MARRIAGE

I,

DEFINITIO]I

Marriage is a special contract of permanent union between a man and a woman entered 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 are governed by law and not subject to stipulation.

rr.

REQUTSTTES

A. Essential 1. legal capacity

2.

of the Pafties 18-21 years old: parental consent is required 21-25 years old: only parental advice is necessary consent freely given

a.

B. Forma! 1. authority of the solemnizing officer

2. a valid marriage license 3. marriage ceremony: where the contracting

One of the laws a paralegal must study is the Family

pafties appear

fore the solemnizing officer and personally declare that

Code that became effective on 4 August 1988. Considering the prevalence of battery and other forms of violence within the family, it is necessary for a paralegal to determine whether the parties involved are legally married. The rules governing marriage is an impoftant training component in the study of violence against women.
30

take each other as husband and wife. This takes place in presence of not less than two (2) witnesses of legal age.

III.

EFFECTSOFABSENCE OR DEFECTIN THE

is absent: the

A. Any of the essential or formal requisites

riage if void ab initio;

nl
rl

B. There is a defect in the essential requisites: the marriage

voidable;

is

D. Marriages against public policy

10.

C. There is an irregularity in the formal requisites: the marriage is valid but the party responsible for the irregularity shall l,e
I

iable (civil ly, administratively, and crim inal ly.)

iry.

VOID MARRIAGES

A. Absence of one of the requisites: 1. a party is not of legal age (below eighteen (18) years rlf
age);
2.

the solemnizing officer had no legal authority to perfornr marriages unless either or both pafties believed in good faith that he had the legal authority to do so;
there was no valid marriage license;

between collateral blood relatives up to the 4th civil degree (nephew/niece, aunt/uncle and first cousins) 11. between step-parents and step-children between parents-in-law and children-in-law 13. between the adopting parent and the adopted child; 14. between the surviving spouse of the adopted parent and the adopted child; 15. between the surviving spouse of the adopted child and the adopter; 16. between the adopted child and the legitimate child of the adopter; between adopted children of the same adopter; 18. between parties where one, with the intention to marry the other, killed that other person's spouse/ of his/her own

rI

t2.

t7.

3.

spouse.

4.

bigamous or polygamous marriages; 5. the marriage was contracted through mistake of one of the

6.

pafties as to the identity of the other; subsequent marriages where the judgment of annulment or nullity of the marriage has not been recorded in the appropriate civil registry;

v. VOIDABLE MARRIAGES

1.

Psychological Incapacity

7.

one of the pafties is psychologically incapacitated to comply with the essential marital obligations;

2. 3.

where the parly seeking the annulment was between 18-21 years of age and the marriage was contracted without the consent of his/hr parents or guardian; where one of the pafties was of unsound mind; where the consent of either pafi was obtained by fraud; What constitutes fraud :

c. Marriages between relatives

8. between ascendants and descendants of any degree; 9. between brothers and sisters, whether of the full or half-blood;
31

a. non-disclosure

of a previous conviction by final judgment

of a crime involving moral turpitude;

b.

c.
d.

concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband; concealment of sexually transmissible disease, regardless of its nature, existing at the time of the marriage;

PROVISIONAL ORDERS

concealment

of drug addiction, habitual alcoholism,

homosexuality or lesbianism existing at the time of marriage,

4. where consent of either party was obtained through force, in5.

timidation or undue influence; where either pafi was physically incapable of consummating the marriage with the other, and such incapacity continues and
appears to be incurable; where either party was afflicted with sexually-transmissible disease found to be serious and appears o be incurable.

Under the rules covered by A.M. No. 02-11-12-SC issued by the Supreme Couft, and which took effect on 15 March 2003, the provisional orders for suppoft, custody, visitation rights, hold-departure and

protection orders may be avalled of during the pendency of cases for legal separation, declaration of nullity of marriage and annulment. From the word "provisional", these orders are intended to
temporarily resolve the issues of support, custody, visitation rights, etc. while the court has yet to make a final declaration on the main case for legal separation or declaration of nullity of marriage or annulment.
32

At any time during the proceeding for legal separation or declaration of nullity of marriage or annulment, the court, by itself or upon the request of any of the pafties or guardian, may issue the following provisional orders with or without need of a hearing. These orders may be enforced immediately, and for such period and conditions as the court may determine.

