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Coverage (PLAC3E)
E FFECT AND A PPLIC AT ION OF 1. Presidential Decrees;
L AWS 2. Laws which refer to all statutes, including local and
private laws;
The Civil Code took effect on August 30, 1950. 3. Administrative Rules and Regulations where purpose
is to enforce/implement existing law pursuant to a valid
E FFECT IVIT Y OF L AWS (A RT .2) delegation;
4. Charter of a City;
5. Circulars issued by the Monetary Board where
General Rule: Laws take effect after 15 days following purpose is not merely to interpret but to fill in the
the completion of its publication in the Official Gazette or details of the Central Bank Act;
in a newspaper of general circulation (EO No. 200). 6. Circulars and Regulations which prescribe a penalty
for its violation (People vs. Que Po Lay, G.R. No. L-
The law shall take effect on the 16th day because in 6791, March 29, 1954);
counting the period, the first day is excluded and the last 7. Executive Orders (Tañada vs. Tuvera G.R. No. L-
day included (Art. 13, NCC). 63915, December 29, 1986).
No one shall be charged with notice of the statute’s Publication not Required (I – L)
provision until publication is completed and the 15 day 1. Interpretative regulations and those internal in nature,
period has expired. regulating only the personnel of the administrative
agency.
Exception: Unless otherwise provided by the law (EO 2. Letters of Instructions issued by administrative
No. 200). superiors on rules/guidelines to be followed by
subordinates in the performance of their duties
The exception refers to the “15-day period” only and not (Tañada vs. Tuvera, ibid).
the requirement of publication. Publication is
indispensable, absence of which will not render the law Date of effectivity of Municipal Ordinances is NOT
effective (Tañada v. Tuvera G.R. No. L-63915, covered by this rule but by the Local Government Code
December 29, 1986). (Tañada vs. Tuvera, supra).
3. Will bind all future cases with identical facts, until 5. Calendar week – Sunday to Saturday;
reversed by SC. 6. Week – Count 7 days as indicated, not necessarily
Sunday to Saturday.
Judicial decisions, although in themselves not laws,
assume the same authority as the statute itself (People To count the period, first day is excluded, last day is
vs. Licera G.R. No. L-39990, July 2, 1975). included.
No publication required, binding on parties after the lapse Exception: Rule does NOT apply to computation of age;
of appeal period, and will bind all future cases with each year is counted based on birth anniversary.
identical facts, until reversed by SC.
Policy if the Last Day is a Sunday or a Legal Holiday
The application or interpretation placed by the Court 1. If the act to be performed within the period is
upon a law is part of the law as of the date of enactment prescribed or allowed (a) by the Rules of Court, (b) by
of said law because the Supreme Court’s interpretation an order of the court, or (c) by any other applicable
merely establishes the contemporaneous legislative statute, the last day will automatically be considered
intent that the construed law purports to carry into effect the next working day.
(People v. Licera G.R. No. L-39990, July 2, 1975). 2. If the act to be performed within the period arises from
a contractual relationship, the act will become due
HOWEVER, when a doctrine is overruled and a different despite the fact that the last day falls on a Sunday or
view is adopted, the new doctrine should be applied Holiday.
prospectively and should not prejudice parties who relied
on the old doctrine (People v. Jabinal G.R. No. L-30061, P ROVISION ON C ONFLICT OF
February 27, 1974).
L AW (A RT S .14-17)
C USTOMS (A RT S .11 AND 12) 1. Penal Laws and laws of public security (Article
14): Territoriality rule governs regardless of the
Customs nationality but subject to principles of international law
Rules of conduct formed by repetition of acts uniformly and to treaty stipulations.
observed as a social rule. They are legally binding and
obligatory. 2. Laws relating to family rights and duties, or to
General Rule: Customs must be proved as a fact status, condition and legal capacity of persons
according to the rules of evidence. (Article 15): Nationality rule applies regardless of their
place of residence.
Exception: A court may take judicial notice of a custom if
there is already a decision rendered by the same court Exception: Divorce validly obtained abroad by alien
recognizing the custom. spouse capacitating him or her to remarry, the Filipino
spouse shall have capacity to remarry under Philippine
Requisites to Make a Custom an Obligatory Rule: law. (Article 26 (2) Family Code)
(P2OT)
1. Plurality or repetition of acts; 3. Laws on property (real and personal)
2. Practiced by the great mass of the social group;
3. The community accepts it as a proper way of acting, Lex Rei Sitae: The law of the country where the
such that it is considered as obligatory upon all; property is situated shall govern property transactions.
4. Continued practice for a long period of time. (Article 16 (1))
4. Laws on forms and solemnities Rules on Personal Law: Domiciliary Rule and
Nationality Rule Distinguished
Lex Loci Celebrationis: Forms and solemnities of Domiciliary Rule Nationality Rule
contracts, wills, and other public instruments (extrinsic
Basis for determining Basis for determining
validity) shall be governed by the laws of the country in
personal law of an personal law is his
which they are executed (Article 17).
individual is his DOMICILE CITIZENSHIP
Exceptions:
a. Marriage between Filipinos solemnized abroad shall 5. Renvoi Doctrine: Occurs when a citizen of another
be void though valid abroad when void under country dies as a domiciliary of another country. Where
Philippine laws. (Article 26(1) FC) the conflict rules of the forum refer to a foreign law,
b. Intrinsic Validity of Contracts: Validity is determined and the latter refers it back to the internal law, the law
by the following rules: of the forum shall apply.
i. The law stipulated by the parties shall be applied;
ii. In default thereof, and the parties are of the same Transmission Theory: If the foreign law refers it to a
nationality, their national law shall be applied; third country, the said country’s law shall govern.
iii. If the parties are not of the same nationalities, the
law of the place of the perfection of the obligation 6. Doctrine of Processual Presumption: The foreign
shall govern its fulfillment; law, whenever applicable, should be proved by the
iv. If the above places are not specified and they proponent thereof; otherwise, such law shall be
cannot be deduced from the nature and presumed to be exactly the same as the law of the
circumstances of the obligation, then the law of forum.
the passive subject shall apply.
Rule on Prohibitive Laws
Lex Loci
Lex Nationalii Lex Rei Sitae
Celebrationis General Rule: Prohibitive laws concerning persons, their
Art. 15, CC Art. 16, CC Art. 17, CC acts or property, and laws which have for their object
Citizenship is the Law of the place Law of the place public order, public policy or good customs are NOT
basis forwhere the where the rendered ineffective by laws, or judgments promulgated
determining the property is contract was or by determinations or conventions agreed upon in
personal law situated is the executed is the foreign country. (Art. 17(3))
applicable basis for basis for
determining law determining law Exception: Art. 26, par. 2 Family Code (ex. Divorce
applicable applicable Law)
Covers family Covers both real Covers only the
rights and duties, and personal forms and
status, condition property solemnities H UMAN R EL AT IONS
and legal (extrinsic validity)
capacity of ABUSE OF RIGHT (Art. 19)
persons. Elements: (LEP)
Exception: Exceptions: Exceptions: 1. Existence of a legal right or duty;
Art. 26, par. 2 of (CIAO) 1. Art. 26, par. 1 2. Which is exercised in bad faith;
Family Code a. Capacity to of Family Code 3. For the sole intent of prejudicing or injuring another.
succeed; 2. Intrinsic
b. Intrinsic validity of Doctrine of Violenti Non Fit Injuria (to which a person
validity of the contracts assents is not esteemed in law as injury)
will; Refers to self-inflicted injuries or to the consent to injury
c. Amount of which precludes the recovery of damages by one who
successional has knowingly and voluntarily exposed himself to danger,
rights; even if he is not negligent in doing so (Nikko Hotel Manila
d. Order of Garden, et all vs. Roberto Reyes (Amay Bisaya) G.R.
succession. No. 154259, Feb. 28, 2005).
Damnum Absque Injuria (damage without injury) Accion in Rem Verso and Solutio Indebiti
A person who exercises his legal right does no injury. Solutio Indebiti
HOWEVER, it cannot be said that a person exercises a Accion In Rem Verso
(Art. 2154)
right when he unnecessarily prejudices another or
It is not necessary that the
offends morals or good customs.
payment was made by
mistake, payment could Payment was made by
When damages result from a person’s exercise of rights,
have been made knowingly mistake is an essential
it is damnum absque injuria (ABS-CBN v. Republic
and voluntarily but element to maintain the
Broadcasting Corp. G.R. No. 128690, January 21, 1999).
nevertheless, there would action for recovery.
be recovery of what has
ACTS CONTRARY TO LAW (Art. 20)
been paid.
Every person who, contrary to law, willfully or negligently
causes damage to another, shall indemnify the latter for
the same. Requisites: (JELA)
1. Enrichment is without just or legal ground
ACTS CONTRA BONUS MORES (Art. 21) 2. Defendant has been enriched;
3. Plaintiff has suffered a loss; and
Elements: (L-C-I) 4. He has no other action based on contract, quasi–
1. There is a legal act; contract, crime or quasi–delict.
2. But which is contrary to morals, good customs, public
order or public policy; and, For a more comprehensive discussion of Articles 19-35,
3. It is done with intent to injure. please see discussion thereof under Torts.
When is a child considered born: (Art. 41) from the strength and the age of the sexes, according to
the following rules:
General Rule: For civil purposes, the fetus is considered 1. If both were under the age of fifteen years, the older
born if it is alive at the time it is completely delivered from is deemed to have survived;
the mother’s womb. 2. If both were above the age sixty, the younger is
deemed to have survived;
Exception: If the fetus had an intra-uterine life of less 3. If one is under fifteen and the other above sixty, the
than 7 months, it is NOT deemed born if it dies within 24 former is deemed to have survived;
hours after its complete delivery from the maternal womb 4. If both be over fifteen and under sixty, and the sex be
(Article 41). different, the male is deemed to have survived, if the
sex be the same, the older;
Illustration: 5. If one be under fifteen or over sixty, and the other
Intra-uterine life When considered born between those ages, the latter is deemed to have
7 months or more Alive upon complete survived.
delivery
- regardless whether the JURIDICAL PERSONS (Art. 44 to 46)
child dies within 24 A juridical person is a being of legal existence
hours or not susceptible of rights and obligations, or of being the
Less than 7 months Alive upon complete subject of juridical relations (Roldan vs. Philippine
delivery AND at least 24 Veterans Board G.R. No. L-11973, June 30, 1959)
hours thereafter
Who are juridical persons:
The legitimacy or illegitimacy of a child attaches upon 1. State and its political subdivisions
conception (Continental Steel Manufacturing Corp. v. 2. Corporations for public interest - governed either by
Hon. Accredited Voluntary Arbitrator, et al., G.R. No. the Corporation Code or their special charters passed
182836, October 13, 2009). by the legislature.
How civil personality is extinguished Personality begins as soon as they have been
Civil personality is extinguished by death. The effect of constituted according to law
death upon the rights and obligations of the deceased is
determined by law, by contract and by will (Art. 42). 3. Corporations, partnerships and associations for private
interest
Presumption of survivorship
In case of doubt as to which of two or more persons Corporations are governed by the Corporation Code.
called to succeed each other died first: Their personality exist from the moment a certificate of
1. Whoever alleges the death of one prior to the other incorporation is granted to it from the Securities and
shall prove the same Exchange Commission (Sec. 19, Corporation Code)
2. In the absence of proof, the presumption is that the
parties died at the same time and there shall be no By a contract of partnership, two or more persons bind
transmission of rights from one another (Art. 43) themselves to contribute money, property or industry to
a common fund, with the intention of dividing the profits
Note: Article 43 applies when the case involves two or among themselves; or for the exercise of profession
more persons who are called to succeed each other. But (Art. 1767, NCC). Partnerships are governed by the
if the parties are not called to succeed each other, Rule contract between partners and the provisions of Art.
131, Sec. 3 (jj) of the Rules of Court applies. Both are to 1767 to 1867 of the Civil Code.
be applied only in the absence of facts. (Paras, p. 248)
C IT IZENSHIP AND D OMIC ILE
Rule 131 Section 3 (jj). That except for purposes of
succession, when two persons perish in the same
calamity, such as wreck, battle, or conflagration, and it is Citizenship
not shown who died first, and there are no particular It is the membership in a political community which is
circumstances from which it can be inferred, the more or less permanent in nature. Article IV of 1987
survivorship is determined from the probabilities resulting Philippine Constitution now governs the rule on
citizenship.
Modes of acquiring citizenship relations, as that of the wife arising from marriage, or the
1. Jus sanguinis – by blood, wherever he may be born relation of a parent and a child
2. Jus soli – by place of birth
3. Naturalization – artificial means (judicial or Requirements for the acquisition of new domicile
administrative) by which a state adopts an alien and (Romualdez v. RTC, Br. 7, Tacloban City, 226 SCRA
gives him imprint and endowment of a citizen of that 408, 415)
country 1. Bodily presence in a new locality – actual removal or
actual change of domicile
Domicile 2. Intention to remain therein (animus manendi)
For the exercise of civil rights and the fulfillment of civil 3. Intention to abandon the old domicile (animus non
obligations, the domicile of natural persons is the place of revertendi)
their habitual residence (Art. 50 NCC).
Rules for determining the domicile of juridical
Residence Domicile persons (Article 51):
Denotes a fixed permanent A. Get the domicile provided for in the law creating or
Indicates a place of abode, recognizing them or in their articles of agreement.
residence, which when
whether permanent or B. If not provided for, get the place:
absent, one has the
temporary 1. Where their legal representation is established.
intention of returning
There can be several There can only be one 2. Or where they exercise their principal functions.
places of residence place of domicile
No length of residence If the corporation has head office and with branches, the
It is residence coupled with domicile is where the head office is located. (Paras, p.
without intention of
intention to remain for an 366)
remaining will constitute
unlimited time
domicile
F AMIL Y C ODE
Elements of domicile
1. Physical presence in a fixed place
2. Intention to remain permanently in said place (animus The Family Code of the Philippines took effect on August
manendi) (Romualdez-Marcos vs. COMELEC, G.R. 3, 1988.
No. 119976 September 18, 1995).
M ARR IAGE
Kinds of domicile (Romualdez-Marcos vs. COMELEC,
G.R. No. 119976 September 18, 1995)
1. Domicile of origin – Given by law to a person at birth Marriage
2. Domicile of choice – That which is voluntarily chosen A special contract of permanent union between a man
by a sui juris – as his more or less permanent home; and a woman entered into in accordance with law for the
that to which, whenever he is absent, he intends to establishment of conjugal and family life.
return. (Uytengsu v. Republic, 50 O.G. 4781, Oct.
1954) The Family Code emphasizes the permanent nature of
marriage, hailing it as the foundation of the family. It is
Note: Three basic rules on domicile of choice: this inviolability which is central to our traditional and
(Ugdoracion vs. COMELEC G.R. No. 179851, April 18, religious concepts of morality and provides the very
2008): bedrock on which our society finds stability (Malcampo-
a. A man must have a residence or domicile Sin vs. Sin, G.R. No. 137590 March 26, 2001).
somewhere;
b. Domicile, once established, remains until a new one In Republic v. Nolasco (G.R. No. 94053 March 17, 1993),
is validly acquired; and the Supreme Court stressed the strong need to protect
c. A man can have but one residence or domicile at “…the basic social institutions of marriage and the family
any given time. in the preservation of which the State has the strongest
d. Every sui generis may change his domicile. interest; the public policy here involved is of the most
fundamental kind. In Article II, Section 12 of the
3. Domicile by operation of law – attributes to a person a Constitution, there is set forth the following basic state
domicile independent of his own intention or actual policy: 'The State recognizes the sanctity of family life
residence, ordinarily resulting from legal domestic and shall protect and strengthen the family as a basic
autonomous social institution. The same sentiment has gives rise to liability as where there was financial
been expressed in the Family Code of the Philippines in damage, social humiliation, and moral seduction.
