited in favor of the common children
because Brigido is the offending spouse.
Since at the time of the dissolution of the spouses’ marriage the
operative law is already the Family Code, the same applies in
the instant case and the applicable law in so far as the liquidation
of the conjugal partnership assets and liabilities is concerned is
Article 129 of the Family Code in relation to Article 63(2) of the
Family Code.
Noveras v. Noveras (2014)
Trial court should have proceeded with the case as an action for
judicial separation of conjugal property based on Art. 135 of the
Family Code instead of converting it as a liquidation of the ACP.
It should have evaluated the grounds asserted by Leticia.
The trial court had categorically ruled that there was no
abandonment in this case to necessitate judicial separation of
properties under paragraph 4 of Article 135 of the Family Code.
Separation in fact for one year as a ground to grant a judicial
separation of property was not tackled in the trial court’s decision
because, the trial court erroneously treated the petition as
liquidation of the absolute community of properties.
The records of this case are replete with evidence that Leticia
and David had indeed separated for more than a year and that
reconciliation is highly improbable..
d. On support
FC Art. 198. During the proceedings for legal separation or for
annulment of marriage, and for declaration of nullity of marriage,
the spouses and their children shall be supported from the
properties of the absolute community or the conjugal partnership.
After the final judgment granting the petition, the obligation of
mutual support between the spouses ceases. However, in case
of legal separation, the court may order that the guilty spouse
shall give support to the innocent one, specifying the terms of
such order. (292a)
e. On the use of surname
FC Art. 372. When legal separation has been granted, the wife
shall continue using her name and surname employed before the
legal separation.
f. On hereditary rights
Art. 63. The decree of legal separation shall have the following
effects:
(4) The offending spouse shall be disqualified from inheriting
from the innocent spouse by intestate succession. Moreover,
provisions in favor of the offending spouse made in the will of the
innocent spouse shall be revoked by operation of law. (106a)
6. Reconciliation
FC Art. 65. If the spouses should reconcile, a corresponding joint
manifestation under oath duly signed by them shall be filed with
the court in the same proceeding for legal separation. (n)
7. Effects of Reconciliation
FC Art. 65, supra
FC Art. 66. The reconciliation referred to in the preceding Articles
shall have the following consequences:
(1) The legal separation proceedings, if still pending, shall
thereby be terminated at whatever stage; and
41
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
(2) The final decree of legal separation shall be set aside, but the
separation of property and any forfeiture of the share of the guilty
spouse already effected shall subsist, unless the spouses agree
to revive their former property regime.
The court's order containing the foregoing shall be recorded in
the proper civil registries. (108a)
FC Art. 67. The agreement to revive the former property regime
referred to in the preceding Article shall be executed under oath
and shall specify:
(1) The properties to be contributed anew to the restored regime;
(2) Those to be retained as separated properties of each spouse;
and
(3) The names of all their known creditors, their addresses and
the amounts owing to each.
The agreement of revival and the motion for its approval shall be
filed with the court in the same proceeding for legal separation,
with copies of both furnished to the creditors named therein.
After due hearing, the court shall, in its order, take measure to
protect the interest of creditors and such order shall be recorded
in the proper registries of properties.
The recording of the ordering in the registries of property shall
not prejudice any creditor not listed or not notified, unless the
debtor-spouse has sufficient separate properties to satisfy the
creditor's claim. (195a, 108a)
X. RIGHTS AND OBLIGATIONS OF SPOUSES
1. General rule and exceptions
FC Art. 68. The husband and wife are obliged to live together,
observe mutual love, respect and fidelity, and render mutual help
and support. (109a)
FC Art. 69. The husband and wife shall fix the family domicile. In
case of disagreement, the court shall decide.
The court may exempt one spouse from living with the other if
the latter should live abroad or there are other valid and
compelling reasons for the exemption. However, such exemption
shall not apply if the same is not compatible with the solidarity of
the family. (110a)
FC Art. 70. The spouses are jointly responsible for the support of
the family. The expenses for such support and other conjugal
obligations shall be paid from the community property and, in the
absence thereof, from the income or fruits of their separate
properties. In case of insufficiency or absence of said income or
fruits, such obligations shall be satisfied from the separate
properties. (111a)
FC Art. 71. The management of the household shall be the right
and the duty of both spouses. The expenses for such
management shall be paid in accordance with the provisions of
Article 70. (115a)
FC Art. 72. When one of the spouses neglects his or her duties
to the conjugal union or commits acts which tend to bring
danger, dishonor or injury to the other or to the family, the
aggrieved party may apply to the court for relief. (116a)
FC Art. 100. The separation in fact between husband and wife
shall not affect the regime of absolute community except that:
(1) The spouse who leaves the conjugal home or refuses to
live therein, without just cause, shall not have the right
to be supported;
(2) When the consent of one spouse to any transaction of
the other is required by law, judicial authorization shall
be obtained in a summary proceeding;
In the absence of sufficient community property, the separate
property of both spouses shall be solidarily liable for the support
of the family. The spouse present shall, upon proper petition in a
summary proceeding, be given judicial authority to administer or
encumber any specific separate property of the other spouse
and use the fruits or proceeds thereof to satisfy the latter's
share. (178a)
C Art. 127. The separation in fact between husband and wife
shall not affect the regime of conjugal partnership, except that:
(1) The spouse who leaves the conjugal home or refuses to
live therein, without just cause, shall not have the right
to be supported;
(2) When the consent of one spouse to any transaction of
the other is required by law, judicial authorization shall
be obtained in a summary proceeding;
In the absence of sufficient conjugal partnership property, the
separate property of both spouses shall be solidarily liable for the
support of the family. The spouse present shall, upon petition in
a summary proceeding, be given judicial authority to administer
or encumber any specific separate property of the other spouse
and use the fruits or proceeds thereof to satisfy the latter's
share. (178a)
FC Art. 101. If a spouse without just cause abandons the other
or fails to comply with his or her obligations to the family, the
aggrieved spouse may petition the court for receivership, for
judicial separation of property or for authority to be the sole
administrator of the absolute community, subject to such
precautionary conditions as the court may impose.
The obligations to the family mentioned in the preceding
paragraph refer to marital, parental or property relations.
A spouse is deemed to have abandoned the other when her or
she has left the conjugal dwelling without intention of returning.
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
presumed to have no intention of returning to the conjugal
dwelling. (178a)
NCC Art. 921. The following shall be sufficient causes for
disinheriting a spouse:
(4) When the spouse has given cause for legal separation;
Goitia v. Campos-Reuda, supra
The mere act of marriage creates an obligation on the part of the
husband to support his wife. This obligation is founded not so
much on the express or implied terms of the contract of marriage
as on the natural and legal duty of the husband; an obligation,
the enforcement of which is of such vital concern to the state
itself that the laws will not permit him to terminate it by his own
wrongful acts in driving his wife to seek protection in the parental
home. A judgment for separate maintenance is not due and
payable either as damages or as a penalty; nor is it a debt in the
strict legal sense of the term, but rather a judgment calling for the
performance of a duty made specific by the mandate of the
sovereign.
42
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
Arroyo v. Vasques-Arroyo (1921)
The obligation which the law imposes on the husband to
maintain the wife is a duty universally recognized in civil society
and is clearly expressed in articles 142 and 143 of the Civil code.
The enforcement of this obligation by the wife against the
husband is not conditioned upon the procurance of a divorce by
her, nor even upon the existence of a cause for divorce.
Accordingly it had been determined that where the wife is forced
to leave the matrimonial abode and to live apart from her
husband, she can, in this jurisdiction, compel him to make
provision for her separate maintenance; and he may be required
to pay the expenses, including attorney's fees, necessarily
incurred in enforcing such obligation. Nevertheless, the interests
of both parties as well as of society at large require that the
courts should move with caution in enforcing the duty to provide
for the separate maintenance of the wife, for this step involves a
recognition of the de facto separation of the spouses — a state
which is abnormal and fraught with grave danger to all
concerned. From this consideration it follows that provision
should not be made for separate maintenance in favor of the wife
unless it appears that the continued cohabitation of the pair has
become impossible and separation necessary from the fault of
the husband.
Ilusorio v. Bildner (2000)
Marital rights including coverture and living in conjugal dwelling
may not be enforced by the extra-ordinary writ of habeas corpus.
A writ of habeas corpus extends to all cases of illegal
confinement or detention, or by which the rightful custody of a
person is withheld from the one entitled thereto. It is available
where a person continuous unlawfully denied of one or more of
his constitutional freedom. A person with full mental capacity
coupled with the right choice may not be the subject of visitation
rights against free choice. The CA exceeded its authority when it
awarded visitation rights in a petition for habeas corpus where
Erlinda never even prayed for such right. No court is empowered
as a judicial authority to compel a husband to live with his wife..
2. Designation of Domicile
FC Art. 69. The husband and wife shall fix the family domicile. In
case of disagreement, the court shall decide.
The court may exempt one spouse from living with the other if
the latter should live abroad or there are other valid and
compelling reasons for the exemption. However, such exemption
shall not apply if the same is not compatible with the solidarity of
the family. (110a)
3. Joint management of family life
FC Art. 69. The husband and wife shall fix the family domicile. In
case of disagreement, the court shall decide.
The court may exempt one spouse from living with the other if
the latter should live abroad or there are other valid and
compelling reasons for the exemption. However, such exemption
shall not apply if the same is not compatible with the solidarity of
the family. (110a)
FC Art. 94. The absolute community of property shall be liable
for:
(9) Ante-nuptial debts of either spouse other than those falling
under paragraph (7) of this Article, the support of illegitimate
children of either spouse, and liabilities incurred by either spouse
by reason of a crime or a quasi-delict, in case of absence or
insufficiency of the exclusive property of the debtor-spouse, the
payment of which shall be considered as advances to be
deducted from the share of the debtor-spouse upon liquidation of
the community; and
If the community property is insufficient to cover the foregoing
liabilities, except those falling under paragraph (9), the spouses
shall be solidarily liable for the unpaid balance with their
separate properties. (161a, 162a, 163a, 202a-205a)
FC Art. 122. The payment of personal debts contracted by the
husband or the wife before or during the marriage shall not be
charged to the conjugal properties partnership except insofar as
they redounded to the benefit of the family.
Neither shall the fines and pecuniary indemnities imposed upon
them be charged to the partnership.
However, the payment of personal debts contracted by either
spouse before the marriage, that of fines and indemnities
imposed upon them, as well as the support of illegitimate
children of either spouse, may be enforced against the
partnership assets after the responsibilities enumerated in the
preceding Article have been covered, if the spouse who is bound
should have no exclusive property or if it should be insufficient;
but at the time of the liquidation of the partnership, such spouse
shall be charged for what has been paid for the purpose above-
mentioned. (163a)
FC Art. 146. Both spouses shall bear the family expenses in
proportion to their income, or, in case of insufficiency or default
thereof, to the current market value of their separate properties.
The liabilities of the spouses to creditors for family expenses
shall, however, be solidary. (215a)
4. Joint obligations to support
FC Art. 70. The spouses are jointly responsible for the support of
the family. The expenses for such support and other conjugal
obligations shall be paid from the community property and, in the
absence thereof, from the income or fruits of their separate
properties. In case of insufficiency or absence of said income or
fruits, such obligations shall be satisfied from the separate
properties. (111a)
FC Art. 194. Support comprises everything indispensable for
sustenance, dwelling, clothing, medical attendance, education
and transportation, in keeping with the financial capacity of the
family.
The education of the person entitled to be supported referred to
in the preceding paragraph shall include his schooling or training
for some profession, trade or vocation, even beyond the age of
majority. Transportation shall include expenses in going to and
from school, or to and from place of work. (290a)
FC Art. 94. The absolute community of property shall be liable
for:
(1) The support of the spouses, their common children, and
legitimate children of either spouse; however, the support of
illegitimate children shall be governed by the provisions of this
43
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
Code on Support;
Art. 122. The payment of personal debts contracted by the
husband or the wife before or during the marriage shall not be
charged to the conjugal properties partnership except insofar as
they redounded to the benefit of the family.
Neither shall the fines and pecuniary indemnities imposed upon
them be charged to the partnership.
However, the payment of personal debts contracted by either
spouse before the marriage, that of fines and indemnities
imposed upon them, as well as the support of illegitimate
children of either spouse, may be enforced against the
partnership assets after the responsibilities enumerated in the
preceding Article have been covered, if the spouse who is bound
should have no exclusive property or if it should be insufficient;
but at the time of the liquidation of the partnership, such spouse
shall be charged for what has been paid for the purpose above-
mentioned. (163a)
FC Art. 146, supra (at immediately preceeding sub-number)
5. The right to exercise a profession or
calling
Article 73 of the Family Code, as amended, is hereby further
amended to read as follows:
FC Art. 73. Either spouse may exercise any legitimate
profession, occupation, business or activity without the consent
of the other. The latter may object only on valid, serious, and
moral grounds.
In case of disagreement, the court shall decide whether or not:
(1) The objection is proper, and
(2) Benefit has accrued to the family prior to the objection
or thereafter. If the benefit accrued prior to the
objection, the resulting obligation shall be enforced
against the community property. If the benefit accrued
thereafter, such obligation shall be enforced against the
separate property of the spouse who has not obtained
consent.
The foregoing provisions shall not prejudice the rights of
creditors who acted in good faith.
6. Related rights/obligations
Republic v. Molina (1997)
Romero, J., separate opinion.
Rotal decisions continued applying the concept of incipient
psychological incapacity, "not only to sexual anomalies but to all
kinds of personality disorders that incapacitate a spouse or both
spouses from assuming or carrying out the essential obligations
of marriage. For marriage . . . is not merely cohabitation or the
right of the spouses to each others' body for heterosexual acts,
but is, in its totality, the right to the community of the whole of
life, i.e., the right to a developing. lifelong relationship.
XI. PROPERTY RELATIONS OF THE
SPOUSES
A. Marriage settlements
FC Art. 74. The property relationship between husband and wife
shall be governed in the following order:
(1) By marriage settlements executed before the marriage;
(2) By the provisions of this Code; and
(3) By the local custom. (118)
FC Art. 75. The future spouses may, in the marriage settlements,
agree upon the regime of absolute community, conjugal
partnership of gains, complete separation of property, or any
other regime. In the absence of a marriage settlement, or when
the regime agreed upon is void, the system of absolute
community of property as established in this Code shall
govern. (119a)
FC Art. 130. ... Should the surviving spouse contract a
subsequent marriage without compliance with the foregoing
requirements, a mandatory regime of complete separation of
property shall govern the property relations of the subsequent
marriage. (n)
FC Art. 103. … Should the surviving spouse contract a
subsequent marriage without compliance with the foregoing
requirements, a mandatory regime of complete separation of
property shall govern the property relations of the subsequent
marriage. (n)
1. Form & registration requirement
FC Art. 77. The marriage settlements and any modification
thereof shall be in writing, signed by the parties and executed
before the celebration of the marriage. They shall not prejudice
third persons unless they are registered in the local civil registry
where the marriage contract is recorded as well as in the proper
registries of properties. (122a)
NCC Art. 1357. If the law requires a document or other special
form, as in the acts and contracts enumerated in the following
article, the contracting parties may compel each other to observe
that form, once the contract has been perfected. This right may
be exercised simultaneously with the action upon the contract.
(1279a)
NCC Art. 1358. The following must appear in a public document:
(1) Acts and contracts which have for their object the
creation, transmission, modification or extinguishment
of real rights over immovable property; sales of real
property or of an interest therein a governed by Articles
1403, No. 2, and 1405;
(2) The cession, repudiation or renunciation of hereditary
rights or of those of the conjugal partnership of gains;
(3) The power to administer property, or any other power
which has for its object an act appearing or which
should appear in a public document, or should prejudice
a third person;
(4) The cession of actions or rights proceeding from an act
appearing in a public document.
All other contracts where the amount involved exceeds five
hundred pesos must appear in writing, even a private one. But
44
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
sales of goods, chattels or things in action are governed by
Articles, 1403, No. 2 and 1405. (1280a)
NCC Art. 709. The titles of ownership, or of other rights over
immovable property, which are not duly inscribed or annotated in
the Registry of Property shall not prejudice third persons. (606)
Valencia v. Locquiao (2003)
Unlike ordinary donations, donations propter nuptias are not
governed by the same rules as regards the formal requisite.
Under NCC, the donation must be in writing to be enforceable
and acceptance is necessary although it need not be expressed
for the donation to be valid (Article 129). Implied acceptance is
sufficient. The law applicable here is the old Civil Code where it
is irrelevant whether or not the donees accepted the donation for
its validity
2. Donations propter nuptias
FC Art. 81. Everything stipulated in the settlements or contracts
referred to in the preceding articles in consideration of a future
marriage, including donations between the prospective spouses
made therein, shall be rendered void if the marriage does not
take place. However, stipulations that do not depend upon the
celebration of the marriages shall be valid. (125a)
Cf. FC Art. 86. A donation by reason of marriage may be
revoked by the donor in the following cases:
(1) If the marriage is not celebrated or judicially declared void ab
initio except donations made in the marriage settlements, which
shall be governed by Article 81;
Art. 82. Donations by reason of marriage are those which are
made before its celebration, in consideration of the same, and in
favor of one or both of the future spouses. (126)
FC Art. 83. These donations are governed by the rules on
ordinary donations established in Title III of Book III of the Civil
Code, insofar as they are not modified by the following
articles. (127a)
FC Art. 84. If the future spouses agree upon a regime other than
the absolute community of property, they cannot donate to each
other in their marriage settlements more than one-fifth of their
present property. Any excess shall be considered void.
Donations of future property shall be governed by the provisions
on testamentary succession and the formalities of wills. (130a)
FC Art. 85. Donations by reason of marriage of property subject
to encumbrances shall be valid. In case of foreclosure of the
encumbrance and the property is sold for less than the total
amount of the obligation secured, the donee shall not be liable
for the deficiency. If the property is sold for more than the total
amount of said obligation, the donee shall be entitled to the
excess. (131a)
FC Art. 86. A donation by reason of marriage may be revoked by
the donor in the following cases:
(1) If the marriage is not celebrated or judicially declared
void ab initio except donations made in the marriage
settlements, which shall be governed by Article 81
(2) When the marriage takes place without the consent of
the parents or guardian, as required by law;
(3) When the marriage is annulled, and the donee acted in
bad faith;
(4) Upon legal separation, the donee being the guilty
spouse;
(5) If it is with a resolutory condition and the condition is
complied with;
(6) When the donee has committed an act of ingratitude as
specified by the provisions of the Civil Code on
donations in general. (132a)
FC Art. 87. Every donation or grant of gratuitous advantage,
direct or indirect, between the spouses during the marriage shall
be void, except moderate gifts which the spouses may give each
other on the occasion of any family rejoicing. The prohibition
shall also apply to persons living together as husband and wife
without a valid marriage. (133a)
NCC Art. 748. The donation of a movable may be made orally or
in writing.
An oral donation requires the simultaneous delivery of the thing
or of the document representing the right donated.
If the value of the personal property donated exceeds five
thousand pesos, the donation and the acceptance shall be made
in writing, otherwise, the donation shall be void. (632a)
NCC Art. 749. In order that the donation of an immovable may
be valid, it must be made in a public document, specifying
therein the property donated and the value of the charges which
the donee must satisfy.
The acceptance may be made in the same deed of donation or
in a separate public document, but it shall not take effect unless
it is done during the lifetime of the donor.
If the acceptance is made in a separate instrument, the donor
shall be notified thereof in an authentic form, and this step shall
be noted in both instruments. (633)
NCC Art. 761. In the cases referred to in the preceding article,
the donation shall be revoked or reduced insofar as it exceeds
the portion that may be freely disposed of by will, taking into
account the whole estate of the donor at the time of the birth,
appearance or adoption of a child. (n)
NCC Art. 765. The donation may also be revoked at the instance
of the donor, by reason of ingratitude in the following cases:
(1) If the donee should commit some offense against the
person, the honor or the property of the donor, or of his
wife or children under his parental authority;
(2) (2) If the donee imputes to the donor any criminal
offense, or any act involving moral turpitude, even
though he should prove it, unless the crime or the act
has been committed against the donee himself, his wife
or children under his authority;
(3) (3) If he unduly refuses him support when the donee is
legally or morally bound to give support to the
donor. (648a)
FC Art. 50. The effects provided for by paragraphs (2), (3), (4)
and (5) of Article 43 and by Article 44 shall also apply in the
proper cases to marriages which are declared ab initio or
annulled by final judgment under Articles 40 and 45.
The final judgment in such cases shall provide for the liquidation,
partition and distribution of the properties of the spouses, the
45
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
custody and support of the common children, and the delivery of
third presumptive legitimes, unless such matters had been
adjudicated in previous judicial proceedings.
All creditors of the spouses as well as of the absolute community
or the conjugal partnership shall be notified of the proceedings
for liquidation.
In the partition, the conjugal dwelling and the lot on which it is
situated, shall be adjudicated in accordance with the provisions
of Articles 102 and 129.
FC Art. 43. The termination of the subsequent marriage referred
to in the preceding Article shall produce the following effects:
(3) Donations by reason of marriage shall remain valid, except
that if the donee contracted the marriage in bad faith, such
donations made to said donee are revoked by operation of law;
FC Art. 48. In all cases of annulment or declaration of absolute
nullity of marriage, the Court shall order the prosecuting attorney
or fiscal assigned to it to appear on behalf of the State to take
steps to prevent collusion between the parties and to take care
that evidence is not fabricated or suppressed.
In the cases referred to in the preceding paragraph, no judgment
shall be based upon a stipulation of facts or confession of
judgment. (88a)
FC Art. 44. If both spouses of the subsequent marriage acted in
bad faith, said marriage shall be void ab initio and all donations
by reason of marriage and testamentary dispositions made by
one in favor of the other are revoked by operation of law. (n)
FC Art. 61. After the filing of the petition for legal separation, the
spouses shall be entitled to live separately from each other.
The court, in the absence of a written agreement between the
spouses, shall designate either of them or a third person to
administer the absolute community or conjugal partnership
property. The administrator appointed by the court shall have the
same powers and duties as those of a guardian under the Rules
of Court. (104a)
Solis v. Solis
In donations propter nuptias, the marriage is “really a
consideration, but not necessary to give birth to the obligation”.
Marriage is a resolutory condition not a condition necessary.
Mateo v. Lagua
DPN may be reduced for being inofficious.
3. Parties to a marriage settlement
FC Art. 78. A minor who according to law may contract
marriage may also execute his or her marriage settlements, but
they shall be valid only if the persons designated in Article 14 to
give consent to the marriage are made parties to the
agreement, subject to the provisions of Title IX of this
Code. (120a)
FC Art. 79. For the validity of any marriage settlement
executed by a person upon whom a sentence of civil
interdiction has been pronounced or who is subject to any other
disability, it shall be indispensable for the guardian appointed
by a competent court to be made a party thereto. (123a)
FC Art. 135 (1). Any of the following shall be considered
sufficient cause for judicial separation of property:
(1) That the spouse of the petitioner has been sentenced to a
penalty which carries with it civil interdiction;
NCC Art. 38. Minority, insanity or imbecility, the state of being a
deaf-mute, prodigality and civil interdiction are mere restrictions
on capacity to act, and do not exempt the incapacitated person
from certain obligations, as when the latter arise from his acts
or from property relations, such as easements. (32a)
NCC Art. 39. The following circumstances, among others,
modify or limit capacity to act: age, insanity, imbecility, the state
of being a deaf-mute, penalty, prodigality, family relations,
alienage, absence, insolvency and trusteeship. The
consequences of these circumstances are governed in this
Code, other codes, the Rules of Court, and in special laws.
Capacity to act is not limited on account of religious belief or
political opinion.
RPC Art. 34. Civil interdiction. — Civil interdiction shall deprive
the offender during the time of his sentence of the rights of
parental authority, or guardianship, either as to the person or
property of any ward, of marital authority, of the right to manage
his property and of the right to dispose of such property by any
act or any conveyance inter vivos.
4. Which law governs property relations
FC Art. 80. In the absence of a contrary stipulation in a
marriage settlement, the property relations of the spouses shall
be governed by Philippine laws, regardless of the place of the
celebration of the marriage and their residence.
This rule shall not apply:
(1) Where both spouses are aliens;
(2) With respect to the extrinsic validity of contracts affecting
property not situated in the Philippines and executed in the
country where the property is located; and
(3) With respect to the extrinsic validity of contracts entered into
in the Philippines but affecting property situated in a foreign
country whose laws require different formalities for its extrinsic
validity. (124a)
NCC Art. 16. Real property as well as personal property is
subject to the law of the country where it is stipulated.
However, intestate and testamentary successions, both with
respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person
whose succession is under consideration, whatever may be the
nature of the property and regardless of the country wherein
said property may be found. (10a)
NCC Art. 17. The forms and solemnities of contracts, wills, and
other public instruments shall be governed by the laws of the
country in which they are executed.
When the acts referred to are executed before the diplomatic or
consular officials of the Republic of the Philippines in a foreign
country, the solemnities established by Philippine laws shall be
observed in their execution.
46
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
Prohibitive laws concerning persons, their acts or property, and
those which have, for their object, public order, public policy
and good customs shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions
agreed upon in a foreign country. (11a)
5. Void donations by the spouses
FC Art. 87. Every donation or grant of gratuitous advantage,
direct or indirect, between the spouses during the marriage
shall be void, except moderate gifts which the spouses may
give each other on the occasion of any family rejoicing. The
prohibition shall also apply to persons living together as
husband and wife without a valid marriage. (133a)
Matabuena v. Cervantes
Ban on donation between spouses applies to common law
marriage for policy considerations. Reason and morality alike
demand that the disabilities attached to marriage should
likewise attach to concubinage.
Arcaba v. Tabancura
Cohabitation is the public assumption by a man and a woman
of the marital relation, and dwelling together as man and wife,
thereby holding themselves out to the public as such. Thus,
donations between cohabiting parties are considered void,
since they are considered as living together as husband and
wife without a valid marriage.
B. Absolute Community of Property
FC Art. 88. The absolute community of property between
spouses shall commence at the precise moment that the
marriage is celebrated. Any stipulation, express or implied, for
the commencement of the community regime at any other time
shall be void. (145a)
FC Art. 91. Unless otherwise provided in this Chapter or in the
marriage settlements, the community property shall consist of
all the property owned by the spouses at the time of the
celebration of the marriage or acquired thereafter. (197a)
FC Art. 92. The following shall be excluded from the
community property:
(1) Property acquired during the marriage by gratuitous title by
either spouse, and the fruits as well as the income thereof, if
any, unless it is expressly provided by the donor, testator or
grantor that they shall form part of the community property;
(2) Property for personal and exclusive use of either spouse.
However, jewelry shall form part of the community property;
(3) Property acquired before the marriage by either spouse who
has legitimate descendants by a former marriage, and the fruits
as well as the income, if any, of such property. (201a)
FC Art. 93. Property acquired during the marriage is presumed
to belong to the community, unless it is proved that it is one of
those excluded therefrom. (160)
1. When applicable
FC Art. 75. The future spouses may, in the marriage
settlements, agree upon the regime of absolute community,
conjugal partnership of gains, complete separation of property,
or any other regime. In the absence of a marriage settlement,
or when the regime agreed upon is void, the system of absolute
community of property as established in this Code shall govern.
(119a)
FC Art. 103 par. 3. Should the surviving spouse contract a
subsequent marriage without compliance with the foregoing
requirements, a mandatory regime of complete separation of
property shall govern the property relations of the subsequent
marriage.
FC Art. 130 par. 3. Same as FC 103, but under CPG
FC Art. 92 (3). The following shall be excluded from the
community property:
(3) Property acquired before the marriage by either spouse who
has legitimate descendants by a former marriage, and the fruits
as well as the income, if any, of such property. (201a)
2. Commencement
FC Art. 88. The absolute community of property between
spouses shall commence at the precise moment that the
marriage is celebrated. Any stipulation, express or implied, for
the commencement of the community regime at any other time
shall be void. (145a)
3. Waiver during marriage
FC Art. 89. No waiver of rights, shares and effects of the
absolute community of property during the marriage can be
made except in case of judicial separation of property.
When the waiver takes place upon a judicial separation of
property, or after the marriage has been dissolved or annulled,
the same shall appear in a public instrument and shall be
recorded as provided in Article 77. The creditors of the spouse
who made such waiver may petition the court to rescind the
waiver to the extent of the amount sufficient to cover the
amount of their credits. (146a)
4. Waiver after marriage
FC Art. 89 par. 2. When the waiver takes place upon a judicial
separation of property, or after the marriage has been dissolved
or annulled, the same shall appear in a public instrument and
shall be recorded as provided in Article 77. The creditors of the
spouse who made such waiver may petition the court to rescind
the waiver to the extent of the amount sufficient to cover the
amount of their credits. (146a)
cf. NCC Art. 168. The wife may, by express authority of the
husband embodied in a public instrument, administer the
conjugal partnership property. (n)
5. Suppletory rules:
Co-ownership
FC Art. 90. The provisions on co-ownership shall apply to the
absolute community of property between the spouses in all
matters not provided for in this Chapter. (n)
47
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
(cf)
NCC Art. 484. There is co-ownership whenever the ownership
of an undivided thing or right belongs to different persons.
In default of contracts, or of special provisions, co-ownership
shall be governed by the provisions of this Title. (392)
NCC Art. 485. The share of the co-owners, in the benefits as
well as in the charges, shall be proportional to their respective
interests. Any stipulation in a contract to the contrary shall be
void.
The portions belonging to the co-owners in the co-ownership
shall be presumed equal, unless the contrary is proved. (393a)
NCC Art. 486. Each co-owner may use the thing owned in
common, provided he does so in accordance with the purpose
for which it is intended and in such a way as not to injure the
interest of the co-ownership or prevent the other co-owners
from using it according to their rights. The purpose of the co-
ownership may be changed by agreement, express or implied.
(394a)
NCC Art. 487. Any one of the co-owners may bring an action in
ejectment. (n)
NCC Art. 488. Each co-owner shall have a right to compel the
other co-owners to contribute to the expenses of preservation
of the thing or right owned in common and to the taxes. Any
one of the latter may exempt himself from this obligation by
renouncing so much of his undivided interest as may be
equivalent to his share of the expenses and taxes. No such
waiver shall be made if it is prejudicial to the co-ownership.
(395a)
NCC Art. 489. Repairs for preservation may be made at the
will of one of the co-owners, but he must, if practicable, first
notify his co-owners of the necessity for such repairs. Expenses
to improve or embellish the thing shall be decided upon by a
majority as determined in Article 492. (n)
NCC Art. 490. Whenever the different stories of a house
belong to different owners, if the titles of ownership do not
specify the terms under which they should contribute to the
necessary expenses and there exists no agreement on the
subject, the following rules shall be observed:
(1) The main and party walls, the roof and the other things used
in common, shall be preserved at the expense of all the owners
in proportion to the value of the story belonging to each;
(2) Each owner shall bear the cost of maintaining the floor of
his story; the floor of the entrance, front door, common yard
and sanitary works common to all, shall be maintained at the
expense of all the owners pro rata;
(3) The stairs from the entrance to the first story shall be
maintained at the expense of all the owners pro rata, with the
exception of the owner of the ground floor; the stairs from the
first to the second story shall be preserved at the expense of
all, except the owner of the ground floor and the owner of the
first story; and so on successively. (396)
NCC Art. 491. None of the co-owners shall, without the
consent of the others, make alterations in the thing owned in
common, even though benefits for all would result therefrom.
However, if the withholding of the consent by one or more of
the co-owners is clearly prejudicial to the common interest, the
courts may afford adequate relief. (397a)
NCC Art. 492. For the administration and better enjoyment of
the thing owned in common, the resolutions of the majority of
the co-owners shall be binding.
There shall be no majority unless the resolution is approved by
the co-owners who represent the controlling interest in the
object of the co-ownership.
Should there be no majority, or should the resolution of the
majority be seriously prejudicial to those interested in the
property owned in common, the court, at the instance of an
interested party, shall order such measures as it may deem
proper, including the appointment of an administrator.
Whenever a part of the thing belongs exclusively to one of the
co-owners, and the remainder is owned in common, the
preceding provision shall apply only to the part owned in
common. (398)
NCC Art. 493. Each co-owner shall have the full ownership of
his part and of the fruits and benefits pertaining thereto, and he
may therefore alienate, assign or mortgage it, and even
substitute another person in its enjoyment, except when
personal rights are involved. But the effect of the alienation or
the mortgage, with respect to the co-owners, shall be limited to
the portion which may be alloted to him in the division upon the
termination of the co-ownership. (399)
NCC Art. 494. No co-owner shall be obliged to remain in the
co-ownership. Each co-owner may demand at any time the
partition of the thing owned in common, insofar as his share is
concerned.
Nevertheless, an agreement to keep the thing undivided for a
certain period of time, not exceeding ten years, shall be valid.
This term may be extended by a new agreement.
A donor or testator may prohibit partition for a period which
shall not exceed twenty years.
Neither shall there be any partition when it is prohibited by law.
No prescription shall run in favor of a co-owner or co-heir
against his co-owners or co-heirs so long as he expressly or
impliedly recognizes the co-ownership. (400a)
NCC Art. 495. Notwithstanding the provisions of the preceding
article, the co-owners cannot demand a physical division of the
thing owned in common, when to do so would render it
unserviceable for the use for which it is intended. But the co-
ownership may be terminated in accordance with Article 498.
(401a)
NCC Art. 496. Partition may be made by agreement between
the parties or by judicial proceedings. Partition shall be
governed by the Rules of Court insofar as they are consistent
with this Code. (402)
NCC Art. 497. The creditors or assignees of the co-owners
may take part in the division of the thing owned in common and
object to its being effected without their concurrence. But they
cannot impugn any partition already executed, unless there has
been fraud, or in case it was made notwithstanding a formal
opposition presented to prevent it, without prejudice to the right
of the debtor or assignor to maintain its validity. (403)
NCC Art. 498. Whenever the thing is essentially indivisible and
48
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
the co-owners cannot agree that it be allotted to one of them
who shall indemnify the others, it shall be sold and its proceeds
distributed. (404)
NCC Art. 499. The partition of a thing owned in common shall
not prejudice third persons, who shall retain the rights of
mortgage, servitude or any other real rights belonging to them
before the division was made. Personal rights pertaining to third
persons against the co-ownership shall also remain in force,
notwithstanding the partition. (405)
NCC Art. 500. Upon partition, there shall be a mutual
accounting for benefits received and reimbursements for
expenses made. Likewise, each co-owner shall pay for
damages caused by reason of his negligence or fraud. (n)
NCC Art. 501. Every co-owner shall, after partition, be liable for
defects of title and quality of the portion assigned to each of the
other co-owners. (n)
6. What constitutes ACP ~MEMORIIIZE~
FC Art. 91. Unless otherwise provided in this Chapter or in the
marriage settlements, the community property shall consist of
all the property owned by the spouses at the time of the
celebration of the marriage or acquired thereafter. (197a)
i. All property at time of marriage
ii. Property acquired subsequently
iii. Winnings from gambling
FC7 as of NCC Art. 164. Whatever may be lost during the
marriage in any kind of gambling, betting or game, whether
permitted or prohibited by law, shall be borne by the loser, and
shall not be charged to the conjugal partnership. (1411a)
iv. Presumption of ACP
FC Art. 93. Property acquired during the marriage is presumed
to belong to the community, unless it is proved that it is one of
those excluded therefrom. (160)
cf. NCC Art. 160. All property of the marriage is presumed to
belong to the conjugal partnership, unless it be proved that it
pertains exclusively to the husband or to the wife. (1407)
Pana v. Juanite8
Parties that are married before the Family Code took effect are
presumed, absent any evidence to the contrary, to be married
under the regime of conjugal partnership of gains.
Muller v. Muller
Filipina with a foreign spouse bought a parcel of land. The
presumption that the funds used belong to the community
property made the sale void, because such will be a
circumvention of the Constitutional prohibition of aliens owning
land in the country
8
Presumption of CPG, but sa presumption of ACP nakalaga sa outline
ko, probably a mistake in the syllabus
Beumer v. Amores
Same situation as Muller. SC refused to grant reimbursement
to foreign spouse, even of the equity grounds because of the
unconstitutionality of the sale
7. What is excluded from ACP
Abrenica v. Abrenica
Art. 92, par. (3) of the Family Code excludes from the
community property the property acquired before the marriage
of a spouse who has legitimate descendants by a former
marriage; and the fruits and the income, if any, of that property.
8. Charges upon ACP
i. Family expenses (cf. the ff Arts:)
FC Art. 100 (3). The separation in fact between husband and
wife shall not affect the regime of absolute community except
that:
(3) In the absence of sufficient community property, the
separate property of both spouses shall be solidarily liable for
the support of the family. The spouse present shall, upon
proper petition in a summary proceeding, be given judicial
authority to administer or encumber any specific separate
property of the other spouse and use the fruits or proceeds
thereof to satisfy the latter's share. (178a)
FC Art. 121 (5). The conjugal partnership shall be liable for:
(5) All taxes and expenses for mere preservation made during
the marriage upon the separate property of either spouse;
FC Art. 94 (4) and (5). The absolute community of property
shall be liable for:
(4) All taxes, liens, charges and expenses, including major or
minor repairs, upon the community property;
(5) All taxes and expenses for mere preservation made during
marriage upon the separate property of either spouse used by
the family;
ii. Debts of spouses
FC Art. 94 (2) and (3). The absolute community of property
shall be liable for:
(2) All debts and obligations contracted during the marriage by
the designated administrator-spouse for the benefit of the
community, or by both spouses, or by one spouse with the
consent of the other;
(3) Debts and obligations contracted by either spouse without
the consent of the other to the extent that the family may have
been benefited;
iii. Subsidiary liabilities
FC Art. 94 (9). The absolute community of property shall be
liable for:
(9) Ante-nuptial debts of either spouse other than those falling
under paragraph (7) of this Article, the support of illegitimate
children of either spouse, and liabilities incurred by either
spouse by reason of a crime or a quasi-delict, in case of
absence or insufficiency of the exclusive property of the debtor-
spouse, the payment of which shall be considered as advances
to be deducted from the share of the debtor-spouse upon
liquidation of the community;
49
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
Buado v. CA
Liabilities incurred by either spouse by reason of a crime or
quasi-delict are chargeable to the absolute community of
property, in the absence or insufficiency of the exclusive
property of the debtor-spouse.
iv. Sole obligations of a spouse
FC Art. 94. The absolute community of property shall be liable
for:
(1) The support of the spouses, their common children, and
legitimate children of either spouse; however, the support of
illegitimate children shall be governed by the provisions of this
Code on Support;
(2) All debts and obligations contracted during the marriage by
the designated administrator-spouse for the benefit of the
community, or by both spouses, or by one spouse with the
consent of the other;
(3) Debts and obligations contracted by either spouse without
the consent of the other to the extent that the family may have
been benefited;
(4) All taxes, liens, charges and expenses, including major or
minor repairs, upon the community property;
(5) All taxes and expenses for mere preservation made during
marriage upon the separate property of either spouse used by
the family;
(6) Expenses to enable either spouse to commence or
complete a professional or vocational course, or other activity
for self-improvement;
(7) Ante-nuptial debts of either spouse insofar as they have
redounded to the benefit of the family;
(8) The value of what is donated or promised by both spouses
in favor of their common legitimate children for the exclusive
purpose of commencing or completing a professional or
vocational course or other activity for self-improvement;
(9) Ante-nuptial debts of either spouse other than those falling
under paragraph (7) of this Article, the support of illegitimate
children of either spouse, and liabilities incurred by either
spouse by reason of a crime or a quasi-delict, in case of
absence or insufficiency of the exclusive property of the debtor-
spouse, the payment of which shall be considered as advances
to be deducted from the share of the debtor-spouse upon
liquidation of the community; and
(10) Expenses of litigation between the spouses unless the suit
is found to be groundless.
If the community property is insufficient to cover the foregoing
liabilities, except those falling under paragraph (9), the spouses
shall be solidarily liable for the unpaid balance with their
separate properties. (161a, 162a, 163a, 202a-205a)
v. Gambling losses
FC Art. 95. Whatever may be lost during the marriage in any
game of chance, betting, sweepstakes, or any other kind of
gambling, whether permitted or prohibited by law, shall be
borne by the loser and shall not be charged to the community
but any winnings therefrom shall form part of the community
property. (164a)
vi. Other charges. FC Art. 94, supra
Borlongan v. BDO9
No presumption that a contract of surety benefits the conjugal
partnership. Benefit that redounded to the CPG must be proved
9. Administration and enjoyment of ACP
i. Joint administration
FC Art. 96. The administration and enjoyment of the
community property shall belong to both spouses jointly. In
case of disagreement, the husband's decision shall prevail,
subject to recourse to the court by the wife for proper remedy,
which must be availed of within five years from the date of the
contract implementing such decision.
In the event that one spouse is incapacitated or otherwise
unable to participate in the administration of the common
properties, the other spouse may assume sole powers of
administration. These powers do not include disposition or
encumbrance without authority of the court or the written
consent of the other spouse. In the absence of such authority
or consent, the disposition or encumbrance shall be void.10
However, the transaction shall be construed as a continuing
offer on the part of the consenting spouse and the third person,
and may be perfected as a binding contract upon the
acceptance by the other spouse or authorization by the court
before the offer is withdrawn by either or both offerors. (206a)
FC Art. 90. The provisions on co-ownership shall apply to the
absolute community of property between the spouses in all
matters not provided for in this Chapter.(n)
Dar v. Legasto
The signature of one spouse in a Certificate of Non-Forum
Shopping is enough, when they are sued jointly over a property
in which they have a common interest.
Cotoner v. Revilla
Wife’s signature in a Kasulatan nng Bilihan ng Lupa would not
bind the property because it was made without the consent of
her husband. The Court cited the ff. reasons for this ruling:
 The transaction was made before the effectivity of the FC.
Thus, CC 165 and 172, which give the husband the
primary authority to bind the conjugal partnership, control.
 The second and third sentences of FC 96, par. 2. provide
that a spouse’s powers of sole administration do not
include disposition or encumbrance of the properiy.
ii. Sole administration
1. Incapacity – no court order
FC Art. 96 par. 2. In the event that one spouse is incapacitated
or otherwise unable to participate in the administration of the
common properties, the other spouse may assume sole powers
of administration. These powers do not include disposition or
encumbrance without authority of the court or the written
consent of the other spouse. In the absence of such authority
or consent, the disposition or encumbrance shall be void.
However, the transaction shall be construed as a continuing
offer on the part of the consenting spouse and the third person,
9
No ACP issues, so this should be under CPG, but yun, it’s under ACP
in my outline, so I’ll leave this here lol
10
These are the sentences emphasized by the Court in Cotoner v.
Revilla
50
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
and may be perfected as a binding contract upon the
acceptance by the other spouse or authorization by the court
before the offer is withdrawn by either or both offerors.
2. Separation in fact – with court order
FC Art. 100 (3). The separation in fact between husband and
wife shall not affect the regime of absolute community except
that:
(3) In the absence of sufficient community property, the
separate property of both spouses shall be solidarily liable for
the support of the family. The spouse present shall, upon
proper petition in a summary proceeding, be given judicial
authority to administer or encumber any specific separate
property of the other spouse and use the fruits or proceeds
thereof to satisfy the latter's share. (178a)
3. Abandonment – with court order
FC Art. 101. If a spouse without just cause abandons the other
or fails to comply with his or her obligations to the family, the
aggrieved spouse may petition the court for receivership, for
judicial separation of property or for authority to be the sole
administrator of the absolute community, subject to such
precautionary conditions as the court may impose.
The obligations to the family mentioned in the preceding
paragraph refer to marital, parental or property relations.
A spouse is deemed to have abandoned the other when her or
she has left the conjugal dwelling without intention of returning.
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
presumed to have no intention of returning to the conjugal
dwelling. (178a)
4. Pendency of legal separation
proceedings – with court order
FC Art. 61. After the filing of the petition for legal separation,
the spouses shall be entitled to live separately from each other.
The court, in the absence of a written agreement between the
spouses, shall designate either of them or a third person to
administer the absolute community or conjugal partnership
property. The administrator appointed by the court shall have
the same powers and duties as those of a guardian under the
Rules of Court. (104a)
iii. Disposition and encumbrance
FC Art. 96. The administration and enjoyment of the community
property shall belong to both spouses jointly. In case of
disagreement, the husband's decision shall prevail, subject to
recourse to the court by the wife for proper remedy, which must
be availed of within five years from the date of the contract
implementing such decision.
In the event that one spouse is incapacitated or otherwise unable
to participate in the administration of the common properties, the
other spouse may assume sole powers of administration. These
powers do not include disposition or encumbrance without
authority of the court or the written consent of the other spouse.
In the absence of such authority or consent, the disposition or
encumbrance shall be void. However, the transaction shall be
construed as a continuing offer on the part of the consenting
spouse and the third person, and may be perfected as a binding
contract upon the acceptance by the other spouse or
authorization by the court before the offer is withdrawn by either
or both offerors. (206a)
Art. 97. Either spouse may dispose by will of his or her interest
in the community property. (n)
Art. 98. Neither spouse may donate any community property
without the consent of the other. However, either spouse may,
without the consent of the other, make moderate donations from
the community property for charity or on occasions of family
rejoicing or family distress. (n)
Matthews v. Taylor11
Section 7, Article XII of the 1987 Constitution states: “save in
cases of hereditary succession, no private lands shall be
transferred or conveyed except to individuals, corporations, or
associations qualified to acquire or hold lands of the public
domain. Aliens, whether individuals or corporations, have been
disqualified from acquiring lands of the public domain”.
By virtue of the said provisions, aliens are disqualified from
acquiring private lands.
11. Effect of separation de facto
FC Art. 100. The separation in fact between husband and wife
shall not affect the regime of absolute community except that:
(1) The spouse who leaves the conjugal home or refuses to live
therein, without just cause, shall not have the right to be
supported;
(2) When the consent of one spouse to any transaction of the
other is required by law, judicial authorization shall be obtained
in a summary proceeding;
(3) In the absence of sufficient community property, the separate
property of both spouses shall be solidarily liable for the support
of the family. The spouse present shall, upon proper petition in a
summary proceeding, be given judicial authority to administer or
encumber any specific separate property of the other spouse
and use the fruits or proceeds thereof to satisfy the latter's share.
(178a)
Art. 101. If a spouse without just cause abandons the other or
fails to comply with his or her obligations to the family, the
aggrieved spouse may petition the court for receivership, for
judicial separation of property or for authority to be the sole
administrator of the absolute community, subject to such
precautionary conditions as the court may impose.
The obligations to the family mentioned in the preceding
paragraph refer to marital, parental or property relations.
A spouse is deemed to have abandoned the other when her or
she has left the conjugal dwelling without intention of returning.
The spouse who has left the conjugal dwelling for a period of
11 British
national and Filipina wife bough a Boracay lot. Wife ran away
with someone else, but was still able to enter into a lease contract with
another person. Brit wants agreement nullified
51
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
three months or has failed within the same period to give any
information as to his or her whereabouts shall be prima facie
presumed to have no intention of returning to the conjugal
dwelling. (178a)
(CF). – SUMMARY PROCEEDINGS FOR COURT AUTHORITY
TO DISPOSE
Art. 239. When a husband and wife are separated in fact, or one
has abandoned the other and one of them seeks judicial
authorization for a transaction where the consent of the other
spouse is required by law but such consent is withheld or cannot
be obtained, a verified petition may be filed in court alleging the
foregoing facts.
The petition shall attach the proposed deed, if any, embodying
the transaction, and, if none, shall describe in detail the said
transaction and state the reason why the required consent
thereto cannot be secured. In any case, the final deed duly
executed by the parties shall be submitted to and approved by
the court. (n)
12. Effect of abandonment
FC Art. 101. If a spouse without just cause abandons the other
or fails to comply with his or her obligations to the family, the
aggrieved spouse may petition the court for receivership, for
judicial separation of property or for authority to be the sole
administrator of the absolute community, subject to such
precautionary conditions as the court may impose.
The obligations to the family mentioned in the preceding
paragraph refer to marital, parental or property relations.
A spouse is deemed to have abandoned the other when her or
she has left the conjugal dwelling without intention of returning.
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
presumed to have no intention of returning to the conjugal
dwelling. (178a)
DAMAGES, RESCISSION/NULLITY OF A CONTRACT
Art. 72. When one of the spouses neglects his or her duties to
the conjugal union or commits acts which tend to bring danger,
dishonor or injury to the other or to the family, the aggrieved
party may apply to the court for relief. (116a)
13. Dissolution of ACP
FC Art. 99. The absolute community terminates:
(1) Upon the death of either spouse;
(2) When there is a decree of legal separation;
(3) When the marriage is annulled or declared void; or
(4) In case of judicial separation of property during the marriage
under Articles 134 to 138. (175a)
Art. 102. Upon dissolution of the absolute community regime,
the following procedure shall apply:
(1) An inventory shall be prepared, listing separately all the
properties of the absolute community and the exclusive
properties of each spouse.
(2) The debts and obligations of the absolute community shall be
paid out of its assets. In case of insufficiency of said assets, the
spouses shall be solidarily liable for the unpaid balance with their
separate properties in accordance with the provisions of the
second paragraph of Article 94.
(3) Whatever remains of the exclusive properties of the spouses
shall thereafter be delivered to each of them.
(4) The net remainder of the properties of the absolute
community shall constitute its net assets, which shall be divided
equally between husband and wife, unless a different proportion
or division was agreed upon in the marriage settlements, or
unless there has been a voluntary waiver of such share provided
in this Code. For purpose of computing the net profits subject to
forfeiture in accordance with Articles 43, No. (2) and 63, No. (2),
the said profits shall be the increase in value between the market
value of the community property at the time of the celebration of
the marriage and the market value at the time of its dissolution.
(5) The presumptive legitimes of the common children shall be
delivered upon partition, in accordance with Article 51.
(6) Unless otherwise agreed upon by the parties, in the partition
of the properties, the conjugal dwelling and the lot on which it is
situated shall be adjudicated to the spouse with whom the
majority of the common children choose to remain. Children
below the age of seven years are deemed to have chosen the
mother, unless the court has decided otherwise. In case there in
no such majority, the court shall decide, taking into consideration
the best interests of said children. (n)
Art. 43. The termination of the subsequent marriage referred to
in the preceding Article shall produce the following effects:
xxx
(2) The absolute community of property or the conjugal
partnership, as the case may be, shall be dissolved and
liquidated, but if either spouse contracted said marriage in bad
faith, his or her share of the net profits of the community property
or conjugal partnership property shall be forfeited in favor of the
common children or, if there are none, the children of the guilty
spouse by a previous marriage or in default of children, the
innocent spouse;
xxx
Art. 63. The decree of legal separation shall have the following
effects:
xxx
(2) The absolute community or the conjugal partnership shall be
dissolved and liquidated but the offending spouse shall have no
right to any share of the net profits earned by the absolute
community or the conjugal partnership, which shall be forfeited in
accordance with the provisions of Article 43(2);
xxx
Art. 104. Whenever the liquidation of the community properties
of two or more marriages contracted by the same person before
the effectivity of this Code is carried out simultaneously, the
respective capital, fruits and income of each community shall be
determined upon such proof as may be considered according to
the rules of evidence. In case of doubt as to which community
the existing properties belong, the same shall be divided
between the different communities in proportion to the capital
and duration of each. (189a)
A. Death
FC Art. 103. Upon the termination of the marriage by death, the
community property shall be liquidated in the same proceeding
for the settlement of the estate of the deceased.
52
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
If no judicial settlement proceeding is instituted, the surviving
spouse shall liquidate the community property either judicially or
extra-judicially within six months from the death of the deceased
spouse.
If upon the lapse of the six months period, no liquidation is made,
any disposition or encumbrance involving the community
property of the terminated marriage shall be void.
Should the surviving spouse contract a subsequent marriage
without compliance with the foregoing requirements, a
mandatory regime of complete separation of property shall
govern the property relations of the subsequent marriage. (n)
(cf)
ROC. Rule 73 Sec. 1. Where estate of deceased persons
settled. — If the decedents is an inhabitant of the Philippines at
the time of his death, whether a citizen or an alien, his will shall
be proved, or letters of administration granted, and his estate
settled, in the Court of First Instance in the province in which he
resides at the time of his death, and if he is an inhabitant of a
foreign country, the Court of First Instance of any province in
which he had estate. The court first taking cognizance of the
settlement of the estate of a decedent, shall exercise jurisdiction
to the exclusion of all other courts. The jurisdiction assumed by a
court, so far as it depends on the place of residence of the
decedent, or of the location of his estate, shall not be contested
in a suit or proceeding, except in an appeal from that court, in the
original case, or when the want of jurisdiction appears on the
record.
Sec. 2. Where estate settled upon dissolution of marriage. —
When the marriage is dissolved by the death of the husband or
wife, the community property shall be inventoried, administered,
and liquidated, and the debts thereof paid, in the testate or
intestate proceedings of the deceased spouse. If both spouses
have died, the conjugal partnership shall be liquidated in the
testate or intestate proceedings of either.
Heirs of Go v. Servacio
Article 130 in relation to Article 105 of the Family Code, any
disposition of the conjugal property after the dissolution of the
conjugal partnership must be made only after the liquidation;
otherwise, the disposition is void. However, the marriage
occurring before the effectivity of the FC, the provision also
provides that the applicable rules is without prejudice to vested
rights already acquired.
The surviving spouse becomes a co-owner with his children as
to the deceased wife’s share in the CPG. He could not yet assert
title or claim to any specific portion without an actual partition
being first done by agreement or judicial decree.
Domingo v. Molina
Article 130, FC: "If upon the lapse of the six month period no
liquidation is made, any disposition or encumbrance involving the
conjugal partnership property of the terminated marriage shall be
void." This provision does not apply in this case since the
provisions of the Family Code shall be "without prejudice to
vested rights already acquired in accordance with the Civil Code
or other laws." (i.e., marriage in this case also occurred before
the effectivity of the FC).
As co-owner, while he cannot claim any title to any specific
portion of the conjugal properties prior to an actual partition, the
surviving spouse has the right to freely sell and dispose of his
undivided interest in the property.
Uy v. Estate of Fernandez
Before the partition of a land or thing held in common, no
individual or co-owner can claim title to any definite portion
thereof. All that the co-owner has is an ideal or abstract quota or
proportionate share in the entire land or thing. Nevertheless, a
co-owner could sell his undivided share.
B. Legal Separation
FC Art. 63. The decree of legal separation shall have the
following effects:
xxx
(2) The absolute community or the conjugal partnership shall be
dissolved and liquidated but the offending spouse shall have no
right to any share of the net profits earned by the absolute
community or the conjugal partnership, which shall be forfeited in
accordance with the provisions of Article 43(2);
xxx
Art. 66. The reconciliation referred to in the preceding Articles
shall have the following consequences:
(1) The legal separation proceedings, if still pending, shall
thereby be terminated at whatever stage; and
(2) The final decree of legal separation shall be set aside, but the
separation of property and any forfeiture of the share of the guilty
spouse already effected shall subsist, unless the spouses agree
to revive their former property regime.
The court's order containing the foregoing shall be recorded in
the proper civil registries. (108a)
C. Annulment and declaration of nullity
FC Art. 50. The effects provided for by paragraphs (2), (3), (4)
and (5) of Article 43 and by Article 44 shall also apply in the
proper cases to marriages which are declared ab initio or
annulled by final judgment under Articles 40 and 45.
The final judgment in such cases shall provide for the liquidation,
partition and distribution of the properties of the spouses, the
custody and support of the common children, and the delivery of
third presumptive legitimes, unless such matters had been
adjudicated in previous judicial proceedings.
All creditors of the spouses as well as of the absolute community
or the conjugal partnership shall be notified of the proceedings
for liquidation.
In the partition, the conjugal dwelling and the lot on which it is
situated, shall be adjudicated in accordance with the provisions
of Articles 102 and 129.
Art. 43. The termination of the subsequent marriage referred to
in the preceding Article shall produce the following effects:
xxx
(2) The absolute community of property or the conjugal
partnership, as the case may be, shall be dissolved and
liquidated, but if either spouse contracted said marriage in bad
faith, his or her share of the net profits of the community property
or conjugal partnership property shall be forfeited in favor of the
common children or, if there are none, the children of the guilty
spouse by a previous marriage or in default of children, the
innocent spouse;
xxx
53
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
D. Judicial separation of property
FC Art. 134. In the absence of an express declaration in the
marriage settlements, the separation of property between
spouses during the marriage shall not take place except by
judicial order. Such judicial separation of property may either be
voluntary or for sufficient cause. (190a)
Art. 135. Any of the following shall be considered sufficient
cause for judicial separation of property:
(1) That the spouse of the petitioner has been sentenced to a
penalty which carries with it civil interdiction;
(2) That the spouse of the petitioner has been judicially declared
an absentee;
(3) That loss of parental authority of the spouse of petitioner has
been decreed by the court;
(4) That the spouse of the petitioner has abandoned the latter or
failed to comply with his or her obligations to the family as
provided for in Article 101;
(5) That the spouse granted the power of administration in the
marriage settlements has abused that power; and
(6) That at the time of the petition, the spouses have been
separated in fact for at least one year and reconciliation is highly
improbable.
In the cases provided for in Numbers (1), (2) and (3), the
presentation of the final judgment against the guilty or absent
spouse shall be enough basis for the grant of the decree of
judicial separation of property. (191a)
Art. 136. The spouses may jointly file a verified petition with the
court for the voluntary dissolution of the absolute community or
the conjugal partnership of gains, and for the separation of their
common properties.
All creditors of the absolute community or of the conjugal
partnership of gains, as well as the personal creditors of the
spouse, shall be listed in the petition and notified of the filing
thereof. The court shall take measures to protect the creditors
and other persons with pecuniary interest. (191a)
Art. 137. Once the separation of property has been decreed, the
absolute community or the conjugal partnership of gains shall be
liquidated in conformity with this Code.
During the pendency of the proceedings for separation of
property, the absolute community or the conjugal partnership
shall pay for the support of the spouses and their children.
(192a)
Art. 138. After dissolution of the absolute community or of the
conjugal partnership, the provisions on complete separation of
property shall apply. (191a)
Ugalde v. Ysasi12
12 Husband and wife had a falling out. Husband allegedly married
another woman. Wife felt prejudiced so she instituted a petition for
dissolution of CPG (specpro). In a civil case, they entered into an
amicable settlement for separation of properties which became final
Under Article 175(4) of the Civil Code, the judicial separation of
property results in the termination of the conjugal partnership of
gains.
The finality of the Civil Case approving the parties’ separation of
property resulted in the termination of the conjugal partnership of
gains in accordance with Article 175 of the FC. Hence, when the
trial court decided Special Proceedings, the conjugal partnership
was already dissolved. Furthermore, for dissolution of CPG, its
existence is predicated on a valid marriage. In this case, their
marriage is not valid due to findings of absence of marriage
license.
Lavadia v. Heirs of Luna13
Considering that Atty. Luna and Eugenia had not entered into
any marriage settlement prior to their marriage in 1947, the
system of conjugal partnership of gains governed their property
relations.
Absolute divorce between 2 Filipinos are not allowed, thus Atty.
Luna’s subsequent marriage to Soledad was bigamous, and void
from the very beginning, hence, their property relations is
governed by the rules on co-ownership
Noveras v. Noveras
Separation in fact for one year is a ground to grant a judicial
separation of property. The grant of the judicial separation of the
ACP automatically dissolves the regime. Under Article 102 of the
same Code, liquidation follows the dissolution. Since the
Philippine courts did not acquire jurisdiction over properties in
California per Art. 16 NCC, the liquidation is only limited to
Philippine properties.
14. Effects of dissolution
A. Liquidation Procedure
FC Art. 102. Upon dissolution of the absolute community regime,
the following procedure shall apply:
(1) An inventory shall be prepared, listing separately all the
properties of the absolute community and the exclusive
properties of each spouse.
(2) The debts and obligations of the absolute community shall be
paid out of its assets. In case of insufficiency of said assets, the
spouses shall be solidarily liable for the unpaid balance with their
separate properties in accordance with the provisions of the
second paragraph of Article 94.
(3) Whatever remains of the exclusive properties of the spouses
shall thereafter be delivered to each of them.
(4) The net remainder of the properties of the absolute
community shall constitute its net assets, which shall be divided
equally between husband and wife, unless a different proportion
or division was agreed upon in the marriage settlements, or
unless there has been a voluntary waiver of such share provided
in this Code. For purpose of computing the net profits subject to
forfeiture in accordance with Articles 43, No. (2) and 63, No. (2),
while the specpro case is still ongoing. Allegedly the specpro case was
only instituted 23 yrs later.
13 Atty. Luna married Eugenia in 1947. After two decades of marriage,
they agreed to live separately as husband and wife, and executed an
Agreement For Separation” whereby they agreed to live separately and
to dissolve their conjugal property. Subsequently, Atty obtained a divorce
decree and married Soledad.
54
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
the said profits shall be the increase in value between the market
value of the community property at the time of the celebration of
the marriage and the market value at the time of its dissolution.
(5) The presumptive legitimes of the common children shall be
delivered upon partition, in accordance with Article 51.
(6) Unless otherwise agreed upon by the parties, in the partition
of the properties, the conjugal dwelling and the lot on which it is
situated shall be adjudicated to the spouse with whom the
majority of the common children choose to remain. Children
below the age of seven years are deemed to have chosen the
mother, unless the court has decided otherwise. In case there in
no such majority, the court shall decide, taking into consideration
the best interests of said children. (n)
(cf)
Art. 106. Under the regime of conjugal partnership of gains, the
husband and wife place in a common fund the proceeds,
products, fruits and income from their separate properties and
those acquired by either or both spouses through their efforts or
by chance, and, upon dissolution of the marriage or of the
partnership, the net gains or benefits obtained by either or both
spouses shall be divided equally between them, unless
otherwise agreed in the marriage settlements. (142a)
Art. 129. Upon the dissolution of the conjugal partnership
regime, the following procedure shall apply:
xxx
(7) The net remainder of the conjugal partnership properties shall
constitute the profits, which shall be divided equally between
husband and wife, unless a different proportion or division was
agreed upon in the marriage settlements or unless there has
been a voluntary waiver or forfeiture of such share as provided in
this Code.
xxx
Quiao v. Quiao
In this case, CPG applies because they got married pre-FC. Art.
63 (2) [bad faith spouse forfeits his share of the CP profits in
favor of children] of the present FC also applies to petitioner (the
bad faith spouse) because of the retroactivity of the FC if no
vested rights is prejudiced. SC said that there was none in this
case.
Art. 102(4) FC applies to both the dissolution of the absolute
community regime under Art. 102 FC, and to the dissolution of
the conjugal partnership regime under Art. 129 FC because it
expressly provides that said provision applies for purposes of
computing the net profits subject to forfeiture under Art. 43 (2)
[voidable] and Art. 63 (2) [legal separation].
B. For cause other than death
FC Art. 43. The termination of the subsequent marriage referred
to in the preceding Article shall produce the following effects:
xxx
(2) The absolute community of property or the conjugal
partnership, as the case may be, shall be dissolved and
liquidated, but if either spouse contracted said marriage in bad
faith, his or her share of the net profits of the community property
or conjugal partnership property shall be forfeited in favor of the
common children or, if there are none, the children of the guilty
spouse by a previous marriage or in default of children, the
innocent spouse;
xxx
Art. 63. The decree of legal separation shall have the following
effects:
xxx
(2) The absolute community or the conjugal partnership shall be
dissolved and liquidated but the offending spouse shall have no
right to any share of the net profits earned by the absolute
community or the conjugal partnership, which shall be forfeited in
accordance with the provisions of Article 43(2);
xxx
Art. 147. When a man and a woman who are capacitated to
marry each other, live exclusively with each other as husband
and wife without the benefit of marriage or under a void
marriage, their wages and salaries shall be owned by them in
equal shares and the property acquired by both of them through
their work or industry shall be governed by the rules on co-
ownership.
In the absence of proof to the contrary, properties acquired while
they lived together shall be presumed to have been obtained by
their joint efforts, work or industry, and shall be owned by them in
equal shares. For purposes of this Article, a party who did not
participate in the acquisition by the other party of any property
shall be deemed to have contributed jointly in the acquisition
thereof if the former's efforts consisted in the care and
maintenance of the family and of the household.
Neither party can encumber or dispose by acts inter vivos of his
or her share in the property acquired during cohabitation and
owned in common, without the consent of the other, until after
the termination of their cohabitation.
When only one of the parties to a void marriage is in good faith,
the share of the party in bad faith in the co-ownership shall be
forfeited in favor of their common children. In case of default of
or waiver by any or all of the common children or their
descendants, each vacant share shall belong to the respective
surviving descendants. In the absence of descendants, such
share shall belong to the innocent party. In all cases, the
forfeiture shall take place upon termination of the cohabitation.
(144a)
Art. 148. In cases of cohabitation not falling under the preceding
Article, only the properties acquired by both of the parties
through their actual joint contribution of money, property, or
industry shall be owned by them in common in proportion to their
respective contributions. In the absence of proof to the contrary,
their contributions and corresponding shares are presumed to be
equal. The same rule and presumption shall apply to joint
deposits of money and evidences of credit.
If one of the parties is validly married to another, his or her share
in the co-ownership shall accrue to the absolute community or
conjugal partnership existing in such valid marriage. If the party
who acted in bad faith is not validly married to another, his or her
shall be forfeited in the manner provided in the last paragraph of
the preceding Article.
The foregoing rules on forfeiture shall likewise apply even if both
parties are in bad faith. (144a)
C. Termination due to death
FC Art. 104. Whenever the liquidation of the community
properties of two or more marriages contracted by the same
person before the effectivity of this Code is carried out
simultaneously, the respective capital, fruits and income of each
55
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
community shall be determined upon such proof as may be
considered according to the rules of evidence. In case of doubt
as to which community the existing properties belong, the same
shall be divided between the different communities in proportion
to the capital and duration of each. (189a)
Dino v. Dino
Decree of absolute nullity of the marriage shall be issued upon
finality of the trial court’s decision without waiting for the
liquidation, partition, and distribution of the parties’ properties
under Article 147 of the Family Code. Section 19(1) of the Rule
applies only to marriages which are declared void ab initio or
annulled by final judgment under Articles 40 (bigamous) and 45
(voidable) of the Family Code. Here, it's under Art. 36. What
governs the liquidation of properties owned in common by
petitioner and respondent are the rules on co-ownership. It is not
necessary to liquidate the properties of the spouses in the same
proceeding for declaration of nullity of marriage.
Yu v. Reyes-Carpio14
It is more proper to rule first on the declaration of nullity of
marriage on the ground of each party’s psychological incapacity.
If the Court eventually finds that the parties’ respective petitions
is indeed meritorious, then the parties shall proceed to comply
with Articles 50 and 51 FC before a final decree of absolute
nullity of marriage can be issued. Pending such ruling on the
declaration of nullity of the parties’ marriage, the Court finds no
legal ground, at this stage, to proceed with the reception of
evidence as regards the issues on custody and property
relations, since these are mere incidents of the nullity of the
parties’ marriage.
C. Conjugal Partnership of Gains
Quiao v. Quiao
In this case, CPG applies because they got married pre-FC. Art.
63 (2) [bad faith spouse forfeits his share of the CP profits in
favor of children] of the present FC also applies to petitioner (the
bad faith spouse) because of the retroactivity of the FC if no
vested rights is prejudiced. SC said that there was none in this
case.
Art. 102(4) FC applies to both the dissolution of the absolute
community regime under Art. 102 FC, and to the dissolution of
the conjugal partnership regime under Art. 129 FC because it
expressly provides that said provision applies for purposes of
computing the net profits subject to forfeiture under Art. 43 (2)
[voidable] and Art. 63 (2) [legal separation].
Orpiano v. Tomas
The absence of the consent of one (spouse to a sale) renders
the entire sale null and void, including the portion of the conjugal
property pertaining to the spouse who contracted the sale.
1. When CPG commences and applies
14 Secs. 19 and 21 of the Rule on Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable Marriages (A.M. No. 02-11-10-SC)
allow the reception of evidence on custody, support, and property
relations after the trial court renders a decision granting the petition, or
upon entry of judgment granting the petition. This act is consistent with
Arts. 50 and 51 FC
(a) Marriages under FC
FC Art. 107. The rules provided in Articles 88 and 89 shall also
apply to conjugal partnership of gains. (n)
CF.
Art. 88. The absolute community of property between spouses
shall commence at the precise moment that the marriage is
celebrated. Any stipulation, express or implied, for the
commencement of the community regime at any other time shall
be void. (145a)
Art. 89. No waiver of rights, shares and effects of the absolute
community of property during the marriage can be made except
in case of judicial separation of property.
When the waiver takes place upon a judicial separation of
property, or after the marriage has been dissolved or annulled,
the same shall appear in a public instrument and shall be
recorded as provided in Article 77. The creditors of the spouse
who made such waiver may petition the court to rescind the
waiver to the extent of the amount sufficient to cover the amount
of their credits. (146a)
(b) Marriages before FC
FC Art. 105. In case the future spouses agree in the marriage
settlements that the regime of conjugal partnership gains shall
govern their property relations during marriage, the provisions in
this Chapter shall be of supplementary application.
The provisions of this Chapter shall also apply to conjugal
partnerships of gains already established between spouses
before the effectivity of this Code, without prejudice to vested
rights already acquired in accordance with the Civil Code or
other laws, as provided in Article 256. (n)
CF.
Art. 256. This Code shall have retroactive effect insofar as it
does not prejudice or impair vested or acquired rights in
accordance with the Civil Code or other laws.
(c) Suppletory rules
FC Art. 108. The conjugal partnership shall be governed by the
rules on the contract of partnership in all that is not in conflict
with what is expressly determined in this Chapter or by the
spouses in their marriage settlements. (147a)
(cf)
NCC Art. 1767. By the contract of partnership two or more
persons bind themselves to contribute money, property, or
industry to a common fund, with the intention of dividing the
profits among themselves.
Two or more persons may also form a partnership for the
exercise of a profession. (1665a)
Art. 1768. The partnership has a juridical personality separate
and distinct from that of each of the partners, even in case of
failure to comply with the requirements of article 1772, first
paragraph. (n)
2. What is included in the CPG
FC Art. 106. Under the regime of conjugal partnership of gains,
the husband and wife place in a common fund the proceeds,
products, fruits and income from their separate properties and
56
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
those acquired by either or both spouses through their efforts or
by chance, and, upon dissolution of the marriage or of the
partnership, the net gains or benefits obtained by either or both
spouses shall be divided equally between them, unless
otherwise agreed in the marriage settlements. (142a)
(a) Presumption of CPG
FC Art. 116. All property acquired during the marriage, whether
the acquisition appears to have been made, contracted or
registered in the name of one or both spouses, is presumed to
be conjugal unless the contrary is proved. (160a)
Titan v. David15
The sale is VOID. The property is part of the spouses’ conjugal
partnership. The NCC is the law in force at the time of the
celebration of the marriage (i.e., Art. 153(1) and 160 NCC).
These provisions were carried over to the FC.
Art. 116 FC states that “all property acquired during the
marriage, whether the acquisition appears to have been made,
contracted or registered in the name of one or both spouses, is
presumed to be conjugal unless the contrary is proved.”
The husband was not required to prove that the property was
acquired with funds of the partnership. Rather, the presumption
applies even when the manner in which the property was
acquired does not appear. In the absence of the husband’s
consent, the Deed of sale is void.
Imani v. Metrobank
All property of the marriage is presumed to be conjugal.
However, for this presumption to apply, the party who invokes it
must first prove that the property was acquired during the
marriage. Proof of acquisition during the coverture is a condition
sine qua non to the operation of the presumption in favor of the
conjugal partnership. Thus, the time when the property was
acquired is material.
Dewara v. Lamela
All property of the marriage is presumed to belong to the
conjugal partnership unless it is proved that it pertains
exclusively to the husband or to the wife. Registration in the
name of the husband or the wife alone does not destroy this
presumption. The separation-in-fact between the husband and
wife without judicial approval shall not affect the conjugal
partnership. The presumption of conjugal ownership applies
even when the manner in which the property was acquired does
not appear. The use of conjugal funds is not an essential
requirement for the presumption to arise.
Lim v. EPCIB
All property of the marriage is presumed to be conjugal, unless it
is shown that it is owned exclusively by the husband or the wife.
This presumption is not overcome by the fact that the property is
registered in the name of the husband or the wife alone; and that
the consent of both spouses is required before a conjugal
property may be mortgaged.
15
The husband filed a complaint for Annulment of Contract and
Reconveyance against the buyer alleging that the sale executed
by the wife was without his knowledge and consent, therefore
void. The buyer claimed good faith and for value because of an
SPA allegedly signed by the husband authorizing the wife to
dispose of the property.
(b) What are included in CPG
FC Art. 106. Under the regime of conjugal partnership of gains,
the husband and wife place in a common fund the proceeds,
products, fruits and income from their separate properties and
those acquired by either or both spouses through their efforts or
by chance, and, upon dissolution of the marriage or of the
partnership, the net gains or benefits obtained by either or both
spouses shall be divided equally between them, unless
otherwise agreed in the marriage settlements. (142a)
Art. 117. The following are conjugal partnership properties:
(1) Those acquired by onerous title during the marriage at the
expense of the common fund, whether the acquisition be for the
partnership, or for only one of the spouses;
(2) Those obtained from the labor, industry, work or profession of
either or both of the spouses;
(3) The fruits, natural, industrial, or civil, due or received during
the marriage from the common property, as well as the net fruits
from the exclusive property of each spouse;
(4) The share of either spouse in the hidden treasure which the
law awards to the finder or owner of the property where the
treasure is found;
(5) Those acquired through occupation such as fishing or
hunting;
(6) Livestock existing upon the dissolution of the partnership in
excess of the number of each kind brought to the marriage by
either spouse; and
(7) Those which are acquired by chance, such as winnings from
gambling or betting. However, losses therefrom shall be borne
exclusively by the loser-spouse. (153a, 154a, 155, 159)
Art. 115. Retirement benefits, pensions, annuities, gratuities,
usufructs and similar benefits shall be governed by the rules on
gratuitous or onerous acquisitions as may be proper in each
case. (n)
Art. 118. Property bought on installments paid partly from
exclusive funds of either or both spouses and partly from
conjugal funds belongs to the buyer or buyers if full ownership
was vested before the marriage and to the conjugal partnership if
such ownership was vested during the marriage. In either case,
any amount advanced by the partnership or by either or both
spouses shall be reimbursed by the owner or owners upon
liquidation of the partnership. (n)
Art. 119. Whenever an amount or credit payable within a period
of time belongs to one of the spouses, the sums which may be
collected during the marriage in partial payments or by
installments on the principal shall be the exclusive property of
the spouse. However, interests falling due during the marriage
on the principal shall belong to the conjugal partnership. (156a,
157a)
Art. 120. The ownership of improvements, whether for utility or
adornment, made on the separate property of the spouses at the
expense of the partnership or through the acts or efforts of either
or both spouses shall pertain to the conjugal partnership, or to
the original owner-spouse, subject to the following rules:
57
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
When the cost of the improvement made by the conjugal
partnership and any resulting increase in value are more than
the value of the property at the time of the improvement, the
entire property of one of the spouses shall belong to the conjugal
partnership, subject to reimbursement of the value of the
property of the owner-spouse at the time of the improvement;
otherwise, said property shall be retained in ownership by the
owner-spouse, likewise subject to reimbursement of the cost of
the improvement.
In either case, the ownership of the entire property shall be
vested upon the reimbursement, which shall be made at the time
of the liquidation of the conjugal partnership. (158a)
Villanueva v. CA
Art. 105 FC explicitly mandates that the Family Code shall apply
to conjugal partnerships established before the Family Code
without prejudice to vested rights already acquired under the
Civil Code or other laws. Thus, under the FC, if the properties
are acquired during the marriage, the presumption is that they
are conjugal. The burden of proof is on the party claiming that
they are not conjugal. This is counter-balanced by the
requirement that the properties must first be proven to have been
acquired during the marriage before they are presumed conjugal.
Mendoza v. Reyes
It is sufficient to prove that the property was acquired during the
marriage in order that the same may be deemed conjugal
property. Under Article 161 of NCC, all debts and obligations
contracted by the husband and the wife for the benefit of the
conjugal partnership are liabilities of the partnership.
Property acquired during a marriage is presumed to be conjugal
and the fact that the land is later registered in the name of only
one of the spouses does not destroy its conjugal nature. If the
fact that property acquired during marriage was registered in the
name of the husband alone does not affect its conjugal nature,
neither does registration in the name of the wife.
De La Peña v. Avila
The presumption mentioned in Art. 160 of the Civil Code applies
only for the property acquired during marriage and does not
operate when there is no showing as to when the property was
acquired. Moreover, the presumption in favour of the conjugality
is rebuttable, but only with strong, clear and convincing proof of
exclusive ownership.
FC Art. 109. The following shall be the exclusive property of
each spouse:
 FC Art. 110. (2nd Par).
(1) That which is brought to the marriage as his or her own;
 
Either spouse may, during the marriage, transfer the
(2) That which each acquires during the marriage by gratuitous
title;
(3) That which is acquired by right of redemption, by barter or
by exchange with property belonging to only one of the
spouses; and
(4) That which is purchased with exclusive money of the wife or
of the husband. (148a)
Laperal v Katigbak
All properties acquired during the marriage are presumed
conjugal. It is however not conclusive but merely rebuttable,
unless it be proved that the property belong exclusively to the
husband and wife.
Francisco v CA
Property already owned by a spouse prior to the marriage, and
brought to the marriage, is considered his or her separate
property. Acquisitions by lucrative title refers to properties
acquired gratuitously and include those acquired by either
spouse during the marriage by inheritance, devise, legacy, or
donation.
Tan v Andrade
The subject properties are exclusive properties of Rosario.
Records reveal that the conjugal partnership of Rosario and her
husband was terminated upon the latter’s death on August 7,
1978 while the transfer certificates of title over the subject
properties were issued on September 28, 1979 and solely in
the name of "Rosario Vda. de Andrade, of legal age, widow,
Filipino."
Veloso v Martinez
Jewelry is not conjugal property. Record shows that the jewels
were the sole and separate property of the wife acquired from
her mother. It is part of her paraphernal property.
Berciles v GSIS
Art 287 NCC – illegitimate children other than natural are
entitled to support and such successional rights are granted in
the code, but for this article to be applicable, there must be
admission or recognition of paternity of illegitimate child.
Plata v Yatco
Unlawful detainer judgment against the husband does not bind
the wife who is the owner of the land, which is part of her
paraphernal property.
4. Administration of Exclusive Property
i. By the spouse-owner
FC Art. 110. The spouses retain the ownership, possession,
administration and enjoyment of their exclusive properties.

