ARTICLE 2: Laws shall take effect after fifteen days
CHAPTER 1: GENERAL PROVISIONS following the completion of their publication in the
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
Republic Act No. 386
The Civil Code of the
Philippines August 30,1950
Law — a rule of conduct, just, obligatory, promulgated
by legit- imate authority, for common observance and
benefit. — Sanchez Roman
9 sources of the Civil Code of the Philippines
1. Spanish Civil code of 1889
2. The Philippine Constitution of 1953
3. Statutes or laws (Philippine, American, European)
4. Rules of Court (local or foreign)
5. Decisions of local tribunals (Supreme Court
decisions)
6. Decisions of foreign tribunals, comments and
treatises of foreign jurists
7. Filipino customs and Traditions
8. General Principles of Law and equity
9. Report of the Code of Commission
Civil Code — a collection of laws which regulate the private
relations of the members of the civil society, determining their
respective rights and obligations, with reference to persons,
things, and civil acts.
Civil Law — it is a branch of law that generally treats of the
personal and family relations of an individual, his property
and successional rights, and the effects of his obligations
and contracts.
Civil Code vs Civil Law
Civil Code - compilation of existing civil laws,
scientifically arranged into books, titles, chapters, and
sub-heads and promulgated by legislative authority.
Civil Law – mass precepts that determine or regulate
the relations that exist between members of a society
for the protection pf private interests.
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
completion of the publication. The requirement of
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.
Newspaper of General Circulation — a
newspaper is of general circulation if:
CPBN
1. its circulation is made within the court’s jurisdiction
2. it is published at regular intervals for the
dissemination of local and general information
3. it has a bona fide subscription list of paying subscribers
4. if it is not devoted to the interest or published for
the entertainment of a particular class, profession,
trade, calling, race, or religious denomination.
When laws become effective
The effectivity of a law will depend on whether
or not it has provided a specific date for its
effectivity.
• No date specified — the law becomes
effective after 15 days following the completion
of its publication in the Official Ga- zette or
newspaper of general circulation.
This means that it is effective on the 16th day
following the law’s complete publication. If
the law is voluminous, and is published in
series, the reckoning shall begin from the last
of the series.
• Specific date provided — it becomes
effective only upon the lapse of the said period
following its complete publication and not
before.
• Immediate effectivity provided — becomes
effective only after its complete publication and
not immediately after its signing by the
President.
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 3 rd 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.
2. 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
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
the 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
3. 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.
2. If the law itself provides that it be valid but
subjects the wrongdoer to criminal liability.
3. 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.
4. 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.
Article 12. A custom must be proved as a fact, according to the
rules of evidence.
Customs cannot supplant laws.
Custom —a rule of conduct formed by a repetition of acts,
uni- formly observed/practiced as a social rule, legally
binding and obligatory.
Usage — a repetition of acts, and differs from custom
in that the latter is the law or general rule which arises
from such rep- etition; while there may be usage without
custom, there cannot be a custom without usage
accompanying or preceding it.
This rule is applicable in criminal cases.
Requisites to make a custom an obligatory rule
plurality of acts or the acts have
been repeatedly done;
1. it is generally practiced by the great
mass of the social group;
2. the practice has been going on for a long
period of time;
3. the community accepts it as a proper way
of acting, such that it is considered
obligatory upon all.
General rule: Customs must be proved as a
fact. It must be alleged in the pleadings and its
existence must be proved by evidence, either by
testimony of witnesses or by documents
recognizing its existence and its observance for a
long period of time.
Exception: A court may take judicial notice of a
custom if there has already been a decision
rendered by the same court recognizing the
custom, especially if the decision had already
been affirmed on appeal and the decision already
final and executory.
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 2nd 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
Nationality or Citizenship Theory — that
the national law of the person is applied in
matters involving personal relations.
Territoriality or Domiciliary Theory —
(followed in the US and Great Britain); that the
law of the domicile (the place where the person
has his or her fixed or legal address, or permanent
residence) is applied in matters involving personal
relations.
By analogy, we apply the nationality theory to
foreigners who are residing in the Philippines.
Thus, if under his law, divorce is a valid means of
terminating marriage, and was able to prove that
such a law exists in his country then by analogy
we apply the nationality theory, he is capacitated
to enter into marriage because he was able to
prove it.
