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Persons and Family Relations

Persons and Family Relations BarOps Head Acads Head Subject Head Faculty Adviser I I I I

BarOps Head

Acads Head

Subject Head

Faculty Adviser

I

I

I

I

PY Caunan

Beth Liceralde

Jas Gapatan

TABLE OF CONTENTS

I.

PERSONS

1

 

PERSON

1

KINDS OF CAPACITY

1

LIMITS ON CAPACITY TO ACT

1

KINDS OF PERSONS

1

II.

CITIZENSHIP AND DOMICILE

2

WHO ARE FILIPINO CITIZENS? DOMICILE

2

2

III.

MARRIAGE

2

MARRIAGE BREACH OF PROMISE TO MARRY ESSENTIAL REQUISITES OF MARRIAGE FORMAL REQUISITES OF MARRIAGE MARRIAGES CELEBRATED ABROAD (ART. 26) VOID MARRIAGES VOIDABLE MARRIAGES LEGAL SEPARATION

2

2

2

2

3

4

5

6

IV.

RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE

8

OBLIGATIONS OF SPOUSES RIGHTS OF SPOUSES USE OF SURNAME

8

8

8

V.

PROPERTY RELATIONS BETWEEN SPOUSES

9

A. DONATIONS BY REASON OF MARRIAGE

9

B. ABSOLUTE COMMUNITY OF PROPERTY

10

C. CONJUGAL PARTNERSHIP OF GAINS

12

D. SEPARATION OF PROPERTIES DURING MARRIAGE

17

E. REGIME OF SEPARATION OF PROPERTY

18

F. UNIONS WITHOUT MARRIAGE

18

VI. THE FAMILY

20

THE FAMILY HOME

20

VII. PATERNITY AND FILIATION

21

A. DEFINITION

21

B. LEGITIMATE CHILDREN

21

C. IMPUGNING LEGITIMACY

22

D. ILLEGITIMATE CHILDREN

23

E. LEGITIMATED CHILDREN

24

VIII. ADOPTION

25

A. DEFINITION

25

B. WHO MAY ADOPT

25

C. WHO MAY BE ADOPTED

27

D. PRE-ADOPTION

28

E. ADOPTION PROCEDURE

29

IX.

SUPPORT

31

KINDS OF SUPPORT CHARACTERISTICS OF SUPPORT WHO ARE OBLIGED TO SUPPORT EACH OTHER (ART. 195) ORDER OF SUPPORT (ART. 199)

31

31

31

31

X. PARENTAL AUTHORITY

32

DEFINITION SUBSTITUTE PARENTAL AUTHORITY EXERCISED BY (IN ORDER) SPECIAL PARENTAL AUTHORITY EXERCISED BY (ART. 218) RIGHTS AND DUTIES OF PARENTS RIGHTS AND DUTIES OF CHILDREN EFFECT OF PARENTAL AUTHORITY UPON THE PROPERTY OF THE CHILD (ART. 225) GROUNDS FOR SUSPENSION OF PARENTAL AUTHORITY (ART. 231)

32

33

33

33

33

34

34

TERMINATION OF PARENTAL AUTHORITY (ART. 228)

34

I. Persons

Persons and Family Relations

I. PERSONS

Person

Any being, natural (CC Art. 40) or juridical (CC Art. 42), susceptible to legal rights and obligations, and can be a subject of legal relations.

Kinds of Capacity

1. JURIDICAL CAPACITY

Fitness to be subject of legal relations (CC Art.

37)

RULE

Inherent to all natural persons, and can only be extinguished by death. On juridical persons, they gain juridical capacity from the moment they are created.

Juridical capacity is just one, indivisible, irreducible, and essentially the same for all men; it is an inherent and ineffaceable attribute of man, and attaches to him by the mere fact of his being a man.

2. CAPACITY TO ACT

Power to do acts with legal effect (CC Art. 37)

RULE

They are acquired, and may be lost. They are also subjects to certain restrictions. Mere existence of a human being does not confer upon him/her a capacity to act.

No one has 100% capacity to act, nor does anyone have absolutely no capacity to act. Even though one may have “full capacity to act,” one still does not reach 100% capacity to act but only close to it. As to infants, though they still have not acquired a capacity to act, this does not mean that they have 0% capacity to act.

Limits on Capacity to Act

Insanity, Imbecility, State of being deaf-mute, Penalty, Prodigality, Family Relations, Alienage, Absence, Insolvency, Trusteeship, (CC Arts. 38, 39CC) and other limits spread throughout the Code.

Art. 39(2), or rule on married women 21 years and over, has been amended by RA 6809, which lowers the age of majority to 18 year old.

Kinds of Persons

1. NATURAL PERSONS

Human beings

GENERAL RULE

Birth

determines

personality

(CC

Art

40).

Death extinguishes civil personality (CC Art 42).

EXCEPTION

A “conceived child shall be considered born for

all purposes that are FAVORABLE to it, provided it

be born later” (Art 40, 2nd clause) with the following circumstances:

1. From the time it is completely delivered from the mother's womb.

2. But if the fetus had an intra-uterine life of less than seven months, it should survive for at least 24 hours after its complete delivery. (Art. 41, CC) [Test of life: complete respiration]

TOLENTINO: Birth means complete removal of the fetus from the mother’s womb.

PROF. BALANE: Modern medicine cannot as of yet determine if the intra-uterine life is 7 months or less in terms of number of days. Modern medicine cannot determine the exact time when fertilization took place. Modern medicine estimates the fetus age in weeks.

In Geluz v CA, The Supreme Court held that the father cannot file charges on behalf of the aborted fetus because it never acquired a civil personality, because it was not alive when it was delivered from the mother’s womb. The baby thus did not acquire any legal rights. The father could have filed for moral damages on his own capacity, had he suffered anguish from the loss of the baby, but it appears from the facts that he did not suffer from any pain or anguish. Thus, he cannot claim any damages.

EFFECT OF DEATH

The effect of death upon the rights and obligations of the deceased is determined by law, by contract and by will (Art 42, par. 2). However, the Civil Code does not define death, nor can doctors precisely pinpoint the exact moment when death occurs.

DOUBT ON THE ORDER OF DEATH

If

they are

called to

succeed each

other,

whoever alleges the death of one prior to the other, shall prove the same. In the absence of proof, it is presumed that they died at the same time, and there will be no transmission of rights from one to the other. (Art. 43, CC)

In Joaquin v Navarro, the rule on Art. 43 was

not applied in determining whether the mother or the son died first. There were eyewitnesses who can give evidence as to who died first, so there is no reason for applying the presumption. It is only when it is impossible to determine who died first that the presumption applies.

2. JURIDICAL PERSONS

a. The State and its Political subdivisions;

b. Other Corporations, Institutions and Entities

and its Political subdivisions; b. Other Corporations, Institutions and Entities UP LAW BAROPS 2007 ONE UP

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I. Persons

Persons and Family Relations

for public interest or purpose, created by law; c. Corporations, Partnerships, and Associations for private interest or purpose to which the law grants a juridical personality. (CC Art 44)

GOVERNING LAWS:

Juridical

Governed by

 

Person

State

Constitution

(Defines

its

organization and limits its rights vis- à-vis citizens)

Political

Charter

subdivision

Public

Charter

corporation

Private

Corporation Code, Articles of Incorporation and By-Laws

corporation

Partnerships

Stipulations of the parties and suppletorily by the general provisions on partnership

RULES

Juridical persons may acquire and possess property of all kinds, incur obligations, and bring civil or criminal actions (CC Art. 46) Upon dissolution of corporations or institutions and other entities for public interest, their property and assets shall be disposed of in pursuance of the law or charter creating them. (CC Art. 47)

II. CITIZENSHIP AND DOMICILE

Who Are Filipino Citizens?

1. Those who are citizens of the Philippines at the time of the adoption of the 1987 Constitution;

2. Those whose fathers or mothers are citizens of the Philippines;

3. Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and

4. Those who are naturalized in accordance with law. (Art IV, §1, 1987 Philippine Constitution)

These have superseded the rules on citizenship enumerated in the Civil Code.

Domicile

For Natural Persons: the place of their habitual residence (CC Art. 50). For Juridical Persons: the place where their legal representation is established, or where they exercise their primary functions, unless there is a law or other provision that fixes the domicile (CC Art. 51).

DOMICILE VS. RESIDENCE

While domicile is permanent (there is intent to remain), residence is temporary and may be changed anytime (there is no necessary intent to remain).

REQUISITES

OF

DOMICILE

(CALLEGO

VS.

VERA)

1. Physical Presence

2. Intent to remain permanently

KINDS OF DOMICILE

1. Domicile of Origin

Domicile of parents of a person at the time he was born.

2. Domicile of Choice

Domicile chosen by a person, changing his domicile of origin.

A 3rd requisite is necessary – intention not to return to one’s domicile as his permanent place.

3. Domicile by Operation of Law (i.e., Article 69, domicile of minor)

place. 3. Domicile by Operation of Law ( i.e., Article 69, domicile of minor) UP LAW

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III. Marriage

Persons and Family Relations

III. MARRIAGE

Marriage

Is:

1.

a Special Contract

2.

of Permanent Union

3.

Between a Man and a Woman

4.

entered into in Accordance with law

5.

for the Establishment of Conjugal and Family life.

6.

It is the Foundation of the Family

7.

and an Inviolable Social Institution

8.

whose Nature, Consequences, ,and Incidents are governed by Law and not subject to Stipulation,

9.

except that Marriage settlements may Fix property relations during the marriage within the Limits provided by this Code. (Art 1, Family Code)

Breach of Promise to Marry

and their personal declaration that they take each other as husband and wife). (Art 3, FC)

ABSENCE, DEFECT, OR IRREGULARITY IN THE REQUISITES

ABSENCE of any of the essential or formal requisites shall render the marriage VOID AB INITIO, (FC Art 4, par. 1) except when it is solemnized by an unauthorized person with either or both contracting parties having good faith that he had authority to do so (FC Art 35, par. 2)

A DEFECT in any of the ESSENTIAL REQUISITES shall render the marriage VOIDABLE (FC Art 4, par. 2).

An IRREGULARITY in the FORMAL REQUISITES shall NOT AFFECT the validity of the marriage, but the party or parties responsible for the irregularity shall be civilly, criminally, and administratively liable (FC Art 4, par. 3).

A. MARRIAGE CEREMONY

In Tanjanco v CA, the Supreme Court held that “breach of promise to marry is not an actionable wrong.” The fact that the Santos, the woman, agreed to have sexual intercourse with Tanjanco for a year does not constitute seduction but mutual passion.

However, in Wassmer v Velez, Velez was held liable for the cost of the wedding preparations spent by Wassmer, because he disappeared two days before the marriage. The Supreme Court said that while mere breach is not an actionable wrong, Velez is still liable under Art. 21 of the Civil Code because he abused his right, thereby causing moral and material damages, which should be compensated.

Essential Requisites of Marriage

1. Legal Capacity of contracting parties who must be Male and Female; and

2. Consent freely given in the presence of the solemnizing officer. (Art. 2, FC)

In People v Santiago (51 Phil 68), the marriage between Santiago and his niece was declared void for lack of consent on the part of Santiago. He only got married to her to avoid prosecution because he raped her the same morning that the marriage was solemnized by a Protestant minister. The Supreme Court held that it was a mere ruse for him to escape criminal liability.

Formal Requisites Of Marriage

1. Authority of the solemnizing officer;

2. A valid Marriage License except in cases under Chapter 2 of this Title;

3. Marriage Ceremony (i.e. appearance of contracting parties before solemnizing officer

There is no particular form or religious rite required by law.

MINIMUM REQUIREMENTS BY LAW

1. The contracting parties appear personally before the solemnizing officer

2. They declare in the presence of at least two witnesses of legal age,

3. That they take each other as husband and wife;

4. The declaration shall be contained in the marriage certificate,

5. Which shall be signed by the contracting parties and their witnesses and attested by the solemnizing officer. (Art. 6, FC)

In a marriage in articulo mortis, when one or both parties are unable to sign the marriage certificate, it shall be sufficient for one of the witnesses to write the name of said party, which shall be attested by the solemnizing officer. (Art 6, par. 2)

PLACES WHERE MARRIAGE MAY BE CELEBRATED

1. Chambers of the judge or in open court;

2. Church, chapel, or temple

3. Office of the Consul-general, consul, or vice- consul, as the case may be. (Art. 8, FC)

Exceptions Marriage in articulo mortis, in a remote place (the barrio or barangay should be so located that there is no means of transportation to enable such party to appear personally before the local civil registrar – Art. 29), or where both of the parties request the solemnizing officer in writing, in which case the marriage may be solemnized at a house or place designated by then in a sworn statement.

may be solemnized at a house or place designated by then in a sworn statement. UP

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III. Marriage

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B. AUTHORITY OF SOLEMNIZING OFFICERS

MARRIAGE MAY BE SOLEMNIZED BY:

MARRIAGES

EXEMPT

FROM

MARRIAGE

LICENSE REQUIREMENT:

1.

Any incumbent member of the judiciary within the court’s jurisdiction (Art. 7, par. 1);

1. In case one or both contacting parties are at the point of death (in articulo mortis). (Art. 27)

2.

Any priest, rabbi, imam, or minister of any church or religious sect duly authorized by his church or religious sect;

2. If the residence of either party is so located that there is no means of transportation to enable them to personally appear before the local civil registrar. (Art. 28)

3. Marriage in articulo mortis between passengers or crew members. [May be solemnized by the ship captain or airplane pilot.] (Art. 31)

 

He/she must be registered with the civil registrar general (CRG).

He/she must be acting within the limits of the written authority granted by the church

At least one of the parties must be a member of the church or religious sect to which the solemnizing officer belongs (FC Art. 7, par. 2).

4. Marriage in articulo mortis between persons within the zone of military operation. [May be solemnized by the military commander of the unit] (Art. 32)

3.

Ship captain or airplane chief (FC Art 7, par.

3);

5. Marriages among Muslims or among members of cultural communities, provided they are solemnized in accordance with their customs, rites, or practices. (Art. 33)

6. Marriage between a man and a woman who have lived together as husband and wife for at least five years, without legal impediment to marry each other.

 

Can only solemnize marriages in articulo mortis (when there one or both parties are at the point of death), while the ship is at sea or the plane is in flight, or at stopovers or ports of call (FC Art 31).

4.

Any military commander of a unit to which a chaplain is assigned, in the absence of the latter (FC Art 7, par. 4);

 

Can only solemnize marriages in articulo mortis between persons within the zone of military operation, whether members of the armed forces or civilians (Art 32, FC).

In Ninal v Badayog, the Supreme Court held that there must be no legal impediment during the entire five or more years that the parties are living as husband and wife. Since there is only a difference of one year and eight months since the death of the first wife and the execution of their affidavit, the five-year requirement is not met, even if they have cohabited during the subsistence of the previous marriage.

5.

Consul-general, consul, or vice consul (Art. 7, par. 5)

 

Can solemnize marriages between Filipino citizens abroad. The issuance of the marriage license and the duties of the local civil registrar shall also be performed by said consular official. (Art. 10, FC)

6.

Mayors (under the Local Government Code, not found in the Family Code)

In Madridejo v De Leon, where the parties were married in articulo mortis, the Supreme Court held that the marriage is still valid even if the priest who solemnized the marriage failed to send

C.

MARRIAGE LICENSE

 

a copy of the marriage certificate to the municipal secretary. The marriage certificate is not a requisite of marriage but a mere proof that the marriage really existed. And since the marriage was solemnized under exceptional circumstances, there is no need for a marriage license.

REQUIREMENTS

FOR

MARRIAGE

LICENSE

APPLICATION

 

1. Full name of the contracting party;

 

2. Place of birth;

 

3. Age and date of birth;

4. Civil status;

5. If previously married, how, when and where the previous marriage was dissolved or annulled;

6. Present residence and citizenship;

7. Degree of relationship of the contracting parties;

8. Full name, residence and citizenship of the father;

9. Full name, residence and citizenship of the mother; and

10. Full name, residence and citizenship of the guardian or person having charge, in case the contracting party has neither father nor mother and is under the age of twenty-one years (Art. 11, FC)

Marriages Celebrated Abroad (Art. 26)

GENERAL RULE:

Marriages solemnized outside the RP in accordance with the law of the foreign country shall be valid in the Philippines (lex loci celebrationis)

EXCEPTIONS:

1. Marriage between persons below 18 years old – Art. 35(1)

2. Bigamous or polygamous marriage – Art. 35(4)

3. Mistake in identity – Art. 35 (5)

4. Marriages void under Article 53 – Art. 35 (6)

5. Psychological incapacity – Art. 36

6. Incestuous marriages – Art. 37

7. Marriage void for reasons of public policy – Art.

38

marriages – Art. 37 7. Marriage void for reasons of public policy – Art. 38 UP

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III. Marriage

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If a Filipino married to a foreigner and the latter subsequently obtains a valid divorce abroad capacitating him./her to remarry, the Filipino spouse shall likewise have the capacity to remarry under the Philippine law (Art 26(2)).

Void Marriages

MARRIAGE IS VOID AB INITIO WHEN:

18.Between parties where one, with the intention to marry the other, killed that other person's spouse, or his or her own spouse. An action for declaration of nullity of marriage is imprescriptible. (Art. 39) *For purposes of remarriage, the nullity of a previous marriage may be invoked solely on the basis of a final judicial declaration of nullity (JDN) of the previous marriage. (Art. 40)

I. UNDER FC ART. 35

1. Contracted by anyone below 18 years old, even with consent of parents

2. Solemnized by anyone not authorized to do so, except when one or both parties believe that the solemnizing officer had authority to do so.

3. There is no marriage license, except in marriage under exceptional circumstances

4. It is bigamous or polygamous, except when first spouse has been absent for four years, or two years under extraordinary circumstances, and the remaining spouse has a well-founded belief that the absent spouse is dead, and is judicially declared presumptively dead. (Art. 41)

5. There is a mistake in identity of the other contracting party

6. The subsequent marriage is void under Art. 53:

Marriage is void when Art. 52 is not complied with: There must be a partition and distribution of property after the judgment of annulment of declaration of nullity. The presumptive legitimes of the children must also be delivered and recorded in the appropriate civil registry.

II. UNDER FC ART. 36

7. Any contracting party is, at the time of the celebration of the marriage,

psychologically incapacitated to comply with the essential marital obligations.

III.

UNDER

FC

ART.

RELATIONSHIPS)

37

(INCESTUOUS

8. Between ascendants and descendants of any degree, legitimate or illegitimate.

9. Between brothers and sisters, whether full or half-blood, legitimate or illegitimate.

IV. UNDER FC ART. 38 (FOR REASONS OF PUBLIC POLICY):

10.Between collateral blood relatives, legitimate or illegitimate, up to the fourth civil degree. 11.Between step-parents and step-children. 12.Between parents-in-law and children-in-law. 13.Between adopting parent and adopted child. 14.Between the surviving spouse of the adopting parent and the adopted child. 15.Between the surviving spouse of the adopted child and the adopter. 16.Between an adopted child and a legitimate child of the adopter. 17.Between adopted children of the same adopter.

In Domingo v CA, the husband opposed the filing of judicial declaration of nullity (JDN) filed by the wife Domingo because the marriage is already void ab initio because of the husband’s previous marriage. The Supreme Court held that the JDN can be invoked for other purposes than remarriage. The wording of Art. 40 about JDN being the sole basis for remarriage does not mean that JDN can only be invoked for purposes of remarriage. Separation of Property, the reason cited in this case, is also a valid reason for filing for JDN.

In Republic v Molina, 1997 (268 SCRA 198), the Supreme Court held that the actions of the wife, described by the wife as “highly immature and habitually quarrelsome who thought himself as a king to be served,” does not amount to psychological incapacity. It held that what existed are mere irreconcilable differences. It also laid down in this case the guidelines to be followed by the courts in interpreting Art. 36.

GUIDELINES

FOR

INTERPRETATION

OF

ARTICLE 36 (REPUBLIC V MOLINA):

1. The burden of proof to show the nullity of the marriage belongs to the plaintiff.

2. The root cause of the psychological incapacity must be: (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by the experts, (d) clearly explained in the decision.

3. The incapacity must be proven to be existing at “the time of the celebration” of the marriage.

4. Such incapacity must also be shown to be medically or clinically permanent of incurable.

5. Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage.

6. The essential marital obligations mist be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221, and 225 of the same Code in regard to parents and their children.

7. Interpretations given by the national Appellate Matrimonial tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts.

8. The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification.

decision shall be handed down unless the Solicitor General issues a certification. UP LAW BAROPS 2007

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III. Marriage

Persons and Family Relations

RULE ON BIGAMOUS MARRIAGE (ART. 41):

GENERAL RULE

Marriage contracted by any person during the subsistence of a previous marriage is VOID

EXCEPTION

If the first spouse has been absent for four consecutive years, or two years under extraordinary circumstances, and the surviving spouse has a well-founded belief that the spouse is dead, and there is a judicial declaration of presumptive death, without prejudice to the effect of the reappearance of the absent spouse.

a. Through non-disclosure of a previous conviction of a crime involving moral turpitude;

b. Through concealment of the wife of the fact that she was pregnant by another man;

c. Through concealment of a sexually- transmitted disease, even if not serious or incurable;

d. Through concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism. (Art.46)

4. The consent of either party was obtained through force, intimidation, or undue influence.

 

5. Either

party

is

physically unable to

Exception to the exception

44).

consummate

the

marriage (impotence)

When both parties in the subsequent marriage

(different from sterility).

acted in bad faith, the marriage is still void (Art.

6. Either party has a serious and incurable sexually-transmissible disease, even if not

In People v Mendoza, Mendoza contracted three marriages. He contracted the second marriage during the subsistence of the first marriage. He contracted the third marriage after the death of his first wife. He was prosecuted for bigamy on his third marriage. The Supreme Court held that he is not guilty for bigamy for his third marriage, since his prior subsisting marriage has already been extinguished by the death of his first wife. It is the second marriage that is bigamous.

EFFECTS

OF

TERMINATION

OF

BIGAMOUS

MARRIAGE (FC ART 43):

1. Children – considered legitimate

2. Property Regime – dissolved and liquidated (party in bad faith shall forfeit his/her share in favor of the common children or children by a previous marriage, and in case there are none, to the innocent spouse)

3. Donation propter nuptias – remains valid, (but if the donee contracted marriage in bad faith, donations will be revoked)

4. Insurance benefits – innocent spouse may revoke designation of guilty party as beneficiary, even if such designation is irrevocable

5. Succession Rights – Party in bad faith disqualified to inherit from innocent spouse, whether testate or intestate

6. Donations - If both parties of subsequent marriage acted in bad faith, any donations and testamentary dispositions made by one party to the other by reason of marriage will be revoked (Art. 44)

Voidable Marriages

MARRIAGE MAY BE ANNULLED, WHEN (FC ART 45):

concealed.

In Buccat v Buccat, the Supreme Court refused to grant annulment filed by the husband because his wife gave birth to a baby a mere 89 days after their marriage. It held that it is unbelievable that the wife could have concealed the fact that she was 6 months pregnant at the time of the marriage.

However, in Aquino v Delizo, the Supreme Court granted annulment because the wife concealed the fact that she was 4 months pregnant during the time of the marriage. It argued that since Delizo was “naturally plump,” Aquino could hardly be expected to know, by mere looking, whether or not she was pregnant at the time of the marriage.

Ground For

Who Can

 

Prescription

How To

Annulment

 

File

(Art. 47)

Ratify (Art.

(Art. 45)

(Art. 47)

 

45)

Lack

of

1.

Underage

1.

5 years after

 

parental

party

 

attaining 21.

Free

consent

 

cohabitation

after

   

2.

Parent or

2.

Before child

attaining age

guardian

 

reaches 21.

 

of 21

Insanity

1.

Sane

1.

Any

time

 

spouse

with

before

the

no

death of insane party

knowledge of

the

other’s

 

Free

insanity

 

cohabitation

2.

Legal

of

insane

guardian

of

party

after

insane party

coming

to

3.

Insane

2.

During lucid

reason

party

 

interval or after regaining

 

sanity,

and

before death

1. One of the parties is 18 or above but below 21, and there is no parental consent.

2. Either party was of unsound mind (insanity).

3. The consent of either party was obtained through fraud (different from mistake in identity):

of either party was obtained through fraud (different from mistake in identity): UP LAW BAROPS 2007

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III. Marriage

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Fraud

Injured party

Five years after discovery of fraud

Free

(defrauded

cohabitation

party)

after

having

 

full

knowledge of

fraud

Force,

Injured party

Five years after disappearance

Free

intimidation,

cohabitation

undue

of force

or

after

the

influence

intimidation

force

has

ceased

or

disappeared

Impotence

Healthy

Five years after marriage

Deemed

party

ratified when

 

action

prescribes

STD

Healthy

Five years after marriage

Deemed

party

ratified when

 

action

prescribes

DURING PENDENCY OF ACTION:

1. The court shall provide for the support of the spouses,

2. The custody of the common children, giving paramount consideration to their moral and material welfare, their choice of parent with whom they wish to remain.

3. The court shall also provide for visitation rights of other parent. (Art. 49)

To prevent collusion between the parties, fabrication or suppression of evidence, the prosecuting attorney or fiscal shall appear on behalf of the State. (Art. 48)

EFFECTS OF DECLARATION OF NULLITY OR ANNULMENT:

The

same

as

effects

of

termination

of

bigamous marriage (Arts. 43, 44), except in the status of children.

 

previous marriage

 

(Art. 53), children

are

considered

LEGITIMATE.

 

5.

How

to

May

be

attacked

Can

only

be

impugn

DIRECTLY

or

attacked DIRECTLY

 

COLLATERALLY, except

(there

must

be

for

purpose

of

annulment decree)

remarriage must be JDN)

(there

6. Effect

of

May still be impugned after death of parties

Can no longer be impugned after death of parties

death of parties

Legal Separation

BED

AND

BOARD

SEPARATION

MAY

BE

DECREED WHEN THERE IS (ART. 55):

1. Repeated violence or grossly abusive conduct directed against petitioner, a common child, or a child of the petitioner.

2. Physical violence or moral pressure to compel petitioner to change religious or political affiliation.

3. Attempt of respondent to corrupt or induce petitioner, a common child, or child of petitioner, to engage in prostitution or connivance in such corruption or inducement.

4. Final judgment sentencing respondent to imprisonment of more than 6 years, even if pardoned (executive pardon, not pardon from offended party).

5. Drug addiction or habitual alcoholism of respondent.

» When it existed from the time of celebration, and concealed from petitioner, can be a ground for annulment of marriage. When it occurred only after the marriage, it is only a ground for legal separation, whether concealed or not.

6. Lesbianism or homosexuality of respondent.

» Ditto on rules on drug addiction.

VOID MARRIAGES VS. VOIDABLE MARRIAGES (SEMPIO-DIY):

 

Void Marriage

 

Voidable

Marriage

1. Nature

INEXISTENT from the beginning

VALID

until

annulled by court

2. Co-validation

CANNOT

be

CAN be covalidated by prescription or free cohabitation

covalidated

3. Effect

on

No

Community

ACP

exists

unless

property

Property,

only

Co-

another system is instituted through marriage settlement

ownership

4.

Legitimacy

General rule: Children are ILLEGITIMATE (Art. 165) Exception: In void marriages by

Children

are

of children

LEGITIMATE

if

conceived

before

decree

of

annulment

reason

of

 

psychological incapacity (Art. 36) or non-partition of properties in a

7. Contracting by respondent of a subsequent bigamous marriage, whether in the Philippines of abroad.

8. Sexual infidelity or perversion.

9. Attempt on the life of petitioner by respondent.

» There is no need for criminal conviction.

10.Abandonment of petitioner by respondent without justifiable cause for more than one year.

In Gandioco v Peñaranda, the Supreme Court held that in sexual infidelity as a ground for legal separation, there is no need for prior conviction for concubinage, because legal separation only requires a preponderance of evidence, as opposed to proof beyond reasonable doubt required in concubinage. In fact, a civil action for legal separation based on infidelity may proceed ahead or simultaneously with the criminal action for concubinage,

GROUNDS FOR DENYING LEGAL SEPARATION (ART. 56):

the criminal action for concubinage, GROUNDS FOR DENYING LEGAL SEPARATION (ART. 56): UP LAW BAROPS 2007

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III. Marriage

Persons and Family Relations

1. Condonation by aggrieved party

2. Consent by aggrieved party to the commission of the offense

3. Connivance between parties in the commission of the offense

4. Mutual guilt in ground for legal separation

5. Collusion between parties to obtain decree of legal separation

6. Prescription of action for legal separation

OTHER GROUNDS FOR DENYING LEGAL SEPARATION

7. Death of either party during pendency of action (Lapuz-Sy v Eufemio)

8. Reconciliation of parties during pendency of action (Art. 66 par.1)

RULES

ON

LEGAL

SEPARATION

PROCEEDINGS:

1. Prescription – Action prescribes in five years from occurrence of cause (Art. 57)

2. Reconciliation period – Action cannot be tried before six months have elapsed since the filing of the petition (Art. 58)

3. Attempts on reconciliation – Action cannot be tried unless the court has attempted to reconcile the spouses, and determined that despite such efforts, reconciliation is highly improbable (Art. 59)

4. Confession – No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment (Art. 60, par. 1)

5. Collusion – The court shall assign the prosecuting attorney or fiscal to make sure that there is no collusion between the parties, and that evidence is not fabricated or suppressed (Art. 60, par. 2)

6. After filing the petition for legal separation, the spouses are entitled to live separately (Art. 61, par. 1).

7. Administration of Community or Conjugal Property – If there is no written agreement between the parties, the court shall designate one of them or a third person to administer the ACP or CPG. (Art. 61, par. 2)

8. Custody of children – The court shall give custody of children to one of them, if there is no written agreement between the spouses. It shall also provide for visitation rights of the other spouse. (Art. 62, cf. Art. 49)

EFFECTS OF DECREE FOR LEGAL SEPARATION (ART. 63):

party in the will of the innocent spouse shall also be revoked by operation of law.

OTHER EFFECTS OF LEGAL SEPARATION

5. Donation propter nuptias in favor of the guilty spouse may be revoked (Art. 64)

6. Innocent spouse may also revoke designation of guilty spouse as beneficiary in an insurance policy, even if such stipulations are irrevocable (Art. 64).

7. Obligation for mutual support ceases, but the court may order the guilty spouse to support the innocent spouse. (Art. 198)

8. The wife shall continue to use the surname of the husband even after the decree for legal separation.

AGUILING-PANGALANGAN: The option to revoke of the designation of guilty spouse as beneficiary in an insurance policy should prevail, notwithstanding contrary provisions in the Insurance Code.

RULE ON RECONCILIATION:

Should the spouses reconcile, they should file a corresponding joint manifestation under oath of such reconciliation (Art. 65).

PROF. BALANE: It is not the reconciliation per se but the filing of the required manifestation that produces the effects enumerated in Art. 66.

EFFECTS OF RECONCILIATION (ART. 66):

1. Proceedings for legal separation shall be terminated at whatever stage.

2. If there is a final decree of legal separation, it shall be set aside.

3. The separation of property and forfeiture of share of guilty spouse shall subsist, unless the spouses agree to revive their former property regime or to institute another property regime (cf. Art. 67).

OTHER EFFECTS OF RECONCILIATION

4. Joint custody of children is restored.

5. The right to intestate succession by guilty spouse from innocent spouse is restored.

6. The right to testamentary succession depends on the will of the innocent spouse.

1. Spouses can live separately, but cannot remarry (marriage bonds are not severed).

2. The ACP of CPG shall be dissolved and liquidated, and the share of the guilty spouse shall be forfeited in favor the common children, previous children, or innocent spouse (cf. Art. 42, par. 2).

3. Custody of the minor children shall be awarded to the innocent spouse

4. Guilty spouse shall be disqualified from inheriting from innocent spouse by intestate succession. The provisions in favor of the guilty

from innocent spouse by intestate succession. The provisions in favor of the guilty UP LAW BAROPS

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IV. Rights and Obligations Between Husband and Wife

Persons and Family Relations

IV.

BETWEEN HUSBAND AND WIFE

RIGHTS

AND

OBLIGATIONS

Obligations of Spouses

1. Live together (Art. 68)

2. Observe mutual love, respect, and fidelity (Art.

68)

3. Render mutual help and support (Art. 68)

4. Fix the family domicile. In case of disagreement, the court shall decide. (Art. 69)

5. Jointly support the family. (Art. 70)

6. Manage the household. (Art. 71)

Rights of Spouses

1. In case the other spouse neglects his or her duties or commit acts which tend to bring danger, dishonor or injury to the family, the aggrieved party may apply the court for relief. (Art. 72)

2. Either spouse may exercise any legitimate profession, without need for consent of the other. The other spouse may only object on valid, serious, and moral grounds. (Art. 73)

In case of disagreement, the Court shall decide whether (1) the objection is proper, and (2) benefit has accrued to the family before the objection.

Use of Surname

A. MARRIED WOMEN:

A married woman may use:

1. Her maiden first name and surname and add her husband's surname, or

2. Her maiden first name and her husband's surname or

3. Her husband's full name, but prefixing a word indicating that she is his wife, such as “Mrs.” (Art. 370, CC)

The wife has the option to choose which among these names she should use. Should she decide to keep her maiden name, the use of the

word “may” in the provision indicates that she may

do so

maiden name especially because many of her professional relations already know her by that name.)

(A US Case allowed a woman to keep her

In Yasin v Shari’a District Court, the Supreme Court, by way of obiter dictum, said that the woman only has an option and not a duty to use the surname of her husband, as provided for in Art. 370, CC. It also said that when her husband dies, the woman can revert to her old name without need for judicial declaration.

B.

WIDOWS:

A widow may use the deceased husband’s

surname as though he were still living. (Art. 373,

CC)

C. MISTRESSES:

Legamia v IAC, the Supreme Court

allowed the mistress to use her live-in partner’s

name, since everyone already knew that she was a mistress, so as to avoid confusion.

In

since everyone already knew that she was a mistress, so as to avoid confusion. In UP

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V. Property Relations Between Spouses

Persons and Family Relations

V.

SPOUSES

ORDER TO BE FOLLOWED (ARTS. 74, 75)

PROPERTY

RELATIONS

BETWEEN

1. Marriage settlements before marriage – spouses can agree to whatever regime they want, be it ACP, CPG, or complete separation.

2. Provisions of the Civil Code – If there are no marriage settlements, the Absolute Community of Property will be followed

3. Local Customs

The rule that ACP is the default mode of property relations absent any marriage settlement applies to all Filipinos, regardless of the place of the marriage and their residence – Art. 80

REQUIREMENTS

FOR

MARRIAGE

SETTLEMENTS (ART. 77)

1. Must be in writing (public or private)

2. Signed by the parties

3. Executed before the celebration of the marriage

4. If party needs parental consent, parent/guardian must be a party to the settlement

5. If party is under civil interdiction or other disability (not including insanity), court appointed guardian must be a party

6. Must be registered in local civil registry – to affect third persons (If not registered, will not prejudice third persons, ACP will apply)

GENERAL RULE:

All modifications to the marriage settlement must be made before the marriage is celebrated.

EXCEPTIONS:

1. Legal Separation (Art. 63 (2))

» In such an instance, the property regime is dissolved.

2. Revival of the former property regime upon

reconciliation if the spouses agree (Art. 66 (2))

3. A spouse may petition the court for:

a. Receivership

b. Judicial separation of property, or

c. The authority to be the sole administrator of the conjugal partnership

If the other spouse abandons the other without just cause or fails to comply with his or her obligations to the family. (Art. 128)

4. Judicial Dissolution (Arts. 135 and 136)

A. Donations By Reason Of Marriage

same, and in favor of one or both of the future spouses. (Art. 82)

REQUISITES:

1. Made before the celebration of marriage

2. Made in consideration of the marriage

3. In favor of one or both spouses

DONATIONS EXCLUDED:

1. ordinary wedding gifts given after the celebration of the marriage

2. donations in favor of future spouses made before marriage but not in consideration thereof

3. donations made I n favor of persons other than the spouses even if founded on the intended marriage

WHO MAY DONATE?

1. spouses to each other

2. parents of one or both spouses

3. 3 rd persons to either or both spouses

DISTINGUISHED

FROM

ORDINARY

DONATIONS:

Donations Propter Nuptias

Ordinary Donations

Does not require express acceptance

Express acceptance necessary

May be made by minors (Art. 78)

Cannot be made by minors

May include future property

Cannot include future property

If present property is donated and property is not absolute community, limited to 1/5

No limit to donation of present property provided legitimes are not impaired

Grounds for revocation - In Art.

Grounds for revocation - in donation laws

86

RULES

BEFORE MARRIAGE

General Rule Future spouses cannot donate to each other more than 1/5 of their present property (excess shall be considered void) (Art. 84)

Exception If they are governed by ACP.

DURING MARRIAGE

DEFINITION

Donations which are made before the celebration of the marriage, in consideration of the

General Rule Spouses cannot donate to each other, directly or indirectly (donations made by spouses to each other during the marriage are void) (Art. 87)

(donations made by spouses to each other during the marriage are void) (Art. 87) UP LAW

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V. Property Relations Between Spouses

Persons and Family Relations

Exception Moderate gifts on the occasion of any family rejoicing.

In Matabuena v Cervantes,

Art.

the Supreme

to

Court ruled that

common-law spouses.

87 is applicable even

REASONS FOR REVOCATION OF DONATION PROPTER NUPTIAS (ART. 86):

WHAT IT CONSISTS:

All the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter. (Art. 91)

Under

the

ACP,

spouses

cannot

exclude

specific properties from the regime.

WHAT IS EXCLUDED (RESERVED PROPERTY):

1. If the marriage is not celebrated or judicially declared void ab initio, except donations made in settlements.

2. When the marriage takes place without the consent of the parents or guardians, as required by law.

3. When the marriage is annulled, and the donee acted in bad faith.

4. Upon legal separation, if the donee is the guilty spouse.

5. If there is a resolutory condition, and it is not complied with.

6. When donee has committed an act of ingratitude, such as:

a. An offense against person or property of donor, or his wife or children under parental authority

b. An imputation to the donor of any criminal offense, or any act involving moral turpitude, even if proven, unless the crime is committed against the donee, his wife or children under his authority.

c. Refusing to support the donor, if he/she is legally required to do so.

1. Properties acquired by a gratuitous title, i.e. donation, inheritance by testate and intestate succession, including the fruits of such properties » Exception: When it was expressly provided by the donor or testator that the property shall form part of the ACP);

2. Properties for personal use, e.g. clothes, toilet articles, books » Exception: Pieces of jewelry - they form part of the ACP

3. Properties acquired before the marriage, for those with legitimate descendants with a former marriage (to protect rights of children by a former marriage).

PRESUMPTION

All properties acquired during the marriage form part of the ACP, unless it be proven that they are excluded. (Art. 93)

CHARGES UPON THE ACP (ART. 94):

1. Support

The donee may choose to waive his/her right to revoke the donation, in which case the donee will keep the property.

The action for filing for revocation of donation prescribes.

B. Absolute Community Of Property

WHEN IT COMMENCES:

At the precise moment of the celebration of the marriage (Art. 88), not just at the day of the celebration. However, if the marriage is celebrated before the Family Code took effect (1988), the default property regime is the Conjugal Partnership of Gains (CPG).

WAIVER OF RIGHTS:

GENERAL RULE

NOT ALLOWED (Art. 89)

EXCEPTIONS

1. with the marriage subsisting, in case of a judicial separation of property, which includes dissolution of absolute community or conjugal partnership as a result of legal separation.

2. in case the marriage is dissolved (by death of one of the spouses) or annulled.

a. Support of illegitimate children of either spouse governed by (9)

b. Support shall be given to spouses even if they are not living together, except when a spouse leaves the conjugal home without just cause

c. Support shall be given to the spouses during pendency of action for legal separation (Art 61) or for annulment of marriage (Art. 49)

2. Debts and Obligations Contracted During Marriage

a. Either by both spouses or one of them, with the consent of the other.

b. In (2) and (3), creditors need not prove that the debts benefited the family.

3. Debts Contracted by one Spouse Without Consent of the other

a. ACP liable only to the extent that the debt benefited the family.

b. Reason: spouses are joint administrators of community property, and one should not act without the consent of the other.

4. Tax, Liens, Repairs on Community Property

a. Taxes on property itself and its fruits, including any surcharges on real estate taxes.

b. “Minor repairs” are those for mere preservation of property or those caused by ordinary wear and tear; “Major repairs”

include those caused by extraordinary events such as storms , floods, etc.

include those caused by extraordinary events such as storms , floods, etc. UP LAW BAROPS 2007

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V. Property Relations Between Spouses

Persons and Family Relations

5. Taxes and Expenses for Mere preservation of Separate properties

a. Applies only to separate properties by either spouse being used by the family, not those that do not benefit the family.

b. Expenses limited to minor repairs.

6. Expenses for professional, Vocational, or Self-Improvement Course of Spouses

a. Intention of the law is to encourage the spouses to improve themselves for the benefit not just of their family but of the whole nation as well.

7. Ante-nuptial Debts that Benefited the Family

a. If the ante-nuptial debt did not benefit the family, applicable rule is (9).

b. e.g. loans incurred by husband prior to

marriage to purchase conjugal home

8. Donations by Spouses to Common Legitimate Children

a. Beneficiaries should be common legitimate children of spouses.

b. Donation should be made by both spouses; otherwise, the ACP is not liable.

9. Ante-Nuptial Debts not under (7), Support of Illegitimate Children, Liabilities of Either Spouse Arising from Quasi-Delict

a. If the debtor-spouse has no exclusive property or his or her property is

insufficient.

b. Under Art. 205 of CC, guilty spouse has no obligation to reimburse to the ACP indemnities paid by ACO on account of a crime or quasi-delict committed by him or her. Under the Family Code, however, the ACP is considered merely to have advanced these indemnities; they shall be deducted from the share of the guilty spouse at the time of the liquidation of the absolute community.

10.Expenses of Litigation between Spouses

a. Expenses of these litigations are actions for support by one spouse against the other or for support and custody of children, legal separation, and annulment of marriage.

b. If the spouse who files the case loses, the ACP is not liable for the expenses incurred during litigation.

ADMINISTRATION OF PROPERTY:

they

disagree the husband’s decision prevails. However, the wife has five years from the date of the decision to go to court for recourse. Otherwise, it is presumed that she agreed with the husband’s decision. (Art. 96)

Belongs

to

both

spouses

jointly.

If

EXCEPTION

When the other spouse is incapacitated, or unable to participate in the administration (e.g. when abroad).

DISPOSITION OF PROPERTY:

97) However, the will should refer only to his/her own share in the community property.

DONATION OF PROPERTY:

Donation of one spouse without the consent of the other is not allowed (Art. 98, following logic of Art. 96).

EXCEPTIONS

1. Moderate donations to charity due to family rejoicing or distress;

2. Moderate gifts by each spouse to the other due to family rejoicing.

Note: What’s moderate depends on the socio- economic status of the family

ACP TERMINATES UPON (ART. 99):

1. Death of either spouse – follow rules in Art.

103

2. Legal Separation – follow rules in Arts. 63 and

64

3. Annulment or judicial declaration of nullity – follow rules in Arts. 50 to 52

4. Judicial separation of property during marriage – follow rules in Arts. 134 to 138

RULES

ON

DE

FACTO

SEPARATION

(ART.

100):

GENERAL RULE

De facto separation does not affect the ACP.

EXCEPTIONS

1. Spouse who leaves the conjugal home without just cause shall not be entitled to support. He/She, however, is still required to support the other spouse and the family.

2. If consent is necessary for transaction but is withheld or otherwise unobtainable, authorization may be obtained from the court.

3. Support for family will be taken from the ACP.

4. If ACP is insufficient, spouses shall be solidarily

liable.

5. If it is necessary to administer or encumber

separate property of spouse who left, spouse present may ask for judicial authority to do this.

6. If ACP is not enough and one spouse has no separate property, spouse who has property is liable for support, according to provisions on

support.

IN CASE OF ABANDONMENT (ART. 101):

Present spouse may petition the court for:

a. receivership;

b. judicial separation of property; or

c. authority to be the sole administrator of the absolute community, subject to precautionary conditions that the court may impose.

Either spouse may, through a will, dispose his/her interest in the community property. (Art.

Spouse

is

prima

facie

considered

to

have

abandoned the other spouse and the family if:

is prima facie considered to have abandoned the other spouse and the family if: UP LAW

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V. Property Relations Between Spouses

Persons and Family Relations

1. he/she has left for a period of three months,

2. he/she has failed to inform his/her whereabouts for a period of three months.

PROCESS

OF

LIQUIDATION

OF

ACP

(ART.

102):

1. Inventory of assets of ACP and of spouses, with market values.

2. Obligations are paid with community property, and separate obligations not charged to ACP paid by respective assets of spouses.

3. Balance, or net remainder is divided equally between the spouses, irrespective of how much each brought into the community.

4. If obligations exceed the assets of the ACP, nothing is divided. Creditors can go after the separate properties of the spouses, which are solidarily liable for the deficiency.

5. If personal obligations of a spouse exceed his/her separate property, creditor can go after the share of the spouse on the net remainder of the ACP, without prejudice to the provisions of law on forfeitures and delivery of presumptive legitimes.

6. After covering all community obligations and obligations of spouses, balance of separate properties shall be delivered to respective spouses or their heirs, and they will also divide into two equal shares whatever is left of the community assets, without prejudice to the provisions of law on forfeitures and delivery of presumptive legitimes.

RULES

IN

CASE

OF

TERMINATION

OF

MARRIAGE

BY

DEATH

OF

ONE

OF

THE

SPOUSES (ART. 103):

1. The community property shall be liquidated in the same proceeding for the settlement of the estate of the deceased spouse.

2. If no such judicial settlement proceeding is instituted, surviving spouse shall liquidate the community property either judicially or extra-judicially within one year from the death of the deceased spouse.

PROCEDURE

FOR

LIQUIDATION

OF

COMMUNITY

PROPERTIES

OF

TWO

MARRIAGES (ART. 104):

1. Determine the capital, fruits, and income of each community upon such proof as may be considered according to the rules of evidence.

2. In case of doubt as to which community the existing properties belong, they shall be divided between two communities in proportion to the capital and duration of each.

C. Conjugal Partnership Of Gains

WHERE IT APPLIES:

1. For marriages before the implementation of the Family Code.

2. For marriages after the Family Code, if agreed to by the parties through a marriage settlement.

HUSBAND

AND

WIFE

PLACE

IN

COMMON

FUND:

1. The proceeds, products, fruits, and income of their separate properties;

2. Everything acquired by them within marriage through their own efforts;

3. Everything acquired by them by chance

Each spouse has his/her own property and his/her own debts. Upon dissolution of marriage or partnership, the net gains or benefits from the partnership shall be divided equally between the spouses, unless they have agreed on another manner of division in their marriage settlement.

In De Ansaldo v Sheriff of Manila, the Supreme Court ruled that the spouses are not co- owners of the conjugal properties during the marriage and cannot alienate the supposed ½ interest of each in the said properties. The interest of the spouses in the conjugal properties is only inchoate or a mere expectancy and does not ripen into title until it appears after the dissolution and liquidation of the partnership that there are net assets

after the dissolution and liquidation of the partnership that there are net assets UP LAW BAROPS

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V. Property Relations Between Spouses

Persons and Family Relations

CPG VS. ACP:

 

CPG

 

ACP

 

1.

Property

acquired

Each spouse retains his/her property; only fruits part of conjugal property

Properties

become

part

of

community

before marriage.

property

2.

Property

acquired

Part of conjugal property

Becomes conjugal property.

 

during marriage

 

3.

Upon dissolution of

Separate properties are returned; net profits divided equally between spouses or heirs.

Net remainder of ACP divided equally between spouses or heirs.

marriage

 

4. Basis

 

Capital and properties of spouses kept separate and distinct from benefits; insurmountable obstacle to presumption of solidarity

Mutual trust and confidence between spouses; fosters oneness of spouses

5. Liquidation

 

Exclusive properties will have to be identified and returned, and sometimes, identification is difficult.

Easier to liquidate because net remainder of community properties are simply divided between spouses or heirs

CPG VS. ORDINARY PARTNERSHIP:

   

CPG

Ordinary partnership

1. Existence

 

Exists with the mere fact of marriage

 

Comes into existence according to agreement between parties

2. duration,

Purpose,

Predetermined by legislator, the law fixing its conditions.

Determined by will of partners.

and rules

 

3.

Profits

Divided equally between spouses, irrespective of the amount of capital that they bring into marriage

Depends upon respective capitals of partners, or upon their agreement

4.

Equality

No equality between spouses in control, management, and disposition, because the law grants the husband some predominance.

General rule is that all partners have equal rights in administration, management, and control of partnership.

5.

Personality

No juridical personality

 

Considered a juridical person

6.

Commencement

At

precise

moment

of

celebration

of

At the time agreed upon by partners

 

marriage

 

7.

Regulation

By law

 

By agreement of parties; subsidiarily, by law

8.

Purpose

Not particularly for profit

 

For profit

9.

Causes

for

Death, legal separation, annulment, JDN, judicial separation of property

Death, insolvency, civil interdiction, termination of term, express will of any partner, etc. (Arts 1830-1931)

dissolution

10.

Effect of death of a

Dissolution of partnership

 

Surviving partners may choose to continue partnership

partner

 

11.

Division

of

Only upon dissolution

 

There can be division of profits without dissolution

properties

12.

Management

Joint; in case of disagreement, the husband’s decision shall prevail, wife has recourse to courts

Same as individual partners, except when one or more partners designated as managers.

as individual partners, except when one or more partners designated as managers. UP LAW BAROPS 2007

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V. Property Relations Between Spouses

Persons and Family Relations

EXCLUSIVE PROPERTIES OF THE SPOUSES:

PROPERTY BY DIRECT ACQUISITION, OR PROPERTY THAT IS ORIGINALLY EXCLUSIVE

1. Property brought into marriage by each spouse as his/her own – Art. 109(1)

2. Property acquired by either spouse during the marriage by gratuitous title – Art 109 (2)

PROPERTY BY SUBSTITUTION

3. Property acquired by right of redemption, by barter, or by exchange with property belonging to either spouse – Art. 109 (3)

4. Property purchased with exclusive money of either spouse- Art. 109 (4)

OTHER SEPARATE PROPERTY

5. Collection of credits belonging to one spouse exclusively

6. Sale of separate property of a spouse

7. Indemnity paid in cash of expropriation of separate property or under an insurance policy covering separate property.

8. Possession does not affect ownership of separate property.

Spouses retain ownership, possession, administration, and enjoyment of their exclusive properties (Art. 110).

Either spouse may transfer administration of

his/her exclusive property to the other, provided that it is:

1. In a public instrument

2. Recorded in the registry of property of the place where the property is located.

Rights to mortgage, encumber, alienate, or dispose of his/her property belong to the owner- spouse and are consequences of his/her right of ownership. (Art. 111)

Owner-spouse can also appear alone in court to litigate with respect to his/her exclusive property. (Art. 111)

Alienation of exclusive property administered by the other automatically terminates and the administration over such property and the proceeds of the alienation shall be turned over to the owner-spouse. (Art. 112)

2. PROPERTIES ACQUIRED THROUGH THE LABOR,

INDUSTRY, WORK, PROFESSION OF EITHER OR BOTH SPOUSES (ART. 117 (2))

Include all income from work, labor or industry, of either or both spouses, whether in the form of wages, salaries, honoraria, practice of a profession, income from business even if the capital comes from the exclusive property of one of the spouses, commissions, bonuses, etc.

3. FRUITS FROM COMMON PROPERTY, AND NET

FRUITS OF EXCLUSIVE PROPERTY OF EACH SPOUSE

(ART. 117 (3)) All kinds of fruits from conjugal properties as well as the exclusive properties of the spouses, whether natural, industrial, or civil, like young of animals, produce of land, earnings from business, etc.

But only net income or fruits of exclusive property of the spouses become conjugal. The expenses for production, administration, and preservation should be taken from the gross fruits, and the owner-spouse is entitled to retain the gross income until these expenses are paid

If fruits were pending on separate, property of

a spouse at.the time of the marriage, the harvest

collected during the marriages is conjugal, and the conjugal partnership is not 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 usufruct and therefore, the law on usufruct should apply

4. SHARE OF EITHER SPOUSE IN HIDDEN TREASURE,

WHETHER AS FINDER OR OWNER OF PROPERTY WHERE TREASURE IS FOUND (ART. 117(4))

Hidden treasure found by -the. spouses on the property of either of them is conjugal.

If the owner of the property where the treasure is found is one of the spouses and the treasure is found by a stranger, the one-half share of the owner of the property goes to, the conjugal partnership.

If the property where the treasure is found belongs to -a stranger and the treasure is found by one of the spouses, the one-half share of the finder

PRESUMPTION

is

conjugal.

All property acquired during the marriage, whether the acquisition appears to have been

5.

PROPERTIES ACQUIRED THROUGH OCCUPATION

made, contracted or registered in the name of one

SUCH AS FISHING OR HUNTING (ART. 117 (5))

or both spouses, is presumed to be conjugal unless the contrary is proved. (Art. 116)

These include wild animals caught by the husband in the forest while hunting, and all kinds of marine life caught while fishing.

PROPERTIES THAT COMPOSE CPG:

The theory is that animals in the forest and fishes in the ocean are res nullius and do not belong to anyone, and if one of the spouses catches any of them, the benefit is not his alone but for the conjugal partnership.

1. PROPERTIES ACQUIRED BY ONEROUS TITLE DURING THE MARRIAGE AT EXPENSE OF COMMON

FUND (ART. 117 (1)) The test is the origin of the money invested in the purchase; if it came from conjugal funds, the property acquired is conjugal.

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6. LIVESTOCK EXISTING AT DISSOLUTION OF PARTNERSHIP IN EXCESS OF WHAT IS BROUGHT BY EITHER SPOUSE TO THE MARRIAGE (ART. 117 (6))

While Art. 159 of the Civil Code classifies as conjugal all animals existing at the dissolution of the partnership "exceeding" that brought to the marriage by each spouse, this particular provision of the Family Code considers, as conjugal all "livestock existing at the dissolution of the partnership in excess of each kind brought to the marriage by either spouse."

similar kinds of property are, however, merely accessories to some commercial establishment or product, so that if such establishment or product is separate property of one spouse, then the business property is separate property, the same being an accessory that follows the principal; but all benefits or earnings derived from these different kinds of property during the marriage should belong to the conjugal property (Tolentino, id., citing the same authority).

PROPERTIES PURCHASED BY INSTALLMENT

7. PROPERTIES ACQUIRED BY CHANCE, SUCH AS WINNINGS FROM GAMBLING OR BETTING (ART. 117

(7))

If a winning lottery or sweepstakes ticket is bought by a spouse with his or her own money or the ticket was given gratuitously by a friend, the prize will be separate property of the spouse who owns the ticket. If, however, the ticket is purchased with conjugal funds, the prize will be conjugal.

Presumption

A lottery or sweepstakes ticket acquired

during the marriage was bought with conjugal funds, and the prize is therefore, conjugal.

SPECIAL CASES NOT INCLUDED IN ART. 117

Land obtained by either spouse or by both through a loan is conjugal, and so is the

loan, and the spouses will be solidarily liable

for said loan with their separate properties if

later, the community property is not enough to pay for the same.

» Where property' belonging to one spouse is converted into another kind totally different in nature from its original form (e.g.; when, a nipa 'swamp is converted into a fishpond), during the marriage the converted property is conjugal in the absence of proof that the expenses of conversion were exclusively for the account of the original owner-spouse. But said owner-spouse is entitled to reimbursement of the value of the original property from the conjugal partnership

Money received under the Social Security Act is not conjugal, although-the employee- spouse contributes to the SSS with his salaries, but belongs to the designated beneficiary under the Social Security Law

Intellectual property, like copyright or patent, should, according to Tolentino, citing Planiol and Ripert, be considered separate property of the spouse who produces or

invents or discovers it, this property being of a special type, almost a part of one's person or taken from his personality and the physical

or external manifestation of his intellect or

genius, that it is not simply a product of one's work or industry but should be considered as

pertaining exclusively to its creator

Business property like trade-marks, trade names, service marks, business goodwill, and

If the property was bought on installment by a spouse before the marriage and the contract of sale is such that ownership was already vested on the buyer-spouse at the time of the execution of the contract, the property is EXCLUSIVE PROPERTY of said buyer-spouse, even if installments on the price up to full payment came from the conjugal funds. The amounts paid by the conjugal partnership shall, however, be reimbursed to it by the owner-spouse at the time of the liquidation of the partnership.

If, however, the contract of sale on installment is such that ownership did not vest on the buyer at the time of the execution of the sale and ownership vested only after the whole price was paid during the marriage and out of conjugal funds, the PROPERTY IS CONJUGAL but the partnership shall reimburse the buyer-spouse the installments paid by him or her before the marriage.

In Lorenzo v. Nicolas, it was held that property bought on installment by either spouse before the marriage and was fully paid only after the marriage but ownership had vested on the buyer spouse before the marriage, is separate property of the buyer-spouse, although the installments paid by the conjugal partnership during the marriage must be reimbursed to it upon liquidation.

CHARGES

UPON

CPG

(ART.

121)

[CF.

CHARGES TO ACP]:

1. The support of the spouse, their common children, and the legitimate children of either spouse; however, the support of illegitimate children shall be governed by the provisions of this Code on Support;

2. All debts and obligations contracted during the marriage by the designated administrator- spouse for the benefit of the conjugal partnership of gains, or by both spouses or by one of them with the consent of the other;

3. Debts and obligations contracted by either spouse without the consent of the other to the extent that the family may have benefited;

4. All taxes, liens, charges, and expenses, including major or minor repairs upon the conjugal partnership property;

expenses, including major or minor repairs upon the conjugal partnership property; UP LAW BAROPS 2007 ONE

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5. All taxes and expenses for mere preservation made during the marriage upon the separate property of either spouse;

DISPOSITION

OR

ENCUMBRANCE

OF

THE

CPG:

6. Expenses to enable either spouse to commence or complete a professional, vocational, or other activity for self-improvement;

7. Ante-nuptial debts of either spouse insofar as they have redounded to the benefit of the family;

8. The value of what is donated or promised by both spouses in favor of their common legitimate children for the exclusive purpose of commencing or completing a professional or vocational course or other activity for self- improvement; and

9. Expenses of litigation between the spouses unless the suit is found to groundless.

DISPOSITION OF PROPERTY

Alienation of said property in any form, such as sale, donation, or assignment.

ENCUMBRANCE OF PROPERTY

Includes a real estate mortgage of immovable property or a chattel mortgage or pledge of personal property of the CPG.

Disposition or encumbrance of conjugal property requires the consent or approval by both spouses.

Mere

consent

awareness

of

a

transaction

is

NOT

If the conjugal partnership is insufficient to cover the foregoing liabilities, the spouses shall be solidarily liable for the unpaid balance with their separate properties.

If the consent cannot be obtained or unjustly withheld, then the other spouse may bring the matter to court and secure judicial authority for said disposition or encumbrance.

ADMINISTRATION OF THE CPG:

Husband and wife are joint administrators of the family properties and exercise joint authority over the persons and properties of their children

Same provisions as those of Art. 96 (admin. of the ACP)

If there is no consent of the other spouse nor judicial authority, the disposition or encumbrance shall be void.

DISPOSITION BY WILL

Same rule as Art. 97: Either spouse may dispose by will of his interest in the ACP. (but there is no provision specifically for CPG).

DISSOLUTION OF CPG (ART. 128):

WHEN ONE SPOUSE IS INCAPACITATED OR UNABLE TO PARTICIPATE IN ADMINISTRATION

The other spouse may assume sole powers of administration in the event that one spouse is incapacitated or otherwise unable to participate in the administration of the CPG.

However, these sole powers of administration do not include disposition or encumbrance (as these are acts of ownership or dominion)

To be able to dispose or encumber properties

of the CPG, either of the following is necessary:

a. authority of the court; or

b. written consent of the other spouse.

In the absence of said judicial authority or written consent, the disposition or encumbrance shall be void.

ENJOYMENT OF THE CPG:

1. The enjoyment of the CPG shall belong to both spouses jointly.

2. Either spouse may enjoy or use the properties of the CPG like a beach house or a family car as long as the use is in accordance with the purpose of the thing without injuring it and the other spouse is not prevented from likewise using it.

1. Prepare inventory, listing separately all the properties of the conjugal partnership and the exclusive properties of each spouse.

2. Amounts advanced by the conjugal partnership in payment of personal debts and obligations of either spouse shall be credited to the conjugal partnership.

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 which has been vested by law in the conjugal partnership.

4. The debts and obligations of the conjugal partnership shall be paid out of the conjugal assets. In case of insufficiency of said assets, the spouses shall be solidarily liable for the unpaid balance with their separate properties, in accordance with the provisions of paragraph 2 of Article 121.

5. Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each of them.

6. Unless the owner had been indemnified from whatever source, the loss or deterioration of movables used for the benefit of the family, belonging to either spouses, even due to fortuitous event, shall be paid to said spouse from the conjugal funds, if any.

7. The net remainder of the conjugal partnership properties, or the profits, which shall be divided equally between husband and wife, unless a different proportion or division was agreed upon in the marriage settlements or

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unless there has been a voluntary waiver or

forfeiture of such share as Code.

provided in this

EFFECTS OF DISSOLUTION

Whatever is acquired by the surviving spouse after the termination of the CPG forms part of his or her exclusive property.

An obligation incurred by a surviving spouse after the death of the other spouse, can no longer be charged against the property of the CPG which has been terminated by such death.

ALIENATION BY SURVIVORS

If it becomes necessary to pay outstanding obligations of the CPG after the death of one of the spouses, a sale may be made of a portion of the CPG, provided the sale is made in the manner and with the formalities established by the Rules of Court for the sale of property of deceased persons.

Such disposition cannot include the half that may be adjudicated to heirs of the deceased spouse. This rule applies not only to sale, but also to mortgages.

RIGHTS OF THIRD PERSONS

Dissolution of the conjugal property must be recorded in the registry of property in order to affect third persons dealing with registered property.

When third persons are in connivance with the surviving husband or knowingly lend their aid, directly or indirectly to the commission of fraudulent acts by the husband, the court will see to it that they do not profit by their misconduct, and the fraud to which they are parties will vitiate and annul all their transactions.

The purchaser in good faith must be held to take a good and valid title which cannot be set aside thereafter upon proof that in making the sale, or in the use made of the proceeds, the husband acted in fraud of the rights of the heirs. The heirs must seek their remedy against the husband.

METHODS OF LIQUIDATION

1. by extra-judicial partition between the husband and wife or their heirs

2. by an ordinary action for partition

3. by testate and intestate proceedings

D.

Marriage

Separation

of

Properties

During

When there is no stipulation between the parties, Separation of Properties takes place only upon judicial order. (Art. 134).

Judicial

separation

of

properties

may

be

voluntary or because of a sufficient cause.

SUFFICIENT

CAUSES

FOR

JUDICIAL

SEPARATION OF PROPERTIES (ART. 135):

1. Spouse of the petitioner has been sentenced to a penalty which carries with it civil interdiction.