Either spouse may, during the marriage, transfer the
administration of his or her exclusive property to the other by
means of a public instrument, which shall be recorded in the
registry of property of the place the property is located. (137a,
168a, 169a)

ii. By the other spouse
administration of his or her exclusive property to the other by
means of a public instrument, which shall be recorded in the
registry of property of the place the property is located. (137a,
168a, 169a)

FC Art. 142. The administration of all classes of exclusive
property of either spouse may be transferred by the court to the
other spouse:

(1) When one spouse becomes the guardian of the other;

(2) When one spouse is judicially declared an absentee;
(3) When one spouse is sentenced to a penalty which carries
with it civil interdiction; or

(4) When one spouse becomes a fugitive from justice or is in
58
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
hiding as an accused in a criminal case. If the other spouse is
not qualified by reason of incompetence, conflict of interest, or
any other just cause, the court shall appoint a suitable person
to be the administrator. (n)
FC Art. 75. The future spouses may, in the marriage
settlements, agree upon the regime of absolute community,
conjugal partnership of gains, complete separation of property,
or any other regime. In the absence of a marriage settlement,
or when the regime agreed upon is void, the system of absolute
community of property as established in this Code shall govern.
(119a)
FC Art. 227. If the parents entrust the management or
administration of any of their properties to an unemancipated
child, the net proceeds of such property shall belong to the
owner. The child shall be given a reasonable monthly
allowance in an amount not less than that which the owner
would have paid if the administrator were a stranger, unless the
owner, grants the entire proceeds to the child. In any case, the
proceeds thus give in whole or in part shall not be charged to
the child's legitime. (322a)
Veloso v Martinez (supra)
Manotok Realty v CA
The sale between Legarda and Lucero was not valid. The Court
directed Legarda to sell the subdivision by executing the
necessary document/s and submitting it to the Court for
approval which Legarda failed to do especially where the sale
was on instalment basis. The receipt does not conform to the
legal requirements of contracts of sale since it was neither
executed in a public instrument nor registered with the Registry
of Deeds.
Ong v CA
The mere use of the surname of the husband in the tax
declaration of the subject property is not sufficient proof to hold
that said property was acquired during the marriage and is
therefore conjugal. PNB v CA "When the property is registered
in the name of the spouse and there is no showing as to when
the property was acquired by said spouse, there is an indication
that the property belongs exclusively to said spouse.”
5. Encumbrance/disposition of exclusive
property
FC Art. 111. A spouse of age may mortgage, encumber,
alienate or otherwise dispose of his or her exclusive property,
without the consent of the other spouse, and appear alone in
court to litigate with regard to the same. (n)
FC Art. 112. The alienation of any exclusive property of a
spouse administered by the other automatically terminates the
administration over such property and the proceeds of the
alienation shall be turned over to the owner-spouse. (n)

Wong et al. v IAC
Property acquired during the marriage is presumed to belong to
the conjugal partnership even though the spouses are living
separately. This presumption subsists in the absence of clear,
satisfactory and convincing evidence proving that one spouse
exclusively owns the properties. In the determination of the
nature of a property acquired by a person during the marriage,
the controlling factor is the source of the money utilized in the
purchase.
6. If property bought by installments
FC Art. 118. Property bought on installments paid partly from
exclusive funds of either or both spouses and partly from
conjugal funds belongs to the buyer or buyers if full ownership
was vested before the marriage and to the conjugal partnership
if such ownership was vested during the marriage. In either
case, any amount advanced by the partnership or by either or
both spouses shall be reimbursed by the owner or owners upon
liquidation of the partnership. (n)
FC Art. 119. Whenever an amount or credit payable within a
period of time belongs to one of the spouses, the sums which
may be collected during the marriage in partial payments or by
installments on the principal shall be the exclusive property of
the spouse. However, interests falling due during the marriage
on the principal shall belong to the conjugal partnership. (156a,
157a)
Jovellanos v CA
The deed of absolute sale was executed in 1975 by Philamlife.
Upon the execution of said deed of absolute sale, full
ownership was vested in Daniel Jovellanos. Since he was
married to Annette as early as 1967, this property necessarily
belonged to his conjugal partnership with his said second wife.
Tarrosa v De Leon
If the property was acquired during the existence of the
marriage, ownership to the property is, by law, presumed to
belong to the conjugal partnership. A property bought in
installment, if not proven to be bought solely by exclusive
funds, is not exclusive property if ownership was vested during
marriage. The sale of one half of the conjugal property without
liquidation of partnership is void as the interest during marriage
is merely inchoate and will only be realized upon liquidation.16
7. Improvements on CPG property
FC Art. 120. The ownership of improvements, whether for utility
or adornment, made on the separate property of the spouses at
the expense of the partnership or through the acts or efforts of
either or both spouses shall pertain to the conjugal partnership,
or to the original owner-spouse, subject to the following rules:
When the cost of the improvement made by the conjugal
partnership and any resulting increase in value are more than
the value of the property at the time of the improvement, the
entire property of one of the spouses shall belong to the
conjugal partnership, subject to reimbursement of the value of
the property of the owner-spouse at the time of the
improvement; otherwise, said property shall be retained in
ownership by the owner-spouse, likewise subject to
reimbursement of the cost of the improvement.
In either case, the ownership of the entire property shall be
vested upon the reimbursement, which shall be made at the
16
Nevertheless, because the Tarrosas paid a valuable consideration for
the property in question, as a matter of fairness and equity, the share of
Bonifacio after the liquidation of the partnership should be liable to
reimburse the amount paid by the Tarrosas (ground: unjust enrichment).
59
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
time of the liquidation of the conjugal partnership. (158a)
Munoz, Jr. v Ramirez
As a general rule, all property acquired during the marriage,
whether the acquisition appears to have been made, contracted
or registered in the name of one or both spouses, is presumed
to be conjugal unless the contrary is proved.
Padilla v Padilla
Based on Art. 1404 (2) of the Spanish Code, the ownership of
the land is retained by the wife until she is paid the value of the
lot, as a result of the liquidation of the conjugal partnership. The
mere construction of a building from common funds does not
automatically convey the ownership of the wife's land
(paraphernal) to the conjugal partnership. The partnership
maintains a usufructuary right over the said property during the
marriage and until liquidation.
Padilla v Paterno
The conversion of the subject properties from paraphernal to
conjugal assets should be deemed to retroact to the time the
conjugal buildings were first constructed thereon or at the very
latest, to the time immediately before the death of the spouse
that ended the conjugal partnership.
Cungco v Flores
If there were buildings erected on the lands which were
paraphernal personal property of the appellee during the latter's
marriage with the appellant, and such buildings were destroyed
by reason of the recent war, before the liquidation of the
conjugal partnership of both spouses, it is obvious that the
conjugal partnership did not ipso facto acquire the land from the
time of the construction of the buildings, so as to make
afterwards the land without any buildings a conjugal property of
the result of the liquidation of the conjugal partnership.
8. Charges upon and obligations of CPG
FC Art. 121. The conjugal partnership shall be liable for:
(1) The support of the spouse, their common children, and the
legitimate children of either spouse; however, the support of
illegitimate children shall be governed by the provisions of this
Code on Support;
(2) All debts and obligations contracted during the marriage by
the designated administrator-spouse for the benefit of the
conjugal partnership of gains, or by both spouses or by one of
them with the consent of the other;
(3) Debts and obligations contracted by either spouse without
the consent of the other to the extent that the family may have
benefited;
(4) All taxes, liens, charges, and expenses, including major or
minor repairs upon the conjugal partnership property;
(5) All taxes and expenses for mere preservation made during
the marriage upon the separate property of either spouse;
(6) Expenses to enable either spouse to commence or
complete a professional, vocational, or other activity for self-
improvement;
(7) Ante-nuptial debts of either spouse insofar as they have
redounded to the benefit of the family;
(8) The value of what is donated or promised by both spouses
in favor of their common legitimate children for the exclusive
purpose of commencing or completing a professional or
vocational course or other activity for self-improvement; and
(9) Expenses of litigation between the spouses unless the suit
is found to groundless.
If the conjugal partnership is insufficient to cover the foregoing
liabilities, the spouses shall be solidarily liable for the unpaid
balance with their separate properties. (161a)
FC Art. 122. The payment of personal debts contracted by the
husband or the wife before or during the marriage shall not be
charged to the conjugal properties partnership except insofar
as they redounded to the benefit of the family.
Neither shall the
fines and pecuniary indemnities imposed upon them be
charged to the partnership. However, the payment of personal
debts contracted by either spouse before the marriage, that of
fines and indemnities imposed upon them, as well as the
support of illegitimate children of either spouse, may be
enforced against the partnership assets after the
responsibilities enumerated in the preceding Article have been
covered, if the spouse who is bound should have no exclusive
property or if it should be insufficient; but at the time of the
liquidation of the partnership, such spouse shall be charged for
what has been paid for the purpose above-mentioned. (163a)
FC Art. 123. Whatever may be lost during the marriage in any
game of chance or in betting, sweepstakes, or any other kind of
gambling whether permitted or prohibited by law, shall be borne
by the loser and shall not be charged to the conjugal
partnership but any winnings therefrom shall form part of the
conjugal partnership property. (164a)
Mariano v CA
In the case at bar, the husband of the judgment debtor cannot
be deemed a “stranger” to the case prosecuted and adjudged
against his wife. The wife had engaged in business with her
husband’s consent, and the income derived therefrom had
been expended, in part at least, for the support of her family,
the liability of the conjugal assets to respond for the wife’s
obligations in the premises cannot be disputed.
Ayala v CA
No actual benefit may be proved. It is enough that the benefit to
the family is apparent at the time of the signing of the contract.
From the very nature of the contract of loan or services, the
family stands to benefit from the loan facility or services to be
rendered to the business or profession of the husband. It is
immaterial, if in the end, his business or profession fails or does
not succeed. Simply stated, where the husband contracts
obligations on behalf of the family business, the law presumes,
and rightly so, that such obligation will redound to the benefit of
the conjugal partnership. On the other hand, if the money or
services are given to another person or entity, and the husband
acted only as a surety or guarantor, that contract cannot, by
itself, alone be categorized as falling within the context of
“obligations for the benefit of the conjugal partnership.”
Ching v CA
For the conjugal partnership to be liable for a liability that
should appertain to the husband alone, there must be a
showing that some advantages accrued to the spouses.
Homeowners v Dailo
The rules on co-ownership do not apply to the conjugal
partnership of gains, even in a suppletory manner. Unlike the
absolute community of property wherein the rules on co-
ownership apply in a suppletory manner, the conjugal
partnership shall be governed by the rules on contract of
60
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
partnership in all that is not in conflict with what is expressly
determined in the chapter (on conjugal partnership of gains) or
by the spouses in their marriage settlements. By express
provision of FC Art. 124, in the absence of (court) authority or
written consent of the other spouse, any disposition or
encumbrance of the conjugal property shall be void.
Ando v Campo
The power of the NLRC, or the courts, to execute its judgment
extends only to properties unquestionably belonging to the
judgment debtor alone. A sheriff, therefore, has no authority to
attach the property of any person except that of the judgment
debtor.
Security Bank v Mar Tiera Corp.
May the conjugal partnership be held liable for an indemnity
agreement entered into by the husband to accommodate a third
party? NO. If the husband himself is the principal obligor in the
contract, on behalf of the family business, there is a legal
presumption that such obligation redounds to the benefit of the
conjugal partnership. No presumption is raised that, when a
husband enters into a contract of surety or accommodation
agreement, it is for the benefit of the conjugal partnership.
Proof must be presented to establish the benefit redounding to
the conjugal partnership. In the absence of any showing of
benefit received by it, the conjugal partnership cannot be held
liable on an indemnity agreement executed by the husband to
accommodate a third party, as the benefit is clearly intended for
a third party.
Ravina v Villa-Abrille
Significantly, a sale or encumbrance of conjugal property
concluded after the effectivity of the Family Code on August 3,
1988, is governed by Article 124 of the same Code that now
treats such a disposition to be void if done (a) without the
consent of both the husband and the wife, or (b) in case of one
spouse’s inability, the authority of the court. Article 124 of the
Family Code governs giving the unconsenting spouse 5 years
to assail the sale.
Hernandez v Mingoa
Since the marriage and the Deed were contracted before the
effectivity of the Family Code, the Civil Code applies. Under the
Civil Code, contracts entered into by the husband without the
consent of the wife may be annulled by the wife.
Fuentes v Roca
The law governing the transaction is the Family Code, not the
Civil Code even if the spouses were married during the
effectivity of the Civil Code because the transaction already
happened during the effectivity of the Family Code. The Family
Code took effect on August 3, 1988. Its Chapter 4 on Conjugal
Partnership of Gains expressly superseded Title VI, Book I of
the Civil Code on Property Relations Between Husband and
Wife. Further, the Family Code provisions were also made to
apply to already existing conjugal partnerships without
prejudice to vested rights.
Aguete v PNB
Debts contracted by the husband for and in the exercise of the
industry or profession by which he contributes to the support of
the family cannot be deemed to be his exclusive and private
debts.
Pana v Heirs of Juanite
Article 256 of the Family Code does not intend to reach back
and automatically convert into absolute community of property
relation all conjugal partnerships of gains that existed before
1988 excepting only those with prenuptial agreements. The
Family Code contains terms governing conjugal partnership of
gains that supersede the terms of the conjugal partnership of
gains under the Civil Code.
Borlongan v BDO
Conjugal property cannot be held liable for the personal
obligation contracted by one spouse, unless some advantage
or benefit is shown to have accrued to the conjugal partnership.
9. Ownership, administration and enjoyment
(a) Joint administration
FC Art. 124. The administration and enjoyment of the conjugal
partnership shall belong to both spouses jointly. In case of
disagreement, the husband's decision shall prevail, subject to
recourse to the court by the wife for proper remedy, which must
be availed of within five years from the date of the contract
implementing such decision.
In the event that one spouse is incapacitated or otherwise
unable to participate in the administration of the conjugal
properties, the other spouse may assume sole powers of
administration. These powers do not include disposition or
encumbrance without authority of the court or the written
consent of the other spouse. In the absence of such authority
or consent, the disposition or encumbrance shall be void.
However, the transaction shall be construed as a continuing
offer on the part of the consenting spouse and the third person,
and may be perfected as a binding contract upon the
acceptance by the other spouse or authorization by the court
before the offer is withdrawn by either or both offerors. (165a)
FC Art. 96. The administration and enjoyment of the
community property shall belong to both spouses jointly. In
case of disagreement, the husband's decision shall prevail,
subject to recourse to the court by the wife for proper remedy,
which must be availed of within five years from the date of the
contract implementing such decision.
In the event that one spouse is incapacitated or otherwise
unable to participate in the administration of the common
properties, the other spouse may assume sole powers of
administration. These powers do not include disposition or
encumbrance without authority of the court or the written
consent of the other spouse. In the absence of such authority
or consent, the disposition or encumbrance shall be void.
However, the transaction shall be construed as a continuing
offer on the part of the consenting spouse and the third person,
and may be perfected as a binding contract upon the
acceptance by the other spouse or authorization by the court
before the offer is withdrawn by either or both offerors. (206a)
FC Art. 124. The administration of all classes of exclusive
property of either spouse may be transferred by the court to the
other spouse:
(1) When one spouse becomes the guardian of the other;
(2) When one spouse is judicially declared an absentee;
(3) When one spouse is sentenced to a penalty which carries
with it civil interdiction; or
(4) When one spouse becomes a fugitive from justice or is in
hiding as an accused in a criminal case. If the other spouse is
61
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
not qualified by reason of incompetence, conflict of interest, or
any other just cause, the court shall appoint a suitable person
to be the administrator. (n)
Homeowners v Dailo (supra)
Alinas v Alinas
In the present case, the Court does not see how applying
Article 124 of the Family Code would lead to injustice or
absurdity. If the parties are aware that the land being sold is
conjugal and without the consent of one of the owner-spouses,
the sale is void.
Docena v Lapesura
Under the NCC, the husband is the administrator of the
conjugal partnership. In fact, he is the sole administrator, and
the wife is not entitled as a matter of right to join him in this
endeavor. The husband may defend the conjugal partnership in
a suit or action without being joined by the wife. Corollarily, the
husband alone may execute the necessary certificate of non-
forum shopping to accompany the pleading.
Under the Family Code, the administration of the conjugal
property belongs to the husband and the wife jointly. However,
unlike an act of alienation or encumbrance where the consent
of both spouses is required, joint management or administration
does not require that the husband and wife always act together.
Each spouse may validly exercise full power of management
alone, subject to the intervention of the court in proper cases as
provided under Article 124 of the Family Code.
Aggabao v Parulan
Sale is void without the consent of spouse. The sale was made
after the effectivity of the Family Code. The proper law to apply
is, therefore, Article 124 of the Family Code (i.e. that any
alienation or encumbrance of conjugal property made during
the effectivity of the Family Code is governed by Article 124 of
the FC). According to Article 256 of the Family Code, the
provisions of the Family Code may apply retroactively provided
no vested rights are impaired.
(b) Sole administration
1. Incapacity
FC Art. 124. The administration of all classes of exclusive
property of either spouse may be transferred by the court to the
other spouse:
(1) When one spouse becomes the guardian of the other;
(2) When one spouse is judicially declared an absentee;
(3) When one spouse is sentenced to a penalty which carries
with it civil interdiction; or
(4) When one spouse becomes a fugitive from justice or is in
hiding as an accused in a criminal case. If the other spouse is
not qualified by reason of incompetence, conflict of interest, or
any other just cause, the court shall appoint a suitable person
to be the administrator. (n)
FC Art. 253. The foregoing rules in Chapters 2 and 3 hereof
shall likewise govern summary proceedings filed under Articles
41, 51, 69, 73, 96, 124 and 127, insofar as they are applicable.
(n)
Uy v CA
In the event that one spouse is incapacitated or otherwise
unable to participate in the administration of the conjugal
properties, the other spouse may assume sole powers of
administration. These powers do not include the powers of
disposition or encumbrance which must have the authority of
the court or the written consent of the other spouse. In the
absence of such authority or consent, the disposition or
encumbrance shall be void. However, the transaction shall be
construed as a continuing offer on the part of the consenting
spouse and the third person, and may be perfected as a
binding contract upon the acceptance by the other spouse or
authorization by the court before the offer is withdrawn by either
or both offerors. The situation contemplated is one where the
spouse is absent, or separated in fact or has abandoned the
other or consent is withheld or cannot be obtained. Where the
non-consenting spouse is incapacitated or incompetent to give
consent, the proper remedy is judicial guardianship.
2. Separation in fact
FC Art. 100. The separation in fact between husband and wife
shall not affect the regime of absolute community except that:

xxx
(3) In the absence of sufficient community property, the
separate property of both spouses shall be solidarily liable for
the support of the family. The spouse present shall, upon
proper petition in a summary proceeding, be given judicial
authority to administer or encumber any specific separate
property of the other spouse and use the fruits or proceeds
thereof to satisfy the latter's share. (178a)
FC Art. 127. The separation in fact between husband and wife
shall not affect the regime of conjugal partnership, except that:

xxx
(3) In the absence of sufficient conjugal partnership property,
the separate property of both spouses shall be solidarily liable
for the support of the family. The spouse present shall, upon
petition in a summary proceeding, be given judicial authority to
administer or encumber any specific separate property of the
other spouse and use the fruits or proceeds thereof to satisfy
the latter's share. (178a)
FC Art. 253. The foregoing rules in Chapters 2 and 3 hereof
shall likewise govern summary proceedings filed under Articles
41, 51, 69, 73, 96, 124 and 127, insofar as they are applicable.
(n)
3. Abandonment
FC Art. 101. If a spouse without just cause abandons the other
or fails to comply with his or her obligations to the family, the
aggrieved spouse may petition the court for receivership, for
judicial separation of property or for authority to be the sole
administrator of the absolute community, subject to such
precautionary conditions as the court may impose.
The
obligations to the family mentioned in the preceding paragraph
refer to marital, parental or property relations.
A spouse is
deemed to have abandoned the other when her or she has left
the conjugal dwelling without intention of returning. 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 presumed to
have no intention of returning to the conjugal dwelling. (178a)
FC Art. 128. If a spouse without just cause abandons the other
or fails to comply with his or her obligation to the family, the
62
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
aggrieved spouse may petition the court for receivership, for
judicial separation of property, or for authority to be the sole
administrator of the conjugal partnership property, subject to
such precautionary conditions as the court may impose.
The obligations to the family mentioned in the preceding
paragraph refer to marital, parental or property relations.
 Neither shall the fines and pecuniary indemnities imposed upon
FC Art. 253. The foregoing rules in Chapters 2 and 3 hereof
shall likewise govern summary proceedings filed under Articles
41, 51, 69, 73, 96, 124 and 127, insofar as they are applicable.
(n)
4. Pendency of legal separation
proceedings
FC Art. 61. Art. 61. After the filing of the petition for legal
separation, the spouses shall be entitled to live separately from
each other.
 Art. 124. The administration and enjoyment of the conjugal
The court, in the absence of a written agreement between the
spouses, shall designate either of them or a third person to
administer the absolute community or conjugal partnership
property. The administrator appointed by the court shall have
the same powers and duties as those of a guardian under the
Rules of Court. (104a)
 In the event that one spouse is incapacitated or otherwise
10. Disposition and encumbrance
FC Art. 97. Either spouse may dispose by will of his or her
interest in the community property
Art. 121. The conjugal partnership shall be liable for:
(1) The support of the spouse, their common children, and the
legitimate children of either spouse; however, the support of
illegitimate children shall be governed by the provisions of this
Code on Support;
(2) All debts and obligations contracted during the marriage by
the designated administrator-spouse for the benefit of the
conjugal partnership of gains, or by both spouses or by one of
them with the consent of the other;
(3) Debts and obligations contracted by either spouse without
the consent of the other to the extent that the family may have
benefited;
(4) All taxes, liens, charges, and expenses, including major or
minor repairs upon the conjugal partnership property;
(5) All taxes and expenses for mere preservation made during
the marriage upon the separate property of either spouse;
(6) Expenses to enable either spouse to commence or
complete a professional, vocational, or other activity for self-
improvement;
(7) Ante-nuptial debts of either spouse insofar as they have
redounded to the benefit of the family;
(8) The value of what is donated or promised by both spouses
in favor of their common legitimate children for the exclusive
purpose of commencing or completing a professional or
vocational course or other activity for self-improvement; and
(9) Expenses of litigation between the spouses unless the suit
is found to groundless.
If the conjugal partnership is insufficient to cover the foregoing
liabilities, the spouses shall be solidarily liable for the unpaid
balance with their separate properties. (161a)
Art. 122. The payment of personal debts contracted by the
husband or the wife before or during the marriage shall not be
charged to the conjugal properties partnership except insofar
as they redounded to the benefit of the family.
them be charged to the partnership.
However, the payment of personal debts contracted by either
spouse before the marriage, that of fines and indemnities
imposed upon them, as well as the support of illegitimate
children of either spouse, may be enforced against the
partnership assets after the responsibilities enumerated in the
preceding Article have been covered, if the spouse who is
bound should have no exclusive property or if it should be
insufficient; but at the time of the liquidation of the partnership,
such spouse shall be charged for what has been paid for the
purpose above-mentioned.
partnership shall belong to both spouses jointly. In case of
disagreement, the husband's decision shall prevail, subject to
recourse to the court by the wife for proper remedy, which must
be availed of within five years from the date of the contract
implementing such decision.
unable to participate in the administration of the conjugal
properties, the other spouse may assume sole powers of
administration. These powers do not include disposition or
encumbrance without authority of the court or the written
consent of the other spouse. In the absence of such authority
or consent, the disposition or encumbrance shall be void.
However, the transaction shall be construed as a continuing
offer on the part of the consenting spouse and the third person,
and may be perfected as a binding contract upon the
acceptance by the other spouse or authorization by the court
before the offer is withdrawn by either or both offerors. (165a)
Art. 125. Neither spouse may donate any conjugal partnership
property without the consent of the other. However, either
spouse may, without the consent of the other, make moderate
donations from the conjugal partnership property for charity or
on occasions of family rejoicing or family distress. (174a)
Cheeseman v IAC
Evidence on record satisfactorily overcame the disputable
presumption in Article 160 of the Civil Code—that all property of
the marriage belongs to the conjugal partnership "unless it be
proved that it pertains exclusively to the husband or to the
wife"—and that the immovable in question was in truth
Criselda's paraphernal property. But even if it were a fact that
said wife had used conjugal funds to make the acquisition, the
considerations just set out militate, on high constitutional
grounds, against his recovering and holding the property so
acquired or any part thereof since the Constitution prohibits
sale of residential lot to aliens.
Frenzel v Catito
(Frenzel, an Australian, bought his Filipino wife several
properties under her name. After finding out she was still
married to another, demanded that Catito return all the
properties he bought her)
No, even if, as claimed by the petitioner, the sales in question
63
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
were entered into by him as the real vendee, the said
transactions are in violation of the Constitution; hence, are null
and void ab initio. A contract that violates the Constitution and
the law, is null and void and vests no rights and creates no
obligations. It produces no legal effect at all. The petitioner,
being a party to an illegal contract, cannot come into a court of
law and ask to have his illegal objective carried out. One who
loses his money or property by knowingly engaging in a
contract or transaction which involves his own moral turpitude
may not maintain an action for his losses. To him who moves in
deliberation and premeditation, the law is unyielding. The law
will not aid either party to an illegal contract or agreement; it
leaves the parties where it finds them
Alinas v Alinas
Pursuant Article 124 of the Family Code and jurisprudence, the
sale of petitioners' conjugal property made by petitioner
Onesiforo (husband) alone is void in its entirety.
The respondent spouses were well aware that the lot in
question is a conjugal property of petitioners. They also knew
that the disposition made is without the consent of his wife,
and, the sale documents do not bear the signature of petitioner
Rosario. The fact that Onesiforo had to execute two
documents, namely: the Absolute Deed of Sale dated March
10, 1989 and a notarized Agreement likewise dated March 10,
1989, reveals that they had full knowledge of the severe
infirmities of the sale.
Siochi v Gozon
Without spousal consent or court authority, the sale is void. The
absence of the consent of one of the spouse renders the entire
sale void, including the portion of the conjugal property
pertaining to the spouse who contracted the sale. Even if the
other spouse actively participated in negotiating for the sale of
the property, that other spouse’s written consent to the sale is
still required by law for its validity.
As regards the contention that it is a continuing offer which may
be perfected by Elvira’s acceptance before the offer is
withdrawn, the fact that the property was subsequently donated
by Alfredo to Winifred and then sold to IDRI clearly indicates
that the offer was already withdrawn.
Aguete v PNB
The husband cannot alienate or encumber any conjugal real
property without the consent, express or implied, of the wife.
Should the husband do so, then the contract is voidable. Article
173 of the Civil Code allows Aguete to question Ros'
encumbrance of the subject property. However, the same
article does not guarantee that the courts will declare the
annulment of the contract. Annulment will be declared only
upon a finding that the wife did not give her consent. In the
present case, Aguete gave her consent to Ros' encumbrance
of the subject property. Ros himself cannot bring action against
PNB, for no one can come before the courts with unclean
hands. In their memorandum before the trial court, petitioners
themselves admitted that Ros forged Aguete's signatures. The
benefit to the family was also apparent at the signing of the
contract, which application included “for additional working
capital of buy & sell of garlic & Virginia tobacco.” Where the
husband contracts obligations on behalf of the family business,
the law presumes that such obligation will redound to the
benefit of the conjugal partnership.
Flores v Lindo
FC 124 (FC 96 for ACP) states that in the disposition or
encumbrance of conjugal property, in case one spouse fails to
get the consent and authority of the other, the transaction shall
be construed as a continuing offer, and it may be perfected by
acceptance or authorization by the other spouse. Husband’s
execution of the SPA in favor of wife perfected the mortgage,
making it valid and binding as to both of them.
2. Though the remedies of foreclosure and collection are
indeed alternative, Flores may still enforce a personal action
over the mortgage because: a) Edna did not deny that she had
obtained the loan; b) the principle against unjust enrichment
(NCC 22) is operative in this case; c) the mortgage was
declared void erroneously, and Flores could not have been
expected to ask RTC Br 33 for an alternative remedy, sine it
had already ruled that it had no jurisdiction over the available
remedy; d) the principle against unjust enrichment is a rule of
substantive law which must prevail over the procedural rule of
multiplicity of suits.
11. Effect of separation de facto
FC Art. 127. The separation in fact between husband and wife
shall not affect the regime of conjugal partnership, except that:
(1) The spouse who leaves the conjugal home or refuses to live
therein, without just cause, shall not have the right to be
supported;
(2) When the consent of one spouse to any transaction of the
other is required by law, judicial authorization shall be obtained
in a summary proceeding;
(3) In the absence of sufficient conjugal partnership property,
the separate property of both spouses shall be solidarily liable
for the support of the family. The spouse present shall, upon
petition in a summary proceeding, be given judicial authority to
administer or encumber any specific separate property of the
other spouse and use the fruits or proceeds thereof to satisfy
the latter's share.
Art. 100. The separation in fact between husband and wife
shall not affect the regime of absolute community except that:
(1) The spouse who leaves the conjugal home or refuses to live
therein, without just cause, shall not have the right to be
supported;
(2) When the consent of one spouse to any transaction of the
other is required by law, judicial authorization shall be obtained
in a summary proceeding;
(3) In the absence of sufficient community property, the
separate property of both spouses shall be solidarily liable for
the support of the family. The spouse present shall, upon
proper petition in a summary proceeding, be given judicial
authority to administer or encumber any specific separate
property of the other spouse and use the fruits or proceeds
thereof to satisfy the latter's share.
cf Art. 239. When a husband and wife are separated in fact, or
one has abandoned the other and one of them seeks judicial
authorization for a transaction where the consent of the other
spouse is required by law but such consent is withheld or
cannot be obtained, a verified petition may be filed in court
alleging the foregoing facts.
The petition shall attach the proposed deed, if any, embodying
the transaction, and, if none, shall describe in detail the said
transaction and state the reason why the required consent
thereto cannot be secured. In any case, the final deed duly
64
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
executed by the parties shall be submitted to and approved by
the court.
Noveras v Noveras
Having established that Leticia and David had actually
separated for at least one year, the petition for judicial
separation of absolute community of property should be
granted.
The grant of the judicial separation of the absolute community
property automatically dissolves the absolute community
regime, as stated in the 4th paragraph of Article 99 of the
Family Code.
12. Effect of abandonment
FC Art. 128. If a spouse without just cause abandons the other
or fails to comply with his or her obligation to the family, the
aggrieved spouse may petition the court for receivership, for
judicial separation of property, or for authority to be the sole
administrator of the conjugal partnership property, subject to
such precautionary conditions as the court may impose.
The obligations to the family mentioned in the preceding
paragraph refer to marital, parental or property relations.
A spouse is deemed to have abandoned the other when he or
she has left the conjugal dwelling without intention of returning.
The spouse who has left the conjugal dwelling for a period of
three months or has failed within the same period to give any
information as to his or her whereabouts shall be prima facie
presumed to have no intention of returning to the conjugal
dwelling.
cf Art. 101. If a spouse without just cause abandons the other
or fails to comply with his or her obligations to the family, the
aggrieved spouse may petition the court for receivership, for
judicial separation of property or for authority to be the sole
administrator of the absolute community, subject to such
precautionary conditions as the court may impose.
The obligations to the family mentioned in the preceding
paragraph refer to marital, parental or property relations.
A spouse is deemed to have abandoned the other when her or
she has left the conjugal dwelling without intention of returning.
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
presumed to have no intention of returning to the conjugal
dwelling.
Partosa-Jo v CA
For abandonment to exist, there must be an absolute cessation
of marital relations, duties and rights, with the intention of
perpetual separation. The fact that Jo did not accept her to their
conjugal home in Dumaguete City when she returned from
Zamboanga demonstrates that he had no intention of resuming
their conjugal relationship. From 1968 until 1988, Jose refused
to provide financial support to Prima. The petitioner may also
invoke the second ground allowed by Article 128, for the fact is
that he has failed without just cause to comply with his
obligations to the family as husband or parent.
The private respondent has not established any just cause for
his refusal to comply with his obligations to his wife as dutiful
husband.
Noveras v Noveras
Acts of abandonment and marital infidelity can result into the
forfeiture of the parties' properties in favor of the petitioner and
their two (2) children.
Abandonment, under Article 101 of the Family Code must be
for a valid cause and the spouse is deemed to have abandoned
the other when he/she has left the conjugal dwelling without
intention of returning. The intention of not returning is prima
facie presumed if the allegedly [sic] abandoning spouse failed
to give any information as to his or her whereabouts within the
period of three months from such abandonment.
13. Dissolution of CPG
FC Art. 126. The conjugal partnership terminates:
(1) Upon the death of either spouse;
(2) When there is a decree of legal separation;
(3) When the marriage is annulled or declared void; or
(4) In case of judicial separation of property during the marriage
under Articles 134 to 138.
Art. 129. Upon the dissolution of the conjugal partnership
regime, the following procedure shall apply:
(1) An inventory shall be prepared, listing separately all the
properties of the conjugal partnership and the exclusive
properties of each spouse.
(2) Amounts advanced by the conjugal partnership in payment
of personal debts and obligations of either spouse shall be
credited to the conjugal partnership as an asset thereof.
(3) Each spouse shall be reimbursed for the use of his or her
exclusive funds in the acquisition of property or for the value of
his or her exclusive property, the ownership of which has been
vested by law in the conjugal partnership.
(4) The debts and obligations of the conjugal partnership shall
be paid out of the conjugal assets. In case of insufficiency of
said assets, the spouses shall be solidarily liable for the unpaid
balance with their separate properties, in accordance with the
provisions of paragraph (2) of Article 121.
(5) Whatever remains of the exclusive properties of the
spouses shall thereafter be delivered to each of them.
(6) Unless the owner had been indemnified from whatever
source, the loss or deterioration of movables used for the
benefit of the family, belonging to either spouse, even due to
fortuitous event, shall be paid to said spouse from the conjugal
funds, if any.
(7) The net remainder of the conjugal partnership properties
shall constitute the profits, which shall be divided equally
between husband and wife, unless a different proportion or
division was agreed upon in the marriage settlements or unless
there has been a voluntary waiver or forfeiture of such share as
provided in this Code.
(8) The presumptive legitimes of the common children shall be
delivered upon the partition in accordance with Article 51.
(9) In the partition of the properties, the conjugal dwelling and
the lot on which it is situated shall, unless otherwise agreed
upon by the parties, be adjudicated to the spouse with whom
the majority of the common children choose to remain. Children
below the age of seven years are deemed to have chosen the
mother, unless the court has decided otherwise. In case there
is no such majority, the court shall decide, taking into
consideration the best interests of said children.
Cabreza v Cabreza
65
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
Case dismissed, original RTC decision already final and
executory. While there is no prohibition for private parties to file
a petition on their own behalf, it necessarily follows that they
take the risk of not having a lawyer who is well- versed in
appellate practice. After her failed petition in the CA, petitioner
already had the opportunity to rectify the situation by engaging
the services of a lawyer when she filed her petition before this
Court; yet for some reason, she chose not to do so. Thus, she
has no one else to blame but herself.
Heris of Go v Servacio
The conjugal partnership of gains must be subsisting at the
time of the effectivity of the Family Code. There being no
dispute that Protacio, Sr. and Marta were married prior to the
effectivity of the Family Code on August 3, 1988, their property
relation was properly characterized as one of conjugal
partnership governed by the Civil Code.
Protacio, Sr., although becoming a co-owner with his children
in respect of Marta’s share in the conjugal partnership, could
not yet assert or claim title to any specific portion of Marta’s
share without an actual partition of the property being first done
either by agreement or by judicial decree. Until then, all that he
had was an ideal or abstract quota in Marta’s share.
Nonetheless, a co-owner could sell his undivided share; hence,
Protacio, Sr. had the right to freely sell and dispose of his
undivided interest, but not the interest of his co-owners.
Consequently, the sale by Protacio, Sr. and Rito as co-owners
without the consent of the other co-owners was not necessarily
void, for the rights of the selling co-owners were thereby
effectively transferred, making the buyer (Servacio) a co-owner
of Marta’s share.
Ugalde v Ysasi
The action for dissolution of CPG should be dismissed. The
Amicable Settlement had become final as between petitioner
and respondent when it was approved by the CFI. The finality
of the Order approving the parties’ separation of property
resulted in the termination of the conjugal partnership of gains
in accordance with FC 175. Hence, the conjugal partnership
between petitioner and respondent was already dissolved.
Furthermore, the trial court exceeded its jurisdiction in ruling on
the validity of petitioner and respondent’s marriage, which was
only raised by respondent as a defense to the action for
dissolution of the conjugal partnership of gains.
Dino v Dino
It is clear from FC 50 that Sec. 19(1) of the Rule on Declaration
of Absolute Nullity applies only to marriages which are declared
void ab initio or annulled by final judgment under Arts. 40
(bigamous) and 45 (voidable) of the Family Code. In this case,
P’s marriage to R was declared void under FC 36 and not
under Arts. 40 or 45. Thus, what governs the liquidation of
properties owned in common by P and R are the rules on co-
ownership.* Sec. 19. Decision. - (1)If the court renders a
decision granting the petition, it shall declare therein that the
decree of absolute nullity or decree of annulment shall be
issued by the court only after compliance with Articles 50 and
51 of the Family Code as implemented under the Rule on
Liquidation, Partition and Distribution of Properties.
Yu v Carpio
The trial Court merely deferred the reception of evidence
relating to custody, support and property relations, in accord
with Sec. 19 and 21 of AM NO. 02-11-10 of the Court laying
down the procedure concerning petitions for declaration of
nullity of marriages. Custody of children, support, etc. are
merely incidental to annulment cases.
The effect of annulment on presumptive legitimes is laid out
inSec. 19 and 21 of AM 02-11-10, specifically Sec. 21which
provides that “upon entry of the judgment granting the petition,
the Family Court (RTC) shall proceed with the liquidation,
partition and distribution of the properties of the spouses,
including support of common children and delivery of their
presumptive legitimes pursuant to FC 50 and 51…”
Accordingly, FC 51provides that “the value of presumptive
legitimes of all common children, computed as of the date of
the final judgment of the trial court, shall be delivered in cash,
property or sound securities, unless the parties…”
Quiao v Quiao
Even if the marriage was still governed by the NCC, FC 129 is
applicable insofar as the liquidation of conjugal assets and
liabilities is concerned, because as per FC 256, the FC shall
have retroactive effect if it does not prejudice or impair vested
rights. Furthermore, at the time of the dissolution of the
marriage, the operative law is already the Family Code.
Barrido v Nonato
The records reveal that Nonato and Barrido’s marriage had
been declared void for psychological incapacity under FC 36.
During their marriage, however, the conjugal partnership
regime governed their property relations. Although Article 129
provides for the procedure in case of dissolution of the conjugal
partnership regime, Article 147 specifically covers the effects of
void marriages on the spouses’ property relations. This
particular kind of co-ownership applies when a man and a
woman, suffering no illegal impediment to marry each other,
exclusively live together as husband and wife under a void
marriageor without the benefit of marriage. Under this property
regime, property acquired by both spouses through their work
and industry shall be governed by the rules on equal co-
ownership.
Noverras v Noverras
Supra
*note: couldn’t find discussion on CPG
Uy v Estate of Fernandez
At that time, the conjugal partnership properties of Levi and
Vipa were not yet liquidated. However, such disposition, during
this is not necessarily void.
Although Levi became a co-owner of the conjugal partnership
properties with others, he could not yet assert or claim title to
any specific portion thereof without an actual partition of the
property being first done either by agreement or by judicial
decree. Before the partition of a land or thing held in common,
no individual or co-owner can claim title to any definite portion
thereof. All that the co-owner has is an ideal or abstract quota
or proportionate share in the entire land or thing.
Nevertheless, a co-owner could sell his undivided share;
hence, Levi had the right to freely sell and dispose of his
undivided interest.
D. Regime of Separation of Property
(a) In the marriage settlements
66
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
FC Art. 143. Should the future spouses agree in the marriage
settlements that their property relations during marriage shall
be governed by the regime of separation of property, the
provisions of this Chapter shall be suppletory. (212a)
Art. 144. Separation of property may refer to present or future
property or both. It may be total or partial. In the latter case, the
property not agreed upon as separate shall pertain to the
absolute community. (213a)
Art. 145. Each spouse shall own, dispose of, possess,
administer and enjoy his or her own separate estate, without
need of the consent of the other. To each spouse shall belong
all earnings from his or her profession, business or industry and
all fruits, natural, industrial or civil, due or received during the
marriage from his or her separate property. (214a)
Art. 146. Both spouses shall bear the family expenses in
proportion to their income, or, in case of insufficiency or default
thereof, to the current market value of their separate properties.
The liabilities of the spouses to creditors for family expenses
shall, however, be solidary. (215a)
(b) When mandatory
FC Art. 103. Upon the termination of the marriage by death, the
community property shall be liquidated in the same proceeding
for the settlement of the estate of the deceased.
If no judicial settlement proceeding is instituted, the surviving
spouse shall liquidate the community property either judicially
or extra-judicially within six months from the death of the
deceased spouse. If upon the lapse of the six months period,
no liquidation is made, any disposition or encumbrance
involving the community property of the terminated marriage
shall be void.
Should the surviving spouse contract a subsequent marriage
without compliance with the foregoing requirements, a
mandatory regime of complete separation of property shall
govern the property relations of the subsequent marriage. (n)
Art. 130. Upon the termination of the marriage by death, the
conjugal partnership property shall be liquidated in the same
proceeding for the settlement of the estate of the deceased.
If no judicial settlement proceeding is instituted, the surviving
spouse shall liquidate the conjugal partnership property either
judicially or extra-judicially within six months from the death of
the deceased spouse. If upon the lapse of the six-month period
no liquidation is made, any disposition or encumbrance
involving the conjugal partnership property of the terminated
marriage shall be void.
Should the surviving spouse contract a subsequent marriage
without compliance with the foregoing requirements, a
mandatory regime of complete separation of property shall
govern the property relations of the subsequent marriage.
(c) Reconciliation in legal separation
FC Art. 66(2). The reconciliation referred to in the preceding
Articles shall have the following consequences:
(2) The final decree of legal separation shall be set aside, but
the separation of property and any forfeiture of the share of the
guilty spouse already effected shall subsist, unless the spouses
agree to revive their former property regime.
The court's order containing the foregoing shall be recorded in
the proper civil registries.
(d) Judicial separation of property
FC Art. 134. In the absence of an express declaration in the
marriage settlements, the separation of property between
spouses during the marriage shall not take place except by
judicial order. Such judicial separation of property may either be
voluntary or for sufficient cause. (190a)
Art. 135. Any of the following shall be considered sufficient
cause for judicial separation of property:
(1) That the spouse of the petitioner has been sentenced to a
penalty which carries with it civil interdiction;
(2) That the spouse of the petitioner has been judicially
declared an absentee;
(3) That loss of parental authority of the spouse of petitioner
has been decreed by the court;
(4) That the spouse of the petitioner has abandoned the latter
or failed to comply with his or her obligations to the family as
provided for in Article 101;
(5) That the spouse granted the power of administration in the
marriage settlements has abused that power; and
(6) That at the time of the petition, the spouses have been
separated in fact for at least one year and reconciliation is
highly improbable.
In the cases provided for in Numbers (1), (2) and (3), the
presentation of the final judgment against the guilty or absent
spouse shall be enough basis for the grant of the decree of
judicial separation of property. (191a)
Art. 136. The spouses may jointly file a verified petition with the
court for the voluntary dissolution of the absolute community or
the conjugal partnership of gains, and for the separation of their
common properties.
All creditors of the absolute community or of the conjugal
partnership of gains, as well as the personal creditors of the
spouse, shall be listed in the petition and notified of the filing
thereof. The court shall take measures to protect the creditors
and other persons with pecuniary interest. (191a)
Art. 137. Once the separation of property has been decreed,
the absolute community or the conjugal partnership of gains
shall be liquidated in conformity with this Code.
During the pendency of the proceedings for separation of
property, the absolute community or the conjugal partnership
shall pay for the support of the spouses and their children.
(192a)
Art. 138. After dissolution of the absolute community or of the
conjugal partnership, the provisions on complete separation of
property shall apply. (191a)
Art. 139. The petition for separation of property and the final
judgment granting the same shall be recorded in the proper
local civil registries and registries of property. (193a)
Art. 140. The separation of property shall not prejudice the
rights previously acquired by creditors. (194a)
Art. 141. The spouses may, in the same proceedings where
67
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
separation of property was decreed, file a motion in court for a
decree reviving the property regime that existed between them
before the separation of property in any of the following
instances:
(1) When the civil interdiction terminates;
(2) When the absentee spouse reappears;
(3) When the court, being satisfied that the spouse granted the
power of administration in the marriage settlements will not
again abuse that power, authorizes the resumption of said
administration;
(4) When the spouse who has left the conjugal home without a
decree of legal separation resumes common life with the other;
(5) When parental authority is judicially restored to the spouse
previously deprived thereof;
(6) When the spouses who have separated in fact for at least
one year, reconcile and resume common life; or
(7) When after voluntary dissolution of the absolute community
of property or conjugal partnership has been judicially decreed
upon the joint petition of the spouses, they agree to the revival
of the former property regime. No voluntary separation of
property may thereafter be granted.
The revival of the former property regime shall be governed by
Article 67. (195a)
Art. 142. The administration of all classes of exclusive property
of either spouse may be transferred by the court to the other
spouse:
(1) When one spouse becomes the guardian of the other;
(2) When one spouse is judicially declared an absentee;
(3) When one spouse is sentenced to a penalty which carries
with it civil interdiction; or
(4) When one spouse becomes a fugitive from justice or is in
hiding as an accused in a criminal case.
If the other spouse is not qualified by reason of incompetence,
conflict of interest, or any other just cause, the court shall
appoint a suitable person to be the administrator. (n)
Art. 143. Should the future spouses agree in the marriage
settlements that their property relations during marriage shall
be governed by the regime of separation of property, the
provisions of this Chapter shall be suppletory. (212a)
Art. 144. Separation of property may refer to present or future
property or both. It may be total or partial. In the latter case, the
property not agreed upon as separate shall pertain to the
absolute community. (213a)
Art. 145. Each spouse shall own, dispose of, possess,
administer and enjoy his or her own separate estate, without
need of the consent of the other. To each spouse shall belong
all earnings from his or her profession, business or industry and
all fruits, natural, industrial or civil, due or received during the
marriage from his or her separate property. (214a)
Art. 146. Both spouses shall bear the family expenses in
proportion to their income, or, in case of insufficiency or default
thereof, to the current market value of their separate
properties.chan robles virtual law library
The liabilities of the spouses to creditors for family expenses
shall, however, be solidary
Ugalde v Ysasi
The Amicable Settlement had become final as between
petitioner and respondent when it was approved by the CFI.
The finality of the Order approving the parties’ separation of
property resulted in the termination of the conjugal partnership
of gains in accordance with FC 175. Hence, the conjugal
partnership between petitioner and respondent was already
dissolved. Furthermore, the trial court exceeded its jurisdiction
in ruling on the validity of petitioner and respondent’s marriage,
which was only raised by respondent as a defense to the action
for dissolution of the conjugal partnership of gains.
Noverras v Noverras
supra
E. Property Regime of Unions Without
Marriage
1. Unions under FC 147, 6, 35, 36,
53
FC Art. 147. When a man and a woman who are capacitated to
marry each other, live exclusively with each other as husband
and wife without the benefit of marriage or under a void
marriage, their wages and salaries shall be owned by them in
equal shares and the property acquired by both of them
through their work or industry shall be governed by the rules on
co-ownership.
In the absence of proof to the contrary, properties acquired
while they lived together shall be presumed to have been
obtained by their joint efforts, work or industry, and shall be
owned by them in equal shares. For purposes of this Article, a
party who did not participate in the acquisition by the other
party of any property shall be deemed to have contributed
jointly in the acquisition thereof if the former's efforts consisted
in the care and maintenance of the family and of the household.
Neither party can encumber or dispose by acts inter vivos of his
or her share in the property acquired during cohabitation and
owned in common, without the consent of the other, until after
the termination of their cohabitation.
When only one of the parties to a void marriage is in good faith,
the share of the party in bad faith in the co-ownership shall be
forfeited in favor of their common children. In case of default of
or waiver by any or all of the common children or their
descendants, each vacant share shall belong to the respective
surviving descendants. In the absence of descendants, such
share shall belong to the innocent party. In all cases, the
forfeiture shall take place upon termination of the cohabitation.
Art. 6. No prescribed form or religious rite for the solemnization
of the marriage is required. It shall be necessary, however, for
the contracting parties to appear personally before the
solemnizing officer and declare in the presence of not less than
two witnesses of legal age that they take each other as
husband and wife. This declaration shall be contained in the
marriage certificate which shall be signed by the contracting
parties and their witnesses and attested by the solemnizing
officer.
In case of a marriage in articulo mortis, when the party at the
point of death is unable to sign the marriage certificate, it shall
be sufficient for one of the witnesses to the marriage to write
the name of said party, which fact shall be attested by the
solemnizing officer.
Art. 35. The following marriages shall be void from the
68
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
beginning:
(1) Those contracted by any party below eighteen years of age
even with the consent of parents or guardians;
(2) Those solemnized by any person not legally authorized to
perform marriages unless such marriages were contracted with
either or both parties believing in good faith that the
solemnizing officer had the legal authority to do so;
(3) Those solemnized without license, except those covered the
preceding Chapter;
(4) Those bigamous or polygamous marriages not failing under
Article 41;
(5) Those contracted through mistake of one contracting party
as to the identity of the other; and
(6) Those subsequent marriages that are void under Article 53.
Art. 36. A marriage contracted by any party who, at the time of
the celebration, was psychologically incapacitated to comply
with the essential marital obligations of marriage, shall likewise
be void even if such incapacity becomes manifest only after its
solemnization.
Art. 53. Either of the former spouses may marry again after
compliance with the requirements of the immediately preceding
Article; otherwise, the subsequent marriage shall be null and
void.
Valdes v QC RTC
The SC ruled that Art. 50-52 are not controlling. In the
liquidation and partition of properties owned in common by the
ex-spouses, the provisions on ownership found in the CC shall
apply. And on the issue of disposing the family dwelling,
considering that this Court has already declared the marriage
as null and void ab initio, pursuant to Art 147, the property
regime of petitioner and respondent shall be governed by the
rules on ownership and provisions of Arts. 102 and 129 of the
FC finds no application. 
 Barrido v Nonato
The particular kind of co-ownership in Art 147 applies when a
man and a woman, suffering no illegal impediment to marry
each other, so exclusively live together as husband and wife
under a void marriage or without the benefit of marriage. The
term "capacitated" in the provision refers to the legal capacity of
a party to contract marriage. Under this property regime,
property acquired by both spouses through their work and
industry shall be governed by the rules on equal co-ownership.
Carino v Carino
The presumed validity of the marriage of Nicdao and Carino
has been sufficiently overcome and cannot stand because a
marriage license is required since it was not within any of the
exceptions. The marriage of Yee and Carino is void ab initio as
well for lack of judicial decree of nullity of marriage of Carino
and Nicdao at the time it was contracted. The marriages are
bigamous; under Article 148 of the Family Code, properties
acquired by the parties through their actual joint contribution
shall belong to the co-ownership. The decision of the trial court
and Court of Appeals is affirmed.
Gonzales v Gonzales
The Supreme Court was not persuaded with the argument of
the Husband. Rather, under art 147 which controls void
marriages, properties are divided equally as they are presumed
a product of joint efforts by the spouses. In the case at bar, this
presumption was not overturned for the reason that the
husband himself admitted that the wife helped him with his
pizza business.
Dino v Dino
Decree of absolute nullity of the marriage shall be issued upon
finality of the trial court’s decision without waiting for the
liquidation, partition, and distribution of the parties’ properties
under Article 147 of the Family Code. Section 19(1) of the Rule
applies only to marriages which are declared void ab initio or
annulled by final judgment under Articles 40 (bigamous) and 45
(voidable) of the Family Code. Here, it's under Art. 36. What
governs the liquidation of properties owned in common by
petitioner and respondent are the rules on co-ownership. It is
not necessary to liquidate the properties of the spouses in the
same proceeding for declaration of nullity of marriage.
Salas Jr., v Aguila
The properties are conjugal and hence should be partitioned.
Article 147 of the Family Code applies to the union of parties
who are legally capacitated and not barred by any impediment
to contract marriage, but whose marriage is nonetheless
declared void under Article 36 of the Family Code, as in this
case. Under this property regime, property acquired during the
marriage is prima facie presumed to have been obtained
through the couple’s joint efforts and governed by the rules on
co-ownership. In the present case, Salas did not rebut this
presumption. In a similar case where the ground for nullity of
marriage was also psychological incapacity, we held that the
properties acquired during the union of the parties, as found by
both the RTC and the CA, would be governed by co-ownership.
Accordingly, the partition of the Discovered Properties as
ordered by the RTC and the CA should be sustained, but on
the basis of co-ownership and not on the regime of conjugal
partnership of gains.
The records reveal that Nonato and Barrido’s marriage had
been declared void for psychological incapacity under FC 36.
During their marriage, however, the conjugal partnership
regime governed their property relations. Although Article 129
provides for the procedure in case of dissolution of the conjugal
partnership regime, Article 147 specifically covers the effects of
void marriages on the spouses’ property relations. This
particular kind of co-ownership applies when a man and a
woman, suffering no illegal impediment to marry each other,
exclusively live together as husband and wife under a void
marriageor without the benefit of marriage. Under this property
regime, property acquired by both spouses through their work
and industry shall be governed by the rules on equal co-
ownership. Any impediment to marry has not been shown to
have existed on the part of either Nonato or Barrido. They lived
exclusively with each other as husband and wife. However,
their marriage was found to be void under Article 36 of the
Family Code on the ground of psychological incapacity.
Barrido, however, claims that the ownership over the property
in question is already vested on their children, by virtue of a
Deed of Sale. But aside from the title to the property still being
registered in the names of the former spouses, said document
of sale does not bear a notarization of a notary public.
Therefore,the subject property remains to be owned in common
by Nonato and Barrido, which should be divided in accordance
with the rules on co-ownership.
2. Unions under FC 148, 35, 37 and
38
69
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
FC Art. 148. In cases of cohabitation not falling under the
preceding Article, only the properties acquired by both of the
parties through their actual joint contribution of money,
property, or industry shall be owned by them in common in
proportion to their respective contributions. In the absence of
proof to the contrary, their contributions and corresponding
shares are presumed to be equal. The same rule and
presumption shall apply to joint deposits of money and
evidences of credit.
If one of the parties is validly married to another, his or her
share in the co-ownership shall accrue to the absolute
community or conjugal partnership existing in such valid
marriage. If the party who acted in bad faith is not validly
married to another, his or her shall be forfeited in the manner
provided in the last paragraph of the preceding Article.
The foregoing rules on forfeiture shall likewise apply even if
both parties are in bad faith.
Art. 35. The following marriages shall be void from the
beginning:
(1) Those contracted by any party below eighteen years of age
even with the consent of parents or guardians;
(2) Those solemnized by any person not legally authorized to
perform marriages unless such marriages were contracted with
either or both parties believing in good faith that the
solemnizing officer had the legal authority to do so;
(3) Those solemnized without license, except those covered the
preceding Chapter;
(4) Those bigamous or polygamous marriages not failing under
Article 41;
(5) Those contracted through mistake of one contracting party
as to the identity of the other; and
(6) Those subsequent marriages that are void under Article 53.
Art. 37. Marriages between the following are incestuous and
void from the beginning, whether relationship between the
parties be legitimate or illegitimate:
(1) Between ascendants and descendants of any degree; and
(2) Between brothers and sisters, whether of the full or half
blood. (81a)
Art. 38. The following marriages shall be void from the
beginning for reasons of public policy:
(1) Between collateral blood relatives whether legitimate or
illegitimate, up to the fourth civil degree;
(2) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
(4) Between the adopting parent and the adopted child;
(5) Between the surviving spouse of the adopting parent and
the adopted child;
(6) Between the surviving spouse of the adopted child and the
adopter;
(7) Between an adopted child and a legitimate child of the
adopter;
(8) Between adopted children of the same adopter; and
(9) Between parties where one, with the intention to marry the
other, killed that other person's spouse, or his or her own
spouse.
Belcodero v. CA
Under both the NCC and the old Civil Code, "all property of the
marriage is presumed to belong to the conjugal partnership,
unless it be proved that it pertains exclusively to the husband or
to the wife.
The applicable prescriptive period for an action seeking a
reconveyance of the property by the beneficiaries is 10 years.
Ordinarily, that period starts from the establishment of the
implied trust being the day when the cause of action would be
considered to have accrued. However, the property involved in
this case is a realty titled under the Torrens System. The
prescriptive period is thus to be counted from the issuance of a
new certificate of title. Between the time TCT was issued and
the filing of the action, barely a period of 6 years had elapsed.
Agapay v Agapay
The provision of law applicable here is Art. 148 of the Family
Code providing for cases of cohabitation when a man and a
woman who are not capacitated to marry each other live
exclusively with each other as husband and wife without the
benefit of marriage or under a void marriage. While Miguel and
Erlinda contracted marriage on July 15, 1973, said union was
patently void because the earlier marriage of Miguel and
Carlina was still susbsisting and unaffected by the latter’s de
facto separation.
Under Art. 148, only the properties acquired by both of the
parties through their actual joint contribution of money, property
or industry shall be owned by them in common in proportion to
their respective contributions. It must be stressed that actual
contribution is required by this provision, in contrast to Art. 147
which states that efforts in the care and maintenance of the
family and household, are regarded as contributions to the
acquisition of common property by one who has no salary or
income or work or industry. If the actual contribution of the party
is not proved, there will be no co-ownership and no
presumption of equal shares.
Even assuming that the subject property was bought before
cohabitation, the rules of co-ownership would still apply and
proof of actual contribution would still be essential.
It is immaterial that Miguel and Carlina previously agreed to
donate their conjugal property in favor of their daughter
Herminia in 1975. Separation of property between spouses
during the marriage shall not take place except by judicial order
or without judicial conferment when there is an express
stipulation in the marriage settlements. The judgment which
resulted from the parties’ compromise was not specifically and
expressly for separation of property and should not be so
inferred.
Art. 87, FC expressly provides that the prohibition against
donations between spouses now applies to donations between
persons living together as husband and wife without a valid
marriage, for otherwise, the condition of those who incurred
guilt would turn out to be better than those in legal union.
Tumlos v Sps Fernandez
Not a co-owner of the subject property under Art. 144 NCC.
Article 148 FC governs property relations between Guillerma
and Mario; No evidence of actual joint contribution.
Article 144 applies only to a relationship between a man and a
woman who are not incapacitated to marry each other, or to
one in which the marriage of the parties is void from the
beginning. It does not apply to a cohabitation that amounts to
adultery or concubinage. In this case, based on evidence,
70
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
Mario Fernandez was incapacitated to marry petitioner because
he was legally married to Lourdes Fernandez. Such was also
admitted by the petitioner. Thus Art 144 is not applicable.
Atienza v De Castro
Since they are not capacitated to marry each other in their
cohabitation, FC 148 applies. Under this regime only the
properties acquired by both of the parties through their actual
joint contribution shall be owned by them in proportion to their
contributions. Absent of proof of contribution, it shall be
presumed to be equal. He did not show any evidence that he
contributed in the parcel of land while the accountant showed
bank accounts which apparently shows that she was
capacitated to buy the said land.
Signey v SSS
Since petitioner is disqualified to be a beneficiary and because
the deceased has no legitimate child, it follows that the
dependent illegitimate minor children of the deceased shall be
entitled to the death benefits as primary beneficiaries. The SSS
Law is clear that for a minor child to qualify as a “dependent,”
the only requirements are that he/she must be below 21 years
of age, not married nor gainfully employed. Had the legitimate
child of the deceased and Editha survived and qualified as a
dependent under the SSS Law, Ginalyn and Rodelyn would
have been entitled to a share equivalent to only 50% of the
share of the said legitimate child. Since the legitimate child of
the deceased predeceased him, Ginalyn and Rodelyn, as the
only qualified primary beneficiaries of the deceased, are
entitled to 100% of the benefits.
Borromeo v Descallar
Respondent was still legally married to another when she and
Jambrich lived together. In such an adulterous relationship, no
co-ownership exists between the parties. It is necessary for
each of the partners to prove his or her actual contribution to
the acquisition of property in order to be able to lay claim to any
portion of it. Presumptions of co-ownership and equal
contribution do not apply. The mere possession of a title does
not make one the true owner of the property. Thus, the mere
fact that respondent has the titles of the disputed properties in
her name does not necessarily, conclusively and absolutely
make her the owner. While the acquisition and the purchase by
foreigner Wilhelm Jambrich of the properties under litigation
were void ab initio since they were contrary to the Constitution
of the Philippines, the acquisition of these properties by plaintiff
who is a Filipino citizen from him, has cured the flaw in the
original transaction and the title of the transferee is valid.
Heirs of Maramag v De Guzman
Any person who is forbidden from receiving any donation under
Article 739 cannot be named beneficiary of a life insurance
policy of the person who cannot make any donation to him
If a concubine is made the beneficiary, it is believed that the
insurance contract will still remain valid, but the indemnity must
go to the legal heirs and not to the concubine, for evidently,
what is prohibited under Art. 2012 is the naming of the improper
beneficiary.
Lacbayan v Samoy
Samoy is not allowed by law to waive whatever share his lawful
spouse may have on the disputed properties.
Lacbayan herself admitted that she did not assent to the
Partition Agreement after seeing the need to amend the same
to include other matters. Lacbayan does not have any right to
insist on the contents of an agreement she intentionally refused
to sign.
Go-Bangayan v Bangayan
The question is whether the marriage between Sally and
Benjamin is bigamous. No. The elements of bigamy are: (1)
That the offender has been legally married; (2) That the
marriage has not been legally dissolved or, in case his or her
spouse is absent, the absent spouse could not yet be
presumed dead according to the Civil Code; (3) That he
contracts a second or subsequent marriage; (4) That the
second or subsequent marriage has all the essential requisites
for validity. In this case, the fourth element is not present. The
marriage license presented by Sally was not authentic as in
fact, no marriage license was ever issued to both parties in
view of the alleged marriage. The marriage between them was
merely in jest and never complied with the essential requisites
of marriage.
Lavadia v Heirs of Luna
As to co-ownership, the Agreement for Separation and Property
Settlement of Luna and R was void for lack of court approval.
Considering that Luna and R had not entered into any marriage
settlement prior to their marriage on September 10, 1947, the
system of relative community or conjugal partnership of gains
governed their property relations. And because the 2nd
marriage between Luna and P was void ab initio by virtue of its
being bigamous, the properties acquired during the bigamous
marriage were governed by the rules on co-ownership,
conformably with NCC 144.
Tambuyat v Tambuyat
Philippine Law does not recognize common law marriages. A
man and woman not legally married who cohabit for many
years as husband and wife, who represent themselves to the
public as husband and wife, and who are reputed to be
husband and wife in the community where they live may be
considered legally married in common law jurisdictions but not
in the Philippines.
Banguis and Adriano could not have been co-owners of the
subject property as she failed to present sufficient proof that
she contributed to the purchase of the subject property, while
the deed of sale covering the subject property showed that
Adriano alone was the vendee.
Fullido v Grilli
The Supreme Court, in clarifying the prohibition of foreigners
from acquiring lands in the Philippines, ruled: “The prohibition is
not limited to the sale of lands to foreigners. It also covers
leases of lands amounting to the transfer of all or substantially
all the rights of dominion. Where a scheme to circumvent the
Constitutional prohibition against the transfer of lands to aliens
is readily revealed as the purpose of the contracts, then the
illicit purpose becomes the illegal cause of rendering the
contracts void. Thus, if an alien is given not only a lease of, but
also an option to buy, a piece of land by virtue of which the
Filipino owner cannot sell or otherwise dispose of his property,
this to last for 50 years, then it becomes clear that the
arrangement is a virtual transfer of ownership whereby the
owner divests himself in stages not only the right to dispose of
it — rights which constitute ownership”.
“Clearly, contracts may be declared void even in a summary
action for unlawful detainer because, precisely, void contracts
71
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
do not produce legal effect and cannot be the source of any
rights. To emphasize, void contracts may be invoked as a valid
action or defense in any court proceeding, including an
ejectment suit.”
“And on the issue of in pari delicto where Gino claims that both
he and Rebecca were guilty of circumventing the law and
cannot get reliefs from the courts, the High Court said: “The
application of the doctrine of in pari delicto is not always rigid.
An accepted exception arises when its application contravenes
well-established public policy. In this jurisdiction, public policy
has been defined as that principle of the law which holds that
no subject or citizen can lawfully do that which has a tendency
to be injurious to the public or against public good. Thus,
wherever public policy is advanced by either party, they may be
allowed to sue relief against the transaction.
XII. The Family
FC Art. 149. The family, being the foundation of the nation, is a
basic social institution which public policy cherishes and
protects. Consequently, family relations are governed by law
and no custom, practice or agreement destructive of the family
shall be recognized or given effect. (216a, 218a)
Art. 150. Family relations include those:
(1) Between husband and wife;
(2) Between parents and children;
(3) Among brothers and sisters, whether of the full or half-
blood. (217a)
Art. 151. No suit between members of the same family shall
prosper unless it should appear from the verified complaint or
petition that earnest efforts toward a compromise have been
made, but that the same have failed. If it is shown that no such
efforts were in fact made, the same case must be dismissed.
This rules shall not apply to cases which may not be the subject
of compromise under the Civil Code.
NCC Art. 2035. No compromise upon the following questions
shall be valid:
(1) The civil status of persons;
(2) The validity of a marriage or a legal separation;
(3) Any ground for legal separation;
(4) Future support;
(5) The jurisdiction of courts;
(6) Future legitime.
Tribiana v Tribiana
It is true that the petition for habeas corpus filed by Lourdes
failed to allege that she resorted to compromise proceedings
before filing the petition. However, in her opposition to Edwin’s
motion to dismiss, Lourdes attached a Barangay Certification to
File Action dated 1 May 1998. Evidently, Lourdes has complied
with the condition precedent under Article 151 of the Family
Code. A dismissal under Section 1(j) of Rule 16 is warranted
only if there is a failure to comply with a condition precedent.
Given that the alleged defect is a mere failure to allege
compliance with a condition precedent, the proper solution is
not an outright dismissal of the action, but an amendment
under Section 1 of Rule 10 of the 1997 Rules of Civil
Procedure.
Moreover, in a habeas corpus proceeding involving the welfare
and custody of a child of tender age, the paramount concern is
to resolve immediately the issue of who has legal custody of
the child. Technicalities should not stand in the way of giving
such child of tender age full protection. This rule has sound
statutory basis in Article 213 of the Family Code, which states,
"No child under seven years of age shall be separated from the
mother unless the court finds compelling reasons to order
otherwise."
Hiyas Savings v Acuna
The SC affirmed the RTC. Article 151 provides that, “No suit
between members of the same family shall prosper unless it
should appear for the verified complaint that earnest efforts
toward a compromise have been made, but that the same have
failed. If it is shown that no such efforts were in fact made, the
case must be dismissed.” Once a stranger becomes a party to
a suit involving members of the same family, Article 151 no
longer applies. Article 151 only bar suits against members of
the same family. Since there are no family relations between
Moreno and Hiyas (under Article 150, FC and 217, CC), the suit
against petitioners will prosper.
Heirs of Favis Sr. v Gonzales et. al.
A failure to allege earnest but failed efforts at a compromise in
a complaint among members of the same family, is not a
jurisdictional defect but merely a defect in the statement of a
cause of action. The defect may however be waived by failing
to make seasonable objection, in a motion to dismiss or
answer, the defect being a mere procedural imperfection which
does not affect the jurisdiction of the court.
Art. 151 of FC shall not apply to cases which may not be the
subject of compromise under the Civil Code. That a condition
precedent for filing the claim has not been complied with, (a
ground for a motion to dismiss emanating from the law that no
suit between members from the same family shall prosper
unless it should appear from the verified complaint that earnest
efforts toward a compromise have been made but had failed),
is, as the Rule so words, a ground for a motion to dismiss.
Significantly, the Rule requires that such a motion should be
filed "within the time for but before filing the answer to the
complaint or pleading asserting a claim." The time frame
indicates that thereafter, the motion to dismiss based on the
absence of the condition precedent is barred. Sec. 1, Rule 9
(deemed waived defenses and objections) admits only of 4
exceptions. Earnest efforts is not one of them. Upon such
failure, the defense is deemed waived.
XIII. The Family Home
FC Art. 152. The family home, constituted jointly by the
husband and the wife or by an unmarried head of a family, is
the dwelling house where they and their family reside, and the
land on which it is situated.
Art. 153. The family home is deemed constituted on a house
and lot from the time it is occupied as a family residence. From
the time of its constitution and so long as any of its
beneficiaries actually resides therein, the family home
continues to be such and is exempt from execution, forced sale
or attachment except as hereinafter provided and to the extent
of the value allowed by law.
Art. 154. The beneficiaries of a family home are:
(1) The husband and wife, or an unmarried person who is the
head of a family; and
(2) Their parents, ascendants, descendants, brothers and
72
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
sisters, whether the relationship be legitimate or illegitimate,
who are living in the family home and who depend upon the
head of the family for legal support.
Art. 155. The family home shall be exempt from execution,
forced sale or attachment except:
(1) For nonpayment of taxes;
(2) For debts incurred prior to the constitution of the family
home;
(3) For debts secured by mortgages on the premises before or
after such constitution; and
(4) For debts due to laborers, mechanics, architects, builders,
materialmen and others who have rendered service or
furnished material for the construction of the building.
Art. 156. The family home must be part of the properties of the
absolute community or the conjugal partnership, or of the
exclusive properties of either spouse with the latter's consent. It
may also be constituted by an unmarried head of a family on
his or her own property.
Nevertheless, property that is the subject of a conditional sale
on installments where ownership is reserved by the vendor only
to guarantee payment of the purchase price may be constituted
as a family home.
Art. 158. The family home may be sold, alienated, donated,
assigned or encumbered by the owner or owners thereof with
the written consent of the person constituting the same, the
latter's spouse, and a majority of the beneficiaries of legal age.
In case of conflict, the court shall decide.
Art. 159. The family home shall continue despite the death of
one or both spouses or of the unmarried head of the family for
a period of ten years or for as long as there is a minor
beneficiary, and the heirs cannot partition the same unless the
court finds compelling reasons therefor. This rule shall apply
regardless of whoever owns the property or constituted the
family home.
Art. 160. When a creditor whose claims is not among those
mentioned in Article 155 obtains a judgment in his favor, and he
has reasonable grounds to believe that the family home is
actually worth more than the maximum amount fixed in Article
157, he may apply to the court which rendered the judgment for
an order directing the sale of the property under execution. The
court shall so order if it finds that the actual value of the family
home exceeds the maximum amount allowed by law as of the
time of its constitution. If the increased actual value exceeds
the maximum allowed in Article 157 and results from
subsequent voluntary improvements introduced by the person
or persons constituting the family home, by the owner or
owners of the property, or by any of the beneficiaries, the same
rule and procedure shall apply.
At the execution sale, no bid below the value allowed for a
family home shall be considered. The proceeds shall be applied
first to the amount mentioned in Article 157, and then to the
liabilities under the judgment and the costs. The excess, if any,
shall be delivered to the judgment debtor.
Patricio v. Dario
The family home shall continue despite the death of the person/
persons who constituted the family home for a period of 10
years, or for as long as there is a minor beneficiary, and the
heirs cannot partition the same unless the court finds
compelling reasons. This shall apply regardless of whoever
owns the property or constituted the family home.
The three (3) requisites must concur before a minor beneficiary
is entitled to the benefits of Art. 159 of the Family Code:
(1) the relationship enumerated in Art. 154 of the Family Code;
(2) they live in the family home; and
(3) they are dependent for legal support upon the head of the
family.
Arriola v. Arriola
(sons from 2 marriages partitioned the estate and included the family
home in a public auction)
The family home cannot be sold. Although the house, as
accessory to the land, forms part of the estate of the deceased
which has passed by succession to the co- ownership of the
heirs, the family home continues to be as such for a period of
10 years after the death of the head of the family. House and
the land on which it stands cannot be immediately partitioned
under Art. 159 of FC.
Modequillo v. Breva
(Family home was levied as payment for a case that became final
before August 1988)
Levy was valid because FC Art 152-153 have no retroactive
effect. The accident took place in 1976 and the judgment
became final in January 1988, both before the effectivity of the
FC in Aug 1988. Their home was not judicially/extrajudicially
constituted as a family home as required in the Old CC. Their
house is not exempt from execution.
Cabang v. Basay
The family home must be established on the properties of (a)
the absolute community, or (b) the conjugal partnership, or (c)
the exclusive property of either spouse with the consent of the
other. It cannot be established on property held in co-ownership
with third persons. However, it can be established partly on
community property, or conjugal property and partly on the
exclusive property of either spouse with the consent of the
latter. If constituted by an unmarried head of a family, where
there is no communal or conjugal property existing, it can be
constituted only on his or her own property.
Ramos v. Pangilinan
(Home was allegedly constituted in 1944 – see Modequillo)
Property not exempt for lack of proof that it was constituted
judicially/extrajudicially. If the family home was constructed
before the effectivity of the Family Code, then it must have
been constituted either judicially or extra-judicially. For family
homes constructed after the effectivity of the Family Code,
there is no need to constitute extra judicially or judicially, and
the exemption is effective from the time it was constituted and
lasts as long as any of its beneficiaries reside therein.
Equitable v. OJ Mark
(Condo unit was being alleged to be a family home, not corporate
property)
Assuming arguendo that the mortgaged condominium unit
constitutes respondents’ family home, the same will not exempt
it from foreclosure as Art. 155 (3) FC allows the execution or
forced sale of a family home "for debts secured by mortgages
on the premises before or after such constitution."
De Mesa v. Acero
73
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
(I think this summarized the rules for executions against the family
home, kaya mej mahaba)
Rules on constitution of family homes, for purposes of
exemption from execution:
First, family residences constructed before theeffectivity of the
Family Code or before August 3, 1988 must be constituted as a
family home either judicially or extrajudicially in accordance
with the provisions of the Civil Code in order to be exempt from
execution;
Second, family residences constructed after the effectivity of
the Family Code on August 3, 1988 are automatically deemed
to be family homes and thus exempt from execution from the
time it was constituted and lasts as long as any of its
beneficiaries actually resides therein;
Third, family residences which were not judicially or
extrajudicially constituted as a family home prior to the
effectivity of the Family Code, but were existing thereafter, are
considered as family homes by operation of law and are
prospectively entitled to the benefits accorded to a family home
under the Family Code.
The settled rule is that the right to exemption or forced sale
under Article 153 of the Family Code is a personal privilege
granted to the judgment debtor and as such, it must be claimed
not by the sheriff, but by the debtor himself before the sale of
the property at public auction. It is not sufficient that the person
claiming exemption merely alleges that such property is a
family home. This claim for exemption must be set up and
proved to the Sheriff.
Fortaleza v. Lapitan
Article 155 (3) FC explicitly allows the forced sale of a family
home “for debts secured by mortgages”. Spouses Fortaleza
voluntarily executed a Deed of Real Estate Mortgage over the
property which was even notarized by their original counsel.
They did not set up and prove to the Sheriff such exemption
from forced sale before it was sold at public auction. They
neither made a formal offer to redeem the property
accompanied by an actual and simultaneous tender of
payment. Thus, spouses Fortaleza have waived their right of
redemption.
Eulogio v. Bell
The exemption of the family home from execution, forced sale
or attachment is limited to 300,000 in urban areas and 200,000
in rural areas unless those maximum values are adjusted by
law.
Any subsequent improvement or enlargement of the family
home by the persons constituting it, its owners, or any of its
beneficiaries will still be exempt from execution, forced sale or
attachment provided the following conditions obtain:
(a) the actual value of the property at the time of its constitution
has been determined to fall below the statutory limit; and
(b) the improvement or enlargement does not result in an
increase in its value exceeding the statutory limit.
Otherwise, the family home can be the subject of a forced sale,
and any amount above the statutory limit is applicable to the
obligations under Articles 155 and 160.
XIV. Paternity and Filiation
A. Concept of Paternity, Filiation and
Legitimacy
FC Art. 163. The filiation of children may be by nature or by
adoption. Natural filiation may be legitimate or illegitimate.
B. Legitimate Children
FC Art. 164. Children conceived or born during the marriage of
the parents are legitimate.
Children conceived as a result of artificial insemination of the
wife with the sperm of the husband or that of a donor or both
are likewise legitimate children of the husband and his wife,
provided, that both of them authorized or ratified such
insemination in a written instrument executed and signed by
them before the birth of the child. The instrument shall be
recorded in the civil registry together with the birth certificate of
the child.
Angeles v. Maglaya
(lack of evidence to prove filiation as only birth certicate – unsigned by
the putative father – was presented, and was only signed by the
attending physician)
The legitimate filiation of a child is a matter fixed by law itself, it
cannot be made dependent on the declaration of the attending
physician or midwife, or that of the mother of the newborn child.
SSS v. Aguas
Presumption of legitimacy becomes conclusive in the absence
of proof that there is physical impossibility of access between
the spouses during the first 120 days of the 300 days which
immediately precedes the birth of the child due to
(a) the physical incapacity of the husband to have sexual
intercourse with his wife;
(b) the fact that the husband and wife are living separately in
such way that sexual intercourse is not possible; or
(c) serious illness of the husband, which absolutely prevents
sexual intercourse. Upon the expiration of the periods set forth
in Article 170, and in proper cases Article 171, of the FC the
action to impugn the legitimacy of the child would no longer be
legally feasible and the status conferred by the presumption
becomes fixed and unassailable.
Basbas v. Basbas
A claim of status as heir of a decedent must always be
substantially supported by evidence as required under our law.
The resolution of a case, in this instance, an action for
annulment of title and reconveyance of real property, cannot be
further stalled and waylaid by a mere assertion of a party of an
ostensible conflicting claims of heirship of the common
decedent. Not all rights to property and incidents thereof, such
as titling, ought to be preceded by a declaration of heirship,
albeit supposedly traced to a single decedent and original
titleholder.
1. Who are considered legitimate
children
A. Legitimate Proper
FC Art. 164. Children conceived or born during the marriage of
the parents are legitimate.
Children conceived as a result of artificial insemination of the
74
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
wife with the sperm of the husband or that of a donor or both 1. Valid Marriage
are likewise legitimate children of the husband and his wife,
provided, that both of them authorized or ratified such
2. Terminated Marriage under
insemination in a written instrument executed and signed by FC Art. 42 in rel. to FC Art.
them before the birth of the child. The instrument shall be 43 (1)
recorded in the civil registry together with the birth certificate of
the child.
NCC Art. 40. Birth determines personality; but the conceived
child shall be considered born for all purposes that are
a. Conceived during marriage favorable to it, provided it be born later with the conditions
specified in the following article.
(cf)
ROC Rule 131. Section 3. Disputable presumptions. — The
following presumptions are satisfactory if uncontradicted, but
may be contradicted and overcome by other evidence:
3. Void marriages under FC
Art. 53 and Art. 36
(dd) That if the marriage is terminated and the mother 4. Voidable marriages, FC Art.
contracted another marriage within three hundred days after
such termination of the former marriage, these rules shall
45
govern in the absence of proof to the contrary:
Suntay v. Suntay
(1) A child born before one hundred eighty days after the Children conceived of voidable marriages before the decree of
solemnization of the subsequent marriage is annulment shall be considered legitimate; and children
considered to have been conceived during such conceived thereafter shall have the same status, rights and
marriage, even though it be born within the three obligations as acknowledged natural children, and are also
hundred days after the termination of the former called natural children by legal fiction.
marriage.