Scope
Article 15 refers to:
1. family rights and duties (including
parental authority, marital authority,
support);
2. status;
3. condition;
4. legal capacity (but there are various
exceptions to this rule on legal capacity)
Family rights and duties — refer to the
rights and duties pro- vided in the Family
Code and in such other special laws re-
lating to family law; matters relating to
marriage, annulment, nullification,
consequences, legal separation, property rela- tions,
support, adoption, filiation, recognition,
succession, emancipation, parental authority, are
governed exclusively by Philippine law when citizens
of the Philippines are involved and wherever they
may be.
A former Filipino is no longer bound by Philippine
laws after he acquires another state’s citizenship
(Recio vs. Recio).
Status — used to designated the circumstances
affecting the legal situation of a person in view
of his age, nation, and his family membership.
Condition — mode or status of being; it is an
essential quality; status or rank.
Legal capacity — the legal power to enter into
binding obligations or to enjoy the privileges of a
legal status; examples:
1. Testamentary capacity — legally effective will
2. Contractual capacity – legally binding contract
3. Marital capacity – valid marriage
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?
its
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? Ex:
a) Contract For the sale of human flesh even if
valid where act was made cannot be given effect
in the Phils.
b) Absolute divorce granted to Filipinos abroad
even if valid where it was given cannot be
effective here in the Phils. and
c) c) Living with another man besides lawful
husband and his permission.
ARTICLE 18. In matters which are governed by the
Code of Commerce and Special laws their deficiency
shall be supplied by the provisions of this code (16a)
 SUPPLETORY NATURE – RULE IN CASE OF
CONFLICT BETWEEN CIVIL CODE AND OTHER
LAWS.
o In case of conflicts with the code of Commerce
or special laws, the CIVIL CODE shall only be
SUPPLETORY, except of otherwise provided
by the CIVIL CODE
o In GENERAL, therefore, in case of conflict ----
the SPECIAL LAW prevailse over the Civil
Codem which is general in nature.
 When Civil Code is SUPERIOR – There are
instances when the Civil Code expressly declares
itself superior to special laws.
o COMMON CARRIERS
o INSOLVENCY
In case of conflict, the new Civil Code applies but under
another article, usurious transactions are governed by
special laws. (Art 1175, Civil Code)
Rule in Statutory Construction - The General Rule is
that the special law governs in case of conflict.
HUMAN RELATIONS
1. ABUSE OF RIGHTS - FUNDAMENTAL TENET:
2. UNJUST ENRICHMENT
ARTICLE 19. Every person must, in the exercise of
his rights and in the performance of his duties, act
with justice, give everyone his due and observe
honesty and good faith.
Presents the rightful relationship between the people.
The law recognizes limits on all our rights; that in their
exercise, the norms of human conduct (justice, give
everyone his due, observe honesty and good faith) set
forth in Art 19. must be observed.
 A right, though by itself is legal because it is
recognized and granted by law as such – may
however become a source of some illegality. When a
right is exercised in the manner exercised contrary
with the norms in Art 19 -> damage to another.
 LEGAL WRONG – is committed for which the
wrongdoer must be held responsible.
 Focus of Art. 20: an act which is against the law which
ELEMENTS OF ABUSE OF RIGHT: can either be committed through negligence or
1) There is a legal right, intentional act.
2) Exercised in bad faith,
3) For the sole intent of injuring another. - Precisely the INTENTIONAL TORT (american
concept)
What happens if a person disregards a command - The article basically punishes illegal acts
mandated under article 19? Any violation of article 19 whether done willfully or negligently.
causes abuse of rights. There is an abuse of right when
one in the exercise of his right – disregards what is  MALICE OR BAD FAITH is at the core of this
under article 19. provision.
 Good faith is presumed and he who alleges Bad
The aggrieved party can file for damages premised on Faith must prove the same. / Malice connotes bad
abuse of rights principle. This gives rise to call for faith or ill-will which implies an intention and
damages. Art. 19, however, does not ask for penalty. It unjustifiable harm.
merely imposes an article for abuse of rights. Damages  TORTS/WRONG – legal principle; where there is a
will be premised in article 20 or 21 which provide for wrong, there is a remedy.
remedy to recover damages from the wrongdoer. o Spanish tort –based on negligence
o American tort – based on malice
Article 20 Article 21
Act of omission
Act or omission Law on TORTS/ QUASI-DELCTO - Whoever by act or
Nature of the covers both
covers only omission causes damage to another, there being fault or
act negligent and
intentional acts. negligence, is obliged to pay for the damage done. – Art
intentional acts.
Contrary to 2176, Civil Code
Act or omission
What makes the morals, public
is contrary to
act actionable policy or good
law.
customs. ARTICLE 21. Any person who willfully causes loss
or injury to another in a manner that is contrary to
Willful and intentional are not the same. morals, good customs or public policy shall
 Willful act is one that is deliberately intended to compensate the latter for damage.
cause harm to the victim. So even if the act is
voluntary, it may not always deliberately want to *act there is not contrary to law/illegal rather it is
cause harm to another person. against morality, customs and policy. THE ACT
MUST BE INTENTIONAL.
These are torts and not crime.
Elements under Art 21: 1) There is an act which is legal;
CRIME TORT 2) But which is contrary to morals, good custom and
An actionable wrong not public policy and 3) is done with Intent to injure. (willful)
There is a law that
defined by a specific law
punishes the act or
but by general principles  Presupposes loss or injury, material or otherwise,
omission
of tort. which one may suffer as a result of such violation.
Offended party is the Offended party is the  Damages are granted only to those injured persons
state complainant who are not themselves at fault (refer: Pari Delicto
Seeks compensation by Rule)
Seeks penalty by way of
way of recovery of
fine or imprisonment Nominal Damages – are granted for the vindication or
damages.
Examples: recognition of a right violated or invaded, and not for the
Tort but not a crime: Breach of promise to marry purpose of indemnifying the plaintiff for any loss suffered
by him
Crime but not a tort (because is produces no damage):
Illegal possession of drugs  CONTRA BONUS MORES (Against good
morals)
ARTICLE 20. Every person who, contrary to law,  PARI DELICTO RULE – means EQUAL in
willfully or negligently causes damage to another, GUILT/FAULT; in a similar offense or crime. (As
shall indemnify the same to the other 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
whether the evil sought to The evil sought to be
be avoided is greater avoided must be greater
than that suffered by the than the damage cause.
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 handicapped. 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 disability, such as the
instance and incompetent.
 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.
Inadmissibility of Confession through Coercion –
inadmissible 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 else’s residence - includes
by implication respect for another’s name,
picture or personality except insofar as is
needed for 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 gossiping, and reliance or hearsay.
d.) Vexing or humiliating includes 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
RPC civilly liable.
Violation of constitutional rights of
another makes one liable for
Article 32 of damages regardless of a criminal
NCC action that may be filed. This civil
action is separate and distinct from
the criminal action.
Article 33 of In cases of defamation, fraud,
NCC physical injury, a separate civil action
 may be filed against the person
responsible.
When a member of the police fails to
render aid or protection to any
Article 34 of
person in case of danger to life or
NCC
property, a separate civil action may
be filed against the police officer.
Anyone who causes damage to
another through fault or negligence,
Article 2176 of
there being no contractual relations
NCC
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.
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 - This can be solemnized by a ship captain or
both of the parties believe in good faith that the airplane chief or a military commander, all of
solemnizing officer actually has authority, but in truth, which must be in according to article 7 of the
does not, the marriage is still valid but will subject the family code.
person responsible for to civil, criminal and civil liability. Duty of the person who solemnized the marriage under
- But then again, know the distinction between Articulo Mortis:
mistake of fact and mistake of law. - He must execute an affidavit before the LCR stating
- It is only in the mistake of fact that the marriage that he solemnized the marriage under articulo
is valid. If it is mistake of law, the marriage is mortis and the he took all the necessary steps to
void. ascertain the age and relationship of the contracting
parties and that he is convinced that they have no
 Valid Marriage License legal impediments to marry each other.
- The original affidavit must submitted by him to the
- This is considered the most important requisite in the
LCR where the marriage was performed within a
validity of marriage since it is in the issuance of the
period of 30 days
license that the State can determine whether or not
there are impediments in the marriage.
