completion of the publication.
The requirement of
CHAPTER 1: GENERAL
PROVISIONS
ARTICLE 1: This Act shall be known as the “Civil
Code of the Philippines.” (n)
Republic Act No. 386 – CIVIL CODE OF THE PHILIPPINES
 Main draft prepared by ROXAS Code Commission which
was created via EO 48 March 20 1947 by Manuel Roxas
where DR. Bocobo was Chairperson.
 The 1947 Code Commission started on May 8 1947 and
ended December 15, 1947.
Congress passed RA 386: An act to ordain and institute the Civil
Code of the Philippines on January 26, 1949
ARTICLE 2: Laws shall take effect after fifteen days
following the completion of their publication in the
Official Gazette, unless it is otherwise provided. This
code shall take effect, one year after such publication.
SCOPE OF EFFECTIVITY
 Ordinary law
 The civil code
NOTE: When a country is placed under martial law, the
law-making authority is ordinarily vested in the Chief
Executive or President or Commander-in-Chief who
usually issues the following below --
 General Orders (Codes)
 Presidential Decrees or Executive Orders (which may
be similar to STATUTES)
 Letters of Instruction or Letters of Implementation
(which may be similar to CIRCULARS)
 Proclamations (which are announcements of important
things or events)
DATE OF EFFECTIVITY
o When the law provides for its effectivity.
 Vested in the power of congress is that they are
able to provide for a shorter or a longer period than
that of the 15-day period of effectivity of laws.
Two views on the clause “unless otherwise provided”
1. Requirement of publication
2. Period of publication
Two schools of thought:
(1) The clause “unless otherwise provided” refers to the
date of effectivity of the law and NOT to the requirement of
publication, which means that the legislature may in its
discretion provide that the usual 15-day period shall be
shortened or extended but in no way can publication be
dispensable. In the absence of a specific period, Art 2
provides that it shall take effect after 15 days following the
publication should always be complied with. When the law
is silent; then date of effectivity will be after 15 days
following the completion of its publication in the Official
Gazette or in the newspaper of general circulation. (Note:
This is the later doctrine)
(2) The clause “unless otherwise provided” refers to the
requirement of publication and NOT to the date of
effectivity. Generally, all laws need to be published unless
publication is dispensed with. It says that publication can be
dispensed with, if the lawmaking body in its discretion
chooses to dispense the requirement of publication, then
that law may be a valid law. While the general rule is “laws
shall take effect after 15 days after its complete publication,
publication may be dispensed with at the discretion of the
lawmaking body. In other words, publication is a
dispensable requirement.
What is the controlling doctrine?
Tanada v. Tuvera 1986
 A case filed by a group of militant of lawyers (MABINI–
Movement of Attorneys for Brotherhood, Integrity and
Nationalism, Inc.) headed by Senator Lorenzo Tanada, a
prominent lawyer during his time.
 Tanada and his group went to the court to compel the
executive department to disclose or publish certain
Presidential issuances by Pres. Marcos.
 They argued that the due process clause of the
constitution demands that these laws should be made
known to the public. Before one can be prosecuted for
violating a certain law, that law must be made known to its
subjects.
Supreme Court Ruling:
 Gone are the days for secret laws. Due process demands
that laws must come to the open in the clear light of the sun
instead of sulking in their shadows with their deep, dark
secrets.
 How are people supposed to comply with the laws they do
not even know about?
 Publication is an indispensable requirement before they can
be become effective, valid and binding.
 The publication must be in full or it is no publication at all,
since its purpose is to inform the public of the contents of
the laws. It must be made in the Official Gazette, and not
elsewhere, as a requirement for their effectivity after 15
days from such publication or after a different period
provided by the legislature.
Years later, the SC deviated from the Tanada ruling in the
case of Philippine Veteran’s Bank Employees Union v. Vega.
PVB Employees v. Vega 2001
 Involves the liquidation proceedings of the Philippine
Veterans Bank.
 Liquidation proceedings – is a legal process prelude
to the eventual closure of a corporation. A process
where a corporation undergoing financial difficulty is
subjected to winding up of its affairs where its assets
 are converted into cash to be used in paying its
obligations to its creditors prior to its closure.
 The Central Bank, the government office tasked with
the duty to oversee the operations of banks, filed
an action in court for the liquidation of PVB. Some
of the creditors of the bank were the employees of
the bank who were terminated as a result of the
liquidation proceedings.
 These employees were represented by their union, PVB
employees union. They filed a complaint before the
liquidation court claiming payment of their unpaid wages
and other monetary benefits.
 During the pendency of the liquidation proceedings, a
new law was passed RA 7169 mandating the
rehabilitation of the PVB.
 Rehabilitation – Be restored to its former condition. The
bank will have to be re-operated. The purpose of the
RA is diametrically opposed to the pending
liquidation proceedings. While liquidation is a prelude to
death, rehabilitation is reviving a dying corporation.
 The union filed a petition before the labor court
asking for reinstatement in the event that the bank is
rehabilitated.
 They also filed a motion before liquidation court to stop
proceeding with the liquidation because of the
enactment of the new law.
 Judge Vega refused and so the matter was brought up
to the SC.
 The Central Bank argued that RA 7169 took effect
on March 10, 1992, 15 days following its publication. It
appears that the law was published on February 24.
Also, the law was signed by Pres. Aquino on Jan 2,
1992.
 Central Bank and the Board of liquidators view that RA
7169 took effect only on March 10.
Supreme Court Ruling:
 It did not take effect on March 10, 1992.
 While as general rule, publication is required for a
law to be effective and valid, the legislative body
has the discretion to provide for an exception as
when the law itself provides that it be effective upon
approval of the president. The law is deemed approved
when it is signed by the president. (Sec 10 of RA 7169
– This law shall take effect upon approval.)
 When the law provides that it be effective upon
approval, there is no need for publication because
publication legally and physically comes after approval.
 Publication is not indispensable at all for the
legislative body can dispense with the publication
requirement in their discretion.
 Even assuming that publication is required before RA
7169 can be effective, the records show that this law
was actually published. Therefore, it complied with the
requirement of Art2.
LOGIC would tell us that presumably the later law
supersedes the earlier law. A basic rule in statutory
construction would tell us that in case of conflicting judicial
decisions, the latter decision prevails over the former.
Hence, the recent decision is the controlling decision. Main
because when the court renders a decision today, it is
presumed that it considered the decisions in the past.
However – Tanada should still be the controlling law w/
regards to publication due to the ff. justifications:
1. Art 8, Sec. 4, par. 3 of the 1987 Constitution: no
doctrine/ legal principle rendered by SC En Banc
may be rendered, modified, reversed IF not by SC
En Banc.
 Tanada was ruled by Supreme Court En Banc
while the PVB v. Vega was decided by
Supreme Court in division
2. Statement of SC in the decision in Phil Veteran’s
only a mere OBITER DICTUM.
 None of the parties in the case ever raised the
issue of lack of publication nor did they
challenge the validity of RA 7169 on the ground
that it was not published, and yet the SC
made a statement about it. The only
contention advanced by the respondents
was on the actual date of effectivity but never
on the validity of the law vis-à-vis the
requirement of publication.
 Obviously any discussion made by the SC
involving the need of publication and its
exception is more of an obiter dictum. Hence,
it cannot be cited as an authority, not a binding
precedent and neither can it revoke the ruling
of Tanada.
When is there publication?
I. Mode of publication:
a. Before the amendment, the publication was to be done
in the Official Gazette.
b. But due to its limited readership, Pres. Aquino
promulgated Executive Order 200, June 18, 1987
modifying Article 2 of the Civil Code, to now provide for
the publication of laws either in the Official Gazette or
in a newspaper of general circulation in the Philippines
as a requirement for effectivity.
II. But when does the publication deem provided? Does it
refer to the actual release circulation or the day of
issue?
 It may happen that the Official Gazette may have
the date of issue (e.g. June 2015) but it does not
come out every day. It may happen that it may be
published in the June 2015 issue will only be
released on August 2015.
 For purposes of computing 15 days after
completion of publication, when should the period
of effectivity be reckoned with?
Lara v. del Rosario
 This case involves the Civil Code of the Philippines.
 The Civil Code provides for the date of effectivity one year
after completing its publication requirements.
 It came out on the June 1949 issue of the Official Gazette.
 When did the Civil Code take effect?
Supreme Court Ruling:
 The Supreme Court said that the Civil Code of the
Philippines took effect on August 30, 1950, one year from
the time the Official Gazette came out for circulation.
 The date of actual release is deemed to the date of
publication.
However, this ruling has stirred controversy in the legal
community because it runs contrary to the provisions in the
Revised Administrative Code. Sec. 11 provides that for
purposed of fixing the date of publication, it expressly provides
that the date of issue of the Official Gazette should be the
controlling date of publication.
 Wisdom of Sec. 11: if the date of publication will be
reckoned on the actual release of circulation, this will
create uncertainty because not all people can be actually
informed of the actual release of publication. So to
ensure a scenario so that there is a fixed date where one
can reckon the date of publication, the date of issue must
prevail.
 STILL, Lara v. del Rosario is the controlling doctrine. (Sir
Torregosa: this rule must be circumscribed to only this
case. This must not be a binding precedent for future
cases because Sec. 11 of the Revised Administrative
Code has never been amended.)
What are the laws contemplated in Art. 2 of the Civil
Code?
Laws that fall under Art.2 and therefore shall comply
with the indispensable requirement of publication
1. Statutes (laws enacted by Congress)
2. Presidential Issuances (PDs, EOs, Presidential
Memorandum, Presidential Circulars)
3. Administrative Rules and Regulations
 they are given quasi-legislative and quasi-judicial powers
and trace its umbilical cord to the ever-changing society
where laws cannot be far behind
 laws are couched in general terms. Administrative bodies
are tasked to specify the small details that will enable the
effective implementation of the law.
 This contemplates a validly delegated legislative power
Philippine International Trading Corp vs. Englis
 This involves an administrative order issued by PITC. PITC,
used to be an independent administrative body, but now
adjunct to the Department of Trade and Industry. The
primary purpose of PITC is to implement the policy of the
government on matters pertaining to trade between the PH
and foreign country.
 In this particular administrative order, trade agreements
between the PH and the socialist countries (including
PROC).
 This admin order had the effect that all applicants for import
permit to the PROC, are required to present a confirmed
export-program of Philippine products to the PROC. The
purpose is to balance trade between two countries. The
amount you wish to import, should also be the amount you
export.
 Among the applicants, Remington Industrial Sales and
Firestone Seven Inc. failed to comply with the required
export program. Thus, they were not issued the import
permits.
 Issue: Is this a constitutional administrative order?
 The attack of Remington and Firestone was that the
administrative order was grounded on two reasons: a) PITC
has no authority to promulgate such order b) the admin
order is not binding because it was not published in
accordance with Article 2 of the NCC
Supreme Court Ruling:
 The SC said, PITC. Being an administrative body, has the
authority to promulgate such order pursuant to a validly
delegated authority.
 However, the administrative order is not valid. Being in the
nature of a law, it requires publication as a pre-condition for
it to become effective. Unfortunately, it was not published.
 It is not valid unless publication is complied.
Not all rules promulgated by administrative bodies partake of a
law in contemplation of Article 2.
 Distinguish: Rules and regulations for the purpose of
implementing the provisions of a law vs. rules and
regulations are opinions or interpretative in nature
 There are circulars that are mandated by law that to be
rendered effective must be able to publish especially
when such circular is PUNITIVE in character. However,
there are circulars that need not be published when it
covers internal regulation only of offices and if they are
mere interpretations of general policies -
Victoria’s Milling Corporation v. Social Security
Commission,
 The Social Security Commission issued Circular 22
addressed to all covered employers.
 This Circular provides that in the computation of the
employer and employees contribution to the system, the
amount of bonuses, allowances and overtime pay received
by the worker shall be considered in the computation of the
aggregate compensation. All remuneration the worker
receives shall be computed as the base figure.
 Upon learning of this administrative circular, Victoria’s
Milling disagreed in the computation of the base
compensation.
 It turns out that before this circular was promulgated, the old
law excluded overtime pay, allowances and bonuses from
the computation of aggregate compensation. And what was
considered was only the basic pay. This would mean that
the employers’ contribution would be lower than what was
stipulated in the circular.
 Victoria’s Milling assailed the validity of the circular on two
grounds: a) they questioned the authority of the SSC to
promulgate such circular and b) that is was not published.
Supreme Court Ruling:
 The Supreme Court said that the SSC did not promulgate
rules and regulation that would require approval of the
President.
 However, circulars which are mere statements of general
policy as to how the law should be construed do NOT need
presidential approval and publication in the Official Gazette
for their effectivity. Such a circular may be exemplified by
Circular 22 of the Social Security Commission.
 It is their way of interpreting the amendatory law. It is only
the expression of the SSC’s opinion.
Belonging to the same classification are those rules that are
INTERNAL in nature. These are intended only to govern the
internal affairs of that administrative body and do not govern the
general public. These are not considered laws, ergo, does not
need publication.
4. Judicial Decisions
Do Supreme Court decisions need to be published as well?
 Article 8 of the Civil Code: Judicial decisions applying
or interpreting the laws or the Constitution shall for a
part of the legal system of the Philippines
 What is contemplated under Article 2 are decisions of
the Supreme Court, NOT ANY OTHER COURT.
 Publication is a requirement for it to become binding.
BUT THEY DO NOT HAVE TO BE IN THE OG OR A
NEWSPAPER OF GENERAL CIRCULATION.
Roy v. Court of Appeals
 Petitioner owns a burned building which collapsed and
destroyed the tailoring shop occupied by the family of
private respondents, resulting to injury and the death of
Marissa Bernal, the daughter.
 Private respondents have been warned by the petitioner to
vacate their shop because of its proximity to the weakened
wall but they failed to do so. RTC rendered judgment
finding petitioner guilty of gross negligence and awarded
damages to the private respondents.
 Roy appealed the decision of the RTC before the CA but
the CA upheld the decision of the RTC.
 Roy appealed the decision of the CA and on September 9,
the last day of the fifteen-day period to file a motion
for reconsideration, petitioner filed a motion for extension
of time to file a motion for reconsideration but was
denied pursuant to the Habaluyas Enterprise. v. Japzon
ruling. (15 day period is non-extendible)
 Roy went to the SC, arguing that it was grave error on the
part of the CA to deny his motion for reconsideration and
citing as basis the doctrine laid down in Habaluyas v.
Japzon because such decision was never published in the
OG or newspaper.
Supreme Court Ruling:
 There is no law that requires decisions of the SC to be
published in the OG or newspaper. It is the bounden duty
of the lawyer to keep himself abreast of the latest decisions
of courts as published in the advance reports of SC
decisions or in the SCRA or law journals.
 Decisions of the SC because they partake the nature
of the law, need to be published but the publication
requirement need not comply with the publication
requirement of Art 2.
5. Local laws and ordinances
Need to be published for effectivity but just like judicial
decisions, need not comply with the publication requirement
prescribed in Art 2 (OG and newspaper) because insofar as
ordinances are concerned, the law governing publication is the
Local Government Code.
Mode of publication as per Art 59 of LGC: Shall take effect 10
days after a copy thereof is posted in the bulletin board found
outside the provincial, city, municipal or barangay halls. It shall
also be posted in 2 conspicuous places of the LGU concerned.
The 10 day period is mandatory.
 When an ordinance is PUNITIVE or REVENUE-
RAISING, they also need to be published in
newspapers of general circulation in the locality
concerned.
ARTICLE 3: Ignorance of the law excuses no one from
compliance thereof.
REQUISITE: There must be due promulgation of the law either
through the Official Gazette or in newspapers of general
circulation published in full.
However, the maxim refers only to mandatory or prohibitive
laws, not to permissive or suppletory laws. (See 1 Manresa 56).
There can be no Article 3 if there is no Article 2.
Rationale:
Knowledge of the law is presumed as a matter of policy because
of practical necessity and convenience. If we allow ignorance of
the law as an excuse, it will be available for everyone as
a defense and anarchy and chaos will rule for everyone will be
freed from criminal liability.
Question: If the policy is knowledge of the law is presumed, why
is there a need for publication of laws?
It serves as a constructive notice to the people about the
existence of the law. How can you expect someone to be bound
to a law when the existence of which they do not know?
Ignorance of facts (Mistake of Fact)
If there is a legitimate good faith and basis of mistake of fact, it
can be an excuse. Can be an absolutory circumstance. Frees
someone from criminal liability. The presence of mistake of fact
could negate some requirements of criminal liability like criminal
intent. Had the facts been true as the individual believed them
to be, the individual would be exonerated from any liability.
Requisites:
1. The act would have been lawful had the facts been as the
accused believed them to be
2. That the intention of the accused in performing the act
should be lawful
3. Act is not tainted with negligence
 US v. Ah Chong
 Ah Chong works as a cook and in connection with
his work, he was allowed to live in a certain quarter
together with another employee named Pascual.
 Robberies were common in the place and Ah Chong
made it a habit to keep a kitchen knife beneath his
pillow. Since the room has no permanent lock, they
improvised by placing a hook from the inside and
reinforced it by placing a chair against the door.
 One night, Ah Chong was soundly asleep when he was
suddenly awakened by someone who was forcibly
opening the door. He called out twice asking the
person to identify himself but got no answer.
 The door suddenly swung open pushing the chair forward
thereby hitting Ah Chong in the knees. As it was dark, Ah
Chong honestly believed that he was under attack, and so
he took his kitchen knife and struck the intruder, which
turned out to be Pascual who eventually died.
 Ah Chong invoked self-defense stating that it was a
mistake of fact because he honestly believed that his life
was in danger.
Supreme Court Ruling:
 Had it been true that the one who entered the room
was an intruder, then Ah Chong had all the right to defend
himself and his act of killing the intruder would have been
justified.
 Ah Chong exercised due diligence in trying to prevent the
incident by calling out thrice to the person outside.
 Mistake of fact can be a defense provided that his actions
were not tainted with negligence.
 Someone who acted in self-defense cannot be criminally
and civilly liable.
US v. Ah Chong contrary to the case of Yapyuco v.
Sandiganbayan
Yapyuco v. Sandiganbayan
 Active members of the PNP. One night, the accused got
a call from an informant alerting them of some armed
men who were suspected of being members of the New
People’s Army.
 In response of the information, the accused proceeded to
the area, with the view in mind to apprehend the suspects.
 Upon the informant relayed by the informant, the
accused, members of the PNP, tried to flag down a Toyota
Tamarraw motor vehicle said to be carrying the
suspected members of the NPA. Pursuant to the standard
operating police procedure, the accused claimed that they
tried to flag down the vehicle but instead of pulling over,
the vehicle tried to speed away.
 In order to immobilize the vehicle, the accused claimed
that they shot the tires of the vehicle.
 As a result, one died, one suffered fatal injury and many
suffered from attempted murder. Murder, frustrated and
attempted murder were filed against the police officers
who participated in the operation.
 During the trial, the accused invoke mistake of fact as
a defense claiming that they honestly believed that the
passengers onboard the motor vehicle were armed and
dangerous and the suspected members of the NPA.
 They tried to justify that their act of firing bullets at the
vehicle was because it tried to speed away and that
there only purpose in shooting was just to immobilize the
vehicle.
Supreme Court Ruling:
 We cannot give credit to the claim of the accused that
their only purpose was to immobilize the vehicle
because based on the evidence, the trajectory of the
bullets and their locations as shown by the physical
condition of the vehicle, would show that the fire was
aimed at the passengers. Hence, their intention was to
shoot and kill the passengers, most especially because
the weapons used were automatic and assault rifles.
 For mistake of fact to prosper, three requisites must be
established:
A. It must be based on good faith and must be
reasonable.
B. The mistake must pertain to mistake of fact
C. The mistake of fact must negate some elements of
culpability required by law
IGNORANCE OF FOREIGN LAW –
is not ignorance of the law, but ignorance of the fact because
foreign laws must be alleged and proved as matters of fact, there
being no judicial notice of said foreign laws.
 Requisites of proving a written foreign law
1. an official publication thereof or by a copy attested by
the officer having the legal custody of the record, or by
his deputy, and accompanied, if the record is not kept
in the Philippines, with a certificate that such officer has
the custody.
2. Certification of the diplomatic officer of the Philippines
in the foreign country.
 Requisites of proving an unwritten foreign law
1. Printed reports or judicial decisions of courts in the
foreign country if established to be admitted by the
court of the country.
2. Expert of such law or custom from the foreign country
Processual Presumption - If the foreign law is not properly and
duly proven, the presumption is that it is the same as our law.
Yao Kee v. Gonzales
 This involves the estate of a certain China man, Sy Kiat who
died intestate in the Philippines leaving properties in the
Philippines and some heirs.
 Upon his death, one group of heirs headed by Aida
Gonzales, claimed to be the legitimate children of the late
Sy Kiat and moved for the settlement of the estate left by
their father and be appointed as the administrator of the
estate.
 This petition was opposed by a Chinese woman named
Yao Kee who claims to the lawful wife of the deceased.
She claimed that she and Sy Kiat had children.
 Primordial issue: Whether or not Yao Kee was lawful
wife of the deceased.
 During the trial, Yao Kee tried to prove that she was
lawfully married to Sy Kiat pursuant to a marriage ceremony
celebrated in China in accordance with Chinese laws and
customs.
 Art 26 of the Family Code, validity of the marriage is
determined by the law of the place where the marriage is
solemnized. (lex loci celebracionis)
 Unfortunately for Yao Kee, she failed sufficiently to prove
Chinese law on marriage and so the court had difficulty
resolving the issue whether Yao Kee was legally married to
Sy Kiat.
Supreme Court Ruling:
 Applied the principle of Processual presumption (In
instances when a foreign law relevant in the issue of
the case is not duly proven, it shall be presumed that
such foreign law is the same with our laws)
 Since the Chinese law on marriage has not been duly
proved, we now apply Philippine law on marriage. For a
marriage to be valid in Philippine law, it must comply with 5
requisites (2 essential and 3 formal):
1. Consent mutually given
2. Legal Capacity
3. Authority of the solemnizing officers
4. Valid marriage license
5. Marriage ceremony
 The marriage of Yao Kee and Sy Kiat had no
participation of a solemnizing officer because under
Chinese customs, they claimed, marriage can be
solemnized without a solemnizing officer.
 SC ruled that since the marriage of Yao Kee and Sy Kiat in
China had no solemnizing officer, and applying the
Philippine law now pursuant to the Processual
presumption doctrine, it is obvious that the marriage is void
for lack of one of the formal requisites.
ARTICLE 4: Laws shall have no retroactive effect,
unless the contrary is provided.
In general, laws are prospective, not retroactive.
WISDOM BEHIND PROSPECTIVITY – the rule was that if laws
were retroactive, grave injustice would occur, for these laws
would punish individuals for violations of laws not yet enacted.
Marcelino Buyco v. PNB
 Illustrates the general principle that laws should have
prospective application.
 Back pay law – grants some benefits to military who
served the Philippine forces as guerillas during the war.
Because of the war, they were not given their compensation
at the time while the war is still ongoing. When the war was
over, the Congress enacted the Back pay law. Mode of
payment was through a back pay certificate.
 One peculiar feature of the back pay, the recipient of this
back pay certificate may pay his obligations to the
government through the certificate.
 Marcelino Buyco is a holder of a back pay certificate. After
the war, he obtained a loan from the PNB. When the loan
fell due, the back pay law was still in force. Subsequently,
the law creating PNB was amended. The amendatory law
disallows the bank from accepting back pay cert as
payment of obligations.
 Buyco when he paid was refused of payment by virtue
of the amendatory law.
Supreme Court Ruling:
 Supreme Court held that while it may be true that the latest
charter of PNB disallows the payment of obligations
through back pay certificate, it must not affect Mr. Buyco
because his obligation was incurred before the new law
took effect.
 The amendatory law should be given prospective
application and should apply only to obligations incurred
at the time the law took effect and onwards.
 Hence, the amendatory law shall only be given prospective
application so as not to prejudice the vested rights or Mr.
Buyco.
EXCEPTIONS TO THE PROSPECTIVITY: RETROACTIVE
APPLICATION
1. When the law provides for retroactivity
Exception to the Exception – No ex post facto law shall
be allowed (one which makes an act criminal which was not
criminal when committed; increases the penalty)
2. If the statute is penal in nature, provided: (art 22)
a. Favorable to the accused or to the convict;
People v. Patalin
 Involves prosecution of the crime of robbery with
multiple rape. At the time the crime was committed, the
crime was punished by death.
 During the pendency of the trial, death penalty was
abolished. Trial went on and when the decision was
rendered, death penalty was reimposed.
 Issue: Whether or not the accused can be punished
with death considering that at the time the crime was
committed, death penalty was imposable but was abolished
during the pendency of the case and when the decision was
made, death penalty was reimposed?
Supreme Court Ruling:
 SC taking cue from the principle that when the law involved
is penal in nature, the accused cannot be penalized by
death because when death penalty was abolished during
the pendency of the trial, that law was favorable to the
accused and should therefore be given retroactive
application.
 Supreme Court invoked the rule that penal laws should
be given retroactive application when favorable to the
accused. Hence, the accused can no longer be penalized
with death penalty. The effect of the amendatory law
abolishing death penalty retroacts to the time the crime was
committed.
 The fact that death penalty was reimposed when the
decision was rendered does not matter because the
accused had already vested rights when the death penalty
was abolished during the pendency of the trial.
Manuel Rodriguez v. Director of Prisons
 Involves prosecution of the crime of estafa. During the
arraignment, Mr. Rodriguez pleaded guilty to the crime.
And so, the court sentenced him to imprisonment of 1 yr, 8
months and 21 days.
 While serving sentence, a new law was passed, the
RPC, and under this new law, the penalty of estafa is
reduced. Under the OPC, voluntary plea of guilt is not
considered a mitigating circumstance, but under the RPC,
it is, hence reducing the penalty.
 Invoking the benefit of the new law, Manuel Rodriguez
filed a petition for habeas corpus. Since the new law is
favorable to him, it shall be applied to his case. Hence, his
voluntary plea of guilt should be considered as a mitigating
circumstance and the penalty which is lower under the new
law shall be the one applied to him.
Supreme Court Ruling:
 SC ruled in favor of Rodriguez by applying the provisions of
the new law. Since the new law was favorable to the
accused, he shall afford of its benefits including the
mitigating circumstance of voluntary plea of guilt.
 It was found that he already served the proper penalty
imposable on him under the new law which is 4 months
and since it was established that he already served 7
months in prison, his immediate release was ordered.
b. And provided further that the accused or convict is
not a habitual delinquent.
Notes: The retroactivity should only apply if there is still a
practical value to the retroactive application. (Example: Once
one was released after serving a sentence of 20 years, a law
was promulgated decriminalizing the crime you committed, it will
not obliterate your criminal liability.)
Exceptions to the exception:
i. If the accused is a habitual delinquent. (One who within
ten years from his last conviction/release of the crimes of
serious physical injuries, robbery, estafa, falsification of
documents, and theft he is found guilty of any of these
crimes for the 3rd time or oftener)
ii. if the penal law does not cover / apply to the cases before
such law.
Larga v. Ranada
 Involves the prosecution which involves the violation of the
HDMF or the PAG-IBIG Fund Law.
 Under the said law, the employer is mandated by law to
withhold a certain portion of the salary of the employee
and remit them to PAGIBIG to form part of the pool of
resources that can be availed of as way of benefits for
PAGIBIG members.
 Larga happens to be an employer and in accordance with
the law, he withheld portions of the salaries of his
workers accruing from 1984 – 1986.
 It turned out, however, that Larga did not remit them to
PAGIBIG.
 Under the law then in force, non-remittance is a criminal
offense. Hence, he was prosecuted.
 During the pendency of the case, the PAGIBIG law was
amended, making the remittance of contributions voluntary.
Hence, nonremittance is not anymore a criminal offense.
 Larga invoked the principle that a penal should be given
retroactive application if favorable to the accused, Larga
moved to quash the information stating that since
nonremittance is no longer a crime in the new law,
this shall wipe out his alleged criminal liability under the
old law.
Supreme Court Ruling
 As a general rule, penal laws shall be given retroactive
application if favorable to the accused, except when the law
itself provides that it should not be given retroactive
application as when its provisions provide that it shall not
apply to pending cases during the time of its enactment.
 The provisions of the new law expressly provide that
the effect of the amendment decriminalizing the act of
non -remittance will take effect starting January 1, 1987
and onwards. The period of effectivity is specific
iii. DOES NOT APPLY if the accused disregards the
retroactive application of the later law and insists he be
prosecuted under the old law which imposed higher
penalty.
Ferrer v. Pecson
 Involves the prosecution for reckless driving resulting in
serious physical injuries and damage to property.
 Under the law then in force during the commission of
the crime, the crime of reckless driving was punishable
under a special law, The Revised Motor Vehicle Law.
 This law provides for a specific penalty for the offense and
under the law then in force which govern jurisdiction, the
penalty imposed under the Revised Motor Vehicle Law is
supposedly cognizable by the RTC. (Jurisdiction depends
on the severity of the penalty), but the case filed against
Ferrer was filed before the MTC.
 After trial, he was convicted and so he appealed to the RTC.
 When the appeal was with the RTC, Ferrer moved for
the dismissal of the case. He said that the appeal with the
RPC is just a continuation of the proceedings of the
MTC and based on the law in force at that time, the
MTC had no jurisdiction to try and convict him because
it only had jurisdiction over crimes with a penalty of not
more than 6 months, and his crime under the RMVL is
punishable with 6 years maximum.
 Because the MTC had no original jurisdiction, it follows
that the RTC had no appellate jurisdiction. Hence, he
urged the RTC to dismiss the case.
 The matter went all the way up to the Supreme Court.
 The prosecution invoked that a penal law should be given
retroactive application if favorable to the accused. The
 RMVL is subsequently amended by the RPC. By virtue of
the amendment, the crime of reckless driving should no
longer be punished under the RVML but under the RPC.