(2) A child born after one hundred eighty days following
the celebration of the subsequent marriage is
considered to have been conceived during such
marriage, even though it be born within the three
hundred days after the termination of the former
marriage.
FC Art. 168. If the marriage is terminated and the mother
contracted another marriage within three hundred days after
such termination of the former marriage, these rules shall
govern in the absence of proof to the contrary:
(1) A child born before one hundred eighty days after the
solemnization of the subsequent marriage is considered to
have been conceived during the former marriage, provided it be
born within three hundred days after the termination of the
former marriage;
(2) A child born after one hundred eighty days following the
celebration of the subsequent marriage is considered to have
been conceived during such marriage, even though it be born
within the three hundred days after the termination of the
former marriage.
b. Born during marriage
c. Conceived by artificial
insemination
NCC Art. 40. Birth determines personality; but the conceived
child shall be considered born for all purposes that are
favorable to it, provided it be born later with the conditions
specified in the following article.
FC Art. 164. Children conceived or born during the marriage of
the parents are legitimate.
Children conceived as a result of artificial insemination of the
wife with the sperm of the husband or that of a donor or both
are likewise legitimate children of the husband and his wife,
provided, that both of them authorized or ratified such
insemination in a written instrument executed and signed by
them before the birth of the child. The instrument shall be
recorded in the civil registry together with the birth certificate of
the child.

Arbolario v. CA 2. Proof of filiation of legitimate

In the absence of any fact that would show that the conjugal
union had been judicially annulled before one spouse cohabited
with a third party, it would only be reasonable to conclude that
the subsequent union which resulted in the birth of the
[Arbolarios] was extra-marital. And consequently, said
[Arbolarios] are illegitimate children.
As held by the appellate court, without proof that the wife died,
her marriage is presumed to have continued. Even where there
is actual severance of the filial companionship between
spouses, their marriage subsists, and either spouse’s
cohabitation with any third party cannot be presumed to be
between “husband and wife.”
children
FC Art. 172. The filiation of legitimate children is established by
any of the following:
(1) The record of birth appearing in the civil register or a final
judgment; or
(2) An admission of legitimate filiation in a public document or a
private handwritten instrument and signed by the parent
concerned.
In the absence of the foregoing evidence, the legitimate filiation
shall be
proved by:
(1) The open and continuous possession of the status of a
legitimate child; or
(2) Any other means allowed by the Rules of Court and special

75
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
laws.
Art. 173. The action to claim legitimacy may be brought by the
child during his or her lifetime and shall be transmitted to the
heirs should the child die during minority or in a state of
insanity. In these cases, the heirs shall have a period of five
years within which to institute the action.
Trinidad v. CA
In the absence of a marriage certificate, any of the four can be
sufficient proof of marriage: fact of marriage ceremony, open
cohabitation of the parties, birth certificate of the child, and
other documents. For filiation, when the birth certificate can’t be
produced, other evidence like the baptismal certificate, is
admissible. Use of surname without objection is also
presumptive evidence of legitimacy.
De Jesus vs. Estate of Juan Gamboa Dizon
The presumption that children born in wedlock are legitimate
becomes conclusive in the absence of proof that there is
physical impossibility of access between the spouses during
the first 120 days of the 300 days which immediately precedes
the birth of the child due to (a) the physical incapacity of the
husband to have sexual intercourse with his wife; (b) the fact
that the husband and wife are living separately in such a way
that sexual intercourse is not possible; or (c) serious illness of
the husband, which absolutely prevents sexual intercourse.
Jurisprudence is strongly settled that the paramount declaration
of legitimacy by law cannot be attacked collaterally, one that
can only be repudiated or contested in a direct suit specifically
brought for that purpose. Indeed, a child so born in such
wedlock shall be considered legitimate although the mother
may have declared against its legitimacy or may have been
sentenced as having been an adulteress.
Ong vs. Diaz
The death of the petitioner does not ipso facto negate the
application of DNA testing for as long as there exists
appropriate biological samples of his DNA. According to
jurisprudence, DNA testing, which examines genetic codes
obtained from body cells of the illegitimate child and any
physical residue of the long dead parent could be resorted to.
Tison vs. CA
Proper party to contest legitimacy: Only the husband can
contest the legitimacy of a child born to his wife.
Re: evidence of relationship:
A declaration about pedigree which is admissible, as an
exception to the hearsay rule, subject to the following
conditions: (1) that the declarant is dead or unable to testify; (2)
that the declarant be related to the person whose pedigree is
the subject of inquiry; (3) that such relationship be shown by
evidence other than the declaration; and (4) that the declaration
was made ante litem motam, that is, not only before the
commencement of the suit involving the subject matter of the
declaration, but before any controversy has arisen thereon.
Conformably, the declaration made by Teodora Dezoller
Guerrero that petitioner Corazon is her niece, is admissible and
constitutes sufficient proof of such relationship, notwithstanding
the fact that there was no other preliminary evidence thereof,
the reason being that such declaration is rendered competent
by virtue of the necessity of receiving such evidence to avoid a
failure of justice. Nonetheless, the same may be admitted by
reason of private respondents failure to interpose any timely
objection thereto at the time they were being offered in
evidence
Aguilar vs. Siasat
Filiation may be proved by an admission of legitimate filiation in
a public document or a private handwritten instrument and
signed by the parent concerned, and such due recognition in
any authentic writing is, in itself, a consummated act of
acknowledgment of the child, and no further court action is
required.
N.B.: Any authentic writing is treated not just a ground for
compulsory recognition; it is in itself a voluntary recognition that
does not require a separate action for judicial approval.
3. Rights of legitimate children
FC Art. 173. The action to claim legitimacy may be brought by
the child during his or her lifetime and shall be transmitted to
the heirs should the child die during minority or in a state of
insanity. In these cases, the heirs shall have a period of five
years within which to institute the action.
Art. 174. Legitimate children shall have the right:
(1) To bear the surnames of the father and the mother, in
conformity with the provisions of the Civil Code on Surnames;
(2) To receive support from their parents, their ascendants, and
in proper cases, their brothers and sisters, in conformity with
the provisions of this Code on Support; and
(3) To be entitled to the legitimate and other successional rights
granted to them by the Civil Code.
NCC Art. 364. Legitimate and legitimated children shall
principally use the surname of the father.
Art. 374. In case of identity of names and surnames, the
younger person shall be obliged to use such additional name or
surname as will avoid confusion.
Art. 376. No person can change his name or surname without
judicial authority.
Art. 888. The legitime of legitimate children and descendants
consists of one-half of the hereditary estate of the father and of
the mother.
The latter may freely dispose of the remaining half, subject to
the rights of illegitimate children and of the surviving spouse as
hereinafter provided.
Art. 979. Legitimate children and their descendants succeed
the parents and other ascendants, without distinction as to sex
or age, and even if they should come from different marriages.
An adopted child succeeds to the property of the adopting
parents in the same manner as a legitimate child.
4. Grounds to impugn legitimacy
FC Art. 166. Legitimacy of a child may be impugned only on
the following grounds:
(1) That it was physically impossible for the husband to have
sexual intercourse with his wife within the first 120 days of the
300 days which immediately preceded the birth of the child
76
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
because of:
(a) the physical incapacity of the husband to have sexual
intercourse with his wife;
(b) the fact that the husband and wife were living
separately in such a way that sexual intercourse was not
possible; or
(c) serious illness of the husband, which absolutely
prevented sexual intercourse;
(2) That it is proved that for biological or other scientific
reasons, the child could not have been that of the husband,
except in the instance provided in the second paragraph of
Article 164; or
(3) That in case of children conceived through artificial
insemination, the written authorization or ratification of either
parent was obtained through mistake, fraud, violence,
intimidation, or undue influence.
a. Physical impossibility of
access
Andal v. Macaraig
The boy is presumed to be the legitimate son having been born
within 300 days following the dissolution of the marriage. This
presumption can only be rebutted by proof that it was physically
impossible for the husband to have had access during the first
120 days of the 300 next preceding the birth of the child.
The fact that the wife has committed adultery can not overcome
this presumption. There are cases where persons suffering
from this sickness can do the carnal act even in the most
crucial stage because they are more inclined to sexual
intercourse.
Concepcion vs. CA
Gerardo has no standing in the law to dispute the status of
Jose (son) as Gerardo was never the husband of Maria. Only
Mario (husband 1) or his heirs can contest the legitimacy. To
overthrow assumption of legitimacy, it must be shown beyond
reasonable doubt that there was no access that could have
enable the husband to father the child. Sexual intercourse is to
be presumed where personal access is not disproved, unless
such presumption is rebutted by evidence to the contrary.
b. Biological or other scientific
grounds
FC Art. 170. The action to impugn the legitimacy of the child
shall be brought within one year from the knowledge of the birth
or its recording in the civil register, if the husband or, in a
proper case, any of his heirs, should reside in the city or
municipality where the birth took place or was recorded.
If the husband or, in his default, all of his heirs do not reside at
the place of birth as defined in the first paragraph or where it
was recorded, the period shall be two years if they should
reside in the Philippines; and three years if abroad. If the birth
of the child has been concealed from or was unknown to the
husband or his heirs, the period shall be counted from the
discovery or knowledge of the birth of the child or of the fact of
registration of said birth, whichever is earlier.
Art. 171. The heirs of the husband may impugn the filiation of
the child within the period prescribed in the preceding article
only in the following cases:
(1) If the husband should died before the expiration of the
period fixed for bringing his action;
(2) If he should die after the filing of the complaint without
having desisted therefrom; or
(3) If the child was born after the death of the husband.
Estate of Rogelio Ong v. Minor Joanne Diaz
The death of the petitioner does not ipso facto negate the
application of DNA testing for as long as there exist appropriate
biological samples of his DNA.
On Filiation:
Filiation proceedings are usually filed not just to adjudicate
paternity but also to secure a legal right associated with
paternity, such as citizenship, support, or inheritance. The
burden of proving paternity is on the person who alleges that
the putative father is the biological father of the child. The 4
significant procedural aspects of a traditional paternity actions
are: a prima facie case, affirmative defenses, presumption of
legitimacy and physical resemblance between putative father
and child. Important is the presumption that a child born to a
husband and wife during a valid marriage is legitimate. The law
requires that every reasonable presumption be made in favor of
legitimacy—this, however, is not conclusive and may be
overthrown by evidence to the contrary.
Lucas v. Lucas
To warrant the issuance of the DNA testing order, there must
be a show cause hearing wherein the applicant must first
present sufficient evidence to establish a prima facie case or a
reasonable possibility of paternity or “good cause” for the
holding of the test.
The same condition precedent should be applied in our
jurisdiction to protect the putative father from mere harassment
suits. Thus, during the hearing on the motion for DNA testing,
the petitioner must present prima facie evidence or establish a
reasonable possibility of paternity.
c. FC 166(3)
FC Art. 166. Legitimacy of a child may be impugned only on
the following grounds:
(3) That in case of children conceived through artificial
insemination, the written authorization or ratification of either
parent was obtained through mistake, fraud, violence,
intimidation, or undue influence.
5. Action to impugn legitimacy
Reyes vs. Mauricio
It is settled law that filiation cannot be collaterally attacked. The
legitimacy of the child cannot be contested by way of defense
or as a collateral issue in another action for a different purpose.
This action can be brought only by the husband or his heirs and
within the periods fixed in Art. 170 and 171 of the Family Code.
Republic vs. Magpayo
Since respondent’s desired change (change in surname)
affects his civil status from legitimate to illegitimate, Rule 108
applies. A petition which concerns one’s civil status should be
filed in the civil registry in which the entry sought to be
cancelled or corrected, and “all persons who have or claim any
interest which would be affected thereby” should be made
parties to the proceeding.
77
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
Geronimo vs. Santos
Proof of legitimacy or illegitimacy should only be raised in a
direct and separate action instituted to prove the filiation of a
child. The legitimacy of the child cannot be contested by way of
defense or as a collateral issue in another action for a different
purpose.
6. Effect of a mother’s declaration
FC Art. 167. The child shall be considered legitimate although
the mother may have declared against its legitimacy or may
have been sentenced as an adulteress. (256a)
7. In subsequent marriages
FC Art. 168. If the marriage is terminated and the mother
contracted another marriage within three hundred days after
such termination of the former marriage, these rules shall
govern in the absence of proof to the contrary:

(1) A child born before one hundred eighty days after the
solemnization of the subsequent marriage is considered to
have been conceived during the former marriage, provided it be
born within three hundred days after the termination of the
former marriage;
 insanity. In these cases, the heirs shall have a period of five
(2) A child born after one hundred eighty days following the
celebration of the subsequent marriage is considered to have
been conceived during such marriage, even though it be born
within the three hundred days after the termination of the
former marriage. (259a)
169. The legitimacy or illegitimacy of a child born after three
hundred days following the termination of the marriage shall be
proved by whoever alleges such legitimacy or illegitimacy.
(261a)
People vs. Quitoriano
The fact that private complainant gave birth more than 10
months after the alleged rape does not discredit her testimony.
The normal gestation period is 40 weeks, but it can also extend
beyond 40 weeks if the woman is having her first pregnancy,
which is the case here.
8. Presumptions
FC Art. 170. The action to impugn the legitimacy of the child
shall be brought within one year from the knowledge of the birth
or its recording in the civil register, if the husband or, in a
proper case, any of his heirs, should reside in the city or
municipality where the birth took place or was recorded.
If the
husband or, in his default, all of his heirs do not reside at the
place of birth as defined in the first paragraph or where it was
recorded, the period shall be two years if they should reside in
the Philippines; and three years if abroad. If the birth of the
child has been concealed from or was unknown to the husband
or his heirs, the period shall be counted from the discovery or
knowledge of the birth of the child or of the fact of registration of
said birth, whichever is earlier. (263a)

171. The heirs of the husband may impugn the filiation of the
child within the period prescribed in the preceding article only in
the following cases:

(1) If the husband should died before the expiration of the
period fixed for bringing his action;

(2) If he should die after the filing of the complaint without
having desisted therefrom; or

(3) If the child was born after the death of the husband. (262a)

C. Illegitimate Children
1. Who are considered illegitimate
FC Art. 165. Children conceived and born outside a valid
marriage are illegitimate, unless otherwise provided in this
Code. (n)

Uy vs. Ngo Chua
The status and filiation of a child cannot be compromised.
Paternity and filiation or the lack of the same, is a relationship
that must be judicially established, and it is for the Court to
declare its existence or absence. It cannot be left to the will or
agreement of the parties.
2. Rights of illegitimate children
FC Art. 173. The action to claim legitimacy may be brought by
the child during his or her lifetime and shall be transmitted to
the heirs should the child die during minority or in a state of
years within which to institute the action.
172. The filiation of legitimate children is established by any of
the following:

(1) The record of birth appearing in the civil register or a final
judgment; or

(2) An admission of legitimate filiation in a public document or a
private handwritten instrument and signed by the parent
concerned.