2. Article 28: Marriage in a Far and Remote
- The marriage license must be secured from the
Place
Local Civil Registrar of the place where either party
- If the parties are residing in a far and remote
resides, which takes 10 days from application before
place that it is difficult for them to secure the
it is issued.
required marriage license because their place has
- The license will be valid for 120 from the date of
no means of transportation, they will exempted
issuance.
from the license requirement.
- Absence of marriage license will render the marriage
Duty of the person who solemnized the marriage:
void only when it is supported by the certification
- He must execute an affidavit after the celebration of
from the local civil registrar that no such marriage
the marriage stating that he solemnized the marriage
license was issued to the parties.
in a far and remote place and the ascertained the
- Any irregularities in the issuance of the marriage
age and relationship of the parties and the absence
license will not render the marriage void as long as it
of any legal impediments.
does not affect the legal capacity of both parties.
 The reason for this is to encourage couples
- The requirements are enumerated in Art. 11-16.
to marry and legalize their relationship
- But even if one or both of the contracting parties are
instead of cohabiting in an illicit relationship.
suffering from a legal impediment and the local civil
registrar knows about it, he CANNOT refuse to issue
3. Article 33: Marriages among Muslims or
the marriage license.
Members of Ethnic Cultural Communities
- He can prevent the marriage from happening by
 Code of Muslim Personal Laws of the Philippines
going to court and file for an injunction. It is the court
- Signed into law on Feb. 4, 1977
that orders the marriage to not proceed.
- This is the governing law on persons and family
- The application for marriage license will be posted in
relations among Muslims.
the bulletin board and 2 conspicuous places in order
- Under this law, marriage license is not
to inform the public that two people want to get
required for the validity of the marriage.
married. The publication will last for 10 days.
- Under the family code, marriage license is not a
- Only the Local Civil Registrar where at least one of
requirement for the validity of the marriage
the applicants is a resident can issue the marriage
provided that both parties must be a Muslim or a
license
member of the Ethnic Community.

Exceptions to the requirement of marriage license:

4. Article 34: Ratification of Marital
1. Article 27-32: Marriage under Articulo Mortis
Cohabitation
 Articulo Mortis (Point of Death) Marriage
- When the parties have already been living together
- This is a marriage done wherein one of the party
as husband and wife for at least 5 years without any
is at the point of death. This kind of marriage can
legal impediments to marry each other, the
be solemnized w/out the need of a marriage
requirement of a marriage license is no longer
license for necessity and practicability.
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 1 st 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 4 th 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.
st
1 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
3rd 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.
th
4 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
see his wife having illicit relationship
- He asked for a divorce in Canada and was granted.
- He found another Filipina and wanted to be married.
- He went to the LCR of Pasig to include the divorce
decree to be annotated in the marriage certificate.
But he was informed that he was not allowed
because for any foreign judgement, to be valid in the
Philippines, it has to be approved by the court in the
Philippines.
- He filed for a petition for declaratory relief.
- Issue: Can he have the same remedy?
Ruling:
- Since the 2nd paragraph is intended for the benefit of
the Filipino spouse, he cannot invoke the same
benefit.
- It does not mean that he has no remedy. It can be
recognized under Rule 39, Sec. 48 of the Rules of
Court: the enforcement of foreign judgement.
- Two options available:
a) Alien spouse may file a petition for recognition of
the divorce decree
- Problem: if it is only for recognition, it is not
enough to effect the corresponding change
of the records of marriage between the
spouses. It is simply the recognition and
does involve the change of interests in the
marriage
 - Even if the court recognizes the divorce death of the parties during the party’s lifetime.
decree, the record of the spouses will still be The action to nullify the The annulment of a
the same marriage has no voidable marriage
b) To file a petition for correction or change of prescriptive period prescribes
entries in the Local Civil Registrar particularly General rule: void Voidable marriages can
change of marriage entries under Rule 108 of marriages can only be be questioned by other
the Rules of Court assailed by the parties of persons not a party to the
- As he files the petition for recognition, the the marriage. marriage.