. . . .

the age and health of the spouses the physical and emotional conditions of the spouse the ability of the supporting spouse to give support; and such other factors as the court may determine.

I.

PROVISIONALORDERSTHAT MAY BE ISSUED:

For child support, the court may require either or both parents to give an amount necessary for the support, maintenance and education of the child, and the amount shall be in proportion to the means of the giver and to the needs of the child. The court may also consider the

f.
II.

a. spousal support b. child support c. child custody d. visitation rights e. hold depafture order
protection order

following factors in determining the amount of provisional support:

. . . .

the financial resources of the parenG the physlcal and emotional health of the child and his or her
special needs

the standard of living the child has been accustomed to; and the non-monetary contributions that the parents will make toward the care and well-being of the child.

SPOUSAL AND CHILD SUPPORT

The court may direct the deduction of the provisional spousal or chilcl support from the salary of the parent or spouse.

For spousal suppoft, the court may be guided by the following factors in determining the amount of support that a spouse is entitled:

. . . . .

III.
standard of living of the spouses during the marriage whether the spouse seeking support has custody of a child whose circumstances make it appropriate for that spouse not to seek outside employment the comparative financial resources of the spouses the needs and obligations of each spouse the contribution of each spouse to the marriage
33

CHILD CUSTODY

In determining the rightful custody of the child, the court shall consider the best interests of the child and shall give paramount consideration to the material and moral welfare of the child. The court may likewise consider the following factors:

the agreement of the parties

. . . . . . . .

the desire and ability of each parent to foster an open and loving relationship between the child and the other parent the child's health, safety and welfare any history of child or spousal abuse on the part of the parent seeking custody, and also on the part of any person having an intimate relationship with either parent the nature and frequency of contact with both parents habitual use of alcohol or regulated substances marital misconduct the most suitable physical, emotional, spiritual, psychological and educational environment; and the preference of the child, if over seven years of age and of sufficient discernment, unless the parent chosen is unfit

IV. VISITATION

RIGHTS

Appropriate visitation rights shall be provided to the parent who is awarded provisional custody unless found unfit and disqualified

the couft.

V.

HOLD DEPARTURE ORDER

While the main case for legal separation or declaration of nullity marriage or annulment is pending, no child of the pafties shall brought out ofthe country without prior order from the court' In this regard, the couft may issue a hold depafture order to the Bureau of Immigration and Deportation, directing it not to the depafture of the child from the Philippines without the of the court.

The court may award the provisional custody to the following persons and in accordance with the following order of preference:
1.

to both parents jointlY

paren! taking into account the ftctors mentioned above and the preference ofthe child over seven years of age, unless the parent chosen is unfit to the surviving grandparent, or if there are several of them, to the grandparent chosen by the child over seven years of age and of sufficient discernment, unless the grandparent is unfit or

2. to either

VI.

PROTECTION ORDER

The court may issue an Order of Protection requiring any person:

1. to stay 2.

disqualified 4. to the eldest brother or sister over twenty-one years of age, unless he or she is unfit or disqualified 5. to any other person deemed by the court suitable to provide proper care and guidance for the child

away from the home, school, business, or place of ployment, or from any other specific place designated by court, of the child, other parent or any other pafi to refrain from harassing, intimidating, orthreatening such or other parent or any person to whom custody of the child awarded to refrain from committing acts that create an unreasonable ri

3.
34

to the health, safety, or welfare of the child to permit a parent, or a person entitled to visitation, to visit the child at stated period to permit a party to enter the residence during a specified period of time in order to take personal belongings not othenvise contested before the court to comply with such other orders as are necessary for the protection of the child

LEGAL SEPARATION

.i-_\

*i
"' al

/.

One of the remedies available to women in violent marital relationships is legal separation, the legal basis for which can be found in the Family Code of the Philippines. The Family Code provides for the grounds for legal separation. There are ten grounds

for a petition for legal separation. Most of these

grounds display different forms of violence against
women.
35

GROUNDS FOR LEGAL SEPARATION

A.

Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child or a child of the petitioner; B. Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;

Condonation is express when it is in writing. For example, the wrote her husband a letter telling him that she is willing to take back despite his womanizing. Implied condonation is seen from the acts of the innocent spouse show forgiveness. If a spouse knew that a ground for legal existed but nevertheless cohabited or had sexual intercourse with other, the law recognizes this as an act of implied condonation.

induce the petitioner, a common child or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement; D. Final judgment sentencing the respondent to imprisonment of more than six (6) years, even if pardoned; E. Drug addiction or habitual alcoholism of the respondent; F. Lesbianism or homosexuality of the respondent; G. Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad; H. Sexual infidelity or perversion; L Attempt by the respondent against the life of the petitioner; or l. Abandonment of the petitioner by the respondent without justifiable cause for more than one (1) year.

C. Attempt of respondent to corrupt or

B. Consent
This is consenting to or permitting the commission of the offense act complained of. Consent is given before the act is committed. may likewise be expressed or implied.
For example, an agreement that either spouse may live with without interference from the other is considered a valid defense in a petition for legal separation.

C. Connivance
Connivance is not just giving consent to the other spouse to commit an offense or act but also participating in the act that will constitute the ground for legal separation.
For example, the husband hired a detective to observe and then seduce his wife. Later, the husband files a petition for legal separation against

II,GROUNDS FOR DENYING A PETITION FOR LEGAL

SEPARATION

A. Condonation
Condonation, express or implied, is given after the occurrence of the act that constitutes the ground for legal separation.

the wife on sexual infidelity. The petition may be dismissed because the husband connived wlth the other man in seducing the wife.
36

D. Mutual Guilt
In this case, both pafties committed acts that constitute grounds for legal separation (ln pari delicto). Since both spouses are guilty, the law treats them as if there was no aggrieved pafi.

C.

D.

E. Collusion
I

F.

i I
I

,n"ru is collusion if the parties

conspire to fabricate a ground for

legal separation when in fact none exists.

The court shall not hear the case unless it has taken steps toward the reconciliation of the pafties and is fully satisfied, despite such effofts, that reconciliation is highly improbable. The respondent will not be declared "in default" even if he fails to file an "Answer" but the court will proceed to hear the case. No decrees of legal separation shall be based on a stipulation of facts or a confession of judgment. The court shall order the prosecuting attorney or fiscal to determine whether there is collusion between the pafties and to ensure that evidence is not fabricated or suppressed.

I ,. ,r.""ription
I I I
the petition is not filed within five (5) years from the time of the occurrence of the cause, the right to file the petition has already
prescribed.

IV.

EFFECTS OF A DECREE OF LEGAL SEPARATION

*n.n

I I
I I I I t I I f

Where the couft has determined that there are grounds for granting the petition for legal separation:

I nr. I

A. The nuaas rN HEARTNG AN AcrroN

FoR TEGALsEPARATToN
in the Family Court of the province or city where the petitioner or respondent has been residing for at

spouses shall be entitled to live separately from each other but the marriage bonds shall not be severed;

A. The petition shall be filed

least six (6) months prior to the date of filing, at the election of the oetitioner.

B. The petition

shall not be tried before six (6) months have elapsed since its filing to give the pafties an opportunity for reconciliation. However, if the ground involves domestic violence, the sixmonth period shall be waived and the petition shall be heard immediatery. 37

After the filing of the petition for legal separation and even before the promulgation of a court decision, the spouses are allowed to live separately from each other. B. The absolute community of property or conjugal paftnership of gains shall be dissolved and liquidated. The guilty spouse shall have no rightto any share in the net profits earned bythe absolute community or conjugal partnership. His/her share shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or, in default children. the innocent spouse.

c. The couft, after rendering a decision granting the petition, shall issue the decree of legal separation only after the registration
of:
(a) The entry of judgment granting the petition for legal separation in the Civil Registries where the marriage was celebrated and where the Family Court is located; and (b) The approved paftition and distribution of the properties

V.

EFFECT OF RECONCILIATION BETWEEN THE SPOUSES

If the

spouses should reconcile, they should file in court a joint manifestation under oath that they have reconciled. Depending on when the reconciliation took place, a decree of reconciliation shall be issued by the court, subject to the following rules:
A.

ofthe spouses in the proper Register of Deeds. The custody over the minor children shall be awarded to the innocent spouse by the court shall take into account the best
interest of the children.
No child below seven (7) years ofage shall be separated from his or her mother unless there are compelling reasons to award

while the action for legal separation is pending, the court shall immediately issue an order terminating the pro-

If it occurred

to the father or other persons. If the child is over seven (7)

years of age, the muft shall inquire which parent the child wishes

to remain with, and the choice of the child shall be taken into
consideration in determining whom to grant custody of the child.
E.

F,

The guilty spouse is disqualified from inheriting from the innocent spouse. The innocent spouse may revoke the donations given by him/ her in favor of the guilty spouse. In order to give legal effect to the revocation, the action to revoke the donation must be brought within five (5) years from the date the decision granting the petition for legal separation has become final.
The designation of the guilty spouse as beneficiary in any insurance poliry may also be revoked after the issuance of the decree of legal separation even if such designation be stipulated as irrevocable.

ceeding. If it occurred after the rendition of judgment granting the petition but before the issuance of the decree of legal separation, the spouses shall express in their manifestation whether or not they agree to revive their former property regime or choose a new regime. The court shall immediately issue a decree of reconciliation declaring that the legal separation proceeding is set aside and speciffing the property regime under which the spouses are covered. C. Ifthe spouses reconciled afterthe issuance ofthe Decree, upon motion, the court shall issue a decree of reconciliation which declares thatthe Decree is set aside butthe separation of propefi and any forfeiture of the share of the guilty spouse effected subsists, unless the spouses have agreed to revive former propefi regime or adopt a new regime.
B.

38

PSYCHOLOGICAL INCAPACITY

incapacity, and because ofthis, thejudge is granted

wide latitude of discretion to decide whether or not the circumstances of the case fall under the provision of Article 36. Nevertheless, the Supreme Couft has already provided guidelines for petitions filed under Article 36 of the FamilY Code.

I.

CONCEPT

.*\ ,--,--*l "*

=-:rl '-:\\s,

According to Article 36 of the Family Code, the marriage is void where one of the parties is psychologically incapacitated to comply with the essential marital obligations of marriage. The psychological incapacity must be present at the time of the celebration of the marriage although it may become manifest only after its solemnization,

II.
Another impoftant remedy found in the Family code that is relevant to the issue of violence against a legally married woman is the provision in Afticle 35 of the said Code. Even if it is not expressly stated in Afticle 36 that violence against women is a ground for filing a case, it can be inferred that infliction of violence against the wife is a clear manifestation of psychological incapacity to pedorm the essential marital obligations required of a spouse. The Family Code does not provide a definition of psychological
39

MANIFESTATIONS OF PSYCH OLOGICAL IN CAPACIW

Psychological incapacity may manifest itself in many forms. The law itself does not make an enumeration of these manifestations to give the court wider discretion in interpreting this provision on a case-to-

case

basis. However, Canon Law, from which the concept of

psychological incapacity was derived, provides some examples, such as:

1. homosexualitY or lesbianism; 2. immaturity or irresponsibility; 3. alcoholism; 4. epilepsy; 5. criminality;

6. battering; 7. abandonment.

III.

GUIDELINES IN FILING THE PETITION FOR NULLITY

be filed in the Family Court of the province or petitioner or the respondent has been residing city where the for at least six (6) months prior to the date of the filing, at the election of the petitioner. Either paty, even the one psychologically incapacitated, may file the petition. The burden of proof to show the nullity of the marriage rests on the petitioner. In case of doubt, the court shall resolve in favor of the existence and continuation of the marriage in order to promote the poliry of the State that the family is an inviolable social institution. The root cause of the psychological incapacity must be: 1. medically or clinically identified; 2. alleged in the petition; 3. sufficiently proven by expefts; and 4. clearly explained in the decision. The incapacity must be proven to be existing at the time of the celebration of the marriage.

A. The petition shall

B.
C.

J.

D.

support, to and instruct them by right precept and good example, impose discipline, to represent them in all matters their interests, etc. While the church annulment is not controlling or decisive, pretations given by the National Appellate Matrimonial -Ii of the Catholic Church in the Philippines shall be given respect by our courts. The trial court must order the prosecuting attorney or fiscal the Solicitor General to appear as counsel for the State. No cision shall be rendered unless the Solicitor General issues certification, which will be quoted in the decision, stating her agreement or opposition to the petition. the shall be submitted within fifteen (15) days from the date
case is deemed submitted for resolution.

1. to live together; 2. to observe mutual love; 3. to observe mutual respect; 4. to observe fidelity; 5. to render mutual help and support; 6. to fix the family domicile; 7. with respect to children: to provide

E.

IV.

EFFECTS OF DECLARATION OF

NULLIW OF MARRIAGE

Such incapacity must also be shown to be medically or clinically permanent or incurable. G. Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. H. The essential marital obligations that were not complied with are the following: 40

F.

BASED ON PSYCHOLOGICAL INCAPACIW

A. Civil Status The marital relations between the spouses shall be

Consequently, both of the pafties are allowed to remarry, If the

used her erstwhile husband's surname/ she may resume using her maiden name and surname.

but the paramount consideration shall be the best interest of the

children.

B. Propefi Relations
Since the marriage was void/ no absolute community of propefi or conjugal paftnership of gains was established. The property relations between the parties will be governed by the rules on co-ownership.

When the child is below seven (7) years of age, custody shall be awarded to his/her mother unless there are compelling reasons to award custody to the father or another person. If the child is above seven (7) years of age, the couft shall\ake into consideration the choice of the child unless the chosen parent is considered unfit.

The propefties acquired by the parties while they lived together shall be owned by them in equal shares. Even if one of the parties did not pafticipate in the acquisition of any propefi but because his/her efforts consisted in the care and maintenance of the family and of the household, s/he is still entitled to an equal share.

Only properties acquired during cohabitation shall be owned

in

common. Incomes derived from their separate propefties are excluded. When one of the parties is in bad faith, his/her share shall be forfeited in favor of their common children or descendants. In the absence of children or descendants, such share shall belong to the innocent party.

C. Status of Children
Children conceived or born before the declaration of nullity of marriage are legitimate.

D. Custody of Children
The custody of minor children shall be awarded to the innocent spouse
41
'-E{lmE@-^

I.
SUPPORT

CONCEPT

support The concept underlying

t"k;';;r;;.J II.

"^Pllgttion their close relatives' atend to'ir'u *"riute of

i:.lh:

of

persons tD

WHAT IS INCLUDED

IN

SUPPORT

indispensable for: Support comprises everything

1.

sustenance/food; z. dwelling;
3. clothing;

4. medical attendance; pe rso n s e ntitled 5. ed ucati on of the :: l-", ^:' YL:l p'or"'sion' trade or vocation'

::;:#

;;

il;fi;;"o*u

?fi*

6. -'

beYond the age of maioriW; transportation shall i#uJ"

I going to and from

"*p"nses work' or to'and ftom Place of

ilI.
is one herself and her children Financial support to beset a r1if9 after

TO GIVE SUPPORT PERSOilS OBIJGED

that of the serious problems relationship severe her violent marital deciding to cases' a woma'n is many with her husband' tn unable to alone because she is
theY its distressful nature'

1. tfie

2. legitimate ascendants and 3. parents uno tt'"iii"s?ti;;;"-;il';" -

spousesi

. descendants; . --r^-+-.
und

' th" lesitimate and illt

i"i.r.i*'oi ti'ing :ffiffi :;'"'i :l ostaY ll jlft to l",';nil#"[,.?i":",i[ are forced

42

gitimate drildren of the latter; ar children and the legitimate 4. pareflts anO tneir"ifilg't'*ut" and iiugiti*"t" children of the latter; whether of full or half-blood' 5. legitimate

"

b'"fi;;;';i''''*"'

Brothers and sisters not legitimately related, whether of the full or half-blood, are likewise bound to suppott each other except when the need for support of the brother or sister, being of age, is due to a cause imputable to the claimant's fault or negligence.
Whenever two or more persons are obliged to give support, the liability shall devolve upon the following persons in the order herein provided:

to give support when urgently needed by the latter, any third person may furnish suppoft top the needy individual. And such person has the right to seek reimbursement from the person obliged to give support. This shall pafticularly apply when the parents of a minor unjustly refuse to suppoft or fail to give support to the child when
urgently needed.

the the 3. the 4. the

1.

2.

spouses; descendants in the nearest degree; ascendants in the nearest degree; brothers and sisters.

IV. PROPERTIES LIABLE FOR SUPPORT

A. Between legitimate ascendants and descendants whether legitimate or illegitimate; and brotherc and sisters, whether legitimately or illegitimately related:
Only the separate property of the person obliged to give support shall be answerable. in case such person has no separate propefi, the absolute community or conjugal partnership, if financially capable, shall advance the suppoft. This shall be deducted from the share of the spouse obliged to give support upon the liquidation of the absolute community or conjugal patnership.

When the obligation to give suppoft falls upon two or more persons/ the payment of the same shall be divided between them in proportion to the resources of each. When there are more than one person demanding support from the same person/ and the latter does not have sufficient means to satisfy

all claims, the order previously stated (under III above) shall

be

followed. However, if the persons claiming support should be the spouse and the child, the child shall be preferred over the spouse. Support furnished by a person not obliged to give it: When, without the knowledge of the person obliged to give support, it is given by a stranger, the latter shall have a right to claim the same from the former, unless it appears that she gave it without the intention of being reimbursed. When the person obliged to support another unjustly refuses or fails
43

B. Between the spouses and their children

During the proceedings for legal separation, annulment of marriage, the spouses and their children shall be suppofted from the propefties of the absolute community or conjugal paftnership. The obligation of mutual suppoft between the spouses ceases after final judgment is rendered granting the petition. However, in the case of legal separation, the court may order

the guilty spouse to give support to the innocent one from his
separate property.

The person obliged to give support shall have the option of

paying the allowance fixed or receiving and maintaining in the dwelling the person who has the right to receive support. the alternative cannot be availed of in case a moral or legal obstacle

V. AMOUNTOFSUPPORT
The amount of zupport that may be ordered by the coutt shall be in proportion to the resources or means of the giver and the necessities of the recipient. The amount of support may be reduced or increased propoftionately according to the reduction or increase of the necessities of the recipient and the resources of the giver. Contractual support (i.e. when the pafties enter into an extra-judicial

settlement) shall be subject to adjustment whenever modification is necessary due to changes of circumstances manifestly beyond the contemplation of the pafties.

VI.

WHEN SUPPORT IS DEMANDABTE

The obligation to give support shall be demandable from the time the person who has a right to receive the same needs it for maintenance,

but it shall not be paid except from the date of demand (whether judicial or extra-judicial). Payment shall be made within the first five (5) days

of

each

corresponding month. When the recipient dies, his or her heirs shall not be obliged to return what she has already received.
44

PARENTAL AUTHORITY

I.

CONCEPT

This duty includes caring for the person and

Parents have the natural right and duty to take care of their children. propefi of minor children.

For their paft, children have the duty to observe respect and reverence towards their parents. They are obliged to obey them as long as they are under their parental authority.

II.

PURPOSE OF AUTHORITY

The purpose of the law in granting parental authority are the following:

a. to care for
b.

and rear children for civic consciousness and efficiency; and to develop the moral, mental and physical character and wellbeing of children.

Parents shall be civilly liable for the injuries and damages caused by the acts and omissions of the minor children living in their company and under their parental authority. But they may avoid liability if they

The authority and responsibility of parents to their

exercised the proper diligence required under the particular

circumstances.

children and the obligation of children to their

parents are governed by the provisions of the Family

Code. The issue of violence within the domicile requires understanding of the scope and extent of this authority. The custody of children is one of the major issues that spouses need to address in case of their separation.
45

Parental authority and responsibility may not be renounced or transferred except in the cases authorized by law, such as those
enumerated below (See IV V IX, & XI).

III.

WHO EXERCISES PARENTAL AUTHORITY

A. Over legitimate children

The father and mother shalljointly exercise parental authority. In case of disagreement, the father's decision shall prevail unless there is a judicial order to the contrary.

seven (7) years ofage. Ifthe child is less than seven (7) years old, authority shall be exercised by the mother unless there are compelling reasons for granting the authority to another person.

C. In case of death, absence or unsuitability of the parents, the

surviving grandparent shall exercise substitute parental authortty.

D. In B. Over illegitimate children

Illegitimate children shall be under the parental authority of their mother. Under the law, the father has no authority over the child
although he may be granted visitation rights'

case there are several grandparents, the court will designate the person who shall exercise the substitute authority, according to the rules stated in No. 2, paragraph 2 above.

V. SUBSTITUTE AUTHORITY
A. In default of parents of judicially appointed g
the following pensons shall exercise substitute authority in the order indicated:
1.

IV.

CIRCUMSTANCES THAT MAY AFFECT PARENTAL AUTHORIW

A. In case of absence or death of either parent, the parent present shalt continue exercising parental authority.
Parental authority is not affected by the remarriage of the surviving spouse, unless the coutt appoints another person to be the guardian of the person or property of the children.

the surviving grandparent;

the oldest brother or sister, over twenty-one (21) years age, unless unfit or disqualified; 3. the child's actual custodian, over twenty-one (21) years age, unless unfit or disqualified;
2. 4.

heads of children's homes, orphanages, and sim

institutions (after summary Sudicial proceedings have conducted) in the case offoundlings, abandoned, or abused children.

B. In case of separation of the parents, the parent designated by the Couft shall exercise parcnt6l authority.
In making the designation, the Court shall take into account all relevant consideration especially the choice of the child over
46

B. Nature of liability
The parents, judicial guardians or the persons exercising substitute parental authority over the minor shall be subsidiarily liable.

Trial Court of the place where the child resides.

B. Summary Hearing
A summary hearing shall be conducted wherein the petitioner and the

child shall be heard. The child shall be entitled to the assistance of

VI.

SPECIAL PARENTAT AUTHORITY

counsel.

Individual or institutions with special parental authority:

schools; 2. school administrators;
1.

C. Judgment by the court

If, after trial, the couft finds that the petitioner is at fault, or when the circumstances so warrant, it may order the deprivation or suspension of parental authority.

3. teachers; and 4. individuals, organizations, or institutions engaged in child care.

Authority and responsibility shall apply to all authorized activities whether inside or outside the premises of the school.

The child shall be committed in entities or institutions engaged in childcare for not more than thity (30) days. The parent exercising
parental authority shall not interfere with the care of the child whenever

committed but shall provide for his or her suppoft.

Individuals and institutions given special parental authority are principally and solidarily liable for damages caused by the acts or omissions of the minor unless it is proven that they exercised the
proper diligence required under the pafticular circumstances.

Upon proper petition or at its own instance, the court may terminate the commitment of the child whenever just and proper.

VIII.
VII.
REMEDY AGAINST UNDISCIPLINED CHILDREN

EFFECT OF PARENTALAUTHORITY UPON THE PROPERTY OF THE CHILDREN

A. Filing of the Petition

The parents may petition the couft for an order providing for disciplinary measures over the child. The petition shall be filed in the Regional 47

A. Property of the child 1. 2.

those earned or acquired with the child's work or industry; those acquired through sale, bafter or other onerous title;

3.

those acquired by gratuitous title such as donations or inheritance;

IX.

TERMINATION OR DEPRIVATION OF PARENTAL AUTHORITY

4. fruits and income of the propefi 5. insurance proceeds.

B. Bond

of the child; and

A. Grounds for permanent termination of parental

death of the parents; of the child; 3. emancipation of the child (when the child reaches 18 years
1.

2. death

Where the value of the property or the annual income of the child exceeds P50,000, the parent concerned must furnish a bond not less than 10% of the value of the property or the annual income. If the value of the propefi or annual income does not exceed P50,000, parental authority may be exercised even without a bond.

4.

age); and subjecting the child or allowing the child

sexual abuse.

to be subjected

C. Uses for the childt propefi

Unless the title to the property or the deed of transfer provides otherwise, the property of the child shall be devoted exclusively to the child's:

B. Termination that may be revived by judgment

1. adoption of the child; 2. appointment of a general guardian; 3. judicial declaration of abandonment of the child; 4. final judgment of court divesting the party concerned of
tal authority; and

1. support; and 2. education.

The rights of the parents over the fruits and income of the child's
property shall be limited primarily to the child's support and secondarily

5. judicial

declaration of absence o incapacity of the person exerparental authority. cising

X. SUSPENSION OF PARENTALAUTHORIW

to the collective daily needs of the family.

a.
b.

c.
d.
48

conviction of the parent of a crime which carried with it penalty of civil interdiction; treating the child with excessive harshness or cruelty; giving the child corrupting orders, counsel or example; compelling the child to beg; and

e.

subjecting the child or allowing the child to be subjected to acts

petition for custody over the child.

The couft shall not separate a child below seven (7) years of age from his or her mother unless there are compelling reasons to do so. The best interest of the child shall be the paramount consideration but he court shall also inquire and take into account the choice of the child, should s/he be over seven (7) years old.

of lasciviousness.

XI.

REVOCATION OFTHE SUSPENSION OF PARENTAL AUTHORITY

filing a case for such purpose or in the same proceeding for the
suspension or termination; and a finding by the court that the cause for the suspension or termination has ceased and will not be repeated.

XII.

REMEDIES WHEN THE WOMAN CUSTODY OVER HER CHILD

IS

DEPRIVED OF THE

Habeas Corpus
objective of a petition for habeas corpus is to obtain a writ or an issued by the court directing the respondent to present in court body of the person detained at the time and place specified in the This petition may be filed if the rightful custody of the child is without due cause.

Petition for Custody

mother may also file a petition to obtain custody of her child. The of custody is likewise resolved in the decision of the court in for legal separation, annulment or declaration of nullity of . Even in the absence of these petitions and if neither parent inclined to file a similar petition, either of them may still file a
49

PROPERTY REIATIONS

Even though the rules on propefi relations have been changed by the Family Code, wherein both spouses have equal rights in the administration of their propefties, there are still provisions in the Code contending that, in case of conflicting decisions on

the administration and utilization of the propefties, the husband's decision shall prevail.

I.

PROPERTY REGIMES

The property relations between the spouses shall be governed by pre-nuptial agreement or, in its absence, by the provisions of the Code. The possible property regimes are the following:

a. Absolute communitY of ProPefi; b. Conjugal PartnershiP of gains;

c. Complete
One of the effects of marriage has something to do

with the acquisition and administration of the

properties. If before marriage the spouses did not agree that their properties will be separate, their properties will be under the so-called absolute community of propefi. Or, they may have agreed to form a conjugal partnership of gains' The

d. e.

separation of properties; Combination of the above regimes; and Any other regime (ex. dowry system)

II.

REQUISITES OF A VALID PRE-NUPTIAL AGREEMENT

administration of the properties under these

conditions will be shared by the spouses' In case of separation, the regime shall be dissolved, and

a. b.

Written;
Signed by the parties; Executed before the celebration of the marriage; Any modification must be in writing, signed by the parties executed before the celebration of marriage; Only the spouses are pafties to the agreement;

c.
d. e.
50

propefties will be partitioned by the spouses, in accordance with the provisions of the Family Code.

f.
g.
h.

The marriage was validly celebrated after the execution of the

agreement; The agreement was registered in the local civil registry in order to affect third persons; The agreement shall embrace all property owned by the spouses except those excluded by law; and It must not be contrary to law, momls, good customs, public policy or public order.

Under this regime, the spouses shall jointly own all the property they possessed before their marriage and acquired after the marriage, except those properties excluded by law. Upon the dissolution of the marriage, the net remainder of the properties shall be divided equally between the spouses and their heirs.

i.

A. Commencement of the community regime

The absolute community of propefi between spouses shall commence at the precise moment that the marriage is celebrated. Any stipulation, express or implied, for the commencement of the community regime at any other time shall be void.

EXAMPLES OF VOID AGREEMENTS

a. Provision

prohibiting the parties to marry another even after the marriage is dissolved; b. Provision stating that the parties may live separately; c. Provision stating that an unfaithful spouse shall pay a fine; d. Provision prohibiting a party from seeking separation despite the existence of legal grounds; e. Provision stating that the property of the spouses shall be administered by a third party; Provision stating that all properties of the wife shall go to the husband (or vice versa)

B. Properties constituting the community propefi

The community property shall consist of all the property owned by the spouses at the time of the celebration of the marriage or acquired
thereafter. Property acquired during the marriage is presumed to belong to the

f.

community, unless
therefrom.

it is proven that it

is one of those excluded

C. Propefties excluded from the community property

ABSOTUTE COMMUNITY OF PROPERTY

1.
the marriage settlements, the future spouses may agree upon the
of absolute community of property. In the absence of a marriage

or when the regime agreed upon is void, the system of of propefi shall govern.
51

2.

Property that was donated to or inherited by either spouse during the marriage, and the income from the property, unless it is expressly provided by the donor, testator or grantor, that they shall form paft of the community property; Property for personal and exclusive use of either spouse; how-