Article 149: 'The family, being the foundation of the
nation, is a basic social institution which public policy 1. Mere breach of promise to marry is not an actionable
cherishes and protects. Consequently, family relations wrong; but to formally set a wedding and go through all
are governed by law and no custom, practice or the preparations and publicity, only to walk out of it
agreement destructive of the family shall be recognized when the matrimony is about to be solemnized, is quite
or given effect. different. This is palpably and unjustifiably contrary to
good customs for which defendant must be held
Marriage and ordinary contract distinguished answerable in damages pursuant to Art. 21 NCC.
Marriage Ordinary Contract (Wassmer vs. Velez, No. L-20089, December 26,
Special contract Merely a contract 1964)
Social institution Merely a contract 2. Where a man’s promise to marry was the proximate
Governed by law on Governed by law on cause of giving herself unto him in sexual congress
marriage contracts and there is proof he had no intention of marrying her,
Not subject to stipulations the promise being a deceptive device, damages may
Generally subject to be awarded pursuant to Art. 21 NCC because of the
except in property
stipulations fraud and deceit behind it and the willful injury to her
relations
Minors may contract honor and reputation (Baksh vs. CA, G.R. No. 97336,
through their parents or February 19, 1993).
Legal capacity is required
guardians or in some
cases by themselves ESSENTIAL REQUISITES OF MARRIAGE: (LC)
1. Legal capacity of the contracting parties, who must be
Contracting parties must
only be two persons – one Two or more parties a male and a female
is a female and the other regardless of gender a. Eighteen years old or above
is a male b. Not under any impediment mentioned in Arts. 37 and
Parties can fix a period for 38 (Art. 5)
2. Consent freely given in the presence of a solemnizing
its efficacy to be
Permanent union ineffective after a few officer (Art. 2)
years No particular form required
Capable of intelligently understanding the nature and
Breach of obligations of consequences of the act
husband and wife does
not give rise to an action FORMAL REQUISITES OF MARRIAGE: (ALM)
for damages. The law Breach of ordinary 1. Authority of the solemnizing officer
provides penal and civil contracts gives rise to an 2. Valid Marriage License
sanctions such as action for damages 3. Marriage ceremony where the contracting parties
prosecution for adultery or appear before the solemnizing officer, with their
concubinage and personal declaration that they take each other as
proceedings for legal husband and wife in the presence of not less than two
separation. witnesses of legal age (Art. 3)
Can be dissolved only by Can be dissolved by
death or annulment, not mutual agreement and by Effects of noncompliance with the requisites
by mutual agreement other legal causes (Art. 4)
Essential Formal
Breach of promise to marry Void ab initio
General Rule: It is not by itself an actionable wrong Absence (ex: expired marriage license; one of
(Hermosisima vs. CA L-14628, September 30, 1960). the parties is below 18 years old at
One cannot seek specific performance to compel the time of the marriage)
marriage. Voidable Voidable
Defect
Exceptions: To be actionable, there must be another act (ex: consent
independent of the breach of promise to marry which obtained
The absence of two witnesses of legal age is merely an c. Acting within the limits
irregularity but the party responsible for the irregularity of the written authority
shall be civilly, criminally, and administratively liable. granted; and
Exceptions: Requisites:
1. Marriage in articulo mortis; a. The man and woman must have been living as
2. Marriage in remote places; husband and wife for at least five years before the
3. Marriage at a house or place designated by the parties marriage;
in a sworn statement to that effect, with the written b. The parties must have no legal impediment to marry
request of both parties to the solemnizing officer (Sta. each other;
Maria, M., Persons and Family Relations, 2010, p. c. The fact of absence of legal impediment between
140) the parties must be present at the time of marriage;
d. The parties must execute an affidavit before any
Note: This provision is only directory and the person authorized by law to administer oaths stating
requirement that the marriage be solemnized in a that they have lived together for at least five years
particular or a public place is not an essential requisite. (and are without legal impediment to marry each
(Sta. Maria, M., Persons and Family Relations, 2010, p. other); and
140) e. The solemnizing officer must execute a sworn
statement that he had ascertained the qualifications
Valid marriage license (Art. 9) of the parties and that he had found no legal
A formal requisite of marriage impediment to their marriage (Manzano v. Sanchez
G.R. No. MTJ–00–1329, March 08, 2001).
Issued by the local civil registrar of the city or municipality
where EITHER contracting party habitually resides. The 5–year period should be computed on the basis
of cohabitation as husband and wife where the only
The license is valid in any part of the Philippines for 120 missing factor is the marriage contract to validate the
days from date of issue, which is the date when the local union (ex: if both cohabited at the age of 17,
civil registrar signed the license. counting starts when parties reach 18 years).
Automatically cancelled at the expiration of the period if This 5–year period should be the years immediately
contracting parties have not made use of it (Art. 20) before the day of the marriage and it should be a
period of cohabitation characterized by
Exceptions to the marriage license requirement EXCLUSIVITY – meaning no legal impediment was
(MARCO): present at any time within the 5 years and
1. Among Muslims or members of ethnic cultural CONTINUITY – that is unbroken (Republic v. Dayot,
communities solemnized in accordance with their G.R. No. 175581, March 8, 2008).
customs, rites and practices (Art. 33)
5. Solemnized outside the Phil. where no marriage
Exception only applies to Muslims and members of the license is required by the country where they were
ethnic groups of the Cordillera Autonomous Region solemnized (Art. 26 par. 1)
because they have a separate law—Code of Muslim
Personal Laws of the Philippines and Organic Act of Solemnizing of a marriage involving a foreign
the Cordillera Autonomous Region (RA 6766). Other contracting party in the Philippines (Art. 21)
ethnic groups are still governed by the Family Code When either or both parties are foreign citizens, they
(Sta. Maria, M., Persons and Family Relations, 2010, must first submit a CERTIFICATE OF LEGAL CAPACITY
p. 187). TO MARRY issued by their diplomatic/consular officials
before marriage license can be obtained.
2. In articulo mortis (Art. 27)
Marriage remains valid even if spouse at the point of Ratio: A certificate of legal capacity is necessary
death subsequently survives (Art. 27) because the Philippines, insofar as marriage is
3. In remote place concerned, adheres to the national law of the contracting
Residence of either party is so located that there is no parties with respect to their legal capacity to contract
means of transportation to enable them to personally marriage. Without this certification of legal capacity, the
appear before the local civil registrar (Art. 28) local civil registrar will not issue the marriage license
4. Marriage of people who have previously cohabited for (Sta. Maria, M., Persons and Family Relations, 2010, p.
at least 5 years /ratification by cohabitation (Art. 34) 151).
Exception: Marriage of both foreign citizens will be children born during such union, and the mention of such
solemnized by their country’s consul-general assigned in nuptial in subsequent documents.
the Philippines, if their country’s law allows the same
Marriage
Stateless persons or refugees from other countries shall Marriage license certificate/marriage
submit an affidavit stating circumstances to show contract
capacity to contract marriage before a marriage license Formal requisite; Not essential for the
can be obtained (Art. 21 par. 2). validity of the marriage;
Absence renders Best evidence to prove
Marriage certificate (Art. 22) marriage void ab initio existence (not validity)
Best documentary evidence of the existence of a except in the cases of marriage
marriage (Tenebro vs. CA G.R. No. 150758 February 18, provided under Art. 27
2004). to 34
Issued by the local civil Issued by the person
A mere photostat copy of a marriage certificate is a registrar (Art. 19) solemnizing the
worthless piece of paper (Vda. De Chua vs. CA, G.R. No. marriage (Art. 23)
116835, March 5, 1998) but if such photostat copy Issued before the Issued after the
emanated from the Office of the Local Civil Registrar and solemnization of the solemnization of the
duly certified by the local civil registrar as an authentic marriage marriage
copy of the records in his office, such certified photostat
copy is admissible as evidence (Sta. Maria, M., Persons Note: Marriage certificate is NOT an essential requisite
and Family Relations, 2010, p. 154). of marriage and should NOT be confused with a
marriage license.
Testimony of one of the parties to the marriage,
witnesses or solemnizing officer is admissible to prove
the fact of marriage (Balogbog v. CA, G.R. No. 83598, M ARR IAGE C ELEBR AT ED
March 7, 1997).
O UTSIDE T HE P HILIPP INES
It may also be proved by parol evidence (Sta. Maria, M., (A RT .26)
Persons and Family Relations, 2010, p.156).
VALIDITY OF MARRIAGE
Mere cohabitation is not direct proof of marriage, and it General Rule: Where one or both parties in the marriage
must be proved by proper documents or by oral are citizens of the Philippines, the foreign marriage is
testimony in case they have been lost (Sta. Maria, M., valid in this country if solemnized in accordance with the
Persons and Family Relations, 2010, p.158). laws of the country of celebration (Art. 26).
Once the presumption of marriage arises, other evidence In case a Filipino contracts a foreign marriage which is
may be presented in support thereof. The evidence need null and void in the place where it was solemnized, the
not necessarily or directly establish the marriage but same shall also be null and void in the Philippines even if
must at least be enough to strengthen the presumption of such was valid if celebrated under Philippine laws.
marriage. Every intendment of law leans toward
legitimizing marriage (Delgado vda de De la Rosa v. If both are foreigners, lex loci celebrationis applies.
Heirs of Marciana vda de Damian, GR No 155733,
January 27, 2006). Exceptions: Foreign marriages shall not be recognized
in the Philippines if: (B2MA-PIP)
The Supreme Court rules in (Trinidad vs. CA, G.R. No. 1. Contracted by a national who is below 18 years of age
118904. April 20, 1998) that when the question of (Art. 35(1))
whether a marriage has been contracted arises in
litigation, said marriage may be proven by relevant Note: This exception should be construed as referring
evidence. To prove the fact of marriage, the following to a situation where the marriage abroad is between a
would constitute competent evidence: the testimony of a Filipino and a Filipina and not between a Filipino or
witness to the matrimony, the couple’s public and open Filipina and an alien married in the alien’s state where
cohabitation as husband and wife after the alleged he or she (the alien), though below 18 years of age, is
wedlock, the birth and the baptismal certificates of capacitated to marry (Sta. Maria, M., Persons and
Family Relations, 2010, p. 165). been severed (Felicitas Amor-Catalan v. CA, G.R. No.
167109, February 6, 2007).
2. Bigamous or polygamous except as provided in Art.
41, FC (Art. 35(4)) Article 26(2) applies where parties were Filipino
3. Contracted through mistake of one party as to the citizens at the time of the marriage was celebrated,
identity of the other (Art. 35(5)) and later on, one of them becomes naturalized as a
4. Contracted following the annulment or declaration of foreign citizen and obtains a divorce decree: the
nullity of a previous marriage but before partition reckoning point is their citizenship at the time the valid
(Art.35(6)) divorce is obtained abroad by the alien spouse
5. Void due to psychological incapacity (Art. 36) capacitating the latter to remarry (Rep. v. Obrecido III,
6. Incestuous (Art.37) G.R. No. 154380, Oct. 5, 2005).
7. Void for reasons of public policy (Art. 38)
In Edgar San Luis v. Felicidad Sagalongos (G.R. No.
Note: The existence of the pertinent provision of the 134029, February 6, 2007), it was held that a Filipino
foreign marriage law must be shown to prove a foreign who had been divorced by his alien spouse abroad
marriage. may NOT validly remarry in the Philippines if the
marriage was solemnized BEFORE the Family Code
It is well-settled in our jurisdiction that our courts cannot took effect. It was noted that there is no need to
take judicial notice of foreign laws. Like any other facts, retroactively apply Art. 26 paragraph 2 of the Family
they must be alleged and proved. Australian marital laws Code, since there is sufficient jurisprudential basis
are not among those matters that judges are supposed to allowing the Court to rule in the affirmative.
know by reason of their judicial function. The power of
judicial notice must be exercised with caution, and every There must be a showing that the divorce decree gave
reasonable doubt upon the subject should be resolved in the foreigner spouse legal capacity to remarry because
the negative (Garcia vs. Recio, G.R. No. 138322 October in some jurisdictions, remarriage may be limited or
2, 2001). prohibited (Bayot v. Bayot, G.R. No. 155635 & 163979,
November 7, 2008).
DIVORCE
General rule: Divorce is not allowed in the Philippines The legislative intent is for the benefit of the Filipino
spouse, by clarifying his or her marital status, settling
Exceptions: the doubts created by the divorce decree. Essentially,
1. Between 2 aliens – if valid in their national laws even if the second paragraph of Article 26 of the Family Code
marriage was celebrated in the Philippines provided the Filipino spouse a substantive right to have
2. Between a Filipino and an alien – if (a) there is a valid his or her marriage to the alien spouse considered as
marriage celebrated between a Filipino citizen and a dissolved, capacitating him or her to remarry (Corpus
foreigner; and (b) a valid divorce according to the v. Sto. Tomas, G.R. No. 186571, August 11, 2010).
national law of the foreigner is obtained abroad by the
alien spouse capacitating him or her to remarry (Art.
26[2])). V OID M ARR IAGES (A RT .35)
The Filipino spouse should likewise be allowed to KINDS OF VOID MARRIAGES (LAPIS):
remarry as if he or she was a foreigner at the time of I. Those contrary to law or public policy
the solemnization of the marriage. To rule otherwise II. Due to absence of essential or formal requisites
would sanction absurdity and injustice (Republic v. III. Due to psychological incapacity
Orbecido III G.R. No. 154380 October 5, 2005). IV. Incestuous marriages
V. Void subsequent marriages
Party pleading it must prove divorce as a fact and
demonstrate its conformity to the foreign law allowing Note: As a general rule, good faith and bad faith are
it, which must be proved as courts cannot take judicial immaterial in determining whether or not a marriage is
notice of foreign laws. If a valid divorce decree has null and void. Nonetheless, the party who knew that he or
been obtained abroad, there is no more need to file an she was entering a void marriage before its
action to nullify the marriage. The plaintiff has no more solemnization may be held liable for damages by the
personality to sue since the marriage bond has already other contracting party under Art,19, 20 and 21 of the
Civil Code.
obtaining such judicial declaration is guilty of bigamy. 5. Marriages contracted through mistake of one of the
This principle applies even if the earlier union is parties as to the physical identity of the other
characterized by statute as “void” (Manuel vs. People, 6. Subsequent marriages that are void under Article 53 of
G.R. No. 165842, November 29, 2005). the Family Code
Interestingly, in Lucio Morigo v. People, (GR No. 145226, General rule: A marriage contracted by any person
Feb. 6, 2004), the SC ruled that a judicial declaration of during the subsistence of a previous valid marriage
nullity is NOT NEEDED where NO MARRIAGE shall be null and void (Gomez v. Lipana, GR. No. L–
CEREMONY at all was performed by a duly authorized 23214, June 30, 1970).
solemnizing officer, as where the parties merely signed a
marriage contract on their own without the presence of Elements of bigamy (Art. 349, RPC):
the solemnizing officer. a. The offender has been legally married.
b. The marriage has not been legally dissolved or in
The requirement for a declaration of absolute nullity of a case his or her spouse is absent, the absent spouse
marriage is also for the protection of the spouse who, could not yet be presumed dead according to the
believing that his or her marriage is illegal and void, Civil Code.
marries again. With the judicial declaration of the nullity c. The offender contracts a second or subsequent
of his or her marriage, the person who marries again marriage.
cannot be charged with bigamy. A judicial declaration of d. The second or subsequent marriage has all the
nullity is required before a valid subsequent marriage can essential requisites for validity.
be contracted; or else, what transpires is a bigamous .
marriage, reprehensible and immoral. (Teves vs. People, Exception: Before the celebration of the subsequent
G.R. No. 188775, August 24, 2011). marriage, a declaration of presumptive death is
obtained after complying with the following
For purposes other than remarriage, such as but not requirements: (JAB)
limited to determination of heirship, legitimacy or i. Judicial declaration of presumptive death; present
illegitimacy of a child, settlement of estate, dissolution of spouse must file a summary proceeding for the
property regime or criminal case, other evidence is declaration of the presumptive death of the
acceptable to show the nullity of the marriage and the absentee without prejudice to the latter’s
court may pass upon the validity of marriage so long as it reappearance.
is essential to the determination of the case (Niñal vs. ii. Absence of the other spouse must have been for
Bayadog, G.R. No. 133778, March 14, 2000). 4 consecutive years, or 2 years where there was
danger of death under circumstances laid down in
Collateral attack of marriage is allowed. Art. 391 of the NCC;
iii. Well-founded belief of the present spouse who
In a case for concubinage, the accused need not present wishes to marry that absent spouse is already
a final judgment declaring his marriage void, for he can dead; and
adduce evidence in the criminal case of the nullity of his
marriage other than proof of a final judgment declaring There is no well-founded belief that the absent
his marriage void (Beltran vs. People, G.R. No. 137567, spouse is already dead when the present party
June 20, 2000). fails to conduct a diligent search for the missing
party (Republic v. Nolasco, G.R. No. 94053,
I. VOID MARRIAGES DUE TO ABSENCE OF ANY OF March 17, 1993).
THE ESSENTIAL OR FORMAL REQUISITES: (BB–
LAPIS) Note: This is intended to protect the present
1. Contracted by any party below 18 years of age even spouse from criminal prosecution for bigamy
with parental consent under Art 349 of the Revised Penal Code.
2. Bigamous or polygamous marriages except Art 41 However, if the bigamous marriage was
3. Solemnized WITHOUT a license except as otherwise committed abroad, the guilty party cannot be
provided criminally prosecuted for bigamy in the Philippines
4. Solemnized by any person NOT LEGALLY authorized as our penal statutes are territorial in nature.
to perform marriages UNLESS one or both of the
parties believed in good faith that the solemnizing Exception to the exception: If both spouses of the
officer had the legal authority to do so subsequent marriage acted in bad faith, said
marriage shall be void ab initio and all donations II. PSYCHOLOGICAL INCAPACITY (Art. 36)
made by one in favor of the other are revoked by
operation of law (Art. 44). No less than a mental (not physical) incapacity that
causes a party to be truly incognitive of the basic marital
Effect of reappearance of absent spouse: covenants that concomitantly must be assumed and
discharged by the parties to the marriage. Its meaning is
General rule: The subsequent bigamous marriage confined to the most serious cases of personality
under Article 41 remains valid despite reappearance disorders clearly demonstrative of an utter insensitivity or
of the absentee spouse. inability to give meaning and significance to the marriage.
This psychological condition must exist at the time the
Exception: Subsequent marriage is automatically marriage is celebrated (Santos vs. CA, G.R. No. 112019,
terminated if the reappearance was recorded in a January 4, 1995).
sworn statement in the civil registry of the residence
of the parties to the subsequent marriage at the Psychological incapacity
instance of any interested person with due notice to It is the downright incapacity or inability to take
said spouses, without prejudice to the fact of cognizance of and to assume the basic marital
reappearance being judicially determined in case obligations. The burden of proving psychological
such fact is disputed. incapacity is on the plaintiff. The plaintiff must prove that
the incapacitated party, based on his or her actions or
Exception to the exception: If there was a previous behavior, suffers a serious psychological disorder that
judgment annulling or declaring the first marriage a completely disables him or her from understanding and
nullity, the subsequent bigamous marriage remains discharging the essential obligations of the marital state.
valid. The psychological problem must be grave, must have
existed at the time of marriage, and must be incurable
Notes: If the absentee reappears, but no step is (Kalaw v. Fernandez, G.R. No. 166357, September 19,
taken to terminate the subsequent marriage either 2011).
by affidavit or by court action, the absentee’s mere
reappearance even if made known to the spouses in In Marable v. Marable, G.R. No. 178741, January 17,
the subsequent marriage will not terminate such 2011, the Supreme Court ruled that “the term
marriage (SSS v. Bailon, G.R. No 165545, March ‘psychological incapacity’ to be a ground for the nullity of
24, 2006). marriage under Article 36 of the Family Code, refers to a
serious psychological illness afflicting a party even before
By express provision of law (Art. 247, FC), the the celebration of the marriage. These are the disorders
judgment of the court in a summary proceeding shall that result in the utter insensitivity or inability of the
be immediately final and executory. As a matter of afflicted party to give meaning and significance to the
course, it follows that no appeal can be had of the marriage he or she has contracted. Psychological
trial court’s judgment in a summary proceeding for incapacity must refer to no less than a mental (not
the declaration of presumptive death of an absent physical) incapacity that causes a party to be truly
spouse under Article 41 of the Family Code. It goes incognitive of the basic marital covenants that
without saying, however, that an aggrieved party concomitantly must be assumed and discharged by the
may file a petition for certiorari to question abuse of parties to the marriage.”
discretion amounting to lack of jurisdiction. Such
petition should be filed in the Court of Appeals in Requisites of psychological incapacity: (JIG)
accordance with the Doctrine of Hierarchy of Courts 1. Juridical Antecedence – Must be rooted in the history
(Republic vs. Tango G.R. No. 161062 July 31, of the party antedating the marriage, although the overt
2009). manifestations may emerge only after the marriage;
and
Note: Enumeration in Art 35 is NOT exclusive. Other 2. Incurability – Must be incurable or, even if it were
VOID marriages include: otherwise, the cure would be beyond the means of the
1. Marriages in a play, drama, or movie party involved;
2. Marriages between two boys and two girls 3. Gravity – must be grave/serious such that the party
3. Marriages in jest would be incapable of carrying out the ordinary duties
4. Common law marriages required in a marriage (Santos vs. CA, G.R. No.
112019, January 4, 1995).
In Marcos v. Marcos (GR. NO. 136490, October 19, 2. Step–parents & step children
2000), the SC held that psychological incapacity may be 3. Parents–in–law & children–in–law
established by the totality of the evidence presented. The 4. The adopting parent & the adopted child
facts alleged in the petition and the evidence presented, 5. The surviving spouse of the adopting parent & the
considered in totality, should be sufficient to convince the adopted child
court of the psychological incapacity of the party 6. The surviving spouse of the adopted child & the
concerned (Bernardino S. Zamora vs. CA, G.R. No. adopter
141917, February 7, 2007). 7. Adopted child & a legitimate child of the adopter
8. Parties where one, with the intention to marry the
There is NO REQUIREMENT that the person sought to other, killed the latter’s spouse, or his/her spouse.
be declared psychologically incapacitated should be 9. Adopted children of the same adopter
personally examined by a physician or psychologist as a Note: There is no need for conviction in a criminal
condition sine qua non to arrive at such declaration. It case of the guilty party. The fact of killing committed by
can be proven by independent means that one is one of the parties to the marriage can be proved in a
psychologically incapacitated; there is no reason why the civil case.
same should not be credited (Republic of the Philippines
vs. Laila Tanyag-San Jose and Manolito San Jose, G.R. The following can now marry each other: (LSG-AC2)
No. 168328, February 28, 2007). 1. Brother–in–law and sister–in–law
2. Stepbrother and stepsister
Psychological incapacity is not meant to comprehend all 3. Guardian and ward
possible cases of psychoses. The fourth guideline in 4. Adopted and illegitimate child, parents and relatives by
Molina requires that the psychological incapacity as consanguinity or affinity of the adopter;
understood under Art. 36 (FC) must be relevant to the 5. Parties who have been convicted of adultery or
assumption of marriage obligations, not necessarily to concubinage
those not related to marriage, like the exercise of a 6. Collateral relatives by the half blood.
profession or employment in a job (Tongol vs. Tongol,
G.R. No. 157610, October 19, 2007). Determination if two persons are relatives up to the
4th civil degree:
Final judgment denying a petition for nullity on the ground 1. Consider the nearest and immediate common
of psychological incapacity bars a subsequent petition for ascendant
declaration of nullity on the ground of lack of marriage 2. Count the number of relatives from one of them to the
license. There is res judicata (Mallion vs. Alcantara, G.R. common ascendant and from the common ascendant
No. 141528, October 31, 2006). to the other one.
In petitions for the declaration of nullity of marriage, the Relationship by consanguinity is in itself not capable of
burden of proof to show the nullity of marriage lies with dissolution. Hence, the mere fact that a common
the plaintiff. Unless the evidence presented clearly ascendant, a grandfather for example, died does not
reveals a situation where the parties, or one of them, sever the blood relationship of first cousins.
could not have validly entered into a marriage by reason
of a grave and serious psychological illness existing at Two views on termination of marriage on the “affinity
the time it was celebrated, we are compelled to uphold prohibition”
the indissolubility of the marital tie (Republic v. Galang, a. Relationship by affinity terminates with the termination
G.R. No. 168335, June 6, 2011). of the marriage whether there are children or not in the
marriage.
III. INCESTUOUS MARRIAGES, WHETHER THE b. Relationship by affinity is dissolved if one of the
RELATIONSHIP IS LEGITIMATE OR ILLEGITIMATE, spouses dies and the spouses have no living issues or
BETWEEN (Art. 37): children; it does not cease if there are living issues or
1. Ascendants & Descendants of any degree; children of the marriage ‘in whose veins the blood of
2. Brothers & Sisters whether full or half blood the parties are commingled, since the relationship of
affinity was continued through the medium of the issue
IV. THOSE CONTRARY TO PUBLIC POLICY of marriage (Sta. Maria, M., Persons and Family
CONTRACTED BETWEEN (Art. 38): (CS-PASS-AKA) Relations, 2010, p. 251-253).
1. Collateral blood relatives whether legitimate or
illegitimate up to the 4th civil degree
1. Provide for the support of the spouses and the custody Delivery shall in no way prejudice the ultimate
and support of common children successional rights of the children accruing upon the
2. Give paramount consideration to the moral and death of either or both parents
material welfare of the said children and their choice of
the parent with whom they wish to remain. The value of the properties received shall be
3. Provide for appropriate visitation rights. (Art. 49, FC) considered as advances.
Visitation rights flow from the natural right of both parents 3. Registration of the entry of judgment granting petition
to each other’s company. There being no such parent– for declaration of absolute nullity or annulment in the
child relationship between them, Gerardo has no Civil Registry where the marriage was celebrated and
demandable right to visit the child of Mario with Theresa in the Civil Registry of the place where the FC was
(Concepcion vs. CA GR. No. 12345, August 31, 2005). located.
4. Registration of approved partition and distribution of
Decision on the nullification of the marriage properties of the spouses in the proper Registry of
No judgment shall be based upon stipulation of facts or Deeds where the real properties are located.
confession of judgment (Art. 48 par. 2).
Note: The rule applies to Legal Separation.
Stipulation of facts
An admission by both parties made in court agreeing to Effects of nullity
the existence of the act constituting the ground for 1. Either of the former spouses may marry again after
annulment or for the declaration of nullity. complying with the requirements of Art. 52 (Art. 53).
2. On Children (Art. 54)
Confession of judgment a. Those conceived or born before the judgment or
The admission made in court by the respondent annulment or absolute nullity of the marriage under
admitting fault as invoked by the plaintiff to sever the Art. 36 has become final and executory, shall be
marriage ties (Sta. Maria, M., Persons and Family considered legitimate.
Relations, 2010, p. 319). b. Those conceived or born of the subsequent
marriage under Art. 53 shall likewise be legitimate.
If the defendant spouse fails to answer the complaint, the
court CANNOT declare him or her in default; instead, it In both instances under Articles 40 and 45, the marriages
should order the public prosecutor to determine if are governed either by absolute community of property or
collusion exists between the parties (Section 6, Rule 18 conjugal partnership of gains unless the parties agree to
of the Revised Rules of Court; Sec. 13 (b); Supreme a complete separation of property in a marriage
Court En Banc Resolution A.M. 02-11-10-SC). settlement entered into before the marriage. Since the
property relations of the parties is governed by absolute
If aside from a stipulation of facts or a confession of community of property or conjugal partnership of gains,
judgment, sufficient evidence was presented, the court there is a need to liquidate, partition and distribute the
may render a judgment annulling the marriage (Ocampo properties (Dino v. Dino, G.R. No. 178044, January 19,
v. Florenciano, GR. No. L–13553, February 23, 1960). 2011).
EXCLUSIVE GROUNDS FOR LEGAL SEPARATION: Sexual perversion includes engaging in such behavior
(Art. 56) (PAA-ID-LAMBS) not only with third persons but also with the spouse
1. Repeated physical violence or grossly abusive (Sta. Maria, M., Persons and Family Relations, 2010,
conduct directed against the petitioner, a common p. 359).
child, or a child of the petitioner
2. Attempt of the respondent to corrupt or induce the Note: Mere preponderance of evidence will suffice to
petitioner, a common child, or a child of the petitioner, prove the existence of these grounds EXCEPT the 4th
to engage in prostitution, or connivance in such ground.
corruption or inducement
RA 9262 Anti-Violence Against Women and Children
Refers to prostitution only and irrespective of the age (March 8, 2004)
of the child (Sta. Maria, M., Persons and Family
Relations, 2010, p. 356) Acts of Violence:
1. Causing physical harm to the woman or her child;
The law does not give a cause of action to the 2. Threatening to cause the woman or her child physical
petitioner to file a case for legal separation on the harm;
ground that the respondent-spouse committed the 3. Attempting to cause the woman or her child physical
ground provided in Art. 55(3) upon his or her own child harm;
with another person. However, such act may be a 4. Placing the woman or her child in fear of imminent
cause to suspend or terminate, depending on the physical harm;
severity, the parental authority of the respondent over 5. Attempting to compel or compelling the woman or her
his own child pursuant to Art. 231 (2) and (4) of he child to engage in conduct which the woman or her
Family Code (Sta. Maria, M., Persons and Family child has the right to desist from or desist from conduct
Relations, 2010, p. 357). which the woman or her child has the right to engage
in, or attempting to restrict or restricting the woman's or
3. Attempt by the respondent against the life of the her child's freedom of movement or conduct by force
petitioner or threat of force, physical or other harm or threat of
physical or other harm, or intimidation directed against
The attempt on the life of the spouse must proceed the woman or child. This shall include, but not limited
from an evil design and not from any justifiable cause to, the following acts committed with the purpose or
like self-defense or from the fact that the spouse effect of controlling or restricting the woman's or her
caught the other in flagrante delicto having carnal child's movement or conduct:
knowledge with another man or woman (Sta. Maria, a. Threatening to deprive or actually depriving the
M., Persons and Family Relations, 2010, p. 359-360). woman or her child of custody to her/his family;
b. Depriving or threatening to deprive the woman or her
4. Final judgment sentencing the respondent to children of financial support legally due her or her
imprisonment of more than 6 years even if pardoned family, or deliberately providing the woman's
5. Drug addiction or habitual alcoholism of the children insufficient financial support;
respondent c. Depriving or threatening to deprive the woman or her
6. Lesbianism or homosexuality of the respondent child of a legal right;
7. Abandonment of the petitioner by the respondent d. Preventing the woman in engaging in any legitimate
without justifiable cause for more than 1 year profession, occupation, business or activity or
controlling the victim's own money or properties, or
There must be absolute cessation of marital relations, solely controlling the conjugal or common money, or
duties, and rights, with the intention of perpetual properties;
separation (Partosa-Jo vs. CA, G.R. No. 82606,
December 18, 1992). Abandonment implies total 6. Inflicting or threatening to inflict physical harm on
renunciation of duties. oneself for the purpose of controlling her actions or
decisions;
8. Physical violence or moral pressure to compel 7. Causing or attempting to cause the woman or her child
petitioner to change religious or political affiliation to engage in any sexual activity which does not
9. Contracting by respondent of a subsequent bigamous constitute rape, by force or threat of force, physical
marriage; and harm, or through intimidation directed against the
10. Sexual infidelity or perversion. woman or her child or her/his immediate family;
8. Engaging in purposeful, knowing, or reckless conduct, Failure of the husband to look for his adulterous wife is
personally or through another that alarms or causes NOT condonation to wife's adultery (Ocampo v.
substantial emotional or psychological distress to the Florenciano, G.R. No. L–13553, February 23, 1960).
woman or her child. This shall include, but not be
limited to, the following acts: The act of the husband in having sexual intercourse
a. Stalking or following the woman or her child in public with his wife in spite of his knowledge of the latter’s
or private places; infidelity is an act of implied condonation. A single
b. Peering in the window or lingering outside the voluntary act of sexual intercourse by the innocent
residence of the woman or her child; spouse after discovery of the offense is ordinarily
c. Entering or remaining in the dwelling or on the sufficient to constitute condonation (Bugayong vs.
property of the woman or her child against her/his Ginez, G.R. No. L-10033, December 28, 1956).
will;
d. Destroying the property and personal belongings or 2. Consent to commission of offense or act complained of
inflicting harm to animals or pets of the woman or
her child; and Consent is prior to the act; condonation comes after
e. Engaging in any form of harassment or violence; (People v. Schneckenburger, 73 Phil 413).
9. Causing mental or emotional anguish, public ridicule or There is consent when either of the spouses agreed to
humiliation to the woman or her child, including, but not or did not object, despite full knowledge, to the act
limited to, repeated verbal and emotional abuse, and giving rise to a ground for legal separation, before such
denial of financial support or custody of minor children act was in fact committed (Sta. Maria, M., Persons
of access to the woman's child/children (Sec. 5, RA and Family Relations, 2010, p. 363).
9262).
3. Connivance between parties of commission of
In cases of legal separation, where violence as offense or act constituting ground
specified in RA 9262 is alleged, Article 58 of the Family
Code on the 6 months cooling-off period shall NOT Connivance or procurement
apply. The court shall proceed on the main case and Denotes direction, influence, personal exertion, or
other incidents of the case as soon as possible. The other action with knowledge and belief that such action
hearing on any application for a protection order filed would produce certain results and which results are
by the petitioner must be conducted within the produced (Cohen, Divorce and Alimony in North
mandatory period specified (Sec. 19, RA 9262). Carolina, 59, IV, p. 98 as cited Sta. Maria, p. 364).
The woman victim of violence shall be entitled to the 4. Collusion between parties
custody and support of her child/children. Children
below seven (7) years old older but with mental or Collusion
physical disabilities shall automatically be given to the It is a corrupt agreement between the spouses by
mother, with right to support, unless the court finds making it appear that the marriage is defective due
compelling reasons to order otherwise. A victim who is to the existence of any of the grounds and agreeing
suffering from battered woman syndrome shall not be to represent such false or non-existent cause of
disqualified from having custody of her children. In no action before the proper court to procure divorce or
case shall custody of minor children be given to the legal separation (Sta. Maria, M., Persons and Family
perpetrator of a woman who is suffering from battered Relations, 2010, p. 317).
woman syndrome (Sec. 28, RA 9262).
5. Mutual guilt or where both parties have given ground
GROUNDS FOR DENIAL OF PETITION (Art. 56): for legal separation
(C4–MP–DR)
1. Condonation of the offense or act complained of. 6. Prescription
1994)
Even if the parents are separated de facto, still in the
8. Reconciliation of the spouses during the pendency of absence of judicial grant of custody to one parent, both
the case parents are entitled to the custody of their child. The
remedy of habeas corpus may be resorted to by the
By filing in the same proceeding a joint manifestation parent who has been deprived of the rightful custody of
under oath, duly signed by the spouses (Art. 65) the child (Salientes v. Abanilla, G.R. No. 162734, August
29, 2006). A decree of legal separation, on the ground of
Cooling–off period concubinage, may issue upon proof of preponderance of
6-month period from the filing of the petition designed to evidence in the action for legal separation. No criminal
give the parties enough time to further contemplate their proceedings or conviction is necessary.
positions with the end in view of attaining reconciliation
between them. No action for Legal Separation shall be RECONCILIATION OF LEGALLY SEPARATED
tried during such period (Art. 58). SPOUSES
If the spouses should reconcile, the corresponding joint
It is a mandatory requirement and its non-compliance manifestation under oath duly signed by them shall be
makes the decision infirm (Pacete vs. Carriaga, G.R. No. filed with the court in the same proceeding for legal
53880, March 17, 1994). separation (Art. 65).
The cooling-off period does not mean the overruling of Effects of reconciliation of the spouses (Art. 66)
provisions as custody, alimony, and support pendente 1. The legal separation proceedings, if still pending, shall
lite. thereby be terminated at whatever stage.
2. The final decree of legal separation shall be set aside,
A writ of preliminary mandatory injunction for the return of but the separation of property and any forfeiture of
the wife’s paraphernal property can in the meantime be share of the guilty spouse already effected shall
heard and granted during the 6-month period (Somosa- subsist, unless the spouses agree to revive their
Ramos v. Vamenta, G.R. No. L-34132 July 29, 1972). former property regime.
Effects of filing petition: (Art. 61) Revival of property regime (Art. 67)
1. The spouses shall be entitled to live separately from Agreement of revival and motion for its approval shall be
each other filed in court in the same proceeding for legal separation
2. In the absence of an agreement between the parties, and shall be executed under oath and shall specify:
the court shall designate the husband, the wife, or a 1. Properties to be contributed anew to restored regime;
third person to manage the absolute community or 2. Those to be retained as separated properties of each
conjugal partnership property (Art. 61) spouse;
3. The husband shall have no more right to have sexual 3. Names of all known creditors, addresses, and amounts
intercourse with his wife. owing to each.
No legal separation may be decreed unless the Court After due hearing, court shall take measures to protect
has taken steps toward the reconciliation of the spouses interest of creditors and such order shall be recorded in
and is fully satisfied, despite such efforts, that the proper registries of properties but the same shall not
reconciliation is highly improbable. (Art. 59) prejudice creditors not listed or notified, unless debtor-
spouse has sufficient separate properties to
Note: The wife who has been granted legal separation satisfy creditor’s claim.
cannot petition to be allowed to revert to her maiden
name (Art. 372, NCC).
The grounds alleged must be proved. No judgment on the pleadings, summary judgment or
confession of judgment shall be allowed.
Summary proceeding;
judgment may be Notes:
rendered based on Stipulation of facts- an admission by both parties made in court agreeing to the existence of
affidavits, documentary the act constituting the ground for annulment or for the declaration of nullity.
evidence or oral Confession of judgment- the admission made in court by the respondent admitting fault as
testimonies at the sound invoked by the plaintiff to sever the marriage ties (Sta. Maria, M., Persons and Family
discretion of the court Relations, 2010, p. 319).
(Art. 246)
In legal separation cases, no decree shall be issued unless the Court has take steps toward
reconciliation of the spouses and is fully satisfied, despite such efforts, that reconciliation is
highly improbable (Art. 59).
After decree:
To the innocent spouse but no child under 7 shall be separated from the mother unless there are
aggrieved party may apply to the court for relief. (Art 72.)
R IGHT S
AND O BLIG AT IONS
BET WEEN T HE H USB AND AND The relief may take on many forms: filing a case for legal
separation if there are grounds for the same; filing an
THE W IFE (LORF-JM)
action for declaration of nullity based on Art 36 if the
neglect is such that it does not create a functional marital
1. Live together life; petitioning the court for receivership, for judicial
separation of property, or for authority to be the sole
Act of living together is a voluntary act of the spouses administrator of community property or conjugal
which cannot be compelled by any proceeding in court. partnership.(Sta Maria, Melencio Jr. S., Persons and
Family Relations Law,page 408 ex., 3-4 [2010])
Only the moral obligation of the spouses constitutes the
motivating factor for making them observe the said EXERCISE OF PROFESSION
duties and obligations which are highly personal
(Ramirez-Cuaderno v Cuaderno, 12 SCRA 505). General Rule: Both can engage in any lawful enterprise
or profession WITHOUT the consent of the other.
If the wife refuses unjustifiably to live with her husband,
the court will admonish but not order her return; and Exception: The other spouse may object only on valid,
even if an order is made, contempt proceeding against serious and moral grounds.
the wife will not prosper. The only remedy here for the
husband is to refuse to grant support (Mariano B. In case of disagreement, court shall decide whether (1)
Arroyo v. Dolores C. Vasquez de Arroyo, 42 Phil. 54). the objection is proper; and (2) the benefit accrued to the
family prior to the objection or thereafter [Art. 73 (2)].
2. Observe mutual love, respect and fidelity
If a husband compels the wife to desist from pursuing a
3. Render mutual help & support profession or any other conduct which the wife has the
right to engage in, this can be considered acts of violence
4. Fix the family domicile against women under RA 9262 (Sta. Maria, M., Persons
a. Both husband and wife shall fix the family domicile. In and Family Relations, 2010, M. p. 409 )
case of disagreement, the court shall decide.
b. The court may exempt one spouse from living with RULE IF BUSINESS BENEFITED FAMILY
the other if the latter should live abroad or there are
other valid and compelling reasons for the exemption. General rule:
However, such exemption shall not apply if the same
is not compatible with the solidarity of the family (Art 1. Debts and obligations incurred of whatever nature and
69). regardless of the time they were incurred but
redounding to the benefit of the family shall be
5. Joint responsibility for the support of the family chargeable to the ACP or the CPG.
a. Expenses shall be paid from the community property
b. In the absence thereof, from income or fruits of their 2. An obligation incurred as a result of a spouse’s exercise
separate properties of a legitimate profession is an obligation redounding to
c. In the absence or insufficiency thereof, from their the benefit of the family shall be shouldered by the ACP
separate properties (Art. 70) or CPG.
When parties stipulate in their MS that local custom Note: It is argued by some law practitioners and authors
shall apply or that ACP regime shall not govern but fail that while no person below 18 can enter into a valid
to stipulate what property regime will be applied. marriage and since the MS is required to be executed
before the marriage, one below 18 may execute a MS as
4. In the absence of local custom, rules on co–ownership long as he or she is 18 or above at the time of marriage.
will apply (Art. 74).
Efficacy of marriage settlement (Art. 81)
upon the celebration of the marriage shall be valid 2. Donation in MS not more than one-fifth (1/5) of present
property (Art. 84)
2. Property relations shall be governed by Philippine laws,
regardless of the place of the celebration of the Any excess shall be considered void and the donation
marriage or the parties’ residence (Art. 80). will be reduced to one-fifth.
General Rule: Must be made before the marriage, in If one of the requisites is not complied with, it may still be
writing, signed by parties valid as an ordinary donation.
Exceptions: Modifications made through judicial decree For donation of present property to be valid, the rules
during the marriage: governing ordinary donations under Title III of Book III of
1. In case of revival of former property regime between the Civil Code must be observed.
reconciling spouses after decree of legal separation has
been issued (Art. 66, 67) Please refer to Property on requisites for valid donations.
2. When abandoned spouse files petition for judicial
separation of property under Art. 128 DPN of future property
3. When a spouse files petition for judicial separation of DPN of future property is allowed by way of exception to
property for sufficient cause under Art. 135 Art. 751 of NCC (which provides that donations cannot
4. Petition for voluntary dissolution of property regime comprehend future property). It is governed by the law on
under Art. 136 testamentary succession both as to intrinsic and extrinsic
validity. However said DPN can only be revoked by the
DONATION BY REASON OF MARRIAGE donor only on the basis of Art. 86 of the FC (Art. 84 par.
Donations propter nuptias (DPN) are made by one spouse 2).
in favor of the other or by a stranger. It is without onerous
consideration, the marriage being merely the occasion or DPN of encumbered property
motive for the donation, not its causa. Being liberalities, The donation is valid because the donor is still the owner,
they remain subject to reduction for inofficiousness upon even if it is encumbered. If mortgage is foreclosed and
the donor’s death, should they infringe the legitime of a sold at a lesser price, donee is not liable for deficiency but
forced heir (Mateo vs. Lagua, No. L-26270, October 30, if sold for more, donee is entitled to excess (Art. 85).
1969).
Donations propter nuptias and ordinary donations
Requisites: (Art. 82) (COB) Donations Propter
Ordinary Donations
1. In consideration of marriage Nuptias
2. In favor of one or both of the future spouses Formalities
3. Made before celebration of marriage Governed by the rules on Governed by rules on
ordinary donations except donations (Arts. 725–773,
Rules in case of donation by the would-be spouses to that if future property is NCC)
each other: (MOAC) donated, it must conform
1. There must be a valid MS stipulating a property regime with formalities of wills
other than ACP (Art. 84). Present Property
May be donated but only No limit except that donor
Grounds for revocation (VoCALRI) Note: No waiver of rights allowed during the marriage
1. Marriage not celebrated or declared Void ab initio except in case of judicial separation of property. The
except those made in MS that do not depend on waiver must be in a public instrument and recorded in the
celebration of marriage office of the local civil registrar where the marriage
contract was recorded as well as in the proper registry of
If made by a stranger, action for revocation may be property (Art. 89 and 77). The same applies to CPG (Art.
brought under ordinary rules on prescription: if in 107).
writing, brought within 10 years and if oral, within 6
years (Albano, Ed Vincent S., Persons and Family Rule on games of chance (Art. 95)
Relations, 2006). Loss: Shall be borne by the loser-spouse and shall not be
charged to the community property
2. Marriage without parental consent Winnings: Shall form part of the community property (Art.
3. Marriage is annulled and donee is in bad faith 95)
4. Upon legal separation, the donee being the guilty
spouse Exception: If said ticket was gratuitously given by a friend
5. Complied with resolutory condition to a spouse, only upon express provision of the donor will
6. Donee commits acts of ingratitude as specified by Art. it be considered part of the community property.
765 of NCC (Art. 86).
Note: The same applies to CPG (Art. 123).
II. CONJUGAL PARTNERSHIP OF GAINS (CPG) payable in partial payments/ installments and collected
It is that formed by a husband and wife whereby they during the marriage (Art. 119).
place in a common fund the proceeds, products, fruits and
income of their separate properties, and those acquired by Disposition of CPG
either or both spouses through their efforts or by chance, A wife’s consent to the husband’s disposition of conjugal
the same to be divided between them equally (as a property does not always have to be explicit or set forth in
general rule) upon the dissolution of the marriage or the any particular document, so long as it is shown by the acts
partnership (Art. 106). of the wife that such consent was indeed given (Pelayo v.
CA, G.R. No. 141323 June 8, 2005).
The CPG shall be governed by the rules on the
CONTRACT OF PARTNERSHIP in all that is not in The sale of conjugal property requires the consent of both
conflict with what is provided in the chapter on CPG or by spouses; otherwise the sale shall be void, including the
the spouses in their MS (Art. 108). portion of the conjugal property pertaining to the husband
who contracted the sale (Homeowners and Savings Loan
Before the presumption under Art. 116 applies (that Bank vs. CA, GR No 153802, March 11, 2005).
properties acquired during marriage are presumed
conjugal), there must be proof that the property was Exclusive property of each spouse (OGREC) (Art. 109)
acquired during the marriage. This is a condition sine qua 1. That which is brought to the marriage as his/her own,
non for the operation in favor of conjugal ownership whether with or without legitimate descendants
(Metrobank, et al. v. Tan, GR No. 163712, November 30, 2. Acquired during the marriage by gratuitous title
2006).
Property donated/left by will to spouses, jointly with
Properties under conjugal partnership (L 2C2 FONTI) designation of determinate shares, shall pertain to
1. Obtained from labor, industry, work or profession of donee-spouse as exclusive property; in the absence of
either or both spouses designation, property shall be divided between them but
2. Livestock existing upon dissolution of partnership in shall belong to them exclusively (Art. 113).
excess of number of each kind brought to the marriage
by either spouse If spouse does not accept his/her part of the donation,
3. Acquired by chance such as winnings from gambling, accretion sets in favor of the other spouse who will own
but losses therefrom shall be borne exclusively by loser- all of property donated as separate property.
spouse
4. Acquired during the marriage by onerous title with Accretion will not apply if donor so provides or if there is
conjugal funds designation of determinate properties (i.e. house, car).
Damages for physical injuries inflicted by a third person If donation is onerous, charges shall be borne by
are exclusive property (Lilius vs. Manila Railroad Co. exclusive property of donee-spouse, whenever
G.R. No. 42551 September 4, 1935) advanced by the CPG.
Damages from illegal detention of exclusive property Retirement benefits, pensions, annuities, gratuities,
pertains to CPG if detention deprived the CP of the use usufructs, and similar benefits acquired by gratuitous
and earnings thereof (Bismorte vs. Aldecoa, G.R. No. L- title are exclusive properties; if by onerous title during
5586, December 10, 1910). marriage (i.e. contributions to pension funds or
deduction from salaries of common funds), they are CP
Note: The registration of the property in either party’s (Art. 115).
name alone is immaterial if the property was acquired
with conjugal funds (Marigsa v. Macabuntoc, G.R. No. Unearned increment (such as increase in the value of
4883, September 27, 1910). the paraphernal property) belongs to the spouse
concerned.
5. Fruits of the conjugal property during the marriage
6. Acquired through occupation such as fishing 3. Acquired by right of redemption, barter or exchange
7. Net fruits of their exclusive property with property belonging to either spouse
8. Share of either spouse in hidden treasure (Art. 117)
9. Interest falling due during the marriage on principal
amount of credit belonging to one spouse which is
Ownership still belongs to person who has right of the principal property at the time of the improvement, the
redemption, even if conjugal funds are used to redeem, entire property shall belong to CPG subject to
subject to reimbursement reimbursement of the value of the principal property at the
time of the improvement to the owner-spouse.
If separate property in addition to conjugal funds were
used as part of purchase price of a new property, the Accession: if the cost of the improvement of the plus
new property shall be considered conjugal value is equal to or less than the value of the principal
property at the time of the improvement, the entire
4. Purchased with exclusive money of either spouse property remains the exclusive property of the spouse,
subject to reimbursement of the value of the cost of
5. Principal amount of credit belonging to one spouse improvement
payable in partial payments/ installments, which will be
fully paid during the marriage (Art. 119). The obligation to reimburse rests on the spouse upon
whom ownership of the entire property is vested. There is
Use of Exclusive Properties: (PISI) no obligation on the part of the purchaser of the property
1. Payment of personal debts in case the property is sold by the owner-spouse (Ferrer v.
2. Fines and indemnities Ferrer, G.R. No. 166496, November 29, 2006).
3. Support of illegitimate children of the owner-spouse
4. In case of insufficiency of the CPG CHARGES UPON AND OBLIGATIONS OF ACP and
(Sta. Maria, M., Persons and Family Relations, 2010, p. CPG
504) ACP (Art. 94) CPG (Art. 121)
Support of the spouses, their common children, and
The spouses retain the ownership, possession, legitimate children of either spouse
administration and enjoyment of their exclusive properties For illegitimate children,
(Art. 110). For illegitimate children, support from separate
support from separate property of person obliged
A spouse may mortgage, encumber, alienate or otherwise property of person obliged to give support. In case of
dispose of his or her exclusive property, without the to give support. In case of insufficiency or absence of
consent of the other spouse, and appear alone in court to insufficiency or absence of separate property, CP shall
litigate with regard to the same (Art. 111). separate property, ACP advance support,
shall advance support, chargeable to share of
Transfer of administration of the exclusive property of chargeable to share of parent upon liquidation, but
either spouse does not confer ownership of the same parent upon liquidation only after obligations in Art.
(Rodriguez v. De la Cruz, G.R. No. L-3629, September 121 have been covered
28, 1907). Debts and Obligations Contracted During Marriage
a. By the administrator spouse designated in
Property bought on installment (Art. 118) MS/appointed by court/one assuming sole
Property bought on installments paid partly from exclusive administration
funds of the spouses and partly from conjugal funds: b. By one without the consent of the other
1. If full ownership was vested before the marriage – it c. By one with the consent of other
shall belong to the buyer-spouse (ex: contract to sell, d. By both spouses
full payment made during marriage using CP)
For (a) and (b), creditor has burden of proving benefit to
2. If full ownership was vested during the marriage – it family and ACP/CPG chargeable to extent of benefit
shall belong to the conjugal partnership (ex: contract of proven, otherwise, chargeable to separate property of
sale) obligor spouse
In both cases, there is reimbursement upon liquidation. In For (c) and (d), benefit to family presumed
(1), owner-spouse reimburses the CP. In (2), CP shall All taxes, liens, charges and expenses including minor
reimburse the owner-spouse. repairs upon ACP or CP
Improvement of exclusive property
Reverse Accession: if the cost of the improvement
resulted in the increase in value of more than the value of
ACP (Art. 94) CPG (Art. 121) donation of conjugal partnership property, which is
Taxes and Expenses for prohibited.
mere preservation during
Taxes and Expenses for marriage upon separate The conjugal partnership is NOT liable for an indemnity
mere preservation during property of either spouse, agreement entered into by the husband to accommodate
marriage upon separate regardless of whether used a third party (Security Bank v. Mar Tierra Corp., GR No.
property of either spouse by family because use and 143382, November 29, 2006).
used by family enjoyment of separate
property of the spouses PROVISIONS COMMON TO ACP AND CPG
belong to the partnership
Expenses to enable either spouse to commence/complete A. Administration of property (ACP: Art. 96-98/ CPG:
a professional, vocational or other activity for self- Art. 124-125)
improvement
General Rule: Administration shall belong to both
Value donated/promise by both spouses in favor of spouses jointly.
common legitimate children for exclusive purpose of Exceptions:
commencing or completing professional or vocational 1. In case of disagreement, husband’s decision shall
course or other activity for self-improvement prevail, subject to recourse to the court by the wife for
Expenses of litigation between spouses unless suit found proper remedy within 5 years from date of contract
to be groundless implementing such decision
1. Ante-Nuptial Debts For Ante-Nuptial Debts, 2. In case one spouse is incapacitated or unable to
Chargeable to ACP if same as ACP but in case participate in the administration of the common
redounded to benefit of of insufficiency of separate properties, the other spouse may assume sole powers
family property, obligations of administration (Art. 96).
2. Personal debts not enumerated in Art. 121 These powers do NOT include:
redounding to benefit must first be satisfied a. Disposition
of family such as before such debts may be b. Encumbrance
liabilities incurred by chargeable to the CP
reason of crime or Written consent of other spouse or authority of the
quasi-delict, court is required, otherwise disposition or encumbrance
chargeable to separate is VOID.
property of debtor
spouse The husband and wife are the joint administrators of their
3. In case of insufficiency properties forming part of the conjugal partnership and
of separate property, absolute community of properties. The right vested upon
chargeable to ACP but them to ½ of the conjugal assets does not vest until the
considered advances dissolution and liquidation of the conjugal partnership. The
deductible from share sale by the husband of property belonging to the conjugal
of debtor-spouse upon partnership or the absolute community without the
liquidation consent of the wife or authority of the court is void (Abalos
vs. Macatangay, G.R. No. 155043, September 30, 2004).
Note: The separate properties shall be solidarily and
subsidiarily liable for the obligations if the community or The transaction, however, shall be construed as a
conjugal properties are insufficient. continuing offer on the part of the consenting spouse and
the third person, until acceptance by the other spouse or
Benefits that might accrue to a husband in his signing a authorization by the court before the offer is withdrawn by
surety or guarantee agreement not in favor of the family either or both offerors (ACP: Art. 96;CPG: Art. 124).
but in favor of his employer corporation are not benefits
that can be considered as giving a direct advantage Neither spouse may donate any community property
accruing to the family. Hence, the creditors cannot go without the consent of the other but either may, without
against the conjugal partnership property in satisfying the the other’s consent, make moderate donations for charity
obligation subject of the surety agreement. A contrary or on occasions of family rejoicing or family distress (ACP:
view would put in peril the conjugal partnership property Art. 98; CPG:Art. 125).
by allowing it to be given gratuitously similar to cases of
Exception: In ACP, either spouse may dispose by will of 3. In the absence of sufficient community property, the
his or her interest in the ACP (Art. 97) separate property of both spouses shall be solidarily
liable for the support of the family. The spouse present
B. Remedies of present spouse in case of shall, upon proper petition in a summary proceeding, be
abandonment by the other spouse or failure to given judicial authority to administer or encumber any
comply with obligations (marital, parental or specific separate property of the other spouse and use
property relations) the fruits or proceeds thereof to satisfy the latter's share
1. Receivership (Art. 100).
2. Judicial separation of property
3. Authority to be the sole administrator of the absolute D. Steps in liquidation of ACP and CPG (Art. 102 and
community (ACP: Art. 101; CPG: Art. 128) 129)
1. Inventory of ACP or CPG properties and exclusive
A spouse is deemed to have abandoned the other when property of each spouse
he or she has left the conjugal dwelling without any
intention of returning. Three (3) months’ disappearance or Separate property included as it is solidarily liable to
failure to give within the same period any information as to creditors and will be used to pay them if ACP or CPG
a spouse’s whereabouts prima facie raises a presumption is insolvent
that the absent spouse has no intention of returning (ACP:
Art. 101 par. 3; CPG: Art. 108 par. 3). Should also include receivables from each spouse
for:
C. Grounds for termination (ACP: Art. 99-101; CPG: a. Amounts advanced for personal debts of each
Art. 126-128): (LADS) spouse
1. Decree of legal separation b. Support pendent elite of each spouse
c. For CPG, include value of improvements
2. Annulment or declaration of nullity of marriage constructed on separate property
Surviving spouse shall liquidate ACP within 1 year from Must first pay out of the ACP or CP property, if
death of deceased spouse if no judicial settlement is insufficient, spouses solidarily liable with separate
instituted, failure to do so upon lapse of 1 year period properties
makes any disposition or encumbrance of ACP void
For CPG, must first reimburse spouse for separate
Mandatory regime of complete separation of property property acquired by CP due to increased value
governs subsequent marriage of surviving spouse if thereof as a result of improvements thereon
he/she fails to comply with liquidation of ACP of
previous marriage 3. Delivery to each spouse of his/her separate property
if any
4. Judicial separation of property 4. For CPG, unless owner indemnified from whatever
source, payment of loss or deterioration of movables
Note: Effect of separation in fact (ACP: Art. 102; CPG: belonging to either spouse that was used for the
Art. 127) benefit of the family
5. Division of net assets (for ACP) or net profits (CPG),
General Rule: The separation in fact between husband which are not subject to forfeiture
and wife shall not affect the regime of ACP/CPG
Use of Exclusive Properties: (PISI)
Exceptions: a. Payment of personal debts
1. The spouse who leaves the conjugal home or refuses b. Fines and indemnities
to live therein, without just cause, shall not have the c. Support of illegitimate children of the owner-spouse
right to be supported; d. In case of insufficiency of the CPG
2. When the consent of one spouse to any transaction of (Sta. Maria, M., Persons and Family Relations,
the other is required by law, judicial authorization shall 2010, p. 504)
be obtained in a summary proceeding;
6. Delivery of presumptive legitime, if any, to the
V. PROPERTY REGIME OF UNIONS WITHOUT in good faith, share of party her share in the co-
MARRIAGE in bad faith in the co- ownership shall accrue
Art. 147 Art. 148 ownership shall be to the ACP or CPG
Applicability forfeited: existing in such valid
In cases of cohabitation not 1. In favor of their common marriage.
The following must concur: children. 2. If party who acted in bad
falling under Art. 147.
1. Parties who are 2. In case of default or faith is not validly
Parties do not have the
capacitated to marry waiver by any or all married to another,
capacity to marry due to
each other common children or their his/her share shall be
some legal impediments
2. Live exclusively with descendants each forfeited in the same
(i.e. adulterous
each other as husband vacant share shall manner provided for in
relationships and
and wife belong to respective Art. 147
marriages which are
3. Without benefit of surviving descendants 3. The above rules apply
bigamous, incestuous, or
marriage or under void 3. In their absence, to the even if both parties are in
void by reason of public
marriage innocent party. bad faith.
policy under Art. 38)
Salaries and Wages
Separately owned by the In all cases, forfeiture takes
parties. If any of them is place upon termination of
Owned in equal shares married, his/her salary is cohabitation.
the property of the CPG of
the legitimate marriage Tender Loving Care Doctrine
Property acquired by either exclusively by own funds The relationship between a man and a woman whose
Belongs to such party marriage was subsequently declared null and void on the
subject to proof of ground of psychological incapacity is governed by Art. 147
Belongs to such party of the Family Code. Under this article, there exists a
acquisition by exclusive
funds presumption that the contributions are equal. Even if one
Property acquired by both through their work / of the parties did not contribute materially to the common
industry fund, but the said party took care of the household, the
Owned by them in common other party and their common children, these acts are
Governed by rules on co- considered the said party’s contribution to the common
in proportion to respective
ownership fund (Buenaventura v. Buenaventura, G.R. No. 127358 &
contributions
Property acquired while living together 127449, March 31, 2005).
Presumed to be obtained
Note: Under Art. 148 there is no presumption of joint
by their joint efforts, work,
acquisition. It must be stressed that actual contribution is
or industry and shall be
required by this provision, in contrast to Art. 147 which
owned by them in equal
states that efforts in the care and maintenance of the
shares. Efforts in care and
family and household, are regarded as contributions to the
maintenance of family and
acquisition of common property by one who has no salary
household considered No presumption of joint
or income or work or industry. Under Art. 148, if the actual
contribution in acquisition. acquisition. When there is
contribution of the party is not proved, there will be no co-
evidence of joint acquisition
ownership and no presumption of equal shares (Agapay v.
Note: Neither party can but none as to the extent of
Palang, G.R. No. 116668, July 28, 1997). Hence, mere
encumber or dispose by actual contribution, there is
cohabitation without proof of contribution will not result in
acts inter vivos of his or her a presumption of equal
a co-ownership (Tumlos vs. Fernandez, G.R. NO. 137650,
share in the property sharing
April 12, 2000).
acquired during
cohabitation and owned in
HOWEVER, in the case of Abing v. Waeyan (G.R.
common without the
No.146294, July 31, 2006) the Supreme Court ruled that
consent of the other until
any property acquired by common law spouses during the
after the termination of their
period of cohabitation is presumed to have been obtained
cohabitation.
through their joint efforts and owned by them in equal
Forfeiture
shares in the absence of proof to the contrary. Rules on
When only one of the 1. If one of parties is validly
co- ownership govern their property relations.
parties to avoid marriage is married to another, his or
As a rule, the family home is exempt from execution, willed to any one of them, this fact alone cannot transform
forced sale or attachment. However, Article 155(3) of the family home into an ordinary property, much less
the Family Code explicitly allows the forced sale of a dispel the protection cast upon it by the law. The rights of
family home “for debts secured by mortgages on the the individual co-owner of the family home cannot
premises before or after such constitution.” In this case, subjugate the rights granted under Article 159 to the
there is no doubt that spouses Fortaleza voluntarily beneficiaries of the family home (Arriola v. Arriola, G.R.
executed on January 28, 1998 a deed of Real Estate No. 177703, January 28, 2008).
Mortgage over the subject property which was even
notarized by their original counsel of record. And 8. To be a beneficiary (other than the husband and the
assuming that the property is exempt from forced sale, wife or an unmarried person who is the head of the
spouses Fortaleza did not set up and prove to the family), three requisites must concur:
Sheriff such exemption from forced sale before it was a. They must be either the parent, ascendant,
sold at the public auction (Sps. Fortaleza and Ofelia descendant, brother or sister whether legitimate or
Fortaleza v. Sps. Lapitan, G.R. No. 178288, August 15, illegitimate (Art. 154).
2012). b. They must live in the family home
c. They are dependent for legal support upon the head
Outline of provisions regarding the family home: of the family.
1. It is constituted on the dwelling house of the family and Thus in Patricio vs. Dario III (G.R. No. 170829,
the land on which house is situated November 20, 2006) a grandson was not considered
2. Deemed constituted from time of actual occupation as a a beneficiary of a family home owned by his
family residence (Art. 153) grandparent because, while the said grandchild was
3. Continues to be such as long as any of its beneficiaries living in the said family home, he was not dependent
actually resides therein (Art. 153) for support on the grandparent, who was the head of
4. Must be part of the properties of the absolute the family where the grandchild lived, but on his
community or the conjugal partnership or owned by father.
person constituting it (may be either or both spouses
or the single head of a family) (Art. 156) d. In-laws, provided the home is jointly constituted by
husband and wife. But this law definitely excludes
Property that is the subject of a conditional sale on maids and overseers (Manacop v. CA, G.R. No.
installments where ownership is reserved by the vendor 102855 November 13, 1992).
only to guarantee payment of the purchase price may 8. Every person may constitute or be the beneficiary of
be constituted as a family home. (Art. 156 par. 2) one (1) family home only. (Art. 161)
5. Must be permanent (Sta. Maria, M., Persons and Family 9. May be alienated, sold, donated, assigned or
Relations, 2010, p. 590). encumbered by the owners provided the written consent
6. Rule applies to valid and voidable and even to common- of the following are obtained:
law spouses under Articles 147 and 148 a. The person who constituted the same,
7. Continues despite death of one or both spouses or b. His or her spouse, and
unmarried head of the family for 10 years, or as long as c. Majority of the beneficiaries of legal age give their
a minor beneficiary lives therein. Heirs cannot partition consent. (Art. 158)
the same unless the court finds compelling reasons
therefor. (Art. 159).
P AT ERNIT Y AND F IL I AT ION
After 10 years and a minor beneficiary still lives therein,
the family home shall be preserved only until that minor
beneficiary reaches the age of majority. The intention Paternity and filiation
of the law is to safeguard and protect the interests of It refers to the relationship existing between parent and
the minor beneficiary until he reaches the age of child (Noe v. Velasco, 61 O.G. 411).
majority (Perla G. Patricio vs. Marcelino G. Dario III,
G.R. No. 170829, November 20, 2006). Paternity
It is the civil status relationship of the father to the child.
The family home is shielded from immediate partition
under Article 159 regardless of its ownership. This Filiation
signifies that even if the family home has passed by It is the civil status or relationship of the child to the father
succession to the co-ownership of the heirs, or has been or mother.
RULES ON IMPUGNING LEGITIMACY (Art. 166 and initial period of conception; impotence which is
167) patent, continuing and incurable; and imprisonment,
Necessarily applies only to a situation where the child has unless it can be shown that cohabitation took place
been delivered by a woman who is the child’s natural through corrupt violation of prison regulations.
mother (Sta. Maria, M., Persons and Family Relations,
2010, p. 609). 2. Biological or scientific proof that the child could not
have been that of the husband;
In the event that any of the grounds enumerated in Art. Note: Racial dissimilarity may be a considered sufficient
166 is proven, the child will neither be legitimate nor scientific proof (Watkins vs. Carlton, 37 VA [10 Leigh]
illegitimate in so far as the husband is concerned. Simply, 586 as cited Sta. Maria, p. 617).
the husband and the child will not be related to each other
in any manner considering that the husband did not For sterility to constitute proof of non-paternity, the
participate in any way as to the child’s precreation. In so husband must be shown to be completely sterile at the
far as the mother is concerned, the child will be time when the child was conceived (Sta. Maria, M.,
considered illegitimate (Sta. Maria, M., Persons and Persons and Family Relations, 2010, p. 618).
Family Relations, 2010, p. 609).
3. Vitiated consent in artificial insemination
Grounds for impugning legitimacy: (PBC)
1. Physical impossibility of the husband to have sexual Note: The mistake, fraud, violence, intimidation or
intercourse with his wife within the first 120 days of the undue influence can be exerted by not only the spouses
300 days immediately preceding the child’s birth, due against each other but also by third persons on both of
to: the spouses or on any one of them. In any case, only
a. Physical incapacity of the husband; the husband can impugn the legitimacy of the child, or
the heirs in special cases provided in Art. 171.
Note: Must be proved by convincing and persuasive
evidence hence, the fact that a husband, who was Prescriptive periods to file action to impugn
never separated from his wife, has been absolutely legitimacy:
stiff in th hips at the time of the conception of the child 1. One year, from knowledge of birth or recording in the
has been held as not conclusive enough to overturn civil register, if husband or heirs live in the SAME
the presumption of legitimacy. (State vs. Reed, 107 city/municipality where the birth took place or was
W Va. 563, as cited Sta. Maria, p. 616) recorded.
2. Two years, if both reside in the Philippines.
b. Husband and the wife were living separately; 3. Three years, if the child’s birth took place or was
recorded in the Philippines while the husband has his
Note: Mere remoteness of the wife from the husband residence abroad, or vice versa (Art. 170).
is not sufficient to disavow paternity. Hence, the bare
testimony by the husband that he and his wife were Note: The question of legitimacy cannot be collaterally
living thirty miles away from each other at the time of attacked. It can be impugned only in a direct action. (Liyao
the conception of the child is not enough to show the Jr. vs. Liyao, G.R. No. 138961, March 7, 2002)
illegitimacy of the child without any showing that the
sexual intercourse with the wife was not possible Parties who can impugn legitimacy of a child:
(Skott vs. State, 46 ALR 3d 180 as cited Sta. Maria,
p.616). General Rule: Only the husband may impugn.
c. Serious illness of the husband which absolutely Exception: The heirs may impugn within the same period
prevented sexual intercourse in the following cases:
1 If the husband dies before the expiration of the period
Note: Must be such as to absolutely prevent him from fixed for bringing his action
engaging in sexual intercourse. Hence in Andal v. 2 If he should die after the filing of the complaint without
Macaraig (G.R. No. L-2474, May 30, 1951), the Court having desisted therefrom; or
ruled that the fact that the husband was seriously sick 3 If the child was born after the husband’s death (Art.
with tuberculosis was not sufficient to overcome the 171).
presumption of legitimacy. Impossibility of access by
husband to wife would include absence during the An assertion by the mother against the legitimacy of her
child cannot affect the legitimacy of the child born or marriage shall be proved by whoever alleges such
conceived within a valid marriage. A mother has no right illegitimacy or illegitimacy (Art. 169).
to disavow a child because maternity is never uncertain
(Concepcion v. CA, GR No 123450, August 31, 2005). Note: Art. 169 negates any presumption of filiation for a
child born after 300 days from the termination of a
The death of the putative father does not ipso facto marriage, in the absence of a subsequent marriage (Sta.
negate the application of DNA testing for as long as Maria, M., Persons and Family Relations, 2010, p. 627).
appropriate biological samples of his DNA exist. In such a
case the petitioner must show the impossibility of PROOF OF FILIATION
obtaining an appropriate biological sample that can be General Rule: Filiation of legitimate (or illegitimate)
utilized for the conduct of DNA testing (Estate of Rogelio children is established by any of the following: (RA)
Ong v. Diaz, G.R. No. 171713, December 17, 2007). 1. The record of birth appearing in the civil registry or a
final judgment
STATUS OF CHILDREN BORN WITHIN 300 DAYS 2. An admission of legitimate (or illegitimate) filiation in a
FROM THE TERMINATION OF A FIRST MARRIAGE public document or a private handwritten instrument
AND THE CELEBRATION OF A SUBSEQUENT and signed by the parent concerned.
MARRIAGE (Art. 168 and 169)
Exceptions: In the absence of any of the foregoing
Requisites: (TS–WBN) evidence, such legitimate or illegitimate filiation shall be
1. First marriage terminated proved by: (OA)
2. Mother contracted subsequent marriage
3. Subsequent marriage was contracted within 300 days 1. Open and continuous possession of the status of a
after termination of previous marriage legitimate or illegitimate child;
4. Child was born within 300-day period 2. Any other means allowed by the Rules of Court and
5. No evidence as to status of child special laws (Art. 172).
a. An act or declaration concerning pedigree (Sec. 33,
Rules on presumption of filiation in case of two Rule 130, Rules of Court)
marriages: b. Family reputation or tradition concerning pedigree
1. To first marriage, if child was born before the lapse of (Sec. 34, Rule 130, Rules of Court)
180 days after celebration of 2nd marriage, provided it c. Common reputation respecting pedigree (Sec. 35,
was born within 300 days after termination of the 1st Rule 130, Rules of Court)
marriage. d. Judicial admission (Sec. 2, Rule 129, Rules of Court)
2. To second marriage, if child was born after 180 days e. Admission of a party (Sec. 22, Rule 130, Rules of
following celebration of 2nd marriage, whether born Court)
within 300 days after termination of 1st marriage or f. Admission by silence (Sec. 23, Rule 130, Rules of
afterwards (Art. 168). Court)
Hence: In Dela Cruz vs. Garcia (G.R. No. 177728, July 31,
Child born on or before June 28, 2012 is presumed to be 2009), a handwritten autobiography of the father was
filiated to the first husband. recognized as evidence of filiation although not
signed. The Court ruled that “where the private
Child born at any time after June 28, 2012 (even if before handwritten instrument is accompanied by other
July 26, 2012) is presumed to be filiated with the second relevant and competent evidence, it suffices that the
husband. claim of filiation therein be shown to have been made
and handwritten by the acknowledging parent as it is
Note: The legitimacy or illegitimacy of a child born after merely corroborative of such other evidence.”
three hundred days following the termination of the
Action to Claim Legitimacy (Art. 173) If the unsigned record of birth can be a proof of filiation
Who may claim: of the child, it would be easy for a woman to vest
1. Child – exclusive and personal right of child which may legitimate status to an illegitimate child. Hence, an
be brought anytime during his lifetime, regardless of the unsigned record of birth cannot be used as proof of
proof presented to support his claim filiation (Reyes v. Court of Appeals, GR. 39537, March
2. Transmitted to heirs of the child within a period of 5 19, 1985).
years in case
a. Child dies during minority RIGHTS OF CHILDREN
b. Child dies in a state of insanity Legitimate Illegitimate
c. Child dies after action has already been instituted
Use of father & mother’s Use of mother‘s surname
surname
Action to Claim Illegitimacy
Note: However, R.A.
Illegitimate children may establish their illegitimate filiation
9255 amended Art. 176,
in the same way and on the same evidence as legitimate
FC
children (Art. 175).
Receive support from Receive support only up to
1. If illegitimate filiation is established by a record of birth ascendants or grandparent and
in the civil register or a final judgment, or an admission descendants of the same grandchildren
of filiation in a public document or a private handwritten line.
instrument signed by the parent concerned, the action Entitled to the legitime in Legitime is ½ of the
for recognition may be brought by the child during his succession legitime of a legitimate
lifetime (Guy, vs. CA, G.R. No. 163707, September 15, child
2006).
Right to inherit ab No right to inherit as such
2. If the action is based upon open and continuous intestato from legitimate
possession of the status of an illegitimate child, or any children and relatives of
other means allowed by the rules or special laws, it may his father and mother
be only brought during the lifetime of the alleged parent
(Guy vs. CA, ibid). R.A. No. 9255
An Act Allowing Illegitimate Children to use the surname
3. Unlike an action for legitimacy, the right to claim for of their Father, amending for the purpose Article 176 of
status is NOT transmissible to the heirs. EO No. 209, otherwise known as the "FAMILY CODE OF
THE PHILIPPINES" (approved February 24, 2004).
“Continuous” does not mean that the concession of
status shall continue forever but only that it shall not be Illegitimate children may use the surname of their
of an intermittent character while it is continuous. The father if:
possession of such status means that, the father has 1. Their filiation has been expressly recognized by the
treated the child as his own, directly and not through father through the record of birth appearing in the civil
others, spontaneously, and without concealment, register, or
though without publicity. There must be a showing of 2. When an admission in a public document or private
permanent intention of the supposed father to consider handwritten instrument is made by the father; Provided,
the child as his own by continuous and clear that the father has the right to institute an action before
manifestation of paternal affection and care (Mendoza the regular courts to prove non-filiation during his
vs. CA, G.R. No. 86302 September 24, 1991). lifetime.
The paternal affection and care must not be attributed LEGITIMATED CHILDREN
to pure charity. “Such acts must be of such a nature that
they reveal not only the conviction of paternity, but also Legitimation
the apparent desire to have and treat the child as such It is a remedy by means of which those who in fact were
in all relations in society and in life, not accidentally, but conceived and born outside of wedlock and should
continuously” (Jison vs. CA, GR. No. 8454, April 13, therefore be considered illegitimate are by legal fiction
1956). considered legitimate. It shall take place only by the
subsequent valid marriage between the biological parents.
on the Rights of a Child, and to abide by the rules and remove cause of unsatisfactory relationship
regulations issued to implement the Inter–Country c. The Central Authority shall submit at complete report
Adoption Act to the Board as to the actions taken as well as
7. Comes from a country with whom the Philippines has recommendations.
diplomatic relations and whose government maintains a d. Based on the report submitted by the Central
similarly authorized and accredited agency and that Authority, the Board may terminate the pre-adoptive
adoption is allowed under his/her national laws relationship.
8. In a position to provide the proper care and support and
to give the necessary moral values and examples to all Note: If the pre-adoptive relationship is found
his children, including the child to be adopted unsatisfactory by the child or the applicant or both, or if
9. Possesses all the qualifications and none of the the foreign adoption agency finds that the continued
disqualifications under the Inter–Country Adoption Act placement of the child is not in the child’s best interest,
and other applicable Philippine laws said relationship shall be suspended by the Board and the
foreign adoption agency shall arrange for the child’s
Filing of application (Sec.10): Either with the Philippine temporary care.
RTC having jurisdiction over the child OR with the Inter-
Country Adoption Board, through an intermediate agency If a satisfactory pre-adoptive relationship is formed
between the applicant and the child, the Board shall
Inter-Country Adoption Board (Sec. 4) submit the written consent to the adoption to the foreign
It acts as the central authority in matters relating to inter- adoption agency within 30 days after receipt of the latter’s
country adoption. request.
The Board shall ensure that all possibilities for the A copy of the final decree of adoption of the child,
adoption of the child under the Family Code have been including certificate of citizenship/naturalization whenever
exhausted and that inter–country adoption is in the best applicable, shall be transmitted by the foreign adoption
interest of the child. agency to the Board within 1 month after its issuance
(Sec. 53, Implementing Rules of RA 8043)
Supervision of trial custody (Sec. 14)
Mandatory period of 6 months from the time of placement Presumption of illegal adoption: (Sec. 57,
before a decree of adoption may be issued. During this Implementing Rules of RA 8043) (CPEN)
period, the adopting parents shall submit a progress 1. Consent for adoption was acquired through or attended
report of the child’s adjustment which shall be taken into by coercion, fraud, improper material inducement
consideration in issuing the decree of adoption. 2. Procedures and safeguards provided by law for
adoption were not complied with
1. Starts upon actual physical transfer of the child to the 3. Has exposed or subjected the child to be adopted to
applicant who, as actual custodian, shall exercise danger, abuse or exploitation
substitute parental authority over the person of the child 4. No authority to effect adoption from the Board
(Sec. 44, Implementing Rules of RA 8043)
2. The adopting parent(s) shall submit to the governmental
agency or authorized and accredited agency, which
S UPPORT
shall in turn transmit a copy to the Board, a progress
report of the child’s adjustment. Support
It comprises everything indispensable for sustenance,
Disruption and termination of placement: (Sec. 47, dwelling, clothing, medical attendance, education and
Implementing Rules of RA 8043) transportation in keeping with the financial capacity of the
In the event of serious damage in the relationship family (Art. 194).
between the child and applicant; or when the continued
placement is no longer in the best interests of the child: Kinds: (LJC)
1. Legal – one required or given by law;
a. The Board through the Central Authority shall take 2. Judicial – required by the court to be given whether
necessary measures to protect the child, in particular pendente lite or in a final judgment;
cause the child to be withdrawn from the applicant 3. Conventional – given by agreement.
and arrange for his temporary care Characteristics: (MR P2INE)
b. The Central Authority shall exhaust all means to 1. Mandatory
2. Reciprocal on the part of those who are by law bound to 4. Brothers and sisters
support each other
3. Personal If the obligation to give support falls upon two or more
4. Provisional character of support judgment persons, payment shall be divided between them in
5. Intransmissible proportion to their resources. In case of urgent need and
6. Not subject to waiver or compensation special circumstances, the court may order only one of
7. Exempt from attachment or execution them to furnish support provisionally subject to the right to
(A. Tolentino, Commentaries and Jurisprudence on the claim from the others the share due them (Art. 200).
Civil Code of the Philippines, Vol. I, 1990 ed. p. 575)
When two or more recipients at the same time claim for
Persons obliged to support each other: (Art. 195) support and the person legally obliged to give does not
1. Spouses have sufficient means to satisfy all claims:
2. Legitimate ascendants and descendants 1. The order of liability provided by law shall be followed.
3. Parents and their legitimate children, and the legitimate 2. If the concurrent obligees should be the spouse and a
and illegitimate children of the latter child subject to parental authority, the child shall be
4. Parents and their illegitimate children, and the legitimate preferred. (Art. 200)
and illegitimate children of the latter
5. Legitimate brothers and sisters whether full or half- In Mangonon vs. CA (G.R. No. 125041, June 30, 2006),
blood provided: the Supreme Court ordered the grandfather, who was
proven to be well-off to support his grandchildren on the
Brothers and sisters NOT legitimately related whether basis of Art. 199, considering that their parents were not
full or half-blood are likewise entitled to support to the capable of supporting the children.
full extent under Art. 194 except when the need for
support of the brother or sister, being of age, is due to a If the obligation to give support falls upon two or more
cause imputable to claimant’s fault or negligence (Art. persons, the payment shall be divided between them in
196) proportion to their resources. [Art. 200 (1st par)]
Note: Art. 197 providing for the source from where the In case of or urgent need and special circumstances, the
support should be taken out highlights the fact that the court may order only one of them to furnish support
people enumerated in Art. 195 have a personal obligation provisionally subject to the right to claim from the others
to support each other (Sta. Maria, M., Persons and Family the share due them (Art. 200 [2nd par]).
Relations, 2010, p. 763).
When two or more recipients at the same time claim for
For support of legitimate ascendants, descendants support and the person legally obliged to give does not
(legitimate/illegitimate), brothers and sisters have sufficient means to satisfy all claims:
(legitimate/illegitimate), only separate property of person 1. The order of liability provided by law shall be followed.
obliged to give support shall be answerable. In the 2. If the concurrent obliges should be the spouse and a
absence of separate property, the CPG or ACP shall child subject to parental authority, the child shall be
advance support deductible from share of spouse obliged preferred (Art. 200 [3rd par]).
upon liquidation (Art. 197).
Obligation to give support arising from:
In case of legitimate descendants which are the common
children of the spouse or the legitimate children of either Spousal and general
Parental authority
spouse. In which case, the ACP or CPG shall be familial ties
(Title IX)
principally charged for their support as mandated by law in (Title VIII)
Art. 94(1) and Art. 121(1). This is different from personal Ends upon the Ideally lasts during the
support owing to them from the father or mother as emancipation of the child obligee’s lifetime
provided in Art. 194 and 197. Pertains to parents, Passes on to the
passing to ascendants only ascendants not only upon
Order of liability if several persons obliged to give upon its termination or default of the parents but
support: (Art. 199) (SDAB) suspension also for the latter’s inability
1. Spouse to provide sufficient support
2. Descendants in the nearest degree (Lim vs. Lim, G.R. No. 163209, Oct. 30 2009)
3. Ascendants in the nearest degree
The governing text are the relevant provisions in Title VIII established, it is not amiss to deduce, as did the trial court
of the Civil Code, as amended, on Support, not the and the CA, that Noel Daban who, owing to consideration
provisions in Title IX on Parental Authority. While both of kinship, had reasons to help, indeed lent his sister Lea
areas share a common ground in that parental authority money to support her children. Mention may also be made
encompasses the obligation to provide legal support, they that, contextually, the resulting juridical relationship
differ in other concerns including the duration of the between the petitioner and Noel Daban is a quasi-
obligation and its concurrence among relatives of differing contract, an equitable principle enjoining one from unjustly
degrees. Thus, although the obligation to provide support enriching himself at the expense of another (Lacson vs.
arising from parental authority ends upon the Lacson, G.R. No. 150644 August 28, 2006).
emancipation of the child, the same obligation arising from
spousal and general familial ties ideally lasts during the Support Pendente Lite (Art. 198 in relation to Rule 61 of
obligee’s lifetime.. Also, while parental authority under the Rules of Court)
Title IX (and the correlative parental rights) pertains to
parents, passing to ascendants only upon its termination During the proceedings for legal separation or for
or suspension, the obligation to provide legal support annulment of marriage, and for declaration of nullity of
passes on to ascendants not only upon default of the marriage, the spouses and their children shall be
parents but also for the latter’s inability to provide supported from the properties of the absolute community
sufficient support. (Lim vs. Lim, G.R. No. 163209, October or the conjugal partnership.
30, 2009)
Mutual support between the spouses ceases after final
Requisites in order for support from stranger to be judgment.
reimbursable:
In case of legal separation, the court may order the guilty
Under Art. 206: spouse to support the innocent spouse.
1. Stranger gives support to another person with the
intention to be reimbursed; and In determining the amount to be awarded as support
2. Person obliged to give support to the recipient does not pendent lite, it is not necessary to go fully into the merits
have knowledge of the stranger’s act of the case, it being sufficient that the court ascertain the
kind and amount of evidence it may deem sufficient to
Under Art. 207: enable it to justly resolve the application, one way or the
1. There is an urgent need to be supported on the part of other, in view of the merely provisional character of the
the recipient; resolution to be entered. Mere affidavits may satisfy the
2. The person obliged to support unjustly refuses or fails court to pass upon the application for support pendente
to give the support; and lite. It is enough that the facts be established by affidavits
3. A third person furnishes the support to the needy or other documentary evidence appearing in the record
individual. (Reyes vs. Ines-Luciano, G.R. No. L-48219 February 28,
1979).
Support from Stranger
1. When, without the knowledge of the person obliged to Amount of support
give support, it is given by a stranger, the latter shall It shall be in proportion to the resources or means of the
have a right to claim the same from the former, unless it giver and to the necessities of the recipient (Art. 201, See
appears that he gave it without any intention of being Lam vs. Chua, G.R. No.131286. March 18, 2004). It shall
reimbursed (Art 206) be increased or reduced proportionately, according to the
2. When the person obliged to support another unjustly increase or reduction of necessities of the recipient and
refuses or fails to give support when urgently needed by the resources or means of the person obliged (Art. 202).
the latter, any third person may furnish support to the
needy individual, with a right of reimbursement from the Support is rooted on the fact that the right and duty to
person obliged to give support (Art. 207) support, especially the right to education, subsists even
beyond the age of majority (Estate of Hilario M. Ruiz vs.
Logically, the sisters would, thru their mother, turn to their CA, G.R. No. 118671, January 29, 1996).
uncle (Noel Daban) for their sustenance and education
when petitioner (their father) failed to give the same, a
failing which stretched from their pre-schooling days to Demand for support (Art. 203)
their college years. Since such failure has been The obligation to give support shall be demandable from
the time the person who has a right to receive the same obtained as such support shall not be levied upon on
needs it for maintenance, but it shall not be paid except attachment or execution (Art. 205). But in case of
from the date of judicial or extrajudicial demand. contractual support or that given by will, the excess in
amount beyond that required for legal support shall be
Support must be demanded and the right to it established subject to levy on attachment or execution (Art. 208).
before it becomes payable. For the right to support does
not arise from the mere fact of relationship, even from Only salary "due" the judgment debtor is subject to
relationship of parents and children, but from ‘imperative attachment and execution, and then only if it is not made
necessity’ without which it cannot be demanded, and the to appear by the affidavit of the debtor or otherwise that
law presumes that such necessity does not exist unless such earnings are necessary for the support of his family.
support is demanded. (Sy vs. CA, G.R. No. 124518, Dec. Under the Revised Rules, so much of the earnings of the
17, 2007) debtor for his personal services within the month
preceding the levy as are necessary for the support of his
Payment of the amount for support starts only from the family (Sec. 12, Rule 39) is exempt from execution
time support has been judicially or extra-judicially (Avendaño vs. Alikapala, G.R. No. L-21189 November
demanded for the right to support does not arise from the 28, 1964).
mere fact of relationship but from imperative necessity
without which it cannot be demanded, and the law
presumes that such necessity does not exist, unless P ARENT AL A UT HORIT Y (PA)
support is demanded (Jocson vs. Empire Insurance Co.,
G.R. No. L-10792, April 30, 1958). Parental authority is the sum total of the right of the
parents over the persons and property of their
Performance of obligation to support (Art. 204) unemancipated children. It is pursuant to the natural right
1. Paying the allowance fixed; or and duty of parents over the same and it includes caring
2. Receiving and maintaining in the family dwelling the for and rearing of such children for civic consciousness
person who has a right to receive support provided that and efficiency and the development of their moral and
there is no moral or legal obstacle to do so. physical character and well-being (Art. 209).
Note: The law provides that the husband, who is obliged Parental Preference Rule
to support the wife, may fulfill the obligation either by The natural parents, who are of good moral character and
paying her a fixed pension or by maintaining her in his who can reasonably provide for the child, are ordinarily
own home at his option. However, this option given by entitled to custody as against all other persons (Sta.
law is not absolute. The law will not permit the husband to Maria, M., Persons and Family Relations, 2010, p. 789).
evade or terminate his obligation to support his wife if the
wife is driven away from the conjugal home because of his Parental authority and responsibility are inalienable and
wrongful acts. In the case at bar, the wife was forced to may not be transferred or renounced except in cases
leave the conjugal abode because of the lewd designs authorized by law. The right attached to parental authority,
and physical assault of the husband, she can therefore being purely personal, the law allows a waiver of parental
claim support from the husband for separate maintenance authority only in cases of adoption, guardianship and
even outside the conjugal home (Goitia vs. Campos- surrender to a children’s home or an orphan institution.
Rueda G.R. No. G.R. No. 11263, November 2, 1916). When a parent entrusts the custody of a minor to another,
such as a friend or godfather, even in a document, what is
As to how the obligation to support can be performed, Art. given is merely temporary custody and it does not
204 provides that the person obliged to give support shall constitute a renunciation of parental authority. Even if a
have the option to fulfill the obligation either by paying the definite renunciation is manifest, the law still disallows the
allowance fixed, or by receiving and maintaining in the same. The father and mother, being the natural guardians
family dwelling the person who has the right to receive of unemancipated children, are duty-bound and entitled to
support. The latter alternative cannot be availed of in case keep them in their custody and company (Sagala-Eslao
there is a moral or legal obstacle thereto, such as the vs. CA, G.R. No. 116773, January 16, 1997).
strained relationship between the parties (Ma. Belen B.
Mangonon vs. CA, G.R. No. 125041, June 30, 2006). The right of custody accorded to parents springs from the
exercise of parental authority. (Santos vs. CA, G.R. No.
Exemption of support from attachment or execution 113054 March 16, 1995)
The right to receive support as well as money or property
Rules on the exercise of parental authority This rule is not strictly a rule on disqualification because a
Joint parental authority by the father and mother over the descendant is not incompetent or disqualified to testify
persons of their common children, whether legitimate or against an ascendant. The rule refers to a privilege not to
illegitimate. In case of disagreement, the father’s decision testify, which can be invoked or waived like other
shall prevail unless there is a judicial order to the contrary privileges. As correctly observed by the lower court, Elven
(Art. 211) was not compelled to testify against his father; he chose
to waive that filial privilege when he voluntarily testified
Under Art. 176, parental authority of illegitimate children is against Artemio. Elven declared that he was testifying as
generally with the mother. To harmonize Art. 176 with Art. a witness against his father of his own accord and only "to
211, joint parental authority may be exercised over tell the truth” (People vs. Invencion, G.R. No. 131636
illegitimate children if: March 5, 2003).
1. The father is certain, and
2. The illegitimate children are living with the said father In line with the filial privilege under Art. 215 of the Family
and mother who are cohabiting without the benefit of Code is the marital privilege provided for under Sec. 24
marriage or under a void marriage not falling under Arts. (a) of Rule 130 of the Rules of Court which states that:
36 and 53.( Sta. Maria, M., Persons and Family
Relations, 2010, p. 781) The husband or the wife, during or after the marriage,
cannot be examined without the consent of the other as to
Note: The recognition by the father could be a ground for any communication received in confidence by one from
ordering him to give support, but not custody of the child. the other during the marriage except in a civil case by one
Only if the mother defaults can the father assume such against the other, or in a criminal case for a crime
custody or authority. Only the most compelling of reasons, committed by one against the other or the latter's direct
such as the mother’s unfitness to exercise sole parental descendants or ascendants.
authority shall justify deprivation of her parental authority
and the award of custody to someone else (Briones vs. Rules in case parental authority cannot be exercised
Miguel, G.R. No. 156343 October 18, 2004). jointly (Art. 212 to 214)
Cause of absence of Effect on parental
Duties of Children towards their Parents parent authority
1. To observe respect and reverence toward their parents; Absence or death of one PA continued by the
2. To obey their parents as long as they are under their parent parent present or
parental authority. surviving parent
In case of remarriage of PA continued to be
Rule of filial privilege the surviving parent exercised by surviving
No descendant shall be compelled, in a criminal case, to parent unless court
testify against his parents and grandparents, except when appoints another person
such testimony is indispensable in a crime against the a guardian
descendant or by one parent against the other (Art. 215,
FC in relation to Sec. 25, Rule 130 of the Rules on Note: The new spouse,
Evidence) by virtue of his or her
marrying the surviving
In Emma Lee vs. CA (G.R. No. 177861, July 13, 2010), parent, does not
the person (Tiu) who invoked the filial privilege, claims automatically possess
that she is the stepmother of petitioner Lee. The Supreme parental authority over
Court declared that the privilege cannot apply because the children of the
the rule applies only to “direct” ascendants and surviving parent unless
descendants, a family tie connected by a common such new spouse
ancestry. A stepdaughter does not have a common adopts the children.
ancestry by her stepmother. Relative thereto, Art. 965 of (Sta. Maria, M., Persons
the NCC provides that the direct line is either descending and Family Relations,
or ascending. The former unites the head of the family 2010, p. 784)
with those who descend from him. The latter binds a Legal separation of PA shall be exercised
person with those from whom he descends. parents by the parent
Consequently, Tiu can be compelled to testify against designated by the court
petitioner Emma Lee.
father is still preferred over the grandparents. The latter's SPECIAL PARENTAL AUTHORITY (Art. 218 and 219)
wealth is not a deciding factor, particularly because there Can only be exercised over minors while under their
is no proof that at the present time, petitioner is in no supervision, instruction or custody. The authority and
position to support the boy. The fact that he was unable to supervision also attach to all authorized activities whether
provide financial support for his minor son from birth up to inside or outside the school, entity or institution.
over three years when he took the boy from his in-laws
without permission, should not be sufficient reason to strip The following shall be held principally and solidarily liable
him of his permanent right to the child's custody. While for damages caused by the acts or omissions of the
petitioner's previous inattention is inexcusable and merits unemancipated minor:
only the severest criticism, it cannot be construed as 1. School
abandonment. His appeal of the unfavorable decision
against him and his efforts to keep his only child in his No distinction between academic or non-academic (arts
custody may be regarded as serious efforts to rectify his and trades)
past misdeeds. To award him custody would help
enhance the bond between parent and son. It would also Note: In Amadora vs. CA (G.R. No. L-47745 April 15,
give the father a chance to prove his love for his son and 1988), the Court has come to the conclusion that the
for the son to experience the warmth and support which a Art. 218 and 219 should apply to all schools, academic
father can give (Santos vs. CA, G.R. No. 113054 March as well as non-academic. Where the school is academic
16, 1995). rather than technical or vocational in nature,
responsibility for the tort committed by the student will
Note: The person exercising substitute parental authority attach to the teacher in charge of such student,
shall have the same authority over the person of the child following the first part of the provision. This is the
as the parents (Art. 233). general rule. In the case of establishments of arts and
trades, it is the head thereof, and only he, who shall be
Rule in case of foundlings, abandoned, neglected or held liable as an exception to the general rule. In other
abused children and other children similarly situated: words, teachers in general shall be liable for the acts of
(Art. 217) their students except where the school is technical in
nature, in which case it is the head thereof who shall be
Foundling answerable. Following the canon of reddendo singula
Newborn child abandoned by its parents who are singulis "teachers" should apply to the words "pupils
unknown (Bouvier’s Law Dictionary, 3rd Revision, p. 1293) and students" and "heads of establishments of arts and
trades" to the word "apprentices."
Abandoned child
One who has no proper parental care or guardianship, or 2. Administrators and teachers
those whose parents or guardians have deserted him for a 3. Individual, entity or institution engaged in child care
period of at least six continous months [Art. 141 (2), PD
603] As held in the case of Palisoc vs. Brillantes (G.R. No. L-
29025 October 4, 1971), the phrase "so long as (the
Neglected child students) remain in their custody" means the protective
One whose basic needs have been deliberately and supervisory custody that the school and its heads and
unattended or inadequately attended and may be done teachers exercise over the pupils and students for as long
through physical or emotional neglect [Art. 141 (3), PD as they are at attendance in the school, including recess
603] time. There is nothing in the law that requires that for such
liability to attach, the pupil or student who commits the
Abused child tortious act must live and board in the school. In the view
Can come within the emotionally-neglected child (Sta. of the Court, the student is in the custody of the school
Maria, M., Persons and Family Relations, 2010, p. 804) authorities as long as he is under the control and
influence of the school and within its premises, whether
Parental authority shall be entrusted in summary the semester has not yet begun or has already ended.
judicial proceeding to:
1. Heads of children’s homes, Note: In no case shall the persons exercising special
2. Orphanages, or parental authority inflict corporal punishment upon the
3. Similar institutions duly accredited by the proper child (Art. 233).
government agency (Art. 217)
Grounds for termination of parental authority life, save the exceptions established by existing laws in
Permanent (Art. 228 and special cases (Art 236 as amended by RA 6809).
Temporary (Art. 229)
232)
Upon the effectivity of this Act (December 13, 1989),
Death of the parents Adoption of the child
existing wills, bequests, donations, grants, insurance
Appointment of a general policies and similar instruments containing references and
Death of the child
guardian provisions favorable to minors will not retroact to their
Emancipation of the child Judicial declaration of prejudice (Sec, 4, RA 6809).
abandonment
If the person exercising S UMM AR Y J UD IC I AL
parental authority has
Final judgment divesting the P ROCEEDINGS IN T HE F AMILY
subjected the child or
parents of parental authority L AW
allowed him to be subjected
to sexual abuse
Actions requiring summary judicial proceedings under the
Judicial declaration of Family Code:
absence or incapacity of the 1. To obtain a judicial declaration of presumptive death for
parents exercising parental the purpose of contracting a subsequent marriage (Art.
authority over the child. 41)
2. In case of legally separated spouses, when the consent
Notes: Sec. 10 (b) of the RA 7610 punishes any person of one spouse to any transaction of the other is required
who shall keep or have in his company a minor: by law, judicial authorization shall be obtained in a
a. Who is 12 years old or younger in any public or summary proceeding (Art. 100 [2])
private place, hotel, motel, beer joint, discotheque, 3. In case of legally separated spouses, when the
cabaret, pension house, sauna or massage parlor, community property is not sufficient for the support of
beach and/or other tourist resort or similar places; or the family each spouse is liable with his/her separate
b. Who is 10 or more years his junior, in the places property. The spouse present shall petition the court for
enumerated in (a). the administration of the specific separate property of
the other spouse and the use the fruits or proceeds to
The same provision expressly provides that it does not satisfy the latter’s share (Art. 100 [3]).
apply to any person who is related to the minor within the 4. To confer parental authority over foundlings,
fourth degree of consanguinity or affinity or any bond abandoned, neglected, and abused children to heads of
recognized by law, local custom and tradition or acts in children’s homes and orphanages (Art. 217)
the performance of a social, moral or legal duty. 5. To provide for disciplinary measures over the child at
the motion of the parents or any person exercising over
However, Sec. 10 (c) of RA 7610 provides as penalty, parental authority (Art. 223)
among others, the loss of parental authority to any 6. For the filing of a bond to enable the parents of a minor
ascendant, stepparent or guardian of a minor, who shall to exercise of legal guardianship latter’s properties,
induce, deliver or offer a minor under his custody to when the value of said properties exceed Php 50,000
persons described and enumerated in Sec. 10 (b). (Art. 225)
7. Determination of the value of the presumptive legitimes
in cases of partition of the conjugal dwelling (Art. 51)
E MANC IP AT ION 8. In case of disagreement in fixing the family domicile
(Art. 69)
Emancipation takes place by the attainment of the age of 9. In case of objection to a spouse’s exercise of legitimate
majority. Unless otherwise provided, majority commences profession (Art. 73)
at the age of eighteen years. (Art 234 as amended by RA 10. In case of disagreement in the administration and
6809) enjoyment of the community property/conjugal
partnership (Art. 96, 124)
Effect of Emancipation
Emancipation for any cause shall terminate parental Procedure: (Art. 239-248) F-NOPED-J
authority over the person and property of the child who 1. Upon filing of verified petition in the family court where
shall then be qualified and responsible for all acts of civil the spouses reside (or in the RTC, if there is no family
court), jurisdiction of said court over the petition shall 6. If the deceased is married, the tombstone or
attach upon proof of notice to the other spouse. mausoleum is deemed a part of the funeral expense
2. Notice to the non-petitioning spouse shall include a and chargeable against ACP or CPG (Art. 310 NCC)
show cause order why the petition should not be
granted
3. The non-petitioning spouse is given the opportunity to
U SE OF S URNAMES
answer on or before the date set for the initial
Child Surname
conference as indicated in the notice.
Legitimate Surname of father
4. The preliminary conference shall be conducted by the
judge personally, and the spouses shall not be Legitimated Surname of father
accompanied by counsel. After the initial conference, Conceived before the
the spouses may be assisted by counsel at the court’s decree annulling a voidable Surname of father
discretion. marriage
5. The court may proceed ex parte and render judgment if Generally, surname of
despite all efforts, the non-petitioning spouse does not mother. May use surname
appear. of father if filiation has been
6. If both spouses are present during the initial conference expressly recognized by
and the petition is not resolved then, the petition shall the father through the
be decided in a summary hearing on the basis of Illegitimate record of birth appearing in
affidavits submitted. the civil register, or when
7. The judgment of the court shall be immediately final and an admission in a public
executory. document or private
handwritten instrument is
made by the father.
F IN AL P ROV ISIONS Adopted Surname of adopter
before the legal separation. This is so because her change of name under Article 376 of the Civil Code, the
married status is unaffected by the separation, there only name that may be changed is the true or official
being no severance of the vinculum. It seems to be the name recorded in the civil register. In addition, we
policy of the law that the wife should continue to use the accordingly hold that for a publication of a petition for a
name indicative of her unchanged status for the benefit change of name to be valid, the title thereof should
of all concerned ( Laperal vs. Republic, G.R. No. L- include, first, his real name, and second, his aliases, if any
18008 October 30, 1962). (Ng Yao vs. Republic, G.R. No. L-20306 March 31, 1966).
When the wife is appointed as an administratrix, she Extraordinary circumstances under Art. 391: (LAO)
cannot alienate or encumber the husband’s property or 1. Person on board a vessel or airplane lost during sea
that of the conjugal property without judicial authority. voyage or missing, counted from the loss of the vessel
or airplane
The administration shall cease when: 2. Person in armed forces who took part in war
i. Absentee reappears personally or through an agent 3. Person in danger of death under other circumstances
ii. Death is proven and his existence has not been known
iii. Third person appears and shows proof that he
acquired absentee’s property when absentee was Note: A well-founded belief that the absentee is already
still alive. dead is required before an absent spouse may be
declared presumably dead. The requisites are: (4-RBF)
3. Presumptive death- When the absentee is presumed a. Absent spouse has been missing for 4 years or 2
dead. (Art. 390, 391) consecutive years if the disappearance is under Art.
391 of the Civil Code;
PRESUMPTION OF DEATH (Arts. 390 to 392, NCC) b. Present spouse wishes to remarry;
Absence under ordinary circumstances c. Present spouse has a well- founded belief that the
(Art. 390) absent spouse is dead;
d. Present spouse files a summary proceeding for the
Presumed dead for all
declaration of presumptive death of the absent
purposes
spouse (Republic v. Nolasco, G.R. NO. 14053, March
7 years 13, 1993).
Exception:
For purposes of opening
The legal requirement on the need for judicial declaration
succession
of presumptive death does not apply to a marriage
Presumed dead for celebrated under the (Old) Civil Code as the law itself
purposes of opening presumed as dead the spouse who disappeared for a
succession period of seven (7) years where the present spouse has
no news of the absentee being alive, or for less than
Exception: seven (7) years where the absentee was generally
10 years If at the time of presumed dead (Valdez vs. Republic, G.R. No. 180863,
disappearance person was September 8, 2009). Hence, proof of “well- founded” belief
already 75 years old, 5 is not required.
years of absence is
sufficient for this
presumption to apply.
C IV IL R EGIST ER
Presumed dead for Acts, events and judicial decrees concerning the civil
4 years purposes of remarriage of status of persons shall be recorded in the civil register
the spouse present (Art. 407). This includes:
1. Births;
Absence under extraordinary circumstances/ Qualified 2. Marriages;
absence (Art. 391) 3. Deaths;
Presumed dead for all 4. Legal separations;
4 years purposes including 5. Annulments of marriage;
opening of succession 6. Judgments declaring marriages void from the
beginning;
Presumed dead for 7. Legitimations;
2 years
purposes of remarriage 8. Adoptions;
9. Acknowledgments of natural children;
10. Naturalization;
11. Loss; or
12. Recovery of citizenship;
13. Civil interdiction;
14. Judicial determination of filiation;
15. Voluntary emancipation of a minor; and
16. Changes of name. (Art. 408) Note: Correction or change can be made by the
concerned city or municipal civil registrar or consul
Duty of the Clerk of Court general in accordance with the provisions of this Act and
To ascertain whether the decree has been registered, and its implementing rules and regulations.
if this has not been done, to send a copy of said decree to
the civil registry of the city or municipality where the court The State has an interest in the names borne by
is functioning (Art. 409). individuals and entities for purposes of identification. A
change of name is a privilege, not a right. Petitioner must
Books of the Civil Register and related documents show proper or reasonable cause or any compelling
1. Considered public documents reason which may justify such change (Silverio v.
2. Prima facie evidence of the facts therein contained. (Art. Republic, G.R. NO. 174689, October 22, 2007).
410)
Grounds for change of first name or nickname (Haw
Unlawful alteration (Art. 411) Liong vs. Republic G.R. No. L-21194 April 29, 1966):
General Rule: Every civil registrar shall be civilly (HAR)
responsible for any unauthorized alteration made in any 1. New first name or nickname has been habitually and
civil register, to any person suffering damage thereby. continuously used by the petitioner and he has been
publicly known by that first name or nickname in the
Exception: If the civil register proves that he has taken community;
every reasonable precaution to prevent the unlawful 2. The change will avoid confusion
alteration. 3. First name or nickname is ridiculous, tainted with
dishonor or extremely difficult to write or pronounce;
Change of first name or nickname Under R.A. 9048
(An Act Authorizing City or Municipal Civil Registrar or the Note: R.A. 9048 does NOT sanction a change of first
Consul General to Correct a Clerical or Typographical name on the ground of sex reassignment. To rule
Error in an Entry and/or Change of First Name or otherwise may create grave complications in the civil
Nickname in the Civil Registrar without Need of a Judicial registry and public interest (Republic v. CA, GR NO.
Order, Amending For This Purpose Arts. 376 And 412 Of 97906, May 21, 1992).
The Civil Code)
Middle names serve to identify the maternal lineage or
Authority to correct clerical or typographical error and filiation of a person as well as further distinguish him from
change of first name or nickname: (Sec. 1) others who may have the same given name and surname
as he has. The dropping of the middle name of a minor so
General Rule: No entry in a civil register shall be changed that he will not be different from his classmates in
or corrected without a judicial order. Singapore and on the additional ground that it would
cause confusion and difficulty in its pronunciation in
Exceptions: Administrative proceeding for change of first Singapore does not constitute proper and reasonable
name or nickname and clerical or typographical errors. cause to drop it from his registered complete name. As he
is of tender age, he may not yet understand and
Clerical or typographical error appreciate the value of the change of his name and
It refers to a mistake committed in the performance of granting of the same at this point may just prejudice him in
clerical work in writing, copying, transcribing or typing an his rights under our laws (In Re: Petition for Change of
entry in the civil register that is harmless and innocuous, Name and/or Correction/Cancellation of Entry in Civil
such as misspelled name or misspelled place of birth or Registry of Julian Lin Carulasan Wang vs. Cebu City Civil
the like, which is visible to the eyes or obvious to the Registrar, G.R. No. 159966, March 30, 2005).
understanding, and can be corrected or changed only by
reference to other existing record or records [Sec. 2(3)]. Please refer to Remedial Law Memory Aid for a
comprehensive discussion of the procedural aspects of
Exceptions to the exception: (SANS) change of name.
1. Sex
2. Age
3. Nationality
4. Status