In the absence of the foregoing evidence, the legitimate
filiation shall be
proved by:

(1) The open and continuous possession of the status of a
legitimate child; or

(2) Any other means allowed by the Rules of Court and special
laws. (265a, 266a, 267a)
175. Illegitimate children may establish their illegitimate filiation
in the same way and on the same evidence as legitimate
children.
The action must be brought within the same period specified in
Article 173, except when the action is based on the second
paragraph of Article 172, in which case the action may be
brought during the lifetime of the alleged parent. (289a)
176. Illegitimate children shall use the surname and shall be
under the parental authority of their mother, and shall be
entitled to support in conformity with this Code. The legitime of
each illegitimate child shall consist of one-half of the legitime of
a legitimate child. Except for this modification, all other
provisions in the Civil Code governing successional rights shall
remain in force. (287a)
78
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
Maramag vs. De Guzman17
GR is that only persons entitled to claim the insurance
proceeds are either the insured (if still alive) or the beneficiary
(if the insured is already deceased).
De la Cruz vs. Gracia
Art. 176 of the Family Code, as amended by RA 9255, permits
an illegitimate child to use the surname of his/her father if the
latter had previously recognized him/her as his offspring
through an admission made in a pubic of private handwritten
instrument.
Gotardo vs. Buling
“One can prove filiation, either legitimate or illegitimate, through
the record of birth appearing in the civil register or a final
judgment, an admission of filiation in a public document or a
private handwritten instrument and signed by the parent
concerned, or the open and continuous possession of the
status of a legitimate or illegitimate child, or any other means
allowed by the Rules of Court and special laws. We have held
that such other proof of one’s filiation may be a “baptismal
certificate, a judicial admission, a family bible in which his name
has been entered, common reputation respecting [his]
pedigree, admission by silence, the [testimonies] of witnesses,
and other kinds of proof admissible under Rule 130 of the
Rules of Court.”
Grande vs. Antonio
Art. 176 gives illegitimate children the right to decide if they
want to use the surname of their father or not. It is not the
father (herein respondent) or the mother (herein petitioner) who
is granted by law the right to dictate the surname of their
illegitimate children.
3. Proof of filiation
FC Art. 175. Illegitimate children may establish their illegitimate
filiation in the same way and on the same evidence as
legitimate children.
The action must be brought within the same period specified in
Article 173, except when the action is based on the second
paragraph of Article 172, in which case the action may be
brought during the lifetime of the alleged parent. (289a)
Jison vs. CA
The filiation of legitimate children is established by any of the
following:
(1) The record of birth appearing in the civil register or a final
judgment; or
(2) An admission of legitimate filiation in a public document or a
private handwritten instrument signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation
shall be proved by:
(1) The open and continuous possession of the status of a
legitimate child; or
(2) Any other means allowed by the Rules of Court and special
laws.
Rivero vs. CA
17
Loreto designated as his beneficiary his concubine, Eva. Heirs of
Loreto, Eva, and illegitimate children are claiming for his insurance.
(1) Filiation cannot be subject of a compromise - Paternity and
filiation, or the lack of the same, is a relationship that must be
judicially established, and it is for the court to determine its
existence or absence. It cannot be left to the will or agreement
of the parties.
(2) Recognition must be done only by the outative father.
Heirs of Gabatan vs. CA
Private respondent birth certificates alleging that she is the
daughter of one Hermogana Gabatan is insufficient to prove
that Hermogena Gabatan is the daughter of Juan Gabatan.
What should have been presented was the birth ceritificate of
said Hermogena Gabatan. Moreover, the Deed of Sale
indicating Hermogena as the daughter of Juan has no probative
value for being a mere photocopy and unathenticated.
De la Cruz vs. Gracia
Recognition by the father must bear his signature. That a father
who acknowledges paternity of a child through a written
instrument must affix his signature thereon is clearly implied in
Article 176 of the Family Code. In the present case, however,
special circumstances exist to hold that Dominique’s
Autobiography, though unsigned by him, substantially satisfies
the requirement of the law.
Lucas vs. Lucas
During the hearing on the motion for DNA testing, the petitioner
must present prima facie evidence or establish a reasonable
possibility of paternity.
Gotardo vs. Buling
1) Respondent established a prima facie case that the
petitioner is the putative father of Gliffze through testimony that
she had been sexually involved only with one man, the
petitioner, at the time of her conception. (2) Petitioner failed to
substantiate his allegations of infidelity and insinuations of
promiscuity. His allegations, therefore, cannot be given
credence for lack of evidentiary support.
Perla vs. Baring
A certificate of live birth purportedly identifying the putative
father is not competent evidence of paternity when there is no
showing that the putative father had a hand in the preparation
of said certificate. Just like in a birth certificate, the lack of
participation of the supposed father in the preparation of a
baptismal certificate renders this document incompetent to
prove paternity. To prove open and continuous possession of
the status of an illegitimate child, there must be evidence of the
manifestation of the permanent intention of the supposed father
to consider the child as his, by continuous & clear
manifestations of parental affection and care, which cannot be
attributed to pure charity.
Calimag vs. Heris of Macapaz
Section 5 of Act No. 3753 states that the declaration of cither
parent of the newborn child, shall be sufficient for the
registration of a birth in the civil register.
San Agustin vs. Sales
The legitimate filiation of a child may be established by any of
the following: (1) The record of birth appearing in the civil
register or a final judgment; or (2) An admission of legitimate
filiation in a public document or a private handwritten
instrument and signed by the parent concerned. In the absence
79
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
of the foregoing evidence, the legitimate filiation shall be proved
by: (1) The open and continuous possession of the status of a
legitimate child; or (2) Any other means allowed by the Rules of
Court and special laws
4. Compulsory recognition
RPC Art. 345. Civil liability of persons guilty of crimes
against chastity. - Person guilty of rape, seduction or
abduction, shall also be sentenced:
1. To indemnify the offended woman.

2. To acknowledge the offspring, unless the law should prevent
him from so doing.
3. In every case to support the offspring.
The adulterer and the concubine in the case provided for in
Articles 333 and 334 may also be sentenced, in the same
proceeding or in a separate civil proceeding, to indemnify for
damages caused to the offended spouse.
People vs. Magtibay
Concerning the acknowledgment and support of the offspring of
rape, Article 345 of the Revised Penal Code provides for three
kinds of civil liability that may be imposed on the offender: a)
indemnification, b) acknowledgment of the offspring, unless the
law should prevent him from so doing, and c) in every case to
support the offspring.
People vs. Abella
Accused (who raped AAA) is directed to recognize [xxx] as his
illegitimate daughter, and provide for her support as soon as his
financial means permit.
People vs. Gersamio
This Court similarly affirms the deletion of the portion of the trial
court’s decision ordering the appellant to acknowledge paternity
and to support AAA’s child in the absence of evidence thereof.
In this case, AAA was already five and a half months pregnant
when she was medically examined in September 2002.
Obviously, the rape that happened on 28 August 2002 was not
the cause of that pregnancy.
D. Legitimated Children
1. Who may be legitimated
FC Art. 177. Only children conceived and born outside of
wedlock of parents who, at the time of the conception of the
former, were not disqualified by any impediment to marry each
other may be legitimated. (269a)
RA 9858.
Section 1. Article 177 of Executive Order No. 209, otherwise
known as the "Family Code of the Philippines", as amended, is
hereby further amended to read as follows:
"Art. 177. Children conceived and born outside of wedlock of
parents who, at the time of conception of the former, were not
disqualified by any impediment to marry each other, or were so
disqualified only because either or both of them were below
eighteen (18) years of age, may be legitimated."
"Art. 178. Legitimation shall take place by a subsequent valid
marriage between parents. The annulment of a voidable
marriage shall not affect the legitimation."
Section 2. Implementing Rules. – The civil Registrar General
shall, in consultation with the chairpersons of the Committee on
Revision of Laws of the House of Representatives and the
Committee on Youth, Women and Family Relations of the
Senate, the Council for the Welfare of Children, the Department
of Justice (DOJ), the Department of Foreign Affairs (DFA), the
office of the Supreme Court Administrator, the Philippine
Association of Civil Registrars (PACR) and the UP Law Center,
issue the necessary rules/regulations for the effective
implementation of this Act not later than one (1) month from its
effectivity.
Section 3. Repealing Clause. – All laws, presidential decrees,
executive orders, proclamations and/or administrative
regulations which are inconsistent with the provisions of this Act
are hereby amended, modified, superseded or repealed
accordingly.
Section 4. Effectivity Clause. – This Act shall take effect fifteen
(15) days after its complete publication in the Official Gazette or
in at least two (2) newspapers of national circulation.
Abadilla vs.Tabiliran
Only children conceived and born outside of wedlock of parents
who, at the time of the conception of the former, were not
disqualified by any impediment to marry each other may be
legitimated.
2. How legitimation takes place
FC Art. 178. Legitimation shall take place by a subsequent
valid marriage between parents. The annulment of a voidable
marriage shall not affect the legitimation. (270a)
180. The effects of legitimation shall retroact to the time of the
child's birth. (273a)

3. Retroactivity and effects
FC Art. 180. The effects of legitimation shall retroact to the time
of the child's birth. (273a)

181. The legitimation of children who died before the
celebration of the marriage shall benefit their descendants.
(274)

4. Action to impugn legitimation
FC Art. 182. Legitimation may be impugned only by those who
are prejudiced in their rights, within five years from the time
their cause of action accrues. (275a)
5. Rights of legitimated children
FC Art. 179. Legitimated children shall enjoy the same rights
as legitimate children. (272a)
E. Adopted Children
RA 8552.
80
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
AN ACT ESTABLISHING THE RULES AND POLICIES ON
THE DOMESTIC ADOPTION OF FILIPINO CHILDREN AND
FOR OTHER PURPOSES
Be it enacted by the Senate and House of Representatives of
the Philippines in Congress assembled::
ARTICLE I
GENERAL PROVISIONS
Section 1. Short Title. – This Act shall be known as the
"Domestic Adoption Act of 1998."
Section 2. Declaration of Policies. – (a) It is hereby declared
the policy of the State to ensure that every child remains under
the care and custody of his/her parent(s) and be provided with
love, care, understanding and security towards the full and
harmonious development of his/her personality. Only when
such efforts prove insufficient and no appropriate placement or
adoption within the child's extended family is available shall
adoption by an unrelated person be considered.
(b) In all matters relating to the care, custody and adoption of a
child, his/her interest shall be the paramount consideration in
accordance with the tenets set forth in the United Nations (UN)
Convention on the Rights of the Child; UN Declaration on
Social and Legal Principles Relating to the Protection and
Welfare of Children with Special Reference to Foster
Placement and Adoption, Nationally and Internationally; and the
Hague Convention on the Protection of Children and
Cooperation in Respect of Intercountry Adoption. Toward this
end, the State shall provide alternative protection and
assistance through foster care or adoption for every child who
is neglected, orphaned, or abandoned.
(c) It shall also be a State policy to:
(i) Safeguard the biological parent(s) from making hurried
decisions to relinquish his/her parental authority over his/her
child;
(ii) Prevent the child from unnecessary separation from his/her
biological parent(s);
(iii) Protect adoptive parent(s) from attempts to disturb his/her
parental authority and custody over his/her adopted child.
Any voluntary or involuntary termination of parental authority
shall be administratively or judicially declared so as to establish
the status of the child as "legally available for adoption" and
his/her custody transferred to the Department of Social Welfare
and Development or to any duly licensed and accredited child-
placing or child-caring agency, which entity shall be authorized
to take steps for the permanent placement of the child;
(iv) Conduct public information and educational campaigns to
promote a positive environment for adoption;
(v) Ensure that sufficient capacity exists within government and
private sector agencies to handle adoption inquiries, process
domestic adoption applications, and offer adoption-related
services including, but not limited to, parent preparation and
post-adoption education and counseling; and
(vi) Encourage domestic adoption so as to preserve the child's
identity and culture in his/her native land, and only when this is
not available shall intercountry adoption be considered as a last
resort.
Section 3. Definition of Terms. – For purposes of this Act, the
following terms shall be defined as:
(a) "Child" is a person below eighteen (18) years of age.
(b) "A child legally available for adoption" refers to a child who
has been voluntarily or involuntarily committed to the
Department or to a duly licensed and accredited child-placing
or child-caring agency, freed of the parental authority of his/her
biological parent(s) or guardian or adopter(s) in case of
rescission of adoption.
(c) "Voluntarily committed child" is one whose parent(s)
knowingly and willingly relinquishes parental authority to the
Department.
(d) "Involuntarily committed child" is one whose parent(s),
known or unknown, has been permanently and judicially
deprived of parental authority due to abandonment; substantial,
continuous, or repeated neglect; abuse; or incompetence to
discharge parental responsibilities.
(e) "Abandoned child" refers to one who has no proper parental
care or guardianship or whose parent(s) has deserted him/her
for a period of at least six (6) continuous months and has been
judicially declared as such.
(f) "Supervised trial custody" is a period of time within which a
social worker oversees the adjustment and emotional readiness
of both adopter(s) and adoptee in stabilizing their filial
relationship.
(g) "Department" refers to the Department of Social Welfare
and Development.
(h) "Child-placing agency" is a duly licensed and accredited
agency by the Department to provide comprehensive child
welfare services including, but not limited to, receiving
applications for adoption, evaluating the prospective adoptive
parents, and preparing the adoption home study.
(i) "Child-caring agency" is a duly licensed and accredited
agency by the Department that provides twenty four (24)-hour
residential care services for abandoned, orphaned, neglected,
or voluntarily committed children.
(j) "Simulation of birth" is the tampering of the civil registry
making it appear in the birth records that a certain child was
born to a person who is not his/her biological mother, causing
such child to lose his/her true identity and status.
ARTICLE II
PRE-ADOPTION SERVICES
Section 4. Counseling Service. – The Department shall provide
the services of licensed social workers to the following:
(a) Biological Parent(s) – Counseling shall be provided to the
parent(s) before and after the birth of his/her child. No binding
commitment to an adoption plan shall be permitted before the
birth of his/her child. A period of six (6) months shall be allowed
for the biological parent(s) to reconsider any decision to
relinquish his/her child for adoption before the decision
becomes irrevocable. Counseling and rehabilitation services
shall also be offered to the biological parent(s) after he/she has
relinquished his/her child for adoption.
Steps shall be taken by the Department to ensure that no
hurried decisions are made and all alternatives for the child's
future and the implications of each alternative have been
provided.
(b) Prospective Adoptive Parent(s) – Counseling sessions,
adoption fora and seminars, among others, shall be provided to
prospective adoptive parent(s) to resolve possible adoption
issues and to prepare him/her for effective parenting.
(c) Prospective Adoptee – Counseling sessions shall be
provided to ensure that he/she understands the nature and
effects of adoption and is able to express his/her views on
adoption in accordance with his/her age and level of maturity.
Section 5. Location of Unknown Parent(s). – It shall be the
duty of the Department or the child-placing or child-caring
agency which has custody of the child to exert all efforts to
locate his/her unknown biological parent(s). If such efforts fail,
the child shall be registered as a foundling and subsequently be
the subject of legal proceedings where he/she shall be declared
abandoned.
Section 6. Support Services. – The Department shall develop a
pre-adoption program which shall include, among others, the
above mentioned services.
ARTICLE III
81
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
ELIGIBILITY
Section 7. Who May Adopt. – The following may adopt:
(a) Any Filipino citizen of legal age, in possession of full civil
capacity and legal rights, of good moral character, has not been
convicted of any crime involving moral turpitude, emotionally
and psychologically capable of caring for children, at least
sixteen (16) years older than the adoptee, and who is in a
position to support and care for his/her children in keeping with
the means of the family. The requirement of sixteen (16) year
difference between the age of the adopter and adoptee may be
waived when the adopter is the biological parent of the
adoptee, or is the spouse of the adoptee's parent;
(b) Any alien possessing the same qualifications as above
stated for Filipino nationals: Provided, That his/her country has
diplomatic relations with the Republic of the Philippines, that
he/she has been living in the Philippines for at least three (3)
continuous years prior to the filing of the application for
adoption and maintains such residence until the adoption
decree is entered, that he/she has been certified by his/her
diplomatic or consular office or any appropriate government
agency that he/she has the legal capacity to adopt in his/her
country, and that his/her government allows the adoptee to
enter his/her country as his/her adopted
son/daughter: Provided, Further, That the requirements on
residency and certification of the alien's qualification to adopt in
his/her country may be waived for the following:
(i) a former Filipino citizen who seeks to adopt a relative within
the fourth (4th) degree of consanguinity or affinity; or
(ii) one who seeks to adopt the legitimate son/daughter of
his/her Filipino spouse; or
(iii) one who is married to a Filipino citizen and seeks to adopt
jointly with his/her spouse a relative within the fourth (4th)
degree of consanguinity or affinity of the Filipino spouse; or
(c) The guardian with respect to the ward after the termination
of the guardianship and clearance of his/her financial
accountabilities.
Husband and wife shall jointly adopt, except in the following
cases:
(i) if one spouse seeks to adopt the legitimate son/daughter of
the other; or
(ii) if one spouse seeks to adopt his/her own illegitimate
son/daughter: Provided, However, that the other spouse has
signified his/her consent thereto; or
(iii) if the spouses are legally separated from each other.
In case husband and wife jointly adopt, or one spouse adopts
the illegitimate son/daughter of the other, joint parental
authority shall be exercised by the spouses.
Section 8. Who May Be Adopted. – The following may be
adopted:
(a) Any person below eighteen (18) years of age who has been
administratively or judicially declared available for adoption;
(b) The legitimate son/daughter of one spouse by the other
spouse;
(c) An illegitimate son/daughter by a qualified adopter to
improve his/her status to that of legitimacy;
(d) A person of legal age if, prior to the adoption, said person
has been consistently considered and treated by the adopter(s)
as his/her own child since minority;
(e) A child whose adoption has been previously rescinded; or
(f) A child whose biological or adoptive parent(s) has
died: Provided, That no proceedings shall be initiated within six
(6) months from the time of death of said parent(s).
Section 9. Whose Consent is Necessary to the Adoption. –
After being properly counseled and informed of his/her right to
give or withhold his/her approval of the adoption, the written
consent of the following to the adoption is hereby required:
(a) The adoptee, if ten (10) years of age or over;
(b) The biological parent(s) of the child, if known, or the legal
guardian, or the proper government instrumentality which has
legal custody of the child;
(c) The legitimate and adopted sons/daughters, ten (10) years
of age or over, of the adopter(s) and adoptee, if any;
(d) The illegitimate sons/daughters, ten (10) years of age or
over, of the adopter if living with said adopter and the latter's
spouse, if any; and
(e) The spouse, if any, of the person adopting or to be adopted.
ARTICLE IV
PROCEDURE
Section 10. Hurried Decisions. – In all proceedings for
adoption, the court shall require proof that the biological
parent(s) has been properly counseled to prevent him/her from
making hurried decisions caused by strain or anxiety to give up
the child, and to sustain that all measures to strengthen the
family have been exhausted and that any prolonged stay of the
child in his/her own home will be inimical to his/her welfare and
interest.
Section 11. Case Study. – No petition for adoption shall be set
for hearing unless a licensed social worker of the Department,
the social service office of the local government unit, or any
child-placing or child-caring agency has made a case study of
the adoptee, his/her biological parent(s), as well as the
adopter(s), and has submitted the report and recommendations
on the matter to the court hearing such petition.
At the time of preparation of the adoptee's case study, the
concerned social worker shall confirm with the Civil Registry the
real identity and registered name of the adoptee. If the birth of
the adoptee was not registered with the Civil Registry, it shall
be the responsibility of the concerned social worker to ensure
that the adoptee is registered.
The case study on the adoptee shall establish that he/she is
legally available for adoption and that the documents to support
this fact are valid and authentic. Further, the case study of the
adopter(s) shall ascertain his/her genuine intentions and that
the adoption is in the best interest of the child.
The Department shall intervene on behalf of the adoptee if it
finds, after the conduct of the case studies, that the petition
should be denied. The case studies and other relevant
documents and records pertaining to the adoptee and the
adoption shall be preserved by the Department.
Section 12. Supervised Trial Custody. – No petition for
adoption shall be finally granted until the adopter(s) has been
given by the court a supervised trial custody period for at least
six (6) months within which the parties are expected to adjust
psychologically and emotionally to each other and establish a
bonding relationship. During said period, temporary parental
authority shall be vested in the adopter(s).
The court may motu proprio or upon motion of any party reduce
the trial period if it finds the same to be in the best interest of
the adoptee, stating the reasons for the reduction of the period.
However, for alien adopter(s), he/she must complete the six
(6)-month trial custody except for those enumerated in Sec. 7
(b) (i) (ii) (iii).
If the child is below seven (7) years of age and is placed with
the prospective adopter(s) through a pre-adoption placement
authority issued by the Department, the prospective adopter(s)
shall enjoy all the benefits to which biological parent(s) is
entitled from the date the adoptee is placed with the
prospective adopter(s).
Section 13. Decree of Adoption. – If, after the publication of the
order of hearing has been complied with, and no opposition has
been interposed to the petition, and after consideration of the
case studies, the qualifications of the adopter(s), trial custody
report and the evidence submitted, the court is convinced that
82
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
the petitioners are qualified to adopt, and that the adoption
would redound to the best interest of the adoptee, a decree of
adoption shall be entered which shall be effective as of the date
the original petition was filed. This provision shall also apply in
case the petitioner(s) dies before the issuance of the decree of
adoption to protect the interest of the adoptee. The decree shall
state the name by which the child is to be known.
Section 14. Civil Registry Record. – An amended certificate of
birth shall be issued by the Civil Registry, as required by
the Rules of Court, attesting to the fact that the adoptee is the
child of the adopter(s) by being registered with his/her
surname. The original certificate of birth shall be
stamped "cancelled" with the annotation of the issuance of an
amended birth certificate in its place and shall be sealed in the
civil registry records. The new birth certificate to be issued to
the adoptee shall not bear any notation that it is an amended
issue.
Section 15. Confidential Nature of Proceedings and Records. –
All hearings in adoption cases shall be confidential and shall
not be open to the public. All records, books, and papers
relating to the adoption cases in the files of the court, the
Department, or any other agency or institution participating in
the adoption proceedings shall be kept strictly confidential.
If the court finds that the disclosure of the information to a third
person is necessary for purposes connected with or arising out
of the adoption and will be for the best interest of the adoptee,
the court may merit the necessary information to be released,
restricting the purposes for which it may be used.
ARTICLE V
EFFECTS OF ADOPTION
Section 16. Parental Authority. – Except in cases where the
biological parent is the spouse of the adopter, all legal ties
between the biological parent(s) and the adoptee shall be
severed and the same shall then be vested on the adopter(s).
Section 17. Legitimacy. – The adoptee shall be considered the
legitimate son/daughter of the adopter(s) for all intents and
purposes and as such is entitled to all the rights and obligations
provided by law to legitimate sons/daughters born to them
without discrimination of any kind. To this end, the adoptee is
entitled to love, guidance, and support in keeping with the
means of the family.
BSuccession. – In legal and intestate succession, the
adopter(s) and the adoptee shall have reciprocal rights of
succession without distinction from legitimate filiation. However,
if the adoptee and his/her biological parent(s) had left a will, the
law on testamentary succession shall govern.
ARTICLE VI
RESCISSION OF ADOPTION
Section 19. Grounds for Rescission of Adoption. – Upon
petition of the adoptee, with the assistance of the Department if
a minor or if over eighteen (18) years of age but is
incapacitated, as guardian/counsel, the adoption may be
rescinded on any of the following grounds committed by the
adopter(s): (a) repeated physical and verbal maltreatment by
the adopter(s) despite having undergone counseling; (b)
attempt on the life of the adoptee; (c) sexual assault or
violence; or (d) abandonment and failure to comply with
parental obligations.
Adoption, being in the best interest of the child, shall not be
subject to rescission by the adopter(s). However, the adopter(s)
may disinherit the adoptee for causes provided in Article 919 of
the Civil Code.
Section 20. Effects of Rescission. – If the petition is granted,
the parental authority of the adoptee's biological parent(s), if
known, or the legal custody of the Department shall be restored
if the adoptee is still a minor or incapacitated. The reciprocal
rights and obligations of the adopter(s) and the adoptee to each
other shall be extinguished.
The court shall order the Civil Registrar to cancel the amended
certificate of birth of the adoptee and restore his/her original
birth certificate.
Succession rights shall revert to its status prior to adoption, but
only as of the date of judgment of judicial rescission. Vested
rights acquired prior to judicial rescission shall be respected.
All the foregoing effects of rescission of adoption shall be
without prejudice to the penalties imposable under the Penal
Code if the criminal acts are properly proven.
ARTICLE VII
VIOLATIONS AND PENALTIES
Section 21. Violations and Penalties. – (a) The penalty of
imprisonment ranging from six (6) years and one (1) day to
twelve (12) years and/or a fine not less than Fifty thousand
pesos (P50,000.00), but not more than Two hundred thousand
pesos (P200,000.00) at the discretion of the court shall be
imposed on any person who shall commit any of the following
acts:
(i) obtaining consent for an adoption through coercion, undue
influence, fraud, improper material inducement, or other similar
acts;
(ii) non-compliance with the procedures and safeguards
provided by the law for adoption; or
(iii) subjecting or exposing the child to be adopted to danger,
abuse, or exploitation.
(b) Any person who shall cause the fictitious registration of the
birth of a child under the name(s) of a person(s) who is not
his/her biological parent(s) shall be guilty of simulation of birth,
and shall be punished by prision mayor in its medium period
and a fine not exceeding Fifty thousand pesos (P50,000.00).
Any physician or nurse or hospital personnel who, in violation of
his/her oath of office, shall cooperate in the execution of the
abovementioned crime shall suffer the penalties herein
prescribed and also the penalty of permanent disqualification.
Any person who shall violate established regulations relating to
the confidentiality and integrity of records, documents, and
communications of adoption applications, cases, and
processes shall suffer the penalty of imprisonment ranging from
one (1) year and one (1) day to two (2) years, and/or a fine of
not less than Five thousand pesos (P5,000.00) but not more
than Ten thousand pesos (P10,000.00), at the discretion of the
court.
A penalty lower by two (2) degrees than that prescribed for the
consummated offense under this Article shall be imposed upon
the principals of the attempt to commit any of the acts herein
enumerated. Acts punishable under this Article, when
committed by a syndicate or where it involves two (2) or more
children shall be considered as an offense constituting child
trafficking and shall merit the penalty of reclusion perpetua.
Acts punishable under this Article are deemed committed by a
syndicate if carried out by a group of three (3) or more persons
conspiring and/or confederating with one another in carrying
out any of the unlawful acts defined under this Article. Penalties
as are herein provided, shall be in addition to any other
penalties which may be imposed for the same acts punishable
under other laws, ordinances, executive orders, and
proclamations.
When the offender is an alien, he/she shall be deported
immediately after service of sentence and perpetually excluded
from entry to the country.
Any government official, employee or functionary who shall be
found guilty of violating any of the provisions of this Act, or who
shall conspire with private individuals shall, in addition to the
83
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
above-prescribed penalties, be penalized in accordance with
existing civil service laws, rules and regulations: Provided, That
upon the filing of a case, either administrative or criminal, said
government official, employee, or functionary concerned shall
automatically suffer suspension until the resolution of the case.
Section 22. Rectification of Simulated Births. – A person who
has, prior to the effectivity of this Act, simulated the birth of a
child shall not be punished for such act: Provided, That the
simulation of birth was made for the best interest of the child
and that he/she has been consistently considered and treated
by that person as his/her own son/daughter: Provided,
further, That the application for correction of the birth
registration and petition for adoption shall be filed within five (5)
years from the effectivity of this Act and completed
thereafter: Provided, finally, That such person complies with the
procedure as specified in Article IV of this Act and other
requirements as determined by the Department.
ARTICLE VIII
FINAL PROVISIONS
Section 23. Adoption Resource and Referral Office. – There
shall be established an Adoption Resources and Referral Office
under the Department with the following functions: (a) monitor
the existence, number, and flow of children legally available for
adoption and prospective adopter(s) so as to facilitate their
matching; (b) maintain a nationwide information and
educational campaign on domestic adoption; (c) keep records
of adoption proceedings; (d) generate resources to help child-
caring and child-placing agencies and foster homes maintain
viability; and (e) do policy research in collaboration with the
Intercountry Adoption Board and other concerned agencies.
The office shall be manned by adoption experts from the public
and private sectors.
Section 24. Implementing Rules and Regulations. – Within six
(6) months from the promulgation of this Act, the Department,
with the Council for the Welfare of Children, the Office of Civil
Registry General, the Department of Justice, Office of the
Solicitor General, and two (2) private individuals representing
child-placing and child-caring agencies shall formulate the
necessary guidelines to make the provisions of this Act
operative.
Section 25. Appropriations. – Such sum as may be necessary
for the implementation of the provisions of this Act shall be
included in the General Appropriations Act of the year following
its enactment into law and thereafter.
Section 26. Repealing Clause. – Any law, presidential decree
or issuance, executive order, letter of instruction, administrative
order, rule, or regulation contrary to, or inconsistent with the
provisions of this Act is hereby repealed, modified, or amended
accordingly.
Section 27. Separability Clause. – If any provision of this Act is
held invalid or unconstitutional, the other provisions not affected
thereby shall remain valid and subsisting.
Section 28. Effectivity Clause. – This Act shall take effect
fifteen (15) days following its complete publication in any
newspaper of general circulation or in the Official Gazette.
RA 8043.
The Inter-Country Adoption Act of 1995
"AN ACT ESTABLISHING THE RULES TO GOVERN INTER-
COUNTRY ADOPTION OF FILIPINO CHILDREN, AND FOR
OTHER PURPOSES"
Section 1. Short Title. — This Act shall be known as the "Inter-
Country Adoption Act of 1995."
Sec. 2. Declaration of Policy. — It is hereby declared the policy
of the State to provide every neglected and abandoned child
with a family that will provide such child with love and care as
well as opportunities for growth and development. Towards this
end, efforts shall be exerted to place the child with an adoptive
family in the Philippines. However, recognizing that inter-
country adoption may be considered as allowing aliens not
presently allowed by law to adopt Filipino children if such
children cannot be adopted by qualified Filipino citizens or
aliens, the State shall take measures to ensure that inter-
country adoptions are allowed when the same shall prove
beneficial to the child's best interests, and shall serve and
protect his/her fundamental rights.
Sec. 3. Definition of Terms. — As used in this Act. the term:
(a) Inter-country adoption refers to the socio-legal process of
adopting a Filipino child by a foreigner or a Filipino citizen
permanently residing abroad where the petition is filed, the
supervised trial custody is undertaken, and the decree of
adoption is issued outside the Philippines.
(b) Child means a person below fifteen (15) years of age
unless sooner emancipated by law.
(c) Department refers to the Department of Social Welfare
and Development of the Republic of the Philippines.
(d) Secretary refers to the Secretary of the Department of
Social Welfare and Development.
(e) Authorized and accredited agency refers to the State
welfare agency or a licensed adoption agency in the country of
the adopting parents which provide comprehensive social
services and which is duly recognized by the Department.
(f) Legally-free child means a child who has been voluntarily
or involuntarily committed to the Department, in accordance
with the Child and Youth Welfare Code.
(g) Matching refers to the judicious pairing of the adoptive
child and the applicant to promote a mutually satisfying parent-
child relationship.
(h) Board refers to the Inter-country Adoption Board.
ARTICLE II
THE INTER-COUNTRY ADOPTION BOARD
Sec. 4. The Inter-Country Adoption Board. — There is hereby
created the Inter-Country Adoption Board, hereinafter referred
to as the Board to act as the central authority in matters relating
to inter-country adoption. It shall act as the policy-making body
for purposes of carrying out the provisions of this Act, in
consultation and coordination with the Department, the different
child-care and placement agencies, adoptive agencies, as well
as non-governmental organizations engaged in child-care and
placement activities. As such, it shall:
(a) Protect the Filipino child from abuse, exploitation,
trafficking and/or sale or any other practice in connection with
adoption which is harmful, detrimental, or prejudicial to the
child;
(b) Collect, maintain, and preserve confidential information
about the child and the adoptive parents;
(c) Monitor, follow up, and facilitate completion of adoption of
the child through authorized and accredited agency;
(d) Prevent improper financial or other gain in connection
with an adoption and deter improper practices contrary to this
Act;
(e) Promote the development of adoption services including
post-legal adoption;
(f) License and accredit child-caring/placement agencies and
collaborate with them in the placement of Filipino children;
(g) Accredit and authorize foreign adoption agency in the
placement of Filipino children in their own country; and
(h) Cancel the license to operate and blacklist the child-
caring and placement agency or adoptive agency involved from
the accreditation list of the Board upon a finding of violation of
84
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
any provision under this Act.
Sec. 5. Composition of the Board. — The Board shall be
composed of the Secretary of the Department as ex officio
Chairman, and six (6) other members to be appointed by the
President for a nonrenewable term of six (6) years: Provided,
That there shall be appointed one (1) psychiatrist or
psychologist, two (2) lawyers who shall have at least the
qualifications of a regional trial court judge, one (1) registered
social worker and two (2) representatives from non-
governmental organizations engaged in child-caring and
placement activities. The members of the Board shall receive a
per diem allowance of One thousand five hundred pesos
(P1,500) for each meeting attended by them: Provided, further,
That no compensation shall be paid for more than four (4)
meetings a month.
Sec. 6. Powers and Functions of the Board. — The Board shall
have the following powers and functions:
(a) to prescribe rules and regulations as it may deem
reasonably necessary to carry out the provisions of this Act,
after consultation and upon favorable recommendation of the
different agencies concerned with the child-caring, placement,
and adoption;
(b) to set the guidelines for the convening of an Inter-country
Adoption Placement Committee which shall be under the direct
supervision of the Board;
(c) to set the guidelines for the manner by which
selection/matching of prospective adoptive parents and
adoptive child can be made;
(d) to determine a reasonable schedule of fees and charges
to be exacted in connection with the application for adoption;
(e) to determine the form and contents of the application for
inter-country adoption;
(g) to institute systems and procedures to prevent improper
financial gain in connection with adoption and deter improper
practices which are contrary to this Act;
(h) to promote the development of adoption services,
including post-legal adoption services,
(i) to accredit and authorize foreign private adoption
agencies which have demonstrated professionalism,
competence and have consistently pursued non-profit
objectives to engage in the placement of Filipino children in
their own country: Provided, That such foreign private agencies
are duly authorized and accredited by their own government to
conduct inter-country adoption: Provided, however, That the
total number of authorized and accredited foreign private
adoption agencies shall not exceed one hundred (100) a year;
(j) to take appropriate measures to ensure confidentiality of
the records of the child, the natural parents and the adoptive
parents at all times;
(k) to prepare, review or modify, and thereafter, recommend
to the Department of Foreign Affairs, Memoranda of Agreement
respecting inter-country adoption consistent with the
implementation of this Act and its stated goals, entered into,
between and among foreign governments, international
organizations and recognized international non-governmental
organizations;
(l) to assist other concerned agencies and the courts in the
implementation of this Act, particularly as regards coordination
with foreign persons, agencies and other entities involved in the
process of adoption and the physical transfer of the child; and
(m) to perform such other functions on matters relating to
inter-country adoption as may be determined by the President.
ARTICLE III
PROCEDURE
Sec. 7. Inter-Country Adoption as the Last Resort. — The
Board shall ensure that all possibilities for adoption of the child
under the Family Code have been exhausted and that inter-
country adoption is in the best interest of the child. Towards this
end, the Board shall set up the guidelines to ensure that steps
will be taken to place the child in the Philippines before the
child is placed for inter-country adoption: Provided, however,
That the maximum number that may be allowed for foreign
adoption shall not exceed six hundred (600) a year for the first
five (5) years.
Sec. 8. Who May be Adopted. — Only a legally free child may
be the subject of inter-country adoption. In order that such child
may be considered for placement, the following documents
must be submitted to the Board:
(a)Child study;
(b)Birth certificate/foundling certificate;
(c)Deed of voluntary commitment/decree of
abandonment/death certificate of parents;
(d)Medical evaluation /history;
(e)Psychological evaluation, as necessary; and
(f)Recent photo of the child.
Sec. 9. Who May Adopt. — An alien or a Filipino citizen
permanently residing abroad may file an application for inter-
country adoption of a Filipino child if he/she:
(a) is at least twenty-seven (27) years of age and at least
sixteen (16) years older than the child to be adopted, at the
time of application unless the adopter is the parent by nature of
the child to be adopted or the spouse of such parent:
(b) if married, his/her spouse must jointly file for the adoption;
(c) has the capacity to act and assume all rights and
responsibilities of parental authority under his national laws,
and has undergone the appropriate counseling from an
accredited counselor in his/her country;
(d) has not been convicted of a crime involving moral
turpitude;
(e) is eligible to adopt under his/her national law;
(f) is in a position to provide the proper care and support and
to give the necessary moral values and example to all his
children, including the child to be adopted;
(g) agrees to uphold the basic rights of the child as embodied
under Philippine laws, the U.N. Convention on the Rights of the
Child, and to abide by the rules and regulations issued to
implement the provisions of this Act;
(h) comes from a country with whom the Philippines has
diplomatic relations and whose government maintains a
similarly authorized and accredited agency and that adoption is
allowed under his/her national laws; and
(i) possesses all the qualifications and none of the
disqualifications provided herein and in other applicable
Philippine laws.
Sec. 10. Where to File Application. — An application to adopt a
Filipino child shall be filed either with the Philippine Regional
Trial Court having jurisdiction over the child, or with the Board,
through an intermediate agency, whether governmental or an
authorized and accredited agency, in the country of the
prospective adoptive parents, which application shall be in
accordance with the requirements as set forth in the
implementing rules and regulations to be promulgated by the
Board.
The application shall be supported by the following documents
written and officially translated in English.
(a) Birth certificate of applicant(s);
(b) Marriage contract, if married, and divorce decree, if
applicable;
(c) Written consent of their biological or adoptive children
above ten (10) years of age, in the form of sworn statement;
(d) Physical, medical and psychological evaluation by a duly
licensed physician and psychologist;
85
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
(e) Income tax returns or any document showing the financial
capability of the applicant(s);
(f) Police clearance of applicant(s);
(g) Character reference from the local church/minister, the
applicant's employer and a member of the immediate
community who have known the applicant(s) for at least five (5)
years; and
(h) Recent postcard-size pictures of the applicant(s) and his
immediate family;
The Rules of Court shall apply in case of adoption by judicial
proceedings.
Sec. 11. Family Selection/Matching. — No child shall be
matched to a foreign adoptive family unless it is satisfactorily
shown that the child cannot be adopted locally. The clearance,
as issued by the Board, with the copy of the minutes of the
meetings, shall form part of the records of the child to be
adopted. When the Board is ready to transmit the Placement
Authority to the authorized and accredited inter-country
adoption agency and all the travel documents of the child are
ready, the adoptive parents, or any one of them, shall
personally fetch the child in the Philippines.
Sec. 12. Pre-adoptive Placement Costs. — The applicant(s)
shall bear the following costs incidental to the placement of the
child;
(a) The cost of bringing the child from the Philippines to the
residence of the applicant(s) abroad, including all travel
expenses within the Philippines and abroad; and
(b) The cost of passport, visa, medical examination and
psychological evaluation required, and other related expenses.
Sec. 13. Fees, Charges and Assessments. — Fees, charges,
and assessments collected by the Board in the exercise of its
functions shall be used solely to process applications for inter-
country adoption and to support the activities of the Board.
Sec. 14. Supervision of Trial Custody. — The governmental
agency or the authorized and accredited agency in the country
of the adoptive parents which filed the application for inter-
country adoption shall be responsible for the trial custody and
the care of the child. It shall also provide family counseling and
other related services. The trial custody shall be for a period of
six (6) months from the time of placement. Only after the lapse
of the period of trial custody shall a decree of adoption be
issued in the said country a copy of which shall be sent to the
Board to form part of the records of the child.
During the trial custody, the adopting parent(s) shall submit to
the governmental agency or the authorized and accredited
agency, which shall in turn transmit a copy to the Board, a
progress report of the child's adjustment. The progress report
shall be taken into consideration in deciding whether or not to
issue the decree of adoption.
The Department of Foreign Affairs shall set up a system by
which Filipino children sent abroad for trial custody are
monitored and checked as reported by the authorized and
accredited inter-country adoption agency as well as the
repatriation to the Philippines of a Filipino child whose adoption
has not been approved.
Sec. 15. Executive Agreements. — The Department of Foreign
Affairs, upon representation of the Board, shall cause the
preparation of Executive Agreements with countries of the
foreign adoption agencies to ensure the legitimate concurrence
of said countries in upholding the safeguards provided by this
Act.
ARTICLE IV
PENALTIES
Sec. 16. Penalties. —
(a) Any person who shall knowingly participate in the conduct
or carrying out of an illegal adoption, in violation of the
provisions of this Act, shall be punished with a penalty of
imprisonment ranging from six (6) years and one (1) day to
twelve (12) years and/or a fine of not less than Fifty thousand
pesos (P50,000), but not more than Two hundred thousand
pesos (P200.000), at the discretion of the court. For purposes
of this Act, an adoption is illegal if it is effected in any manner
contrary to the provisions of this Act or established State
policies, its implementing rules and regulations, executive
agreements, and other laws pertaining to adoption. Illegality
may be presumed from the following acts:
(1)consent for an adoption was acquired through, or
attended by coercion, fraud, improper material inducement;
(2)there is no authority from the Board to effect adoption;
(3)the procedures and safeguards placed under the law for
adoption were not complied with; and
(4)the child to be adopted is subjected to, or exposed to
danger, abuse and exploitation.
(b)Any person who shall violate established regulations relating
to the confidentiality and integrity of records, documents and
communications of adoption applications, cases and processes
shall suffer the penalty of imprisonment ranging from one (1)
year and one (1) day to two (2) years, and/or a fine of not less
than Five thousand pesos (P5,000), but not more than Ten
thousand pesos (P10,000), at the discretion of the court.
A penalty lower by two (2) degrees than that prescribed for the
consummated felony under this Article shall be imposed upon
the principals of the attempt to commit any of the acts herein
enumerated.
Acts punishable under this Article, when committed by a
syndicate or where it involves two or more children shall be
considered as an offense constituting child trafficking and shall
merit the penalty of reclusion perpetua.
Acts punishable under this Article are deemed committed by a
syndicate if carried out by a group of three (3) or more persons
conspiring and/or confederating with one another in carrying
out any of the unlawful acts defined under this Article.Penalties
as are herein provided shall be in addition to any other
penalties which may be imposed for the same acts punishable
under other laws, ordinances, executive orders, and
proclamations.
Sec. 17. Public Officers as Offenders. — Any government
official, employee or functionary who shall be found guilty of
violating any of the provisions of this Act, or who shall conspire
with private individuals shall, in addition to the above-
prescribed penalties, be penalized in accordance with existing
civil service laws, rules and regulations: Provided, That upon
the filing of a case, either administrative or criminal, said
government official, employee or functionary concerned shall
automatically suffer suspension until the resolution of the case.
ARTICLE V
FINAL PROVISIONS
Sec. 18. Implementing Rules and Regulations. — The Inter-
country Adoption Board, in coordination with the Council for the
Welfare of Children, the Department of Foreign Affairs, and the
Department of Justice, after due consultation with agencies
involved in child-care and placement, shall promulgate the
necessary rules and regulations to implement the provisions of
this Act within six (6) months after its effectivity.
Sec. 19. Appropriations. — The amount of Five million pesos
(P5,000,000) is hereby appropriated from the proceeds of the
Lotto for the initial operations of the Board and subsequently
the appropriations of the same shall be included in the General
Appropriations Act for the year following its enactment.
86
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
Sec. 20. Separability Clause. — If any provision, or part hereof
is held invalid or unconstitutional, the remainder of the law or
the provision not otherwise affected, shall remain valid and
subsisting.
Sec. 21. Repealing Clause. — Any law, decree, executive
order, administrative order or rules and regulations contrary to,
or inconsistent with the provisions of this Act are hereby
repealed, modified or amended accordingly.
Sec. 22. Effectivity Clause. — This Act shall take effect fifteen
(15) days after its publication in two (2) newspapers of general
circulation.
Lazatin vs. Campos
Petitioner's flow of evidence does not lead us to any proof of
judicial adoption. Petitioner merely proceeds from a nebulous
assumption that he was judicially adopted between the years
1928 and 1932. By what particular court was the adoption
decreed or by whom was the petition heard, petitioner does not
even manifest, much less show. There are no witnesses cited
to that adoption proceeding or to the adoption decree.
Cervantes vs. Fajardo
A decree of adoption has the effect of dissolving the authority
vested in natural parents over the adopted child. The adopting
parents have the right to the care and custody of the adopted
child and exercise parental authority and responsibility over
him.
Bartolome vs. SSS
The phrase “dependent parents” should, therefore, include all
parents, whether legitimate or illegitimate and whether by
nature or by adoption, who are in need of support or
assistance.
Oribello vs. CA
An attack on the validity of a decree of adoption cannot be
made in an action for partition, as adoption decrees cannot be
collaterally attacked.
1. Who may adopt
RA 8552 Sec. 7. Who May Adopt. – The following may adopt:
(a) Any Filipino citizen of legal age, in possession of full civil
capacity and legal rights, of good moral character, has not been
convicted of any crime involving moral turpitude, emotionally
and psychologically capable of caring for children, at least
sixteen (16) years older than the adoptee, and who is in a
position to support and care for his/her children in keeping with
the means of the family. The requirement of sixteen (16) year
difference between the age of the adopter and adoptee may be
waived when the adopter is the biological parent of the
adoptee, or is the spouse of the adoptee's parent;
(b) Any alien possessing the same qualifications as above
stated for Filipino nationals: Provided, That his/her country has
diplomatic relations with the Republic of the Philippines, that
he/she has been living in the Philippines for at least three (3)
continuous years prior to the filing of the application for
adoption and maintains such residence until the adoption
decree is entered, that he/she has been certified by his/her
diplomatic or consular office or any appropriate government
agency that he/she has the legal capacity to adopt in his/her
country, and that his/her government allows the adoptee to
enter his/her country as his/her adopted
son/daughter: Provided, Further, That the requirements on
residency and certification of the alien's qualification to adopt in
his/her country may be waived for the following:
(i) a former Filipino citizen who seeks to adopt a relative within
the fourth (4th) degree of consanguinity or affinity; or
(ii) one who seeks to adopt the legitimate son/daughter of
his/her Filipino spouse; or
(iii) one who is married to a Filipino citizen and seeks to adopt
jointly with his/her spouse a relative within the fourth (4th)
degree of consanguinity or affinity of the Filipino spouse; or
(c) The guardian with respect to the ward after the termination
of the guardianship and clearance of his/her financial
accountabilities.
Husband and wife shall jointly adopt, except in the following
cases:
(i) if one spouse seeks to adopt the legitimate son/daughter of
the other; or
(ii) if one spouse seeks to adopt his/her own illegitimate
son/daughter: Provided, However, that the other spouse has
signified his/her consent thereto; or
(iii) if the spouses are legally separated from each other.
In case husband and wife jointly adopt, or one spouse adopts
the illegitimate son/daughter of the other, joint parental
authority shall be exercised by the spouses.
Michelle Lim
The law is explicit in requiring that husband and wife shall
jointly adopt. The use of the word “shall” means that the joint
adoption by the husband and wife is mandatory.
Republic vs. Toledano
Article 184(3) enumerates who are unqualified to adopt: An
alien, except: (a) A former Filipino citizen who seeks to adopt a
relative by consanguinity; (b) One who seeks to adopt the
legitimate child of his or her Filipino spouse; or (c) One who is
married to a Filipino citizen and seeks to adopt jointly with his
or her spouse a relative by consanguinity of the latter.
Husband and wife must jointly adopt, except in the following
cases: (1) When one spouse seeks to adopt his own illegitimate
child; or (2) When one spouse seeks to adopt the legitimate
child of the other.
2. Who may be adopted
RA 8552, Sec 8. Who May Be Adopted. – The following may be
adopted:
(a) Any person below eighteen (18) years of age who has been
administratively or judicially declared available for adoption;
(b) The legitimate son/daughter of one spouse by the other
spouse;
(c) An illegitimate son/daughter by a qualified adopter to improve
his/her status to that of legitimacy;
(d) A person of legal age if, prior to the adoption, said person has
been consistently considered and treated by the adopter(s) as
his/her own child since minority;
(e) A child whose adoption has been previously rescinded; or
(f) A child whose biological or adoptive parent(s) has
died: Provided, That no proceedings shall be initiated within six
(6) months from the time of death of said parent(s).
87
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
3. Need for consent
RA 8552, Sec 9. Whose Consent is Necessary to the
Adoption. – After being properly counseled and informed of
his/her right to give or withhold his/her approval of the adoption,
the written consent of the following to the adoption is hereby
required:
(a) The adoptee, if ten (10) years of age or over;
(b) The biological parent(s) of the child, if known, or the legal
guardian, or the proper government instrumentality which has
legal custody of the child;
(c) The legitimate and adopted sons/daughters, ten (10) years of
age or over, of the adopter(s) and adoptee, if any;
(d) The illegitimate sons/daughters, ten (10) years of age or over,
of the adopter if living with said adopter and the latter's spouse, if
any; and
(e) The spouse, if any, of the person adopting or to be adopted.
Landingin v. RP
The written consent of the biological parents is indispensable
for the validity of the decree of adoption.
4. Effects of a decree of adoption
RA 8552, Sec 13. Decree of Adoption. – If, after the publication
of the order of hearing has been complied with, and no
opposition has been interposed to the petition, and after
consideration of the case studies, the qualifications of the
adopter(s), trial custody report and the evidence submitted, the
court is convinced that the petitioners are qualified to adopt, and
that the adoption would redound to the best interest of the
adoptee, a decree of adoption shall be entered which shall be
effective as of the date the original petition was filed. This
provision shall also apply in case the petitioner(s) dies before the
issuance of the decree of adoption to protect the interest of the
adoptee. The decree shall state the name by which the child is to
be known.
Sec 17. Legitimacy. – The adoptee shall be considered the
legitimate son/daughter of the adopter(s) for all intents and
purposes and as such is entitled to all the rights and obligations
provided by law to legitimate sons/daughters born to them
without discrimination of any kind. To this end, the adoptee is
entitled to love, guidance, and support in keeping with the means
of the family.
Sec 18. Succession. – In legal and intestate succession, the
adopter(s) and the adoptee shall have reciprocal rights of
succession without distinction from legitimate filiation. However,
if the adoptee and his/her biological parent(s) had left a will, the
law on testamentary succession shall govern.
FC Art. 189. Adoption shall have the following effects:
(1) For civil purposes, the adopted shall be deemed to be a
legitimate child of the adopters and both shall acquire the
reciprocal rights and obligations arising from the relationship of
parent and child, including the right of the adopted to use the
surname of the adopters;
(2) The parental authority of the parents by nature over the
adopted shall terminate and be vested in the adopters, except
that if the adopter is the spouse of the parent by nature of the
adopted, parental authority over the adopted shall be exercised
jointly by both spouses; and
(3) The adopted shall remain an intestate heir of his parents and
other blood relatives. (39(1)a, (3)a, PD 603)
Art. 190. Legal or intestate succession to the estate of the
adopted shall be governed by the following rules:
(1) Legitimate and illegitimate children and descendants and the
surviving spouse of the adopted shall inherit from the adopted, in
accordance with the ordinary rules of legal or intestate
succession;
(2) When the parents, legitimate or illegitimate, or the legitimate
ascendants of the adopted concur with the adopter, they shall
divide the entire estate, one-half to be inherited by the parents or
ascendants and the other half, by the adopters;
(3) When the surviving spouse or the illegitimate children of the
adopted concur with the adopters, they shall divide the entire
estate in equal shares, one-half to be inherited by the spouse or
the illegitimate children of the adopted and the other half, by the
adopters.
(4) When the adopters concur with the illegitimate children and
the surviving spouse of the adopted, they shall divide the entire
estate in equal shares, one-third to be inherited by the
illegitimate children, one-third by the surviving spouse, and one-
third by the adopters;
(5) When only the adopters survive, they shall inherit the entire
estate; and
(6) When only collateral blood relatives of the adopted survive,
then the ordinary rules of legal or intestate succession shall
apply. (39(4)a, PD 603)
Tamargo v. CA
During the shooting incident, parental authority over Adelberto
was still lodged with the natural parents. Under Article 35 of the
Child and Youth Welfare Code, parental authority is
provisionally vested in the adopting parents during the period of
trial custody however in this case, trial custody period neither
had begun nor had been completed at the time of the shooting
incident. Hence, actual custody was then with the natural
parents of Adelberto.
88
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
Cervantes v. Fajardo
In all cases involving the custody, care, education and property
of children, the latter's welfare is paramount. The natural
parents in this case were found to be not morally upright as the
man was already married to another woman yet living with Gina
and that Gina previously had a relationship with another
married man. Besides, the minor has been legally adopted with
the full knowledge and consent of natural parents.
In Re: Stephanie Garcia
Being a legitimate by virtue of her adoption, it follows that
Stephanie is entitled to all the rights provided by law to a
legitimate child without discrimination of any kind, including the
right to bear the surname of her father and her mother. This is
consistent with the intention of the members of the Civil Code
and Family Law Committees. In fact, it is a Filipino custom that
the initial or surname of the mother should immediately precede
the surname of the father.
Bagayas v. Bagayas
The declaration that petitioner is the legally adopted child of
Maximino and Eligia did not amount to a declaration of heirship
and co-ownership upon which petitioner may institute an action
for the amendment of the certificates of title covering the
subject land. More importantly, the Court has consistently ruled
that the trial court cannot make a declaration of heirship in an
ordinary civil action, for matters relating to the rights of filiation
and heirship must be ventilated in a special proceeding
instituted precisely for the purpose of determining such rights.
5. Rescission of adoption
RA 8552, Sec 19. Grounds for Rescission of Adoption. – Upon
petition of the adoptee, with the assistance of the Department if a
minor or if over eighteen (18) years of age but is incapacitated,
as guardian/counsel, the adoption may be rescinded on any of
the following grounds committed by the adopter(s): (a) repeated
physical and verbal maltreatment by the adopter(s) despite
having undergone counseling; (b) attempt on the life of the
adoptee; (c) sexual assault or violence; or (d) abandonment and
failure to comply with parental obligations.
Adoption, being in the best interest of the child, shall not be
subject to rescission by the adopter(s). However, the adopter(s)
may disinherit the adoptee for causes provided in Article 919 of
the Civil code.
Sec 20. Effects of Rescission. – If the petition is granted, the
parental authority of the adoptee's biological parent(s), if known,
or the legal custody of the Department shall be restored if the
adoptee is still a minor or incapacitated. The reciprocal rights
and obligations of the adopter(s) and the adoptee to each other
shall be extinguished.
The court shall order the Civil Registrar to cancel the amended
certificate of birth of the adoptee and restore his/her original birth
certificate.
Succession rights shall revert to its status prior to adoption, but
only as of the date of judgment of judicial rescission. Vested
rights acquired prior to judicial rescission shall be respected.
All the foregoing effects of rescission of adoption shall be without
prejudice to the penalties imposable under the Penal Code if the
criminal acts are properly proven.
Lahom v. Sibulo
In this case, it was months after the effectivity of RA 8552 that
Lahom filed an action to revoke the decree of adoption granted
in 1972. By then the new law had already abrogated and
repealed the right of the adopter under the Civil Code and the
family Code to rescind a decree of adoption. But an adopter,
while barred from severing the legal ties of adoption, can
always for valid reasons cause the forfeiture of certain benefits
otherwise accruing to an undeserving child, like denying him his
legitime, and by will and testament.
XV. SUPPORT
A. What comprises support
FC. Art. 194. Support comprises everything indispensable for
sustenance, dwelling, clothing, medical attendance, education
and transportation, in keeping with the financial capacity of the
family.
The education of the person entitled to be supported referred to
in the preceding paragraph shall include his schooling or
training for some profession, trade or vocation, even beyond
the age of majority. Transportation shall include expenses in
going to and from school, or to and from place of work. (290a)
B. Who are obliged to provide support
FC Art. 194. Subject to the provisions of the succeeding
articles, the following are obliged to support each other to the
whole extent set forth in the preceding article:
(1) The spouses;
(2) Legitimate ascendants and descendants;
(3) Parents and their legitimate children and the legitimate and
illegitimate children of the latter;
(4) Parents and their illegitimate children and the legitimate and
illegitimate children of the latter; and
(5) Legitimate brothers and sisters, whether of full or half-
blood (291a)
Art. 196. Brothers and sisters not legitimately related, whether
of the full or half-blood, are likewise bound to support each
other to the full extent set forth in Article 194, except only when
the need for support of the brother or sister, being of age, is
due to a cause imputable to the claimant's fault or
89
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
negligence. (291a)
Art. 200. When the obligation to give support falls upon two or
more persons, the payment of the same shall be divided
between them in proportion to the resources of each.
However, in case of urgent need and by special circumstances,
the judge may order only one of them to furnish the support
provisionally, without prejudice to his right to claim from the
other obligors the share due from them.
When two or more recipients at the same time claim support
from one and the same person legally obliged to give it, should
the latter not have sufficient means to satisfy all claims, the
order established in the preceding article shall be followed,
unless the concurrent obligees should be the spouse and a
child subject to parental authority, in which case the child shall
be preferred. (295a)
Pelayo v. Lauron
The rendering of medical assistance in case of illness is
comprised among the mutual obligations to which the spouses
are bound by way of mutual support. (Arts. 142 and 143.) The
father and mother-in-law are strangers with respect to the
obligation that devolves upon the husband to provide support,
among which is the furnishing of medical assistance to his wife
at the time of her confinement. Neither are the spouses bound
by contract so they cannot be held liable.
Sanchez v. Zulueta
Adultery on the part of the wife is a valid defense against an
action for support. Consequently, as to the child, it is also a
defense that it is the fruit of such adulterous relations, for in that
case, it would not be the child of the defendant and, hence,
would not be entitled to support as such. But as this defense
should be established, and not merely alleged, it would be
unavailing if proof thereof is not permitted.
De Asis v. CA
While it is true that in order to claim support, filiation or paternity
must be first shown between the parties, but the presence or
lack thereof must be judicially established and declaration is
vested in the Court. It cannot be left to the will or agreement of
the parties. Hence, the first dismissal (due to the voluntary
desistance of the party asking for support) cannot bar the filing
of another action asking for the same relief (no force and
effect). Furthermore, the defense of res judicata claimed by
Manuel was untenable since future support cannot be the
subject of any compromise or waiver.
Rondina v. People
Since parental authority is vested by Article 176 of the Family
Code upon the mother and considering that an offender (the
putative father was found guilty of rape) sentenced to reclusion
perpetua automatically loses the power to exercise parental
authority over his children, no further positive act is required of
the parent as the law itself provides for the child’s status.
Hence, Rondina (father) should only be ordered to indemnify
and support the victim’s child. The amount [and terms] of
support shall be determined by the trial court after due notice
and hearing in accordance with Article 201 of the Family Code.
[See Art. 345 of RPC]18
Gotardo v. Buling
Divina was able to prima facie establish that Charles is the
father of Gliffze. A parent is obliged to support his child,
whether legitimate or illegitimate.
Perla v. Baring
The Supreme Court ruled that the evidence presented was not
sufficient to prove filiation, hence refusing the petition for
support. The unsigned documents prove the non-participation
of Baring. Also, the testimony of Randy of that moment of
recognition has no probative value as what must be proved is
CONTINUOUS RECOGNITION BY THE FATHER, not merely
a single instance.
Calderon v. Roxas
The assailed orders relative to the incident of support pendente
lite and support in arrears, as the term suggests, were issued
pending the rendition of the decision on the main action for
declaration of nullity of marriage, and are therefore
interlocutory. They did not finally dispose of the case nor did
they consist of a final adjudication of the merits of petitioner’s
claims as to the ground of psychological incapacity and other
incidents as child custody, support and conjugal assets. The
Rules of Court provide for the provisional remedy of support
pendente lite which may be availed of at the commencement of
the proper action or proceeding, or at any time prior to the
judgment or final order.19
Lim-Lua v. Lua
As a matter of law, the amount of support which those related
18
Article 345 of the Revised Penal Code provides for three different kinds of
civil liability that may be imposed on the offender: a) indemnification, b)
acknowledgement of the offspring, unless the law should prevent him from so
doing, and c) in every case to support the offspring. With the passage of the
Family Code, the classification of acknowledged natural children and natural
children by legal fiction was eliminated and they now fall under the specie of
illegitimate children.
19
In 1998, Calderon filed an Amended Complaint for the declaration of nullity
of their marriage under Art. 36 of the Family Code (Psychological Incapacity).
Trial court issued an order granting her application for support pendente lite.
Roxas filed a motion to reduce support as the monthly support of the children
was higher than his own monthly salary, granted by the Court in its March 7,
2005 order. In its May 20015 Order, the court declared the marriage null and
void and awarded custody of the minor children to their mother and ordered
Roxas to provide support to the children, and dissolved the community property.
Calderon filed a Notice of Appeal, pointing out that her appeal is for the March
7 order (reducing the support) and not the decision in the main case. CA
dismissed the appeal for her failure to avail of the proper remedy to question an
interlocutory order.
90
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
by marriage and family relationship is generally obliged to give
each other shall be in proportion to the resources or means of
the giver and to the needs of the recipient. Such support
comprises everything indispensable for sustenance, dwelling,
clothing, medical attendance, education and transportation, in
keeping with the financial capacity of the family. 20
C. Source of support
FC Art. 197. In case of legitimate ascendants; descendants,
whether legitimate or illegitimate; and brothers and sisters,
whether legitimately or illegitimately related, only the separate
property of the person obliged to give support shall be
answerable provided that in case the obligor has no separate
property, the absolute community or the conjugal partnership, if
financially capable, shall advance the support, which shall be
deducted from the share of the spouse obliged upon the
liquidation of the absolute community or of the conjugal
partnership. (n)
Art. 198. During the proceedings for legal separation or for
annulment of marriage, and for declaration of nullity of marriage,
the spouses and their children shall be supported from the
properties of the absolute community or the conjugal partnership.
After the final judgment granting the petition, the obligation of
mutual support between the spouses ceases. However, in case
of legal separation, the court may order that the guilty spouse
shall give support to the innocent one, specifying the terms of
such order. (292a)
Art. 49. During the pendency of the action and in the absence of
adequate provisions in a written agreement between the
spouses, the Court shall provide for the support of the spouses
and the custody and support of their common children. The
Court shall give paramount consideration to the moral and
material welfare of said children and their choice of the parent
with whom they wish to remain as provided to in Title IX. It shall
also provide for appropriate visitation rights of the other
parent. (n)
Art. 70. The spouses are jointly responsible for the support of
the family. The expenses for such support and other conjugal
obligations shall be paid from the community property and, in the
absence thereof, from the income or fruits of their separate
properties. In case of insufficiency or absence of said income or
fruits, such obligations shall be satisfied from the separate
properties. (111a)
Art. 94. The absolute community of property shall be liable for:
(1) The support of the spouses, their common children, and
20
The Court held that as to the financial capacity of the respondent, it is beyond
doubt that he can solely provide for the subsistence, education, transportation,
health/medical needs and recreational activities of his children, as well as those
of petitioner who was then unemployed and a full-time housewife.
legitimate children of either spouse; however, the support of
illegitimate children shall be governed by the provisions of this
Code on Support;
(2) All debts and obligations contracted during the marriage by
the designated administrator-spouse for the benefit of the
community, or by both spouses, or by one spouse with the
consent of the other;
(3) Debts and obligations contracted by either spouse without the
consent of the other to the extent that the family may have been
benefited;
(4) All taxes, liens, charges and expenses, including major or
minor repairs, upon the community property;
(5) All taxes and expenses for mere preservation made during
marriage upon the separate property of either spouse used by
the family;
(6) Expenses to enable either spouse to commence or complete
a professional or vocational course, or other activity for self-
improvement;
(7) Ante-nuptial debts of either spouse insofar as they have
redounded to the benefit of the family;
(8) The value of what is donated or promised by both spouses in
favor of their common legitimate children for the exclusive
purpose of commencing or completing a professional or
vocational course or other activity for self-improvement;
(9) Ante-nuptial debts of either spouse other than those falling
under paragraph (7) of this Article, the support of illegitimate
children of either spouse, and liabilities incurred by either spouse
by reason of a crime or a quasi-delict, in case of absence or
insufficiency of the exclusive property of the debtor-spouse, the
payment of which shall be considered as advances to be
deducted from the share of the debtor-spouse upon liquidation of
the community; and
(10) Expenses of litigation between the spouses unless the suit
is found to be groundless.
If the community property is insufficient to cover the foregoing
liabilities, except those falling under paragraph (9), the spouses
shall be solidarily liable for the unpaid balance with their
separate properties. (161a, 162a, 163a, 202a-205a)
Art. 121. The conjugal partnership shall be liable for:
(1) The support of the spouse, their common children, and the
legitimate children of either spouse; however, the support of
illegitimate children shall be governed by the provisions of this
Code on Support;
(2) All debts and obligations contracted during the marriage by
the designated administrator-spouse for the benefit of the
conjugal partnership of gains, or by both spouses or by one of
them with the consent of the other;
(3) Debts and obligations contracted by either spouse without the
consent of the other to the extent that the family may have
91
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
benefited;
(4) All taxes, liens, charges, and expenses, including major or
minor repairs upon the conjugal partnership property;
(5) All taxes and expenses for mere preservation made during
the marriage upon the separate property of either spouse;
(6) Expenses to enable either spouse to commence or complete
a professional, vocational, or other activity for self-improvement;
(7) Ante-nuptial debts of either spouse insofar as they have
redounded to the benefit of the family;
(8) The value of what is donated or promised by both spouses in
favor of their common legitimate children for the exclusive
purpose of commencing or completing a professional or
vocational course or other activity for self-improvement; and
(9) Expenses of litigation between the spouses unless the suit is
found to groundless.
If the conjugal partnership is insufficient to cover the foregoing
liabilities, the spouses shall be solidarily liable for the unpaid
balance with their separate properties. (161a)
Art. 122. The payment of personal debts contracted by the
husband or the wife before or during the marriage shall not be
charged to the conjugal properties partnership except insofar as
they redounded to the benefit of the family.
Neither shall the fines and pecuniary indemnities imposed upon
them be charged to the partnership.
However, the payment of personal debts contracted by either
spouse before the marriage, that of fines and indemnities
imposed upon them, as well as the support of illegitimate
children of either spouse, may be enforced against the
partnership assets after the responsibilities enumerated in the
preceding Article have been covered, if the spouse who is bound
should have no exclusive property or if it should be insufficient;
but at the time of the liquidation of the partnership, such spouse
shall be charged for what has been paid for the purpose above-
mentioned. (163a)
Lerma v. CA
Art. 292 is not in itself the source of the legal right to receive
support. It merely states that the support, not only of the
spouses but also of the children, shall be taken from the
conjugal property during the pendency of the legal separation
proceeding. It does not preclude the loss of such right in certain
cases (such as when the other party is found to have
committed adultery).
Reyes v. Ines-Luciano
Upon receipt of a verified petition for declaration of absolute
nullity of void marriage or for annulment of voidable marriage,
or for legal separation, and at any time during the proceeding,
the court, motu proprio or upon verified application of any of
the... parties, guardian or designated custodian, may
temporarily grant support pendente lite prior to the rendition of
judgment or final order.[19] Because of its provisional nature, a
court does not need to delve fully into the merits of the... case
before it can settle an application for this relief.
D. Order of support
FC Art. 199. Whenever two or more persons are obliged to give
support, the liability shall devolve upon the following persons in
the order herein provided:
(1) The spouse;
(2) The descendants in the nearest degree;
(3) The ascendants in the nearest degree; and
(4) The brothers and sisters. (294a)
Art. 200. When the obligation to give support falls upon two or
more persons, the payment of the same shall be divided
between them in proportion to the resources of each.
However, in case of urgent need and by special circumstances,
the judge may order only one of them to furnish the support
provisionally, without prejudice to his right to claim from the other
obligors the share due from them.
When two or more recipients at the same time claim support
from one and the same person legally obliged to give it, should
the latter not have sufficient means to satisfy all claims, the order
established in the preceding article shall be followed, unless the
concurrent obligees should be the spouse and a child subject to
parental authority, in which case the child shall be
preferred. (295a)
Art. 204. The person obliged to give support shall have the
option to fulfill the obligation either by paying the allowance fixed,
or by receiving and maintaining in the family dwelling the person
who has a right to receive support. The latter alternative cannot
be availed of in case there is a moral or legal obstacle
thereto. (299a)
Mangonon v. CA
There being prima facie evidence showing that the parties are
the parents of the twins. The parents are primarily charged to
support their children’s college education. In view of both their
incapacities, the obligation to furnish said support should be
borne by the paternal grandfather. Under Article 199 of the
Family Code, the paternal grandfather, being the next
immediate relative of the twins is tasked to give support to his
granddaughters in default of their parents.21
Lim v. Lim
The inability of the parents to sufficiently provide for their
21
Copied from Prof. Legarda’s book. No doctrine provided in the table.
92
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
children shifts a portion of their obligation to the ascendants in
the nearest degree, both in the paternal and maternal lines,
following the order in Article 199.22
E. Manner and time of payment
FC Art. 200. When the obligation to give support falls upon two
or more persons, the payment of the same shall be divided
between them in proportion to the resources of each.
However, in case of urgent need and by special circumstances,
the judge may order only one of them to furnish the support
provisionally, without prejudice to his right to claim from the other
obligors the share due from them.
When two or more recipients at the same time claim support
from one and the same person legally obliged to give it, should
the latter not have sufficient means to satisfy all claims, the order
established in the preceding article shall be followed, unless the
concurrent obligees should be the spouse and a child subject to
parental authority, in which case the child shall be
preferred. (295a)
Art. 201. The amount of support, in the cases referred to in
Articles 195 and 196, shall be in proportion to the resources or
means of the giver and to the necessities of the recipient. (296a)
Art. 202. Support in the cases referred to in the preceding article
shall be reduced or increased proportionately, according to the
reduction or increase of the necessities of the recipient and the
resources or means of the person obliged to furnish the
same. (297a) chan robles virtual law library
Art. 203. The obligation to give support shall be demandable
from the time the person who has a right to receive the same
needs it for maintenance, but it shall not be paid except from the
date of judicial or extra-judicial demand.
Support pendente lite may be claimed in accordance with the
Rules of Court.
Payment shall be made within the first five days of each
corresponding month or when the recipient dies, his heirs shall
not be obliged to return what he has received in advance. (298a)
Art. 204. The person obliged to give support shall have the
option to fulfill the obligation either by paying the allowance fixed,
or by receiving and maintaining in the family dwelling the person
who has a right to receive support. The latter alternative cannot
be availed of in case there is a moral or legal obstacle
thereto. (299a)
Art. 205. The right to receive support under this Title as well as
22
Copied from Prof. Legarda’s book.
any money or property obtained as such support shall not be
levied upon on attachment or execution. (302a)
Art. 206. When, without the knowledge of the person obliged to
give support, it is given by a stranger, the latter shall have a right
to claim the same from the former, unless it appears that he
gave it without intention of being reimbursed. (2164a)
Art. 207. When the person obliged to support another unjustly
refuses or fails to give support when urgently needed by the
latter, any third person may furnish support to the needy
individual, with right of reimbursement from the person obliged to
give support. This Article shall particularly apply when the father
or mother of a child under the age of majority unjustly refuses to
support or fails to give support to the child when urgently
needed. (2166a)
Art. 208. In case of contractual support or that given by will, the
excess in amount beyond that required for legal support shall be
subject to levy on attachment or execution.
Furthermore, contractual support shall be subject to adjustment
whenever modification is necessary due to changes of
circumstances manifestly beyond the contemplation of the
parties. (n)
F. Renunciation and Termination
NCC Art. 2035. No compromise upon the following questions
shall be valid:
(1) The civil status of persons;
(2) The validity of a marriage or a legal separation;
(3) Any ground for legal separation;
(4) Future support;
(5) The jurisdiction of courts;
(6) Future legitime. (1814a)
FC Art. 194. Support comprises everything indispensable for
sustenance, dwelling, clothing, medical attendance, education
and transportation, in keeping with the financial capacity of the
family.
The education of the person entitled to be supported referred to
in the preceding paragraph shall include his schooling or training
for some profession, trade or vocation, even beyond the age of
majority. Transportation shall include expenses in going to and
from school, or to and from place of work. (290a)
G. Support pendent lite
FC Art. 198. During the proceedings for legal separation or for
annulment of marriage, and for declaration of nullity of marriage,
the spouses and their children shall be supported from the
properties of the absolute community or the conjugal partnership.
93
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
After the final judgment granting the petition, the obligation of
mutual support between the spouses ceases. However, in case
of legal separation, the court may order that the guilty spouse
shall give support to the innocent one, specifying the terms of
such order. (292a)
XVI. PARENTAL AUTHORITY & CUSTODY OF
CHILDREN
A. Concept of parental authority
FC Art. 209. Pursuant to the natural right and duty of parents
over the person and property of their unemancipated children,
parental authority and responsibility shall include the caring for
and rearing them for civic consciousness and efficiency and the
development of their moral, mental and physical character and
well-being. (n)
Art. 211. The father and the mother shall jointly exercise
parental authority over the persons of their common children. In
case of disagreement, the father's decision shall prevail, unless
there is a judicial order to the contrary.
Children shall always observe respect and reverence towards
their parents and are obliged to obey them as long as the
children are under parental authority.
Medina v. Makabali
While our law recognizes the right of a parent to the custody of
her child, courts must not lose sight of the basic principle that
“in all questions on the care, custody, education and property of
children, the latter’s welfare shall be paramount, and that for
compelling reasons, even a child under seven may be ordered
separated from the mother.23
Unson v. Navarro
It is axiomatic in our jurisprudence that in controversies
regarding the custody of minors the sole and foremost
consideration is the physical, educational, social and moral
welfare of the child concerned, taking into account the
respective resources and social and moral situations of the
contending parties. Never has the Court diverted from that
criterion.24
In the Matter of the Petition for Habeas Corpus of Minor Shang
Ko Vingson V. Cabcaban
Caram v. Segui
The Family Court may direct the deduction of the provisional
23
Copied from Prof. Legarda’s book. No doctrine provided in
the table.
24
Copied from Prof. Legarda’s book.
support from the salary of the spouse.
Mendez v. Shari’a District Court
The decisions of courts must be able to address the issues
raised by the parties through the presentation of a
comprehensive analysis or account of factual and legal findings
of the court. It is evident that the ShCC failed to comply with
these requirements. It merely stated that it was in Princess
Fatima's "best interest in all aspects of life, economically,
socially and religiously" that custody be awarded to her father,
and no express finding that Mendez was unfit in any way, or a
hint of an explanation as to why Maliga was in a better position
to take custody of Princess Fatima. The ShDC, on the other
hand, in affirming the findings of the ShCC, stated that Mendez
was disentitled to custody because she had turned apostate,
and held that she would remain disqualified until she return to
the Islamic faith in accordance with the Muslim Law. It appears,
however, that disqualification due to apostasy under the Muslim
Code pertains to disinheritance under Article 93 of the Muslim
Code, and not to the custody of children.
B. Transfer of PA
FC Art. 210. Parental authority and responsibility may not be
renounced or transferred except in the cases authorized by
law. (313a)
Art. 223. The parents or, in their absence or incapacity, the
individual, entity or institution exercising parental authority, may
petition the proper court of the place where the child resides, for
an order providing for disciplinary measures over the child. The
child shall be entitled to the assistance of counsel, either of his
choice or appointed by the court, and a summary hearing shall
be conducted wherein the petitioner and the child shall be heard.
However, if in the same proceeding the court finds the petitioner
at fault, irrespective of the merits of the petition, or when the
circumstances so warrant, the court may also order the
deprivation or suspension of parental authority or adopt such
other measures as it may deem just and proper. (318a)
Art. 224. The measures referred to in the preceding article may
include the commitment of the child for not more than thirty days
in entities or institutions engaged in child care or in children's
homes duly accredited by the proper government agency.
The parent exercising parental authority shall not interfere with
the care of the child whenever committed but shall provide for his
support. Upon proper petition or at its own instance, the court
may terminate the commitment of the child whenever just and
proper. (391a)
Art. 234. Emancipation takes place by the attainment of majority.
Unless otherwise provided, majority commences at the age of
twenty-one years.
94
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
Emancipation also takes place: of the properties, the conjugal dwelling and the lot on which it is
situated shall be adjudicated to the spouse with whom the
(1) By the marriage of the minor; or majority of the common children choose to remain. Children
below the age of seven years are deemed to have chosen the
(2) By the recording in the Civil Register of an agreement in a
mother, unless the court has decided otherwise. In case there in
public instrument executed by the parent exercising parental
no such majority, the court shall decide, taking into consideration
authority and the minor at least eighteen years of age. Such
the best interests of said children. (n)
emancipation shall be irrevocable. (397a, 398a, 400a, 401a)

