PHILIPPINE CIVIL LAW INTRODUCTION Tolentino, CIVIL Commentaries and Tolentino): CODE OF THE PHILIPPINES, Jurisprudence, Vol.

1 (hereinafter

Concepts of Law.-- The term law may be understood in 2 concepts: (1) in the general or abstract sense, and (2) in the specific or material sense. In the general sense, law is defined as the "science of moral rules, founded on the rational nature of man, w/c govern his free activity, for the realization of the individual and social ends, of a nature both demandable and reciprocal." (Sanchez Roman.) In the specific sense, it is defined as "a rule of conduct, just, obligatory, promulgated by legitimate authority, and of common observance and benefit." (ibid.) Foundation of Law.-- Law rests upon the concepts of order, co-existence, and liberty. Characteristics of Law.-- (1) it is a rule of human conduct; (2) promulgated by competent authority; (3) obligatory; and (4) of general observance. General Divisions of Law.-- Law in its most comprehensive sense has been divided into 2 general groups: divine law and human law. By divine law is meant that in w/c God himself is the legislator who has promulgated the law; by human law is meant that w/c is promulgated by man to regulate human relations. Human law is in turn divided into 2 main classes: general or public law and individual or private law. These in turn are sub-divided as follows: I. General or public law: (a) International law; (b) Constitutional law; (c) Administrative law; (d) Criminal law; (e) Religious law. II. Individual or private law: (a) Civil law; (b) Mercantile law; (c) Procedural law. Kinds of Specific Law.-- Law, in the specific sense, is generally classified into mandatory, prohibitory, and permissive . In one sense, every law commands, bec. it is obligatory; but it commands in 3 different ways: (1) it commands that something be done, in w/c case it is mandatory; (2) it commands that something should not be done, in w/c case it is prohibitory; and (3) it commands that what it permits to be done should be tolerated or respected, in w/c case it is permissive. Codification of Laws.-- A code is a collection of laws of the same kind; a body of legal provisions referring to a particular branch of law. Reasons for codification: (1) the necessity of simplifying and arranging the many juridical rules scattered in several laws and customs; (2) the necessity of unifying various legislations in the same country; and (3) the necessity of introducing reforms occasioned by social changes.

Prof. Ruben Balane (hereinafter Balane): According to the Code Commission, 25% of the articles in the NCC are exact reproductions of the Spanish Civil Code (OCC); 32% were modified or amended. These comprised 57% of the Code on Persons, ObliCon, Property and Succession. Forty-three per cent (43%) are new. These deal w/ Special Contracts, Quieting of title, Trusts, Prescription and some parts in Torts. The accuracy of these figures are doutful. There are two great models of a modern civil code, the French Civil Code (Code Napoleon) and the German Civil Code {BGB or Buogeoliches Gesetzbuch [Beuo w/c means "town," "that w/c has reference to a citizen;" buch w/c means "book;" BGB means "a lawbook governing citizens."] Changes from the Old Civil Code in the New Civil Code: 1. Creation of new rights.-- E.g., in the case of spurious children who were given rights for the first time (successional right, right of support, etc.) New provisions on Human Relations (Articles 33-36), Reformation of Instruments (Art. 1359), two additional quasi-contracts (Art. 2174 and 2175), moral and nominal damages (Arts. 2217 and 2221) 2. Adoption of new solutions like Art. 461 (change in the river course), Art. 1256 (consignation), Art. 1658 (lease.) 3. Clarification of old provisions like Art. 275 (Legitimation), Art. 992 (illegitimate children's right to inherit ab intestato), Art. 1410 (void contracts) 4. Omission of certain subjects, e.g., dowry w/c is very western. In the Phils., we have the opposite of dowry, the bigay-kaya. These contracts were abolished- censos, usus and habitation (subsumed in easement and lease.) Is the New Civil Code better than the Old?-- Yes. As a whole. An example of an improvement in the NCC is in defective contracts. The NCC classifies them into rescissible, voidable, unenforceable and void. Defects in the New Civil Code.-- There is defect in the basic structure, e.g., in modes of acquiring ownership. Six are given a separate title except Tradition w/c is found in the provisions on Sales. Another defect is on the vice of consent found in the title of Contracts. It should have been in the preliminary title bec. the same is also applicable to marriage, wills-- all juridical transactions. The same is also true w/ respect to the provisions on degrees of relationship. Why limit it to succession. It should be placed in the preliminary title. Other defects are the treatment of donation as an 'act' instead of a 'contract,' w/c is what is really is; defect in judicious borrowings. Definition of Civil Law.-- Civil law has been defined as "the mass of precepts w/c determine and regulate the relations of assistance, authority and obedience among the members of a family, and those w/c exist among members of a society for the protection of private interests." (Sanchez Roman.)

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Notes, Cases and Commentaries on Persons and Family Relation action for replevin for the recovery of carabaos. The case was dismissed for lack of cause of action. Hence, this appeal Art. 1. This Act shall be known as the "Civil Code under R 45 of the ROC. of the Philippines." HELD: We hold that said EO should not be enforced against Tolentino: Civil Code defined.-- A civil code is a collection the Pesigans on 4/2/82 bec it is a penal regulation (the of laws w/c regulate the private relations of the members of confiscation and forfeiture provision or sanction makes EO civil society, determining their respective rights and 626-A a penal statute) published more than 2 mos. later in obligations, w/ reference to persons, things, and civil acts. the OG dated 6/14/82. It became effective only 15 days thereafter as provided in Art. 2, NCC and Sec. 11 of the Sources of the Civil Code: Revised Admin. Code. (1) The Civil Code of 1889; The word "laws" in Art. 2 includes circulars and (2) The codes, laws, and judicial decisions, as well regulations w/c prescribe penalties. Publication is necessary as the works of jurists of other countries, such as Spain, the to apprise the public of the contents of the regulations and various states of the American Union, etc.; make the said penalties binding on the persons affected (3) Doctrines laid down by the SC of the Phils.; thereby. (4) Filipino customs and traditions; (5) Philippine statutes, such as the Marriage Law, the Divorce Law, the Code of Civ. Proc. and the Rules of PEOPLE V. VERIDIANO II [132 s 523] - F: Private resp. Court. Benito Go Bio, Jr. was charged w/ violation of BP 22. Before (6) The Code Commission itself he could be arraigned, Go Bio, Jr. filed a Motion to Quash the (7) Works of jurists and commentators of various information on the ground that the info. did not charge an nations (added by Jurado, CIVIL LAW REVIEWER.) offense, pointing out that at the time of the alleged commission of the offense, w/c was about the 2nd week of May '79 (date of issue of the check), BP 22 has not yet taken Art. 2. Laws shall take effect after fifteen days effect. The prosecution opposed the motion contending, following the completion of their publication either in the among others, that the date of the dishonor of the check, Official Gazette or in a newspaper of general circulation 9/26/79, is the date of the commission of the offense. in the Philippines, unless it is otherwise provided. (as Resolving the motion, the court granted the same and held amended by EO 200.) that BP 22 cannot be given a retroactive effect to apply to the case. Hence, this petition for review on certiorari, petitioner Balane: The Civil Code took effect on August 30, 1950 submitting for review respondent Judge's dismissal of the according to the case of Lara v. del Rosario, one year after its criminal case. publication, reckoned from the date of actual release HELD: When private resp. Go Bio, Jr. committed the act BAVIERA CASE: complained of in May '79 (at the time he issued the check-the law penalizes the act of making or drawing and issuance UMALI V. ESTANISLAO [209 S 446 (1992)] - Reiterating of a bouncing check and not only the fact of its dishonor), Tanada v. Tuvera, The clause "unless it is otherwise there was no law penalizing such act. Following the special provided" refers to the date of effectivity and not to the provision of BP 22, it became effective only on 6/29/79. The requirement of publication itself which cannot in any event be copy editor of the OG made a certification that the penal omitted. This clause does not mean that the legislator may statute in question was made public only on 6/14/79 and not make the law effective immediately upon approval, or on any on the printed date 4/9/79. Differently stated, 6/14/79 was other date without its previous publication. the date of publication of BP 22. Before the public may be Publication is indispensable in every case, but the bound by its contents especially its penal provisions, the law legislature may in its discretion provide that the usual fifteen must be published and the people officially informed of its (15) day period shall be shortened or extended. contents. For, it a statute had not been published before its viol., then, in the eyes of the law, there was no such law to be BALANE CASES: violated and, consequently the accused could not have committed the alleged crime. PESIGAN V. ANGELES [129 S 174] - F: Anselmo and The effectivity clause of BP 22 states that "This Act Marcelo Pesigan, carabao dealers, transported in an Isuzu 10shall take effect 15 days after publication in the OG." The wheeler truck in the evening of 4/2/82 26 carabaos and a calf term "publication" in such clause should be given the from Sipocot, Camarines Sur w/ P. Garcia, Batangas as ordinary accepted meaning, i.e., to make known to the people destination. Inspite of the permit to transport and the health in general. If the legislature had intended to make the certificate and 3 other certificates of inspection, the carabaos, printed date of issue of the OG as the point of reference, then while passing at Basud, Camarines Norte, it could have so stated in the special effectivity provision of were confiscated by the town's police station commander and BP 22. the provincial veterinarian. The confiscation was based on EO 626-A w/c provided for the confiscation and forfeiture by the government of carabaos transported from one province to TANADA V. TUVERA [136 S 27] - F: Invoking the another. The Pesigans filed against the two officials an people's right to be informed on matters of public concern, a PAGE 2

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Notes, Cases and Commentaries on Persons and Family Relation right recognized in the Constitution, as well as the principle It is not correct to say that under the disputed clause that laws to be valid and enforceable must be published in the publication may be dispensed w/ altogether. The reason is OG or otherwise effectively promulgated, petitioners seek a that such omission would offend due process insofar as it writ of mandamus to compel respondent public officials to would deny the public knowledge of the laws that are publish, and/or cause the publication in the OG of various supposed to govern it. PDs, LOIs, general orders, proclamations, EOs, letters of Conclusive presumption of knowledge of the law.-implementation and administrative orders. Respondents The conclusive presumption that every person knows the law contend, among others that publication in the OG is not a presupposes that the law has been published if the sine qua non requirement for the presumption is to have any legal justification at all. effectivity of laws where the laws themselves provide for their The term laws should refer to all laws and not only to own effectivity dates. It is thus submitted that since the those of general application, for strictly speaking all laws presidential issuances in question contain special provisions relate to the people in general albeit there are some that do as to the date they are to take effect, publication in the OG is not apply to them directly. indispensable for their effectivity. The point stressed is RULE: All statutes, including those of local anchored on Art. 2 of NCC. application and private laws, shall be published as a condition for their effectivity, w/c shall begin 15 days after publication HELD: The interpretation given by respondent is in accord unless a different effectivity date is fixed by the legislature. w/ this Court's construction of said article. In a long line of Coverage.-- Covered by this rule are PDs and EOs decisions, this Court has ruled that publication in the OG is promulgated by the Pres. in the exercise of legislative powers. necessary in those cases where the legislation itself does not Administrative rules and regulations must also be published if provide for its effectivity date-- for then the date of their purpose is to enforce or implement existing law publication is material for determining its date of effectivity, pursuant to a valid delegation. w/c is the 15th day following its publication-- but not when Interpretative regulations and those merely internal the law itself provides for the date when it goes into effect. in nature, i.e., regulating only the personnel of the Respondent's argument, however, is logically correct administrative agency and not the public, need not be only insofar as it equates the effectivity of laws w/ the fact of published. Neither is publication required of the so-called publication. Considered in the light of other statutes letters of instructions issued by administrative superiors applicable to the issue at hand, the conclusion is easily concerning the rules or guidelines to be followed by their reached that said Art. 2 does not preclude the requirement of subordinates in the performance of their duties. publication in the OG, even if the law itself provides for the Publication must be in full or it is no publication at date of its effectivity. all since its purpose is to inform the public of the contents of xxx The publication of all presidential issuances "of the laws. The mere mention of the number of the PD, the a public nature" or "of general applicability" is mandated by title of such decree, its whereabouts, the supposed date of law. The clear object of the law is to give the general public effectivity, and in a mere supplement of the OG cannot satisfy adequate notice of the various laws w/c are to regulate their the publication requirement. This is not even substantial actions and conduct as citizens. W/o such notice and compliance. publication, there would be no basis for the application of the maxim "ignorantia legis non excusat." It would be the height Balane: General application of the provision: The law takes of injustice to punish or otherwise burden a citizen for the effect on the 16th day. transgression of a law of w/c he had no notice whatsoever, not To recapitulate the cases: even a constructive one. It is needless to say that the General rule: It must be published either in the OG publication of presidential issuances "of a public nature" or or in a newspaper of gen. circ. "of general applicability" is a requirement of due process. It Exception: The law itself may provide for a is a rule of law that before a person may be bound by law, he different mode of publication, either as to form (published in must first be officially and specifically informed of its some other way provided it is a reasonable mode of contents. publication) or effectivity date (a reasonable period from publication; cannot be immediately upon approval). This is so bec. Art. 2 is only a law. (unassigned case) TANADA V. TUVERA [146 S 446] - xxx [T]he clause "unless it is otherwise provided" refers to the date of effectivity and not to the requirement of publication itself, w/c cannot in any event be omitted. This clause does not mean that the legislature may make the law effective immediately upon approval, or on any other date, w/o its previous publication. Publication is indispensable in every case, but the legislature may in its discretion provide that the usual 15-day period shall be shortened or extended. PAGE 3 The requirement of publication applies to all laws. Publication in the OG is not an absolute requirement (J. Feliciano, concurring in Tanada v. Tuvera, Motion for Reconsideration.) Rationale.-- The rationale for requiring publication is to give notice to the public in determining their actions so as to conform to the law. "How can I follow something the existence of which I do not know?" Q: Is a law granting citizenship required to be published? A: SC: Yes. Said the high court:

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Notes, Cases and Commentaries on Persons and Family Relation "The term laws should refer to all the legal consequences of his conduct; but not ignorance of laws and not only to those of general law, for ignorantia juris neminem excusat. application, for strictly speaking all laws relate to the people in general albeit there Difficult Question of Law.-- In specific instances provided are some that do not apply to them directly. by law, mistake as to difficult legal questions has been given An example is a law granting citizenship the same effect as a mistake of fact, e.g., Art. 526, par. 3 to a particular individual, like a which provides: "Mistake upon a doubtful or difficult relative of Pres. Marcos who was decreed question lf law may be the basis of good faith." instant naturalization. It surely cannot be said that such a law does not affect the Balane: Art. 3 creates a conclusive presumption w/c in some public although it unquestionably does not instances may be unreasonable or harsh. But the alternative apply directly to the people. The subject of is worse, w/c is anarchy. Bec. the law realizes its severity, it such law is a matter of public interest w/c is sometimes mitigated as in the following provisions any member of the body politic may question in the political forums, or, if he is Art. 526, par. 3, quoted above. a proper party, even in the courts of justice. In fact, a law w/o any bearing on the public Art. 1334. Mutual error as to the legal effect of an would be invalid as an intrusion of privacy agreement when the real purpose of the parties is frustrated, or a class legislation or as an ultra vires act may vitiate consent. of the legislature." (Tanada v. Tuvera, 146 S 446, 453.) Art. 2155. Payment by reason of a mistake in the construction or application of a diffiicult question of law may Balane: I disagree w/ the SC. That portion of the come within the scope of the preceding article. decision of the SC in Tanada is only an obiter. Art. 2154. If something is received when there is no right to demand it Art. 3. Ignorance of the law excuses no one from and it was unduly delivered through compliance therewith . mistake, the obligation to return it arises. Tolentino: Reasons for Presumption of Knowledge of Law.-- (1) If laws will not be binding until they are actually known, then social life will be impossible, bec. most laws cannot be enforced due to their being unknown to many; (2) it is absurd to absolve those who do not know the law and increase the obligations of those who know it; (3) it is almost impossible to prove the contrary, when a person claims ignorance of the law; (4) in our conscience, we carry norms of right and wrong, and a sense of duty, so that our reason indicates many times what we have to do; and in more complicated juridical relations, there are lawyers who should be consulted. What Laws Covered.-- Philippine laws are covered. There is no conclusive presumption of knowledge of foreign laws. Even our courts cannot take judicial notice of them. Ignorance of a foreign law will not be a mistake of law but a mistake of fact. And with respect to local laws, the article is limited to mandatory and prohibitory laws. It does not include those w/c are merely permissive. (Manresa.) No Exceptions Admitted.-- The rule is based on public interest and is designed precisely to avoid abuse through allegation that the law has not come to the knowledge of a party. But it has been held by our CA that the rule should not be applied w/ equal force to minors who, due to their lack of intelligence, must be treated differently. (Peo. v. Navarro, 51 OG 4062.) Mistake of Fact.-- Ignorance may either be of law or of fact. Ignorance of fact (ignorantia facti) may excuse a party from PAGE 4 BALANE CASE: KASILAG V. RODRIGUEZ [ 69 P 217] - F: Responds, Rafaela Rodriguez, et al., children and heirs of the deceased Emiliana Ambrosio, commenced a civil case to recover from the petitioner the possession of the land and its improvements granted by way of homestead to Emiliana Ambrosio (EA). The parties entered into a contract of mortgage of the improvements on the land acquired as homestead to secure the payment of the indebtedness for P1,000 plus interest. In clause V, the parties stipulated that EA was to pay, w/in 4 1/2 yrs, the debt w/ interest thereon, in w/c event the mortgage would not have any effect; in clause VI, the parties agreed that the tax on the land and its improvements, during the existence of the mortgage, should be paid by the owner of the land; in clause VII, it was covenanted that w/in 30 days from the date of the contract, the owner of the land would file a motion in the CFI of Bataan asking that cert. of title no. 325 be cancelled and that in lieu thereof another be issued under the provisions of RA 496; in clause VIII the parties agreed that should EA fail to redeem the mortgage w/in the stipulated period of 4 1/2 yrs, she would execute an absolute deed of sale of the land in favor of the mortgagee, the petitioner, for the same amount of the loan including unpaid interest; and in clause IX it was stipulated that in case the motion to be presented under clause VII should be disapproved by the CFI-Bataan, the contract of sale of sale would automatically become void and the mortgage would subsist in all its force. One year after the execution of the mortgage deed, it came to pass that EA was unable to pay the stipulated interest as well as the tax on the land and its improvements. For this

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Notes, Cases and Commentaries on Persons and Family Relation reason, she and the petitioner entered into another verbal It is one w/c creates a new obligation and imposes a contract whereby she conveyed to the latter the possession of new duty, or attaches a new disability, in respect to the land on condition that the latter would not collect the transations or considerations already past. (Balane quoting interest on the loan, would attend to the payment of the land Tolentino.) tax, would benefit by the fruits of the land, and would introduce improvements thereon. Reason for the Article.-- A law that has not yet become effective cannot be considered as conclusively known by the HELD: The possession by the petitioner and his people. To make a law binding even before it has taken effect receipts of the fruits of the land, considered as integral may lead to arbitrary exercise of legislative power. elements of the contract of antichresis, are illegal and void agreements, bec. the such contract is a lien and as such is Exceptions to Rule: expressly prohibited by Sec 116 of Act No. 2874, as amended. The CA held that petitioner acted In BF in taking (1) When the law itself so expressly provides.-possession of the land bec. he knew that the contract he made This has two exceptions: (a) when the retroactivity of a w/ EA was an absolute sale, and further, that the latter could penal statute will make it an ex post facto law, and (2) when not sell the land bec. it is prohibited by Sec. 116 of Act 2874. the retroactive effect of the statute will constitute an xxx [A] person is deemed a possessor in BF when impairment of the obligation of contract. he knows that there is a flaw in his title or in the manner of (2) In case of Penal statutes.-- Penal laws shall its acquisition, by w/c it is invalidated. have retroactive effect insofar as they favor the accused who is not a habitual criminal, even though at the time of the The question to be answered is w/n the petitioner enactment of such laws final sentence has already been should be deemed a possessor in GF bec. he was unaware of rendered. (Art. 22, RPC.) any flaw in his title or in the manner of its acquisition by w/c (3) In case of Remedial statutes.-- Remedial it is invalidated. Ignorance of the flaw is the keynote of the statutes are those w/c refer to the method of enforcing rights rule. From the facts as found by the CA, we can neither or of obtaining redress of their invasion. deduce nor presume that the petitioner was aware of a flaw in (4) In case of Curative statutes.-- Curative statutes his title or in the manner of its acquisition, aside from the are those w/c undertake to cure errors and irregularities, prohibition contained in Sec. 116. This being the case, the thereby validating juridical or administrative proceedings, question is w/n GF may be premised upon ignorance of the acts of public officers, or private deeds and contracts w/c laws. otherwise would not produce their intended consequences by reason of some statutory disability or the failure to comply w/ Gross and inexcusable ignorance of the law may not come technical requirement. But these statutes cannot violate be the basis of GF but excusable ignorance may be such constitutional provisions, nor destroy vested rights of a 3rd basis (if it is based upon ignorance of a fact.) It is a fact that person. They cannot affect a judgment that has become final. the petitioner is not conversant w/ the laws bec. he is not a (5) In case of laws interpreting others.-- These are lawyer. In accepting the mortgage of the improvements he laws w/c are intended to clarify doubts or interpret an existing proceeded on the well-grounded belief that he was not law. violating the prohibition regarding the alienation of the land. (6) In case of laws creating new rights.-- The In taking possession thereof and in consenting to receive its principle that a new law shall not have retroactive effect only fruits, he did not know, as clearly as a jurist does, that the governs rights arising from acts done under the rule of the possession and enjoyment of the fruits are attributes of the former law; but if a right be declared for the first time by a contract of antichresis and that the latter, as a lien, was new law it shall take effect from the time of such declaration, prohibited by Sec. 116. Thus, as to the petitioner, his even though it has arisen from acts subject to the former laws, ignorance of the provisions of sec. 116 is excusable and may provided that it does not prejudice another acquired right of be the basis of GF. the same origin. The petitioners being in GF, the respondents may (7) If the law is of an emergency measure and elect to have the improvements introduced by the petitioner authorized by the police power of the State. (added by by paying the latter the value thereof, P3,000, or to compel Balane.) the petitioner to buy and have the land where the improvements or plants are found, by paying them its market Art. 5. Acts executed against the provisions of value to be fixed by the court of origin, upon hearing the mandatory or prohibitory laws shall be void, except when parties. the law itself authorizes their validity. Art. 4. Laws shall have no retroactive effect, unless the contrary is provided. Tolentino: Concept of Retroactive Law.-- A retroactive law is one intended to affect transactions w/ occurred, or rights w/c accrued, before it became operative, and w/c ascribes to them effects not inherent in their nature, in view of the law in force at the time of their occurrence. PAGE 5 Tolentino: Mandatory and Directory Laws.-- Directory laws are those provisions which are mere matter of form, or w/c are not material, do not affect any substantial right, and do not relate to the essence of the thing to be done, so that compliance is a matter of convenience rather than substance. Mandatory laws are statutory provisions w/c relate to matters of substance, affect substantial rights and are the very essence of the thing required to be done.

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Notes, Cases and Commentaries on Persons and Family Relation Balane: A mandatory law is one w/c prescribes some element a stipulation pour atrui, the creditor cannot waive the as a requirement, e.g., Art. 804 w/c requires that a will must stipulation if favor of a third person. be in writing. A prohibitory law is one w/c forbids something, e.g., Elements of a Valid Waiver: Art. 818 w/c forbids joint wills. (1) Existence of a right; (2) Knowledge of existence thereof; Balane quoting Jurado: (3) An intention to relinquish the right (implied in Exceptions to the above provision. this is the capacity to dispose of the right.) (Balane quoting 1. When the law itself authorizes its validity.-- "Law" here Herrera v. Borromeo, 152 S 171.) refers to the juridical order in its totality. 2. Where the law itself authorizes its validity, but punishes Tolentino: The renunciation must be made in a clear and the violator, e.g., where the marriage was solemnized by a unequivocal manner. The formality required by law for such person who does not have legal authority, but the party or renunciation, if any, should be followed; if no particular parties believing in GF, that such person has authority to do formality is required, the renunciation may even be tacit, so, then the marriage is valid but the person who solemnized provided the intent to renounce can be clearly established. the same shall be criminally liable 3. Where the law merely makes the act voidable, e.g., a Scope of Waiver.-- The doctrine of waiver is generally marriage celebrated through violence or intimidation or applicable to all rights and privileges to w/c a person is physical incapacity or fraud is valid until it is annuled. legally entitled, w/n secured by contract, conferred by statute, 4. Where the law declares the act as void, but recognizes or guaranteed by the Consti., provided such rights and legal effects arising from it, e.g., children born of void privileges rest in the individual and are intended for his sole marriage are classified as illegitimate children entitled to the benefit. rights in Art. 176, FC. Waiver of Obligations.-- Generally, obligations cannot be renounced. But a person may exempt himself from an Art. 6. Rights may be waived, unless the waiver is obligation w/c is inherent in a right, upon the renunciation of contrary to law, public order, public policy, morals, or such right. For example, see Art. 628. good customs, or prejudicial to a third person with a right recognized by law. Renunciation of Real Rights.-- According to Valverde, while the renunciation of a personal right requires the Tolentino: Elements of Right.-- Every right has 3 elements: consent of the debtor (as in case of remission or condonation) (1) the subjects, (2) the object, and (3) the efficient cause. the renunciation of a real right is unilateral and depends upon (1) The subjects of rights are persons; rights exist the exclusive will of the owner of the right. only in favor of persons. There are 2 kinds of subjects: (a) the active subject, who is entitled to demand the enforcement of the right; and (b) the passive subject, who is duty-bound to PEOPLE V. DONATO [198 S 130 (1991)] - The doctrine suffer its enforcement. of waiver extends to the rights and privileges of any (2) Things and services constitute the object of character, and since the word "waiver" covers any rights. conceivable right, it is the general rule that a person may (3) The efficient cause is the fact that gives rise to waive any matter which affects his property, and any the legal relation. alienable right or privilege of which he is the owner or which belongs to him or to which he is legally entitled whether Kinds of Rights.-- Rights may be classified into political and secured by contract, conferred civil; the former include those referring to the participation of persons in the gov't of the State, while the latter include all with statute, or guaranteed by constitution, provided such others. Civil rights may be further classified into: The rights rights and privileges do not infringe on the rights of others, of personality, family rights and the patrimonial rights. and further provided the waiver of the right or privilege is not The rights to personality and family rights are not forbidden by law, and does not contravene public policy. subject to waiver; but patrimonial rights can generally be Rights guaranteed to one accused of a crime fall waived. naturally into two classes: (a) Those in which the state, as well as the accused, is interested, and (b) those which are Renunciation or Waiver.-- Waiver is defined as the personal to the accused, which are in the nature of personal relinquishment of a known right with both knowledge of its privileges. Those of the first class cannot be waived, those of existence and an intention to relinquish it. Voluntary choice the second may be. (Commonwealth v. Petrillo). is the essence of waiver. This Court has recognized waivers of constitutional rights such as the rights against unreasonable searches and Balane: Exceptions to the Rule that Rights can be seizures, the right to counsel and to remain silent, and the waived.-- (1) If the waiver is contrary to one of the 5 right to be heard. considerations (law, public order, public policy, morals or The right to bail is another of the constitutional good customs), e.g., you cannot waive future support bec. it is rights which can be waived. It is a right personal to the against the law and public policy; (2) if the waiver would be accused and whose waiver would not be contrary to law, prejudicial to a 3rd party w/ a right recognize by law, e.g., in PAGE 6

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Notes, Cases and Commentaries on Persons and Family Relation public order, morals or good customs, or prejudicial to a third Governor Leviste. In 1965, accused was charged with illegal person with a right recognized by law. possession of firearms. The SC held that where at the time of his appointment, People v. Macarandang (1959) was applicable, which held that secret agents were exempt from Art. 7. Laws are repealed only by subsequent the license requirement, and later People v. Mapa (1967) was ones, and their violation or non-observance shall not be decided, the earlier case should be held applicable. excused by disuse, or custom or practice to the contrary. When the courts declare a law to be inconsistent HELD: Art. 8 of the Civil Code decrees that judicial with the Constitution, the former shall be void and the decisions applying or interpreting the laws or the Constitution latter shall govern. form part of this jurisdiction's legal system. These decisions, Administrative or executive acts, orders and although in themselves not law, constitute evidence of what regulations shall be valid only when they are not contrary the laws mean. The application or interpretation placed by to the laws or the Constitution. the courts upon a law is part of the law as of the date of the enactment of the said law since the Court's application or Balane: Leges posteriores priores contrarias abrogant. interpretation merely establishes the contemporaneous legislative intent that the construed law purports to carry into Tolentino: Reason for the Article.-- Since laws are effect. promulgated by competent authority of the State, they can A new doctrine abrogating an old rule operates cease to have effect only through the will of the State. prospectively and should not adversely affect those favored by the old rule. Repeal of Laws.-- There are 2 kinds of repeal of a law: (1) express or declared repeal, contained in a special provision of a subsequent law, and (2) implied or tacit repeal, w/c takes PEOPLE V. PINUILA [55 O.G. 23 p. 4228 (1958)] - Where place when the provisions of the subsequent law are accused who were charged with murder, filed a motion to incompatible or inconsistent w/ those of an earlier law. quash on the ground of lack of jurisdiction, which the lower court granted, and the government, following, the doctrine of Requisites of Implied Repeals: (1) the laws cover the same People v. Salico which held that an appeal by the government subject matter, and (2) the latter is repugnant to the earlier. does not place accused in double jeopardy, this interpretation, though later abandoned, must be held applicable to accused, Repeal of Repealing Law.-- When a law w/c expressly and they cannot invoke the defense of double jeopardy. repeals a prior law is itself repealed, the law first repealed People v. Salico has long become final and shall not be revived unless expressly so provided. But if the conclusive and has become the law of the case. It may be prior law was repealed, not expressly but by implication, the erroneous, judged by the law on double jeopardy as recently repeal of the repealing law will revive the prior law, unless interpreted by the SC. Even so, it may not be disturbed and the language of the last law provides otherwise. modified. The SC's recent interpretation of the law may be applied to new cases, but certainly not to an old one finally Art. 8. Judicial decisions applying or interpreting and conclusively determined. the laws or the Constitution shall form a part of the legal "Law of the case has been defined as the opinion system of the Philippines. delivered on a former appeal. More specifically, it means that whatever is once irrevocably established as the controlling Balane: This is a common law principle. This shows that legal rule of decision between the same parties in the same our New Civil Code is not a full-blooded Civil Law scion. case continues to be the law of the case, WHETHER CORRECT ON GENERAL PRINCIPLES OR NOT, so long Tolentino: Decisions not Source of Law.-- Jurisprudence, as the facts on which such decision was predicated continue in our system of gov't, cannot be considered as an to be the facts of the case before the court." [21 C.J.S. 330] independent source of law; it cannot create law. But the "It may be stated that as a rule of general Court's interpretation of a statute constitutes part of the law as application, where the evidence on a second or succeeding of the date it was originally passed, since the construction appeal is substantially the same as that on the first or merely establishes contemporaneous legislative intent that the preceding appeal, all matters, questions, points or issues interpreted law carried into effect. adjudicated on the prior appeal are the law of the case on all subsequent appeals and will not be reconsidered or Doctrine of stare decisis.-- The doctrine of stare decisis is readjudicated therein." based on the principle that once a question of law has been The rule is founded on the policy of ending examined and decided, it should be deemed settled and closed litigation, and to be necessary to enable an appellate court to to further argument. The doctrine, however, is flexible; so, perform its duties satisfactorily and effectively. that when, in the light of changing conditions, a rule has ceased to be of benefit and use to society, the courts may rightly depart from it. Art. 9. No judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws. PEOPLE V. LICERA [65 S 270 (1975)] - F: In 1961, accused was granted an appointment as secret agent of PAGE 7

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Notes, Cases and Commentaries on Persons and Family Relation Balane: In a situation contemplated by this Art., the judge will be guided by customs and principles of right and justice. The defect of this article is that the Code Art. 11. Customs which are contrary to law, Commission omitted the second paragraph of Art. 6 of the public order or public policy shall not be countenanced. OCC, from w/c the provision came w/c provided that "if there is not law exactly applicable xxx the customs of the place Balane: Custom can be applied suppletorily only if custom is shall be applied, and in default thereof, the general principles not contrary to any law. of law. But this is not completely abrogated bec. of Art. 10 and 11. Art. 12. A custom must be proved as a fact, Tolentino: Applicability of Article.-- This article does not according to the rules of evidence. apply to criminal prosecutions, bec. when there is no law punishing an act, the case must be dismissed, however, BALANE CASE: reprehensible the act may seem to the judge. YAO KEE V. SY-GONZALES [167 S 737] - F: Sy-Kiat, Obscurity or Deficiency of Law.-- If the law is vague or a Chinese national, died in 1977 in Kaloocan City, where he obscure, the court should clarify it in the light of the rules of was residing, leaving behind substantial real and personal statutory construction; it is silent or insufficient, the court properties here in the Phils. Petition for letters of should fill the deficiency by resorting to customs or general administration filed by his natural children, was opposed on principles of law. the ground that Sy Kiat was legally married to Yao Kee, in Fookien, China on 1/13/31 and that the oppositors are the Concept of Customs.-- Custom may be defined as the legitimate children. The probate court rendered judgment in juridical rule w/c results from a constant and continued favor of the oppositors; this was modified and set aside by the uniform practice by the members of a social community, w/ CA w/c held that both sets of children were acknowledged respect to a particular state of facts, and observed w/ a natural children. Both parties moved for partial conviction that it is juridically obligatory. reconsideration. Requisites of Custom.-- (1) plurality of acts, or various resolutions of a juridical question raised repeatedly in life; (2) uniformity, or identity of the acts or various solutions to the juridical questions; (3) general practice by the great mass of the social group; (4) continued performance of these acts for a long period of time; (5) general conviction that the practice corresponds to a juridical necessity or that it is obligatory; and (6) the practice must not be contrary to law, morals or public order. Custom distinguished from Law.-- As to origin, custom comes from the society, while law comes from the governmental power of the State; the former is a spontaneous, while the latter is a conscious creation As to form, custom is tacit, being manifested in acts or usages, while law is express, manifested in solemn and official form. The former is unwritten law, the latter is written law. What Custom Applied.-- When the place where the court is located and the domicile of the parties are different, and each place has a different custom, it is to be presumed that they knew the custom of their domicile and not that of the court's location. If the domiciles of the parties are different and they have different customs, Manresa believes that there is no reason for making a preference, and the matter should be treated as if there is no custom. Sanchez Roman sustains the view, however, that in the absence of reasons for preference, the general rule should be to apply the custom of the place for the performance or consummation of the juridical act. Art. 10. In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail. PAGE 8 HELD: For failure to prove the foreign law or custom, and consequently, the validity of the marriage in accordance w/ said law or custom, the marriage between Yao Kee and Sy Kiat cannot be recognized in this jurisdiction. In the case at bar, petitioners did not present any competent evidence relative to the law and customs of China on marriage. The testimonies of Yao and Gan Ching cannot be considered as proof of China's law or custom on marriage not only bec. they are self-serving evidence, but more importantly, there is no showing that they are competent to testify on the subject matter. Custom is defined as "a rule of conduct formed by repetition of acts, uniformly observed (practiced) as a social rule, legally binding and obligatory." The law requires that "a custom must be proved as a fact, according to the rules of evidence." On this score the Court had occasion to state that "a local custom as a source of right can not be considered by a court of justice unless such custom is properly established by competent evidence like any other fact." The same evidence, if not one of a higher degree, should be required of a foreign custom. Art. 13. When the laws speaks of years, months, days or nights, it shall be understood that years are of three hundred sixty-five days each; months, of thirty days; days of twenty-four hours; and nights from sunset to sunrise. If months are designated by their name, they shall be computed by the number of days which they respectively have. In computing a period, the first day shall be excluded, and the last day included.

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Notes, Cases and Commentaries on Persons and Family Relation Balane: Art. 13 has been superseded by Sec. 31, Book I of appeal having been taken therefrom. The issue is thus EO 292 (Administrative Code of 1987) w/c provides that confined to the date on w/c the 10 yrs from 12/21/55 expired. Pltff alleges that it was 12/21/65, but appellee maintains Sec. 31. Legal Periods.-- "Year" shall be otherwise, bec. :when the law speaks of years xxx it shall be understood to be twelve (12) calendar months; "months" understood that years are of 365 days each"-- and, in 1960 of thirty (30) days, unless it refers to a specific calendar and 1964 being leap years, so that 10 yrs of 365 days each, or month in which case it shall be computed according to the an aggregate of 3650 days, from 12/21/55, expired on number of days the specific month contains; "day," to a 12/19/65. day of twenty four (24) hours; and "nights," from sunset Pltff.-appellant further insists that there is no to sunrise. question that when it is not a leap year, 12/21 to 12/21 of the following year is one year. If the extra day in a leap year is Baviera: This article applies only to legal provisions and not not a day of the year, bec. it is the 366th day, then to what to contracts, where the parties may stipulate on the manner of year does it belong? Certainly, it must belong to the year computing years, months and days. where it falls, and therefore, that the 366 days constitute one yr. Tolentino: Meaning of "Week."-- The term "week," when computed according to the calendar, means a period of 7 days HELD: The very conclusion thus reached by beginning on Sunday and ending on Saturday, but where the appellant shows that its theory contravenes the explicit word is used simply as a measure of duration of time and w/o provision of Art. 13 limiting the connotation of each "year"-reference to the calendar, it means a period of 7 consecutive as the term is used in our laws-- to 365 days. days w/o regard to the day of the week on w/c it begins. [The action to enforce a judgment which became final on December 21, 1955 prescribes in 10 years. Since the Meaning of "Month."-- There are several senses in w/c the Civil Code computes "years" in terms of 365 days each, the term "month" may be understood. A "lunar" mo. is composed action has prescribed on December 19, 1955, since the two of 28 days. A "calendar" mo. as designated in the calendar, intervening leap years added two more days to the w/o regard to the no. of days it may contain, etc. The Code, computation. It is not the calendar year that is considered.] however, does not use "month" in either of these senses, but strictly in a legal sense, as a period composed of 30 days. BAVIERA CASE: Computation of Time.-- When the act and the period are contractual, not required by law, court order, or rule of court, the exception referring to Sundays and holidays does not apply, and the act must be done on the last day, even if the latter should be a Sunday or a holiday. This is in consonance w/ the rule that the contract is the law between the contracting parties. BALANE CASE: NAMARCO V. TECSON [29 S 70 (1969)] - F: On 10/14/55, the CFI-Mla. rendered judgment in a civil case, Price Stabilization Corp. vs. Tecson, et al. Copy of this decision was, on 10/21/55 served upon defendants in said case. On 12/21/65, NAMARCO, as successor to all the properties, assets, rights, and choses in action of Price, as pltff in that case and judgment creditor therein, filed w/ the same court, a complaint against defendants for the revival of the judgment rendered therein. Def. Tecson moved to dismiss said complaint, upon the ground of prescription of action, among others. The motion was granted by the court. Hence, the appeal to the CA w/c was certified to the SC, upon the ground that the only question raised therein is one of law, namely, ISSUE: W/n the present action for the revival of a judgment is barred by the statute of limitations. Pursuant to Art. 1144 (3), NCC, an action for judgement must be brought w/in 10 yrs from the time the judgment sought to be revived has become final. This in turn, took place on 12/21/55 or 30 days from notice of the judgment-- w/c was received by defs. on 10/21/55-- no PAGE 9 QUIZON V. BALTAZAR [76 S 560 (1977)] - The RPC provides that an action for serious oral defamation prescribes in six months. The months should be computed by the regular 30 days, not the calendar months. Hence, where the crime was committed on November 11, 1963, and the action was filed exactly 180 days later, said action was filed on time. Art. 14. Penal laws and those of public security and safety shall be obligatory upon all who live or sojourn in Philippine territory, subject to the principles of public international law and to treaty stipulations. Balane: There are 2 principles involved here: Territoriality and Generality. Territoriality means that our criminal laws are enforceable only w/in Phil. territory. Exception to the territoriality principle is Art. 2 of RPC. Generality w/c means that w/in the Phil. territory, our criminal laws will apply to anyone, citizen or alien. Exceptions: (1) treaty stipulations w/c exempted some persons w/in the jurisdiction of the Phil. courts. and (2) ambassadors [consuls are subject to the jurisdiction of our criminal courts (Schneckenburger v. Moran.)] Tolentino: Exemption under International Law.-- Under the theory of extraterritoriality, foreigners may be exempted from the operation of the Phil. laws in the following cases: (1) when the offense is committed by a foreign sovereign while in Phil. territory; (2) when the offense is committed by diplomatic representatives; and (3) when the offense is committed in a public or armed vessel of a foreign country.

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Notes, Cases and Commentaries on Persons and Family Relation Offenses in Merchant Vessels.-- A merchant vessel of foreign registry does not enjoy the extraterritorial privilege of foreign public or war vessels. An offense committed on such VAN DORN V. ROMILLO [139 SCRA 139] - F: vessel while it is in a Phil. port, constituting a breach of Petitioner Alice Reyes Van Dorn is a citizen of the Phils. public order and a viol. of the policy established by the while private resp. Richard Upton is a US citizen; they were legislature, is triable in Phil. ports. married in HK in 1972; after the marriage, they established Art. 15. Laws relating to family rights and duties, their residence in the Phils. and begot 2 children; the parties or to the status, condition and legal capacity of persons were divorced in Nevada, US, in 1982; and petitioner has are binding upon citizens of the Philippines, even though remarried also in Nevada, this time to Theodore Van Dorn. living abroad. On 6/18/83, Upton filed a suit against petitioner in the RTC-Pasay, stating that petitioner's business in Ermita, Tolentino: Theories on Personal Law.-- Domiciliary Mla. (the Galleon Shop), is conjugal prop. and asking that theory, followed in the US, according to w/c the personal petitioner be ordered to render an accounting of that business, laws of a person are determined by his domicile. and that Upton be declared as having the right to manage the Nationality theory w/c makes nationality or conjugal prop. citizenship as the basis for determining the personal laws of an individual. Is it true that owing to the nationality principle embodied in Art. 13, NCC, only Phil. nationals are covered Capacity to Contract.-- If under the law of the State of w/c by the policy against absolute divorces the same being a party to a contract is a citizen, he is already of age at the considered contrary to our concept of public policy and time he enters into the contract, he cannot set such contract morality. However, aliens may obtain divorces abroad, w/c aside on t he ground of minority, even if under the laws of the may be recognized in the Phils., provided they are valid Phils. he is still a minor. (Government vs. Frank, 13 P 238.) according to their national law. In this case, the divorce in Nevada released private Renunciation of Allegiance.-- The question of how a citizen resps from the marriage from the stds of American law, under may strip himself of the status as such citizen is governed by w/c divorce dissolves the marriage. his national law. Thus, pursuant to his national law, Upton is no longer the husband of petitioner. He would have no standing to sue in the case below as petitioner's husband entitled to BALANE CASES: exercise control over conjugal assets. xxx. To maintain, as Upton does, that under our laws, TENCHAVEZ V. ESCANO [15 SCRA 355] - F: Pastor petitioner has to be considered still married to him and still Tenchavez (PT), 32, married Vicenta Escano (VE), 27 on subject to a wife's obligations under the NCC cannot be just. Feb. 24, 1948, in Cebu City. As of June 1948, the newlyPetitioner should not be obliged to live together with, observe weds were already estranged. On 6/24/50, VE left for the US. respect and fidelity, and render support to private resp. The On 8/22/50, she filed a verified complaint for divorce against latter should not continue to be one of her heirs w/ possible the herein pltff. in the State of Nevada on the ground of rights to conjugal "extreme cruelty, entirely mental in character." prop. She should not be discriminated against in her own On 10/21050, a decree of divorce was issued by the country if the ends of justice are to be observed. Nevada Court. On 9/13/54, VE married an American Russel Leo Moran IN Nevada. She now lives w/ him in California and by him, has begotten children. She acquired American Art. 16. Real property as well as personal citizenship on 8/8/58. On 7/30/55, PT filed a complaint for property is subject to the law of the country where it is legal separation and damages against VE and her parents in situated. the CFI-Cebu. However, intestate and testamentary successions, both with respect to the order of succession and to the HELD: At the time the divorce decree was issued, amount of successional rights and to the intrinsic validity VE like her husband, was still a Filipino citizen. She was of testamentary provisions, shall be regulated by the then subject to Philippine law u nder Art. 15, NCC. national law of the person whose succession is under Philippine law, under the NCC then now in force, does not consideration, whatever may be the nature of the property admit absolute divorce but only provides for legal separation. and regardless of the country wherein said property may For Phil. courts to recognize foreign divorce decrees be found. bet. Filipino citizens would be a patent violation of the declared policy of the State, especially in view of the 3rd par. Balane: In Art. 16 par. 1 provides that the lex situs or lex rei of Art. 17, NCC. Moreover, recognition would give rise to sitae governs real or personal prop. This rule applies even to scandalous discrimination in favor of wealthy citizens to the incorporeal property. In Tayag v. Benguet Consolidated, 26 detriment of those members of our society whose means do S, the SC said that Phil. courts have jurisdiction over shares not permit them to sojourn abroad and obtain absolute divorce of stocks located in the Phils. outside the Phils. Therefore, a foreign divorce bet. Filipino citizens, Tolentino: The rule of mobilia sequuntur personam in sought and decreed after the effectivity of the NCC, is not personal property has yielded to the to the lex situs bec. of the entitled to recognition as valid in this jurisdiction. PAGE 10

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Notes, Cases and Commentaries on Persons and Family Relation great increase in modern times of the amount and variety of are residents of another country, the law of the country of prop. not immediately connected w/ the person of the owner. domicile should apply, then Philippine law on legitimes was applied. Hence, under Philippine laws, the acknowledged Law on Succession.-- The law governing succession may be natural daughter cannot be deprived of her legitime. considered from the point of view of (a) the execution of wills, and (b) the distribution of property. The formalities of execution of will are generally governed by the law of the BELLIS V. BELLIS [20 S 358 (1967)] - Where the testator place of execution (Art. 17, par. 1.) But the distribution of was a citizen of Texas and domiciled in Texas, the intrinsic the estate is governed by the law of the nation of the validity of his will should be governed by his national law. deceased. Since Texas law does not require legitimes, then his will which deprived his illegitimate children of the legitimes is Applicability of Foreign Law.-- The second par. of this valid. article can be invoked only when the deceased was vested w/ While Art. 17, par. 3 provides that prohibitive laws a descendible interest in prop. w/in the jurisdiction of the of our country concerning persons and their property shall not Phils. be rendered ineffective by contrary laws in a foreign country, The intrinsic validity of the provisions of the will of this cannot be considered an exception to Art. 16 which a foreigner who dies in the Phils. is to be determined by the categorically provides for the situations when the national law laws of his own state or country, and not by those of the Phils. shall apply. Precisely, Congress deleted the phrase Thus, a condition in a will of a foreigner that his legatee "notwithstanding the provisions of this and the next respect his order that his prop. be distributed according to the preceding article" when they incorporated Art. 11 of the Old laws of the Phils. instead of the laws of his own country, was Civil Code as Art. 17 of the New Civil Code, while held illegal and considered as not written. reproducing without substantial change Art. 10 paragraph 2 of the Old Civil Code as Art. 16 of the New Civil Code. It must have been their purpose to make Art. 16, paragraph 2, a Art. 17. The forms and solemnities of contracts, specific provision in itself which must be applied in testate wills, and other public instruments shall be governed by and intestate successions. the laws of the country in which they are executed. Thus, in Miciano v. Brimo, a provision in a When the acts referred to are executed before the foreigner's will to the effect that his properties shall be diplomatic or consular officials of the Republic of the distributed in accordance with Philippine law and not with Philippines in a foreign country, the solemnities his national law, is illegal and void, for his national law established by Philippine laws shall be observed in their cannot be ignored in regard to those matters that Art. 10 execution. now Art. 16 - states said national law shall govern. Prohibitive laws concerning persons, their acts or property, and those which have for their object public Baviera: Why was Texas law applied when there was no order, public policy and good customs shall not be proof of Texas law? rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. Other Conflict of Law Rules: Balane: The rule in par. 1 is known as the lex loci celebrationis. Tolentino: Validity and Effects of Obligations.-- The code fails to mention the law w/c shall govern the validity and effects of obligations. (1) First, the law designated by the parties shall be applied; (2) if there is no stipulation on the matter, and the parties are of the same nationality, their national law shall be applied; (3) if this is not the case, the law of the place of perfection of the obligation shall govern its essence and nature, and the law of the place of the performance shall govern its fulfillment; (4) but if these places are not specified and they cannot be deduced from the nature and circumstances of the obligation, then the law of the domicile of the passive subject shall apply. (Manresa and Valverde.) Art. 829. A revocation done outside the Philippines, by a person who does not have his domicile in this country, is valid when it is done according to the law of the place where the will was made, or according to the law of the place in which the testator had his domicile at the time; and if the revocation takes place in this country, when it is in accordance with the provisions of this Code. Art. 1039. Capacity to succeed is governed by the law of the nation of the decedent. Art. 1753. The law of the country to which the goods are to be transported shall govern the liability of the common carrier for their loss, destruction or deterioration.

Art. 26. All marriages solemnized outside the AZNAR V. GARCIA [61 O.G. No. 46 p. 7303 (1963)] Philippines in accordance with the laws in force in the Where the testator was a citizen of California, and domiciled country where they were solemnized, and valid there as in the Philippines, the amount of successional rights should such, shall also be valid in this country, except those be governed by his national law. However, since the conflicts prohibited under Articles 35 (1), (4), (5) and (6), 36, 37 of law rules of California provides that in case of citizens who and 38. PAGE 11

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Notes, Cases and Commentaries on Persons and Family Relation xxx. (Family Code.) (1) Where both spouses are aliens; (2) With respect to the extrinsic validity of - Art. 35 (1) - must not be below 18 contracts affecting property not situated in the Philippines - Art. 35 (4) - not bigamous or polygamous and executed in the country where the property is located; - Art. 35 (5) - no mistake as to identity of the other and party (3) With respect to the extrinsic validity of - Art. 35 (6) - void marriages for failure to comply contracts entered into in the Philippines but affecting with Art. 53 on recording in the Civil Registry of the property situated in a foreign country whose laws require judgment of annulment or absolute nullity of different formalities for their extrinsic validity. (Family marriage, partition and distribution of properties of Code.) the spouses, and the delivery of the children's presumptive legitimes. (not in Baviera's outline) - Art. 36 - psychological incapacity Art. 18. In matters which are governed by the - Art. 37 - incestuous marriages Code of Commerce and special laws, their deficiency shall - Art. 38 - void marriages by reason of public policy. be supplied by the provisions of this Code. Art. 26. xxx Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine law. (As amended by EO No. 227, prom. July 17, 1987) (Family Code.) Balane: This is a qualified divorce law. Q: Would the ruling in Tenchavez still be the same, even after the amendment introduced in Art. 26 by EO 227? A: Yes, bec. the Tenchavez spouses are Filipinos. Art. 26 par. 2 does not apply to them. Note in the the Van Dorn v. Romillo ruling, we are not told, at whose instance the divorce was obtained. Requisites of Art. 26 par. 2: (1) one of the spouses is a foreigner (2) a divorce decree is obtained (3) the divorce decree is obtained at the instance of the foreign spouse (4) under the divorce decree, the foreigner-spouse acquires the capacity to remarry. Q: Suppose at the time of the marriage, both spouses are Filipinos. Afterwards, one becomes naturalized. Would Art. 26 par. 2 still be applied? Baviera: This refers to the formal or extrinsic requirements only, namely (1) authority of the solemnizing officer; (2) valid marriage license; (3) marriage ceremony. As to the essential or intrinsic requirements, namely (1) legal capacity and (2) consent, these must be complied with in accordance with the national law of the parties. Tolentino: Exceptions to Article.-- The Code does not observe the principle contained in this article w/ consistency. There are special cases expressly provided in the Code itself, where the special law of the Code of Commerce is made only suppletory, while the NCC is made primary law. For Example, Art. 1766 provides that: "In all matters not regulated by this Code, the rights and obligations of common carriers shall be governed by the Code of Commerce and by special laws." HUMAN RELATIONS Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. Principle of abuse of rights Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same. Art. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. GLOBE MACKAY V. CA [176 S 778 (1989)] - While an employer has the right to dismiss an employee who was involved in anomalous transactions, the right of dismissal should not be exercised in an abusive manner, such as by making accusations of being a crook, forcing him to take a forced leave, threatening to file a hundred suits against him. Hence, the employer is liable for damages. Art. 21 was adopted to remedy the countless gaps in the statutes, which leave so many victims of moral wrongs helpless, even though they have actually suffered material and moral injury. This article should vouchsafe adequate legal remedy for that untold number of moral wrongs which it is

Art. 80. In the absence of a contrary stipulation in a marriage settlement, the property relations of the spouses shall be governed by Philippine laws, regardless of the place of the celebration of the marriage and their residence. This rule shall not apply: PAGE 12

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Notes, Cases and Commentaries on Persons and Family Relation impossible for human foresight to provide for specifically in the statutes. Art. 25. Thoughtless extravagance in expenses for pleasure or display during a period of acute public want or emergency may be stopped by order of the courts at the VELAYO V. SHELL [54 O.G. No. 46 p. 7303 (1956)] instance of any government or private charitable Where the creditors of an insolvent company entered into a institution. memorandum of agreement as to the manner of disposal of the only asset of the company the proceeds to be distributed fairly among them, the act of the a member of the committee Art. 26. Every person shall respect the dignity, to implement such agreement, in assigning its credit to a personality, privacy and peace of mind of his neighbors sister company in the U.S. which filed a collection suit and and other persons. The following and similar acts, though attached the plane, constitutes bad faith and a betrayal of they may not constitute a criminal offense, shall produce a confidence in violation of Art. 19 as implemented by Art. 21. cause of action for damages, prevention and other relief: (1) Prying into the privacy of another's residence; (2) Meddling with or disturbing the private life or PNB V. CA [83 S 237 (1978)] - While the Board of Directors family relations of another; of PNB had the power to approve the lease of the sugar quota (3) Intriguing to cause another to be alienated allotments of its debtor, its act in unduly refusing to grant from his friends; such approval when the terms of the lease were reasonable (4) Vexing or humiliating another on account of constitutes a violation of Art. 21 of the Civil Code. his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition. Baviera: The Board of Directors should have been held liable, not the bank. LAGUNZAD V. GONZALES [92 S 476 (1979)] - An agreement whereby a film producer would pay the heirs and BALANE V. YU CHIANG [54 O.G. No. 3, p. 687 (1957)] relatives of Moises Padilla a sum of money inorder to depict Where a man by virtue of a notarized agreement, convinced them in the movie which he included a love interest angle the 19-year old daughter of petitioner, to live with him, and depicting the mother and a sweetheart, is not a violation of later on left her when she got pregnant, he can be made to freedom of expression. While it is true that the film producer recognize his child and is liable for damages under Art. 21 of purchased the rights to the book entitled "The Moises Padilla the Civil Code for inducing the daughter to live with him in a Story," that did not dispense with the need for prior consent manner contrary to morals and good customs. and authority from the deceased's heirs to portray publicly Under the New Civil Code, it is not necessary that episodes in said deceased's life and in that of his mother and there be a breach of promise of marriage in order that the the members of his family. As held in Schuyler v. Curtis, "a plaintiff in an action for acknowledgment of natural child and privilege may be given the surviving relatives of a deceased support may recover damages. The reason given by the Code person to protect his memory, but the privilege exists for the Commission is that in case a girl is already of age and was benefit of the living, to protect their feelings and to prevent a seduced, no action for Seduction under the RPC would lie, violation of their own rights in the character and memory of however, the girl and her family would have suffered the deceased." incalculable damages, which must be compensated. "Being a public figure ipso facto does not automatically destroy in toto a person's right to privacy. The right to invade a person's privacy to disseminate public information does not extend to fictional or novelized Art. 22. Every person who through an act of representation of a person, no matter how public a figure he performance by another, or any other means, acquires or or she may be. In the case at bar, while it is true that comes into possession of something at the expense of the petitioner exerted efforts to present a true-to-life story of latter without just or legal ground, shall return the same Moises Padilla, petitioner admits that he included a little to him. romance in the film because without it, it would be a drab story of torture and brutality." "The right of freedom of expression, indeed, Art. 23. Even when an act or event causing occupies a preferred position in the hierarchy of civil damage to another's property was not due to the fault or liberties. However, it is limited by the clear and present negligence of the defendant, the latter shall be liable for danger rule and the balancing of interest test. The latter indemnity if through the act or event he was benefitted. requires the court to take conscious and detailed consideration of the interplay of interest observable in a given situation. The interests observable in this case are the right to privacy Art. 24. In all contractual, property or other and freedom of expression. Taking into account the interplay relations, when one of the parties is at a disadvantage on of those interest, we hold that under the particular account of his moral dependence, ignorance, indigence, circumstances presented, and considering the obligations in mental weakness, tender age or other handicap, the courts the contract, the validity of such contract must be upheld must be vigilant for his protection. because the limits of freedom of expression are reached when PAGE 13

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Notes, Cases and Commentaries on Persons and Family Relation expression touches upon matters of essentially private carry with it extinction of civil unless there is a declaration concern." that fact from which civil is based did not exist. (3) Although no reservation was made, the declaration in the criminal case that the obligation is purely civil amounts to a reservation of AYER V. CAPULONG [160 S 865 (1988) En Banc] the civil action in favor of the offended party. (4) Senator Enrile cannot object to his inclusion in the movie on Furthermore, since estafa involves fraud, an independent civil the EDSA Revolution by invoking his right to privacy. "The action may prosper under Art. 33 of the Civil Code. right of privacy or "he right to be let alone" is not an absolute right. A limited intrusion into a person's privacy has long been regarded as permissible where that person is a public MENDOZA V. ARRIETA [91 S 113 (1979)] - Where in a figure and the information sought to be elicited from him or multiple highway accident involving a truck which hit a jeep to be published about him constitutes matters of a public which then hit a Mercedes Benz coming from the opposite character. Succinctly put, the right of privacy cannot be direction, two criminal actions for reckless imprudence was invoked to resist publication and dissemination of matters of filed against the drivers of the truck and jeep, and the driver public interest. The right of priivacy of a "public figure" is of the truck was found guilty and the driver of the jeep necessarily narrower than that of an ordinary citizen." acquitted, a civil action for damages against the owner of the As distinguished from Lagunzad v. Gonzales, which truck would prosper as there is no res judicata, the parties and involved a film biography necessarily including at least his causes of action being different. Furthermore, under Art. 31 immediate family, the subject matter of the move in this case of the Civil Code, When the civil action is based on an obliis one of public concern and does not relate to the individual gation not arising from crime, the civil action may proceed or public life of Senator Enrile. independently of the criminal proceedings regardless of result of the latter. Citing Garcia v. Florido, "As we have stated at the outset, the same negligent act causing damages may produce a civil liability arising Art. 27. Any person suffering material or moral from crime or create an action for quasi-delict or culpa extraloss because a public servant or employee refuses or contractual. The former is a violation of the criminal law, neglects, without just cause, to perform his official duty while the latter is a distinct and independent negligenc, may file an action for damages and other relief against the having always had its own foundation and individuality. latter, without prejudice to any disciplinary Some legal writers are of the view that in accordance with administrative action that may be taken. Article 31, the civil action based upon quasi-delict may proced independently of the criminal proceeding for criminal Art. 28. Unfair competition in agricultural, negligence and regardless of the result of the latter. Hence, commercial or industrial enterprises or in labor through the proviso in Section 2 of Rule 111 (requiring reservation of the use of force, intimidation, deceit, machinations, or any civil actions) with reference to Articles 32, 33, and 34 of the other unjust, oppressive or high-handed method shall give Civil Code, is contrary to the letter and spirit of the said rise to a right of action by the person who thereby suffers articles, for these articles were drafted and are intended to damages. constitute as exceptions to the general rule stated in what is now Section 1 of Rule 111. The proviso, which is procedura, may also be regarded as an unauthorized amendment of Art. 29. When the accused in a criminal substantive law, Articles 32, 33 and 34 of the Civil Code, prosecution is acquitted on the ground that his guilt has which do not provide for the reservation required in the not been proved beyond reasonable doubt, a civil action proviso." for damages for the same act or omission may be However, a civil action for damages against the instituted. Such action requires only a preponderance of owner-driver of the jeep would not prosper because civil evidence. Upon motion of the defendant, the court may liability arising from crime co-exists with criminal liability in require the plaintiff to file a bond to answer for damages criminal cases. Hence, the offended party had the option to in case the complaint should be found to be malicious. prosecute on civil liability arising from crime or from quasiIf in a criminal case the judgment of acquittal is delict. His active participation in the criminal case implies based upon reasonable doubt, the court shall so declare. In that he opted to recover the civil liability arising from crime. the absence of any declaration to that effect, it may be Hence, since the acquittal in the criminal case, which was not inferred from the text of the decision whether or not the based on reasonable doubt, a civil action for damages can no acquittal is due to that ground. longer be instituted. MENDOZA V. ALCALA [2 S 1032 (1961)] - Where the REPUBLIC V. BELLO [120 S 203 (1983)] - Where a accused in a criminal case for estafa is acquitted on the cashier was acquitted in a Malversation case on the ground ground that the prosecution has not proven his guilt beyond that his guilt was not proven beyond reasonable doubt, since reasonable doubt, a civil action based on the same transaction he spent the money for a legitimate purpose, a civil case for may prosper. (1) The conclusion that his guilt has not been the recovery of the amounts will prosper since there was no proven beyond reasonable doubt is equivalent to one of declaration in the criminal case that the facts from which the reasonable doubt. Thus, a civil action may prosper. (2) Under civil action might arise did not exist. the Rules of Court, the extinction of the penal action does not PAGE 14

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Notes, Cases and Commentaries on Persons and Family Relation no criminal proceedings are instituted during the PADILLA V. CA [129 S 558 (1990)] - Where in the pendency of the civil case, a preponderance of evidence complaint for Grave Coercion against the mayor and shall likewise be sufficient to prove the act complained of. policemen, they were acquitted on the ground that their guilt has not been proven beyond reasonable doubt, such acquittal will not bar a civil case for damages arising from the Art. 31. When the civil action is based on an demolition of petitioner's market stalls. The acquittal on the obligation not arising from the act or omission complained ground that their guilt has not been proven beyond reasonable of as a felony, such civil action may proceed independently doubt refers to the element of Grave Coercion and not to the of the criminal proceedings and regardless of the result of fact of that the stalls were not demolished. Under the Rules of the latter. Court, the extinction of penal action carries with it the extinction of civil only if there is a declaration that facts from which civil may arise did not exist. Also, Art. 29 of the Civil Code does not state that civil liability can be recovered only Art. 32. Any public officer or employee, or any in a separate civil action. The civil liability can be recovered private individual, who directly or indirectly obstructs, either in the same or a separate action. The purpose of defeats, violates or in any manner impedes or impairs any recovering in the same action is to dispense with the filing of of the following rights and liberties of another person shall another civil action where the same evidence is to be be liable to the latter for damages: presented, and the unsettling implications of permitting (1) Freedom of religion; reinstituttion of a separate civil action. However, a separate (2) Freedom of speech; civil action is warranted when (1) additional facts are to be (3) Freedom to write for the press or to maintain established; (2) there is more evidence to be adduced; (3) a periodical publication; there is full termination of the criminal case and a separate (4) Freedom from arbitrary or illegal detention; complaint would be more efficacious than a remand. Hence, (5) Freedom of suffrage; CA did not err in awarding damages despite the acquittal. (6) The right against deprivation of property without due process of law; (7) The right to a just compensation when private REYES V. SEMPIO-DY [141 S 208 (1986)] - Where the property is taken for public use; private complainant in an information for intriguing against (8) The right to the equal protection of the laws; honor was represented by a private prosecutor but defendant (9) The right to be secure in one's person, house, pleaded guilty and was sentenced to a fine, a civil case papers, and effects against unreasonable searches and damages is will prosper despite the lack of reservation and seizures; the intervention of a private prosecutor, because there was no (10) The liberty of abode and of changing the opportunity to present evidence by reason of the unexpected same; plea of guilty. (11) The privacy of communication and Roa v. De La Cruz is not applicable because in that correspondence; case, there was a full-blown hearing where a private (12) The right to become a member of associations prosecutor participatedly actively but failed to present or societies for purposes not contrary to law; evidence to support the claim for damages. Hence, a civil (13) The right to take part in peaceable assembly action could not prosper. Furthermore, under Art. 33, there is to petition the Government for redress of grievances; no requirement for reseervation to file an independent civil (14) The right to be free from involuntary action arising from defamation. servitude in any form; (15) The right of the accused against excessive bail; MAXIMO V. GEROCHI [144 S 326 (1986)] - Where the (16) The right of the accused to be heard by accused was acquitted of Estafa on the ground of failure to himself and counsel, to be informed of the nature and establish guilt beyond reasonable doubt and that if accused cause of accusation against him, to have a speedy and had any obligation, it was civil in nature, the court can award public trial, to meet the witnesses face to face, and to have civil liabity in the same case without need of the institution of compulsory process to secure the attendance of witness in a separate civil action. Citing Padilla v. CA, the court may his behalf; acquit and at the same time order payment of civil liability in (17) Freedom from being compelled to be a the same case. The rationale is that there is no reason to witness against one's self, or from being forced to confess require a separate civil action where the facts to be proved in guilt, or from being induced by a promise of immunity or the civil case have been proven in the criminal case, and due reward to make such confession, except when the person process has already been accorded to the accused, and to confessing becomes a State witness; prevent needless clogging of court dockets and unnecessary (18) Freedom from excessive fines, or cruel and duplication of litigation. unusual punishment, unless the same is imposed or inflicted in accordance with a statute which has not been judicially declared unconstitutional; and (19) Freedom of access to the courts. Art. 30. When a separate civil action is brought to In any of the cases referred to in this article, demand civil liability arising from a criminal offense, and whether or not the defendant's act or omission constitutes PAGE 15

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Notes, Cases and Commentaries on Persons and Family Relation a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall ABELLANA V. MARAVE [57 S 106 (1974)] - Where proceed independently of any criminal prosecution (if the accused appealed his conviction by the City Court of Physical latter be instituted), and may be proved by a preponderinjuries thru reckless imprudence to the CFI, and while the ance of evidence. case was on appeal, the heirs of the victim filed an The indemnity shall include moral damages. independent civil action against him and his employer in Exemplary damages may also be adjudicated. another branch, the civil action will prosper despite the lack The responsibility herein set forth is not of reservation. The restrictive interpretation of the Rules of demandable from a judge unless his act or omission Court provision on civil actions requiring reservation as to constitutes a violation of the Penal Code or other penal include the independent civil action under Art. 33 does not statute. only result in the emasculation of the civil code provision but also gives rise to a serious constitutional question. Article 33 is quite clear. "The right to proceed independently of the criminal prosecution under Article 33 of the Civil Code is a Art. 33. In cases of defamation, fraud, and SUBSTANTIVE RIGHT, not to be frittered away by a physical injuries, a civil action for damages, entirely construction that could render it nugatory, if through separate and distinct from the criminal action, may be oversight, the offended parties failed at the initial stage to brought by the injured party. Such civil action shall seek recovery for damages in a civil suit. The grant of power proceed independently of the criminal prosecution, and to this Court, both in the present constitution and under the shall require only a preponderance of evidence. 1935 Charter, does not extend to any diminution, increase or modification of substantive right. Art. 34. When a member of a city or municipal police force refuses or fails to render aid or protection to any person in case of danger to life or property, such peace officer shall be primarily liable for damages, and the city or municipality shall be subsidiarily responsible therefor. The civil action herein recognized shall be independent of any criminal proceedings, and a preponderance of evidence shall suffice to support such action. ESCUETA V. FANDIALAN [61 S 278 (1974)] - Where the cause of action for physical injuries accrued in 1952, and a criminal action for Frustrated Homicide was filed in 1955 and a reservation of civil action was made, and a civil action for damages was filed in 1956 but was dismissed for lack of interest, when the civil action was refiled in 1968, the said civil action has already prescribed. Since there was a reservation of the civil action, the prescription period for an action based on tort applies, which is 4 years from cause of action [Art. 1146 (1)]. Furthermore, no reservation was even required since it is an independent civil action under Art. 33. Had no reservation been made, the civil case would have been impliedly instituted with the criminal, and since accused was convicted in 1955, an action to enforce judgment would only expire after ten years from judgment [Art. 1144 (3)]. Thus, where the offended party reserves the right to file a separate action for damages arising from physical injuries, the cause of action prescribes in four years, not ten years.