The penalty under the RPC is lower than that of the RMVL.
Hence, this penalty is cognizable by the MTC.
 The prosecutor argued that the provisions of the RPC
should be applied to accused because it is favorable to
him since it offers a lower penalty. Since the penalty is
lower, the MTC has jurisdiction. Hence, the case should not
be dismissed.
Supreme Court Ruling
 It may be true that penal should be given retroactive
application when favorable to the accused, but not when the
accused himself refuses the benefits of the penal law
and insists that he be prosecuted under the old law.
 Hence, since the MTC had no jurisdiction, the case was
dismissed.
3. If the laws are remedial in nature. There are no vested
rights in rules of procedure. Therefore, new rules of court on
procedure can apply to pending actions.
REASON:
When it comes to remedial laws, generally no rights are vested
because procedural rules do not creative new rights unlike
substantive laws. They merely provide remedies for the
enforcement of the rights given by substantive laws. So,
normally, if it is procedural, since it does not create rights – it
does not impair rights when given retroactive application
Zulueta v. Asia Brewery
 Zulueta entered into a contract of distributorship with Asia
Brewery who is engaged in the manufacturing of beer
and other related products.
 Zulueta filed a complaint alleging breach of contract
before the RTC Iloilo
 By way of retaliation, Asia Brewery also filed its own
complaint before the RTC Makati.
 Zulueta, realizing that she has better advantage if the case
is tried in Iloilo, filed a motion before the RTC Makati
asking that the Makati case be consolidated with the Iloilo
case.
 RTC Makati ordered the consolidation of the cases. Asia
Brewery challenged the order of the Makati Court directing
the consolidation. Asia Brewery claimed that the Makati
Court was guilty of grave abuse of discretion in authorizing
the consolidation of the two cases in Iloilo.
 Under the rules then in force, a petition for certiorari shall
be filed 90 days from receipt of the order subject of the
petition.
 The order of consolidation which Asia Brewery seeks to
nullify was received by her on May 23, 1997. Hence, 90
days from May 23 shall be the deadline for the filing of the
petition for certiorari. (Aug 22)
 Before Asia Brewery could file the petition, the 1997 rules
of court of civil procedure took effect on July 1, 1987. This
rule shortened the period within which to file a petition for
certiorari from 90 days to 60 days.
 Counted under the new 1997 rules, the period to file the
petition for certiorari from May 23 would be July 22. (60
days)
 Instead of filing on or before July 22 which is the
deadline under the new 1997 rules of civil procedure,
Asia Brewery filed it sometime August, within the 90 day
period under the old rule.
 The CA dismissed the petition on the ground that it was filed
out of time, invoking the new 1997 rules of civil procedures.
 Issue: Whether the petition for certiorari by Asia Brewery
was filed out of time.
 Asia Brewery claimed that procedural laws should not be
given retroactive application.
Supreme Court Ruling
 The order sought to be annulled by the petition was
received by Asia Brewery was received by Asia Brewery
on May 23, 1997 and the new rules providing the 60 day
period took effect on July 1.
 Asia Brewery had 21 days to comply with the new rules.
 The new 1997 rules of civil procedure shall be given
retroactive application as to cover cases pending and
unresolved as of the time it took effect.
 Procedural law was given retroactive application
because Asia Brewery was not prejudiced for it had 21
more days to file the petition
Exception to the exception
i. If retroactive application would give vested rights
Tayag v. Court of Appeals
 An action for compulsory recognition of illegitimate
filiation. Filed by a minor child represented by the
mother claiming inheritance of his deceased father, Atty.
Ocampo
 The action was directed to the adminstratix of the
estate of Atty. Ocampo.
 In defense, the administratrix argued that the filing of the
action for compulsory recognition of illegitimate filiation
was filed out of time and has already prescribed. (Art
175 of the Family Code)
 Art 175 Family Code: The filing of the action to
compel the recognition of illegitimate filiation should be
filed during the lifetime of the putative parent. And
since Atty. Ocampo is already deceased, the action has
already prescribed.
 The mother argued that Art 175 is not applicable, but Art
285 of the Civil Code which states that the action to
compel recognition of illegitimate filiation should be
filed within the lifetime of the parent, but when the
parent died during minority of the child, the action
may be filed within 4 years from the time the child
reached the age of majority.
 Issue: Whether or not Art 175 of the Family Code should
be given retroactive application. (When Atty. Ocampo
died, the law then in force was the New Civil Code, but
when the action was filed, the Family Code took effect)
Supreme Court Ruling:
 Art 175 provides for a rule on prescription, a period within
which an action for recognition of illegitimate filiation may
be filed. Even assuming that the issue of prescription is a
matter of procedure or remedial in nature, Art 175 cannot
be given retroactive application as to prejudice or impair the
rights of the child. Because when Atty. Ocampo died, the
law then in force was the New Civil Code (Art 285)
 When Atty. Ocampo died, the minor child already had
vested rights and interests to pursue the action pursuant to
Art 285 of the New Civil Code.
 Hence, Art 175 of the Family Code, even procedural or
remedial in nature cannot be given retroactive application
because to do so would impair vested rights.
ii. When the decision is final and executory – The
retroactive application of procedural or remedial laws
only cover actions which are still pending or
unresolved at the time the procedural law took effect.
Municipality of Coron v. Carino
 Involves an action filed by the Municipality of Coron to
remove the illegal structure built by squatters on its
property. The court rules in favor of the municipality.
 The squatters appealed the decision of the RTC before the
CA.
 Under the rules then in force, one of the requirements
for perfecting an appeal is the submission of the so called
“records on appeal”.
 An appeal is just a continuation of the proceedings below.
When the decision of the lower court is appealed to the CA,
it is required at the time, under the rules then in force
that all the records available on the lower court should be
forwarded to the appellate court so that they can review the
decision of the lower court.
 Because of failure to comply with the requirement of
records on appeal, the CA dismissed the appeal. When it
was dismissed, the squatters failed to elevate the matter to
the SC. Hence, the decision became final and executory.
 The Municipality of Coron moved for the execution of the
decision, asking the court to demolish the illegal structures.
At this time, a new rule was enacted, dispensing the
requirement of records on appeal.
 Invoking the retroactive application of this new
requirement which dispenses the requirement of records
on appeal, the squatters went to the CA and asked for
the revival of their appeal, arguing that records on
appeal is no longer required, hence, their appeal should
be reinstated.
Supreme Court Ruling:
 As a general rule, procedural rules should be given
retroactive application, but its retroactive application covers
only cases which are still pending and unresolved during
the procedural law took effect, and not on cases already
final and executory. Otherwise, there would be no end to
litigation
4. If the law is curative (there is a necessarily retroactive for
the precise purpose is to cure errors or irregularities. To be
valid, must not impair vested rights nor affect final judgment.
*CURATIVE STATUTE – law designed to correct past
defect or irregularity. By its very nature, it should be given
retroactive application to rectify the defect.
Frivaldo v. Comelec
 Frivaldo was a prominent figure in the political scene
during the Marcos regime. To avoid persecution, Frivaldo
fled the country to the US and gained US citizenship by
virtue of naturalization.
 When Cory Aquino took office, Frivaldo went home and
tried his luck in politics. Won thrice for governor of
Sorsogon and was disqualified thrice by the Comelec.
 On the third disqualification, the SC looked kindly on him.
 He was disqualified for the sole reason that he did not
possess the qualification of being a Filipino citizen, for
public officials should be a Filipino citizen.
 When he ran during the 1995 elections, his application
for repatriation was approved by the special committee
on June 30 1995, the time when his tenure started. Hence,
when he registered as a voter and filed for certificate of
candidacy, he was not yet a Filipino citizen.
 Under the rules promulgated by the Comelec, a
candidate for office should be a Filipino citizen at the
time of registration and filing of candidacy.
Supreme Court Ruling:
 Supreme Court held that the repatriation law PD 527 is a
curative statute and it is aimed at correcting the flaws
and defects of the past where Filipino citizens had a
hard time reacquiring Filipino citizenship.
 Being a curative statute, it should be given retroactive
application. The effect of the approval of his repatriation
should be retroactively applied to the time he filed for
his application for repatriation in 1994 and not to be
limited on the time of the approval.
 Hence, it is obvious that at the time Frivaldo registered
for the purpose of the 1995 elections, he was already
a Filipino citizen because the effect of the repatriation
retroacts to the time of the filing of the application.
Take note: Prospectivity does not only apply to laws but also
judicial decisions enunciating new doctrine superceding old
ones especially when it applies laws or a legal doctrine.
DBP v. CA (Pe)
 A certain Chinese businessman in GenSan, Mr. Pe, who
acquired two parcels of land under the provisions of the
Free Patent and Homestead Laws. This law grants
agricultural land to certain qualified individuals.
 In need for cash, he obtained a loan from the DBP and
constituted a mortgage over his properties including the
land he acquired from the Free Patent and Homestead
Laws to secure the payment of the loan.
 He failed to repay the loans thus forcing DBP to foreclose
the mortgage. When Mr. Pe refused to redeem the
foreclosed property, the DBP offered the property to a 3rd
party buyer, Spouses Benzonan who bought the property
form the bank.
 During this time that the property was already sold to Sps.
Benzonan that Mr. Pe offered to repurchase the property
from the bank invoking the provisions of C.A. No. 141 which
says that any land acquired under the provisions of Free
patent and homestead proceedings may be repurchased by
the beneficiary, the widow or heirs, within 5 years from the
date of conveyance.
 Pe south the repurchase of the property but invoked the
ruling of Belisario v. IAC. The provisions of C.A. 11 which
provides for the repurchase, was a subject of flip=flopping
decisions of the SC
 The latest decision of the SC interpreting this provision is
the one in Belisario in 1988. It says that 5 year period for
repurchase shall be counted from the expiration of the time
to redeem the foreclosed property. Under the rule on
foreclosure, when the property constituted to secure a loan
is foreclosed the owner of the property has the right to
redeem the property from the buyer of the foreclosure sale.
The period for redemption is one year from the time of
foreclosure sale. If the owner dies not exercise the right to
redeem within one year, the buyer during the foreclosure
sale shall now consolidate the title and will now become the
absolute owner of the said property.
 Pursuant to the Belisario doctrine, the 5 year expiration
period shall be reckoned from the expiration of the one year
period. Therefore, the period to repurchase has been
extended from 5 years to 6 years. Whereas, under CA 141,
5 year should be counted from the date of the conveyance.
The Belisario ruling extended the period of repurchase.
 If the action of Pe in seeking repurchase is to be reckoned
within the parameters of the Belisario ruling, then he is
correct. Unfortunately for Mr. Pe, the previous doctrine of
the matter in the case of Monge v. Angeles and Tupas v.
Damasco. In these cases, the Supreme Court ruled that the
five year period should be reckoned from the date for
foreclosure.
 Issue: which of these two doctrines should govern the
transaction of Mr. Pe?
Supreme Court Ruling:
 At the time that the loan was obtained and the mortgage
was constituted, at the time of the foreclosure sale, at the
time the property was sold to the bank to the Sps.
Benzonan, the prevailing doctrine was that of the Monge.
 The 1988 case of Belisario reversed the earlier rulings in
Monge vs. Angeles and Tupas vs. Damasco. (The
mortgage in question was made on Feb 24, 1970).
 The new doctrine enunciated in Belisario should only be
given prospective applications and should not apply to
those transactions before the doctrine was laid down.
 The petitioners are bound by decisions based on Article 8
of the Civil Code that states that judicial decisions applying
or interpreting the laws or the Constitution shall form a part
of the legal system of the Philippines.
 While these decisions form part of the law of the land, they
are subject to Article 4 of the Civil Code that provides that
laws shall have no retroactive effect unless otherwise
provided.
 People vs. Jabinal: “when a doctrine of this Court is
overruled and a different view is adopted, the new doctrine
should be applied prospectively and should not apply to
parties who had relied on the old doctrine and acted on the
faith thereof.
 Exception to the prospective application of judicial
decisions: special cases of weighty considerations of equity
and social justice will warrant a retroactive application of
doctrine to temper the harshness of statutory law as it
applies to poor farmers or their widows and orphans.
ARTICLE 5. Acts executed against the provisions of
mandatory or prohibitory laws shall be void, except
when the law itself authorizes their validity. (4a)
MANDATORY OR PROHIBITORY LAWS
A mandatory provision of law is one the omission of which
renders the proceeding or acts to which it relates generally
illegal or void. The violation of directory laws does not result in
invalid acts.
Kinds of mandatory legislation (like penal and some
contractual laws): In the sense that violation to such law creates
criminal/administrative/civil liability.
o Positive (when something must be done);
o Negative or Prohibitory (when something should not
be done).
However, if the law specifically provides for the validity of the act
even if it is violative of a mandatory or prohibitive act then it shall
be considered valid and enforceable.
EXCEPTIONS:
Although in general, violations of mandatory or prohibitory laws
result in void acts or contracts, in some instances, the law
authorizes their validity.
1. If the law itself provides that it be valid.
Example: Act of illegally solemnizing marriage but if the
parties believed in good faith that the solemnizing officer
had authority, marriage remains to be valid
2. If the law considers the act voidable.
Valid until annulled. Example: Shotgun marriage. Consent
is vitiated, hence marriage shall be voidable.
3. If the law itself provides that it be valid but subjects
the wrongdoer to criminal liability.
4. If the law considers the act valid because of supervening
events.
Example: When a foreigner buys a piece of land in the
Philippines, contrary to the rule that foreigners cannot own
properties in the Philippines, but in turn, sells it to a Filipino.
The defect is deemed cured.
5. If the law provides for its validity but generally it would have
been void.
Example: Cockfighting and lotto (gambling)

Article 6. Rights may be waived, unless the waiver is
contrary to law, public order, public policy, morals or
good customs or is prejudicial to a third person with
a right recognized by law.
Rights may be waived because these take the nature of a favor
and no one is compelled to accept a favor, which is why the one
conferred with the right has the right not to accept such right.
RIGHTS THAT CANNOT BE WAIVED
1. Right to life – against the law and public policy
2. Right to future support (necessary to life
3. When the waiver abuse rights of third persons
protected by law.
CUI vs. Arellano University
 Cui was a law student of Arrellano University and a
scholar from first year up to fourth year 1st semester,
when he transferred to Abad Santos.
 Since he was a scholar, his tuition fees are returned to him
at the end of every semester.
 When he finished his law degree, he applied for permit
to take the Bar exams, however, one of the
requirements was a complete transcript of records of his
entire law school.
 Cui went to Arellano University to get his transcript but
he was refused unless he would return the cash
equivalent of his scholarship grant. He paid, but under
protest.
 When he became a lawyer, he sued the university. It turned
out that before he was granted the scholarship, he signed a
waiver of his right to transfer to another school unless he
refunds the school of the cash equivalent of the scholarship
grant.
 ISSUE: Whether the above contract between plaintiff and
the defendant, whereby the former waived his right to
transfer to another school without refunding to the latter the
equivalent of his scholarships in cash, is valid or not.
Supreme Court Ruling:
 The contract of waiver between the plaintiff and respondent
is a direct violation of Memorandum No. 38 and hence null
and void.
 Memorandum No. 38 merely incorporates a sound principle
of public policy.
 The defendant uses the scholarship as a business scheme
designed to increase the business potential of an education
institution. Thus conceived it is not only inconsistent with
sound policy but also good morals. The practice of
awarding scholarship to attract students and keep them in
school is not good custom nor has it received some kind of
social and practical confirmation except in some private
institution as in Arellano University.
 Wherefore, the decision appealed from is hereby reversed
and another one shall be entered sentencing the defendant
to pay the plaintiff the sum of P1,033.87, with interest
thereon at the legal rate from September 1, 1954, date of
the institution of this case, as well as the costs, and
dismissing the defendant’s counterclaim.
ARTICLE 7. Laws are repealed only by subsequent
ones, and their violation or non-observance shall not
be excused by disuse, or custom or practice to the
contrary.
When the courts declare a law to be inconsistent with
the Constitution, the former shall be void and the
latter shall govern. Administrative or executive acts,
orders and regulations shall be valid only when they
are not contrary to the laws or the Constitution. (5a)
Laws are repealed:
(a) Expressly.
(b) Or impliedly (insofar as there are inconsistencies
between a prior and a subsequent law)
What is the effect of a repeal of law?
General Rule:
The effects of the repealing law operate only at the time the
repealing law takes effect. Consistent with the principle of
prospectivity, the effect of the repealing law shall be given
prospective application. The repealing law will not undo the acts
and event that occurred in the past.
Exception:
Total and Absolute Repeal – Renders inoperative so that all acts
that occurred (criminal liability) attached before the repeal --->
will be abrogated on the event of the enactment of the
subsequent law.
People v Pimentel
 Prosecution of illegal possession of firearm and anti-
subversion law.
 SUBVERSION LAW: when the accused was arrested, trial
proceeded and during the trial anti-subversion law was
repealed such that subversive organization membership
was no longer a crime.
 So the accused moved for the dismissal of the case on the
ground that RA 1700 produced the effect of obliterating
whatever criminal liability he incurred under the old R.A.
1700.
Supreme Court Decision:
 As a general rule – the repeal law takes effect only on the
day it was deemed effective.
 But in this case, it was total and absolute such that it is very
clear in the intent of the framers of the subsequent law was
that to obliterate the crime and liability -decriminalize
subversion.
 Dismissal of case pursuant to the total/absolute repeal of
such law. But he was still liable for the illegal possession of
firearm, nonetheless.
Conversely, if the intent is otherwise, this rule does not apply.
Exception to exception:

i. When the repealing law contains a saving clause
saving clause- that portion of the law which expressly saves a
part of the law being repealed as being left unaffected by the
repealing law.
BUSCAYNO vs. Military Commission
 Several personalities alleged to be members of subversive
orgs (CPP and NPA). Arrested, charged and prosecuted of
various offenses among which is the R.A. 1700.
 During the trial, a new law was passed – revision of anti-
subversion law (which repealed RA 1700).
 Taking the principle of retroactive application for penal laws
- The accused filed a petition for habeas corpus – arguing
that with the repeal of 1700 there is no more crime in case.
Supreme Court Ruling:
 SC: disagreed. Although it may be repealed by revised anti
sub law but it expressly provides that cases/violations
committed under the old law shall continue to be
prosecuted to its logical conclusion prior to its repeal.
Clearly provides saving clause.
 Framers of repealing law did not intend the obliteration of
crime under old law neither to excuse criminal liability that
arose from that offense
ii. A repealing law is a re-enacted statute
Repeals the old one but at the same time incorporates the
provision of the old as its own. Thus it penalizes the same act
under its provisions.
There is no intention to obliterate the crime under the old law for
why would it penalize the same act under the old law?
People v. Concepcion
 The defendant, Venancio Concepcion, was the president of
PNB. Under old charter- an officer of PNB is prohibited at
the risk of criminal prosecution from obtaining loan directly
or indirectly from the bank
 Concepcion violated such by obtaining a loan in which he is
a 40% part owner of such corporation.
 During the pendency of the case –charter of PNB was
repealed and a new one took effect.
 Arguing that the new law has repealed the old law meant
that Venancio should be acquitted because that means his
crime under the old law for which he was prosecuted was
deemed obliterated.
Supreme Court Decision:
 The court believes that it was never the purpose or intention
of the Legislature to release anyone from a crime committed
under either one of the Acts, and, in particular, as to the
offense described in the information.
 As stated upon the question here involved, each one of the
legislative acts expressly prohibits the bank from loaning
any of its money to an officer or director, and the only
difference is found in the latter portion of section 29 of Act
No. 2938, which, upon the undisputed facts, is not material
to the question involved here.
 And because the new law punishes the same act ----
obviously, Mr. Concepcion is still liable upon the acts which
he has committed in violation of such law.
 Thus, in such a Re-enacted statute: There is no abrogation
of crime and abrogation of obligation that arises from it.
When there are incompabilities/conflict between statutes:
 The rule that the later statute prevails over the old one –
applies only if the same laws are of the same nature
(general –general; special-special)
 This is not so if the laws involved if both are not of the same
nature – general and special:
1. If the prior law is general and the new law is special,
the special law shall be considered as an exception
to the general law. Hence, there is no repeal to speak of
because these two laws can stand together.
Lichauco v. Apostol
 Involves an EO issued by the Department of Agriculture.
Such order mandates that all applications for importation
of carabaos and draft cattles from countries where there
is an outbreak of animal infectious diseases should go
through the Director of Agriculture for the necessary
clearance or approval.
 Lichauco & Co. tried to import some cattles for production
of serum from Pnom Pehn. It tried to ship into the
Philippines a number of carabaos and cattles.
 This was refused by the Dept of Agriculture because
at that time Pnom Penh was one of the countries
determined to have a prevailing outbreak of animal
infectious disease (rinderpest).
 A dispute arose when the application for importation was
declined.
 Director of Agriculture invoked the provision under the
Administrative Code Sec 1770 which governs
specifically the situation where the animal to be shipped
to the Philippines came from countries where infectious
diseases were reported to be existing.
 Lichauco invoked Sec 1762 of the Administrative Code
as amended which governs the importation of animals from
abroad to the Philippines without qualifications. Hence,
the Director of Agriculture had no right to decline their
application because Sec. 1762 does not impose any
restrictions.
 Both provisions are inconsistent with each other.
 Issue: Which law should prevail?
Supreme Court Ruling:
 1762 invoked by Lichauco & Co. is actually a general
provision, in a sense that it governs cases of importation
under any circumstance and at any time.
 1770 invoked by the Director of Agriculture is a special
law because it only applies to situation where the
animals to be shipped to the Philippines come from foreign
countries determined to have animal infectious diseases.
 Hence, in case of a general law and a special law, the
special law shall be considered simply as an exception to
the general law.
 In this case, there is actually no repeal that takes place.
2. If the former law is special and the new law is general,
there is no repeal
Exceptions:
i. the general law provides that the special law is
repealed
ii. if it can be inferred from the provisions of the general
law that its intention is to replace the special law
iii. Or there is a clear, necessary and irreconcilable
conflict.
Effects if Repealing law is repealed –
1. When a law which expressly repeals a prior law is
itself repealed, the law first repealed does not revive,
unless expressly provided.
 A law (A) was expressly repealed by a subsequent law
(B). Such that after a while, the repealing law (B) is also
repealed. First law (A) does not revive.
 Before the repealing law was repealed – It was a
perfectly valid law at such time. It did the repealing first
(which rendered the first law diminished) before it was
repealed by another subsequent law (C).
2. When a law which impliedly repeals a prior law is
itself repealed, the law first shall be revived, unless
otherwise provided.
 If law 2 expressly repeals law 1 and law 2 in turn,
is repealed by law 3, it shall revive law 1, unless
law 3 provides otherwise.
 Repealing law is declared unconstitutional –
 Declaring a repealing law unconstitutional would have
an effect that as if it did not exist – Not producing a
repeal to the first law.
o Thus, the first law, which the repealing law
intended to repeal, shall continue to take
effect as if it was not repealed at all.
RULE WHEN A LAW IS DECLARED UNCONSTITUTIONAL
BY THE COURT:
A. ORTHODOX VIEW - An unconstitutional law is no law
at all. It does not exist and did not exist at any time.
Hence, it did not create any obligation and confer
any right nor attach any liability. Any transaction,
event or facts that occurred under the law that was
declared unconstitutional are deemed illegal and void
from the very beginning.
B. MODERN VIEW: Operative Fact Doctrine
 This is when a legislative or executive act, prior to its
being declared as unconstitutional by the courts, is
valid and must be complied with.
De Agbayani v. PNB
 Serrano obtained a loan from PNB. By way of collateral,
Serrano constituted a mortgage on his property. But for
non-payment, the bank initiated foreclosure proceedings.
 Serrano opposed on the ground that the action to
foreclose the mortgage has already prescribed; 15 years
had already lapsed from the time the loan obligation
matured.
 At the time of the loan obligation of Serrano matured, an
EO was passed providing for moratorium for all obligations
of all those who suffered from the war, enjoining all
creditors from enforcing their claims. Hence, creditors
could not compel debtors to pay.
 Because of the wholesome purpose of the law, the
Congress even extended the EO by virtue of a RA.
 For 8 years, the moratorium law was in force before
it was declared unconstitutional.
 PNB claimed that the period of 8 years during which
the moratorium law took effect should not be counted in
reckoning the prescriptive period because they were
legally prohibited from initiating foreclosure proceedings
Supreme Court Ruling:
 There is no dispute that for a longest time that PNB was
legally enjoined from collecting by virtue of the moratorium
law.
 While this was declared by a subsequent law –
unconstitutional –thus, there were effects to such –that it did
not TOLL the prescriptive period provided that PNB waived
the right of obligation.
 Filing of foreclosure was well within the prescriptive period
because the prescriptive did not run during the moratorium
law.
YNOT vs. Intermediate Apellate court
 During the time of Marcos, a PD was issued to the effect
that it is illegal for any person to transport carabaos from
one province to another. The purpose was to prevent illegal
slaughter of carabaos.
 Mr. Ynot tried to transport carabaos from Masbate to Iloilo.
The carabaos were confiscated by a police commander
pursuant to the provisions of the PD.
 Ynot moved for the return of the confiscation of the
carabaos but the RTC upheld the confiscation.
 Ynot went to the SC to question to constitutionality of the
law.
 Having been repealed, should the new law hold the police,
in performing his duty be confiscating the cattles from Ynot,
criminally liable?
Supreme Court Ruling:
 No. We agree with the respondent court, however, that the
police station commander who confiscated the petitioner's
carabaos is not liable in damages for enforcing the
executive order in accordance with its mandate.
 The law was at that time presumptively valid, and it was his
obligation, as a member of the police, to enforce it. It would
have been impertinent of him, being a mere subordinate of
 the President, to declare the executive order
unconstitutional and, on his own responsibility alone, refuse
to execute it.
 Even the trial court, in fact, and the Court of Appeals itself
did not feel they had the competence, for all their superior
authority, to question the order we now annul.
While it is true that generally an unconstitutional law confers no
right, creates no office, affords no protection, and justifies no
acts performed under it, there are instances when the operation
and effects of the declaration of its unconstitutionality may be
relaxed or qualified because the actual existence of the law prior
to such declaration is an operative fact and may have
consequences which cannot justly be ignored. Thus, it has been
held that although the Moratorium Law was eventually declared
unconstitutional, it suspended the period of prescription for
actions to enforce the obligations covered by the moratorium.
Note: There is a difference between repeal of a law and
declaration of unconstitutionality.
ARTICLE 8. Judicial decisions applying or
interpreting the laws or the Constitution shall form a
part of the legal system of the Philippines. (n)
Decisions only of the Supreme Court.
STARE DECISIS – can only be invoked by the SC, respecting
precedence.
Are judicial decisions laws?
While it is true that decisions which apply or interpret the
Constitution or the laws are part of the legal system of the
Philippines (Art. 8, Civil Code) still they are NOT laws, if this
were so, the courts would be allowed to legislate contrary to the
principle of separation of powers.
 Indeed, the courts exist in order to state what the
law is, not for giving it. (Jus dicere, non jus dare).
 The interpretation placed upon the written law by a
competent court has the force of law.
The interpretation placed by the Supreme Court upon a law
constitutes, in a way, part of the law as of the date the law was
originally passed, since the Court’s construction merely
established the contemporaneous legislative intent that the
interpreted law desired to effectuate.
ARTICLE 9. No judge or court shall decline to render
judgment by reason of the silence, obscurity, or
insufficiency of the laws. (6)
If the law is clear the judge is duty bound to abide it – even if it
is against his personal beliefs, morals and etc.
Laws do not always answer all society’s problems.
Nonetheless, in its absence or when it is inadequate, the court
should:
a. Refer to other sources such as custom
b. Opinions from experts
c. Decisions rendered from foreign courts
d. Decisions in other analogous cases
The court should perform its duty to render justice regardless of
the absence, obscurity or inefficiency of laws that directly apply
to the facts of the case.
If there is a question of the wisdom of the law – court shall desist
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.
People v. Veneracion
 Judge Veneracion was a devoted Catholic and an active
member of a religious organization and believes that
death penalty can never be justified.
 Case involving rape. The accused was found guilty but
instead of imposing death penalty prescribed by the law
existing at the time, he let his religious convictions take over
as imposed reclusion perpetua instead.
 The People of the Philippines went to the SC to question
the decision of the said judge.
 Involving the crime of rape at that time, it was punishable of
rape. He imposed reclusion perpetua because death
penalty was against his religious belief.
Supreme Court Ruling:
 Courts are duty bound to impose the law. DURA LEX SED
LEX – the law may be harsh but it is the law. The harder
the better.
Take note also that not all human problems can be addressed
by existing laws. When the law is silent upon a certain matter?
In the Case of Stephanie Astorga
 This absence of the law disallowing/allowing the use of the
natural name of the mother of the adopted child.
 The purpose of the adoption is for the benefit of the adopted
child.
 She is vested with rights and benefits according to the
legitimate child. Justice and rightness demand the the
adoptive child is also allowed to use the surname of her
mother.
Salvacion v Central Bank
 Salvacion, a 12 year old girl was illegally detained and
repeatedly raped by a foreigner, a tourist. The foreigner was
arrested and the parents of Salvacion filed civil action for
damages arising from the same crime.
 Insofar as the criminal case was concerned, when the
hearing was set, the accused escaped.
 The civil action continued and after trial, judge rendered in
favor of the complainant and court awarded damages in
favor of the victim.
 The accused was nowhere to be found. The family tried to
enforce the monetary judgment obtained from the court
in the civil and when they discovered that the accused
 had bank deposits, an action for garnishment was filed,
requesting the bank to release certain amount enough
to satisfy the monetary judgment of the court.
 Central Bank refused invoking a Central bank circular which
says that foreign currency deposits are exempted from
garnishment, execution and other processes of the court.
 The said circular was lifted from the Foreign Currency
Deposit Act which makes foreign currency absolutely
confidential. Hence, it cannot be subject of execution or
garnishment.