Eslao v. CA Art. 129. Upon the dissolution of the conjugal partnership

Since the amount of monthly support pendente lite as fixed by
the CA was not appealed by either party, there is no
controversy as to its sufficiency and reasonableness. The
dispute concerns the deductions made by respondent in
settling the support in... arrears.
C. Who exercises PA
FC Art. 211. The father and the mother shall jointly exercise
parental authority over the persons of their common children. In
case of disagreement, the father's decision shall prevail, unless
there is a judicial order to the contrary.
regime, the following procedure shall apply:
xxx
(9) In the partition of the properties, the conjugal dwelling and the
lot on which it is situated shall, unless otherwise agreed upon by
the parties, be adjudicated to the spouse with whom the majority
of the common children choose to remain. Children below the
age of seven years are deemed to have chosen the mother,
unless the court has decided otherwise. In case there is no such
majority, the court shall decide, taking into consideration the best
interests of said children. (181a, 182a, 183a, 184a, 185a)

Children shall always observe respect and reverence towards

Art. 63. The decree of legal separation shall have the following
their parents and are obliged to obey them as long as the
effects:
children are under parental authority.(311a)
xxx

(2) The absolute community or the conjugal partnership shall be

Art. 212. In case of absence or death of either parent, the parent
dissolved and liquidated but the offending spouse shall have no
present shall continue exercising parental authority. The
right to any share of the net profits earned by the absolute
remarriage of the surviving parent shall not affect the parental
community or the conjugal partnership, which shall be forfeited in
authority over the children, unless the court appoints another
accordance with the provisions of Article 43(2);
person to be the guardian of the person or property of the
children. (n)

Art. 176. Illegitimate children shall use the surname and shall be
under the parental authority of their mother, and shall be entitled
Art. 213. In case of separation of the parents, parental authority
to support in conformity with this Code. The legitime of each
shall be exercised by the parent designated by the Court. The
illegitimate child shall consist of one-half of the legitime of a
Court shall take into account all relevant considerations,
legitimate child. Except for this modification, all other provisions
especially the choice of the child over seven years of age, unless
in the Civil Code governing successional rights shall remain in
the parent chosen is unfit. (n)
force.(287a)

Art. 49. During the pendency of the action and in the absence of Unson v. Navarro
adequate provisions in a written agreement between the
It is axiomatic in our jurisprudence that in controversies
spouses, the Court shall provide for the support of the spouses
regarding the custody of minors the sole and foremost
and the custody and support of their common children. The
consideration is the physical, educational, social and moral
Court shall give paramount consideration to the moral and
welfare of the child concerned, taking into account the
material welfare of said children and their choice of the parent
respective resources and social and moral situations of the
with whom they wish to remain as provided to in Title IX. It shall
contending parties. Never has the Court diverted from that
also provide for appropriate visitation rights of the other
criterion.25
parent. (n)

Espiritu v. Layug
Art. 102. Upon dissolution of the absolute community regime,
The children are now both over seven years old. Their choice of
the following procedure shall apply:
the parent with whom they prefer to stay is clear from the
xxx

(6) Unless otherwise agreed upon by the parties, in the partition 25

Copied from Prof. Legarda’s book.
95
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
record. From all indications, Reynaldo is a fit person, thus
meeting the two requirements found in the first paragraph of
Article 213 of the Family Code. The presumption under the
second paragraph of said article no longer applies as the
children are over seven years. 26
Santos, Sr. v. CA
Only in case of parents’ death, absence, or unsuitability may
substitute parental authority be exercised by the surviving
grandparent. The CA decision which is based on the fact that P
has shown little interest in the welfare of his son, and that Rs
are financially well-off and can provide college education, does
not exhibit that P is unfit. The wealth of Rs is not a deciding
factor, as there is no proof that P cannot support for his child at
present. Lastly, while abduction was inexcusable, it is not a bar
to award custody.
David v. CA
Christopher, as an illegitimate child, is under the parental
authority of his mother. That the husband can provide the
needs of the son better is not an argument against the mother’s
custody. The fact that Ramon recognized the child may be a
ground for him to give support but not for giving him custody of
the child.
Briones v. Miguel
An illegitimate child is under the sole parental authority of the
mother. In the exercise of that authority, she is entitled to keep
the child in her company. The Court will not deprive her of
custody, absent any imperative cause showing her unfitness to
exercise such authority and care.
In the past, the following grounds have been considered ample
justification to deprive a mother of custody and parental
authority: neglect or abandonment, unemployment, immorality,
habitual drunkenness, drug addiction, maltreatment of the child,
insanity, and affliction with a communicable disease.
Gualberto v. Gualberto
Article 213 provides, “In case of separation of parents parental
authority shall be exercised by the parent designated by the
court. The court shall take into account all relevant
consideration, especially the choice of the child over seven
years of age, unless the parent chosen is unfit.” This was taken
from Article 363, CC which provided in part, “No mother shall
be separated from her child under seven years of age, unless
the court finds compelling reason for such measure.” Given that
there was no evidence that the son was exposed to petitioner’s
lesbianism, there was no compelling evidence for the court to
rule against the mandatory character of Article 213. Custody
was thus awarded to petitioner mother.
Salientes v. Salientes
The Order of the trial court did not grant custody of the minor to
any of the parties but merely directed petitioners to produce the
minor in court and explain why they are restraining his liberty.
Under Article 211 of the Family Code, the spouses have joint
parental authority and consequently joint custody over their
26
Copied from Prof. Legarda’s book.
son.
Although the couple is separated de facto, the issue of custody
has yet to be adjudicated by the court. In the absence of a
judicial grant of custody to one parent, both parents are still
entitled to the custody of their child. In the present case, private
respondent’s cause of action is the deprivation of his right to
see his child as alleged in his petition. Hence, the remedy of
habeas corpus is available to him.
The RTC will still conduct a full inquiry regarding the matter of
the minor’s custody and the petitioners may indeed raise Art.
213 (mandatory custody of minor under 7) in the trial, but it
cannot be used as a basis for preventing the father to see his
own child. Nothing in the said provision disallows a father from
seeing or visiting his child under seven years of age.
Note: In this case, on the writ of habeas corpus filed by a father
who has not seen his son, the mother used art 217 as a
defense.
Grande v. Antonio
In the case at bar, respondent father filed a petition for judicial
approval of recognition of the filiation of the two children with
the prayer for the correction or change of the surname of the
minors from Grande to Antonio when a public document
acknowledged before a notary public under Sec. 19, Rule 132
of the Rules of Court is enough to establish the paternity of his
children. But he wanted more: a judicial conferment of parental
authority, parental custody, and an official declaration of his
children’s surname as Antonio.
Parental authority over minor children is lodged by Art. 176 on
the mother; hence, respondent’s prayer has no legal mooring.
Since parental authority is given to the mother, then custody
over the minor children also goes to the mother, unless she is
shown to be unfit.
BBB v. AAA
Exercise of parental authority can be subject of a compromise
agreement.
Bucal v. Bucal
The grant of visitation rights to an estranged father must not be
given by the court ipso facto. It must be one that is alleged in
the complaint and whose grant must be proven.
A. Substitute PA
FC Art. 212. In case of absence or death of either parent, the
parent present shall continue exercising parental authority. The
remarriage of the surviving parent shall not affect the parental
authority over the children, unless the court appoints another
person to be the guardian of the person or property of the
children. (n)
Art. 213. In case of separation of the parents, parental authority
shall be exercised by the parent designated by the Court. The
Court shall take into account all relevant considerations,
especially the choice of the child over seven years of age,
unless the parent chosen is unfit. (n)
Art. 214. In case of death, absence or unsuitability of the
parents, substitute parental authority shall be exercised by the
surviving grandparent. In case several survive, the one
96
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
designated by the court, taking into account the same
consideration mentioned in the preceding article, shall exercise
the authority. (355a)
Art. 216. In default of parents or a judicially appointed
guardian, the following person shall exercise substitute parental
authority over the child in the order indicated:
(1) The surviving grandparent, as provided in Art. 214;
(2) The oldest brother or sister, over twenty-one years of age,
unless unfit or disqualified; and
(3) The child's actual custodian, over twenty-one years of age,
unless unfit or disqualified.
Whenever the appointment or a judicial guardian over the
property of the child becomes necessary, the same order of
preference shall be observed. (349a, 351a, 354a)
Art. 233. The person exercising substitute parental authority
shall have the same authority over the person of the child as
the parents.
In no case shall the school administrator, teacher of individual
engaged in child care exercising special parental authority
inflict corporal punishment upon the child. (n)
Vancil v. Belmes
The natural mother of the minor has the preferential right over
that of the grandmother to be his guardian as supported by Art.
211, FC. The grandmother can not invoke Art. 214 because the
natural mother is still alive and fit (suitable) to exercise parental
authority.
B. Special PA
FC Art. 218. The school, its administrators and teachers, or the
individual, entity or institution engaged in child are shall have
special parental authority and responsibility over the minor child
while under their supervision, instruction or custody.
Authority and responsibility shall apply to all authorized
activities whether inside or outside the premises of the school,
entity or institution. (349a)
Art. 219. Those given the authority and responsibility under the
preceding Article shall be principally and solidarily liable for
damages caused by the acts or omissions of the
unemancipated minor. The parents, judicial guardians or the
persons exercising substitute parental authority over said minor
shall be subsidiarily liable.
The respective liabilities of those referred to in the preceding
paragraph shall not apply if it is proved that they exercised the
proper diligence required under the particular circumstances.
All other cases not covered by this and the preceding articles
shall be governed by the provisions of the Civil Code on quasi-
delicts. (n)
Art. 233. The person exercising substitute parental authority
shall have the same authority over the person of the child as
the parents.
In no case shall the school administrator, teacher of individual
engaged in child care exercising special parental authority
inflict corporal punishment upon the child. (n)
Art. 221. Parents and other persons exercising parental
authority shall be civilly liable for the injuries and damages
caused by the acts or omissions of their unemancipated
children living in their company and under their parental
authority subject to the appropriate defenses provided by law.
(2180(2)a and (4)a)
NCC. Art. 2180. The obligation imposed by article 2176 is
demandable not only for one's own acts or omissions, but also
for those of persons for whom one is responsible.
The father and, in case of his death or incapacity, the mother,
are responsible for the damages caused by the minor children
who live in their company.
Guardians are liable for damages caused by the minors or
incapacitated persons who are under their authority and live in
their company.
The owners and managers of an establishment or enterprise
are likewise responsible for damages caused by their
employees in the service of the branches in which the latter are
employed or on the occasion of their functions.
Employers shall be liable for the damages caused by their
employees and household helpers acting within the scope of
their assigned tasks, even though the former are not engaged
in any business or industry.
The State is responsible in like manner when it acts through a
special agent; but not when the damage has been caused by
the official to whom the task done properly pertains, in which
case what is provided in article 2176 shall be applicable.
Lastly, teachers or heads of establishments of arts and trades
shall be liable for damages caused by their pupils and students
or apprentices, so long as they remain in their custody.
The responsibility treated of in this article shall cease when the
persons herein mentioned prove that they observed all the
diligence of a good father of a family to prevent damage.
St. Mary’s v.Carpitanos
The special parental authority and responsibility under Art. 218,
FC applies to all authorized activities, whether inside or outside
the premises of the school, entity or institution, including
excursions. Under Art. 219, if the person under custody is a
minor, those exercising special parental authority are principally
and solidarily liable for damages caused by the acts or
omissions of the unemancipated minor while under their
supervision, instruction, or custody. However, there must be a
finding that the act or omission considered as negligent was the
proximate cause of the injury caused because the negligence
must have a causal connection to the accident.
Child Learning Centre v. Tagorio
The school, with the due diligence of a good father of the
family, should have anticipated that a student, locked in the
toilet by a nonworking door, would attempt to use the window to
call for help or even to get out. Considering all the
circumstances, there is sufficient basis to sustain a finding of
liability on petitioners’ part. CLC’s liability is under Art. 2176,
NCC, premised on the fact of its own negligence in not
ensuring that all its doors are properly maintained, hence, the
defense of such due diligence is not applicable.
Holy Spirit v Taguiam
The adviser exercised Special Parental Authority over the
student when the incident took place, and it was clearly
established that it was because of her negligence that the
accident happened. It was her responsibility to ensure
appropriate measures are present for the safety of the
students. As the adviser, she should have made sure that the
children were protected from all harm while in her company.
Aquinas School v. Inton
Aquinas School should not be held solidarily liable with the
97
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
Religion teacher since it was not the school but the teacher’s
religious congregation that chose her for the task of catechizing
the school’s grade three students. It is evident that Aquinas did
not have control over the teacher’s teaching methods.
Moreover, it cannot be said that Aquinas took no steps to avoid
the occurrence of improper conduct towards the students by
their religion teacher, or was guilty of outright neglect.
C. Effects of PA over the child’s person
FC Art. 220. The parents and those exercising parental
authority shall have with the respect to their unemancipated
children on wards the following rights and duties:
(1) To keep them in their company, to support, educate and
instruct them by right precept and good example, and to
provide for their upbringing in keeping with their means;
(2) To give them love and affection, advice and counsel,
companionship and understanding;
(3) To provide them with moral and spiritual guidance, inculcate
in them honesty, integrity, self-discipline, self-reliance, industry
and thrift, stimulate their interest in civic affairs, and inspire in
them compliance with the duties of citizenship;
(4) To furnish them with good and wholesome educational
materials, supervise their activities, recreation and association
with others, protect them from bad company, and prevent them
from acquiring habits detrimental to their health, studies and
morals;
(5) To represent them in all matters affecting their interests;
(6) To demand from them respect and obedience;
(7) To impose discipline on them as may be required under the
circumstances; and
(8) To perform such other duties as are imposed by law upon
parents and guardians. (316a)
Art. 221. Parents and other persons exercising parental
authority shall be civilly liable for the injuries and damages
caused by the acts or omissions of their unemancipated
children living in their company and under their parental
authority subject to the appropriate defenses provided by law.
(2180(2)a and (4)a)
Art. 222. The courts may appoint a guardian of the child's
property or a guardian ad litem when the best interests of the
child so requires. (317)
Art. 223. The parents or, in their absence or incapacity, the
individual, entity or institution exercising parental authority, may
petition the proper court of the place where the child resides,
for an order providing for disciplinary measures over the child.
The child shall be entitled to the assistance of counsel, either of
his choice or appointed by the court, and a summary hearing
shall be conducted wherein the petitioner and the child shall be
heard.
However, if in the same proceeding the court finds the
petitioner at fault, irrespective of the merits of the petition, or
when the circumstances so warrant, the court may also order
the deprivation or suspension of parental authority or adopt
such other measures as it may deem just and proper. (318a)
Art. 224. The measures referred to in the preceding article may
include the commitment of the child for not more than thirty
days in entities or institutions engaged in child care or in
children's homes duly accredited by the proper government
agency.
The parent exercising parental authority shall not interfere with
the care of the child whenever committed but shall provide for
his support. Upon proper petition or at its own instance, the
court may terminate the commitment of the child whenever just
and proper. (391a)
Cuadra v. Monfort
Monfort is not liable for the quasi-delict of his minor daughter
since there was nothing the father could have done to prevent
the damage by the observance of due care. He was not in any
way remiss in the exercise of his parental authority in failing to
foresee such damage, or the act which caused it because his
child was at school, where it was his duty to send her. As far as
the act which caused the injury was concerned, it was an
innocent prank not unusual among children, and which no
parent, however careful, would have any special reason to
anticipate, much less guard against.
Rosales v. People
Although the petitioner, as a schoolteacher, could duly
discipline Ryan as her pupil, her infliction of the physical injuries
on him was unnecessary, violent, and excessive. She could not
justifiably claim that she acted only for the sake of disciplining
him. Her physical maltreatment of him was precisely prohibited
by no less than the Family Code, which has expressly banned
the infliction of corporal punishment by a school administrator,
teacher, or individual engaged in child care exercising special
parental authority.
D. Filial privilege
FC. Art. 215. No descendant shall be compelled, in a criminal
case, to testify against his parents and grandparents, except
when such testimony is indispensable in a crime against the
descendant or by one parent against the other. (315a)
E. Effects of PA over the child’s property
FC Art. 225. The father and the mother shall jointly exercise
legal guardianship over the property of the unemancipated
common child without the necessity of a court appointment. In
case of disagreement, the father's decision shall prevail, unless
there is a judicial order to the contrary.
Where the market value of the property or the annual income of
the child exceeds P50,000, the parent concerned shall be
required to furnish a bond in such amount as the court may
determine, but not less than ten per centum (10%) of the value
of the property or annual income, to guarantee the performance
of the obligations prescribed for general guardians.
A verified petition for approval of the bond shall be filed in the
proper court of the place where the child resides, or, if the child
resides in a foreign country, in the proper court of the place
where the property or any part thereof is situated.
The petition shall be docketed as a summary special
proceeding in which all incidents and issues regarding the
performance of the obligations referred to in the second
paragraph of this Article shall be heard and resolved.
The ordinary rules on guardianship shall be merely suppletory
except when the child is under substitute parental authority, or
the guardian is a stranger, or a parent has remarried, in which
case the ordinary rules on guardianship shall apply. (320a)
Art. 226. The property of the unemancipated child earned or
acquired with his work or industry or by onerous or gratuitous
title shall belong to the child in ownership and shall be devoted
exclusively to the latter's support and education, unless the title
98
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
or transfer provides otherwise.
The right of the parents over the fruits and income of the child's
property shall be limited primarily to the child's support and
secondarily to the collective daily needs of the family. (321a,
323a)
Art. 227. If the parents entrust the management or
administration of any of their properties to an unemancipated
child, the net proceeds of such property shall belong to the
owner. The child shall be given a reasonable monthly
allowance in an amount not less than that which the owner
would have paid if the administrator were a stranger, unless the
owner, grants the entire proceeds to the child. In any case, the
proceeds thus give in whole or in part shall not be charged to
the child's legitime. (322a)
RA 9231 Sec. 12-B. Ownership, Usage and Administration of
the Working Child's Income. - The wages, salaries, earnings
and other income of the working child shall belong to him/her in
ownership and shall be set aside primarily for his/her support,
education or skills acquisition and secondarily to the collective
needs of the family: Provided, That not more than twenty
percent (20%) of the child's income may be used for the
collective needs of the family.
The income of the working child and/or the property acquired
through the work of the child shall be administered by both
parents. In the absence or incapacity of either of the parents,
the other parent shall administer the same. In case both
parents are absent or incapacitated, the order of preference on
parental authority as provided for under the Family Code shall
apply.
Sec. 12-C. Trust Fund to Preserve Part of the Working Child's
Income. - The parent or legal guardian of a working child below
eighteen (18) years of age shall set up a trust fund for at least
thirty percent (30%) of the earnings of the child whose wages
and salaries from work and other income amount to at least two
hundred thousand pesos (P200,000.00) annually, for which
he/she shall render a semi-annual accounting of the fund to the
Department of Labor and Employment, in compliance with the
provisions of this Act. The child shall have full control over the
trust fund upon reaching the age of majority.
Hebron v. Loyola
A spouse present cannot relinquish the shares in the parcels of
land if it will deprive minor children of their hereditary rights.
Their mother has no authority to convey the undivided share of
her minor children. The powers given to her by the laws as the
natural guardian covers only matters of administration and
cannot include the power of disposition.
Neri v. Heirs
Enrique, as guardian of his children and co-owner (with his
children), cannot sell their co-owned property as to the shares
of the minor children because as a natural guardian, he is
merely clothed with powers of administration. Parents should
apply for judicial guardianship in order for them to sell
properties of their children. The power of dominion is granted
by law only to a judicial guardian of the ward’s property; and
even then only with the court’s prior approval secured in
accordance with the proceedings set forth by the Rules.
F. Suspension or termination
FC Art. 228. Parental authority terminates permanently:
(1) Upon the death of the parents;
(2) Upon the death of the child; or
(3) Upon emancipation of the child. (327a)
Art. 229. Unless subsequently revived by a final judgment,
parental authority also terminates:
(1) Upon adoption of the child;
(2) Upon appointment of a general guardian;
(3) Upon judicial declaration of abandonment of the child in a
case filed for the purpose;
(4) Upon final judgment of a competent court divesting the party
concerned of parental authority; or
(5) Upon judicial declaration of absence or incapacity of the
person exercising parental authority. (327a)
Art. 230. Parental authority is suspended upon conviction of
the parent or the person exercising the same of a crime which
carries with it the penalty of civil interdiction. The authority is
automatically reinstated upon service of the penalty or upon
pardon or amnesty of the offender. (330a)
Art. 231. The court in an action filed for the purpose in a related
case may also suspend parental authority if the parent or the
person exercising the same:
(1) Treats the child with excessive harshness or cruelty;
(2) Gives the child corrupting orders, counsel or example;
(3) Compels the child to beg; or
(4) Subjects the child or allows him to be subjected to acts of
lasciviousness.
The grounds enumerated above are deemed to include cases
which have resulted from culpable negligence of the parent or
the person exercising parental authority. lawphi1.net
If the degree of seriousness so warrants, or the welfare of the
child so demands, the court shall deprive the guilty party of
parental authority or adopt such other measures as may be
proper under the circumstances.
The suspension or deprivation may be revoked and the
parental authority revived in a case filed for the purpose or in
the same proceeding if the court finds that the cause therefor
has ceased and will not be repeated. (33a)
Art. 232. If the person exercising parental authority has
subjected the child or allowed him to be subjected to sexual
abuse, such person shall be permanently deprived by the court
of such authority. (n)
Art. 193. If the adopted minor has not reached the age of
majority at the time of the judicial rescission of the adoption, the
court in the same proceeding shall reinstate the parental
authority of the parents by nature, unless the latter are
disqualified or incapacitated, in which case the court shall
appoint a guardian over the person and property of the minor. If
the adopted person is physically or mentally handicapped, the
court shall appoint in the same proceeding a guardian over his
person or property or both.
Judicial rescission of the adoption shall extinguish all reciprocal
rights and obligations between the adopters and the adopted
arising from the relationship of parent and child. The adopted
shall likewise lose the right to use the surnames of the adopters
and shall resume his surname prior to the adoption.
The court shall accordingly order the amendment of the records
in the proper registries. (42a, PD 603)
RA 6809. AN ACT LOWERING THE AGE OF MAJORITY
99
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
FROM TWENTY-ONE TO EIGHTEEN YEARS, AMENDING
FOR THE PURPOSE EXECUTIVE ORDER NUMBERED TWO
HUNDRED NINE, AND FOR OTHER PURPOSES.
Sec. 1. Article 234 of Executive Order No. 209, the Family
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 age of eighteen years."
Sec. 2 Articles 235 and 237 of the same Code are hereby
repealed.
Sec. 3. Article 236 of the same Code is also hereby amended
to read as follows:
"Art. 236. Emancipation shall terminate parental authority over
the person and property of the child who shall then be qualified
and responsible for all acts of civil life, save the exceptions
established by existing laws in special cases.
"Contracting marriage shall require parental consent until the
age of twenty-one.
"Nothing in this Code shall be construed to derogate from the
duty or responsibility of parents and guardians for children and
wards below twenty-one years of age mentioned in the second
and third paragraphs of Article 2180 of the Civil Code."
Sec. 4. Upon the effectivity of this Act, existing wills, bequests,
donations, grants, insurance policies and similar instruments
containing references and provisions favorable to minors will
not retroact to their prejudice.
XV. Miscellaneous Provisions
NCC. Art. 356. Every child:
(1) Is entitled to parental care;
(2) Shall receive at least elementary education;
(3) Shall be given moral and civic training by the parents or
guardian;
(4) Has a right to live in an atmosphere conducive to his
physical, moral and intellectual development.
Art. 357. Every child shall:
(1) Obey and honor his parents or guardian;
(2) Respect his grandparents, old relatives, and persons
holding substitute parental authority;
(3) Exert his utmost for his education and training;
(4) Cooperate with the family in all matters that make for the
good of the same.
Art. 358. Every parent and every person holding substitute
parental authority shall see to it that the rights of the child are
respected and his duties complied with, and shall particularly,
by precept and example, imbue the child with highmindedness,
love of country, veneration for the national heroes, fidelity to
democracy as a way of life, and attachment to the ideal of
permanent world peace.
Art. 359. The government promotes the full growth of the
faculties of every child. For this purpose, the government will
establish, whenever possible:
(1) Schools in every barrio, municipality and city where optional
religious instruction shall be taught as part of the curriculum at
the option of the parent or guardian;
(2) Puericulture and similar centers;
(3) Councils for the Protection of Children; and
(4) Juvenile courts.
Art. 360. The Council for the Protection of Children shall look
after the welfare of children in the municipality. It shall, among
other functions:
(1) Foster the education of every child in the municipality;
(2) Encourage the cultivation of the duties of parents;
(3) Protect and assist abandoned or mistreated children, and
orphans;
(4) Take steps to prevent juvenile delinquency;
(5) Adopt measures for the health of children;
(6) Promote the opening and maintenance of playgrounds;
(7) Coordinate the activities of organizations devoted to the
welfare of children, and secure their cooperation.
Art. 361. Juvenile courts will be established, as far as
practicable, in every chartered city or large municipality.
Art. 362. Whenever a child is found delinquent by any court,
the father, mother, or guardian may in a proper case be
judicially admonished.
Art. 363. In all questions on the care, custody, education and
property of children the latter's welfare shall be paramount. No
mother shall be separated from her child under seven years of
age, unless the court finds compelling reasons for such
measure.
XVI. Summary Judicial Proceedings
FC. Art. 238. Until modified by the Supreme Court, the
procedural rules provided for in this Title shall apply as regards
separation in fact between husband and wife, abandonment by
one of the other, and incidents involving parental authority. (n)
Chapter 2. Separation in Fact
Art. 239. When a husband and wife are separated in fact, or
one has abandoned the other and one of them seeks judicial
authorization for a transaction where the consent of the other
spouse is required by law but such consent is withheld or
cannot be obtained, a verified petition may be filed in court
alleging the foregoing facts.
The petition shall attach the proposed deed, if any, embodying
the transaction, and, if none, shall describe in detail the said
transaction and state the reason why the required consent
thereto cannot be secured. In any case, the final deed duly
executed by the parties shall be submitted to and approved by
the court. (n)
Art. 240. Claims for damages by either spouse, except costs of
the proceedings, may be litigated only in a separate action. (n)
Art. 241. Jurisdiction over the petition shall, upon proof of
notice to the other spouse, be exercised by the proper court
authorized to hear family cases, if one exists, or in the regional
trial court or its equivalent sitting in the place where either of
the spouses resides. (n)
Art. 242. 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 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. A preliminary conference shall be conducted by the
100
 CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18
judge personally without the parties being assisted by counsel.
After the initial conference, if the court deems it useful, the
parties may be assisted by counsel at the succeeding
conferences and hearings. (n)

Art. 244. In case of non-appearance of the spouse whose

consent is sought, the court shall inquire into the reasons for
his failure to appear, and shall require such appearance, if
possible. (n)

Art. 245. If, despite all efforts, the attendance of the non-
consenting spouse is not secured, the court may proceed ex
parte and render judgment as the facts and circumstances may
warrant. In any case, the judge shall endeavor to protect the
interests of the non-appearing spouse. (n)

Art. 246. If the petition is not resolved at the initial conference,

said 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 specify the witnesses to be heard and the subject-
matter of their testimonies, directing the parties to present said
witnesses. (n)

Art. 247. The judgment of the court shall be immediately final

and executory. (n)

Art. 248. The petition for judicial authority to administer or

encumber specific separate property of the abandoning spouse
and to use the fruits or proceeds thereof for the support of the
family shall also be governed by these rules. (n)

Art. 249. Petitions filed under Articles 223, 225 and 235 of this
Code involving parental authority shall be verified.. (n)

Art. 250. Such petitions shall be verified and filed in the proper
court of the place where the child resides. (n)

Art. 251. Upon the filing of the petition, the court shall notify the
parents or, in their absence or incapacity, the individuals,
entities or institutions exercising parental authority over the
child. (n)

Art. 252. The rules in Chapter 2 hereof shall also govern

summary proceedings under this Chapter insofar as they are
applicable. (n)

101
CIVLAWREV | LEGARDA | PERSONS, FAMILY RELATIONS & PROPERTY| 1stSemAY2017-18

102