2012 bar questions

Persons
Juridical Capacity of done; requisites for acceptance
Rick donated P 1,000,000 to the unborn child of his pregnant girlfriend, which she
accepted. After six (6) of pregnancy, the fetus was born and baptized as Angela.
However, Angela died 20 hours after birth. Ricky sought to recover the P1 Million.
Is Ricky entitled to recover? Explain. (5%)
SUGGESTED ANSWER:
Yes, Ricky is entitled to recover the P1, 000,000. The NCC considers a fetus a
person for purposes favorable to it provided it is born later in accordance with the
provisions of the NCC. While the donation is favorable to the fetus, the donation
did not take effect because the fetus was not born in accordance with the NCC
To be considered born, the fetus that have an intra-uterine life of seven (7)
months should live for 24 hours after its complete delivery from the mother’s
womb. Since Angela had an intra-uterine life of less than seven (7) months but did
not live for 24 hours, she was not considered born, and therefor did not become a
person. Not being a person she has no juridical capacity to be a done, hence, the
donation to her did not take effect. The donation not being effective, the amount
donated may be recovered to retain it will be unjust enrichment.

FAMILY CODE
1. Marriage; Annulment; parties
A petition for declaration of nullity of marriage can only be filed by either the
husband or the wife? Do you agree? Explain your answer. (5%)
SUGGESTED ANSWER:
Yes, I agree. Under the rules promulgated by the Supreme Court, a direct action
for declaration of nullity may be filed by any of the spouses.
ALTERNATIVE ANSWER:
No, I do not agree. There are other who may file a petition for declaration of
nullity such as the other spouse in bigamous marriages.
2. Marriage; Divorce Decrees; Foreign Spouses Divorces Filipino spouse
Cipriano and Lady Miros married each other. Lady Miros then left for the US and
there she obtained American citizenship. Cipriano later learned all about this
including the fact that LApdy MIros divorced him in America and that she had
remarried there. He then file for petition for authority to remarry, invoking Par. 2,
Art. 26 of the Family code. Is Cipriano capacitated to re-marry by virtue of the
divorce decree obtained by his Filipino spouse who was later naturalized as an
American citizen? Explain. (5%)
Suggested Answer:
Yes, he is incapacitated to remarry. While the second paragraph of Art 26 of the
Family Code is applicable only to a Filipino who married a foreigner at the time of
marriage, the Supreme Court ruled in the case of Republic v. Obrecido, G.R. No.
154380, 5 Oct. 2005, that the said provision equally applies to a Filipino who
married another Filipino at the time of marriage, but who was already a foreigner
when the divorce was obtained.
3. Marriage; Legal Separation; Prescription
After they got married, Nikki divorced that Christian was having an affair with
another woman. But Nikki decided to give it a try and lived with him for two (2)
years. After two (2) years, Nikki filed for an action for legal separation on the
ground of Christian’s sexual infidelity. Will the action prosper? Explain. (5%)
Suggested Answer:
Although actions for legal separation has not yet prescribed, the prescriptive
period being 5 years, if Obesido’s affair with another woman ended when Nikki
decided to live with him again, Nikki’s action will not prosper on account of
condonation. However, if such affair is still continuing, Nikki’s action would
prosper because the action will surely be within five (5) years from the
commission of the latest act of sexual infidelity. Every act of sexual liaison is a
ground for legal separation.
 4. Marriage; Psychological Incapacity
The petitioner filed a petition for declaration of nullity of marriage based allegedly
on the psychological incapacity of the respondent, but the psychologists was not
able to personally examine the respondent and the psychological report was
based only on the narration of the petitioner. Should the annulment be granted?
Explain. (5%)
Suggested Answer:
The annulment cannot be guaranteed solely on the basis of psychological report.
For the report to prove the psychological incapacity of the respondent, it is
required that the psychologist should personally examine the respondent and
psychological report should be based on the psychologist’s independent
assessment of the facts as to whether respondent is psychologically
incapacitated.
Since, the psychologist did not personally examine the respondent, and his report
is based solely on the story of the petitioner who has an interest in the outcome
of the petition, the marriage cannot be annulled on the ground of respondent’s
psychological incapacity if the said report is the only evidence of respondent’s
psychological incapacity.
5. Property Relations, Unions without marriage
Jambrich, an Australian, fell in-love and lived together with Descallar and bought
their houses and lots at Agro-Macro subdivision. In the Contracts to Sell
Suggested Answer: