Persons and Family Relations Reviewer Slu

Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations

By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato
PERSONS AND FAMILY RELATIONS

B. According to the scope or content of the law:
I. INTRODUCTION 1. Private Law – that which regulates the relations of the members of a community with
one another. (Civil and Commercial Laws )
LAW – is a rule of conduct promulgated by a legitimate authority for the common good and 2. Public Law – that which governs the relations of the individual with the State or ruler
observance of all. or community as a whole. (Political, Criminal and Remedial Laws )
CLASSIFICATION OF LAW C. According to force and effect:

a.) Natural Law – promulgated impliedly in human body and conscience. 1. Mandatory or Prohibitive Laws - those which have to be complied with because they
1. Natural Moral Law – applies to our higher faculties (do good and avoid evil). are expressive of public policy.
2. Law of Nature – applies to both our higher and lower faculties (law of gravity). 2. Permissive or Suppletory Laws – those which may be deviated from if the individual
so desires.
b.) Positive Law – promulgated expressly or impliedly.
1. Divine Positive Law – like The Ten Commandments. CIVIL LAW – mass of precepts which determines and regulates the relations of assistance,
2. Divine – Human Positive Law – like The Commandments of the Catholic Church. authority and obedience existing among members of family as well as among members of
3. Human Positive Law – like Congressional Statutes or Executive Orders. society for the protection of private interest, family relations and property rights.
CONCEPT OF LAW AS “DERECHO” AND “LEY” CIVIL CODE – collection of laws which regulates the private relations of civil society,
determining their respective rights and obligations with reference to persons, things, and civil
Derecho is the general or abstract concept of law which defines law as the science of moral acts.
rules founded on rational nature of man, demandable and reciprocal, and governs the free
activity of man for the realization of the individual and social ends. Sources of the Civil Code of the Philippines (REPUBLIC ACT NO. 386)
1. Civil Code of Spain of 1889
Ley is the specific or material concept of law which defines law as a rule of human conduct, 2. Codes and laws of other countries
just, obligatory, promulgated by legitimate authority, and of common observance and benefit. 3. Judicial decisions of the Supreme Court of the Philippines and of various states
4. Philippine laws and statutes
HUMAN POSITIVE LAW - is a reasonable rule of action, expressly or directly promulgated 5. Works of jurists and commentators of various nations
by competent human authority for the common good, and usually, but not necessarily, 6. Filipino customs and traditions
imposing a sanction in case of disobedience. 7. Code Commission itself
Essential Elements of Human Positive Law Effectivity of the Civil Code of the Philippines
a.) reasonable rule of action
b.) due promulgation The Civil Code of the Philippines took effect on August 30, 1950. This date is exactly one
c.) promulgation by competent authority year after the Official Gazette publishing the Code was released for circulation, the said
d.) a sanction imposed for disobedience. release having been made on August 30, 1949. (Lara v. Del Rosario, 94 Phil 778)
Classification of Human Positive Law
A. According to whether a right is given or merely the procedure for enforcement is

laid down:
1. Substantive Law – that which establishes rights and duties.
2. Remedial or Procedural Law – that which prescribes the manner of enforcing legal
rights and claims.
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II. EFFECT AND APPLICATION OF LAWS Rules and regulations must also be published if their purpose is to ENFORCE or
IMPLEMENT EXISTING LAW.
EFFECTIVITY OF LAWS
The circulars issued by the MONETARY BOARD must be published if they are meant not
Laws shall take effect after 15 days following the completion of their publication in the Official merely to interpret but to "FILL IN THE DETAILS" of the Central Bank Act.
Gazette, or in a newspaper of general circulation, unless otherwise provided. (Article 2, NCC
as amended by E.O. 200, 18 June 1987). The charter of a city must be published notwithstanding that it applies to only a portion of the
national territory and directly affects only the inhabitants of that place. Local Ordinances
General Rule: Laws shall take effect after 15 days following the completion of their passed by local legislative bodies must also be published.
publication in the Official Gazette, or in a newspaper of general circulation.
Not Covered By Publication Requirement
Exception: When the law provides for its own affectivity, less than or greater than 15 days
after publication. INTERPRETATIVE REGULATIONS AND THOSE LAWS OR RULES WHICH ARE MERELY
INTERNAL IN NATURE, that is, regulating only the personnel of the administrative agency
Publication Is Mandatory and not the public, need not be published.
The phrase “UNLESS OTHERWISE PROVIDED” refers to the date of effectivity and not to Neither is publication required of the so-called LOI issued by administrative superiors
the requirement of publication, which cannot in any event be omitted. It does not dispense the concerning the rules or guidelines to be followed by their subordinates in the performance of
requirement of publication. PUBLICATION is INDISPENSABLE. (Tanada v. Tuvera, 146 their duties.
SCRA 446) It is the prerogative of Congress to shorten or lengthen the period of publication.
HOWEVER, when the law is penal in character, the 15-day period shall not be shortened.
IGNORANTIA LEGIS NON EXCUSAT
Omission would offend DUE PROCESS insofar as it would deny the public the knowledge of
the laws that are supposed to govern them. Section 6 of the Bill of Rights recognizes "the Ignorance of the law excuses no one from compliance therewith. (Art. 3, NCC)
right of the people to information on matters of public concern."
Concept
How Publication be Made
This rule is a conclusive presumption of law. It is based on expediency as well as public
PUBLICATION MUST BE IN FULL or it is no publication at all since its purpose is to inform policy and necessity. So that ignorance of the law cannot be used as a valid defense in favor
the public of the contents of the laws. of one who violated a law. The rule refers only to mistakes of the existence of a law rather
than to mistakes with regard to the application and interpretation of law. The latter is called
Where Publication be Made mistake of law which may be a valid defense like mistake of fact.
In the Official Gazette or in a newspaper of general circulation, it is NOT required that laws be Application: All domestic laws, mandatory or prohibitive, and whether substantive or
published in both. remedial on grounds of expediency, policy, and necessity, to prevent evasion of the law.
What Must be Published Exceptions:

1. Permissive or suppletory laws.
Laws of general application especially those penal or punitive in character whether in the 2. Foreign Laws
form of statutes, Presidential Decrees, Executive Orders, Administrative Rules and Ignorance of foreign law is not ignorance of the law but ignorance of fact because foreign
Regulations. laws must be alleged and proved as matters of fact, there being, as a rule, no judicial
notice of said foreign laws.
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Processual Presumption - if the foreign law is not properly alleged and proved, the
presumption is that it is the same as our law.  CURATIVE statutes, that is to cure defects or imperfections in judicial or administrative
proceedings.
LEX PROSPICIT, NON RESPICIT  EMERGENCY laws as they are authorized by the police power of the state.
Laws shall have no retroactive effect, unless the contrary is provided. (Art. 4, NCC)  If a substantive RIGHT be declared for the first time, unless vested rights are impaired.
(e.g. Law that allows the illegitimates to use the surname of the father)
GENERAL RULE: Laws are prospective, not retroactive.
REASON: If the rule was that laws were retroactive, grave injustice would occur as they MANDATORY / PROHIBITORY LAWS
would punish individuals for violations of laws not yet enacted. While ignorance of the law
does not serve as an excuse, such ignorance refers only to laws that have already been Acts executed against the provisions of mandatory or prohibitory laws shall be void, except
enacted. when the law itself authorizes their validity. (Art. 5, NCC)
EXCEPTIONS: PIERCER Effect of Violation of Mandatory or Prohibitory Laws:

 PENAL statutes favorable to the accused and that the accused is not a habitual
delinquent and that the law does not provide for its non-retroactive application. GENERAL RULE: Acts executed against the provisions of mandatory or prohibitory laws
shall be VOID.
 INTERPRETATIVE statutes
EXCEPTIONS:
 statute EXPRESSLY provides for retroactivity (e.g. Art 256 of the Family Code) a.) When the law itself authorizes their validity. (e.g. lotto, sweepstakes)
b.) When the law makes the act merely voidable. Thus, subject to ratification.
Limitations: c.) When the law makes the act valid but subjects the wrongdoer to liability. (e.g. marriage
 Ex post facto law solemnized by a person without legal authority; W who got married within 300 days after
 Impairment of obligation and contracts death of H)
d.) When the law makes the act itself void but recognizes legal effects flowing therefrom. (e.g.
Illustration: children of void marriage are illegitimates but they have rights recognized under the law)
FACTS: Illegitimate children, born before the effectivity of the FC were claiming
illegitimate filiation with the putative deceased father under the old civil law stating that
the right to be recognized vests from the moment of birth and succession vests from the WAIVER OF RIGHTS
moment of death of the owner of property. The legal heirs of the dececeased countered
that their action is already barred by the FC because the action for illegitimate filiation Rights may be waived, unless the waiver is contrary to law, public order, public policy,
based on open and continuous possession of the status of illegitimate children shall be morals, or good customs, or prejudicial to a third person with a right recognized by law. (Art.
filed during the lifetime of the putative father. HELD: The action is not barred because the 6, NCC)
rights of the illegitimate children were already vested under the old Civil Code. Rights of
the illegitimate children already vested under the old civil code shall not be impaired. Rules for the Waiver of Rights
(Aruego, Jr. v. CA, 254 S 711; Bernabe v. Alejo, 21 January 2002)
General rule: Rights can be waived.
 REMEDIAL statutes, as there is no vested right in procedural laws. Exception: CPAN
1. When the waiver is Contrary to law, public order, public policy, morals, or good customs.
NO retroactive effect, however, if it disturbs final judgments or if it is more onerous to 2. If the waiver is Prejudicial to a 3rd person with a right recognized by law.
party litigants. 3. Alleged rights which do not yet exist.
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4. If the right is a Natural right such as right to be supported, political rights, future RULES ON APPLICATION AND INTERPRETATION OF LAWS
inheritance when intended to prejudice creditors.
No judge or court shall decline to render judgment by reason of the silence, obscurity or
RIGHTS – the power or privilege given to one person and as a rule demandable of another. It insufficiency of the laws. (Art. 9, NCC)
may be:
a. Real Rights (jus in rem) – enforceable against the whole world. (Absolute rights) Duty of the Court to Render Judgment
b. Personal Rights (jus in personam) – enforceable against a particular individual. (Relative
Rights) The court must give a decision, even if the law is silent, obscure, or insufficient.
Note: Inherent, constitutional or fundamental rights are, as a rule, not subject to contractual Stare Decisis Non Quieta Movere (adherence to precedents) – once a case has been
waivers. Constitutional rights to be waived must comply with the constitutional requirements. decided one way, then another case, involving exactly the same point at issue, should be
Statutory rights are subject to waivers. decided in the same manner. Judicial decisions interpreting the law shall form part of the
legal system of the Philippines. Only SC can establish stare decisis or legal doctrines.
WAIVER – the intentional or voluntary relinquishment of a known right, or such conduct as CA may in rare cases establish stare decisis
warrants an inference of the relinquishment of such right.
Ratio Decidendi – final judgment which states the reason for such judgment.
Requisites of Valid Waiver CCA-FORNO
1. The person waiving must be Capacitated to make the waiver. Obiter Dictum – opinions not necessarily to the determination of a case. They are not
2. The waiver must be made Clearly, but not necessarily express. binding and cannot have the force of judicial precedents.
3. The person waiving must Actually have the right which he is renouncing.
4. In certain instances, the waiver must comply with certain FORmalities. Effect of Silence, Obscurity or Insufficiency of Laws
5. The waiver must NOt be contrary to law, public order, public policy, morals or good
customs, or prejudicial to others with a right recognized by law. The court may apply any rule he desires as long as the rule chosen is in harmony with
general interest, order, morals and public policy.
Illustration:
HELD: There was a void waiver in this case because there was nothing to be waived. By Judicial Aids
the time the right was waived, no definite relationship between the children vis-à-vis a. Customs which are not contrary to law, public order, and public policy;
deceased. Assuming the waiver is valid, mother has no authority to waive such rights of b. Equity and justice;
children because she did not avail of judicial approval. (Guy vs. CA, 502 SCRA 151) c. Decisions of foreign and local courts on similar cases;
d. Opinions of highly qualified writers and professors;
JUDICIAL APPLICATION AND INTERPRETATION OF LAWS e. Rules of statutory construction;
f. Principles laid down in analogous instances.
Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the
legal system of the Philippines. (Art. 8, NCC) Rules on Interpretation of Laws
Are Judicial Decisions Laws? 1. If the Law is Clear – apply the law as it is. Dura Lex Sed Lex - “The law may be hard,
but it is still the law.”
Judicial decisions, though not laws, are evidence, however, of what the laws mean and this is
why they are part of the legal system of the Philippines. The interpretation placed upon the The judge must impose death penalty though contrary to his personal/religious belief.
written law by competent court has the force and effect of law. (Pp. v. Veneracion, 249 S 251)
2. If the Law is not so Clear
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In case of doubt in the interpretation or application of laws, it is presumed that the Custom contra legem – contrary to law
lawmaking body intended right and justice to prevail. (Art. 10, NCC)
“Interpret not by the letter that kill but by the spirit that gives life”
HOW LAWS LOSE THEIR EFFECTIVITY (Art. 7, NCC)
Cessante Ratione Cessat Ipsa Lex in Criminal Law - When the reason for the law
ceases, the law automatically ceases to be one. 1. Lapse of a Law - laws which, without any repeal, cease to have effect because they
lapse by their own terms. A law may expressly provide that it shall be effective only for a
Computation of Periods fixed period.
1 day – 24 hours; 1 month – actual number of days; 2. Repeal - annulment of a law by a subsequent one.
1 year – be computed based on 12 calendar months. (Art. 13, NCC as Repealed by
Administrative Code; CIR v Primetown, Aug 28, 2007) Express Repeal and Implied Repeal
Calendar month: if months are designated by their name, they shall be computed by the Express Repeal – when the subsequent law expressly provides that the prior law is
number of days which they respectively have. repealed (there is repealing clause).
Computation of periods: the first day shall be excluded, and last day included, unless the Implied repeal – when there are inconsistencies or irreconcilable differences between the
latter is a Sunday or a legal holiday, in which event, the time shall run until the end of the next prior and the subsequent law.
day which is neither a Sunday or a legal holiday.
Note: In both cases, the later enactment prevails.
NOTE: When the act and the period are CONTRACTUAL, the act must be done on the last
day, even if the latter is a Sunday or a legal holiday. Effect of Repeal of Repealing Law on Law First Repealed
1. When a law which expressly repeals a prior law is itself repealed, the repeal of the
repealing law does not revive the first law repealed, unless expressly so provided.
APPLICABILITY OF CUSTOMS (Arts. 11 and 12, NCC) 2. When a law which impliedly repeals a prior law is itself repealed, the repeal of the
repealing law revives the prior law, unless the language of the repealing law provides
Custom - is a rule of human action/conduct established by repeated acts and uniformly otherwise.
observed or practiced as a rule of society, thru the implicit approval of the lawmakers, and
which is obligatory and legally binding. 3. Declaration of Unconstitutionality
Requisites: Generally, an unconstitutional law confers no right, creates no office, affords no

a. A custom must be proved as a fact, according to the rules of evidence. protection and justifies no acts performed under it, there are instances when the
b. The custom must not be contrary to law, public order or public policy. operation and effects of the declaration of its unconstitutionality may be relaxed or
c. There must be a number of repeated acts (plurality of use). qualified because the actual existence of the law prior to such declaration is an operative
d. The repeated acts must have been uniformly performed. fact and may have consequences which cannot justly be ignored.
e. There must be a juridical intention to make a rule of social conduct.
f. There must be a sufficient lapse of time. Constitution – the fundamental law of the land to which all other laws must conform.
Custom Propter Legem v. Custom Contra Legem Supremacy of the Constitution
Custom propter legem – not contrary to law.
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When the courts declare a law to be inconsistent with the Constitution, the former shall Status - the sum total of a person’s rights, duties, and capacities.
be void and the latter shall govern. It is not supremacy of the Supreme Court but
supremacy of the Constitution. This is pursuant to judicial power of the court. Characteristics of Status:
a. It is inalienable.
b. It is imprescriptible.
BINDING EFFECT OF LAWS (Art. 14, in relation to Art. 2, Revised Penal Code) c. It cannot be the object of compromise.
d. The action to claim it cannot be renounced.
Territoriality - Penal laws and those of public security and safety shall be enforceable e. The rights arising from it cannot be exercised by creditors.
throughout the territorial jurisdiction of the Philippines, subject to the principles of public
international law and to treaty stipulation. Legal Capacity – power to do acts with legal effects.
General Rule: Laws are enforceable within the territorial jurisdiction of the Philippines. Protective Principle - prohibitive laws concerning persons, their acts or property, and
those which have for their object public order, public policy and good customs shall not
Exceptions: be rendered ineffective by laws or judgments promulgated, or by determinations or
1. Ex-territoriality - When the acts referred to are executed before the diplomatic or conventions agreed upon in a foreign country. (Art. 17, par. 3, NCC)
consular officials of the Republic of the Philippines in a foreign country, the
solemnities established by Philippine laws shall be observed in their execution. Domiciliary Theory - The basis for determining personal law of an individual is his
2. Extra-territoriality – laws of the Philippines is applicable outside its territory. (e.g. domicile.
Art. 2, RPC)
Renvoi - It literally means a “referring back”. It arises when one state follows the
Generality - Penal laws and those of public security and safety shall be obligatory upon all nationality theory and the other the domiciliary theory, the problem may be referred back
who live or sojourn in Philippine territory, subject to the principles of public international law to the law of the first state. (See Discussion in Private International Law)
and to treaty stipulation.
Property: LEX REI SITAE (Mobilia Sequntur Personam abandoned)
General Rule: Laws are binding upon those who live or sojourn in the Philippines.
General Rule: Real property as well as personal property is subject to the law of the
Exceptions: country where it is situated. (Art. 16 par 1, NCC)
a. Principles of Public International Law.
b. Treaty stipulations (e.g. VFA) Exception: Intestate and testamentary SUCCESSION (capacity to succeed), order of
c. Laws of preferential application (e.g. those under RA 75) succession, amount of successional rights; and intrinsic validity of testamentary
provisions shall be regulated by the NATIONAL LAW of the person whose succession is
under consideration, whatever maybe the nature of the property and regardless of the
THEORY OF STATUTES/CONFLICT OF LAW RULES country wherein said property may be found. (Art 16 Par 2, NCC) Thus, the property of a
deceased Filipino shall be included in his estate.
Persons: NATIONALITY PRINCIPLE
Forms and Solemnities of Contracts and Wills: LEX LOCI CELEBRATIONIS
Laws relating to family rights and duties, or to the status, condition and legal capacity of
persons are binding upon citizens of the Philippines, even though living abroad. (Art. 15, It is a principle which applies the law of the place where the contract was executed as far
NCC) as the formalities and solemnities (extrinsic validity) are concerned.
Nationality/Personal Theory - the status and capacity of an individual are generally General Rule: The forms and solemnities of contracts, wills and other public instruments
governed by the law of his nationality. shall be governed by the laws of the country in which they are executed. (Art. 17, NCC)
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Exceptions:
a. Lex loci voluntatis - The intrinsic validity of contracts shall be governed by the law
of the place voluntarily selected. In case of controversy, the court shall apply the
court of the forum.
b. Lex loci intentionis - The intrinsic validity of contracts shall be governed by the law
of the place intended by the parties to the contract.
Lex Nationalis Lex rae sitae Lex loci

Art 15 Art 16 Celebrationis
Art. 17
Basis: Basis: Law of Basis: Law of
Nationality the place where the place where
the property is the contract
situated was executed
Covers: family Covers: Real Covers: forms
rights and and personal and solemnities
duties, status, properties (extrinsic
condition and validity)
legal capacity
Exception: Art Exceptions: Art Exception: Art
26 par 2, FC 16 par 2, NCC 26 par 1, FC
SUPPLETORY APPLICATION OF THE CIVIL CODE OF THE PHILIPPINES
In matters which are governed by the Code of Commerce and special laws, their deficiency
shall be supplied by the provisions of this Code. (Art. 18, NCC)
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III. HUMAN RELATIONS Some Rules Observe Under Article 19
FUNDAMENTAL HUMAN RIGHTS 1. Where a person exercises his rights or performs his duties, observing the standards
a. right to life under Article 19, but still causes damage to another.
b. right to liberty
c. right to property a. actor benefited – liable but not beyond such benefit and damage by virtue of equity.
b. actor did not benefit – no liability is created by virtue of damnum absque injuria
CHARACTERISTICS/ATTRIBUTES OF HUMAN RIGHTS (damage but no legal injury).
a. inalienable – it cannot be passed by the State or through certain contract.
b. Inherent – innate to human existence. 2. Where a person exercises his rights but does so arbitrarily or performs his duties in a
c. Indivisible manner that is not in keeping with honesty and good faith, he opens himself to liability.
STANDARDS/NORMS OF HUMAN RIGHTS (Art 19, NCC) INJURY - It refers to the legal wrong to be redressed.
Every person must, in the exercise of his rights and in the performance of his duties, act with DAMAGE - It refers to the amount of money awarded by the court to compensate for the loss
justice, give everyone his due, and observe honesty and good faith. (Article 19, NCC) or injury suffered.
NOTE: It is considered as cardinal law on human conduct. It abolished the old rule which Purpose: It is awarded to compensate the plaintiff for the loss or damage that he
states that: “He who uses a right injures no one.” suffered, not to enrich him, or to impose a penalty on the wrongdoer.
Principle of Abuse of Right Kinds: (MANTLE)

a. moral damages
He who acts with abuse, his right ceases, and his act becomes illicit, giving rise to liability. b. actual or compensatory damages
The term refers to acts which are not illegal but nevertheless make the actor liable for c. nominal damages
damages. d. temperate damages
e. liquidated damages
Elements of Abuse of Right f. exemplary damages
1. there is a legal right or duty (what right has been abused?);
2. the exercised of such right is in bad faith (Bad faith does not only connote bad judgment
or negligence; it imparts a dishonest purpose and conscious doing of wrong); and LIABILITY EX-MALEFICIO OR EX-DELICTO (Art. 20 in rel. to Art. 100 of the Revised
3. there is an intent to prejudice or injure others (what is the intention?). Penal Code)
Standards to be Observed to Avoid Abuse of Rights: Every person who, contrary to law, willfully (dolo) or negligently (culpa) causes damage to
1. to act with justice another, shall indemnify the latter for the same. (Article 20, NCC)
2. to give everyone his due
3. to observe honesty and good faith Negligence – failure to observe for the protection of the interest of another person that degree
of care, precaution and vigilance which the circumstances greatly demand.
Justice – acts must be done in accordance with law.
Willful Act – if it is done with knowledge of its injurious effect. It is not required that the act be
Honesty – careful regard for other’s rights and property. done purposely to produce the injury. The act need not be committed against the person
injured.
Good Faith – honest intention to avoid taking undue advantage of another.
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Civil Liability for Delict d. Sue for ACTUAL DAMAGES, should there be any, such as advanced money or
property upon the faith of the promise to marry or expenses for the wedding
Every person criminally liable for a felony is also civilly liable. (Art. 100, RPC) preparations on the ground that no person can enrich himself unjustly at the expense
of another.
Civil liability for Quasi-delict
When there was no sexual intercourse
Whoever by act or omission causes damage to another, there being fault or negligence, but a. Sue for MORAL DAMAGES in case there has been a deliberate desire to inflict loss
no pre-existing contractual relation between the parties, is obliged to pay for the damage or injury or there has been an evident abuse of right.
done (Art. 2176, NCC). b. Sue for MORAL DAMAGES if the act of the defendant constitutes a tort under Art 21.
c. Sue for ACTUAL DAMAGES, should there be any, such as advanced money or
property upon the faith of the promise to marry or expenses for the wedding
ACTS CONTRARY TO MORALS, GOOD CUSTOMS OR PUBLIC POLICY preparations on the ground that no person can enrich himself unjustly at the expense
of another
Any person who willfully causes loss or injury to another in a manner that is contrary to
morals, good customs or public policy shall compensate the latter for the damage. (ARTICLE Notes:
21, NCC) Moral seduction, although not punishable, connotes the idea of deceit, enticement,
superior power or abuse of confidence on the part of the seducer to which the woman
Note: This refers to acts “CONTRA BONUS MORES.” has yielded (Gashem Shokat Baksh vs CA)
Coverage: Any act or omission not contrary to law but contrary to morals, good customs and Sexual intercourse is not by itself a basis for recovery; damages could only be awarded if
public policy. the sexual intercourse is not a product of voluntariness or mutual desire.
Civil seduction is different from criminal seduction. In civil seduction, age of the victim is
Elements of Contra Bonus Mores immaterial.
1. there must be an act which is legal;
2. the act must be contrary to morals, good customs, public order or public policy; and Moral fault is something that works inside of a man. Thus, it is not an actionable wrong.
3. the act is done willfully with intent to injure.
Qualified Seduction vs Simple Seduction
Kinds a. In qualified seduction there is a moral ascendancy, while in simple seduction there is
1. Breach Of Promise To Marry no moral ascendancy.
b. In the first the victim is virgin, while in the second the victim is no longer virgin but has
General rule: Not an actionable wrong. a high reputation.
Exceptions: 2. Malicious Prosecution

When there has been sexual intercourse
a. The aggrieved party becomes pregnant and subsequently delivers, she may ask the Malicious Prosecution is one that is instituted just to vex and humiliate the defendant
other to RECOGNIZE THE CHILD, should there be one, and PROVIDE SUPPORT to despite the absence of a cause of action or probable cause against him.
said child. She can also recover compensatory damages and hospitalization
expenses as well as attorney’s fees. Malicious prosecution in criminal cases, elements
b. Sue for MORAL DAMAGES if there be criminal or moral seduction, but not if the c. the fact of the prosecution and the further fact that the defendant was himself the
intercourse was due to mutual lust; if the cause be the promise to marry, and the prosecutor, and that the action was finally terminated with acquittal;
effect be the carnal knowledge, there is criminal or moral seduction. d. that in bringing the action, the prosecutor acted without probable cause; and
c. Sue for MORAL DAMAGES if the act of the defendant constitutes a tort under Art 21. e. the prosecutor was actuated or impelled by legal malice.
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1. One party must be enriched;

Malicious prosecution in civil cases, elements 2. The other party suffered a loss;
a. the defendant previously filed a civil action against the plaintiff; 3. There must be a causal relation between the two;
b. the action was dismissed for being lack of merit or for being baseless, unfounded and 4. The enrichment must not be justifiable; otherwise, there can be no recovery;
malicious; 5. There must be no other way to recover such as those based on contract, quasi-contract
c. the defendant who filed the previous complaint as plaintiff was motivated by ill-will or or quasi-delict; and
sinister design; 6. The indemnity cannot exceed the loss or enrichment, whichever is less.
d. the present plaintiff suffered injury or damage by reason of the previous complaint
against him. NOTES:
 The incapacity of the defendant to enter into contracts does not bar the accion in rem
Misconduct - implies a wrongful intention and not merely error in judgment. verso, so long as he has been unjustly enriched.
 The indemnity does not include unrealized profits because defendant’s enrichment is
Article 20 and Article 21, Distinguished the limit of his liability.
 Just or legal cause is always presumed, the plaintiff has the burden of proving its
Article 20 Article 21 absence.
The act is contrary to The act is contrary to  If a plaintiff delayed his action under the contract, quasi-contract, crime or quasi-delict
law morals, good customs or and prescription had barred the action, he could no longer have recourse to accion in rem
public policy verso.
The act is done either The act is done willfully
willfully or negligently Classification of Unjust Enrichment
1. Enrichment through the act of the injured party (e.g. payment of a debt which does not
exist; payment by virtue of a contract which is void)
UNJUST ENRICHMENT
2. Enrichment without the act of the injured party (e.g. defendant stealing the plaintiff’s
Basis: Equity property)
Article 22. Every person who through an act or performance by another, or any other means, Accion in Rem Verso and Solutio Indebiti, Distinguished
acquires or comes into possession of something at the expense of the latter without just or
legal ground, shall return the same to him. In accion in rem verso there is NO mistake; while in the quasi-contract of solution indebiti
(undue payment) it is essential that there is mistake. Under Article 2154, “If something is
Stated in another way, “No person shall unjustly enrich himself at the expense of another.” received and there is no right to demand it, and it was duly delivered through mistake, the
One has the duty to return what was acquired unjustly or illegally EXCEPT when there is a obligation to return it arises.” In case of solution indebiti, the remedy is Restitution, that is,
legal right or entitlement thereto (final judgment) or when there is no causal relation between to return the thing acquired by mistake or without legal ground to possess.
the one’s enrichment and the other’s impoverishment.
Unjust enrichment and quasi-contracts have a merger. Under Art. 22, the enrichment of the
defendant must acquire or come into possession of something at the expense of another. ARTICLE 23. Even when an act or event causing damage to another’s property was not due
Unjust enrichment not due to acquisition or delivery of something may still be recovered to the fault or negligence of the defendant, the latter shall be liable for indemnity if through the
under quasi-contract. act or event, he was benefited.
Enrichment is every patrimonial physical or moral advantage, so long as appreciable in NOTE: This pertains to the duty of a person to indemnify even without fault provided he
money. benefited. The basis of which is equity.
Requisites of accion in rem verso

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Extent of Liability 1. it must involve an injury to a competitor or trade rival; and

Indemnify the damage caused to the extent of enrichment. The indemnity does not include 2. it must involve acts which are characterized as “contrary to good conscience” or unlawful.
unrealized profits because defendant’s enrichment is the limit of his liability. Plaintiff has the
burden of proving the extent of the benefit or enrichment of the defendant. Test of Unfair Competition
Whether certain goods have been intentionally clothed with an appearance which is likely to
UNFAIR COMPETITION deceive the ordinary purchaser exercising ordinary care.
ARTICLE 24. protection of the underdog: In all contractual, property or other relations, Principle of Cutthroat Competition, Not Allowed
when one of the parties is at a disadvantage on account of his moral dependence, ignorance,
indigence, mental weakness, tender age of other handicap, the courts must be vigilant for his It exists when a person starts an opposing place of business, not for the sake of profit to
protection. himself, but regardless of loss, and for the sole purpose of driving his competitor out of
business so that later on, he can take advantage of the effects of his malevolent purpose.
NOTE: Such protection is only applicable in case of DOUBT as to the interpretation of law
governing the conflict between parties where one is at the disadvantage.
THOUGHTLESS EXTRAVAGANCE
Rationale of the Article
ARTICLE 25. Thoughtless extravagance in expenses for pleasure or display during a period
The law is intended to protect the weak and ignorant in the face of rigid and classical principle of acute public want or emergency may be stopped by order of the courts at the instance of
of equality before the law. The government acts as parent of the people which is in any government or private charitable institution.
consonance with the promotion of social justice.
Rationale of the Article
Doctrine Of Parens Patriae
Thoughtless extravagance during emergencies may incite the passions of those who cannot
Literally means father or parent of his country. It refers to the inherent power of the state and afford to spend.
authority of the State to provide protection of the person and property of a person non sui
juris. It is the sovereign power of the state in safeguarding the rights of person under Remedy: Injunction
disability. It is the obligation to minimize the risk to those who, because of their disability, are
as yet unable to take care of themselves. Filed by: Charitable Institution (either government or private)
Vigilant for his Protection - means that in case of doubt, the doubt must be resolved in
favor of the underdog. RESPECT FOR PERSONALITY AND DIGNITY OF OTHERS
ARTICLE 28. Prohibited competition: Unfair competition in agricultural, commercial or ARTICLE 26. Rights protected: Every person shall respect the personal dignity, personality,
industrial enterprises or in labor through the use of force, intimidation, deceit, machination or privacy, peace of mind, personal security, family relations, and social intercourse.
any other unjust, oppressive or high-handed method shall give rise to a right of action by the
person who thereby suffers damages. Remedies In Case Of Violation: damages; prevention; other relief. The action may be
dependent upon a criminal action like in defamation. It may be independent action as it is
Rationale of the Article covered by quasi-delict.
To promote free enterprise and to avoid monopoly in business through unjust means. Prohibited Acts: PMI-VO
Characteristics
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1. Prying into the privacy of another’s residence. Includes respect for one’s name, picture or a. Wrongful conduct of the defendant. The defendant should have done acts calculated
personality EXCEPT insofar as is needed for publication of information and pictures of to alienate affections of the husband or wife. In a sense, the defendant must be a
legitimate news value. pursuer, not merely the pursued.
b. Loss of affection or consortium.
PRIVACY - is the right of an individual to be alone or to be free from unwarranted c. Causal connection between such conduct and loss.
publicity, or to live without unwarranted interference by the public in matters which the
public is not necessarily concerned. 3. Intriguing to cause another to be alienated from his friends.
4. Vexing or humiliating another on account of his religious beliefs, lowly station in life, place
Limitations on Privacy of birth, physical defect, or other personal condition.
a. The right to privacy is limited whenever the circumstances show a reasonable 5. Other similar acts.
interest on the part of the public in the conduct or affairs of persons who have
become public characters. Some Acts Against Personal Security
b. Also, the right to privacy is limited by the privilege similar to that of “fair comment” in 1. Assault - an intentional, unlawful offer of physical injury to another by force unlawfully
the law of defamation. directed toward the person of another, under such circumstances as will create a well-
founded fear of imminent peril, coupled with the apparent present ability to effectuate the
attempt if not prevented.
Torts Invading the Right to Privacy 2. Battery - actual infliction of any unlawful or unauthorized violence on the person of
a. Appropriation for the defendant’s benefit, of the plaintiff’s name or likeness; another, irrespective of its degree.
b. Intrusion upon the plaintiff’s solitude as by invading his home;
c. Public disclosure of private facts, consisting of a cause of action in publicity, of a
highly objectionable kind, given to private information about the plaintiff, even though NEGLECT OR REFUSAL OF PUBLIC SERVANT
it is true and no action would lie to defamation;
d. Publicity which places the plaintiff in a false light in the public eye. ARTICLE 27. Non-feasance: Any person suffering material or moral loss because a public
servant or employee refuse or neglects, without just cause, to perform his official duty may
Spheres of Privacy: file an action for damages and other relief against the latter, without prejudice to any
a. person disciplinary administrative action that may be taken.
b. home/dwelling/residence
c. papers and effects Reason for the Article
d. correspondence
e. bank deposits To promote public office as a public trust.
2. Meddling with or disturbing the private life or family relations of another. Requisites for Action
1. The defendant is a public official charged with the performance of official duties.
A stranger would be liable irrespective of his good motives, if he interferes with family 2. The public servant or employee refuses or neglects to perform his official duty;
relations, whereas a parent or close relative would not be liable unless there is malice 3. There is no valid reason for the refusal or neglect to perform official duty.
proven by the plaintiff. A distant relative could escape liability if he proves good faith and 4. There is injury suffered by the plaintiff.
honest motives.
Non-feasance, Misfeasance, Malfeasance, Distinguished
It includes alienation of the affections of the husband or the wife.
Non-feasance – is the omission of some act which ought to be performed; total neglect of
Alienation of Affection, When Actionable duty.
When the following elements concur: Misfeasance – is the improper performance of some act which might lawfully be done.
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effect, it may be inferred from the text of the decision whether or not the acquittal is due
Malfeasance – is the performance of some act which ought not to be done. to that ground.
Excuses for non-performance Kinds of Acquittal

1. impossibility of performance; a. Acquittal based on reasonable doubt – when the guilt of the accused has not been
2. contributory negligence of the plaintiff; proven beyond reasonable doubt.
3. ministerial officer acting in obedience to orders of superiors; b. Acquittal based on innocence – when the accused is not the author of the crime;
4. officer with discretionary function, UNLESS, he acted in arbitrary manner or with gross c. Acquittal when the crime complained of did not exist.
neglect.
Effects of Acquittal
NOTE: Good faith or absence of malice is not a defense for non-performance. It is only a
mitigating factor. a. Acquittal which Bars Civil Action
1. whenever the accused has been found to be not the author of the act;
2. that the supposed act attributed to the accused did not exist;
DEPENDENT CIVIL ACTIONS / ACTIONS FOR DAMAGES BASED ON CRIME/DELICT 3. if there is a finding that in the final judgment in the criminal action that the act or
omission from which the civil liability may arise did not exist. (Note: Republic v.
1. ARTICLE 29. Civil action not barred by acquittal: When the accused in a criminal Patanao: Tax liability is not a mere civil liability arising from a crime that could be
prosecution is acquitted on the ground that his guilt has not been proved beyond wiped out by the judicial declaration of non-existence of the criminal acts
reasonable doubt, a civil action for damages for the same act or omission may be charged).
instituted. 4. If due to justifying circumstances, civil liability is extinguished. Except: Avoidance
of greater evil, in which case, civil liability remains. (State of Necessity)
Reason: Difference in the proceedings.
Note: Acquittal in a criminal case bars prosecution for the same offense, thus appeal
Basis Criminal action Civil action assailing the verdict of acquittal is not warranted because of double jeopardy.
Parties State v. Offended However, the civil aspect of the crime may be appealed or even the subject of a
involved defendant party v. separate civil action provided the acquittal is based on reasonable doubt.
defendant
Rules Criminal Civil b. Acquittal which Does not Bar Civil Action
involved procedure/penal procedure/ci 1. the acquittal is based on reasonable doubt, if the civil case has been reserved; if
code vil code there is reservation, the judgment shall make a finding on the civil liability of the
Quantum of Proof beyond Prepondera accused;
evidence reasonable nce of 2. if the decision contains a declaration that the liability of the accused is not
doubt evidence criminal but only civil in nature;
Purpose For punishment For 3. the civil liability is not derived from or based on the criminal act of which the
of the offender reparation of accused is acquitted.
damages 4. If due to exempting circumstances, civil liability remains. Except: Paragraphs 4
(injury by mere accident) and 7 (lawful cause) of Article 12.
Filing Of Bond: Upon motion of the defendant, the court may require the plaintiff to file a
bond, to answer for damages in case the complaint should be found to be malicious. 2. ARTICLE 20 (see discussion above)
3. ARTICLE 30 (civil action even if there is no criminal action instituted)
Duty Of The Court: If in a criminal case, the judgment of acquittal is based upon
reasonable doubt, the court shall so declare. In the absence of any declaration to that
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When a separate civil action is brought to demand civil liability arising from a criminal finding in a final judgment in the criminal action that the act or omission from which the
offense, and no criminal proceedings are instituted during the pendency of the civil case, civil liability may arise did not exist.
a preponderance of evidence shall likewise be sufficient to prove the act complained of.
4. ARTICLE 35 (civil action even if there is no independent civil action and criminal INDEPENDENT CIVIL ACTIONS
action instituted)
Concept and Rationale
When a person, claiming to be injured by a criminal offense, charges another with the
same, for which no independent civil action is granted in this Code or any special law, but It is one that is brought distinctly and separately from a criminal case allowed for
the court finds no reasonable grounds to believe that a crime has been committed, or the considerations of public policy regardless of the result of the criminal case.
prosecutor refuses or fails to institute criminal proceedings, the complainant may bring a It is for the purpose of allowing the citizen to enforce his rights in a private action.
civil action for damages against the alleged offender.
Evidence Required: Preponderance of Evidence.
If during the pendency of the civil action, an information should be presented by the
prosecutor, the civil action shall be suspended until the termination of the criminal Independent and dependent Civil Actions, Distinguished
proceedings.
INDEPENDENT DEPENDENT
Upon motion of the defendant, the court may require the plaintiff to file a bond, to answer Not based on delict. Based on delict.
for damages in case the complaint should be found to be malicious. No reservation is Reservation is upon the
required. discretion of the
Rule 111, Section 1, 2000 Rules of Criminal Procedure: offended party.
Can proceed Can proceed
When the criminal action is instituted, the civil action for the recovery of civil liability simultaneously and simultaneously with the
arising from the offense charged shall be deemed instituted UNLESS the offended party separately from the criminal action ONLY
waives the civil action, reserves the right to institute it separately or institutes the civil criminal action when no waiver,
action prior to the criminal action. regardless of the reservation, or prior filing
outcome of the latter. of the civil action is
Suspension of Separate Civil Action: Rule 111, Section 2, 2000 Rules of Criminal done.
Procedure It may be filed before the It may be filed prior to
institution of the criminal the institution of the
After the criminal action has been commenced, the separate civil action arising therefrom action and it cannot be criminal action but it will
cannot be instituted until final judgment has been entered in the criminal action. suspended when the be suspended once the
latter is instituted. criminal action is
If the criminal action is filed after the said civil action has already been instituted, the instituted until final
latter shall be suspended in whatever state it may be found before judgment on the judgment in the criminal
merits. The suspension shall last until final judgment is rendered in the criminal action… action has been
rendered.
During the pendency of the criminal action, the running period of prescription of the civil
action which cannot be instituted separately or whose proceeding has been suspended 1. ARTICLE 31. When the civil action is based on an obligation not arising from the act or
shall be tolled. omission complained of as a felony, such civil action may proceed independently of the
criminal proceedings and regardless of the result of the latter.
The extinction of the penal action does not carry with it extinction of the civil action.
However, the civil action based on delict shall be deemed extinguished if there is a
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Civil Action Based on Other Sources of Obligation Other than Delict – law, contract,
quasi-contract, quasi-delict 4. Art. 34. Civil Liability of Member of Municipal or City Police
2. ARTICLE 32. Breach Of Constitutional Rights / Civil Liability for Violation of Primary liability: When a member of a city or municipal police force refuses or fails to
Constitutional Rights render aid or protection to any person in case of danger to life or property, such police
officer shall be primarily liable for damages.
Persons Liable
1. any public officer or employee Requisites
2. any private individual even if in good faith 1. there is danger to life or property of a person;
2. a member of a city or municipal police force who is present in the scene refused or
Limited liability / When Responsibility Demandable from a Judge failed to render aid or protection to the person;
3. damages are caused to the person or property.
General Rule: The responsibility herein set forth is not demandable from a judge.
Subsidiary liability: The city or municipal government shall be subsidiarily responsible in
Exception: Unless his act or omission constitutes a violation of the Penal Code or other case of insolvency of said police officer.
penal laws (see Art. 204 – 207 of the Revised Penal Code).
Note: The defense of exercise of due diligence in the selection and supervision of its
NOTES: employees, as provided under Art. 2180, cannot be used as this is available only to
 It is not necessary that the defendant should have acted with malice/bad faith to be private employers.
liable. Although the same normally involves intentional acts, it can be committed 5. Art. 2176. QUASI-DELICT. “Whoever by act or omission causes damage to another,
through negligence. there being fault or negligence, is obliged to pay for the damage done. Such fault or
 Public officer who is a defendant cannot escape liability under the doctrine of state negligence, if there is no pre-existing contractual relation between the parties, is called a
immunity; the said doctrine applies only if acts involved are done by officers in the quasi-delict and is governed by the provisions of this Chapter.”
performance of their official duty within the ambit of their powers.
 It only requires a preponderance of evidence and the aggrieved party may ask for Note: It is not limited to culpa-aquiliana cases but covers also intentional acts.
moral and exemplary damages but in the latter case, it depends upon the discretion
of the court. Defenses that can be interposed in quasi-delict:
a. Doctrine of Last Clear Chance - where both parties are negligent but the negligent
3. Art. 33. Civil Liability for Defamation, Fraud, Physical Injuries (In generic sense). In of one succeeds that of the other by an appreciable interval of time, the one who has
cases of defamation, fraud, and physical injuries, a civil action for damages, entirely the last reasonable opportunity to avoid the impending harm and fails to do so, is
separate and distinct from the criminal action, may be brought by the injured party. chargeable with the consequences, without reference to the prior negligence of the
other
Defamation – is an invasion of the interest in reputation and good name, by b. Contributory Negligence - the defendant may claim that plaintiff’s own negligence
communication to others which tend to diminish the esteem in which the plaintiff is held, contributed to the injury. This defense will merely mitigate the award of damages.
or to excite adverse feelings or opinion against him. It is any act, writing or utterance c. Proximate Cause of the Loss or Injury is the Negligence of Plaintiff.
which tend to prejudice or humiliate another. It includes libel and slander. d. Defense of Due Diligence in the Selection and Supervision of Employees: Only
applicable in culpa aquiliana.
Physical Injuries – covers all kinds of physical injuries including attempted, frustrated or e. Assumption of Risk: It will absolve the defendant from liability.
consummated homicide. If resulted because of negligence or imprudence, they are Requisites:
already covered by Article 2176 of the Civil Code. a. there must be knowledge as to the existence of the danger
b. there must be an understanding and appreciation of the risk of such danger by
Fraud - intentional deception to induce another to part with something of value or to the plaintiff.
surrender a legal right, like, estafa or swindling. c. the plaintiff voluntarily expose himself to such danger.
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f. Prescription: If the action is filed beyond four years from loss or injury. Illustrations:
a. FACTS: H and W1 are separated in fact. H contracted a subsequent marriage with W2.
Res Ipsa Loquitor - The thing speaks for itself. W1 filed a case for bigamy against H. H filed a civil action for the declaration of nullity of
the 2nd marriage on the ground of lack of license. HELD: NO prejudicial question because
A Rule of Evidence. The fact of the injury is prima facie evidence of negligence. It can not the 2nd marriage is ostensibly valid. Besides, the 1st marriage still exists.
be used with contributory negligence. b. FACTS: Same with the first but this time, the civil action filed by the husband is for the
declaration of nullity of the 1st marriage for lack of license. HELD: NO prejudicial question
Requisites: because of violation of Art 40 of FC.
a. the accident is one of a kind which does not ordinarily occur unless someone is c. FACTS: H and W are legally married. H has an illegal affair with GF. W filed a criminal
negligent, case for concubinage. H filed a civil action for the declaration of nullity of the marriage on
b. that the instrumentality or agency which caused the injury was under the exclusive the ground of lack of license. HELD: NO prejudicial question because the marriage is
control of the person charged with negligence, presumed to be valid and existing.
c. that the injury suffered must not have been due to any voluntary action or d. FACTS: H and W are legally married. H contracted a subsequent marriage with GF. W
contribution on the part of the person injured. filed a criminal case foe bigamy. H filed an action for annulment of the 2 nd marriage on
the ground that his consent was vitiated. HELD: There is prejudicial question because the
civil case is determinative of whether the criminal action will prosper.
PREJUDICIAL QUESTIONS (Art 36, NCC)
Prejudicial question - one which must be decided before any criminal prosecution may be
instituted or may proceed, because a decision therein is vital to the judgment in the criminal
case. It is a question which arises in a case, the resolution of which is a logical antecedent of
the issue involved in said case, and the cognizance of which pertains to another tribunal.
Petition for Suspension by reason of prejudicial question, Where Filed
A petition for suspension of the criminal action based upon the pendency of a prejudicial
question in a civil action may be filed in the office of the prosecutor or the court
conducting the preliminary investigation. When the criminal action has been filed in court
for trial, the petition to suspend shall be filed in the same criminal action at any time before
the prosecution rests. (Rule 111, Sec. 6 of 2000 Rules of Criminal Procedure)
Elements:
1. The previously instituted civil action involves an issue similar or intimately related to the
issue raised in the subsequent criminal action.
2. The resolution of such issue determines whether or not the criminal action may proceed.
3. The jurisdiction to try said question must be lodged in another tribunal. (See Rule 111,
Sec. 7 of 2000 Rules of Criminal Procedure)
Effect: It will suspend the proceeding in the criminal action.
NOTE: Prejudicial questions shall be governed by the Rules of Court which the Supreme
Court shall promulgate and which shall not be in conflict with the Civil Code.
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IV. PERSONS AND PERSONALITY d. prodigality (state of squandering money or property to the prejudice of another)
e. civil interdiction
CIVIL PERSONALITY - the aptitude of being the subject, active or passive, of rights and f. family relations
obligations. g. alienage
h. absence
Juridical Capacity and Capacity to Act (Art. 37, NCC) i. insolvency
JURIDICAL CAPACITY - the fitness to be the subject of legal relations; it is inherent in every Note: There is also a need for judicial declaration.
natural person and is lost only through death.
When Insolvency Reckoned
CAPACITY TO ACT - the power to do acts with legal effect; it can be acquired and may be 1. Involuntary Insolvency – from the time of adjudication and not from the time of filing
lost. by the creditors.
2. Voluntary Insolvency – at the time of filing by the instant debtor.
Juridical capacity Capacity to act
Passive Active j. trusteeship
Inherent Acquired (upon reaching the age of
majority) PERSON - Any being, natural or artificial, capable of possessing legal rights and obligations.
Lost only through death Lost through death and other means
Classes of Persons
Can exist even without capacity to act Always exist with juridical capacity
Unlimited/cannot be restricted Limited/can be restricted by circumstances 1. NATURAL PERSONS - human beings created by God through the intervention of
parents.
THEORIES OF CAPACITY TO ACT Personality:

Theory of General Theory of Special
Capacities Capacities a. Presumptive Personality (Art. 40, NCC)
Applies to natural Applies to juridical
persons persons Personality begins at conception; the conceived child shall be considered born for all
One has the ability to act Powers of juridical purposes that are favorable to it, provided it be born later with the conditions
with legal effects except persons limited to those specified in Art. 41.
when capacity to act is expressly conferred and
restrained those which can be  The personality in this case is essentially limited and it is provisional or
implied therefrom or conditional.
incidental thereto.
b. Actual personality - Personality begins at birth.
Restrictions or Modifications on Capacity to Act (Arts. 38 – 39, NCC) MIS-PC-FAAIT
a. Minority (below 18) Birth - the removal of the foetus from the mother’s womb who must be alive at the
b. insanity or imbecility time of complete separation; before birth, the foetus is not a person, but merely a part
of the internal organs of the mother. However, because of the expectancy that it may
Note: There is a need for judicial declaration of insanity because sanity is presumed. If be born, the law protects it and reserves its rights, making its legal existence, if it
there is declaration of insanity, the capacity to act is possessed by the guardian. should be born alive, retroact to the moment of its conception.
c. state of being deaf-mute Legal Conditions (Art 41, NCC):

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 FACTS: In the same problem, supposed there has been judgment convicting X of the
1. Ordinary Birth - with an intra-uterine life of at least seven months. For civil crime of rape. Pending appeal, he died. HELD: His criminal liability and civil liability
purposes, the fetus is considered born if it is alive at the time it is completely arising from crime are extinguished.
delivered from the mother’s womb.  FACTS: In the same set of facts, supposed the judgment of conviction becomes final
2. Extra-ordinary Birth: with an intra-uterine life of less than seven months. For and executor for failure of X to appeal. During service of sentence, X died. HELD:
civil purposes, it is not deemed born if it dies within 24 hours after its complete The criminal liability is extinguished but the civil liability is not extinguished, thus, may
delivery from the maternal womb. be recovered against the estate of the deceased on the basis of the final judgment.
Elements: Rule on Survivorship under Art. 43, NCC

a. Child must be alive at the time of complete separation; and
b. Must be alive within 24 hours thereafter. Burden of proof: If there is a doubt, as between 2 or more persons who are called to
succeed each other, as to which of them died first, whoever alleges the death of one
Note: Only one with juridical personality can die. Thus, the aborted child never died prior to the other, shall prove the same.
because it never acquired a juridical personality. Hence, the action for damages
under Art 2206 of NCC by the husband will not prosper. At most, he can recover Presumption: In the absence of proof, it is presumed that they died at the same
damages arising from frustration of parental expectation. (Geluz v. CA, 2 S 801) time.
Extinguishment of Civil Personality Effect of presumption: There shall be no transmission of rights from one to the
other.
Death - refers to natural or physical death. It extinguishes civil personality. (Art. 42,
NCC) Elements of Art 43:
a. There is no proof which of 2 persons died first; and
The effect of death upon civil personality is determined by law, contract or will. b. They are called to succeed each other.
Note: The rule that death extinguishes civil personality is not absolute. The estate of a Rule 131(jj)and (kk) of the Revised Rules of Court on presumptions on
deceased is a person that may continue the personality of the deceased for the purpose survivorship.
of settling debts. Thus, the estate is an extension of civil personality of a decedent which
comes into being at the moment of his death. There is no need of judicial declaration to (jj) When two persons perish in the same calamity, such as wreck, battle, or
that effect. Once the liabilities of the estate have been settled and distribution of the conflagration, and it is not shown who died first, and there are no particular
residue to the heirs has been effected, the estate ceases to exist ipso facto. circumstances from which it can be inferred, the survivorship is presumed from the
probabilities resulting from the strength and age of the sexes, according to the
Corpse is not a person because juridical personality is extinguished by death. following rules:
1. If both were under the age of fifteen years, the older is presumed to have
Effects of Death On Rights survived;
2. If both were above the age of sixty, the younger is presumed to have survived;
Upon the death of a person, the subject of legal relations disappears. Some of his rights 3. If one is under fifteen and the other above sixty, the former is presumed to have
and obligations are completely extinguished, while others are transmitted to his survived;
successors. 4. If both be over fifteen and under sixty, and the sexes be different, the male is
presumed to have survived; if the sexes be the same, then the older;
Illustrations: 5. If one be under fifteen or over sixty, and the other between those ages, the latter
 FACTS: X, charged with the crime of Rape. Pending trial, he died. HELD: His is presumed to have survived.
criminal liability and his civil liability arising from crime are extinguished. (Pp. v.
Bayotas, 236 S 239)
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(kk) If there is a doubt, as between two or more persons who are called to succeed each
other, as to which of them died first, whoever alleges the death of one prior to the Governing Law (Art. 45, NCC)
other, shall prove the same; in the absence of proof, it is presumed that they died at
the same time. Nationality test - The nationality of a corporation is generally determined by the place of
its incorporation.
Elements On Survivorship under the Rules of Court
a. There is no proof which of 2 persons died first; Control test - The nationality of a corporation is determined by the nationality of the
b. They must have died during a calamity; and controlling stockholders.
c. They are not called to succeed each other.
For the grant of the rights in the Constitution to the operation of public utilities, and for the
acquisition of land and other natural resources, a corporation, even if incorporated in the
Philippines, cannot acquire said rights unless 60% of its capital be Philippine-owned.
2. JURIDICAL PERSONS: Theory of Special Capacities
During war, for the purpose of determining an enemy corporation, by piercing the veil of
CORPORATION - It is an artificial being created by operation of law, having the right of corporate entity, and going to the very nationality of the controlling stockholders,
succession and the powers, attributes, and properties expressly authorized by law or regardless of where the incorporation had been made.
incident to its existence.
Rights and obligation of a juridical person (Art. 46, NCC):
Classification (Art 44, NCC):
1. The State and its political subdivisions - governed by the laws creating or recognizing Juridical persons may:
them. (Art. 45, NCC) a. acquire and possess property of all kinds, (subject to limitations under Art. 12,
2. Juridical persons for public interest or purpose, created by law - their personality Sections 2-3 of the 1987 Constitution)
begins as soon as they have been constituted according to law; governed by the b. incur obligations
laws creating or recognizing them. (Art. 45, NCC) c. bring civil or criminal actions.
In case of dissolution, their property and other assets shall be disposed of in

pursuance of law or the charter creating them. If nothing has been specified on this
point, the property and other assets shall be applied to similar purposes for the
benefit of the LGUs which during the existence of the institution derived the principal
benefits from the same. (Art. 47, NCC)
3. Juridical persons for private interest or purpose - their personality begins from the
moment a certificate of incorporation is granted and issued by the SEC; Regulated by
laws of general application on the subject. (Art. 45, NCC)
Partnerships and associations for private interest or purpose are governed by the
provisions of this Code concerning partnerships. (Art. 45, NCC)
In case of dissolution, see the Corporation Code.
4. The Roman Catholic Church.
5. The estate of a deceased person.

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V. DOMICILE
Intention without physical presence or physical presence without intention will not suffice
DOMICILE - place of a person’s habitual residence. for the acquisition of domicile, but will be sufficient for the retention of an existing
domicile.
Domicile Residence
more or less permanent more or less temporary Who Can Establish a Domicile
a person can have a person can have
generally only one several places of One who has the legal capacity. Thus, a person with civil interdiction or suffering from
domicile residence penalty of law cannot establish domicile because his act is limited.
denotes a fixed denotes a place of
permanent residence to abode (physical relation
which when absent, one to a place) Domiciliary Theory – the status, condition, rights, obligations and capacity of a person
has the intention of should be governed by the law of his domicile.
returning (legal relation
to a place)
domicile is residence residence is not domicile Illustration:
coupled with the FACTS: X, a former Filipino, went to US and became a naturalized US citizen. Because he
intention to remain for an violated a law in US, X was denaturalized. He came back to the Phils and started to establish
unlimited time his residence here. He ran for mayor and won. His wife filed a civil case involving personal
rights and obligations. X contended that national shall not be applied because he is a
Note: Residence as used in the Constitution must be understood to mean domicile. stateless person. HELD: Domiciliary theory is called upon to operate because X is a stateless
person. Nationality principle cannot be applied. Thus, X is still liable under Philippine Law.
Kinds of Domicile
Domicile of natural persons
 Domicile Of Origin - it is assigned to him by the law at the moment of birth.
For the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural
In case of a foundling, his domicile is the country where he was found. persons is the place of their habitual residence. (Art. 50, NCC)
Can a person be devoid of domicile? NO, because a person always have domicile of Domicile of juridical persons
origin which is granted at the moment of birth. No natural person must ever be without a
domicile. The domicile of juridical persons is
i. the place provided for in the law creating or recognizing them or in their articles of
 Constructive Domicile/Domicile By Operation Of Law - it is assigned to him by the agreement;
law after birth on account of a legal disability caused for instance by minority, insanity or ii. when the law creating or recognizing them, or any other provision does not fix the
marriage in case of a woman. domicile of juridical persons, the same shall be understood to be the place where their
legal representation is established or where they exercise their principal functions. (Art.
 Domicile Of Choice - the place freely chosen by a person so that whenever he is 51, NCC)
absent, he intends to return.
Domicile vs Citizenship/Nationality
Elements:
1. Physical presence in a fixed place. Domicile is a place of abode. While citizenship/nationality indicates ties, allegiance and
2. Intention to remain permanently (animus manendi). loyalty to the government.
3. Intention to abandon the old domicile (animus non revertendi).
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Q: Can a Person be Devoid of Nationality or citizenship?
A: Yes, because citizenship is merely a privilege which can be taken anytime on valid
grounds. Besides, there are those stateless persons whose nationality or citizenship was
taken from them.
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VI. MARRIAGE 3. Public deportment or representation as husband and wife.
The Family Code of the Philippines Proof to Disprove the Presumption
Effectivity Date: 3 August 1988 The fact that there was no record of the marriage is not sufficient to prove that there is no
marriage. To overcome the presumption, one or both are in fact married to another.
Retroactive Application
REQUISITES OF A VALID MARRIAGE
The code shall have retroactive effect insofar as it does not prejudice or impair vested or
acquired rights in accordance with the Civil Code or other laws. (Article 256) Essential Requisites (Art 2, FC):
MARRIAGE - is a special contract of permanent union between a man and a woman entered 1. Legal Capacity of the contracting parties who must be a male and a female.
into in accordance with law for the establishment of conjugal and family life. It is the
foundation of the family and an inviolable social institution whose nature, consequences, and Includes:
incidents are governed by law and not subject to stipulation, except that marriage settlements a. Age – at least 18 years of age at the time of celebration of marriage. Be it
may fix the property relations during the marriage within the limits provided by this Code. (Art remembered that formerly, the marriageable age was 14 years for females and 16
1, FC) years for males.
Marriage vs. Ordinary Contract Note: With the SC’s decision in CIR vs Primetown amending Art 13 of NCC, did you
1. Marriage is a special contract; and ordinary contract is just a mere contract. really become 18 years old at your 18th birthday?
2. Marriage is governed by law on marriage; an ordinary contract is governed by law on
contacts. b. Sex – must be a male and a female.
3. Marriage is an inviolable institution; an ordinary contract is not.
4. Marriage is not subject to stipulation except only with regard to marriage settlement which Illustration:
the parties may agree upon before the marriage; an ordinary contract is subject to FACTS: X, a Filipino male. In his certificate of live birth, it was indicated that he is
stipulation. male. Later, he publicly represented himself as a woman. Eventually, he underwent
5. In marriage, the contracting parties must only be 2, one is a male and the other is a sex reassignment. He now anatomically possessed of genetalia of a woman. He then
female; in ordinary contract, there can be 2 or more parties and the difference of gender filed a petition for the correction of entry so that male will be change to female so that
is not material. he could marry another male. Will the petition for correction of entry be granted?
6. Marriage is terminated by death or annulment due to legal cause, i.e., it cannot be HELD: NO, because there is no mistake of entry to speak of. The law does not
terminated without the consent of the state; an ordinary contract is terminated upon recognize correction of entries on the ground of sex reassignment, otherwise, such
expiration of the term of the contract, upon fulfillment of the condition for which it was may disturb public interest and policy. Besides, there is no law regulating sex
entered into, rescission, mutual agreement of the parties or through other causes. reassignment. (Silverio vs. Republic, October 22, 2007)
Presumption in Favor of Existence and Validity of Marriage Note: Civil Registry – historical record of all acts, events, judicial decrees that affects
rights, duties, status, condition, and legal capacity of persons. Birth Certificate is a
A man and a woman deporting themselves as husband and wife have entered into a lawful historical record of facts at birth. What may be changed are clerical or typographical
contract of marriage. This legal presumption may be rebutted by evidence showing that errors, ridiculous name, etc.
marriage did not actually take place.
c. Absence of legal impediment
Elements of Presumption of Marriage
1. Cohabitation of man and woman Examples of Legal Impediment
2. Accompanied with intent to dispose marital obligations c.1. Prior subsisting marriage
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c.2. Relationship - Incestuous marriages (Art. 37) and Quasi-incestuous marriages It is not the absence or presence of the solemnizing officer which constitute a formal
(Art. 38) requirement but it is the absence or presence of authority.
c.3. Public Policy (e.g. last par of Art 38)
Marriage may be solemnized by (Art 7, FC):
Legal Capacity to Contract Marriage by Foreigners, Stateless Persons, Refugees a. Any incumbent member of the judiciary within the court’s jurisdiction.
When either or both of the contracting parties are CITIZENS OF A FOREIGN COUNTRY, Conditions:
it shall be necessary for them before a marriage license can be obtained, to submit a i. during incumbency
CERTIFICATE OF LEGAL CAPACITY TO CONTRACT MARRIAGE, issued by their
respective diplomatic or consular officials. (A21, FC) If on leave – still have the authority
STATELESS PERSONS OR REFUGEES FROM OTHER COUNTRIES shall, in lieu of On Sundays, Saturdays, holidays – still have the authority.
the certificate of legal capacity herein required, submit an AFFIDAVIT SHOWING SUCH
CAPACITY TO CONTRACT MARRIAGE. (A21, FC) ii. within territorial jurisdiction
The legal capacity of a foreigner to marry, as determined by the law of the country of b. Any priest, rabbi, imam or minister of any church or religious sect
which he is a citizen, is recognized by our laws. This is in accordance with the nationality
theory under Article 15 of the Civil Code. Requisites for authority of a priest to solemnize marriage:
a. He must have written authority to solemnize marriages given by his church or
Under Article 35(1): a marriage contracted by any party below 18 years of age EVEN with religious sect.
the consent of parents or guardians shall be void ab initio. b. He must be registered in the office of the Civil Registrar General (not the local
civil registrar).
2. Consent freely given in the presence of the solemnizing officer. c. He must act within the limits of such authority.
d. Both or one of the parties to the marriage must belong to his church or sect.
Freely given before a solemnizing officer and in the presence of at least two witnesses of
legal age. The consent is real and not vitiated or rendered defective by any of the vices of c. Any ship captain or airplane chief (only in cases mentioned in Art 31)
consent. It must be free, voluntary, intelligent and personally given.
Requisites:
Consent need not be expressed in any special manner or particular form so long as there 1. the marriage must ne in articulo mortis (at least 1 is at the point of death)
is a manifestation that the contracting parties take each other as husband and wife. 2. the marriage must be between passengers or crew members;
3. generally, the ship must be at sea or the plane must be in flight.
Total absence of consent makes the marriage void ab initio.
Notes: Assistant pilot has no authority.
Hence, the marriage may be annulled if the consent of either party was obtained by
fraud, (Art. 45, par. 3), or if the consent of either party was obtained by force, intimidation Marriages may be solemnized during stopovers at ports of call.
or undue influence (Art. 45, par. 4).
d. Any military commander of a unit (only in cases mentioned in Art 32)
Formal Requisites (Art 3, FC): Requisites:

1. he/she must be a military commander of a unit;
1. Authority of the solemnizing officer. 2. he/she must be a commissioned officer (his/her rand should start from a second
lieutenant);
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3. he/she must be assigned to such unit;

4. the said chaplain must be absent at the time of marriage;
5. the marriage must be one in articulo mortis; 2. A valid marriage license EXCEPT in the cases provided for in Articles 27, 28, 31 –
6. the contracting parties, whether members of the armed forces or civilians must be 34.
within the zone of military operation.
Purpose of the Marriage License
Notes: The authority of the chaplain to solemnize is based on Art 7.
It is the best proof of the presence of legal capacity of the contracting parties.
Of course, other people like a judge or a consul, can perform a marriage in articulo
mortis. Where to apply?
e. Any consul-general, consul, or vice-consul. A marriage license shall be issued by the Local Civil Registrar of the city or municipality
where either contracting party habitually resides except in marriages where no license is
Marriages between Filipino citizens abroad may be solemnized by a consul-general, required in accordance with Chapter 2 of this Title. (A9, FC)
consul or vice-consul of the Philippines. (A10, FC)
If a marriage between Filipino citizens will be celebrated abroad to be solemnized by a
The duties of the solemnizing officer with regard to the celebration of marriage shall consul-general, consul or vice-consul of the Republic of the Philippines, the issuance of
be performed by the consular official. (A10, FC) the marriage license shall be performed by said consular official. (A10, FC)
Notes: Only if the contracting parties are both Filipino citizens. If one is foreigner, Requirements for Application
marriage is void.
1. Separate sworn application which shall specify the ff.: (Art. 11, FC)
They don’t have authority to solemnize marriage within the territory of the Phils.
a. Full name of the contracting party;
f. Incumbent Mayor of a city/municipality (See secs. 444 and 445 of the Local b. Place of birth;
Government Code). c. Age and date of birth;
d. Civil status;
Conditions: e. If previously married, how, when and where the previous marriage was dissolved
i. During incumbency or annulled;
ii. Within territorial jurisdiction f. Present residence and citizenship;
g. Degree of relationship of the contracting parties;
Note: It has been held that the Vice Mayor has the authority to solemnize marriages h. Full name, residence, and citizenship of the father;
because if the vice mayor assumes the powers and duties of the office of the mayor, i. Full name, residence, and citizenship of the mother; and
when proper, it is immaterial whether he is the Acting Mayor or merely acting as j. Full name, residence and citizenship of the guardian or person having charge, in
mayor, for in both cases, he discharges all the duties and wields the powers case the contracting party has neither father nor mother and is under the age of
appurtenant to said office. (Pp. vs Bustamante, 105 P 64) twenty-one years.
Effect if Solemnizing Officer NO Authority; Exception (Effect of Good Faith) NOTE: The applicants, their parents or guardians shall not be required to exhibit their
residence certificates in any formality in connection with the securing of the marriage
The marriage shall be VOID if it shall be solemnized by any person not legally authorized license.
to perform marriages, UNLESS such marriages were contracted with either or both
parties believing in good faith that the solemnizing officer had the legal authority to do so.
(A35[2], FC)
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2. Original birth certificates or, in default thereof, the baptismal certificates of the Note: In case there is a valid divorce decree, there must first be a Petition For
contracting parties or copies of such documents duly attested by the persons having Recognition Of Divorce Decree because our courts do not take judicial notice of
custody of the originals. (A12 par 1, FC) foreign judgments for they must be alleged and proved.
These certificates or certified copies of the documents by this Article need not be 5. Parental Consent
sworn to and shall be exempt from the documentary stamp tax. The signature and
official title of the person issuing the certificate shall be sufficient proof of its When Necessary (A14, FC)
authenticity. (A12 par 1, FC)
In case either or both of the contracting parties, not having been emancipated by a
When Original Birth Certificate or Baptismal Certificate Need Not be Presented previous marriage, are between the ages of 18 and 21, shall exhibit to the local civil
registrar, the consent to their marriage of their father, mother, surviving parent or
The presentation of birth or baptismal certificate shall not be required if the parents of guardian, or persons having legal charge of them, in the order mentioned.
the contracting parties appear personally before the local civil registrar concerned
and swear to the correctness of the lawful age of said parties, as stated in the Such consent shall be manifested in writing by the interested party, who personally
application, or when the local civil registrar shall, by merely looking at the applicants appears before the proper local civil registrar, or in the form of an affidavit made in
upon their personally appearing before him, be convinced that either or both of them the presence of two witnesses and attested before any official authorized by law to
have the required age. (A12 par 3, FC) administer oaths. The personal manifestation (by parents) shall be recorded in both
applications for marriage license, and the affidavit, if one is executed instead, shall be
3. If either of the contracting parties is unable to produce his birth or baptismal attached to said applications.
certificate or a certified copy of either because of the destruction or loss of the
original or if it is shown by an affidavit of such party or of any other person that such Note: Absence of consent will render the marriage voidable.
birth or baptismal certificate has not yet been received though the same has been
required of the person having custody thereof at least fifteen days prior to the date of It is submitted that parental consent is required if any or both parties are between the
the application, such party may furnish in lieu thereof his CURRENT RESIDENCE ages of 18, 19, and 20.
CERTIFICATE or an instrument drawn up and sworn to before the local civil registrar
concerned or any public official authorized to administer oaths. Such instrument shall 6. Parental Advice
contain the sworn declaration of two witnesses of lawful age, setting forth the full
name, residence and citizenship of such contracting party and of his or her parents, if When Necessary (A15, FC)
known, and the place and date of birth of such party. The nearest of kin of the
contracting parties shall be preferred as witnesses, or, in their default, persons of Any contracting party between the age of 21 and 25 shall be obliged to ask their
good reputation in the province or the locality. (A12 par 2, FC) parents or guardian for advice upon the intended marriage. A sworn statement by
the contracting parties to the effect that such advice has been sought, together with
4. In case either of the contracting parties has been previously married, the applicant the written advice given, if any, shall be attached to the application for marriage
shall be required to furnish, instead of the birth or baptismal certificate required in the license. (it can be manifested in writing or actual presence of the parents and such
last preceding article, the DEATH CERTIFICATE of the deceased spouse or the shall be noted by the LCR)
(authentic) JUDICIAL DECREE OF THE ABSOLUTE DIVORCE, or the (authentic)
JUDICIAL DECREE OF ANNULMENT or DECLARATION OF NULLITY of his or her Should the parents or guardian refuse to give any advice, this fact shall be stated in
previous marriage. (A13 par 1, FC) the sworn statement.
In case the death certificate cannot be secured, the party shall make an affidavit If they do not obtain such advice, or if it be unfavorable, the marriage license shall not
setting forth this circumstance and his or her actual civil status and the name and be issued till after 3 months following the completion of the publication of the
date of death of the deceased spouse. (A13 par 2, FC) application therefor.
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7. Marriage counseling (A16, FC) 4. In case of default to present such birth certificates, such party may furnish in lieu
thereof his current residence certificate or an affidavit for such matter. Such
In the cases where parental consent or parental advice is needed, the party or instrument shall contain the sworn declaration of 2 witnesses of lawful age.
parties concerned shall, in addition to the requirements of the preceding articles, 5. The local civil registrar shall prepare a notice and post the same for 10 consecutive
attach a certificate issued by a priest, imam or minister authorized to solemnize days.
marriage under Article 7 of this Code or a marriage counsellor duly accredited by the 6. In case of any impediment known to the local civil registrar or brought to his
proper government agency to the effect that the contracting parties have undergone attention, he shall note down the particulars thereof and his findings thereon in the
MARRIAGE COUNSELLING. application for a marriage license, but shall nonetheless issue said license after the
completion of the period of publication, UNLESS ordered otherwise by a competent
Failure to attach said certificates of marriage counselling shall suspend the issuance court at his own instance or that of any interested party (the oppositor may file an
of the marriage license for a period of 3 months from the completion of the injunctive action because LCR has only ministerial function). No filing fee shall be
publication of the application. charged for the petition nor a corresponding bond required for the issuance of the
order. (A18, FC)
Issuance of the marriage license within the prohibited period shall subject the 7. The local civil registrar shall require the payment of the fees prescribed by law or
issuing officer to administrative sanctions but shall not affect the validity of the regulation before the issuance of the marriage license. No other sum shall be
marriage. collected in the nature of a fee or tax of any kind for the issuance of said license. It
shall, however, be issued free of charge to indigent parties, that is, those who have
Should only one of the contracting parties need parental consent or parental advice, no visible means of income or whose income is insufficient for their subsistence, a
the other party must be present at the counselling referred to in the preceding fact established by their affidavit or by their oath before the local civil registrar. (A19,
paragraph. FC)
8. Prepare the documents required and to administer oaths to all interested parties
Publication/Posting Requirement (A17, FC) without any charge in both cases. The documents and affidavits filed in connection
with the applications for marriage licenses shall be exempt from documentary stamp
The local civil registrar shall prepare a notice which shall contain the full names and tax.
residences of the applicants for a marriage license and other data given in the 9. The local civil registrar concerned shall enter all applications for marriage licenses
applications. filed with him in a registry book strictly in the order in which the same are received.
10. Issue the License after publication unless ordered otherwise by a competent court.
The notice shall be POSTED for 10 consecutive days on a bulletin board outside the 11. Proper receipts shall be issued by the LCR to the solemnizing officer transmitting
office of the local civil registrar located in a conspicous place within the building and copies of the marriage certificate.
accessible to the general public.
Note: If Marriages between Filipino citizens abroad be solemnized by a consul-general,
This notice shall request all persons having knowledge of any impediment to the consul or vice-consul of the Philippines, The duties of the local civil registrar with regard
marriage to advise the local civil registrar thereof. to the celebration of marriage shall be performed by the consular official. (A10, FC)
The marriage license shall be issued after the completion of the period of publication. Suspension of the Issuance of the Marriage License
Duties of Local Civil Registrar If parental advice is required and the parties do not obtain such advice, or if it be
1. Receive the application for marriage license. unfavorable, the marriage license shall not be issued till after 3 months following the
2. Require the presentation of original birth/baptismal certificates except when completion of the publication of the application therefor.
presentation of this certificates shall not be required.
3. Require to furnish, instead of this certificate, the death certificate of the deceased Failure to attach certificates of marriage counseling, if required, shall suspend the
spouse or the judicial decree of annulment or declaration of nullity of his or her issuance of the marriage license for a period of 3 months from the completion of the
previous marriage. In case of default, an affidavit for such matter shall suffice. publication of the application.
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4. All marriages solemnized OUTSIDE the Philippines in accordance with the laws in
Enforceability/Validity of the License (A20, FC) force in the country where they were solemnized and valid there as such, shall also
be valid in this country, except those void foreign marriages. (A8, FC)
The license shall be valid in any part of the Philippines for a period of 120 days from the
DATE OF ISSUE, and shall be deemed automatically cancelled at the expiration of said Marriage by proxy:
period if the contracting parties have not made use of it. a. If performed here in the Philippines, the marriage is void because physical presence
of both parties is required.
The expiry date shall be stamped in bold characters on the face of every license issued. b. If performed abroad, whether between Filipinos or foreigners or mixed, and valid
there as such, the marriage should be considered valid in the Philippines as
The date of issue is the date of signing of the marriage license by the Local Civil mentioned under Art. 26.
Registrar
MARRIAGE CERTIFICATE – proof of marriage in which the parties declare that they take
An expired license is a void license. A void license cannot validate a marriage. each other as husband and wife.
3. A marriage ceremony which takes place with the appearance of the contracting parties Contents of Marriage Certificate
before the solemnizing officer and their personal declaration that they take each other as
husband and wife in the presence of not less than 2 witnesses of legal age. (A3, FC) The marriage certificate, in which the parties shall declare that they take each other as
husband and wife, shall also state:
Form – No prescribed form or religious rite for the solemnization of the marriage is
required. It shall be necessary, however, for the contracting parties to appear personally (1) The full name, sex and age of each contracting party;
before the solemnizing officer and DECLARE in the presence of not less than 2
witnesses of legal age that they take each other as husband and wife. This declaration (2) Their citizenship, religion and habitual residence;
shall be contained in the marriage certificate which shall be signed by the contracting
parties and attested by the solemnizing officer. (A6 par 1, FC) (3) The date and precise time of the celebration of the marriage;
In case of a marriage in articulo mortis, when the party at the point of death is unable to (4) That the proper marriage license has been issued according to law, except in marriage
sign the marriage certificate, it shall be sufficient for one of the witnesses to the marriage provided for in Chapter 2 of this Title;
to write the name of said party, which fact shall be attested by the solemnizing officer.
(A6 par 2, FC) (5) That either or both of the contracting parties have secured the parental consent in
appropriate cases;
Authorized Venues for Marriages
GENERAL RULE: The marriage shall be solemnized publicly, and not elsewhere: (6) That either or both of the contracting parties have complied with the legal requirement
1. In the chambers of the judge; regarding parental advice in appropriate cases; and
2. In open court;
3. In the church, chapel or temple; (7) That the parties have entered into marriage settlement, if any, attaching a copy thereof.
4. In the office of the consul-general, consul or vice consul, and not elsewhere. (A22, FC)
EXCEPT: Purpose and Value of Marriage Certificate

1. In marriages contracted at the point of death;
2. In remote places; The primary or best evidence of a marriage is the marriage contract or marriage certificate.
3. Marriage at a house or place designated by the parties in a sworn statement upon
their written to the solemnizing officer. Since marriage certificate is neither an essential nor a formal requisite, an unsigned or
unattested marriage certificate does not invalidate the marriage.
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ABSENCE, DEFECT OR IRREGULARITY IN THE REQUISITES

Who Issues Marriage Certificate: Solemnizing Officer
Effect of ABSENCE of Essential and Formal Requisites
Duties Of The Solemnizing Officer: GENERAL RULE: The absence of any of the essential or formal requisites shall render the
1. To prepare marriage certificate: the original for the contracting parties (either of them); marriage void ab initio. (A4 par 1, FC)
2 (duplicate and triplicate) for the LCR not later than 15 days after the celebration of the
marriage; one (quadruplicate) shall be retained by the solemnizing officer. Absence is a mere ground for declaration of nullity of marriage. Thus, if there is no judicial
declaration of nullity of marriage, the marriage is presumed valid and existing.
2. In the cases provided under Art. 27 (marriage in articulo mortis) and 28 (marriage in
remote places), the solemnizing officer shall state in an affidavit executed before the Instances of Absence of Legal Capacity
local civil registrar or any other person legally authorized to administer oaths that the a. Any or both contracting parties are below 18 at the time of celebration of marriage.
marriage was performed under such circumstances stated in said articles, and that the (Art 35 par 1, FC)
officer took the necessary steps to ascertain the ages and relationship of the contracting
parties and the absence of a legal impediment to the marriage. This is true notwithstanding the fact that the marriage was celebrated abroad and
valid there as such, shall not be valid in the Philippines because it falls under the
The affidavit of the solemnizing officer required by this article takes the place of the exception of lex loci celeracionis. (Art 26, par 1, FC)
marriage license and constitutes an assurance that the parties are of the proper ages and
that there is no impediment to their marriage. b. Bigamous/Polygamous marriages (Art 35 par 4, FC) – see Discussion Below
3. The original of the affidavit required above, together with a legible copy of the marriage c. Void marriage because of no compliance with Art 53 (Art 35[6], FC) – see Discussion
contract, shall be sent by the person solemnizing the marriage to the LCR of the place Below
where it was performed within the period of 30 days after the performance of the
marriage. d. Incestuous Marriages (Art 37, FC)
LCR has the duty to record the marriage certificate. Failure to record will not invalidate e. Quasi-Incestuous Marriages/Void Marriages by Reason of Public Policy (Art 38, FC)
the marriage because it is merely an administrative requirement.
Instances of Absence of Consent
4. For marriages involving ratification of marital cohabitation, the solemnizing officer shall a. If one or both are suffering from psychological incapacity at the time of marriage even
state under oath that he ascertained the qualifications of the contracting parties and if becomes manifest after the celebration. (Art 36, FC; see discussion below)
found no legal impediment to the marriage. b. When there is mistake of identity (Art 35 [5], FC)
c. Marriage by proxy (no consent/no declaration) EXCEPT when celebrated abroad and
Distinguished From Marriage License valid there as such.
1. Marriage license is a formal requisite of marriage, while marriage certificate is not.

2. Marriage license is issued before celebration of marriage, while marriage certificate is No Authority of the Solemnizing Officer – the marriage is void, provided both parties
issued after the celebration of marriage. are in bad faith, that is, they did not intend to be bound by the marriage, thus marriage is
3. Marriage license shows the authority to contract marriage, while marriage certificate a sham.
shows facts of celebration.
4. Absence of marriage license renders the marriage void, while absence of marriage EXCEPT:
certificate will not invalidate marriage. 1. Either or both parties believing in good faith that the solemnizing officer had the legal
authority to do so; (A35[2], FC)
2. Lex Loci Celebrationis
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1. Marriage solemnized outside territorial jurisdiction of the judge – irregularity of the formal
Lack of Marriage License - Marriage license is a prerequisite to the celebration of requisite of authority of the solemnizing officer.
marriage, thus absence of which renders the marriage void. 2. Marriage solemnized in places other than those authorize venues – irregularity in
marriage ceremony.
EXCEPT: 3. A marriage contracted by a party who is 21-25 years old without parental advice –
1. Lex Loci Celebrationis irregularity in securing a valid marriage license.
4. Failure to post the application for marriage license – irregularity in securing a valid
Marriages solemnized outside the Philippines where no marriage license is required marriage license.
by the country where it is solemnized and valid there as such, shall also valid here. 5. Absence of 2 witnesses of legal age – irregularity in marriage ceremony.
6. Absence of marriage certificate.
2. Marriages Under Exceptional Circumstances (A27-34, FC; See discussion below) 7. Unsworn application for marriage license.
Lack of Marriage Ceremony MARRIAGES CELEBRATED OUTSIDE THE PHILIPPINES
EXCEPT: Lex Loci Celebrationis GENERAL RULE: All marriages solemnized outside the Philippines, in accordance with the
laws in force in the country where they were solemnized, and valid there as such, shall also
Illustration: be valid in this country (LEX LOCI CELEBRATIONIS). (A26 par 1, FC)
FACTS: H and W got married in the Philippines. W went to Canada where she obtained a
divorce. H contracted subsequent marriage with W2. H then filed a petition for declaration EXCEPTIONS:
of nullity of his 1st marriage on the ground of the existence of divorce and that there was a. Either or both parties did not have the legal capacity to get married. (A35[1], FC)
no marriage ceremony. The fiscal charged him with bigamy for which he was convicted.
Pending appeal of the judgment of conviction, the marriage was declared void in the Art 15 of NCC provides that laws relating to legal capacity of persons are binding upon
petition for declaration of nullity on the ground that there was no marriage ceremony took citizens of the Phils, even though living abroad. Art. 26 of FC and Art 15 of NCC express
place. CA affirmed the conviction. HELD: SC reversed the judgment. H cannot be held the extra-territorial effect of the exception. Moreover, Art 17 par 3 of NCC provides that
liable for bigamy because the 1st marriage is not ostensibly valid. (Morigo vs Pp, 422 S prohibitive laws concerning persons, their acts or property, and those which have for their
376) object public order, public policy and good customs shall not be rendered ineffective by
laws or judgments promulgated, or by determinations or conventions agreed upon in a
foreign country.
Effect of Defect in Essential Requisites
b. The marriage is immoral being bigamous or polygamous not falling under Art 41. (A35[4],
A defect in any of the essential requisites shall render the marriage voidable as provided in FC)
Art. 45. (A4 par 2, FC) c. Consent of one party is lacking because of mistake as to the identity of the other. (A35[5],
FC)
Effect of Irregularity in Formal Requisites d. Subsequent marriages which are considered void due to lack of recording under Art. 53.
(A35[6], FC)
An irregularity in the formal requisites shall not affect the validity of the marriage but the party e. One of the parties is psychologically incapacitated at the time of the marriage. (A36, FC)
or parties responsible for the irregularity shall be held civilly, criminally or administratively f. Incestuous marriage. (A37, FC)
liable. (A4 par 3, FC) g. Void marriages by reason of public policy. (A38, FC)
This is a three-fold liability. Note: Common-law marriages obtained abroad by Filipinos are also not valid in the
Philippines.
Examples of Irregularity of in Formal Requisites:
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BUT UNDER RECENT JURIPRUDENCE, a divorce obtained by a former Filipino who

FOREIGN DIVORCES had been naturalized in another country after his naturalization is NOW recognized.
Absolute Divorce by a Filipino Spouse The validity of divorce is determined by the nationality of the party who obtained it. (San
Luis vs. San Luis, February 2007)
Divorce initiated by a Filipino is against public policy, thus, cannot be recognized. Art 15 of
NCC provides that laws relating to family rights and duties or to status, condition and legal Mitigation of Consequences Principle
capacity of persons are binding upon citizens of the Phils, even though living abroad.
Moreover, Art 17 par 3 of NCC provides that prohibitive laws concerning persons, their acts For as long as divorce is valid and even if the Philippines does not recognized it,
or property, and those which have for their object public order, public policy and good nevertheless, it would mitigate the effects of divorce in favor of the Filipino spouse.
customs shall not be rendered ineffective by laws or judgments promulgated, or by
determinations or conventions agreed upon in a foreign country. A Filipino is governed by his The intent of said provision (Art 26, par 2, FC) is to avoid the absurd situation where the
national law wherever he goes. Filipino spouse remains married to the alien spouse, who after obtaining a divorce, is no
longer married to the Filipino spouse. Taking into consideration the legislative intent, the
HOWEVER, insofar as the foreigner is concerned, the divorce obtained by the Filipino provision should be interpreted to include cases involving parties who, at the time of
spouse will be recognized because of the Philippine’s adherence to the nationality rule. Thus, celebration of the marriage, were Filipino citizens, but later one of them becomes
the foreigner spouse cannot claim that he/she still has an interest in the property acquired by naturalized as a foreign citizen and obtains a divorce decree. The Filipino spouse should
the Filipino after the divorce. As to the foreigner, he/she shall be considered divorced. likewise be allowed to remarry as if the other party was a foreigner at the time of the
Foreigner cannot also file a criminal case of adultery/concubinage against the Filipino spouse solemnization of the marriage. To rule otherwise would be to sanction absurdity and
because while the latter is considered married to him/her, the foreign spouse is no longer injustice. (Republic v Obrecido, Oct 5, 2005; Republic v Iyoy, Sept 21, 2005) The other
married to the Filipino. (Van Dorn vs Romillo, 139 S 139; Pilapil Case) reason for this is the application of nationality theory for a former Filipino is no longer
governed by Philippine Law.
Divorce by Foreigner Spouse
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a MARRIAGES UNDER EXCEPTIONAL CIRCUMSTANCES
divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to
remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine law. a. Marriage in Articulo Mortis
(A26 par 2, FC, as amended by EO 227)
Art. 27: marriage in articulo mortis; remains valid even if the ailing party subsequently
Note: This is a limited recognition of divorce. survives.
REQUISITES:
1. Marriage between a Filipino citizen and a foreigner is validly celebrated (textually
mixed marriage); Duty of the Solemnizing Officer
2. Alien spouse obtained a divorce against the Filipino spouse;
3. Divorce is VALID under the national law of the alien spouse; The solemnizing officer shall state in an AFFIDAVIT executed before the LCR or any
4. The divorce dissolves the marital bonds; other person legally authorized to administer oaths that the marriage was performed
5. The divorce capacitates the alien spouse to remarry. in articulo mortis. (A29, FC)
TRADITIONAL RULE: Art 26 par 2 applies when parties at the time of celebration are a The original of the affidavit required together with the legible copy of the marriage
Filipino and an alien. contract, shall be sent by the person solemnizing the marriage to the LCR of the
municipality where it was performed within the period of 30 days after the
performance of the marriage. (A30, FC)
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Requisites of ratification of marital cohabitation:

Art. 31: marriage in articulo mortis between passengers or crew while the ship is at sea or 1. The contracting parties must have been living together as husband and wife for at
the plane is at flight, and during stopovers at ports of call. least 5 years before the marriage.
2. The parties must have no legal impediment to marry each other during the
Art. 32: marriages in articulo mortis between persons within the zone of military cohabitation.
operation, whether members of the armed forces or civilians. 3. The contracting parties shall state the foregoing facts in an affidavit before any
person authorized by law to administer oaths.
Who May Solemnize 4. The solemnizing officer shall also state under oath that he ascertained the
qualifications of the contracting parties are found no legal impediment to the
All those authorized under Article 7 of the Family Code and the Mayor. Compliance with marriage.
other requirements before they can solemnize is necessary
Status of the Marriage
b. Marriages in Remote Place
The marriage is valid even if celebrated without marriage license.
Art. 28: marriage in remote places (no means of transportation to personally appear to
the LCR). Marriages solemnized without license are void from the beginning, except those Marriages
under exceptional circumstances. (A35[3], FC)
Duty of the Solemnizing Officer
Marriage license is a formal requisite of marriage EXCEPT those marriages under
The solemnizing officer shall state in an affidavit executed before the local civil exceptional circumstances. (A3[2], FC)
registrar or any other person legally authorized to administer oaths that the
residence of either party, specifying the barrio or barangay, is so located that there is
no means of transportation to enable such party to appear personally before the VOID AB INITIO MARRIAGES
LCR and that the officer took the necessary steps to ascertain the ages and
relationship of the contracting parties and the absence of legal impediment to the VOID MARRIAGES – marriage which is not valid from its inception.
marriage. (A29, FC)
Declaration of Nullity Divorce
The original of the affidavit required together with the legible copy of the marriage Cause of nullification Cause exists after the
contract, shall be sent by the person solemnizing the marriage to the LCR of the exists from the beginning marriage.
municipality where it was performed within the period of 30 days after the of marriage.
performance of the marriage. (A30, FC) One recognized in the Not recognized in the
Phils which allows the Phils EXCEPT when
parties to remarry. obtained by foreigners
c. Marriages among Muslims or among Members of the ethnic cultural communities. and valid in their country.
Art. 33: Marriages among Muslims or among members of the ethnic cultural communities Void Marriages Under the FC:
provided that they are solemnized in accordance with their customs, rites or practices. 1. Between minors (below 18) even with consent of parents or guardians. (A35[1], FC)
d. Convalidation of Cohabitation/Ratification of Marital Cohabitation 2. Solemnized by unauthorized officer, EXCEPT good faith of one or both of the parties.
(A35[2], FC)
Art. 34: Marriage of a man and a woman who have lived together as husband and wife
for at least five years and without any legal impediment to marry each other. 3. Solemnized without marriage license, except under Art. 27, 28, 31–34(marriages
exempt from marriage license). (A35[3], FC)
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b. the spouse present has a WELL-FOUNDED BELIEF that the absent spouse was
4. Bigamous/polygamous already dead.
Requisites of Bigamy In Republic vs Nolasco, this requirement is satisfied if serious and diligent efforts
a. There is a prior subsisting marriage; is exerted to locate the whereabouts of the absent spouse. If there is police
b. Prior marriage not validly terminated; assistance, thus the disappearance must be reported to the police. There must
c. Spouse contracted a 2nd or subsequent marriage; also be sending of letters to the relatives or known acquaintances of the absent
d. 2nd or subsequent marriage would have been valid were it not for prior subsisting spouse. And there must be actual physical search of the places where the absent
one. spouse is possibly be.
GENERAL RULE: A marriage contracted by any person during the subsistence of a c. Spouse present must institute a summary proceeding (NOT a special
previous marriage is VOID. proceeding) for the judicial declaration of presumptive death (by way of
petition) of the absentee, without prejudice to the effect of reappearance of the
EXCEPTIONS: absent spouse.
a. Code of Muslim Personal Laws
Note: Courts usually refuses to make judicial declaration of presumptive death
Muslim men in the Philippines are allowed maximum of 4 marriages even if the prior because it is not conclusive. Unlike in Arts 390 and 391, NCC, it is only in Art 41
marriage/s are still subsisting. Such privilege is not granted among Muslim women. of FC that a judicial declaration of presumptive death is mandatorily required for
the purpose of capacitating the present spouse to remarry. It is also required in
b. Art. 41: a marriage contracted by any person during the subsistence of a previous cases of settlement of estate.
marriage in cases where the prior spouse had been absent; (A35[4], FC)
RECENT JURISPRUDENCE ruled that the judicial declaration of presumptive
Valid Bigamous Marriage - before the celebration of the subsequent marriage, the death is immediately final and executory, thus not subject to appeal.
prior spouse had been absent for 4 consecutive years and the spouse present had a
well-founded belief that the absent spouse was already dead. In case of The judicial declaration must be registered with the LCR.
disappearance where there is danger of death under the circumstances set forth
under Art. 391 of the Civil Code, an absence of only 2 years shall be sufficient. Effect of registration:
a. The effects of 1st marriage is merely suspended.
For the purpose of contracting the subsequent marriage, the spouse present must b. 2nd marriage is conditional, that is, dependent on the confirmation of death
institute a summary proceeding for the declaration of presumptive death of the and reappearance.
absentee, without prejudice to the effect of reappearance of the absent spouse: this
provision is intended to protect the present spouse from a criminal prosecution for Effects of Subsequent Marriage
bigamy because with the judicial declaration that the missing spouse is presumptively
dead, the good faith of the present spouse in contracting a second marriage is IF BOTH PARTIES IN GOOD FAITH – marriage is valid. If the absent spouse
already established. reappeared and he/she or any interested person does not file an affidavit with the
civil registrar of the fact of reappearance, 2 valid marriages exist (valid bigamous
Requisites (A41, FC): marriage).
a. Before the celebration of the subsequent marriage, the prior spouse had been
absent for FOUR consecutive years (In case of disappearance where there is IF BOTH SPOUSES OF THE SUBSEQUENT MARRIAGE ACTED IN BAD FAITH –
danger of death under the circumstances set forth in the provisions of Article 391 marriage shall be void ab initio (for being bigamous) and all donations by reason of
of the Civil Code, an absence of only TWO YEARS shall be sufficient); marriage and testamentary dispositions made by one in favor of the other are
revoked by operation of law. (A44, FC) An example of this is when both parties to the
2nd or subsequent marriage know the whereabouts of the absent spouse.
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Cause of Termination of Subsequent Marriage Exception to the Exception: If both the spouses of the subsequent marriage acted
in bad faith, such marriage is void ab initio. (Art 44)
The subsequent marriage shall be automatically terminated (terminated ipso facto) by
the recording of the affidavit of reappearance of the absent spouse (constitute as a c. Art 26 par 2, FC – Valid Foreign Divorce (see Discussion Above)
notice in rem, UNLESS there is a judgment annulling the previous marriage or
declaring it void ab initio. 5. Contract by Mistake In identity – the mistake here is with regard to the physical identity
of one of the parties and not with regard merely to the character, health, rank, fortune, or
A sworn statement of the fact and circumstances of reappearance shall be recorded chastity of one party to the marriage. This is tantamount to absence or lack of consent
in the civil registry of the residence of the parties to the subsequent marriage at the which makes the marriage void. (A35[5], FC)
instance of any interested person, with due notice to the spouses of the subsequent
marriage and without prejudice to the fact of reappearance being judicially 6. Subsequent marriages in violation of Arts 40, 52 and 53
determined in case such fact is disputed. (A44, FC)
Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of
This is the only instance where a marriage is terminated extra-judicially EXCEPT remarriage on the basis solely of a final judgment declaring such previous marriage void.
when reappearance is disputed.
Pp vs Aragon, Feb 28, 1957 – no need of judicial declaration.
Effects of Termination of Subsequent Marriage
Gomez vs Lipana, June 30, 1970 – there was a need for a judicial declaration.
The termination of the subsequent marriage referred to in the preceding Article shall
produce the following effects (Art. 43, FC): Odayat vs Amante, June 2, 1977 – no need for judicial delaration.
(1) The children of the subsequent marriage conceived prior to its termination shall Weigel vs. Sempio Diy, Aug 19, 1986 – there was a need for judicial declaration.
be considered legitimate;
Yap vs CA, Oct 28, 1986 – no need for a judicial declaration.
(2) The absolute community of property or the conjugal partnership, as the case may
be, shall be dissolved and liquidated, but if either spouse contracted said Family Code, Aug 3, 1988 – there is a need for judicial declaration.
marriage in bad faith, his or her share of the net profits of the community
property or conjugal partnership property shall be forfeited in favor of the Purpose/Aim of Art 40
common children or, if there are none, the children of the guilty spouse by a
previous marriage or in default of children, the innocent spouse; The aim is to do away with any continuing uncertainty on the status of the 2nd marriage.
The 2nd marriage shall likewise be void. The parties to a marriage should not be allowed
(3) Donations by reason of marriage shall remain valid, except that if the donee to assume that there marriage is void even if such be the fact but must first secure a
contracted the marriage in bad faith, such donations made to said donee are judicial declaration of the nullity of their marriage. Before such declaration, the person
revoked by operation of law; who marries again can be charged with bigamy. (Mercado Case)
(4) The innocent spouse may revoke the designation of the other spouse who acted Distinguished From Bigamous Void Marriage
in bad faith as beneficiary in any insurance policy, even if such designation be
stipulated as irrevocable; and In bigamous void marriage, the subsisting first marriage is valid, while in Art 40, the
subsisting marriage is void. Thus, if a person remarries without a judicial declaration of
(5) The spouse who contracted the subsequent marriage in bad faith shall be nullity of the first marriage, the subsequent marriage is void not because it is bigamous
disqualified to inherit from the innocent spouse by testate and intestate but because it violates Art 40.
succession.
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Distinguished From Criminal Bigamy

Psychological incapacity - the condition of a person who does not have the mind, will,
The crime of bigamy contemplates a situation where the first marriage is valid, or at least and heart for the performance of essential marital/parental obligations. It is the inability to
annullable and not void from the beginning. understand the marital obligations leading to non-performance of the same.
HOWEVER, in the case of Mercado vs. Mercado, Aug 1, 2000, SC held that bigamy is It has no exact definition but is restricted to psychological incapacity to comply with the
committed for as long as a subsequent marriage was contracted without judicial essential marital obligations of marriage. It involves a senseless, protracted, and constant
declaration of nullity of the first marriage pursuant to Art 40 in relation to Arts 52 and 53 of refusal to comply with the essential marital obligations by one or both of the spouses
FC. (But see dissenting opinion of Justice Vitug) This ruling, in effect, states that criminal although he/she or they are physically capable of performing such obligations. (Chi Ming
bigamy is determined not by the fact that the first marriage is really legally void but by the Tsoi vs CA)
fact that no judicial declaration of nullity of the first marriage was obtained prior to the
subsequent marriage. It must be adjudged on a case to case basis. It should refer to no less than a mental (not
physical) incapacity.
Note: Although the first marriage is judicially declared void, any subsequent marriage
may still be considered void because of the failure to comply with Arts. 52 and 53. General characteristics of psychological incapacity:
a. It must be Grave - if the subject cannot carry out the normal and ordinary duties of
Art. 52. The judgment of annulment or of absolute nullity of the marriage, the partition marriage and family, shouldered by any average couple existing under ordinary
and distribution of the properties of the spouses and the delivery of the children's circumstances of life and work.
presumptive legitimes shall be recorded in the appropriate civil registry and registries of b. Juridical Antecedent - if the roots of the trouble can be traced to the history of the
property; otherwise, the same shall not affect third persons. subject before the marriage although its overt manifestations appear only after the
wedding.
Final Judgment of Nullity of Marriage is binding only between the parties, the effect of c. It must Permanent and Incurable - if treatments required exceed the ordinary
which is terminating the marriage bond. means of the subject, or involve time and expense beyond the reach of the subject.
GENERAL RULE: Judgment NOT binding against 3rd persons. Jurisprudential Guidelines in Interpreting and Applying Article 36 – BREIGOIC
(Republic v. Molina)
EXCEPT: When there is registration of the judgment.
a. The burden of proof to show the nullity of the marriage belongs to the plaintiff, and
Where to Register: Appropriate civil registry and registries of property. any doubt must be resolved in favor of the existence of the marriage and against its
nullity.
Art. 53. Either of the former spouses may marry again after compliance with the
requirements of the immediately preceding Article; otherwise, the subsequent marriage b. The root cause of the psychological incapacity must be:
shall be null and void.
1. Medically or clinically identified
Note: The recording is NECESSARY to bind 3rd persons and for the parties to be able to
validly contract a subsequent marriage. 2. Alleged in the complaint
The fact of registration restores legal capacity to contract a subsequent marriage. It has been relaxed, thus it need not be alleged in the complaint.
3. Sufficiently proven by experts

7. Art. 36: Those contracted by a party who at the time of the celebration of marriage was
psychologically incapacitated to comply with the marital obligations even if such
incapacity becomes manifest only after its solemnization.
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In the case of Marcos vs Marcos, October 19, 2000, it is not indispensable to

undergo psychiatric evaluation, it is sufficient that one is assessed by expert for f. The essential marital obligations must be those embraced by Arts. 68 –71 and Arts.
purposes of the petition. 220 - 225 of the Family Code, with regard to parents and children. Such non-
compliance must also be state in the petition, proven by evidence, and included in
Expert testimony is no longer indispensable. the text of the decision.
Under present jurisprudence, the incapacity must be proven based on the totality Essential marital obligations:
of evidence presented. Art. 68: the husband and wife are obliged to live together, observe mutual love,
respect and fidelity, and render mutual help and support.
In Ferraris vs Ferraris, 495 SCRA 396, SC held that the marriage cannot be Art. 220: parental authority over the person of their unemancipated children.
voided on the ground of psychological incapacity because of the failure to prove Art. 225: parental authority over the property of their unemancipated children.
the existence of the same. SC also discussed in this case the probative weight of
the expert testimony to the effect that the doctor failed to prove the existence of g. Interpretations given by the National Appellate Matrimonial Tribunal of the
mixed personality disorder of the husband. The testimonies of the doctor were Catholic Church, while not controlling, should be given great respect by our courts.
just her assumptions and based on what the plaintiff confined to her, thus
hearsay. There was failure to obtain collateral information. When the marriage is annulled by the NAMT, still, the marriage under the civil law is
valid and existing.
However, if there are independent evidence to show the incapacity, then the
marriage may be declared void. h. The trial court must order the fiscal and the Solicitor general to appear as counsel
for the State. No decision shall be handed down unless the Solicitor general issues a
Expert testimony is only indispensable when no other evidence was presented, certification, which will be quoted in the decision, briefly stating his reasons for his
otherwise, such will only be considered cumulative or corroborative. agreement or opposition to the petition. The Solicitor General and the fiscal shall
submit such certification to the court within 15 days from the date the case is
4. Clearly explained in the decision submitted for resolution.
c. The incapacity must be proven to be existing at the time of the celebration of the Note: The favorable recommendation of OSG has been relaxed. There must be an
marriage although the manifestation need not be perceivable at such time. independent judgment of the court.
d. The incapacity must also be shown to be medically or clinically permanent or The Following Do Not Constitute Psychological Incapacity
incurable, although the incurability may be relative only in regard to the other 1. Drunkenness / habitual alcoholism
spouse, not necessarily absolutely against everyone of the same sex. 2. Joblessness
3. Mere sexual infidelity or perversion
Incurability may be absolute as when the incapacity persists in all relationships. It 4. Abandonment
may also be relative as when the incapacity is only with the present spouse. 5. Immaturity
6. Irresponsibility
e. Such illness must be grave enough to bring about the disability of the party to 7. Refusal to give support
assume the essential obligations of marriage. 8. Infliction of physical violence
This means that there must be a serious mental and personality disorder which Note: While these may not constitute psychological incapacity, they may be
renders him or her incapable of understanding his/her marital obligations. considered as manifestations.
If the mental disorder is not connected with the failure to perform marital obligations, 8. Incestuous Marriages (Art 37, FC)
it is considered merely as a difficulty.
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Marriages between the following are incestuous and void from the beginning, whether the 5. Adopted son of the husband, and adopted daughter of the wife
relationship between the parties be legitimate or illegitimate:
1. Between ascendants and descendants of any degree. NOTE: RA 6995 (Mail Order Bribe Act) declares as unlawful the practice of matching
2. Between brothers and sisters, whether of the full or half-blood. Filipino women for marriage to foreign nationals on a mail order basis and other similar
practices including the advertisement, publication, printing or distribution of brochures,
Rationale for the Ban on Incestuous Marriage fliers and other propaganda materials in furtherance thereof.
In the first place, they are abhorrent to the nature, not only of civilized men, but of Action For Declaration Of Nullity Of Marriage
barbarous and semi-civilized people and, in the second place, tend to the confusion of
rights and duties incident to family relations. Also, a child of incestuous union creates a Who may Bring
special problem of social placement, because its status is so confused, as is that of its
parents. In addition, science and experience have established beyond cavil that such A petition for the declaration of absolute nullity of void marriage may be filed SOLELY by the
intermarriages very often result in deficient and degenerate offspring, which if occurring husband or the wife.” (S2[a], AM 02-11-10-SC)
to any great extent, would amount to a serious deterioration of the race. Finally, social
prohibitions against incest promote solidarity of the nuclear family. Petition for declaration of nullity of marriage, in the case of Catalan vs CA, February 2, 2007,
is considered as an ordinary civil action, thus any proper party who has legal interest may file
9. Quasi-incestuous Marriages / Void by Reason of Public Policy (ART 38, FC) the petition. In this case, SC recognized the legal capacity of the 1 st wife to institute the
petition.
These marriages are void from the beginning for reasons of public policy:
1. Between collateral blood, whether legitimate or illegitimate, up to the fourth civil Petition for declaration or annulment of marriage shall be filed by the aggrieved spouse and
degree. such is personal to him/her while he/she is still living. After death, the heirs may assail the
2. Between step-parents and step-children. validity of marriage in the settlement proceedings. (Enrico Case, 534 SCRA 418) In effect,
3. Between parents-in-law and children-in-law. the settlement court can decide on the validity of marriage whose decision is final and
4. Between the adopting parent and the adopted child. inappealable.
5. Between the surviving spouse of the adopting parent and the adopted child.
6. Between the surviving spouse of the adopted child and the adopter. Moreover, in the case of Ninal vs Bayadog, March 14, 2000, SC recognized the right of the
7. Between an adopted child and a legitimate child of the adopter. heirs of the deceased father assailing the validity of his marriage with their step-mother in a
8. Between adopted children of the same adopter. settlement proceeding. They have legal interest to determine their successional right to the
9. Between parties where one, with the intention to marry the other, killed that other exclusion of the step-mother.
person’s spouse, or his or her own spouse; in this case, there is no need for
conviction of the guilty party. The pleading may be in the form of petition or complaint where all grounds must be alleged.
In one case, there was a petition filed for declaration of nullity of marriage under Art 36. The
Reasons for the Prohibition court dismissed the case. On appeal, one new ground is included which is lack of license. SC
held that the new ground should be disregarded. All grounds must be alleged. Further, SC
They are against public policy. It is the policy of the state to foster a normal, peaceful and held that the judgment can no longer be reversed because parties are estopped from citing
wholesome integral nuclear family unit which would constitute the very foundation of the new ground. Neither the party can file a 2nd petition for nullity by reason of res judicata.
society.
Where to File:
Other relationships which are not impediments to marriage:
1. Brother-in-law and sister-in-law The petition shall be filed in the Family Court of the province or city where the petitioner or
2. Stepbrother and stepsister the respondent has been residing for at least 6 months prior to the date of the filing or in the
3. Guardian and ward case of non-resident respondent, where he may be found in the Philippines, at the election of
4. Adopted and illegitimate child of the adopter the petitioner. (S2[b], AM 02-11-10-SC)
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b. If there is an answer but no further appearance.

Prescriptive Period c. If either of the parties withdraw from the case.
The action or defense for the declaration of absolute nullity of a marriage shall not prescribe. If there is collusion, dismissal of the petition is warranted.
(Art 39, FC; S2[c], AM 02-11-10-SC)
HOWEVER, even if there is an agreement to file the annulment or nullity case, collusion will
Note: RA 8533 amended Art. 39, eliminating the second sentence thereof which states the not exist if the grounds relied upon truly exist and are not just concocted.
prescriptive period of 10 years in case of marriages celebrated before the affectivity of FC
which fall under Art 36 . STIPULATION OF FACTS – admission by both parties made in court agreeing to the
existence of the act constituting the ground for annulment or nullity.
Appearance of the State/Prohibition vs. Default Judgment
CONFESSION OF JUDGMENT – admission made in court by the defendant admitting fault
Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court as invoked by the plaintiff to sever the marriage ties.
shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to
take steps to prevent collusion between the parties and to take care that evidence is not Right To Support And Custody During The Pendency Of The Action
fabricated or suppressed.
Art. 49. During the pendency of the action and in the absence of adequate provisions in a
In the cases referred to in the preceding paragraph, no judgment shall be based upon a written agreement between the spouses, the Court shall provide for the support of the
stipulation of facts or confession of judgment. spouses and the custody and support of their common children. The Court shall give
paramount consideration to the moral and material welfare of said children and their choice
If the defendant fails to answer within 15 days from receipt of the summons, he or she cannot of the parent with whom they wish to remain as provided to in Title IX (See Art 213). It shall
be declared in default unlike in ordinary civil cases, and the court will order the full-blown (not also provide for appropriate visitation rights of the other parent.
summary) hearing of the case.
Art. 213. In case of separation of the parents, parental authority shall be exercised by the
If the answer admits the allegations of the petition, judgment on the pleadings cannot be parent designated by the Court. The Court shall take into account all relevant considerations,
decreed. Material facts alleged in the petition shall always be proved. especially the choice of the child over seven years of age, unless the parent chosen is unfit.
Note: Appearance of the OSG is no longer indispensable if the State is already protected by No child under 7 shall be separated from the mother, unless the court finds compelling
the appearance of the prosecutor. reasons to order otherwise.
Reason for the Appearance of the State Necessity of Final Judgment / Requirement for Remarriage (Art 40 in rel to Arts. 52 and
53 – see discussion above)
The reason for the duty is because marriage is not just a contract between the parties but a
social institution, in the preservation of which, the State is interested. Effects of Declaration of Nullity
1. No more marriage ties between the parties. No obligation to support one another. Duty to
COLLUSION – one which occurs where, for purposes of getting an annulment or nullity perform marital obligations is extinguished.
decree, the parties come up with an agreement making it appear that the marriage is 2. Children conceived and born during the marriage is downgraded to the status of
defective due to the existence of any of the grounds for annulment or nullity and agreeing to illegitimate. The finality of judgment makes the children illegitimate ipso facto. An
represent such false or non-existent cause of action before the proper court with the exception to this rule id Art 35[6] and Art 36 of the FC.
objective of facilitating the issuance of a decree of annulment of nullity of marriage. 3. Children are entitled to support. If the matter of custody is not yet resolved, apply the
rules on custody. There is grant of physical custody to be exercised by one party and
The Following Warrants the Conduct of Investigation visitation rights to be exercised by the other.
a. If defendant does not tender an answer.
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4. There is dissolution and liquidation of co-owned property under the rule on co-ownership Unless otherwise agreed upon by the parties, in the partition of the properties, the
under Art 147. conjugal dwelling and the lot on which it is situated shall be adjudicated to the spouse
with whom the majority of the common children choose to remain. Children below the age
The property will be divided in equal share unless there is proof to the contrary. of 7 years are deemed to have chosen the mother, unless the Court has decided
otherwise. In case there is no such majority, the Court shall decide, taking in to
Liquidation only happens after finality of judgment. In US, they call it “bifurcated process.” consideration the best interests of said children.
The liquidation is subject to the rule on forfeiture. Thus, if either spouse contracted said  Art. 51. In said partition, the value of the presumptive legitimes of all common children,
marriage in bad faith, his or her share of the net profits of the community property or computed as of the date of the final judgment of the trial court, shall be delivered in cash,
conjugal partnership property shall be forfeited in favor of the common children or, if property or sound securities, unless the parties, by mutual agreement judicially
there are none, the children of the guilty spouse by a previous marriage or in default of approved, had already provided for such matters.
children, the innocent spouse.(Art 43 [2], FC)
The children or their guardian or the trustee of their property may ask for the enforcement
SC held that in bigamous marriages along with adulterous relationships, relationships in a of the judgment.
state of concubinage, relationships with prior existing marriages, or multiple marriages of
married man, Article 148 of the FC on Rule of Limited Co-ownership shall apply. In such The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the
case, there is no presumption of equal sharing. Thus, co-ownership extends during ultimate successional rights of the children accruing upon the death of either of both of
relationship upon proof of actual acquisition. (Atienza vs De Castro) the parents; but the value of the properties already received under the decree of
annulment or absolute nullity shall be considered as advances on their legitime.
5. Donations by reason of marriage shall remain valid, except that if the donee contracted
the marriage in bad faith, such donations made to said donee are revoked by operation Note: As a rule, in void marriages, delivery of presumptive legitimes is not required
of law. (Art 43 [3], FC) EXCEPT only in void subsequent marriage resulting from non-compliance with Art 40 in
6. The innocent spouse may revoke the designation of the other spouse who acted in bad relation to Arts 52 and 53. This is because the rules on co-ownership shall govern the
faith as beneficiary in any insurance policy, even if such designation be stipulated as partition and liquidation.
irrevocable; (Art 43 [4], FC) and
7. The spouse who contracted the subsequent marriage in bad faith shall be disqualified to  Art. 52. The judgment of annulment or of absolute nullity of the marriage, the partition
inherit from the innocent spouse by testate and intestate succession. (Art 43 [5], FC) and distribution of the properties of the spouses and the delivery of the children's
8. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void presumptive legitimes shall be recorded in the appropriate civil registry and registries of
ab initio and all donations by reason of marriage and testamentary dispositions made by property; otherwise, the same shall not affect third persons.
one in favor of the other are revoked by operation of law. (Art 44, FC)
 Art. 53. Either of the former spouses may marry again after compliance with the
NOTES: requirements of the immediately preceding Article; otherwise, the subsequent marriage
 The final judgment in such cases shall provide for the liquidation, partition and shall be null and void.
distribution of the properties of the spouses, the custody and support of the common
children, and the delivery of third presumptive legitimes, unless such matters had been Status of Children born of Void Marriage
adjudicated in previous judicial proceedings. (A51, FC)
GENERAL RULE: Children conceived and born outside a valid marriage or inside a void
All creditors of the spouses as well as of the absolute community or the conjugal marriage are illegitimate.
partnership shall be notified of the proceedings for liquidation.
EXCEPTIONS:
In the partition, the conjugal dwelling and the lot on which it is situated, shall be 1. Children conceived or born (after the marriage but) before the judgment absolute nullity
adjudicated in accordance with the provisions of Articles 102 and 129. of the marriage under Article 36 has become final and executory shall be considered
legitimate.
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2. Children conceived or born of the subsequent marriage under Article 53 shall likewise be 1. Lack of Parental Consent - That the party in whose behalf it is sought to have the
legitimate. (A54, FC) marriage annulled was 18 years of age or over but below 21, and the marriage was
solemnized without the consent of the parents, guardian or person having substitute
parental authority over the party, in that order, UNLESS after attaining the age of 21,
VOIDABLE MARRIAGES / ANNULLABLE MARRIAGES such party freely cohabited with the other and both lived together as husband and wife.
VOIDABLE MARRIAGE - is valid until it is annulled. Before annulment, the voidable marriage 2. Insanity - That either party was of unsound mind, unless such party, after coming to
must be regarded as valid. One cannot just take the law into his own hands. He must go to reason, freely cohabited with the other as husband and wife.
court.
INSANITY – a manifestation, in language or conduct, of disease or defect of the brain, or
a more or less permanently diseased or disordered condition of the mentality, functional
VOID VOIDABLE or organic, and characterized by perversion, inhibition, or disordered function of the
Invalid/void from the Valid until annulled. sensory or the intellective faculties, or by impaired or disordered volition.
beginning.
Never be ratified. Susceptible of Test of Unsoundness of Mind
ratification.
Children, illegitimate Children, legitimate. The test is whether the party was deprive of reason. Insanity which occurred after the
EXCEPT Arts. 36 & 53. celebration of marriage cannot constitute a cause of nullity.
Liquidation of property, Based on property
co-ownership under Art regime. Drunkenness – may be considered insanity depending on the degree of drunkenness
147 and if bigamous which deprives a person of his reason.
marriage Art 148.
Can be collaterally Direct attack. Somnambulism (sleep-walking) – there is deprivation of reason, thus insanity.
attacked EXCEPT for
purposes of remarriage, Hypnotism – considered insanity provided there is deprivation of reason.
or revocation of donation
propter nuptias. Comatose – considered insanity. It is not the disease that is considered but the effect of
Nullification is There is prescription. the disease.
imprescriptible.
Any party who has legal Parties are only those Presumption of the Law
interest may impugn the provided by law.
validity of marriage. The general presumption of the law is in favor of sanity. He who alleges unsoundness of
Judicial decree of nullity Judicial declaration is mind has the burden of proof.
is necessary for necessary.
purposes of remarriage. Insanity vs Psychological Incapacity
Insanity is a restriction of the capacity to act, while psychological incapacity is the

Grounds for the annulment of marriage (Art 45 – the grounds are exclusive): incapacity to comply with marital obligations.
3. Vitiated Consent through Fraud - That the consent of either party was obtained by
The marriage may be annulled for any of the following causes, existing AT THE TIME OF
fraud, UNLESS such party afterwards, with full knowledge of the facts constituting the
THE MARRIAGE: LIV-VIA
fraud, freely cohabited with the other as husband and wife.
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Fraud constitutes (Art 46): 5. Impotency - That either party was physically incapable of consummating the marriage
a. Non-disclosure of a previous conviction by final judgment of the other party of a crime with the other and such incapacity continues and appears to be incurable.
involving moral turpitude.
Requisites for physical incapacity:
Note: In determining whether a crime involves moral turpitude, it is the nature of the a. That the incapacity exists at the time of the celebration of the marriage.
offense is considered. b. That such incapacity continues to the time when the case for annulment is being
tried.
Negligence cases under the Revised Penal Code do not involve moral turpitude c. That it appears to be incurable.
EXCEPT if it is so reckless amounting to malicious conduct. d. It must be unknown to the other contracting party.
Crimes under Special Laws also involve moral turpitude like violation of BP 22, vote The physical incapacity referred to by law as a ground for annulment of marriage is
buying, election offenses. Impotency.
b. Concealment (there must be bad faith) by the wife of the fact that at the time of the IMPOTENCY – inability of the male or female organ of copulation to perform its proper
marriage, she was pregnant by a man other than her husband. function. It is the physical condition of the husband or the wife in which sexual intercourse
with a normal person of the opposite sex is impossible. It is the lack of power to copulate,
c. Concealment of a STD, regardless of its nature, existing at the time of the marriage. the absence of the functional capacity for the sexual ac.
d. Concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism, Test of Impotency

existing at the time of the marriage.
It is the inability to copulate and not the inability to procreate.
Note: No other misrepresentation or deceit as to character, health, rank, fortune, or
chastity shall constitute such fraud as will give grounds for action for the annulment of Impotentia Copulandi vs Impotentia Generandi
marriage.
Impotentia Copulandi is the physical impotency or inability to copulate and considered as
4. Vitiated Consent by Force, Intimidation or Undue influence - That the consent of a ground for annulment of a voidable marriage. Impotentia Generandi on the other hand
either party was obtained by force, intimidation, or undue influence, UNLESS the is known as sterility or the inability to procreate. In sterility, there is capacity to copulate
same having disappeared or ceased, such party thereafter freely cohabited with the other which is absent in impotency.
as husband and wife.
Relative/Temporary impotency – is where a person is impotent with respect to his or
FORCE – there is actual physical coercion and serious or irresistible force is employed. her spouse but not with another woman or man. Under the Family Code, relative
impotency may be invoked as ground for annulment of marriage in view of the physical
INTIMIDATION - when one of the contracting parties is compelled by a reasonable and incapability of one party to consummate said marriage with the other.
well-grounded fear of imminent and grave evil upon his person or property, or upon the
person or property of his spouse, descendants or ascendants, to give his consent. Potency is presumed
The marriage cannot be annulled on the ground of intimidation if the threat is to enforce Potency is presumed unless the person is too old for normal sexual activity. Impotency
one’s claim, which is just or legal, through competent authority. To be considered a being an abnormal conditions should not be presumed.
ground, the threat must be unjust or illegal.
Burden of Proof
UNDUE INFLUENCE - when a person takes improper advantage of his power over the
will of another, depriving the latter of a reasonable freedom of choice. He who claims impotency must prove the claim because the presumption is in favor of
potency.
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Doctrine of triennial cohabitation - if the wife remains virgin after living together with To What Marriages Applicable
her husband for 3 years from the time of marriage, the presumption is that the husband is
impotent, and he will have to overcome this presumption. a. In marriage where there is lack of parental consent – after attaining the age of 21
Note: NO ratification by free cohabitation in cases of absolute impotency because there b. In marriage where one is of unsound mind – after coming to reason
could be no cohabitation as consummation of the marriage is not possible. However,
estoppel is applicable. Knowledge of impotency at the time of marriage will negate c. In marriage where consent is obtained by fraud – after having full knowledge of the
annulment of marriage. facts constituting fraud
6. Affliction of STD - That either party was afflicted with a STD (Sexually-transmissible d. In marriage where the consent is obtained by force, intimidation – after force,
disease) found to be serious and appears to be incurable (e.g. Hepatitis B and C are intimidation or undue influence has disappeared.
STD and serious while Hepatitis A is not STD)
Cohabitation, How Proven
Requisites: a. After knowledge of the defect, the party who is entitled to file an action, freely
a. Disease must be existing at the time of marriage discharges his/her marital obligations.
b. The disease must be STD b. Consummation of marriage, after knowledge of the defect.
c. STD must be Serious
d. STD appears to be incurable Effects of Ratification – extinguishment of the right of action for annulment of a voidable
marriage.
Affliction of STD as a ground for annulment Under Article 45 (6) v. Affliction of STD
as constituting fraud under Article 46 (3). Note: If the ground is impotency or affliction of STD, there is no ratification to speak of
since the defect is permanent. They can be convalidated only by prescription.
Art. 45 (6) Art. 46 (3)
One party is afflicted 2. Prescription (See the Table Below)
One party is afflicted
with a STD found to
with a STD Action for Annulment of Marriage
be serious and
regardless of its
appears to be
nature Who May Bring and Within What Period (Art 47; AM 02-11-10-SC)
incurable
The disease is present The disease is
at the time of the present at the time of Grounds Persons who may Prescriptive
marriage the marriage sue period
Concealment is Lack of The party who Within 5 years after
parental lacks parental reaching the age of
immaterial; the
consent consent 21
disease may be There is concealment Lack of The parent, legal At anytime before
known to the other parental guardian or person the party who lacks
party consent having substitute parental consent
parental authority reaches 21
Note: No ratification by free cohabitation in STD. who did not give
consent, in that
Ratification/Convalidation of Voidable Mariiage, Modes order
Sane spouse (no At anytime before
Insanity
knowledge of the the death of either
1. Free Cohabitation
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ground) party Art 40 which speaks of absolute nullity includes annulment of marriage. Thus, the necessity
Insanity Relatives, At anytime before of judicial declaration for purposes of remarriage.
guardians or the death of either
person having party When Decree of Annulment of Marriage be Issued by the Court (same in declaration of
legal charge of the nullity marriage)
insane
Insanity Insane spouse During sanity or
lucid interval The court shall issue the decree after:
Injured party Within 5 years after 1. Registration of the entry of judgment granting the petition for declaration of nullity or
Fraud the discovery of the annulment of marriage in the Civil Registry where the marriage was celebrated and in the
fraud Civil Registry of the place where the Family Court is located.
Force, Injured party Within 5 years from 2. Registration of the approved partition and distribution of the properties of the spouses in
intimidation the time the the proper Register of Deeds where the real properties are located.
or undue grounds stated 3. The delivery of the children’s presumptive legitimes in cash, property or sound securities.
influence ceased (S22, A.M. No. 02-18-10-SC)
Physical Injured party. If
incapability both are impotent,
Within 5 years after
no one can file
the marriage Note: The Decree in the Civil Registry where the marriage was registered, the Civil Registry
because there is no
injured party. of the place where the Family is situated, and in the National Census and Statistics Office is
Affliction of Within 5 years after the vest evidence to prove declaration of absolute nullity or to serve as notice to 3 rd person
Injured party concerning the properties of the spouses as well as presumptive legitimes delivered to the
STD the marriage
common children.
When Actions for Annulment will not Prosper

a. If persons other than those specified by law filed the case. If there are no properties of the spouses which could be the subject of liquidation, partition
b. When the action was filed after prescription had set in. and distribution, there is NO need for the recording of the judgment in the appropriate
c. When the injured party freely cohabited with the other as husband and wife. registries of property. Our governing laws do not require such judgment to be furnished and
recorded in the proper registries of property.
Where to File the Petition
Effects of Annulment (Same in Nullity)
The petition shall be filed in the Family Court of the province or city where the petitioner or
the respondent has been residing for at least 6 months prior to the date of the filing or in the Status of Children Born of Voidable Marriage
case of non-resident respondent, where he may be found in the Philippines, at the election of
the petitioner. Children conceived OR born before the judgment of annulment shall be considered
legitimate.
Appearance of the State (Art 48 – See Discussion Above, Same in Declaration of
Nullity of Marriage)
LEGAL SEPARATION
Right to Support and Custody During Pendency of Action (Same in Declaration of
nullity of marriage) LEGAL SEPARATION - the marriage bond between the husband and wife is not severed.
The parties are merely separated from bed and board.
Necessity of Final Judgment / Requirements for Remarriage (Same in declaration of
Nullity of marriage) A Vinculo Matrimonii and A Mensa et Thoro, Distinguished
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A Vinculo Matrimonii or Absolute divorce is a separation of the spouses for a cause

authorized by law by a judgment of competent court where the marriage tie is dissolved Absolute Divorce Under Muslim Code of Personal Laws
leaving the parties free to contract a new marriage. A Mensa et Thoro or Relative Divorce, on
the other hand is the separation of the spouses from bed and board for a cause authorized by For a period of 20 years from June 17, 1949, absolute divorce in accordance with
law by the judgment of a competent court but the marriage tie subsists and the parties are not Mohammedan customs and practices is recognized for Mohammedans residing in non-
allowed to marry again. Under the Family Code, relative divorce is known as LEGAL Christian provinces. This law, in turn, is now superseded by the Muslim Code of Personal
SEPARATION. Laws, wherein absolute divorce in accordance with Muslim customs and practices is also
recognized.
History of Divorce and Legal Separation
 Siete Partidas, during the Spanish regime, provided for relative divorce/legal separation Legal Separation vs. Separation of Property (Arts. 134 – 136, FC)
in the Philippines, not Absolute Divorce. This was our law until Act 2710, which allowed
only absolute divorce. Legal Separation Separation of Property
 The Divorce Law (Act 2710) recognized only two grounds for absolute divorce and Must be done thru the 1.) If one prior to
implicitly ruled out relative divorce. The two grounds were: Adultery on the part of the court. marriage-may be done
wife; Concubinage on the part of the husband. thru the marriage
 Executive Order 141 enlarged the grounds for divorce under Act 2710 by adding 8 more settlement.
grounds – during the Japanese regime. 2.) If done during the
 Oct 23, 1944, EO 141 was repealed and Act 2710 was revived. existence of the
 Act 2710 (the Old Divorce Law) was repealed by the New Civil Code on Aug 30, 1950. marriage-must be done
Today, with the exception of Moslem divorces and the implicit absolute divorce law thru the courts.
allowed under Article 36 (Psychological incapacity) of the Family Code, we only have Always involves May exist with or without
relative divorce or legal separation in the Philippines separation of property. legal separations. Thus,
Thus, may be May be considered as
Rules for Absolute Divorce TODAY both under the Civil Code and the Family Code considered as a cause one of the effects of legal
(without prejudice to Muslim Code of Personal Laws) of separation of separation.
 If the action is brought HERE in the Philippines property.
b. Between Filipinos-will NOT prosper EXCEPT divorces between Filipino Muslims Cannot be granted on Can be effected by
c. Between foreigners-will NOT prosper mere stipulation of agreement of the
d. Between a Filipino and a foreigner-will NOT prosper. facts, or confession of spouses during the
judgment or agreement marriage subject to court
 If the action is brought in a FOREIGN COURT of the parties. approval. If done before
1.) Between Filipinos-will NOT be recognized here even if allowed by said foreign court, the marriage, it can be
and even if the ground be either adultery on the part of the wife or concubinage on effected thru marriage
the part of the husband. settlement.
2.) Between foreigners-foreign decree will be RECOGNIZED here only if the following The spouses are The spouses are NOT
two conditions concur: necessarily separated. necessarily separated.
a.) The foreign court has jurisdiction to grant the absolute divorce.
b.) Said divorce is recognized as valid by the personal law of the parties involved,
that is, if valid according to their national law or the law of their domicile Legal Separation (Art. 55) vs. Separation De Facto (Art. 100-101)
depending upon the theory adopted by their countries.
1. In legal separation, the separation is the result of judicial decree. While in de facto
3.) Between a Filipino and a foreigner-If obtained by the foreigner and valid according to separation, the spouses are just living separately irrespective of the period but the absent
his personal law-valid for both foreigner and Filipino under Art 26. spouse has no clear intention of deserting the conjugal dwelling (as distinguished from
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abandonment where there is no intention to return and there is a period of time required motion should not be granted because legal separation is a separate proceeding and
to lapsed before abandonment can be considered). conviction by final judgment in the criminal case is not necessary for the civil case to
2. In legal separation, the law provides for certain consequences like separation of property, prosper.
dissolution of the absolute or conjugal property regime, disqualification to inherit from the
innocent spouse in intestate succession, and cessation of the right to cohabitation. In de 2. Physical violence or moral pressure to compel the petitioner to change religious or
facto separation (like in abandonment), there is no judicial intervention and no dissolution political affiliation.
of the conjugal partnership or absolute community of property, thus the husband and wife
are still heirs of each other, their property relations remain, unless the innocent party 3. Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of
disinherits the guilty party in his will or her will. the petitioner, to engage in prostitution, or connivance in such corruption or inducement.
3. In both cases, the spouses live separately. The absent spouse is not entitled to support
and the marriage remains intact which presupposes that the obligation of mutual fidelity 4. Final judgment sentencing the respondent to imprisonment of more than six years, even
remains, violation of which subjects the violator to criminal prosecution such as for if pardoned.
adultery and concubinage. In separation de facto, when the consent of one spouse to any
transaction of the other is required by law, judicial authorization shall be obtained in a 5. Drug addiction or habitual alcoholism of the respondent.
summary proceeding and; in the absence of sufficient community property, the separate
property of both spouses shall be solidarily liable for the support of the family. The 6. Lesbianism or homosexuality of the respondent;
spouse present shall, upon proper petition in a summary proceeding, be given judicial
authority to administer or encumber any specific separate property of the other spouse NOTE: The extent of drug addiction, habitual alcoholism, lesbianism or homosexuality is
and use the fruits or proceeds thereof to satisfy the latter’s share. the same as those in annulment. However, in annulment, they are instances of fraud
which must exist at the time of the celebration of marriage. In legal separation, such
Legal Separation vs. Annulment of Marriage grounds exist even after the marriage ceremony.
Legal Separation Annulment of marriage 7. Contracting by the respondent of a subsequent bigamous marriage, whether in the
Marriage is not Marriage is defective. Philippines or abroad.
defective.
Grounds arise only Grounds must exist at Bigamy, as a ground for legal separation does not require a prior conviction for as long as
after the marriage. the time of or before the there is proof of subsequent bigamous marriage.
marriage.
Spouses are still Spouses are no longer 8. Sexual infidelity or perversion.
married to each other married to each other,
and cannot remarry. thus they can remarry. SEXUAL INFIDELITY – includes adultery, concubinage and other acts short of adultery
There are 10 grounds. There are only 6 and concubinage for as long as such acts constitute a clear betrayal of the trust of his/her
grounds. spouse. In case of concubinage as a ground for annulment of a voidable marriage, there
is no need of conviction by final judgment for such can be proven by preponderance of
Grounds for legal separation (Art 55): RP-FADALACS evidence.
1. Repeated physical violence or grossly abusive conduct directed against the petitioner, a
common child, or a child of the petitioner. SEXUAL PERVERSION – can refer to any abnormal or pervert act or turning from the
true end or proper purpose of sexual organs.
Illustration:
FACTS: 5 years after celebration of the marriage, H, in several occasions, inflicted upon 9. Attempt by the respondent against the life of the petitioner.
W injuries. The latter filed a criminal case for serious physical injuries. W also filed a civil
action for the issuance of a decree of legal separation. H filed a motion to suspend the The attempt must come from an evil design. There is no need of conviction. Such attempt
civil case contending that it should wait for the judgment in the criminal case. HELD: The can be proven by preponderance of evidence.
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10. Abandonment of petitioner by respondent without justifiable cause for more than one “Where the wife left the conjugal home after her adulterous acts were discovered, the fact
year. that the husband did not actively search for her is not condonation. It was not the duty of
the husband to search for the wife under the circumstances. On the contrary, hers was
ABANDONMENT – refusal or failure to comply with the marital obligations. It does not the duty to return to the conjugal home”. (De Ocampo v. Florenciano, L-13553, Feb. 23,
only refer to desertion of the conjugal dwelling without intention of returning. (Art 101, FC) 1960)
Constructive Abandonment – where one spouse, without just cause, forcibly ejects the Condonation must be given by the aggrieved party after full knowledge of the marital
other from their home and refuses to allow her to return and that will constitute offense committed. It must be subsequent of the commission of the marital offense.
abandonment.
Effect of Conditional Condonation/Pardon
Presumption of abandonment:
1. When the spouse who has left the conjugal dwelling for a period of no less than 3 If the aggrieved party expressly forgives the guilty spouse subject to the condition that the
months; or latter should not commit the marital offense again. Should the guilty spouse commits
2. When he/she has failed within the same period to give any information as to his or another marital offense, there is no compliance with the condition. Thus, the basis of
her whereabouts. (Art 101, FC) legal separation can be the previous marital offense because non-compliance with the
condition amounts to no condonation at all and the subsequent marital offense.
Effects of Abandonment without just cause
a. Possible legal separation 2. Consent
b. Petition for Receivership, Judicial Separation of Property, Sole Administration of the
Absolute Community or conjugal partnership (subject to precautionary conditions). Where the aggrieved party has consented to the commission of the offense or act
These remedies are also available in case of failure to comply with obligations to the complained of.
family. The obligations to the family mentioned refer to marital, parental or property
relations. (Art 101, FC) CONSENT – acquiescence or permission or willingness to agree to the commission of
c. One who abandoned not entitled to support. the act complained of.
Forms:
Defenses Against Legal Separation (Art 56) a. Express
1. Condonation / Pardon b. Implied.
Where the aggrieved party has condoned the offense or act complained of. Consent vs. Condonation
Consent is prior to the act of commission of marital offense, while condonation comes
CONDONATION – this is forgiveness, express or implied, after the commission of the after the commission of marital offense. To make use of either, the same must be
offense or act complained of and not before. BEFORE the filing of the complaint.
Forms: “An agreement between a husband and wife whereby each could live with others, have
a. Express carnal knowledge of them, without interference from the other, constitutes consent”.
b. Implied - Implied condonation may come in the form of voluntary sexual intercourse (People v. Schneckenburger) While such agreement is void for being contrary to public
after knowledge of the cause. policy, the policy being that the nature and consequence of marriage is not subject to
stipulation, it can still be used as a defense to negate the action of nullity.
“Each sexual intercourse of the wife outside marriage is a separate act of adultery.
Therefore, condonation of one act does not necessarily imply condonation of the others”.
(People v Zapata and Bondoc, L-3047, May 16, 1951)
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Consent must be distinguished from entrapment. Therefore, if the purpose is to merely

catch the wife, this is not consent even if the husband deliberately went away only to In certain acts of adultery, each adulterous act is a separate cause for legal separation.
come back and trap the wife. Each one is subject to a separate prescriptive period.
3. Connivance The law should be interpreted to mean within 5 years from the time of discovery of the
cause.
Where there is connivance between the parties in the commission of the offense or act
constituting the ground for legal separation. Action for Legal Separation
CONNIVANCE – this is a tacit permission to the commission of the act complained of. Procedure (AM 02-11-11-SC)
Not both spouses are parties to the connivance but only one spouse with a third person.
Who May File
If a husband hires a detective to spy on his wife, and tells him to have sexual intercourse
with her in order to have evidence, this will be a case of Connivance. The husband here The petition may be filed only by the husband or wife.
is unworthy or that he himself is guilty.
Where to file (Same in nullity and annulment)
This is similar to instigation in the criminal as distinguished fro entrapment.
Summons shall be serve to the respondent
4. Mutual guilt
Respondent’s Answer/Failure to File an Answer, Effects (Same in nullity and
Where both parties have given ground for legal separation; annulment)
MUTUAL GUILT/RECRIMINATION - both parties are in pari delicto, there is no offended Appearance of the State (Same in nullity and annulment)
spouse who deserves to bring the action. This is true even if one of the parties has been
pardoned but the other has not. The reason for this lies in the equitable maxim that “He If there is no finding of collusion, the hearing of the petition shall proceed.
who comes to court must come with clean hands.” Also, it is also a rule that, when 2
persons acted in bad faith, they should be considered as having acted in good faith. If there is collusion, the petition will be dismissed motu proprio.
5. Collusion Motion to Dismiss
Where there is collusion between the parties to obtain decree of legal separation. No motion to dismiss the petition shall be allowed except on the ground of lack of jurisdiction
over the subject matter or over the parties.
COLLUSION - This is an agreement to commit marital offense or an agreement whereby
one will pretend to have committed the ground relied upon. Mandatory COOLING-OFF period
A legal separation obtained thru collusion is void. An action for legal separation shall in no case be tried before 6 months shall have elapsed
since the filing of the petition. (Art 58, FC)
6. Prescription
REASON: To make a possible reconciliation between the spouses.
Prescriptive period
NOTE: There is no cooling-off period if the ground alleged are those under RA 9262
An action for legal separation shall be filed within 5 years from the time of the occurrence (Violence Against Women and Children). Art 19 of said law provides: “In cases of legal
of the cause. (Art 57) separation, where violence as specified in this act is alleged, Art 58 of FC will not apply. The
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court shall proceed in the main case and other incidents of the case as soon as possible. The belongs to them is delivered. But from this shall be deducted that amount received for
hearing on any application for a protection order filed by the petitioner must be conducted support which exceeds the fruits or rents pertaining to them.
within the mandatory period specified in this Act.
During the proceedings for legal separation or for annulment of marriage, and for
Duty of Court to Effect Reconciliation declaration of nullity of marriage, the spouses and their children shall be supported
from the property regime. After the final judgment granting the petition, the obligation of
No legal separation may be decreed unless the court has taken steps toward the mutual support between the spouses ceases. However, in cases of legal separation, the
reconciliation of the spouses and is fully satisfied, despite such efforts, that reconciliation is Court may order that the guilty spouse shall give support to the innocent one.
highly improbable. (Art 59, FC)
Effects of DECREE of Legal Separation (after the lapse of the period to appeal)
Necessity of Trial and Intervention of State 1. The spouses are entitled to live separately, but the marriage bonds shall not be severed.
(Art 63 [1], FC)
No decree of legal separation shall be based upon a stipulation of facts or a confession of 2. Innocent spouse is entitled to support from the guilty spouse not vice-versa.
judgment. 3. The status and condition of children are not affected.
4. The property regime shall be dissolved and liquidated but the offending party shall
In any case, the Court shall order the prosecuting attorney or fiscal assigned to it to take have no right to any share of the net profits earned by the property regime, and shall be
steps to prevent collusion between the parties and to take care that the evidence is not forfeited in favor of the common children or, if none, the children of the guilty spouse by a
fabricated or suppressed. (Art 60, FC) previous marriage or, in default of children, the innocent spouse [this is in accordance
with Art. 43 (2)]. (Art 63 [2], FC)
Effects Legal Separation Pendente Lite 5. The custody of the minor children shall be awarded to the innocent spouse subject to
1. After the filing of the petition for legal separation, the spouses shall be entitled to live the provisions of Art 213. (Art 63 [3], FC)
separately from each other. (Art 61 par 1, FC)
2. The administration of the absolute community property or conjugal partnership may be Art. 213: in case of separation of the parents, parental authority shall be exercised by the
agreed upon in writing between them. parent designated by the Court. The Court shall take into account all relevant
3. The court, in the absence of a written agreement between the spouses, shall designate considerations, especially the choice of the child over 7 years of age, unless the parent
either of them or a third person to administer the absolute community or conjugal chosen is unfit. No child under 7 years of age shall be separated from the mother, unless
partnership property. The administrator appointed by the court shall have the same the court finds compelling reasons to order otherwise.
powers and duties as those of a guardian under the Rules of Court. (Art 61 par 2, FC)
4. The wife is suable alone without impleading the husband. 6. The offending spouse shall be disqualified from inheriting from the innocent spouse by
5. When the consent of one spouse is needed in any transaction, judicial authorization is intestate succession. Moreover, Provisions in favor of the offending spouse made in the
necessary. will of the innocent spouse shall be revoked by operation of law.
6. During the pendency of the action for legal separation, the provisions of Article 49 shall
likewise apply to the support of the spouses and the custody and support of the common NOTES:
children.  If, however, the offended spouse executes another will in favor of the offending
spouse after the decree of legal separation, the will shall be valid.
During the pendency of the action, the Court shall provide for the support of the spouses  The conviction of the wife of adultery does not disqualify her to inherit from the
and the custody and support of their common children. The court shall give paramount offended husband, if there is no decree of legal separation between them.
consideration to the moral and material welfare of said children and their choice of the Accordingly, the guilty spouse shall not be disqualified from inheriting unless the
parent with whom they wish to remain. It shall also provide for appropriate visitation rights innocent spouse files a case for legal separation.
of the other parent. (Art 49)
7. Art. 64: the innocent spouse may revoke the donations made by him or her in favor of
From the common mass of property, support shall be given to the surviving spouse and the offending spouse, as well as the designation of the guilty party as a beneficiary in any
to the children during the liquidation of the inventoried property and until what insurance policy, even if such designation be stipulated as irrevocable.
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In other words, the revival of the old property regime between the parties is without
The revocation shall be recorded in the registry of property in the places where the prejudice to vested rights already acquired by creditors prior to such revival. In effect, a
properties are located. Alienations, liens and encumbrances registered in good faith legal lien is created in favor of unsecured creditors. Thus:
before the recording of the revocation shall be respected. The revocation of or change in a. Contractual lien holders retain their liens.
the designation in any insurance beneficiary shall take effect upon written notification to b. Creditors without liens are given a legal lien.
the insured. c. In case of insufficiency of property to settle the debts, the future shares of debtor-
The action to revoke donation must be brought within 5 years from the time the decree of spouse in the property regime will answer his personal obligations.
legal separation has become final.
NOTES:
Reconciliation Reconciliation has no retroactive effect.
This is a mutual agreement of the spouses to resume their marital relationship, thus putting The order of the court ordering the termination of the legal separation proceeding and the
an end to their marital differences. setting aside of the decree of legal separation shall be registered in the proper civil
registries for the guidance of all interested parties
Requirements in Case of Reconciliation
Should the spouses reconcile, the corresponding joint manifestation under oath duly signed RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE (Arts 68 – 73)
by them shall be filed with the Court in the same proceeding for legal separation. (Art 65)
Obligations Of Spouses: FLORM
Effects of reconciliation (Art 66):
1. The legal separation proceedings, if still pending, shall thereby be terminated in 1. To live together
whatever stage.
2. The final decree of legal separation shall be set aside, but the separation of property The duty to live together includes cohabitation or consortium and sexual intercourse.
and any forfeiture of the share of the guilty spouse already effected shall subsist, unless
the spouses agree to revive their former property regime. Spouses are obliged to live together. But such is not absolute. Thus a spouse may be
exempted by the court from living with the other spouse:
The agreement to revive the former property regime shall be executed under oath and 1. If the latter should live abroad; or
shall specify (Art 67): 2. there are other valid and compelling reasons for the exemption; like the following
a. The properties to be contributed anew to the restored regime. where the wife may refuse to live with the husband:
b. Those to be retained as separated properties of each spouse. a. If the place chosen by the husband as family residence is dangerous to her life.
c. The names of all their known creditors, addresses and corresponding credits. b. If the husband subjects her to maltreatment or abusive conduct or insults, making
common life impossible.
The agreement of revival and the motion for its approval shall be filed with the Court in c. If the husband compels her to live with his parents, but she cannot get along with
the same proceeding for legal separation, with copies of both furnished to the creditors her mother-in-law and they have constant quarrels.
named therein. After due hearing, the Court shall take measures to protect the interest of d. Where the husband continuously carried illicit relations for 10 years with different
creditors and such order shall be recorded in the proper registry of property. women and treated his wife roughly and without consideration.
e. Where the husband spent his time in gambling, giving no money, and at the
Notice to creditors: The recording of the order in the registries of property shall not same time insulting his wife and laying hands on her.
prejudice any creditor not listed or not notified, unless the debtor-spouse has sufficient f. If the husband has no fixed residence and lives a vagabond life as a tramp.
separate property to satisfy the creditor’s claim. g. When the husband is carrying on a shameful business at home.
h. If the husband is immoderate or barbaric in his demands for sexual intercourse.
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NOTE: However, such exemption shall not apply if the same is not compatible with the
solidarity of the family. EXCEPTIONS:
1. In a civil case filed by one against the other. Examples: cases of annulment, legal
In cases where a husband or a wife abandons the conjugal home without justifiable separation, support, declaration of mental incompetency, separation of property.
cause, neither the other spouse can compel him or her to come home under the pain of 2. In a criminal case for a crime (i) committed by one against the other such as those
contempt of court. Cohabitation is a purely personal obligation, and to compel a spouse involving physical assault and violence; Violation of RA 9262; economic abuse or (ii)
to comply with such obligation would be a violation of his/her personal liberty as well as against the direct ascendant or descendant of the other. (Problem: If the husband
his/her freedom of abode which are guaranteed by the Constitution. raped his daughter, can the wife who witnessed the rape testify against the husband?
YES. The husband cannot invoke Marital Disqualification Rule in order to serve the
But the present spouse has the following remedies: end of justice)
a. To withhold support or ask for support. 3. When the reason for the law has ceased. Where the marital and domestic relations
b. To recover moral damages. are so strained that there is no more harmony to be preserved, nor peace and
c. To seek legal separation if proper. tranquility which maybe disturbed, the reasons based on such harmony and
d. To ask the Court to admonish his wife to return, but she cannot be held in contempt tranquility no longer apply. In such cases, the identity of interest disappears and the
in case of non-performance; also, no mandamus or injunction will lie. consequent danger of perjury based on identity of interest disappears. (The law
e. To seek separation of property. ceases when the reason for the law ceases)
f. To apply for sole administration of the property.
g. To ask the court for other relief. The Marital Privileged Communication Disqualification Rule (Spousal Privilege)
2. To observe mutual love, respect and fidelity GENERAL RULE: The husband or wife, during or after the marriage, cannot be examined
without the consent of the other as to any communication received in confidence by one
These duties are personal to the spouses and go into their intimate relations, so that they from the other during the marriage.
must be performed voluntarily by them. Accordingly, some consequences of the duties
are the following: EXCEPTIONS: Same in the Marital Disqualification Rule.
a. The unfaithful spouse may be charged criminally with adultery or concubinage. (proof
of having an illegitimate child is not a proof of concubinage; each act of adultery is a 3. To render mutual help and support
separate offense)
b. Sexual infidelity and perversion are also grounds for legal separation, and so is The spouses are jointly responsible for the support of the family (both spouses and
repeated physical violence or grossly abusive conduct directed against a spouse by children) and the management of the household. The expenses for such support and
the other, which shows lack of love and respect for the former. other conjugal obligations shall be paid from:
c. Both spouses to administer the family property, and they also have joint parental a. the community property;
authority over their minor children, both over their persons and property. b. in the absence thereof, from the income or fruits of their separate properties; and
d. If one spouse commits acts which tend to bring danger, dishonor, or injury to the c. In case of insufficiency or absence of said income fruits, such obligations shall be
other, the aggrieved spouse may apply to the Court for relief. satisfied from their separate properties. (Art. 70, FC)
RULE 130, Rules of Evidence on Marriage Privilege Rule and Marital 4. To Manage the household
Communication Rule
The management of the household shall be the right and the duty of both spouses. The
Disqualification By Reason Of Marriage Or The Marital Disqualification Rule expenses for such management shall be paid in accordance with the provisions of
Article 70. (Art 71)
GENERAL RULE: During the marriage neither spouse ( i.e. the witness spouse) may
testify for or against the other (i.e. the Party spouse) without the consent of the affected 5. To Fix the family domicile
spouse ( i.e. the party spouse).
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In case of disagreement, the court shall decide. (Art 69) The property relations between husband and wife shall be governed in the following order
(Art 74):
Relief Against Breach Of Duties
a. Marriage Settlements – agreement of future spouses before the marriage upon the
When one of the spouses neglects his or her duties to the conjugal union or commit acts regime of ACP, CPG, complete separation of property, or any other regime.
which tend to bring danger, dishonor or injury to the other or to the family, the aggrieved party b. Family Code – if there is no marriage settlement or when the marriage settlement is void,
may apply to the Court for relief. the system of ACP shall govern.
c. Local Customs (provided not contrary to law, good morals, good customs, public order,
Note: Injury contemplated: not economic or financial injury but physical, moral, emotional or and public policy)
psychological injury.
Note: A minor cannot enter into a marriage settlement even with the consent of his/her
Exercise Of Profession/Business (Art 73) parents. Only those who are of legal/majority age (at least 18 years of age) can do so.
General rule: Either spouse may exercise any legitimate profession, occupation, business or Forms and Essential Elements
activity without the consent of the other. The latter may object only on valid, serious and
moral grounds. 1. In writing (Need not be in a public instrument)
2. Signed by the parties
Exception: In case of disagreement, the Court shall decide whether or not: 3. Executed before the celebration of the marriage (Art 77)
a. The objection is proper. 4. To fix the terms and conditions of their property relations
b. Benefit has accrued to the family prior to the objection or thereafter. If the benefit accrued
prior to the objection, the resulting obligation shall be enforced against the community Terms, Conditions and Stipulations
property. If benefit accrued thereafter, such obligation shall be enforced against the
separate property of the spouse who has not obtained consent (even if redounded to the The future spouses may agree what property regime that will govern their present and future
benefit of the family). properties. Such terms, conditions and stipulations shall not be contrary to law, morals, good
customs and public policy
Notes: The foregoing provisions shall not prejudice the rights of creditors who acted in good
faith. Creditors in good faith are those who have no knowledge of the objection or no
knowledge of absence of consent. If the Party to the Marriage Settlement Needs Parental Consent
If the party executing the settlement needs parental consent, the persons designated in
PROPERTY RELATIONS BETWEEN SPOUSES Art.14 to give consent must be made parties to the agreement (Art 78)
Marriage settlement/Ante Nuptial Agreement If the Party to Marriage Settlement Under Civil Interdiction
Definition and Purpose If the party executing the marriage settlement is under civil interdiction or subject to any other
disability (like imbecility), the guardian appointed by a competent court must be made a party
It is the contract entered into by a man and a woman who intend or plan to get married fixing thereto (Art 79) His capacity is restricted by law.
the property regime that will govern their present and future properties during their marriage.
The future spouses may, in the marriage settlements, agree upon the regime of absolute Binding Effect of Marriage Settlement
community property, conjugal partnership of gains, complete separation of property or any
other regime. In the absence of a marriage settlement, or when the regime agreed upon is GENEREAL RULE: Binding only between the parties.
void, the system of absolute community property shall govern (Art 75).
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EXCEPTION: Binding to 3rd persons IF the marriage settlement is registered with the LCR GENERAL RULE: Everything stipulated in the settlements or contracts referred to in
where the marriage contract is recorded as well as in the proper Registries Of Property where consideration of a future marriage, including donations between the prospective spouses
the property is located. (Art 77) made therein, shall be rendered VOID if the marriage does not take place.
Effectivity of Marriage Settlement REASON: Marriage is a condition precedent to the effectivity of the marriage settlement.
The marriage settlement shall take effect upon the celebration of marriage. EXCEPTION: Stipulations that do not depend upon the celebration of the marriage shall be
valid (e.g. Acknowledgment by the prospective husband of a natural child in the marriage
Modifications In The Marriage Settlement settlement and acknowledgment of previous subsisting indebtedness of one to the other).
1. Before Marriage Donations By Reason Of Marriage
In order that any modification in the marriage settlements may be valid, it must be made Donation Propter Nuptias / Donations By Reason Of Marriage - are those which are
before the celebration of the marriage. made before marriage celebration, in consideration of the same, and in favor of one or both
of the FUTURE spouses. (Art 82)
Any modification thereof shall be in writing, signed by the parties and executed before
the celebration of the marriage. They shall not prejudice 3 rd persons unless they are Requisites:
registered in the LCR where the marriage contract is recorded as well as in the proper 1. Must be made before the celebration of the marriage.
registries of property. (Art 77) 2. Must be made in consideration of the marriage.
3. Must be made in favor of one or both of the future spouses.
2. After Celebration of Marriage
Donation propter Ordinary donations
There must be an order of a competent court in appropriate proceedings. Some nuptias
instances where modification is proper are: in case of reconciliation; abandonment; in Does not require Express acceptance is
case there is a ground for judicial separation; or in case of joint filing. express acceptance necessary
May include future Cannot include future
Governing Law (Art 80) property provided property
donation mortis causa
In the absence of a contrary stipulation in the marriage settlements, the property relations of If present property is No limit to donation of
the spouses shall be governed by Philippine laws, regardless of the place of the celebration donated and property present property
of the marriage and their residence. regime is not absolute provided legitimes are
community, limited to not impaired
This rule shall not apply: 1/5
1. Where both spouses are aliens. Grounds for revocation Grounds for revocation
2. With respect to the extrinsic validity of contracts affecting property not situated in the are found in Art. 86 of are found in law on
Philippines and executed in the country where the property is located. FC donations: Art 760 (birth
3. With respect to the extrinsic validity of contracts entered into in the Philippines but and reappearance of
affecting property situated in a foreign country whose laws required different formalities children), Art 764 (non-
for their extrinsic validity. performance of
condition) and Art 765
Effect if Marriage Does not Take Place (Art 81) (acts of ingratitude)
Governed by the rules Governed by the ordinary
on donations except rules on donations
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donations of future except donations mortis Exception: Donation cannot be revoked if the marriage already took place.
property which are causa which is governed
governed by provisions by the formalities of wills Donations Of Property With Encumbrance
on testamentary
succession and the Donations by reason of marriage of property subject to encumbrance shall be valid. In
formalities of wills case of foreclosure of the encumbrance and the property is sold for less than the total
amount of the obligation secured, the donee shall not be liable for the deficiency. If the
May a Marriage Settlement Contain a Donation Propter Nuptias? If yes, in what form? property is sold for more than the total amount of said obligation, the donee shall be
entitled to the excess.
YES. There is no prohibition. As to what form, follow the rules on ordinary donations.
2. During Marriage (Art 87)
Who can Donate in Donation Propter Nuptias
GENERAL RULE: Every donation or grant of gratuitous advantage, direct or indirect,
Any of the future spouses in favor of the other OR by a 3 rd person in favor of one or both of between the spouses during the marriage shall be VOID. The prohibition shall also apply
the future spouses. to person living together as husband and wife without a valid marriage (see Matabuena v.
Cervantes, 38 SCRA 284).
Prohibition against Donation to Each Other
REASONS:
1. Before Marriage (Art 84, FC) a. To prevent the weaker spouse form being influenced by the stronger spouse,
whether by abuse of affection or by threats or violence.
GENERAL RULE: cannot donate to each other in their marriage settlements more than b. To protect creditors.
1/5 of their present property. Any excess shall be considered void. c. To prevent an indirect modification of the marriage settlement during the marriage.
Requisites: EXCEPTIONS:
a. Made before the celebration of marriage a. moderate gifts (and beneficiary in an insurance policy) which the spouses may give
b. In celebration of marriage each other on the occasion of any family rejoicing.
c. In favor of one or both future spouses b. Donation mortis causa.
EXCEPTION: If they are governed by ACP.

Effectivity / Commencement of Donation Propter Nuptias
Donation of future property
It shall take effect upon the celebration of marriage.
While donations of future property are not allowed in ordinary donations, they are allowed
in donations propter nuptias. Donations propter nuptias of future property shall be Who may question validity of donation?
governed by the provisions on testamentary succession and the formalities of wills.
Only a person prejudiced thereby, like the donor or his heirs. An heir may question the
Is the will which contains a donation propter nuptias revocable? donation made on the ground of inofficiousness if it can impair his legitime.
General Rule: Yes, it is revocable. (unlike in donations of present properties in the Revocation of Donation; Grounds and Prescribed Period to Revoke (Art 86)
marriage settlements which cannot be revoked except if the marriage does not take
place, since marriage settlements cannot be modified much less revoked after the Grounds Prescriptive Period
marriage) If the marriage is not 5 years (Art 1149, NCC)
celebrated (except from the time marriage is
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donations contained in not solemnized on the concubinage because in

the marriage settlement fixed date. the latter case, the
which are automatically donation is void.
rendered void if the If it is with a resolutory 5 years from the
marriage does not take condition and the happening of the
place) condition is complied condition
If judicially declared By operation of law if with
void for non-compliance done-spouse contracted If donation was made by
with Art 40 in rel to Arts subsequent void the spouse in favor of
52-53 and Art 44 marriage in bad faith the other, no prescription
because under Art 1109,
If both of them are in prescription does not run
good faith, 5 years from between husband and
the finality of judicial wife, even though there
declaration of nullity be separation of property
If judicially declared 5 years from the finality agreed upon in the
void on grounds other of judicial declaration of marriage settlement.
than Art 40 in rel to Arts nullity When the donee has Art. 765: 1 year from
52-53 and Art 44 committed an act of donor’s knowledge of the
When the marriage 5 years from the time of ingratitude fact of ingratitude
takes place without the knowledge that the
consent of parents or needed consent was not
guardian as required by obtained by the Absolute Community of Property
law party/parties
When the marriage is 5 years from finality of Concept
annulled, and the decree (if we follow the
donee acted in bad rule that Art 86[3], the ABSOLUTE COMMUNITY OF PROPERTY (ACP) – there is merger of all the properties of
faith latest provision shall the husband and the wife owned by them at the time of the celebration of the marriage or
prevail over Art 43[3], those acquired thereafter.
the prior provison)
When Mandatory
If we follow Art 43[3] in
keeping with the spirit of When there is no marriage settlement or when there is but it is void. This is so because it is
the law, the donation is more in keeping with Filipino culture.
revoked by operation of
law. Commencement of ACP
Upon legal separation, 5 years from the time the
the donee being the decree of legal Art. 88. The absolute community of property between spouses shall commence at the
guilty spouse separation has become precise moment that the marriage is celebrated. Any stipulation, express or implied, for the
final EXCEPT when the commencement of the community regime at any other time shall be void.
ground is sexual
infidelity in the form of Effect of Waiver of Rights
adultery and
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1. Before the Marriage – Waiver is valid.

1. Property excluded from ACP in the marriage settlement.
2. During the Marriage
2. Property acquired during the marriage by gratuitous title by either spouse, and the fruits
GENERAL RULE: Art. 89. No waiver of rights, shares and effects of the absolute as well as the income thereof, if any, UNLESS it is expressly provided by the donor,
community of property during the marriage can be made. testator or grantor that they shall form part of the community property.
EXCEPT: In case of judicial separation of property. Note: Donation propter nuptias made by 1 future spouse in favor of the other shall not
form part of the ACP because the property donated was acquired during the marriage
When the waiver takes place upon a judicial separation of property, or after the marriage (the donation propter nuptias took affect upon celebration of marriage) by gratuitous title,
has been dissolved or annulled, the same shall appear in a public instrument and shall be thus separate property of the done.
recorded as provided in Article 77. The creditors of the spouse who made such waiver
may petition the court to rescind the waiver to the extent of the amount sufficient to cover 3. Property for personal and exclusive use of either spouse. However, jewelry shall form
the amount of their credits. part of the community property.
e.g. clothes, shoes, eyeglasses and the like
3. After Dissolution of Marriage – Waiver is valid for then it is considered assignment of
rights, interests, shares, and effects in the absolute community of property. 4. Property acquired before the marriage by either spouse who has LEGITIMATE
DESCENDANTS by a former marriage, and the fruits as well as the income, if any, of
Co-Ownership such property.
Art. 90. The provisions on co-ownership shall apply to the absolute community of property REASON: To protect the presumptive legitimes of the legitimate descendants. The rule
between the spouses in all matters not provided for in this Chapter. will not apply if the descendants are illigetimate.
ACP is a special type of co-ownership as the spouses are co-owners of their communal Charges and Obligations of the Absolute Community
properties.
Art. 94. The absolute community of property shall be liable for: (SADD-E2VAT2)
Property Included
(1) The support of the spouses, their common children, and legitimate children of either
Art. 91. Unless otherwise provided in this Chapter or in the marriage settlements, the spouse; however, the support of illegitimate children shall be governed by the provisions
community property shall consist of all the property owned by the spouses at the time of the of this Code on Support.
celebration of the marriage or acquired thereafter.
(2) All debts and obligations contracted during the marriage by the designated administrator-
Also, winnings in gambling are included. spouse for the benefit of the community, or by both spouses, or by one spouse with the
consent of the other.
NOTE: Art. 93. Property acquired during the marriage is presumed to belong to the
community, unless it is proved that it is one of those excluded therefrom. (3) Debts and obligations contracted by either spouse without the consent of the other to the
extent that the family may have been benefited.
Registration of property in the name of “X married to Y” is no proof that the properties were
acquired during their marriage. The property could have been acquired by X while he was still What if the obligation contracted did not redound to the benefit of the Family? Is the ACP
a bachelor but registered after his marriage. Nonetheless, the presumption is not rebutted by still liable?
the mere fact that the deed of sale or certificate of title is in the name of only one spouse. According to Jurado, yes, the ACP is still liable. It is submitted that the provision of
Art 122 of the FC is applicable by analogy, but subject to the following requisites: first,
Property Excluded (Art 92) lack of exclusive property of the spouse who contracted the obligation; and second,
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satisfaction of the basic obligations under Art 94 of the FC. Once the obligation has been
paid, the latter spouse becomes a debtor of the ACP and at the time of the liquidation, he 2. Art. 95. Whatever may be lost during the marriage in any game of chance, betting,
shall be charged for what has been paid. sweepstakes, or any other kind of gambling, whether permitted or prohibited by law,
Such debts shall be included for the following reasons: shall be borne by the loser and shall not be charged to the community but any winnings
a. if the assets cannot be made liable, creditors who have extended credit relying on the therefrom shall form part of the community property.
existence of such assets would be unduly prejudiced.
b. Debts contracted during the marriage are certainly more pressing than those The winnings derived from a ticket gratuitously given to a spouse shall not form part of
contracted before such marriage. the community property since such is considered as donation, thus excluded from the
ACP as well as the fruits and income thereof.
It is, however, necessary, as a matter of justice, that all or most of such conjugal
assets should have been acquired through the effect or industry of the spouse- Ownership, Administrative, Enjoyment and Disposition of the Community Property
debtor. Otherwise, Art 122 of the FC shall be applied literally and the ACP cannot
then be held liable. GENERAL RULE: Art. 96. The administration and enjoyment of the community property
shall belong to both spouses JOINTLY.
(4) All taxes, liens, charges and expenses, including major or minor repairs, upon the
community property. EXCEPTIONS:
1. In case of disagreement, the husband's decision shall prevail.
(5) All taxes and expenses for mere preservation made during marriage upon the separate
property of either spouse used by the family. Remedies in Case of Disagreements
(6) Expenses to enable either spouse to commence or complete a professional or vocational Wife’s recourse is go to court for proper remedy, which must be availed of within 5 years
course, or other activity for self-improvement. from the date of the contract implementing such decision.
(7) Antenuptial debts of either spouse insofar as they have redounded to the benefit of the 2. In the event that one spouse is incapacitated or otherwise unable to participate in the
family. administration of the common properties, the other spouse may assume sole powers of
administration.
(8) The value of what is donated or promised by both spouses in favor of their common
legitimate children for the exclusive purpose of commencing or completing a These powers do not include:
professional or vocational course or other activity for self-improvement.
Disposition or encumbrance without authority of the court or the written consent of
(9) Antenuptial debts of either spouse other than those falling under paragraph (7) of this the other spouse.
Article, the support of illegitimate children of either spouse, and liabilities incurred by
either spouse by reason of a crime or a quasi-delict, in case of absence or insufficiency In the absence of such authority or consent, the disposition or encumbrance shall be
of the exclusive property of the debtor-spouse, the payment of which shall be VOID. However, the transaction shall be construed as a continuing offer on the part of
considered as advances to be deducted from the share of the debtor-spouse upon the consenting spouse and the third person, and may be perfected as a binding contract
liquidation of the community. upon the acceptance by the other spouse or authorization by the court before the offer is
withdrawn by either or both offerors.
(10) Expenses of litigation between the spouses unless the suit is found to be groundless.
Disposition by Will
NOTES:
1. If the community property is insufficient to cover the foregoing liabilities, except those Art. 97. Either spouse may dispose by will of his or her interest (not specific property
falling under paragraph (9), the spouses shall be solidarily liable for the unpaid balance because of co-ownership) in the community property.
with their separate properties.
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Donation of Communal Property, Prohibited SEPARATION DE FACTO - The spouses are no longer living together. Their cohabitation or
common life under the same roof is terminated, although there is no legal separation between
GENERAL RULE: Art. 98. Neither spouse may donate any community property without them.
the consent of the other. (This rule applies to commom-law spouses)
Art. 100. The separation in fact between husband and wife shall not affect the regime of
If with the consent of the other, the donation is valid subject to revocation or reduction if it absolute community except that:
turns out to be inofficious or if it infringes the legitimes of compulsory heirs.
(1) The spouse who leaves the conjugal home or refuses to live therein, without just cause,
REASON: To protect the spouse from the prodigality of a reckless or faithless spouse. shall not have the right to be supported;
EXCEPTIONS: (2) When the consent of one spouse to any transaction of the other is required by law,
Either spouse may, without the consent of the other: judicial authorization shall be obtained in a summary proceeding;
a. make moderate donations from the community property for charity;
b. make moderate donations from the community property on occasions of family (3) In the absence of sufficient community property, the separate property of both spouses
rejoicing or family distress. shall be solidarily liable for the support of the family. The spouse present shall, upon
proper petition in a summary proceeding, be given judicial authority to administer or
NOTE: What is moderate depends upon the financial and social standing of the family encumber any specific separate property of the other spouse and use the fruits or
and must not at all substantially affect the value of the communal assets. proceeds thereof to satisfy the latter's share.
Dissolution and Liquidation of Absolute Community Regime, Grounds (Art. 99) Liquidation of the Absolute Community Assets and Liabilities, Procedure
The absolute community terminates: Art. 102. Upon dissolution of the absolute community regime, the following procedure shall
apply:
(1) Upon the death of either spouse;
1. An inventory shall be prepared, listing separately all the properties of the absolute
NOTE: After the dissolution comes the liquidation and partition. The surviving spouse community and the exclusive properties of each spouse.
must liquidate the ACP within 1 year from death of the deceased. After the lapse of 1
year without liquidation, any disposition involving the community property shall be void. 2. The debts and obligations of the absolute community shall be paid out of its assets. In
case of insufficiency of said assets, the spouses shall be solidarily liable for the unpaid
(2) When there is a decree of legal separation; balance with their separate properties in accordance with the provisions of the second
paragraph of Article 94.
(3) When the marriage is annulled or declared void (only in cases falling under Art 40 in rel
to Arts 52 and 53); 3. Whatever remains of the exclusive properties of the spouses shall thereafter be delivered
to each of them.
(4) In case of judicial separation of property during the marriage under Article 134 to 138.
4. The net remainder of the properties of the absolute community shall constitute its net
(5) Termination of a subsequent marriage by filing an affidavit of reappearance under Art 41, assets, which shall be divided equally between husband and wife unless a different
ACP of the subsequent marriage is dissolved. (Art 43) proportion or division was agreed upon in the marriage settlements, or unless there has
been a voluntary waiver of such share provided in this Code. For purpose of computing
Effects of Separation De Facto the net profits subject to forfeiture in accordance with Articles 43, No. (2) and 63, No.
(2), the said profits shall be the increase in value between the market value of the
community property at the time of the celebration of the marriage and the market value
at the time of its dissolution.
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5. The presumptive legitimes of the common children shall be delivered upon partition, in
accordance with Article 51. CONJUGAL PARTNERSHIP OF GAINS – it is a partnership established through the
6. Unless otherwise agreed upon by the parties, in the partition of the properties, the marriage of a man and a woman who as partners place in a common fund – (a) the
conjugal dwelling and the lot on which it is situated shall be adjudicated to the spouse proceeds, products, fruits and income from their separate properties; (b) those acquired by
with whom the majority of the common children choose to remain. Children below the age either or both spouses through their efforts; or (3) those acquired by chance, and, upon
of seven years are deemed to have chosen the mother, unless the court has decided dissolution of the marriage or of the partnership, the net gains or benefits obtained by either
otherwise. In case there in no such majority, the court shall decide, taking into or both spouses shall be divided equally between them, unless otherwise agreed in the
consideration the best interests of said children. marriage settlements. (Art. 106)
Liquidation of ACP in case Termination of Marriage is by Death

Distinctions between Conjugal Partnership of Gains & Absolute Community Property
Art. 103. Upon the termination of the marriage by death: Basis CPG ACP
a. The community property shall be liquidated in the same proceeding for the settlement of As to Basis Exclusive property All properties
of spouses are kept acquired by the
the estate of the deceased. entirely separate spouses even
b. If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the and distinct from before marriage
community property either judicially or extra-judicially within 1 year from the death of the the benefits which become community
deceased spouse. If upon the lapse of 1 year period, no liquidation is made, any they acquired property. The basis
during the is essentially trust
disposition or encumbrance involving the community property of the terminated marriage marriage. This is and confidence
shall be void. not primarily based between the
on mutual trust and spouses which will,
Effects if the ACP is Not Liquidated After 1 Year from Death of Deceased Spouse confidence of the thus, foster unity
spouses and does between them.
not enhance the
presumption of
a. Any disposition or encumbrance involving the community property of the terminated solidarity between
marriage shall be void. them.
As to Retention of Each spouse Spouses do not
b. Should the surviving spouse contract a subsequent marriage without compliance with the Property retains his/her retain any property
foregoing requirements, a mandatory regime of complete separation of property shall properties acquired acquired before
govern the property relations of the subsequent marriage. (Art 103, FC) prior to the marriage and all
marriage but the properties they own
fruits and income of at the time of
Liquidation of ACP of 2 or more Marriages Contracted by the Same Person before the such properties marriage become
Effectivity of FC form part of the part of the
conjugal properties community
Whenever the liquidation of the community properties of two or more marriages contracted by during marriage. property.
As to Dissolution Exclusive There are no
the same person before the effectivity of this Code is carried out simultaneously, the following properties of the exclusive properties
procedure shall be applied in the absence of agreement of all the heirs: spouses are to be returned and
a. The respective capital, fruits and income of each community shall be determined upon returned upon upon dissolution of
such proof as may be considered according to the rules of evidence. dissolution of the the ACP, the
partnership. spouses or their
b. In case of doubt as to which community the existing properties belong, the same shall be heirs equally divide
between the different communities in proportion to the capital and duration of each. the net remainder
of the properties.
Conjugal Partnership of Gains As to method of Entails identification Easier to liquidate
liquidation and return of since its net
exclusive properties remainder is merely
Concept of the spouses. divided equally
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between the of marriage; judicial others listed in Arts

spouses or their separation of 1830 and 1831.
heirs. property during
marriage
Liquidation of Net No liquidation until Liquidation may be
Gains the partnership is made without
Distinctions between Conjugal Partnership of Gains & Ordinary Partnership dissolved. dissolution of the
partnership.
Basis Conjugal Ordinary
Partnership Partnership
Distinctions between Conjugal Partnership of Gains & Co-Ownership
Creation Created by Created by
operation of law agreement of the Basis CPG Co-Ownership
parties Creation Created by Created by law,
Governing law Generally governed Generally governed operation of law contract,
by law by stipulations of succession,
the parties fortuitous event, or
Commencement At the moment of On the date agreed occupancy
celebration of upon by the parties Purpose Not created for Common
marriage profits but regulates enjoyment of the
Legal Personality Not a juridical It is a juridical property relations of thing or right owned
person person with husband and wife in common
personality during the marriage
separate and Management Right of Vested in the co-
distinct from the management is owners who
personality of the joint; in case of represent the
partners disagreement, controlling interest
Purpose Not created for Created for profits decision of
profits but regulates husband prevails
property relations of without prejudice to
husband and wife the wife’s remedy
during the marriage to question the
Management Right of Rights of decision.
management is management are Division of profits Equally divided Shares of co-
joint; in case of the same to all as irrespective of the owners shall be
disagreement, individual partners amount of proportional to their
decision of except when one or contribution unless respective interest
husband prevails more partners are otherwise agreed
without prejudice to designated as upon in the
the wife’s remedy managers. marriage settlement
to question the Disposition of Spouses cannot Co-owners can
decision. shares dispose of their dispose of their
Division of gains Equally divided Depends upon the shares even with shares even
irrespective of the agreement of the the consent of the without the consent
amount of parties; in the spouses of the other co-
contribution unless absence thereof owners
otherwise agreed upon the amount of Power to demand No power to Each co-owner may
upon in the capital contributed partition demand partition demand anytime
marriage settlement by each partner save by virtue of the partition of the
Causes for Death of either Death, insolvency; judicial order thing owned in
dissolution party; decree of civil interdiction; common
legal separation; termination of the Effect of death Partnership is Existence of co-
annulment or term; express will of dissolved ownership is not
declaration of nullity any partner; and affected
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Dissolution Different from co- Different form CPG a. Those obtained from the labor, industry, work or profession of either or both of the
ownership spouses.
When Applicable Teacher’s gratuity under special law, being remuneratory, is not conjugal.
1. Art. 105. In case the future spouses agree in the marriage settlements that the regime b. The fruits, natural, industrial, or civil due or received during the marriage from the
of conjugal partnership gains shall govern their property relations during marriage. common property, as well as the net fruits from the exclusive property of each spouse
2. When CPG were already established between spouses before the effectivity of the FC, (net fruits – after deducting the expenses for administration and preservation).
without prejudiced to vested rights already acquired in accordance with the NCC or other
laws as provided in Art 256 of the FC. If fruits were pending on separate property of spouse at the time of the marriage, the
harvest collected during the marriage is conjugal, and the conjugal partnership is not
Applicability of Ordinary Partnership Rules bound to pay the expenses of cultivation to the spouse who owns the property from which
the fruits were harvested, because the right of the conjugal partnership is a real right of
Art. 108. The conjugal partnership shall be governed by the rules on the contract of usufruct. Therefore, the law on usufruct shall apply.
partnership in all that is not in conflict with what is expressly determined in this Chapter or
by the spouses in their marriage settlements. NOTE:
Whenever an amount or credit payable within a period of time belongs to one of the
The Rules of Court on the administration of estates of deceased persons shall be observed in spouses, the sums which may be collected during the marriage in partial payments or by
the appraisal and sale of property of the conjugal partnership, and other matters which are installments on the principal shall be the exclusive property of the spouse. However,
not expressly determined by law. interests falling due during the marriage on the principal shall belong to the conjugal
partnership. (Art 119)
Note: The provisions of CPG in the Family Code shall be of supplementary application to the
agreement of the parties. (Art 105) REASON: Interest is considered a fruit derived from a particular property.
Immutability of Matrimonial Property Regime c. The share of either spouse in the hidden treasure which the law awards to the finder or
owner of the property where the treasure is found.
The provisions of the Chapter on CPG shall also apply to conjugal partnerships of gains
already established between spouses before the effectivity of FC, without prejudice to vested Hidden treasure found by the spouses on the property of either of them is conjugal.
rights already acquired in accordance with the Civil Code or other laws, as provided in Article
256. In other words, the original regime of property relations is maintained. d. Those acquired through occupation such as fishing or hunting.
Commencement of the CPG - same as in ACP e. Livestock existing upon the dissolution of the partnership in excess of the number of each
kind brought to the marriage by either spouse.
Effect of Waiver of Rights, interest, share or effects; rights of creditor as to such
waiver - same as in ACP f. Those which are acquired by chance such as winnings from gambling or betting.
However, losses therefrom shall be borne exclusively by the loser-spouse.
Property Included
g. Property bought on installments paid partly from exclusive funds of either or both
The following are conjugal partnership properties (Art 117): spouses and partly from conjugal funds belongs to the conjugal partnership if such
ownership was vested during the marriage.
By Direct Acquisition
Belongs to the buyer or buyers if full ownerships was vested before the marriage.
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In either case, any amount advanced by the partnership or by either or both spouses Art. 109. The following shall be the exclusive property of each spouse:
shall be reimbursed by the owner or owners upon liquidation of the partnership. (Art 118)
By Direct Acquisition
h. The ownership of improvements, whether for utility or adornment, made on the separate 1. That which is brought to the marriage as his or her own.
property of the spouses at the expense of the partnership or through the acts or efforts of
either or both spouses shall pertain to the conjugal partnership, or to the original owner- A property purchased before the marriage and fully paid during the marriage, remains to
spouse, subject to the following rules: be separate property. This notwithstanding the fact that there was registration of the
property in the name of the owner spouse with the other spouse as co-owner. The
a. When the cost of the improvement made by the conjugal partnership AND any registration of the latter merely creates a trust.
resulting increase in value are more than the value of the property at the time of the
improvement – the entire property of one of the spouses shall belong to the conjugal 2. That which each brought to the marriage as his or her own
partnership, subject to reimbursement of the value of the property of the owner-
spouse at the time of the improvement (REVERSE ACCESSION); Acquisitions include succession, devise or legacy, donation, gratuity, remission, free
b. If improvement is lesser than the value of the property at the time of improvement - patent, unearned increment (increase in the value of the property without any effort) and
said property shall be retained in ownership by the owner-spouse, likewise subject to other modes where no recompense is involve.
reimbursement of the cost of the improvement (ACCESSION).
c. In either case, the ownership of the entire property shall be vested upon the The law does not include fruits and income of property received by gratuitous title as
reimbursement, which shall be made at the time of the liquidation of the conjugal separate property. This is different from ACP.
partnership. (Art 120) Thus, the property never ceased to be paraphernal property
until reimbursement. Notes:
Hence, prior to reimbursement at the time of liquidation, the conjugal partnership may Art. 113. Property donated or left by will to the spouses, jointly and with designation of
use both the land and improvement, not as an owner but in the exercise of a determinate shares, shall pertain to the donee-spouses as his or her own exclusive
usufruct. property, and in the absence of designation, share and share alike, without prejudice to
the right of accretion when proper (when not prohibited by the donor). (See Art 753,
By Substitution NCC)
i. Those acquired by onerous title during the marriage at the expense of the common fund, Art. 114. If the donations are onerous, the amount of the charges shall be borne by the
whether the acquisition be for the partnership, or for only one of the spouses (even place exclusive property of the donee spouse, whenever they have been advanced by the
in the name of one spouse). conjugal partnership of gains. (the property donated though onerous is still considered
exclusive property of the done-spouse)
By Presumption
Art. 115. Retirement benefits, pensions, annuities, gratuities, usufructs and similar
j. Art. 116. All property acquired during the marriage, whether the acquisition appears to benefits shall be governed by the rules on gratuitous or onerous acquisitions as may be
have been made, contracted or registered in the name of one or both spouses, is proper in each case.
presumed to be conjugal unless the contrary is proved.
THUS, if the benefits are gratuitous, they are generally considered to be exclusive
It is a condition sine qua non for the operation of the presumption to prove first the properties of the spouse, and if they are onerous, they are generally considered to be
acquisition of property was made during the marriage. conjugal.
Property Excluded/Exclusive Property of Each Spouse ANNUITY – The aleatory contract of life annuity binds the debtor to pay an annual
pension or income during the life of one or more determine persons in consideration of a
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capital consisting of money or other property whose ownership is transferred to him at b. When the spouses are jointly insured in a single policy, the proceeds to be paid to
once with the burden of income. (Art 2021, NCC) the surviving spouse, the survivor gets the insurance proceeds even if no obligation
to return any part of the premiums to the conjugal partnership, because there is
He who constitutes an annuity by gratuitous title upon his property, may provide at the deemed to be reciprocal donations thereof, which in effect constitute aleatory
time the annuity is established that the same shall not be subject to execution or onerous contracts.
attachment on account of the obligations of the recipient of the annuity. IF the annuity c. When the insurance is taken by a third person with a spouse as beneficiary, the latter
was constituted in fraud of creditors, the latter may ask for the execution or attachment of owns the insurance proceeds as it is deemed a gift to him or her.
the property. (Art 2026, NCC) d. If the insurance is taken by the wife on the life of the husband or vice versa and the
premiums are paid out of conjugal funds, the proceeds are conjugal property.
The right to the annuity is at all times considered to be exclusive property of the spouse. e. If the beneficiary is somebody other than the insured or his estate, the beneficiary is
the owner of the insurance indemnity regardless of whether or not the premiums
GRATUITY – this is something voluntarily given out of pure liberality, thus, exclusive were paid out of the insured’s separate property or the conjugal funds.
property of the beneficiary. f. If the insured made his estate as the beneficiary and the premiums were paid by
conjugal funds, the proceeds of the insurance constitute conjugal property.
PENSIONS – given to the recipient for services rendered, thus necessarily classifies as
conjugal.
By Substitution
Special rules on life insurance:
3. That which is acquired by right of redemption (if conjugal fund or the fund of the other
If beneficiary is the Insured Himself spouse is used to redeem, it must be reimbursed), by barter or by exchange (not sale
because such is acquired by onerous title) with property belonging to only one of the
Since a contract of insurance in onerous in character, if the beneficiary is the insured spouses.
himself or his estate, the character of the proceeds will depend on the character of the
premiums paid: 4. That which is purchased with exclusive money of the wife or of the husband.
a. If the premiums were paid with conjugal funds, the proceeds are conjugal. Note: The exclusive property of the husband is otherwise known as capital. While the
exclusive property of the wife is known as paraphernal property.
b. If the premiums were paid with separate funds, the proceeds are separate.
Ownership, Administration, Enjoyment And Disposition of Exclusive Property
c. If the premiums were paid partly with conjugal funds, and partly with separate funds,
the proceeds will be partly conjugal and partly separate. Art. 110. The spouses retain the ownership, possession, administration and enjoyment of
their exclusive properties. (Thus, a spouse cannot be restrained from selling his/her exclusive
Tolentino believes, however, that we should follow the rule in Louisiana that if the policy property even if such sale would deprive the conjugal partnership of its fruits)
of the insurance was taken out when the insured was still single, the proceeds thereof
should go to the insured’s separate estate even if the premiums were paid out of conjugal Either spouse may, during the marriage, transfer the administration of his or her exclusive
funds, but the conjugal partnership should be refunded by the insured the amounts that it property to the other (even to a stranger without the consent of the other) by means of a
had paid as premiums. public instrument, which shall be recorded in the registry of property of the place the
property is located.
If the other spouse is the beneficiary
a. An insurance taken by one spouse on his own life and with the other spouse as Art. 111. A spouse may mortgage, encumber, alienate or otherwise dispose of his or her
beneficiary belongs to the latter even if the premiums are paid out of conjugal funds, exclusive property, without the consent of the other spouse, and appear alone in court to
but the beneficiary-spouse, who is deemed a donee of the premiums paid, must litigate with regard to the same.
return one-half of the premiums to the conjugal partnership.
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Art. 112. The alienation of any exclusive property of a spouse administered by the other a. In case of disagreement, the husband's decision shall prevail.
automatically terminates the administration over such property and the proceeds of the
alienation shall be turned over to the owner-spouse. Remedy in Case of Disagreement
Limitation: In case of separation de facto, the spouse present may be given authority by the Recourse to the court by the wife for proper remedy, which must be availed of within 5
court to administer any separate property of the absent spouse. In case there is authority, the years from the date of the contract implementing such decision.
absent spouse cannot revoke the judicially approved administration, neither he can alienate
his property without the consent of the administrator spouse or approval of the court. (Art b. In case Sole Administration is Permitted
127)
In the event that one spouse is incapacitated or otherwise unable to participate in the
Charges Against/Obligations of CPG administration of the conjugal properties, the other spouse may assume sole powers of
administration.
Art. 121. The same as in ACP, except:
 Support for illegitimate children - excluded from CPG. These powers do not include
 Fines and pecuniary indemnities arising from crime and quasi-delict – excluded from
CPG but incorporated in Art 122. Disposition or encumbrance without authority of the court or the written consent of
the other spouse.
Art. 122. The payment of personal debts contracted by the husband or the wife before or
during the marriage shall not be charged to the conjugal properties partnership EXCEPT In the absence of such authority or consent, the disposition or encumbrance shall be
insofar as they redounded to the benefit of the family. VOID. HOWEVER, the transaction shall be construed as a continuing offer on the part
of the consenting spouse and the third person, and may be perfected as a binding
Neither shall the fines and pecuniary indemnities imposed upon them be charged to the contract upon the acceptance by the other spouse or authorization by the court before
partnership. the offer is withdrawn by either or both offerors.
HOWEVER, the payment of personal debts contracted by either spouse before the marriage, Donation
that of fines and indemnities imposed upon them, as well as the support of illegitimate Art. 125. Neither spouse may donate any conjugal partnership property without the
children of either spouse, may be enforced against the partnership assets after the consent of the other. However, either spouse may, without the consent of the other, make
responsibilities enumerated in the preceding Article (Art 121) have been covered, if the moderate donations from the conjugal partnership property for charity or on occasions of
spouse who is bound should have no exclusive property or if it should be insufficient; but at family rejoicing or family distress.
the time of the liquidation of the partnership, such spouse shall be charged for what has
been paid for the purpose above-mentioned. Dissolution of Conjugal Partnership Regime
Art. 123. Whatever may be lost during the marriage in any game of chance or in betting, Art. 126. The conjugal partnership terminates:
sweepstakes, or any other kind of gambling whether permitted or prohibited by law, shall be
borne by the loser and shall not be charged to the conjugal partnership but any winnings 1. Upon the death of either spouse;
therefrom shall form part of the conjugal partnership property. (Same in ACP) 2. When there is a decree of legal separation;
3. When the marriage is annulled or declared void; or
Ownership, Possession, Enjoyment and Administration of CPG 4. In case of judicial separation of property during the marriage under Articles 134 to 138.
GENERAL RULE: Art. 124. The administration and enjoyment of the conjugal partnership Effects of Separation De Facto – Same in ACP (Art 127)
shall belong to both spouses jointly.
Separation in fact v. Abandonment
EXCEPTIONS:
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Separation de facto is the termination of the cohabitation or common life of the spouses
under the same roof, but the spouses might still be complying with their mutual duty of (9) In the partition of the properties, the conjugal dwelling and the lot on which it is situated
support, as well as their duty to support and maintain the children. Abandonment is not shall, unless otherwise agreed upon by the parties, be adjudicated to the spouse with
mere separation de facto but implies an intention never to return to the conjugal home whom the majority of the common children choose to remain. Children below the age of
and without providing for the needs and maintenance of one’s family. seven years are deemed to have chosen the mother, unless the court has decided
otherwise. In case there is no such majority, the court shall decide, taking into
Abandonment in CPG, Concept – Same in ACP (Art 128) consideration the best interests of said children. (181a, 182a, 183a, 184a, 185a)
Procedure in Liquidation - Same as Absolute Community of Property (Arts 129-133) Art. 130. Upon the termination of the marriage by death, the conjugal partnership property
shall be liquidated in the same proceeding for the settlement of the estate of the deceased.
Art. 129. Upon the dissolution of the conjugal partnership regime, the following procedure
shall apply: If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the
conjugal partnership property either judicially or extra-judicially within 1 year from the death
(1) An inventory shall be prepared, listing separately all the properties of the conjugal of the deceased spouse. If upon the lapse of the 1 year period no liquidation is made, any
partnership and the exclusive properties of each spouse. disposition or encumbrance involving the conjugal partnership property of the terminated
marriage shall be void.
(2) Amounts advanced by the conjugal partnership in payment of personal debts and
obligations of either spouse shall be credited to the conjugal partnership as an asset Should the surviving spouse contract a subsequent marriage without compliance with the
thereof. foregoing requirements, a mandatory regime of complete separation of property shall govern
the property relations of the subsequent marriage.
(3) Each spouse shall be reimbursed for the use of his or her exclusive funds in the
acquisition of property or for the value of his or her exclusive property, the ownership of Art. 131. Whenever the liquidation of the conjugal partnership properties of two or more
which has been vested by law in the conjugal partnership. marriages contracted by the same person before the effectivity of this Code is carried out
simultaneously, the respective capital, fruits and income of each partnership shall be
(4) The debts and obligations of the conjugal partnership shall be paid out of the conjugal determined upon such proof as may be considered according to the rules of evidence. In
assets. In case of insufficiency of said assets, the spouses shall be solidarily liable for the case of doubt as to which partnership the existing properties belong, the same shall be
unpaid balance with their separate properties, in accordance with the provisions of divided between the different partnerships in proportion to the capital and duration of each.
paragraph (2) of Article 121.
Art. 132. The Rules of Court on the administration of estates of deceased persons shall be
(5) Whatever remains of the exclusive properties of the spouses shall thereafter be delivered observed in the appraisal and sale of property of the conjugal partnership, and other
to each of them. matters which are not expressly determined in this Chapter.
(6) Unless the owner had been indemnified from whatever source, the loss or deterioration of Art. 133. From the common mass of property support shall be given to the surviving spouse
movables used for the benefit of the family, belonging to either spouse, even due to and to the children during the liquidation of the inventoried property and until what belongs
fortuitous event, shall be paid to said spouse from the conjugal funds, if any. to them is delivered; but from this shall be deducted that amount received for support which
exceeds the fruits or rents pertaining to them.
(7) The net remainder of the conjugal partnership properties shall constitute the profits,
which shall be divided equally between husband and wife, unless a different proportion Problem: Determine whether the following properties are included in the ACP or CPG with
or division was agreed upon in the marriage settlements or unless there has been a the presumption that the marriage between the Husband and Wife was validly entered into in
voluntary waiver or forfeiture of such share as provided in this Code. 1990.
(8) The presumptive legitimes of the common children shall be delivered upon the partition in ACP CPG
accordance with Article 51. Parcel of land Yes. No. If payable on installment
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purchased in and still unpaid during the 2. Special Power of Attorney given to the other spouse.
1985 marriage, it depends when
the title/ownership is vested When is Judicial Authorization to Dispose Property Needed
subject to the right of 1. When one is granted sole administration of the property
reimbursement.
2. When the other spouse is insane or otherwise incompetent
Rental income of Yes. Yes. Net income during the
the parcel of land marriage.
at 10K per month Note: Lack of judicial authorization will not cure the defect of no consent.
Parcel of land Yes. No. Exclusive property of H.
inherited by H in Effect of No Consent in Writing in Sale
1988.
Shares of stocks Yes. No. Sale is void in its entirety. The nullity does not extend to the share of the other spouse who
registered under did give consent and valid as to the share of the other who did not obtain the required
W’s name in consent. The sale is entirely void.
1989.
Stock dividends Yes. Yes. Acquired during the Property (ACP/CPG) executed as security for the obtained loan without the consent of
at 10K per year marriage.
the other spouse to be used as capital for business.
House and Lot in Yes. Yes.
the name of both
spouses acquired Encumbrance is valid provided there must be proof of benefit redounded to the family.
in 1995
Condo unit in the Yes. It depends upon the source
name of H of fund. If out of the conjugal Separation of Property
acquired in 2000 fund, it belongs to CPG.
Ownership is not acquired by Voluntary Separation of Property
registration but by law. If out
of exclusive fund of the During the Marriage
husband, condo is his
exclusive property. If condo
is worth 5M, 3M out of H Art. 134. In the absence of an express declaration in the marriage settlements, the
property and the 2M is taken separation of property between spouses during the marriage shall not take place except by
out from CPG. In such case judicial order. Such judicial separation of property may either be voluntary or for sufficient
only 2M belongs to the CPG. cause.
Parcel of land No. No.
inherited by W in Before the Marriage
2000
Rental income of No. Yes. Net income during the Art. 143. Should the future spouses agree in the marriage settlements that their property
the parcel of land marriage. relations during marriage shall be governed by the regime of separation of property, the
inherited by W at
100K per annum
provisions of this Chapter shall be suppletory.
Can a spouse dispose a property co-owned without the consent of the other spouse? Art. 144. Separation of property may refer to present or future property or both. It may be
No, there must be written consent of the other spouse or judicial authorization. total or partial. In the latter case, the property not agreed upon as separate shall pertain to
the absolute community.
How consent manifested
1. Consent must be in writing (e.g. both spouses must be named in a deed of sale; in the Art. 145. Each spouse shall own, dispose of, possess, administer and enjoy his or her
name of one spouse with the marital consent of the other) own separate estate, without need of the consent of the other. To each spouse shall belong
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all earnings from his or her profession, business or industry and all fruits, natural, industrial filing thereof. The court shall take measures to protect the creditors and other persons
or civil, due or received during the marriage from his or her separate property. with pecuniary interest. (Art 136 par 2)
3. During the pendency of the proceedings for separation of property, the absolute
Art. 146. Both spouses shall bear the family expenses in proportion to their income, or, in community or the conjugal partnership shall pay for the support of the spouses and their
case of insufficiency or default thereof, to the current market value of their separate children. (Art 137 par 2)
properties. 4. Once the separation of property has been decreed, the absolute community or the
conjugal partnership of gains shall be liquidated in conformity with this Code. (Art 137
The liabilities of the spouses to creditors for family expenses shall, however, be solidary. par 1)
5. After dissolution of the absolute community or of the conjugal partnership, the provisions
on complete separation of property shall apply. (Art 138)
Judicial Separation of Property 6. The petition for separation of property and the final judgment granting the same shall be
recorded in the proper local civil registries and registries of property. (Art 139)
Grounds
Note: The separation of property shall not prejudice the rights previously acquired by
Art. 135. Any of the following shall be considered sufficient cause for judicial separation of creditors. (Art 140)
property:
Mere agreement of the husband and wife to have a separation of property reduced in an
(1) That the spouse of the petitioner has been sentenced to a penalty which carries with it instrument validly notarized is not valid. It must be submitted before the court for approval. It
civil interdiction; is the duty of the court to take precautionary measure to protect the children.
(2) That the spouse of the petitioner has been judicially declared an absentee; Illustrations:
FACTS: There was a judicial separation of property between H and W, which was initiated by
(3) That loss of parental authority of the spouse of petitioner has been decreed by the court; W because of H’s infidelity. The court adjudicated all real estate located in the Phils in favor
of W. H, an alien, protested claiming that he contributed to the purchased of those properties.
(4) That the spouse of the petitioner has abandoned the latter or failed to comply with his or HELD: H is not entitled to his share over the subject real properties for he is disqualified
her obligations to the family as provided for in Article 101; under the constitution. The only way by which he can acquire real properties in the Phils is by
way of hereditary succession or if he is a former natural-born Filipino citizen. Not even equity
(5) That the spouse granted the power of administration in the marriage settlements has can allow him to be entitled to reimbursement because he did not come to court with clean
abused that power; and hands.
(6) That at the time of the petition, the spouses have been separated in fact for at least one FACTS: H in the 1st marriage has 4 children and in the 2nd marriage has another 4 children; a
year and reconciliation is highly improbable. property is acquired during the 2nd marriage. HELD: Under the NCC, the property acquired
during the 2nd marriage, the wife has only the right of usufruct. If the conjugal is terminated
Note: In the cases provided for in Numbers (1), (2) and (3), the presentation of the final upon death of the wife, the property will be considered H’s property.
judgment against the guilty or absent spouse shall be enough basis for the grant of the
decree of judicial separation of property.
Revival
Procedure:
1. The spouses may jointly file a verified petition with the court for the voluntary dissolution Art. 141. The spouses may, in the same proceedings where separation of property was
of the absolute community or the conjugal partnership of gains, and for the separation of decreed, file a motion in court for a decree reviving the property regime that existed
their common properties. (Art 136, par 1) between them before the separation of property in any of the following instances:
2. All creditors of the absolute community or of the conjugal partnership of gains, as well as
the personal creditors of the spouse, shall be listed in the petition and notified of the (1) When the civil interdiction terminates;
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Article 135 (grounds for separation of Article 141 (revival of former property
(2) When the absentee spouse reappears; property) regime)
Civil interdiction When it terminates
(3) When the court, being satisfied that the spouse granted the power of administration in the Absentee When the absentee spouse reappears
marriage settlements will not again abuse that power, authorizes the resumption of said
Loss of parental authority When parental authority is judicially restored
administration;
Abandonment Resumption of common life with each other
(4) When the spouse who has left the conjugal home without a decree of legal separation Abuse of power of administration When the court authorizes the resumption of
resumes common life with the other; the power of administration
Separated in fact Reconciliation and resumption of common
(5) When parental authority is judicially restored to the spouse previously deprived thereof; life
Voluntary dissolution under Art. 136 Revival of the former property regime (no
(6) When the spouses who have separated in fact for at least one year, reconcile and voluntary separation of property may
resume common life; or thereafter be granted; the revival shall be
governed by Art. 67)
(7) When after voluntary dissolution of the absolute community of property or conjugal
partnership has been judicially decreed upon the joint petition of the spouses, they Effect of dissolution of ACP or CPG:
agree to the revival of the former property regime. NO VOLUNTARY SEPARATION OF
PROPERTY MAY THEREAFTER BE GRANTED. a. After dissolution, the provisions on complete separation of property shall apply.
b. Each spouse shall own, dispose, possess, administer and enjoy his or her own separate
Note: The revival of the former property regime shall be governed by Article 67.
estate, without the need of the consent of the other. To each spouse shall belong all
earnings from his or her profession, business or industry and all fruits, natural, industrial
or civil, due or received during the marriage from his or her separate property.
When Administration of Exclusive Property be Transferred to the Other Spouse
c. Both spouses shall bear the family expenses in proportion to their income, or in case of
insufficiency or default thereon, to the current market value of their separate properties.
Art. 142. The administration of all classes of exclusive property of either spouse may be The liability of the spouses to creditors for family expense shall be solidary.
transferred by the court to the other spouse:
(1) When one spouse becomes the guardian of the other; Property Regime Of Unions Without Marriage
(2) When one spouse is judicially declared an absentee; a. Void Marriages or Common-Law/Live-in Relationships – the property regime shall be
governed by simple co-ownership under Art 147. There is presumption of equality of
(3) When one spouse is sentenced to a penalty which carries with it civil interdiction; or
shares in the absence of contrary proof.
(4) When one spouse becomes a fugitive from justice or is in hiding as an accused in a Art. 147. When a man and a woman who are capacitated to marry each other, live
criminal case. exclusively with each other as husband and wife without the benefit of marriage or under
a void marriage, their wages and salaries shall be owned by them in EQUAL SHARES
Note: If the other spouse is not qualified by reason of incompetence, conflict of interest, or
and the property acquired by both of them through their work or industry shall be
any other just cause, the court shall appoint a suitable person to be the administrator.
governed by the rules on co-ownership.
Summary of Grounds for Separation of Property and revival of the Former Property
In the absence of proof to the contrary, properties acquired while they lived together shall
be PRESUMED to have been obtained by their JOINT EFFORTS, WORK OR
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INDUSTRY, and shall be owned by them in EQUAL SHARES. For purposes of this regard to the condo unit, A is only a trustee for and in behalf of ACP or CPG. With
Article, a party who did not participate in the acquisition by the other party of any respect to 2 cars, savings account, and personal properties, there must be proof of actual
property shall be deemed to have contributed jointly in the acquisition thereof if the contribution.
former's efforts consisted in the care and maintenance of the family and of the
household. Proof of Actual Contribution
1. Receipts
Neither party can encumber or dispose by acts inter vivos of his or her share in the 2. Agreements of the parties
property acquired during cohabitation and owned in common, without the consent of the
other, until after the termination of their cohabitation.
When only one of the parties to a void marriage is in good faith, the share of the party in
bad faith in the co-ownership shall be forfeited in favor of their common children. In case
of default of or waiver by any or all of the common children or their descendants, each
vacant share shall belong to the respective surviving descendants. In the absence of
descendants, such share shall belong to the innocent party. In all cases, the forfeiture
shall take place upon termination of the cohabitation.
b. Bigamous, Adulterous relationships – the property regime is governed limited co-

ownership under Art 148. There is no presumption of equal shares. There must be proof
of actual contribution.
Art. 148. In cases of cohabitation not falling under the preceding Article, only the
properties acquired by both of the parties through their ACTUAL JOINT
CONTRIBUTION of money, property, or industry shall be owned by them in common in
proportion to their respective contributions. In the absence of proof to the contrary, their
contributions and corresponding shares are presumed to be equal.
The same rule and presumption shall apply to joint deposits of money and evidences of
credit.
If one of the parties is validly married to another, his or her share in the co-ownership
shall accrue to the absolute community or conjugal partnership existing in such valid
marriage. If the party who acted in bad faith is not validly married to another, his or her
shall be forfeited in the manner provided in the last paragraph of the preceding Article.
The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith.
Illustration:
FACTS: H is legally married to W. H has an illicit affair with A. During the marriage, H
acquired a condo unit which was registered in the name of A. During the time when H
and A lived together, they acquired 2 cars, they have savings account of 5M and
personal properties. After sometime, H and A parted ways. A asks for her share claiming
that at the time of cohabitation she was receiving salary. Is she entitled? HELD: NO. With
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VII. THE FAMILY

Note: Family relation between father and his illegitimate child shall be recognized only if there
FAMILY - the foundation of the nation, is a basic social institution which public policy was recognition by the father that the child is his illegitimate child.
cherishes and protects. Consequently, family relations are governed by law and no custom,
practice or agreement destructive of the family shall be recognized or given effect. (Art 149,
FC) Family Home
Family Relations, Coverage Definition

1. Between husband and wife;
2. Between parents and children; The family home, constituted jointly by the husband and the wife or by an unmarried head of
3. Among other ascendants and descendants; and a family, is the dwelling house where they and their family reside, and the land on which it is
4. Among brothers and sisters, whether of the full or halfblood. (Art 150) situated. (Art. 152, FC)
Suit Among Members of the Same Family / Necessity of Earnest Efforts toward How Constituted
Compromise
The family home is deemed constituted on a house and lot from the time it is occupied as a
NO suit between members of the same family shall prosper UNLESS it should appear from family residence. (Art. 153, FC)
the verified complaint or petition that earnest efforts toward a compromise have been made,
but that the same have failed. If it is shown that no such efforts were in fact made, the same Who constitutes Family Home
case must be dismissed. “
The family home may be constituted jointly by the husband and the wife or by an unmarried
This rules shall not apply to cases which may not be the subject of compromise under the head of a family.
Civil Code. (Art 151, FC)
Also, under Art. 161, a person may constitute, or be the beneficiary of, only one family home.
Prohibited Compromise
Duration
No compromise upon the following questions shall be valid: CJ-VAFF
1. Civil Status of persons (e.g action for compulsory recognition or to impugn legitimacy) From the time of its constitution and so long as any of its beneficiaries actually resides
2. Validity of marriage or a legal separation therein, the family home continues to be such. (Art. 153, FC)
3. Any ground for legal separation
4. Future support The family home shall continue despite the death of one or both spouses or of the unmarried
5. Jurisdiction of courts head of the family for a period of ten years or for as long as there is a minor beneficiary, and
6. Future legitime (Art 2035, NCC) the heirs cannot partition the same unless the court finds compelling reasons therefor. This
rule shall apply regardless of whoever owns the property or constituted the family home. (Art.
Note: “There may be a compromise upon the civil liability arising from an offense; but such 159, FC)
compromise shall not extinguish the public action for the imposition of the legal penalty.” (Art
2034, NCC) Where Family Home is Constituted
Q: H filed case against brothers of W. Brothers filed Motion to Dismiss on the ground of lack The family home must be part of the properties of the absolute community or the conjugal
of cause of action (no showing of earnest effort to a compromise). Should the motion be partnership, or of the exclusive properties of either spouse with the latter's consent. It may
granted? also be constituted by an unmarried head of a family on his or her own property.
A: No because H and brothers of W are not relatives under Art.150.

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Nevertheless, property that is the subject of a conditional sale on installments where home, by the owner or owners of the property, or by any of the beneficiaries, the same
ownership is reserved by the vendor only to guarantee payment of the purchase price may rule and procedure shall apply.
be constituted as a family home. (Art 156, FC)
At the execution sale, no bid below the value allowed for a family home shall be
Limitation on the Actual Value of Family Home considered. The proceeds shall be applied first to the amount fixed by law, and then to
the liabilities under the judgment and the costs. The excess, if any, shall be delivered to
The actual value of the family home shall not exceed, at the time of its constitution, the the judgment debtor. (Art 160, FC)
amount of P300,000.00 in urban areas, and P200,000.00 in rural areas or such amounts as
may be fixed by law. In any event, if the value of the currency changes, the value most Q: H & W purchased house and lot which was occupied as family residence in 1995. In 2001,
favorable for the constitution of a family home shall be the basis of evaluation. judgment was rendered against H&W on the case involving quasi-delict which was filed by A
against H&W in 1990. Eventually, A filed Motion for Execution on the house and lot. Should
Note: Urban areas include chartered cities and municipalities whose annual income at least the motion be granted?
equals that legally required for chartered cities. All others are deemed rural areas. (Art 157,
FC) A: Yes. The house and lot is not exempt from execution. The debt was incurred prior to the
constitution of the family home.(Art 155 [2])
Beneficiaries
Q: The house and lot was constituted as family home in 1995. In 1996, H &W obtained a
a. The husband and wife, or an unmarried person who is the head of family. P2M loan with REM on the house and lot. Is the house and lot subject to execution?
b. Their parents, ascendants, descendants, brothers and sisters, whether the relationship
be legitimate or illegitimate, who are living in the family home and who depend upon the A: Yes. The house and lot is not exempt from execution. The debt was secured by mortgage
head of the family for legal support. (Art 154, FC) on the premises. (Art 155 [3])
c. A person may be the beneficiary of only one family home. (Art 161, FC)
Benefits of Family Home Q: Can the Family Home be subject of expropriation proceedings?
GENERAL RULE: The family home is exempt from execution, forced sale or attachment. (Art A: No. Expropriation is a form of forced sale. Note that the family home is exempt from forced
153 and 155) sale.
EXEMPTIONS: Q: The house and lot was constituted as family home in 1995. In 2000, H&W obtained a P1.5
a. For non-payment of taxes. loan secured by promissory note. The creditor filed an action for collection of sum of money
b. For debts incurred prior to the constitution of the family home. after H&W defaulted in payment. Judgment was rendered in favor of the creditor. Can the
c. For debts secured by mortgages on the premises before or after such constitution. house and lot be subject of execution?
d. For debts due to laborers, mechanics, architects, builders, material men, and others who
have rendered service or furnished materials for the construction of the building. A: Yes. The house and lot is not exempt from execution because it is more than the value
(laborer’s lien, materialmen’s lien, contractor’s lien) (Art 155, FC) required by law i.e P300,000 (urban) or P200,000 (rural)
e. When a creditor whose claim is not among those mentioned from a – d obtains a
judgment in his favor, and he has reasonable grounds to believe that the family home is Steps to be undertaken by Judgment Creditor in case of Execution:
actually worth more than the maximum amount fixed herein, he may apply to the court 1. Apply for writ of execution. Allege that the value of Family Home exceeds that required by
which rendered the judgment for an order directing the sale of the property under law. The value is shown by tax declaration or proven by experts (appraisers)
execution. The court shall so order if it finds that the actual value of the family home 2. In execution sales, no bid shall be below the maximum prescribed for Family Home
exceeds the maximum amount allowed by law as of the time of its constitution. If the 3. The proceeds of sale shall be distributed as follows:
increased actual value exceeds the maximum allowed and results from subsequent a. Restore to debtor/s the value of the family home as prescribed by law, i.e. P300,000
voluntary improvements introduced by the person or persons constituting the family (urban) or P200,000 (rural)
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b. Apply for the payment of the debt

c. The excess shall be given to debtor/s
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VIII. PATERNITY AND FILIATION

The legitimacy or illegitimacy of a child born after three hundred days following the
PATERNITY – is the civil status of the father with respect to the child begotten by him. termination of the marriage shall be proved by whoever alleges such legitimacy or
illegitimacy. (Art. 169, FC)
MATERNITY – is the civil status of the mother with respect to the child begotten by her.
The child shall be considered legitimate although the mother may have declared against its
FILIATION – is the civil status of the child in relation to his father. legitimacy or may have been sentenced as an adulteress. (Art. 167, FC) An assertion of the
mother against the legitimacy of her child cannot affect the legitimacy of such child born or
Kinds of Filiation conceived within the valid marriage. A mother has no right to disavow a child because
1. Natural (legitimate or illegitimate) maternity is never uncertain.
2. Artificial i.e. Adoption
Between the certificate of live birth which is prima facie evidence of child’s illegitimacy and
Kinds/Status of Children the quasi-conclusive presumption of his legitimacy, the latter shall prevail. Not only does it
1. Legitimate bear more weight, it is also more conducive to the best interest of the child and in
2. Illegitimate consonance with the purpose of the law. (Concepcion vs CA, Aug 31, 2005)
3. Legitimated
4. Adopted Illustrations:
a. FACTS: 2 children were registered as children of H and W. S filed an action wherein he
LEGITIMATE CHILDREN recognized the 2 children as his. S presented an affidavit of recognition to support his
claim. HELD: This action shall not prosper because public policy dictates that legitimacy
LEGITIMATE CHILDREN - children conceived or born during the marriage of the parents are is preferred over illegitimacy. Besides, who can impugn the legitimate filiation of the
legitimate. (Art 164, FC) children is the husband and only on grounds specified by law within the prescriptive
periods provided by law.
Take note that under Art. 54 of the FC, “children conceived or born before the judgment of b. FACTS: W contracted a 2nd marriage with S, without her 1st marriage with H having been
annulment or absolute nullity of the marriage under Article 36 has become final and annulled or declared a nullity. W and S have a child A. Later, S learned of the subsisting
executory shall be considered legitimate. Children conceived or born of the subsequent marriage of W with H. S then filed a petition for declaration of nullity of marriage on the
marriage under Article 53 shall likewise be legitimate.” ground of bigamous marriage. The court declared the marriage of S and W null and void
for being bigamous and declared A as their illegitimate child, granting custody in favor of
Presumption of Legitimacy W and visitation rights of S. W appealed questioning the grant of visitation rights and that
the child’s surname appearing in his certificate of live birth be dropped. HELD: SC held
In case of doubt as to the filiation of the child, legitimacy is preferred, unless, there is proof to that A is the legitimate child of W and H because he was conceived and born during the
the contrary. subsistence of a valid first marriage. W and S cannot deprive A of his legitimate status
because such is against public policy. S is not entitled to visitation rights because he is
A child who is conceived or born during marriage of his parents is presumed legitimate and not related to A. H, being the father of A, has the right to impugn the legitimacy of A.
the status and filiation of the child cannot be compromised. (Baluyot vs. Baluyot, June 14, (Concepcion vs CA, Aug 31, 2005)
1990)
A child born during legal separation or separation de facto, is still a legitimate child because Children by Artificial Insemination, Requirements
conceived or born during subsistence of valid marriage. The husband has the right to impugn
such legitimacy. Children conceived as a result of artificial insemination (in-vitro fertilization) of the wife with
the sperm of the husband or that of a donor or both are likewise LEGITIMATE CHILDREN of
The presumption of legitimacy is quasi conclusive and proceeds from the sexual union in the the husband and his wife, provided, that:
marriage and may be refuted only by the evidence allowed by law. a. both of them authorized or ratified such insemination in a written instrument;
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b. such written instrument must be executed and signed by them before the birth of the
child. (3) That in case of children conceived through artificial insemination, the written authorization
c. the instrument shall be recorded in the civil registry together with the birth certificate of or ratification of either parent was obtained through mistake, fraud, violence, intimidation,
the child. (Art 164, FC) or undue influence.
NOTE: if written authorization or ratification is made after artificial insemination, the child
is still legitimate. If ratification is made after recording of birth or if there is belated Who May File (Art 170, FC)
registration of ratification, still legitimate because legitimacy is preferred over illegitimacy
to serve the best interest of the child. GENERAL RULE: Only the husband may impugn.
No criminal liability for adultery of wife artificially inseminated without the consent of the EXCEPTION: The heirs of the husband may impugn the filiation of the child within the period
husband. prescribed in the preceding article only in the following cases:
What is the effect of Intervention of surrogate mothers (1) If the husband should die before the expiration of the period fixed for bringing his action;
If the zygote is the result of fertilization of the wife’s ovum by her husband’s sperm, it is (2) If he should die after the filing of the complaint without having desisted therefrom; or
submitted that the child is their legitimate child, it having been sourced from their own
blood. (Pineda) (3) If the child was born after the death of the husband. (Art 171, FC)
If in the same set of facts, the sperm of a donor is used without the consent of the
husband, it is submitted that the child is illegitimate because he is not the child of the
husband but that of the wife and donor. (Pineda)
Prescriptive Period
Action to Impugn Legitimacy The action to impugn the legitimacy of the child shall be brought within:
a. 1 year from the knowledge of the birth or its recording in the civil register - if the husband
Grounds (Art 166, FC) or, in a proper case, any of his heirs, should reside in the city or municipality where the
birth took place or was recorded.
(1) That it was physically impossible for the husband to have sexual intercourse with his wife b. 2 years - If the husband or, in his default, all of his heirs do not reside at the place of birth
within the first 120 days of the 300 days which immediately preceded the birth of the child as defined in the first paragraph or where it was recorded but they reside in the
because of: Philippines.
c. 3 years – if they are residing abroad.
(a) the physical incapacity of the husband to have sexual intercourse with his wife;
Note: If the birth of the child has been concealed from or was unknown to the husband or his
(b) the fact that the husband and wife were living separately in such a way that sexual heirs, the period shall be counted from the discovery or knowledge of the birth of the child or
intercourse was not possible; or of the fact of registration of said birth, whichever is earlier.
(c) serious illness of the husband, which absolutely prevented sexual intercourse (e.g. Rules on the Status of Children Born When Widow contracted 2nd Marriage within 300
husband in a state of coma or is paralyzed) Days From Termination of Former Marriage (Art 168, FC)
(2) That it is proved that for biological or other scientific reasons, the child could not have 1. Requisites:
been that of the husband, except in the instance provided in the second paragraph of a. 1st marriage terminated
Article 164; or b. Mother contracted subsequent marriage
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c. Subsequent marriage contracted within 300 days after termination of previous constitutes a public document or a private handwritten instrument signed by the parent
marriage concerned.
d. Child was born
e. No evidence as to the status of the child If express recognition is contained in a deed of sale, still, such deed may be admitted as
proof of filiation.
2. Rules as To Whom the Child Belongs
a. To 1st marriage – if the child born before lapse of 180 days after the solemnization of If recognition in open court or during pre-trial, such recognition constitutes as a judicial
the subsequent marriage provided it be born within 300 days after the termination of admission, thus may be considered as proof of filiation.
the former marriage.
b. To 2nd marriage – if the child born after 180 days following the celebration of the EXCEPTIONS: In the absence of the foregoing evidence, the legitimate filiation shall be
subsequent marriage even though it be born within the 300 days after the termination proved by:
of the former marriage.
1. The open and continuous possession of the status of a legitimate child
Note: The legitimacy or illegitimacy of a child born after three hundred days following the
termination of the marriage shall be proved by whoever alleges such legitimacy or Under this, for an action to establish illegitimate filiation, a high standard proof is required.
illegitimacy. (Art. 169, FC)
There must be a showing of permanent intention of the supposed father to consider the
Action to Claim Legitimacy child as his own by continuous and clear manifestation of paternal affection and care.
The paternal affection and care shall not be attributed to pure charity. Such acts must be
Proof of Legitimacy/Filiation (Art. 172, FC) of such a nature that they reveal not only the conviction of paternity but also the apparent
desire to have and treat the child as such in all relations in society and in life, not
GENERAL RULE: The filiation of legitimate children is established by any of the following: accidentally, but continuously. (Jison vs CA 98 Phil 794)
1. record of birth appearing in the civil register or a final judgment
Continuous does not mean that the concession of status shall continue forever but only
A birth certificate to be considered as valid proof of filiation, must be signed by the father that it shall not be of an intermittent character while it is continuous. By continuous is
and mother jointly, or by the mother alone if the father refuses. If the father did not meant un-interrupted and consistent, but does not require a particular length of time. The
intervene in the making of the birth certificate, the putting of his name by the mother or possession of such status means that the father has treated the child as his own, directly
doctor or registrar is void. The signature of the father is necessary. Certificates of live and not through others, spontaneously and without concealment though without publicity.
birth may be disallowed as proofs of filiation if they are executed thru fraud.
The standard of proof required is founded on the principle that an order for recognition
Baptismal certificates do not fall under this category. They may be allowed as evidence and support may create an unwholesome atmosphere or may be an irritant in the family
as allowed by the Rules of Court. or lives of the parties, so that it must be issued only if paternity or filiation is established
by clear and convincing evidence.
2. admission of legitimate filiation in a public document or a private handwritten instrument
and signed by the parent concerned. Mere photographs with the putative father is not, per se, proof of filiation.
It is considered a judicial admission. It must also be express. Thus a card containing the Receipts indicating that the father was the one who paid all tuition fees of the child is not,
praise, “I love you like my son,” and signed by the father, is not a proof of filiation. per se, proof of filiation.
If express recognition is contained in a will, such is a valid proof of filiation even if the will BUT photographs, receipts plus other evidence, taken collectively, may be proof of
is disallowed probate or even if not presented for probate or even if such will is revoked. filiation.
Nullity of will shall not affect provisions which do not depend on death of testator. It still
2. Any other means allowed by the Rules of Court and special laws.
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e.g. Baptismal certificates; judicial admission; family bible in which his name has been
entered; common reputation respecting his pedigree; admission by silence; testimonies Children conceived and born outside a valid marriage are illegitimate, unless otherwise
of witnesses. provided in this Code. (Art 165, FC)
Children born of void marriages are illegitimate (with respect to the mother only by operation
Who May File, When to File of law; the child and the father are, as a rule, strangers with each other) EXCEPT children
conceived or born before the judgment absolute nullity of the marriage under Article 36 has
The action to claim legitimacy may be brought by the child during his or her lifetime (not the become final and executory shall be considered legitimate and children conceived or born of
lifetime of the parents) and shall be transmitted to the heirs should the child die during the subsequent marriage under Article 53 shall likewise be legitimate. (Art 54, FC)
minority or in a state of insanity. In these cases, the heirs shall have a period of five years
within which to institute the action. (Art. 173, FC) Voluntary Recognition of Illegitimate Children, How Made
The action already commenced by the child shall survive notwithstanding the death of either If due recognition is made by the putative father in the record of birth, valid will, public
or both of the parties. instrument or private handwritten instrument, it is considered as a consummated act of
acknowledgment. It is no longer required to have compulsory recognition.
Rights of Legitimate Children (Art. 174, FC) When is Compulsory Recognition Be Made
(1) To bear the surnames of the father and the mother, in conformity with the provisions of
the Civil Code on Surnames. In cases where the proof of illegitimacy is either open and continuous possession of the
status of a legitimate child or any other means allowed by the Rules of Court and special
A legitimate child cannot petition the court to drop his middle name. Middle names and laws.
surnames are not subject to the will of persons because they are prescribed by law.
Proof of Illegitimacy (Arts 175 and 172, FC)
Surname – identifies paternal lineage.
Illegitimate children may establish their illegitimate filiation in the same way and on the same
Middle name – identifies maternal lineage. evidence as legitimate children. (Art. 175, FC)
(2) To receive support from their parents, their ascendants, and in proper cases, their Thus, under Art 172, the filiation of legitimate children is established by any of the following:
brothers and sisters, in conformity with the provisions of this Code on Support. (1) The record of birth appearing in the civil register or a final judgment; or
In case of legal separation or annulment of marriages, the rights of children to support Even if the putative father, did not sign the birth certificate as the father but as an
shall not be denied. The support shall be taken from separate properties of the parties informant, for as long as he actively participated in the execution of the certificate, such
because from that time the ACP or CPG has already been dissolved and liquidated. can be used as an evidence of filiation.
(3) To be entitled to the legitimate and other successional rights granted to them by the Civil (2) An admission of legitimate filiation in a public document or a private handwritten
Code. (a compulsory heir may be a voluntary heir at the same time; a legitimate child is instrument and signed by the parent concerned.
entitled to be represented in the succession to his parents)
In this case there must be an EXPRESS recognition.
Note: In case of legitimate minors, husband and wife exercise joint parental authority. In case
of conflict, husband’s right shall prevail subject to the right of recourse by the wife before the Admission during pre-trial that the child is his illegitimate child is a judicial admission, thus
competent court. admissible, provided it was done before a court of record.
ILLEGITIMATE CHILDREN In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
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(1) The open and continuous possession of the status of a legitimate child. Who May File and When to File Action for Compulsory Recognition (Art. 175, par. 2,
(2) Any other means allowed by the Rules of Court and special laws. FC)
Baptismal certificate of the child where it is signed by the putative father is admissible in The action must be brought within the same period specified in Article 173, that is within the
evidence but it requires other proof of recognition to establish illegitimate filiation. lifetime of the child (although action is not necessary) except when the action is based on the
second paragraph of Article 172, in which case the action may be brought during the lifetime
DNA analysis is under this category. of the alleged parent. The REASON of the latter rule is to give the allege parent the chance to
affirm or consent to the filiation of the child.
DNA Tests: Probative Value in Paternity Cases
In case of nullity of marriage, children are generally considered illegitimate with respect to the
The court may allow the child to petition the court to have the father be subjected to DNA mother only by operation of law. But the illegitimate filiation of the child with the father, there
analysis. Such is not violative of the right of the father against self-incrimination because such is a need to prove filiation. There is no problem if there is declaration in the judgment of
is available only in criminal cases and not in civil cases. There is also no violation of privacy illegitimate filiation because such can be used as proof of filiation. In the absence of
because the right to establish paternity and filiation is superior over the right to privacy. declaration, there are 2 views:
1. Traditional view
In DNA analysis or test, it is not enough that there is a perfect match. Such alone is not
sufficient to establish filiation. The court should include probability of paternity (W), that is, the There must be an action for compulsory recognition because illegitimate children cannot
likelihood of paternity between the putative father and the child as compared to the probability be considered a relative of the father.
of paternity of random match between 2 unrelated individuals. The W must always refer to a
specific population base. Thus, because of the nature of this damnation, W will never be 2. Liberal view
100% but the chances of increasing W will be greater if the putative father, child and mother
are included in the DNA analysis. This means that is there is 99.9% probability, the court There is no more need of an action for compulsory recognition. The best interest of the
should not stop there. It is required that the 99.9% is the provability of paternity based on child shall be taken into consideration. Having been downgraded to the status of
population segment that the chance or provability comes from 1 in 5 million. illegitimate child, no further burden will be imposed upon the child. And it is by operation
of law following the declaration of marriage that the child is considered illegitimate child of
HOWEVER, when the DNA result excludes putative father from paternity, such is conclusive the parties.
as to non-paternity. There is impossible match.
Rights of Illegitimate Children (Art. 176 in rel. to R.A 9255)
If W is 99.9% or higher, there is a presumption of paternity.
Illegitimate children shall:
If W is less than 99.9%, there is a rebuttable proof of paternity.
1. use the surname and shall be under the parental authority of their mother.
What may be used to overcome the presumption of paternity or rebut the proof of paternity:
Use the Vallejo Test. RA 9255 which was approved on Feb 24, 2004, illegitimate children may now use the
surname of their father IF their filiation has been expressly recognized by the father
Vallejo Tests: The court must scrutinize the following facts: through the record of birth appearing in the civil register, OR when the admission in a
a. How the samples are collected public document or private handwritten instrument is made by the father. PROVIDED,
b. How the samples were handled however, that the father has the right to institute an action before the regular courts to
c. Possibility of contamination of samples prove non-filiation during his lifetime.
d. Standard procedure used in similar test should be followed
e. Competence of the person who conducted the examination. If the child was already recognized, the surname is that of the father and the middle
name is that of the mother. The purpose of recognition is to compel the father to give
support and so that later the illegitimate children will be entitled to their legitime.
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Even after recognition, the father cannot demand custody over the child. The law The legitimation of children who died before the celebration of the marriage shall benefit their
explicitly confess to the mother sole parental authority over an illegitimate child. It follows descendants. (Art. 181, FC)
that only if she defaults can the father assume custody and authority over the minor.
While an illegitimate child of a woman is allowed to use the surname of his stepfather, a Effect Of Annulment and Nullity of Marriage Upon Legitimated
legitimate child is not allowed because if he is allowed it could result in confusion as to its
paternity. The annulment of a voidable marriage shall not affect the legitimation. (Art. 178, FC)
2. shall be entitled to support in conformity with this Code. In case of declaration of nullity of marriage, as a rule, children are considered illegitimate.
Legitimation will not become operative.
3. The legitime of each illegitimate child shall consist of one-half of the legitime of a
legitimate child. Except for this modification, all other provisions in the Civil Code Rights of Legitimated Children
governing successional rights shall remain in force.
Legitimated children shall enjoy the same rights as legitimate children. (Art. 179, FC)
LEGITIMATED CHILDREN Action To Impugn, Who May Impugn and When
LEGITIMATED CHILDREN – are those conceived and born outside of wedlock who, during Legitimation may be impugned only by those who are prejudiced in their rights, within 5 years
conception, the parents are not disqualified to marry each other, and by subsequent marriage from the time their cause of action accrues. (Art. 182, FC) Cause of action accrues from the
of their parents to each other are, by legal fiction, considered legitimate. death of the putative parent.
LEGITIMATION – is a process of conferring legitimate status to illegitimate children by

subsequent valid marriage of the parents.
ADOPTED CHILDREN
Rationale
ADOPTION – is a juridical act which creates between 2 persons a relationship similar to that
To confer legitimate status of illegitimate children and as such legitimated children have the which results from legitimate paternity and filiation
same rights as those of legitimate children.
Nature of Adoption Proceedings
How Made
Adoption proceedings are judicial, not administrative.
Legitimation shall take place by a subsequent valid marriage between parents. (Art. 178, FC)
Procedure
Requisites
1. The child was conceived and born outside of wedlock. Who May Adopt (Sec 7, RA 8552, Domestic Adoption Act of 1998)
2. At the time of conception of the child, the parents were not disqualified by any
impediment to marry each other. 1. Filipino citizen who is: LPG-NEAP
3. The parents must subsequently enter into a valid marriage. a. of legal age;
b. in possession of full civil capacity and legal rights;
When Legitimation Take Effect c. of good moral character;
d. has not been convicted of any crime involving moral turpitude;
The effects of legitimation shall retroact to the time of the child's birth. (Art. 180, FC) e. emotionally and psychologically capable of caring for children;
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d. at least sixteen (16) years older than the adoptee; and

e. who is in a position to support and care for his/her children in keeping with the means (ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, However,
of the family. that the other spouse has signified his/her consent thereto; or
When is the requirement of 16-year difference between the age of the adopter and (iii) if the spouses are legally separated from each other.
adoptee may be waived
a. when the adopter is the biological parent of the adoptee; OR Note: In case husband and wife jointly adopt, or one spouse adopts the illegitimate
b. when the adopter is the spouse of the adoptee's parent. son/daughter of the other, joint parental authority shall be exercised by the spouses.
2. Any alien who: HOWEVER, under INTER-COUNTRY ADOPTION LAW (RA 8043), the following may adopt:
a. possesses the same qualifications as above stated for Filipino nationals;
b. whose country has diplomatic relations with the Republic of the Philippines, An alien or a Filipino citizen permanently residing abroad may file an application for inter-
c. has been living in the Philippines for at least three (3) continuous years prior to the country adoption of a Filipino child IF he/she: (Sec 9, RA 8043)
filing of the application for adoption and maintains such residence until the adoption
decree is entered; a) is at least twenty-seven (27) years of age and at least sixteen (16) years older than the
d. has been certified by his/her diplomatic or consular office or any appropriate child to be adopted, at the time of application unless the adoptor is the parent by nature
government agency that he/she has the legal capacity to adopt in his/her country; of the child to be adopted or the spouse of such parent:
and
e. whose government allows the adoptee to enter his/her country as his/her adopted b) if married, his/her spouse must jointly file for the adoption;
son/daughter:
c ) has the capacity to act and assume all rights and responsibilities of parental authority
When requirements on residency and certification of the alien's qualification to under his national laws, and has undergone the appropriate counseling from an
adopt in his/her country may be waived accredited counselor in his/her country;
(i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of d) has not been convicted of a crime involving moral turpitude;
consanguinity or affinity; or
e) is eligible to adopt under his/her national law;
(ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or
f) is in a position to provide the proper care and support and to give the necessary moral
(iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse values and example to all his children, including the child to be adopted;
a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino
spouse; or g) agrees to uphold the basic rights of the child as embodied under Philippine laws, the U.N.
Convention on the Rights of the Child, and to abide by the rules and regulations issued to
3. The guardian with respect to the ward after the termination of the guardianship AND implement the provisions of this Act;
clearance of his/her financial accountabilities.
h) comes from a country with whom the Philippines has diplomatic relations and whose
government maintains a similarly authorized and accredited agency and that adoption is
Husband and Wife, Joint Adoption allowed under his/her national laws; and
GENERAL RULE: Husband and wife shall jointly adopt. i) possesses all the qualifications and none of the disqualifications provided herein and in
other applicable Philippine laws.
EXCEPTIONS:
(i) if one spouse seeks to adopt the legitimate son/daughter of the other; or Who May Be Adopted (Sec 8, RA 8552, Domestic Adoption Act of 1998)
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institution with unknown facts of birth and parentage and registered in the Civil Register
(a) Any person below eighteen (18) years of age who has been administratively or judicially as a foundling.
declared available for adoption;
(b) The legitimate son/daughter of one spouse by the other spouse (No need of joint
CHILD LEGALLY AVAILABLE FOR ADOPTION - refers to a child who has been adoption; if the adopter is an alien, the requirements of residency and certification are no
voluntarily or involuntarily committed to the Department or to a duly licensed and longer applicable);
accredited child-placing or child-caring agency, freed of the parental authority of his/her
biological parent(s) or guardian or adopter(s) in case of rescission of adoption. (c) An illegitimate son/daughter by a qualified adopter to improve his/her status to that of
legitimacy;
VOLUNTARILY COMMITTED CHILD - is one whose parent(s) knowingly and willingly
relinquishes parental authority to the Department. (d) A person of legal age if, prior to the adoption, said person has been consistently
considered and treated by the adopter(s) as his/her own child since minority;
INVOLUNTARILY COMMITTED CHILD - is one whose parent(s), known or unknown,
has been permanently and judicially deprived of parental authority due to abandonment; (e) A child whose adoption has been previously rescinded; or
substantial, continuous, or repeated neglect; abuse; or incompetence to discharge
parental responsibilities. (f) A child whose biological or adoptive parent(s) has died: Provided, That no proceedings
shall be initiated within six (6) months from the time of death of said parent(s).
Who May be Administratively Or Judicially Declared Available For Adoption
Illustrations:
ABANDONED CHILD - refers to one who has no proper parental care or guardianship or a. FACTS: H and W are legally married. Can H and W legally adopt a child of their
whose parent(s) has deserted him/her for a period of at least six (6) continuous months neighbor? HELD: YES, provided the adoptee is among those qualifies.
and has been judicially declared as such. b. FACTS: If the child to be adopted is W’s illegitimate child, Can W and H adopt the
child? HELD: W can adopt the child because the child is her illegitimate child. H can
DEPENDENT CHILD - is one who is without a parent, guardian or custodian; or one also adopt the child provided he is qualified and that the child is qualified as an
whose parents, guardian or other custodian for good cause desires to be relieved of his adoptee who possesses none of the disqualifications. H and W can jointly adopt the
care and custody; and is dependent upon the public for support. child if they decide to do so. Alleged the qualifications of the adopters and
qualifications of the adoptee in the petition for adoption.
NEGLECTED CHILD - is one whose basic needs have been deliberately unattended or c. FACTS: If the child to be adopted is W’s legitimate child in her former marriage, W
inadequately attended, physically or emotionally, by his parents or guardinan. Neglect need not adopt the child because the latter is already her legitimate child. Can H, 2 nd
may occur in two ways: husband adopt the child of W? Are H and W required to adopt the child jointly?
a) There is a physical neglect when the child is malnourished, ill clad and without proper HELD: H can adopt the legitimate child of W because such is allowed by law. In this
shelter. case there is no need for H and W to adopt the child jointly because the child is
already the legitimate child of W. This situation is also applicable if the husband is an
A child is unattended when left by himself without provisions for his needs and/or alien and the wife is a former Filipino.
without proper supervision. d. FACTS: If H is an alien and W is a former Filipino. The child to be adopted is the
illegitimate child of W. HELD: W can adopt provided she is qualified. The residency
b) Emotional neglect exists: when children are maltreated, raped or seduced; when requirement can be waived because she is a former Filipino citizen who seeks to
children are exploited, overworked or made to work under conditions not conducive adopt a relative within the fourth (4th) degree of consanguinity or affinity. What about
to good health; or are made to beg in the streets or public places, or when children on the part of H, is residency requirement be waived? NO, because W is no longer a
are in moral danger, or exposed to gambling, prostitution and other vices. Filipino.
e. FACTS: H is married to W. H has an illegitimate child. Can H adopt his illegitimate
FOUNDLING – refers to deserted or abandoned infant or child whose parents, guardian child? HELD: H can adopt his illegitimate child even if not joined by W. The surname
or relatives are unknown; or a child committed to an orphanage or charitable or similar of the child is that of the father as the adopter. The middle name of the child is that of
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the mother. Although the relationship between the mother and the child is severed, it child-placing or child-caring agency has made a case study of the adoptee, his/her
is for the benefit of the child to use the surname of his mother as his middle name. biological parent(s), as well as the adopter(s), and has submitted the report and
recommendations on the matter to the court hearing such petition. (Section 11, RA 8552)
HOWEVER, under INTER-COUNTRY ADOPTION LAW (RA 8043), the following may be
adopted: At the time of preparation of the adoptee's case study, the concerned social worker shall
confirm with the Civil Registry the real identity and registered name of the adoptee. If the
Only a child legally available for domestic adoption may be the subject of inter-country birth of the adoptee was not registered with the Civil Registry, it shall be the responsibility
adoption. of the concerned social worker to ensure that the adoptee is registered.
Whose Consent is Necessary to the Adoption (Sec 9, RA 8552, Domestic Adoption Act of The case study on the adoptee shall establish that he/she is legally available for adoption
1998) and that the documents to support this fact are valid and authentic. Further, the case
study of the adopter(s) shall ascertain his/her genuine intentions and that the adoption is
After being properly counseled and informed of his/her right to give or withhold his/her in the best interest of the child.
approval of the adoption, the written consent of the following to the adoption is hereby
required: The Department shall intervene on behalf of the adoptee if it finds, after the conduct of
the case studies, that the petition should be denied. The case studies and other relevant
(a) The adoptee, if ten (10) years of age or over; documents and records pertaining to the adoptee and the adoption shall be preserved by
the Department.
(b) The biological parent(s) of the child, if known, or the legal guardian, or the proper
government instrumentality which has legal custody of the child; c. Supervised Trial Custody. - No petition for adoption shall be finally granted until the
adopter(s) has been given by the court a supervised trial custody period for at least six
If the child to be adopted is illegitimate, consent of the father is necessary if he (6) months within which the parties are expected to adjust psychologically and
recognized the child as his. If no recognition, there is no need of consent because both emotionally to each other and establish a bonding relationship. During said period,
are strangers to each other. temporary parental authority shall be vested in the adopter(s).
(c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the The court may motu proprio or upon motion of any party reduce the trial period if it finds
adopter(s) and adoptee, if any; the same to be in the best interest of the adoptee, stating the reasons for the reduction of
the period. However, for alien adopter(s), he/she must complete the six (6)-month trial
(d) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter if living with custody except for those enumerated in Sec. 7 (b) (i) (ii) (iii).
said adopter and the latter's spouse, if any; and
If the child is below seven (7) years of age and is placed with the prospective adopter(s)
(e) The spouse, if any, of the person adopting or to be adopted. through a pre-adoption placement authority issued by the Department, the prospective
adopter(s) shall enjoy all the benefits to which biological parent(s) is entitled from the
Procedure date the adoptee is placed with the prospective adopter(s). (Section 12, RA 8552)
a. Hurried Decisions. - In all proceedings for adoption, the court shall require proof that the d. Decree of Adoption. - If, after the publication of the order of hearing has been complied
biological parent(s) has been properly counseled to prevent him/her from making hurried with, and no opposition has been interposed to the petition, and after consideration of the
decisions caused by strain or anxiety to give up the child, and to sustain that all case studies, the qualifications of the adopter(s), trial custody report and the evidence
measures to strengthen the family have been exhausted and that any prolonged stay of submitted, the court is convinced that the petitioners are qualified to adopt, and that the
the child in his/her own home will be inimical to his/her welfare and interest. (Section 10, adoption would redound to the best interest of the adoptee, a decree of adoption shall be
RA 8552) entered which shall be effective as of the date the original petition was filed. This
b. Case Study. No petition for adoption shall be set for hearing unless a licensed social provision shall also apply in case the petitioner(s) dies before the issuance of the decree
worker of the Department, the social service office of the local government unit, or any
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of adoption to protect the interest of the adoptee. The decree shall state the name by if the adoptee and his/her biological parent(s) had left a will, the law on testamentary
which the child is to be known. (Section 13, RA 8552) succession shall govern. (Section 18, RA 8552)
e. Civil Registry Record. - An amended certificate of birth shall be issued by the Civil
Registry, as required by the Rules of Court, attesting to the fact that the adoptee is the Notes:
child of the adopter(s) by being registered with his/her surname. The original certificate of The adoptee has the rights as that of legitimate child, thus he has successional rights
birth shall be stamped "cancelled" with the annotation of the issuance of an amended upon death of the adopter.
birth certificate in its place and shall be sealed in the civil registry records. The new birth
certificate to be issued to the adoptee shall not bear any notation that it is an amended If the biological parents of the adoptee died, it appears that the law bars the child from
issue. (Section 14, RA 8552) inheriting from his biological parents intestate by operation of law. This is one
interpretation of the law. The proposition is there should be a complete severance. If not,
f. Confidential Nature of Proceedings and Records. - All hearings in adoption cases shall adopted children will be placed above the legitimate children for they can inherit either
be confidential and shall not be open to the public. All records, books, and papers relating from the biological parents and adopting parents.
to the adoption cases in the files of the court, the Department, or any other agency or
institution participating in the adoption proceedings shall be kept strictly confidential. HOWEVER, in one case, if the father of an illegitimate whose wife is already dead,
decided to adopt his own illegitimate child and the father dies, the child, having the rights
If the court finds that the disclosure of the information to a third person is necessary for of legitimate child, is entitled to his successional rights. If the biological mother dies, the
purposes connected with or arising out of the adoption and will be for the best interest of child is also entitled to his successional rights because in that case there was allowance
the adoptee, the court may merit the necessary information to be released, restricting the of using the surname of the mother as the child’s middle name the urpose of which is to
purposes for which it may be used. (Section 15, RA 8552) identify maternal lineage and after all the child should have a mother. (In re: Adoption of
Stephanie Garcia, 456 S 541)
Effects Of Adoption
If both the adopting parents died, can the adoptee file a petition for support from the
a. Parental Authority. - Except in cases where the biological parent is the spouse of the biological parents? NO, death of the adopting parents does not alter the consequences of
adopter, all legal ties between the biological parent(s) and the adoptee shall be severed the adoption. The biological parents are not obliged to give support. Would your answer
and the same shall then be vested on the adopter(s). (Section 16, RA 8552) be the same if the child is still a minor? YES, for the same reason as stated above.
If the adopters are husband and wife, the adoptee can use the surname of the adopting What if the adoptee himself died, what are the consequences of his death with respect to
father as his surname and the surname of the adopting mother as his middle name. succession? (See Discussion in Succession)
If the father of an illegitimate whose wife is already dead, decided to adopt his own Rescission Of Adoption
illegitimate child, the surname of the child is the surname of the father while his middle
name is the surname of his biological mother. (In re: Adoption of Stephanie Garcia, 456 S Grounds (Section 19, RA 8552)
541)
Upon petition of the adoptee, with the assistance of the Department if a minor or if over
b. Legitimacy. - The adoptee shall be considered the legitimate son/daughter of the eighteen (18) years of age but is incapacitated, as guardian/counsel, the adoption may be
adopter(s) for all intents and purposes and as such is entitled to all the rights and rescinded on any of the following grounds committed by the adopter(s): RASA
obligations provided by law to legitimate sons/daughters born to them without (a) repeated physical and verbal maltreatment by the adopter(s) despite having undergone
discrimination of any kind. To this end, the adoptee is entitled to love, guidance, and counseling;
support in keeping with the means of the family. (Section 17, RA 8552) (b) attempt on the life of the adoptee;
(c) sexual assault or violence; or
c. Succession. - In legal and intestate succession, the adopter(s) and the adoptee shall (d) abandonment and failure to comply with parental obligations.
have reciprocal rights of succession without distinction from legitimate filiation. However,
Who May File
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Only the adoptee can file a petition for rescission. Adoption, being in the best interest of the
child, shall NOT be subject to rescission by the adopter(s).
HOWEVER, the adopter(s) may disinherit the adoptee for causes provided in Article 919 of
the Civil Code. (Section 19, RA 8552)
Note: If the decree of adoption was issued prior to the effectivity of the Domestic Adoption Act
(1998 February 25), a petition for rescission is not allowed if such was filed after the
effectivity of the said law because the policy of the present law is to favor the child.
If the adoptee is still a minor, in filing the petition for rescission, he may be represented by the
guardian ad litem/duly appointed by the court; or if the minor is one who is declared available
for adoption, he may be represented by DSWD, orphanage or institution accredited by the
DSWD.
Effects of Rescission (Section 20, RA 8552)
a. The parental authority of the adoptee's biological parent(s), if known, or the legal custody
of the Department shall be restored IF the adoptee is still a minor or incapacitated.
Notes:
Upon rescission, who are the parents of the adopted child? The parents of the adoptee
are his biological parent(s), if known.
Can the biological parents refuse to restore their legal tie with the child? NO. The
biological parents have no choice because such is mandated by law. Besides, the child
can be adopted again by any qualified adopter.
Upon rescission, the child can use the surname of his biological father as his surname
and the surname of the mother as his middle name.
b. The reciprocal rights and obligations of the adopter(s) and the adoptee to each other
shall be extinguished.
c. Cancellation of the amended certificate of birth of the adoptee and restore his/her original
birth certificate by the Civil Register as ordered by the court.
d. Succession rights shall revert to its status prior to adoption, but only as of the date of
judgment of judicial rescission. Vested rights acquired prior to judicial rescission shall be
respected.
Note: All the foregoing effects of rescission of adoption shall be without prejudice to the
penalties imposable under the Penal Code if the criminal acts are properly proven.
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X SUPPORT Those provided under Art 195 are the same persons who are entitled to support from each
other.
Concept and Extent
A right to support is not terminated after reaching the age of majority. Support is
SUPPORT – is that which comprises everything indispensable for SUSTENANCE, imprescriptible.
DWELLING, CLOTHING, MEDICAL ATTENDANCE, EDUCATION AND
TRANSPORTATION, in keeping with the financial capacity of the family. When Demandable
The education of the person entitled to be supported referred to in the preceding paragraph The obligation to give support shall be demandable from the time the person who has a right
shall include his schooling or training for some profession, trade or vocation, even beyond the to receive the same NEEDS it for maintenance, but it shall not be paid except from the date
age of majority. Transportation shall include expenses in going to and from school, or to and of judicial or extrajudicial demand.
from place of work. (Art 194, FC)
Support pendente lite may be claimed in accordance with the Rules of Court. (Art. 203 par 2
Kinds of Support and 3, FC)
a. As to amount: Exemption from Levy and Attachment
1. Natural (bare necessities of life) The right to receive support under this Title as well as any money or property obtained as
2. Civil (in accordance with financial standing) such support shall not be levied upon on attachment or execution. (Art. 205, FC)
b. As to source of obligations: Who Must Pay Support (Art 195, FC)
1. Legal (based from law) The following are obliged to support each other:
2. Voluntary / Contractual Support (from agreement or from provision of a will) 1. The spouses;
c. Special kind (alimony pendente lite) During the proceedings for legal separation or for annulment of marriage, and for
declaration of nullity of marriage, the spouses and their children shall be supported from
Actual Need v. Capacity to Pay the properties of the absolute community or the conjugal partnership. (Art. 198, FC)
Art. 201. The amount of support, in the cases referred to in Articles 195 and 196, shall be in After the final judgment granting the petition of annulment or declaration of nullity of
proportion to the resources or means of the giver and to the necessities of the recipient. marriage, the obligation of mutual support between the spouses ceases. (Art. 198, FC)
Art. 202. Support in the cases referred to in the preceding article shall be reduced or However, in case of legal separation, the court may order that the guilty spouse shall give
increased proportionately, according to the reduction or increase of the necessities of the support to the innocent one, specifying the terms of such order. (Art. 198, FC) But the
recipient and the resources or means of the person obliged to furnish the same. innocent spouse is not obliged to give support to the erring spouse.
Thus, in one case, SC held that the provision for a common fund for the benefit of the child If both spouses are living separately, both of them have been unfaithful to each other,
cannot be considered final and res judicata since any judgment for support is always subject and the husband has been giving allowance to the wife, the latter may still file an action
to modification depending upon the needs of the child and capabilities of the parents to give for maintenance because both of them are at fault. The husband cannot use as a
support. defense the adulterous act committed by the wife. Besides, the giving of allowance to the
wife is implied condonation of the adultery.
Who Is Entitled to Support (Art 195, FC)
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In a petition for support filed by the wife, it is insufficient for the husband, as a defense to imputable to the claimant's fault or negligence. (Art. 196, FC) In this case, the one
claim that the wife is guilty of adultery. There must be sufficient and competent evidence. entitled to support, it is not sufficient that the need for support is not due to his fault or
negligence but there must be proof of filiation, that is, he has been recognized as an
The wife may obliged her husband to pay the fee of the lawyer who defended her in case illegitimate child.
of acquittal, BUT NOT in case of conviction.
Sources of Support
2. Legitimate ascendants and descendants; In case of legitimate ascendants; descendants, whether legitimate or illegitimate; and
brothers and sisters, whether legitimately or illegitimately related, only the separate
Illustration: property of the person obliged to give support shall be answerable provided that in case
If the husband abandoned the family to cohabit with his paramour, can the wife file a the obligor has no separate property, the absolute community or the conjugal partnership,
petition for support against the parents of the husband for their children and herself? Yes, if financially capable, shall advance the support, which shall be deducted from the share
but only with respect to support in favor of their children because they are their legitimate of the spouse obliged upon the liquidation of the absolute community or of the conjugal
descendants, provided that inability on the part of the husband to give support be proven. partnership. (Art. 197, FC)
W cannot ask support for herself because her relationship with the parents of her
husband is by affinity and as such the parents-in-law are not obliged to give support to Order of Liability in case 2 or More Persons are Obliged to Give support (Art. 199,
her. The obligation to give support in a relation by affinity is only required between FC)
husband and wife. In the same manner, W is not also obliged to give support to her
parents-in-law. Whenever two or more persons are obliged to give support, the liability shall devolve
upon the following persons in the order herein provided:
If one of the parents died, who is obliged to give support to the children? It is the 1. The spouse;
surviving parent. If he/she remarries, the 2nd spouse is not obliged to give support to the 2. The descendants in the nearest degree;
children of the former in the previous marriage because of absence of relationship. In this 3. The ascendants in the nearest degree; and
case the support will be taken from the separate property of the surviving parent. This is 4. The brothers and sisters.
why properties acquired after termination of the previous marriage shall not form part of
the ACP or CPG of the subsequent marriage to answer for the support of the children Sources of Fund
although the latter may advance the support of the children but such is considered a debt When the obligation to give support falls upon two or more persons, the payment of the
subject to reimbursement. same shall be divided between them in proportion to the resources of each.
Can the illegitimate child of the husband file a petition for support against the wife of the However, in case of urgent need and by special circumstances, the judge may order only
husband? NO, because the child is not related to the wife. What if the petition is directed one of them to furnish the support provisionally, without prejudice to his right to claim
against the parents of the husband or the child’s grandparents, will the petition prosper? from the other obligors the share due from them.
Yes, because the parents are obliged to give support in favor of their legitimate children
and the legitimate and illegitimate children of the latter. When two or more recipients at the same time claim support from one and the same
person legally obliged to give it, should the latter not have sufficient means to satisfy all
3. Parents and their legitimate children and the legitimate and illegitimate children of the claims, the order established in the preceding article shall be followed, UNLESS the
latter; concurrent obligees should be the spouse and a child subject to parental authority, in
4. Parents and their illegitimate children and the legitimate and illegitimate children of the which case the child shall be preferred. (Art. 200, FC)
latter; and
5. Legitimate brothers and sisters, whether of full or half-blood. Thus, in case of separation de facto, the wife filed a petition for support against the erring
husband the amount of 35K monthly. The husband’s net income monthly is 35K. The
Notes: Brothers and sisters not legitimately related, whether of the full or half-blood, are expenses of their children as alleged is 25K monthly and the wife’s expenses is 10K
likewise bound to support each other to the full extent set forth in Article 194, except only monthly. The needs of the children are preferred. The excess shall be divided
when the need for support of the brother or sister, being of age, is due to a cause
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proportionately between the husband and the wife except when the wife is gainfully Procedure (Rule 61, 1997 Rules of Civil Procedure)
employed and able to support herself.
Section 1. Application. At the commencement of the proper action or proceeding, or at any time prior to the judgment
or final order, a verified application for support pendente lite may be filed by any party stating the grounds for the
claim and the financial conditions of both parties, and accompanied by affidavits, depositions or other authentic
How Support is Given documents in support thereof.
Payment shall be made within the first five days of each corresponding month or when the Sec. 2. Comment. A copy of the application and all supporting documents shall be served upon the adverse party,
who shall have five (5) days to comment thereon unless a different period is fixed by the court upon his motion. The
recipient dies, his heirs shall not be obliged to return what he has received in advance. (Art. comment shall be verified and shall be accompanied by affidavits, depositions or other authentic documents in
203 par 3, FC) support thereof.
The person obliged to give support shall have the option to fulfill the obligation either by Sec. 3. Hearing. After the comment is filed, or after the expiration of the period for its filing, the application shall be
set for hearing not more than three (3) days thereafter. The facts in issue shall be proved in the same manner as is
paying the allowance fixed, or by receiving and maintaining in the family dwelling the person provided for evidence on motions.
who has a right to receive support. The latter alternative cannot be availed of in case there is
a moral or legal obstacle thereto. (Art. 204, FC) Sec. 4. Order. The court shall determine provisionally the pertinent facts, and shall render such orders as justice and
equity may require, having due regard to the probable outcome of the case and such other circumstances as may
aid in the proper resolution of the question involved. If the application is granted, the court shall fix the amount of
Right of Third Persons Who Pay
money to be provisionally paid or such other forms of support as should be provided, taking into account the
necessities of the applicant and the resources or means of the adverse party, and the terms of payment or mode for
When, without the knowledge of the person obliged to give support, it is given by a stranger, providing the support. If the application is denied, the principal case shall be tried and decided as early as possible.
the latter shall have a right to claim the same from the former, UNLESS it appears that he
Sec. 5. Enforcement of order. If the adverse party fails to comply with an order granting support pendente lite, the
gave it without intention of being reimbursed. (Art. 206, FC) court shall, motu proprio or upon motion, issue an order of execution against him, without prejudice to his liability for
contempt.
When the person obliged to support another unjustly refuses or fails to give support when
urgently needed by the latter, any third person may furnish support to the needy individual, When the person ordered to give support pendente lite refuses or fails to do so, any third person who furnished that
support to the applicant may, after due notice and hearing in the same case, obtain a writ of execution to enforce his
with right of reimbursement from the person obliged to give support. This Article shall right of reimbursement against the person ordered to provide such support. (n)
particularly apply when the father or mother of a child under the age of majority unjustly
refuses to support or fails to give support to the child when urgently needed. (Art. 207, FC) Sec. 6. Support in criminal cases. In criminal actions where the civil liability includes support for the offspring as a
consequence of the crime and the civil aspect thereof has not been waived, reserved or instituted prior to its filing,
the accused may be ordered to provide support pendente lite to the child born to the offended party allegedly
Contractual Support or Support in a Will
because of the crime. The application therefor may be filed successively by the offended party, her parents,
grandparents or guardian and the State in the corresponding criminal case during its pendency, in accordance with
Contractual support – is an agreement to give support between parties not obliged to give the procedure established under this Rule.
support; what may be given is subject to the agreement of the parties, thus may be partial or
Sec. 7. Restitution. When the judgment or final order of the court finds that the person who has been providing
full; it is subject to levy or attachment. As compared to legal support, the latter is one support pendente lite is not liable therefor, it shall order the recipient thereof to return to the former the amounts
established by law; it comprises everything indispensable for sustenance, dwelling, clothing, already paid with legal interest from the dates of actual payment, without prejudice to the right of the recipient to
medical attendance, education and transportation, in keeping with the financial capacity of obtain reimbursement in a separate action from the person legally obliged to give the support. Should the recipient
the family, thus to the full extent; and not subject to levy, attachment or execution. fail to reimburse said amounts, the person who provided through same may likewise seek reimbursement thereof in
a separate action from the person legally obliged to give such support.
Note: In case of contractual support or that given by will, the excess in amount beyond that
required for legal support shall be subject to levy on attachment or execution.
Furthermore, contractual support shall be subject to adjustment whenever modification is

necessary due to changes of circumstances manifestly beyond the contemplation of the
parties. (Art. 208, FC)
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X. PARENTAL AUTHORITY AND CUSTODY

EXCEPTIONS: GAC
PATRIA POTESTAS, CONCEPT AND EVOLUTION a. guardianship
b. adoption
In the Roman and Germanic law, the patria potestas conferred on the father the power of life c. commitment of the child in entities and institutions engaged in child care or in children’s
or death over the children which will last until the lifetime of the father. This authority is home duly accredited by the proper government agency
established primarily for his benefit. The modern view, manifested in our code, means that
this authority is for the benefit of the children and granted to the parents as a consequence of Who Exercises Parental Authority and Custody
the heavy responsibilities imposed upon them by law, which they have to discharge.
1. Legitimate children - The father and the mother shall jointly exercise parental authority
PARENTAL AUTHORITY (PATRIA POTESTAS) -the sum of rights and obligations which over the persons of their common children. (Art. 211, FC)
parents have in relation to the person and property of their children, until their majority age or
emancipation, and under certain circumstances. In this case there is no need of judicial authority.
It is the natural right and duty of parents over the person and property of their unemancipated 2. Illegitimate children – it is always the mother who exercises parental authority even if the
children which INCLUDES the caring for and rearing of such children for civic consciousness father recognized the child.
and efficiency and the development of their moral, mental and physical character and well-
being. (Art 209, FC) Effect of Disagreement, Absence / Death, Separation or Termination of Marriage of
Parents
Parental authority is not limited to the rights of parents over their children because such is
reciprocal. Children under parental authority are obliged to observed obedience, love, and In case of DISAGREEMENT, the father's decision shall prevail, UNLESS there is a judicial
respect towards their parents. Children shall always observe respect and reverence towards order to the contrary. (Art. 211, FC)
their parents and are obliged to obey them as long as the children are under parental
authority. (Art 211, FC) In case of ABSENCE OR DEATH of either parent, the parent present shall continue
exercising parental authority. The remarriage of the surviving parent shall not affect the
It is for the purpose of strengthening the family as the foundation of the nation and to protect parental authority over the children, unless the court appoints another person to be the
the marriage institution as the foundation of the family. (Art. XV, Sec. 3 (1) and (2), 1987 guardian of the person or property of the children. (Art. 212, FC)
Constitution) Thus, the State shall defend:
a.) Right of spouses: to found a family in accordance with their religious convictions and In case of SEPARATION of the parents, parental authority shall be exercised by the parent
the demands of responsible parenthood. designated by the Court. The Court shall take into account all relevant considerations,
b.) Right of children: to assistance, including proper care and nutrition, and special especially the choice of the child over seven years of age, unless the parent chosen is unfit
protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions (The 2nd spouse has no right of parental authority over the child). No child under 7 years of
prejudicial to their development. age shall be separated from the mother, unless the court finds compelling reasons to order
otherwise. (Art. 213, FC)
CHILD - refers to person below eighteen (18) years of age or those over but are unable to
fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation
or discrimination because of a physical or mental disability or condition. (R.A 7610) It refers to Art. 49. During the pendency of the action and in the absence of adequate provisions in a
a person under 18 years of age. (RA 9344) written agreement between the spouses, the Court shall provide for the support of the
spouses and the custody and support of their common children. The Court shall give
Characteristic of Parental Authority paramount consideration to the moral and material welfare of said children and their choice
of the parent with whom they wish to remain as provided to in Title IX. It shall also provide for
GENERAL RULE: Parental authority and responsibility may not be renounced or transferred appropriate visitation rights of the other parent.
except in the cases authorized by law. (Art 210, FC)
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Art. 50. The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and by 3. When the best interests of the child so requires. (Art. 222, FC)
Article 44 shall also apply in the proper cases to marriages which are declared ab initio or
annulled by final judgment under Articles 40 and 45. Who May Exercise
The final judgment in such cases shall provide for the liquidation, partition and distribution of 1. In case of death, absence or unsuitability of the parents, substitute parental authority
the properties of the spouses, the custody and support of the common children, and the shall be exercised by the surviving grandparent. In case several survive, the one
delivery of third presumptive legitimes, unless such matters had been adjudicated in designated by the court, taking into account the same consideration mentioned in the
previous judicial proceedings. preceding article, shall exercise the authority. (Art. 214, FC)
2. In default of parents or a judicially appointed guardian, the following person shall exercise
Art. 62. During the pendency of the action for legal separation, the provisions of Article 49 substitute parental authority over the child in the order indicated: (Art. 216, FC)
shall likewise apply to the support of the spouses and the custody and support of the
common children. (1) The surviving grandparent, as provided in Art. 214;
Art. 63. One of the effects of legal separation is that the custody of the minor children shall (2) The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified;
be awarded to the innocent spouse, subject to the provisions of Article 213 of FC. and
In case of legal separation, still both exercise parental authority over the child. What may be (3) The child's actual custodian, over twenty-one years of age, unless unfit or disqualified.
awarded in favor of one over the other is parental custody or physical company of the child
and such will not divest of the right to parental authority which is broader in scope. Whenever the appointment or a judicial guardian over the property of the child becomes
necessary, the same order of preference shall be observed.
In case both parents died, grandparents judicially appointed by the court will exercise
parental authority. 3. In case of foundlings, abandoned neglected or abused children and other children
similarly situated, parental authority shall be entrusted in summary judicial proceedings to
Duties of Children heads of children's homes, orphanages and similar institutions duly accredited by the
proper government agency. (Art. 217, FC)
Children shall always observe respect and reverence towards their parents AND are obliged
to obey them as long as the children are under parental authority. (Art 211 par 2, FC) 4. When the best interests of the child so requires, the one appointed by the court as a
guardian of the child's property or a guardian ad litem (following the order established in
Filial Privilege Rule Art 216). (Art. 222, FC)
No descendant shall be compelled, in a criminal case, to testify against his parents and Extent of Authority
grandparents, EXCEPT when such testimony is indispensable in a crime against the
descendant or by one parent against the other. (Art 215, FC) The person exercising substitute parental authority shall have the same authority over the
HOWEVER, under the Rules on Evidence: “No person may be compelled to testify against person of the child as the parents. (Art. 233 par 1, FC)
his parents, other direct ascendants, children or other direct descendants (Rule 130, sec.
25).” Thereupon, should a conflict arise between this provision and civil code provision, the SPECIAL PARENTAL AUTHORITY
latter prevails, since a procedural rule cannot impair substantive law.
When Applicable
SUBSTITUTE PARENTAL AUTHORITY
In case of minor under supervision, instruction or custody. (Art 218, FC)
When Applicable
Who Exercises
1. In case of death, absence or unsuitability of the parents. (Art. 214, FC)
2. In default of parents or a judicially appointed guardian. (Art. 216, FC)
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The school, its administrators and teachers, or the individual, entity or institution engaged in 7. To impose discipline on them as may be required under the circumstances; and
child shall have special parental authority and responsibility over the minor child while under 8. To perform such other duties as are imposed by law upon parents and guardians.
their supervision, instruction or custody. (Art 218, FC)
Note: Parents and other persons exercising parental authority shall be CIVILLY LIABLE for
Those given the authority and responsibility under the preceding Article shall be principally the injuries and damages caused by the acts or omissions of their unemancipated children
and solidarily liable for damages caused by the acts or omissions of the unemancipated living in their company and under their parental authority subject to the appropriate defenses
minor. The parents, judicial guardians or the persons exercising substitute parental authority provided by law. (Art. 221, FC)
over said minor shall be subsidiarily liable. (Art 219 par 1, FC)
Illustrations:
If the child is on vacation with his grandparents and caused injury to another child, his
The respective liabilities of those referred to in the preceding paragraph shall not apply if it is parents may still be impleaded in an action for damages because while the child is not living
proved that they exercised the proper diligence required under the particular circumstances. in their company, the law should be interpreted to mean legal parental authority and custody
(Art 219 par 2, FC) and not necessarily limited to physical custody.
All other cases not covered by this and the preceding articles shall be governed by the At the time of causing injury, the child who committed the act complained is the subject of a
provisions of the Civil Code on quasi-delicts. (Art 219 par 3, FC) pending adoption proceeding. By the time the judgment is to be rendered in the civil case, the
adoption decree was already issued. In this case, the adopters cannot be impleaded because
Extent of Special Parental Authority the biological parents have still parental authority over the child at the time of the commission
of the act complained of.
Authority and responsibility shall apply to all authorized activities whether inside or outside
the premises of the school, entity or institution. (Art 218, FC) The child who caused injury to a classmate is a kindergarten pupil. The incident took place
within the premises of the school. Who shall be impleaded? The school, its administrators
In no case shall the school administrator, teacher of individual engaged in child care and teachers, as well as the parents of the child shall be impleaded.
exercising special parental authority inflict corporal punishment upon the child. (Art 233 par 2,
FC) If the incident took place during an educational trip, the school may still be impleaded
provided the educational trip is an authorized activity of the school. This notwithstanding the
fact that the victim is not a student of the said school. In the event that the teacher who
supervises the child went to bathroom, such teacher is considered negligent. He should have
EFFECTS OF PARENTAL AUTHORITY UPON THE PERSONS OF THE CHILDREN been substituted by another to supervise the children. The said persons may be impleaded
despite the fact that the minor is rich because the consideration is the minority of the one who
The parents and those exercising parental authority shall have with the respect to their caused injury.
unemancipated children or wards the following rights and duties: (Art 220, FC)
1. To keep them in their company, to support, educate and instruct them by right precept The defense of the school and others who are exercising special parental authority is the
and good example, and to provide for their upbringing in keeping with their means; exercise of due diligence as in quasi-delict. For the parents, they can say that they could not
2. To give them love and affection, advice and counsel, companionship and understanding; exercise due diligence in supervising their child.
3. To provide them with moral and spiritual guidance, inculcate in them honesty, integrity,
self-discipline, self-reliance, industry and thrift, stimulate their interest in civic affairs, and If the assailant and victim are no longer minors and the incident took place in the school
inspire in them compliance with the duties of citizenship; where they are studying, the school, its administrators and teachers may be impleaded based
4. To furnish them with good and wholesome educational materials, supervise their on contract because the contract between the school and student provided that the school
activities, recreation and association with others, protect them from bad company, and should provide adequate measures to protect the student. Quasi-delict may also the basis of
prevent them from acquiring habits detrimental to their health, studies and morals; action for damages. Schools of arts and trade included even schools which are purely
5. To represent them in all matters affecting their interests; academic institution (no distinction).
6. To demand from them respect and obedience;
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DISCIPLINARY MEASURES The parents, as administrator of the property of the child can lease the property even without
prior judicial authorization. If the leased is for more than 1 year, there is a need for prior
Art. 223. The parents or, in their absence or incapacity, the individual, entity or institution judicial authorization because such amounts to encumbrance. They cannot lease for 1 year
exercising parental authority, may petition the proper court of the place where the child with option to buy because such amount to an act of disposition UNLESS there is a prior
resides, for an order providing for disciplinary measures over the child. The child shall be judicial authorization.
entitled to the assistance of counsel, either of his choice or appointed by the court, and a
summary hearing shall be conducted wherein the petitioner and the child shall be heard. The parents cannot also sell the property of their minor child UNLESS there is a prior judicial
authorization and provided that the sale is for the benefit of the child.
However, if in the same proceeding the court finds the petitioner at fault, irrespective of the
merits of the petition, or when the circumstances so warrant, the court may also order the
deprivation or suspension of parental authority or adopt such other measures as it may deem
just and proper. Art. 226. The property of the unemancipated child earned or acquired with his work or
industry or by onerous or gratuitous title shall belong to the child in ownership and shall be
Art. 224. The measures referred to in the preceding article may include the commitment of devoted exclusively to the latter’s support and education, unless the title or transfer provides
the child for not more than thirty days in entities or institutions engaged in child care or in otherwise.
children's homes duly accredited by the proper government agency.
The right of the parents over the fruits and income of the child’s property shall be limited
The parent exercising parental authority shall not interfere with the care of the child whenever primarily to the child’s support and secondarily to the collective daily needs of the family.
committed but shall provide for his support. Upon proper petition or at its own instance, the
court may terminate the commitment of the child whenever just and proper. Art. 227. If the parents entrust the management or administration of any of their properties to
an unemancipated child, the net proceeds of such property shall belong to the owner. The
EFFECTS OF PARENTAL AUTHORITY UPON PROPERTY OF CHILDREN child shall be given a reasonably monthly allowance in an amount not less than that which
the owner would have been paid if the administrator were a stranger, unless the owner,
Art. 225. The father and the mother shall jointly exercise legal guardianship over the property grants the entire proceeds to the child. In any case, the proceeds thus given in whole or in
of the unemancipated common child without the necessity of a court appointment. In case of part shall not be charged to the child’s legitime.
disagreement, the father's decision shall prevail, unless there is a judicial order to the
contrary. TERMINATION OF PARENTAL AUTHORITY
Where the market value of the property or the annual income of the child exceeds P50,000, Grounds for Permanent Termination
the parent concerned shall be required to furnish a bond in such amount as the court may
determine, but not less than ten per centum (10%) of the value of the property or annual Art. 228. Parental authority terminates permanently:
income, to guarantee the performance of the obligations prescribed for general guardians.
(1) Upon the death of the parents;
The ordinary rules on guardianship shall be merely suppletory except when the child is under
substitute parental authority, or the guardian is a stranger, or a parent has remarried, in which (2) Upon the death of the child; or
case the ordinary rules on guardianship shall apply.
(3) Upon emancipation of the child.
Notes:
The property of the minor should be registered in the name of the minor because he is the (4) If the person exercising parental authority has subjected the child or allowed him to be
owner thereof. It shall not be registered in the name of his parents. Judicial appointment is subjected to sexual abuse, such person shall be permanently deprived by the court of
not necessary for the administration and management of the property of the child. such authority. (Art. 232, FC)
Grounds for Temporary Termination

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Art. 229. Unless subsequently revived by a final judgment, parental authority also terminates:
(1) Upon adoption of the child;
(2) Upon appointment of a general guardian;
(3) Upon judicial declaration of abandonment of the child in a case filed for the purpose;
(4) Upon final judgment of a competent court divesting the party concerned of parental
authority; or
(5) Upon judicial declaration of absence or incapacity of the person exercising parental
authority.
SUSPENSION OF PARENTAL AUTHORITY
Grounds
1. Upon conviction of the parent or the person exercising the same of a crime which carries
with it the penalty of civil interdiction. (Art. 230, FC)
The authority is automatically reinstated upon service of the penalty or upon pardon or
amnesty of the offender.
2. The court in an action filed for the purpose in a related case may also suspend parental
authority if the parent or the person exercising the same: (Art. 231, FC)
a. Treats the child with excessive harshness or cruelty;
b. Gives the child corrupting orders, counsel or example;
c. Compels the child to beg; or
d. Subjects the child or allows him to be subjected to acts of lasciviousness.
The grounds enumerated above are deemed to include cases which have resulted from
culpable negligence of the parent or the person exercising parental authority.
If the degree of seriousness so warrants, or the welfare of the child so demands, the
court shall deprive the guilty party of parental authority or adopt such other measures as
may be proper under the circumstances.
The suspension or deprivation may be revoked and the parental authority revived in a
case filed for the purpose or in the same proceeding if the court finds that the cause
therefor has ceased and will not be repeated.
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XI. EMANCIPATION AND AGE OF MAJORITY
Concept
EMANCIPATION – is the release of a person from parental authority whereby he becomes

capacitated for civil life.
Effects
Emancipation for any cause shall terminate parental authority over the person and property of
the child who shall then be qualified and responsible for all acts of civil life. (Art. 236, FC)
When Emancipation Take Place
Emancipation takes place by the attainment of majority. Unless otherwise provided, majority
commences at the age of 18 years. (Art 234, FC, as amemded by RA 6809)
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XII. NAMES AND SURNAMES

6. Adopted by a Single Person other than Stephanie Case
NAME OF A PERSON – describes identity of a person to distinguish him from others. a. Given Name
b. Surname – adopter’s surname
Characteristics
1. Absolute (to protect a person from being confused with another) Use of Surname by Women
2. Obligatory (no person can be without a name) A MARRIED woman MAY use
3. Beyond the commerce of man (intransferrable/inalienable inter vivos or even mortis 1. Her maiden first name and surname and add her husband's surname, or
causa but subject to trademarks or service marks) 2. Her maiden first name and her husband's surname or
4. Imprescriptible (same name even after death) 3. Her husband's full name, but prefixing a word indicating that she is his wife, such as
5. Fixed - may only be changed as a result of "Mrs." (Art 370, NCC)
a. legal consequences – marriage, legitimation/change of status; or
b. by judicial decree due to the ff. grounds: In case of ANNULMENT of marriage, and the wife is the guilty party, she shall resume her
i. change of status of person maiden name and surname. If she is the innocent spouse, she may resume her maiden
ii. name is ridiculous, tainted with dishonor, or extremely difficult to pronounce or name and surname. HOWEVER, she may choose to continue employing her former
write husband's surname, UNLESS:
iii. publicly known for a new name for a long period of time. 1. The court decrees otherwise, or
iv. sincere desire to adopt Filipino name to remove all badges of foreign origin 2. She or the former husband is married again to another person. (Art 371, NCC)
Parts of Name When LEGAL SEPARATION has been granted, the wife shall continue using her name and
1. Legitimate Child surname employed before the legal separation. (Art 372, NCC)
a. Given name
b. Middle name – mother’s surname A WIDOW may use the deceased husband's surname as though he were still living, in
c. Surname/family name – father’s surname (Art 364 and 369, NCC) accordance with article 370. (Art 373, NCC)
2. Illegitimate child who is not recognized Similarity and Identity of Names

a. Given name
b. Surname – mother’s surname (Art 368, NCC) In case of identity of names and surnames, the younger person shall be obliged to use such
additional name or surname as will avoid confusion. (Art 374, NCC)
3. Illegitimate child who is recognized
a. Given name In case of identity of names and surnames between ascendants and descendants, the word
b. Middle name – mother’s surname "Junior" can be used only by a son (also to daughter, no prohibition). Grandsons and other
c. Surname/family name – father’s surname (Art 366, NCC) direct male descendants shall either:
1. Add a middle name or the mother's surname, or
4. Adopted child by husband and wife 2. Add the Roman numerals II, III, and so on. (Art 375, NCC)
a. Given name
b. Middle name – wife adopter’s surname Usurpation of Name / Surname in Relation to CA 142
c. Surname – husband adopter’s surname (Arts 365 and 367, NCC)
Usurpation of a name and surname may be the subject of an action for damages and other
5. Adopted by Single Person (putative father) – Stephanie Case relief. (Art 377, NCC) This is known as identity theft. There is no need of actual injury
a. Given name because there is already a potential harm. There can be civil and criminal liability.
b. Middle name – biological mother’s surname
c. Surname – father’s surname
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The unauthorized or unlawful use of another person's surname gives a right of action to the
latter. (Art 378, NCC)
The employment of pen names or stage names is permitted, PROVIDED it is done in good
faith and there is no injury to third persons. Pen names and stage names cannot be usurped.
(Art 379, NCC)
GENERAL RULE: No person shall use different names and surnames (USE ONLY ONE
NAME). (Art 380, NCC)
EXCEPT: One may use pen names or stage names, PROVIDED it is done in good faith and
there is no injury to third persons.
Note: In all legal transactions, use the legal name.
Change of Name
No person can change his name or surname without judicial authority. (Art 376, NCC; See
Discussion in Special Proceedings)
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XIII. ABSENCE
The following may ask for the declaration of absence:
ABSENCE - a legal status of a person who is not in his domicile, his whereabouts being 1. The spouse present;
unknown, and it is uncertain whether he is dead or alive. 2. The heirs instituted in a will, who may present an authentic copy of the same;
3. The relatives who may succeed by the law of intestacy;
Stages of Absence 4. Those who may have over the property of the absentee some right subordinated to
1. Provisional/Temporary - when a person disappears from his domicile, his whereabouts the condition of his death. (Art 385, NCC)
being unknown, and without leaving an agent to administer his property. (Art. 381, NCC)
Effectivity Date
Remedies
The judicial declaration of absence shall not take effect until 6 months after its publication
The judge, at the instance of an interested party, a relative, or a friend, may appoint a in a newspaper of general circulation. (Art. 386, NCC)
person to represent him in all that may be necessary. (Art. 381, NCC)
Appointment and Powers of Administrator
This same rule shall be observed when under similar circumstances the power conferred
by the absentee has expired. (Art. 381, NCC) An administrator of the absentee's property shall be appointed in accordance with article
The appointment referred to having been made, the judge shall take the necessary 383. (Art. 387, NCC)
measures to safeguard the rights and interests of the absentee and shall specify the
powers, obligations and remuneration of his representative, regulating them, according to The wife who is appointed as an administratrix of the husband's property cannot alienate
the circumstances, by the rules concerning guardians. (Art. 382, NCC) or encumber the husband's property, or that of the conjugal partnership, without judicial
authority. (Art. 388, NCC)
Who may be Appointed Provisional Representative
1. Present spouse - shall be preferred when no legal separation. Termination of Administrator
2. Any competent person - if the absentee left no spouse, or if the spouse present is a
minor. (Art. 383, NCC) 1. When the absentee appears personally or by means of an agent;
2. When the death of the absentee is proved and his testate or intestate heirs appear;
Note: No acts of dominion to be exercised but only of general power of administration 3. When a third person appears, showing by a proper document that he has acquired
except when there is court authority. the absentee's property by purchase or other title.
2. Normal/Declared – when a person disappears from his domicile, and 2 years having Note: In these cases the administrator shall cease in the performance of his office, and
elapsed without any news about the absentee or since the receipt of the last news (if no the property shall be at the disposal of those who may have a right thereto. (Art 389,
administrator/manager is appointed), or 5 years in case the absentee has left a person in NCC)
charge of the administration of his property. (Art. 384, NCC)
3. Definite Absence / Presumptive Death – when the absentee is presumed dead.
Period
a. Ordinary Absence (No danger of Death)
After 2 years - in case the absentee left no person in charge of the administration of his
property. After an absence of 7 years - presumed dead for all purposes, EXCEPT for those of
succession.
After 5 years - in case the absentee has left a person in charge of the administration of
his property. After an absence of 10 years - presumed dead for the purpose of opening
succession If he disappeared after the age of 75 years, an absence of 5 years shall
Who May File be sufficient in order that his succession may be opened. (Art 390, NCC)
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Illustrations:
b. Extra-ordinary Absence (there is danger of death) a. A disappeared in 1995 while there is a pending case filed by him against B for
damages, who is a partner is a partnership, and he left a will instituting X and Y as
After an absence of 4 years - presumed dead for ALL purposes, including the division testate heirs.
of the estate among the heirs.
Any interested person may file a petition to represent the absentee in the pending
Instances case. After 2 or 5 years, as the case may be, person allowed by law may file a
(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is petition to be appointed as administrator. After 7 years (ordinary absence) or 4 years
missing, who has not been heard of for four years since the loss of the vessel or (extraordinary absence), the partnership is deemed dissolved. X and Y may file a
aeroplane; petition for probate of the will after 10 years (in case of ordinary absence or 5 years in
(2) A person in the armed forces who has taken part in war, and has been missing case he is 75 at the time he disappeared) or 4 years (extraordinary absence). In the
for four years; latter case, the value of the estate shall be computed on the 1 st day of
(3) A person who has been in danger of death under other circumstances and his disappearance.
existence has not been known for four years. (Art 391, NCC)
b. B left a will in favor of A as devisee. C is the son of A. A disappeared in 1995. B died
ORDINARY ABSENCE EXTRAORDINARY/ 2000. C must prove that A is still alive and present at the time of death of B.
QUALIFIED ABSENCE
a. 7 YEARS, person 4 YEARS, person is c. If the father of A died, C, the grandson, shall inherit by representation. No need to
presumed dead for all presumed dead for all prove that A is alive and present.
purposes except for purposes including those
those of opening of opening succession; 2
succession YEARS for purposes of
Contingent Rights of the Absentee
b. 10 YEARS, person remarriage of the spouse a. Whoever claims a right pertaining to a person whose existence is not recognized must
presumed dead for present, under the prove that he was living at the time his existence was necessary in order to acquire said
purposes of opening following circumstances: right. (Art. 393)
succession except if a. Person on board a
he disappeared after vessel lost during a sea b. Without prejudice to the provision of the preceding article, upon the opening of a
the age of 75, in voyage or an succession to which an absentee is called, his share shall accrue to his coheirs, unless
which case, a period aeroplane which is he has heirs, assigns, or a representative. They shall all, as the case may be, make an
of 5 years is missing; period is inventory of the property. (Art. 394)
sufficient. counted from the loss
c. 4 YEARS, person of the vessel or
presumed dead for aeroplane. c. The provisions of the preceding article are understood to be without prejudice to the action
purposes of b. Person in the armed of petition for inheritance or other rights which are vested in the absentee, his
remarriage of the forces who has taken representatives or successors in interest. These rights shall not be extinguished save by
spouse present. part in war lapse of time fixed for prescription. In the record that is made in the Registry of the real
c. Person in danger of estate which accrues to the coheirs, the circumstance of its being subject to the
death under other provisions of this article shall be stated. (Art. 395)
circumstances and his
existence has not been d. Those who may have entered upon the inheritance shall appropriate the fruits received in
known.
good faith so long as the absentee does not appear, or while his representatives or
successors in interest do not bring the proper actions. (Art. 396)
Note: In presumptive death there is no need of judicial declaration except for purposes of
remarriage.
Effect of Reappearance
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If the absentee appears, or without appearing his existence is proved, he shall recover his
property in the condition in which it may be found, and the price of any property that may
have been alienated or the property acquired therewith; but he cannot claim either fruits or
rents. (Art. 392, NCC)
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XIV. CIVIL REGISTER

Every civil registrar shall be civilly responsible for any unauthorized alteration made in any
CIVIL REGISTER – record of acts, events and judicial decrees concerning the civil status of civil register, to any person suffering damage thereby. However, the civil registrar may
persons. (Art. 407, NCC) exempt himself from such liability if he proves that he has taken every reasonable precaution
to prevent the unlawful alteration. (Art. 411, NCC)
It is pursuant to parens patriae to constantly monitor those what are to be recorded.
Amendments / Correction of Entries
What Must Be Registered (Art. 408, NCC)
a. Births No entry in a civil register shall be changed or corrected, without a judicial order. (Art. 412,
b. Marriages NCC)
c. Deaths
d. legal separations All other matters pertaining to the registration of civil status shall be governed by special
e. annulments of marriage laws. (Art. 413, NCC)
f. judgments declaring marriages void from the beginning
g. legitimations How May be Made
h. adoptions
i. acknowledgments of natural children 1. Judicial Proceedings (in rem – mere publication is sufficient)
j. naturalization
k. loss or recovery of citizenship a. Summary – reception of evidence may be done ex-parte
l. civil interdiction i. correction of clerical/typographical errors (errors which are obvious to common
m. judicial determination of filiation sense)
n. voluntary emancipation of a minor (no longer applicable)
o. changes of name b. Adversarial – there is full blown trial if status of petitioner is directly affected. Also
when there is change of name if ground is publicly known by such name.
Duty of Clerk of Court e.g. change of sex from male to female; petition to delete the date of marriage in birth
certificate of child; petition to insert date of marriage (contracted after recording of
In cases of legal separation, adoption, naturalization and other judicial orders mentioned in birth of child)
the preceding article, the clerk of the court which issued the decree has the duty:
a. to ascertain whether the same has been registered, and, Note: A person of alien parents cannot file a petition for change of his former
b. if this has not been done, to send a copy of said decree to the civil registry of the city or citizenship to Filipino. He must file first for naturalization. If of Filipino mothers and
municipality where the court is functioning. (Art. 409, NCC). In cases of legal separation, born before the 1973 Constitution, the child shall elect Philippine citizenship.
adoption, naturalization and other judicial orders mentioned in the preceding article, it
shall be the duty of the clerk of the court which issued the decree to ascertain whether 2. Administrative Proceedings (RA 9048)
the same has been registered, and if this has not been done, to send a copy of said a. By way of petition to be filed with the Local Civil Registrar. Copy furnished the Local
decree to the civil registry of the city or municipality where the court is functioning. (n) Registrar General (NSO Administrator)
b. Grounds
Probative Value of Civil Register i. Clerical errors
ii. Name or nickname is ridiculous, tainted with dishonor or extremely difficult to write
The books making up the civil register and all documents relating thereto shall be considered or pronounce
public documents and shall be prima facie evidence of the facts therein contained. (Art. 410, iii. New first name or nickname has been habitually and continuously used by the
NCC) petitioner and he has been publicly known by the first name or nickname in the
community
Liability of Civil Registrar iv. Change will avoid confusion.
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Change of Name, Mere Privilege
Change of name can only be made once because it is a mere privilege. Convenience cannot
defeat legal purpose. SC did not allow the dropping of middle name just because in
Singapore do not usually use middle name.
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XV. FUNERALS Chargeable against the property of the deceased. However, such shall be chargeable to the
conjugal partnership property, if the deceased is one of the spouses. (Art. 310, NCC)
Duty and Right to Make Funeral Arrangements
The duty and the right to make arrangements for the funeral of a relative shall be in
accordance with the order established for support, under article 199, FC. (Art. 305, NCC)
Thus, the ff. is the order of preference:
a. Spouses
b. Descendants of the nearest degree
c. Ascendants of the nearest degree
d. Brothers and sisters
Note: In case of descendants of the same degree, or of brothers and sisters, the
oldest shall be preferred. In case of ascendants, the paternal shall have a better
right. (Art. 305, NCC)
Every funeral shall be in keeping with the social position of the deceased. (Art. 306, NCC)
The funeral shall be in accordance with the expressed wishes of the deceased. In the
absence of such expression, his religious beliefs or affiliation shall determine the funeral
rites. In case of doubt, the form of the funeral shall be decided upon by the person obliged to
make arrangements for the same, after consulting the other members of the family. (Art. 307,
NCC)
Any person who shows disrespect to the dead, or wrongfully interferes with a funeral shall be
liable to the family of the deceased for damages, material and moral. (Art. 309, NCC)
Disposal of Body Organs
Authorities sustain the view that mortal remains or organs of a person’s body cannot be
considered property within the meaning of the law, thus they can not be the subject matter of
a contract.
HOWEVER, RA 349 as amended by RA 1056, a person may validly grant to a licensed

physician, surgeon, known scientist, of any medical or scientific institution to detach at any
time after the grantor’s death any organ of his body for medical, surgical or scientific
purposes. The grant must be:
a. In writing
b. Specify the grantee
c. Specify the purpose
d. Signed by the grantor and 2 disinterested witnesses
Expenses of Funeral Where Chargeable
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Saint Louis University - College of Law

Comprehensive Reviewer in Persons and Family Relations

PERSONS AND FAMILY RELATIONS

CLASSIFICATION OF LAW C. According to force and effect:

Classification of Human Positive Law

A. According to whether a right is given or merely the procedure for enforcement is

What Must be Published Exceptions:

EXCEPTIONS: PIERCER Effect of Violation of Mandatory or Prohibitory Laws:

2. If the Law is not so Clear

Requisites: Generally, an unconstitutional law confers no right, creates no office, affords no

Custom Propter Legem v. Custom Contra Legem Supremacy of the Constitution

Custom propter legem – not contrary to law.

Lex Nationalis Lex rae sitae Lex loci

SUPPLETORY APPLICATION OF THE CIVIL CODE OF THE PHILIPPINES

III. HUMAN RELATIONS Some Rules Observe Under Article 19

Principle of Abuse of Right Kinds: (MANTLE)

Exceptions: 2. Malicious Prosecution

1. One party must be enriched;

Requisites of accion in rem verso

Extent of Liability 1. it must involve an injury to a competitor or trade rival; and

Excuses for non-performance Kinds of Acquittal

Petition for Suspension by reason of prejudicial question, Where Filed

Effect: It will suspend the proceeding in the criminal action.

THEORIES OF CAPACITY TO ACT Personality:

c. state of being deaf-mute Legal Conditions (Art 41, NCC):

Elements: Rule on Survivorship under Art. 43, NCC

In case of dissolution, their property and other assets shall be disposed of in

In case of dissolution, see the Corporation Code.

4. The Roman Catholic Church.

5. The estate of a deceased person.

Q: Can a Person be Devoid of Nationality or citizenship?

VI. MARRIAGE 3. Public deportment or representation as husband and wife.

The Family Code of the Philippines Proof to Disprove the Presumption

Formal Requisites (Art 3, FC): Requisites:

3. he/she must be assigned to such unit;

EXCEPT: Purpose and Value of Marriage Certificate

ABSENCE, DEFECT OR IRREGULARITY IN THE REQUISITES

1. Marriage license is a formal requisite of marriage, while marriage certificate is not.

Lack of Marriage Ceremony MARRIAGES CELEBRATED OUTSIDE THE PHILIPPINES

BUT UNDER RECENT JURIPRUDENCE, a divorce obtained by a former Filipino who

Requisites of ratification of marital cohabitation:

Distinguished From Criminal Bigamy

3. Sufficiently proven by experts

In the case of Marcos vs Marcos, October 19, 2000, it is not indispensable to

b. If there is an answer but no further appearance.

Insanity is a restriction of the capacity to act, while psychological incapacity is the

d. Concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism, Test of Impotency

When Actions for Annulment will not Prosper

A Vinculo Matrimonii or Absolute divorce is a separation of the spouses for a cause

Consent must be distinguished from entrapment. Therefore, if the purpose is to merely

5. Collusion Motion to Dismiss

1. Before Marriage Donations By Reason Of Marriage

EXCEPTION: If they are governed by ACP.

donations contained in not solemnized on the concubinage because in

1. Before the Marriage – Waiver is valid.

Liquidation of ACP in case Termination of Marriage is by Death

between the of marriage; judicial others listed in Arts

b. Bigamous, Adulterous relationships – the property regime is governed limited co-

VII. THE FAMILY

Family Relations, Coverage Definition

A: No because H and brothers of W are not relatives under Art.150.

b. Apply for the payment of the debt

VIII. PATERNITY AND FILIATION