 The family filed an action for declaratory relief to settle
once and for all the applicability of the central bank
circular and foreign currency deposit act to the case at
hand.
 Issue: Whether the foreign currency deposit of the accused
can be garnished to satisfy the monetary award rendered
by the court.
Supreme Court Ruling:
 The purpose of the foreign currency act is to encourage
foreign depositor/investor by way of investment hoping to
improve the Philippine economy.
 SC resolved with art 10. It is to be presumed that right and
justice are intended. The only way to serve right and justice
to exclude currency deposit to transient tourists because
this is the only way to satisfy the decision of the court so as
to render a decision that is attuned to rightness justice… in
so far as the victim is concerned.
CONFLICT OF LAWS
ARTICLE 14: Penal laws and those of public security
shall be obligatory upon all who live or sojourn in the
Philippine territory, subject to the principles of public
international law and treaty stipulations.
Espouses the principle of generality of penal laws. Anyone who
stays in the Philippines is governed by our penal or criminal
laws. In case of violation, the offender may be prosecuted before
our Philippine courts.
While generality talks about “who is governed by our penal
laws?” territoriality pertains to jurisdiction. Hence, penal laws
have force and effect only within Philippine territory, subject to
various exceptions. (Art 2 RPC)
Subjective Territoriality principle
 The country where the crime was started may have
jurisdiction over the crime even if the crime was
completed in another country.
People v. Tulin
 Involves the crime of piracy involving a vessel
somewhere in Mindanao. The vessel was seized by the
pirates and forcibly brought to Singapore.
 While the vessel was in Singapore, a foreigner joined
the pirates and supervised the unloading of the
petroleum products and transferring them to another
vessel.
 All the pirates, including the foreigner were arrested
because they returned to the Philippines.
 The foreigner went to the SC on the main argument that he
cannot be convicted of the crime because his alleged
participation in the piracy took place only in Singapore
which is beyond the territorial jurisdiction of the Philippines.
Supreme Court Ruling
 While it is true that the actual participation of the
accused took place in Singapore which is beyond the
territorial jurisdiction of the Philippines, it shall be noted
that the crime started in the Philippines when the vessel
was forcibly seized by the pirates and continued until the
vessel reached Singapore.
 When the accused joined the pirates, his involvement was
deemed to be a continuation of the entire criminal process.
 The crime started in the Philippines but was completed
in Singapore and it doesn’t matter if his involvement only
took place in Singapore because he was part of the criminal
process of piracy.
 One of the exceptions of the territoriality principle is
when the offender commits any of the crimes commit
any of the crimes against national security and the law
of nations and piracy is classified as crime against
national security and law of nations.
Objective Territoriality principle
 The country where the crime was completed may
exercise jurisdiction even if it was started outside.
US v. Bull
 Involves a shipment of some animals from Formosa (now
Taiwan) on board a certain vessel. The animals were
treated inhumanely. The manner by which the animals were
treated allegedly violated a certain law which penalizes
inhumane treatment of animals.
 When they arrived in the Philippines, they were arrested
but in their defense, they advanced the argument that
they cannot be tried because the Philippine courts had
no jurisdiction since the crime was started and committed
in Formosa.
Supreme Court Ruling
 While it is true that the shipment started in Formosa, it is
also true that the shipment entered in the Philippines
and the crime was a continuing offense and during the
transport, the animals were treated inhumanely.
 Since the crime which begun in Formosa was
completed in the Philippines, Philippine courts have
jurisdiction to try and convict the offenders.
The Philippines adhere to both subjective and objective
principles. Take note of the exceptions of Article 2 of RPC
ARTICLE 15: Laws relating to family rights and duties
or to the status, condition and legal capacity of
persons are binding upon citizens of the Philippines,
even though living abroad.
Espouses the nationality theory. Filipinos are governed by
their national law on matters relating to family rights and
duties, status, condition and legal capacity regardless of
whether they are in the Philippines or abroad.
Legal capacity, condition, family rights and duties, status, etc.
are governed by the laws of the country where the party is a
national.
Examples: If you are married in the Philippines, you will
still be married when you are abroad; When you are a
minor in the Philippines, you remain to be a minor.
Does Article apply also to foreigners? So that foreigners when
they come here, matters concerning their family rights, duties,
status and legal capacity should also be governed by their own
national law? Say if a 15 year old German comes here
where 15 is the age of majority in Germany, can he be
considered of age when the age of majority is 18 in the
Philippines?
What law governs personal status of foreigners?
Art 15 applies as well to foreigners even if literally it mentions
only Filipinos. Hence, just like Filipinos who are governed
by Philippine laws wherever they may be, foreigners insofar as
family rights, duties, status, condition, or legal capacity, are
also governed by their own national law even if they are in the
Philippines.
Recto v. Harden
 Atty. Recto, a prominent lawyer happens to represent a
client who is an American citizen, Mrs. Harden. His services
were engaged by Mrs. Harden to protect her interests in
some properties in the Philippines. This was resorted to by
Mrs. Harden preliminary to her petition for divorce against
her husband in the US.
 In their contract, Mrs. Harden agreed to pay Atty Recto
professional fees. After rendering his professional services,
Atty. Recto collected his fees as stipulated in the contract.
 Mrs. Harden refused to pay the stipulated attorney’s fees.
 This prompted Atty Recto to go to court and file an action to
collect.
 In refusing to pay, Mrs. Harden argued that the stipulations
in the contract cannot be validly enforced because the
contract is void for it was entered into in connection with
the divorce that she filed against her husband in the
States. Hence, since divorce was involved, the contract
is void because divorce is against public policy in the
Philippines.
Supreme Court Ruling
 SC ruled in favor of Atty Recto.
 Contract of professional service was not entered into in
connection with the divorce. The contract was to protect the
interests of Mrs. Harden in relation to her properties in the
Philippines.
 Even assuming that the contract was entered into in
connection with a petition for divorce, it does not follow that
the contract is void insofar as Mrs. Harden is concerned.
She is an American citizen and insofar as validity of
divorce, she is governed by her own national law. Since
divorce is valid in the US, the contract shall be valid insofar
as Mrs. Harden is concerned.
 Art 15 applies as well to foreigners even if literally it
mentions only Filipinos so that like Filipinos who are
governed by Philippine laws wherever they may be,
foreigners insofar as family rights, duties, status,
condition, or legal capacity, are also governed by their own
national law even if they are in the Philippines.
Van dorn v. Romillo
 A foreigner and a Filipina, and a divorce decree was
obtained in the US.
 After obtaining the divorce, the husband returned to the
Philippines and filed an action, in his capacity as the
husband of the wife, that he be allowed to administer the
properties which he claimed to be belonging to the conjugal
partnership.
 The wife said that he cannot anymore file the action
for he is no longer her husband pursuant to the divorce
decree obtained.
 The husband argued that the divorce decree cannot be
recognized in the Philippines because Philippines does
not recognize divorce, it being against public policy.
Hence, he remains to be her husband.
Supreme Court Ruling
 Being a foreigner, the husband is governed by his own
national law and being a US citizen, divorce is recognized
and therefore, the divorce decree obtained in the US validly
binds the husband.
 Insofar as Philippine law is concerned, he is no longer
the husband of the Filipina wife.
 The SC did not rule on the validity of divorce insofar
as the Filipina wife was concerned but on the validity
of divorce on the part of the American husband
pursuant to the nationality theory.
Imelda Pilapil v. Ibay Somera
 A couple, German and a Filipina. The German husband
obtained a divorce decree before the German courts.
 After the divorce was obtained, the husband returned
to the Philippines, and when he discovered that while
they were still married, the wife played fire with another
man, he sued for adultery.
 The wife argued he cannot anymore institute the criminal
action for adultery because under Philippine laws, the
private offended party in the crime of adultery is the
husband and since the German cannot anymore be
considered as her husband at the time of the institution of
the action as a result of the divorce obtained, he has no
personality to institute the action for adultery.
Supreme Court Ruling
 The legal personality to institute a criminal action for
adultery should be determined at the time of the filing of
the action. Since the husband is governed by his own
law, the divorce decree that he obtained in Germany
should be considered as valid insofar as he is concerned,
 Since the divorce is valid, the husband then cannot
anymore be considered as an offended husband.
Exceptions: Where legal capacity is not governed by Article
15
a. When the contract involves property.
 The legal capacity of the parties concerned is
to be determined by the law of the place where
the property is located. While status or legal
capacity is generally governed by the national law
of the individual, this is not so when the status
concerns itself with a contract involving
property.
Distinguish ordinary contract from a contract of property:
Ordinary contract - A contract which does not involve property =
Article 15 applies (Nationality Theory)
Contract involving property = Article 16 applies (Lex Rei Sitae)
Example: Can a 15 year old German buy a property in the
Philippines? (He is of age in Germany but is still a minor in the
Philippines) No. Article 16 and not 15 shall apply. Pursuant to
Art 16, all matters concerning the contract involving property
shall be governed by the law of the country where the property
is located. Hence, the legal capacity of the German to buy
property shall be governed by Philippine laws, and under our
laws the age of majority is 18.
b. When it involves the legal capacity of an heir to inherit
from a decedent.
 Example: If you are a Filipino and your father is a
German national, the issue of whether or not
you are entitled to inherit from your German
father is not determined by your national law.
 The legal capacity of an heir to inherit Art
1039 is governed by the national law of the
decedent. Hence, German laws shall apply, by
way of exception to Article 15.
c. When it involves the legal capacity of a testator to
make a will
 In laws involving succession, legal capacity to
make a will is subsumed under extrinsic validity
of a will, hence shall be governed by Article 17
and 815
 Example: When a Filipino citizen executes a will in
Japan leaving properties in the Philippines to
his Vietnamese girlfriend, the issue of whether or
not he has the capacity issue to execute the will
is not determine by Philippine laws but by
Japanese laws where the will was executed.
d. When it involves the legal capacity to contract
marriage
 Legal capacity to contract marriage is generally
not governed by Article 15 except if the party
is a Filipino. (Because then Art 15 nationality
theory shall apply)
 General rule: What law governs the capacity
of a contracting party to contract marriage (Art
17 lex loci celebracionis shall apply)
 (Art 17 shall apply lex loci celebracionis, Art 26 2 nd
par – if a party is a Filipino)
ARTICLE 16: Real property as well as personal
property is subject to the law of the country where it
is situated.
However, interstate ad testamentary successions
both w/ respect to the order of succession and the
amount of successional rights and to the intrinsic
validity of the 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 the said property may be found.
(10A)
 LAW GOVERNING PROPERTIES – LEX REI SITAE
o The law of the country where the real or personal
property is located/situated shall be the governing law
over such real property (after all, real property is
attached to land).
o Application: shares of stocks of a foreigner, even if
personal property, can be taxed so long as the property
is in the country.
o TAKE NOTE; pursuant to this provision as a general
rule all aspects of property are governed by lex rae
sitae principle. Meaning the forms and solemnities of
contracts involving property are governed by lex rei
sitae.
o Even the extrinsic, governed by lex rae sitae and not
article 17. Also the legal capacity of the involving the
contracting parties having that real property contract.
o The intrinsic aspect of the contract, subject matter,
terms and conditions, performance governed by lex re
sitae (mortgage, prescription, registration, accretion,
accession)
EXCEPTIONS TO LEX REI SITAE: 2nd par
1. SUCCESSIONAL RIGHTS – NATIONALITY THEORY
 Shall not be governed by Lex Rae Sitae but by the
national law of the DECEDENT
a. Order of succession
b. Amount of Successional Rights
c. Intrinsic Validity of Testamentary Provisions
What if there be conflict between national law of 2 countries both
having property of a citizen – The problem of unforceablility
and ineffectiveness is precisely a defect on the 2nd Par of Art
16.
To eliminate possibility of “NO JURISDICTION” it is clear that
Art 16 par 2 can apply ONLY TO PROPERTIES LOCATED IN
THE PHILIPPINES.
RENVOI PROBLEM – literally means ”referring back”
 The problem arises when there is doubt as to whether
a reference in our law (art XVI, par 2)or the national law
of deceased –
 reference to the internal of said foreign law
 reference to the whole of the foreign law including
its CONFLICTS LAW
If one state involved follows the NATIONALITY and the other
DOMICILARY === refer back to first state.
TO DO OTHERWISE: refer back again the matter of foreign
country with the possibility that once again the problem will be
refunded to us ---> would result to international football.
CHRISTENSEN V AZNAR
SC: when our court is confronted back with renvoi after referring
back of the issue from then which we referred to the first state –
we shall accept the referring back then we shall apply the
internal law that will solve everything.
2. INVOLVMENT OF PROPERTY IS MERELY INCIDENTAL
 because the issue/relationship of parties is merely
contractual in nature. Do not apply LEX RAE
SITAE. Only the law governing ordinary contracts
is controlling on such matters.
If something goes wrong – do not apply lex rae sitae (cleaning
of house – contract of service; contractual relations between the
parties)
3. When the issue is not itself about the property but the issue
is about the authority over the party
Laurel v. Garcia
 Niponggo Property by virtue of the agreement between
Japan and RP as compensation for the war damages.
 Niponggo was initially intended for diplomatic purposes to
house diplomatic officers. Aquino government intended to
dispose Niponggo property led by Salvador Laurel.
 In other words, the very nature of Niponggo property which
is a public domain cannot be emulated for it belongs to the
whole government of Filipino people.
Supreme Court Ruling:
 It is error to argue applies to such case because the issue
is not about the property as to ownership. The only issue is
the authority of the government to sell the property
ARTICLE 17. The forms and solemnities of contracts,
wills and other public instruments shall be governed
by the laws of the country in which they are executed.
When the acts referred to are executed before the
diplomatic of consular officials of the Republic of the
Philippines in a foreign country, the solemnities
established in the Phil laws shall be observed in their
execution.
Prohibitive laws concerning persons, their acts or
property, and those which have for their object of
order, public policy and good customs shall not be
rendered ineffective by laws or judgments
promulgates, or by determinations or conventions
agreed upon in a foreign country. (11a)
 DOCTRINE OF LEX LOCI CELEBRATIONIS - The law
provides clearly that the FORMS and SOLEMNITIES of
public instruments, wills and contracts shall be governed by
the laws of the COUNTRY WHERE THEY ARE
EXECUTED. (EXTRINSIC VALIDITY)
o Valid when done orally or should it be in
writing?
o Should it be notarized?
o Signed by at least 4 witnesses?
What if the various stages of the execution of the contract
took place in different countries? Say, if the offer was made
in one country, or online, and the acceptance in another.
Article 1319 NCC – Contract is perfected by the meeting of the
minds between the contracting parties. This happens when the
offer is accepted and acceptance is communicated to the
offeror. Unless the acceptance is made known to the offeror, the
contract cannot be deemed perfected.
- Paragraph 2 states that when the offer and acceptance
are made through letters or electronic forms, the
contract is deemed perfected at the place where the
offer was made
Article 17 exclusively applies to the EXTRINSIC aspect of
the contract and not in the INTRINSIC aspects (effect, terms
and conditions, interpretation & subject matter)
What law governs intrinsic aspects of a contract?
Fundamental rule: LIBERALITY
- Parties are free to establish the terms and conditions
and stipulations of the contract as they may deem
convenient, unless it is contrary to law, morals or
public policy. Hence, pursuant to the liberality of
contract, our policy is to give effect to the intention
of the parties.
For purposes of conflict of laws, intrinsic validity of the contract
shall be governed by the:
1. Law intended by the parties (Lex Loci Voluntatis)
- This is determined by looking at the choice of law
clause (where the parties expressly indicate what
law governs their contract)
- Limitations: The parties cannot validly stipulate a
specific law which has nothing to do with the contract
at all.
2. In the absence of a choice of law clause, the law which the
parties presumed to have agreed upon (LEX LOCI
INTENTIONIS)
- When the contract is silent as to the choice of law
of the parties and when the intention cannot be
determined in the absence of the choice of law
clause, you apply lex loci intentionis.
- This is determined by the most significant
relationship theory by examining the various
significant components of the contract. (e.g. parties,
subject matter, terms and conditions, performance,
effects, considerations) and determining as to which
country these significant components refer to.
- Contract executed in the Philippines by two Japanese
involving a property in the Philippines and it be
performed in the Philippines, the effects of the contract
takes place in the Philippines and considerations paid
in the Philippines. (Obviously the most significant
aspect of the contract pertains to the Philippines,
hence the law of the Phils shall govern the intrinsic
validity of the contract)
3. When the significant components are evenly distributed to
the countries involved, the law of the country where the
contract is likely to be upheld as valid.
RULE OF EXTERRITORIALITY – Even if acts be done abroad,
STILL – if executed before the Philippine Diplomatic and
Consular officials, the solemnities of the Philippine laws shall be
observed.
o The theory is that the act is being done within an
EXTENSION of the PHIL. TERRITORY (the principle
of exterritoriality)
o Under Int’l law, host countries waiver their jurisdiction
over the premises of the diplomatic offices of another
country located in the said host country.
When the Phils refers to a foreign law but cannot be applied
because the application of the foreign law may contradict the
sound policy or morals of our country
Bank of America v. American Realty Corporation
 The court held that section 4 of the 1997 rules on civil
procedure provides that if “two or more suits are instituted
on the basis of the same cause of action, the filing of one or
a judgment upon the merits in any one is available as a
ground for the dismissal of the others.”
 A mortgagor creditor may pursue two remedies either to
institute against the mortgagor debtor a personal action for
collection of money or foreclosure of a mortgage but cannot
avail of both remedies.
 In Philippine jurisdiction, these remedies are alternative and
not cumulative.
 Thus, choosing a remedy is a bar to avail the other remedy.
Plaintiff cannot split up a single cause of action by filing both
remedies as expressly prohibited by the rules on civil
procedure.
 On the contention of the petitioner that the English law
should apply to the principal agreements that states that the
mortgage does not lose its security interest by simply filing
civil actions for sums of money, the court held that a foreign
law must be properly pleaded and proved as fact. If not
pleaded, the court will presume that the foreign law is the
same as our local or domestic or internal law. This is the
doctrine of processual presumption.
 Additionally, 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. The public policy sought to be protected in the
instant case is the principle imbedded in our jurisdiction
proscribing the splitting up of a single cause of action.
 The principle imbedded in our jurisdiction proscribing the
splitting up of a single cause of action is a public policy that
is sought to be protected in this case. And accordingly,
prohibitive laws concerning persons, their acts or property,
and those which have for their object public order, public
policy and good customs promulgated or agreed upon in a
foreign country, shall be rendered ineffective in this country.
CADALIN V POEA (DIGEST CASE)
 Involves multiple complaints by OFWs who landed jobs in
countries in the Middle East including Bahrain. While they
were there, their contracts were terminated and were not
given their due. They filed multiple suits in the Philippines
against their employers ASIA INTERNATIONAL
BUILDERS CORPORATION (AIBC) and employment by
BROWN & ROOT INTERNATIONAL, INC (BRI) which
is a foreign corporation with headquarters in Houston,
Texas, and is engaged in construction; while AIBC is a
domestic corporation licensed as a service contractor to
recruit, mobilize and deploy Filipino workers for overseas
employment on behalf of its foreign principals.
 The issue raised there among others, is whether or not the
filing of the suits was within the prescriptive period. It so
happened that the prescriptive period in Bahrain, the
prescriptive period is only one year from the expiration of
the contract. But in our own labor law, it is 3 years from the
prescriptive period. However, the contracts were made and
executed abroad. Obviously, the law that should be applied
is the one in Bahrain.
Supreme Court Ruling:
 The Supreme Court ruled that we cannot apply the said law
because it is contrary to our public policy of protecting labor.
 Laws concerning persons and their acts cannot be
rendered ineffectual by the conventions of a foreign country
when it is against sound policy. Just because it is valid
abroad doesn’t mean it’s valid in the Philipines. By virtue of
public policy, when morality comes in, it is always a
problem.
RULE RESPECTING PROHIBITIVE LAWS –
THE 3RD PARAGRAPH GIVES ONE EXCEPTION to the rule
that a Foreign law, contract or judgment can be given effect.
REASON: is that public policy in the Phils. prohibits the same?  LEGAL WRONG – is committed for which the wrongdoer
Ex: must be held responsible.

a) Contract For the sale of human flesh even if valid ELEMENTS OF ABUSE OF RIGHT:
where act was made cannot be given effect in the Phils. 1) There is a legal right,
b) Absolute divorce granted to Filipinos abroad even if 2) Exercised in bad faith,
valid where it was given cannot be effective here in the 3) For the sole intent of injuring another.
Phils. and
c) c) Living with another man besides lawful husband and What happens if a person disregards a command mandated
his permission. under article 19? Any violation of article 19 causes abuse of
rights. There is an abuse of right when one in the exercise of his
ARTICLE 18. In matters which are governed by the right – disregards what is under article 19.
Code of Commerce and Special laws their deficiency
shall be supplied by the provisions of this code (16a) The aggrieved party can file for damages premised on abuse of
rights principle. This gives rise to call for damages. Art. 19,
 SUPPLETORY NATURE – RULE IN CASE OF CONFLICT however, does not ask for penalty. It merely imposes an article
BETWEEN CIVIL CODE AND OTHER LAWS. for abuse of rights. Damages will be premised in article 20 or 21
o In case of conflicts with the code of Commerce or which provide for remedy to recover damages from the
special laws, the CIVIL CODE shall only be wrongdoer.
SUPPLETORY, except of otherwise provided by the
CIVIL CODE Article 20 Article 21
Act of omission
Act or omission
o In GENERAL, therefore, in case of conflict ---- the covers both
Nature of the act covers only
SPECIAL LAW prevailse over the Civil Codem which negligent and
intentional acts.
is general in nature. intentional acts.
Contrary to
 When Civil Code is SUPERIOR – There are instances What makes the Act or omission is morals, public
when the Civil Code expressly declares itself superior to act actionable contrary to law. policy or good
special laws. customs.
o COMMON CARRIERS
o INSOLVENCY Willful and intentional are not the same.
In case of conflict, the new Civil Code applies but under another  Willful act is one that is deliberately intended to cause
article, usurious transactions are governed by special laws. (Art harm to the victim. So even if the act is voluntary, it may
1175, Civil Code) not always deliberately want to cause harm to another
person.
Rule in Statutory Construction - The General Rule is that the
special law governs in case of conflict. These are torts and not crime.

CRIME TORT
HUMAN RELATIONS An actionable wrong not
There is a law that punishes
1. ABUSE OF RIGHTS - FUNDAMENTAL TENET: defined by a specific law but
the act or omission
2. UNJUST ENRICHMENT by general principles of tort.
Offended party is the
Offended party is the state
complainant
ARTICLE 19. Every person must, in the exercise of his Seeks penalty by way of fine Seeks compensation by way
or imprisonment of recovery of damages.
rights and in the performance of his duties, act with
Examples:
justice, give everyone his due and observe honesty
Tort but not a crime: Breach of promise to marry
and good faith.
Crime but not a tort (because is produces no damage): Illegal
possession of drugs
Presents the rightful relationship between the people. The law
recognizes limits on all our rights; that in their exercise, the
ARTICLE 20. Every person who, contrary to law,
norms of human conduct (justice, give everyone his due,
willfully or negligently causes damage to another,
observe honesty and good faith) set forth in Art 19. must be
observed. shall indemnify the same to the other
 A right, though by itself is legal because it is recognized
and granted by law as such – may however become a Focus of Art. 20: an act which is against the law which can
source of some illegality. When a right is exercised in the either be committed through negligence or intentional act.
manner exercised contrary with the norms in Art 19 ->
damage to another. - Precisely the INTENTIONAL TORT (american
concept)
 - The article basically punishes illegal acts whether done
willfully or negligently.
 MALICE OR BAD FAITH is at the core of this provision.
 Good faith is presumed and he who alleges Bad Faith must
prove the same. / Malice connotes bad faith or ill-will which
implies an intention and unjustifiable harm.
 TORTS/WRONG – legal principle; where there is a wrong,
there is a remedy.
o Spanish tort –based on negligence
o American tort – based on malice
Law on TORTS/ QUASI-DELCTO - Whoever by act or omission
causes damage to another, there being fault or negligence, is
obliged to pay for the damage done. – Art 2176, Civil Code
ARTICLE 21. Any person who willfully causes loss or
injury to another in a manner that is contrary to
morals, good customs or public policy shall
compensate the latter for damage.
*act there is not contrary to law/illegal rather it is against
morality, customs and policy. THE ACT MUST BE
INTENTIONAL.
Elements under Art 21: 1) There is an act which is legal; 2) But
which is contrary to morals, good custom and public policy and
3) is done with Intent to injure. (willful)
 Presupposes loss or injury, material or otherwise, which one
may suffer as a result of such violation.
 Damages are granted only to those injured persons who are
not themselves at fault (refer: Pari Delicto Rule)
Nominal Damages – are granted for the vindication or
recognition of a right violated or invaded, and not for the purpose
of indemnifying the plaintiff for any loss suffered by him
 CONTRA BONUS MORES ( Against good morals)
 PARI DELICTO RULE – means EQUAL in
GUILT/FAULT; in a similar offense or crime. (As to
having CARNAL KNOWLEDGE about such act as
being immoral)
Typical example which violates article 21 – Breach of promise
to marry
*There is no law which penalizes the breach to marry based on
the principle mutual consent of the marriage. Makes it one’s right
to decline to change his mind before the marriage is solemnized.
But there are instances which such breach could action to TORT
where the actor can be liable for damages under article 21.
Baksh v. Court of Appeals
 An Iranian national asked a Filipina woman to marry her.
Because of the promise to marry, the woman agreed and
went on to live with her.
 Due to this promise to marry, the woman gave up her
virginity to him.
 Moreover, the defendants parents
 Have already made some preparations to their marriage
when petitioner repudiated from his promise.
Supreme Court Ruling:
 Mere breach of promise to marry is not actionable.
 However, if there is carnal knowledge and the promise to
marry was the proximate cause to the agreement to sexual
intercourse, then a woman can file for damages.
 What is punished is essentially the idea of deceit,
enticement, superior power or abuse of confidence on the
part of the seducer to which the woman has yielded.
What’s the rule? Depends on:
a. When there is sexual intercourse (carnal knowledge)
i. Compel the other when results pregnancy – compel
recognition or affiliation (support)
ii. Aggrieved party to sue for actual damages representing
the expenses incurred in the preparation of the wedding.
iii. If there was criminal/moral seduction which made the
woman to surrender her woman hood to the man
(devoured)
- Criminal seduction if MINOR
- Moral seduction if ^18
- MAY ASK FOR MORAL DAMAGES
iv. But if the carnal knowledge was due to mutual LUST both
of them Enjoyed it to their intimate delight – NO ACTION
FOR MORAL DAMAGES WILL FOLLOW (PARI
DELICTO – equal in guilt/fault)
What justifies the action for moral damages is the fraud and
deceit that was created when there was a breach of promise to
marry.
b. No carnal knowledge –
i. Actual damages for wedding prep
ii. Even if there was no sexual intercourse, the breach of
promise to marry  humiliated and embarrassed the
other (moral damages can also be recovered) **clear
case of abuse of right
c. Prompted in good faith – NOT ACTIONABLE.
- e.g. if one realizes that he/she does not love the other.
IMPORTANT NOTE: YOU CAN ONLY ASK FOR DAMAGES
WHEN THE ACT WAS DONE WILLFULLY AND NOT ONLY
VOLUNTARILY.
Nikko Hotel Manila Garden
 Amay Bisaya was having coffee at the Nikko Garden
hotel when he met a friend carrying a bag of fruits.
 After a brief conversation, his friend told him that he
will be attending party at the penthouse. Sensing the
opportunity to gatecrash, Amay Bisaya carried the
basket and went to the penthouse and acted as if he was
an invited guest.
 During dinner, the organizer noticed the presence of Amay
Bisaya and told Amay Bisaya to leave the party. Bisaya
made a scene causing commotion.
 Bisaya filed an action for damages against the hotel
and the organizer.
 Issue: Whether he is entitled to damages because of the
alleged damages he suffered when he was asked to leave.
Supreme Court Ruling
 The fact that one may have suffered damage, doesn’t
mean that the aggrieved party is entitled to damages.
 The award for a tort action is based on 2 conditions:
a. The existence of the damage
b. The act of the defendant being violative of the right
of the plaintiff
 There is no evidence that the organizer had maliciously
intended to embarrass him. Damnum Absque Injuria.
 This case illustrates that voluntary actions will not
necessarily lead to action for damages. There must be
willfulness.
Doctrine of DAMNUM ABSQUE INJURIA – loss, hurt or harm
without injury in the legal sense, that is, WITHOUT SUCH AN
INVASION OF RIGHTS AS IS REDRESSIBLE BY AN ACTION.
 Essential that some right has to be impaired.
 ART 11, PARAGRAPH 4 OF REVISED PENAL CODE
 DAMAGES THAT DO NOT WARRANT CIVIL
LIABILITY IN THE PART OF THE ACTOR.
 There is no breach of illegal duty.
 This also covers the act of self-defense.
Manila Doctors v. Chua & Ty
 Involves hospital patients, mom and sister of Ty.
 The hospital expenses ballooned that she could no longer
pay.
 Despite repeated reminders, when Ty could not update
the account, the hospital reminded them to either consider
the patients as outpatients since they are already cleared
for discharge or if they want to stay, the hospital will
have to downgrade the accommodation.
 Ty failed to pay and the hospital was forced to
downgrade the accommodation. Ref, aircon, tv and
telephone were cut.
 Ty sued for damages against the hospital and
management claiming that the hospital abused its rights
 Issue: Whether or not Robelyn can claim damages under
the principle of abuse of rights.
Supreme Court Ruling
 Damnum Absque Injuria – While we can only sympathize
with the inconvenience that the family suffered as a
result of the downgrading of the accommodation, but
this does not give them the right to recover for damages.
It is within the right of the hospital to downgrade the
accommodation. Hospitals, while it is being impressed with
public interest, is also a business that has to sustain its
economic viability for it to survive.