alien spouse still needs to file this petition for Cannot be ratified Can be ratified
correction 35, 36, 37, 38, 40, 53 45
- It is the order for recognition that will be
used to effect the change of entries
- The SC observed that this very burdensome to the
Article 35: Void Ab Initio due to absence of essential
spouses. Consistent with the policy of speedy trial,
or formal requisites
the alien spouse could file the petition for correction
1. Those contracted by any party below eighteen years
of entries and ask for the recognition of the divorce
of age even with the consent of parents or guardians
decree in the same petition
2. Those solemnized by any person not legally
- It is still necessary to prove the authenticity and
authorized to perform marriages unless such
existence of the divorce decree and the national law
marriages were contracted with either or both parties
of the alien spouse who obtained the divorce decree
believing in good faith that the solemnizing officer
had the legal authority to do
If the foreign judgement sought to be recognized is not
- One of the situations where good faith is taken
a divorce decree, it should be distinguished.
into considerations.
3. Those solemnized without a license, except those
In Fujiki vs. Marinay, the proper remedy is to file a
covered by the preceding Chapter
petition for correction. Basically the same procedure.
4. Those bigamous or polygamous marriages not
falling under article 41 which states presumptive
The difference lies in the matter that needs to be proved:
death
- In foreign judgement: simply the existence and
- Another instance where good faith is recognized
authenticity of the foreign judgement. The foreign
5. Those contracted through mistake of one contracting
law is not required to be determined.
party as to the identity of the other
o In Fujiki, what was the object was the judgement
6. Those subsequent marriages that void under Article
that declared the marriage void by reason of
53
bigamy. This is not against public policy.
- In a divorce decree: The existence and authenticity
Collateral Attack of a Void Marriage
of the divorce decree AND the national law of the
 The nullity of the marriage is not the principal or
alien spouse
main issue of the case but is necessary to the
resolution of the main case.
VOID AND VOIDABLE MARRIAGES
Good faith of the parties in entering the marriage is
Two Kinds of Defective Marriages
immaterial and it does not validate an otherwise void
marriage.
VOID VOIDABLE
Defective from the very Not defective from the
beginning beginning Divorce vs. Void Marriages
Cannot be ratified Can be ratified Divorce
Can only be attacked - There is a valid marriage but the ground
Can be attacked collaterally occurred subsequent to the celebration of
directly
Direct action may be filed the marriage.
Direct action can only be by an interested 3rd party Void in Ab Initio
filed by the spouses based on the ground - From the very beginning there was no
marriage.
The nullity of marriage can While voidable marriage - The ground for declaration of its nullity
be raised even after the can only be questioned 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 party from assuming the essential marital
obligations.
f. The essential marital obligations must be those
mentioned in article 68-71 of the Family Code, as
well as Article 220, 221 and 225.
g. The interpretations given by the National Appellate
Matrimonial Tribunal of the Catholic Church in the
Philippines, while not controlling or decisive, should
be given great respect by our courts.
CANON 1095: CASES F PSYCHOLOGICAL
DISORDERS
a. Hypersexuality-nymphomania
b. Hypersexuality-styriasis
c. Homosexuality
d. Lesbianism
e. Schizophrenia
f. Affective immaturity
g. Anti-social personality disorder
h. Dependent personality disorder
i. Vaginismus or psychic impotence
j. Sexual disorder
k. Psychoneurosis
l. Lack of interpersonal integration
m. Immature personality
n. Obsessive-compulsive Personality
o. Frigidity
p. Alcoholism and gambling
 q. Liar, cheat and swindler
r. Sexual neurosis
s. Hysterical personality
t. Psychic immaturity
REQUISITES FOR PSYCHOLOGICAL INCAPACITY
AS A GROUND FOR ANNULLMENT
(a) A true inability to commit oneself to the essentials of
marriage.
(b) This inability to commit oneself must refer to the
essential obligations of marriage:
 Conjugal act
 Community of life and love
 Rendering of mutual help
 The procreation and education of offspring
(c) The inability must be tantamount to a psychological
abnormality.
It is not enough to prove that the spouse failed to meet
his responsibility and duty as a married person; it is
essential that he must be shown to be incapable of
doing so due to some psychological illness.
Dedel vs. Court of Appeals
- In this case, respondent’s sexual infidelity can hardly
qualify as being mentally or psychically ill to such an
extent that she could not have known the obligations
she was assuming, or knowing them, could not have
given a valid assumption thereof. It appears that
respondent’s promiscuity did not exist prior to or at
the inception of the marriage. What is, in fact,
disclosed by the records is a blissful marital union at
its celebration, later affirmed in church rites, and
which produced four children.
- Respondent’s sexual infidelity or perversion and
abandonment do not by themselves constitute
psychological incapacity within the contemplation of
the Family Code. Neither could her emotional
immaturity and irresponsibility be equated with
psychological incapacity. It must be shown that
these acts are manifestations of a disordered
personality which make respondent completely
unable to discharge the essential obligations of the
marital state, not merely due to her youth,
immaturity16 or sexual promiscuity.
Article 37: Void because incestuous
Marriages between the following are incestuous and void
from the beginning whether the relationship between the
parties is legitimate or illegitimate:
1. Between ascendants and descendants of any
degree.
- Ascendants and descendants no matter how
far and how long
2. Collateral blood relatives: brothers and sisters
- Between brothers and sisters, whether of full
or half-blood.
The reason why incestuous marriages are
prohibited by law:
1. It would tend to create confusion of rights and duties
incident to family relations.
2. It is abhorrent to the nature, not only of civilized
men, but of barbarous and semi-civilized people.
3. Such intermarriages often result in deficient and
degenerate offspring.
Article 38: Void because against public policy
 The enumeration of void marriages in this article
are exclusive and good faith is immaterial.
(a) Between collateral blood relatives, whether
legitimate or illegitimate, up to 4th degree
(b) Between step-parents and step-children
(c) Between parents-in-law and children-in-law
(d) Between the adopting parent & the adopted child
- 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 1 st
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
2nd 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 3 rd
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 - If neither of the parties is fit to administer it, the
pleadings and actively participated in the trial of the court may appoint a third person to manage the
case. community properties.
 The non-intervention of the fiscal to assure lack of
collusion between the parties is not fatal to the
 Support of the parties and their common
children and custody
validity of the proceedings in court especially when it
- The support for the parties and their common
was not shown that evidence was suppressed or
children will be taken from the absolute
fabricated by any of the parties. In this case, the
community or conjugal partnership.
strict application of Article 48 and 60 of the Family
- If the court awards the custody of their minor
Code is unwarranted.
children to one spouse, the other spouse should
be given visitorial rights.
STEP 2:
Before the court will commence to the hearing of the
Article 63-64: Effects of Legal Separation
case, it should allow a “Six Months Cooling-off Period” to
EFFECTS OF LEGAL SEPARATION:
lapse from the filing of the complaint
1) The spouses shall be entitled to live separately from
 This is intended to give the parties enough time to
each other, but the marriage bond shall not be
further contemplate their positions and allow the
severed.
healing balm of time to aid them in the process.
2) The absolute community or conjugal partnership
 This is a mandatory requirement and its non-
shall be dissolved and liquidated but the offending
compliance renders the decision infirm. However,
spouse shall have no right to any share of the net
what is only prevented is the hearing of the case on
profits, which shall be forfeited in accordance with
its merits. It does not involve the hearing of other
article 43(2).
incidents such as custody of minor children, support
3) The custody of the minor children shall be awarded
“pendete lite” and alimony.
to the innocent spouse, subject to the provisions of
 The court may also entertain prayers of injunctions
213 of this code.
within the period or even motion to dismiss.
4) The offending spouse shall be disqualified form
inheriting from the innocent spouse by intestate
Why is this only peculiar to legal separation and not
succession. Moreover, provisions in favor of the
to voidable and void marriage?
offending spouse in the will of the innocent spouse
- As distinguished from void and voidable
shall be revoked by operation of law.
marriage, the grounds for legal separation have
5) A donation by reason of marriage made by the
nothing to do with the status of the marriage
innocent spouse in favor of the guilty spouse is
- It only governs the relationship of the parties
revoked by operation of law.
- In void and voidable marriages, it involves the
- The action to revoke the donation under Legal
status of the marriage itself. We cannot
Separation must be brought within five years
compromise the status of a marriage.
from the time the decree of legal separation has
become final.