Rule 111, Sec. 2. Institution of separate civil action. - Except in the cases provided for in Section 3 hereof, after the criminal action has been commenced, the civil action which has been reserved cannot be instituted until final judgment has been rendered in the criminal action. (a) Whenever the offended party shall have instituted the civil action (arising from the crime - Baltic) as provided for in the first paragraph of section 1 hereof before the filing of the criminal action is subsequently commenced, the pending civil action shall be suspended, in whatever stage before final judgment it may be found, until final judgment in the criminal action has been renMADEJA V. CARO [126 S 295 (1983)] - Where accused dered. However, if no final judgment has been rendered was charged with Homicide thru reckless imprudence, by the trial court in the civil action, the same may be pending the criminal action, an independent civil action consolidated with the criminal action upon application under Art. 33 may proceed independently of the criminal with the court trying the criminal action. If the case. Citing Carandang v. Santiago [97 P 94 (1955)], "The application is granted, the evidence presented and term "physical injuries" is used in the generic sence, not the admitted in the civil action shall be deemed automatically crime of physical injuries defined in the Revised Penal Code. reproduced in the criminal action, without prejudice to It includes not only physical injuries but consummated, the admission of additional evidence that any party may frustrated and attempted homicide." Defamation and fraud wish to present. In case of consolidation, both the criminal are also used in their generic sense because there are no and the civil actions shall be tried and decided jointly. specific provisions in the Revised Penal Code using these (b) Extinction of the penal action does not carry terms as means of offenses defined therein. with it extinction of the civil, unless the extinction proceeds from a declaration (need not be an express Art. 35. When a person, claimining to be injured declaration- Baltic) in a final judgment that the fact from by a criminal offense, charges another with the same, for which the civil might arise did not exist. (Rules of Court.) which no independent civil action is granted in this Code PAGE 16

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Notes, Cases and Commentaries on Persons and Family Relation or any special law, but the justice of the peace finds no is necessary that a decision in a civil action to the effect that reasonable ground to believe that a crime has been the second marriage contains all the essentials of a marriage committed, or the prosecuting attorney refuses or fails to must first be secured. institute criminal proceedings, the complainant may bring a civil action for damages against the alleged offender. Such civil action may be supported by a preponderance of LANDICHO V. RELOVA [22 S 731 (1968)] - Where the evidence. Upon the defendant's motion, the court may first wife filed a criminal action for bigamy against the require the plaintiff to file a bond to indemnify the husband, and later the second wife filed a civil case for defendant in case the complaint should be found to be annulment of the marriage on the ground of force and malicious. intimidation, and the husband later files a civil case for If during the pendency of the civil action, an annulment of marriage against the first wife, the civil cases information should be presented by the prosecuting are not prejudicial questions in the determination of his attorney, the civil action shall be suspended until the criminal liability for bigamy, since his consent to the second termination of the criminal proceedings. marriage is not in issue. "The mere fact that there are actions to annul the marriages entered into by accused in a bigamy case does not Art. 36. Pre-judicial questions, which must be mean that "prejudicial questions" are automatically raised in decided before any criminal prosecution may be instituted civil actions as to warrant the suspension of the criminal case. or may proceed, shall be governed by rules of court which In order that the case of annulment of marriage be considered the Supreme Court shall promulgate and which shall not a prejudicial question to the bigamy case against the accused, be in conflict with the provisions of this Code. it must be shown that petitioner's consent to such marriage must be the one that was obtained by means of duress, force and intimidation to show that his act in the second marriage Rule 111, Sec. 5. Elements of prejudicial question. must be involuntary and cannot be the basis of his conviction - The two (2) essential elements of a prejudicial question for the crime of bigamy. The situation in the present case is are: markedly different. At the time the petitioner was indicted (a) the civil action involves an issue similar or for bigamy, the fact that two marriage ceremonies had been intimately related to the issue raised in the criminal contracted appeared to be indisputable. And it was the second action; spouse, not the petitioner who filed the action for nullity on (b) the resolution of such issue determines the ground of force, threats and intimidation. And it was only whether or not the criminal action may proceed. (Rules of later that petitioner as defendant in the civil action, filed a Court.) third party complaint against the first spouse alleging that his marriage with her should be declared null and void on the Rule 111, Sec. 6. Suspension by reason of ground of force, threats and intimidation. Assuming the first prejudicial question. - A petition for suspension of the marriage was null and void on the ground alleged by criminal action based upon the pendency of a prejudicial petitioner, that fact would not be material to the outcome of question in a civil action may be filed in the office of the the criminal case. Parties to the marriage should not be fiscal or the court conducting the preliminary investigapermitted to judge for themselves its nullity, for the same tion. When the criminal action has been filed in court for must be submitted to the judgment of a competent court and trial, the petition to suspend shall be filed in the same only when the nullity of the marriage is so declared can it be criminal action any time before the prosecution rests. held as void, and so long as there is no such declaration, the (ibid.) presumption is that the marriage exists. Therefore, he who contracts a second marriage before the judicial declaration of Bigamy - Art. 349, RPC. Contracting of second or subsequent nullity of the first marriage assumes the risk of being marriage: prosecuted for bigamy." a. before legal dissolution of first marriage b. before declaration of presumptive death of absent spouse. PRESUMPTION OF SIMULTANEOUS DEATH MERCED V. DIAZ [109 P 156 (1960)] - Where the husband Art. 43. If there is a doubt, as between two or files a civil case for annulment of the second marriage on the more persons who are called to succeed each other, as to ground of lack of consent, and the second wife subsequently which of them died first, whoever alleges the death of one files a criminal case for bigamy against him, the civil case for prior to the other, shall prove the same; in the absence of annulment is a prejudicial question to be determined before proof, it is presumed that they died at the same time and the criminal case can proceed. Consent is an essential there shall be no transmission of rights from one to the element of a valid marriage. Without consent, the marriage is other. void. But the question of invalidity cannot ordinarily be decided in the criminal action for bigamy but in a civil action Tolentino: Application of Article.-- This article applies for annulment. Since the validity of the second marriage, only when the question of survivorship involves persons "who subject of the action for bigamy, cannot be determined in the are called to succeed each other." Hence, it cannot apply to criminal case, and since prosecution for bigamy does not lie other cases w/c do not involve succession. unless the elements of the second marriage appear to exist, it PAGE 17

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Notes, Cases and Commentaries on Persons and Family Relation When the persons involved would succeed each ground in front of the Club premises to avoid the bullets. other, however, then this article applies, whether the death be Minutes later, the Club, already on fire, collapsed, trapping actual or merely presumed from absence or other many people, presumably including AJ. JN, Sr., Mrs. JN, Jr. circumstances. managed to reach an air raid shelter nearby and stayed there for about 3 days, until they were forced to leave bec. the Are Rules of Court Repealed?-- There is every indication shelling tore it open. They fled but unfortunately met that the Code Commission intended to repeal the Japanese patrols who fired at them, killing the two. presumptions on survivorship under the Rules of Court, The trial court found the deaths to have occurred in because the presumptions laid down therein are sometimes this order: 1st. The Navarro girls; 2nd. JN, Jr.; 3rd. AJ; 4th. absurd and mere guesswork. [I Tolentino 176] JN, Sr. The CA found that the deaths occurred in the following order: 1st. The Navarro girls; 2nd. AJ; 3rd. JN, Compare with Rule 131, Sec. 5 (jj), (kk) Jr.; 4th JN, Sr. PRESUMPTION OF PRIORITY OF DEATH (Survivorship Agreement) Rule 131, Sec. 5 (jj). That except for purposes of succession, when two persons perish in the same calamity, such as wreck, battle, or conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, the survivorship is determined from the probabilities resulting from the strength and age of the sexes, according to the following rules: 1. If both were under the age of fifteen years, the older is deemed to have survived; 2. If both were above the age of sixty, the younger is deemed to have survived; 3. If one is under fifteen and the other above sixty, the former is deemed to have survived; 4. If both be over fifteen and under sixty, and the sex be different, the male is deemed to have survived; if the sex be the same, the older; 5. If one be under fifteen or over sixty, and the other between those ages, the latter is deemed to have survived. (kk) That if there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, they shall be considered to have died at the same time. (Rules of Court.) BALANE CASE: HELD: Where there are facts, known or knowable, from w/c a rational conclusion can be made, the presumption (in the Rules of Court) does not step in, and the rules of preponderance of evidence controls. Are there particular circumstances on record from w/c reasonable inference of survivorship bet. AJ and her son can be drawn? Is Francisco Lopez' (the sole witness) testimony competent and sufficient for the purpose? It is our opinion that the testimony contains facts quite adequate to solve the problem of survivorship bet. AJ and JN, Jr. and keep the statutory presumption out of the case. It is believed that in the light of the conditions painted by Lopez, a fair and reasonable inference can be arrived at, namely: that JN, Jr. died before his mother. While the possibility that the mother died before the son can not be ruled out, it must be noted that this possibility is entirely speculative and must yield to the more rational deduction from proven facts that it was the other way around. JN, Jr., was killed, while running, in front of, and 15 meters from the Club. Still in the prime of life, 30, he must have negotiated that distance in 5 seconds or less, and so died w/in that interval from the time he dashed out of the bldg. AJ could have perished w/in those 5 or fewer seconds, but the probabilities that she did seem very remote. According to Lopez' testimony, the collapse of the club occurred about 40 minutes after JN, Jr. died, and it was the collapse that killed AJ. The CA said that the interval bet. JN, Jr.'s death and the breaking down of the edifice was "minutes." Even so, it was much longer than 5 seconds, long enough to warrant the inference that AJ was still alive when her son expired. The CA mentioned several causes, besides the bldg's collapse, by which AJ could have been killed. All these causes are speculative. xxx Nor was AJ likely to have been killed by falling beams bec. the bldg. was made of concrete and its collapse, more likely than not, was sudden. As to fumes, these do not cause instantaneous death; certainly, not w/in the brief space of 5 seconds bet. her son's departure and his death. It will be said that all this is indulging in inferences that are not conclusive. Sec. 69 (ii) of R 123 does not require that the inference necessary to exclude the presumption therein provided be certain. It is the "particular circumstances from w/c it (survivorship) can be inferred" that are required to be certain as tested by the rules of evidence. In speaking of inference the rule can not mean beyond doubt, for "inference is never certainty, but it may be plain enough to justify a finding of fact."

JOAQUIN V. NAVARRO [93 P 257] - F: On 2/6/45, while the battle for the liberation of Mla. was raging, the spouses Joaquin Navarro, Sr. (JN, Sr.) and Angela Joaquin (AJ), together w/ their 3 daughters and their son Joaquin, Jr. (JN, Jr.) and the latter's wife, sought refuge in the ground floor of the building known as the German Club. During their stay, the bldg. was packed w/ refugees, shells were exploding around, and the Club was set on fire. Simultaneously, the Japanese started shooting at the people inside the bldg, especially those who were trying to escape. the 3 daughters were hit and fell on the ground near the entrance; and JN, Sr. and his son decided to abandon the premises to seek a safer haven. They could not convince AJ, who refused to join them, and so JN, Sr. and his son, JN, Jr. and the latter's wife dashed out of the burning edifice. As they came out, JN, Jr. was shot in the head by a Japanese soldier and immediately dropped. The others lay flat on the PAGE 18

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Notes, Cases and Commentaries on Persons and Family Relation In conclusion, the presumption that AJ died before Civil status may be grouped into 3 classes: (a) her son is based purely on surmises, speculations, or status as a member of the society; (b) status as member of a conjectures w/o any sure foundation in evidence. The family; and (c) status w/ respect to the person himself. opposite theory is deduced from established facts w/c, The qualities w/c create a status are only those weighed by common experience, engender the inference as a inherent in the person himself. very strong probability. Gauged by the doctrine of preponderance of evidence by w/c civil cases are decided, this Characteristics of status.-- The status of a person is outside inference ought to prevail. the commerce of man; hence, (1) it is inalienable, (2) it is imprescriptible, (3) it cannot be the object of compromise, Balane: In Sec. 5 (jj) of R 131, there is no presumption of (4) the action to claim it cannot be renounced, and (5) the simultaneity but of survivorship. rights arising from it cannot be exercised by creditors. Q: Did the court in Joaquin v. Navarro rule w/c of the 2 presumptions prevail over the other? Did it apply either TITLE I presumtion? A: No to both questions. I. CIVIL PERSONALITY The presumption applies only if there is no evidence as to who died first. If there are enough facts to go by, you Tolentino: Concept of Personality.-- Personality is the do not use either presumption. Art. 43 as well as Sec. 5 (jj) of quality derived from being a person. While a person is any R 131 cannot be applied if there are facts to go by. being susceptible of rights and obligations, personality is the aptitude of that becoming the subject, active or passive, of In questions other than succession (like insurance, juridical relations. resolutory conditions, reserva troncal , donation inter vivos), apply Rule 131, Sec. 5 (jj) Characteristics.-- (1) It is not a being, but a quality of certain beings; (2) it is not a physical element, but a juridical The case did not resolve the issue as to w/n there is a concept; (3) it is not an object of contract, or of possession, conflict bet. Art. 43 and R 131, Sec. 5 (jj) of the ROC. To and cannot be impaired by agreement; (4) it is a matter of reconcile the two, the following rules may be of help: public interest. 1. Art. 43 applies only when succession is involved; ROC [referring to Sec. 5 (jj) R 131] applies only when 2 persons perish in the same calamity. A. Elements 2. When succession is involved but the persons did not perish in the same calamity, apply Art. 43; When the Art. 37. Juridical capacity, which is the fitness to be persons perished in the same calamity but succession is not the subject of legal relations, is inherent in every natural involved, apply ROC. person and is lost only through death. Capacity to act, 3. When neither element is present, neither which is the power to do acts with legal effect, is acquired provision will apply. and may be lost. 4. The conflict will arise only when succession is involved and 2 persons died in the same calamity. In case of Tolentino: Kinds of Capacity.-- Capacity may be (1) conflict, Art. 43 will apply (this is only an opinion.) juridical capacity, and (2) capacity to act. The union of these 2 forms the full civil capacity. (Balane calls the 2 the BOOK I constitutive elements of personality.) Juridical capacity is synonymous to legal capacity and to LAW ON PERSONS personality. They all refer to the aptitude for the holding and enjoyment of rights. On the other hand, capacity to act refers Tolentino: Concept of Person.-- In a juridical sense, the to the aptitude for the exercise of rights, and is often referred term "person" is now understood as any being, physical or to merely as "capacity." moral, real or juridical and legal, susceptible of rights and obligations, or of being the subject of legal relations. Comparison.-Juridical capacity (JC) is just one, (Sanchez Roman.) indivisible, irreducible, and essentially the same for all men; it is an inherent and ineffaceable attribute of man, and Classes of Persons.-- (1) human beings or men, called attaches to him by the mere fact of his being a man. But natural persons; and (2) entities formed by the association of capacity to act (CA) is conditional and variable. It is men, known as juridical persons, or as artificial, fictitious, acquired and may be lost. The mere existence of man is not abstract, or moral persons. sufficient to confer capacity to act, bec. this capacity requires both intelligence and will; xxx Thus, JC can exist w/o CA, Status of persons.-- The status of a person is the legal but the existence of the latter implies that of the former. condition or class to w/c one belongs in society; it is the legal or juridical position of the individual in society, or w/ regard Balane: JC has no degrees, either you have it or not. CA has to the rest of the community. degrees. The status of a person may be political or civil. ----------------------------------------------------------------------------------------------PAGE 19

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Notes, Cases and Commentaries on Persons and Family Relation JURIDICAL CAPACITY Insanity or Imbecility.-- Insanity includes the CAPACITY TO ACT various forms of mental disease, either inherited or acquired, -------------------------------------------------------------------in w/c there is a perversion of the mentality, as when the ---------------------------person is suffering from illusions, hallucinations, or - fitness to be the subject of legal relations - power to delusions, unnatural exaltation or depression, or insane ideas do acts with legal effect of persecution or power. - inherent in every natural person An insane person cannot make a valid will or -------------------------------------------------------------------testament (Art. 798); and he cannot validly give consent to ---------------------------contracts (Art. 1327, par. 2.) - lost only through death - acquired Imbecility is a defect in the quantity of mental and may be lost development. The mental ages up to the completed eighth - subject to year are included. restrictions: minority, etc. -------------------------------------------------------------------Deaf-Mutism.-- A deaf-mute can make a valid will, ---------------------------so long as its content have been communicated or made known to him in some practicable manner (Art. 807.) But when the deaf-mute does not know how to read and write, he Capacity of Public Interest.-- The capacity or incapacity of cannot give consent to contracts (1327, par. 2, and he cannot persons depends upon the law and cannot be modified, personally accept or repudiate an inheritance (1048.) extended, or restricted by agreement. Both JC and CA are not rights, but qualities of persons; hence, they cannot be Civil Interdiction-- This is an accessory penalty alienated or renounced. imposed upon persons who are sentenced to a principal penalty not lower than reclusion temporal (Art. 41, RPC.) Art. 34 of the RPC provides: Art. 38. Minority, insanity or imbecility, the state of Art. 34. Civil interdiction shall deprive the being a deaf-mute, prodigality and civil interdiction are offender during the time of his sentence of the rights of mere restrictions on capacity to act, and do not exempt the parental authority, or guardianship, either as to the incapacitated person from certain obligations, as when the person or property of any ward, of marital authority, of latter arise from his acts or from property rela tions, such the right to manage his property, and of the right to as easements. dispose of such property by any act or any conveyance inter vivos. Tolentino: Causes of Incapacity Minority.-- The unemancipated minor cannot enter Prodigality.-- A spendthrift or prodigal is "a person into contracts (Art. 1327); but he may be estopped from who, by excessive drinking, gambling, idleness or debauchery disavowing his contract if he has misled the other party as to of any kind shall so spend, waste or lessen his estate as to his age. The SC has held that: expose himself or his family to want or suffering. xxx [T]he sale of real estate, effected by minors who Prodigality in itself does not limit the capacity of a have already passed the ages of puberty and adolescence and person to act. It seems erroneous to include prodigality in the are near the adult age, when they pretend to have already Art. 38 bec. as a circumstance w/c limits capacity, bec. there reached their majority, while in fact they have not, is valid, is no specific provision of law w/c implements this general and they cannot be permitted afterwards to excuse themselves provision. It is not the circumstance of prodigality, but the from compliance w/ the obligation assumed by them or seek fact of being under guardianship, that restricts the capacity to their annulment. This doctrine is entirely in accord w/ the act of the spendthrift. provisions of our law on estoppel. (Mercado vs. Espiritu, 37 Phil. 215. Obligations of Incapacitated Persons.-- They may have But there is authority to the effect that obligations arising from all sources, except contracts. They misrepresentation of an incapacitated person does not bind have obligations arising from law, such as those imposed on him. family relations. "xxx Misrepresentation made by a party as to his age Incapacitated persons are also civilly liable for does not estop him from denying that he was of age or from crimes committed by them, even if they are exempted from asserting that he was under age, at the time he entered into criminal liab. (Art. 101, RPC.) They are liable for quasithe contract, for the breach of w/c an action is brought. delicts, under the express provisions of Articles 2181 and Under the principle of estoppel, the liab. resulting from 2182. misrepresentation has its juridical source in the capacity of They are liable on quasi-contracts, on the principle the person making the misrepresentation to bind himself. If that nobody can unjustly enrich himself at the expense of the person making the misrepresentation cannot bind himself another. by contract, he cannot also be bound by any misrepresentation Where necessaries are delivered to a minor or other he may have made in connection therewith. A person incapacitated person, he must pay a reasonable price entering into a contract must see to it that the other party has therefore. (Art. 1489.) sufficient capacity to bind himself." (Young vs. Tecson, 39 OG 953.) PAGE 20

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Notes, Cases and Commentaries on Persons and Family Relation Art. 39. The following circumstances, among 1. Minority others, modify or limit capacity to act: age, insanity, imbecility, the state of being a deaf-mute, penalty, Sec. 1. Art. 234 of EO 209, the Family Code of prodigality, family relations, alienage, absence, insolvency the Philippines, is hereby amended to read as follows: and trusteeship. The consequences of these circumstances "Emancipation takes place by the attainment of are governed by this Code, other codes, the Rules of majority. Unless otherwise provided, majority commences Court, and in special laws. Capacity to act is not limited at the age of eighteen years." on account of religious belief or political opinion. xxx (R.A. 6809.) A married woman, eighteen years of age or over, is qualified for all acts of civil life, except in cases specified a. Civil Acts by law. Art. 797. Persons of either sex under eighteen Balane: There is a lapse in the enumeration. Art. 38 years of age cannot make a will. enumerates 6 circumstances limiting, modifying or restricting capacity to act whereas Art. 39 enumerates 11. The two Art. 1489. xxx articles could have been merged into one article. When necessaries are sold and delivered to a minor or other person without capacity to act, he must pay Tolentino: The enumeration made here is not exclusive of a reasonable price therefor. Necessaries are those referred other circumstances modifying capacity to act. to in article 290. (par. 2.) Guardianship of Incompetents.-For definition of incompetents, see Rule 93, Sec. 2, ROC, infra. Even w/o guardianship, persons under civil interdiction, deaf-mutes who do not know how to read and write, and those of unsound mind, are of limited capacity. W/ respect, however, to hospitalized lepers, prodigals, and those who cannot take care of themselves and manage their prop., it is the fact of guardianship w/c will limit their capacity to act. Family Relations.-- Ascendants and descendants, brothers and sisters, and collateral relatives w/in the 4th civil degree (as cousins), cannot validly marry; their marriage would be incestuous or against public policy and void. Husband and wife, during the marriage, cannot give donations to each other. Alienage.-- Citizenship may affect the right of persons in matters where the State may validly discriminate between aliens and its citizens for reasons of public policy, w/o doing violence to the equal protection of the laws. See constitutional provisions, infra. Absence.-- A person is absent when he disappears from his domicile, and his whereabouts are unknown (381.) He cannot properly administer his properties, and so another person is appointed to administer them. Insolvency and Trusteeship.-- When a person has been adjudicated an insolvent, he cannot dispose of his prop. existing at the time of the commencement of the insolvency proceedings; and no payments of prop. or credit can be made to him. Physical condition.-- Physical incapacity to enter into the married state, or impotence, is a ground for annulment of marriage [Art. 55(5), FC], and a person who is blind, or deaf or dumb, cannot be a witness to the execution of a will. (820.) B. Restriction on Capacity to Act PAGE 21 - Baviera - basis of liability: quasi-contract Art. 14. In case either or both of the contracting parties, not having been emancipated by a pevious marriage, are between the ages of eighteen and twenty one, they shall, in addition to the requirements of the preceding articles, exhibit to the local civil registrar, the consent to their marriage of their father, mother, surviving parent or guardian, or persons having legal charge of them, in the order mentioned. Such consent shall be manifested in writing by the interested party, who personally appears before the proper local registrar, or in the form of an affidavit made in the presence of two witnesses and attested before any official authorized by law to administer oaths. The personal manifestation shall be recorded in both applications for marriage license, and the affidavit, if one is executed instead, shall be attached to said applications. (Family Code.) b. Delicts Art. 101. xxx xxx Should there be no person having such insane, imbecile or minor under his authority, legal guardianship or control, or if such person be insolvent, said insane, imbecile, or minor shall respond with their own property, excepting property exempt from execution, in accordance with civil law. (par. 3 thereof, Revised Penal Code.) c. Quasi-Delicts Art. 2182. If the minor or insane person causing damage has no parents or guardian, the minor or insane person shall be answerable with his own property in an action against him where a guardian ad litem shall be appointed. 2. Insanes and Imbeciles a. Civil Acts

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Notes, Cases and Commentaries on Persons and Family Relation Art. 1323. An offer becomes ineffective upon the death, civil interdiction, insanity, or insolvency of either party before acceptance is conveyed. Art. 1327. The following cannot give consent to a contract: (1) Unemancipated minors; (2) Insane or demented persons, and deaf-mutes who do not know how to write. Art. 1399. When the defect of the contract consists in the incapacity of one of the parties, the incapacitated person is not obliged to make any restitution except insofar as he has been benefited by the thing or price received by him. b. Delicts & Quasi-Delicts Art. 101. xxx xxx Should there be no person having such insane, imbecile or minor under his authority, legal guardianship or control, or if such person be insolvent, said insane, imbecile, or minor shall respond with their own property, excepting property exempt from execution, in accordance with civil law. (par. 3 thereof, Revised Penal Code.) Art. 2182. If the minor or insane person causing damage has no parents or guardian, the minor or insane person shall be answerable with his own property in an action against him where a guardian ad litem shall be appointed. 5. Civil Interdiction Art. 34. Civil interdiction. - Civil interdiction shall deprive the offender during the time of his sentence of the rights of parental authority, or guardianship, either as to the person or property of any ward, of marital authority, of the right to manage his property and of the right to dispose of such property by any act or any conveyance inter vivos. (Revised Penal Code.) Art. 135. Any of the following shall be considered sufficient cause for judicial separation of property: (1) That the spouse of the petitioner has been sentenced to a penalty which carries with it civil interdiction; xxx. (Family Code.) Art. 142. The administration of all classes of exclusive property of either spouse may be transferred by the court to the other spouse: (3) When one spouse is sentenced to a penalty which carries with it civil interdiction; xxx. (Family Code.) 6. Insolvency

Sec. 70. If any debtor, being insolvent, or in contemplation of insolvency, within thirty days before the filing of a petition by or against him, with a view to giving a preference to any creditor or person having claim against him or who is under any liability for him, procures any part of his property to be attached, sequestered, or seized on execution, or makes any payment, pledge, mortgage, assignment, transfer, sale, or conveyance of any 3. Deaf-Mutes part of his property, either directly or indirectly, absolutely or conditionally, to anyone, the person receving Art. 1327. The following cannot give consent to a such payment, pledge, mortgage, assignment, transfer, contract: sale or conveyancr or to be benefited thereby, or by such (1) Unemancipated minors; attachment or seizure, having reasonable cause to believe (2) Insane or demented persons, and deaf-mutes that such debtor is insolvent, and that such attachment, who do not know how to write. sequestration, seizure, payment, pledge, mortgage, conveyance, transfer, sale, or assignment is made with a Art. 820. Any person of sound mind and of the view to prevent his property from coming to his assignee age of eighteen years or more, and not blind, deaf or in insolvency, or to prevent the same from being dumb, and able to read and write, may be witnesses to the distributed ratably among his creditors, or to defeat the execution of a will mentioned in article 805 of this Code. object of, or in any way hinder, impede, or delay the operation of or to evade any of the provisions of this Act, 4. Prodigals such attachment, sequestration, seizure, payment, pledge, mortgage, transfer, sale, assignment, or conveyance is Rule 92, Sec. 2. Meaning of word "incompetent".-void, and the assignee, or the receiver may recover the Under this rule, the word "incompetent" includes persons property or the value thereof, as assets of such involvent suffering the penalty of civil interdiction or who are debtor. If such payment, pledge, mortgage, conveyance, hospitalized lepers, prodigals, deaf and dumb who are sale, assignment, or transfer is not made in the usual and unable to read and write, those who are of unsound mind, ordinary course of business of the debtor, of if such seizure even though they have lucid intervals, and persons not is made under a judgment which the debtor has confessed being of unsound mind, but by reason of age, disease, or offered to allow, that fact shall be prima facie evidence weak mind, and other similar causes, cannot, without of fraud. Any payment, pledge, mortgage, conveyance, outside aid, take care of themselves and manage their sale, assignment, or transfer of property of whatever property, becoming thereby an easy prey for deceit and character made by the insolvent within one month before exploitation. (Rules of Court.) the filing of a petition in insolvency by or against him, except for a valuable pecuniary consideration made in PAGE 22

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Notes, Cases and Commentaries on Persons and Family Relation good faith, shall be void. All assignments, transfers, fishermen and fishworkers in rivers, lakes, bays, and conveyances, mortgages, or encumbrances of real estate lagoons. shall be deemed, under this section, to have been made at The President may enter into agreements with the time the instrument conveying or affecting such realty foreign-owned corporations involving either technical or was filed for record in the office of the Register of Deeds financial assistance for large-scale exploration, of the province or city where the same is situated. development, and utilization of minerals, petroleum, and (Insolvency Law, R.A 1956.) other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. Art. 1830. Dissolution (of partnership) is caused: In such agreements, the State shall promote the xxx development, and use of local scientific and technical (6) By the insolvency of any partner or of the resources. partnership; The President shall subsequently notify the xxx Congress of every contract entered into in accordance with this provisions within thirty days from its execution. Art. 1919. Agency is extinguished: (Constitution.) xxx (3) By the death, civil interdiction, insanity or insolvency of the principal or of the agent; Art. XII, Sec. 7. Save in cases of hereditary xxx succession, no private lands shall be transferred or conveyed except to individuals, corporations, or Art. 2238. So long as the conjugal partnership or associations qualified to acquire or hold lands of the public absolute community subsists, its property shall not be domain. (ibid.) among the assets to be taken possession of by the assignee for the payment of the insolvent debtor's obligations, except insofar as the latter have redounded to the benefit Art. XII, Sec. 8. Notwithstanding the provisions of of the family. If it is the husband who is insolvent, the Section 6 of this Article, a natural-born citizen of the administration of the conjugal partnership or absolute Philippines who has lost his Philippine citizenship may be community may, by order of the court, be transferred to a transferee of private lands subject to limitations the wife or to a third person other than the assignee. provided by law. (ibid.) 7. Alienage Art. XII, Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. Such activities may be directly undertaken by the State, or it may enter into co-production, joint venture, production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period of not exceeding twentyfive years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant. The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment to Filipino citizens. The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence Art. XII, Sec. 11. No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines at least sixty per centum of whose capital is owned by such citizens, nor shall such franchise, certificate or authorization be exclusive in character or for a longer period than fifty years. Neither shall any such franchise or right be granted except under the condition that it shall be subject to amendment, alteration, or repeal by Congress when the common good so requires. The State shall encourage equity participation in public utilities by the general public. The participation of foreign investors in the governing body of any public utility shall be limited to their proportionate share in its capital, and all executive and managing officers of such corporation or association must be citizens of the Philippines. (ibid.) Art. XVI, Sec. 11. (1) The ownership and management of mass media shall be limited to citizens of the Philippines, or to corporations, cooperatives or associations, wholly owned and managed by such citizens. The Congress shall regulate or prohibit monopolies in commercial mass media when the public interest so requires. No combination in restraint of trade or unfair competition therein shall be allowed. (2) The advertising industry is impressed with public interest, and shall be regulated by law for the

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Notes, Cases and Commentaries on Persons and Family Relation protection of consumers and the promotion of the general welfare. The following provisions of the NCC are relevant: Only Filipino citizens or corporations or associations at least seventy per centum of the capital of Art. 742. Donations made to conceived and which is owned by such citizens shall be allowed to engage unborn children may be accepted by those persons who in the advertising industry. would legally represent them if they were already born. The participation of foreign investors in the governing body of entities in such industry shall be limited Art. 1025. In order to be capacitated to inherit, to their proportionate share in the capital thereof, and all the heir, devisee or legatee must be living at the moment the executive and managing officers of such entities must the succession opens, except in case of representation, be citizens of the Philippines. (ibid.) when it is proper. A child already conceived at the time of the death of the decedent is capable of succeeding provided it be Art. XIV, Sec. 4. (2) Educational institutions, born later under the conditions prescribed in article 41. other than those established by religious groups and mission boards, shall be owned solely by citizens of the BALANE/ BAVIERA CASE: Philippines, or corporations or associations at least sixty per centum of the capital of which is owned by such GELUZ V. CA [2 S 801 (1961)] - F: Nita Villanueva came citizens. The Congress may, however, require increased to know the defendant (Antonio Geluz) for the first time in Filipino equity participation in all educational institutions. 1948-- thru her aunt. In 1950, she became preganant by her The control and administration of all educational present husband before they were legally married. During to institutions shall be vested in Filipino citizens. conceal her pregnancy from her parent, she had herself No educational institution shall be established aborted by def. After the marriage w/ the pltff., she again exclusively for aliens and no group of aliens shall comprise became pregnant. As she was employed in the COMELEC more than one-third of the enrolment in any school. The and her pregnancy proved to be inconvenient, she had herself provisions of this subsection shall not apply to schools aborted again by def. in Oct 1953. Less than 2 years later, established for foreign diplomatic personnel and their she again became pregnant. On 2/21/55, she again repaired dependents and, unless otherwise provided by law, for to the def's clinic. Nita was again aborted of a 2-month old other temporary foreign residents. (ibid.) foetus, in consideration of the sum of P50. It is the third and last abortion that constitutes pltff's basis in filing this action and award of damages The CA and II. KINDS OF PERSONS the trial court predicated the award of damages upon the provisions of the initial par. of Art. 2206 of the NCC. A. Natural Persons RULING: This award, we believe, to be error for the said art., in fixing an award for the death of a person, does 1. Commencement of Personality not cover the case of an unborn foetus that is not endowed w/ personality. Art. 37. Juridical capacity, which is the fitness to RATIO: Parents of unborn foetus cannot sue for be the subject of legal relations, is inherent in every damages on its behalf. A husband of a woman who natural person and is lost only through death. Capacity to voluntarily procured her abortion could not recover damages act, which is the power to do acts with legal effect, is from the physician who caused the same. (1) Since an action acquired and may be lost. for pecuniary damages on account of personal injury or death pertains primarily to the injured, no such right of action could Art. 40. Birth determines personality; but the derivatively accrue to the parents or heirs of an unborn child. conceived child shall be considered born for all purposes In fact, even if a cause of action did accrue on behalf of the that are favorable to it, provided it be born later with the unborn child, the same was extinguished by its pre-natal conditions specified in the following article. death, since no transmission to anyone can take place from one that lacked juridical personality (or juridical capacity, as distinguished from capacity to act). It is no answer to invoke Tolentino: Personality from Birth.-- Birth means the the provisional personality of a conceived child ( conceptus removal of the foetus from the mother's womb. pro nato habetur) under Article 40 of the Civil Cod, because that same article expressly limits such provisional personality Conceived Child.-- The personality of the conceived child by imposing the condition that the child should be has 2 characteristics: (1) it is essentially limited, bec. it is subsequently born alive: "provided it be born later with the only for purposes favorable to the child, and (2) it is condition specified in the following article." In the present provisional or conditional, bec. it depends upon the child case, there is no dispute that the child was dead when being born alive later, such that if it is not born alive, its separated from its mother's womb. personality disappears as if it had never existed. (2) This is not to say that the parents are not entitled to collect any damages at all. But such damages must be those Period of Conception.-- Legally, in a normal child, the inflicted directly upon them, as distinguished from the injury period of conception is the first 120 days of the 300 days or violation of the rights of the deceased, his right to life and preceding the birth of the child. physical integrity. Because the parents cannot expect either PAGE 24

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Notes, Cases and Commentaries on Persons and Family Relation help, support or services from an unborn child, they would There was an additional requirement in the OCC: normally be limited to moral damages for the illegal arrest of only that foetus is considered born w/c has a "uniform form." the normal development of the spes hominis that was the This has been taken out in the NCC. foetus, i.e., on account of distress and anguish attendant to its The question of determining the exact duration of loss, and the disappointment of their parental expectations intrauterine life is a problem even medical science is not (Art. 2217, CC), as well as to exemplary damages, if the equipped to answer as of the moment. circumstances should warrant them (Art. 2230, CC). But in this case, there is no basis for an award of moral damages, 2. Once birth occurs, personality for favorable evidently because the husband's indifference to the previous purposes retroacts from the moment of conception .-- The abortions clearly indicates that he was unconcerned with the retroactivity rule is qualified-- only for purposes favorable to frustration of his parental hopes and affection. the child. Art. 41. For civil purposes, the foetus is considered born if it is alive at the time it is completely delivered from the mother's womb. However, if the foetus had an intrauterine life of less than seven months, it is not deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb. Tolentino: Separation from Mother.-- This is produced by the cutting of the umbilical cord, whether the removal takes place naturally or by surgical operation. Alive at Birth.-- The duration of extra-uterine life is immaterial; for acquisition of juridical personality, it is enough that the child lives even for an instant. Test of Life.-The general opinion is that independent life required for juridical personality can be shown only by complete respiration. The cry of the child, although it is not a necessary sign of life, is evidence that it has acquired complete respiration. Another indication of complete respiration is the floating of the lungs when placed in water; this means that air has penetrated into the lungs by breathing. Viability Not Required.-- Viability means that the child is capable of living, and this is determined by the extent of the development of its organs. Premature Birth.-- In this case, if the child does not live 24 hours completely separated from the mother's womb, it does not acquire juridical personality. This is an absolute requirement for feotuses w/c have an intrauterine life of less than 7 mos. (Balane quoting Manresa and JBL.) "The aborted creature does not reach the category of a natural person and consequently is not born in the contemplation of law." (Geluz v. CA, supra.) This is so, even if the child is killed before the period lapses and it can be proved that it could have survived that period if it had not been prevented by the wilful act of another. On the other hand, juridical personality is acquired even if the survival for 24 hours is caused only by medical or scientific means w/o w/c the child would have died before the lapse of that period. 2. Extinguishment a. Contracts Art. 42. Civil personality is extinguished by death. The effect of death upon the rights and obligations of the deceased is determined by law, by contract and by will. Tolentino: Natural Death.-- This art. refers to natural or physical death, bec. this is the only kind of death recognized by present legislation. The law does not recognize the socalled "civil death," known to legislation in the past, by virtue of w/c a man who was alive was considered dead for all purposes bec. of a conviction for crime or of the taking of a religious profession. Balane: Physical death and legal death are the same. The following provisions of the NCC are relevant: Art. 777. The rights to the succession are transmitted from the moment of death of the decedent. Art. 776. The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death. Art. 1919. Agency is extinguished: xxx (3) By the death, civil interdiction, insanity or insolvency of the principal or of his agent. xxx Art. 1830. Dissolution (of partnership) is caused: xxx (5) By the death of any partner. xxx Art. 603. Usufructuary is extinguished: (1) By the death of the usufructuary, unless a contrary intention clearly appears; xxx.

Balane: Ouline of Articles 40 & 41 1. For civil personality to be acquired, one must be Art. 1311. Contracts take effect only between the born.-- A foetus is born after it is completely separated from parties, their assigns and heirs, except in case where the the mother's womb w/c is produced by the cutting of the rights and obligations arising from the contract are not umbilical cord; after the separation, the child now survives by transmissible by their nature, or by stipulation or by itself. PAGE 25

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Notes, Cases and Commentaries on Persons and Family Relation provision of law. The heir is not liable beyond the value of personality in Europe, and w/c existed "when Grecian the property he received from the decedent. eloquence still flourished in Antioch, and when idols were still worshipped in the temple of Mecca," does not require serious consideration. b. Criminal Liability Art. 45. Juridical persons mentioned in Nos. 1 Art. 89. How criminal liability is totally and 2 of the preceding article are governed by the laws extinguished. - Criminal liability is totally extinguished: creating or recognizing them. (1) By the death of the convict, as to the personal Private corporations are regulated by laws of penalties; and as to pecuniary penalties, liability therefor general application on the subject. is extinguished only when the death of the offender occurs Partnerships and associations for private interest before final judgment. or purpose are governed by the provisions of this Code concerning partnerships. B. Juridical Persons Art. 44. The following are juridical persons: (1) The State and its political subdivisions (2) Other corporations, institutions and entities for public interest or purpose, created by law; their personality begins as soon as they have been constituted according to law; (3) Corporations, partnerships and associations for private interest or purpose to which the law grants a juridical personality, separate and distinct from that of each shareholder, partner or member. Balane: A juridical person is an organic unit resulting from a group of persons or mass or property to w/c the State grants or recognizes personality and capacity to hold patrimonial rights independent of those of component members. (quoting Ruggiero.) BALANE CASE: BARLIN V. RAMIREZ [7 P 41] - F: The def., Ramirez, having been appointed by the pltff parish priest, took possession of the church on 7/5/01. He administered if as such under the orders of his superiors until 11/14/02. His successor having been then appointed, the latter made a demand on this def. for the delivery to him of the church, convent, and cemetery, and the sacred ornaments, books, jewels, money, and other prop. of the church. The def., by a written document of that date, refused to make such delivery, stating that "the town of Lagonoy, in conjunction w/ the parish priest of thereof, has seen fit to sever connection w/ the Pope at Rome and his representatives in these Islands, and to join the Filipino Church, the head of w/c is at Mla. In 1/4, the pltff. brought this action against def., alleging in his amended complaint that the Roman Catholic Church was the owner of the church bldg, the convent, cemetery, the books, money, and other prop. belonging thereto, and asking that it be restored to the possession thereof and that the def. render an account of the prop. w/c he had received and w/c was retained by him, and for other relief. The CFI-Ambos Camarines ruled in favor of the pltff. Tolentino: What Governs Juridical Persons.-- The State is governed by the provisions of the Consti; provinces and municipalities are governed by the Local Gov't Code and the Revised Admin. Code; and chartered cities, by their respective charters. Corporations created by special charter are governed primarily by such charter; and those created under general law are governed by the Corporation Code. Partnerships and associations must be governed primarily by their contracts of association, and only secondarily by law, bec. partnerships are created by contract, and it is a fundamental rule that the contract has the force of law between the contracting parties. Art. 46. Juridical persons may acquire and possess property of all kinds, as well as incur obligations and bring civil or criminal actions, in conformity with the laws and regulations of their organization. Tolentino: Capacity of Juridical Persons.-- The juridical person is not completely at par w/ natural persons as to capacity, bec. it cannot exercise rights w/c presuppose physical existence, such as family rights, making of wills, etc. Extinguishment of Capacity.-- The juridical capacity of artificial persons is extinguished upon the termination of its existence in accordance w/ the law governing it or w/ its articles of asso. or incorp. relevant: The following provisions of the Constitution are

Art. XII, Sec. 3. Lands of the public domain are classified into agricultural, forest or timber, mineral lands, and national parks. Agricultural lands of the public domain shall be limited to agricultural lands. Private corporations or associations may not hold such lands of the public domain except by lease, for a period not exceeding twenty-five years, renewable for not more than twentyfive years, and not to exceed one thousand hectares in area. Citizens of the Philippines may lease not more than five hundred hectares, or acquire not more than twelve hectares thereof by purchase, homestead, or grant in excess of twelve hectares. HELD: It is suggested by the appellant that the Roman Taking into account the requirements of Catholic Church has no legal personality in the Philippine conservation, ecology and development and subject to the Islands. This suggestion, made with reference to an principles of agrarian reform, the Congress shall institution w/c antedates by almost a thousand years any other determine, by law, the size of lands of the public domain PAGE 26

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Notes, Cases and Commentaries on Persons and Family Relation which may be acquired, developed, held or leased and the conditions therefor. (Constitution.) Three Rules in Domicile: (1) A man must have a domicile somewhere. (2) A domicile once established remains until a new one is Art. XII, Sec. 7. Save in cases of hereditary acquired. succession, no private lands shall be transferred or (3) A man can have only 1 domicile at a time. conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public Domicile and Residence. Domicile is not the same as domain. (ibid.) residence. Domicile is residence plus habituality. (not in Baviera's outline) Art. 47. Upon the dissolution of corporations, institutions and other entities for public interest or purpose mentioned in No. 2 of article 44, their property and other assets shall be disposed of in pursuance of law or the charter creating them. If nothing has been specified on this point, the property and other assets shall be applied to similar purposes for the benefit of the region, province, city or municipality which during the existence of the institution derived the principal benefits from the same. Art. 48. Superseded by Art. IV, Sec. 1 of the 1987 Constitution Art. IV, Sec. 1. The following are citizens of the Philippines: (1) Those who are citizens of the Philippines at the time of the adoption of this Constitution; (2) Those whose fathers or mothers are citizens of the Philippines; (3) Those born before Janurary 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. 49. Naturalization and the loss and reacquisition of citizenship of the Philippines are governed by special laws. Art. 50. For the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is the place of their habitual residence. Balane: Requisites of Domicile: (1) physical presence; (2) animus manendi (intent to remain) (Gallego v. Vera, 73 P 453.) Importance of Understanding Domicile.-- In case of revocation of wills (Art. 829), place of performance of obligation (Art. 1251, par. 3), renvoi (Aznar v. Garcia.) Art. 51. When the law creating or recognizing them, or any other provision does not fix the domicile of juridical persons, the same shall be understood to be the place where their legal representation is established or where they exercise their pricipal functions. (Articles 1 to 54 follows Prof. Ruben Balane's Outline) MARRIAGE Definition Tolentino: Definitions of Marriage.-- The term marriage has 2 distinct meanings. In one sense, it is limited to the procedure by w/c a man and a woman become husband and wife. In this concept, it is defined as "that act by which a man and a woman unite for life, with the intent to discharge towards society and one another those duties which result from the relation of husband and wife." In the second sense, marriage is a status involving duties and responsibilities w/c are no longer matter for private regulations, but the concern of the State. xxx As such, it is defined as "the civil status of one man and one woman, legally united for life, with rights and duties which, for the establishment of families and the multiplication of the species, are, from time to time may thereafter be, assigned by law to matrimony." (Balane quoted Tolentino on the meaning of marriage.) Purposes of Marriage.-- In general: (1) reproduction, (2) education of the offspring, and (3) mutual help. The immediate purpose is the constitution of a complete and perfect community bet. 2 individuals of different sexes; the remote purpose is the preservation of the human race. Art. 1. 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 incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code.

Three kinds of Domicile: (1) Domicile of Origin.-- Domicile of the parents of a person at the time he was born (2) Domicile of Choice.-- Domicile chosen by a person to change his original domicile. Aside from the 2 requisites mentioned above, a third requisite must be present in domincile of choice, animus non revertendi (intention not to return to one's old domicile as his permanent place.) (3) Domicile by Operation of Law.-- E.g., Art. 69, FC. PAGE 27

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Notes, Cases and Commentaries on Persons and Family Relation Tolentino: Marriage a Social Institution.-- Marriage is a to make donations to each other; (6) disqualification of the contract only in form, but in essence it is an institution of sps. to testify against each other; (7) modification of crim. public order, founded on custom and morality. It is a contract liab., such as by way of exemption when one spouse defends sui generis w/c cannot be compared to any other contract. the other from unlawful aggression or is his accessory after the fact, or mitigation when the crime is committed in Characteristics: (1) It is civil in character, bec. it is vindication of a grave offense to the spouse, or aggravation established by the State independently of its religious aspect; when the injured is the spouse of the offender, such as in (2) it is an institution of public order or policy , governed by parricide. rules established by law w/c cannot be made inoperative by the stipulation of the parties; (3) it is an institution of natural Contract to Marry.-- Where parties mutually agree to character, bec. one of its objects is the satisfaction of the marry each other at some future time, there is a contract to intimate sentiments and needs of human beings for the marry. xxx It can be distinguished from an ordinary contract organic perpetuation of man. in that the promise of either party cannot be enforced by court action, bec. the consent to the actual marriage must be purely Balane: Marriage is a contract. Art. 52, NCC provides that voluntary. M is not a mere contract. Art. 1, FC, on the other hand Breach of Promise.-- There is repudiation where provides that M is a special contract. Both emphasize that M before the time set for the performance of the marriage, one is not just a contract. party declares that he will not carry it out, or refuses to further communicate w/ or maintain a suitor's relation w/ the Tolentino: Differentiated from Ordinary Contracts: (1) other party, or puts himself in a position where he cannot As to parties: Ordinary contracts (0C) may be entered into by execute the contract, as when he marries another. any no. of persons, whether of the same or different sex, while marriage (M) can be entered into only by one man and Damages for Breach.-- [T]he action for breach of one woman; (2) As to contractual rights and obligations: In promise to marry has no standing in the civil law, apart from OC, the agreement of the parties have the force of law bet. t he right to recover money or property advanced by the them while in M, the law fixes the duties and rights of the plaintiff upon the faith of such promise." (De Jesus v. parties; (3) As to termination: OC can be terminated by Syquia, 58 P 866.) mutual agreement of the parties, while M cannot be so We believe that an action based purely on breach of terminated; neither can it be terminated even though one of the contract to marry, will not lie. xxx It is true that she may the parties subsequently becomes incapable of performing his suffer from wounded feelings and mental anguish, and these part; and (4) As to breach: Breach of OC gives rise to an are recognized as elements of moral damages under article action for damages, while breach of the obligations of a 2217; but before such damages can be recovered, there must husband or a wife does not give rise to such an action; the law first be a right of action, and there is no law granting a right provides penal and civil sanctions, such as prosecution for of action on breach of contract to marry. However, we believe adultery or concubinage, and proc. for legal sep.; (5) As to that if the action for damages is based on tort or quasi-delict, effect: OC do not create status, M does. (no. 5 was added by or on articles 19, 21, or 22 of the present Code, there would Balane.) be a sufficient legal basis or right of action for damages. Balane: Quite logically, marriage is the starting point of any family relation bec. in our legal system, the family is the keystone of society, the basic unit of society. And marriage is the keystone of the family. This is a value judgement. Marriage does not have to be the keystone of the family. But we choose it to be that way. xxx Much arguments have been raised regarding the status of children on the distinction of legitimate from illegitimate children. There are those who propose the abolition of the distinction as it is not the fault of the illegitimate child that he is such. But one of the uninentended consequence of abolishing the distinction is to erode the institution of marriage. Are we ready to take that path? Effect of Seduction.-- xxx [I]t is possible legally to base an action upon the carnal knowledge of the pltff. by the def., or upon the seduction, as a fact separate from the contract to marry. The promise to marry would only be the means of accomplishing the seduction. If the offended woman has been led to submit to carnal intercourse by the promise of marriage, she should be entitled to damages, not only on the basis of tort or quasi-delict, but under the provisions of art. 21. xxx The essence of the action would not be the breach of the contract, but the tortious or wrongful act or seduction accomplished through the deceitful promise. Abuse of right.-- Even when there has been no seduction, we believe that under art. 19, damages, may under certain circumstances, be recovered against a party who repudiates a contract to marry; but the basis of the action cannot be the mere breach of contract itself, but some act constituting an abuse of right.

Tolentino: Principal Effects of Marriage: (1) personal and economic relations bet. the sps., w/c become sources of impt. rights and duties; (2) the legitimacy of sexual union and of the family; (3) the personal and economic relations bet. parents and children, w/c gives rise to considerable rights and Unjust enrichment.-Another legal basis in duties; (4) the family rel'p, from w/ flow various juridical connection w/ a breach of contract to marry is art. 22 on consequences, such as impediments to marriage, right to unjust enrichment. xxx Gifts to the person to whom the donor support, and rights to inheritance; (5) incapacity of the sps. is engaged to be married are considered legally as PAGE 28

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Notes, Cases and Commentaries on Persons and Family Relation conditional, and upon breach of the engagement by the donee, I. REQUISITES OF A VALID MARRIAGE may be recovered by the donor. (see Domalagan v. Bolifer, 33 P 471.) Balane: There are two kinds of requisites, the essential and the formal. There are three essential requisites: (1) legal Oral Agreement.-- Under 1403 "an agreement capacity of the contracting parties, (2) consent freely given made in consideration of marriage, other a mutual promise to and (3) difference in sex (other commentators opine that this marry," shall be unenforceable by action, unless the same, or third is already included in legal capacity.) some note or memorandum thereof, be in writing, and On the other hand, there are also 3 formal requisites: subscribed the party sought to be charged. (Statute of (1) authority of the solemnizing officer, (2) a valid marriage Frauds.) license and (3) some form of cermeony. It seems to us that the writing is not necessary in an action for damages for breach of a contract to marry. First, Distinction.-- Absence, Defect, Irregularity of Requisites: where the party who sues for damages has already given the (1) Absence of a requisite, whether essential or consideration for the promise of the def., it is unjust to deny formal, renders the M void the action on the plea of the Statute of Frauds. Second, the Absence means a total want of a requisite. E.g., the Statute should apply only when the action is to enforce the total absence of a marriage license (absence of a formal contract; but not when it is for damages for breach. requisite) w/c renders the M void. (2) A defect in the essential requisite makes the M voidable Goitia v. Campos Rueda [35 P 252] -- F: This is an action E.g., where the consent of either party was vitiated for support by G (wife) against R (husband). After 1 mo. of by intimidation. marriage, R repeatedly demanded from G to perform (3) An irregularity in the formal requisite does not "unchaste and lascivious acts on R's genitals." Bec. of G's affect the validity of the marriage but this is w/o prejudice to refusal, R maltreated G by word and deed, inflicting bodily the criminal, civil or administrative liab. of erring officials. injuries on G. To escape R's lewd designs and avoid further E.g., where the marriage license was issued w/o harm, G left the conjugal home and took refuge in her complying w/ the 10-day posting requirement. (Art. 17, FC.) parent's house. G filed an action for support w/ the trial court. this was dismissed on the ground that R could not be compelled to give support if G lived outside of the conjugal 1. Difference in Sex (an essential requisite)-home, unless there was legal sep. G appealed. Articles 2 par. 1, 4 par. 1, 39 HELD: Marriage is something more than a mere contract. It is a new relation, the rights, duties, and obligations of w/c rest not upon the agreement of the parties but upon the general law w/c defines and prescribes those rights, duties, and obligations. Marriage is an institution, in the maintenance of w/c in its purity the public is deeply interested. It is a relation for life and the parties cannot terminate it at any shorter period by virtue of any contract they may make. The reciprocal rights arising from this relation, so long as it continues, are such as the law determines from time to time and none other. When the legal existence of the parties is merged into one by marriage, the new relation is regulated and controlled by the state or govt upon principles of public policy for the benefit of society as well as the parties. And when the object of a marriage is defeated by rendering its continuance intolerable to one of the parties and productive of no possible good to the community, relief in some way should be obtainable. The law provides that the H, who is obliged to support the wife, may fulfill this obligation either by paying her a fixed pension or by maintaining her in his own home at his option. However, the option given by law is not absolute. The law will not permit the H to evade or terminate his obligation to support his wife if the wife is driven away from the conjugal home bec. of the H's own wrongful acts. In this case, where the wife was forced to leave the conjugal abode bec. of the lewd designs and physical assaults of the H, the W may claim support from the H for separate maintenance even outside of the conjugal home. Art. 2. No marriage shall be valid, unless these essential requisites are present: (1) Legal capacity of the contracting parties who must be a male and a female; xxx xxx Balane: The phrase "who must be a male and a female" was not found in the NCC. Art. 4. The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35 (2). xxx Art. 39. The action or defense for the declaration of absolute nullity of a marriage shall not prescribe. xxx 2. Some Form of Ceremony (a formal requisite.)-Articles 3 par. 3, 4 par. 1, 6 Art. 3. The formal requisites of marriage are: xxx (3) A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age.

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Notes, Cases and Commentaries on Persons and Family Relation Tolentino: Ceremony of Marriage.-- The requirement of a form for the ceremony of marriage is required, but the parties marriage ceremony prevents the recognition in the Phils. of must declare, in the presence of the person solemnizing the what are known as "common law marriages." A common law marriage, that they take each other as husband and wife." marriage is a present agreement bet. a man and a woman w/ CFI found for def. capacity to enter into such rel'p, to take ea. other as H and W, followed by cohabitation. HELD: The parties addressed a signed petition to the justice of the peace stating that they had agreed to marry, and asking Art. 4. The absence of any of the essential or the justice of the peace to marry them. Before the justice of formal requisites shall render the marriage void ab initio, the peace, they stated under oath that they ratified the except as stated in Article 35 (2). contents of their petition and insisted on what they asked for. xxx This statement was signed by them, in the presence of witnesses that they produced. A certificate was then made Art. 6. No prescribed form or religious rite for the out by the justice of the peace, signed by him and the solemnization of the marriage is required. It shall be witnesses, stating the parties had been married by him. Both necessary, however for the contracting parties to appear the parties knew the contents of the document w/c they personally before the solemnizing officer and declare in signed. Under the circumstances, what took place before the the presence of not less than two witnesses of legal age justice of the peace amounted to a marriage. that they take each other as husband and wife. This declaration shall be contained in the marriage certificate (not in Balane's outline) which shall be signed by the contracting parties and their Art. 8. The marriage shall be solemnized publicly witnesses and attested by the solemnizing officer. in the chambers of the judge or in open court, in the In case of a marriage in articulo mortis, when the church, chapel or temple, or in the office of the consulparty at the point of death is unable to sign the marriage general, consul or vice-consul, as the case may be, and not certificate, it shall be sufficient for one of the witnesses to elsewhere, except in cases of marriages contracted at the the marriage to write the name of said party, which fact point of death or in remote places in accordance with shall be attested by the solemnizing officer. Article 29 of this Code, or where both of the parties request the solemnizing officer in writing in which case Balane: Requisites of some form of ceremony: the marriage may be solemnized at a house or place (1) Personal appearance of the contracting parties designated by them in a sworn statement of that effect. in the presence of the solemnizing officer . This rules out proxy marriages. Sempio-Dy: This provision is only directory, not mandatory, (2) The declaration that they declare in some so that non-compliance therewith will not invalidate the manner that they take each other as H & W . This provision marriage. is worded broadly. There is no set formula for the declaration, no particular words are required. It does not SAN GABRIEL V. SAN GABRIEL [56 O.G. p. 3555 even have to be oral provided that there is sufficient (1960)] - The mere fact that the marriage took place on a manifiestation of their will that they take each other as H & Sunday also would not necessarily vitiate the marriage on the W. ground that it constitutes a violation of the requirement that (3) Presence of at least 2 witnesses of legal age . the marriage shall be solemnized publicly in the office of the Some say that the absence of this 3rd requisite renders the judge in open court. marriage void. Others say it is only an irregularity. 3. Legal Capacity (an essential requisite.)-- Art. 2 Tolentino: It is not necessary to the validity of the marriage that the contracting parties should recite precisely the words of the statute. It is enough that the words employed evidence mutual consent. Failure to Sign or Issue Certificate.-- The certificate is merely of evidentiary value, and failure to sign the same does not render the marriage a nullity. The consent can be proved by other competent evidence, such as the testimony of the solemnizing officer, of the parties themselves, of the witnesses to the marriage, and of others present at the wedding. par. 1 Art. 2. No marriage shall be valid, unless these essential requisites are present: (1) Legal capacity of the contracting parties who must be a male and a female; xxx a. Age.-- Articles 5, 35 par. 1, 45 par. 1, 47 par. 1, 39 Art. 5. Any male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 37 and 38, may contract marriage.

Martinez v. Tan [12 P 731] -- F: Pltff. Rosalia Martinez Tolentino: Age of Consent.-- The age for each party commenced this action for the cancellation of the cert. of provided in Art. 5 is generally known as the "age of consent." marriage and for damages. Pltff. claimed that what took for marriage. Eighteen yrs is the "age of consent" bec. below place before the justice of the peace did not constitute a legal this age, a party to a marriage cannot give a binding valid marriage under Gen. Orders No. 68, Sec. 6, "No particular consent. PAGE 30

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Notes, Cases and Commentaries on Persons and Family Relation (1) For causes mentioned in number 1 of Article Balane: 18 yrs. old is an absolute minimum. 45 by the party whose parent or guardian did not give his or her consent, within five years after attaining the age of Tolentino: Age of Legal Capacity.-- For a perfect consent 21; or by the parent or guardian or person having legal that would result in a valid binding marriage, the parties charge of the minor, at any time before such party should be 21 yrs. of age. The age of 21 is, thus, the "age of reached the age of 21; legal capacity" to marry. xxx Effect of Penal Law.-- Under Art. 344, RPC, the marriage of the offender w/ the offended party shall extinguish the criminal action or remit the penalty already imposed upon him. Q: If the victim of the crimes of rape, seduction, adbuction, and acts of lasciviousness happens to be a girl less than 18 yrs. old, can she validly marry the offender? A: We believe that she can. It is submitted that the circumstances contemplated by the RPC are of an exceptional character, and shld be considered as an exception to the provisions of the FC on the legal capacity to marry. xxx If merely bec. she is below the age of consent she will not be permitted to marry the offender, then we will have the absurd case where the law gives a remedy w/ one and denies it w/ the other hand. Art. 35. The following marriages shall be void from the beginning: (1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians; xxx Balane: There is here an absolute absence of an essential requisite. Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage: (1) That the party in whose behalf it is sought to have the marriage annulled was 18 years of age or over but below 21, and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of 21, such party freely cohabited with the other and both lived together as husband and wife; xxx Tolentino: Want of Parental Consent.-- The law does not expressly authorize the parent whose consent is required, to ratify the marriage. xxx We believe that xxx the ratification by the parent whose consent is wanting must be recognized as sufficient to validate the marriage, provided such ratification is made before the party to the M reaches 21 yrs. old. Art. 47, par. 1 recognizes the right of such parent to ask for the A of the M bef. the child who has married w/o parental consent reaches the age of 21. This right can be waived. Besides, if the nullity proceeds from the absence of consent, there is no juridical reason why such defect cannot be cured by subsequent confirmation. xxx Balane: This kind of marriage can be ratified by cohabitation for a reasonable period of time after the minor reaches the age of 21. Here ratification can set in even before the prescription sets in. Art. 39. The action or defense for the declaration of absolute nullity of a marriage shall not prescribe. xxx b. Relationship.-- Articles 37, 38 par. 1 to 8, 39 Art. 37. Marriages between the following are incestuous and void from the beginning, whether the relationship between the parties be legitimate or illegitimate: (1) Between ascendants and descendants of any degree; and (2) Between brothers and sisters, whether of the full or half blood. Art. 38. The following marriages shall be void from the beginning for reasons of public policy: (1) Between collateral blood relatives, whether legitimate or illegitimate, up to the fourth civil degree; (2) Between step-parents and step-children; (3) Between parents-in-law and children-in-law; (4) Between the adopting parent and the adopted child; (5) Between the surviving spouse of the adopting parent and the adopted child; (6) Between the surviving spouse of the adopted child and the adopter; (7) Between an adopted child and a legitimate child of the adopter; (8) Between adopted children of the same adopter; and xxx Tolentino: Collateral Blood Relatives.-- Marriages bet. nephews and aunts, uncles and nieces, and first cousins are prohibited under par. (1). This prohibition is based on scientific opinion as well as on public opinion. They are contrary to good morals. Although not conclusive, there is scientific and expert opinion that, except in rare cases, children of first cousins suffer from organic defects, and in many instances are idiots, weak-minded, deaf, nearsighted, etc., in other words, their marriage tends to weaken the race. Art. 39. The action or defense for the declaration of absolute nullity of a marriage shall not prescribe. xxx

Art. 47. The action for annulment of marriage must be filed by the following persons and within the periods indicated herein: PAGE 31

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Notes, Cases and Commentaries on Persons and Family Relation c. Prior Marriage.-- Articles 35 par. 4, par. xxx This article applies only when a license is to be 6, 40, 41, 42, 43, 44, 53 & 39 obtained for a subsequent marriage. Balane: There are 3 kinds of marriage that are void bec. of a prior marriage: 1. A bigamous or polygamous marriage, not falling under Art. 41. 41: There are 3 requisites under Art. DOMINGO V. CA [226 SCRA 572 (1993)] - A spouse may petition for the declaration of nullity of her marriage for a purpose other than her remarriage. F: Delia Domingo filed a pet. for decl. of nullity of her marriage w/ Roberto Domingo, on the ground that, unknown to her, he was previously married at the time of their marriage. She prays that their marriage be declared null and void and, as a consequence, to declare that she is the exclusive owner of all properties she acquired during the marriage and to recover them from him. Roberto moved to dismiss the petition on the ground that the marriage being void ab initio, the petition for decl. of nullity is unnecessary citing Peo. v. Aragon and Peo. v. Mendoza. Roberto claims that decl of nullity is necessary under Art. 40, FC only for the purpose of remarriage. The lower court denied the motion. CA affirmed the denial. HELD: The Declaration of nullity of a marriage under Art. 40 may be resorted to even for a purpose other than remarriage. Crucial to the proper interpretation of Art. 40 is the position of the word "solely." xxx. As it is placed, it is meant to qualify "final judgment." Had the provision been stated as follows: "The absolute nullity of a previous marriage may be invoked solely for purposes of remarriage...," the word "solely" will qualify "for purposes of remarriage" and the husband would have been correct. That Art. 40 as finally formulated included the significant clause denotes that such final judgment declaring the previous marriage void need not be obtained only for purposes of remarriage. ATIENZA V. BRILLANTES [243 SCRA 32 (1995)] - F: This is an administrative complaint filed by Atienza for Gross Immorality and Appearance of Impropriety against J. Brillantes, Presiding Judge of MTC, Mla. It was alleged in the complaint that Brillantes has been cohabiting w/ Yolanda De Castro (w/ whom Atienza had 2 children) when he (Brillantes) was already married to one Zenaida Ongkiko w/ whom he has 5 children. xxx Resp. denies having been married to Ongkiko, although he admits having 5 children w/ her. He alleges that while he and Ongkiko went through a marriage ceremony, the same was not valid for lack of marriage license. The second marriage bet. the two also lacked the required license. He claims that when he married De Castro in LA, California, he believed, in all GF and for all legal intents and purposes, that he was single bec. his first marriage was solemnized w/o a license.

a. Absence of the prior spouses for at least 4 consecutive yrs. or at least 2 consecutive yrs. if it falls under Art. 391, NCC. b. The spouse present has a wellfounded belief that the absent spouse was already dead. c. The institution by the spouse present of a summary proceeding of presumptive death of the absent spouse. A declaration by the court of the presumptive death is of course required. 2. In Art. 40 where the marriage was contracted after a void ab initio marriage w/c has not been declared void by final judgment. 3. In Art. 53 in case of a subsequent marriage w/c does not comply w/ the requirements of Art. 52. In Art. 52, you have to do 3 things: a. Judgment of annulment or nullity of marriage must be registered in the appropriate registry. b. The registration of the partition and distribution of the properties of the spouses in the appropriate civil registry. c. The delivery of the common children's presumptive legitime. Art. 35. The following marriages shall be void from the beginning: xxx (4) Those bigamous or polygamous marriages not falling under Article 41; xxx. (6) Those subsequent marriages that are void under Article 53. Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. Tolentino: [F]or purposes of remarriage it would be necessary to such void M to secure a final judgement declaring it null and void from the beginning. W/o such final judgment, the previous void marriage would constitute an impediment to the remarriage, and a marriage license may be denied.

HELD: Under the FC, there must be a judicial decl. of the nullity of a previous marriage bef. a party thereto can enter into a 2nd marriage. (Art. 40.) Art. 40 is applicable to remarriages entered into after the effectivity of the FC regardless of the date of the first marriage. Said art. is given "retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance w/ the NCC or other laws." (Art. 256, FC.) This is particularly true w/ Art. 40 PAGE 32

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Notes, Cases and Commentaries on Persons and Family Relation w/c is a rule of procedure. Resp. has not shown any vested w/ his parents. Sometime, in 1/83, while working overseas, right that was impaired by the application of Art. 40 to his Nolasco received a letter from his mother informing him that case. Janet had already given birth to his son. The letter also The fact that procedural statutes may somehow affect informed him that Janet left Antique after giving birth. xxx the litigants' rights may not preclude their retroactive In 88, or 5 yrs. after the disappearance of Janet, application to pending actions. The retroactive application of Nolasco filed an action for the decl. of presumptive death of procedural laws is not violative of any right of a person who his wife Janet under Art. 41, FC, claiming that all his efforts may feel that he is adversely affected. The reason is that as a to look for her proved fruitless. general rule no vested right may attach to, nor arise from, xxx The trial court granted the petition. CA procedural laws. affirmed the ruling. Hence this petition for review. Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present had a wellfounded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only 2 years shall be sufficient. For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. Article 391. The following shall be presumed dead for all purposes, including the division of the estate among the heirs: (1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane; (2) A person in the armed forces who has taken part in war, and has been missing for four years; (3) A person who has been in danger of death under other circumstances and his existence has not been known for four years. Tolentino: The period was reduced in the FC to 2 years in the foregoing cases. REPUBLIC V. NOLASCO [220 SCRA 20 (1993)] - The declaration of presumptive death under Art. 41, FC is available only for the purpose of remarriage . HELD: 1. A petition to declare an absent spouse presumptively dead may not be granted in the absence of any allegation that the spouse present will remarry. 2. There are 4 requisites for the declaration of presumptive death under Art. 41: 1. That the absent spouse has been missing for 4 consecutive years, or 2 consecutive yrs. if the disappearance occurred where there is a danger of death under the circumstances laid down in Art. 391. 2. That the spouse present wishes to remarry 3. That the spouse present has a well-founded belief that the absentee is dead. 4. That the present spouse files a summary proceeding for the declaration of presumptive death of the absentee. The Court believes that resp. Nolasco failed to conduct a search for his missing wife w/ such diligence as to give rise to a "well-founded belief" that she is dead. The Court considers the investigation allegedly conducted by Nolasco in his attempt to ascertain the whereabouts of Janet as to sketchy to form the basis of a reasonable or well-founded belief that she was already dead. For instance, when he arrived in Antique, instead of seeking the help of local authorities or of the British Embassy, he secured another seaman's contract and went to London. We do not consider that walking into a major city w/ a simple hope of somehow bumping into one particular person there xxx can be regarded as a reasonable diligent search. The Court also views Nolasco's claim that Janet declined to give any info. as to her personal background even after marrying Nolasco as too convenient an excuse to justify his failure to locate her. BIENVENIDO V. CA [237 SCRA 676 (1994)] - When a man contracts a subsequent marriage while the first marriage is subsisting, the second marriage as a general rule is void for being bigamous. He who invokes that the second marriage is voidable for being an exception under Art. 83 of the NCC has the burden of proving it.

F: Gregorio Nolasco was a seaman. During one of the calls of his ship to England, he met Janet Monica Parker, a F: Aurelio Camacho married Conseja Velasco in '42. British subject. From that chance meeting, Janet lived w/ In '62, w/o this marriage being dissolved, Aurelio married Nolasco on his ship for 6 mos. When Nolasco's contract Luisita Camacho in Tokyo. In '67, Aurelio met Nenita expired in 1960, Janet went w/ him in returning home to San Bienvenido. Aurelio courted and won her and they cohabited Jose, Antique. In Jan. 1982, Nolasco married Janet in until Aurelio's death in '88. In '82, Aurelio bought a house Catholic sites in Antique. and lot. In the deed of sale and in the TCT in his name, he After the marriage, Nolasco obtained another was described as single. In '84, he sold the said house and lot employment contract as a seaman, leaving his pregnant wife to Nenita. When Aurelio died, Luisita filed an action to PAGE 33

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Notes, Cases and Commentaries on Persons and Family Relation annul the sale to Nenita alleging that it was in fraud of her as When No Action Taken.-- If the absentee reappears, but no the legitimate wife of Aurelio. Nenita opposed the action step is taken to terminate the subsequent M, either by claiming that she was a buyer in GF. The trial court upheld affidavit or by court action, his mere reappearance, even if the sale in favor of Nenita. The CA reversed. Hence, this made known to the spouses in the 2nd M, will not terminate petition for review. such M. HELD: There is no presumption that the marriage bet. Aurelio and Luisita is valid. As a general rule, under Art. 83, NCC, a subsequent marriage contracted while the previous one is still subsisting is void. There are exceptions to this rule but he who is invoking the exception has the burden of proving the existence of the conditions for the said exception to arise. In the case at bar, the burden of proof was on Luisita to show that at the time of her marriage to Aurelio, Aurelio's first wife had been absent for at least 7 yrs and that he had no news that she was alive. She failed to discharge this burden. What applies, therefore, is the general rule xxx. Consequently, there is no basis for holding that the prop. in question was prop. of his conjugal partnership bet. Luisita and Aurelio bec. there was no partnership in the first place. Art. 42. The subsequent marriage referred to in the preceding Article shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio. A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in case such fact is disputed. Balane: Marriage under Art. 41 is valid unless terminated under Art. 42. Notice that the law uses the term "terminated" and not annulled. This is bec. marriage under Art. 41 is a good marriage. The effect of the affidavit of reappearance is that the subsequent marriage is terminated unless it is judicially challenged. Tolentino: If both parties to the subsequent marriage acted in BF (knowing that the absent spouse is alive), the said marriage is void ab initio under Art. 44. Q: If only one party has acted in BF, is the M valid? A: If the spouse who contracted the 2nd M knew that in spite of the absence of his spouse for the period provided in 41 said absent spouse was alive, his 2nd M shld be considered void as bigamous under 35(4), bec. an essential element in 41 to make it an exception is wanting. If such present spouse has acted in GF and the declaration of presumptive death has been obtained, the BF of the 2nd spouse will not affect the validity of the M, but the provisions of 43 will operate against him, such as the revocation of donations by reason of M made to him, of his designation as beneficiary in any insurance of the innocent spouse, and his disqualification to inherit from the innocent spouse. [I]t is incorrect to say that the first M is dissolved by the celebration of the 2nd. It would be more accurate to say that since the 2nd M has been contracted bec. of a presumption that the former spouse is dead, such presumption continues in spite of his physical reappearance, and by fiction of law, he must be regarded as legally an absentee, until the subsequent M is terminated as provided by law. The result of this is the suspension of the legal effects of M as to him as long as the 2nd M subsists. GOMEZ V. LIPANA [38 S 615 (1958)] - Where a husband and his second wife from whom he concealed his first marriage, acquired properties during their marriage, the second marriage being void, is subject to collateral attack in the intestate proceedings instituted by the judicial administra trix for the forfeiture of the husband's share under Article 1417, Spanish Civil Code (no longer in force) . "The legal situation arising from these facts is that while insofar as the second wife was concerned, she having acted in good faith, her marriage produced civil effects and gave rise, just the same, to the formation of the conjugal partnership wherein she was entitled to an equal share upon dissolution." The only JUST AND EQUITABLE solution is to give one-half of the properties to the second wife, and the other half to the conjugal partnership of the first marriage. CONSUEGRA V. GSIS [37 S 315 (1971)] - Where the husband designated his second family as beneficiaries of his life insurance policy, upon his death, both his first wife and second family share 50-50 in the benefits. Since the first marriage has not been dissolved, his wife remains as his legal heir. Although the second marriage is presumed void, having been contracted during the subsistence of the first marriage, there is a need for a judicial declaration of its nullity, which is no longer possible, the death of the husband having terminated the second conjugal partnership of gains. Baviera: The court should not have applied Gomez v. Lipana, since there is no provision in the Civil Code giving effect to a void marriage in good faith. PEOPLE V. MENDOZA [95 S 845 (1954)] - A subsequent marriage contracted by any person during the lifetime of his spouse is illegal and void from its performance, and no judicial decree is necessary to establish its invalidity. A prosecution for bigamy based on said void marriage will not lie. PEOPLE V. ARAGON [100 P 1033 (1957)] - cited People v. Mendoza

Baviera: As a defense in bigamy, there is no need for judicial declaration of nullity of a void marriage; as far as determination of property relations is concerned, there is a need for such judicial declaration for purposes of remarriage. PAGE 34

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Notes, Cases and Commentaries on Persons and Family Relation delivery of the children's presumptive legitimes shall be recorded in the Art. 43. The termination of the subsequent appropriate civil registry and registries marriage referred to in the preceding Article shall of property; otherwise, the same shall not produce the following effects: affect third persons. (1) The children of the subsequent marriage conceived prior to its termination shall be considered legitimate, and their custody and support in case of Art. 39. The action or defense for the declaration dispute shall be decided by the court in a proper of absolute nullity of a marriage shall not prescribe. xxx proceeding; (2) The absolute community of property or the d. Crime.-- Articles 38 par. 9, 39 conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted Art. 38. The following marriages shall be void said marriage in bad faith, his or her share of the net from the beginning for reasons of public policy: profits of the community property or conjugal partnership xxx property shall be forfeited in favor of the common (9) Between parties where one, with the intention children or, if there are none, the children of the guilty to marry the other, killed that other person's spouse, or spouse by a previous marriage or, in default of children, his or her own spouse. the innocent spouse; (3) Donations by reason of marriage shall remain Balane: Art. 38 (9) used to be Art. 80 (6) of the NCC. Two valid, except that if the donee contracted the marriage in changes were made: (1) the killing must be w/ the intention bad faith, such donations made to said donee are revoked to marry the other; (2) conviction is not required, a by operation of law; preponderance of evidence being sufficient. (4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as Tolentino: Killing of Spouse.-- It is submitted that a beneficiary in any insurance policy, even if such criminal conviction for the killing is not necessary to render designation be stipulated as irrevocable; and the marriage void under the FC. The removal of the (5) The spouse who contracted the subsequent requirement by the FC must be taken as deliberate. marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession. Art. 39. The action or defense for the declaration of absolute nullity of a marriage shall not prescribe. xxx Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by reason of marriage and e. Physical capability.-- Articles 45 par. 5, testamentary dispositions made by one in favor of the 47 par. 5 other are revoked by operation of law. Art. 45. A marriage may be annulled for any of Tolentino: If the subsequent marriage is not terminated by the following causes, existing at the time of the marriage: the subsequent reappearance or by judicial declaration, but by xxx death, do these effects arise? (5) That either party was physically incapable of A: It is submitted that generally if a subsequent M is consummating the marriage with the other, and such dissolved by the death of either spouse, the effects of incapacity continues and appears to be incurable; xxx dissolution of valid M shall arise. The GF or BF of either xxx spouse can no longer be raised, bec., as in annullable or voidable M, the M cannot be questioned except in a direct Balane: Physical Incapacity: Requisites: (1) The action for annulment. incapacity exists at the time of the celebration of the M; (2) But if both parties acted in BF, under 44, the M is Such incapacity must be permanent (it continues to the time void ab initio. In such case, the validity of the M can be when the case for annulment is being tried) and incurable ; attacked collaterally at any time, and the effects provided on (3) It must be unknown to the other contracting party; (4) 44 can be applied even if the dissolution is by death of one of the other spouse must not himself/ herself be impotent. the spouses. This kind of marriage cannot be ratified by ratification. Art. 53. Either of the former spouses may marry again after complying with the requirements of the Tolentino: xxx The physical incapacity referred to by the immediately preceding Article; otherwise, the subsequent law as a ground for A of M, is impotence [ impotentia marriage shall be null and void. copulandi/ coeundi as distinguished from impotentia generandi (sterility)], or that physical condition of the H or Art. 52. The judgment of the W in w/c sexual intercourse w/ a normal person of the annulment or of absolute nullity of the opposite sex is impossible. marriage, the partition and distribution Impotence refers to lack of power to copulate, the of the properties of the spouses, and the absence of the functional capacity for the sexual act. The PAGE 35

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Notes, Cases and Commentaries on Persons and Family Relation defect must be lasting to be a ground for annulment. The test The Committee decided to adopt par. 3 of the New of impotence is not the capacity to reproduce, but the capacity Code of Canon Law as a ground for the declaration of nullity to copulate. (Sarao v. Gueverra.) of marriage for the following reasons: (1) As a substitute for divorce; (2) As a solution to the problem of Church-annulled The refusal of the wife to be examined does not marriages; (3) As an additional remedy to parties who are create the presumption of her impotency bec. Filipino girls imprisoned by a marriage that exists in name only as they are inherently shy and bashful. The trial court must order the have long separated bec. of the inability of one of them to physical examination of the girl, bec. w/o proof of impotency, perform the essential obligations of marriage. she is presumed to be potent. To order her to submit to a physical examination does not infringe on her constitutional Psychological Incapacity Distinguished from Vice of right against self-incrimination (Sempio-Dy citing Jimenez Consent.-- Psychological incapacity is not a question of v. Canizares, Aug. 31, 1960.) defective consent but a question of fulfillment of a valid consent. Triennial Cohabitation.-- This doctine provides that if the wife be a virgin and apt after 3 yrs. of cohabitation, the H will be presumed to be impotent, and the burden will be upon him to overcome the presumption and does not prevent impotency to be proved by another proper evidence. Balane: Some commentators say that this is disputable presumption is applicable in our jurisdiction. Tolentino: Action Barred.-- The action on this ground is barred in the following cases: (1) If the other party had knowledge of the incurable impotence bef. the M, bec. this would imply that he renounces copulation, w/c is a personal right; (2) If both spouses are impotent, and such impotence existed bef. the M, continues, and appears incurable, bec. in this case an impotent pltff could not have expected copulation w/ the other spouse. Art. 47. The action for annulment of marriage must be filed by the following persons and within the periods indicated herein: xxx (5) For causes mentioned in numbers 5 and 6 of Article 45, by the injured party, within five years after the marriage. f. Psychological Incapacity.-- Articles 36, Psychological Incapacity Distinguished from Insanity.-Mental incapacity or insanity of some kind, like physical incapacity, is a vice of consent, while psychological incapacity is not a species of vice of consent. Q: Why Were No Examples of Psychological Incapacity Given in this Article? A: The Committee did not give any examples of psychological incapacity for fear that the giving of examples would limit the applicability of the provisions under the principle of ejusdem generis. Rather, the Committee would like the judge to interpret the provision on a case-to-case basis, guided by experience, the findings of experts and researchers in psychological disciplines, and by decisions of Church tribunals w/c, although not binding on the civil courts, may be given persuasive effect since the provision was taken from Canon Law. Q: Is the Psychologically Incapacitated Person Disqualified from Marrying Again? A: The Committee believes that there is no need to disqualify the psychologically incapacitated from contracting another marriage bec. the fact of his psychological incapacity for marriage would be revealed anyway when he applies for a marriage licence for the 2nd marriage, and the other party is thus placed on guard to conduct discreet investigation about the matter. General Characteristics of term "Psychological Incapacity": It must exhibit gravity, antecedence and incurability : (1) Gravity, if the subject cannot carry out the normal and ordinary duties of marriage and family shouldered by any average couple existing under ordinary circumstances of life and work; (2) antecedence , if the roots of the trouble can be traced to the history of the subject before the marriage although its overt manifestation appear only after the wedding; and (3) incurability , if treatments required exceed the ordinary means of the subject, or involve time and expense beyond the reach of the subject. Q: Who can File the Action to Declare the Marriage Void? A: Either party, i.e., even the psychologically incapacitated can file the action.

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Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. (As amended by E.O. No. 227) Sempio-Dy: Provision is Taken from Canon Law.-- Par. 3 of Can 1095 of the New Code of Canon Law provides that: "Matrimonial Consent The following are incapable of contracting marriage: xxx xxx 3. Those who, because of causes of a psychological nature, are unable to assume the essential obligations of marriage.

Q: What is the Status of the Children under this Article? A: The children conceived or born before the decree of nullity of marriage are considered legitimate (Art. 54.) PAGE 36

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Notes, Cases and Commentaries on Persons and Family Relation solemnized bef. the effectivity of the FC, the latter has SANTOS V. CA [240 SCRA 20 (1995)] - Meaning of actually given a retroactive effect to the present article. "psychological incapacity" confined to the most serious cases We submit that this is a juridical mistake. It is like of personality disorders demonstrative of insensitivity or an ex post facto provision translated into the filed of civil law. inability to give meaning and significance to the marriage. It contravenes the provisions of Art. 255 w/c allows retroactivity of the FC provisions only when it does not F: On 9/20/86, Leouel Santos and Julia Rosario Bedia impair or prejudice vested or acquired rights. exchanged vows bef. a mun. trial judge of Iloilo City. They lived w/ the wife's parents. One yr. later, a child was born of their marriage. Quarrels marred the marriage bec. of g. Disease.-- Articles 45 par. 6, 47 par. 5 frequent interference by Julia's parents. On 5/18/88, Julia left for the US to work as a nurse despite Leouel's pleas. For the Art. 45. A marriage may be annulled for any of first time in 7 mos. Julia called him up by long distance the following causes, existing at the time of the marriage: promising to return home once her contract expires in 1/89. xxx She never did. When Leouel was in the US in 1990 to (6) That either party was afflicted with a undergo a training program under the auspices of the AFP, he sexually-transmissible diseases found to be serious and tried to locate Julia, but to no avail. Hence this action in appears to be incurable. Negros Oriental, under Art. 36, FC. Summons was served by publication. Julia opposed the complaint, claiming it was Balane: Sexually-Transmissible Disease.-- Its requisites Leouel who had been irresponsible and incompetent. But she are: (1) The disease must be sexually transmisible; (2) The filed a manifestation stating she would neither appear nor disease is found to be serious; (3) It must be apparently submit evidence. From an order of the lower court dismissing incurable; (4) The STD must exist at the time of the M; (5) the complaint for lack of merit, and the CA affirming said It was unknown to the other party when the M was order, Leouel filed this petition for certiorari. solemnized; and (6) the other party must himself/ herself be free from STD. HELD: It shld be obvious, looking at all the disquisitions, A marriage were either party was afflicted w/ STD including, and most importantly, the deliberations of the FC may not be ratified by cohabitation. Cohabitation here may Revision Committee itself, that the use of the phrase be suicidal. Take note that there are two voidable marriages "psychological incapacity" in Art. 36 has not been meant to that cannot be ratified by ratification: (1) voidable marriage comprehend all such possible cases of pscyhoses as, likewise bec. of impotence (here, there will be contradiction in terms; mentioned by some ecclesiastical authorities, extremely law how can you cohabit if you are impotent?); (2) voidable intelligence, immaturity, and like circumstances. xxx Art. marriage bec. of STD. 36 cannot be taken and construed independently of, but must stand in conjunction w/, existing precepts in our marriage Tolentino: The reason for this cause for A is the danger to law. Thus correlated, psychological incapacity should refer the health of the other spouse and offsprings, giving rise to to no less than a mental (not physical) incapacity that causes possibility of avoidance of sexual relations, and the failure to a party to be truly incognitive of the basic marital covenants attain one of the purpose of M, that is, the procreation of that concomitantly must be assumed and discharged by the children and raising of a family. parties to the marriage w/, as so expressed by Art. 68, FC include their mutual obligations to live together, observe love, respect and fidelity and render help and support . Art. 47. The action for annulment of marriage (Balane: This is a tentative definition of psychological must be filed by the following persons and within the incapacity.) There is hardly any doubt that the intendment of periods indicated herein: the law has been to confine the meaning of "psychological xxx incapacity" to the most serious cases of personality disorders (5) For causes mentioned in numbers 5 and 6 of clearly demonstrative of an utter insensitivity or inability to Article 45, by the injured party, within five years after the give meaning and significance to the marriage . This marriage. psychologic condition must exist at the time the marriage is celebrated. xxx. 4. Consent (an essential requisite).-- Art. 2 par. 2 Art. 39. The action or defense for the declaration of absolute nullity of a marriage shall not prescribe. However, in the case of marriages celebrated before the effectivity of this Code and falling under Article 36, such action or defense shall prescribe in 10 years after this Code shall have taken effect. (As amended by E.O. No. 227) Tolentino: Retroactivity of Art. 36.-- By providing for a 10-yr prescriptive period for marriages of this nature Art. 2. No marriage shall be valid, unless these essential requisites are present: xxx (1) Consent freely given in the presence of the solemnizing officer. Tolentino: Mutual Consent.-- Such consent must be real, in the sense that it is not vitiated by mistake, duress, or fraud. It must also be conscious or intelligent.

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Notes, Cases and Commentaries on Persons and Family Relation Effect of Mistake.-- Mistake as to the nature and legal Art. 45. A marriage may be annulled for any of consequences of the ceremony or as to the identity or the the following causes, existing at the time of the marriage: person of one of the parties, renders the marriage void for xxx lack of consent [see Art. 35(5).] But a marriage is not (3) That the consent of either party was obtained invalidated by mistake as to rank, fortune, character or by fraud, unless such party afterwards, with full health, of one of the parties. knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife; xxx a. Insanity.-- Articles 45 par. 2, 47 par. 2 Toleration: Marriage through Fraud.-- The FC limits the Art. 45. A marriage may be annulled for any of cases w/c would constitute fraud sufficient for annulment of the following causes, existing at the time of the marriage: M to those enumerated in Art. 46. Bec. of the enumeration, xxx w/c must be considered as restrictive, no other case of fraud (2) That either party was of unsound mind, unless may be admitted. such party after coming to reason, freely cohabited with the other as husband and wife; xxx Art. 46. Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding Party of Unsound Mind.-- The test of unsoundness Article: of mind is w/n the party at the time of the M was capable of (1) Non-disclosure of a previous conviction by understanding the nature and consequences of the M. xxx final judgment of the other party of a crime involving Insanity must exist at the time of the M, to avoid it. moral turpitude; Somnambulism has the same effect as insanity. (2) Concealment by the wife of the fact that at the (Sanchez Roman.) time of the marriage, she was pregnant by a man other than her husband; Burden of Proof.-- The presumption of the law is (3) Concealment of sexually transmissible disease, generally in favor of sanity, and he who alleges the insanity regardless of its nature, existing at the time of the of another has the burden of proving it. But once general marriage; or insanity is proved to exist, it is presumed to continue; and if a (4) Concealment of drug addiction, habitual recovery or a lucid interval is alleged, the burden to prove alcoholism or homosexuality or lesbianism existing at the such allegation is on the person making it. time of the marriage. No other misrepresentation or deceit as to Ratification.-- This Art., in par. 2, gives the right character, health, rank, fortune or chastity shall of action to annul to the insane spouse and provides for constitute such fraud as will give grounds for action for ratification after regaining reason. No right of action is given the annulment of marriage. to the sane spouse; this is based on the assumption that he knew of the insanity of the other party and is placed in Tolentino: estoppel. But if he did not know of such insanity at the time Conviction of Crime: Requisites: (1) The crime involves of the M, he is given a right of action under Art. 47, par. 2, at moral turpitude and (2) There has been a conviction. any time before the death of the insane spouse. Balane: To find what crimes involve moral turpitude, you go by decisions of the SC. Crimes against property are generally Art. 47. The action for annulment of marriage considered crimes of moral turpitude. must be filed by the following persons and within the periods indicated herein: Tolentino: Concealment of Pregnancy.-- Where a man has xxx had sexual intercourse w/ his wife before the M, and she is (2) For causes mentioned in number 2 of Article pregnant at the time of M, although he may not be the author 45, by the sane spouse, who had no knowledge of the of the pregnancy, the M will not be annulled. This is based other's insanity or by any relative or guardian or person on the theory that there is no fraud, bec. the man knows his having legal charge of the insane at any time before the wife to be unchaste, as he was himself a party to her death of either party, or by the insane spouse during a premarital immorality. lucid interval or after regaining sanity; xxx Concealment of Diseases.-- Compared w/ Art. 45 (6): (1) Under 45 (6), a STD is an independent cause for Tolentino: Where the sane spouse knew of the insanity of the annulment. Under 46, concealment of a STD constitutes other, he is estopped to seek annulment where he has lived w/ fraud under par. 3. the wife claimed to have been insane for several years and (2) Under 45 (6), the STD existing at the time of the children have been born to them. M must be found to be serious and appear to be incurable. Under Art. 46 (3), the STD need not be serious or incurable. b. Fraud.-- Articles 45 par. 3, 46, 47 par. 3 To be aground for A, it must have been "concealed" by the sick party. It is the fraud that is the ground for A. PAGE 38

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Notes, Cases and Commentaries on Persons and Family Relation This difference has a very impt. consequence. If the the husband as to the incapacity of his wife is not sufficient disease falls under Art 45 (6), the M is not subject to basis for annulment. The presumption is in favor of potency. ratification by continued cohabitation. If the disease falls Hence, the court ordered the wife to submit to a physical under Art. 46 (3), the ground for A is fraud, and the M is examination. A physical examination in this case is not selfratified under par. 3 of Art. 45, if the spouse who is well, incriminating, since she is not being charged of any crime. after knowing of the disease of the other, continues to cohabit w/ him or her as H & W. PAULINO V. CRUZ [4 C.A. Rep 1207 (1963)] - A marriage may be annulled even after one of the spouses has been Effect of Cure.-- The recovery or rehabilitation will not bar convicted of adultery in violation of that marriage. the action. The defect of the M is not the disease, addiction or alcoholism itself but the fraud w/c vitiated the consent of the other party. Art. 47. The action for annulment of marriage must be filed by the following persons and within the Balane: Homosexuality.-- Sexual orientation is not enough. periods indicated herein: One has to be a practicing homosexual. xxx (3) For causes mentioned in number 3 of Article BUCCAT V. BUCCAT [72 P 19] - Where the wife was 45, by the injured party, within five years after discovery already 7 months pregnant, the petition to annul the of the fraud; marriage on the ground of fraud was denied. xxx Where there has been no misrepresentation or fraud, that is, when the husband at the time of the marriage knew Balane: This kind of marriage can be ratified by cohabitation that the wife was pregnant, the marriage cannot be annulled. for a reasonable period w/ may set in even before the 5-yr. Here, the child was born less than 3 months after the prescriptive period has expired. celebration of the marriage. We refuse to annul the marriage for the reason that the woman was at an advance stage of c. Force, Intimidation, Undue Influence.-pregnancy at the time of the marriage and such condition Articles 45 par. 4, 47 par. 4 must have been patent to the husband. Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage: ANAYA V. PALAROAN [36 S 97] - F: Aurora Anaya xxx prayed for the annulment of her marriage w/ Fernando (4) That the consent of either party was obtained Palaraon on the ground of fraud in obtaining her consent-by force, intimidation or undue influence, unless the same having learned that several mos. prior to their marriage, having disappeared or ceased, such party thereafter freely Fernando had pre-marital relationship w/ a close relative of cohabited with the other as husband and wife; his. According to her the "non-divulgement to her of such xxx pre-marital secret" constituted fraud in obtaining her consent w/in the contemplation of no. 4 of Art. 85, NCC. Force, Intimidation and Undue Influence.-- The definitions of "violence," "intimidation," and "undue influence" are HELD: The non-disclosure to a wife by her husband of his found in Arts. 1335 to 1337 of the NCC pre-marital relationship w/ another woman is not a ground Art. 1335. There is violence when in order to for annulment of marriage. For fraud as a vice of consent in wrest consent, serious or irresistible force is employed. marriage, w/c may be a cause for its annulment, comes under There is intimidation when one of the contracting Art. 85, No. 4 of the NCC xxx. This fraud, as vice of parties is compelled by a reasonable and well-grounded consent, is limited exclusively by law to those kinds or species fear of an imminent and grave evil upon his person or of fraud enumerated in Art. 86 xxx. property, or upon the person or property of his spouse, The intention of Congress to confine the descendants or ascendants, to give his consent. circumstances that can constitute fraud as ground for To determine the degree of intimidation, the age, annulment of marriage to the 3 cases therein may be deduced sex and condition of the person shall be borne in mind. from the fact that, of all the causes of nullity enumerated in A threat to enforce one's claim through Art. 85, fraud is the only one given special treatment in a competent authority, if the claim is just or legal, does not subsequent article w/in the chapter on void and voidable vitiate consent. marriages. It its intention were otherwise, Congress would have stopped at Art. 85, for anyway, fraud in general is Art. 1336. Violence or intimidation shall annul already mentioned therein as a cause for annulment. xxx. the obligation, although it may have been employed by a third person who did not take part in the contract. BAVIERA CASES: Art. 1337. There is undue influence when a person takes improper advantage of his power over the JIMENEZ V. CANIZARES [109 P 273 (1960)] - Where the will of another, depriving the latter of a reasonable husband filed a complaint for annulment of marriage on the freedom of choice. The following circumstances shall be ground of physical incapacity of his wife for copulation, her considered: the confidential, family, spiritual and other genitals being too small for penetration, the sole testimony of relations between the parties, or the fact that the person PAGE 39

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Notes, Cases and Commentaries on Persons and Family Relation alleged to have been unduly influenced was suffering from religious sect and registered with the civil registrar mental weakness, or was ignorant or in financial distress. general, acting within the limits of the written authority granted him by his church or religious sect and provided that at least one of the contracting parties belongs to the Art. 47. The action for annulment of marriage solemnizing officer's church or religious sect; must be filed by the following persons and within the (3) Any ship captain or airplane chief only in the periods indicated herein: cases mentioned in Article 31; xxx (4) Any military commander of a unit to which a (4) For causes mentioned in number 4 of Article chaplain is assigned, in the absence of the latter, during a 45, by the injured party, within five years from the time military operation, likewise only in the cases mentioned in the force, intimidation or undue influence disappeared or Article 32; or ceased; (5) Any consul-general, consul or vice-consul in xxx the case provided in Article 10. d. Mistake as to Identity.-- Articles 35 par. 5, 39 Art. 35. The following marriages shall be void from the beginning: xxx (5) Those contracted through mistake of one contracting party as to the identity of the other; xxx xxx Tolentino: Mistake as to Identity.-- This refers to mistake as to the person himself, involving a substitution of another person for the party who is desired in marriage, w/o the knowledge of the other contracting party. Art. 39. The action or defense for the declaration of absolute nullity of a marriage shall not prescribe. xxx 5. Authority of Solemnizing Officer.-- Articles 3 par. 1, 4 par. 1, 7, 10, 31, 32, 35 par. 2 Art. 3. The formal requisites of marriage are: (1) Authority of the solemnizing officer; xxx Tolentino: Authority of the solemnizing officer.-- Q: Would a marriage void for want of authority of the solemnizing officer entered into under the NCC, now be considered validated under the FC, if either or both parties believed in good faith that such officer had the legal authority to solemnize the marriage? A: Yes. Art. 255, FC provides: "This Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance w/ the NCC or other laws." The present FC may be given a curative or remedial effect and validate the marriage in question. Art. 4. The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35 (2). xxx Art. 7. Marriage may be solemnized by: NOTE: Under the Local Government Code [Secs. 444 (b) (1) (xviii) & 455 (b) (1) (xviii)], mayors have again been given the authority to solemnize marriages. Sempio-Dy: Members of the Judiciary.-- The jurisdiction of the members of the SC, the CA, the Sandiganbayan, and the Court of Tax Appeals to solemnize mariages is the entire country, w/c is their territorial jurisdiction. The jurisdiction of the RTC judges and judges of MTCs to solemnize marriages is their territorial jurisdiction as defined by the SC. Tolentino: Requisites for Authority of Priest or Minister: (1) He must be registered in the office of the Civ. Registrar General; (2) he must have a written authority to solemnize marriages given by his church or religious sect; (3) he must act w/in the limits of such authority; and (4) at least one of the contracting parties must belong to the solemnizing officer's church or religious sect. PEOPLE V. WHIPKEY [69 O.G. No. 42, p. 9678 (1973)] A marriage performed by a minister whose authority to solemnize a marriage has expired is void ab initio. Ship Captains, Airplane Chiefs, Military Commanders.-These officers can solemnize only one kind of marriage-- a marriage in articulo mortis or at the point of death. Art. 31. A marriage in articulo mortis between passengers or crew members may also be solemnized by a ship captain or by an airplane pilot not only while the ship is at sea or the plane is in flight, but also during stopovers at ports of call. Art. 7 refers to an "airplane chief" but art. 31 refers to an "airplane pilot" who may not be the captain or chief. We believe the controlling designation is "airplane chief." It is the head of the crew and who has the command of the airplane who must be deemed to have been given by law the authority to solemnize marriages. Art. 32. A military commander of a unit, who is a commissioned officer, shall likewise have authority to solemnize marriages in articulo mortis between persons within the zone of military operations, whether members of the armed forces or civilians.

(1) Any incumbent member of the judiciary within the court's jurisdiction; (2) Any priest, rabbi, imam, or minister of any church or religious sect duly authorized by his church or PAGE 40

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Notes, Cases and Commentaries on Persons and Family Relation Consul-generals, Consuls, Vice-consuls.-- An ambassador, was usually several days after the ceremony. Indubitably, the even if he is the head of a diplomatic mission, has no marriage contracts were not filed w/ the local civil registrar. authority to solemnize marriage. The reason for this is that, while an amabassador takes care of the relations bet. the HELD: On the charge regarding illegal marriages, the FC Phils. and the country to w/c he is assigned, the consuls take pertinently provides that the formal requisites of marriage, care of matters affecting Filipino citizens in the area of their inter alia, a valid marriage license except in the cases responsibility. provided for therein. Complementarily, it declares that the absence of any of the essential or formal requisites shall Art. 10. Marriages between Filipino citizens generally render the marriage void ab initio and that, while abroad may be solemnized by a consul-general, consul or an irregularity in the formal requisites shall not affect the vice-consul of the Republic of the Philippines. validity of the marriage, the party or parties responsible for The issuance of the marriage license and the the irregularity shall be civilly, criminally and duties of the local civil registrar and of the solemnizing administratively liable. officer with regard to the celebration of marriage shall be performed by said consular official. Art. 35. The following marriages shall be void from the beginning: xxx (2) Those solemnized by any person not legally authorized to perform marriages unless church marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so; xxx Art. 35. The following marriages shall be void from the beginning: xxx (3) Those solemnized without license, except those falling under Article 41; xxx REPUBLIC V. CA [236 SCRA 257 (1994)] - The certification by the Civil Registrar that the alleged marriage license could not be found in his records is adequate to prove that no license was issued. F: Angelina Castro and Edwin Cardenas were married in a civil ceremony in the city court of Pasay w/o the knowledge of Angelina's parents. The marriage lasted only for a couple of mos. Angelina decided to migrate to the US but wanted to put in order her marital status bef. leaving. She consulted a lawyer regarding the possible annulment of her marriage. It was discovered that there was no license issued to Cardenas by the Civil Registrar of Pasig. The Civil Registrar certified that the alleged license no. does not appear from the records. The trial court denied the petition. The CA reversed the trial court, hence, this petition for review on certiorari. HELD: The presentation by the Civil Registrar is sanctioned by Sec. 29, R 132, ROC. The certification of due search and inability to find, issued by the civil registrar of Pasig, enjoys probative value, he being the officer charged under the law to keep a record of all data relative to the issuance of a marriage license. Unaccompanied by any circumstance of suspicion, and pursuant to Sec. 29, R 132 of ROC, a cert. of due search and inability to find sufficiently proved that his office did not issue the marriage license. There being no marriage license, the marriage of Angelina and Edwin is void ab initio. (1) Where to apply -- Arts 9-10

6. Marriage License (a formal requisite.)-- Articles 3 par. 2, 4 pars 1 & 3, 35 par. 3, 9 to 21 with exceptions in 27 to 34 Art. 3. The formal requisites of marriage are: xxx (2) A valid marriage licence except in the cases provided for in Chapter 2 of this Title; xxx xxx Art. 4. The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35 (2). xxx 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. COSCA V. PALAYPAYON, JR. [237 S 249 (1994)] F: Complainants allege that respondent judge solemnized marriages even w/o the requisite marriage license. Thus, several couples were able to get married by the simple expedient of paying the marriage fees to resp. Baroy, Clerk of Court II of the Mun. Trial Court of Tinambac, Camarines Sur, despite the absence of a marriage license. xxx. As a consequence, their marriage contracts did not reflect any marriage license. In addition, resp. Judge did not sign their marriage contracts and did not indicate the date of solemnization the reason being that he allegedly had to wait for the marriage license to be submitted by the parties w/c

Art. 9. A marriage license shall be issued by the local civil registrar of the city or municipality where either contracting party habitually resides, except in marriages where no license is required in accordance with Chapter 2 of this Title.

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Notes, Cases and Commentaries on Persons and Family Relation Sempio-Dy: The solemnizing officer is not required to custody of the originals. These certificates or certified investigate w/n the license was issued in the place required by copies of the documents required by this Article need not law. (Peo. v. Jansen 54 P 176.) be sworn to and shall be exempt from the documentary stamp tax. The signature and official title of the person Art. 10. Marriages between Filipino citizens issuing the certificate shall be sufficient proof of its abroad may be solemnized by a consul- general, consul or authenticity. vice-consul of the Republic of the Philippines. The If either of the contracting parties is unable to issuance of the marriage license and the duties of the local produce his birth or baptismal certificate or a certified civil registrar and of the solemnizing officer with regard copy of either because of the destruction or loss of the to the celebration of marriage shall be performed by said original, or if it is shown by an affidavit of such party or of consular official. any other person that such birth or baptismal certificate has not been received though the same has been required Sempio-Dy: By "Filipinos citizens abroad" may mean of the person having custody thereof at least 15 days prior Filipinos permanently residing abroad or who are mere to the date of the application, such party may furnish in transients or vacationists there. lieu thereof his current residence certificate or an Consuls on home assignment in the Phils. cannot instrument drawn up and sworn to before the local civil solemnize marriages. registrar concerned or any public official authorized to administer oaths. Such instrument shall contain the sworn Salonga, Private International Law II, 1995 ed. (hereinafter declaration of two witnesses of lawful age, setting forth the Salonga): Consular Marriages.-- xxx The prevailing rule is full name, residence and citizenship of such contracting that a marriage performed before a consular or diplomatic party and of his or her parents, if known, and the place agent empowered by a sending State to officiate marriages is and date of birth of such party. The nearest of kin of the valid in the receiving State only if the latter has agreed to his contracting parties shall be preferred as witnesses, or in acting in that capacity. their default, persons of good reputation in the province or the locality. (2) Requirements for issuance The presentation of birth or baptismal certificate (a) application -- Art. 11 shall not be required if the parents of the contracting parties appear personally before the local civil registrar Art. 11. Where a marriage license is required, concerned and swear to the correctness of the lawful age each of the contracting parties shall file separately a of said parties, as stated in the application, or when the sworn application for such license with the proper local local civil registrar shall, by merely looking at the civil registrar which shall specify the following: applicants upon their personally appearing before him, be (1) Full name of the contracting party; convinced that either or both of them have the required (2) Place of birth; age. (3) Age and date of birth; (4) Civil Status; Tolentino: Documents Required.-- To prove the ages of the (5) If previously married, how, when and where contracting parties, the ff. may be required by the local civ. the previous marriage was dissolved or annulled; registrar: (6) Present residence and citizenship; (1) Original or certified copies of birth certificates. (7) Degree of relationship of the contracting (2) In the absence of birth certs., the original or parties; certified copies of baptismal certs. (8) Full name, residence and citizenship of the (3) In the absence of the above documents, the party father; may present his residence cert. or the affidavit of 2 witnesses. (9) Full name, residence and citizenship of the mother; and When Proof of Age Dispensed With: (10) Full name, residence and citizenship of the (1) When the parents of the contracting parties guardian or person having charge, in case the contracting appear personally bef. the local civ. reg. and swear to the party has neither father nor mother and is under the age correctness of their ages; of 21 years. (2) When the local civ. reg. is convinced, by merely The applicants, their parents or guardians shall looking at the parties that they have the required ages; not be required to exhibit their residence certificates in (3) When a party has formerly married, but is any formality in connection with the securing of the widows, or divorced, or the previous marriage has been marriage license. invalidated. (see art. 13.) Art. 13. In case either of the contracting parties has been previously married, the applicant shall be required to furnish, instead of the birth or baptismal Art. 12. The local civil registrar, upon receiving certificate required in the last preceding article, the death such application, shall require the presentation of the certificate of the deceased spouse or the judicial decree of original birth certificates or, in default thereof, the the absolute divorce, or the judicial decree of annulment baptismal certificates of the contracting parties or copies or declaration of nullity of his or her previous marriage. of such documents duly attested by the persons having In case the death certificate cannot be secured, the party PAGE 42 Art. 21 (b) Proof of capacity -- Articles 12-14;

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Notes, Cases and Commentaries on Persons and Family Relation shall make an affidavit setting forth this circumstance and except for cause. To allow its revocation, w/o any reason is to his or her actual civil status and the name and date of subject the effectivity of the license issued by the govt to the death of the deceased persons. whim and caprice of the parent. xxx We believe, however, that revocation for just cause must be made known to the Art. 14. In case either or both of the contracting parties and to the local civ. reg. to have any effect. parties, not having been emancipated by a previous marriage, are between the ages of eighteen and twentyEffect of Want of Consent.-- Aside from the civil one, they shall, in addition to the requirements of the sanction of nullity of the marriage, there is also a penal preceding articles, exhibit to the local civil registrar, the sanction. If the parties knowingly entered into the marriage consent to their marriage of their father, mother, w/o parental consent, or the solemnizing officer has surviving parent or guardian, or persons having legal celebrated it knowing of such absence when it was needed, charge of them, in the order mentioned. Such consent they will become subject to the penal consequences imposed shall be in writing by the interested party, who personally by Act No. 3613 and the RPC. appears before the proper local civil registrar, or in the form of an affidavit made in the presence of two witnesses EIGENMAN V. GUERRA [5 C.A. Rep. 836 (1964)] and attested before any official authorized by law to Parental consent may be made expressly or impliedly, such as administer oaths. The personal manifestation shall be by the presence of the mother during the marriage ceremony, recorded in both applications for marriage license, and without any objections. the affidavit, if one is executed instead, shall be attached to said application. Art. 21. When either or both of the contracting Tolentino: Reason for parental consent.-- The parental parties are citizens of a foreign country, it shall be consent of parties below 21 years is required in order to necessary for them before a marriage license can be supplement the natural incapacity of such parties, whose obtained, to submit a certificate of legal capacity to inexperience may lead them to a union w/c is difficult or contract marriage, issued by their respective diplomatic prejudicial for them. or consular officials. Effect of Previous Marriage.-- A person below 21 Stateless persons or refugees from other countries who has been previously married, but whose marriage has shall, in lieu of the certificate of legal capacity herein terminated by the death of the spouse does not need parental required, submit an affidavit stating the circumstances consent to remarry even if he or she is still below 21. showing such capacity to contract marriage. Effect of RA 6809.-- The reduction of the age of majority and emancipation does not affect the requirement of the present article, w/ respect to persons who have living parents. Q: But when the person over 18 yrs. but below 21 yrs. is an orphan, not otherwise incapacitated, he cannot be placed under guardianship and would have nobody "having legal charge" of him. Whose consent will be required? A: In view of the impossibility of compliance, it seems that "parental consent" need not be secured. Remarriage of Widowed Mother.-- A widowed mother who has remarried retains her parental authority over her children (art. 212, FC), and thus, her consent is still required for the marriage of a child below 21 yrs. old. Specific Consent Required.-- The better view xxx is that the consent must refer to marriage w/ a particular person. The law intends that the child should benefit from the experience of the parent, and that the latter save the former from what may be an unwise union. Form of Consent.-- It must be in writing. It may be made in either of 2 ways: (1) by the parent personally appearing bef. the local civ. reg. and signing the instrument of consent, or (2) by executing an affidavit of consent in the presence of 2 witnesses w/o having to appear bef. the local civ. reg. Tolentino: The legal capacity of a foreigner to marry is recognized by our laws as governed by the law of the country of w/c he is a citizen. This is in accordance w/ the nationality theory of personal laws w/c is followed by the Phils. Stateless Persons and Refugees.-- Q: What is the legal capacity of a stateless person? A: Having no personal law of his own, since he owes no allegiance to any particular country, his legal capacity should be determined by the laws of the Phils. under w/c he temporarily enjoys protection. The provisions of the FC apply to him. Salonga: The net effect of Art. 21 is to leave it to the Govt of the alien to decide almost conclusively the question of w/n he or she can marry in the Phils. It is the interpretation of that Govt through its diplomatic or consular officials, that is controlling, except where the M is bigamous or universally incestuous. Any abuse of that discretion is a matter w/c the alien must take up w/ his own Govt. Q: Suppose, however, that, w/o such a cert., the marriage is solemnized-- is the marriage valid? A: Yes. The M shld be considered as valid, assuming that the lack of cert. is the only defect. It is not one of the void marriages enumerated in the NCC (now the FC); the cert. of legal capacity is not an essential requisite of marriage. (c) Parental advice -- Art. 15

Revocation of Consent.-- Once consent has been given and the proper license issued, it should be irrevocable PAGE 43

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Notes, Cases and Commentaries on Persons and Family Relation Art. 17. The local civil registrar shall prepare a Art. 15. Any contracting party between the age of notice which shall contain the full names and residences of twenty-one and twenty-five shall be obliged to ask their the applicants for marriage license and other data given in parents or guardian for advice upon the intended the applications. The notice shall be posted for ten marriage. If they do not obtain such advice, or if it be consecutive days on a bulletin board outside the office of unfavorable, the marriage license shall not be issued till the local civil registrar located in a conspicuous place after three months following the completing of the within the building and accessible to the general public. publication of the application therefor. A sworn statement This notice shall request all persons having knowledge of by the contracting parties to the effect that such advice any impediment to the marriage to advise the local civil has been sought, together with the written advice given, if registrar thereof. The marriage license shall be issued any, shall be attached to the application for marriage after the completion of the period of publication. license. Should the parents or guardian refuse to give any advice, this fact shall be stated in the sworn statement. (f) Investigation of Impediments -- Art. 18. Tolentino: Effect of Emancipation.-- The need for parental advice depends on filial relationship and not on parental Art. 18. In case of any impediment known to the authority. local civil registrar or brought to his attention, he shall Q: When the child is an orphan over 21 but below note down the particulars thereof and his findings thereon 25 yrs. old, he would be emancipated and cannot be under the in the application for marriage license, but shall authority of a guardian. Who will give the parental advice in nonetheless issue said license after the completion of the such a case? period of publication, unless ordered otherwise by a A: The solution may be anomalous, but it seems that competent court at his own instance or that of any such advice is dispensed w/, due to impossibility of interested party. No filing fee shall be charged for the compliance. petition nor a corresponding bond required for the issuance of the order. (g) Payment of fees -- Art. 19. (d) Marriage Counselling -- Art. 16 Art. 16. In the cases where parental consent or parental advice is needed, the party or parties concerned shall, in addition to the requirements of the preceding articles, attach a certificate issued by a priest, imam, or minister authorized to solemnize marriage under Article 7 of this Code or a marriage counsellor duly accredited by the proper government agency to the effect that the contracting parties have undergone marriage counselling. Failure to attach said certificate of marriage counselling shall suspend that issuance of the marriage license for a period of three months from the completion of the publication of the application. Issuance of the marriage license within the prohibited period shall subject the issuing officer to administrative sanctions but shall not affect the validity of the marriage. Should only one of the contracting parties need parental consent or parental advice, the other party must be present at the counselling referred to in the preceding paragraph. Tolentino: Marriage Conselling.-- Both of the intended spouses are required to undergo marriage counselling if one or both of them are bet. 18 and 25 yrs. of age. Reason for the Requirement.-- It is intended to prepare the youth for entering into the married state, w/ instructions on the responsibilities of the future couple to each other, to their children, and to society. Art. 19. The local civil registrar shall require the payment of the fees prescribed by law or regulations before the issuance of the marriage license. No other sum shall be collected in the nature of a fee or tax of any kind for the issuance of said license. It shall, however, be issued free of charge to indigent parties, that is, those who have no visible means of income or whose income is insufficient for their subsistence, a fact established by their affidavit, or by their oath before the local civil registrar. (h) Family Planning certificate -- PD 965 (3) Place where valid -- Art. 20 Art. 20. The license shall be valid in any part of the Philippines for a period of one hundred twenty days from the date of issue, and shall be deemed automatically cancelled at the expiration of said period if the contracting parties have not made use of it. The expiry date shall be stamped in bold characters on the face of every license issued. Tolentino: The automatic cancellation of the license is not a mere irregularity or defect; the license is non-existent. The marriage is void ab initio. (4) Period of validity -- Art. 20, supra. (not in Balane's outline) (5) Duties of the Civil Registrar -- Articles 24-25 (e) Publication -- Art. 17 Art. 24. It shall be the duty of the local civil registrar to prepare the documents required by this Title, PAGE 44

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Notes, Cases and Commentaries on Persons and Family Relation and to administer oaths to all interested parties without Art. 30. The original of the affidavit required in any charge in both cases. The documents and affidavits the last preceding article, together with a legible copy of filed in connection with applications for marriage licenses the marriage contract, shall be sent by the person shall be exempt from documentary stamp tax. solemnizing the marriage to the local civil registrar of the municipality where it was performed within the period of Art. 25. The local civil registrar concerned shall 30 days after the performance of the marriage. enter all applications for marriage licenses filed with him in a registry book strictly in the order in which the same Art. 31. A marriage in articulo mortis between are received. He shall record in said book the names of passengers or crew members may also be solemnized by a the applicants, the date on which the marriage license was ship captain or by an airplane pilot not only while the ship issued, and such other data as may be necessary. is at sea or the place is in flight, but also during stopovers at ports of call. BAVIERA CASE: Art. 32. A military commander of a unit, who is a PEOPLE V. DAVID [13 CA Rep. 495 (1968)] - Official commissioned officer, shall likewise have authority to Receipt of the Local Civil Registrar due to lack of the regular solemnize marriages in articulo mortis between persons form may be considered as a valid license. within the zone of military operations, whether members of the armed forces or civilians. (6) When no license needed -- Articles 27-34 Art. 33. Marriages among Muslims or among Chapter 2 members of the ethnic cultural communities may be performed validly without the necessity of marriage MARRIAGES EXEMPTED FROM LICENSE license, provided that they are solemnized in accordance REQUIREMENT with their customs, rites or practices. Tolentino: Marriages of Exceptional Character.-- It is one on w/c the law considers of such a nature as to dispense w/ the formal requirement of a marriage license. The marriages exempted from the requirement of a marriage license are: (1) marriages in articulo mortis or on the point of death, (2) marriages in isolated places, or where there are no available means of transportation, (3) marriages among Muslims or among members of ehtnic cultural communities, and (4) marriages of those who have lived together as husband and wife for at least 5 yrs. Art. 27. In case either or both of the contracting parties are at the point of death, the marriage may be solemnized without the necessity of a marriage license and shall remain valid even if the ailing party subsequently survives. Art. 28. If the residence of either party is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar, the marriage may be solemnized without the necessity of a marriage license. Art. 29. In the cases provided for in the two preceding articles, the solemnizing officer shall state in an affidavit executed before the local civil registrar or any other person legally authorized to administer oaths that the marriage was performed in articulo mortis or that the residence of either party, specifying the barrio or barangay, is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar and that the officer took the necessary steps to ascertain the ages and relationship of the contracting parties and the absence of a legal impediment to the marriage. Art. 34. No license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife for at least five years and without any legal impediment to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths. The solemnizing officer shall also state under oath that he ascertained the qualifications of the contracting parties and found no legal impediment to the marriage. Tolentino: This art. intends to facilitate and encourage the marriage of persons who have been living together in a state of concubinage for more than 5 yrs. The publicity and other attendant inconveniences in securing the marriage license, might be embarrassing to such persons and deter them from legalizing their union. Sempio-Dy: Besides, the marriage of the parties will result in the legitimation of natural children born to them during their cohabitation. Note: The fact of absence of legal impediment bet. the parties must be present at the time of the marriage , not during their 5-yr. cohabitation. II. EFFECT OF LACK OF REQUISITES A. 1. Difference in sex.-- lack of it: void 2. Some form of ceremony.-- lack of it: void 3. Legal capacity.-- Lack of it.-- General rule: void Exception: Age.-- Art. 45 par. 1 Impotence.-- Art. 45 (5), voidable Disease.-- Art. 45 (6), voidable 4. Lack of consent.-- voidable PAGE 45

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Notes, Cases and Commentaries on Persons and Family Relation Except: Mistake as to identity.-- void Effects of Voidable Marriages.-- A voidable marriage is [Art. 35 (5)] valid and produces all its civil effects, until it is set aside by 5. Authority of solemnizing officer.-- lack of it: judgment of a competent court in an action for annulment. void xxx Except: Art. 45 (1) Under the FC, the rule applicable to marriages void 6. Marriage License.-- lack of it: void from the beginning applies to voidable marriages. (see Art. Exceptions: Articles 27-34, supra. 50, FC. ) As to children born in voidable marriages, the NCC and the FC have the same rule; the children are legitimate. B. VOID AND VOIDABLE MARRIAGES Chapter 3 VOID AND VOIDABLE MARRIAGES Balane: A defective marriage in this country is either void or voidable. A voidable marriage produces the effect of a valid marriage, until annuled. Void Marriages Tolentino: The following marriages are void in spite of their omission from the enumeration contained in articles 35 to 38: (1) Marriages where intent to marry is totally wanting (e.g., marriage in jest.); (2) Marriages not solemnized in accordance w/ law (e.g., marriages by proxy); (3) Marriages bet. persons of the same sex. Void and Voidable Marriages Distinguished.-Fundamental distinction-- A void marriage is deemed never to have taken place at all, while a voidable or annullable marriage is considered valid and subsisting until it is set aside by a competent court. The following distinctions arise from this general difference: (1) A void M can be attacked collaterally, while a voidable M can be attacked only in a direct proc. for annulment; (2) A void M may be questioned even after the death of one of the parties , while a voidable M can no longer be attacked after one of the parties is dead; (3) A void M cannot be ratified or confirmed , while a voidable M is generally made perfectly valid by ratification or confirmation, through continued cohabitation; (4) the validity of a void M may be assailed by any one if the question becomes material , while an annullable M can generally be attacked only by a party to it; and (5) the action or defense to declare the nullity of a void M generally does not prescribe, while the action to set aside a voidable M prescribes. Effect of Void Marriages: On property Relations.-- A community prop. or conjugal partnership is formed, and is dissolved and liquidated upon the declaration of nullity, but if either spouse contracted the marriage in BF, his or her share is forfeited in favor of the children or the innocent spouse, as the case may be. [see Art. 43(2)] Status of Children.-- Such children are considered legitimate. (Art. 54.) Action to Annul Marriage.-- Annulment of M is an action in rem, for it concerns the status of the parties, and status affects or binds the whole world. The res is the relation bet. the parties, or their marriage tie. Annulment and Legal Separation Distinguished: (1) Annulment (A) is caused by some circumstance existing at the time of the M, while the cause of legal separation (LS) arises after the celebration of the M; (2) an A of M terminates the marital bond bet. the parties while LS does not; and (3) A of M, once final, cannot be set aside so as to restore the marital relation, while LS may be terminated and marital relations resumed by the reconciliation of the parties. Ratification of Voidable Marriage.-- The law does not fix a definite period during w/c this cohabitation shld last in order to constitute ratification. xxx It is submitted that when the cohabitation has continued for such a length of time, after the cause of nullity has ceased to exist, as to give rise to a reasonable inference that the party entitled to bring the action for nullity prefers to continue w/ the M, there is ratification w/c purges the M of its original defect. Ratification refers to the right of action itself; prescription refers only to the remedy. There can be no remedy where there is no more right of action. Marriages Not Subject to Ratification (the law does not provide for their ratification): (1) Where one of the spouses is incurably impotent; (2) Where one of the spouses has an incurable sexually transmissible disease; The defect of the M in these 2 cases is not one that merely affects consent. Ratification cures a defect in consent; it cannot cure a physical defect. The action to annul in these cases will exist as long as the period of prescription has not expired. (3) A marriage where a sane spouse marries an insane spouse w/o the knowledge of the insanity. Although the insane spouse can ratify the M after recovering reason, the sane spouse cannot be barred from asking for A even if he has continued to cohabit w/ the insane spouse after learning of such insanity. III. EFFECT OF DEFECTIVE MARRIAGES ON STATUS OF CHILDREN.-- Articles 54, 165

Art. 54. Children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and executory shall be PAGE 46

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Notes, Cases and Commentaries on Persons and Family Relation considered legitimate. Children conceived or born of the affidavit of the contracting party regarding the subsequent marriage under Article 53 shall likewise be solemnization of the marriage in a place other than those legitimate. mentioned in Art. 8. Art. 165. Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in this Code. (referring to Art. 54.) Balane: General rule: legitimate. Children of voidable marriage are Tolentino: Proof of Marriage.-- The best proof of the marriage is the marriage certificate. But this is not the only proof. The declaration of one of the parties to the marriage, as well as of persons who were present at its celebration, are competent proof of the marriage. Public and open cohabitation as H & W after the alleged marriage, birth and baptismal certificates of children borne by the alleged spouses, and a statement of such marriage in subsequent documents are likewise competent evidence to prove the fact of marriage. Presumption of Marriage.-There is a prima facie presumption that a man and a woman living maritally under the same roof are legally married. The reason is that such is the common order of society, and if the parties were not what they hold themselves out as being, they would be living in the constant violation of decency and law. (Perido v. Perido, 63 S 97, 98.) Sempio-Dy: Remember that even if no one receives a copy of the marriage cert., the marriage is still valid. (Jones v. Hortiguela, 64 P 179.) LORIA V. FELIX [104 P 1 (1958)] - The signing of the marriage contract is a formal requirement of evidentiary value, the omission of which does not render the marriage a nullity. "The signing of the marriage contract or certificate was required by statute simply for the purpose of evidencing the act and to prevent fraud. No statutory provision or court ruling has been cited making it an essential requisite - not the formal requirement of evidentiary value, which we believe it is. The fact of marriage is one thing; the proof by which it may be established is quite another." V. ACTION OF ANNULMENT OR DECLARATION OF NULLITY.-- Articles 48 to 52 Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed. In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or confession of judgment.

Children conceived and born of a void marriage are illegitimate. There are two exceptions (Art. 54): 1. Art. 36 2. Art. 53 IV. PRIMARY PROOF OR EVIDENCE OF MARRIAGE.-Articles 22, 23 Art. 22. The marriage certificate, in which the parties shall declare that they take each other as husband and wife, shall also state: (1) The full name, sex, and age of each contracting party; (2) Their citizenship, religion and habitual residence; (3) The date and precise time of the celebration of the marriage; (4) That the proper marriage license has been issued according to law, except in marriages provided for in Chapter 2 of this Title; (5) That either or both of the contracting parties have secured the parental consent in appropriate cases; (6) That either or both of the contracting parties have complied with the legal requirement regarding parental advice in appropriate cases; and (7) That the parties have entered into marriage settlements, if any, attaching a copy thereof. Sempio-Dy: The marriage cert. is not an essential or formal requisite of marriage w/o w/c the marriage will be void. (Madridejo v. De Leon, 55 P 1.). An oral marriage is, thus, valid, and failure of a party to sign the marriage cert. (De Loria v. Felix, 104 P) or the omission of the solemnizing officer to send a copy of the marriage cert. to the proper local civil registrar (Pugeda v. Trias, 4 S 49) does not invalidate the marriage.

Art. 23. It shall be the duty of the person solemnizing the marriage to furnish either of the contracting parties the original of the marriage certificate Tolentino: Effect of Collusion.-- [I]f the parties succeed in referred to in Art. 6 and to send the duplicate and obtaining a decree of annulment by collusion notwithstanding triplicate copies of the certificate not later than 15 days observance of the provisions of this Art., such decree must be after the marriage, to the local civil registrar of the place held to be absolutely void if no cause really existed. It would where the marriage was solemnized. Proper receipts shall be against public policy. be issued by the local civil registrar to the solemnizing officer transmitting copies of the marriage certificate. The solemnizing officer shall retain in his file the Art. 49. During the pendency of the action and in quadruplicate copy of the marriage certificate, the the absence of adequate provisions in a written agreement original of the marriage license and, in proper cases, the between the spouses, the Court shall provide for the PAGE 47

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Notes, Cases and Commentaries on Persons and Family Relation support of the spouses and the custody and support of children, and the delivery of their presumptive legitimes, their common children. The Court shall give paramount unless such matters had been adjudicated in previous consideration to the moral and material welfare of said judicial proceedings. children and their choice of the parent with whom they All creditors of the spouses as well as of the wish to remain as provided for in Title IX. It shall also absolute community or the conjugal partnership shall be provide for appropriate visitation rights of the other notified of the proceedings for liquidation. parent. In the partition, the conjugal dwelling and the lot on which it is situated, shall be adjudicated in accordance BAVIERA CASES: with the provisions of Articles 102 and 129. TOLENTINO V. VILLANUEVA [56 S 1 (1974)] - Where the husband filed a case for annulment on the ground of concealment of pregnancy, and the wife failed to file a responsive pleading, the court referred the case to the fiscal for investigation. However, the husband refused to show his evidence nor be interrogated by the fiscal, hence, the court correctly dismissed the complaint for annulment. The investigation of the fiscal is a prerequisite to the annulment of marriage where defendant has defaulted. JOCSON V. ROBLES [22 S 521 (1968)] - Where the second wife filed an action for annulment, and the husband also assailed the validity of the marriage claiming he was coerced to marry her by her parents and brothers, and filed a motion for summary judgment supported by affidavits of the plaintiff's father and brothers to this effect, and the plaintiff also submitted the case for judgment on the pleadings, the court correctly denied the motion for summary judgment in view of provisions of the Civil Code expressly prohibiting the rendition of a decree of annulment of marriage upon a stipulation of facts or a confession of judgment. The affidavits of the wife's father and brothers practically amounts to these methods not countenanced by the Civil Code. VILLAROMAN V. ESTEBAN [73 O.G. 11736 (1976)] (1) The principle of estoppel cannot apply to defeat a suit for annulment of marriage on the ground that plaintiff was not of age when he contracted marriage, since the ages of the contracting parties which require parental consent, cannot be modified or altered by their joint act or omission or by that of either of them. (2) Staying with the wife in her residence only on Saturdays and Sundays merely indicates transient sexual intercourse which is not considered as cohabitation. This circumstance and the conduct of the man in abandoning his wife before reaching the age of majority or according to the wife's version, 9 months after attaining legal age, negates the intention on the part of the man to confirm or ratify a defective marriage by cohabiting and living with the woman as her husband. (not in Balane's outline) Effect of Annulment Art. 50. The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and by Article 44 shall also apply in the proper cases to marriages which are declared void ab initio or annulled by final judgment under Articles 40 and 45. The final judgment in such cases shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common PAGE 48 Art. 43. The termination of the subsequent marriage referred to in the preceding Article shall produce the following effects: xxx (2) The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or, in default of children, the innocent spouse. (3) Donations by reason of marriage shall remain valid, except that if the donee contracted the marriage in bad faith, such donations made to said donee are revoked by operation of law; (4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and (5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession. Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by reason of marriage and testamentary dispositions made by one in favor of the other are revoked by operation of law. Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage:

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Notes, Cases and Commentaries on Persons and Family Relation (1) That the party in whose (9) In the partition of the behalf it is sought to have the marriage properties, the conjugal dwelling and the annulled was 18 years of age but below lot on which it is situated shall, unless 21, and the marriage was solemnized otherwise agreed upon by the parties, be without the consent of the parents, adjudicated to the spouse with whom the guardian or person having substitute majority of the common children choose parental authority over the party, in that to remain. Children below the age of order, unless after attaining the age of 21, seven years are deemed to have chosen such party freely cohabited with the the mother, unless the court has decided other and both lived together as husband otherwise. In case there is no such and wife; majority, the court shall decide, taking (2) That either party was of into consideration the best interests of unsound mind, unless such party after said children. coming to reason, freely cohabited with the other and both lived together as Art. 51. In said partition, the value of the husband and wife; presumptive legitimes of all common children, computed (3) That the consent of either as of the date of the final judgment of the trial court, shall party was obtained by fraud, unless such be delivered in cash, property or sound securities, unless party afterwards, with full knowledge of the parties, by mutual agreement judicially approved, had the facts constituting the fraud freely already provided for such matters. cohabited with the other as husband and The children or their guardian, or the trustee of wife; their property, may ask for the enforcement of the (4) That the consent of either judgment. party was obtained by force, intimidation The delivery of the presumptive legitimes herein or undue influence, unless the same prescribed shall in no way prejudice the ultimate having disappeared or ceased, such party successional rights of the children accruing upon the death thereafter freely cohabited with the other of either or both of the parents; but the value of the as husband and wife; properties already received under the decree of (5) That either party was annulment or absolute nullity shall be considered as physically incapable of consummating the advances on their legitime. marriage with the other, and such NOTE: The word 'delivered' in par. 1 is wrong according to incapacity continues and appears to be DLC as it is violative of Art. 777; it is contrary to principles incurable; or of succession. (6) That either party was afflicted with a sexually-transmissible Art. 52. The judgment of annulment or of disease found to be serious and appears to absolute nullity of the marriage, the partition and be incurable. distribution of the properties of the spouses, and the delivery of the children's presumptive legitimes shall be recorded in the appropriate civil registry and registries of Art. 102. Upon dissolution of the property; otherwise, the same shall not affect their absolute community regime, the following persons. procedures shall apply: xxx (6) Unless otherwise agreed upon Art. 53. Either of the former spouses may marry by the parties, in the partition of the again after complying with the requirements of the properties, the conjugal dwelling and the immediately preceding Article; otherwise, the subsequent lot on which it is situated shall be marriage shall be null and void. adjudicated to the spouse with whom the majority of the common children choose to remain. Children below the age of Art. 54. Children conceived or born before the seven years are deemed to have chosen judgment of annulment or absolute nullity of the marriage the mother, unless the court has decided under Article 36 has become final and executory, shall be otherwise. In case there is no such considered legitimate. Children conceived or born of the majority, the court shall decide, taking subsequent marriage under Art. 53 shall likewise be legitiinto consideration the best interests of mate. said children. Art. 36. A marriage contracted Art. 129. Upon the dissolution of by any party who, at the time of the the conjugal partnership regime, the celebration, was psychologically following procedure shall apply: incapacitated to comply with the essential xxx marital obligations of marriage, shall likewise be void even if such incapacity PAGE 49

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Notes, Cases and Commentaries on Persons and Family Relation becomes manifest only after its presumptive legitimes shall be recorded in the appropriate solemnization. civil registry. (9) After all the foregoing, the former spouses are free Art. 53. Either of the former to marry again; otherwise, the subsequent M shall be void. spouses may marry again after complying with the requirements of the immediately Liability for Damages.-- [I]t is submitted that in an preceding Article; otherwise, the appropriate case, damages may be recovered by an injured subsequent marriage shall be null and party from another responsible for the nullity of a void or void. voidable marriage. The bais of the liability will be the commission of an unlawful act or BF. Arts. 20 and 21 of the Art. 52. The judgment of NCC can serve as the legal basis for an action for damages. annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses, and the VI. STATUS OF FOREIGN MARRIAGES.-- Art. 26 delivery of the children's presumptive legitimes shall be recorded in the Art. 26. All marriages solemnized outside the appropriate civil registry and registries Philippines in accordance with the laws in force in the of property; otherwise, the same shall not country, where they were solemnized, and valid there as affect third persons. such, shall also be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6), 36, 37, 38. Tolentino: Effects of the Setting Aside of all Defective xxx. Marriages (whether they are void ab initio, or voidable, or a subsequent marriage terminated upon reappearance of a Art. 35 (1) - below 18 spouse presumed to be dead): (4) - bigamous or polygamous (1) There will be a liquidation, partition, and (5) - mistake as to identity distribution of the properties of the spouses. (6) - non-registration with the LCR of the ff: Liquidation involves the inventory of the properties - judgment of annulment or absolute and payment of the obligations of the spouses and of the nullity of the marriage marriage. - partition and distribution of Partition is the process in w/c the remaining properties of the spouses properties will be divided into the various portions to be - delivery of the children's presumptive allocated to all the parties. legitimes Distribution is the delivery to the spouses and the Art. 36 - psychological incapacity children, in the proper cases, of the shares or properties Art. 37 - incestuous marriages allocated to them respectively in the partition. Art. 38 - marriages that are void as against public policy (2) In determining the share of each spouse in the properties of the M, the properties, or their value, that had been donated in consideration of M by the innocent spouse to Balane: If the marriage w/c is solemnized abroad is void the spouse in BF, shall be revoked by operation of law and under Phil. law, it is considered void in the Phils. returned to the innocent spouse to become part of his Exceptions: Art. 35, paragraphs 2 and 3. distributable prop. (3) The children conceived or born bef. the judgment becomes final are considered legitimate. The judgment shall Jovito Salonga, Private International Law II, 1995 ed. provide for their custody and support. Their presumptive (hereinafter Salonga): legitime from each parent (as if the parent died and they Philippine Law on Formal Validity.-- Phil. law adheres to inherit from him or her on the date of final judgment) shall the imperative rule: a marriage formally valid where be delivered to them in cash, prop. or securities. celebrated is valid elsewhere (the maxim locus regit actum is (4) The innocent spouse may revoke the designation applied compulsorily; the law of the place of celebration, the of the spouse in BF as beneficiary in the former's life lex loci celebrationis, is solely decisive.) Par. 1 of Art. 17, insurance policy. NCC embodies the maxim locus regit actum: "The forms and (5) The spouse in BF shall be disqualified to inherit solemnities of contracts, wills, and other public instruments, from the innocent spouse even under a will or testament. shall be governed by the laws of the country in w/c they are (6) The conjugal dwelling and the lot on w/c it is built executed." will be given to the spouse w/ whom the common children xxx To establish a valid foreign marriage, 2 things choose to remain, unless the parties agree otherwise. must be proven, namely, (1) the existence of the foreign law (7) If both spouses acted in BF, all donations by as a question of fact; and (2) the alleged foreign marriage by reason of M from one to the other, and all testamentary convincing evidence. (Yao Kee v. Sy-Gonzales, supra.) provisions made by one in favor of the other, are revoked by operation of law. Marriage by Proxy.-- Proxy marriages, where (8) The judgment, the partition and distribution of the permitted by the law of the place where the proxy participates prop. of the spouses, and the delivery of the children's in the marriage ceremony, are entitled to recognition in PAGE 50

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Notes, Cases and Commentaries on Persons and Family Relation countries adhereing to the lex loci celebrationis rule, at least insofar as formal validity is concerned. Tolentino: This rule seems to place a Filipino citizen on a Baviera: Marriage by proxy abroad affects formal plane of inequality. The reason for this is that our law does requisite only. It can be argued as valid. not allow the Filipino to seek a foreign divorce, hence, if he obtains one, it is not recognized in the Phils. He is subject to Philippine Law on Substantive Validity.-- W/ reference to the Phil. law on status, wherever he goes. marriages celebrated abroad, Phil. law primarily refers to the law of the place of celebration. xxx The general rule expressed in the formula "valid where celebrated, valid Historical Background of Art. 26, par. 2 (BEAVIERA everywhere" admits of at least 2 exceptions: (1) in the case CASE) of Filipino nationals who marry abroad before Phil. consular or diplomatic officials; (2) in the saving clause of Art. 26 VAN DORN V. ROMILLO [139 S 139 (1985)] - According par. 1. to Baviera, the second paragraph of Art. 26 was brought xxx Art. 26 par. 1 of the FC is a domestic, internal about by the case of Van Dorn v. Romillo, where the court rule applicable only to Filipino nationals. However, held that an American husband granted absolute divorce in universally incestuous marriages-- such as those bet. parents his country is estopped from asserting his rights over property and children or bet. brothers and sisters-- will be considered allegedly held in the Philippines as conjugal property by him void here, whatever may be the nationality of the spouses. and his former wife. To maintain, as the husband does, that xxx As a general rule, a marriage should be upheld under our laws, the wife has to be considered still married to if valid according to the law of the place of celebration, unless him and still subject to a wife's obligation under the Civil the M itself or the enjoyment of the incidents of the marital Code cannot be just. Petitioner wife should not be obliged to relationship would offend the strongly-held notions of live together with, observe respect and fidelity, and render decency and morality of a State that has a close relationship support to her husband. The husband should not continue to to the contracting parties. be one of her heirs with possible rights to conjugal property. SHE SHOULD NOT BE DISCRIMINATED AGAINST IN Art. 26. xxx HER OWN COUNTRY IF THE ENDS OF JUSTICE ARE Where a marriage between a Filipino citizen and TO BE SERVED. a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse TENCHAVEZ V. ESCANO [15 S 355] - supra. (Art. 15, capacitating him or her to remarry, the Filipino spouse NCC.) shall have capacity to remarry under Philippine law. (n) (as amended by E.O. 227, dated July 17, 1987.) Balane: This is the only instance where we recognized foreign divorce. Take note that the requirements in Art. 52 need not be complied w/ because there is no such requirement in Art. 26, par. 2. Requisites.-- There are four requisites for this Article to apply: 1. The marriage must be one between a Filipino and a foreigner 2. Divorce is granted abroad. 3. Divorce must have been obtained by the alien spouse 4. Divorce must capacitate the alien spouse to remarry. Query: Suppose the foreign spouse was a former Filipino citizen. Does the law require that the foreign spouse was already a foreigner at the time the marriage was contracted? A: There is no Supreme Court ruling on this. But a 1993 DOJ opinion tells us that Art. 26 does not require that the alien spouse was already a foreigner at the time of the marriage. (not in Balane's outline) MUSLIM CODE- P.D. 1083 Art. 13. (1) Application. The provisions of this Title shall apply to marriage and divorce wherein both parties are Muslims, or wherein only the male party is a Muslim and the marriage is solemnized in accordance with Muslim law or this Code in any part of the Philippines. (2) In case of a marriage between a Muslim and non-Muslim, solemnized not in accordance with Muslim law or this Code (Muslim Code), the Civil Code of the Philippines shall apply. Art. 29. (1) (Subsequent Marriage) By divorcee (1) No woman shall contract a subsequent marriage unless she has observed an idda of three monthly courses counted from the date of divorce. However, if she is pregnant at the time of the divorce, she may remarry only after delivery. (not in Balane's outline) PENAL SANCTIONS - ACT 3613, The Marriage Law, Secs. 30-42

Salonga: Art. 26 par. 2 applies to a situation where the alien spouse was the one who obtained the divorce decree abroad Sec. 30-36. Superseded by New Civil Code, Now capacitating him or her to remarry , in w/c case the Filipino Title I, FC spouse shall likewise have the capacity to remarry. PAGE 51

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Notes, Cases and Commentaries on Persons and Family Relation Sec. 37. Influencing parties in religious respects. marriage of exceptional character, shall fail to comply Any municipal secretary or clerk of the Municipal Court with the provisions of Chapter II of this Act (Chapter 2, (now Local Civil Registrar), who directly or indirectly Title III, New Civil Code, now Title I, Family Code), shall attempts to influence any contracting party to marry or be punished by imprisonment for not less than one month refrain from marrying in any church, sect, or religion or nor more than two years, or by a fine of not less than before any civil authority, shall be guilty of a three hundred pesos nor more than two thousand pesos, misdemeanor and shall, upon conviction thereof, be punnor both, in the discretion of the court. ished by imprisonment for not more than one month and a fine of not more than two hundred pesos. Sec. 43. Unlawful signboards. - Any person who, not being authorized to solemnize marriage, shall publicly Sec. 38. Illegal issuance or refusal of license. advertise himself, by means of signs or placards placed on Any municipal secretary (now Local Civil Registrar) or his residence or office or through the newspapers, as clerk of the Municipal Court of Manila (Local Civil authorized to solemnize marriage, shall be punished by Registrar) who issues a marriage license unlawfully or imprisonment for not less than one month nor more than who maliciously refuses to issue a license to a person two years, or by a fine of not less than fifty pesos nor more entitled thereto or fails to issue the same within twentythen two thousand pesos, or both, in the discretion of the four hours after the time when, according to law, it was court. proper to issue the same, shall be punished by imprisonment for not less than one month nor more than Sec. 44. General penal clause. - Any violation of two years, or by a fine of not less than two hundred pesos any provision of this Act not specifically penalized, or of nor more than two thousand pesos. the regulations to be promulgated by the proper authorities, shall be punished by a fine of not more then Sec. 39. Illegal solemnization of marriage. - Any two hundred pesos or by imprisonment for not more than priest or minister solemnizing marriage without being one month, or both, in the discretion of the court. authorized by the Director of the Philippine National Library (now Director of National Library) or who, upon Sec. 45. Disqualification of priests and ministers. solemnizing marriage, refuses to exhibit his authorization Any priest or minister of the gospel or any denomination, in force when called upon to do so by the parties or church, sect, or religion convicted of the violation of any of parents, grandparents, guardians, or persons having the provisions of this Act or of any crime involving moral charge; and any bishop or officer, priest, or minister of turpitude, shall, in addition to the penalties incurred in any church, religion or sect the regulations and practices each case, be disqualified to solemnize marriage for a whereof require banns or publications previous to the period of not less than six months nor more than six years solemnization of a marriage in accordance with section at the discretion of the court. (As amended by Act No. ten (superseded by Art. 60, New Civil Code, now under 4236). Art. 12, EO No. 209, as amended), who authorizes the immediate solemnization of a marriage that is subseV. LEGAL SEPARATION quently declared illegal; or any officer, priest or minister solemnizing marriage in violation of the provisions of this Tolentino: Divorce and Its Kinds.-- Divorce is the act, shall be dissolution or partial suspension, by law, of the marital punished by imprisonment for not less than one month nor relation; the dissolution being termed divorce from the bond more than two years, or by a fine of not less than two of matrimony, or a vinculo matrimonii ; the suspension being hundred pesos nor more than two thousand pesos. known as divorce from bed and board, or a mensa et thoro. The former is sometimes also called absolute, and the latter Sec. 40. Marriages in improper places. - Any relative divorce. officer, minister, or priest solemnizing marriage in a place other than those authorized by this Act, shall be punished Legal Separation and Separation of Property.-- In the by a fine of not less than twenty five pesos nor more than former, there is a suspension of common marital life, both as three hundred pesos, or both, in the discretion of the to person and property, while in the latter, only the property court. relation is affected, and the spouses may be actually living together. Sec. 41. Failure to deliver marriage certificate. Any officer, priest or minister failing to deliver to either Legal Separation and Separation of Spouses.-- Legal of the contracting parties one of the copies of the marriage Separation (LS) can be effected only be decree of the court; contract or to forward the other copy to the authorities but the spouses may be separated in fact w/o any judgment of within the period fixed by law for said purpose, shall be the court. Under the NCC, any contract for personal punished by imprisonment for not more than one month separation between husband and wife shall be void and of no or by a fine of not more than three hundred pesos, or both, effect. [Art. 221 (1), NCC.] With the repeal of Art. 221, and in the discretion of the court. the omission from the FC of a similar provision, the rule prior to the NCC is restored, and such agreements are again valid. Sec. 42. Affidavit on marriage "in articulo mortis." - Any officer, priest, or minister who, having Foreign Divorces.-- A foreign divorce bet. Filipino citizens, solemnized a marriage in articulo mortis or any other sought and decreed after the effectivity of the NCC, is not PAGE 52

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Notes, Cases and Commentaries on Persons and Family Relation entitled to recognition as valid in the Phils. This is still the has the option, either to bring an action for annulment or for rule under the FC. LS. Baviera case: TENCHAVEZ V. ESCANO [15 S 355 (1965)] - Where the wife, a Filipina, deserted her Filipino husband, obtained a divorce in the U.S., married an American citizen, and later herself became an American citizen, the Filipino husband is entitled to legal separation conformably to Philippine law and to damages. (1) A foreign divorce between Filipino citizens, sought and decreed after the effectivity of the New Civil Code, is not entitled to recognition as valid in the Philippines, and neither is the marriage contracted with another party by the divorced consort, subsequenlty to the foreign decree of divorce, entitled to validity in this country. (2) Invalid divorce entitles innocent spouse to recover damages (P25,000 as moral damages; basis - 2176). (3) An action for alienation of affection against the parents of one consort does not lie in the absence of proof of malice or unworthy motives on their part. Note: WHAT IS IMPORTANT IS THE CITIZENSHIP AT THE TIME OF MARRIAGE. Baviera - loophole: supposing the wife became an american citizen first, then divorced her Filipino husband, would it still constitute as adultery giving rise to legal separation? [NO] A. GROUNDS ART. 55. A petition for legal separation may be filed on any of the following grounds: (1) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner; (2) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation; (3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement; (4) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned; (5) Drug addiction or habitual alcoholism of the respondent; (6) Lesbianism or homosexuality of the respondent; (7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad; (8) Sexual infidelity or perversion; (9) Attempt by the respondent against the life of the petitioner; or (10) Abandonment of petitioner by respondent without justifiable cause for more than one year. For purposes of this Article, the term "child" shall include a child by nature or adoption. Paragraph (1).-- Tolentino: The violence must be of a serious degree, but does not have to amount to an attempt against the life of the the petitioner., w/c is covered by par. (9). The violence must be repeated, to the extent that common life w/ def. becomes extremely difficult for the plaintiff. It is submitted that the repeated physical violence or the grossly abusive language should be committed only by one spouse and not by both to each other. Paragraph (2).-- Tolentino: The physical violence or moral pressure to compel the plaintiff to change religious or political affiliation need not be repeated. A single incident would be enough. Balane: The pressure must be undue. It becomes undue when the other spouse is deprived of the free exercise of his or her will. Paragraph (3).-- Tolentino: If both spouses agree that the wife or a daughter engage in prostitution, neither one should be allowed to obtain LS, on the principle that a person should come to court w/ clean hands. Paragraph (4).-- Tolentino: The crime for w/c the def. was convicted is immaterial. Paragraph (5).-- Balane: This ground does not have to exist at the time of the marriage. Distinguish this from Art. 46 (4). Paragraph (6).-- Balane: Questions.-- (1) Will knowledge of one party that the other was a lesbian or a homosexual bar the action for LS? (2) Does homosexuality contemplate sexual orientation or does it contemplate only homosexual practice. Baviera - homosexuality refers to practice, not by nature; if by nature, then Art. 36 will apply. Tolentino: On pars. 5 & 6.-- These grounds can be reason for actions for LS only when they come to exist after the celebration of the marriage. If the defect had existed at the time of the marriage, but the marriage had been ratified by continued cohabitation or the action to annul has prescribed, it is submitted that the action for LS may n ot be subsequently brought. Paragraph (7).-- Tolentino: Would this include a subsequent marriage by a person after a declaration of presumptive death of the other spouse? It is submitted that every subsequent marriage, where there is a subsisting prior marriage, should give the other spouse the right to ask for LS.

Paragraph (8).-- Tolentino: Sexual Infidelity.-The act of a wife in having sexual intercourse w/ any other man not her husband will constitute adultery . On the other hand, concubinage is committed by the husband in three Balane: This is an exclusive enumeration. ways: (1) by maintaining a mistress in the conjugal dwelling: Observe that some grounds would tend to overlap w/ (2) by having sexual intercourse w/ the other woman under the grounds for annulment. In such a case, the aggrived party scandalous circumstances; and (3) by cohabiting w/ her in PAGE 53

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Notes, Cases and Commentaries on Persons and Family Relation any other place. xxx To equalize the situation of husband (7) Death of either party pendente lite . (Lapuz v. and wife in this respect, the FC makes "sexual infidelity" Eufemio, supra.) sufficient ground for either to justify the grant of LS. Sexual Perversion.-- This includes all unusual or Tolentino: LS is a personal right and does not survive death. abnormal sexual practices w/c may be offensive to the feelings or sense of decency of either the husband or the wife. But if the act of sexual perversion is by free mutual (8) Reconciliation pendente lite . (Art. 66 par. 1.) agreement, neither party can ask for LS, bec. they are equally guilty of the perverse act. Balane: Sexual Perversion is a flexible concept. It is Paragraph (1).-Tolentino: Condonation as basically, a cultural thing. Defense.-- Condonation is the forgiveness of a marital offense constituting a ground for LS, and bars the right to LS. It may be express or implied. It is express when BALANE CASE: signified by words or writing, and it is implied when it may be inferred from the acts of the injured party. GANDIONCO V. PENARANDA [155 SCRA 725] - A Balane: Condonation is pardon w/c comes after the civil action for LS, based on concubinage, may proceed ahead offense. of, or simultaneously w/, a criminal action for concubinage, bec. said civil action is not one "to enforce the civil liability MATUBIS V. PRAXEDES [109 P 788 (1960)] - The law arising from the offense" even if both the civil and criminal specifically provides that legal separation may be claimed actions arise from or are related to the same offense. xxx only by the innocent spouse provided the latter has not A decree of LS, on the ground of concubinage may condoned or consented to the adultery or concubinage be issued upon proof of preponderance of evidence in the committed by the other spouse; and plaintiff having condoned action for LS. No criminal proceeding or conviction is and/or consented IN WRITING to the concubinage necessary. committed by the defendant husband, she is now undeserving of the court's sympathy. Paragraph (9).-- Tolentino: An attempt against the life of the plaintiff spouse, as a ground for LS, implies that there is intent to kill. xxx [But] the act against the life of the plaintiff spouse must be wrongful in order to constitute a ground for LS. Baviera: Even if repeated physical violence, this can fall under No. 1. Paragraph (10).-- Tolentino: Under Art. 101, "the spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling. Art. 56. The petition for legal separation shall be denied on any of the following grounds: (1) Where the aggrieved party has condoned the offense or act complained of; (2) Where the aggrieved party has consented to the commission of the offense or act complained of; (3) Where there is connivance between the parties in the commission of the offense or act constituting the ground for legal separation; (4) Where both parties have given ground for legal separation; (5) Where there is collusion between the parties to obtain the decree of legal separation; or (6) Where the action is barred by prescription. Balane: There are other grounds that are not found in Art. 56. Baveria: The stipulation though void is equivalent to express consent. Paragraph (2).-- Consent.-- Tolentino: Consent is the agreement or conformity in advance of the commission of the act w/c would be a gorund for LS. Paragraph (3).-Connivance.-Tolentino: Connivance is distinguished from consent in that consent is unilateral, or an act of only one spouse. Connivance implies agreement, express or implied, by both spouses to the ground for LS. Paragraph (4).-Recrimination.-Tolentino: Recrimination is a countercharge in a suit for LS that the complainant is also guilty of an offense consituting a ground for LS. This defense is based on the principle that a person must come to court w/ clean hands. Paragraph (5).-- Effect of Collusion.-- Tolentino: Collusion is the agreement bet. husband and wife for one of them to commit, or to appear to commit or presented in court as having committed, a matrimonial offense, or to suppress evidence of a valid defense, for the purpose of enabling the other to obtain LS.

B. LIMITATION OF ACTION Art. 57. In action for legal separation shall be filed within five years from the time of the occurrence of the cause.

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Notes, Cases and Commentaries on Persons and Family Relation Tolentino: The law does not encourage LS, and provides for the need in certain cases for judicial power to assert itself is prescription of the action even when the offended party has discernible from what is set from what is set forth in Art. 104 not had knowledge of the cause. xxx If plaintiff does not NCC (now Art. 61, FC.) Here, there would appear to be a come to know of the ground for LS, and 5 yrs. expire from recognition that the question of management of the spouses' the date of its occurence, he cannot sue for LS. respective property need not be left unresolved even during Baviera cases: the 6 months period. An administrator may even be appointed for the management of the prop. of the conjugal BROWN V. YAMBAO [54 O.G. 1827 (1957)] - In an partnership. action for legal separation on the ground of adultery filed by the husband, even though the defendant wife did not PACETE V. CARRIAGA [231 SCRA 321] - (Art 58) of interpose the defense of prescription, nevertheless, the courts the FC mandates that an action for LS must "in no case be can take cognizance thereof, because actions seeking a decree tried before six months shall have elapsed since the filing of of legal separation or annulment of marriage, involve public the petition," obviously in order to provide the parties a interest, and it is the policy of our law that no such decree be "cooling-off" period. In this interim, the court should take issued if any legal obstacles thereto appear upon the record. steps toward getting the parties to reconcile. Also, the husband was guilty of commission of the same offense by living with another woman. Art. 59. No legal separation may be decreed Baviera: This is an exception the Rules of Court provision unless the Court has taken steps toward the reconciliation that defenses not raised in the pleadings will not be of the spouses and is fully satisfied, despite such efforts, considered, since provisions on marriage are substantive in that reconciliation is highly improbable. nature. Tolentino: The effort of the Court is not limited to the period before trial (at least 6 mos.) but may be continued even after C. HEARING trial and before judgment is rendered. Art. 58. An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the petition. Tolentino: This article is intended to give the spouses a chance to reconcile. LAPUZ V. EUFEMIO [43 S 177 (1972)] - infra. Balane: Incidental matters may be heard even during the sixmonths cooling-off period. Rufus Rodriguez, The FAMILY CODE of the Philippines Annotated, 2nd ed. (hereinafter, Rodriguez): During the six month period, the court may still act to determine the custody of the children, alimony and support pendente lite . ARANETA V. CONCEPCION [99 P 709 (1956)] Evidence not affecting the cause of separation, like the actual custody of the children, the means conducive to their welfare and convenience during the pendency of the case, should be allowed so that the court may determine which is best for their custody. BALANE CASE: DE OCAMPO V. FLORENCIANO [107 P 35 (1960)] Where the husband, after finding the wife guilty of adultery sent her to Manila to study beauty culture, and there she committed another adultery with a different man, and the husband filed a petition for legal separation, the wife's admission to the investigating fiscal that she committed adultery, in the existence of evidence of adultery other than such confession, is not the confession of judgment disallowed by the Code. What is prohibited is a confession of judgment a confession done in court or through a pleading.

Art. 60. No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment. In any case, the Court shall order the prosecuting attorney or fiscal assigned to it to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed.

(1) "Where there is evidence of the adultery SOMOSA-RAMOS V. VAMENTA [46 S 110 (1972)] - An independently of the defendant's statement agreeing to the ancillary remedy of preliminary mandatory injunction is not legal separation, the decree of separation should be granted, barred by the six-month statutory suspension of trial in an since it would not be based on the confession but upon the action for legal separation. In this case, the wife filed a evidence presented by the plaintiff. What the law prohibits is petition for legal separation, and a motion for preliminary a judgment based EXCLUSIVELY on defendant's mandatory injunction for the return of what she calims to be confession." her paraphernal and exclusive property. Art. 103 NCC is not an absolute bar to the hearing of (2) The failure of the husband to actively search for a motion for preliminary injunction priot to the expiration of his wife who left the conjugal home after his discovery of her the 6 months period. xxx That the law remains cognizant of illicit affairs, and to take her home does not constitute the PAGE 55

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Notes, Cases and Commentaries on Persons and Family Relation condonation or consent to the adultery. It was not his duty to (3) In the absence of a written agreement of the search for her. spouses, the Court shall provide for the support bet. the spouses and the custody and support of the common children, (3) The petition should be granted based not on the taking into account the welfare of the children and their first adultery, which has already prescribed, but on the second choice of the parent w/ whom they wish to remain. adultery, which has not yet prescribed. Adapted. (4) When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be necessary, unless such spouse 1. RIGHTS AND OBLIGATIONS OF PARTIES voluntarily gives such consent. Art. 61. After the filing of the petition for legal separation, the spouses shall be entitled to live separately from each other. The court, in the absence of a written agreemnt between the spouses, shall designate either of them or a third person to administer the absolute community or conjugal partnership property. The administrator appointed by the court shall have the same powers and duties as those of a guardian under the Rules of Court. Balane case: SABALONES V. CA [230 SCRA 79] - In case of an action for legal separation, where the spouses did not agree as to who will administer the conjugal partnership, the Court may appoint one of the spouses. Such appointment may be implied. xxx While it is true that not formal designation of the administrator has been made, such designation was implicit in the decision of the trial court denying the petitioner any share in the conjugal properties (and thus also disqualifying him as administrator thereof.) That designation was in effect approved by the CA when it issued in favor of the resp. wife the preliminary injunction now under challenge. Art. 62. During the pendency of the action for legal separation, the provisions of Article 49 shall likewise apply to the support of the spouses and the custody and support of the common children. Art. 49. During the pendency of the action and in the absence of adequate provisions in a written agreement between the spouses, the Court shall provide for the support of the spouses and of their common children. The Court shall give paramount consideration to the moral and material welfare of said children and their choice of the parent with whom they wish to remain as provided for in Title IX. It shall also provide for appropriate visitation rights of the other parent. Alimony "pendente lite."-- During the pendency of the suit for legal separation upon a complaint filed and admitted, it is the duty of the court to grant alimony to the wife and to make provisions for the support of the children not in the possession of the father. Should def. appear to have means to pay alimony and refuses to pay, either an order of execution may be issued or a penalty for contempt may be imposed, or both. Custody of the Children.-- While the action is pending, the custody of the children may be determined in one of two ways: (1) by agreement of the spouses w/c shall not be distrubed unless prejudicial to the children; and (2) by court order, w/c shall be based on the sound discretion of the judge, taking into account the welfare of the children as the ruling consideration. Baviera case: LERMA V. CA [61 S 440 (1974)] - Where the husband filed a complaint for adultery against the wife, and the wife filed a petition for legal separation in bad faith, the wife having been convicted of adultery in the meantime, she is not entitled to support pendente lite. "The right to separate support and maintenance, even from the conjugal partnership property, presupposes the existence of a justifiable cause for the spouse claiming such right to live separately. A petition in bad faith, such as that filed by the one who is himself or herself guilty of an act which constitutes a ground for legal separation at the instance of the other spouse, cannot be considered as within the intendment of the law granting separate support."

2. EFFECT OF DEATH OF A SPOUSE BAVIERA CASES:

LAPUZ V. EUFEMIO [43 S 177 (1972)] - The death of the plaintiff BEFORE a decree of legal separation abates such action. "An action for legal separation which involves nothing more than bed-and board separation of the spouses is purely personal. The Civil Code recognizes this (1) by allowing ony the innocent spouse (and no one else) to claim legal separation; (2) by providing that the spouses can, by their reconciliaton, stop or abate the proceedings and even Tolentino: Effects of Filing Petition: rescind a decree of legal separation already granted. Being (1) The spouses can live separately from each other personal in character, it follows that the death of one party to (2) The administration of the common prop., the action causes the death of the action itself - actio whether in absolute community or conjugal partnership of personalis moritur cum persona ." Even if property rights are gains, shall be given by the Court to either of the spouses or involved, because these rights are mere effects of the decree to a third person, as is best for the interests of the community. of legal separation, being rights in expectation, these rights PAGE 56

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Notes, Cases and Commentaries on Persons and Family Relation do not come into existence as a result of the death of a party. choice of the child over seven years of Also under the Rules of court, an action for legal separation age, unless the parent chosen is unfit. or annulment of marriage is not one which survives the death No child under seven years of age of spouse. shall be separated from the mother, unless the court finds compelling reasons to order otherwise. MACADANGDANG V. CA [108 S 314 (1981)] - The death of a spouse AFTER a final decree of legal separation has no (4) The offending spouses shall be disqualified effect on the legal separation. The law clearly spells out the from inheriting from the innocent spouse by intestate effect of a final decree of legal separation on the conjugal succession. Moreover, provisions in favor of the offending property. Therefore, upon the liquidation and distribution spouse made in the will of the innocent spouse shall be conformably with the effects of such final decree, the law on revoked by operation of law. intestate succession should take over the disposition of whatever remaining properties have been allocated to the Balane: There are four (4) other effects deceased spouse. (5) Donation propter nuptias may be revoked by the innocent spouse. (Art. 64.) (6) Designation of the guilty spouse in the insurance D. DECREE OF LEGAL SEPARATION policy may be revoked. (id.) (7) Cessation of the obligation of mutual support. 1. EFFECTS (Art. 198.) (8) Wife may continue using the surname before the Art. 63. The decree of legal separation shall have decree of legal separation. (Art. 372, NCC.) the following effects: (1) The spouses shall be entitled to live separately Tolentino: Support and Assistance.-- After the decree of from each other, but the marriage bonds shall not be LS, the obligation of mutual support bet. the spouses ceases; severed; however, the court may order that the guilty spouse give (2) The absolute community or the conjugal support to the innocent spouse. (Art. 198.) partnership shall be dissolved and liquidated but the offending spouse shall have no right to any share of the net Successional Rights.-- The guilty spouse, by virtue profits earned by the absolute community or the conjugal of the decree of LS becomes disqualified to succeed the partnership, which shall be forfeited in accordance with innocent spouse. She would not even be entitled to the the provisions of Article 43 (2); legitime. xxx But if the will is executed after the decree, the disposition in favor of the offender shall be valid. Art. 43. The termination of the subsequent marriage referred to in the Balane case: preceding Article shall produce the following effects: LEDESMA V. INTESTATE ESTATE OF PEDROSA xxx [219 SCRA 806] - The law mandates the dissolution and (2) The absolute community of liquidation of the prop. regime of the spouses upon finality of property or the conjugal partnership, as the decree of LS. Such dissolution and liquidation are the case may be, shall be dissolved and necessary consequences of the final decree. This legal effect liquidated, but if either spouse contracted of the decree of legal separation ipso facto or automatically said marriage in bad faith, his or her follows, as an inevitable incident of, the judgment decreeing share of the net profits of the community the LS for the purpose of determining the share of each property or conjugal partnership spouse in the conjugal assets. (citing Macadangdang v.CA, property shall be forfeited in favor of the 108 SCRA 314.) common children or, if there are none, the children of the guilty spouse by a previous marriage or, in default of Art. 64. After the finality of the decree of legal children, the innocent spouse; separation, the innocent spouse may revoke the donations made by him or by her in favor of the offending spouse, as (3) The custody of the minor children shall be well as the designation of the latter as a beneficiary in any awarded to the innocent spouse, subject to the provisions insurance policy, even if such designation be stipulated as of Article 213 of this Code; and irrevocable. The revocation of the donation shall be recorded in the registries of property in the places where Art. 213. In case of separation of the properties are located. Alienations, liens and the parents, parental authority shall be encumbrances registered in good faith before the exercised by the parent designated by the recording of the complaint for revocation in the registries Court. The Court shall take into account of property shall be respected. The revocation of or all relevant considerations, especially the change in the designation of the insurance beneficiary PAGE 57

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Notes, Cases and Commentaries on Persons and Family Relation shall take effect upon written notification thereof to the (3) The names of all their known creditors, their insured. addresses and the amounts owing to each. The action to revoke the donation under this The agreement of revival and the motion for its Article must be brought within 5 years from the time the approval shall be filed with the court in the same decree of legal separation become final. proceeding for legal separation, with copies of both furnished to the creditors named therein. After due hearing, the court shall, in its order, take measures to protect the interest of creditors and such order shall be 2. RECONCILIATION recorded in the proper registries of properties. The recording of the order in the registries of Art. 65. If the spouses should reconcile, a property shall not prejudice any creditor not listed or not corresponding joint manifestation under oath duly signed notified, unless the debtor-spouse has sufficient separate by them shall be filed with the court in the same properties to satisfy the creditor's claim. proceeding for legal separation. Tolentino: New Regime.-- The FC authorizes the spouses to Tolentino: Concept of Reconciliation.-- Reconciliation is a agree to "revive their former property regime." We submit mutual agreement to live together again as husband and wife. that this is not restrictive and does not limit the spouses to the It must be voluntary mutual agreement. regime they had before the decree of LS. The spouses are xxx placed in the same position as before the marriage and could It is submitted that the fact of resuming common life establish the property regime they want, as if making a is the essence of reconciliation and terminates the legal marriage settlement. xxx If they do not agree on any system, separation even if the joint manifestation has not been filed in then by law their new regime will be that of separation of court. property. Balane: Contrary view.-- Technically, what will set aside the decree of LS is the filing of a joint verified manifestation of reconciliation. Without that, the court cannot act motu proprio. Art. 66. The reconciliation referred to in the preceding Article shall have the following consequences: (1) The legal separation proceedings, if still pending, shall thereby be terminated at whatever stage; and (2) The final decree of legal separation shall be set aside, but the separation of property and any forfeiture of the share of the guilty spouse already effected shall subsist, unless the spouses agree to revive their former property regime. The court order containing the foregoing shall be recorded in the proper civil registries. Balane: Effects of Reconciliation: restored. (1) Custody over the children.-Joint custody is

V. RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE Tolentino: Dual Aspect of Family Relations.-- There are 2 aspects in family relations, one internal and another external. In the internal aspect, w/c is essentially natural and moral, the family is commonly known to be sacred and inaccessible even to the law. It is only in the external aspects, where third persons and the public interest are concerned, that the law fixes rules regulating family relations. A. IN GENERAL Art. 68. The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support. Balane: These are called legal obligations but they are more of a statement of policy. An action for specific performance is not proper to enforce these obligations. The only possible consequences are found in Art.100 for ACP and 127 for CPG. With regard to the mutual obligation of fidelity, there are consequences both civil and criminal (adultery or concubinage.). With respect to support, there are legal provisions in the FC w/c carry out the duty. Tolentino: Right of Cohabitation.-- Marriage entitles the husband and wife to each other's society, that is, they are mutually entitled to cohabitation or consortium. This means that they shall have a common life, under the same roof, to better fulfill those obligations inherent in the matrimonial status.

(2) Compulsory and intestate succession is restored. (3) Testamentary succession.-- There is no revival. Reconciliation will not necessarily revive the institution of the guilty spouse in the will of the innocent spouse. (4) Donation propter nuptias will remain revoked. Art. 67. The agreement to revive the former property regime referred to in the proceeding Article shall be executed under oath and shall specify: (1) The properties to be contributed anew to the restored regime; (2) Those to be retained as separated properties of each spouse; and

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Notes, Cases and Commentaries on Persons and Family Relation Scope of Right.-- The right of cohabitation includes order to enforce the mutual obligations of care, of moral domestic and sexual community of the spouses, the extent of assistance, and of mutual affection and regard. both of w/c will differ according to the circumstances. xxx Position of Spouses in the Family.-- The perfect parity of [T]he spouses will be considered as living together, although rights and duties of H & W has to be reconciled w/ the need driven by the stress of circumstances or pecuniary difficulties for unity of direction in the family. Since the power of to separate, if there is no intention on the part of either to direction cannot be vested at the same time in 2 persons, the sever their marital relations permanently. existence of a head of the family becomes imperative; and xxx But for the purpose of the law, only the tangible both nature and tradition have given this prerogative to the and material aspect of cohabitation can be taken into account. husband The law is powerless to impose that intimacy of life w/c is the xxx This power of the H as head of the family, basis of conjugal peace and happiness. however, is not composed of rights and prerogatives, but of duties and responsibilities, bec. the H does not use it for his Sexual Relations.-- Although a husband is entitled personal benefit but for the greater and higher interests of the to sexual relations w/ his wife, and it is not rape to force the family. wife to have sexual relations against her will, this right is not absolute. The right involves only normal intercourse. Chastisement of Wife.-- Chastisement is unlawful, and it has been held that the H should not be permitted to Legal Sanction for Cohabitation.-- Cohabitation inflict personal chastisement upon his wife, even for the by the parties must be spontaneous and cannot be imposed by grossest outrage. The only possible exception to this rule the law or the courts. The only possible sanction is under our law is that given in Art. 247 of the RPC, w/c patrimonial in nature. If the husband refuses to live w/ the provides that: wife, he can be compelled to pay her a pension, and indemnity for damages; and if the wife refuses to live w/ the Art. 247. Any legally married husband, he can refuse to support her. person who, having surprised his spouse in the act of committing sexual Use of Force.-- The husband cannot by the use of intercourse with another person, shall force, even of public authority, compel the wife to return kill any of them or both of them in the act home. Such remedy would be a violation of personal dignity or immediately thereafter, or shall inflict and security. xxx Modern law abhors imprisonment for debt, upon them any serious physical injury, and coercive measures to compel the wife to live w/ the shall suffer the penalty of destierro. If he husband would be worse than imprisonment for debt. shall inflict upon them physical injuries of any other kind, he shall be excempt Remedies for Interference.--Any person who from punishment. interferes w/ the right of the spouses to cohabitation may be held liable for damages under Art. 26, FC. Love Between Spouses.-- Mutual love cannot be compelled or imposed by court action. Mutual Fidelity.-- This fidelity is the loyalty w/c each should observe toward the other, the wife having nothing to do w/ another man, nor the husband w/ another woman. BALANE CASES: Mutual Help.-- Mutual help involves care during sickness, and bearing the inconvenience caused by such sickness, of the other spouse. xxx The obligation of mutual help, however, is not limited to material assistance and care during sickness. It extends to everything that involves moral assistance, and mutual affection and regard. There are positive legal provisions w/c reveal the scope of this duty and implement the general rule laid down in the present article. Among them are: (1) the legitimacy of defense of a spouse (Art. 11, RPC); (2) the increase in penalty in a crime by one spouse against the person of the other (Art. 246, id.); (3) the incapacity of one spouse to testify against the other (R123, Sec. 26, ROC); (4) the right of one spouse to object to adoption of or by the other (Arts. 185 and 188); and (5) the prohibition of donations between them (Art. 87.) ARROYO V. VASQUEZ [42 P 54] - Def. is under obligation both moral and legal, to return to the common home and cohabit w/ plaintiff. But the great weight of authorities, however, is strongly convincing that it is not w/in the province of the courts in the Phils. to compel anyone of the spouses to cohabit w/ and render conjugal rights to the other. VAN DORN V. ROMILLO [139 SCRA 139] - supra. (Art. 15 NCC.) To maintain, as private resp. does, that under our laws, petitioner has to be considered as still married to private resp. and still subject to a wife's obligations under Art. 109 et seq. of the NCC cannot be just. Petitioner should not be obliged to live together w/, observe respect and fidelity, and render support to private resp. The latter should not continue to be one of the heirs w/ possible rights to conjugal property. She should not be discriminated against in her own country if the ends of justice are to be served.

Legal Sanction.-- The only aspect of the obligation of mutual help for w/c there is a legal sanction is the duty to support. This can be enforced by court action. But the law cannot penetrate to the intimate relations in the home in PAGE 59

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Notes, Cases and Commentaries on Persons and Family Relation Art. 69. The husband and wife shall fix the family Management of Household.-- In view of the silence of the domicile. In case of disagreement, the court shall decide. law on how the disagreement bet. the spouses in the The court may exempt one spouse from living management of the household shall be settled, the custom with the other if the latter should live abroad or there are should be observed, and the wife's position should be given other valid and compelling reasons for the exemption. priority. However, such exemption shall not apply if the same is not compatible with the solidarity of the family. Art. 72. When one of the spouses neglects his or her duties to the conjugal union or commits acts which Balane: The power to fix residence is joint. Whatever tend to bring danger, dishonor or injury to the other or to residence is fixed should bind both parties. the family, the aggrieved party may apply to the court for relief. Tolentino: The right to fix family domicile includes the right to change it, so long as the spouses agree to the transfer. Tolentino: What Relief May Be Granted.-- Under the NCC, when one party applies for relief bec. of the acts or Separate Residence.-- It can be said that any of the grounds negligence of the other spouse, "the court may counsel the for LS would be sufficient for a spouse to have a separate offender to comply with his or her duties, and take such domicile, if he or she prefers that to LS. measures as may be proper." Notwithstanding this omission in the FC, we believe that the court has full freedom to determine the kind of relief that may be given. The relief, Art. 70. The spouses are jointly responsible for however, must be lawful. the support of the family. The expenses for such support and other conjugal obligations shall be paid from the community property and, in the absence thereof, from the Art. 73. Either spouse may exercise any legitimate income of or fruits of their separate properties. In case of profession, occupation, business or activity without the insufficiency or absence of said income or fruits, such consent of the other. The latter may object only on valid, obligations shall be satisfied from their separate properserious, and moral grounds. ties. In case of disagreement, the court shall decide whether or not: Balane: Art. 70 is an implementation of the third duty of the (1) The objection is proper, and spouses, that of support. Correlate this w/ Art. 194. (2) Benefit has accrued to the family prior to the Where to get the funds? There are three sources in objection or thereafter. If the benefit accrued prior to the the order of priority: objection, the resulting obligation shall be enforced against the community property. If the benefit accrued 1. From the common property thereafter, such obligation shall be enforced against the separate property of the spouse who has not obtained 2. From the income or fruits of the separate property consent. The foregoing provisions shall not prejudice the Note: Numbers 1 and 2 are different sources only if rights of creditors who acted in good faith. (words in the property relationship is ACP. In CPG, numbers 1 and 2 italics were omitted in the text that Malacanang released.) will be the same. Tolentino: Disposition of Products of Activity.-- May the 3. From the separate property themselves. husband or wife engaged in a profession or business freely dispose of the products of such activity? A distinction should be observed. Art. 71. The management of the household shall If the disposition is in the course of the professional be the right and duty of both spouses. The expenses for or commercial activity, the spouse should be free to dispose of such management shall be paid in accordance with the the products of such activity. xxx But if the funds will be provisions of Article 70. used to buy real estate, then the spouse should act jointly, if the property regime of the marriage is absolute community or Tolentino: What Properties Answerable.-- The order of conjugal partnershiup of gains, bec. such funds are common liability for family support of the different properties of the prop. of the marriage. marriage is: first, the community prop., then the income of the spouses or fruits of their separate properties, and finally, the separate properties of the spouses. The liability of the B. OBLIGATION TO LIVE TOGETHER spouses for the support of the family being joint, this may mean that they contribute equally, regardless of the value of ARROYO V. ARROYO [42 S 54 (1921)] - The courts can the respective properties of the spouses. However, this would make a judicial declaration of abandonment without sufficient not be equitable. The better rule seems to be that the justification but it cannot compel cohabitation, consortium contribution should be proportionate to the properties of the being a purely personal right. However, the courts can impose spouses. economic sanctions or such unjustified departure from the conjugal dwelling. PAGE 60

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Notes, Cases and Commentaries on Persons and Family Relation PEREZ V. PEREZ [109 P 656 (1960)] - Material injury as (3) petition of one spouse for separation in case of used in Article 116 of the Civil Code (Art. 72 of the Family abandonment or failure to comply with marital Code) does NOT refer to patrimonial (economic) injury or obligations damage, but to personal (i.e. physiical or moral) injury to one (4) judicial dissolution of regime: joint petition or of the spouses since Art. 116 lies in the chapter concering petition by one spouse for cause. (Art 135/136) PERSONAL RELATIIONS between husband and wife. Art. 75. The future spouses may, in the marriage settlements, agree upon the regime of CIVIL LAW REVIEW absolute community, conjugal partnership of gains, Notes and Cases in Persons and Family Relations complete separation of property, or any other Part II regime. In the absence of marriage settlements, or when the regime agreed upon is void, the system of Compiled by Lianne Tan absolute community of property as established in this Code shall govern. Notes and Cases by Butch San Juan and Annie del Rosario - ACP CPG Edited and Updated by Rodell A. Molina SOP Other if none or void - ACP _______________ V. PROPERTY RELATION BETWEEN HUSBAND AND WIFE A. IN GENERAL Art. 74. The property relations between husband and wife shall be governed in the following order: (1) By marriage settlements executed before the marriage; (2) By the provisions of this Code; and (3) By the local customs. Balane: The husband and wife can agree on anything they want. This follows the principle of autonomy of contract. Note the order given in Art 74: (1) the marriage settlement; (2) the provisions of the Family Code; (3) local custom. In the absence of a marriage settlement, or when such marriage settlement is void, the ACP regime governs. An exception to the immediately preceding rule is when the 1st marriage is dissolved by reason of death, and the 2nd marriage was entered into before the liquidation of the 1st....the Code requires a mandatory separation of property (130(3)) All modifications to the marriage settlement must be made before the marriage is celebrated, except: Art. 66, 67, 128, 135 and 136. General rule: once marriage is celebrated, there is already a property regime and this cannot be changed: Except: (1) legal separation (ACP/CPG is dissolved) (2) revival of former property regime upon reconciliation PAGE 61 Art. 76. In order that any modification in the marriage settlements may be valid, it must be made before the celebration of the marriage, subject to the provisions of Articles 66, 67, 128, 135 and 136. Art. 66. The reconciliation referred to in the preceding Article shall have the following consequences: (1) The legal separation proceedings, if still pending, shall thereby be terminated at whatever stage; and (2) The final decree of legal separation shall be set aside, but the separation of property and any forfeiture of the share of the guilty spouse already effected shall subsist, unless the spouses agree to revive their former property regime. The court order containing the foregoing shall be recorded in the proper civil registries. Art. 67. The agreement to revive the former property regime referred to in the preceding Article shall be executed under oath and shall specify: (1) The properties to be contributed anew to the restored regime; (2) Those to be retained as separated properties of each spouse; and (3) The names of all their known creditors, their addresses and the amounts owing to each. The agreement of revival and the motion for its approval shall be filed with the court in the same proceeding for legal separation, with copies of both furnished to the creditors named therein. After due hearing, the court shall, in its order, take measures to protect the interest of

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Notes, Cases and Commentaries on Persons and Family Relation creditors and such order shall be absent spouse shall be enough basis for recorded in the proper registries of the grant of the decree of judicial properties. separation of property. The recording of the order in the registries of property shall not prejudice Art. 136. The spouses may jointly any creditor not listed or not notified, file a verified petition with the court for unless the debtor-spouse has sufficient the voluntary dissolution of the absolute separate properties to satisfy the community or the conjugal partnership of creditor's claim. gains, and for the separation of their common properties. Art. 128. If a spouse without just All creditors of the absolute cause abandons the other or fails to community or of the conjugal partnership comply with his or her obligations to the of gains, as well as the personal creditors family, the aggrieved spouse may petition of the spouse, shall be listed in the the court for receivership, for judicial petition notified of the filing thereof. The separation of property, or for authority to court shall take measures to protect the be the sole administrator of the conjugal creditors and other persons with pecunipartnership property, subject to such ary interest. precautionary conditions as the court may impose. The obligations to the family Art. 77. The marriage settlements and any mentioned in the preceding paragraph modification thereof shall be in writing, signed by refer to marital, parental or property the parties and executed before the celebration of relations. the marriage. They shall not prejudice third A spouse is deemed to have persons unless they are registered in the local civil abandoned the other when he or she has registry where the marriage contract is recorded as left the conjugal dwelling without well as in the proper registries of property. intention of returning. The spouse who has left the conjugal dwelling for a period Baviera: Marriage settlement/ modification of three months or has failed within the 1. in writing same period to give any information as to 2. signed by the parties his or her whereabouts shall be prima 3. executed before the marriage facie presumed to have no intention of 4. not prejudice 3Ps unless registered returning to the conjugal dwelling. Balane: Art. 135. Any of the following shall be considered sufficient cause for formal requirement of a marriage settlement: judicial separation of property: in writing (1) That the spouse of the in a public or private instrument petitioner has been sentenced to a penalty to bind third persons, it must be recorded in the which carries with it civil interdiction; registry of property. (2) That the spouse of the petitioner has been judicially declared an absentee; Art. 78. A minor who according to law may (3) That the loss of parental contract marriage may also enter into marriage authority of the spouse of the petitioner settlements, but they shall be valid only if the has been decreed by the court; persons designated in Article 14 to give consent to (4) That the spouse of the the marriage are made parties to the agreement, petitioner has abandoned the latter or subject to the provisions of Title IX of this Code. failed to comply with his or her obligations to the family as provided for in Article 101. Art. 14. In case either or both (5) That the spouse granted the of the contracting parties, not having power of administration in the marriage been emancipated by a previous settlements has abused that power; and marriage, are between the ages of 18 and (6) That at the time of the 21, they shall, in addition to the requirepetition, the spouses have been separated ments of the preceding articles, exhibit to in fact for at least one year and the local civil registrar, the consent to reconciliation is highly improbable. their marriage of their father, mother, In the cases provided for in surviving parent or guardian, or persons Numbers (1), (2) and (3), the presentation having legal charge of them, in the order of the final judgment against the guilty or mentioned. Such consent shall be PAGE 62

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Notes, Cases and Commentaries on Persons and Family Relation manifested in writing by the interested Art. 81. Everything stipulated in the party, who personally appears before the settlements or contracts referred to in the proper local civil registrar, or in the form preceding articles in consideration of a future of an affidavit made in the presence of marriage, including donations between the two witnesses and attested before any prospective spouses made therein, shall be rendered official authorized by law to administer void if the marriage does not take place. oaths. The personal manifestation shall However, stipulations that do not depend be recorded in both applications for upon the celebration of the marriage shall be valid. marriage license, and the affidavit, if one is executed instead, shall be attached to said applications. Balane: This article is inconsistent with Art. 86(1) Suppose that donation propter nuptias are made but Title IX (Parental Authority) the marriage is not celebrated...what happens to the donations: Balane: The rule here remains unchanged by R.A. Art. 81...Void 6809...a minor between 18-21 can enter into a Art. 86...revocable marriage settlement but the parents or guardians must Balane: if the marriage is not celebrated, the DPN sign. should be void. A creditor is entitled to assume that the property regime is ACP if the marriage settlement is not recorded...except where the creditor had actual knowledge. Art. 79. For the validity of any marriage settlements executed by a person upon whom a sentence of civil interdiction has been pronounced or who is subject to any other disability, it shall be indispensable for the guardian appointed by a competent court to be made a party thereto. Art. 80. In the absence of a contrary stipulation in a marriage settlements, the property relations of the spouses shall be governed by Philippine laws, regardless of the place of the celebration of the marriage and their residence. This rule shall not apply: (1) Where both spouses are aliens; (2) With respect to the extrinsic validity of contracts affecting property not situated in the Philippines and executed in the country where the property is located; and (LEX SITUS- contract - abroad - property - abroad) (3) With respect to the extrinsic validity of contracts entered into in the Philippines but affecting property situated in a foreign country whose laws require different formalities for their extrinsic validity. (LEX SITUS - contract - Philippines - property abroad) Balane: Does this article imply that the couple can validly stipulate that a foreign law shall govern their relation? Art. 80(3) seems inconsistent with Art. 17 (1) NCC....Balane believes that this article (80(3)) should be suppressed. Donation Propter Nuptias (requisites) (1) made before marriage (2) in consideration of marriage -consideration must be understood in layman's terms, i.e. what motivates one to make the donation. (3) in favor of one or both of the betrothed. recipient may be one or both of the betrothed donor can be anybody. B. CAPACITY SETTLEMENT MINOR Art. 78. A minor who according to law may contract marriage may also enter into marriage settlements, but they shall be valid only if the persons designated in Article 14 to give consent to the marriage are made parties to the agreement, subject to the provisions of Title IX of this Code. - Art. 14 - father, mother, surviving parent or guardian, or persons having legal charge of them, in the order mentioned. - Title IX - Parental authority CIVIL INTERDICTION Art. 79. For the validity of any marriage settlements executed by a person upon whom a sentence of civil interdiction has been pronounced or who is subject to any other disability, it shall be indispensable for the guardian appointed by a competent court to be made a party thereto. C. FORMALITY Art. 76. In order that any modification in the marriage settlements may be valid, it must be made before the celebration of the marriage, PAGE 63 TO EXECUTE MARRIAGE

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Notes, Cases and Commentaries on Persons and Family Relation subject to the provisions of Articles 66, 67, 128, 135, Solis v. Barroso and 136. Art. 1279 cannot be applied to donation Art. 77. The marriage settlements and any propter nuptias. Donation propter nuptias are modification thereof shall be in writing, signed by governed by the rules of ordinary donations. Under the parties, and executed before the celebration of Art. 633, for donations of real property to be valid, it the marriage. They shall not prejudice third must be contained in a public instrument.(not exceppersons unless they are registered in the local civil tions in Art. 633 and 622). Art. 1279 presupposes a registry where the marriage contract is recorded as valid contract...it cannot apply to a donation propter well as in the proper registries of property. nuptias conveying real property where form is essential for validity. It may be inferred from Art. 1333 that there may be a valid DPN even if marriage D. CONFLICT OF LAW does not take place...insofar as it provides that a ground for "revoking" a DPN is that the marriage does Art. 80. In the absence if a contrary not take place. stipulation in a marriage settlement, the property relations of the spouses shall be governed by Philippine laws, regardless of the place of the Art. 85. Donations by reason of marriage of celebration of the marriage and their residence. property subject to encumbrances shall be valid. In This rule shall not apply: case of foreclosure of the encumbrance and the (1) Where both spouses are aliens; property is sold for less than the total amount of the (2) With respect to the extrinsic validity of obligation secured, the donee shall not be liable for contracts affecting property not situated in the the deficiency. If the property is sold for more than Philippines and executed in the country where the the total amount of said obligation, the donee shall property is located; and be entitled to the excess. (3) With respect to the extrinsic validity of contracts entered into in the Philippines but Baviera Case: affecting properties situated in a foreign country whose laws require different formalities for their SERRANO V. SOLOMON [105 P 998 (1959)] extrinsic validity. Before the marriage, the future husband executed a purported donation propter nuptias which provides that (1) he donates all his properties to his future E. EFFECT OF MARRIAGE NOT TAKING PLACE children, if any; or (2) if there are none and he dies before his wife, one-half of his properties and those Art. 81. Everything stipulated in the acquired during the marriage shall go to his brothers settlements or contracts referred to in the and sisters; or (3) if there are no children and his wife preceding articles in consideration of a future dies before him, one half of all his properties and those marriage, including donations between the acquired during the marriage shall go TO THOSE prospective spouses made therein, shall be rendered WHO REARED HIS WIFE (plaintiff). The wife predevoid if the marriage does not take place. However, ceased him and plaintiff filed an action to enforce the stipulations that do not depend upon the celebration donation. There is no valid donation propter nuptias. of the marriage shall be valid. While the donation was made before the marriage, it was not made in consideration of marriage, because marriage was not the only consideration for the donation since other conditions were imposed; and even if in consideration of the marriage, it was not in favor of one or both of the spouses, but IN FAVOR OF F. DONATIONS BY REASON OF MARRIAGE 3Ps or persons other than the spouses. It is not a valid donation inter vivos because it was not accepted by the 1. before the celebration of marriage donee in the same or a different instrument. It is not a 2. in consideration of marriage donation mortis causa because it did not comply with 3. in favor of one or both of the future spouses the formalities of wills. Hence, the donation is void. 1. Nature Art. 82. Donations by reason of marriage are those which are made before its celebration, in consideration of the same, and in favor of one or both of the future spouses. 2. Form Art. 83. These donations are governed by the rules on ordinary donations established in Title III of Book III of the Civil Code, insofar as they are not modified by the following articles. Art. 84. If the future spouses agree upon a regime other than the absolute community of PAGE 64

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Notes, Cases and Commentaries on Persons and Family Relation property, they cannot donate to each other in their The prohibition shall also apply to persons living marriage settlements more than one-fifth (1/5) of together as husband and wife without a valid their present property. Any excess shall be marriage. considered void. Donations of future property shall be Balane: This article does not refer to donation propter governed by the provisions on testamentary nuptias. succession and the formalities of wills. Matabuena v. Cervantes Art. 748. The donation of a movable may be made orally or in writing. An oral donatiion requires the simultaneous delivery of the thing or of the document representing the right donated. If the value of the personal property donated exceeds five thousand pesos (P5,000), the donation and the acceptance shall be made in writing. Otherwise, the donation shall be void. (Civil Code.) Art. 749. In order that the donation of an immovable may be valid, it must be made in a public document, specifying therein the property donated and the value of the charges which the donee must satisfy. The acceptance may be made in the same deed of donation or in a separate public document, but it shall not take effect unless it is done during the lifetime of the donor. If the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic form, and this step shall be noted in both instruments. Balane: This article applies only if the regime agreed upon is one other than the ACP. If the regime is ACP, there is really no sense in making DPN's to each other, because DPN's made between the two become community property. In a CPG and a regime of Absolute Separation, DPN's made are not communalized. The ordinary limitations to donations apply. i.e. one cannot donate all of his/her property, leaving nothing to him/herself. With regard to future property, a donation may be made only by will, and only as to the disposable portion. 3. Distinguished from donations inter vivos a. Consideration and Donee Art. 87. Every donation or grant of gratuitous advantage, direct or indirect, between the spouses during the marriage shall be void, except moderate gifts which the spouses may give each other on the occasion of any family rejoicing. The prohibition under Art. 133 of the CC regarding donations made between spouses during the marriage must apply likewise to a common-law relationship. The policy behind the law, i.e. to protect the would-be donor spouse from the exercise of undue and improper pressure and influence by the other spouse, is equally or even more applicable to the case of common-law relationships. Art. 82. Donations by reason of marriage are those which are made before its celebration, in consideration of the same, and in favor of one or both of the future spouses. Baviera Cases: NAZARENO V. BIROG [45 O.G. No. 5, p. 268 (1947)] - A donation made to a grandchild of a wife by a previous marriage falls under the prohibition Article 133 of the Civil Code (Art. 87, FC). Said prohibition applies notwithstanding the fact that the provision mentions only legitimate children. (9 Manresa 236). MATABUENA V. CERVANTES [38 S 284 (1971)] - While Art. 133 of the Civil Code (Art. 87 FC) considers as void a "donation between the spouses during the marriage," policy considerations of the most exigent character as well as the dictates of morality require that the same prohibition should apply to a common-law relationship. Citing Buenaventura v. Bautista, if the policy of the law is to prohibit donations in favor of the other consort and his descendants because of fear of undue and improper pressure and influence upon the donor, a prejudice deeply rooted in our ancient law, then there is every reason to apply the same prohibitive policy to persons living together as husband and wife without the benefit of nuptials. For it is not to be doubted that assent to such irregular connection for thirty years bespeaks greater influence of one party over the other, so that the danger that the law seeks to avoid is correspondingly increased. Moreover, it would not be just that such donation should subsist, lest the condition of those who incurrd guilt should turn out to be better. So long as marriage remains the cornerstone of our family law, reason and morality alike demand that the disabilities attached to marriage should likewise attach to concubinage. b. Revocation PAGE 65

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Notes, Cases and Commentaries on Persons and Family Relation Art. 765. The donation may also be revoked at the instance of the donor, by reason of Baviera: Art. 86 FC compared to Art. 43 FC ingratitude in the following cases: Even if marriage does not take place, can be revoked (1) If the donee should commit some offense Need for action to revoke because the law says "may" against the person, honor or the property of the If in bad faith, no need for action to revoke, Art. 60 donor, or of his wife or children under his parental FC, by operation o law. authority; (2) If the donee imputes to the donor any criminal offense, or any act involving moral Mateo v. Lagua turpitude, even though he should prove it, unless the crime or the act has been committed against the A donation propter nuptias may be revoked donee himself, his wife or children under his for being inofficious. It is wrong to say that a authority; donation propter nuptias has an onerous consideration, (3) If he unduly refuses to give him support the marriage in this case being merely the occasion or when the donee is legally or morally bound to give motive, not the causa. Being liberalities, they remain support to the donor. subject to reduction for being inofficious upon the donor's death if it infringes on the legitime of any of the donor's heirs. The DPN in this case was not annuled Art. 760. Every donation inter vivos, made in its entirety, but only to the extent that it infringed by a person having no children or descendants, on the legitime of the donor's heir. legitimate or legitimated by subsequent marriage, or illegitimate, may be revoked or reduced as Note that under Art 43(3), a donation is revoked by provided in the next article, by the happening of operation of law, under the circumstances therein any of these events: provided. However, Art. 86(1) provides that any (1) If the donor, after the donation, should revocation in elective, not automatic. have legitimate or legitimated or illegitimate children, even though they be posthumous; Balane: For acts of ingratitude, refer to Art. 765 of the (2) If the child of the donor, whom the NCC. latter believed to be dead when he made the donation, should turn out to be living; (3) If the donor should subsequently adopt Art. 43. The termination of the subsequent a minor child. (Civil Code.) marriage referred to in the preceding Article (Marriage after declaration of presumptive death Art. 86. A donation by reason of marriage of absent spouse) shall produce the following may be revoked by the donor in the following cases: effects: (1) If the marriage is not celebrated or xxx judicially declared void ab initio except donations (3) Donations by reason of marriage shall made in the marriage settlements, which shall be remain valid, except that if the donee contracted governed by Article 81; the marriage in bad faith, such donations made to said donee are revoked by operation of law. Art. 81. Everything stipulated in the settlements or contracts referred to in the preceding articles in consideration of Art. 50. The effects provided for by a future marriage, including donations paragraphs (2), (3), (4), and (5) of Article 43, and between the prospective spouses made 44 shall also apply in the proper cases to marriages therein, shall be rendered void if the which are declared void ab initio or annulled by marriage does not take place. However, final judgment under Articles 40 and 45. stipulations that do not depend upon the The final judgment in such cases shall celebration of the marriage shall be valid. provide for the liquidation, partition and distribution of the properties of the spouses, the custody (2) When the marriage takes place without and support of the common children, and the the consent of the parents or guardian as required delivery of their presumptive legitimes, unless such by law; matters had been adjudicated in previous judicial (3) When the marriage is annulled, and the proceedings. donee acted in bad faith; All creditors of the spouses as well as of the (4) Upon legal separation, the donee being absolute community or the conjugal partnership the guilty spouse; shall be notified of the proceedings for liquidiation. (5) If it is with a resolutory condition and In the partition, the conjugal dwelling and the condition is complied with; the lot on which it is situated, shall be adjudicated (6) When the donee has committed an act in accordance with the provisions of Articles 102 of ingratitude as specified by the provisions of the and 129. Civil Code on donations in general. PAGE 66

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Notes, Cases and Commentaries on Persons and Family Relation Baviera Case: Donations of future property shall be governed by the provisions on testamentary succesSOLIS V. BARROSO [53 P 912 (1928)] - A sion and the formalities of wills. donation propter nuptias of lands in a private instrument is not valid because the law requires donations of Baviera Case: real property to be made in a public instrument. A donation propter nuptias is not onerous and thus must MATEO V. LAGUA [29 S 865 (1969)] - Donations necessarily be contained in a public instrument. While propter nuptias are without onerous considerations, the the marriage is indeed its consideration it is not so in marriage being merely the occasion or motive for the the sense of being necessary to give birth to the donation, not its causa. Being liberalities, they remain obligation. In fact, a donation propter nuptias remains subject to reduction for inofficiousness upon the valid even if the marriage does not take place provided donor's death, if they should infringe upon the it is not revoked within the period allowed by law. The legitime of a forced heir. marriage in donation propter nuptias is rather a resolutory condition which as such presupposes the existence of the birth of the obligation. G. ABSOLUTE COMMUNITY c. Extent of Property Donated - as to spouses, not > 1/5 of present property - as to 3Ps, not limit provided not officious (Art. 750 CC) Art. 752. The provisions of article 750 notwithstanding, no person may give or receive, by way of donation, more than he may give or receive by will. The donation shall be inofficious in all that it may exceed this limitation. (Civil Code.) - donee beware that donation revocable! Art. 750. The donation may comprehend all the present property of the donor, or part thereof, provided he reserves, in full ownership or in usufruct, sufficient means for the support of himself, and of all relatives who, at the time of the acceptance of the donation, are by law entitled to be supported by the donor. Without such reservation, the donation shall be reduced on petition of any person affected. (Civil Code.) Art. 751. Donations cannot comprehend future property. By future property is understood anything which the donor cannot dispose of at the time of the donation. (Civil Code.) Art. 1070. Wedding gifts by parents and ascendants consisting of jewelry, clothing, and outfit, shall not be reduced as inofficious except insofar as they may exceed one-tenth of the sum which is disposable by will. (Civil Code.) Art. 84. If the future spouses agree upon a regime other than the absolute community of property, they cannot donate to each other in their marriage settlements more than one-fifth of their present property. Any excess shall be considered void. PAGE 67 Balane: There is ACP when: -there is no marriage settlement -there is a marriage settlement and the parties agree on ACP -the marriage settlement is void. When commences Art. 88. The absolute community of property 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. - importance: see Art. 92 (1) Waiver not allowed Art. 89. No waiver of rights, interests, shares and effects of the absolute community of property during the marriage can be made except in case of judicial separation of property. When the waiver takes place upon a judicial separation of property, or after the marriage has been dissolved or annulled, the same shall appear in a public instrument and shall be recorded as provided in Article 77. Art. 77. The marriage settlements and any modification thereof shall be in writing, signed by the parties and executed before the celebration of the marriage. They shall not prejudice third persons unless they are registered in the local civil registry where the marriage contract is recorded as well as in the proper registries of property. The creditors of the spouse who made such waiver may petition the court to rescind the waiver to the extent of the

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Notes, Cases and Commentaries on Persons and Family Relation amount sufficient to cover the amount of communalized. It is in this sense that the CPG regime their credits. is stricter. Co-ownership Art. 90. The provisions on co-ownership shall apply to the absolute community of property between the spouses in all matters not provided for in this Chapter. What Constitutes Community Property Art. 91. Unless otherwise provided in this Chapter or in the marriage settlements, 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. Exceptions Art. 92. The following shall be excluded from the community property: (1) Property acquired during the marriage by gratuitous title by either spouse, and the fruits as well as the income thereof, if any, unless it is expressly provided by the donor, testator or grantor that they shall form part of the community property; (2) Property, for personal and exclusive use of either spouse. However, jewelry shall form part of the community property; (3) Property acquired before the marriage by either spouse who has legitimate descendants [under CC - children only, but JBL loved his grandchildren] by a former marriage, and the fruits as well as the income, if any, of such property. Baviera: Relate to Art. 51 and 53 Balane: Suppose A and B married under the Family Code. A inherited from his father before the marriage and this becomes community property. If A inherits from his mother during the marriage, this becomes paraphernal property. The fruits of separate property remain separate under the ACP but become community property under the CPG. The following example illustrates an instance where the CPG regime is stricter: A marries B (ACP). They bring nothing into the marriage. All that they inherit, they get during the marriage. The property thus inherited is separate, and the fruits thereof are likewise separate. Given the same set of facts, except that the governing regime is CPG, what the spouses inherit during the marriage is separate, but the fruits are Presumption Art. 93. Property acquired during the marriage is presumed to belong to the community, unless it is proved that it is one of those excluded therefrom. Charges Upon and Obligations of the Absolute Community Art. 94. The absolute community of property shall be liable for: (1) The support of the spouses, their common children, and 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 community, or by both spouses, or by one spouse 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 been benefited; (4) All taxes, liens, charges and expenses, including major or minor repairs, upon the community property; (5) All taxes and expenses for mere preservation made during marriage upon the separate property of either spouse used by the family; (6) Expenses to enable either spouse to commence or complete a professional or vocational course, 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 selfimprovement; (9) Antenuptial debts of either spouse other than those falling under paragraph (7) of this Article, the support of illegitimate children of either spouse, and liabilities incurred by either spouse by reason of a crime or a quasi-delict, in case of absence or insufficiency of the exclusive property of the debtor-spouse, the payment of which shall be considered as advances to be deducted from the share of the debtor-spouse upon liquidation of the community; and (10) Expenses of litigation between the spouses unless the suit is found to be groundless. PAGE 68

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Notes, Cases and Commentaries on Persons and Family Relation If the community property is insufficient to but any winnings therefrom shall form part of the cover the foregoing liabilities, except those falling community property. under paragraph (9), the spouses shall be solidarily liable for the unpaid balance with their separate properties. Ownership, Administration, Enjoyment and Disposition of the Community Property Balane: Liabilities of the ACP. 94.1 in case of illegitimate children of either spouse, the community is only subsidiarily liable. 94.2 all that is required in this case is a determination of the purpose of the obligation contracted Luzon Surety v. De Garcia Any debt contracted by the husbandadministrator with the intention of binding the community property, must redound to the community property's benefit. Any obligation incurred by the husband to be chargeable against the community property, must be incurred in the legitimate pursuit of his career, profession, business, and with an honest belief that he is doing right for the benefit of the family. Gelano v. C.A. It was an error for the court to hold the spouses liable jointly and severally on an obligation that redounded to the benefit of the community. The community partnership, as a single and separate entity, should be liable for the obligation. G-Tractors v. C.A. The obligation incurred here redounded to the benefit of the community partnership, and thus was a partnership obligation. The land where the logging concession was located belonged to the family and not to the husband exclusively. Furthermore, the obligation was incurred to enhance productivity for the logging business, a commercial enterprise for gain, which the husband, as administrator had every right to enter into on behalf of the community partnership. The realization of actual profits and benefit on the part of the partnership is not required, it being sufficient to show that the transaction normally benefits the partnership. Gambling Art. 95. Whatever may be lost during the marriage in any game of chance, betting, sweepstakes, or any other kind of gambling, whether permitted or prohibited by law, shall be borne by the loser and shall not be charged to the community Dissolution of Absolute Community Regime Art. 99. The absolute community terminates: (1) Upon the death of either spouse; PAGE 69 Art. 96. The administration and enjoyment of the community property shall belong to both spouses jointly. In case of disagreement, the husband's decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision. In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the common properties, the other spouse may assume sole powers of administration. These powers do not include the powers of disposition or encumbrance which must have the authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors. Baviera: Better: unenforceable until ratified void tapos = continuing offer - weird (Baviera) Balane: Ownership, administration, enjoyment and disposition of Community property...all joint responsibility and right of both spouses. In case of a spouse's unjustified refusal to give his/her consent, the other may go to court. There is no provision on alienation and encumbrance but it is understood that the same is included. Art. 97. Either spouse may dispose by will of his or her interest in the community property. Art. 98. Neither spouse may donate any community property without the consent of the other. However, either spouse may, without the consent of the other, make moderate donations from the community property for charity or on occasions of family rejoicing or family distress. Balane: All donations must be made jointly, except moderate donations.

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Notes, Cases and Commentaries on Persons and Family Relation (2) When there is a decree of legal (6) That at the time of the separation; petition, the spouses have been separated (3) When the marriage is annulled or in fact for at least one year and declared void; or reconciliation is highly improbable. (4) In case of judicial separation of In the cases provided for in property during the marriage under Articles 134 to Numbers (1), (2) and (3), the presentation 138. of the the final judgment against the guilty or absent spouse shall be enough Art. 134. In the absence of an basis for the grant of the decree of express declaration in the marriage judicial separation of property. settlements, the separation of property between spouses during the marriage Art. 136. The spouses may jointly shall not take place except by judicial file a verified petition with the court for order. Such judicial separation of the voluntary dissolution of the absolute property may either be voluntary or for community or the conjugal partnership of sufficient cause. gains, and for the separation of their common properties. Art. 135. Any of the following All creditors of the absolute shall be considered sufficient cause for community or of the conjugal partnership judicial separation of property: of gains, as well as the personal creditors (1) That the spouse of the of the spouse, shall be listed in the petitioner has been sentenced to a penalty petition notified of the filing thereof. The which carries with it civil interdiction; court shall take measures to protect the (2) That the spouse of the creditors and other persons with petitioner has been judicially declared an pecuniary interest. absentee; (3) That loss of parental Art. 137. Once the separation of authority of the spouse of petitioner has property has been decreed, the absolute been decreed by the court; community or the conjugal partnership of (4) That the spouse of the gains shall be liquidated in conformity of petitioner has abandoned the latter or this Code. failed to comply with his or her During the pendency of the obligations to the family as provided for proceedings for separation of property, in Article 101; the absolute community or the conjugal partnership shall pay for the support of Art. 101. If a spouse without the spouses and their children. just cause abandons the other or fails to comply with his or her obligations to the Art. 138. After dissolution of the family, the aggrieved spouse may petition absolute community or of the conjugal the court for receivership, for judicial partnership, the provisions on complete separation of property or for authority to separation property shall apply. be the sole administrator of the absolute community, subject to such precautionary conditions as the court may impose. Balane: Note that dissolution of the ACP is not The obligations to the family synonymous with dissolution of the marriage. In cases mentioned in the preceding paragraph involving 99.2 and 99.4, there is dissolution of the refer to marital, parental or property ACP although the marriage is not dissolved. relations. A spouse is deemed to have But dissolution of the marriage automatically abandoned the other when he or she has results in dissolution of the ACP. left the conjugal dwelling without intention of returning. The spouse who Note that when a marriage is declared as a has left the conjugal dwelling for a period nullity, there is no ACP to dissolve. The dissolution in of three months or has failed within the this case is governed by the rules on co-ownership. same period to give any information as to his or her whereabouts shall be prima In case of liquidation, the following facie presumed to have no intention of provisions apply: returning to the conjugal dwelling. (5) That the spouse granted the (1) dissolution under 99.1...Art 103 governs power of administration in the marriage liquidation settlements has abused that power; and (2) dissolution under 99.2...Art 63 and 64 apply (3) dissolution under 99.3...Art 50-52 apply PAGE 70

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Notes, Cases and Commentaries on Persons and Family Relation (4) dissolution under 99.4...Art 134-137 apply Art. 102. Upon dissolution of the absolute community regime, the following procedure shall apply: Effect of separation in fact (1) An inventory shall be prepared, listing separately all the properties of the absolute commuArt. 100. The separation in fact between nity and the exclusive properties of each spouse. husband and wife shall not affect the regime of (2) The debts and obligations of the absolute community except that: absolute community shall be paid out of its assets. (1) The spouse who leaves the conjugal In case of insufficiency of said assets, the spouses home or refuses to live therein, without just cause, shall be solidarily liable for the unpaid balance shall not have the right to be supported; with their separate properties in accordance with (2) When the consent of one spouse to any the provisions of the second paragraph of Article transaction of the other is required by law, judicial 94. authorization shall be obtained in a summary proceeding; (Forfeiture of net profits) (added in FC) (3) In the absence of sufficient community property, the separate property of both spouses shall be solidarily liable for the support of the family. The spouse present shall, upon proper petition in a summary proceeding, be given judicial authority to administer or encumber any specific separate property of the other spouse and use the fruits or proceeds thereof to satisfy the latter's share. (note: need for judicial authority) Art. 101. If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the aggrieved spouse may petition the court for receivership, for judicial separation of property or for authority to be the sole administrator of the absolute community, subject to such precautionary conditions as the court may impose. The obligations to the family mentioned in the preceding paragraph refer to marital, parental or property relations. ( Baviera - even if husband gives support) A spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling. Art. 94. The absolute community of property shall be liable for: (1) The support of the spouses, their common children, and 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 community, or by both spouses, or by one spouse 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 been benefitted; (4) All taxes, liens, charges and expenses, including major or minor repairs, upon the community property; (5) All taxes and expenses for mere preservation made during marriage upon the separate property of either spouse used by the family; (6) Expenses to enable either spouse to commence or complete a professional or vocational course, or other activity for self-improvement; (7) Antenuptial 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 selfimprovement; (9) Antenuptial debts of either spouse other than those falling under paragraph (7) of this Article, the support of illegitimate children of either spouse, and liabilities incurred by either spouse by reason of a crime of a quasi-delict, in case of absence or insufficiency of the PAGE 71

Liquidation of the Absolute Community Assets and Liabilities How liquidated

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Notes, Cases and Commentaries on Persons and Family Relation exclusive property of the debtor-spouse, which shall be forfeited in accordance the payment of which shall be considered with the provisions of Article 43 (2). as advances to be deducted from the xxx.) share of the debtor-spouse upon liquidation of the community; and (5) The presumptive legitimes of the (10) Expenses of litigation common children shall be delivered upon partition, between the spouses unless the suit is in accordance with Article 51. found to be groundless. If the community property is Art. 51. In said partition, the insufficient to cover the foregoing value of the presumptive legitimes of all liabilities, except those falling under common children, computed as of the paragraph (9), the spouses shall be date of the final judgment of the trial solidarily liable for the unpaid balance court, shall be delivered in cash, property with their separate propertied.) or sound securities, unless the parties, by mutual agreement judicially approved, (3) Whatever remains of the exclusive had already provided for such matters. properties of the spouses shall thereafter be The children or their guardian, delivered to each of them. or the trustee of their property may ask (4) The net remainder of the properties of for the enforcement of the judgment. the absolute community shall constitute its net asThe delivery of the presumptive sets, which shall be divided equally between legitimes herein prescribed shall in no husband and wife, unless a different proportion or way prejudice the ultimate successional division was agreed upon in the marriage rights of the children accruing upon the settlements, or unless there has been a voluntary death of either or both of the parents; but waiver of such share as provided in this Code. For the value of the properties already purposes of computing the net profits subject to received under the decree of annulment forfeiture in accordance with Articles 43, No. (2) or absolute nullity shall be considered as and 63, No. (2), the said profits shall be the increase advances on their legitime.) in value between the market value of the community property at the time of the celebration (6) Unless otherwise agreed upon by the of the marriage and the market value at the time of parties, in the partition of the properties, the its dissolution. conjugal dwelling and the lot on which it is situated shall be adjudicated to the spouse with whom the Art. 43. The termination of the majority of the common children choose to remain. subsequent marriage referred to in the Children below the age of seven years are deemed preceding Article shall produce the to have chosen the mother, unless the court has following effects: decided otherwise. In case there is no such xxx majority, the court shall decide, taking into (2) The absolute community of consideration the best interests of said children. property or the conjugal partnership, as the case may be, shall be dissolved and Balane: Basic steps in liquidation: liquidated, but if either spouse contracted said marriage in bad faith, his or her 1) inventory (Art. 102) share of the net profits of the community -3 sets: community property property or conjugal partnership list of separate property of wife property shall be forfeited in favor of the list of separate property of husband common children or if there are none, the children of the guilty spouse by a 2) payment of community debts previous marriage or, in default of pay out of community assets first...if not enough, then children, the innocent spouse. pay out of separate property...the husband and the wife shall be solidarily liable Art. 63. The decree of legal separation shall have the following 3) deliver to each spouse his or her respective share effects: xxx 4) division of the net community assets (2) The absolute community or -note the special rule with regard to the family the conjugal partnership shall be home...also take note that even after death,the family dissolved and liquidated but the offending home remains undivided. spouse shall have no right to any share of the net profits earned by the absolute 5) delivery of presumptive legitimes community or the conjugal partnership, PAGE 72

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Notes, Cases and Commentaries on Persons and Family Relation The presumptive legitimes are given in the following A died cases: ACP/CPG was not liquidated 1) reappearance of former spouse (102.5; 43.2) which terminates the second marriage 1965 B remarried to C 2) annulment, not the declaration of nullity, of the marriage 1995 C died 3) legal separation (102.5;63.2) 4) other cases of dissolution of the ACP/CPG B wants to liquidate both marriages. He will then have to apply Art. 104. For property whose origin he is unsure of, the ratio/proportion; peso/years formula Effect of death may be used. Art. 103. Upon the termination of the marriage by death, the community property shall be liquidated in the same proceeding for the settlement of the estate of the deceased. If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the community property either judicially or extrajudicially within one year from the death of the deceased spouse. If upon the lapse of the said period, no liquidation is made, any disposition or encumbrance involving the community property of the terminated marriage shall be void. Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage. Balane: Liquidation of the ACP may be done in the settlement proceedings of the deceased spouse's estate. Liquidation in such a case (death) may likewise be done judicially or extrajudicially. The law requires that liquidation be done within one(1) year from death...if not: any disposition or encumbrance is VOID (103.2) and the subsequent marriage shall be made subject to a mandatory regime of separation of property...the 2nd marriage shall be valid, but subject to mandatory absolute separation of property. Art. 104. Whenever the liquidation of the community properties of two or more marriages contracted by the same person before the effectivity of this Code is carried out simultaneously, the respective capital, fruits and income of each community shall be determined upon such proof as may be considered according to the rules of evidence. In case of doubt as to which community the existing properties belong, the same shall be divided between the different communities in proportion to the capital and duration of each. Baviera: No actual case yet Balane: The application of this article is possible only for marriages contracted before 3 August 1988. E.G. 1955 A married B PAGE 73 x = no. of years of marriage 1 y = capital of marriage 1 A = duration of marriage 2 B = capital of marriage 2 x = 8 years y = P2 M A = 30 B = P3 M formula: xy marriage 1 xy + AB AB marriage 2 xy = AB x value of the property = share of

x value of the property

= share of

Note that in cases of marriages under the Family Code made subject to mandatory absolute separation, Art. 104 will never apply. H. CONJUGAL PARTNERSHIP OF GAINS General Provisions Art. 105. In case the future spouses agree in the marriage settlements that the regime of conjugal partnership of gains shall govern their property relations during the marriage, the provisions in this Chapter shall be of supplementary applicaion. The provisions of this Chapter shall also apply to conjugal partnerships of gains already established between spouses before the effectivity of this Code, without prejudice to vested rights already acquired in accordance with the Civil Code or other laws, as provided in Article 256. Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws.

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Notes, Cases and Commentaries on Persons and Family Relation Art. 106. Under the regime of conjugal shown here that the obligations were contracted for the partnership of gains, the husband and wife place in a benefit of the partnership. Furthermore, the sheriff may not common fund the proceeds, products, fruits and income levy on 1/2 of the amount in these accounts as the supposed from their separate properties and those acquired by share of the husband. A spouse's share in the conjugal assets either or both spouses through their efforts or by chance, is merely inchoate and cannot be determined until after and upon dissolution of the marriage or of the dissolution of the partnership. partnership, the net gains or benefits obtained by either or both spouses shall be divided equally between them, unless otherwise agreed in the marriage settlements. Exclusive Property of Each Spouse Balane: Note that at the start of the marriage, the common fund is at 0 balance. Art. 107. The rules provided in Articles 88 and 89 shall also apply to conjugal partnership of gains. Art. 88. The absolute community of property 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. Art. 89. No waiver of rights, interests, shares and effects of the absolute community of property, or after the marriage has been dissolved or annulled, the same shall appear in a public instrument and shall be recorded as provided in Article 77. The creditors who made such waiver may petition the court to rescind the waiver to the extent of the amount sufficient to cover the amount of their credits. Art. 77. The marriage settlements and any modificayion thereof shall be in writing, signed by the parties and executed before the celebration of the marriage. They shall not prejudice third persons unless registered in the local civil registry where the marriage contract is recorded as well as in the proper registries of property. Art. 108. The conjugal partnership shall be governed by the rules on the contract of partnership in all that is not in conflict with what is expressly determined in this Chapter or by the spouses in their marriage settlements. Ansaldo v. Sheriff Art. 109. The following shall be the exclusive property of each spouse: (1) That which is brought to the marriage as his or her own; [PLATA V. YATCO] (2) That which each acquires during the marriage by gratuitous title; (3) That which is acquired by right of redemption, by barter or by exchange with property belonging to only one of the spouses; and (4) That which is purchased with exclusive money of the wife or of the husband. Castillo v. Pasco The fishpond is 1/6 paraphernal and 5/6 conjugal. The first P1000 was paid out of the paraphernal property of the wife. Of this amount, P600 was a debt owed to the wife by the vendor. It is presumed that this debt could bind only the wife since there was no showing that the husband authorized the wife to contract this debt. The P400 was paid out of proceeds from the sale of the wife's paraphernal property. The rest of the purchase price was paid out of partnership funds. The fact that the loan entered into to pay this purchase price was secured by mortgages over paraphernal property belonging to the wife did not make these obligations (loans) paraphernal. The mortgage was merely an accessory obligation. The principal obligation which is the loan pertained to the conjugal partnership. Balane: Although the terms are used interchangeably, the technical definitions of the following terms are as follows: paraphernal property: exclusive property of the wife capital: exclusive property of the husband. The owner has absolute dominion over his separate property. With regard to separate property, the owner spouse may sue alone. With regard to the fruits of such separate property, since the same belongs to the partnership, both spouses must join in initiating suit. e.g. In a case where the separate property is being leased out...the owner spouse may sue alone for eviction, but must be joined by the other spouse in a suit over rentals.

The bank accounts garnished herein were conjugal property and the same may not be levied upon to pay for Art. 110. The spouses retain ownership, personal obligations. The money in the bank accounts were possession, administration and enjoyment of their excluearned as fruits derived from paraphernal property. As such, sive properties. they became assets of the conjugal partnership. No proof was PAGE 74

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Notes, Cases and Commentaries on Persons and Family Relation Either spouse may, during the marriage, transfer Art. 753. When a donation is made to several the administration of his or her exclusive property to the persons jointly, it is understood to be in equal shares, and other by means of a public instrument, which shall be there shall be no right of accretion among them, unless the recorded in the registry of property of the place where the donor has otherwise provided. property is located. The preceding paragraph shall not be applicable to donations made to the husband and wife jointly, Ong v. CA between whom there shall be a right of accretion, if the contrary has not been provided by the donor. (Civil The mere use of the surname of the husband in the Code.) tax declaration of the subject property is not sufficient proof that said property was acquired during the marriage and is Accretion - The right of heirs or legatees to unite or therefore conjugal. It is undisputed that the subject parcel of aggregate with their shares or portions of the estate the land was declared solely in the wife's name, although the portion of any co-heir or legatee who refuses to accept it, fails house built thereon was declared in the name of the spouses. to comply with a condition, becomes incapacitated to inherit, Under such circumstances, the Court held that the subject lot or dies before, the testator. (Black's Law Dictionary, p. 19) was the paraphernal property of the wife and thus liable for her personal debts. Art. 114. If the donations are onerous, the amount of the charges shall be borne by the exclusive property of the donee-spouse, whenever they have been advanced by the conjugal partnership of gains. Art. 111. A spouse of age may mortgage, encumber, alienate or otherwise dispose of his or her exclusive property, without the consent of the other Art. 115. Retirement, benefits, pensions, pensions, spouse, and appear alone in court to litigate with regard to annuities, gratuities, usufructs and similar benefits shall the same. be governed by the rules on gratuitous or onerous acquisitions as may be proper in each case. Lim Queco v. Cartagena (Spanish case) Palanca v. Smith Bell When a loan is negotiated by a husband upon property belonging to his wife, with the consent of the latter, the money becomes conjugal property, and if the funds are later invested in the construction of a house, the building is likewise conjugal property and is liable for debts of the husband. The property in question was a parcel of land belonging to the wife which was given by the husband as a guaranty for a loan contracted by him. The money obtained through the loan was later used for the construction of the house. Balane: The proceeds of the loan pertain to the borrower. The borrower in this case was the partnership, regardless of the fact that the separate property of the wife was used as a security in obtaining the loan. Art. 112. The alienation of any exclusive property of a spouse administered by the other automatically terminates the administration over such property and the proceeds of the alienation shall be turned over to the owner-spouse. Art. 113. Property donated or left by will to the spouses, jointly and with designation of determinate shares, shall pertain to the donee-spouse as his or her own exclusive property, and in the absence of designation, share and share alike, without prejudice to the right of accretion when proper. Conjugal Partnership Property Art. 116. All property acquired during the marriage, whether the acquisition appears to have been made, contracted or registered in the name of one or both spouses, is presumed to be conjugal unless the contrary is proved. Torela v. Torela While it is true that all property acquired during the marriage is presumed to be conjugal, as above stated, nonetheless, the party who invokes the presumption must first prove that the property was acquired during the marriage. This proof is a condition sine qua non for the application of the presumption. Mendoza v. Reyes The presumption of conjugality is a strong one. Proof of acquisition of the property in dispute during the marriage suffices to render the statutory presumption operative. Magallon v. Montejo The presumption of conjugality does not apply in a case where there is no proof of marriage between the spouses.

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Notes, Cases and Commentaries on Persons and Family Relation Art. 117. The following are conjugal partnership If ownership vested before marriage, then the property properties: is exclusive (1) Those acquired by onerous title during the if ownership vested after marriage, then property is marriage at the expense of the common fund, whether the conjugal. acquisition be for the partnership, or for only one of the spouses; e.g. (2) Those obtained from the labor, industry, work 1985 - A buys property from BF payable in or profession of either or both of the spouses; installments...A pays installments with exclusive (3) The fruits, natural, industrial, or civil, due or property received during the marriage from the common property, 1990 - A marries B. The subsequent amortizations on as well as the net fruits from the exclusive property of the property are then paid with conjugal funds. each spouse; (4) The share of either spouse in the hidden Test: when title was vested. treasure which the law awards to the finder or owner of if title was vested before 1990, then the property is the property where the treasure is found; exclusive. (5) Those acquired through occupation such as if title was vested only after full payment of fishing or hunting; amortizations, then the property is conjugal. (6) Livestock existing upon the dissolution of the partnership in excess of the number of each kind brought to the marriage by either spouse; and (7) Those which are acquired by chance, such as Art. 119. Whenever an amount or credit payable winnings from gambling or betting. within a period of time belongs to one of the spouses, the However, losses therefrom shall be borne sums which may be collected during the marriage in exclusively by the loser-spouse. partial payments or by installments on the principal shall be the exclusive property of the spouse. However, interests falling due during the marriage on the principal shall Cheesman v. IAC belong to the conjugal partnership. Even if the wife used conjugal funds to purchase the lot in question, petitioner, who is an alien, cannot recover or hold the lot so acquired in view of the constitutional prohibition against aliens acquiring residential lots other than by hereditary succession. He therefore had no personality to question the subsequent sale of the same property by his wife on the theory that in so doing, he is merely exercising the prerogative of a husband in respect to conjugal property. To sustain such a theory would permit indirect controversion of the constitutional prohibition. Balane: Under 117.1, where conjugal funds were spent, then the property acquired belongs to the partnership except: 109.3 (pacto de retro acquisition where the right to redemption belongs to one spouse) Art. 118. Property bought on installments paid partly from exclusive funds of either or both spouses and partly from conjugal funds belongs to the buyer or buyers if full ownership was vested before the marriage. In either case, any amount advanced by the partnership or by either or both spouses shall be reimbursed by the owner or or owner's upon liquidation of the partnership. Art. 118 Notes: in case of property bought on installment, partly from exclusive property and partly from conjugal funds, the test to determine ownership is to look at when ownership vested. Balane: Test os when is payment due. Suppose: A lent P1M to B in the promissory note, it is stipulated that payment shall be on 100 equal monthly installments and that interest shall be at 20% p.a. payments start on Oct 1985 A marries B in August 1986 all installments due before August 1986 are paraphernal for installments due after August 1986: principal is exclusive property interest during the marriage pertain to the partnership... already civil fruits.

Art. 120. The ownership of improvements, whether for utility or adornment, made on the separate property of the spouses at the expense of the partnership or through the acts or efforts of either or both spouses shall pertain to the conjugal partnership, or to the original owner-spouse, subject to the following rules: When the cost of the improvement made by the conjugal partnership and any resulting increase in value are more than the value of the property at the time of the improvement, the entire property of one of the spouses shall belong to the conjugal partnership, subject to reimbursement of the value of the property of the ownerspouse at the time of the improvement; otherwise, said property shall be retained in ownership by the ownerspouse, likewise subject to reimbursement of the cost of the improvement. PAGE 76

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Notes, Cases and Commentaries on Persons and Family Relation In either case, the ownership of the entire Suppose: land P3M property shall be vested upon the reimbursement, which irrigation ditches P2M shall be made at the time of the liquidation of the conjugal partnership. but because of the irrigation ditches, the value of the land increases to P4.8M the plus value in this case is P1.8M the net value of the improvement in P3.8 M in this case, the entire property becomes conjugal. Caltex v. Felias Under the Family Code, the value to be paid as A lot belonging to the parents and later reimbursement shall be such value at the time of donated by them to their daughter is paraphernal improvement...in this sense, the Family Code departs property, and the rule applicable with respect to the from the Padilla ruling building constructed thereon before the donation is that of accessory following the principal. The donation Whether or not the FC modifies the Padilla ruling transmitted to her the rights of a landowner over a insofar as it held that ownership shall vest only after building constructed on it. full payment at the time of liquidation...Balane is unsure. Padilla v. Padilla The mere construction of a building from common funds does not automatically convey the ownership of the wife's land (paraphernal) to the conjugal partnership. The ownership of the land is retained by the wife until she is paid the value of the lot as a result of the liquidation of the conjugal partnership. The partnerhip maintains a usufructuary right over the said property during the marriage and until liquidation. Padilla v. Paterno The separate properties in this case never became conjugal because the conjugal improvements constructed thereon were destroyed before the value of the paraphernal land on which these improvements were erected was paid to the spouse who owned the paraphernal land. As held in Padilla v. Padilla, payment of such value occurs only at final liquidation. Canullas v. Fortun Where a conjugal house is constructed on land belonging exclusively to the husband, the land ipso facto becomes conjugal, but the husband is entitled to reimbursement of the value of the land. The conversion from paraphernal to conjugal assets should be deemed to retroact to the time the conjugal buildings were first constructed thereon. They cannot be considered to have become conjugal only as of the time their values were paid to the estate of the widow because by that time, the conjugal partnership no longer existed and it could not acquire the ownership of said properties. Balane: 'Plus value' refers to what the improvement contributes to the increase in the value of the whole thing. Art. 120 applies only on the assumption that the improvement exists at the time of liquidation...if the property is destroyed before liquidation, then 120 does not apply. If prior to dissolution, the property and the improvement thereon is sold--then the right of the CPG under 120 follows the property...the right of the CPG under 120 is inchoate. Notes: The following are the steps to be followed in liquidating the CPG: 1. inventory of CP assets 2. restitution of advances made to each spouse e.g. Art. 122.3 3. payment of debts to each spouse e.g. Art. 120 4. payment of obligations to 3rd parties 5. delivery of exclusive properties 6. payment of losses and deterioration of movables belonging to each spouse reason: CPG is a mere usufructuary of separate properties...not true for ACP 7. division 8. delivery of presumptive legitimes Charges Upon and Obligations of the Conjugal Partnership Art. 121. The conjugal partnership shall be liable for: (1) The support of the spouses, 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 been benefited; PAGE 77

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Notes, Cases and Commentaries on Persons and Family Relation (4) All taxes, liens, charges and expenses, partnership. The termination of the conjugal including major or minor repairs upon the conjugal partnership is not contemplated as a prerequisite partnership property; before such obligations should be paid. If made (5) All taxes and expenses for mere preservation payable only after liquidation, then the effect would be made during the marriage upon the separate property of to exempt the accused from civil liability and the heirs either spouse; of the offended party would be made to suffer still (6) Expenses to enable either spouse to commence further. or complete a professional, vocational, or other activity for self-improvement; (7) Antenuptial debts of either spouse insofar as Art. 123. Whatever may be lost during the they have redounded to the benefit of the family; marriage in any game of chance, or in betting, sweep(8) The value of what is donated or promised by stakes, or any other kind of gambling whether permitted both spouses in favor of their common legitimate children or prohibited by law, shall be borne by loser and shall not for the exclusive purpose of commencing or completing a be charged to the conjugal partnership but any winnings professional or vocational course or other activity for selftherefrom shall form part of the conjugal partnership improvement; and property. (9) Expenses of litigation between the spouses unless the suit is found to be groundless. If the conjugal partnership is insufficient to cover Administration of the Conjugal Partnership Property the foregoing liabilities, the spouses shall be solidarily liable for the unpaid balance with their separate Art. 124. The administration and enjoyment of properties. the conjugal partnership property shall belong to both spouses jointly. In case of disagreement, the husband's decision shall prevail, subject to recourse to the court by Mariano v. CA the wife for proper remedy, which must be availed within five years from the date of the contract implementing such The action filed by plaintiff was incidental to decision. the business in which the defendant was engaged. The In the event that one spouse is incapacitated or conjugal partnership of defendant Esther and Daniel otherwise unable to participate in the administration of was liable for debts and obligations contracted by the conjugal properties, the other spouse may assume sole Esther in her business since the income derived powers of administration. These powers do not include the therefrom, having been used to defray some of the powers of disposition or encumbrance which must have expenses for the maintenance of the family and the the authority of the court or the written consent of the education of the children, had redounded to the benefit other spouse. In the absence of such authority or consent, of the partnership. the disposition shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be Art. 122. The payment of personal debts perfected as a binding contract upon the acceptance by contracted by the husband or the wife before or during the other spouse or authorization by the court before the the marriage shall not be charged to the conjugal offer is withdrawn by either or both offerors. partnership except insofar as they redounded to the benefit of the family. Neither shall the fines and pecuniary indemnities Art. 125. Neither spouse may donate any imposed upon them be charged to the partnership. conjugal partnership property without the consent of the However, the payment of personal debts other. However, either spouse may, without the consent of contracted by either spouse before the marriage, that of the other, make moderate donations from the conjugal fines and indemnities imposed upon them, as well as the partnership property for charity or on occasions of family support of illegitimate children of either spouse, may be rejoicing or family distress. enforced against the partnership assets after the responsibilities enumerated in the preceding Article have been covered, if the exclusive property or if it should have no exclusive property or if it should be insufficient; but at Dissolution of Conjugal Partnership Regime the time of the liquidation of the partnership, such spouse shall be charged for what has been paid for the purposes above-mentioned. Art. 126. The conjugal partnership terminates: (1) Upon the death of either spouse; (2) When there is a decree of legal separation; People v. Lagrimas (3) When the marriage is annulled or decreed void; Fines and pecuniary indemnities imposed (4) In case of judicial separation of property upon the spouses may be charged against the during the marriage under Articles 134 to 138. partnership assets even before the liquidation of the PAGE 78

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Notes, Cases and Commentaries on Persons and Family Relation Art. 134. In the absence of an the absolute community or the conjugal express declaration in the marriage partnership shall pay for the support of settlements, the separation of property the spouses and their children. between spouses during the marriage shall not take place except by judicial Art. 138. After dissolution of the order. Such judicial separation of absolute community or of the conjugal property may either be voluntary or for partnership, the provisions on complete sufficient cause. separation of property shall apply. Art. 135. Any of the following shall be considered sufficient cause for judicial separation of property: (1) That the spouse of the petitioner has been sentenced to a penalty which carries with it civil interdiction; (2) That the spouse of the petitioner has been judicially declared an absentee; (3) That loss of parental authority of the spouse of petitioner has been decreed by the court; (4) That the spouse of the petitioner has abandoned the latter or failed to comply with his or her obligations to the family as provided for in Article 101; (5) That the spouse granted the power of administration in the marriage settlements has abused that power; and (6) That at the time of the petition, the spouses have been separated in fact for at least one year and reconciliation is highly improbable. In the cases provided for in Numbers (1), (2), (3), the presentation of the final judgment against the guilty or absent spouse shall be enough basis for the grant of the decree of judicial separation of property. Art. 136. The spouses may jointly file a verified petition with the court for the voluntary dissolution of the absolute community or the conjugal partnership of gains, and for the separation of their common properties. All creditors of the absolute community or of the conjugal partnership of gains, as well as the personal creditors of the spouse, shall be listed in the petition notified of the filing thereof. The court shall take measures to protect the creditors and other persons with pecuniary interest. Art. 137. Once the separation of property has been decreed, the absolute community or the conjugal partnerhsip of gains shall be liquidated in conformity with this Code. During the pendency of the proceedings for separation of property, Art. 127. The separation in fact between husband and wife shall not affect the regime of conjugal partnership, except that: (1) The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported; (2) When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding; (3) In the absence of sufficient conjugal partnership property, the separate property of both spouses shall be solidarily liable for the support of the family. The spouse present shall, upon petition in a summary proceeding, be given judicial authority to administer or encumber any specific separate property of the other spouse and use the fruits or proceeds thereof to satisfy the latter's share. Art. 128. If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the aggrieved spouse may petition the court for receivership, for judicial separation of property, or for authority to be the sole administrator of the conjugal partnership property, subject to such precautionary conditions as the court may impose. The obligations to the family mentioned in the preceding paragraph refer to marital parental or property relations. A spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without intention of returning. The spouse who has left the conjugal dwelling for a period of 3 months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling. Partosa-Jo v. CA Abandonment implies a departure by one spouse with the avowed intent never to return, followed by a prolonged absence without just cause, and without in the meantime providing in the least for one's family although able to do so. There must be absolute cessation of marital relations, duties and rights, with the intention of perpetual separation. In this case, physical separation, coupled with the refusal by the private respondent to give support to the petitioner, sufficed to constitute abandonment as a ground for judicial separation of their conjugal property. PAGE 79

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Notes, Cases and Commentaries on Persons and Family Relation The delivery of the presumptive Liquidation of the Conjugal Partnership Assets and Liabilities legitimes herein prescribed shall in no way prejudice the ultimate successional rights of the children accruing upon the Art. 129. Upon the dissolution of the conjugal death of either or both of the parents; but partnership regime, the following procedure shall apply: the value of the properties already (1) An inventory shall be prepared, listing received under the decree of annulment separately all the properties of the conjugal partnership or absolute nullity shall be considered as and the exclusive properties of each spouse. advances on their legitime.) (2) Amounts advanced by the conjugal partnership in payment of personal debts and obligations (9) In the partition of the properties, the conjugal of either spouse shall be credited to the conjugal dwelling and the lot on which it is situated shall, unless partnership as an asset thereof. otherwise agreed upon by the parties, be adjudicated to (3) Each spouse shall be reimbursed for the use of the spouse with whom the majority of the common his or her exclusive funds in the acquisition of property or children choose to remain. Children below the age of for the value of his or her exclusive property, the seven years are deemed to have chosen the mother, unless ownership of which has been vested by law in the conjugal the court has decided otherwise. In case there is no such partnership. majority, the court shall decide, taking into consideration (4) The debts and obligations of the conjugal the best interests of said children. 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 Art. 130. Upon the termination of the marriage by properties, in accordance with the provisions of death, the conjugal partnership property shall be paragraph (2) of Article 121. liquidated in the same proceeding for the settlement of the estate of the deceased. Art. 121. xxx If no judicial settlement proceeding is instituted, If the conjugal partnership is the surviving spouse shall liquidate the conjugal insufficient to cover the foregoing partnership property either judicially or extra-judicially liabilities, the spouses shall be solidarily within one year from the death of the deceased spouse. If liable for the unpaid balance with their upon the lapse of the said period no liquidation is made, separate properties. any disposition or encumbrance involving the conjugal partnership property of the terminated marriage shall be (5) Whatever remains of the exclusive properties void. of the spouses shall thereafter be delivered to each of Should the surviving spouse contract a subsequent them. marriage without compliance with the foregoing (6) Unless the owner had been indemnified from requirements, a mandatory regime of complete separation whatever source, the loss or deterioration of movables of property shall govern the property relations of the used for the benefit of the family, belonging to either subsequent marriage. spouse, 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 Art. 131. Whenever the liquidation of the properties shall constitute the profits, which shall be conjugal partnership properties of two or more marriages divided equally between husband and wife, unless a contracted by the same person before the effectivity of this different proportion or division was agreed upon in the Code is carried out simultaneously, the respective capital, marriage settlements or unless there has been a voluntary fruits and income of each partnership shall be determined waiver or forfeiture of such share as provided in this upon such proof as may be considered according to the Code. rules of evidence. In case of doubt as to which partnership (8) The presumptive legitimes of the common the existing properties belong, the same shall be divided children shall be delivered upon partition in accordance between and among the different partnerships in with Article 51. proportion to the capital and duration of each. Art. 51. In said partition, the value of the presumptive legitimes of all common children, computed as of the date of the final judgment of the trial court, shall be delivered in cash, property or sound securities, unless the parties, by mutual agreement judicially approved, had already provided for such matters. The children or their guardian, or the trustee of their property, may ask for the enforcement of the judgment. Art. 132. The Rules of Court on the administration of estates of deceased persons shall be observed in the appraisal and sale of property of the conjugal partnership, and other matters which are not expressly determined in this Chapter. Art. 133. From the common mass of property support shall be given to the surviving spouse and to the children during the liquidation of the inventoried property PAGE 80

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Notes, Cases and Commentaries on Persons and Family Relation and until what belongs to them is delivered; but from this shall be deducted that amount received for support which Accretion - The right of heirs or legatees to unite or exceeds the fruits or rents pertaining to them. aggregate with their shares or portions of the estate the portion of any co-heir or legatee who refuses to accept it, fails to comply with a condition, becomes incapacitated to inherit, 1. Exclusive Properties of Each Spouse or dies before, the testator. (Black's Law Dictionary, p. 19) Art. 109. The following shall be the exclusive property of each spouse: (1) That which is brought to the marriage as his or her own; (2) That which each acquires during the marriage by gratuitous title; (3) That which is acquired by right of redemption, by barter or by exchange with property belonging to only one of the spouses; [PLATA V. YATCO] and (4) That which is purchased with exclusive money of the wife or of the husband. Art. 110. The spouses retain ownership, possession, administration and enjoyment of their exclusive properties. Either spouse may, during the marriage, transfer the administration of his or her exclusive property to the other by means of a public instrument, which shall be recorded in the registry of property of the place where the property is located. Art. 111. A spouse of age may mortgage, encumber, alienate or otherwise dispose of his or her exclusive property, without the consent of the other spouse, and appear alone in court to litigate with regard to the same. Art. 112. The alienation of any exclusive property of a spouse administered by the other automatically terminates the administration over such property and the proceeds of the alienation shall be turned over to the owner-spouse. Art. 113. Property donated or left by will to the spouses, jointly and with designation of determinate shares, shall pertain to the donee-spouse as his or her own exclusive property, and in the absence of designation, share and share alike, without prejudice to the right of accretion when proper. Art. 114. If the donations are onerous, the amount of the charges shall be borne by the exclusive property of the donee-spouse, whenever they have been advanced by the conjugal partnership of gains. Art. 115. Retirement, benefits, pensions, pensions, annuities, gratuities, usufructs and similar benefits shall be governed by the rules on gratuitous or onerous acquisitions as may be proper in each case. Baviera Case: PLATA V. YATCO [12 S 718 (1964)] - Where the wife, during the marriage reacquired paraphernal property previosly sold before the marriage, and mortgaged the same to a 3P, with the husband as co- mortgagor, and later the property was extrajudicially foreclosed by the mortgagee who filed an illegal detainer case against the husband alone, the wife is not bound by the detainer judgment against her husband. (1) The conveyance of paraphernal property of the wife to a third person and its reconveyance back to her several months afterwards, does not transform it to conjugal property, in the absence of proof that the money paid in the reconveyance came from conjugal funds. (2) Where a piece of land is paraphernal in origin, the fact that the husband signed a mortgag deed thereof as a co-mortgagor does not by itself alone suffice to convert it into conjugal property. (3) An illegal detainer judgment against the husband alone over a piece of land paraphernal in character can not bind nor affect the wife's possession thereof. (4) A wife not made party defendant to an eviction suit against the husband over possession of land which is paraphernal property of the wife, could validly ignore the judgment of eviction against her husband, and it was no contempt of court for her to do so, because the writ of execution was not lawful against her.

Art. 753. When a donation is made to several persons jointly, it is understood to be in equal shares, and a. Property acquired by right of redemption or exchange with there shall be no right of accretion among them, unless the exclusive property of spouse donor has otherwise provided. The preceding paragraph shall not be applicable Baviera Case: to donations made to the husband and wife jointly, between whom there shall be a right of accretion, if the ROSETE V. PROV. SHERIFF [96 P 560 (1954)] - Where contrary has not been provided by the donor. (Civil the husband was a judgment debtor and conjugal property Code.) consisting of lands were levied upon, and the wife redeemed PAGE 81

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Notes, Cases and Commentaries on Persons and Family Relation the same with funds borrowed from her father, such (1) Under the Spanish Civil Code, the property properties have become paraphernal and could no longer be acquired for onerous consideration during the marriag was subject of levy for the second time. The wife redeemed the deemed conjugal or separate property depending on the properties, not in behalf of her husband, but as successor in source of the funds employed for its acquisition, irrespective interest in the whole or part of the property, it being then of whose name the property was acquired. conjugal. The term "successor-in-interest" includes one who succeeds to the interest of the debtor by operation of law or (2) Property acquired partly with paraphernal the wife as regards her husband's homestead by reason o the property and partly with conjugal funds is held to belong to fact that some portion of her husband's title passes to her. both patrimonies in common, in proportion to the contributions of each of the total purchase price. 2. Conjugal Property Art. 116. All property acquired during the marriage, whether the acquisition appears to have been made, contracted or registered in the name of one or both spouses, is presumed to be conjugal unless the contrary is proved. Art. 117. The following are conjugal partnership properties: (1) Those acquired by onerous title during the marriage at the expense of the common fund, whether the acquisition be for the partnership, or for only one of the spouses; [ZULUETA V. PANAM] (2) Those obtained from the labor, industry, work or profession of either or both of the spouses; (3) The fruits, natural, industrial, or civil, due or received during the marriage from the common property, as well as the net fruits from the exclusive property of each spouse; (4) The share of either spouse in the hidden treasure which the law awards to the finder or owner of the property where the treasure is found; [accretion] (5) Those acquired through occupation such as fishing or hunting; (6) Livestock existing upon the dissolution of the partnership in excess of the number of each kind brought to the marriage by either spouse; and (7) Those which are acquired by chance, such as winnings from gambling or betting. However, losses therefrom shall be borne exclusively by the loser-spouse. Baviera Cases: CASTILLO V. PASCO [11 S 102 (1964)] - Where the wife and her third husband purchased a fishpond for the amount of P6,000, the P1,000 coming partly from the wife's funds and partly as set-off of a debt owing to her, the P2,000 coming from a loan obtained by the spouses with the fishpond as collateral, and P3,000 coming from a loan obtained by both spouses secured by the wife's properties, and upon the death of the husband, the heirs of the husband (by a previous marriage) filed an action for partition and accounting, the SC held that 1/6 of the fishpond belongs to the wife as her paraphernal property, and 5/6 as conjugal property since the funds were obtained from loans secured by both spouses. (3) The payment by the widow, after her husband's death, wh her private funds of a loan to the conjugal partnership secured by her paraphernal property, the proceeds of which were used to acquire property during coverture under the Old Civil Code, does not result in increasing her share in said property but only in creating a LIEN in her favor over the undivided share of the conjugal partnership in the property so acquired for the repayment of the amount she had advanced. ZULUETA V. PANAM [49 S 1 (1975)] - Where the Zulueta family filed an action for breach of contract of carriage against an airline company and won, but pending appeal the wife entered into a compromise agreement with the airline company for P50,000, such agreement is not binding on the conjugal partnership without the husband's consent. However, the court ordered that the amount paid to the wife be deducted from the aggregate award made in favor of plaintiffs, since upon liquidation of the conjugal partnership, such amount would be due her anyway. Considering that the damages arose out of a breach of contract of carriage for which plaintiffs paid their fare with funds presumably belonging to the conjugal partnership, the said damages fall under the enumeration of conjugal property acquired by onerous title during the marriage at the expense of the common fund. a. Bought on installments (NA TO PAYMENTS IN FULL) Art. 118. Property bought on installments paid partly from exclusive funds of either or both spouses and partly from conjugal funds belongs to the buyer or buyers if full ownership was vested before the marriage and to the conjugal partnership if such ownership was vested during the marriage. In either case, any amount advanced by the partnership or by either or both spouses shall be reimbursed by the owner or owner upon liquidation of the partnership. Baviera Cases: JOVELLANOS V. CA [210 S 126 (1992)] - Where during the first marriage, the husband purchased a house and lot and paid the installments from conjugal funds, and remarried when his first wife died, and continued to make installment payments during the second marriage during which a Deed of Absolute Sale was issued in his name, the property belongs to the conjugal partnership of the second marriage, subject to reimbursements for the amounts paid from the conjugal funds of the first marriage.

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Notes, Cases and Commentaries on Persons and Family Relation Baviera: Unfair because the rights of the heirs of the first Baviera Cases marriage became vested upon the death of their mother, the property should have been divided accordingly. Although HISTORICAL BACKGROUND subject to reimbursement, the property was already part of the first CPG. VITUG V. MONTEMAYOR [93 P 939 (1953)] - Where during the second marriage, the second wife inherited land Historical Background: valued at P9,000 which was converted into a fishpond and sold at profit (P116,000), the proceeds of which were used to PLATA V. YATCO , supra - In this case, the wife purchased buy 30 parcels of land, the latter lands belong to the conjugal property not on installment basis but on full payment basis, partnership, and the heir of the husband by his first marriage the property thus becoming her paraphernal property. The shall be entitled to one-half of such lands. Since the value of mere fact that she sold it previous to the marriage and the improvements on the paraphernal property of the wife reacquired it during the marriage does not transform paraexceeded its original value, the entire property became phernal property to conjugal property in the absence of proof conjugal property subject to reimbursement of the value of the that the funds used to repurchase the property came from the paraphernal property at the time of liquidation of the conjugal conjugal funds. partnership. ALVAREZ V. ESPIRITU [14 S 893 (1965)] - Where the wife acquired land under the Friar Lands Act by installment, and continued making payments during her marriage from conjugal funds, during which she completed the payments, the property remains her paraphernal property because of the exceptiona provision in the Friar Lands Act that ownership vests upon the payment of the first installment. Hence, the conjugal partnership would only be entitled to reimbursement for the installments paid by the conjugal partnership during liquidation. (Lorenzo v. Nicolas, 91 P 686). MARAMBA V. LOZANO [20 S 474 (1967)] - Since there is no showing that the property was acquired during the marriage, the fact that the title is in the wife's name determines that it is paraphernal property. The construction of a house built from conjugal funds on the exclusive property of one of the spouses does not automatcally make it conjugal. It is true that in the meantime, the conjugal partnership may use both the land and the building, but it does not so as owner but in the snse of the right of usufruct. The land belonging to one of the spouses upon which the spouses have built a house becomes conjugal property only when the conjugal partnership is LIQUIDATED and the INDEMNITY PAID to the owner of the land. However, see CANULLAS V. FORTUN CALTEX V. FELIAS [108 P 873 (1960)] - Where the husband and wife constructed a building on land belonging to her parents, and the land was later donated to the wife, the building and the lot are not conjugal property. Article 1404 par. 2 of the OCC (Art. 158 CC, now Art. 120 FC) refers to a building constructed on LAND BELONGING TO ONE OF THE SPOUSES, however at the time the building was constructed, the lot belonged to the parents of the wife. The rule applicable with respect to the building constructed thereon before the donation is that of accessory following the principal. The donation transmitted to her the rights of a landowner over a building constructed on it. As such, the lot and the building are not answerable for the obligations of the husband.

Baviera: As distinguished from the Jovellanos case, which involved a PACTUM RESERVATI DOMINI, or contractual reservation of title, where there is a stipulation that even if property is delivered to the buyer, ownership remains with the seller until full payment of the price is made. b. Improvements at expense of conjugal funds or through work or industry of a spouse Art. 120. The ownership of improvements, whether for utility or adornment, made on the separate property of the spouses at the expense of the partnership or through the acts or efforts of either or both spouses shall pertain to the conjugal partnership, or to the original owner- spouse, subject to the following rules: When the cost of the improvement made by the conjugal partnership and any resulting increase in value are more than the value of the property at the time of the improvement, the entire property of one of the spouses shall belong to the conjugal partnership, subject to reimbursement of the value of the property of the ownerspouse at the time of the improvement; otherwise, said property shall be retained in ownership by the ownerspouse, likewise subject to reimbursement of the cost of the improvement. In either case, the ownership of the entire property shall be vested upon the reimbursement, which shall be made at the time of the liquidation of the conjugal partnership.

DOMINADO V. DERAYUNAN [49 S 452 (1926)] - To the owner of realty also belongs, by right of accession, the improvements made thereon. Buildings, crops and other improvements upon the land belong to the owner of the realty. To this rule there is an exception in case of married persons. Par. 2 of Art. 1404 CC (now Art. 120, FC) provides that buildings constructed during the marriage, on land belonging to one of the spouses, are conjugal property, but the owner of the realty shall be entitled to credit for the value of the land. This exception, however, is limited to buildings and does not apply to crops and other improvements, with respect PAGE 83

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Notes, Cases and Commentaries on Persons and Family Relation to which the general rule applies. Expenses incurred in (3) Debts and obligations contracted by either making such crops and improvements are conjuga expenses, spouse without the consent of the other to the extent that for which the conjugal property must be reimbursed. the family may have been benefited; [Tabotabo v. Molero, 22 P 418] (4) All taxes, liens, charges and expenses, including major or minor repairs upon the conjugal NOTE: ART. 120 only refers to "BUILDINGS" not crops partnership property; (5) All taxes and expenses for mere preservation CANULLAS V. FORTUN [129 S 675 (1984)] - The made during the marriage upon the separate property of Canullas family lived in a house owned by the husband's either spouse; father. When the latter died, the husband inherited the land, (6) Expenses to enable either spouse to commence but later abandoned his family to live with a concubine to or complete a professional, vocational, or other activity for whom he sold the land. Upon the husband's death, the self-improvement; concubine filed an action to quiet title, which the wife (7) Antenuptial debts of either spouse insofar as opposed on the ground that the house and coconut trees they have redounded to the benefit of the family; planted on the land came from conjugal funds and therefore (8) The value of what is donated or promised by became conjugal property. The SC annulled the sale to the both spouses in favor of their common legitimate children concubine, considering that the construction of the house on for the exclusive purpose of commencing or completing a the exclusive property of the husband IPSO FACTO made the professional or vocational course or other activity for selfland conjugal property, with the conjugal partnership liable to improvement; and the husband for the value of the land, to be reimbursed at (9) Expenses of litigation between the spouses liquidation of the CPG. unless the suit is found to be groundless. If the conjugal partnership is insufficient to cover The better rule than Maramba v. Lozano, is Padilla the foregoing liabilities, the spouses shall be solidarily v. Paterno, which held that the conversion of the paraphernal liable for the unpaid balance with their separate properties to conjugal assets should be deemed to retroact to properties. the time the conjugal buildings were first constructed thereon or at the very least, to the time immediately before the death of the owner spouse that ended the conjugal partnership. Art. 123. Whatever may be lost during the They can not be considered to have become conjugal property marriage in any game of chance, or in betting, only as of the time their values were paid to the estate of the sweepstakes, or any other kind of gambling whether deceased spouse because by that time the conjugal partnership permitted or prohibited by law, shall be borne by the loser no longer existed and it could not acquire the ownership of and shall not be charged to the conjugal partnership but said properties. The acquisition by the partnership of these any winnings therefrom shall form part of the conjugal properties was subject to the suspensive condition that their partnership property. values would be reimbursed to the owner spouse at the liquidation of the conjugal partnership; once paid, the effects of the fulfillment of the condition should be deemed to a. Contractual Obligations assumed by either spouse retroact to the date the obigation was constituted. [Art. 1187, NCC]. Art. 122. The payment of personal debts contracted by the husband or the wife before or during the marriage shall not be charged to the conjugal Baviera: This cannot be applied because there is no conjugal partnership except insofar as they redounded to the partnership of the first marriage which has been dissolved, benefit of the family. nor has there been a reimbursement yet. But the SC made a Neither shall the fines and pecuniary indemnities somersault to do justice and remove the land from the hands imposed upon them be charged to the partnership. of the concubine. The cited decision in Padilla was taken out However, the payment of personal debts of context since it was not even the ratio but a mere statement contracted by either spouse before the marriage, that of of JBL Reyes. fines and indemnities imposed upon them, as well as the support of illegitimate children of either spouse, may be enforced against the partnership assets after the 3. Obligations and Charges of Conjugal Partnership responsibilities enumerated in the preceding Article have been covered, if the exclusive property or if it should have Art. 121. The conjugal partnership shall be liable no exclusive property or if it should be insufficient; but at for: the time of the liquidation of the partnership, such spouse (1) The support of the spouses, their common shall be charged for what has been paid for the purposes children, and the legitimate children of either spouse; above-mentioned. however, the support of illegitimate children shall be governed by the provisions of this Code on Support; (2) All debts and obligations contracted during Baviera Cases: the marriage by the designated administrator- spouse for the benefit of the conjugal partnership of gains, or by both CUATICO V. MORALES [61 O.G. 869 (1964)] - Where spouses or by one of them with the consent of the other; the husband contracted a loan, signing the promissory note PAGE 84

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Notes, Cases and Commentaries on Persons and Family Relation alone, and where no benefit to the family was shown, in a collection suit later filed against the husband, where the ALVAREZ V. LIM [61 O.G. 1529 (1964)] - The illegitimate creditor won and sought to attach the husband's salaries, the children of the husband should be supported from his SC held that the salaries of the spouses constitute part of the exclusive property. In the absence of exclusive property of the conjugal partnership which may answer only for charges husband or in case of its insufficiency, the support of said upon and liabilities of the conjugal partnership. In order to illegitimate children may be imposed against the partnership make the conjugal partnership liable for the personal assets after the responsibilities enumerated in Art. 161 CC obligations of the spouses, it must be shown that the debt was (Art. 121 FC) have been covered, provided that at the time of contracted during the marriage by the husband for the benefit the liquidation of the partnership the husband shall be of the conjugal partnership. Under the New Civil Code, there charged for what has been paid for the purpose. is NO PRESUMPTION that debts and obligations contracted during the marriage by the husband are conjugal. (De la Cruz v. De Gula). As long as the conjugal partnership subsists, PEOPLE V. LAGRIMAS [29 S 153 (1969)] - Fines and there can be no one-half share of the husband or wife. Only indemnities imposed upon either husband or wife may be when the conjugal partnership is liquidated, and there is a net enforced against partnership assets after the responsibilities remainder, may the same be divided equally between husband imposed in Art. 161 CC (Art. 121 FC) have been covered, if and wife. The interest of each in the conjugal partnership the spouse who is bound should have no exclusive property or property is inchoate and is a mere expectancy. Any levy on if it should be insufficient. The reason is that if they were the conjugal partnership property to satisfy the money allowed to be enforced only after liquidation, the effect would judgment against the husband is null and void. (Ansaldo v. be to exempt the accused from civil liability and the heirs of Sheriff of Manila) the offended party would be made to suffer still further. LUZON SURETY V. AQUINO [30 S 111 (1969)] - The conjugal partnership is not liable on an indemnity agreement executed by the husband to accomodate a third party in favor of a surety company in the absence of proof of any benefit to the conjugal partnership. PEREZ V. LANTIN [23 S 367 (1968)] - Where the husband purchased shoe leather in connection with his business, and for failure to pay the same, a collection suit was filed against him, and judgment was held for the creditor, the shares of stocks owned by the husband can be attached for the satisfaction of the judgment debt. All properties of the marriage are presumed to belong to the conjugal partnership unless it is proved otherwise. The party who invokes this presumption must first prove that the property was acquired during the marriage. Hence, proof of acquisition during the coverture is a condition sine qua non for the operation of the presumption. Since in this case, there is no evidence as to when the shares of stocks were acquired, the fact that they are registered in the name of the husband alone is an indication that the shares belong exclusively to him. B. Charges upon conjugal partnership Art. 122, par. 3. However, the payment of personal debts contracted by either spouse before the marriage, that of fines and indemnities imposed upon them, as well as the support of illegitimate children of either spouse, may be enforced against the partnership assets after the responsibilities enumerated in the preceding Article have been covered, if the spouse who is bound should have no exclusive property or if it should insufficient; but at the time of the liquidation of the partnership, such spouse shall be charged for what has been paid for the purposes above-mentioned. Baviera Cases: 4. Administration of Conjugal Partnership Art. 124. The administration and enjoyment of the conjugal partnership property shall belong to both spouses jointly. In case of disagreement, the husband's decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed within five years from the date of the contract implementing such decision. In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the conjugal properties, the other spouse may assume sole powers of administration. These powers do not include the powers of disposition or encumbrance which must have the authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors. Art. 125. Neither spouse may donate any conjugal partnership property without the consent of the other. However, either spouse may, without the consent of the other, make moderate donations from the conjugal partnership property for charity or on occasions of family rejoicing or family distress. 5. Dissolution Art. 126. The conjugal partnership terminates: (1) Upon the death of either spouse; (2) When there is a decree of legal separation; (3) When the marriage is annulled or decreed

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Notes, Cases and Commentaries on Persons and Family Relation (4) In case of judicial separation of property gains shall be liquidated in conformity during the marriage under Articles 134 to 138. with this Code. During the pendency of the Art. 134. In the absence of an express proceedings for separation of property, declaration in the marriage settlements, the the absolute community or the conjugal separation of property between spouses during partnership shall pay for the support of the marriage shall not take place except by the spouses and their children. judicial order. Such judicial separation of property may either be voluntary or for sufficient Art. 138. After dissolution of the cause. absolute community or of the conjugal partnership, the provisions on complete Art. 135. Any of the following separation of property shall apply. shall be considered sufficient cause for judicial separation of property: (1) That the spouse of the Art. 127. The separation in fact between husband petitioner has been sentenced to a penalty and wife shall not affect the regime of conjugal which carries with it civil interdiction; partnership, except that: (2) That the spouse of the (1) The spouse who leaves the conjugal home or petitioner has been judicially declared an refuses to live therein, without just cause, shall not have absentee; the right to be supported; (3) That loss of parental (2) When the consent of one spouse to any authority of the spouse of petitioner has transaction of the other is required by law, judicial been decreed by the court; authorization shall be obtained in a summary proceeding; (4) That the spouse of the (3) In the absence of sufficient conjugal petitioner has abandoned the latter or partnership property, the separate property of both failed to comply with his or her spouses shall be solidarily liable for the support of the obligations to the family as provided for family. The spouse present shall, upon petition in a in Article 101; summary proceeding, be given judicial authority to (5) That the spouse granted the administer or encumber any specific separate property of power of administration in the marriage the other spouse and use the fruits or proceeds thereof to settlements has abused that power; and satisfy the latter's share. (6) That at the time of the petition, the spouses have been separated Art. 128. If a spouse without just cause abandons in fact for at least one year and the other or fails to comply with his or her obligations to reconciliation is highly improbable. the family, the aggrieved spouse may petition the court for In the cases provided for in receivership, for judicial separation of property, or for Numbers (1), (2), (3), the presentation of authority to be the sole administrator of the conjugal the final judgment against the guilty or partnership property, subject to such precautionary absent spouse shall be enough basis for conditions as the court may impose. the grant of the decree of judicial The obligations to the family mentioned in the separation of property. preceding paragraph refer to marital parental or property relations. A spouse is deemed to have abandoned the other Art. 136. The spouses may jointly when he or she has left the conjugal dwelling without file a verified petition with the court for intention of returning. The spouse who has left the the voluntary dissolution of the absolute conjugal dwelling for a period of 3 months or has failed community or the conjugal partnership of within the same period to give any information as to his or gains, and for the separation of their her whereabouts shall be prima facie presumed to have no common properties. intention of returning to the conjugal dwelling. All creditors of the absolute community or of the conjugal partnership of gains, as well as the personal creditors 6. Liquidation of the Conjugal Partnership Assets and of the spouse, shall be listed in the Liabilities petition notified of the filing thereof. The court shall take measures to protect the Art. 129. Upon the dissolution of the conjugal creditors and other persons with partnership regime, the following procedure shall apply: pecuniary interest. (1) An inventory shall be prepared, listing separately all the properties of the conjugal partnership and the exclusive properties of each spouse. Art. 137. Once the separation of (2) Amounts advanced by the conjugal property has been decreed, the absolute partnership in payment of personal debts and obligations community or the conjugal partnerhsip of PAGE 86

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Notes, Cases and Commentaries on Persons and Family Relation of either spouse shall be credited to the conjugal or absolute nullity shall be considered as partnership as an asset thereof. advances on their legitime. (3) Each spouse shall be reimbursed for the use of his or her exclusive funds in the acquisition of property or Baviera: Presumptive only; collationable, considered as for the value of his or her exclusive property, the donations because of collation ownership of which has been vested by law in the conjugal - actual computation at the time of death of the parent; partnership. legitime at the time of death can even be less than the (4) The debts and obligations of the conjugal presumptive legitimes.) partnership shall be paid out of the conjugal assets. In case of insufficiency of said assets, the spouses shall be (9) In the partition of the properties, the conjugal solidarily liable for the unpaid balance with their separate dwelling and the lot on which it is situated shall, unless properties, in accordance with the provisions of otherwise agreed upon by the parties, be adjudicated to paragraph (2) of Article 121. the spouse with whom the majority of the common children choose to remain. Children below the age of Art. 121. xxx seven years are deemed to have chosen the mother, unless If the conjugal partnership is the court has decided otherwise. In case there is no such insufficient to cover the foregoing majority, the court shall decide, taking into consideration liabilities, the spouses shall be solidarily the best interests of said children. liable for the unpaid balance with their separate properties.) Art. 130. Upon the termination of the marriage by death, the conjugal partnership property shall be (5) Whatever remains of the exclusive properties liquidated in the same proceeding for the settlement of the of the spouses shall thereafter be delivered to each of estate of the deceased. them. If no judicial settlement proceeding is instituted, (6) Unless the owner had been indemnified from the surviving spouse shall liquidate the conjugal whatever source, the loss or deterioration of movables partnership property either judicially or extra-judicially used for the benefit of the family, belonging to either within one year from the death of the deceased spouse. If spouse, even due to fortuitous event, shall be paid to said upon the lapse of the said period no liquidation is made, spouse from the conjugal funds, if any. any disposition or encumbrance involving the conjugal partnership property of the terminated marriage shall be ( e.g. car, even if lost due to FE, unlike in ordinary usufruct) void. Should the surviving spouse contract a subsequent (7) The net remainder of the conjugal partnership marriage without compliance with the foregoing properties shall constitute the profits, which shall be requirements, a mandatory regime of complete separation divided equally between husband and wife, unless a of property shall govern the property relations of the different proportion or division was agreed upon in the subsequent marriage. marriage settlements or unless there has been a voluntary waiver or forfeiture of such share as provided in this Code. Art. 131. Whenever the liquidation of the (8) The presumptive legitimes of the common conjugal partnership properties of two or more marriages children shall be delivered upon partition in accordance contracted by the same person before the effectivity of this with Article 51. Code is carried out simultaneously, the respective capital, fruits and income of each partnership shall be determined Art. 51. In said partition, the upon such proof as may be considered according to the value of the presumptive legitimes of all rules of evidence. In case of doubt as to which partnership common children, computed as of the the existing properties belong, the same shall be divided date of the final judgment of the trial between and among the different partnerships in court, shall be delivered in cash, property proportion to the capital and duration of each. or sound securities, unless the parties, by mutual agreement judicially approved, had already provided for such matters. Art. 132. The Rules of Court on the The children or their guardian, administration of estates of deceased persons shall be or the trustee of their property, may ask observed in the appraisal and sale of property of the for the enforcement of the judgment. conjugal partnership, and other matters which are not The delivery of the presumptive expressly determined in this Chapter. legitimes herein prescribed shall in no way prejudice the ultimate successional rights of the children accruing upon the Art. 133. From the common mass of property death of either or both of the parents; but support shall be given to the surviving spouse and to the the value of the properties already children during the liquidation of the inventoried property received under the decree of annulment and until what belongs to them is delivered; but from this PAGE 87

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Notes, Cases and Commentaries on Persons and Family Relation shall be deducted that amount received for support which has left the conjugal dwelling for a period exceeds the fruits or rents pertaining to them. of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of E. Separation of Property returning to the conjugal dwelling. 1. During Marriage Art. 134. In the absence of an express declaration in the marriage settlements, the separation of property between the spouses during the marriage shall NOT take place except by judicial order. Such judicial separation of property may either be voluntary or for sufficient cause. Toda v. Court of Appeals The separation of property is not affected by the mere execution of the contract or agreement of the parties but by the decreee of the court approving the same. The conjugal partnership is dissolved only upon the issuance of a decree of separation of property. Balane: A petition may be filed for the dissolution of the AC or the CP by: both spouses: voluntary dissolution (134/136) petition for sufficient cause (135) cannot dissolve extrajudicially during subsistence of marriage Art. 135. Any of the following shall be considered sufficient cause for judicial separation of property: (1) That the spouse of the petitioner has been sentenced to a penalty which carries with it civil interdiction; (2) That the spouse of the petitioner has been judicially declared an absentee; (3) That loss of parental authority of the spouse of petitioner has been declared by the court; (4) That the spouse of the petitioner has abandoned the latter or failed to comply with his or her obligations to the family as provided for in Article 101; Art. 101. If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the aggrieved spouse may petition the court for receivership, for judicial separation of property or for authority to be the sole administrator of the absolute community, subject to such precautionary conditions as the court may impose. The obligations to the family mentioned in the preceding paragraph refer to marital, parental or property relations. A spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without intention of returning. The spouse who (5) That the spouse granted the power of administration in the marriage settlements has abused that power; and (6) That at the time of the petition, the spouses have been separated in fact for at least one year and reconciliation is highly improbable. In the cases provided for in Numbers (1), (2) and (3), the presentation of the final judgment against the guilty or absent spouse shall be enough basis for the grant of the decree of judicial separation of property. Balane: Under Art. 135.4, Balane believes that Art. 128 should be included here. Art. 136. The spouses may jointly file a verified petition with the court for the voluntary dissolution of the absolute community or the conjugal partnership of gains, and for the separation of their common properties. All creditors of the absolute community or of the conjugal partnership of gains, as well as the personal creditors of the spouse, shall be listed in the petition notified of the filing thereof. The court shall take measures to protect the creditors and other persons with pecuniary interest. Art. 137. Once the separation of property has been decreed, the absolute community or the conjugal partnership of gains shall be liquidated in conformity with this Code. During the pendency of the proceedings for separation of property, the absolute community or the conjugal partnership shall pay for the support of the spouses and their children. Art. 138. After dissolution of the absolute community or of the conjugal partnership, the provisions on complete separation of property shall apply. Art. 139. The petition for separation of property and the final judgment granting the same shall be recorded in the proper local civil registries and registries of property. Art. 140. The separation of property shall not prejudice the rights previously acquired by creditors. Art. 141. The spouses may, in the same proceedings where separation of property was decreed, file a motion in court for a decree reviving the property PAGE 88

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Notes, Cases and Commentaries on Persons and Family Relation regime that existed between them before the separation of (3) When one spouse is sentenced to a penalty property in any of the following instances: which carries with it civil interdiction; or (1) When the civil interdiction terminates; (4) When one spouse becomes a fugitive from (2) When the absentee spouse reappears; justice or is in hiding as an accused in a criminal case. (3) When the court, being satisfied that the spouse If the other spouse is not qualified by reason of granted the power of administration in the marriage incompetence, conflict of interest, or any other just cause, settlements will not again abuse that power, authorizes the the court shall appoint a suitable person to be the resumption of said administration; administrator. (4) When the spouse who has left the conjugal home without a decree of legal separation resumes common life with the other; 3. Regime of Separation of Property (5) When the parental authority is judicially restored to the spouse previously deprived thereof; Art. 143. Should the future spouses agree in the (6) When the spouses who have separated in fact marriage settlements that their property relations during for at least one year, reconcile and resume common life; the marriage shall be governed by the regime of or separation of property, the provisions of this Chapter shall (7) When after voluntary dissolution of the be of suppletory application. absolute community of property or conjugal partnership has been judicially decreed upon the joint petition of the spouses, they agreed to the revival of the former property Art. 144. Separation of property may refer to regime. No voluntary separation of property may present or future property or both. It may be total or thereafter be granted. partial. In the latter case, the property not agreed upon as The revival of the former property regime shall separate shall pertain to the absolute community. be governed by Article 67. Art. 67. The agreement to revive the former property regime referred to in the preceding Article shall be executed under oath and shall specify: (1) The properties to be contributed anew to the restored regime; (2) Those to be retained as separated properties of each spouse; and (3) The names of all their known creditors, their addresses and the amounts owing to each. The agreement of revival and the motion for its approval shall be filed with the court in the same proceeding for legal separation, with copies of both furnished to the creditors named therein. After due hearing, the court shall, in its order, take measures to protect the interest of creditors and such order shall be recorded in the proper registries of properties. The recording of the order in the registries of property shall not prejudice any creditor not listed or not notified, unless the debtor-spouse has sufficient separate properties to satisfy the creditor's claim. Art. 145. Each spouse shall own, dispose of, possess, administer and enjoy his or her own separate estate, without need of the consent of the other. To each spouse shall belong all earnings from his or her profession, business or industry and all fruits, natural, industrial or civil, due or received during the marriage from his or her separate property. Art. 146. Both spouses shall bear the family expenses in proportion to their income, or, in case of insufficiency or default thereof, to the current market value of their separate properties. The liability of the spouses of creditors for family expenses shall, however, be solidary.

VII. Union without marriage

Art. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership. [no provision in OCC, judicial decisions only; only in NCC; Baviera says the use of the words "capacitated" and Art. 142. The administration of all classes of "void marriage" is malabo; jigsaw puzzle provision] exclusive property of either spouse may be transferred by In the absence of proof to the contrary, properties the court to the other spouse: acquired while they lived together shall be presumed to (1) When one spouse becomes the guardian of the have been obtained by their joint effortsm work or other; industry, and shall be owned by them in equal shares. For (2) When one spouse is judicially declared an purposes of this Article, a party who did not participate in absentee; the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition PAGE 89

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Notes, Cases and Commentaries on Persons and Family Relation thereof if the former's efforts consisted in the care and The foregoing rules on forfeiture shall likewise maintenance of the family and of the household. apply even if both parties are in bad faith. [basis: MAXEY V. CA - H & W, equality of the sexes] Neither party can encumber or dispose by acts inter vivoc of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation. [Baviera - so that it won't be better than legal relationships] When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the coownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation. [Baviera - there is a right of representation even by the grandchildren] Maxey v. CA The marriage law of 1903 does not recognize the validity of a marriage that is celebrated in "military fashion". In this case, the couple got married only on Feb. 16, 1919 after living as common-law spouses before that. Under Art. 144 of the NCC, coownership arises even if the common-law wife is not gainfully employed, or does not work. Notes: as in the case of Maxey, a common-law wife who is not gainfully employed contributes to the coownership as a homemaker. the law in this case provides for a special kind of coownership...which cannot be terminated, and wherein the share may not be encumbered or disposed of without the consent of the other. Art. 148. In cases of cohabitation not falling under the preceding Article, only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions. In the absence of proof to the contrary, their contributions and corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money and evidences of credit. If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the absolute community or conjugal partnership existing in such valid marriage. If the party who acted in bad faith is not validly married to another, his or her share shall be forfeited in the manner provided in the last paragraph of the preceding Article. Baviera: If no common children, no surviving descendant, kanino ngayon? apply exclusive property Baviera Cases: YAPTINCHAY V. TORRES [28 S 489 (1969)] - Where a married man and his mistress lived together for 19 years, and the mistress seeks to repossess their love nest in Forbes Park, she must show her actual contribution in the construction of the house during the cohabitation inorder for the rules on coownership to apply. Her unsupported assertions cannot override the prima facie presumption that the house, having been constructed on the lot of the man during his marriage to his legitimate wife constitutes conjugal property. JUANIZA V. JOSE [89 S 306 (1979)] - A married man is the registered owner of a jeepney which was involved in an accident and was held liable for damages. His common-law wife cannot claim co- ownership over the jeepney because Art. 144 CC (Art. 147 FC) applies only when the parties are not incapacitated to marry. Hence, the jeepney belongs to the conjugal partnership with the lawful wife. The common-law wife not being the registered owner cannot be held liable for damages caused by its operation. Baviera disagrees, there is no need that there bee no impediment because Art. 147 FC covers even void marriages. MAXEY V. CA [129 S 187 (1984)] - Under Art. 144 CC (Art. 147 FC), co-ownership arises even if a common-law wife does not work or is not gainfully employed. The Filipino woman traditionally runs the household and holds the family purse even if she does not contribute thereto. xxx The marriage law of 1903 does not recognize the validity of a marriage that is celebrated in "military fashion". In this case, the couple got married only on Feb. 16, 1919 after living as common-law spouses before that. Under Art. 144 of the NCC, coownership arises even if the common-law wife is not gainfully employed, or does not work. Balane: As in the case of Maxey, a common-law wife who is not gainfully employed contributes to the coownership as a homemaker. the law in this case provides for a special kind of coownership...which cannot be terminated, and wherein the share may not be encumbered or disposed of without the consent of the other. VII. The Family A. As an Institution

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Notes, Cases and Commentaries on Persons and Family Relation Art. 149. The family, being the foundation of the contained in Art. 217, then it follows that this case nation, is a basic social institution which public policy does not fall within Art. 222...failure to seek a cherishes and protects. Consequently, family relations are compromise before the filing of the complaint does not governed by law and no custom, practice or agreement bar the action. destructive of the family shall be recognized or given effect. Wainright v. Versoza Alavado v. City Gov't Persons dwelling together in apparent matrimony are presumed, in the absence of any counter-presumption or evidence special to the case, to be in fact married. The reason is that such is the common order of society, and if the parties were not what they thus hold themselves out as being, they would be living in the constant violation of decency and of law. Art. 150. Family relations include those: (1) Between husband and wife; (2) Between parents and children; (3) Among other ascendants and descendants; and (4) Among brothers and sisters, whether of the full or half-blood. Balane: The enumeration under 150 of who is a member of a family is exclusive for the purpose stated in Art. 151 Art. 151. No suit between members of the same family shall prosper unless it should appear from the verified complaint or petition that earnest efforts toward a compromise have been made, but that the same have failed. If it is shown that no such efforts were in fact made, the case must be dismissed. This rule shall not apply to cases which may not be the subject of compromise under the Civil Code. Balane: If on either side of the litigation, a third party is present in addition to the family member, then Art. 151 does not apply. Family Home Notes: The main change from the provisions of the NCC is that under the FC, there is de facto or automatic constitution of the family home The rationale behind this is to protect the family from the tragic consequence of losing the dwelling to creditors. Gayon v. Gayon Art. 222 of the CC (Art. 151 NCC) is an exception to the general rule and should thus be construed strictly. Inasmuch as a sister-in-law, nephew, niece is not included in the enumeration Compromise on future support is proscribed. An attempt to compromise future support is not a condition precedent to the filing of a suit therefor and it need not be alleged in the complaint. A showing of previous efforts to compromise future support would be superfluous. Magbaleta v. Gonong Where one of the parties to a civil litigation is not a member of the family some of whose members are adverse parties to the said suit, lack of earnest efforts to reach a compromise should not be considered a jurisdictional requisite to the maintenance of an action. De Guzman v. Genato Substantial compliance of the requirement of earnest efforts towards a compromise is enough. It is not necessary that the plaintiff should expressly use the terms of the statute, i.e. "that earnest efforts towards a compromise have been made, but that the same have failed" in his pleadings in order to comply with the requirement. O'Lao v. Co Cho Chit Earnest efforts towards a compromise is a condition precedent to filing of suits between members of the same family, non- compliance of which, the complaint is assailable at any stage of the proceedings for lack of cause of action. Art. 2035. No compromise upon the following questions shall be valid: (1) The civil status of persons; (2) The validity of marriage or a legal separation; (3) Any ground for legal separation; (4) Future support; (5) The jurisdiction of courts; (6) Future legitime. (Civil Code.) ( also refer to rules on pre-trial, Katarungang Pambarangay Law) Art. 215. No descendant shall be compelled, in a criminal case, to testify against his parents and grandparents, except when such testimony is PAGE 91

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Notes, Cases and Commentaries on Persons and Family Relation indispensable in a crime against the descendant or by one with the latter's consent. It may also be constituted by an parent against the other. unmarried head of a family on his or her own property. Nevertheless, property that is the subject of a conditional sale on installments where ownership is The Family Home reserved by the vendor only to guarantee payment of the purchase price may be constituted as a family home. Art. 152. The family home, constituted jointly by the husband and the wife or by an unmarried head of a family, is the dwelling house where they and their family reside, and the land on which it is situated. Balane: An unmarried head of a family may constitute a family home Art. 153. The family home is deemed constituted on a house and lot from the time it is occupied as a family residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be such and is exempt from execution, forced sale or attachment except as hereinafter provided and to the extent of the value allowed by law. MANACOP V. CA [215 SCRA 773] - reiterating Modequillo v. Breva, "xxx It does not mean that Articles 152 and 153 FC have a retroactive effect such that all existing family residences are deemed to have been consitituted as family homes at the time of their occupation prior to the effectivity of the FC and are exempt from execution for the payment of obligations incurred before the effectivity of the FC. Art. 162 simply means that all existing family residences at the time of the effectivity of the FC, are considered family homes and are prospectively entitled to the benefits accorded to a family home under the FC. Art. 162 does not state that the provisions of Chapter 2, Title V have a retroactive effect. Art. 154. The beneficiaries of a family home are: (1) The husband and wife, or an unmarried person who is the head of a family; and (2) Their parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate or illegitimate, who are living in the family home and who depend upon the head of the family for legal support. Art. 155. The family home shall be exempt from execution, forced sale or attachment except: (1) For nonpayment of taxes; (2) For debts incurred prior to the constitution of the family home; (3) For debts secured by by mortgages on the premises before or after such constitution; (4) For debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered service or furnished material for the construction of the building. Art. 157. The actual value of the family home shall not exceed, at the time of its constitution, the amount of three hundred thousand (P300,000) in urban areas and two hundred thousand (P200,000) in rural areas, or such amounts as may hereafter be fixed by law. In any event, if the value of the currency changes after the adoption of this Code, the value most favorable for the constitution of a family home shall be the basis of evaluation. For purposes of this Article, urban areas are deemed to include chartered cities and municipalities whose annual income at least equals that legally required for chartered cities. All others are deemed to be rural areas. Balane: Under the NCC, there was no provision for adjustment of the value of the family home. The ceiling was pegged at P30,000. Under the FC, this ceiling was increased. The FC further provided for a flexibility clause under Art. 157.2 "value most favorable for the constitution of a family home shall be the basis..." Art. 158. The family home may be sold, alienated, donated, assigned or encumbered by the owner or owners thereof with the written consent of the person constituting the same, the latter's spouse, and a majority of the beneficiaries of legal age. In case of conflict, the court shall decide. Balane: Although this article states that the consent of the head and a majority of the beneficiaries is required before alienation/encumbrance of the family home, the law is not clear as to the consequences of not obtaining such consent. Under 1403, it would seem as if the contract shall be unenforceable. Art. 159. The family home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of ten years or for as long as there is a minor beneficiary, and the heirs cannot partition the same unless the court finds compelling reasons therefor. This rule shall apply regardless of whoever owns the property or constituted the family home.

Art. 160. When a creditor whose claim is not among those mentioned in Article 155 obtains a judgment Art. 156. The family home must be part of the in his favor, and he has reasonable grounds to believe that properties of the absolute community or the conjugal the family home is actually worth more than the maximum partnership, or of the exclusive properties of either spouse amount fixed in Article 157, he may apply to the court PAGE 92

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Notes, Cases and Commentaries on Persons and Family Relation which rendered the judgment for an order directing the sale of the property under execution. The court shall so Art. 162 FC simply means that all existing family residences order if it finds that the actual value of the family home at the time of the effectivity of the Family Code (AUGUST 3, exceeds the maximum amount allowed by law as of the 1988), are considered family homes and are prospectively time of its constitution. If the increased actual value entitled to the benefits accorded to a family home under the exceeds the maximum allowed in Article 157 and results Family Code. Art. 162 FC does not state that the provisions of from subsequent voluntary improvements introduced by Chapter 2, Title V have a retroactive effect. the person or persons constituting the family home, by the owner or owners of the property, or by any of the beneficiaries, the same rule and procedure shall apply. At the execution sale, no bid below the value allowed for a family home shall be considered. The IX. Paternity and Filiation proceeds shall be applied first to the amount mentioned in Article 157, and then to the liabilities under the judgment 1. Legitimate Children and the costs. The excess, if any, shall be delivered to the judgment debtor. Art. 163. The filiation of children may be by nature or by adoption. Natural filiation may be legitimate or illegitimate. Balane: Art. 160 provides the remedy of the creditor where the value of the family home is in excess of the ceiling Art. 164. Children conceived or born during the marriage of the parents are legitimate. The family home will be sold (but replacement should Children conceived as a result of artificial exist) insemination of the wife with the sperm of the husband or The value for such replacement should be set aside that of a donor or both are likewise legitimate children of Any excess shall accrue to the creditor. the husband and his wife, provided, that both of them authorized or ratified such insemination in a written Paternity and Filiation instrument executed and signed by them before the birth of the child. The instrument shall be recorded in the civil paternity: includes maternity registry together with the birth certificate of the child. means the relationship or status of a person with respect to his or her child filiation Balane: Legitimate: conceived or born during the means the status of a person with respect to marriage his or her parents the presumption is always in favor of legitimacy Note that under the Family Code, there are no more subdistinctions under the classification of illegitimate Artificial insemination: children. 3 ways permissible: 1. artificial insemination husband (AIH)--using the sperm of the husband--homologous Art. 161. For purposes of availing of the benefits of a family home as provided for in this Chapter, a person 2. artificial insemination donor (AID) -- heterologous may constitute, or be the beneficiary of, only one family home. 3. artificial insemination combined (AIC) Art. 162. The provisions in this Chapter shall also govern existing family residences insofar as said provisions are applicable. Baviera/ Balane Case: Requirements: authorization/ratification of both spouses written instrument the document should be executed and signed before the child's birth

registration in the Civil Registry is not a requirement MODEQUILLO V. BREVA [185 S 766 (1990)] - Under the for validity. Family Code, a family home is deemed constituted on a house and lot from the time it is occupied as a family residence. Presumption of Legitimacy There is NO NEED to constitute the same judicially or the presumption of legitimacy is an example of a extrajudicially as required in the Civil Code. If the family quasi-conclusive presumption. This presumption may actually resides in the premises, it is, therefore, a family home be rebutted only on the grounds provided in Art. 166. as contemplated by law. Thus, the creditors should take the necessary precautions to protect their interest before To impugn legitimacy, show that during the 1st 120 extending credit to the spouses or head of the family who days of the 300 days preceding the birth, there was owns the home. PAGE 93

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Notes, Cases and Commentaries on Persons and Family Relation physical impossibility of access between husband and presumption. Although the H was suffering from serious wife. tuberculosis, yet there is no evidence of impotence nor does it preven carnal intercourse. And there are cases when the Physical impossibility of access may be shown by tuberculous is reputed to be more erotic. RR. preponderance of evidence: may show impotence that the spouses were living separately and sexual MACADANGDANG V. CA [100 SCRA 73] - The child intercourse was not possible Rolando is presumed to be the legitimate son of resp. and her or serious illness making sexual intercourse spouse. This presumption becomes conclusive in the absence impossible. of proof that there was physical impossibility of access Art. 166.1 has no application when the conception is between the spouses in the first 120 days of the 300 days w/c by artificial insemination. preceded the birth of the child. Suppose the consent or ratification was obtained through the means mentioned in 166.3 but the semen used was that of the husband...will this rebut the quasi-conclusive presumption? Art. 165. Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in this Code. Art. 166. Legitimacy of a child may be impugned only on the following grounds: (1) That it was physically impossible for the husband to have sexual intercourse with his wife within the first 120 days of the 300 days which immediately preceded the birth of the child because of: (a) the physical incapacity of the husband to have sexual intercourse with his wife; (b) the fact that the husband and wife were living separately in such a way that sexual intercourse was not possible; or (c) serious illness of the husband, which absolutely prevented sexual intercourse; (2) That it is proved that for biological or other scientific reasons, the child could not have been that of the husband, except in the instance provided in the second paragraph of Article 164 (artificial insemination); or (3) That in case of children conceived through artificial insemination, the written authorization or ratification of either parent was obtained through mistake, fraud, violence, intimidation, or undue influence. ANDAL V. MACARAIG [100 SCRA 73] F: The H died on 1/1/43. The boy whose legitimacy is in question was born on 6/17/43. If the boy is deemed legitimate, then he is entitled to inherit the land in question. Lower court declared the boy as the legitimate child of the H and owner of the land. Art. 167. The children shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. CHUA KENG GIAP V. IAC [158 SCRA 18] - In the case of Sy Kao v. CA, Sy Kao flatly and unequivocably declared that she was not the petitioner's mother. xxx Who better than Sy Kao herself would know if Chua Keng Giap was really her son? More than any one else, it was Sy Kao who could say-- as indeed she has said these many years-- that Chua Keng Giap was not begotten of her womb. Art. 168. If the marriage is terminated and the mother contracted another marriage within three hundred days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary: (1) A child born before one hundred eighty days after the solemnization of the subsequent marriage is considered to have been conceived during the former marriage, provided it be born within three hundred days after the termination of the former marriage; (2) A child born after one hundred eighty days following the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage. Art. 169. The legitimacy or illegitimacy of a child born after three hundred days following the termination of the marriage shall be proved by whoever alleges such legitimacy or illegitimacy.

Art. 170. The action to impugn the legitimacy of the child shall be brought within one year from the knowledge of the birth or its recording in the civil register, if the husband or, in a proper case, any of his HELD: The boy is presumed to be the legitimate son of said heirs, should reside in the city or municipality where the H and his W, he having been born w/in 300 days following birth took place or was recorded. the dissolution of the marriage. The presumption can only be If the husband or, in his default, all of his heirs do rebutted by proof that it was physically impossible for the H not reside at the place of birth as defined in the first to have access to her W during the first 120 days of the 300 paragraph or where it was recorded, the period shall be days next preceding the birth of the child. The fact that the two years if they should reside in the Philippines; and wife has committed adultery cannot overcome this three years if abroad. If the birth of the child has been PAGE 94

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Notes, Cases and Commentaries on Persons and Family Relation concealed from or was unknown to the husband or his possession in this case of such status must not be heirs, the period shall be counted from the discovery or sporadic or intermittent possession of such status for knowledge of the birth of the child or of the fact of an appreciable time is sufficient...it need not be for the registration of said birth, whichever is earlier. lifetime of the child. LIM V. IAC [166 SCRA 451] - The finding of the trial court and the CA that Violeta Cabatbat was not born of Esperanza Cabatbat is a factual finding based on the evidence presented at the trial, and hence, it is conclusive upon Us. Petitioner's recourse to Art. 263, NCC, now Art. 170, FC is not well-taken. This legal provision refers to an action to impugn letigimacy. It is inapplicable to this case bec. this is not an action to impugn the legitimacy of a child, but an action of the prvt resps. to claim their inheritance as legal heirs of their childless deceased aunt. They do not claim that petitioner Violeta Cabatbat Lim is an illegitimate child of the deceased, but that she is not the decedent's child at all. Being neither a legally adopted child, nor an acknowledged natural child, nor a child by legal fiction of Esperanza, Violeta is not a legal heir of the deceased. Art. 171. The heirs of the husband may impugn the filiation of the child within the period prescribed in the preceding article only in the following cases: (1) If the husband should die before the expiration of the period fixed for bringing his action; (2) If he should die after the filing of the complaint, without having desisted therefrom; or (3) If the child was born after the death of the husband. Balane: Art. 170-171 .Anent who can impugn the legitimacy of a child--the period for such must be reckoned from knowledge of either the birth or the recording of such birth...choice of reckoning point...except when birth is concealed, then the reckoning period is from discovery or knowledge of birth or discovery or knowledge of recording, whichever is earlier. 2. Proof of Filiation Art. 172. The filiation of legitimate children is established by any of the following: (1) The record of birth appearing in the civil register or a final judgment; or (2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) The open and continuous possession of the status of a legitimate child; or (2) Any other means allowed by the Rules of Court and special laws. Balane: With regard to open and continuous possession of the status of a legitimate child...the DIAZ V. CA [129 SCRA 621] - Absence of maternal surname of the decedent in his certificate of admission to the Phil. Bar does not disprove legitimacy, as dropping of maternal surname in documents is commonplace. xxx Although the last will and testament cannot prove pedigree, it is not considered as independent evidence but collectively w/ other evidence on record to prove decedent's legitimacy. Art. 173. The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action. The action already commenced by the child shall survive notwithstanding the death of either or both of the parties. Balane: The action in this case is generally intransmissible except when the child dies during minority, or the child dies in a state of insanity or the child dies pendente lite MARQUINO V. IAC [233 SCRA 348] - Under Art. 285 (Civil Code), the right of action for the acknowledgment of natural children can never be transmitted: her death tolled the action. In an action for compulsory recognition, the party in best position to oppose the same is the putative parent himself. (However, Art. 285 was already superseded by Art. 173, FC, Child can now bring the action during his lifetime even after the death of parents. But Art. 173 cannot be given retroactive effect because it will prejudice the vested rights of the heirs of the putatuve parent transmitted to them after the latter's death. DLC: The action for compulsory recognition commenced by the illegitimate child during the lifetime of the putative parent is abated by the death of such parent. Art. 174. Legitimate children shall have the

right:

(1) To bear the surnames of the father and the mother, in conformity with the provisions of the Civil Code on Surnames; (2) To receive support from their parents, their ascendants, and in proper cases, their brothers and sisters, in conformity with the provisions of this Code on Support; (3) To be entitled to the legitime and other successional rights granted to them by the Civil Code. PAGE 95

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Notes, Cases and Commentaries on Persons and Family Relation 3. Illegitimate Children Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. Baviera: The action must [MAY - typo error corrected by Baviera] be brought within the same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in which case the action may [MUST - Baviera] be brought during the lifetime of the alleged parent. Balane: The FC rules were meant to liberalize the rules of the NCC on illegitimacy...there is no more need for recognition (which was required under the NCC) proof of illegitimacy is now sufficient. MENDOZA V. CA [201 SCRA 675] - To establish "the open and continuous possession of the status of an illegitimate child," it is necessary to comply w/ certain jurisprudential requirements. "Continuous" does not mean that the concession of status shall continue forever but only that it shall not be of an intermittent character while it continues. The possession of such status means that the father has treated the child as his own, directly and not through others, spontaneously and w/o concealment though w/o publicity (since the relation is illegitimate.) There must a showing of permanent intention of the suppose father to consider the child as his own, by continuous and clear manifestation of affection and care. Art. 173. The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action. The action already commenced by the child shall survive notwithstanding the death of either or both of the parties. Art. 172. The filiation of legitimate children is established by any of the following: (1) The record of birth appearing in the civil register or a final judgment; or (2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. ( - DURING LIFETIME OF CHILD - )

JAO V. CA [152 SCRA 359] - Blood grouping tests are conclusive as to non-paternity but not as to paternity. The fact that the blood type of the child is a possible product of the mother and the alleged father does not inconclusively prove that the child is born by such parents; but if the blood type of the child is not the possible blood type when the blood of the mother and the alleged father are crossmatched, then the child cannot possibly be that of the alleged father. The cohabitation between the mother and the supposed father cannot be a ground for compulsory recognition if such cohabitation could not have produced the conception of the child. This would be the case, for instance, if the cohabitation took place outside of the period of conception of the child. Likewise, if it can be proved by blood tests that the child and the supposed father belong to different blood groups, the cohabitation by itself cannot be a ground for recognition. UYGUANGCO V. CA [178 SCRA 684] - Case cites Art. 172 (2nd par.): when the action is based on second par. of Art.172, the action may be brought during the lifetime of the alleged parent. 2nd par of 172: In the absence of the foregoing evidence, the legitimate filiation shall be proved by: a)open and continuous possession, 2) other means allowed by the Rules of Court. While PR admits that he has none of the documents mentioned in par.1, he insists that he has nevertheless been in "open and continuous possession of the status of a legitimate child." The problem of PR is that since he seeks to prove his filiation under par. 2, he is now barred because of his alleged father's death in 1975. The putative father's death in 1975, made the Civil Code applicable to him and not the Family Code. Thus, PR cannot prove his illegitimate filiation because of his father's death.

In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) The open and continuous possession of the status of a legitimate child; or (2) Any other means allowed by the Rules of Court and special laws. [ - DURING LIFETIME OF PARENT (Tayag. v. CA) - ]

Art. 176. Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. The legitime of each illegitimate child shall consist of one half of the legitime of a legitimate child. Balane: Anent the right of an illegitimate child in compulsory and intestate succession...the illegitimate child shall be entitled to 1/2 of the share of the legitimate child. 4. Legitimated Children

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Notes, Cases and Commentaries on Persons and Family Relation Art. 177. Only children conceived and born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other may be legitimated. RULE 99 ADOPTION AND CUSTODY OF MINORS Balane: Anent legitimated children...the parents of the child must not be disqualified from marrying one RULE 100 another at the point of conception. RESCISSION AND REVOCATION ADOPTION So if the parents of the child, at the latter's conception, were 16 and 15 years old, the child may not be legitimated. WHAT IS ADOPTION? Art. 178. Legitimation shall take place by a subsequent valid marriage between parents. The annulment of a voidable marriage shall not affect the legitimation. Art. 179. Legitimated children shall enjoy the same rights as legitimate children. Art. 180. The effects of legitimation shall retroact to the time of the child's birth. Art. 181. The legitimation of children who died before the celebration of the marriage shall benefit their descendants. Art. 182. Legitimation may be impugned only by those who are prejudiced in their rights, within five years from the time their cause of action accrues. Baviera Cases: TAYAG V. CA [209 S 588 (1992)] - Under Art. 285 of the Civil Code, if the mother or father died during minority, an action for recognition of natural based on oral proof may be brought by the child before the expiration of four years from attainment of majority. However, under Art. 175 of the Family Code, if the action is based on oral proof, it must be filed during the lifetime of the parent. The Family Code cannot be given retroactive effect because it will impair vested rights. The right of action of the child has already vested by the filing of the case under the Civil Code, before the enactment of the Family Code . Such right can no longer be prejudiced or impaired by the enactment of a new law.

OF

A fiction created by law to give (establish) a relation of people where none previously existed. A juridical act, proceeding in rem, which creates between two persons a relationship similar to that which results of legitimate paternity and filiation. Adoption, in modern trends, is deemed not merely an act to establish the relation of paternity and filiation but one which gives the child a legitimate status. It is in this sense that adoption is now defined as a "juridical act which creates between two persons a relationship similar to that which results from legitimate paternity and filiation. Since adoption establishes the relationship of paternity and filiation, it must as a consequence involve two perspectives - from that of the adopting parent and from that of the adopted child. As used in the family law the relationship of paternity and filiation is that which exists between parents and their children. This tie or relationship may arise only either from nature, when a child is born, or by legal fictioon, as when a child is legally adopted. Paternity is the state or condition of being a father, whereas "filiation" is the descent of son or daughter, with regard to his or her father, mother, and their ancestors. Under family law, "paternity" generally includes "maternity" which is the status of being a mother. PURPOSE OF ADOPTION To provide homes, parental care and education for unfortunate, needy or orphaned children and give them the protection of society and family in the person of the adopter, and at the same time, allow childless couples or persons to experience the joys of parenthood and give them legally a child in the person of the adopted for the manifestation of their natural parental instincts

BENITEZ V. CA [229 S 468 (1994)] - The claim for Promotion of the best interest and welfare of the inheritance of a child who is not the biological or adopted child child of deceased was denied, on the ground that Articles 164, 166, 170, and 171 of the Family Code do not contemplate a situation where a child is alleged not to be the NATURE OF ADOPTION PROCEEDING child by nature or biological child of a certain couple. Rather, these articles govern a situation where the husband or his Adoption as a juridical act is a proceeding in rem. heirs denies as his own a child of his wife. PAGE 97

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Notes, Cases and Commentaries on Persons and Family Relation Proceedings in rem are court actions where the REPUBLIC V. CA [227 SCRA 401] - DLC: In cases whole world is a party, whether within or without the where the spouses are required to jointly adopt, both of them territorial jurisdiction of the forum, such that the decree made must be qualified to adopt. is binding on all persons, whether personally notified or merely through constructive notice. While James, a natural born US citizen, is not permitted to adopt under any of the exceptional cases Consequently, no court may entertain a petition for adoption enumerated in par. 3 of Art. 184, Lenita, however, can unless it has jurisdiction, not only over the subject matter of qualify pursuant to par. 3 (a) of the same Art. The problem the case and over the parties, but also, over the res - i.e., the in her case lies, however, w/ Art. 185 w/c requires H & W to personal status of both the person to be adopted and person adopt jointly, a condition that must be read along together w/ adopting. Art. 184. The spouses who are required by law to adopt jointly must both be qualified to so adopt. In this case, while Testamentary and extrajudicial adoptions practiced Lenita is qualified, James is not. Hence, they cannot adopt. in some countries are not recognized in this jurisdiction. WHO MAY ADOPT Art. 183. A person of age and in possession of full civil capacity and legal rights may adopt, provided he is in a position to support and care for his children, legitimate or illegitimate, in keeping with the means of the family. Only minors may be adopted, except in the cases where the adoption of a person of majority age is allowed in this Title In addition, the adopter must be atleast sixteen years older than the person to be adopted, unless the adopter is the parent by nature of the adopted, or is the spouse of the legitimate parent of the person to be adopted. 1. a person of age and in possession of full civil capacity and legal rights 2. in a position to support and care for his children, legitimate or illegitimate, in keeping with the means of the family 3. the adopter must be at least sixteen years older than the person to be adopted, unless the adopter is the parent by nature of the adopted, or is the spouse of the legitimate parent of the person to be adopted. (Art. 183, FC) Balane: This article gives the basic rule: the adopter need not be married and need not be childless...the adopter may still adopt so long as he is able to support his legitimate or illegitimate children. only a minor may be adopted exception: Art. 182 3rd paragraph... and the case where prior to adoption, the child had already been de facto adopted. Art. 185. Husband and wife must jointly adopt, except in the following cases: (1) When one spouse seeks to adopt his own illegitimate child; or (2) When one spouse seeks to adopt the legitimate child of the other. Art. 186. In case husband and wife jointly adopt or one spouse adopts the legitimate child of the other, joint parental authority shall be exercised by the spouses in accordance with this Code. WHO MAY NOT ADOPT Art. 184. The following persons may not adopt: (1) the guardian with respect to the ward prior to the approval of the final accounts rendered upon the termination of their guardianship relation; (2) Any person who has been convicted of a crime involving moral turpitude; (3) An alien, except: (a) A former Filipino citizen who seeks to adopt a relative by consanguinity; (b) One who seeks to adopt the legitimate child of his or her Filipino spouse; or (c) One who is married to a Filipino cvitizen and seeks to adopt jointly with his or her spouse a relative by consanguinity of the latter. Aliens not included in the foregoing exceptions may adopt Filipino children in accordance with the rules on inter-country adoption as may be provided by law. Balane: Anent the disqualification of an alien from adopting RA 8043 provides for inter-country adoption. The Implementing Rules and Regulations have already been approved (Dec.26, 1995)...even if alien is not in the Philippines, he may now adopt under ICAL Suppose A is a foreigner and B is a former Filipina...B has a nephew B can adopt X under Art. 184.3. But under Art. 185, B cannot adopt X without joining her husband (Republic v. Toledano) Art. 184 should be read together with Art. 185

REPUBLIC V. TOLEDANO [233 SCRA 9] - DLC: In case the husband and wife are required by law to adopt jointly, both of them must be qualified to and not disqualified to adopt. PAGE 98

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Notes, Cases and Commentaries on Persons and Family Relation (c) That the adopter is not disqualified by law; There can be no question that Alvin Clouse (a (d) The name, age, and residence of the person to natural born US citizen) is not qualified to adopt under any of be adopted and of his relatives or of the persons who have the exceptions found in Art. 184. In the first place, he is not him under their care; a former Filipino citizen. In the second place, Solomon is (e) The probable value and character of the estate neither his relative by consanguinity nor the legitimate child of the person to be adopted. of his spouse. Evelyn, on the other hand, appears to qualify Sec. 3, Rule 99. Consent to adoption. - There shall pursuant to par. 3 (a) of Art. 184. She was a former Filipino be filed with the petition a written consent to the adoption citzen who seeks to adopt a brother. Unfortunately, the signed by the child, if fourteen years of age or over and petition for adoption cannot be granted in her favor alone w/o not incompetent, and by the child's spouse, if any, and by violating Art. 185 w/c mandates that H and W should adopt each of its known living parents who is not insane or jointly. Art. 185 requires a joint adoption by the H & W, a hopelessly intemperate, or has not abandoned such child, condition that must be read along w/ Art. 184. or if there are no such parents by the general guardian or guardian ad litem of the child, or if the child is in the custody of an orphan asylum, children's home, or WHO MAY BE ADOPTED benevolent society or person, by the proper officer or officers of such asylum, home, or society or by such 1. only minors person; but if the child is illegitimate and has not been except in cases when the adoption of a person of majority recognized, the consent of the father to the adoption shall age is allowed by the FC not be required. If the person to be adopted is of age, only his or her consent and that of the spouse, if any, shall be WHO MAY NOT BE ADOPTED required. Art. 187. The following may not be adopted: (1) A person of legal age, unless he or she is a child by nature of the adopter or his or her spouse, or prior to the adoption, said person had been consistently considered and treated by the adopter as his or her own child during minority. (2) An alien with whose government the Republic of the Philippines has no diplomatic relations; and (3) A person who has already been adopted unless such adoption has been previously revoked or rescinded. Balane: Suppose a child has been previously adopted, but is to be adopted now by the spouse of the previous adopter. Applying Art. 187.3...the spouse may not adopt There is a need to reconcile the apparent conflict between Art. 185 and Art. 187.3 WHERE FILED Sec. 1, Rule 99. Venue. A person desiring to adopt another or have the custody of a minor shall present his petition to the CFI of the province, or the municipal or justice of the peace court of the city or municipality in which he resides. In the City of Manila, the proceedings shall be instituted in the JDRC. PROCEDURE Sec. 4, Rule 99. Order for hearing. - If the petition and consent filed are sufficient in form and substance, the court, by an order reciting the purpose of the petition, shall fix a date and place for the hearing thereof, which date shall not be more than six (6) months after the entry of the order, and shall direct that a copy of the order be published before the hearing at least once a week for three (3) successive weeks in some newspaper of general circulation published in the province, as the court shall deem best. Art. 188. The written consent of the following to the adoption shall be necessary: (1) The person to be adopted, if ten years of age or over; (2) The parents by nature of the child, the legal guardian, or the proper governmental instrumentality; (3) The legitimate and adopted childrem, ten years of age or over, of the adopting parent or parents; (4) The illegitimate children, ten years of age or over, of the adopting parent, if living with said parent and the latter's spouse, if any; and (5) The spouse, if any, of the person adopting or to be adopted. Balane: 188.2 will not apply to the father of an illegitimate child...who has no parental authority over the child.

Sec. 5, Rule 99. Hearing and judgment. - Upon satisfactory proof in open court on the date fixed in the order that such order has been published as directed, that Sec. 2, Rule 99. Contents of petition. The petition the allegations of the petition are true, and that it is a for adoption shall contain the same allegations required in proper case for adoption and the petitioner or petitioners a petition for guardianship, to wit: are able to bring up and educate the child properly, the (a) The jurisdictional facts; court shall adjudge that thenceforth the child is freed (b) The qualifications of the adopter; from all legal obligations of obedience and maintenance PAGE 99

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Notes, Cases and Commentaries on Persons and Family Relation with respect to its natural parents, except the mother the best interest of the child, the court may make an order when the child is adopted by her husband, and is, to all taking it from its parents, if living; and committing it to legal intents and purposes, the child of the petitioner or any suitable orphan asylum, children's home, or benvolent petitioners, and that its surname is changed to that of the society or person to ultimately placed, by adoption or petitioner or petitioners. otherwise, in a home found for it by such asylum, chilThe adopted person or child shall thereupon dren's home, society, or person. become the legal heir of his parents by adoption and shall also remain the legal heir of his parents. Art. 162, PD 603. Adoption of Dependent or In case of death of the adopted person or child, Abandoned or Neglected Child. - Upon the filing of an his parents and relatives by nature, and not by adoption, application by any person to adopt a dependent, shall be his legal heir. abandoned or neglected child in the custody of any institution or individual mentioned in Article 156, it shall Sec. 6, Rule 99. Proceedings as to child whose be the duty of the provincial or city fiscal, any recognized parents are separated. Appeal. - When husband and wife legal association, or any appointed de officio counsel upon are divorced or living separately and apart from each being informed of such fact, to represent the DSWD in the other, and the question as to the care, custody, and control proceedings. The costs of such proceedings shall be de of a child or children of their marriage is brought before a officio. CFI by petition or as an incident to any other proceeding, the court, upon hearing the testimony as may be pertinent, dependent child - one who is without a parent, guardian or shall award the care, custody, and control of each such custodian; or one whose parents, guardian or other child as will be for its best interest, permitting the child to custodian for good cause desires to be relieved of his care choose which parent it prefers to live with if it be over ten and custody; and is dependent upon the public for years of age, unless the parent so chosen be unfit to take support. charge of the child by reason of moral depravity, habitual drunkenness, incapacity, or poverty. abandoned child - one who has no proper parental care or If, upon such hearing, it appears that both guardianship, or whose parents or guardians have parents are improper persons to have the care, custody, deserted him for a period of at least six continuous and control of the child, the court may either designate months. the paternal or maternal grandparent of the child, or his oldest brother or sister, or some reputable and discreet person to take charge of such child, or commit it to any Neglected child - one whose basic needs have been suitable asylum, children's home, or benevolent society. deliberately unattended or inadequately attended. Neglect The court may in conformity with the provisions may occur in two ways: of the Civil Code order either or both parents to support or help support said child, irrespective of who may be its a) physical neglect - when the child is malnourished, ill clad custodian, and may make any order that is just and and without proper shelter. reasonable permitting the parent who is deprived of its A child is unattended when left by himself without care and custody to visit the child or have temporary provisions for his needs and/or without proper supervision. custody thereof. b) emotional neglect - when children are maltreated, raped or Either parent may appeal from an order made in seduced; when children are exploited, overworked or made to accordance with the provisions of this section. work under conditions not conducive to good health; or are No child under five (5) years of age shall be made to beg in the streets or public places, or when children separated from its mother, unless the court finds there are are in moral danger, or exposed to gambling, prostitution and compelling reasons therefor. (as amended by PD 603) other vices. Sec. 7, Rule 99. Proceedings as to vagrant or Art. 156, PD 603. Legal Custody. - When abused child. - When the parents of any minor child are any child shall have been committed in dead or by reason of long absence or legal or physical accordance with the preceding article and such disability have abandoned it, or cannot support it through child shall have been accepted by the DSWD or vagrancy, negligence, or misconduct, or neglect or refuse any duly licensed child placement agency or to support it, or treat it with excessive harshness or give it individual, the rights of his natural parents, corrupting orders, counsels, or examples, or cause or allow guardian, or other custodian to exercise parental it to engage in begging, or to commit offenses against the authority over him shall cease. law, the proper CFI, upon petition filed by some reputable Such agency or individual shall be resident of the province setting forth the facts, may issue entitled to the custody and control of such child an order requiring such parents to show cause, or, if the during his minority, and shall have authority to parents are dead or cannot be found, requiring the fiscal care for, educate, train and place him out of the province to show cause, at a time and place fixed in temporarily or for custody and care in a duly the order, why the child should not be taken from its licensed child placement agency. parents, if living; and if upon the hearing it appears that the allegations of the petition are true, and that it is for PAGE 100

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Notes, Cases and Commentaries on Persons and Family Relation Such agency or individual may intervene ensure the child's adjustment to a new family life in adoption proceedings in such manner as shall and culture, save in those cases provided for in best inure to the child's welfare. Article 27* hereof (As amended by EO 91, Dec. 17, 1986) Sec. 8, Rule 99. Service of judgment. Final orders or judgments under this rule shall be * Art. 27-31 repealed by Art. 254 of EO 209, as amended, the served by the clerk upon the civil registrar of the Family Code city or municipality wherein the court issuing the same is situated. Art. 36. Decree of Adoption. - If, after considering the report of the DSWD or duly licensed child placement PD 603 THE CHILD AND YOUTH WELFARE agency and the evidence submitted before it, CODE the court is satisfied that the petitioner is qualified to maintain, care for, and educate the child, that the trial custody period has been completed, and that the Art. 32. Hurried decisions. - In all best interests of the child will be promoted by the proceedings for adoption, steps should be taken adoption, a decree of adoption shall be entered, which by the court to prevent the natural parents from shall be effective as of the date of the original petition was making hurried decisions caused by strain or filed. anxiety to give up the child, and to ascertain, that The decree shall state the name by which the all measures to strenghten the family have been child is henceforth to be known. exhausted and that any prolonged stay of the child in his own home will be inimical to his Art. 37. Civil Registry Record. - The adoption welfare and interest. shall be recorded in the local civil register and shall be annotated on the record of birth, and the same shall Art. 33. Case Study. - No petition for entitle the adopted person to the issuance of an amended adoption shall be granted unless the DSWD has certificate of birth. made a case study of the child to be adopted, his natural parents as well as the prospective adopting parents, and has submitted its report Art. 38. Confidential Nature of Proceedings and and recommendations on the matter to the court Records. - All hearings in adoption cases shall be hearing such petition. confidential and shall not be open to the public. The DSWD shall intervene on behalf of All records, books and papers relating to the the child if it finds, after such case study, that the adoption cases in the files of the court, of the DSWD, and petition should be denied. of any other agency or institution participating in the adoption proceedings, shall be kept strictly confidential. Subject to the provisions of Article 7, in any case Art. 34. Procedure. - The proceedings for in which information from such records, books and papers adoption shall be governed by the Rules of Court is needed, the person or agency requesting the release of in so far as they are not in conflict with this the information may file a petition to the court which Chapter. entered the decree of adoption for its release. If the court finds that the disclosure of the information is necessary for purposes connected with or Art. 35. Trial Custody. - No petition for arising out of the adoption and will be for the best adoption shall be finally granted unless and until interests of the child, the court may permit the necessary the adopting parents are given by the court a information to be released, restricting the purposes for supervised trial custody period of at least six which it may be used. months to assess their adjustment and emotional readiness for the legal union. Arts 39-42. (Repealed by Art. 254 of EO 209, as amended, During the period of trial custody, the Family Code) parental authority shall be vested in the adopting parents. The court may, upon its own motion or on EFFECTS OF ADOPTION motion of the petitioner, reduce or dispense with the trial custody period if it finds that it is to the Art. 189. Adoption shall have the following best interest of the child. effects: In such case, the court shall state its (1) For civil purposes, the adopted child shall be reasons for reducing or dispensing with the said deemed to be a legitimate child of the adopters and both period. shall acquire the reciprocal rights and obligations arising An alien not permanently residing in the from the relationship of parent and child, including the Philippines adopting a Filipino child shall right of the adopted to use the surname of the adopters; complete the supervised trial custody period to PAGE 101

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Notes, Cases and Commentaries on Persons and Family Relation (2) The parental authority of the parents by (6) When only collateral blood relatives of the nature over the adopted shall terminate and be vested in adopted survive, then the ordinary rules of legal or the adopters, except that if the adopter is the spouse of the intestate succession shall apply. parent by nature of the adopted, parental authority over the adopted shall be exercised jointly by both spouses; Balane: this provision is defectively drafted. It only (3) The adopted shall remain an intestate heir of gives rules with regard to intestate succession...it does his parents and other blood relatives. not give rules on legitimes...who are the adopted's compulsory heirs and how much are their legitimes. LAZATIN V. CAMPOS [92 SCRA 440] Adoption is a juridical act, a proceeding in rem, which creates between two persons a relationship similar to that which results from legitimate paternity and filiation. Only an adoption made through the court, or in pursuance with the procedure laid down under Rule 99, RC is valid in this jurisdiction. It is not of natural law at all, but is wholly and entirely artificial. To establish the relation, the statutory requirements must be carried out, otherwise, the adoption is an absolute nullity. The fact of adoption is never presumed, but must be affirmatively proved by the person claiming its existence. On the contrary, the absence of a record of adoption raises the presumption of its nonexistence. Secondary evidence is admissible only after establishing the prior existence of the instrument lost or destroyed. Declarations of the deceased, made in his lifetime, of any intention to adopt is not sufficient to establish the fact of adoption. (Note: Records of a court order granting adoption even if not registered with the civil registry, proves such adoption, and cannot be collaterally attacked in an intestate proceeding.) Art. 190. Legal or intestate succession to the estate of the adopted shall be governed by the following rules: (1) Legitimate and illegitimate children and descendants and the surviving spouse of the adopted shall inherit from the adopted, in accordance with the ordinary rules of legal or intestate succession; (2) When the parent, legitimate or illegitimate, or the legitimate ascendants of the adopted concur with the adopters, they shall divide the entire estate, one-half to be inherited by the parents or ascendants and the other half, by the adopters; (3) When the surviving spouse or the illegitimate children of the adopted concur with the adopters, they shall divide the entire estate in equal shares, one-half to be inherited by the spouse or the illegitimate children of the adopted and the other half, by the adopters. (4) When the adopters concur with the illegitimate children and the surviving spouse of the adopted, they shall divide the entire estate in equal shares, one-third to be inherited by the illegitimate children, onethird by the surviving spouse, and one-third by the adopters; (5) When only the adopters survive, they shall inherit the entire estate; and RESCISSION AND REVOCATION OF ADOPTION WHO MAY FILE PETITION FOR RESCISSION OR REVOCATION? - A minor or other incapacitated person, through a guardian or guardian ad litem grounds: for the same causes that authorize deprivation of parental authority - The adopter grounds: (a) If the adopted person has attempted against the life of the adopter; (b) When the adopted minor has abandoned the home of the adopter for more than three (3) years; (c) When by other acts the adopted person has repudiated the adoption. (Sec. 1, Rule 100) Art. 191. If the adopted is a minor or otherwise incapacitated, the adoption may be judicially rescinded upon petition of any person authorized by the court or proper government instrumentality acting on his behalf, on the same grounds prescribed for loss or suspension of parental authority. If the adopted is at least eighteen years of age, he may petition for judicial rescission of the adoption on the same grounds prescribed for disinheriting an ascendant. Art. 192. The adopters may petition the court for the judicial rescission of the adoption in any of the following cases: (1) If the adopted has committed any act constituting a ground for disinheriting a descendant; or (2) When the adopted has abandoned the home of the adopters during minority for at least one year, or, by some other acts, has definitely repudiated the adoption. PROCEDURE Sec. 2, Rule 100. Order to answer. - The court in which the petition is filed shall issue an order requiring the adverse party to answer the petition within fifteen (15) days from receipt of a copy thereof.

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Notes, Cases and Commentaries on Persons and Family Relation The order and copy of the petition shall be served or vocation, even beyond the age of majority. on the adverse party in such manner as the court may Transportation shall include expenses in going to and from direct. school, or to and from place of work. Sec. 3, Rule 99. Judgment. - If upon trial, on the day set therefor, the court finds that the allegations of the petition are true, it shall render judgment ordering the rescisson or revocation of the adoption, with or without costs, as justice requires. Sec. 4, Rule 100. Service of judgment. - A certified copy of the judgment rendered in accordance with the next preceding section shall be served upon the civil registrar concerned, within thiry (30) days from rendition thereof, who shall forthwith enter the action taken by the court in the register. Sec. 5, Rule 100. Time within which to file petition.- A minor or other incapacitated person must file the petition for rescission or revocation of adoption within the five (5) years following his majority, or if he was incompetent at the time of the adoption, within five (5) years following the recovery from such incompetency. The adopter must also file the petition to set aside the adoption within five (5) years from the time the cause or causes giving rise to the rescission or revocation of the same took place. EFFECTS Art. 193. If the adopted minor has not reached the age of majority at the time of the judicial rescission of the adoption, the court in the same proceeding shall reinstate the parental authority of the parents by nature, unless the latter are disqualified or incapacitated, in which case the court shall appoint a guardian over the person and property of the minor. If the adopted person is physically or mentally handicapped, the court shall appoint in the same proceeding a guardian over his person or property or both. Judicial rescission of the adoption shall extinguish all reciprocal rights and obligations between the adopters and the adopted arising from the relationship of parent and child. The adopted shall likewise lose the right to use the surnames of the adopters and shall resume his or her surname prior to the adoption. The court shall accordingly order the amendment of the records in the proper registries. XI. Support Art. 195. Subject to the provisions of the succeeding articles, the following are obliged to support each other to the whole extent set forth in the preceding article: (1) The spouses; (2) Legitimate ascendants and descendants; (3) Parents and their legitimate children and the legitimate and illegitimate children of the latter; (4) Parents and their illegitimate children and the legitimate and illegitimate children of the latter; and (5) Legitimate brothers and sisters, whether of the full or half-blood. Art. 196. Brothers and sisters not legitimately related, whether of the full or half-blood, are likewise bound to support each other to the full extent set forth in Article 194, except only 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. Art. 197. For the support of legitimate ascendants, descendants, whether legitimate or illegitimate, and brothers and sisters, whether legitimately or illegitimately related, only the separate property of the person obliged to give support shall be answerable provided that in case the obligor has no separate property, the absolute community or the conjugal partnership, if financially capable, shall advance the support, which shall be deducted from the share of the spouse obliged upon the liquidation of the absolute community or of the conjugal partnership. Balane: Support of a legitimate child should come from community property...this article speaks of legitimate descendants other than legitimate children Art. 198. During the proceedings for legal separation or for annulment of marriage, and for declaration of nullity of marriage, the spouses and their children shall be supported from the properties of the absolute community or the conjugal partnership. After final judgment granting the petition the obligation of mutual support between the spouses ceases. However, in case of legal separation, the court may order that the guilty spouse shall give support to the innocent one, specifying the terms of such order.

LERMA V. CA [61 SCRA 440] - Adultery is a Art. 194. Support comprises everything good defense against a petition for support. TA indispensable for sustenance, dwelling, clothing, medical petition in bad faith, such as that filed by one who is attendance, education and transportation, in keeping with himself or herself guilty of an act which constitutes the the financial capacity of the family. ground for legal separation, can't be considered as The education of the person entitled to be within the intendment of the law granting separate supported re ferred to in the preceding paragraph shall support. Under Art. 303, the obligation to give include his schooling or training for some profession, trade support shall cease when the recipient, be he a forced PAGE 103

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Notes, Cases and Commentaries on Persons and Family Relation heir or not, has committed some act which gives rise to disinheritance; and under Art. 291, one of the Art. 201. The amount of support, in the cases causes for disinheriting a spouse is when the spouse referred to in Articles 195 to 196, shall be in proportion to has given cause for legal separation. The right to the resources or means of the giver and to the necessities separate support or maintenance, even from the of the recipient. conjugal partnership property presupposes the existence of a justifiable cause for the spouse claiming Art. 195. Subject to the such right to live separately. provisions of the succeeding articles, the following are obliged to support each other to the whole extent set forth in the REYES V. INES-LUCIANO [88 SCRA 803] preceding article: While it is true that the adultery of the wife is a (1) The spouses; defense in an action for support, the alleged adultery (2) Legitimate ascendants and must be established by competent evidence. Mere descendants; allegation that the wife has committed adultery will (3) Parents and their not bar her from the right to receive support pendente legitimate children and the legitimate lite. During the hearing of the application for support and illegitimate children of the latter; pendente lite, adultery must be properly proved to (4) Parents and their defeat the action for support. illegitimate children and the legitimate (Note: But if both spouses are guilty of infidelity or if and illegitimate children of the latter; there has been consent or condonation of the acts and constituting infidelity, the right to support remains.) (5) Legitimate brothers and sisters, whether of the full or half-blood. Art. 199. Whenever two or more persons are obliged to give support, the liability shall devolve upon the following persons in the order herein provided: (1) The spouse; (2) The descendants in the nearest degree; (3) The ascendants in the nearest degree; (4) The brothers and sisters. Balane: It is important to remember the order of preference given in this article. Art. 200. When the obligation to give support falls upon two or more persons, the payment of the same shall be divided between them in proportion to the resources of each. However, in case of urgent need and by special circumstances, the judge may order only one of them to furnish the support provisionally, without prejudice to his right to claim from the other obligors the share due from them. When two or more recipients at the same time claim support from one and the same person legally obliged to give it, should the latter not have sufficient means to satisfy all claims, the order established in the preceding article shall be followed, unless the concurrent obligees should be the spouse and a child subject to parental authority, in which case the child shall be preferred. Balane: Art. 200 establishes the order for recipients of support Suppose: X is being asked for support by different people he should: 1. satisfy all if possible 2. if he does not have enough to satisfy all, then he should go by the order under Art. 200 Art. 196. Brothers and sisters not legitimately related, whether of the full or half-blood, are likewise bound to support each other to the full extent set forth in Article 194, except only 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. Art. 202. Support in the cases referred to in the preceding article shall be reduced or increased proportionately, according to the reduction or increase of the necessities of the recipient and the resources or means of the person obliged to furnish the same. Art. 203. 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 judicial or extra-judicial demand. Support pendente lite (See Rule 61) may be claimed in accordance with the Rules of Court. Payment shall be made within the first five days of each corresponding month. When the recipient dies, his heirs shall not be obliged to return what he has received in advance. Balane: There are two basic rules with regard to support: (1) demandable when needed and (2) payable when demanded Demand for support may either be judicial or extrajudicial Suppose: X needed support from his father Y from 1 Jan 1996 PAGE 104

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Notes, Cases and Commentaries on Persons and Family Relation But X only calls his father on 1 April 1996 Furthermore, contractual support shall be subject On 1 June 1996, he files a suit against the father for to adjustment whenever modification is necessary due to support changes in circumstanced manifestly beyond the The Court orders support to be given contemplation of the parties. The entitlement for support shall retroact to 1 April 1996, date when extra-judicial demand was made Suppose no extra-judicial demand was made...then the reckoning date shall be the date when the suit is filed...judicial demand. Suppose demand is made but subsequently the claimant is able to support himself...then he is entitled to support during such time that he was unable to support himself...even if payment for such support is made after he had already recovered and been able to support himself. Balane: support in arrears...being an ordinary civil action, may be renounced...however, the right to receive support may not be renounced

RULES OF COURT RULE 61 SUPPORT PENDENTE LITE Rule 61, Sec. 1. Application. - The plaintiff, at the commencement of the proper action, or at any time afterwards but prior to final judgment, may file an application for support pendente lite, stating the grounds for the claim and the financial conditions of both parties, and shall be accompanied by affidavits, depositions or other authentic documents in support thereof. Rule 61, Sec. 2. Notice. - Notice of the application shall be served upon the adverse party who shall have three (3) days to answer, unless a different period of time is fixed by the court. Rule 61, Sec. 3. Answer. - The answer shall be in writing and accompanied by affidavits, depositions or other authentic documents supporting the same. Rule 61, Sec. 4. Hearing. - After the answer is filed, or after the expiration of the time for its filing, a day will be set for hearing. The facts in issue shall be proved in the same manner as is provided in connection with motions. Rule 61, Sec. 5, Order. - The court shall determine provisionally the pertinent facts, and shall render such order as equity and justice may require, having due regard to the necessities of the applicant, the means of the adverse party, the probable outcome of the case, and such other circumstances as may aid in the proper elucidation of the question involved. If the application is granted, the court shall fix the amount of money to be provisionally paid, and the terms of payment. If the application is denied, the trial of the principal case on its merits shall be held as early as possible. Rule 61, Sec. 5. Enforcement of order. - If defendant fails to comply with an order granting support pendente lite, he must be ordered to show cause why he should not be punished for contempt. Should the defendant appear to have means to pay support and refuses to pay, either an order of execution may be issued or a penalty for contempt may be imposed, or both.

Art. 204. The person obliged to give support shall have the option to fulfill the obligation either by paying the allowance fixed, or by receiving and maintaining in the family dwelling the person who has a right to receive support. The latter alternative cannot be availed of in case there is a moral or legal obstacle thereto. Art. 205. The right to receive support under this Title as well as any money or property obtained as such support shall not be levied upon an attachment or execution. Art. 206. 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 he gave it without intention of being reimbursed. Art. 207. When the person obliged to support another unjustly refuses or fails to give support when urgently needed by the latter, any third person may furnish support to the needy individual, with right of reimbursement from the person obliged to give support. This Article shall apply particularly when the father or mother of a child under the age of majority unjustly refuses to support or fails to give support to the child when urgently needed.

Art. 208. In case of contractual support or that given by will, the excess in amount beyond that required for legal support shall be subject to levy on attachment or execution. XII. Parental Authority PAGE 105

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Notes, Cases and Commentaries on Persons and Family Relation Parental authority and responsibility are General Provisions inalienable and may not be transferred or renounced except in cases authorized by law. The right attached to parental Art. 209. Pursuant to the natural right and duty authority, being purely personal, the law allows a waiver of of parents over the person and property of their parental authority only in cases of adoption, guardianship and unemancipated children, parental authority and surrender to a children's home or an orphan institution. responsibility shall include the caring for and rearing of When a parent entrusts the custody of a minor to another, such children for civic consciousness and efficiency and such as a friend or godfather, even in a document, what is the development of their moral, mental and physical given is merely temporary custody and it does not constitute a character and well-being. renunciation of parental authority. Even if a definite renunciation is manifested, the law still disallows the same. MEDINA V. MAKABILI [27 SCRA 502] - While the law recognizes the right of a parent to the custody of his/her The father and mother, being the natural guardians child, courts must not lose sight of the basis principle that in of unemancipated children, are duty-bound and entitled to all question on the care, custody, education and property of keep them in their custody and company. xxx the children, the latter's welfare shall be paramount, and that xxx for compelling reasons, even a child uinder seven may be Only in cases of the parent's death, absence or ordered separated from the mother. unsuitability may substitute parental authority be exercised Patria potestas has been transformed from "jus vitae by the surviving grandparent. ac necis (the right of life and death) of the Roman Law, under which the offspring was virtually a chattel of his parents into a radically different institution. The obligational aspect of Art. 211. The father and the mother shall jointly parents to rear and care for their children is now supreme. exercise parental authority over the persons of their The right of parents to the company and custody of their common children. In case of disagreement, the father's children is but ancillary to the proper discharge of parental decision shall prevail, unless there is a judicial order to duties to provide the children with adequate support, the contrary. education, moral, intellectual and civic training and Children shall always observe respect and development. reverence toward their parents and are obliged to obey The best interest of the minor can override the right of them as long as the children are under parental authority. parents to the custody of their children the parent/s is/are proved to be remiss in these sacred duties. Art. 212. In case of absence or death of either parent, the parent present shall continue exercising parental authority. The remarriage of the surviving UNSON V. NAVARRO [101 SCRA 183] - Mother of child parent shall not affect the parental authority over is having an affair with brother-in-law. With this premise in children, unless the court appoints another person to be view, it is in the best interest of the child to be freed from the the guardian of the person or property of the children. obviously unwholesome, not to say immoral influence that the mother has plced herself. The situation might affect the Art. 213. In case of separation of the parents, moral and social outlook of the child who is in her formative parental authority shall be exercised by the parent years and most impressionable stage in her life. designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent Art. 210. Parental authority and responsibility chosen is unfit. may not be renounced or transferred except in the cases No child under seven years of age shall be authorized by law. separated from the mother, unless the court finds compelling reasons to order otherwise. SANTOS V. CA [242 SCRA 407] - The right of custody accorded to parents springs from the exercise of parental authority . Parental authority or patria potestas in Roman Law is the juridical institution whereby parents rightfully assume control and protection of their unemancipated children to the extent required by the latter's needs. It is a mass of rights and obligations w/c the law grants to parents for the purpose of the children's physical preservation and dev't, as well as the cultivation of their intellect and the education of their hearts and senses. As regardas parental authority, "there is no power, but a task; no complex of rights, but a sum of duties; no sovereignty but a sacred trust for the welfare of the minor. HONTIVEROS V. IAC [132 SCRA 745] SC relates Art.213 with Art.363 (CC) and Art. 17 (PD 603, CYWC).

A363: In all questions on the care, custody, education and property of children, the latter's welfare shall be paramount. No mother shall be separated from her child under 7 years of age, unless the court finds compelling reasons for such measures. A17: In case of separation of his(her) parents, no child under five years of age shall be separated from his (her) mother, unless the ct. finds compelling reasons to do so.(PD 603, dated Dec. 10,1974) PAGE 106

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Notes, Cases and Commentaries on Persons and Family Relation Art.213 (FC): In case of separation of the parents, parental Art. 218. The school, its administrators and authority shall be exercised by the parent designated by the teachers, or the individual, entity or institution engaged in court. The court shall take into account all relevant child care shall have special parental authority and considerations, especially the choice of the child over seven responsibility over the minor child while under their years of age, unless the parent chosen is unfit. supervision, instruction or custody. Authority and responsibility shall apply to all authorized activities whether inside or outside the ESPIRITU V. CA [242 SCRA 362] - Whether a child is premises of the school, entity or institution. under or over seven years of age, the paramount criterion must always be the child's interest. Discretion is always given to the court to decide who can best assure the welfare of the child, and award the custody on the basis of that EXCONDE V. CAPUNO [101 P 843] - Capuno, a consideration. student and a Boy Scout, attended a Rizal Day parade, drove a jeep recklessly resulting in the death of two passengers. Father was held solidarily liable for Art. 214. In case of death, absence or unsuitability damages. SC, in an obiter, exculpated the school (not of the parents, substitute parental authority shall be a party to the case) on the ground that it was not a exercised by the surviving grandparent. In case several school of arts and trades. Justice JBL Reyes, with survive, the one designated by the court, taking into whom Padilla concurred, dissented arguing that it was account the same consideration mentioned in the the school authorities who should be held liable. preceding article, shall exercise the authority. Liability under this rule, he said, was imposed on (1) teachers in general; and 2)heads of schools of arts and Art. 215. No descendant shall be compelled, in a trades in particular. The modifying clause "of criminal case to testify against his parents and establishment of arts and trades should apply only to grandparents, except when such testimony is "heads" and not to "teachers". indispensable in a crime against the descendant or by one parent against the other. MERCADO V. CA [109 P 414] (elaborates on the Exconde decision) Substitute and Special Parental Authority A student cut a classmate with a razor blade. Parents of victim sued the culprit's parents for damages. SC Art. 216. In default of parents or a judicially held in an obiter again (school not a party again) that appointed guardian, the following persons shall exercise the school was not liable; it's not an establishment of substitute parental authority over the child in the order arts and trades. Custody requirement had not been indicated: proved as this "contemplates a situation where the (1) The surviving grandparent, as provided in student lives and boards with the teacher, such that the Art. 214; control, direction and influence on the pupil supersedes those of the parents. Art. 214. In case of death, absence or unsuitability of the parents, PALISOC V. BRILLANTES [41 SCRA 548] substitute parental authority shall be (supersedes obiter in Exconde and Mercado) A 16 year exercised by the surviving grandparent. old student killed by classmate with fist blows in the In case several survive, the one school laboratory. Although wrongdoer was already of designated by the court, taking into age and was not boarding with the school, head and account the same consideration teacher were held solidarily liable with him. The mentioned in the preceding article, shall phrase "so long as (the students) remain in their exercise the authority. custody" means the protective and supervisory custody that the school and its heads exercise over the pupils (2) The oldest brother or sister, over twenty one and students for as long as they are at attendance in years of age, unless fit or disqualified; and the school, including recess time. There is nothing in (3) The child's actual custodian, over twenty one the law that requires that for such liability to attach, years of age, unless unfit or disqualified. the pupil or student who commits the tortious act must Whenever the appointment of a judicial guardian live and board in the school as erroneously held by the over the property of the child becomes necessary, the lower court, and the dicta in Mercado (as well as in same order of preference shall be observed. Exconde on w/c it relied) w/c must now be deemed to have been set aside. Art. 217. In case of foundlings, abandoned, neglected or abused children and other children similarly Note: (By JBL) Even students already of age were situated, parental authority shall be entrusted in summary covered by the provision since they were equally in the judicial proceedings to heads of children's homed, custody of the school and subject to its discipline. orphanages and similar institutions duly accredited by the proper government agency. PAGE 107

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Notes, Cases and Commentaries on Persons and Family Relation AMADORA V. CA [160 SCRA 315] - Amadora's son was SALVOSA V. IAC [166 SCRA 274] - Under the shot to death by Daffon, a classmate at school auditorium. penultimate par. of Art. 2180, teachers or heads of The son was in school to submit physics project. The school establishments of arts and trades are liable for "damages contends that the semester had already ended. caused by their pupils and students or apprentices, so long as they remain in their custody." The rationale of such liability HELD: It is immaterial whether the semester has already is that so long as the student remains in the custody of a ended for students were there for a legitimate purpose. He teacher, the latter "stands, to a certain exten, in loco parentis was still in the custody of the school authorities. Even the (as to the student) and (is) called upon to exercise reasonable mere savoring of the company of his friends in the school supervision over the conduct of the (student.) Likewise, "the premises is a legitimate purpose w/c would also bring him in phrase used in (Art. 2180)-- so long as the (students) remain the custody of the school. The school principal and dean are in their custody' means that the protective and supervisory not liable bec. not teachers-in-charge, but are merely custody that the school and its heads and teachers exercise exercising general authority, not direct control and influence. over the pupils and students for as long as they are at But even the teacher-in-charge is not liable bec. there is no attendance in the school , including recess time. showing that the teacher was negligent in enforcing discipline upon Daffon nor had he waived observance of school rules and regulations. His absence when the tragedy Art. 219. Those given the authority and happened cannot be considered against him bec. he was not responsibility under the preceding Article shall be supposed or required to report to school on that day. So who principally and solidarily liable for damages caused by the is liable here? It's probably the dean of the boys. He had acts or omissions of the unemancipated minor. The earlier confiscated an unlicensed gun from one of the students parents, judicial guardians or the persons exercising and returned it to the latter w/o taking disciplinary action or substitute parental authority over said minor shall be reporting the matter to higher authorities. But while he was subsidiarily liable. clearly negligent, it does not necessarily link him to the The respective liabilities of those referred to in shooting since it was not shown that the gun was the one used the preceding paragraph shall not apply if it is proved to kill petitioner's son. Who is really liable here? Nobody, that they exercised the proper diligence required under since none of them was found to have been charged w/ the the particular circumstances. custody of the offending student, or has been remiss in the All other cases not covered by this and the discharge of his duties. While the court deeply sympathizes preceding articles shall be governed by the provisions of w/ the petitioners, the court cannot extend material relief as a the Civil Code on quasi-delicts. balm to their grief. Balane: Art. 218 and 219 Five (5) points to remember: PASCO V. CFI [160 SCRA 784] - Art. 2180, NCC w/c refers to liability of teachers or heads of establishments of arts 1. the rules are not limited to schools of arts and trades for damages caused by students who are in their and trade...now "all schools" custody, does not apply to the school or the university itself or 2. authority and responsibility applies to to educational institutions which are not schools of arts and activities inside and outside...provided the activity is trades. The provision concerned speaks only of "teachers or an authorized one heads." 3. the liability of the school administrators and/or teachers is solidary and primary...the liability of the parents is subsidiary YLARDE V. AQUINO [163 SCRA 697] - As regards the 4. negligence is presumed...the burden is on principal, We hold that he cannot be made responsible for the the school/teacher to prove diligence death of child Ylarde, he being the head of an academic 5. scope of liability of school...extends only to school and not a school of arts and trades. xxx Under Art. damage caused by the child in the course of an 2180, it is only the teacher and not the head of an academic authorized school activity. school who should be answerable for torts committed by their students. This Court went on to say that in a school of arts Suppose the injuries were inflicted on the and trades, it is only the head of the school who can be held student by persons other than fellow students...then do liable. not apply 219 nor 2180NCC Where the school is academic rather than technical The school is liable in such a case base on culpa or vocational in nature, responsibility for the tort committed contractual (PSBA v. CA)...school is liable for injury by the student will attach to the teacher in charge of such caused by elements coming from outside of the school student following the first par. of the provision. This is the gen. rule. In the case of establishments of arts and trades, it Liability for injuries caused by students: is the head thereof, and only he, who shall be held liable as an exception to the gen. rule. In other words, teachers in a. below 18 (RA 6809) general shall be liable for the acts of their students except where the school is technical in nature, in w/c case it is the 1. school admi/teachers are principally and solidarily head thereof who shall be answerable. liable negligence is prima facie presumed PAGE 108

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Notes, Cases and Commentaries on Persons and Family Relation 2. parents/guardian is subsidiarily liable Art. 221. Parents and other persons exercising b. 18 and above parental authority shall be civilly liable for the injuries and damages caused by the acts or omissions of their (Art 2180 NCC continues to apply) unemancipated children living in their company and under their parental authority subject to the appropriate 1. applies to academic and non-academic institutions defenses provided by law. a. academic institutions: liability attaches to teacher b. non-academic institutions: liability attaches to head of establishment. Effect of Parental Authority Upon the Persons of the Children Art. 220. The parents and those exercising parental authority shall have with respect to their unemancipated children or wars the following rights and duties: (1) To keep them in their company, to support, educate and instruct them by right precept and good example, and to provide for their upbringing in keeping with their means; (2) To give them love and affection, advice and counsel, companionship and understanding; (3) To provide them with moral and spiritual guidance, inculcate in them honesty, integrity, selfdiscipline, self-reliance, industry and thrift, stimulate their interest in civic affairs, and inspire in them compliance with the duties of citizenship; (4) To enhance, protect, preserve and maintain their physical and mental health at all times; (5) To furnish them with good and wholesome educational materials, supervise their activities, recreation and association with others, protect them from bad company, and prevent them from acquiring habits detrimental to their health, studies and morals; (6) To represent them in all matters affecting their interests; (7) To demand from them respect and obedience; (8) To impose discipline on them as may be required under the circumstances; and (9) To perform such other duties as are imposed by law upon parents and guardians. Art. 222. The courts may appoint a guardian of the child's property, or a guardian ad litem when the best interests of the child so require. Art. 223. The parents or, in their absence or incapacity, the individual, entity or institution exercising parental authority, may petition the proper court of the place where the child resides, for an order providing for disciplinary measures over the child. The child shall be entitled to the assistance of counsel, either of his choice or appointed by the court, and a summary hearing shall be conducted wherein the petitioner and the child shall be heard. However, if in the same proceeding the court finds the petitioner at fault, irrespective of the merits of the petition, or when the circumstances so warrant, the court may also order the deprivation or suspension of parental authority or adopt such other measures as it may deem just and proper. Art. 224. The measures referred to in the preceding article may include the commitment of the child for not more than thirty days in entities or institutions engaged in child care or in children's homes duly accredited by the proper government agency. The parent exercising parental authority shall not interfere with the care of the child whenever committed but shall provide for his support. Upon proper petition or at its own instance, the court may terminate the commitment of the child whenever just and proper. Effect of Parental Authority Upon the Property of the Children

Art. 225. The father and the mother shall, jointly exercise legal guardianship over the property of their unemacipated common child without the necessity of a court appointment. In case of disagreement, the father's LUNA V. IAC [137 SCRA 7] - The manifestation of the decision shall prevail, unless there is a judicial order to child Shirley that she would kill herself or run away from the contrary. home if she should be taken away from the petitioners Where the market value of the property or the (grandparents) and forced to live w/ her natural parents is a annual income of the child exceeds P50,000, the parent circumstance that would make the execution of the jugment concerned shall be required to furnish a bond in such in the special proc. inequitable, unfair, unjust, if not illegal. amount as the court may determine, but not less than 10% The threat may be proven empty, but Shirley has a right to a of the value of the property or annual income, to wholesome family life that will provide her w/ love, care and guarantee the performance of the obligations prescribed understanding, guidance and couselling, and moral and for general guardians. material security. But what if the threat is for real. Besides, A verified petition for approval of the bond shall in her letters to the members of the court, Shirley depicted her be filed in the proper court of the place where the child biological parents as selfish and cruel and who beat her often; resides, or, if the child resides in a foreign country, in the and that they do not lover her. To return her to the custody of proper court of the place where the property or any part the private resps. would be traumatic and cause irreparable thereof is situated. damage to the child. The petition shall be docketed as a summary special proceeding in which all incidents and issues PAGE 109

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Notes, Cases and Commentaries on Persons and Family Relation regarding the performance of the obligations referred to in the second paragraph of this Article shall be heard and Art. 228. Parental authority terminates resolved. permanently: The ordinary rules on guardianship shall be (1) Upon the death of the parents; merely suppletory except when the child is under (2) Upon the death of the child; substitute parental authority, or the guardian is a (3) Upon emancipation of the child. stranger, or a parent has remarried, in which case the ordinary rules on guardianship shall apply. Art. 229. Unless subsequently revived by a final PINEDA V. CA [226 SCRA 754] - It is clear from Art. 225 judgment, parental authority also terminates: that regardless of the value of the unemancipated common (1) Upon adoption of the child; child's property, the father and mother ipso jure become the (2) Upon appointment of a general guardian; legal guardian of the child's property. However, if the market (3) Upon judicial declaration of abandonment of value of the prop. or the annual income of the child exceeds the child in a case filed for the purpose; P50,000, a bond has to be postedby the parents concerned to (4) Upon final judgment of a competent court guarantee the performance of the obligations of a general divesting the party concerned of parental authority; or guardian. It must, hoewever, be noted that the 2nd par. of (5) Upon judicial declaration of absence or Art. 225 speaks of the market value of the property or the incapacity of the person exercising parental authority. annual income of the child," w/c means, therefore, the aggregate of the child's prop. or annual income; if this exceeds P50T, a bond is required. There is no evidence that Art. 230. Parental authority is suspended upon the share of each of the minors in the proceeds of the group conviction of the parent or the person exercising the same policy in question is the minor's only property. W/o such of a crime which carries with it the penalty of civil evidence, it would not be safe to conclude that, indeed, that is interdiction. The authority is automatically reinstated his only property. upon service of the penalty or upon pardon or amnesty of the offender. Art. 226. The property of the unemancipated child earned or acquired with his work or industry or by onerous or gratuitous title shall belong to the child in ownership and shall be devoted exclusively to the latter's support and education, unless the title or transfer provides otherwise. The right of the parents over the fruits and income of the child's property shall be limited primarily to the child's support and secondarily to the collective daily needs of the family. Art. 227. If the parents entrust the management or administration of any of their properties to an unemancipated child, the net proceeds of such property shall belong to the owner. The child shall be given a reasonable monthly allowance in an amount not less than that which the owner would have paid if the administrator were a stranger, unless the owner, grants the entire proceeds to the child. In any case, the proceeds thus given in whole or in part shall not be charged to the child's legitime. Balane: This article refers to profectitious property property owned by the parents and given to the child for administration Ownership belongs to parents, Usufruct belongs to parents The child is entitled to reasonable allowance...not less than what a 3rd person would get if management was entrusted to such 3rd person, administration belongs to the child. Suspension or Termination of Parental Authority Art. 231. The court in an action filed for the purpose or in a related case may also suspend parental authority if the parent or the person exercising the same; (1) Treats the child with excessive harshness or cruelty; (2) Gives the child corrupting orders, counsel or example; (3) Compels the child to beg, or (4) Subject the child or allows him to be subjected to acts of lasciviousness. The grounds enumerated above are deemed to include cases which have resulted from culpable negligence of the parent or the person exercising parental authority. If the degree of seriousness so warrants, or the welfare of the child so demands, the court shall deprive the guilty party of parental authority or adopt such other measures as may be proper under the circumstances. The suspension or deprivation may be revoked and the parental authority revived in a case filed for the purpose or in the same proceeding if the court finds that the cause therefor has ceased and will not be repeated. CHUA V. CABANGBANG [27 SCRA 792] - F: This is a petition for habeas corpus by Pacita Chua against Mr. and Mrs. Bartolome Cabangbang to recover custody of Betty Chua alias "Grace Cabangbang," the natural daughter of Pacita, who was a hostess. HELD: Abandonment is one of the grounds for depriving parents of parental authority over their children. xxx Petitioner surrendered the custody of her child to the Cabangbangs in 1958. She waited until 1963, or after the PAGE 110

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Notes, Cases and Commentaries on Persons and Family Relation lapse of a period of 5 long years, before she brought action to mentioned in the second and third paragraphs of Article recover custody. Her claim that she did not take any step to 2180 of the Civil Code (as amended by RA 6809) recover her child bec. the Cabangbangs were powerful and influential, does not deserve any modicum of credence. xxx Tolentino: Requisites of Marriage.-- A marriage of a For 5 long yrs. and thereafter, she did not once move person bet. 18 and 21 years will still require parental consent, to recover the child. She continuously shunned the natural w/o w/c the marriage will be viodable. This is an anomalous and legal obligations w/c she owed to the child; completely situation. An emancipated person, who can enter into any withheld her presence, her love, her care, and the opportunity contract and qualified for all acts of civil life, is still required to display maternal affection; and totally denied her support to have parental consent for marriage. The provisions on and maintenance. Her silence and inaction have been marriage should have been adjusted. prolonged to such a point that her abandonment of the child and her total relinquishment of parental claim over her, can Quasi-delicts of Children. and should be inferred as a matter of law. Art. 2180. xxx The father and, in case of his death or incapacity, the mother, are responsible for the damages Art. 232. If the person exercising parental caused by the minor children who live in their company. authority has subjected the child or allowed him to be Guardians are liable for damages caused by the subjected to sexual abuse, such person shall be minors or incapacitated persons who are under their permanently deprived by the court of such authority. authority and live in their company. (Civil Code.) Art. 233. The person exercising substitute parental authority shall have the same authority over the person of the child as the parents. In no case shall the school administrator, teacher or individual engaged in child care exercising special parental authority, inflict corporal punishment upon the child. XII. EMANCIPATION AND AGE OF MAJORITY Art. 234. Emancipation takes place by the attainment of majority. Unless otherwise provided, majority commences at the age of eighteen years. (as amended by RA 6809) [Emancipation also takes place: (1) By the marriage of the minor; or (2) By the recording in the Civil Register of an agreement in a public instrument executed by the parent exercising parental authority and the minor at least 18 years of age. Such emancipation shall be irrevocable.] Tolentino: RA 6809 provides that its effectivity on existing wills, bequests, donations, grants, insurance policies and similar instruments containing references and provisions favorable to minors will not retroact to their prejudice. Art. 235. (Repealed by RA 6809) Art. 236. Emancipation shall terminate parental authority over the person and property of the child who shall then be qualified and responsible for all acts of civil life, save the exceptions established by existing laws in special cases. Contracting marriage shall require parental consent until the age of 21. Nothing in this Code shall be construed to derogate from the duty or responsibility of parents and guardians for children and wards below 21 years of age Tolentino: The last par. of Art. 236 is even more anomalous. Upon emancipation of a child after reaching 18 years, parental authority ceases, and yet responsibility for his torts continues until he reaches 21 years of age. This is a case of responsibility w/o authority. Balane: Under the present law, there are 2 classifications of emancipation: Perfect emancipation where the emancipated is qualified for all acts of civil life. Perfect emancipation is attained upon reaching the age of 21 yrs. old. Imperfect Emancipation. An 18 yr-old, although emancipated needs parental consent for marriage. Parents or guardians continue to be liable under Art. 2180 until he reaches the age of 21 yrs. old. BALANE CASE: BALIWAG TRANSIT V. CA [169 S 849] - F: On 4/10/85 a complaint for damages arising from breach of contract of carriage was filed by pvt. resps., the sps. Sotero Cailipan, Jr. and Zenaida Lopez, and their son George, of legal age, against petitioner Baliwag Transit. The complaint alleged that George who was a paying passenger on a Baliwag bus on 12/17/83, suffered multiple serious physical injuries when he was thrown off said bus driven in a careless and negligent manner by Leonardo Cruz, the authorized bus driver of Baliwag. As a result, he was confined in the hospital for treatment, incurring medical expenses, w/c were borne by his parents. Thereafter Fortune Insurance (insurance co. of Baliwag) and Baliwag filed Motions to Dismiss on the ground that George, in consideration of P8,020.50 had executed a "Release of Claims" w/c motions were denied as they were filed beyond the time for pleading and after the answer has already been filed. A motion to admit amended ans. w/c incorporated the affirmative defense of release was then admitted. The RTC-Bulacan dismissed the compalaint and the 3rd party complaint on the ground of release. The CA set aside the order of RTC.

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Notes, Cases and Commentaries on Persons and Family Relation ISSUE: The legal effect of the Release of Claims executed by Art. 243. A preliminary conference shall be George during the pendency of the case. conducted by the judge personally without the parties being assisted by counsel. After the initial conference, if HELD: We hold that since the suit is one for breach of the court deems it useful, the parties may be assisted by contract of carriage, the Release of Claims executed by him, counsel at the succeeding conferences and hearings. as the injured party, discharging Fortune Insurance and Baliwag from any and all liability is valid. He was then of Art. 244. In case of non-appearance of the spouse legal age, a graduating student of Agricultural Engineering, whose consent is sought, the court shall inquire into the and had the capacity to do acts w/ legal effect (Art. 37 in reasons for his failure to appear, and shall require such relation to Art. 402.) Thus, he could sue and be sued even appearance, if possible. w/o the assistance of his parents. Art. 245. If, despite all efforts, the attendance of the non-consenting spouse is not secured, the court may Art. 237. (Repealed by RA 6809) proceed ex parte and render judgment as the facts and circumstances may warrant. In any case, the judge shall endeavor to protect the interests of the non-appearing XIV. SUMMARY JUDICIAL PROCEEDINGS IN THE spouse. FAMILY LAW Art. 246. If the petition is not resolved at the Scope of Application initial conference, said petition shall be decided in a summary hearing on the basis of affidavits, documentary Art. 238. Until modified by the Supreme Court, evidence or oral testimonies at the sound discretion of the the procedural rules in this Title shall apply in all cases court. If testimony is needed, the court shall specify the provided for in this Code requiring summary court witnesses to be heard and the subject matter of their proceedings. Such cases shall be decided in an expeditious testimonies, directing the parties to present said witnesses. manner without regard to technical rules. Art. 247. The judgment of the court shall be Separation in Fact Between Husband and Wife immediately final and executory. Art. 239. When a husband and wife are separated in fact, or one has abandoned the other and one of them seeks judicial authorization for a transaction where the consent of the other spouse is required by law but such consent is withheld or cannot be obtained, a verified petition may be filed in court alleging the foregoing facts. The petition shall attach the proposed deed, if any, embodying the transaction, and, if none, shall describe in detail the said transation and state the reason why the required consent thereto cannot be secured. In any case, the final deed duly executed by the parties shall be submitted to and approved by the court. Art. 240. Claims for damages by either spouse, except costs of the proceedings, may be litigated only in a separate action. Art. 241. Jurisdiction over the petition shall, upon proof of notice to the other spouse, be exercised by the proper court authorized to hear family cases, if one exists, or in the regional trial court or its equivalent, sitting in the place where either of the spouses resides. Art. 242. Upon the filing of the petition, the court shall notify the other spouse, whose consent to the transaction is required, of said petition, ordering said spouse to show cause why the petition should not be granted, on or before the date set in said notice for the initial conference. The notice shall be accompanied by a copy of the petition and shall be served at the last known address of the spouse concerned. Art. 248. The petition for judicial authority to administer or encumber specific separate property of the abandoning spouse and to use the fruits or proceeds thereof for the support of the family shall also be governed by these rules. Incidents involving Parental Authority Art. 249. Petitions filed under Articles 223, 225 and 235 of this Code involving parental authority shall be verified. Art. 223. The parents or, in their absence or incapacity, the individual, entity or institution exercising parental authority, may petition the proper court of the place where the child resides, for an order providing for disciplinary measures over the child. The child shall be entitled to the assistance of counsel, either of his choice or appointed by the court, and a summary hearing shall be conducted wherein the petitioner and the child shall be heard. However, if in the same proceeding the court finds the petitioner at fault, irrespective of the merits of the petition, or when the circumstances so warrant, the court may also order the deprivation or suspension of parental authority or adopt such other measures as it may deem just and proper.

Art. 225. The father and mother shall, jointly exercise legal guardianship over the property of their unemancipated common child without the necessity of a court appointment. In case of disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary. PAGE 112

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Notes, Cases and Commentaries on Persons and Family Relation Where the market value of the property or the Art. 51. In said partition, the value of the annual income of the child exceeds P50,000, the parent presumptive legitimes of all common children, computed concerned shall be required to furnish a bond in such as of the date of the final judgment of the trial court, shall amount as the court may determine, but not less than 10% be delivered in cash, property or sound securities, unless of the value of the property or annual income, to the parties, by mutual agreement judicially approved, had guarantee the performance of the obligations prescribed already provided for such matters. for general guardians. The children or their guardian, or the trustee of A verified petition for approval of the bond shall their property, may ask for the enforcement of the be filed in the proper court of the place where the child judgment. resides, or, if the child resides in a foreign country, in the The delivery of the presumptive legitimes herein proper court of the place where the property or any part prescribed shall in no way prejudice the ultimate thereof is situated. successional rights of the children accruing upon the death The petition shall be docketed as a summary of either or both of the parents; but the value of the special proceeding in which all incidents and issue properties already received under the decree of regarding the performance of the obligations referred to annulment or absolute nullity shall be considered as in the second paragraph of this Article shall be heard and advances on their legitime. resolved. The ordinary rules on guardianship shall be Art. 69. The husband and wide shall fix the family merely suppletory except when the child is under domicile. In case of disagreement, the court shall decide. substitute parental authority, or the guardian is stranger, The court may exempt one spouse from living or a parent has remarried, in which case the ordinary with the other if the latter should live abroad or there are rules on guardianship shall apply. other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not Art. 235. (Repealed by RA 6809) compatible with the solidarity of the family. Art. 250. Such petitions shall be filed in the proper court of the place where the child resides. Art. 251. Upon the filing of the petition, the court shall notify the parents or in their absence or incapacity, the individuals, entities or institutions exercising parental authority over the child. Art. 252. The rules in Chapter 2 hereof shall also govern summary proceedings under this Chapter insofar as they are applicable. Other Matters Subject to Summary Proceedings Art. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern summary proceedings filed under Article 41, 51, 69, 73, 96, 124 and 217, insofar as they applicable. Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present had a wellfounded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient. For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. Art. 73. Either spouse may exercise any legitimate profession, occupation, business or activity without the consent of the other. The latter may object only on valid, serious, and moral grounds. In case of disagreement, the court shall decide whether or not: (1) The objection is proper, and (2) Benefit has accrued to the family prior to the objection or thereafter. If the benefit accrued prior to the objection, the resulting obligation shall be enforced against the separate property of the spouse who has not obtained consent. The foregoing provisions shall not prejudice the rights of creditors who acted in good faith. Art. 96. The administration and enjoyment of the community property shall belong to both spouses jointly. In case of disagreement, the husband's decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision. In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the common properties, the other spouse may assume sole powers of administration. These powers do not include the powers of disposition or encumbrance which must have the authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors.

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Notes, Cases and Commentaries on Persons and Family Relation prejudice to the obligation of the father to contribute to his Art. 124. The administration and enjoyment of maintenance. the conjugal partnership property shall belong to both spouses jointly. In case of disagreement, the husband's LUNA V. IAC [137 S 7 (1985)] - In child custody cases, an decision shall prevail, subject to recourse to the court by execution of final judgment of appellate courts awarding the wife for proper remedy, which must be availed of child custody to the child's biological parents may be stayed within five years from the date of the contract where during hearings on execution the child manifests that implementing such decision. she will kill herself and escape if given to custody of her In the event that one spouse is incapacitated or biological parents. In child custody cases, the child's welfare otherwise unable to participate in the administration of and future is paramount and execution of a final judgment the conjugal properties, the other spouse may assume sole which may run contrary thereto may be set aside. powers of administration. These powers do not include the powers of disposition or encumbrance which must have the authority of the court or the written consent of the other spouse. In the absence of such authority or consent, XVII. USE OF SURNAMES the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on Tolentino: Concept of Name.-- A name is a word or the part of the consenting spouse and the third person, combination of words by w/c a person is known and and may be perfected as a binding contract upon the identified, and distinguished from others, for the convenience acceptance by the other spouse or authorization by the of the world at large in addressing him, or in speaking of or court before the offer is withdrawn by either or both dealing w/ him. (Balane quotes Tolentino on this.) offerors. Characteristics of Name.-- (1) It is absolute, intended to Art. 217. In case of foundlings, abandoned, protect the individual from being confused w/ others; (2) it is neglected or abused children and other children similarly obligatory in certain respects, for nobody can be w/o a name; situated, parental authority shall be entrusted in summary (3) It is fixed, unchageable, or immutable, at least at the judicial proceedings to heads of children's homes, start, and may be changed only for good cause and by judicial orphanages and similar institutions duly accredited by the proceedings; (4) it is outside the commerce of man, and, proper government agency. therefore, inalienable and intransmissible, by act inter vivos or mortis causa; (5) it is imprescriptible. (Balane quotes FINAL PROVISIONS Tolentino on this.) Art. 254. (Repeal of provisions) Art. 255. If any provision of this code is held invalid, all the other provisions not affected thereby shall remain valid. Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws. Art. 257. Effectivity (August 3, 1988) Balane: Surname.-- A surname is that w/c identifies the family from w/c a person belongs and is passed from parent to child. Basic Principles: (1) A person's real name is that w/c appears in the Civil Registry. (2) If you want to change your real name, you have to go through judicial proceedings, a petition for change of name. (3) However, a person can use other names w/c are authorized by CA 142 as amended by RA 6085 (re: use of pseudonym.) (4) Some guidelines regarding change of name (a) In a petition for change of name, courts are generally strict. You have to show sufficient cause; (b) However, in a petition for injunction or in a criminal case for violation of CA 142, courts will generally be more liberal (Legamia v. IAC, infra. Tolentino v. CA, infra.) provided it does not cause confusion, there is no fraud or BF; (c) In case of adoption where the woman adopts alone, it is the middle name that should be given the child. (Johnston v. Republic, infra.)

XVI. CARE AND EDUCATION OF CHILDREN Art. 363. In all questions on the care, custody, education and property of children, the latter's welfare shall be paramount. No mother shall be separated from her child under seven years of age, unless the court finds compelling reasons for such measure.

FLORES V. ESTEBAN [51 O.G. 9, p. 4525 (1955)] - As against the paternal grandparent, the maternal grandparent Art. 364. Legitimate and legitimated children may be given substitute parental authority if it will be for the shall principally use the surname of the father. best interest and welfare of the child. It should be considered that the maternal grandmother is almost a mother to the child BALANE CASES: since he was 20 days old, and there exists mutual love between the grandmother and the child. This is without PAGE 114

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Notes, Cases and Commentaries on Persons and Family Relation NALDOZA V. REPUBLIC [112 S 568] - F: Zosima Cruz gave his conformity to the petition by signing at the Naldoza was married to Dionesio Divinagracia on 5/30/70. bottom of the pleading. Finding the petition meritorious, They begot 2 children named Dionesio, Jr. and Bombi resp. Judge issued an order on 2/12/69 authorizing the name Roberto. Zosima's husband left her after she confronted him of the minor, May Sia alias Manman Huang also known as w/ his previous marriage w/ another woman. He never Mary Pang, to be changed to Mary Pang de la Cruz. returned to the conjugal abode. He allegedly swindled Cong. Maglana in the sum of P50, 000, and other persons. The ISSUES: (1) W/n resp. Judge had acquired jurisdiction over classmates of Dionesio, Jr. and Bombi allegedly teased them the case; and about their father being a swindler. Two criminal cases for (2) W/n resp. Judge erred in granting the petition estafa were filed in court against the father. although pvt. resp. Pang Cha Quen failed to adduce proper Desirous of obliterating any connection bet. her 2 and reasonable cause for changing the name of the minor minor children and their scapegrace father, Zosima, on "May Sia" alias "Manman Huang." 8/10/78, filed in CFI-Bohol a petition wherein she prayed that the surname of their 2 children be changed from Divinagracia HELD: (1) The trial court did not acquire jurisdiction over to Naldoza, her surname. After due publication and hearing, the subject of the proceedings, i.e., the various names and the trial court dismissed the petition. aliases of the petitioner w/c she wished to change to "Mary Pang De la Cruz/" The omission of her other alias-- "Mary ISSUE: W/n two minors should be allowed to discontinue Pang"-- in the captions of the court's order and of the petition using their father's surname and should use only their defeats the purpose of the publication. For a publication of a mother's surname. petition for a change of name to be valid, the title thereof should include, first, his real name, and second, his aliases, if HELD: No. We hold that the trial court did not err in any." (Jesus Ng Yao Sing v. Republic, 16 S 483.) [T]he denying the petition for change of name. The 2 minors, reason for the rule requiring the inclusion of the name sought who are presumably legitimate, are supposed to bear to be adopted and the other names or aliases of the applicant principally the surname Divinagracia, their father's surname in the title of the petition or in the caption of the published (Art. 364.) order is that the ordinary reader only glances fleetingly at the To allow them, at their mother's behest, to bear only caption of the published order or the title of the petition in a their mother's surname and to discard altogether their father's spec. proc. for a change of name. Only if the caption or the surname, thus removing the prima facie evidence of their title strikes him bec. one or all of the names mentioned are paternal provenance or ancestry, is a serious matter in w/c, familiar to him, does he proceed to read the contents of the ordinarily, the minors and their father should be consulted. order. The mother's desire should not be the sole consideration. (2) The court erred in granting a change of name. The change of name is allowed only when there are The reasons offered for changing the name of petitioner's proper and reasonable causes for such change. Where, as in daughter are: (1) that "her daughter in law grew up w/, and this case, the petitioners are minors, the courts should take learned to love and recognize Alfredo De la Cruz as her own into account whether the change of name would redound (to) father"; (2) to afford her daughter a feeling of security; and their welfare or would prejudice them. (3) that Alfredo de la Cruz agrees to this petition. To allow the change of surname would cause Clearly, these are not valid reasons for a change of confusion as to the minors' parentage and might create the name. The general rule is that a change of name should not impression that the minors are illegitimate since they would be permitted if it will give a false impression of family carry the maternal surname only. That would be inconsistent relationship to another where none actually exists. [O]ur w/ their legitimate status as indicated in their birth records. laws do not authorize legitimate children to adopt the surname of a person not their father, for to allows them to adopt the surname of their mother's husband, who is not their REPUBLIC V. MARCOS [182 S 223] - F: On 3/30/68, a father, can result in confusion of their paternity. verified petition was filed by pvt. resp Pang Cha Quen Another reason for disallowing the petition for alleging that she is a citizen of Nationalist China, married to change of name is that it was not filed by the proper party. Alfredo de la Cruz, a Filipino; that she had resided in Baguio The petition must be filed by the person desiring to change City since her birth on 1/29/30; that by a previous marriage to his/her name, even if it may be signed and verified by some Sia Bian alias Huang Tzeh Lik, a citizen of Nationalist other person in his behalf. In this case, however, the petition China, she gave birth to a daughter, May Sia alias Manman was filed by Pang Cha Quen not by May Sia. Juang on 1/28/58 in the city of Mla.; that on 1/12/59, she caused her daughter to be registered as an alien under the Hence, only May Sia herself, alias Manman Huang, name of Mary Pang, i.e., using the maternal surname, bec. alias Mary Pang, when she shall have reached the age of the child's father had abandoned them; that her daughter has majority, may file the petition to change her name. The always used the name Mary Pang at home and in the Baguio decision to change her name, the reason for the change, and Chinese Patriotic School where she studies; that on 8/16/66, the choice of a new name and surname shall be hers alone to petitioner Pang Cha Quen married Alfredo de la Cruz; that as make. It must be her personal choice. her daughter has grown to love and recognize her stepfather as her own father, she desires to adopt and use his surname Art. 365. An adopted child shall bear the "De la Cruz" in addition to her name "Mary Pang" so that her surname of the adopter. full name shall be Mary Pang De la Cruz; that Alfredo De la PAGE 115

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Notes, Cases and Commentaries on Persons and Family Relation BALANE CASE: registered surname is Llaneta-- not Ferrer-- and that she is the illegitimate child of A and an unknown father. JOHNSTON V. REPUBLIC [7 S 1040] - F: On 6/24/60, On the ground that her use thenceforth of the petitioner-appellant Isabel Valdes Johnston, filed a petition surname of Llaneta, instead of Ferrer, w/c she had been using for the adoption of one Ana Isabel Henriette Antonio since she acquired reason ,would cause untold difficulties and Concepcion Georgiana, 2 yrs. and 10 mos. old, then under the confusion, T petitioned the court below for change of name. custody of the Hospicio de San Jose. After hearing, the lower After trial, resp. Judge, denied her petition. Hence, the court rendered a decision granting the petition. The present recourse. petitioner-appellant filed a motion on 10/24/60, praying that the surname given to the minor be "Valdes Johnston," instead HELD: The petition is granted. of "Valdes" only, but this motion was denied by the lower The petitioner has established that she has been court. Hence this appeal. using the surname Ferrer for as long as she can remember; that all her records in school and elsewhere, put her name HELD: We agree w/ the decision of the LC authorizing or down as T. Ferrer; that her friends and associates know her prescribing the use of the surname Valdez by the adopted only as T. Ferrer; and that even the late Serafin F.'s nearest of child. The provision of law (341, par. 2) w/c entitles the kin have tolerated and still approve of her use of the surname adopted minor to the use of the adopter's surname, refers to Ferrer. Indeed, a sudden shift at this time by the petitioner to the adopter's own surname and not to her surname acquired the name of T Llaneta (in order to conform to that appearing by virtue of marriage. Petitioner-appellant's real surname is in the birth cert.) would result in confusion among the Valdes and not Johnston, and as she made the adoption singly persons and entities she deals w/ and entail endless and w/o the concurrence of her H, and not as a married woman, vexatious explanations of the circumstances of her new name. her name as adopter was her maiden name. The adoption The petitioner has established that she has been using the created a personal relationship bet. the adopter and the surname Ferrer for as long as she can remember; that all her adopted, and the consent of Isabel Valdes' H, to the adoption records in school and elsewhere, put her name down as T. by her individually, did not have the effect of making him an Ferrer; that her friends and associates know her only as T. adopting father, so as to entitle the child to the use of Ferrer; and that even the late Serafin F.'s nearest of kin have Johnston's own surname. tolerated and still approve of her use of the surname Ferrer. Since adoption gives the person adopted the same The resp. court places reliance on the decisions of rights and duties as if he were a legitimate child of the this court w/c disallowed such change of name as would give adopter (341, par. 1, NCC), much confusion would indeed the false impression of family relationship. The principle result, if the minor child herein were allowed to use the remains valid but only to the extent that the proposed change surname of the spouse who did not join in the adoption. of name would in great probability cause prejudice or future mischief to the family whose surname it is that is involved or Art. 366. A natural child acknowledged by both to the community in general. parents shall principally use the surname of the father. If recognized by only one of the parents, a natural child shall Art. 367. Natural children by legal fiction shall employ the surname of the recognizing parent. principally employ the surname of the father. Tolentino: This rule applies even when the recognition was made first by the mother and later by the father, bec. no distinction is made in the law. In view of the elimination in the Family Code of the "Natural Child" as a class of children, this provision should apply to all illegitimate children. BALANE CASE: LLANETA V. AGRAVA [57 S 29] - F: Teresita's mother, Anatacia Llaneta, was once married to Serafin Ferrer w/ whom she had but 1 child. In 1942 Serafin F. died and about 4 yrs. later Anatacia had relations w/ another man out of w/c Teresita was born. Shortly after Teresita's (T) birth, Atanacia (A) brought her to Mla. where all of them lived w/ A's mother-in-law, Victoria vda. de Ferrer. T was raised in the household of the Ferrers, using the surname of Ferrer in all her dealings and throughout her schooling. Art. 368. Illegitimate children referred to in article 287 shall bear the surname of the mother. Art. 369. Children conceived before the decree annulling a voidable marriage shall principally use the surname of the father. Art. 370. A married woman may use: (1) Her maiden first name and surname and add her husband's surname; (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."

Tolentino: Husband's Surname Optional.-- The word "may" is used, indicating that the use of the husband's surname by the wife is permissive rather than obligatory. We have no law w/c provides that the wife shall change her When she was about 20 yrs. old, she applied for a copy of her surname to that of the husband upon marriage. It seems, birth cert. in Irosin, Sorsogon, where she was born, as she therefore, that a married woman may use only her maiden was required to present it in connection w/ a scholarship name and surname. She has an option, but not a duty, to use granted to her. It was then that she discovered that her the surname of the husband in any of the ways provided by this article. PAGE 116

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Notes, Cases and Commentaries on Persons and Family Relation change the spelling of his surname, her H should initiate the Right of Wife not Exclusive.-- The wife cannot claim an proceeding. In the instant case, the anomaly is that the H did exclusive right to use the husband's surname. She cannot be not ask for judicial authority to change the spelling of his prevented from using it; but neither can she restrain others surname. It was his wife who filed the petition. The from using it. irregularity in the petition is obvious. It is true that the wife submitted to the court her H's BALANE CASES: affidavit of conformity to the change in the spelling of his surname. But that would not prevent him and their children TELMO V. REPUBLIC [73 S 29] - F: Milagros Llerena from using the old spelling. And in that event, confusion and was admitted to the bar in 1923. In her atty.'s oath, she used error might arise. the name Milagros Llerena-Telmo. In 1930 or '31 she married Pedro M. Telmo. They begot 4 sons, now all of age, Moreover, the court has arrived at the conclusion who were baptized w/ the surname "Telmo" but who since that those reasons adduced by Mrs. Telmo for a change in the kindergarten days have been using the surname "Thelmo." spelling of her H's surname are not substantial and cogent When the Telmo spouses sojourned in the US, Pedro T., enough to sustain her petition. following the American style, changed the spelling of his name to "Thelmo." In his diploma as mechanical and marine engr. issued by the Univ. of Michigan, his surname is TOLENTINO V. CA [162 S 66] - F: Resp. Consuelo allegedly spelled "Thelmo." Mrs. Thelmo was appointed David was legally married to Arturo Tolentino (AT) on justice of the peace of Zamboanga and later as a midnight 2/8/31. Their marriage was dissolved and terminated Judge of CFI but was unable to exercise the functions of that pursuant to the law during the Japanese occupation on office. She admitted in the administrative cases filed against 9/15/43 by a decree of absolute divorce granted by the CFIher when she was still a justice of the peace some Mla. on the ground of desertion and abandonment by the complainants used the name "Telmo" and others used wife. The trial court granted the divorce. Thereafter, AT "Thelmo." married a certain Pilar Adorable who died soon after their On 2/15/64, she filed a petition in the CFI of marriage. AT subsequently married Constancia on 4/21/45. Zamboanga City praying that her husbands's surname Consuelo David, on the other hand, continued using the "Telmo" be changed to "Thelmo." Her H did not join her as a surname of Tolentino after the divorce and up to the time of co-petitioner. But he executed an affidavit wherein he the filing of this complaint. The 3rd party def. in his ans., manifested that he interposed no objection to his wife's admitted that the use of the surname Tolentino by pvt. resp. petition. Two of her 4 sons executed a joint affidavit was w/ his and his family's consent. expressing conformity to their mother's petition. The lower court granted the petition. Hence, this ISSUE: W/n a divorced woman may continue using the appeal. surname of her former husband. HELD: The appeal may be upheld on a jurisdictional ground. Mrs. Telmo in the title of her petition did not indicate that she wanted her surname to be changed to "Thelmo." The published order setting her petition for hearing reproduced the defective title thereof. That publication was invalid and ineffective. A change of name is a proc. in rem. Jurisdiction to hear and determine the petition for change of name is acquired after due publication of the order containing certain data, among w/c is the name sought to be adopted, w/c should be indicated in the title of the petition The reason for the rule is that the ordinary reader "glances fleetingly at the captions of the published orders or the titles of the petitions. Only if the caption or the title strikes him does the reader proceed to read on. And the probability is great that the reader does not at all notice the other names and/or aliases or the applicant if these are mentioned only in the body of the order or petition. As the tile of the petition in this case and the order setting it for hearing were deficient, the lower court did not acquire jurisdiction over the proc. HELD: Yes. There is no merit in the petitioner's claim that to sustain the private resp.'s stand is to contradict Articles 370 and 371 of the NCC. It is significant to note that Sen. Tolentino himself in his commentary on Art. 370 states that "the wife cannot claim an exclusive right to use the husband's surname. She cannot be prevented from using it; but neither can she restrain others from using it." Art. 371 is not applicable to the case at bar bec. Art. 371 speaks of annulment while the case before us refers to absolute divorce where there is a severance of valid marriage ties. The effect of divorce is more akin to the death of the spouse where the deceased woman continues to be referred to as the Mrs. of her H even if the latter has remarried rather than to annulment since in the latter case, it is as if there had been no marriage at all. The pvt. resp. has established that to grant the injunction to the petitioner would be an act of serious dislocation to her. She has given proof that she entered into contracts w/ 3rd persons, acquired prop. and entered into other legal relations using the surname Tolentino. The petitioner, on the other hand, has failed to show that she would suffer any legal injury or deprivation of legal rights On the issue of w/n there is ample justification to inasmuch as she can use her H's surname and be fully allow Mrs. Telmo to change the spelling of her husband's protected in case the resp. uses the surname Tolentino for surname, the SC held in the negative. illegal purposes. A married woman may use her husband's surname. There is no usurpation of the petitioner's name and It is axiomatic that if she desires judicial authorization to surname in this case so that the mere use of the surname Tol. PAGE 117

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Notes, Cases and Commentaries on Persons and Family Relation by pvt. resp cannot be said to have injured the petitioner's necessary to avoid confusion; (4) having continuously used rights. The usurpation of name implies some injury to the and been known since childhood by a Filipino name, unaware interests of the owner of the name. It consists in the of his alien parentage; (5) A sincere desire to adopt a possibility of confusion of identity xxx bet. the owner and the Filipino name to erase signs of a former alien nationality w/c usurper. It exists when a person designates himself by unduly hamper social and business life. (Republic v. Marcos, another name. xxx. The following are the elements of supra.) usurpation of a name: (1) there is an actual use of another's The imposition in a will or donation of the condition name by def.; (2) the use is unauthorized; and (3) the use of that the beneficiary change his name is not sufficient cause. another's name is to designate personality or identify a person. None of these elements exists in the case at bar and Effect of Change on Children.-- When a father changes his neither is there a claim by petitioner that the pvt resp. name, this will not affect the names of his children. The impersonated her. children who are of age are independent of the father, and their names can be changed only upon their own petition. Art. 371. In case of annulment of marriage, and The names of the minor children, however, may be changed the wife is the guilty party, she shall resume her maiden on petition of the father, if the same justification exists w/ name and surname. If she is the innocent spouse, she may respect to them. resume her maiden name and surname. However, she may choose to continue employing her former husband's For legal purposes, the true or official name of a person is surname, unless: that w/c is recorded in the civil register. (1) The court decrees otherwise; or (2) She or the former husband is married again to another person. Art. 372. When legal separation has been granted, the wife shall continue using her name and surname employed before the legal separation. Tolentino: This is so bec. her married status is not affected by the separation, there being no severance of the vinculum. Art. 373. A widow may use the deceased husband's surname as though he were still living, in accordance with article 370. Tolentino: Inasmuch as there is no more vinculum actually existing w/ the deceased husband, and considering that the widow has her own independent personality, the use of the former husband's surname is optional, and not obligatory, for her. Art. 374. In case of identity of names and surnames, the younger person shall be obliged to use such additional name or surname as will avoid confusion. Art. 375. In case of identity of names and surnames between ascendants and descendants, the word "Junior" can be used only by a son. Grandsons and other direct male descendants shall either: (1) Add a middle name or the mother's surname; or (2) Add the Roman numerals II, III, and so on. BALANE CASES: REPUBLIC V. AVILA [122 S 483] - F: Pvt. resps., who are brothers and sisters, prayed that their names be changed as follows: Tan Cheng Beng to Johnny Yap Tan; Tan Ay Kim to Jeanette Yap Tan; Tan Cheng Keng to Jimmy Yap Tan; and Tan Ay Gho to Jennifer Yap Tan. The petition was published once a week for 3 consecutive weeks in a newspaper of gen. circ. in the city and province of Cotabato where the pvt. resps. reside. xxx It appears that pvt. resps. are the legitimate children of the sps. Lim Heong Ho and Yap Kun, both Chinese. Their mother, Yap Kun, was already dead when this petition was filed. xxx The present names of the pvt. resps. are what appear in their certs. of birth, in the records of the Bureau of Immigration, their certs. of registration, and in their school records. The reasons adduced by pvt. resps. for wanting the change of their names are as follows: (1) Having been born in the Phils. and having learned to love and adopt the traits and traditions of the Filipino people, they desire to change their Chinese names to Christian or Filipino names; (2) to avoid embarrassment and confusion in their social and business dealings, they having been known by their friends and acquaintances by the names they wish to adopt; (3) in the case of pvt. resp Tan Ay Gho, to avoid ridicule, inasmuch as such name in Muslim dialect means "running nose." CFICotabato granted the petition. Hence this appeal.

HELD: We find merit in the appeal taken by herein petitioner to seek a reversal of the questioned order of the resp. court. A change of name is a mere privilege and not a Art. 376. No person can change his name or matter of right. It should not be abused nor allowed for surname without judicial authority. trivial and flimsy reasons. To justify a change of name, there must exist a proper and reasonable cause or compelling Tolentino: Sufficient Cause Necessary.-- Examples of reason. sufficient causes are: (1) when the name is ridiculous, or The reasons given by the pvt. resps. do not impress tainted with dishonor, or extremely difficult to write or us as sufficient and valid justification for the desired change pronounce; (2) when the right to a new name is a of their names. consequence of a change of status, such as when a natural xxx The grant of change of name of resps. would not child is acknowledged or legitimated; (3) when the change is eliminate but enhance confusion as they would be having not PAGE 118

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Notes, Cases and Commentaries on Persons and Family Relation only 2 names but 3, including the names they are seeking. possibility of confusion of identity, or the appearance of some xxx Pvt. resps. do not only want to legalize their use of family relations between the owner and the usurper. American names, by w/c they claim they are usually known, but also a new family name (Yap Tan) w/c includes that of Elements of Usurpation.-- (1) that there is an actual use of their mother but w/c they never used before. It becomes another's name by the defendant; (2) that the use is confusion worse compounded it is considered that the pvt. unauthorized; (3) and the use of another's name is to resps. are not using the family name of their father (Lim), but designate personality or identity of a person. that of the first husband of their mother who was surnamed Tan. xxx The supposed ugly meaning of the name of Art. 378. The unauthorized or unlawful use of resp.Tan Ay Gho is not enough reason to justify change of another person's surname gives a right of action to the name. xxx The alleged offensive-sounding name, being a latter. given name, was chosen for her, and not one imposed by law as in the case of a family name. Tolentino: This article would seem to cover cases where one's name is used by another, but not for the purpose of designating personality or identifying a person. YASIN V. SHARI'A [241 S 606] - F: On 5/5/90, Hatima Yasin filed in the Shari'a District Court-Zamboanga City a Art. 379. The employment of pen names or stage "Petition to resume the use of maiden name." Such petition names is permitted, provided it is done in good faith and was denied on the ground that petition was substantially a there is no injury to third persons. Pen names and stage change of name and that compliance w/ the provisions of R names cannot be usurped. 103 ROC on change of name is necessary if the petition is to be granted. Tolentino: A pseudonym is a "conventional fictitious name freely chosen by a person to disguise his personality." It ISSUE: W/n a petition for resumption of maiden name and designates a person in a particular activity, and his reputation surname is also a petition for change of name. and the value of his work are reflected in such designation. Bec. a pseudonym is intended only to be used in HELD: The court rules in the negative. The true and real connection w/ a particular activity-literary, artistic, name of a person is that given to him and entered in the civil scientific or professional-- it should not be employed in any register. While it is true that under Art. 376 of the NCC, no other sphere of activity. It can never be used in relations w/ person can the State. change his name or surname w/o judicial authority, nonetheless, the only name that may be changed is the true and official name recorded in the Civil Register. When Entitled to Protection.-- A pen or stage name is Petitioner's registered name is Hatima Centi y Saul. protected only when it is well known as the designation of a In the instant petition, petitioner does not seek to change her particular writer or artist, such that it can be considered as registered maiden name but instead, prays that she be allowed practically indicating his person in the field of activity where to resume the use of her maiden name in view of the it is used. dissolution of her marriage to Hadji Idris Yasin, by virtue of a decree of divorce granted in accordance w/ Muslim Law. Art. 380. Except as provided in the preceding Even under the NCC (w/c applies suppletorily to the article, no person shall use different names and surnames. Code of Muslim Personal Laws), the use of the H's surname during the marriage, after annulment of the marriage and Tolentino: It is the duty of a person in dealing w/ the govt after the death of the H is permissive and not obligatory and its agents, to use his true name. In private relations, except in case of legal separation. however, this is not obligatory, provided there is no wrongful xxx When a woman marries a man, she need not or unlawful purpose. apply and/or seek judicial authority to use her H's name by prefixing the word "Mrs." before her H's full name or by Alias Names in Business.-- The law permits the use of adding her H's surname to her maiden first name. The law assumed or alias names for business purposes, provided that grants her such right. Similarly, when the marriage ties or such names are duly registered. vinculum no longer exists as in the case of death of the H or divorce, the widow or divorcee need not seek judicial BALANE CASE: confirmation of the change in her civil status in order to revert to her maiden name as the use of her former husband's LEGAMIA V. IAC [131 S 479] - F: Corazon Legamia name is optional and not obligatory for her. lived w/ Emilio Reyes for 19 yrs.-- from 11/8/55 to 9/26/74, when Emilio died. During their live-in arrangement they Art. 377. Usurpation of a name and surname may produced a boy. From the time Corazon (C) and Emilio (E) be the object of an action for damages and other relief. lived together until the latter's death, C was known as Corazon L. Reyes; she styled herself as Mrs. Reyes; and E Tolentino: The usurpation of name implies some injury to introduced her to friends as Mrs. Reyes. E was Branch Claim the interests of the owner of the name. It consists in the Manager, Naga Branch, of the Agri. Cr. Admin. when he died. On 10/29/74, or shortly after E's death, C filed a letter PAGE 119

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Notes, Cases and Commentaries on Persons and Family Relation claim in behalf of Michael (their son) w/ the Agr. Cr. This same rule shall be observed when under Admin. for death benefits. The letter was signed "Corazon L. similar circumstances the power conferred by the Reyes." For using the name Reyes although she was not absentee has expired. married to E, Felicisima Reyes who was married to E filed a complaint w/c led to C's prosecution. She was convicted by Balane: Requisites for Provisional Absence: (1) the trial court. The CA upheld the conviction. Absence for an appreciable period w/c depends upon the circumstances; (2) Immediate necessity for his representation ISSUE: W/n the petitioner violated the law (CA 142 re use of in some specific urgent matter; (3) Absentee left no agent or an alias) in the light of the facts abovestated. the agency has expired HELD: No. In the case at bar, C had been living w/ E for almost 20 yrs. He introduced her to the public as his wife and she assumed that role and his name w/o any sinister purpose or personal material gain in mind. She applied for benefits upon his death not for herself but for Michael who as a boy of tender years was under her guardianship. Surely, the lawmakers could not have meant to criminalize what C had done especially bec. some of them probably had their own Corazons. XVIII. ABSENCE Tolentino: Concept of Absence.-- Juridically, the absence referred to in the Code, is that special legal status of one who is not in his domicile, his whereabouts being unknown, and it is uncertain whether he is dead or alive. (Balane quotes Tolentino on this.) Where the absentee disappeared under normal circumstances and w/o apparent danger, there is ordinary absence ; but where the disappearance was under extraordinary circumstances, or with apparent danger, it is called qualified absence. Balane (quoting Castan): Absence has legal consequences w/c vary according to the degree or stage of absence. Stages of Absence: (1) Temporary or provisional absence w/c happens as soon as a person disappears from his domicile and his whereabouts are unknown, leaving no administrator of his prop. (Articles 381-383); (2) Normal or declared absence w/c is one juridically declared after 2 yrs. since the last news was heard from him, or 5 yrs if he left an administrator (Articles 384389); (3) Definite or presumptive death w/c takes place when after the period provided by law, a person is presumed dead; the period varies according to circumstances. (Articles 390-396.) (a) ordinary presumptive death (b) qualified presumptive death PROVISIONAL MEASURES IN CASE OF ABSENCE Art. 381. When a person disappears from his domicile, his whereabouts being unknown, and without leaving an agent to administer his property, the judge, at the instance of an interested party, a relative, or a friend, may appoint a person to represent him in all that may be necessary. Art. 382. The appointment referred to in the preceding article having been made, the judge shall take the necessary measures to safeguard the rights and interests of the absentee and shall specify the powers, obligations and remuneration of his representatives, regulating them, according to the circumstances, by the rules concerning guardians. Art. 383. In the appointment of a representative, the spouse present shall be preferred when there is no legal separation. If the absentee left no spouse, or if the spouse present is a minor, any competent person may be appointed by the court. Tolentino: Appointment Necessary.-- Unless the wife has been appointed an administratrix or trustee of the properties of her absent husband, she has no capacity to maintain an action to recover possession of such properties. DECLARATION OF ABSENCE Art. 384. Two years having elapsed without any news about the absentee or since the receipt of the last news, and five years in case the absentee has left a person in charge of the administration of his property, his absence may be declared. Tolentino: Computation of Period.-- If there has been no news of or from the absentee since his disappearance, the period must be computed from the date of disappearance. But if there has been news from or about him, the period should be counted from the time referred to by the news, or the time when the news was sent. Balane: The declaration of absence is has for its sole purpose to enable the taking of necessary precautions for the administration of the prop. (of the absentee.) (quoting Jones v. Hortiguela, 64 P 179.) A general power of administration is granted w/c is broader than that granted for a mere provisional absence. Notice that in provisional absence, the power of administration is for a specific matter. BALANE CASE:

REYES V. ALEJANDRO [141 S 65] - F: In a petition filed on 10/25/69, Erlinda Reynoso prayed for the declaration of the absence of her husband Roberto L. Reyes alleging that her H had been absent from their conjugal dwelling since PAGE 120

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Notes, Cases and Commentaries on Persons and Family Relation 4/62 and since then had not been heard from and his availed of in any action or proc.; but there can be no whereabouts unknown. The petition further alleged that her independent proceeding for the express purpose of securing a H left no will or any prop. in his name nor any debts. judicial declaration that a person is presumptively dead, After hearing, the court a quo dismissed the petition except for purposes of re-marriage under the Family Code. on the ground that since Roberto Reyes left no prop there was no necessity to declare him judicially an absentee. Balane: Under the NCC, no action was allowed for the declaration of presumptive death bec. it becomes res judicata HELD: The need to have a person judicially declared an w/c is illogical when the person declared dead turns out to be absentee is when he has properties w/c have to be taken cared alive. But this is no longer true under the FC w/c requires a of or administered by a representative appointed by the Court declaration of presumptive death for purposes of remarriage. (384) ; the spouse of the absentee is asking for separation of (see Art. 41.) prop (191, NCC) or his wife is asking the court that the administration of all classes of prop. in the marriage be Art. 390. After an absence of seven years, it being transferred to her (196, NCC.) The petition to declare the unknown whether or not the absentee still lives, he shall husband an absentee and the petition to place the be presumed dead for all purposes, except for those of management of the conjugal properties in the hands of the succession. wife may be combined and adjudicated in the same The absentee shall not be presumed dead for the proceedings. purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order Art. 385. The following may ask for the that his succession may be opened. declaration of absence: (1) The spouse present; Tolentino: For Re-Marriage of Spouse Present.-- Under (2) The heirs instituted in a will, who may present the FC (41), if a spouse has been absent for 4 yrs and the an authentic copy of the same; spouse present has a well-founded belief that the spouse is (3) The relatives who may succeed by the law of already dead, the former can ask for the declaration of intestacy; presumptive death of the latter, in a summary proceeding. (4) Those who may have over the property of the absentee some right subordinated to the condition of his Balane: Q: When Does Presumptive Death Set In? death. A: It depends on the age of the person. In normal presumptive death (the absentee was 75 or Art. 386. The judicial declaration of absence shall below), 7 years is required for all purposes except for not take effect until six months after its publication in a succession, e.g., for insurance, suspensive condition, newspaper of general circulation. retirement benefits, etc. and 10 years for purposes of succession. Art. 387. An administrator of the absentee's property shall be appointed in accordance with article In qualified presumptive death (the absentee is over 383. 75), one single period of 5 yrs. for all purposes. Notice 390 states that only 5 yrs. of absence is required in order that Art. 388. The wife who is appointed as an succession may be opened. But what if succession is not administratrix of the husband's property, cannot alienate involved? If only 5 yrs. is required in cases involving or encumber the husband's property or that of the succession, w/ more reason should 5 yrs. only be required if conjugal partnership, without judicial authority. succession is not involved. Art. 389. The administration shall cease in any of the following cases: (1) When the absentee appears personally or by means of an agent; (2) When the death of the absentee is proved and his testate or intestate heirs appear; (3) When a third person appears, showing by a proper document that he has acquired the absentee's property by purchase or other title. In these cases the administrator shall cease in the performance of his office, and the property shall be at the disposal of those who may have a right thereto. PRESUMPTION OF DEATH

Art. 391. The following shall be presumed dead for all purposes, including the division of the estate among the heirs; (1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane; (2) A person in the armed forces who has taken part in war, and has been missing for four years; (3) A person who has been in danger of death under other circumstances and his existence has not been known for four years.

Tolentino: Judicial Declaration Not Necessary.-- The Tolentino: Modification under the FC.-- For purposes of presumption of death is created by law, and arises w/o any securing a decl of presumptive death under these necessity of a judicial declaration. The presumption can be circumstances, under the FC for purposes of remarriage of a PAGE 121

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Notes, Cases and Commentaries on Persons and Family Relation spouse present, an absence of 2 yrs of the absent spouse will be enough. HELD: We are unable to agree w/ the reasoning of the resp. NLRC. Presumptive Death of Missing Persons.-- The persons There is enough evidence to show the circumstances presumed dead under this article cannot be considered as attending the loss and disappearance of the M/V Eastern merely absentees; they are more properly called missing Minicon and its crew. The foregoing facts, quite logically, persons. xxx [T]he are sufficient to lead us to a moral certainty that the vessel presumptive date of death is fixed on the very day of the had sunk and that the persons aboard had perished w/ it. occurrence of the event from w/c the death is presumed; and Upon this premise, the rule on presumption of death under if such date cannot be fixed, the court determines the middle Art. 391(1) must yield to the rule of preponderance of of the period in w/c the event could have happened. evidence. Where there are facts, known or knowable, from w/c a rational conclusion can be made, the presumption does Loss of Vessel or Aeroplane.-- These terms must be not step in, and the rule of preponderance of evidence understood in their broad meanings. Vessels will include all controls. (Joaquin v. Navarro, 93 P 257.) watercraft, and aeroplanes will include all aircraft. The loss of the vessel must be during a sea voyage w/c include not only voyages in the open sea but also passage Art. 392. If the absentee appears or without along the mouth or river, canals, etc. in the course of such appearing his existence is proved, he shall recover his voyage. However, trips w/c are only inland waters are not property in the condition in which it may be found, and included. the price of any property that may have been alienated or the property acquired therewith; but he cannot claim Missing in War.-- The term "war" is construed generally; it either fruits or rents. is not limited to war as understood in international law, but includes all military operations or undertakings in armed Tolentino: The rights of the possessors of the absentee's prop. fighting. The presumption in case of persons missing in war, are dependent upon the presumed death of the latter; hence, if applies not only to soldiers, but also to those who are he reappears, those rights cease. For this reason, the employed by or render services to the armed forces (such as possession is conditional and cannot be the basis of nurses, doctors, etc.), those who render voluntary service prescription. Neither will the action of the absentee to (such as guides and guerrillas), and those who follow or stay recover his prop. prescribe. w/ the armed forces (such as reporters, photographers, etc.) It is however, necessary that such disappearance be during EFFECT OF ABSENCE UPON THE CONTINGENT military operations. RIGHTS OF THE ABSENTEE In Danger of Death.-- The death should be considered to have taken place on the day of the danger. xxx If the danger continues for several days, xxx the more logical view seems to be that the period should be computed from the last day of such danger; in cases of expeditions or similar ventures of w/c nothing is heard after it has started, the date when it should have been completed, if favorably concluded, is to be taken into account. BALANE CASE: Art. 393. Whoever claims a right pertaining to a person whose existence is not recognized must prove that he was living at the time his existence was necessary in order to acquire said right. Tolentino: For the acquisition of rights by an absentee, life is not presumed before the date of presumptive death. Art. 394. Without prejudice to the provision of the preceding article, upon the opening of a succession to which an absentee is called, his share shall accrue to his co-heirs, unless he has heirs, assigns, or a representative. They shall all, as the case may be, make an inventory of the property.

EASTERN SHIPPING V. LUCERO [124 S 425] - F: On 2/16/80, the petitioner co. received 3 radio messages from Capt. Lucero on board M/V Eastern Minicon, the last of w/c, received at 9:50 P.M. of that day, was a call for immediate assistance in view of the existing "danger;" "sea water was Art. 395. The provisions of the preceding article entering the hatch;" the vessel "was listing 50 to 60 degrees are understood to be without prejudice to the action or port," and they were "preparing to abandon the ship any petition for inheritance or other rights which are vested in time." After this message, nothing more has been heard from the absentee, his representative or successors in interest. the vessel or its crew until the present time. These rights shall not be extinguished save by lapse of On 7/16/80, Mrs. Lucero filed a complaint w/ the time fixed for prescription. In the record that is made in National Seamen Board for payment of her accrued monthly the Registry of the real estate which accrues to the coallotment w/c the Co. had stopped since 3/80 and for heirs, the circumstance of its being subject to the continued payment of said allotments until M/V Minicon provisions of this article shall be stated. shall have returned to the port of Mla. On 5/19/81, the Board rendered judgement in favor Art. 396. Those who may have entered upon the of Mrs. L and held that the presumption of death could not be inheritance shall appropriate the fruits received in good applied bec. the 4-yr period [Art. 391(1)] had not yet expired. faith so long as the absentee does not appear, or while his On appeal, the NLRC affirmed said decision. PAGE 122

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Notes, Cases and Commentaries on Persons and Family Relation representatives or successors in interest do not bring the Copies of the notice of the time and place fixed for proper actions. the hearing shall be served upon the known heirs, legatees, devisees, creditors and other interested persons, Art. 43. If there is doubt, as between two or more at least ten (10) days before the day of the hearing, and persons who are called to succeed each other, as to which shall be published once a week for three (3) consecutive of them died first, whoever alleges the death of one prior weeks prior to the time designated for the hearing, in a to the other, shall prove the same; in the absence of proof, newspaper of general circulation in the province or city it is presumed that they died at the same time and there where the absentee resides, as the court shall deem best. shall be no transmission of rights from one to the other. Sec. 5. Opposition. - Anyone appearing to contest Rule 107, Rules of Court - ABSENTEES the petition shall state in writing his grounds therefor, and serve a copy thereof on the petitioner and other interested Sec. 1. Appointment of representative. - When a parties on or before the date designated for the hearing. person disappears from his domicile, his whereabouts being unknown, and without having left an agent to Sec. 6. Proof at hearing; order. - At the hearing, administer his property, or the power conferred upon the compliance with the provisions of section 4 of this rule agent has expired, any interested party, relative or friend, must first be shown. Upon satisfactory proof of the may petition the Court of First Instance of the place where allegations in the petition, the court shall issue an order the absentee resided before his disappearance, for the granting the same and appointing the representative, appointment of a person to represent him provisionally in trustee or administrator for the absentee. The judge shall all that may be necessary. In the City of Manila, the take the necessary measures to safeguard the rights and petition shall be filed in the Juvenile Domestic Relations interests of the absentee and shall specify the powers, Court. obligations and remuneration of his representative, trustee or administrator, regulating them by the rules concerning Sec. 2. Declaration of absence; who may petition. guardians. After the lapse of two (2) years from his disappearance In case of declaration of absence, the same shall and without any news about the absentee or since the not take effect until six (6) months after its publication in receipt of the last news, or of five (5) years in case the a newspaper of general circulation designated by the court absentee has left a person in charge of the administration and in the Official Gazette. of his property, the declaration of his absence and appointment of a trustee or administrator may be applied Sec. 7. Who may be appointed. - In the for by any of the following: appointment of a representative, the spouse present shall (a) The spouse present; be preferred when there is no legal separation. If the (b) The heirs instituted in a will, who may present absentee left no spouse, or if the spouse present is a minor an authentic copy of the same; or otherwise incompetent, any competent person may be (c) The relatives who would succeed by the law of appointed by the court. intestacy; and In case of declaration of absence, the trustee or (d) Those who have over the property of the administrator of the absentee's property shall be absentee some right subordinated to the condition of his appointed in accordance with the preceding paragraph. death. Sec. 8. Termination of administration. - The Sec. 3. Contents of petition. - The petition for the trusteeship or administration of the property of the appointment of a representative, or for the declaration of absentee shall cease upon order of the court in any of the absence and the appointment of a trustee or an following cases: administrator, must show the following: (a) When the absentee appears personally or by (a) The jurisdictional facts; means of an agent; (b) The names, ages, and residences of the heirs (b) When the death of the absentee is proved and instituted in the will, copy of which shall be presented, his testate or intestate heirs appear; and of the relatives who would succeed by the law of (c) When a third person appears, showing by a intestacy, proper document that he has acquired the absentee's (c) The names and residences of creditors and property by purchase or other title. others who may have any adverse interest over the In these cases the trustee or administrator shall property of the absentee; cease in the performance of his office, and the property (d) The probable value, location and character of shall be placed at the disposal of those who may have a the property belonging to the absentee. right thereto. Sec. 4. Time of hearing; notice and publication thereof. - When a petition for the appointment of a representative, or for the declaration of absence and the XIX. FUNERALS appointment of a trustee or administrator, is filed, the court shall fix a date and place for the hearing thereof Tolentino: Juridical Nature of Corpse.-- The corpse cannot where all concerned may appear to contest the petition. be the subject of rights, bec. juridical personality is PAGE 123

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Notes, Cases and Commentaries on Persons and Family Relation extinguished by death. Evidently, it is an object or a thing, be excluded, bec. they would have an inherent right to but it is not prop.; it is not susceptible of appropriation. witness the interment. Purposes of Legal Protection: (1) to protect the feelings of those related to the deceased; (2) to avoid dangers to the health of the living; and (3) to allow scientific investigation and study. Right to the Corpse.-- The corpse is outside the commerce of man. A contract for valuable consideration disposing of the corpse, except when expressly permitted by law, would be void as contrary to morals. xxx There is, however, a certain right to the possession of the corpse, for the purpose of decent burial, and for the exclusion of intrusion by third persons who have no legitimate interest in it. Any person charged by law w/ the duty of burying the body of a deceased person is entitled to the custody of such body for the purpose of burying it, except when an inquest is required by law for the purpose of determining the cause of death; and, in case of death due to or accompanied by a dangerous communicable disease, such body shall until buried remain in the custody of the local board of health or local health officer, or if there be no such, then in the custody of the municipal council. (Sec. 1104, Revised Admin. Code.) Art. 305. The duty and the right to make arrangements for the funeral of a relative shall be in accordance with the order established for support, under Art. 199 of the Family Code. In case of descendants of the same degree, or of brothers and sisters, the oldest shall be preferred. In case of ascendants, the paternal shall have a better right. Art. 199. Whenever two or more persons are obliged to give support, the liability shall devolve upon the following persons in the order herein provided: (1) The spouse; (2) The descendants in the nearest degree; (3) The ascendants in the nearest degree; (4) The brothers and sisters. (Family Code.) Tolentino: Right to make funeral arrangements.-- If there are no persons who are bound to support the deceased, or if there are but they are w/o means to defray the funeral expenses, the duty of burial shall devolve upon the municipal authorities. Same; Subject to waiver.-- The persons who are preferred in the right may waive this right expressly or impliedly, in w/c case the right and duty immediately descend to the person next in the order prescribed by law. Extent of Right.-- Under our law, it seems that the person entitled to the custody of the corpse cannot exclude the friends and other relatives of the deceased; such exclusion, w/o just cause, would be an abuse of right prohibited by Art. 19, NCC, or an act contrary to good customs under Art. 21. The members of the family of the deceased, of course, cannot BALANE CASE: Eugenio v. Velez [185 S 425 (1990)] -- F: Unaware of the death on 8/28/88 of Vitaliana Vargas (VV), her full blood brothers and sisters (Vargases) filed on 9/27/88, a petition for habeas corpus alleging that VV was forcibly taken from her residence and confined by herein petitioner in his palatial residence. Resp. court issued the writ but the writ was returned unsatisfied. Petitioner (Pet.) refused to surrender the body of VV to resp. sheriff on the ground that a corpse cannot be the subject of habeas corpus (hc) proceedings; besides, according to him, he had already obtained a burial permit from the Undersec. of DOH, authorizing the burial at his palace quadrangle. Pet. also alleged that VV died of heart failure due to toxemia of pregnancy. As her common law husband, pet. claimed legal custody of her body. Pet. (as resp. in the SP) filed an urgent motion to dismiss the petition therein. Bef. resolving the motion, the Vargases were granted leave to amend their petition. Claiming to have knowledge of the death of VV only after the filing of the petition for hc, pvt. resps. alleged that pet., who is not in any way related to VV was wrongfully interfering w/ their duty to bury her (invoking Arts. 305, 308, NCC.) On the other hand, petitioner claims, he is the spouse contemplated under Art. 294, NCC, the term spouse used therein not being preceded by any qualification. The RTC ruled for the respondents in this case. HELD: We hold that the provisions of the NCC unless expressly providing to the contrary as in Art. 144, when referring to a "spouse" contemplate a lawfully wedded spouse. Philippine Law does not recognize common law marriage. Petitioner vis--vis Vitaliana was not a lawfully-wedded spouse to her; in fact, he was not legally capacitated to marry her in her lifetime (being himself legally married to another woman.) Custody of the dead body of Vitaliana was correctly awarded to her surviving brothers and sisters. Sec. 1103 (b) of the Rev. Admin. Code provides: "If the deceased was an unmarried man or woman, or a child, and left any kin, the duty of burial shall devolve upon the nearest of kin of the deceased, if they be adults and within the Phils. and in the possession of sufficient means to defray the necessary expenses." Art. 306. Every funeral shall be in keeping with the social position of the deceased. Tolentino: This article does not provide for a sanction for its enforcement. However, the sanctions may be found in other provisions of the law.

Art. 307. The funeral shall be in accordance with the expressed wishes of the deceased. In the absence of such expression, his religious beliefs or affiliation shall determine the funeral rites. In case of doubt, the form of the funeral shall be decided upon by the person obliged to PAGE 124

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Notes, Cases and Commentaries on Persons and Family Relation make arrangements for the same, after consulting with the (2) His spouse, his parent or parents, his direct other members of the family. descendants, or the guardian or institution legally-incharge of him if he is a minor; Art. 308. No human remains shall be retained, (3) The court or proper public official whenever interred, disposed of or exhumed without the consent of absolutely necessary in administrative, judicial or other the persons mentioned in Art. 199 of the Family Code and official proceedings to determine the identity of the 305 (of the Civil Code.) child's parents or other circumstances surrounding his birth; and Tolentino: Exhumation of Corpse For Evidential (4) In case of the person's death, the nearest of Purposes.-- Although the present art. prohibits exhumation kin. w/o the consent of the persons obliged to support the deceased Any person violating the prohibition shall suffer in life, the right of such persons must yield to public interests the penalty of imprisonment of at least two months or a when the exhumation appears to be absolutely essential to the fine in an amount not exceeding five hundred pesos, or administration of justice such as where there is no other way both, in the discretion of the court. (P.D. 603, The Child to prove a material fact except by exhumation of a body w/c and Youth Welfare Code. ) has been interred. Disposition of Corpse by Deceased.-- Although a person cannot dispose of his corpse by act inter vivos or mortis causa as prop., he may provide the manner in w/c it shall be disposed of by those called upon to do so. RA 349 recognizes the validity of an authorization given by a person to use parts of his corpse for medical, surgical, and scientific purposes. Corpses w/c are to be buried at public expense may also be used for scientific purposes, under certain conditions. Performance of Autopsies.-- An autopsy may either be private or official. If it is private, it cannot be performed w/o the consent of the persons having a right to the corpse. On the other hand, in the higher interests of the State, official autopsies may be performed regardless of the wishes of the persons entitled to the corpse. Art. 309. Any person who shows disrespect to the dead, or wrongfully interferes with a funeral, shall be liable to the family of the deceased for damages, material and moral. Art. 310. The construction of a tombstone or mausoleum shall be deemed a part of the funeral expenses, and shall be chargeable to the conjugal partnership property, if the deceased is one of the spouses. Art. 408. The following shall be entered in the civil register: (1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriages; (6) judgments declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgements of natural children; (10) naturalization; (11) loss or (12) recovery of citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary emancipation of a minor; and (16) change of name. Art. 409. In cases of legal separation, adoption, naturalization and other judicial orders mentioned in the preceding article, it shall be the duty of the clerk of the court which issued the decree to ascertain whether the same has been registered, and if this has not been done, to send a copy of said decree to the civil registry of the city or municipality where the court is functioning. Art. 410. The books making up the civil register and all documents relating thereto shall be considered public documents and shall be prima facie evidence of the facts therein contained. BALANE CASE: Sermonia v. CA [233 S 155 (1994)] -- F: In an info. filed on 5/26/92, petitioner Jose Sermonia was charged w/ bigamy before RTC-Pasig for contracting marriage w/ Ma. Lourdes Unson on 2/15/75 while his prior marriage w/ Virginia Nieverra remained valid and subsisting. Pet. moved to quash the info. on the ground that his crim. liab. for bigamy has been extinguished by prescription. His motion was denied. MFR was likewise denied. Pet. challenged the above orders

XX. CIVIL REGISTER Art. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil register. Balane: Correlate Art. 407 w/ Art. 7, PD 603. Sec. 7. Non-disclosure of Birth Records. - The records of a person's birth shall be kept strictly confidential and no information relating thereto shall be issued except on the request of any of the following: (1) The person himself, or any person authorized by him;

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Notes, Cases and Commentaries on Persons and Family Relation bef. the CA through a petition for certiorari and prohibition. Tolentino: Changes or corrections in entries in the Civil His petition was dismissed for lack of merit. Registry may be sought by 2 different procedures: (1) In this course, pet. contends that his crim. liab. for summary procedure for the correction of clerical errors, and bigamy has been obliterated by prescription. He avers that (2) adversary, litigious, or contentious procedure for changes since the 2nd marriage was duly registered w/ the Office of of a substantial character. the Civil Registrar in 1975, such fact of registration makes it Corrections to be made in the civil register may be a matter of public record and thus constitutes notice to the either clerical or substantial. The proceeding under Art. 412 whole world. The offended party is considered to have had and Rule 108 of the Rules of Court may either be summary or constructive notice of the 2nd marriage as of 1975; hence, the adversary in nature. Even substantial or material errors in corresponding info. for bigamy should have been filed on or the civil register may be corrected provided the appropriate before 1990 and not only in 1992. remedy is availed of. The Rules of Court provides: HELD: (1) The rule on constructive notice cannot apply in the crime of bigamy notwithstanding the possibility of its RULE 108 - CANCELLATION OR CORRECTION OF being more favorable to the accused. As the CA succinctly ENTRIES IN THE CIVIL REGISTRY explains-xxx [T]he principle of constructive notice should Sec. 1, Who may file petition. - Any person not be applied in regard to the crime of bigamy as judicial interested in any act, event, order or decree concerning notice may be taken of the fact that a bigamous marriage is the civil status of persons which has been recorded in the generally entered into by the offender in secrecy from the civil register, may file a verified petition for the spouse of the previous subsisting marriage. Also, a bigamous cancellation or correction of any entry relating thereto, marriage is generally entered into in a place where the with the Court of First Instance of the province where the offender is not known to be still a married person, in order to corresponding civil registry is located. conceal his legal impediment to contract another marriage. xxx [T]he criminal cases cited by the petitioner Sec. 2. Entries subject to cancellation or wherein constructive notice was applied involved land or correction. - Upon good and valid grounds, the following prop. disputes and certainly, marriage is not prop. entries in the civil register may be cancelled or corrected; The non-application to the crime of bigamy of the (a) births; prin. of constructive notice is not contrary to the policy that (b) marriage; penal laws should be construed liberally in favor of the (c) deaths; accused. To compute the prescriptive period for the offense (d) legal separations; of bigamy from registration thereof would amount to almost (e) judgments of annulments of marriage; absolving offenders thereof for liab. therefor. xxx (f) judgments declaring marriages void from the (2) The rule on constructive notice will make de beginning; rigueur the routinary inspection or verification of the (g) legitimations; marriages listed in the National Census Office and in various (h) adoptions; local civil registries all over the country to make certain that (i) acknowledgments of natural children; no subsequent marriage has been contracted w/o the (j) naturalization; knowledge of the legitimate spouse. (k) election, loss or recovery of citizenship; (3) More importantly, while Sec. 52 of PD 1529 (l) civil interdiction; (Prop. Reg. Dec.) provides for constructive notice to all (m) judicial determination of filiation; persons of every conveyance, mortgage, lease, lien, etc. (n) voluntary emancipation of a minor, and affecting registered land filed or entered in the office of the (o) changes of name. Register of Deeds for the province or city where the land to w/c it relates lies from the time of such registration, there is Sec. 3. Parties. - When cancellation or correction no counterpart provision either in Act 3753 (Act to Establish of an entry in the civil register is sought, the civil registrar a Civil Register) or in Arts. 407 to 413, NCC, w/c leads to the and all persons who have or claim any interest which conclusion that there is no legal basis for applying the would be affected thereby shall be made parties to the constructive notice rule to documents registered in the Civil proceeding. Register. Sec. 4. Notice and publication. - Upon the filing of the petition, the court shall, by an order, fix the time and Art. 411. Every civil registrar shall be civilly place for the hearing of the same, and cause reasonable responsible for any unauthorized alteration made in any notice thereof to be given to the persons named in the civil register, to any person suffering damage thereby. petition. The court shall also cause the order to be However, the civil registrar may exempt himself from published once a week for three (3) consecutive weeks in a such liability if he proves that he has taken every newspaper of general circulation in the province. reasonable precaution to prevent the unlawful alteration. Sec. 5. Opposition. - The civil registrar and any Art. 412. No entry in a civil register shall be person having or claiming any interest under the entry changed or corrected, without judicial order. whose cancellation or correction is sought may, within fifteen (15) days from notice of the petition, or from the PAGE 126

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Notes, Cases and Commentaries on Persons and Family Relation last date of publication of such notice, file his opposition ROC is confined to "innocuous or clerical errors, such as thereto. misspellings and the like, errors that are visible to the eyes or obvious to the understanding" or corrections that are not Sec. 6. Expediting proceedings. - The court in controversial and are supported by indubitable evidence. which the proceeding is brought may make orders A clerical error is one made by a clerk in expediting the proceedings, and may also grant transcribing or otherwise, and, of course, must be apparent on preliminary injunction for the preservation of the rights of the face of the record, and capable of being corrected by the parties pending such proceedings. reference to the record only. The alleged error in this case cannot be determined Sec. 7. Order. - After hearing, the court may by reference to the record. There is a need to determine w/n either dismiss the petition or issue an order granting the Rosario B. and Domingo B. are one and the same person and cancellation or correction prayed for. In either case, a to ascertain why Domingo was registered in the record of certified copy of the judgment shall be served upon the birth as Rosario. civil registrar concerned who shall annotate the same in his record. Republic v. Valencia [141 S 462 (1986)] -- F: Resp. Leonor Valencia, for and in behalf of her minor children, Bernardo Go and Jessica Go filed w/ the CFI-Cebu a petition for the Balane: Recapitulate.-- An error in an entry in the Civil cancellation and/or correction of entries of birth of her 2 Register can only be corrected by court order. The proper minor children in the Civil Registry of Cebu. The petition action to file depends on whether the error is merely clerical seeks to change the nationality or citizenship of Bernardo Go or substantive. If merely clerical, summary proceeding for and Jessica Go from "Chinese" to "Filipino" and their status correction is enough; if substantive, adversary proceeding is from "Legitimate" to "Illegitimate," and changing also the required. status of the mother from "married" to "single." The Local Civil Registrar of Cebu filed a motion to dismiss on the BALANE CASES: ground that the corrections sought are not merely clerical but substantial. The lower court denied the motion to dismiss. Barreto v. Civil Registrar of Manila [74 S 257 (1976)] -- F: From the decision of the lower court, oppositor-appellant According to the Civil Register of Mla, a female child named Republic appealed. Rosario Barreto was born on 6/29/44 to spouses Faustina Barreto and King Lian, both natives of Amoy, China. On the HELD: [I]f the subject matter of a petition is not for the other hand, according the record of baptisms of the correction of clerical errors of a harmless and innocuous Parroquia de Chinos in Mla., a child born on 6/29/44 to the nature, but one involving nationality or citizenship, w/c is Barreto spouses was baptized w/ the name of Domingo Sy indisputably substantial as well as controversial, affirmative Barreto. xxx In 1967, Domingo B. requested the local civil relief cannot be granted in a proceeding summary in nature. registrar of Mla. to issue a certified copy of his birth record However, it is also true that a right in law may be enforced w/c he needed in connection w/ his application for a marriage and a wrong may be remedied as long as the appropriate license. He discovered that his name in the record of birth is remedy is used. This court adheres to the principle that even Rosario, a female. Bec. of that discrepancy, he was not able substantial errors in a civil registry may be corrected and the to secure a license. Thereafter, he filed a petition in the CFItrue facts established provided the parties aggrieved by the Mla. for the correction of the alleged entries in his birth error avail themselves of the appropriate adversary record regarding his name and sex. Initially, his petition was proceeding. dismissed. But finally, his amended petition was granted on xxx the ground that the error sought to be corrected was "merely What is meant by appropriate adversary typographical or clerical error, and not controversial." The proceeding? Black's Law Dictionary defines "adversary Republic appealed through the Sol-Gen. proceeding" as follows: "One having opposing parties; contested, as ISSUE: W/n the supposed erroneous entry as to the sex of distinguished from an ex parte application, one of w/c the Rosario B. , as indicated in the birth record, is a clerical error party seeking relief has given legal warning to the other that may be changed by means of a petition for correction party, and afforded the latter an opportunity to contest it. filed by one Domingo B. who claims to be the same person as xxx" Rosario B. xxx Provided that the trial court has conducted HELD: We hold that the petition is not warranted bec. under proceedings where all relevant facts have been fully and the facts of this case, the alleged error is not clerical in properly developed, where opposing counsel have been given nature. If the name in the record of birth were Domingo B. opportunity to demolish the opposite party's case, and where and his sex was indicated therein as female, it might be the evidence has been thoroughly weighed and considered, argued that the error would be clerical. But that is not the the suit or proceeding is "appropriate." fact in the case. The situation is more complicated. A person xxx named Domingo B. claims he is Rosario B. and that the word [T]he persons who must be made parties to a "female" in the latter's birth record is a mistake. proceeding concerning the cancellation or correction of an It is settled that the summary proc. for correction of entry in the civil register are-- (1) the civil registrar, and (2) entries in the civil registry under Art. 412, NCC and R 108, all persons who have or claim any interest w/c would be PAGE 127

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Notes, Cases and Commentaries on Persons and Family Relation affected thereby. Upon the filing of the petition, it becomes the duty of the court to-- (1) issue an order fixing the time HELD: The contention is w/o merit. While the Court has, and place for the hearing of the petition, and (2) cause the indeed previously ruled that changes or corrections order for hearing to be published once a wk for 3 consecutive authorized under Art. 412, w/c envisions a summary proc., weeks in a newspaper of gen. circ. in the province. The relate only to harmless and innocuous alterations, such as following are likewise entitled to oppose the petition-- (1) misspellings or errors that are visible to the eyes or obvious to the civil registrar, and (2) any person having or claiming any the understanding and that changes in the citizenship of a interest under the entry whose cancellation or correction is person or his civil status are substantial as well as sought. controversial, w/c can only be established in appropriate If all these procedural requirements have been adversary proc., the rule has been relaxed in the case of Rep. followed, a petition for correction and/ or cancellation of v. Valencia. entries in the record of birth even if filed and conducted xxx under R 108, ROC can no longer be described as "summary." In the instant case, there is no doubt that the proc. There can be no doubt that when an opposition to the petition conducted in the lower court was an adversary proc. and is filed either by the Civil Registrar or any person having or "appropriate" in that "all relevant facts have been fully and claiming any interest in the interest in the entries sought to be properly developed, where the opposing counsel have been cancelled and/ or corrected and the opposition is actively given the opportunity to demolish the opposite party's case, prosecuted, the proceedings thereon become adversary and where the evidence has been thoroughly weighed and proceedings. considered." The questioned order states in part: In this case, the court took note of the fact that all the procedural requirements have been followed and hence xxx After the required publ. of the order of Notice the recorded proceedings that actually took place could very of hrng. dated 8/22/78 in the Cagayan Valley Weekly Journal, well be regarded as that proper suit or appropriate action. has been complied w/ and notice to the Sol-Gen, petitioner adduced evidence on 10/17/78. No written opposition was xxx In the instant case, a pet. for cancellation and/or interposed by resp. but at the hrng. , Asst. Prov. Fiscal correction of entries of birth of Bernardo Go and Jessica Go Gonzales appeared for and in behalf of the Sol-Gen. in the Civ. Reg.- Cebu City was filed by resp. L. Valencia on 1/27/70, and pursuant to the order of the trial court dated 2/4/70, the said pet. was published once a wk for 3 Republic v. Bautista [155 S 1] -- F: In her verified pet. consecutive wks. in the Cebu Advocate, a newspaper of gen. filed before the lower court, pvt. resp. Imelda Mangabat circ. in the City of Cebu. Notice thereof was duly served on Sorensen sought to correct and change the word "American" the Sol-Gen., the Local Civ. Registrar and Go Eng. The into the word "Danish" in the birth certificate of her minor order likewise set the case for hearing and directed the local son, Raymund M. Sorensen to reflect the true nationality of civ. registrar and the other resps. or any person claiming any Bo Huage Sorensen, her husband and the father of said minor interest under the entries whose corrections were sought, to child. The Rep. opposed the pet. and moved for the dismissal file their opposition to the said pet. An opposition to the pet. on the ground that a correction of entry in the Civ. Reg. is was consequently filed by the Rep. on 2/26/70. Thereafter, a allowed only when the same refers to mere clerical errors or full blown trial followed w/ resp. L. Valencia testifying and mistakes, but not to substantial changes affecting the civil presenting her documentary evi. in support of her pet. The status, nationality or citizenship of the person concerned. Rep. on the other hand, cross-examined resp. L.V. The court a quo rendered in favor of petitioner (pvt. resp. herein.) Hence, this pet. by the Rep. Republic v. Flojo [152 S 550] -- F: It appears that herein HELD: We are constrained to deny the instant pet. for pvt resp. Inocencio P. Carag filed a verified pet. w/ CFIreview. The issue now bef. us has been resolved in the case Cagayan to correct an entry in his register of birth wherein he of Rep. v . Valencia wherein the court held that the was erroneously registered as a "Chinese" instead of a proceedings under Art. 412 and Rule 108, ROC may either be Filipino citizen. Named resp. was the Local Registrar of summary or adversary in nature. If the correction sought to Aparri, Cagayan. After due notice to the Sol-Gen and publ. be made in the civ. reg. is clerical, then the procedure to be of the notice of hrng., dated 8/22/78, in the Cagayan Weekly adopted is summary. If the rectification affects the civil Journal, the parties were heard. At the hrng., it was status, citizenship or nationality of a party, it is deemed established that the petitioner herein, I. Carag, was born in substantial, and the procedure to be adopted is adversary. Aparri, Cagayan on 3/15/47, to sps. Vicente Carag Tan, a xxx natural child of Eugenia Baquiran who is a Filipino citizen, and Anastacia Pe. Accordingly, the resp. Judge found, and so In Rep. v. Valencia, we postulated that the ruled that I. Carag is a Filipino citizen so that the necessary appropriate remedy may well be a pet. filed by way of SP for correction shld be made in his record of birth. the cancellation and/or correction of substantial entries in the The Republic now questions the order on the ground civ. reg. w/ the requisite parties, notices, publications and the that it is "contrary to the well-settled doctrine that only proceedings to be taken thereafter pursuant to Secs. 3, 4 and 5 mistakes in the entries in the Civ. Reg. w/c can be corrected of R108 bec. then the proc. will be adversary in character. under Art. 412 and R 108, ROC are those that are merely In the present case, the records show that the Pasay clerical in nature and not those w/c affect the civil status or City Local Civ. Reg. and the Sol-Gen. were made parties to citizenship of the person involved." the pet. The proper notice was published once a wk for 3 PAGE 128

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Notes, Cases and Commentaries on Persons and Family Relation consecutive wks. in the Rizal Weekly Bulletin, a newspaper of gen. circ. The Rep. appeared thru a trial atty. of the Office In the instant case, we hold that an appropriate of the Sol-Gen. who was present and did not object to the adversary proc. has taken place. xxx presentation of evidence, xxx. The controverted order dated 3/31/73, by itself, indicates sufficient compliance w/ the requirements of an Republic v. Carriaga [159 S 12] -- F: Pvt. resp., Antonio appropriate adversary proc. The publ. requirement has been Tan Lim, filed w/ the CFI-Cotabato a pet. for the correction complied w/. In the hrng., the pvt. resp. presented his of entries in the birth certificates of his children as follows: evidence. Opposition by the petitioner thereto was received "(1) xxx Frederick Sespene-Lim: The father's by the court. And from this proc., it was conclusively nationality shld be changed from Chinese to Filipino. The established that no marriage bet. pvt. resp. and Dolores D. father's religion shld be changed from Catholic to Islam. The Balance, mother of the child, took place on 1/7/69; that the father's race should be brown not yellow. The date of pvt. resp. hardly knew Dolores and never had any marriage of the parents should be 4/28/57 and not 2/1/58. extramarital relations w/ her; and that he is very much a (2) xxx Patrick Sespene-Lim: The name Patrick married man and his wife is still living. The record of the shld be spelled Patrick Sespene-Lim. The date of marriage of case does not show any rebuttal of the evidence of the pvt. child's parents is 4/28/57, not 2/1/58. resp. (3) xxx Janebelle Sespene-Lim: The name looks tampered, hence, it shld be ordered written clearly as Janebelle. Zapanta v. Civil Registrar [237 S 25] -- F: The pet. alleges (4) xxx Antonio Sespene-Lim: The name of the that petitioner Gliceria S. Zapanta is the widow of the late child's mother is wrongly written Leyte. It shld. be Letty." Florencio B. Zapanta; xxx that said deceased on 8/5/65, was The Rep. filed an opposition w/c was not acted upon admitted and confined at the San Pedro Hospital, Davao City, positively. Resp. court granted the pet. Hence the petitioner and met his untimely demise on 8/11/65; that after traditional filed this petition before us raising the sole issue of w/n the church ceremonies at the Sta. Ana Church, the remains of the supposed erroneous entries in the birth certs. are merely deceased was entombed at the mun. cemetery of Davao City clerical errors that can be changed or altered by means of a on 8/12/65; that when petitioner requested the Local Civ. petition for correction of entry under R 108, ROC. Reg. of Davao City a certified true copy of the death cert. of her late husband, she discovered to her dismay and surprise, HELD: We reiterate our ruling in Rep. v. Valencia. that the name indicated in said death cert. was "Flaviano xxx Castro Zapanta," albeit the date of death and all other circumstances and information reflected therein clearly and In the case at bar, not only have the procedural conclusively revealed that the person referred to therein was requirements been complied w/ but a trial was duly conducted no other than her late husband. Hence, petitioner prays that, wherein the pvt. resp. was given the chance to present his after due notice and hrng., an order be issued directing the evidence while the fiscal was likewise given every Local Civ. Reg. to correct the death cert. of her deceased opportunity to present his opposition. The safeguards in husband by changing his name from "Flaviano Castro Rep. v. Valencia were followed. Zapanta" to "Florencio B. Zapanta." The court a quo True, the City Fiscal decided not to submit any dismissed the pet. reasoning that the correction of the name evidence in opposition to the averments in the petition, but "Flaviano Castro Z." to "Florencio B. Z," was not merely the pvt. resps submitted satisfactory evidence to prove his clerical but substantial in nature and that it thereby did not case. have the power to grant the relief prayed for. Republic v. CFI [161 S 681] -- F: In a pet. filed on 5/15/71, w/ resp. CFI-Camarines Sur, the pvt. resp. Reynaldo C. Neola sought the correction of the entries appearing in the original cert. of birth of Reynaldo Balance Neola, Jr., in the records of the Local Civ. Reg. of Naga City. Specifically, the pvt. resp., a policeman, prayed for the striking out from the records of the following: (a) all info. referring to him as the father of Reynaldo Balance Neola, Jr.; (b) the surname "Neola, Jr., " and (c) the child is legitimate and his parents are married. On 5/26/72, the City Fiscal, for the Sol-Gen., filed an opposition and moved for the dismissal of the pet. on the ground that the rectification sought was not on mere clerical errors. He argued that this correction must be obtained in an appropriate adversary proc. The resp. court granted the petition. Hence, this petition by the Rep. HELD: The trial court committed reversible error. xxx (The court reiterated the ruling in Rep. v. Valencia.) xxx The records show that the publ. requirement has already been complied w/. The next step would thus be for the court a quo to consider the pet. before it to be, in substance, an adversary proc. and to allow petitioner and all adverse and interested parties their day in court. Art. 413. All other matters pertaining to the registration of civil status shall be governed by special laws. (See Act No. 3613, as amended)

HELD: We affirm the trial court's decision. xxx (The court reiterated the ruling in Rep. v. Valencia.) PAGE 129

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