 The facilities cut off were non-essential medical
facilities, while they may cause inconvenience, they did
not in any way prejudice or jeopardize the condition of the
patients.
 The award of damages presupposes two things:
1. The existence of the damage
2. The act of the defendant being violative of the
right of the plaintiff
ARTICLE 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.
*receipt of something gives rise to a return because receipt was
without justifiable cause. INTENTIONAL
UNJUST ENRICHMENT – No person can claim what is not
validly and legally his/hers. Hence, s/he would not unduly profit
on something which does not meritoriously belong to him/her.
(Accio in rem verso)
 Nemo Cum Allerius Detrimento Protest – No person
shall unjustly enrich himself at the expense of another.
 Nemo ex alterius incommende debet lecupletari – no
man ought to be made rich out of another’s injury.
Accion in rem verso – When something is received when there
is no right to demand at the expense of another.
Ex. You went shopping in Ayala and in your hurry to leave, the
security guard asked for the receipt but you could not show it at
that moment. Since you don’t want to create a scene, you went
back to the cashier and paid for the same items twice. If the
receipt of the items surfaced after a few days, Ayala has to give
you back the amount you paid for the second time.
Solutio Indebiti (Article 2154) – When something is received
when there is no right to demand it, it being delivered by
mistake, duty to return arises.
Ex. When you suddenly have 1 million pesos in your ATM.
Difference: In accio in rem verso, the delivery of the property
was done voluntarily and intelligently while in solution indebiti,
the property was delivered by mistake.
The indemnity cannot exceed loss or enrichment whichever is
less.
On LOST PROPERTY:
Article 308 of CC – anyone who finds a lost property MUST
return it to the owner when owner is known. If unknown, go to
the mayor.
- If one does not do either - THEFT. Failure to
return/deliver lost property to the proper authority is a
crime…theft bro! theft.
Article 719 – MAYOR SHOULD publicly announce in whatever
ways the mayor finds it convenient. If the owner does not come
forward in 6 months from public announcement, the lost property
is now awarded to the FINDER. Vested on the finder by virtue
of OCCUPATION (mode of acquisition when property did not
have a previous/known owner).
- if the owner comes forward within the 6-month rule,
finder should be given 1/10 of the VALUE of the
property found to recognize one’s honesty.
- However, is perishable, it will be auctioned.
ARTICLE 23. Even an act or even causing damage to
another’s property was not due to the fault or
negligence of the defendant, the latter shall be liable
for indemnity if through the act or event he was
benefited.
Still UNJUST ENRICHMENT
 Duty to indemnify because of benefit received.
 Only prove the correlation of benefit and damage.
 UNLESS there is duty to indemnify, unjust enrichment
will occur.
 The fact that someone benefited from some damage
makes rise of indemnity
Example of Art. 23: Without A’s knowledge, a flood drives his
cattle to the cultivated highland of B. A’s cattle are saved but B’s
crops are destroyed. A was not at fault, but he was benefited.
Hence, he should indemnify B.
Article 23 closely related to Art 432
Art 432 Doctrine of necessity or complete privilege
- The owner of a property has no right to prevent
interference by another of his property, if the
interference is necessary to avert an imminent
danger and the imminent danger if compared to
the damage, is greater. The person who was
benefited is obligated to indemnify for the damage
caused.
- Example: A fireman destroying a nearby house to
gain access to the subdivision. The nearby property
is destroyed to avert a greater evil, being the
destruction of houses inside the subdivision due to the
fire. Destroy one house to save many.
Article 23 Article 432
Because of the benefit derived, the obligation to indemnify
arises.
Need not distinguish
The evil sought to be
whether the evil sought to
avoided must be greater
be avoided is greater than
than the damage cause.
that suffered by the plaintiff.
Art 11 paragraph 4 RPC – doctrine state of necessity (A
justifying circumstance)
- Damage caused by an act intended to save a greater
evil but whoever has derived benefit from the event is
liable to indemnify those who were damaged by the
event in the course of the firemen’s intervention
- Article 101 of the RPC: The party in whose benefit the
damage was done should indemnify.
For both Art. 432 (NCC) and Article 11 (RPC): THE FIREMAN
- There is a fire and the fireman cannot get in the
subdivision without damaging the neighboring houses.
The owners of the houses cannot prohibit the fireman.
If that is the only means to save the subdivision, then
he may do so.
- It is not the fireman that is liable, but the owners of the
subdivision.
Do not confuse state of necessity with the exercise of police
power under Article 436 Civil Code – whenever a property is
condemned or destroyed in the name of general security or
public welfare – the owner of such property cannot claim
compensation. In police power there is not right for indemnity.
ARTICLE 24. In all contractual, property or other
relations, when one of the parties is at a disadvantage
on account of his moral dependence, ignorance,
indigence, mental weakness, tender age or other
handicap, the courts must be vigilant for his
protection.
COURT VIGILANCE – The law takes interest in the welfare of
the weak and the handicaped. Thus we have Parens Patriae.
PARENS PATRIAE ( “father/parent of the country”) – refers to
the sovereign power of the state safeguarding the rights of
persons under diability, such as the insance and inompetent.
 The state as Parens Patriae is under the obligation to
minimize the risk to those who because of their minority
are as yet unable to take care of themselves fully.
Meaning of “Vigilant for his protection” – The phrase in
general means that in case of doubt, doubt must be resolved in
favor of the “underdog”.
 Summun Jus, Summa Injuria – Thus, If the laws were
always to be applied strictly there would be danger that
injustice may arise.
Protects among others, the labor class, many members of which
face obvious disadvantage.
Inadmissability of Confession through Coercion –
inadmissable because the essence of it was that it proceeds
from the free will of the person confession which was not
obtained because s/he was coerced
ARTICLE 25. Thoughtless extravagance in expense
for pleasure or display during a period or acute public
want or emergency may be stopped by order of the
courts at the instance of any government or private
charitable institutions.
 The law seeks to prevent inconsiderate and ostentious activities
during times of emergency.
 Reason: Thoughtless extravagance during emergencies may
incite the passions of those who cannot afford to spend.
 Who can bring the action? Charitable institution (whether
government or private) may bring the action --- But there
should be court order to such action.
ARTICLE 26. Every person shall respect the dignity,
personality, privacy and peace of mind of neighbors
and other persons. The following and similar acts,
though they may not constitute a criminal offense,
shall produce a cause of action for damages,
prevention and other relief:
1.) Prying into the privacy of another’s residence
2.) Meddling with or disturbing the private life or
family relations of another
3.) Intriguing to cause another to be alienated
from his friends
4.) Vexing or humiliating another on account of
his religious beliefs, lowly station in life, place
of birth, physical defect or other personal
condition.
A civil action may be instituted even when no crime is
involved and moral damages may be obtained.
 Remedies:
o an action for damages
o an action for prevention or
o any other relief.
 Scope:
a.) Prying into someone elses’s residence - includes by
implication respect for another’sname, picture or
personaluty except insofar as is neededfor publication
of info and pictures of legitimate news value.
b.) Meddling with or disturbing the private life of family
relations and of another, as well – includes alienation
of the affections of the husband of the wife.
c.) Intriguity to case to be alienated from his friends,
includes gossping, amd reliance o hearsay.
d.) Vexing or humiliating ncludes confusing and health
for features w/ justuciable legal cause.
PROTECTION OF HUMAN DIGNITY – This article enhances
human dignity and personality. SOCIAL EQUITY is not sought,
but due regard for decency and propriety.
If there is no law punishing the act, then there is no crime.
ARTICLE 27: Any person suffering material or moral
loss because a public servant or employee refuses or
neglects without just cause, to perform his official
duty may file an action for damages and other relief
against the latter, without prejudice to any
disciplinary administrative action that may be taken.
ARTICLE 28: Unfair competition in agricultural,
commercial or industrial enterprises or in labor
through the use of force, intimidation, deceit,
machination or any other unjust oppressive or high-
handed method shall give rise to a right of action by
the person who thereby suffers damages.
ARTICLE 29: When the accused in a criminal
prosecution is acquitted on the ground that his guilt
has not been proved beyond reasonable doubt, a civil
action for damages for the same act or omission may
be instituted. Such action requires only a
preponderance of evidence. Upon motion of the
defendant, the court may require the plaintiff to file a
bond to answer for damages in case the complaint
should be found to be malicious.
If in a criminal case the judgment of acquittal is based
upon reasonable doubt, the court shall so declare. In
the absence of any declaration to that effect, it may
be inferred from the text of the decision whether or
not the acquittal is due to that ground.
ARTICLE 30: When a separate civil action is brought
to demand civil liability arising from a criminal
offense, and no criminal proceedings are instituted
during the pendency of the civil case, a
preponderance of evidence shall likewise be
sufficient to prove the act complained of.
ARTICLE 31: When the civil action is based on an
obligation not arising from the act or omission
complained of as a felony, such civil action may
proceed independently of the criminal proceedings
and regardless of the result of the latter.
ARTICLE 32: Any public officer or employee, or any
private individual, who directly or indirectly
obstructs, defeats, violates or in any manner impedes
or impairs any of the following rights and liberties of
another person shall be liable to the latter for
damages:
(1) Freedom of religion;
(2) Freedom of speech;
(3) Freedom to write for the press or to maintain a
periodical publication;
(4) Freedom from arbitrary or illegal detention;
(5) Freedom of suffrage;
(6) The right against deprivation of property without
due process of law;
(7) The right to a just compensation when private
property is taken for public use;
(8) The right to the equal protection of the laws;
(9) The right to be secure in one's person, house,
papers, and effects against unreasonable searches
and seizures;
(10) The liberty of abode and of changing the same;
(11) The privacy of communication and
correspondence;
(12) The right to become a member of associations
or societies for purposes not contrary to law;
(13) The right to take part in a peaceable assembly to
petition the government for redress of grievances;
(14) The right to be free from involuntary servitude in
any form;
(15) The right of the accused against excessive bail;
(16) The right of the accused to be heard by himself
and counsel, to be informed of the nature and cause
of the accusation against him, to have a speedy and
public trial, to meet the witnesses face to face, and to
have compulsory process to secure the attendance of
witness in his behalf;
(17) Freedom from being compelled to be a witness
against one's self, or from being forced to confess
guilt, or from being induced by a promise of immunity
or reward to make such confession, except when the
person confessing becomes a State witness;
(18) Freedom from excessive fines, or cruel and
unusual punishment, unless the same is imposed or
inflicted in accordance with a statute which has not
been judicially declared unconstitutional; and
(19) Freedom of access to the courts.
In any of the cases referred to in this article, whether
or not the defendant's act or omission constitutes a
criminal offense, the aggrieved party has a right to
commence an entirely separate and distinct civil
action for damages, and for other relief. Such civil
action shall proceed independently of any criminal
prosecution (if the latter be instituted), and mat be
proved by a preponderance of evidence.
The indemnity shall include moral damages.
Exemplary damages may also be adjudicated.
The responsibility herein set forth is not demandable
from a judge unless his act or omission constitutes a
violation of the Penal Code or other penal statute.
ARTICLE 33: In cases of defamation, fraud, and
physical injuries a civil action for damages, entirely
separate and distinct from the criminal action, may be
brought by the injured party. Such civil action shall
proceed independently of the criminal prosecution,
and shall require only a preponderance of evidence.
ARTICLE 34: When a member of a city or municipal
police force refuses or fails to render aid or protection
to any person in case of danger to life or property,
such peace officer shall be primarily liable for
damages, and the city or municipality shall be
subsidiarily responsible therefor. The civil action
herein recognized shall be independent of any
criminal proceedings, and a preponderance of
evidence shall suffice to support such action.
ARTICLE 35: When a person, claiming to be injured
by a criminal offense, charges another with the same,
for which no independent civil action is granted in
this Code or any special law, but the justice of the
peace finds no reasonable grounds to believe that a
crime has been committed, or the prosecuting
attorney refuses or fails to institute criminal
proceedings, the complaint may bring a civil action
for damages against the alleged offender. Such civil
action may be supported by a preponderance of
evidence. Upon the defendant's motion, the court
may require the plaintiff to file a bond to indemnify the
defendant in case the complaint should be found to
be malicious.
If during the pendency of the civil action, an
information should be presented by the prosecuting
attorney, the civil action shall be suspended until the
termination of the criminal proceedings.
INSTITUTION OF CIVIL ACTIONS
An act or omission may be both a crime and tort.
Crime – Penalty (fine/imprisonment)
Tort – Recovery of damages
Civil liability may take the form of: (Art 104 RPC)
1. Restitution (return of the property stolen)
2. Reparation of damage caused (value of the property stolen)
3. Indemnification of consequential damages (value of the
unearned salary)
How to pursue civil liability? Through civil action
Sources of Civil Liability
Article 100 of Every person criminally liable is civilly
RPC liable.
Violation of constitutional rights of
another makes one liable for damages
Article 32 of
regardless of a criminal action that may
NCC
be filed. This civil action is separate and
distinct from the criminal action.
In cases of defamation, fraud, physical
Article 33 of
injury, a separate civil action may be filed
NCC
against the person responsible.
When a member of the police fails to
Article 34 of
render aid or protection to any person in
NCC
case of danger to life or property, a
 separate civil action may be filed against
the police officer.
Anyone who causes damage to another
Article 2176 of through fault or negligence, there being
NCC no contractual relations between them,
shall be liable for damages.
INSTITUTION OF A CIVIL ACTION TO PURSUE CIVIL
LIABILITY
The rule depends on whether the civil action is dependent
or independent.
DEPENDENT CIVIL ACTIONS
Those actions which are based only on Art 100 of the Revised
Penal Code. They are dependent on the outcome of the criminal
case.
RULES:
A civil action arising from a crime may be waived, reserved or
filed ahead of the criminal action by the offended party:
1. When the civil action arising from a crime is not
waived, reserved nor filed ahead of the criminal
action by the offended party:
Rule: The civil action is deemed impliedly instituted in the
criminal action.
Hence, criminal action carries with it the civil action even
the case # is only one. There will be two proceedings lobbed
together in one case. There are two lawyers: the prosecutor and
the private lawyer and the two cases will be tried together.
When the accused is convicted:
It follows that the accused is also civilly liable.
When the accused is acquitted:
 Beyond reasonable doubt (Art 29)
- If the acquittal of the accused is based on
reasonable doubt (evidence is not sufficient to prove
that he is guilty but could actually be), the court may
still adjudge the accused civilly liable even if not
criminally liable because of the lesser quantum of
evidence in a civil case which is just preponderance.
 Innocent
- If the acquittal is based on complete innocence, there
will be no civil liability because it has no leg to stand
on.
2. When the civil action is waived by the offended
party:
Rule: The offended party should make the waiver
before the presentation of evidence of the prosecution.
Effect if no waiver is made before presentation of
evidence: The civil action is deemed impliedly
instituted in the criminal action.
Effect if waiver is timely made: The civil action cannot
anymore be pursued by the private complainant. So if
the accused is found guilty is the criminal case, he
cannot anymore file a civil action to recover civil
liability because of the waiver made.
3. When the civil action s reserved by the offended
party
Rule: The offended party should make an express
reservation before the presentation of evidence of the
prosecution.
The private complainant may choose not to
participate in the criminal case but he may choose
to pursue a civil action.
Effect if no reservation is made before presentation
of evidence: The civil action is deemed impliedly
instituted in the criminal action.
Effect if reservation is timely made: The civil action
shall be suspended at any stage of the trial to await the
outcome of the criminal action. It cannot proceed
independently. It has to wait until the criminal case
is decided and in that criminal case, he is not allowed
to participate because it is a purely criminal case and
he has already reserved the civil action.
When the accused is convicted:
Offended party may now continue with the civil action
earlier reserved.
When the accused is acquitted:
 Reasonable doubt – Civil action earlier reserved
may be pursued.
 Innocence – The civil action reserved may not
anymore continue.
4. When the civil action is filed ahead of the
criminal action by the offended party
There is no rule that prohibits the offended party from
filing the civil action ahead even if it is dependent
on the criminal action.
 When the prosecutor who has the duty to
determine whether to file a criminal case or
not, because of the maneuvering of the
defense counsel, will take time to decide
whether or not to proceed with the criminal
case. Hence, the preliminary investigation
will take some time. If this happens, the
private complainant may go ahead with the
civil action.
 Or after evaluation of the evidence, the
prosecutor is convinced that there is no basis
to go forward with the criminal case leading
to the dismissal. The private complainant,
however, believes that there is
preponderance of evidence to prove civil
liability, he may go ahead with his own
civil action even if it is dependent.
What happens if the private complainant filed the civil action
ahead of the criminal action, but eventually while the civil
action was pending, the prosecutor filed the criminal action?
 a. The civil action shall be suspended at any stage of
the proceedings (because the civil action is
dependent on the criminal action) so long as no
judgment has yet been rendered.
If suspended: Apply the rule on reservation
b. The civil action which was filed ahead may be
consolidated with the criminal action belatedly filed.
INDEPENDENT CIVIL ACTIONS
Those which are filed based on Art 32, 33, 34 and 2176 of the
Civil Code. By nature, they are not dependent on the outcome
of the criminal action. Example: Murder (a crime involving
physical injury as per Art 33 and an independent civil action may
be filed)
Civil action as per Art 100 as well
Effect: One criminal action for fraud and two civil actions being
pursued by the private complainant.
1. Dependent civil action - Art 100 (Impliedly instituted in the
criminal action if not waived, reserved nor filed ahead)
2. Independent civil action – Art 33
Significance:
A. Since an independent civil action is simultaneously
pursued with the dependent civil action, in the criminal
action where the civil action is deemed impliedly
instituted, the private offended party may still actively
participate in the criminal action.
B. The offended party may also pursue the independent
civil action
Are two civil actions allowed?
Though the objective is the same which is to recover damages,
but pursued differently in two distinct civil actions, the rule
does not prohibit simultaneous remedies. What is prohibited is
DOUBLE RECOVERY.
When the accused is convicted;
1. It will not be of any effect to the independent civil action
When the accused is acquitted:
1. Reasonable doubt – independent civil action may
continue
2. Innocence – independent civil action may continue
Take Note: The rule that acquittal based on pure innocence bars
a civil action is true only to a civil action anchored on Art 100
(dependent civil action), and not to independent civil actions.
ARTICLE 36: Pre-judicial questions which must be
decided before any criminal prosecution may be
instituted or may proceed, shall be governed by rules
of court which the Supreme Court shall promulgate
and which shall not be in conflict with the provisions
of this Code.
Prejudicial questions:
In a situation where a criminal action is pending and a civil action
is pending…it is possible that the issue raised in the civil case
intimately related to the issue raised in crim action.
For this to apply: It is NECESSARY that the civil case be filed
ahead of the criminal case.
CIVIL PERSONALITY
ARTICLE 40. Birth determines personality; but the
conceived child shall be considered born for all
purposes that are favorable to it, provided it be born
later with the conditions specified in the following
article. (29a)
ARTICLE 41. For civil purposes, the fetus is
considered born if it is alive at the time it is
completely delivered from the mother's womb.
However, if the fetus had an intra-uterine life of less
than seven months, it is not deemed born if it dies
within twenty-four hours after its complete delivery
from the maternal womb. (30a)
ARTICLE 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. (32a)
ARTICLE 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. (33)
2 KINDS OF PERSONS
1. NATURAL PERSONS
2. ARTIFICIAL PERSONS
NATURAL PERSONS –civil personality is inherent to all natural
persons. When does this commence?
Under article 40 – birth determines personality. Only those who
were born are considered natural person.
But the unborn child while still inside maternal womb –
considered born- provided that it shall be born according to art
41.
1. If it is alive after complete delivery from maternal
womb– civil personality
2. Premature babies – legal personality only when it is
alive within 24 hours after complete delivery from
maternal womb
 3. Unborn (inside maternal womb) endowed with certain
legal personality (has presumptive personality but for it
to acquire complete civil personality MUST BE BORN.)
4. IF NOT BORN, it does not possess rights at all
Geluz v. Court of Appeals
 Action for damages filed by a father against a doctor who
performed 3 abortions on his wife.
 Issue: Whether or not the husband has the cause of
action to recover damages arising from the death of the
fetus
Supreme Court Ruling:
 Only he who suffered injury has the right to recover
damages and not anyone else. If the victim died, the action
may be pursued by the heirs.
 In this case, the fetus died while it was still inside the womb,
it did not become a person because it was not born, and it
did not have any right and when it died, it transmitted
nothing to the parents.
 It does not follow however that the father cannot claim
damages at all, but not on behalf of the child, but due
to his anxiety and frustration from parental expectation.
 The father failed to prove moral damages arising from the
abortion.
 He did not appear to be suffering from the agony of the
death of his child.
Do not confuse civil liability with life:
Civil personality – starts at birth
Life – begins at conception
It is not accurate to say that only a person can die; that only
those who were born can die. Even if a fetus is not yet born, it
can die. This is a PROVISIONAL PERSONALITY. Civil
personality - CAPACITY to possess rights and obligation.
 should not be confused with capacity to DIE. Does
not follow that only those who are born are capable of
dying (fetus – life begins at conception)
Continental Steel Manufacturing Corporation v. Accredited
Voluntary Arbitrator
 Claim for bereavement benefit filed by a father by
reason of the collective bargaining agreement between
the union of which the father is a member being an
employee of the company.
 The company entitles the employees to bereavement
benefit in case of death of any dependent
 When his wife suffered a miscarriage and his unborn child
died, he claimed for his bereavement benefit.
 But this was refused by the company because of the
contention that the dependent contemplated under the
collective bargaining agreement refers to a dependent
who was born. So the fetus cannot be a dependent
because it did not become a person and only a
person can die.
Supreme Court Ruling
 The company if obviously confusing life with civil
personality. Civil personality commences at birth, while life
begins at conception.
 Civil personality is extinguished by death. And all his rights
and obligations die with him.
3 PRESUMPTIONS GOVERNING DEATH:
a. Presumption of Death Rule 131 paragraph W of rules of
court
When the dead body cannot be found – A person may
be considered dead when the presumption applies:
It arises when: Someone disappeared without trace; his
whereabouts unknown
Rule:
i. Disappearance under ordinary circumstance:
- Presumption of death: 7 years of absence
- Succession: 10 years before his estates can be
divided by the heirs (Except: When the father
disappeared after the age of 75 – absence of 5 years
only)
- Remarriage: 4 years
ii. Disappearance under extraordinary circumstances when
there is danger of death
- Presumption of death: 4 years of absence
- Remarriage: 2 years
Applies only in the absence of evidence to prove the fact of
death. Otherwise, when there is enough preponderance of
evidence, that the person who disappeared really died, the
presumption does not apply.
Eastern Shipping Lines v. Josephine Lucero
 Lucero is captain of a vessel and his services were
engaged by the company on a voyage, Philippines to
Hongkong and back.
 Under the contract, his wife shall be the allottee of his
salary.
 But the vessel encountered huge waves brought about
by the typhoon.
 Captain Lucero sent distress messages to the company,
the last message being that the crew are ready to abandon
the ship.
 Everyone accepted that Lucero is already dead, except the
wife.
 She argued that contract shall only be terminated upon the
arrival of the vessel to the Philippines and because the
vessel has not yet arrived, she shall continue to receive the
salary of the husband.
 She also contended that her husband cannot be
presumed dead because the presumptive period of
death of 4 years has not yet expired.
Supreme Court Ruling
 The rule on the presumption of death applies only when
there is absence of evidence to prove the fact of death.
 In the case at bar, there is preponderance of evidence that
the captain really died when the vessel capsized.
 The rule on presumption does not apply, but the
preponderance.
Victory Shipping Lines v. Workmen Compensation
Commission
 Involves a crew of a vessel soundly asleep when they were
suddenly awakened by the fire that engulfed the vessel.
 Instinctively, he jumped and has been heard of since then.
 Father filed an action to collect the death benefits arising
from the death of his son. The Commission granted but the
company appealed the decision arguing that it was still
premature for the father to claim the death benefit because
the period provided for under the law where the son can be
presumed dead has not yet expired.
Supreme Court Ruling
 The rule on presumption of death because there is
preponderance of evidence that the son really died when
he jumped off the vessel during the fire.
b. Presumption of Survivorship paragraph JJ on the rules
of evidence
Can be applied with all purposes EXCEPT succession.
When two persons died, the crucial issue is who of them
died first?
Survivorship is determined from the probabilities resulting
from the strength and age of the sexes:
I. Under 15 and over 60 – the younger died later
II. Both are under 15 – older died later
III. Over 60 – younger died later
IV. Under 15 or over 60; between 15 and 60 – the
latter died later
V. Over 15 and under 60; male died later; older
died later (same sex)
c. Presumption of Simultaneity of death Par. KK
For purposes of succession.
When there is doubt as to who between two persons who
are called to succeed each other died first, he who alleges
the death of the other shall prove the same. In the absence
of proof, they are deemed to have died at the same
time and there shall be no transmission of rights.
Persons and Family Relations
Midterms
Article 1: Definition of Marriage
Marriage
 A special contract which calls for a permanent
union between a man & a woman for the
establishment of a family life. Its nature,
consequences and incidents of marriage are
governed by law and not subject to the
agreement of the parties.
 This is an inviolable permanent social institution.
General Rule: The consequences of marriage are
governed by law and cannot be subject to the
compromise of both parties.
Exception: The choice of economic regime that will
govern their property relation during the marriage.
Marriage is both a CONTRACT and a STATUS
Status:
- Marriage produces rights and imposes
obligations that are very personal in nature.
- This means that it is only the parties that can
exercise and are burdened with these rights and
obligations.
- The obligation to accompany each other or in the
mystery of creation is a personal right.
Contract:
- This is a special one, not your run in the mill
contract.
- Marriage is a private affair but endowed with
public interest.
- In ordinary contract, the rule is liberality, where
the parties can always agree which may be
deemed proper so long as these are not contrary
to law.
- In marriage, this is not true. The nature, incidents
and consequences of marriage are not subject to
law.
- The only exception is on marital settlements (pre-
nuptial agreements) on property relations.
- It is along this line that future support cannot be
waived.
The Supreme Court ruled that a company policy
prohibiting employees of the same company from
marrying each other is an invalid exercise of
management prerogative for the failure of the
employer to present any evidence of business
necessity of the prohibition. Absence of such bona
fide occupational qualification renders the policy
invalid.
R.A. No. 6955: The Act Prohibiting Mail Order Brides
 This law penalizes any person or entity who
carries on a business of matching Filipino women
for marriage with a foreigner.
Marriage does not shed a spouse’s integrity and
right to privacy
 The intimacies between husband and wife do not
justify any one of them breaking into the drawers
and cabinets of the other for any telltale evidence
of marital infidelity. Any evidence obtained
therefrom is inadmissible in evidence.

Article 2-6: Essential & Formal Requisites for
Marriage
Essential Requisites
Legal Capacity
1. Only parties of opposite sex
- Determination is based on what the child has at
birth
- This determination is immutable and no amount
of surgical and scientific intervention can change
such determination made at birth
Rommel Silverio vs. Republic of the Philippines
Facts:
- Silverio was born male (hard and long)
- But when he grew older, he realized that he feels
like a woman. He thinks and acts female.
- He can’t really find happiness in a situation if he is
trapped in a male body.
- He filed an action in court to change his gender and
along with it, change is name from Rommel to Melly.
Ruling:
- The Court did not look kindly on Silverio. His petition
was rejected.
- The Supreme Court said that one’s gender is
determined by birth by visual examination made by
the birth attendant by looking at the child’s genitals.
- The court, however, did not close its doors on
possible change of gender by surgical operation.
- The problem of Silverio is that there is no law that
allows change of gender that allows change of
gender because of surgery.
- Sex re-assignment surgery, done in many countries,
is already a fact of life.
The rule laid down in Silverio will only apply when the
determination of the genitals of the baby is clearly defined.
Republic vs. Cagandahan
Facts:
- What happens when the child has a condition called
CAH or “intersex individuals”?
- Intersexuality
 Applies to human beings who cannot be
classified as either male or female because they
have the biological characteristics of both a man
and a woman.
Ruling:
- Where the person is biologically or naturally intersex,
the determining factor in his gender classification
would be what the individual, at the time he reached
the age of majority, with good reason thinks of his/her
sex. In this case, the gender classification at his/her
birth is deemed inconclusive since it is only at maturity
is the gender of such person is fixed.
- It is the right of the person who has the choice to
determine how he wants to be identified. This
determination is respected by the courts.
2. On Age Requirement
- This is legal capacity, ergo, determined by the
national law of the person pursuant to Article 15
of the Civil Code.
- If both applicants are Filipinos, they have to go
to the Local Civil Registrar and apply there.
 For 18-21, parental consent is need
absence of which will render the
marriage voidable.
 For 21-25, parental advise is needed
absence of will delay the issuance of the
marriage license by the Local Civil
Registrar for 3 months.
 On Foreigners:
- Article 21: If both of the applicants for a marriage
license are citizens of a foreign country, instead
of requiring to submit a birth certificate or a
baptismal certificate, they are required to submit
a certificate of legal capacity to contract marriage
issued by their own consular office.
- This may result to, say, a marriage between an
18-year-old Filipina and a 15-year-old German
national.
 On Stateless Persons
- You cannot apply nationality theory because the
person is a citizen of no country. The nationality
theory will not apply.
- Article 21: He only has to submit an affidavit
showing such legal capacity. The affidavit shall
show the circumstances by which it can be
inferred that the party is legally capacitated to
contract marriage.
- But whose law will determine?
o PIL: While it impossible for an individual to
have no citizenship, it is impossible for an
individual to be without domicile.
(Domiciliary Theory)
o Suppose a person is not a domicile of any
country, and only lives in the high seas,
determine the temporary domicile. It will then
be logically inferred that the place where he
applies for marriage is where his temporary
domicile is. The laws of the temporary
domicile will then prevail.
o Distinction with Lex Loci Celebrationis:
Only the effect is the same. It is not accurate
to say that this principle applies to the legal
capacity of stateless persons.
3. Absence of any legal impediment
 - The parties must be free from any legal
impediments
- What must be absent?
o By reason of relationship: must be not less
than 4th degree from ascendant or 1st
degree of consanguinity.
o By reason public policy: Marriages
mentioned in Article 38.
 Sir’s obiter: The marriage between the
adoptive parent and child of the adopted
child is nothing which is why they are
allowed to marry.
 On surviving spouse and adoptive
parent: This does not apply when the
marriage is dissolved by judicial
declaration of nullity or annulment. Only
applies when one of them actually dies.
o Previous marriage and the manner it got
dissolved. (Article 53 marriages)
o When a marriage is declared void under
Article 40, the declaration should also
include the partition, resolution and
registration on properties. This also
includes the recording of the lands to the
respective Registration of Deeds to
where the properties are located.
It is only when these three requirements are all present
that a person may be deemed to have legal capacity.
Consent Freely Given
- Do not confuse this with vitiated consent
a) Given in the presence of the solemnizing officer
b) with at least 2 witnesses of legal age.
 The consent does not need to be expressed since
it can be deduced from the acts of the parties
showing that they take each as husband and wife.
When is there absence of consent?
Examples:
a. Marriage in jest
- They did not actually intend to be bound by the
effects of marriage.
b. Mistake in identity of the party
- The consent should be with the other party and
not someone else.
Do not confuse consent with motive.
- Motive is not a requisite for marriage, neither is it a
legal impediment.
Republic of the Philippines vs. Liberty Albios
Facts:
- A case where the wife agreed to marry the husband
to be able to acquire his citizenship
- The husband also agreed because he would be paid
$2,000.
- After the marriage, the American husband vanished
into thin air and failed to help the wife.
- Albios filed for the declaration of nullity on the ground
of lack of consent because they entered into the
marriage without any intention to establish a conjugal
and family life.
Ruling:
- There is consent as long as the parties intended to be
bound by the contract of marriage, regardless of their
motives.
- The wife contracted marriage in order to facilitate the
acquisition of the citizenship.
- She also knows too well that in order to do that, she
must be bound by a valid marriage.
- The premise of entering the marriage was clearly
entering into a valid marriage.
Formal Requisites
Authority of Solemnizing Officer
 The person who solemnized the marriage must
be among those authorized in Article 7 of the
Family Code to solemnize the marriage.
 The authority of the solemnizing officer to
solemnize the marriage is presumed unless it is
otherwise proven.
 It is not the duty of the solemnizing officer to
scrutinize the marriage license.
General Rule: Defect in the authority of the
solemnizing officer will render the marriage void.
Exception: If either one or both of the parties
believe in good faith that the person who solemnized
their marriage is authorized by law to do so, then the
marriage is considered valid.
Article 7: Persons Authorized to Solemnize Marriage
 This is a manifestation that the State is a party of the
contract as it is represented by the solemnizing
officer.
1. Any incumbent member of the judiciary can
solemnize a marriage only when the ceremony is held
within its territorial jurisdiction, otherwise it is a mere
irregularity.
- Only incumbent, not resigned nor terminated
- If this is not followed, the marriage solemnized
outside of the jurisdiction is valid but judge is
subject to administrative liabilities.
 - Cases:
 Navarro vs. Domagtoy
 Aranes vs. Occiano
 Berso vs. Daguman
2. A priest, an imam, a rabbi, a minister or pastor
following this certain conditions:
a. Registered with the Civil Registrar General
b. Must be authorize by his/her church or religious
sect.
c. Must act within the limits of the written authority
granted to him by his church or religious sect.
d. At least one of the contracting parties belongs to
the solemnizing officer’s church or religious sect.
3. A ship captain or airplane chief can solemnize
marriage only if one of the parties is at the point of
death and that the parties must be passengers or
crew members of the ship or airplane while it was in
transit.
- This includes stopovers
- Given the nature of the situation, where a voyage
may have the possibility of extreme emergencies.
(Dili labot nang mu-sink na ha, just the
requirement of dying)
4. Military commander provided they follow the
requisites:
a. He must be a commissioner officer with a rank of
2nd lieutenant ensign and above of the
commanding military unit where the chaplain is
assigned.
b. The assigned chaplain is absent at the time of
marriage is solemnized.
c. The marriage must in articulo mortis
d. The contracting parties must be a member of his
unit or a civilian.
e. The marriage must be done in the zone or area
of military operation.
f. There must be a widespread military activity over
an area and does not refer to a simulated
exercise.
5. Consul-General or Vice Consul or Consul can
solemnize a marriage if both parties are Filipino and
the marriage is done abroad. The consul is not only
the solemnizing officer but performs the duties of the
civil registrar by issuing the marriage license.
- The marriage between a Filipino and a foreigner
by a consul is not considered valid.
6. Mayors, vice mayor or acting mayor can solemnize
marriages by virtue of the Sec. 444 of the Local
Government Code which took effect on January 1,
1992.
- The only time they are allowed to solemnize
outside their jurisdiction is when there is a request
of their venue is writing.
- If this isn’t followed, the marriage is still valid but
will subject the mayor to liability.
GOOD FAITH MARRIAGES (Art. 35, par. 2) – if one or
both of the parties believe in good faith that the
solemnizing officer actually has authority, but in truth,
does not, the marriage is still valid but will subject the
person responsible for to civil, criminal and civil liability.
- But then again, know the distinction between
mistake of fact and mistake of law.
- It is only in the mistake of fact that the marriage is
valid. If it is mistake of law, the marriage is void.
Valid Marriage License
- This is considered the most important requisite in the
validity of marriage since it is in the issuance of the
license that the State can determine whether or not
there are impediments in the marriage.
- The marriage license must be secured from the Local
Civil Registrar of the place where either party resides,
which takes 10 days from application before it is
issued.
- The license will be valid for 120 from the date of
issuance.
- Absence of marriage license will render the marriage
void only when it is supported by the certification from
the local civil registrar that no such marriage license
was issued to the parties.
- Any irregularities in the issuance of the marriage
license will not render the marriage void as long as it
does not affect the legal capacity of both parties.
- The requirements are enumerated in Art. 11-16.
- But even if one or both of the contracting parties are
suffering from a legal impediment and the local civil
registrar knows about it, he CANNOT refuse to issue
the marriage license.
- He can prevent the marriage from happening by
going to court and file for an injunction. It is the court
that orders the marriage to not proceed.
- The application for marriage license will be posted in
the bulletin board and 2 conspicuous places in order
to inform the public that two people want to get
married. The publication will last for 10 days.
- Only the Local Civil Registrar where at least one of
the applicants is a resident can issue the marriage
license
Exceptions to the requirement of marriage license:
1. Article 27-32: Marriage under Articulo Mortis
 Articulo Mortis (Point of Death) Marriage
- This is a marriage done wherein one of the party
is at the point of death. This kind of marriage can
be solemnized w/out the need of a marriage
license for necessity and practicability.
 - This can be solemnized by a ship captain or
airplane chief or a military commander, all of
which must be in according to article 7 of the
family code.
Duty of the person who solemnized the marriage under
Articulo Mortis:
- He must execute an affidavit before the LCR stating
that he solemnized the marriage under articulo mortis
and the he took all the necessary steps to ascertain
the age and relationship of the contracting parties and
that he is convinced that they have no legal
impediments to marry each other.
- The original affidavit must submitted by him to the
LCR where the marriage was performed within a
period of 30 days
2. Article 28: Marriage in a Far and Remote Place
- If the parties are residing in a far and remote
place that it is difficult for them to secure the
required marriage license because their place has
no means of transportation, they will exempted
from the license requirement.
Duty of the person who solemnized the marriage:
- He must execute an affidavit after the celebration of
the marriage stating that he solemnized the
marriage in a far and remote place and the
ascertained the age and relationship of the parties
and the absence of any legal impediments.
 The reason for this is to encourage couples
to marry and legalize their relationship
instead of cohabiting in an illicit relationship.
3. Article 33: Marriages among Muslims or
Members of Ethnic Cultural Communities
 Code of Muslim Personal Laws of the Philippines
- Signed into law on Feb. 4, 1977
- This is the governing law on persons and family
relations among Muslims.
- Under this law, marriage license is not
required for the validity of the marriage.
- Under the family code, marriage license is not a
requirement for the validity of the marriage
provided that both parties must be a Muslim or a
member of the Ethnic Community.
4. Article 34: Ratification of Marital Cohabitation
- When the parties have already been living together
as husband and wife for at least 5 years without any
legal impediments to marry each other, the
requirement of a marriage license is no longer
needed.
- This is to not shame the people involved as a
common law marriage is a source of humiliation to the
parties.
Requisites:
a. The party must live together as husband and wife
for at least 5 years.
b. There must be no legal impediments for them to
marry each other.
What to do:
1. Both parties must execute a joint affidavit stating
the foregoing fact and have it notarized by a
person duly authorized to administer the oath.
2. The Solemnizing officer must ascertain first the
qualifications of the contracting parties if there are
any legal impediments.
Ninal vs. Badayog
Facts:
- The husband shot his wife to death.
- 8 months after, the husband married Badayog without
applying for a marriage license. But made an affidavit
stating that they have been cohabiting for 5 years.
- The children of the first marriage assailed the
marriage because their hereditary rights have been
impaired.
Ruling:
- For the ratification of marital cohabitation to apply, the
5 year cohabitation period has to be characterized by
exclusivity and must be free from any legal
impediment.
- It was established by evidence that the husband
married Badayog only after 10 months. This admitted
that even during the lifetime of the 1st wife, they have
been cohabiting with each other, therefore, not
exclusive and free from legal impediment.
This case is seemed to be superseded by the case of
Manzano vs. Sanchez.
Manzano vs. Sanchez
Facts:
- An administrative complaint against a judge who
solemnized a marriage one the basis of Article 34
while still knowing that the husband was still married
to someone else.
Ruling:
- The SC had the occasion to enumerate the requisites
to be able to enjoy Article 34.
- The SC said that one of the requisites for this apply,
that the absence of legal impediments must be during
the time of solemnization of the marriage.
- By clear implication, the SC abandoned the Ninal
doctrine.
Which controls? The issue has been mooted in the ruling
of Office of the Court Administrator vs. Judge
Necessario.
 Office of the Court Administrator vs. Judge
Necessario et.al.
Facts:
- An administrative complaint against MTC judges in
Cebu City. Accused of committing all the sins in the
book.
- One of the illegal marriages solemnized were at least
200 marriages solemnized under Article 34 where the
parties simply executed an affidavit of martial
cohabitation.
- It was noted by the OCA and the SC noted that these
marriages involved parties with ages 20 and below
when they executed the affidavit. By logical
conclusion, this would mean they were only 15 and
below when they started cohabiting with each other.
Ruling:
- It is now clear that the SC reverts back to the Ninal
doctrine.
- The at least 5 year cohabitation must be
characterized with exclusivity and free from legal
impediments.
The one in Manzano is just an obiter dictum and does not
create a precedent.
The falsity of an affidavit of marital cohabitation,
where the parties have in truth fallen short of the
minimum 5 year requirement, effectively renders the
marriage “void ab initio” for lack of marriage license.
Dayot vs. Dayot
Facts:
Ruling:
- If the affidavit was falsified, it would mean that the
marriage solemnized was not valid due to the
absence of a marriage license.
- The affidavit of cohabitation would take the place of
the marriage license. Without it, it is equivalent to not
having a marriage license.
A marriage which preceded the issuance of the marriage
is license is void and that the subsequent issuance of
such license cannot render the marriage valid or add an
iota of validity to it.
Valid Marriage Ceremony
- The family code does not prescribe any particular
form of a marriage ceremony.
- It only imposes that:
a. the parties will appear personally before the
solemnizing officer
b. personal declaration that they take each other as
husband and wife
c. in the presence of at least two witnesses who are
of legal age.
What if they fail to sign the marriage certificate?
- The personal declaration shall be contained in the
marriage certificate
- The certificate is not a formal requisite.
- The personal declaration is made orally or in writing.
- The law does not make the marriage certificate a
requisite. It is only for evidentiary purposes.
- It’s okay that they were not able to sign, so long as
there was a personal declaration made in front of the
solemnizing officer that they take each other as
husband and wife.
What makes the marriage void for not having a marriage
ceremony is when there is no personal declaration.
Morigo vs. People
Ruling:
- The SC ruled that when the parties were only made
to sign a marriage contract not in the presence of a
solemnizing officer that is no marriage at all.
Article 8: Venue of Marriage
The venue of marriage stated in this article is directory in
nature.
General Rule: a marriage solemnized by a judge
outside of his court room or by a priest outside of the
church is valid however, the solemnizer can be held
liable for it since this will become an irregularity in the
marriage.
Exception:
a. When one of the party is at the point of death, it
knows no place.
b. The marriage was contracted in a remote place.
c. When both of the parties request the solemnizing
officer in writing to solemnize it elsewhere in
sworn statement.
Absence in any of the essential and formal requisite
will render the marriage void. (Article 35)
Defect in any of the essential requisite will make the
marriage voidable or annullable particularly to the
giving of consent.
Irregularities in the formal requisite do not affect the
validity of the marriage but the person responsible
for such irregularity can be held civilly, criminally or
administratively liable.
Instances of Irregularities:
 a. Marriage solemnized in a place other than in a
church or chamber of the judge.
b. Absence of two witnesses who are of legal age.
c. Issuance of a license in place where neither of the
parties reside.
d. Issuance of a license w/out the required
supporting papers or documents.
e. Absence of a marriage contract.
f. Issuance of license despite failure of the party to
present parental consent or parental advise when
required.
g. Issuance of license despite absence of posting
notice and publication.
h. Failure to undergo marriage counseling.
i. Failure to pay the required fee for marriage
license.
Article 9, 10: Marriage License
Marriage License
 This serves as the authority given by the State
to the parties to enter into a contract of
marriage.
 It is the concern of the state to make marriages
secure and stable institution.
Article 11-16: Application for Marriage License
REQUIRED DOCUMENTS FOR APPLICATION OF
MARRIAGE LICENSE
a. The original copy of birth certificate, in the
absence thereof, the original baptismal certificate
of the parties. This document is exempt from
documentary stamp tax and signature of the official
person is enough to prove its authenticity.
Except in instances where:
 The parents of the party concerned will personally
appear before the local civil registrar and attest to the
fact that the said party is already of legal age.
 When the local civil registrar shall be convinced by
merely looking at the personal appearance of the
party that they are of legal age.
 When the party has been previously married.
b. If either or the parties were previously married, the
death certificate of the deceased spouse or the
judicial decree of absolute divorce, annulment of
marriage or declaration of nullity of marriage.
c. In case either party is between the ages of 18-21,
they must present a parents consent, absence of
which will render the marriage voidable.
This must be in an affidavit of sworn statement
that the parents gave their consent.
Preference is given to the father otherwise the
mother, surviving parent or legal guardian of
persons having charge of them shall give the
consent.
d. If the party is between the ages of 21-25, parental
advice is required.
Absence of which will not affect the validity of the
marriage but will delay the issuance of the
marriage for 3 months following complete
publication of the application.
This is in keeping of family tradition
e. Certificate of marriage counseling in cases where
parental consent or parental advice is required.
Failure to attach the counseling certificate will
cause the suspension of the issuance of marriage
license for 3 months. This is only an irregularity to
the formal requisite.
If one or both of the parties are below 25 years
old, both of them must attend.
f. If a party to the marriage is a foreigner, he must
present a certificate of legal capacity to marry issued
by his diplomatic or consular representative in the
Philippines.
g. Place of issue for the Marriage License, the parties
should get a marriage license form the LCR in the
municipality or city where either of the party resides.
Information needed to be specified to the LCR:
a. Full name of the contracting parties
b. Place of birth
c. Age and date of birth
d. Civil status
e. If previously married, how, when and where the
previous marriage was dissolved or annulled.
f. Present citizenship and citizenship
g. Degree of relationship of the contracting parties.
h. Full name, residence and citizenship of the father.
i. Full name, residence and citizenship of the
mother.
j. Full name, residence and citizenship of the guardian
or person having charge, in case one of the
parties has neither father nor mother, and is
under 21 years old.
Article 17-19: DUTIES OF THE LOCAL CIVIL
REGISTRAR
a. Upon receipt of the application for a marriage license,
the LCR must immediately post a notice to inform the
public of the impending marriage.
b. The notice shall be posted in the bulletin board
outside of the LCR for 10 consecutive days showing
the name and residence of the couple.
 This will request any person having knowledge of
any impediment to the marriage to inform the
local civil registrar about it.
c. If the LCR will be informed of any impediment of a
party applying, he shall note down the particulars
 thereof, but should not turn down the issuance of the
marriage license.
 Even if the LCR is made aware of the
impediments of the marriage, h is still duty bound
to issue the license except if he is restrained by
the court at his own instance or of any interested
party.
 Only the court can intervene in issuing the
marriage license through a court order directing
the LCR from non-issuance.
 If there is really a legal impediment in the
marriage, the LCR issuing officer can petition the
court to restraint him from the issuing the
marriage license or have the other party petition
for it.
d. The LCR will collect payment of fees for the issuance
of the marriage license in the amount of ₱300.
However, it is free of charged for indigent people.
e. It shall be the duty to prepare the documents such as
the marriage certificate and affidavit for the
solemnization of marriage in another place without
charge to all interested parties.
f. The LCR is the also the one to administer oaths to all
parties interested and to prepare the documents
required.
g. The LCR concerned, shall be the one to enter to all
applications for marriage licenses filed with him in a
registry book strictly in order which shall be recorded
in the name of the applicants, the date of the marriage
license was issued and such other data as may be
necessary.
Article 20: Life of the Marriage License
The marriage license once issued is valid anywhere in the
Philippine for a period of 120 days, if it is not used within
that period is it automatically expired. Marriages
solemnized using an expired marriage licensed is
considered null & void.
Article 22-25: Marriage Certificate
Marriage Certificate
 The best evidence to establish or prove marriage.
 It is a certification issued by the solemnizing officer
that he performed or solemnized the marriage
between the parties. Absence of which will not
invalidate the marriage since it is not an essential or
a formal requisite.
What should be declared in the Marriage Contract?
1. The full name, sex and age of contracting parties.
2. Their citizenship, religion and habitual residence.
3. The date and precise time of the celebration of
the marriage so as to determine at what point will
govern the property relation of the parties.
4. Must indicate that the proper marriage license
has been issued according to law
Except in cases of:
a. Articulo Mortis
b. Marriage in a far and remote place
c. Marriages among Muslims or members of
ethnic cultural communities
d. Ratification of marital cohabitation
5. That both or either parties have secured the
parental consent in appropriate cases.
6. Either or both parties have complied with the legal
requirement regarding parental advice in
appropriate cases.
7. That the parties have entered into a marriage
settlement, it any, attaching the copy thereof.
Duty of the Solemnizing Officer
a. It his duty to furnish either of the contracting
parties the original marriage certificate and to
send the duplicate and triplicate copies of it not
later than 15 days to the Local Civil Registrar of
the place where the marriage was solemnized,
the LCR in turn will issue a receipt to the
solemnizing officer.
- 1 copy to the couple
- 2 copies to the LCR
- 1 copy to keep for the solemnizing officer
b. It shall also be his duty to keep the 4th copy of the
marriage contract, the original marriage license
and in some cases affidavit of the contracting
parties regarding the solemnization of the
marriage in a place other than his jurisdiction.
Is a photocopy of the Marriage Contract valid?
 No, unless it emanated from the office of the
Local Civil Registrar.
The rule is that if two persons dwelling together
presenting themselves as married shall be presumed to
be indeed married, in the absence of any counter-
presumption or evidence showing the contrary.
- Semper Praesumitur Pro Patrimonio: Always
presume marriage
 The law favors morality over and immorality,
marriage and not concubinage, legitimacy and
not bastardy.
A marriage may be proved by evidence of any kind such
as “parol” evidence or testimony by one of the parties or
the witnesses to the marriage or by the person who
solemnized the same.
Competent evidence proving the fact of marriage
1. Public and open cohabitation as husband & wife
after the alleged marriage.
2. Birth & baptismal certificate of children born by
the alleged spouses.
3. Statement of such marriages in subsequent
documents.
It is the burden of proof upon the person who attacked
the validity of marriage to present a strong and
satisfactory evidence to rebut the presumption of its
validity. The evidence to prove the invalidity of the
marriage may even be presented for the first time on
appeal.
Article 26: “Lex Loci Celebraciones” Rule in
Marriage
1st paragraph: Lex Loci Celebraciones – CONFLICT
OF LAWS RULE
 This is based on the concept of international
comity.
 This is rule in marriage wherein it means that if
the marriage is celebrated abroad and is
considered valid there, it shall also be considered
valid in the Philippines. However, if the marriage
solemnized abroad is in violation of our country’s
laws and policies, our court is not bound to give
effect to its validity.
 The reason for this is that a State is considered
the conservator of its own moral and good order
of society, thus, it has the right to declare what
marriages it will or will not recognize within its
borders.
Exception to the Lex Loci Celebraciones Rule:
 Except those pointed out under Article 35 (1), (4),
(5), (6), 36, 37 and 38.
1. If the party who is a Filipino is below 18 years old.
2. If the marriage is bigamous or polygamous.
3. If contracted through mistake of identity of the other
party.
4. If the party whose previous marriage has been
annulled or declared void, contracts a second
marriage but failed to record the judicial decree with
the LCR, to partition the conjugal properties and
deliver the presumptive Legitime of their children.
5. Where one of the party is psychologically
incapacitated.
6. Marriages considered incestuous.
7. Marriages that are against public policy.
The prevailing theory is that all of these exceptions are
only applicable to Filipinos. This is mainly because of the
nationality theory. The above exceptions pertain to status,
condition and legal capacity which under Article 15 is
governed by the national law.
1st situation: Marriage between foreigners in the
Philippines
- Pursuant to lex loci, the validity of the marriage
should be governed by Philippine laws because the
marriage is solemnized here.
- However, the legal capacity should be determined
by their national law. (Consistent with Article 21)
- Do not be surprised that a 15-year-old German
may be able to contract marriage here in the
Philippines
nd
2 situation: Mixed marriage in the Philippines
- Rule: Lex Loci
- Legal capacity of the foreigner is determined by the
national law
rd
3 situation: Foreigners with marriage solemnized abroad
- Under Article 26, if it is valid where it was
solemnized, it is valid in the Philippines.
- If marriage by proxy is allowed, that is valid then.
- On Same-Sex marriage, there is always a good
argument that pursuant to Article 26, it is valid. It
may not be valid, however, in Article 17 (par 3) of
the Family Code.
4th situation: Mixed marriage of a Filipino and foreigner
abroad
- Rule: lex loci. BUT the Filipino is governed by the
exceptions in Article 26.
- A hybrid marriage: valid insofar as the foreigner
spouse and void insofar as the Filipino spouse.
- But this is a legal impossibility because marriage is
one indivisible concept.
- How are we to treat this marriage? Prevailing
opinion: our policy is in favor of marriage. The
prevailing view is that our courts should consider
the marriage. Otherwise, children will be
considered illegitimate and will be prejudiced.
5th situation: marriages by Filipinos abroad
- Rule: Lex loci
- But both of them are now governed by the
exceptions
Common law marriages considered abroad cannot be
recognized here in the Philippines since our laws require
marriages solemnized abroad. The word “solemnize”
presupposes the performance of a marriage ceremony
which is absent in a common law marriage.
2nd paragraph: Effects of divorce to the Filipino
spouse
Cases: - Van Dorn vs. Romillo
- Pilapil vs. Judge Somera
The validity of the divorce decree must be
recognized to benefit both the spouses.
Requisites:
a. Must be a mixed marriage
b. Foreigner spouse is the one who secured the
divorce abroad
c. After the divorce, the foreigner spouse must
again be capacitated to remarry according to his
national law.
When in a case of marriage between a Filipino citizen and
a foreigner and it is the foreigner who filed for a divorce
and after it was granted he must be capacitated again to
remarry according to his national law. This must be
proven as a fact by the Filipino spouse before he/she is
entitled to remarry again in our court.
 In this case the divorced Filipino citizen is not
considered an “Ipso Facto” capacitated to marry
again. The Filipino citizen must prove as a fact
the divorce as enforced by the foreign judgment
by way of declaratory relief since our courts don’t
take judicial notice on the laws of other countries.
If the Filipino spouse has acquired the citizenship of her
husband then such divorce is considered as valid here in
our country because of our adherence to the nationality
principle in so far as the status of the person is concerned.
 The reckoning point is at the time when the
divorce decree was availed of.
If both of the parties are Filipino and one of them was
naturalized in a foreign country and later on obtained a
divorce decree, that divorce decree will be valid.
Republic vs. Obrecido: The reckoning point is NOT the
citizenship at the time of the marriage but at the time the
divorce decree was obtained.
- In a case wherein the Filipino citizen is the one
who filed for a divorce in another country to his
foreigner husband/wife, the foreigner spouse
cannot anymore claim that he still an interest to
the properties of the Filipino citizen here in the
Philippines or subsequently file an adultery case
against the Filipino since the foreigner spouse
has lost his legal standing against the Filipino for
the foreigner is already considered divorced by
his national law.
This capacity to remarry does not come
automatically.
- This is a judicial act for him or her to be
capacitated to marry.
- An order will be issued to allow him to marry. He
will file a petition for declaratory relief.
What should the Filipino spouse prove?
a. Prove the existence and authenticity of the divorce
decree obtained abroad (Rule 132, Sec. 24 and 25 of
the Rules of Court)
o Presenting the official publication of the
divorce decree
o When there is no publication, present the
copy of the divorce decree
o If the document is kept outside of the
Philippines, their authenticity can be
established by presenting the authenticated
copy of the foreign document (Red Ribbon or
consularized document)
o Must be attested by the legal custodian
o Shall also contain a certification of the
Philippine consular official stationed in the
country where the foreign decree was
obtained.
b. Equally important for the petitioner to demonstrate its
conformity to the laws allowing the divorce decree
- Prove that the divorce decree is valid
- Petitioner will have to prove the foreign law
c. It is also important to prove that the divorce decree
capacitates the alien spouse to remarry
- Two kinds of divorce: Absolute (that
capacitates the party to marry and Relative
(does not, similar to legal separation)
Obrecido makes reference to a foreign law that needs to
be proved, it is not specific to which foreign law. Is it the
foreign law to which the divorce decree was obtained? Or
is it the foreign law of the alien spouse?
- Obrecido says that it should be the foreign law of
where the divorce decree was obtained.
In Bayot vs. Bayot, the divorce decree was obtained by
the wife, in Dominican Republic.
- At the time the divorce decree was obtained, she
was American. Under her laws, divorce is
recognized. The divorce decree obtained by the
wife in the Dominican Republic is valid.
- This ruling meant that the foreign law that must
be proved is NOT the foreign law where the
divorce decree was obtained, but the national
law of the alien spouse.
The alien spouse cannot avail of the remedy in par.2,
Article 26 if he/she wants to get married here in the
Philippines. Under what provision of law can he/she
invoke?
Gilbert Corpuz vs. Sto. Tomas
Facts:
- Marriage between two Filipinos but subsequently the
husband became a Canadian citizen
- He returned to the Philippines. But was surprised to The difference lies in the matter that needs to be proved:
see his wife having illicit relationship - In foreign judgement: simply the existence and
- He asked for a divorce in Canada and was granted. authenticity of the foreign judgement. The foreign law
- He found another Filipina and wanted to be married. is not required to be determined.
- He went to the LCR of Pasig to include the divorce o In Fujiki, what was the object was the judgement
decree to be annotated in the marriage certificate. But that declared the marriage void by reason of
he was informed that he was not allowed because for bigamy. This is not against public policy.
any foreign judgement, to be valid in the Philippines, - In a divorce decree: The existence and authenticity of
it has to be approved by the court in the Philippines. the divorce decree AND the national law of the alien
- He filed for a petition for declaratory relief. spouse
- Issue: Can he have the same remedy?
Ruling:
- Since the 2nd paragraph is intended for the benefit of VOID AND VOIDABLE MARRIAGES
the Filipino spouse, he cannot invoke the same Two Kinds of Defective Marriages
benefit.
- It does not mean that he has no remedy. It can be
VOID VOIDABLE
recognized under Rule 39, Sec. 48 of the Rules of
Defective from the very Not defective from the
Court: the enforcement of foreign judgement.
beginning beginning
- Two options available:
Cannot be ratified Can be ratified
a) Alien spouse may file a petition for recognition of
Can be attacked Can only be attacked
the divorce decree
collaterally directly
- Problem: if it is only for recognition, it is not
Direct action may be
enough to effect the corresponding change of
filed by an interested 3rd
the records of marriage between the Direct action can only be
party based on the
spouses. It is simply the recognition and does filed by the spouses
ground
involve the change of interests in the
marriage
- Even if the court recognizes the divorce While voidable marriage
The nullity of marriage can
can only be questioned
decree, the record of the spouses will still be be raised even after the
the same during the party’s
death of the parties
b) To file a petition for correction or change of lifetime.
entries in the Local Civil Registrar particularly The action to nullify the The annulment of a
change of marriage entries under Rule 108 of the marriage has no voidable marriage
Rules of Court prescriptive period prescribes
- As he files the petition for recognition, the General rule: void Voidable marriages can
alien spouse still needs to file this petition for marriages can only be be questioned by other
correction assailed by the parties of persons not a party to
- It is the order for recognition that will be used the marriage. the marriage.
to effect the change of entries Cannot be ratified Can be ratified
- The SC observed that this very burdensome to the 35, 36, 37, 38, 40, 53 45
spouses. Consistent with the policy of speedy trial,
the alien spouse could file the petition for correction
of entries and ask for the recognition of the divorce
decree in the same petition Article 35: Void Ab Initio due to absence of essential
- It is still necessary to prove the authenticity and or formal requisites
existence of the divorce decree and the national law 1. Those contracted by any party below eighteen years
of the alien spouse who obtained the divorce decree of age even with the consent of parents or guardians
2. Those solemnized by any person not legally
If the foreign judgement sought to be recognized is not a authorized to perform marriages unless such
divorce decree, it should be distinguished. marriages were contracted with either or both parties
believing in good faith that the solemnizing officer had
In Fujiki vs. Marinay, the proper remedy is to file a the legal authority to do
petition for correction. Basically the same procedure. - One of the situations where good faith is taken
into considerations.
3. Those solemnized without a license, except those
covered by the preceding Chapter
4. Those bigamous or polygamous marriages not falling
under article 41 which states presumptive death
- Another instance where good faith is recognized
5. Those contracted through mistake of one contracting
party as to the identity of the other
6. Those subsequent marriages that void under Article
53
Collateral Attack of a Void Marriage
 The nullity of the marriage is not the principal or
main issue of the case but is necessary to the
resolution of the main case.
Good faith of the parties in entering the marriage is
immaterial and it does not validate an otherwise void
marriage.
Divorce vs. Void Marriages
Divorce
- There is a valid marriage but the ground
occurred subsequent to the celebration of
the marriage.
Void in Ab Initio
- From the very beginning there was no
marriage.
- The ground for declaration of its nullity
already existing at the time the marriage
was celebrated but only manifested after its
solemnization.
Article 36: Void because of Psychological Incapacity
 This was introduced by E.O. No. 227 on July 17,
1987 as an amendment to the Family Code.
 No clear definition of the psychological incapacity
was given since the intention of the legislation was
to leave the determination of it to the courts on a
case-to-case basis, as to whether a particular
situation falls under the psychological incapacity.
The Reason:
 The presence of psychological incapacity
depends upon the facts of the case and it can be
clearly deduced that the absence of definition
was deliberately done because the situations
contemplated by the law vary from one case to
another.
Psychological Incapacity
 The basic determination of the existence of
psychological incapacity is the failure to comply
with the marital obligation.
 Utter insensitivity and inability to give meaning
and significance of marriage
 This is not insanity or mental illness
 It refers to the inability of a party to the marriage
to comply with the essential marital obligations
because of psychological reason. It is not a
physical defect because a person who is
psychological incapacitated is one who cannot
perform the essential marital obligations as
he/she refuses to do even if physically
capacitated to do so.
 It can also refer to “lack of appreciation” of one’s
marital obligation and has nothing to do with
consent.
The general guide as to the determination as to whether
there is psychological incapacity or not is the fact the
“Psychological Incapacity” refers to the failure to
comply with the essential marital obligation.
- Quarrels and financial difficulties not constitute
psychological incapacity. Sexual infidelity on the
other hand, is not considered a psychological
incapacity if it is not proven that it already existed
before the marriage
Examples of Personality Disorder
a. Dependent Personality
- Husband in Te vs. Te
b. Anti-Social Disorders
- Wife in Te vs. Te
c. Narcissistic Personality
- Kalaw vs. Fernandez
d. Senseless and protracted refusal to have sex with
the other spouse
- Chi Ming Tsoi vs. ___
e. Pathological Liar
- Antonio vs. Reyes
f. Immaturity
- Halili vs. Halili
g. Indifferent to the Needs of the wife
- Reyes vs. Reyes.
ESSENTIAL CHARACTERISTICS OF
PSYCHOLOGICAL INCAPACITY:
1. Juridical antecedent
- It must already be existing at the of the
celebration of the marriage
2. Gravity
- It must be a very serious defect that it
incapacitates the person concerned from
performing marital obligations
3. Incurability
- It is not curable
 - Also refers to party not being able to afford
the cure
It is clear from the foregoing elements that the intention of
the law has been to confine the meaning of “psychological
incapacity” to the most serious cases of personality
disorders clearly demonstrative of an utter insensitivity or
inability to give meaning and significance to the marriage.
- The decisions of the matrimonial tribunal of
the Catholic Church involving psychological
incapacity as a group to annul the marriage
is greatly helpful and persuasive to our Civil
Courts. Although our courts are not bound by
the decision of the matrimonial tribunal, the
said decision can be used by our Civil Court
as a guide in the determination of the
existence psychological incapacity.
Guilty Party can petition for nullity of marriage
- The action to declare the marriage void on the
ground of psychological incapacity can be filed
even by the incapacitated party. The law does not
prohibit the guilty party from bringing the action in
court as a void marriage is not ratifiable and the
“Pari Delicto Rule” will not apply here.
The Party who is declared psychologically
incapacitated may still contract another marriage
- The psychological incapacity is relative to the
spouse concerned. One may be psychologically
incapacitated with one while not with another. Thus,
he/she can be remarry.
Expert Testimonies
- During the trial for declaration of nullity of marriage on
the ground of psychological incapacity, expert
testimonies of a psychologist or psychiatrist is not
a requirement for a declaration of psychological
incapacity and that it is not a condition “sine qua non”
for such declaration. The court may base its decision on
the totality of the evidence other than the findings of
such expert witness. However, expert testimonies may
help in the resolution of the case.
Testimony of the Psychologist did NOT constitute as
sufficient evidence for Psychological Incapacity:
 When the diagnosis was only based on interviews
with petitioning spouse and that the psychologist
did not actually hear, see and evaluate the
respondent who was alleged to be psychologically
incapacitated. The testimony of the psychologist
constituted as hearsay. Furthermore, the
psychologist failed to explain how such personality
disorder made the respondent psychologically
incapacitated and to prove the same is so grave
and permanent.
Testimony of the Psychologist CONSTITUTE as
sufficient evidence for Psychological Incapacity:
 The Supreme Court ruled that lack of personal
examination and interview of the respondent or
any person diagnosed with personality disorder,
does not per se invalidate the testimony of the
doctors. Neither do their findings automatically
constitute hearsay that would result in their
exclusion in evidence. If the psychiatrist or
psychologist’s assessment were not based solely
on the narration or personal interview of the
petitioner but also on other informants such as
respondent’s own son, siblings and in-laws and
sister-in-law who all testified on their own
observations of respondent’s behavior and
interactions with them.
(Reyes vs. Reyes G.R. No. 185286)
- The testimony of the psychiatrist is found to
be general, not in depth, does not establish
link between actions of party and his
supposed psychological incapacity
Moral Damages
- cannot be recovered from the guilty party in an action
for declaration of nullity of marriage on the ground of
psychological incapacity.
- This is because a psychological incapacitated person
is not aware of his incapacity and therefore cannot be
held answerable for moral damage.
MOLINA DOCTRINE AS AMENDED BY A.M. NO. 20-
11-10-SC
a. The burden of proof to show the nullity of marriage
belongs to the plaintiff.
b. The parties may medically or clinically identify the root
cause of the psychological incapacity alleged in the
complaint by an expert; however this is not anymore
required but regarded as an option which may be
helpful in deciding the case.
c. The incapacity must be proven to exist at the time of
the celebration of the marriage, although it only
becomes apparent after the celebration of the
marriage.
d. The incapacity must be shown to be medically or
clinically permanent or incurable, however this is not
regarded as an absolute fact against everyone in the
same gender.
e. The illness must also be grave enough to prevent the - In this case, respondent’s sexual infidelity can hardly
party from assuming the essential marital obligations. qualify as being mentally or psychically ill to such an
f. The essential marital obligations must be those extent that she could not have known the obligations
mentioned in article 68-71 of the Family Code, as well she was assuming, or knowing them, could not have
as Article 220, 221 and 225. given a valid assumption thereof. It appears that
g. The interpretations given by the National Appellate respondent’s promiscuity did not exist prior to or at
Matrimonial Tribunal of the Catholic Church in the the inception of the marriage. What is, in fact,
Philippines, while not controlling or decisive, should disclosed by the records is a blissful marital union at
be given great respect by our courts. its celebration, later affirmed in church rites, and
which produced four children.
CANON 1095: CASES F PSYCHOLOGICAL - Respondent’s sexual infidelity or perversion and
DISORDERS abandonment do not by themselves constitute
a. Hypersexuality-nymphomania psychological incapacity within the contemplation of
b. Hypersexuality-styriasis the Family Code. Neither could her emotional
c. Homosexuality immaturity and irresponsibility be equated with
d. Lesbianism psychological incapacity. It must be shown that these
e. Schizophrenia acts are manifestations of a disordered personality
f. Affective immaturity which make respondent completely unable to
g. Anti-social personality disorder discharge the essential obligations of the marital
h. Dependent personality disorder state, not merely due to her youth, immaturity16 or
i. Vaginismus or psychic impotence sexual promiscuity.
j. Sexual disorder
k. Psychoneurosis
l. Lack of interpersonal integration
m. Immature personality Article 37: Void because incestuous
n. Obsessive-compulsive Personality Marriages between the following are incestuous and void
o. Frigidity from the beginning whether the relationship between the
p. Alcoholism and gambling parties is legitimate or illegitimate:
q. Liar, cheat and swindler 1. Between ascendants and descendants of any
r. Sexual neurosis degree.
s. Hysterical personality - Ascendants and descendants no matter how
t. Psychic immaturity far and how long
2. Collateral blood relatives: brothers and sisters
- Between brothers and sisters, whether of full
or half-blood.
REQUISITES FOR PSYCHOLOGICAL INCAPACITY
AS A GROUND FOR ANNULLMENT The reason why incestuous marriages are prohibited
(a) A true inability to commit oneself to the essentials of by law:
marriage. 1. It would tend to create confusion of rights and duties
(b) This inability to commit oneself must refer to the incident to family relations.
essential obligations of marriage: 2. It is abhorrent to the nature, not only of civilized men,
 Conjugal act but of barbarous and semi-civilized people.
 Community of life and love 3. Such intermarriages often result in deficient and
 Rendering of mutual help degenerate offspring.
 The procreation and education of offspring
(c) The inability must be tantamount to a psychological Article 38: Void because against public policy
abnormality.  The enumeration of void marriages in this article
are exclusive and good faith is immaterial.
It is not enough to prove that the spouse failed to meet his (a) Between collateral blood relatives, whether legitimate
responsibility and duty as a married person; it is essential or illegitimate, up to 4th degree
that he must be shown to be incapable of doing so due to (b) Between step-parents and step-children
some psychological illness. (c) Between parents-in-law and children-in-law
(d) Between the adopting parent & the adopted child
Dedel vs. Court of Appeals
 - Prohibition is only the adoptive parent and the
adopted child
- Everyone else is a 3rd party relationship. Ex:
Adopting parent and the child of the adoptive
child
- The effect of adoption is only personal to the
parent and adopted child
(e) Between the surviving spouse of the adopted child
and the adopter
- If the ground of the dissolution of the marriage is
not death, the former spouse can validly marry
the adopted child
(f) Between the adopted children of the same adopter
(g) Between parties where on, with the intention to marry
the other, killed the other person’s spouse or his or
her own spouse.
 No prior criminal conviction by the court is
required by the law. Mere preponderance of
evidence is required to prove the killing.
These marriages are considered against public policy
because they do not serve the fundamental objective of
the state which is to nurture a stable family unit that can
effectively be the foundation of society.
Valid Marriages:
1. Between adopted and the parents of his adopter.
2. Between adopted and illegitimate children his
adopter.
3. Between adopted and the relatives of his adopter.
4. Between the adopted and the former spouse of his
adopter or between the adopter and the former
spouse of his adopted.
5. Between step-brother and step-sister.
Article 39: Prescriptive Period
Declaration for Absolute Nullity of a Marriage
- Has no prescription period as amended by E.O
No. 227 dated July 17, 1987 and further amended
by R.A. No. 8533 dated on Feb. 23, 1998.
- There is no prescriptive period for an action to
declare the marriage void since a null and void
marriage produces no legal effect, it being non-
existent.
Article 40: Void Subsequent Marriages
When a marriage is void, a party to that marriage can
contract a subsequent marriage only after he/she has the
previous marriage judicially declared null and void.
A subsequent marriage contracted without having the first
marriage declared judicially null and void is considered
void an initio.
- The reason why it is important that the nullity of the
marriage should be ascertained and declared by the
court of competent jurisdiction is for the sake of good
order of society and for the peace of mind of all
persons concerned.
- THIS DOES NOT CONTEMPLATE OF A SITUATION
WHERE THE MARRIGE IS VOID. However, the
Supreme Court has always ruled that the subsequent
marriage is bigamous even if the 1st marriage is void.
When the first marriage is undoubtedly void and a party
to that marriage contracted a 2nd marriage w/out
obtaining first a judicial declaration of nullity of marriage,
would the said party be guilty of bigamy? YES
Non-compliance of Article 40:
1st effect: The party incurs criminal liability
- The SC consistently ruled that failure to
comply with Article 40 renders the
subsequent marriage as bigamous
One should not put the law in his hands and decide for
himself the nullity of his marriage. He should let the court
declare the nullity of such before he can contract another
marriage.
- The nullity of a previous marriage can only or solely
be established by a final judgment of the court
declaring such marriage void.
- Void and voidable marriages: WILL ONLY BE
DECLARED SUCH WHEN THE COURT SAYS SO
- The party cannot enter into another valid marriage
- The reason why Article 40 was placed to begin with
was to remove doubts as to the status of the second
marriage
What happens if the 2nd marriage is the one void? Not
contemplated in Article 40.
Recent jurisprudence show that it doesn’t matter if the 2 nd
marriage is void because Art. 349 already punishes the
act of contracting another marriage during a subsisting
marriage.
Case: Tenebro
 The fact that the second marriage is void:
- It is not an argument to the absence of bigamy
- Even if it retroacts to the time of solemnization,
there are effects:
a. The children are considered legitimate
b. Criminal liability for bigamy
Procedure: A.M. 02-11-10-SC
Before the criminal case for bigamy was initiated, the
first was declared void already. What happens?
- The critical point to consider is the time of
solemnization of the 1st marriage and not the bigamy
complaint.
Case: People vs. Odtohan
Does this apply to those marriages that solemnized
before August 3, 1980?
- The Supreme Court has said in 1995 (Atienza vs.
Brillantes) that Article 40 will have retroactive
application.
Case: Jarillo vs. People
For purposes of determining bigamy, the requirement of
liquidation and partition and etc. is not required.
2nd effect: Donations
- Donations will be valid
- But if the donee acted in bad faith, the donation will
be revoked by operation of law and forfeited pursuant
to Art. 43 (2)
3rd effect: Insurance
- Any insurance policy shall remain valid
- But if the beneficiary is the one acting in bad faith, the
designation may be revoked eve if the designation is
irrevocable
4th effect: INHERITANCE
- The guilty spouse is disqualified from inheriting
whether intestate or testamentary succession.
5th effect: Children
- The children are considered LEGITIMATE
Article 41-44: Declaration of Presumptive Death
Spouse is Presumed Dead
 This is the only instance where there is a
valid bigamous marriage
If a spouse is absent for 4 consecutive years and the
present spouse has a reasonable and well-founded belief
that the absent spouse is already dead, he/she may
contract a second marriage provided that he/she first
obtain a judicial declaration of presumptive death of the
absent spouse.
 “Well-founded Belief”
- Supreme Court states that the meaning of the
term well-founded belief is the exercise of that
degree of due care diligence required in
searching for a missing spouse.
REQUIREMENTS FOR DECLARATION OF
PRESUMPTIVE DEATH
1. The absentee spouse must have been absent for 4 or
2 years under the circumstance prescribed by law.
2. The present spouse must not know the whereabouts
of the absent spouse.
3. There must be a well-founded belief that the absent
spouse is already dead.
4. There must be an institution of a summary action for
the declaration of presumptive death of the absent
spouse.
5. There must be final judgment declaring the absent
spouse presumptively dead.
The 4-year period can be shorted to 2 years if the
presumptive death is under the circumstances of great
danger (Article 391 of the Civil Code)
 If the absent spouse was on a vessel and the
same was lost during sea voyage and he has
not been heard of for two years since the loss.
 The absent spouse was on an airplane which
was missing and such spouse was not heard of
for two years since the loss of the airplane.
 The absent spouse who was in the armed forces
has taken part in the war and has been missing
for two years.
 When the absent spouse has been in danger of
death under other circumstances.
The judicial declaration of presumptive death under
Article 41 of the Family Code is mandatorily required by
law only for the purpose of capacitating the present
spouse to remarry.
The extraordinary absence is only for the purpose of
remarriage of the remaining spouse however, for the
division and liquidation of the estate and money of the
previous marriage, this will only happen after 4 years of
consecutive absence of the absentee spouse.
General Rule: Judicial declaration of presumptive death
is required as such is a presumption that arises from law.
Exception: No judicial declaration of presumption of
death is needed in cases of Article 390 and 391 of the
Civil Code before the effectivity of the Family Code, since
these are presumption that arises from law
 Article 390:
- The person has been absent for 7 years, it
being unknown whether or not the absentee
still lives.
- The absentee shall be presumed dead for all
purposes except for succession, in which
cases, the absentee shall be presumed
dead after the lapse of 10 years.
  Article 391:
- An absentee who is 75 years old and above
is presumed dead if he has been absent for
5 years, still unknown whether or not the
absentee is still alive.
The decision of the court declaring the spouse
presumptively dead under article 41 is unappealable and
is immediately executor since it falls under the Summary
Judicial Proceedings in the Family Law.
ABSENT SPOUSE TURNS OUT TO BE ALIVE
If the absent spouse turns out to be alive, then the
subsequent marriage contracted by the present spouse
will be automatically terminated but only upon the
execution of the affidavit of reappearance by the
reappearing spouse or any of the interested party.
Affidavit of Reappearance:
a. This shall be recorded in the office of the Local Civil
Registrar of the place where the present and the
subsequent spouse resides.
b. The recording of this document is the operative act that
terminates the subsequent marriage without prejudice to
the outcome of any judicial proceeding questioning the
reappearance.
Who can execute the Affidavit?
(a) Reappearing spouse
(b) Or any interested party such as the parents of
spouses, their children, the remarried spouse or
even the subsequent spouse of the remarried
spouse.
Bigamous but Valid Marriage:
- The fact that the absent spouse is still alive renders the
subsequent marriage as a bigamous but valid marriage.
- This means that the second marriage is bigamous yet it
is still valid by virtue of the judicial declaration of
presumptive death.
EFFECTS OF TERMINATION OF THE SUBSEQUENT
MARRIAGE
Article 43:
1. The children of the subsequent marriage conceived
are considered legitimate. However, children born
after the second marriage is dissolved are considered
illegitimate.
2. The property relations of the parties; be it absolute or
conjugal partnership, shall be dissolved and liquidated.
 The party who contracted the marriage in bad
faith shall forfeit his/her share in the net profit
community property in favor of their common
children, or if there none, the children of the guilty
spouse by a previous marriage or in default
thereof, by the innocent spouse.
3. A donation by reason of marriage made by the
innocent spouse in favor of the guilty spouse is
revoked by operation of law.
4. The designation of the guilty spouse as the beneficiary
of the insurance policy of the innocent spouse may be
revoked by the latter even if there is a designation that
it is irrevocable.
5. The party who contracted the subsequent marriage in
bad faith shall be disqualified to inherit from the
innocent spouse.
Article 44: If both parties are guilty of bad faith, the
marriage shall be void ab initio and all donations are
revoked by law. Since the marriage is void, the separation
of property will be governed by co-ownership under Article
147 or 148 of the Family Code.
- The subsequent marriage entered into after the
judicial declaration of presumptive death can only
be terminated when the first spouse files an
affidavit of reappearance.
Article 45-46: Grounds for Annulment of Marriage
The grounds for the annulment of a voidable marriage
enumerated in article 45 of the Family Code must already
be existing at the time of celebration of the marriage. If the
grounds occurred only after the celebration of the
marriage it cannot be used as a ground to annul the
marriage.
Can be Ratified by Cohabitation
(Cohabitation means sexual intercourse)
1. Absence of parental consent for a party who is over
18 but below 21 years of age. Unless, after reaching
the age of 21, such party freely cohabitated with the
other and both lived together as husband and wife.
2. Either party was of unsound mind, unless such party
after coming to reason freely cohabited with other as
husband and wife.
3. 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
other as husband and wife.
- Vitiated consent must be proven by
preponderance of evidence which may
include the actuation of the parties
previous to the marriage.
What constitutes fraud? Article 46:
 A. Non-disclosure of a previous conviction by final
judgment of the other party of a crime involving
moral turpitude.
- It is not necessary for the spouse to verify first
before the marriage whether or not the other
spouse has a previous conviction since the
burden of proof is on the convicted party to
divulge is criminal records
B. Concealment by the wife of the fact that the time
of the marriage, she was pregnant by a man
other than his husband.
- This could only be appreciated as a fraud
when the concealment of the pregnancy is
still very possible. Thus, the husband could
no longer claim concealment of pregnancy
when it is very obvious that the woman is
already pregnant.
- The reason why this is a ground for
annulment is because, any child born after
the celebration of marriage is considered a
legitimate child of the husband, and it would
be unfair for the man to take care of the child
which is not his.
C. Concealment of sexually transmissible disease,
regardless of nature, existing at the time of the
marriage.
D. Concealment of drug addiction, habitual
alcoholism or homosexuality or lesbianism
existing at the time of marriage.
- Only when it already existed at the time of the
marriage and was concealed by said party
from the other
4. The consent of either party was obtained through
force, intimidation or undue influence, unless when
such has disappeared or ceased to exist, the party
thereafter freely cohabited with the other as husband
and wife.
- This is appreciated only when the one of the
contracting parties is compelled by a
reasonable and well-founded fear of an
imminent and grave evil upon his person and
property or upon the person or property of
his/her spouse, descendants or ascendants,
to give his consent.
- To determine the degree of the intimidation,
the age, sex and condition of the person
shall be borne in mind.
CANNOT be ratified by Cohabitation
5. Either party was physically incapable of
consummating the marriage with the other, or such
incapacity continues and appears to be incurable.
- This refers to impotency and not sterility.
- Potency is always presumed, thus,
whoever claims that his/her spouse is
impotent has the burden of proving it.
However, the presumption of potency is
rebutted if the wife remains a virgin after
three years from the time of their
cohabitation, which is called the Doctrine
of Triennial Cohabitation.
6. Either party was inflicted with a sexually transmissible
disease found to be serious and appears to be
incurable.
- This is a ground to annul of marriage if it
is both serious and incurable. It can be a
ground if it already existed at the time of
the marriage and it was concealed by the
guilty spouse.
The grounds for annulment is exclusive, thus, only those
specified in Articles 45-46 of the Family Code shall be
considered.
Article 47: Prescriptive Period for Annulment of
Marriage
If the ground is absence of parental consent
- The prescriptive period is 5 years from the time
the party who did not secure the parental consent
reaches 21 years old.
- The parents of the party who did not acquire a
parental consent can also annul the marriage at
any time before their son/daughter reaches 21
years old. In this order: father, mother, legal
guardian
If the ground is insanity
- No prescriptive period but will be ratified by
cohabitation if after the insane becomes sane
still continued to cohabit with the other spouse.
- The sane spouse or the relatives or guardian of
the insane spouse may annul the marriage at
any time before the death of either spouse.
- The insane spouse may annul the marriage only
during his lucid interval.
If the ground is fraud
- The action prescribed after 5 years from the
discovery of the fraud.
If the ground is vitiated consent through force,
intimidation or undue influence
- The prescriptive period is 5 years from the time the
force, intimation or undue influence ceased to exist.
- The party may only be instituted by the party whose
consent was vitiated.
If the ground is physical incapability to consummate
the marriage or sexually transmissible disease
- This is physical incapability to do the sexual act.
 - The action for annulment can be filed by the
injured party within 5 years from the time of the
celebration of the marriage.
Article 48-49: Procedures in Annulment & Nullity of
Marriage
STEP 1:
Filing in the Family Court the complaint for Annulment or
Declaration of Marriage
The defendant shall be served with summons and a
copy of the complaint whereby he is given 15 days
to file his answer from receipt thereof.
If no answer is filed by the defendant within 15 days:
 The court cannot declare the defendant in default
 The court will order the prosecuting attorney or fiscal
assigned to it to enter his appearance for the State
- To take steps to prevent collusion between the
parties
- To insure that evidence is not fabricated or
suppressed
- To defend a valid marriage
- To expose an invalid one
 After conducting an investigation, the fiscal is
mandated by law to make a report to the court on
the result of his investigation. If there is no collusion
the fiscal will submit a report of no collusion to the
court.
The court cannot render judgment on the basis of
stipulation of facts or confession of judgment. An
Annulment case cannot be terminated compromise
agreement and no valid compromise is legally possible on
the issue of the validity of marriage
- A full blown hearing is required in case where the
plaintiff is required to prove his case in court. The
policy of the State is to be cautious and strict in
granting annulment of marriage, thus, the law
strictly prohibits the annulment of marriage w/out
trial.
The State shall be represented by the OSG or by the
Fiscal in all cases of nullity and annulment of
marriage:
 Although Article 48 does not specifically state the
OSG, such office is nevertheless can intervene in
the proceeding considering that issue of validity of
the marriage is vested with public interest.
General Rule: The Fiscal must actively intervene in the
case and submit a report to the court that there was no
collusion between the parties.
Exception: If the annulment or declaration of nullity of
marriage was strongly opposed & heatedly contested by
the defendant by hiring a lawyer who filed several
pleadings and actively participated in the trial of the
case.
 The non-intervention of the fiscal to assure lack of
collusion between the parties is not fatal to the validity
of the proceedings in court especially when it was not
shown that evidence was suppressed or fabricated by
any of the parties. In this case, the strict application of
Article 48 and 60 of the Family Code is unwarranted.
Compromise Agreement of Property Separation:
 The partial voluntary separation of property agreed
upon by the parties through a compromise
agreement approved by the court prior to the
declaration of nullity of marriage is valid.
STEP 2:
During the Pendency of the Action of Annulment or
Declaration of Nullity of Marriage
The support of the spouses and the custody &
support of the common children:
General Rule: The support of the spouses and the
custody and support of the common children will be
primarily governed by whatever agreement the parties
have made.
In the absence of such agreement:
 The support of the spouse and common children
- Shall be taken from the conjugal or absolute
community until the marriage is dissolved.
 The custody of the common children
- This shall be resolved in accordance with Article
213 of the Family Code which states that “in case
of separation of the parents, parental
authority shall be exercised by the parent
designated by the court. The court shall take
into account all relevant considerations,
especially the choice of the child over 7 years
old, unless the parent chosen is unfit.
No child under 7 years old shall be separated
from the mother unless the court finds
compelling reasons to order otherwise. ”
- Should the court award the custody of the child to
one parent during the pendency of the case, the
other spouse should have visitation rights unless
the court, for some compelling reason, deprives
him or her of such rights. However, visitation can
be reinstated if it showed that the deprivation is
too harsh or is no longer present.
STEP 3:
 Upon receipt of verified petition for declaration of
absolute nullity of Marriage or Annulment of Marriage or
Legal Separation
The Court may issue Provisional Orders:
 This upon application under oath of any parties may
issue provisional orders and protection orders with
or w/out a bond, for such period and under such
terms and conditions as the court may deem
necessary.
Includes:
1) Spousal support
2) Child support
3) Child custody
4) Visitation rights
5) Hold departure order
6) Order of protection
Article 50-54: Decree of Annulment and Nullity of
Marriage
Effects of Annulment and Nullity of Marriage
Shall be according to Article 43 of the Family Code
1. Children under voidable marriage will still be considered
legitimate however for children born under a void
marriage, they will become illegitimate children
Except:
 Children conceived and born before the nullity of
marriage on the ground of psychological incapacity
under 36 became final are considered legitimate
 Children conceived and born of subsequent void
marriage under Article 53 are also considered
legitimate.
2. Properties may be separated to whatever agreement they
may have agreed to.
3. Donations to one another will remain valid but if the done
is the guilty spouse, then the donation will be revoked by
operation of law.
4. Insurance beneficiaries designated to the guilt spouse
may be revoked even if it is irrevocable.
5. The guilty spouse is barred from inheritance to the
innocent spouse either by testate or intestate succession.
Dissolution of the conjugal partnership
a. The properties will be liquidated and distributive
according to the comprise agreement of the spouses
or to their pre-nuptial agreement. However, absence
of which, the absolute community of property regime
will govern.
b. If the union is without marriage
- The property regime shall be governed by the rule
of co-ownership provided for in Articles147 & 148,
and not the conjugal partnership of gains or
absolute community property.
c. All creditors of both parties must be notified and the
conjugal dwelling shall be adjudicated in favor of the
spouse with whom majority of the common children
choose to remain.
Presumptive Legitime
- This is the part of the testator’s property which he
cannot dispose of because the law has reserved
it for certain heirs called compulsory heirs.
The presumptive Legitime of the children shall be
delivered to them in cash, property or sound security
and it must be provided in the decree
- This is only required only in the dissolution of
marriage in Article 40. It is not required in other
forms of void marriages because said marriages
are to be governed by co-ownership.
The partition and distribution of the properties of the
spouses and the delivery of the presumptive legitimes to
be children shall be recorded in the Office of the LCR and
in the Registry of Deeds in order to bind the 3rd person.
- Non-compliance of the said requirement will
render the subsequent marriage of the parties
null and void
LEGAL SEPARATION
Legal Separation a.k.a. Relative Divorce
- This does not dissolve the marriage as it is
nothing more than a separation in bed-and-board
(a mensa et thoro) of the spouses.
- In the eyes of the law, the husband and wife are
still married to each other but they are already
allowed to live separately.
Article 55: Grounds for Legal Separation
Grounds for Legal Separation:
 These are exclusive grounds and therefore no other
grounds for legal separation can be invoked except
those stated in Article 55
 These grounds need not to exist prior to the marriage
as they even usually occur after the marriage
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 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 6 years, even if pardoned.
5. Drug addiction or habitual alcoholism of the
respondent.
6. Lesbianism or homosexuality of the respondent.
7. Contracting of the respondent of a subsequent
bigamous marriage, whether in the Philippines or
abroad.
8. Sexual infidelity or perversion
- Sexual perversion is determined on a case-to-
case basis
9. Attempt by the respondent against the life of the
petitioner
- This must not be justified by self-defense or that
the spouse attacked was caught in flagrante
delicto having carnal knowledge with another
man or woman.
- Criminal conviction is not required as the attempt
on the life of another spouse may be proven by
preponderance of evidence.
10. Abandonment of petitioner by respondent without
justifiable cause for more than 1 year.
Criminal conviction of adultery or concubinage
- is not required in the action for legal separation.
The court may grant legal separation by mere
preponderance of evidence.
- Other acts of sexual infidelity short of adultery
and concubinage are enough as long as the said
acts constitute a clear betrayal of the trust of one
spouse. Thus, even a husband single act of
sexual intercourse with another woman is already
ground for legal separation.
Lesbianism, homosexuality, drug addiction and
habitual alcoholism
- Can only be a ground for legal separation if they
occur during the marriage.
- If said defects already existed before the
marriage and they were concealed from the other
spouse, they could be grounds for annulment of
marriage.
Article 56-57: Defense for Legal Separation
Grounds for Dismissal for Legal Separation:
1. Where the aggrieved party condoned the
offense or act complained of
2. Where the aggrieved party has consented to the
commission of the offense or act constituting the
grounds for legal separation
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 the decree of legal separation
6. Where the action is barred by prescription
- An action for legal separation shall be filed
within 5 years from the time of occurrence of
the cause.
The court may take judicial notice of prescription. If
prescription is apparent from the allegations in the
complaint for legal separation, the court can dismiss it
“motu proprio”. Thus, even if prescription is not
interposed as a defense but it becomes manifest after
trial, the court may stil dismiss the complaint.
Condonation
 An act of forgiving and is given after the fact, while
consent is given after the act that gives rise to the
ground for legal separation.
Consent
 You allowed such ground to happen
Connivance
 This happens when the spouse participated in the
downfall of the other as by providing actively the
opportunity for the wrong doing directly or
indirectly.
Mutual Guilt
 This means that both parties are at fault or have
given ground for legal separation.
 You cannot come to court if you are a guilty party.
Collusion
 This refers to an arrangement between the
spouses to obtain a decree of legal separation by
secret maneuvers or pretensions by making it
appear that a valid ground exist even if there is
none.
 Also included as a ground for dismissal for
petitions of nullity and annulment
PRESCRIPTION
- The reckoning point of the 5 year period is the
time of the occurrence of the cause
Article 58-59: Procedures for Legal Separation
Note: Death of one party extinguishes a pending action
for legal separation.
STEP 1:
Filing in the Family Court the complaint for Annulment or
Declaration of Marriage
The defendant shall be served with summons and a
copy of the complaint whereby he is given 15 days
to file his answer from receipt thereof.
If no answer is filed by the defendant within 15 days:
 The court cannot declare the defendant in default
 The court will order the prosecuting attorney or fiscal
assigned to it to enter his appearance for the State
- To take steps to prevent collusion between the
parties
- To insure that evidence is not fabricated or
suppressed
- To defend a valid marriage
- To expose an invalid one
 After conducting an investigation, the fiscal is
mandated by law to make a report to the court on
the result of his investigation. If there is no collusion
the fiscal will submit a report of no collusion to the
court.
General Rule: The Fiscal must actively intervene in the
case and submit a report to the court that there was no
collusion between the parties.
Exception: If the annulment or declaration of nullity of
marriage was strongly opposed & heatedly contested by
the defendant by hiring a lawyer who filed several
pleadings and actively participated in the trial of the
case.
 The non-intervention of the fiscal to assure lack of
collusion between the parties is not fatal to the
validity of the proceedings in court especially when it
was not shown that evidence was suppressed or
fabricated by any of the parties. In this case, the
strict application of Article 48 and 60 of the Family
Code is unwarranted.
STEP 2:
Before the court will commence to the hearing of the
case, it should allow a “Six Months Cooling-off Period” to
lapse from the filing of the complaint
 This is intended to give the parties enough time to
further contemplate their positions and allow the
healing balm of time to aid them in the process.
 This is a mandatory requirement and its non-
compliance renders the decision infirm. However,
what is only prevented is the hearing of the case on
its merits. It does not involve the hearing of other
incidents such as custody of minor children, support
“pendete lite” and alimony.
 The court may also entertain prayers of injunctions
within the period or even motion to dismiss.
Why is this only peculiar to legal separation and not
to voidable and void marriage?
- As distinguished from void and voidable
marriage, the grounds for legal separation have
nothing to do with the status of the marriage
- It only governs the relationship of the parties
- In void and voidable marriages, it involves the
status of the marriage itself. We cannot
compromise the status of a marriage.
No court may render judgement on the basis of
confession or a stipulation of facts.
- Also for nullity and annulment cases
- The court is required to conduct trial and present
their respective evidences
STEP 3:
Spouses are entitled to live separately from each other
 After the filing of the petition for legal separation the
parties are already entitled to live separately from
each other.
Administration of Conjugal Properties
- In the absence of written agreement of both
parties as to the administration of the absolute
community or conjugal partnership property shall
be decided by the court.
- If neither of the parties is fit to administer it, the
court may appoint a third person to manage the
community properties.
Support of the parties and their common
children and custody
- The support for the parties and their common
children will be taken from the absolute
community or conjugal partnership.
- If the court awards the custody of their minor
children to one spouse, the other spouse should
be given visitorial rights.
Article 63-64: Effects of Legal Separation
EFFECTS OF LEGAL SEPARATION:
1) The spouses shall be entitled to live separately from
each other, but the marriage bond shall not be
severed.
2) The absolute community or conjugal partnership shall
be dissolved and liquidated but the offending spouse
shall have no right to any share of the net profits,
which shall be forfeited in accordance with article
43(2).
3) The custody of the minor children shall be awarded to
the innocent spouse, subject to the provisions of 213
of this code.
4) The offending spouse shall be disqualified form
inheriting from the innocent spouse by intestate
succession. Moreover, provisions in favor of the
offending spouse in the will of the innocent spouse
shall be revoked by operation of law.
5) A donation by reason of marriage made by the
innocent spouse in favor of the guilty spouse is
revoked by operation of law.
- The action to revoke the donation under Legal
Separation must be brought within five years from
the time the decree of legal separation has
become final.
6. The designation of the guilty spouse as the
beneficiary of the insurance policy of the innocent
spouse may be revoked by the latter even if there is
a designation that it is irrevocable.
Article 65-66: Effects of Reconciliation
A corresponding joint manifestation under oath signed by
them shall be filed with the court in the same proceeding
for legal separation
Effects:
A. For pending cases
- It shall be terminated right away
B. If the decree has already been issued
- The decree shall be set aside.
C. Separation of properties and any forfeiture of
share to the guilty party already effected
- This shall continue to subsist, unless the spouses
agree to revive their former property regime.
Joint Manifestation of Reconciliation specifications:
1. The properties to be contributed anew to the
restored regime
2. Those to be retained as separate properties of
each spouse
3. The names of all their known creditors, their
addresses and the amounts owing to them
The agreement of revival must be in writing and attached
to the motion filed in court trying the legal separation case.
Creditors of both parties must be duly notified by
furnishing them copies of both the agreement and the
motion.
- Once the court approves the agreement, the
order of the court must be recorded in the proper
registries of properties.
- Those creditors that were not listed or not notified
shall not be prejudiced by the recording of the
order in the proper registries.
Title III - RIGHTS AND OBLIGATIONS BETWEEN HUSBAND
AND WIFE
Essential marital obligations:
1. The husband and wife are obliged to live together, observe
mutual love, respect and fidelity, and render mutual help
and support. (Article 68)
2. The husband and wife shall fix the family domicile. In case
of disagreement, the court shall decide. (Article 69)
3. The spouses are jointly responsible for the support of the
family. (Article 70)
4. The right to administer and manage the household shall be
the right and duty of both spouses. (Article 71)
Note: Except for support, the courts cannot compel the husband
and wife to do these duties. It is the moral obligation of the
spouses that should constitute the motivating factor for making
them observe the said duties and obligations which are highly
personal.
This means that there can be no action for damages merely
because of a breach of marital obligation.
Reason for the rule: The Conjugal property will be made to
answer for the damages.
Exception: If the property regime is complete separation of
property, one can seek damages under Article 19, 20 & 21
of the Civil Code (Abuse of Rights)
Remedies if one of the spouses neglects his duties or commits
acts which tend to bring danger, dishonor or injury to the other
or to the family:
a. When the inability falls under psychological incapacity –
declaration of nullity of marriage (Article 36)
b. When the spouse designated as the administrator of
conjugal or community property is guilty of some acts of
mismanagement - the other spouse can ask the court for
receivership. (Article 101)
c. The aggrieved spouse can ask the court that he or she
be the sole administrator of the conjugal or community
property. (Article 101)
d. Judicial separation of property. (Article 101)
e. When the spouse is guilty of physical, psychological,
economic abuse directed against the other, the
aggrieved spouse can ask the court for temporary or
permanent protection order (VAWC)
f. Criminal charges if acts of the other spouse amount to a
crime
- In our jurisdiction, a husband can rape his wife under
the Anti-VAWC Law
g. Injunction – Mandatory (commands the performance of
an act) and prohibitory (enjoins or prohibits the
commission of an act) injunction
Can the court issue a mandatory injunction directing the
offending spouse to perform his marital obligations or prohibitory
injunction enjoining the offending spouse from performing an
act?
 Prohibitory – Yes, the court can issue a prohibitory
injunction against the offending spouse for acts
which tend to bring dishonor, danger or injury against
the family.
 Mandatory – No, because marital obligations are
personal and consensual in nature. (Except support –
failing to do so would lead to contempt of court)
On Profession
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.
Who will answer or shoulder the debt incurred in the exercise
of their respective occupations?
IMMORAL/ILLEGTIMATE occupation without consent:
Article 73
 When objection is raised by the other spouse:
 - The court will decide if there is basis on the objection
(valid, serious or moral grounds)
 If the court finds it to be immoral:
- The court will determine if benefit redounded to the
family before or after the objection was made.
If before: The debt or obligation incurred by the spouse in pursuit
of an immoral profession shall be chargeable only against the
spouse concerned. (Article 73)
- For this to apply, the innocent spouse must have no
knowledge of the other spouse’s engagement in an
immoral activity such that he could not have interposed
any objection.
If after: Any debt or obligation incurred by the spouse in pursuit
of the immoral profession may be charged against the conjugal
or community property.
- This is what is known as the Equitable Principle of
Estoppel where one could not avoid responsibility and
yet continue receiving the benefits. This will make sure
that the other spouse, who did not object, should
likewise share in the liability.
MORAL/LEGITIMATE occupation without consent: Article
94 par 3 (ACP) or Article 121, par 3 (CPG)
Distinguish between two factual situations:
1. Obligation or loss incurred from an isolated transaction
Rule: Any obligation cannot be charged against the ACP or
CPG but to the separate, exclusive properties of the debtor
spouse. In order for the obligation to be chargeable against
the ACP or CPG, there should be proof of actual benefit that
redounded to the benefit of the family.
Ayala Investment v. CA and Spouses Ching
Facts:
 The husband was the vice-president of Philippine Blooming
Mills. When the corporation was suffering from financial
difficulty, the corporation applied for a loan with Ayala
Investment. As a condition for the approval of the loan
application, Ayala required the husband to execute a surety
agreement to guarantee the payment of the corporation’s
corporate loan. The husband as vice president executed a
surety agreement, binding himself jointly and severally with
the corporation. When the corporation failed to pay the loan,
Ayala went to court and filed an action for collection of sums
of money not only against the corporations, but also against
the husband.
 The trial court ruled in favor of Ayala and pending appeal, the
court granted the execution.
 The wife objected, contending that the obligation did not
redound to the benefit of the family and therefore, the CPG
should not be held liable to satisfy the judgement of the Court.
Ruling:
 The Supreme Court sustained the wife’s argument. The
contract entered into by the husband is of such nature that is
not normally expected to benefit the family. The husband was
not the recipient of the loan obligation, but only a guarantor.
The beneficiary being the corporation and not the family.
 The only way the CPG may be held liable to satisfy the
judgment is to show that the family actually benefited out of
the obligation. There should be proof of actual benefit to the
family
2. Obligation or loss is incurred in pursuit of an ordinary
transaction – normally expected to produce benefit to the
family by its very nature.
Rule: Any obligation incurred may be charged against the
ACP or CPG. It is not required that there should be proof of
actual benefit to the family.
G Tractors Inc. v. CA and Spouses Nicacio (?)
Facts:
 Involves a contract between the husband and G Tractors Inc,
allegedly without the consent of the wife where the husband
leased some heavy equipment from G Tractors, Inc. in pursuit
of his logging business.
 For failing to pay the stipulated rental for the equipment, G
Tractors went to court and filed an action for the collection of
sums of money. The court ruled in favor of G Tractors.
 The wife contended that the obligation incurred by the
husband arising from the contract with G Tractors is a
personal debt of the husband because it was entered into
without her consent and involvement.
Ruling:
 The Supreme Court rejected the argument of the wife, holding
that the contract entered into by the husband is of such nature
that it is normally expected to produce benefit for the family. It
is an exercise of business, normally presumed to be intended
for the benefit of the family. Therefore, it is not required that
there should be actual benefit that redounded to the family,
even if losses are incurred in pursuit of such legitimate activity.
TITLE IV – PROPERTY RELATIONS BETWEEN HUSBAND
AND WIFE
Chapter 1: General Provisions
Article 74
The property relations between husband and wife shall be
governed in the following order:
1. By marriage settlements executed before the
marriage;
2. By the provisions of the Code; and
3. By the local customs.
Marriage Settlements (Article 75-81):
A contract between the would-be spouses before the celebration
of the marriage, embodying the terms and conditions of their
agreement as the manner by which their property relations is to
be governed.
Without a marriage settlement or when the regime is void, the
default property regime is the system of absolute community of
property.
Any modifications, in order to be valid, must be made before the
celebration of the marriage subject to the following provisions:
a. Article 66
b. Article 67
c. Article 128
d. Article 135
e. Article 136
The marriage settlement shall be in writing, signed by the parties
and executed before the celebration of the marriage. And in
order to not prejudice third persons, they must be registered in
the local civil registrar as well as the proper registries of
property. If there is a donation of an immovable property, the
marriage settlement must be a public instrument, i.e. it must be
notarized.
The following must be weighed in ascertaining the fairness and
reasonableness of the provisions of the marriage settlement:
a. The relative situation of the parties a. Marriage settlement
b. their respective ages, health and experience b. Separate deed of donation
c. their respective properties
d. their respective family ties and connections Marriage Settlement Separate Deed of
e. the spouse’s needs Donation
f. other factors that tend to show that the agreement was There must be a marriage There should also be a
understandingly made settlement that must marriage settlement.
stipulate a property regime
If a person, upon whom a sentence of civil interdiction has been other than ACP
pronounced or who is subject to any other disability, the - Because if it is ACP, it
guardian appointed shall be made a party in the marriage would be a useless
settlement executed by the said person. donation for the donor
would end up being the
In the absence of a contrary stipulation in the marriage owner just the same
settlement, the property relations shall be governed by - Donation is a mode of
Philippine laws, regardless of the place of the celebration of the acquiring property which
marriage and their residence. stipulates a loss of the
donor and a gain of the
Exceptions to this rule: done
a. When both are aliens The donor may not donate Not subject to the 1/5
b. With respect to the extrinsic validity of contracts affecting more than 1/5 of their present limitation.
property not situated in the Philippines and executed in the property. - In this case, there is no
country where the property is located - A marriage settlement is possibility of undue
c. With respect to the extrinsic validity of contracts entered into just like an ordinary influence because this is
the Philippines but affecting property situated in a foreign contract which a unilateral act and there
country whose laws require different formalities for its undergoes the process is no process of
extrinsic validity. of negotiation. negotiation
- The exercise of undue
Most importantly, everything stipulated in the marriage influence is a common
settlements shall be rendered void of the marriage does not take occurrence. This
place. limitation is imposed by
law to avoid this undue
Chapter 2: Donations by Reason of Marriage influence.
If the marriage does not take If the marriage does not take
2 kinds of Donations: place, the donation is void. place, donation is not
a. Donations Propter Nuptias – donations in consideration of rendered void. It is only
marriage revocable and under Article
b. Ordinary donations – done during the existence of the 86, only voidable 5 years
marriage from the time the marriage
was supposed to take place.
Donation by reason of marriage
A kind of donation incorporated in the marriage settlement, Note: The rules under Title III of Book III of the Civil Code must
because normally a donation is executed through a separate be observed. That is:
deed of donation. - The donation must be accepted by the done personally
- Simply a donation, the consideration of which is or through an SPA
marriage. - The donation must be made during the lifetime of both
- Executed before the marriage parties
- Can be done by a third-party in favor of one or both - Donation of a movable may be made orally or in writing
spouses OR one would-be spouse in favor of the other
spouse On Ordinary Donations (Article 87)
Executed DURING the marriage by one spouse in favor of the
Donations by reason of marriage made by a third-party in favor other or by one spouse in favor of a third party with or without
of one or both of the would-be spouses: consent of the other spouse
Rules:
1. Can only be done in a separate deed of donation Rules:
2. Valid even if the would-be spouses do not execute a 1. Neither spouse may donate to the other during the
marriage settlement marriage, regardless of the value of the property or the
3. Not governed by the not more than 1/5 limitation – because property regime that governs their property relations.
it is a pure act of liberality, no negotiation and no 2. Donations made by either spouse in favor of a third
danger of undue influence party involving a property belonging to the ACP or CPG
4. The donor cannot donate all his properties – should retain is considered a form of disposition which requires the
some enough for his sustenance and for his compulsory consent of the other for purposes of validity. If without
heirs. If he donates all, it can be subject to collation to the consent: Donation is void.
extent that it impairs the legitime.
5. Revocable at the option of the donor only when the Exception (to both): Moderate donation or gift on the occasion
marriage does not materialize of family rejoicing. Moderate depends on the capacity of the
donor.
Donations by reason of marriage made by one would-be spouse
This donation may be done through: This prohibition shall also apply to persons living together as
husband and wife without a valid marriage.
Cirila Arcaba v. Tabancura, et.al.
Facts:
 This involved an old man who stipulated a donation to his
alleged house help who turned out to be his lover.
Ruling:
 The Supreme Court ruled that the donation was void under
Article 87 of the Family Code.
Instances where a donation by reason of marriage is
rendered voidable at the instance of the donor (Article 86):
1. If the marriage is not celebrated:
Distinguish between donations by reason of marriage executed
in a marriage settlement from that executed in a separate deed
of donation:
Marriage settlement: Donation is void.
Separate deed of donation: Donation is revocable at
the instance of the donor
2. If the marriage is judicially declared as void
General rule: Donation is revocable, 5 years from the finality of
the decision of the court declaring the marriage void. Applies
regardless of whether the donee acted in bad faith.
Exceptions:
a. If the marriage is declared void on the ground of Article
40 (subsequent marriage entered into without the
benefit of a judicial declaration for the absolute nullity
the previous marriage) - revoked by operation of law if
donee acted in bad faith as stipulated in Article 50 in
relation to Article 43
b. If the marriage is judicially declared void under Article
44 (one of the spouses who was previously married but
his/her spouse was declared presumptively dead but
that spouse and the subsequent spouse knew at the
time that the subsequent marriage was celebrated that
the missing spouse was alive which means they acted
in bad faith) – revoked by operation of law
c. If the marriage is declared void by reason of being
bigamous Article 35 par 4 (subsequent marriage is
bigamous and void because the first marriage is
valid) - not revocable but void by reason of public policy
(also refer to Article 739 which provides that donations
made by persons who were guilty of adultery or
concubinage at the time of the donation is void)
Prescription period (for revocable): 5 years from the time of the
finality of the decision declaring the marriage void
If the donee, in a donation revoked by operation of law, refuses
to return the property, the donor should file an action for
reconveyance of the property donated, within eight years when
it is a movable property or thirty years if it involves real property.
3. When the marriage takes place without the consent of the
parents of one or both of the contracting parties
- Again, within 5 years.
4. When the marriage is annulled
In conflict with Art 50 in relation to Art 43 – which states that
donations made to the donee who acted in bad faith are
revoked by operation of law.
Tw o conflicting views:
a) Art 86 should prevail over Art 50 and 43 because it is
the later provision
b) Art 43 is more consistent with the purpose of the law –
punish the donee who acted in bad faith (This is Sir
T’s opinion as well)
5. When there is a decree of legal separation
Exception: If donee acted in bad faith - revoked by
operation of law
6. When the donation by reason of marriage is subject to a
resolutory condition and the resolutory condition is
complied with.
- If the donation by reason of marriage is subject to a
resolutory condition, it is immediately valid and
effective. But when the resolutory condition takes
place, it is revocable.
- A Resolutory Condition, which means it is immediately
demandable at one but deemed extinguished upon the
happening of the condition.
- In comparison with Suspensive Condition, which is an
obligation that is not demandable until and unless the
condition is complied with.
7. When the donee is guilty of acts of ingratitude
Article 765 of the Civil Code:
a) Commission of any crime of the donee against the
person, property of honor of the donor or his wife or
children
b) Imputation by the donee of any crime against the donor
c) Any acts involving moral turpitude against the donor,
his wife or children
d) Unjustifiable refusal to support on the part of the donee
if the donee is morally and legally obliged to give
support
Chapter 3: System of Absolute Community
What constitutes community property (Article 91):
The community property shall consist of all the property owned
by the spouses at the time of the celebration of the marriage or
acquired thereafter.
Exception:
1. Properties indicated to be exclusive in the marriage
settlement
2. Properties excluded pursuant to Article 92
Properties excluded from the Community Property (Article
92):
1. Property acquired during the marriage by gratuitous title by
either spouse, and the fruits as well as the income thereof
Gratuitous title – properties acquired without burden to the
person who acquired it. The property is acquired by pure
liberality. Ex: Donated, inheritance.
Remember, only those acquired during the existence of the
marriage. If it was acquired before the marriage, it becomes
part of the Absolute Community.
Except: If it is expressly provided by the donor, testator or
grantor that they shall form part of the community property
2. Property for personal and exclusive use of either spouse,
acquired before or during the marriage.
Except: Jewelry shall form part of the community property.
Actually, anything that is valuable.
3. Property acquired before the marriage by either spouse
who has legitimate descendants by a former marriage, and
the fruits as well as the income of such property.
Abregana v. Abrenica
This case involves a lawyer, Atty. Abrenica, who was sued by
his partners for failing to account of the proceeds of the
partnership. Atty. Abrenica lost in the case. Subsequently, his
house and lot and his 2 cars were levied in execution when the
judgment became final.
Atty. Abrenica and his wife argued that these were part of the
community property. However, it was then known that Atty.
Abrenica was previously married but it was dissolved. In the
first marriage, there were 3 children.
Applying the 3rd paragraph of Article 92, these properties were
acquired by him before the marriage and he has legitimate
descendants by the former marriage. These properties are
then exclusive. Therefore, are answerable of the personal
liabilities of Atty. Abrenica.
What happens when the property acquired during the marriage
by gratuitous title was exchanged, bartered or sold? What will
become of the proceeds of the sale of the exclusive property?
Two conflicting views:
a. Whatever property that the spouse receives during the
marriage in exchange of his or her exclusive property,
will become common.
- The property now acquired does not fall under the
statutory and contractual exclusions.
- Also consistent with the general rule that those
acquired during the marriage are part of the community
property.
Charges Upon and Obligations of the Absolute Community
of Property (Article 94):
Charges, obligations and liabilities that ACP is required by law
to settle.
1. Support for the spouses, for the common children and for
the legitimate children of either spouse
- Support for illegitimate children is not chargeable
against the common property. It is the personal
obligation of the parent spouse concerned. However,
in case of absence or insuffiency of the personal
properties of the parent spouse to support the
illegitimate child, it may be taken from the common
property by way of advances subject to
reimbursement, to be charged against the parent
spouse concerned at the time of liquidation.
2. All debts and obligations incurred during the marriage by
the designated administrator spouse for the benefit of the
community. Or the debt and obligation incurred by the non-
administrator spouse, with the consent of the other, which
redounded to the benefit of the family.
3. All debts and obligations incurred by either spouse without
the other's consent but redounded to the benefit of the
family.
- Refer to the 2 situations under Moral Occupation
4. Taxes, liens, charges and expenses including major or
minor repairs upon the common property.
5. All taxes and expenses for preservation during the marriage
upon the separate properties of either spouse used by the
family.
- If the separate property is not being used for the
benefit of the family, this provision does not apply
6. Expenses to enable either spouse to complete any
profession for self-improvement
7. Antenuptial debts or debts incurred before the marriage
which redounded to the benefit of the family.
- There must be actual benefit that redounded to the
benefit of the family for antenuptial debts to be charged
against the ACP.
8. The value of the property donated or promised by birth
spouses to common children for the purpose of
completing a vocational or professional course for self-
improvement
9. Personal to the debtor spouse a) antenuptial debts which
did not redound to the benefit of the family b) support of
the illegitimate children and c) liability arising from crime
or quasi -delict when the separate properties of the debtor
spouse are insufficient (advance reimbursement
mechanism)
10. Litigation expenses between spouses unless the suit is
groundless.
If the assets or properties of the ACP are not sufficient to
satisfy all the obligations, (except par9) the spouses are
solidary liable of the balance of the obligation with their
respective separate properties.
Solidary obligation - when the obligation may be demandable
against more than one debtor. The creditor can demand the
fulfillment of the entire obligation from any of the debtors.
Example: The creditor can compel either the husband or the
wife to pay the entire obligation. However, the spouse who was
compelled to pay the entire obligation can demand from the
husband his share in the obligation.
Note:
This solidary obligation principle imposed on either spouse with
respect to their separate properties applies only insofar as the
obligations mentioned in Article 94, except par 9. Because par 9
are personal liabilities - the only principle applicable is the
advance reimbursement mechanism.
Obligations incurred during the marriage by either spouse
without the consent of the other and which did not redound to
the benefit of the family -- not covered under par 9. (Only
antenuptial debts are covered)
 Efren Pana v. Heirs of Jose Juanete
 spouse under the advance reimbursement mechanism.
Illustrative of the principle of advance reimbursement mechanism.
Involves a criminal case for murder initially filed against the
husband along with other alleged co-conspirators. But during the
trial, only the wife was convicted, but the husband was acquitted.
The wife was also adjudged civilly liable.
When the civil liability was sought to be enforced against the ACP,
the husband objected considering that civil liability arising from
crime is exactly the item mentioned in par 9 -- personal to the wife,
hence should not be enforced against the community.
The Supreme Court ruled that while it is not chargeable against the
community, the ACP however is obligated by law to advance.
However, it was argued that this advance should be made when
the liquidation should be done. But the SC said that there is no
necessity for liquidation first before advance could be made.
Go v. CA
Illustrates an obligation which arose from a breach of contract
consisting of damages imposed by the court. Involves a video-
taking service during the marriage of spouses Ong. The wife was
engaged to take the video of the wedding. Ho ever, she was not
able to deliver the video recording. It was erased, allegedly. An
action for damages was filed. Court sustained the plaintiff and an
award of damages was adjudged against the wife.
But when the civil liability was sought to be enforced, the ACP was
levied for execution. It was argued that the liability should not be
enforced against the community because it was the personal
obligation of the wife. This argument was sustained by the SC.
Supreme Court said that while either spouse may pursue a
legitimate profession, business or activity, in this case the contract
was purely between the wife and spouses Ong. The SC said that it
is the personal obligation of the wife and therefore cannot be
enforced against the ACP. The issue on advance reimbursement
mechanism was not taken up in the case, although the issues are
essentially the same.
Note:
The SC in Go v. CA invoked Art 94 par 3 mentioned that any
spouse may pursue any legitimate profession, business or
activity. If this is the kind of activity, this is presumed to be for
the benefit of the family and therefore chargeable against the
ACP even when the transaction results in losses, as
distinguished from an isolated transaction.
Go v. CA - video shooting is an occupation presumed to be for
the benefit of the family, consistent with the ruling in Tractors
Inc. But the SC saw it the other way. SC may have in mind par9.
Problem is, it forgets the advance reimbursement mechanism.
The Supreme Court emphasized the principle of contracts but
overlooks the charges on ACP. The principle that only parties
are liable - true in ordinary contract. But when it involves
liabilities sought to be enforced in the ACP - provisions of the
Family Code.
Atty.T's personal take - ruling in Go is not accurate.
Principle of Advance Reimbursement Mechanism
ACP - this principle applies without need for securing the
obligations which pertain to the absolute community - advances
are made
CPG - this mechanism may only be resorted to if the obligations
which pertain to the conjugal partnership are already covered by
the assets of the CPG. In other words, the obligations pertaining
to the partnership are secured first before the assets of the
partnership may be charged with the personal debts of either
Reason for distinction: In ACP, the spouses have fewer
exclusive properties. In CPG, the spouses are normally
expected to have more separate properties.
Game of chance (Article 95)
Whatever may be lost during the marriage in any game of
chance, betting, sweepstakes, or any other kind of gambling,
whether permitted or prohibited by law, shall be borne by the
loser and shall not be charged to the community.
Except: Winnings therefrom shall form part of the community
property.
Ownership, Administration, Enjoyment and Disposition of
the Absolute Property (Article 96 for ACP and Article 124 for
CPG)
Rules:
1. Administration and enjoyment of ACP shall belong to the
spouses jointly. Joint administration by the husband and the
wife. BUT in case of disagreement, the decision of the
husband prevails, subject to the right of the wife to go to
court to annul the transaction entered into by the husband
implementing his decision.
2. Any transaction entered into by the husband over the
objection by the wife, is revocable - the wife has the right to
question the transaction within 5 years from the date of the
contract implementing the decision. If the wife does not
question within that period, then the contract is valid.
Note: The status of the transaction, disposition or encumbrance,
administration of property - revocable only within 5 years.
Sole power of administration (2nd par of Article 96):
In the event that either spouse is incapacitated or unable to
participate in the management, the other spouse may go to the
court through a summary proceeding and ask for the sole power
of administration.
- This sole power of administration does not include the
right to dispose or encumber any common property.
Only acts of administration and not acts of disposition
or encumbrance.
Requirement for disposition or encumbrance to be valid:
1. There must be consent of the non-participating spouse
2. If incapacitated to give consent, court authority is required.
In the absence of a written consent or court order, any
disposition or encumbrance is VOID.
How to distinguish 2nd par from 1st:
Legarda and Mauis:
An opinion was expressed that the first par of 96 and 124,
pertains only to acts of administration. The rule that says in case
of disagreement, the decision of the husband prevails, subject
to the right of the wife to go to court within 5 years -- applies only
if the acts performed by the husband pertaining to acts of
administration. So that if the acts pertain to disposition or
encumberance, there is only one rule- without the consent of the
other spouse, the disposition or encumberance is VOID.
Criticized the Supreme Court when it decided the case of
Ravina v. Abrille -- exactly illustrates the 1st par of 96.
 Ravina v. Abrille
Both the husband and the wife jointly administered the
community property but when the husband decided to dispose
of the common property, the wife objected to the extent that she
even sent a letter to the prospective buyer making clear her
objection to the sale.
The SC ruled that the contract entered into by the husband and
the buyer is revocable. The sale was entered into by the
husband without the consent of the w ife.
Applying the 1st par of Art96 - transaction is only revocable w
ithin 5 years from the date of the contract implementing the
decision. The filing of the action to nullify the transaction by the
w ife was within the prescriptive period. The SC did not rule that
the transaction is void even if it was entered into even without
the consent of the w ife -- Consistent w ith the 1st par of 96 and
124. If there is objection, the contract is only revocable --
because the parties exercised joint administration of the
properties.
Mario Schuzi v. Guzon, Fuentes v. Roca and Giang v.
Giang
Demonstrative of the 2nd par. One of the spouses sold a
common property without the consent of the other spouse
because the latter was unable to participate in the
administration -- separated de facto for 30 years.
The SC, consistent w ith the 2nd par succinctly ruled that the
contract was VOID because of lack of consent of the other
spouse.
Based on these existing jurisprudence, it is now established
that:
1st par - joint administration of the property regime, with the
knowledge of the other spouse but with objection, thereby
resulting in disagreement. -- ONLY REVOCABLE
Disposition made without the knowledge of the other spouse
even if joint administration -- VOID (because of the absence of
the chance for objection)
However, while VOID, the transaction is considered a continuing
offer on the part of the consenting spouse and the third party
which may be perfected as a binding contract the moment the
court authorizes the transaction or acceptance by the other
spouse.
Most authors are of the opinion that when the non-consenting
spouse eventually gives consent or when the court authorizes
the transaction -- the contract is an altogether NEW contract.
It is not accurate to say that a void contract is ratified -- because
a void contract cannot be ratified. (Hence it is more of a voidable
contract since it is a continuing offer)
When the disposition is made by the wife
First paragraph: Administration jointly exercised by both. And in
case of disagreement, husband's decision prevails. This
contemplates of a situation where the encumbrance or
disposition is from the initiative of the husband.
If the disposition or encumbrance is made by the wife over the
objection of the husband -- DO NOT apply the 1st par of Art 96
Sta. Maria's opinion: The transaction entered into by the wife
over the husband's objection can be assailed as:
a. unenforceable (because of lack of authority)
b. can be assailed as void on the ground that it was made
contrary to law or policy
Second paragraph: Only one is administering the common
property because the other spouse is incapacitated either due
to illness, absence.
Doesn't matter who makes the disposition or encumbrance = still
void
Dissolution of the Absolute Community Regime (Article 99):
The absolute community terminates:
1. Upon the death of either spouse
2. When there is a decree of legal separation
3. When the marriage is annulled or declared void
4. In case of judicial separation of property during the
marriage under Articles 134 to 138.
Separation in Fact (Article 100)
The separation in fact between husband and wife shall not affect
the regime of absolute community.
Exceptions:
a. The spouse who leaves the conjugal home or refuses
to live therein, without just cause, shall not have the
right to be supported
b. 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.
c. In the absence of sufficient community property, the
separate property of both spouses shall be solidarily
liable for the support of the family.
Abandonment or failure to comply with obligations to the
family (Article 101):
If a spouse, without just cause, abandons the other or fails to
comply with his or her obligations to the family, the aggrieved
spouse may petition the court for:
1. Receivership
2. Judicial separation of property
3. Authority to be the sole administrator of the absolute
community
A spouse is deemed to have abandoned the other when one has
eft the conjugal dwelling for a period of 3 months without any
intention of returning. (Failed to give any information as to his or
her whereabouts)
Liquidation of the Absolute Community Assets and
Liabilities:
Takes place when the ACP is terminated.
When is ACP terminated? (Article 99)
1. Death of either spouse
2. Decree of legal separation
3. Annulment or nullity
4. Judicial separation of property
Upon the dissolution of the absolute community, the
following procedure shall apply (Article 102 and 129):
1. Inventory has to be prepared -- all the common properties
belonging to the ACP and all the separate properties of
either spouse.
2. Personal obligations of the parties shall be paid out of their
 separate properties and the obligations pertaining to the
absolute community shall be paid out of the common
property.
- In case of insufficiency of the ACP to cover all
liabilities -- apply solidary obligation on the part of
the spouses (any balance of the ACP shall be paid
by their respective separate properties)
3. If after deducting all the debts, there remains properties
belonging to them separately -- these shall be returned to
them.
4. If there remains properties belonging to the ACP (net
assets) -- divided equally between the spouses.
Unless:
a. A different proportion or division was agreed upon in
the marriage settlement
b. There has been a voluntary waiver of such share
5. The presumptive legitimes of the common children shall be
delivered upon partition. This shall not prejudice future
inheritance.
6. The conjugal dwelling and the lot on which it is situated shall
be adjudicated to the spouse with whom the majority of the
common children choose to remain. (Only applies to ACP
or CPG)
What is the effect if the property regime is terminated by
death? (Article 103 and 130)
Rule 103 and 130: - where marriage is extinguished by death,
the natural process of settlement of the estate will follow. This is
done in a special proceeding involving the settlement of the
estate of a deceased person.
The Estate may be settled in two ways:
1. Probate testate proceedings – If a person died with a will,
the will shall be probated and the estate distributed
according to the terms and conditions of the will
2. Intestate proceedings – if a person died without a will, the
estate will be settled in court and intestacy and rules on
intestate succession will follow
The same proceedings will be applied when the person who died
is married. The surviving spouse is required to liquidate the
estate within one year upon the death of the other spouse
as required by law.
This can be done:
a. Extrajudicially – Preparing a document denominating
the extra judicial settlement of the estate of the
deceased person. The property there will be
adjudicated in favor of the estate, payment of debts
and the remaining property will be distributed to the
surviving heirs. Done only if the parties can agree.
b. Judicially – If the parties could not agree, the court will
decide as to which portion of the property goes to
whom.
Effects of non-compliance of liquidation within 1 year from death
of the deceased Art 103 and 130:
1. Any disposition of the property belonging to the ACP or
CPG shall be void.
2. If the surviving spouse contracts a subsequent marriage
without complying with the requirement of liquidation –
mandatory that the property regime that will govern the
subsequent marriage is complete separation of property
regime.
First effect: Disposition is void
The SC interpreted this provision in an entirely different way.
Heirs of Protacio Go v. Ester Servacio
Involves a property left by the deceased who was married.
Without liquidation of the CPG, the surviving spouse (husband)
along with one of the children, Rito Go, sold a portion of the
estate left by the deceased (wife). When the other children
knew of the sale, they filed an action to annul the transaction
invoking the provision which says that any disposition of the
property belonging to the ACP or CPG without complying with
the requirement of obligation is VOID.
The Supreme Court ruled that if a portion of the property
belonging to the ACP of CPG is sold without complying with the
requirement of liquidation, the disposition is not necessarily void
– especially if after liquidation it will be determined that the other
heirs who did not participate in the disposition still gets their own
share. Because obviously, the requirement of liquidation is for
the purpose of protecting the interests of the creditors and the
heirs.
If at the end of the day, it can be determined that the other heirs
are still able to get their respective shares, then there is no
problem. In this case, the portion sold by two is even lesser than
what they are entitled to get.
On the rules of co-ownership, a co-owner has the right to
encumber or dispose the share even without the consent of the
other. (Article 493 of the NCC)
103 – What is only void is the portion belonging to the other
non-consenting heirs
The rule now: the disposition made without liquidation is void in
so far as the interest of the non-consenting heirs.
Chapter 4 – Conjugal Partnership of Gains
Otherwise known as the relative community property regime.
Should be stipulated in the marriage settlement. Jointly owned
by the parties.
What governs CPG:
1. Marriage settlement
2. Rules on contract of partnership
3. Family Code
Properties that form part of the conjugal partnership:
1. Under this regime, 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.
- What is acquired by them before and at the time of the
marriage, remains theirs.
- Fruits: Any improvement or addition to the personal
property. Can be industrial (ex: buildings), natural (ex.
Piglets, plants), civil (Ex: rental) fruits.

2. Any acquired by the spouses through their efforts or by
chance
- Salary, winnings in gambling, hidden treasures.
3. Upon the termination of the marriage, the net assets that
either spouse obtained will be conjugal.
The following specific properties are conjugal partnership
properties (Article 117):
1. Properties acquired through onerous title during the
marriage by either spouse
- Onerous: acquired for valuable consideration
other than the generosity of the grantor
2. Properties acquired by work, labor, industry, profession or
occupation. (Income as a lawyer, any business, etc.)
3. Fruits and income of the common properties and net fruits
of the exclusive properties.
Net fruits – already took into consideration in producing the
fruit.
4. Share in the hidden treasure
Rule in Article 483 of the NCC - owner of the property where
the property was found gets everything. But if a finder is a
third party, the finder gets 50% and the owner of the
property gets the other half
- If found in the exclusive properties – CPG
- If either spouse is only a finder and the property
belongs to a third party - the finder spouse gets
50% and goes to the CPG
5. Property acquired through occupation - fishing or hunting
- Occupation here is not profession.
- The difference is in the mode of acquisition - there
is no previous owner (Civil Code definition)
- There is an element of chance
6. Livestock existing at the time of dissolution in excess of
those brought into the marriage by each
7. Anything acquired by chance, betting, sweepstakes,
gambling, whether legal or illegal. Winnings form part of the
CPG. Losses are suffered by the debtor spouse.
Note: Any or all properties acquired during the marriage under
the CPG are presumed to be conjugal. This presumption holds
true even if the property is registered under the name of one
spouse only and even if it was acquired during a cohabitation
with another party and registered to the paramour. (Article 116)
Procopio Villanueva v. CA
Husband was separated de facto with his wife to cohabit with
Pacita. Husband acquired various properties during the
cohabitation registered under the name of Pacita.
Whether or not the property is Pacita's or that of the CPG or
ACP of the valid marriage.
SC ruled that whatever property acquired during the existence
of the ACP or CPG, is presumed to be the property of the CPG
or ACP, even if acquired during cohabitation.
Same principle in the case of Bell Codero v. CA and Josefina
v. Iron Works
Exclusive property of each spouse (Article 109):
1. Properties brought by either spouse into the marriage
2. Properties acquired during the marriage by gratuitous title
Substantially the same as Art 92 ACP statutory exclusions,
but actually different.
CPG - property acquired during the marriage by gratuitous
title is always exclusive property of the spouse who
acquired it without exception)
ACP- property acquired during the marriage by gratuitous
title is exclusive property of the spouse who acquired it
except when the grantor provides that it be part of the
common property.
3. Property acquired by right of redemption, barter or
exchange using the property belonging solely to the spouse
Redemption – right to get back one’s property where it was
earlier conveyed to another.
Example: Before the marriage, the husband obtained a loan
from the bank and by way of collateral, he mortgaged his
property. For failure to pay, the bank foreclosed the
property and sold in favor of a third party.
Under the law, if a property mortgaged in foreclosed, the
mortgagor owner has one year to redeem the property sold
at the foreclosure sale.
Rule if the 1 year period falls during the existence of the
marriage: (Property was foreclosed before the marriage but
the redemption period falls due during the marriage)
- The property acquired by redemption will not form
part of the CPG by express provision of law
Barter - Same principle holds if either spouse receives
another property during the marriage in exchange or
substitution of his or her own exclusive property
Rule in ACP is different: When an exclusive property is
exchanged with another property, the property will be part
of the common property
Sale during the marriage: What will become of the cash or the
purchase price?
Conflicting views:
 a. Exclusive – because a sale transaction is essentially a
barter transaction
b. Conjugal – because cash in exchange of the property
is the proceeds of the exclusive property
c. If the exclusive property sold during the marriage for
profit the original value is exclusive and the
excess/profit conjugal because it is considered as a
fruit or income
4. That which is purchased with exclusive money of the
husband or the wife
Example: Spouse inherited a bank deposit from parents
and purchases a property using such money
Rights of Spouses with regard to their exclusive properties:
1. They retain the ownership, possession, administration and
enjoyment of their exclusive properties. (Article 110, par.1)
2. May, during the marriage, transfer the administration of his
or her exclusive property to the other by means of a public
instrument, which shall be recorded in the registry of
property of the place where the property is located. (Article
110, par.2)
3. 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.
Installments (Article 118):
Property bought on installment paid partly from exclusive funds
of either or both spouses and partly from conjugal funds.
The ownership depends:
- If the ownership is vested upon the delivery of the
property which happened before the marriage, then is
it exclusive.
- If it is vested on the last payment which happened
during the marriage, then it is conjugal subject to
reimbursement.
Note: Always remember that if the property became conjugal,
the spouse who owned it shall be reimbursed.
Note: The buyer may become the owner without the full
payment.
Absolute Contract of Sale – a kind of contract whereby the
property is transferred to the buyer upon the delivery regardless
of whether the purchase price has not been fully paid
Contract to Sell – ownership is given to the property only upon
the payment of the full purchase price
Note: If paid out of the exclusive funds, falls under the 3rd kind
of exclusive property and not in this Article.
Credits (Article 119)
If either of the spouses extended loan to someone else but the
payment was made during the marriage. (The loan is exclusively
owned by either spouse but the payment is received during the
marriage)
Rules:
1. If payment is received during the marriage corresponding to
the principal amount = EXCLUSIVE PROPERTY
2. Payment received during the marriage corresponding to the
interest that accrued before the marriage = EXCLUSIVE
3. Payment received during the marriage corresponding to the
interest that accrued during the marriage = CONJUGAL
(essentially considered fruits of the exclusive)
How about a property is acquired using money borrowed by
either spouse from a third party? Say, husband borrowed money
from a friend and using such money husband purchased a
property. What is the status of the property purchased?
Rule: Any property acquired during the marriage using the
exclusive money of either spouse = Exclusive
Determining factor: The ownership of the money used in the
repayment of the loan.
 If paid out of the exclusive money = property is
exclusive
 If paid out of conjugal money - property is conjugal
Wong v. IAC
Transaction entered into by the husband who are separated de
facto with his wife. Husband borrowed money from his friend to
buy a property. The wife also borrowed money from which she
was charged for estafa. To satisfy the civil liability, the sheriff
levied on execution the property purchased by the husband
using the money he borrowed from his friend.
Issue: Whether or not the property of the husband acquired
through the borrowed money can be levied for execution to
satisfy the obligation which was personal to the wife.
The SC ruled that any property acquired during the marriage is
presumed to be conjugal and there was no evidence that the
money used for the repayment of the loan belongs exclusively
to the husband. Therefore it is a conjugal property and can be
levied for execution.
In a litigation, either spouse obtains a judgment award in the
form of damages adjudicated by the court. Who gets to own the
damages?
Zulueta v. Pan American World Airways
Husband filed a case against the airline company for breach of
contract of carriage. They won and damages were awarded.
Issues: Whether or not the damages awarded by the court
forms part of the conjugal partnership.
The Supreme Court ruled that if the damages awarded by the
court arose from a transaction financed by the conjugal
partnership = Conjugal. It was established that the plane tickets
were purchased using conjugal funds. Hence, the damages
should be conjugal.
 Lilius v. Manila Railroad
Involves a suit for quasi-delict filed against manila railroad
arising from a vehicular accident. The plaintiffs were awarded.
Issue: Whether or not the damages awarded by the court
should form part of the conjugal partnership. The Supreme
Court ruled that the damages arose from physical injuries which
are personal to the person concerned. Hence, it is a personal
property of the one whose injury was compensated.
Insurance
Suppose a car by the husband with a fire insurance is lost, who
gets to own the insurance proceeds?
Determining factor: the money used for the procurement of the
insurance premium
 If paid out of exclusive money- exclusive
 If paid out of conjugal money – conjugal
Retirement benefits (Article 115)
Rule if during the marriage, either spouse received retirement
benefits, depends on the nature of the retirement benefit:
 If onerous (when the amount is the accumulation of the
portions of the spouse's salary of the years deducted
from his monthly salary) – conjugal
 If gratuitous (extended out of pure liberality by the
giver) - exclusive
If improvement is introduced to the separate property
(Article 120)
Can be at the expense of the CPG or through the effort of
either or both spouses.
Note: The law discourages different ownership over the land
and the building. Ownership should be uniformly owned by one
person.
Conjugal - When the cost of improvement and the resulting
increase in value are more than the value of the property at the
time of the improvement (real owner is entitled to reimbursement
during liquidation)
Example:
Land – 2M
Building – 2m
Resulting increase in value – 1M
Add the resulting increase 1M to the cost of
improvement 2M = 3M
3M > value of the land 2M
Exclusive - When the cost of improvement and the resulting
increase are not more than the value of the property exclusively
owned by the spouse at the time of the improvement (CPG is
entitled to reimbursement during liquidation)
How to determine the greater value
Example: Land belonging to husband exclusively is 2M. Out of
the conjugal funds, a building was constructed during the
marriage on such land. The cost of improvement is 2M.
Land 2M, Building 2M = 4M
Cost of improvement and resulting increase in value of the
property: Due to the improvement, the land now may cost 5M.
(1M – resulting increase in value)
Note: Ownership will only be transferred either to the CPG or to
the spouse upon reimbursement is made during liquidation.
Rules:
 If the property is to be awarded to the CPG, the land
remains to be owned by the spouse before the
reimbursement is made at the time of liquidation.
Significance: Before the ownership is transferred, the property
which remains under the ownership cannot be levied on
execution to satisfy an obligation pertaining to the CPG.
 If the property is to be awarded to the spouse, the land is
considered to be part of the CPG before the reimbursement
is made at the time of liquidation
Significance: The spouse who owns the land cannot insist that
he or she be paid rental for the occupancy of his land, even if
the building belongs to a third party, the CPG. Because
whatever rental that may be due would just the same end up as
a common fund – interest income of the spouse exclusive
property.
Charges and Obligations of the CPG (Article 121):
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.
The charges and obligations of the CPG are slightly different
from that of ACP [Art 94 (ACP) v. Art121 and 122 (CPG)]
Main difference: In case the debtor spouse has insufficient
exclusive separate properties to satisfy his or her debts or
obligations:
ACP Art 94 - Advances subject to reimbursement (no need to
first cover the obligations of the ACP)
CPG Art 121 and 122 - The CPG can only be made to make the
advances once the obligations of the CPG are satisfied
(principle of exhaustion)
Reason for distinction: In ACP, the spouses have fewer
exclusive properties. In CPG, the spouses are normally
expected to have more separate properties.
However, the Supreme Court ruled in the case of Pana v. Heirs
of Juanete that there is no need to wait for liquidation for
advances to be made in the conjugal partnership
Efren Pana v. Heirs of Jose Juanete
Illustrative of the principle of advance reimbursement
mechanism. Involves a criminal case for murder initially filed
against the husband along with other alleged co-conspirators.
But during the trial, only the wife was convicted, but the
husband was acquitted. The wife was also adjudged civilly
liable.
When the civil liability was sought to be enforced against the
CPG, the husband objected considering that civil liability arising
from crime is exactly the item mentioned in par 9 -- personal to
the wife, hence should not be enforced against the conjugal
partnership.
The Supreme Court ruled that while it is not chargeable against
the community, the CPG however is obligated by law to
advance. However, it was argued that this advance can only be
made if the other obligations pertaining to the CPG are covered.
And this can only be determined upon liquidation.
But the SC said that for purposes of the advance mechanism
requirement, it is not necessary to wait for liquidation. Because
the law only says “covered”, meaning it is enough that at the
time the advances is made, the properties of belonging to the
CPG are enough to cover the obligations pertaining to the CPG.
What can be done is a provisional or informal liquidation. The
danger there is that the possibility cannot be discounted that
the liquidation is actually made, the properties belonging to the
CPG may not be sufficient to satisfy the obligations of the CPG.
Rule now: There is no necessity for liquidation first before
advances could be made in Conjugal Partnership.
Administration of the Conjugal Partnership Property
The rule is the same with Absolute Community. Art 96 – ACP
Art 124 - CPG
Liquidation of Conjugal Property (Article 129):
1. Inventory - In the listing of the inventory of properties if the
CPG, any advances made shall be included in the list of
properties belonging to the CPG as an asset. (par 2)
 Whatever amount the CPG owes to either spouse,
shall be listed as the exclusive properties of either of
the spouses.
2. Come up with list of obligations - personal obligations and
obligations of CPG
 Each spouse shall be reimbursed for the use of his/her
exclusive funds in the acquisition of property or for the
value of his/her exclusive property, the ownership of
which has been vested by law in the conjugal
partnership
3. Deduct the personal obligations from the separate
properties and deduct the conjugal obligations from the
conjugal properties, etc.
Chapter 5 – Judicial Separation of Property
Three instances where the regime of complete separation of
properties governs the marriage:
1. If stipulated in the marriage settlement
2. Article 103 and 130: If previous marriage was terminated by
death and spouse contracts a subsequent marriage without
complying with the requirement of liquidation
3. When during the existence of the marriage, the parties
resorted to judicial separation of property
Judicial separation of property: Always require court approval
whether voluntary or involuntary
A. Voluntary - Does not require any cause: mutual agreement
of the parties. Filing of a petition for voluntary separation of
their properties (both should file)
B. Involuntary - When there is cause (aggrieved party is the
one filing the petition)
Grounds that require final judgment by the court:
i. Civil interdiction
ii. Absentee
iii. Loss of parental authority
Grounds that don’t require final judgment by the court:
iv. Abandonment for 3 months
v. Mismanagement
vi. Separation de facto for 1 year
Revival of Property Regime (Article 141):
Suppose the court granted the judicial separation of property,
may the parties agree to revive their property regime?
YES. Grounds for revival: (depends on the kind of judicial
separation)
 Involuntary - may be revived if the ground for the involuntary
judicial separation ceases
 Voluntary – the parties can always file a joint motion for the
revival of the previous property regime
Can the revived property regime be in turn dissolved again
voluntarily or involuntarily?
 If the judicial separation was decreed involuntarily and was
revived – may be dissolved again involuntarily if there is
another ground
 If the judicial separation was decreed involuntarily and was
revived – may be dissolved again voluntarily
 If the judicial separation was decreed voluntarily and was
revived –may be dissolved again involuntarily
 If the judicial separation was decreed voluntarily was
revived – may NOT be dissolved again voluntarily
Note: Voluntary can only be availed of once.
Rights and Obligations of Spouses after their Property
Regime Is Judicially Dissolved by Judicial Separation
Effect: Property relations between spouses is now to be
governed by complete separation of property regime
Chapter 6 – Complete Separation of Property Regime
Rights:
1. Article 145: Either spouse has absolute right to enjoy,
administer, use, dispose, and encumber any of his or her
property without the consent of the other.
2. Article 145: 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
3. Can engage in any profession without the consent of the
other
Obligations (Article 146):
1. Jointly responsible for family expenses in proportion of their
income (in case of insufficiency or default thereof, to the
current market value of their separate properties)
2. Solidarily liable with their respective separate properties
with their creditors relating to family expenses (veco, pldt
bills)
Chapter 7 – Unions without marriage or under a void marriage
Article 147 and 148 Property Regimes of Void Marriages (Co
- Ownership)
What is covered by Articles 147 and 148:
Article 147:
1. A union between a man and a woman cohabiting with each
other, without the benefit of marriage but are capacitated to
marry each other.
2. Union under a void marriage; Capacitated to marry but
under a void marriage. Void marriages other than void
because of incapacity to marry. (Age, sex, legal
impediment)
3. Void for absence of essential and formal requisites (except
lack of capacity to marry due to age, sex, legal impediment)
4. Void for psychological incapacity
5. Void under Art 53 -- marriage dissolved under Art 40 or
annulled under Art 45 but one of the parties failed to comply
with the requirement of liquidation, partition and delivery --
subsequent marriage is void
6. Void under Art 44 where a spouse obtained a judicial
declaration of presumptive death of his former spouse. Both
spouses in the subsequent marriage acted in bad faith -
therefore their marriage is void
Structure of Property Relations of Article 147 (Co-
ownership):
1. Wages and salaries earned during the cohabitation - co
owned by both even if earned only by one of them.
2. Properties acquired during the cohabitation by either
spouses using his or her exclusive money - exclusive
separate property (there must be proof that the money used
exclusive belongs to the spouse who purchases the
property)
3. Properties acquired by both through their effort or industry
-- co ownership
4. If only one of the parties is acting in good faith, the share of
the party in bad faith on the co-ownership is forfeited:
- Order of forfeiture is different from the rule in Article 43:
a) common children or descendants then b) party's
respective descendants
5. Income and fruits of the separate exclusive properties --
exclusive
Note: Before the partition of the properties owned in common,
neither of the parties may dispose nor encumber any property
owned in common to a third party. BUT either of the spouse
encumber his or her share to the other co-owner.
Article 148:
1. Union between a man and a woman, cohabiting as husband
and wife but are incapacitated to marry each other
2. Married but marriage is void because they are not
capacitated to marry each other:
a. Void marriage by reason of Art 4 -- essential requisite
on legal capacity (same sex, below 18)
b. Void marriage under Art 37 incestuous marriage
c. Void marriage due to public policy Art 38
d. Void marriage under Art 35 par4 bigamous marriage
(first marriage valid, subsequent marriage void and
bigamous)
 4. It is indispensable that the party should show proof of actual
Note: Article 40 - void marriage but falls under ACP or CPG contribution

5. If the party who acted in bad faith is validly married - salaries

Valdez v. RTC and Dino v. Dino
and wages during the cohabitation belong to the ACP or
CPG of the valid marriage
Property regime of void marriages shall be governed by Art
147 and 148 except when it is void by reason of Art 40.
- Any property acquired during cohabitation - belongs to
the ACP or CPG existing in the valid marriage
The Supreme Court ruled that when the marriage is declared - If the party who acted in bad faith is not married - share
void, the property regime existing in the marriage is either that in the properties is forfeited
under 147 or 148 and so such regime shall be liquidated in
accordance with the rules on co-ownership. The only exception Distinction: Art 43 from Art 147 and 148:
is when the marriage is declared void by reason of Art 40. 1. Art 43, what is forfeited is the share of the party in bad faith
in the net profits. In 148, the entire share is forfeited
Do not be misled by the case of Carino v. Carino, where the
Supreme Court committed a very patent mistake 2. In 43, order of forfeiture is different (common children only)
In 147 and 148 (common children and descendants)
Carino v. Carino
3. In 43, second in line is the descendants of the guilty spouse,
Involves a policeman named Juanito. His first wife was Susan in 147 and 148 party's respective descendants
Igdao and the second wife is Susan Yi. Without obtaining a
judicial declaration of nullity of marriage of his previous Structure of Property Relations:
marriage, he contracted a second marriage. Juanito died. The Article 147 Article 148
tw o wives scrambled over a piece of Juanito’s estate. Claiming Wages and Co-owned even Exclusive
that everything should go to her, the second w ife filed an action Salaries if earned by one
in court for the collection of a sum of money. In support of his of them only
position, the second wife assailed the validity of the first Properties Exclusive but Exclusive but
marriage for lack of marriage license which was duly acquired using needs proof that does not need
established. exclusive money the money used proof
exclusively
Issue: Who gets to own the estate left by Juanito? belongs to the
spouse who
The Supreme Court ruled that the first marriage is void for lack purchases the
of marriage license but it does not mean to say that the second property
marriage is valid just because the first marriage is void, Properties Co-ownership Co-ownership
because under Art 40, without the judicial declaration of nullity acquired by both without need to but there must
of marriage, the subsequent shall likewise be void for being through their prove actual be proof of actual
bigamous. Susan Yi therefore cannot claim to be the legal wife. joint effort or participation participation in
industry the acquisition
Since the second marriage is void for being bigamous, the Spouse acted in Share in the net If married –
property regime should be governed by Art 148 (co-ownership). bad faith profits is forfeited salaries and
Under 148, only the properties which are acquired by the wages during the
parties through their actual joint contribution. In this case, the cohabitation
property left by Juanito consists of his salary, acquired by belong to the
Juanito alone. Susan Yi therefore got nothing. ACP or CPG of
the valid
The Supreme Court made a mistake because the marriage marriage
between Juanito and Susan Yi is exactly the marriage
contemplated under Article 40 because the subsequent If unmarried –
marriage was entered into without the benefit of the judicial
rule on forfeiture
declaration of nullity of the first marriage. Hence, the property Income and fruits Exclusive Exclusive
regime should have been liquidated according to the rules of
of the separate
either Art 102 or 129 pursuant to Art 43.
exclusive
properties

/rmgc2015
Structure of Property Relations under Article 148:
1. Wages and salaries are exclusive to the party who earned
them

2. Properties acquired using exclusive money are exclusive

3. Only properties acquired through actual joint contribution in

money, property and industry can form part of the co-
ownership