No court may render judgement on the basis of
6. The designation of the guilty spouse as the
confession or a stipulation of facts.
beneficiary of the insurance policy of the innocent
- Also for nullity and annulment cases
spouse may be revoked by the latter even if there is
- The court is required to conduct trial and present
a designation that it is irrevocable.
their respective evidences

STEP 3:
Article 65-66: Effects of Reconciliation
Spouses are entitled to live separately from each other
A corresponding joint manifestation under oath signed by
 After the filing of the petition for legal separation the
them shall be filed with the court in the same proceeding
parties are already entitled to live separately from
for legal separation
each other.
Effects:
 Administration of Conjugal Properties A. For pending cases
- In the absence of written agreement of both - It shall be terminated right away
parties as to the administration of the absolute B. If the decree has already been issued
community or conjugal partnership property shall - The decree shall be set aside.
be decided by the court. 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
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 3. Not governed by the not more than 1/5 limitation –
fairness and reasonableness of the provisions of the because it is a pure act of liberality, no
marriage settlement: negotiation and no danger of undue influence
4. The donor cannot donate all his properties – should
a. The relative situation of the parties retain some enough for his sustenance and for his
b. their respective ages, health and experience compulsory heirs. If he donates all, it can be subject
c. their respective properties to collation to the extent that it impairs the legitime.
d. their respective family ties and connections 5. Revocable at the option of the donor only when the
e. the spouse’s needs marriage does not materialize
f. other factors that tend to show that the agreement
was understandingly made Donations by reason of marriage made by one would-be
spouse
If a person, upon whom a sentence of civil interdiction This donation may be done through:
has been pronounced or who is subject to any other a. Marriage settlement
disability, the guardian appointed shall be made a party b. Separate deed of donation
in the marriage settlement executed by the said person.
Marriage Settlement Separate Deed of
In the absence of a contrary stipulation in the marriage Donation
settlement, the property relations shall be governed by There must be a There should also be a
Philippine laws, regardless of the place of the marriage settlement that marriage settlement.
celebration of the marriage and their residence. must stipulate a property
regime other than ACP
Exceptions to this rule: - Because if it is ACP, it
a. When both are aliens would be a useless
b. With respect to the extrinsic validity of contracts donation for the
affecting property not situated in the Philippines and donor would end up
executed in the country where the property is being the owner just
located the same
c. With respect to the extrinsic validity of contracts - Donation is a mode
entered into the Philippines but affecting property of acquiring property
situated in a foreign country whose laws require which stipulates a
different formalities for its extrinsic validity. loss of the donor and
a gain of the done
Most importantly, everything stipulated in the marriage The donor may not Not subject to the 1/5
settlements shall be rendered void of the marriage does donate more than 1/5 of limitation.
not take place. their present property. - In this case, there is
- A marriage no possibility of
Chapter 2: Donations by Reason of Marriage settlement is just like undue influence
an ordinary contract because this is a
2 kinds of Donations: which undergoes the unilateral act and
a. Donations Propter Nuptias – donations in process of there is no process of
consideration of marriage negotiation. negotiation
b. Ordinary donations – done during the existence of - The exercise of
the marriage undue influence is a
common occurrence.
Donation by reason of marriage This limitation is
A kind of donation incorporated in the marriage imposed by law to
settlement, because normally a donation is executed avoid this undue
through a separate deed of donation. influence.
- Simply a donation, the consideration of which is If the marriage does not If the marriage does not
marriage. take place, the donation take place, donation is
- Executed before the marriage is void. not rendered void. It is
- Can be done by a third-party in favor of one or only revocable and under
both spouses OR one would-be spouse in favor Article 86, only voidable 5
of the other spouse years from the time the
marriage was supposed
Donations by reason of marriage made by a third-party to take place.
in favor of one or both of the would-be spouses:
Rules: Note: The rules under Title III of Book III of the Civil
1. Can only be done in a separate deed of donation Code must be observed. That is:
2. Valid even if the would-be spouses do not execute a - The donation must be accepted by the done
marriage settlement personally or through an SPA
 - The donation must be made during the lifetime
of both parties
- Donation of a movable may be made orally or in
writing
On Ordinary Donations (Article 87)
Executed DURING the marriage by one spouse in favor
of the other or by one spouse in favor of a third party
with or without consent of the other spouse
Rules:
1. Neither spouse may donate to the other during the
marriage, regardless of the value of the property or
the property regime that governs their property
relations.
2. Donations made by either spouse in favor of a
third party involving a property belonging to the
ACP or CPG is considered a form of disposition
which requires the consent of the other for purposes
of validity. If without consent: Donation is void.
Exception (to both): Moderate donation or gift on the
occasion of family rejoicing. Moderate depends on the
capacity of the donor.
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
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 spouse under
the advance reimbursement mechanism.
Reason for distinction: In ACP, the spouses have fewer
exclusive properties. In CPG, the spouses are normally
expected to have more separate properties.
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.
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)
Note: Article 40 - void marriage but falls under ACP or
CPG
Valdez v. RTC and Dino v. Dino
Property regime of void marriages shall be governed by Art
147 and 148 except when it is void by reason of Art 40.
The Supreme Court ruled that when the marriage is declared
void, the property regime existing in the marriage is either that
under 147 or 148 and so such regime shall be liquidated in
accordance with the rules on co-ownership. The only
exception is when the marriage is declared void by reason of
Do not be misled by the case of Carino v. Carino, where
the Supreme Court committed a very patent mistake
 Carino v. Carino
Involves a policeman named Juanito. His first wife was Susan
Igdao and the second wife is Susan Yi. Without obtaining a
judicial declaration of nullity of marriage of his previous
marriage, he contracted a second marriage. Juanito died. The
tw o wives scrambled over a piece of Juanito’s estate.
Claiming that everything should go to her, the second w ife
filed an action in court for the collection of a sum of money. In
support of his position, the second wife assailed the validity of
the first marriage for lack of marriage license which was duly
established.
1. Art 43, what is forfeited is the share of the party in
bad faith in the net profits. In 148, the entire share is
forfeited
2. In 43, order of forfeiture is different (common
children only) In 147 and 148 (common children and
descendants)
3. In 43, second in line is the descendants of the guilty
spouse, in 147 and 148 party's respective
descendants

Issue: Who gets to own the estate left by Juanito?

Structure of Property Relations:
The Supreme Court ruled that the first marriage is void for lack Article 147 Article 148
of marriage license but it does not mean to say that the Wages and Co-owned Exclusive
second marriage is valid just because the first marriage is Salaries even if earned
void, because under Art 40, without the judicial declaration of by one of them
nullity of marriage, the subsequent shall likewise be void for only
being bigamous. Susan Yi therefore cannot claim to be the Properties Exclusive but Exclusive but
legal wife. acquired using needs proof does not need
exclusive that the money proof
Since the second marriage is void for being bigamous, the
money used
property regime should be governed by Art 148 (co-
ownership). Under 148, only the properties which are acquired
exclusively
by the parties through their actual joint contribution. In this belongs to the
case, the property left by Juanito consists of his salary, spouse who
acquired by Juanito alone. Susan Yi therefore got nothing. purchases the
property
The Supreme Court made a mistake because the marriage Properties Co-ownership Co-ownership
between Juanito and Susan Yi is exactly the marriage acquired by without need to but there must
contemplated under Article 40 because the subsequent both through prove actual be proof of
marriage was entered into without the benefit of the judicial their joint effort participation actual
declaration of nullity of the first marriage. Hence, the property
or industry participation in
regime should have been liquidated according to the rules of
the acquisition
either Art 102 or 129 pursuant to Art 43.
Spouse acted Share in the If married –
in bad faith net profits is salaries and
Structure of Property Relations under Article 148:
forfeited wages during
1. Wages and salaries are exclusive to the party who the
earned them cohabitation
belong to the
2. Properties acquired using exclusive money are ACP or CPG of
exclusive the valid
marriage
3. Only properties acquired through actual joint
contribution in money, property and industry can If unmarried –
form part of the co-ownership rule on
forfeiture
4. It is indispensable that the party should show proof Income and Exclusive Exclusive
of actual contribution fruits of the
separate
5. If the party who acted in bad faith is validly married - exclusive
salaries and wages during the cohabitation belong to properties
the ACP or CPG of the valid marriage
- Any property acquired during cohabitation -
belongs to the ACP or CPG existing in the valid
marriage
- If the party who acted in bad faith is not married
- share in the properties is forfeited

Distinction: Art 43 from Art 147 and 148: