PERSONS REVIEWER

Notes, Cases, Annotations

(RAM) Tolentino, CIVIL CODE OF THE PHILIPPINES,
Commentaries and Jurisprudence, Vol. 1 (hereinafter Tolentino):
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.

reproductions of the Spanish Civil Code (OCC); 32% were

modified or amended. These comprised 57% of the Code on
Persons, Obligations and Contracts, 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 doubtful.

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.)

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 which means "town," "that w/c
has reference to a citizen;" buch w/c means "book;" BGB means
"a lawbook governing citizens."]

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.)

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 3336), Reformation of Instruments (Art. 1359), two additional quasicontracts (Art. 2174 and 2175), moral and nominal damages
(Arts. 2217 and 2221)

Foundation of Law -- Law rests upon the concepts of order, coexistence, 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:
1. Divine law - is meant that in which God himself is the
legislator who has promulgated the law;
2. 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, because 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.

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 which is very
western. In the Philippines 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 because the
same is also applicable to marriage, wills-- all juridical
transactions. The same is also true with 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,' which 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)

Prof. Ruben Balane (hereinafter Balane): According to the Code

Commission, 25% of the articles in the NCC are exact

PERSONS REVIEWER
Notes, Cases, Annotations

PRELIMINARY TITLE
I.

Effect and Application of Laws

Art. 1. This Act shall be known as the Civil Code of the

Philippines.
Civil Code defined - A civil code is a collection of laws which
regulate the private relations of the members of civil society,
determining their respective rights and obligations, w/
reference to persons, things, and civil acts. (Tolentino)
Language used, English The New Civil Code was drafted
and approved in the English language. In interpreting its
provisions, the English text shall prevail over any translation,
including and Spanish translation (Sec. 15, Revised
Administrative Code). (Pineda)
Sources of the Civil Code:
(1) The Civil Code of 1889;
(2) The codes, laws, and judicial decisions, as well as the
works of jurists of other countries, such as Spain, the various
states of the American Union, etc.;
(3) Doctrines laid down by the SC of the Philippines;
(4) Filipino customs and traditions;
(5) Philippine statutes, such as the Marriage Law, the Divorce
Law, the Code of Civil Proc. and the Rules of Court.
(6) The Code Commission itself
(7) Works of jurists and commentators of various nations
(added by Jurado, CIVIL LAW REVIEWER.)
Civil Code vs. Civil Law A Civil Code is a compilation of
existing civil laws, scientifically arranged into books, titles,
chapters, and sub-heads and promulgated by legislative
authority (Blacks Law Dictionary). A Civil Code is a collection
of laws, which regulate the private relations of the members of
society, determining their respective rights and obligations, with
reference to persons, things, and civil acts (Philippine Legal
Encyclopedia); whereas, Civil Law consists of that mass of
precepts that determine or regulate the relations that exist
between members of a society for the protection of private
interests. (Pineda)
The Civil Law is wider in concept than the Civil Code. The Civil
Code is part of the Civil Law, but not all civil laws are part of the
Civil Code.
Art. 2. Laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is
otherwise provided. This Code shall take effect one year after
such publication.
Balane reviewer: The Civil Code took effect on August 30,
1950 according to the case of Lara v. del Rosario, one year
after its publication, reckoned from the date of actual release.
This code shall take effect 1 year after such publication. The SC in the case of Lara vs. Del Rosario held that the one
year should be counted from the date of actual release and not
the date of issue.
Publication Through Newspapers now Allowed - Executive
Order No. 200 supersedes Article 2 regarding the time of
effectivity of laws. Under EO No. 200, publication may now be

made through newspapers of general circulation. So it is either

in the Official Gazette or in newspapers of general circulation.
EXECUTIVE ORDER NO. 200
PROVIDING FOR THE PUBLICATION OF LAWS EITHER
IN THE OFFICIAL GAZETTE OR IN A NEWSPAPER OF
GENERAL CIRCULATION IN THE PHILIPPINES AS A
REQUIREMENT FOR THEIR EFFECTIVITY
WHEREAS, Article 2 of the Civil Code partly
provides that laws shall take effect after fifteen
days following the completion of their publication in
the Official Gazette, unless it is otherwise provided . .
.;
Sec. 1. Laws shall take effect after fifteen
days following the completion of their publication
either in the Official Gazette or in a newspaper of
general circulation in the Philippines, unless it is
otherwise provided.
Done in the City of Manila, this 18th day of
June, in the year of Our Lord, nineteen hundred and
eighty-seven.

General Rule: Laws must be published in either the Official

Gazette or a newspaper of general circulation.
Exception: unless it is otherwise provided
The law may provide for another manner of publication.
Different manner meaning:
1. Not in Official Gazette or newspaper of general
circulation; or
Example: Read over the television or the radio (provided
that the alternative is reasonable)
2. Change in the period of effectivity.
Pineda: the phrase unless it is otherwise provided refers to
the date of effectivity of laws and not the requirement of
publication (Tanada v. Tuvera, 146 S 446). Publication is
indispensable. In other words, no law can become immediately
effective upon approval without publication. To rule otherwise,
is to run counter with the constitutional requirement of the due
process clause of the Constitution.
Lecture: this phrase unless it is otherwise provided means the
15 day period can be shortened or lengthened or may take
effect immediately BUT publication is still important.
After 15 Days following - this means, the law is effective
on the 16th day following the laws complete publication. If the
law is voluminous and is published in series, it shall be
reckoned from the release of the last of the series. (Pineda)
Publication means making it known; dissemination. It doesnt
have to be in writing.
Change period of effectivity the gap between publication
and effectivity should be reasonable under the circumstances.
C: Pesigan v. Angeles: Before publication, cannot apply the
law whether penal or civil. Why? How can you be bound if you
dont know the law.

PERSONS REVIEWER
Notes, Cases, Annotations
Laws that need publication All statutes, including those of
local application and private laws, shall be published as a
condition for their effectivity. Requirement of publication is
mandatory.
What need not be published? Internal Instructions of
Administrative Agencies and Municipal Ordinances are not
covered by the publication requirement. In Tanada v. Tuvera,
the SC held that no publication is required of the instructions
issued by, say, the Minister of Social Welfare on the case
studies to be made in petition for adoption of rules laid down by
the head of a government agency on the assignments or
workload of his personnel or the wearing of office uniforms.
Parenthetically, municipal ordinances are not covered by this
rule but by the LGC.
Publication must be complete Unless publication of the law
is complete or full, there is no publication at all since the
purpose of publication is to inform the public of the full contents
of the law. The mere mention of the law, its title, the supposed
date of its effectivity ad its whereabouts is no even substantial
compliance. (Tanada v. Tuvera)
Publication of a Central Bank and EO is required if
punitive in character. As such the Circular has the force and
effect of law (PP v. Que Po Lay). CB circulars which are meant
not only to interpret but to fill in the details of the CB Act (RA
No. 265) which the CB is supposed to enforce must be
published to be effective (Tanada v. Tuvera, supra.)
UMALI v. ESTANISLAO [209 S 446 (1992)] - Reiterating
Tanada v. Tuvera, The clause "unless it is otherwise provided"
refers to the date of effectivity and not to the requirement of
publication itself which cannot in any event be omitted. This
clause does not mean that the legislator may make the law
effective immediately upon approval, or on any other date
without its previous publication.
Publication is indispensable in every case, but the legislature
may in its discretion provide that the usual fifteen (15) day
period shall be shortened or extended.
PESIGAN v. ANGELES [129 S 174] - F: Anselmo and Marcelo
Pesigan, carabao dealers, transported in an Isuzu 10-wheeler
truck in the evening of 4/2/82 26 carabaos and a calf from
Sipocot, Camarines Sur w/ P. Garcia, Batangas as destination.
Inspite of the permit to transport and the health certificate and
3 other certificates of inspection, the carabaos, while passing
at Basud, Camarines Norte, were confiscated by the town's
police station commander and 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 another. The Pesigans filed
against the two officials an action for replevin for the recovery
of carabaos. The case was dismissed for lack of cause of
action. Hence, this appeal under R 45 of the ROC.
HELD: We hold that said EO should not be enforced against
the Pesigans on 4/2/82 bec it is a penal regulation (the
confiscation and forfeiture provision or sanction makes EO
626-A a penal statute) published more than 2 mos. later in the
OG dated 6/14/82. It became effective only 15 days thereafter
as provided in Art. 2, NCC and Sec. 11 of the Revised Admin.
Code.

The word "laws" in Art. 2 includes circulars and regulations w/c

prescribe penalties. Publication is necessary to apprise the
public of the contents of the regulations and make the said
penalties binding on the persons affected thereby.
PEOPLE v. VERIDIANO II [132 s 523] - F: PR Benito Go Bio,
Jr. was charged with violation of BP 22. Before he could be
arraigned, Go Bio, Jr. filed a Motion to Quash the information
on the ground that the info. did not charge an 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 effect. The prosecution
opposed the motion contending, among others, that the date of
the dishonor of the check, 9/26/79, is the date of the
commission of the offense. Resolving the motion, the court
granted the same and held that BP 22 cannot be given a
retroactive effect to apply to the case. Hence, this petition for
review on certiorari, petitioner submitting for review respondent
Judge's dismissal of the criminal case.
HELD: When private resp. Go Bio, Jr. committed the act
complained of in May '79 (at the time he issued the check-- the
law penalizes the act of making or drawing and issuance of a
bouncing check and not only the fact of its dishonor), there was
no law penalizing such act. Following the special provision of
BP 22, it became effective only on 6/29/79. The copy editor of
the OG made a certification that the penal statute in question
was made public only on 6/14/79 and not on the printed date
4/9/79. Differently stated, 6/14/79 was the date of publication of
BP 22. Before the public may be bound by its contents
especially its penal provisions, the law must be published and
the people officially informed of its contents. For, if a statute
had not been published before its violation, then, in the eyes of
the law, there was no such law to be violated and,
consequently the accused could not have committed the
alleged crime.
The effectivity clause of BP 22 states that "This Act shall take
effect 15 days after publication in the OG." The term
"publication" in such clause should be given the ordinary
accepted meaning, i.e., to make known to the people in
general. If the legislature had intended to make the printed
date of issue of the OG as the point of reference, then it could
have so stated in the special effectivity provision of BP 22.
TANADA V. TUVERA [136 S 27] - F: Invoking the people's
right to be informed on matters of public concern, a right
recognized in the Constitution, as well as the principle that laws
to be valid and enforceable must be published in the OG or
otherwise effectively promulgated, petitioners seek a writ of
mandamus to compel respondent public officials to publish,
and/or cause the publication in the OG of various PDs, LOIs,
general orders, proclamations, EOs, letters of implementation
and administrative orders. Respondents contend, among
others that publication in the OG is not a sine qua non
requirement for the effectivity of laws where the laws
themselves provide for their own effectivity dates. It is thus
submitted that since the presidential issuances in question
contain special provisions as to the date they are to take effect,
publication in the OG is indispensable for their effectivity. The
point stressed is anchored on Art. 2 of NCC.

PERSONS REVIEWER
Notes, Cases, Annotations
HELD: The interpretation given by respondent is in accord with
this Court's construction of said article. In a long line of
decisions, this Court has ruled that publication in the OG is
necessary in those cases where the legislation itself does not
provide for its effectivity date -- for then the date of publication
is material for determining its date of effectivity, which is the
15th day following its publication -- but not when the law itself
provides for the date when it goes into effect.
Respondent's argument, however, is logically correct only
insofar as it equates the effectivity of laws with the fact of
publication. Considered in the light of other statutes applicable
to the issue at hand, the conclusion is easily reached that said
Art. 2 does not preclude the requirement of publication in the
OG, even if the law itself provides for the date of its effectivity.
xxx The publication of all presidential issuances "of a public
nature" or "of general applicability" is mandated by law. The
clear object of the law is to give the general public adequate
notice of the various laws which are to regulate their actions
and conduct as citizens. Without such notice and publication,
there would be no basis for the application of the maxim
"ignorantia legis non excusat." It would be the height of
injustice to punish or otherwise burden a citizen for the
transgression of a law of which he had no notice whatsoever,
not even a constructive one. It is needless to say that the
publication of presidential issuances "of a public nature" or "of
general applicability" is a requirement of due process. It is a
rule of law that before a person may be bound by law, he must
first be officially and specifically informed of its contents.
Q: Is a law granting citizenship required to be published?
A: SC: Yes. The term laws should refer to all laws and not
only to those of general application, for strictly speaking all
laws relate to the people in general albeit there are some that
do not apply to them directly. An example is a law granting
citizenship to a particular individual, like a relative of Pres.
Marcos who was decreed instant naturalization. It surely
cannot be said that such a law does not affect the public
although it unquestionably does not apply directly to the
people. The subject of such law is a matter of public interest
which any member of the body politic may question in the
political forums, or, if he is a proper party, even in the courts of
justice. In fact, a law w/o any bearing on the public would be
invalid as an intrusion of privacy or a class legislation or as an
ultra vires act of the legislature." (Tanada v. Tuvera, 146 S 446,
453.)
Balane: I disagree w/ the SC. That portion of the decision of
the SC in Tanada is only an obiter.
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?"
Art. 3. Ignorance of the law excuses no one from compliance
therewith.
Ignorantia legis neminem excusat (Ignorance of the law
excuses no one).

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, because 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. (Tolentino)
Ignorance of law v. Ignorance of fact Ignorance may either
be of law or of fact. Ignorance of law is want of knowledge or
acquaintance with the laws of the land insofar as they apply to
the act, relation, duty, or matter under consideration. It does
not excuse a party. Ignorance of fact (ignorantia facti) is want
of knowledge of some fact/s constituting or relating to the
subject matter in hand. It excuses a party from the legal
consequences of his conduct or is a ground for relief.
Rationale for the article This rule is intended to prevent
evasion of law. As held in Zulueta v. Zuelueate, 1 P 258, this
rule is founded not only n expediency and policy but also of
necessity to avoid abuse through allegation that the law has
not come to the knowledge of a party.
Difficult Question of Law When there is a mistake on a
doubtful question of law, or on the construction or application of
law, this is analogous to a mistake of fact, as such has the
same effect. The maxim Ignorantia legis neminem excusat
does not apply.
Articles in the CC which relaxed the rule In these
instances the difficult questions of law have the same effect as
mistakes of fact. (Tolentino)
Art. 526. He is deemed a possessor in good faith who is not
aware that there exists in his title or mode of acquisition any
flaw which invalidates it. He is deemed a possessor in bad
faith who possesses in any case contrary to the foregoing.
Art. 1334. Mutual error as to the legal effect of an agreement
when the real purpose of the parties is frustrated, may vitiate
consent.
Art. 2155. Payment by reason of a mistake in the construction
or application of a difficult question of law may come within the
scope of the preceding article.
Art. 2154. If something is received when there is no
right to demand it and it was unduly delivered
through mistake, the obligation to return it arises.
What Laws Covered, Foreign laws excluded Only
Philippine or domestic laws are covered whether penal or civil
and whether substantive or procedural. While the rule covers
all domestic laws, nonetheless, it applies only to prohibitive or
mandatory laws and not to permissive or suppletory laws.
There is no conclusive presumption of knowledge of foreign
laws. Even our courts cannot take judicial notice of them.

PERSONS REVIEWER
Notes, Cases, Annotations
Ignorance of a foreign law will not be a mistake of law but a
mistake of fact.
A foreign law is a matter of fact which must be proven with
evidence. In the absence of any contrary evidence, it is
presumed to be the same as our domestic law. This
presumption is known as processual presumption.
PP. v. NAVARRO, 51 OG 4062: the rule should not be applied
with equal force to minors who, due to their lack of intelligence,
should be treated differently.
KASILAG v. RODRIGUEZ, 69 P 217 - F: Respondents,
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 asking that cert. of title 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, 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 reason,
she and the petitioner entered into another verbal contract
whereby she conveyed to the latter the possession of the land
on condition that the latter would not collect the interest on the
loan, would attend to the payment of the land tax, would benefit
by the fruits of the land, and would introduce improvements
thereon.
HELD: The possession by the petitioner and his receipts of the
fruits of the land, considered as integral elements of the
contract of antichresis, are illegal and void agreements,
because such contract is a lien and as such is expressly
prohibited by Sec 116 of Act No. 2874, as amended. The CA
held that petitioner acted In BF in taking possession of the land
bec. he knew that the contract he made w/ EA was an absolute
sale, and further, that the latter could not sell the land bec. it is
prohibited by Sec. 116 of Act 2874.

xxx [A] person is deemed a possessor in BF when he knows

that there is a flaw in his title or in the manner of its acquisition,
by w/c it is invalidated.
The question to be answered is w/n the petitioner should be
deemed a possessor in GF bec. he was unaware of any flaw in
his title or in the manner of its acquisition by w/c it is
invalidated. Ignorance of the flaw is the keynote of the rule.
From the facts as found by the CA, we can neither deduce nor
presume that the petitioner was aware of a flaw in his title or in
the manner of its acquisition, aside from the prohibition
contained in Sec. 116. This being the case, the question is w/n
GF may be premised upon ignorance of the laws.
Gross and inexcusable ignorance of the law may not be the
basis of GF but excusable ignorance may be such basis (if it is
based upon ignorance of a fact.) It is a fact that the petitioner
is not conversant w/ the laws bec. he is not a lawyer. In
accepting the mortgage of the improvements he proceeded on
the well-grounded belief that he was not violating the
prohibition regarding the alienation of the land. In taking
possession thereof and in consenting to receive its fruits, he
did not know, as clearly as a jurist does, that the possession
and enjoyment of the fruits are attributes of the contract of
antichresis and that the latter, as a lien, was prohibited by Sec.
116. Thus, as to the petitioner, his ignorance of the provisions
of sec. 116 is excusable and may be the basis of GF.
The petitioners being in GF, the respondents may elect to have
the improvements introduced by the petitioner by paying the
latter the value thereof, P3,000, or to compel the petitioner to
buy and have the land where the improvements or plants are
found, by paying them its market value to be fixed by the court
of origin, upon hearing the parties.
In short, the possesson of the antichretic credit is a possession
in good faith since a difficult question of law was involved
antichresis. The parties were not knowledgeable of the law.
Art. 4. Laws shall have no retroactive effect, unless the contrary
is provided.
Lex de futuro judex de preterito (The law provides for the
future, the judge for the past).
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.
It is one w/c creates a new obligation and imposes a new duty,
or attaches a new disability, in respect to transactions or
considerations already past. (Tolentino)
Reason behind the Article The rule against retroactivity is
intended to protect vested rights. Thus one may lose his rights
previously acquired if a retroactive law is subsequently passed
and designed to deprive him of those rights. Resultingly, there
will be no more stability in the effects of transactions.
General Rule: Law must be applied prospectively. Laws look
at the future.

PERSONS REVIEWER
Notes, Cases, Annotations
Exceptions:
1. If the statute provides for retroactivity or when expressly
provided.
Exception to the exception:
a. Ex post facto laws (Sec. 22, Art. III, 1987 Constitution No
ex post facto law or bill of attainder shall be enacted.)
b. Laws which impair the obligation of contracts (Sec. 10, Art.
III, 1987 Constitution No law impairing the obligation of
contracts shall be passed.)
2. Penal laws - insofar favourable to the accused or convict
(Art. 22, RPC Retroactive effect of penal laws - Penal laws
shall have a retroactive effect insofar as they favour the
persons guilty of a felony, who is not a habitual criminal, as
this term is defined in Rule 5, Art. 62 of this Code, although
at the time of the publication of such laws a final sentence
has been pronounced and the convict is serving the same.)
3. Remedial laws - as long as it does not affect or change
vested rights. But substantive law cannot be given
retroactive effect (Tolentino v. Alzate, 98 P 781).
4. Laws creating new rights may be given retroactive effect
provided no vested right of same origin is affected (Art.
2253, par. 2, Quizana v. Redugerio, 94 P 922).
5. Curative laws (the purpose is to cure defects or
imperfections in judicial or administrative proceedings)
6. Interpreting laws (laws which are intended to clarify or
interpret a provision/s of an existing statute).
7. Emergency laws (laws which are intended to meet
exigencies and require immediate action or are authorized
by police power (Santos vs. Alvarez; PNB vs. Office of the
President)).
8. Tax laws (liability for taxes is incidental to social existence).

General Rule: Acts which are contrary to mandatory or

prohibited laws are void.
Exceptions:
1. When the law itself authorized its validity (i.e., lotto,
sweepstakes)
2. When the law makes the act only voidable and not void (i.e., if
consent is vitiated, the contract is voidable and not void)
3. When the law makes the act valid but punishes the violator
(i.e., if the marriage is celebrated by someone without legal
authority but the parties are in good faith, the marriage is valid
but the person who married the parties is liable)
4. When the law makes the act void but recognizes legal effects
flowing therefrom (i.e., Articles 1412 & 1413)
Art. 6. Rights may be waived, unless the waiver is contrary to
law, public order, public policy, morals, or good customs, or
prejudicial to a third person with a right recognized by law.
Elements of Right- Every right has 3 elements: (1) subjects,
(2) object, and (3) efficient cause.
(1) The subjects of rights are persons; rights exist 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 suffer its
enforcement.
(2) Things and services constitute the object of rights.
(3) The efficient cause is the fact that gives rise to the legal
relation.
What one can waive are rights and not obligations or duties.
Example, a creditor can waive the loan but the debtor may not.
There is no form required for a waiver since a waiver is
optional. You can waive by mere inaction, refusing to collect a
debt for example is a form of waiver.

In case of doubt the law shall not be given retroactive

operation.

Kinds of Rights -- Rights may be classified into political and

civil; the former include those referring to the participation of
persons in the gov't of the State, while the latter include all
others. Civil rights may be further classified into: The rights of
personality, family rights and the patrimonial rights.

Art. 5. Acts executed against the provisions of mandatory or

prohibitory laws shall be void, except when the law itself
authorizes their validity.

The rights to personality and family rights are not subject to

waiver; but patrimonial rights can generally be waived.

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. Violation of director laws does not render the act
void or illegal. 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.
A prohibitory law is one w/c forbids something, e.g., Art. 818
which forbids joint wills.
A mandatory law is one w/c prescribes some element as a
requirement, e.g., Art. 804 which requires that a will must be in
writing.

Renunciation or Waiver -- Waiver is defined as the

relinquishment of a known right with both knowledge of its
existence and an intention to relinquish it. Voluntary choice is
the essence of waiver.
General Rule: Rights can be waived.
Exceptions:
1. If waiver is contrary to law, public order, public policy,
morals or good customs
2. If the waiver would be prejudicial to a 3rd party with a right
recognized by law. e.g., in a stipulation pour atrui, the
creditor cannot waive the stipulation in favor of a third
person.
Examples of waivers which are prohibited:

PERSONS REVIEWER
Notes, Cases, Annotations
1. Repudiation of future inheritance
2. Waiver of the protection of pactum commissorium
3. Waiver of future support
4. Waiver of employment benefits in advance
5. Waiver of minimum wage
6. Waiver of the right to revoke a will

Requirements for a valid waiver, reasons

1. Existence of a right. Reason: One cannot waive what he
does not have at the time of waiver.
2. Knowledge of the existence of the right
3. An intention to relinquish the right (implied in this is the
capacity to dispose of the right)
Tolentino: The renunciation must be made in a clear and
unequivocal manner. The formality required by law for such
renunciation, if any, should be followed; if no particular
formality is required, the renunciation may even be tacit,
provided the intent to renounce can be clearly established.
Scope of Waiver -- The doctrine of waiver is generally
applicable to all rights and privileges to w/c a person is legally
entitled, w/n secured by contract, conferred by statute, or
guaranteed by the Consti., provided such rights and privileges
rest in the individual and are intended for his sole benefit.
Waiver of Obligations -- Generally, obligations cannot be
renounced. But a person may exempt himself from an
obligation w/c is inherent in a right, upon the renunciation of
such right. For example, see Art. 628.
Renunciation of Real Rights -- According to Valverde, while
the renunciation of a personal right requires the consent of the
debtor (as in case of remission or condonation) the
renunciation of a real right is unilateral and depends upon the
exclusive will of the owner of the right.
PEOPLE v. DONATO 198 S 130 (1991) - The doctrine of
waiver extends to the rights and privileges of any character,
and since the word "waiver" covers any conceivable right, it is
the general rule that a person may waive any matter which
affects his property, and any alienable right or privilege of
which he is the owner or which belongs to him or to which he is
legally entitled whether secured by contract, conferred with
statute, or guaranteed by constitution, provided such rights and
privileges do not infringe on the rights of others, and further
provided the waiver of the right or privilege is not forbidden by
law, and does not contravene public policy.
Rights guaranteed to one accused of a crime fall naturally into
two classes: (a) Those in which the state, as well as the
accused, is interested, and (b) those which are personal to the
accused, which are in the nature of personal privileges. Those
of the first class cannot be waived, those of the second may
be. (Commonwealth v. Petrillo).

This Court has recognized waivers of constitutional rights such

as the rights against unreasonable searches and seizures, the
right to counsel and to remain silent, and the right to be heard.
The right to bail is another of the constitutional rights which can
be waived. It is a right personal to the accused and whose
waiver would not be contrary to law, public order, morals or
good customs, or prejudicial to a third person with a right
recognized by law.
Art. 7. Laws are repealed only by subsequent ones, and their
violation or non-observance shall not be excused by disuse, or
custom or practice to the contrary.
When the courts declared a law to be inconsistent with the
Constitution, the former shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be
valid only when they are not contrary to the laws or
the Constitution.
Balane: Leges posteriores priores contrarias abrogant.
Tolentino: Reason for the Article - Since laws are
promulgated by competent authority of the State, they can
cease to have effect only through the will of the State.
Kinds of repeal - Repeal may either be express or implied.
Express, when the repealing law provides for a provision or a
repealing clause explicitly stating that a particular existing law
or part of law is thereby repealed. It is implied, when there is no
repealing clause in the repealing law, but the prior law and the
subsequent law could not reconcile being substantially
inconsistent with one another. (Pineda)
Rule when there is conflict between two laws and there is
no repealing clause in the later law If both laws are of the
same category and they cover the same subject matter, that
which is later in point of time prevails over the prior one. This is
so because the later law manifests the legislators latest
intention on the subject matter.
However, if one law is general and the other is special, stress
should be placed on which law is prior in enactment in relation
to the other
a) If the general law is prior to the special law, the latter is
considered merely as an exception to the general law. Hence,
the general law remains effective subject to the exception
(Lichauco v. Apostol, 44 P 138). Insofar as the excepted
subject matter is concerned, the special law prevails.
b) If the general law is later in enactment, the special law
prevails except
b.1 When there is a clear, necessary and irreconcilable conflict
between the two.
b.2 The general laws covers the whole subject (including the
subject matter of the special law) and is clearly intended to
replace the special law.

PERSONS REVIEWER
Notes, Cases, Annotations
Revival of a repealed law, conditions If the first law is
repealed by IMPLICATION by the second law, and the second
law is itself repealed by the third law, the first law is revived
unless otherwise provided in the third law.
However, if the first law is repealed EXPRESSLY by the
second law, and the second law is repealed by the third law,
the first law is not revived, unless expressly so provided (Sec.
21, Revised Administrative Code).
The GR is, in case of implied repeal, there is revival and in
case of express repeal, there is no revival. EXC is if the
contrary is provided. (Pineda)
Art. 8. Judicial decisions applying or interpreting the laws or the
Constitution shall form a part of the legal system of
the Philippines.
Tolentino: Decisions not Source of Law - Jurisprudence, in
our system of gov't, cannot be considered as an independent
source of law; it cannot create law. But the Court's
interpretation of a statute constitutes part of the law as of the
date it was originally passed, since the construction merely
establishes contemporaneous legislative intent that the
interpreted law carried into effect.
Doctrine of stare decisis (Et non quieta movere) refers to
the principle of adherence to precedents for reasons of stability
in the law. This is based on the principle that once a question
of law has been examined and decided, it should be deemed
settled and closed to further argument. The doctrine, however,
is flexible; so, 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.
Obiter Dictum, concept an opinion expressed by a court
upon some question of law which is not necessary to the
decision of the case before it. It is a remark made, or opinion
expressed, by a judge, in his decision upon a cause, by the
way, that is, incidentally or collaterally, and not directly upon
the question before him, or upon a point not necessarily
involved in the determination of the cause, or introduced by
way of illustration, analogy or argument. Such are not binding
as precedent. (Delta Motors Corp. v. CA, 276 S 212).
Lecture: Obiter dictum translates to something said in
passing. When a judge issues his opinion and adds comments
which are not necessarily pertinent to the decisions in the case,
the comments are said to be obiter dictum.
PEOPLE V. LICERA [65 S 270 (1975)] - F: In 1961, accused
was granted an appointment as secret agent of Governor
Leviste. In 1965, accused was charged with illegal 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 the license
requirement, and later People v. Mapa (1967) was decided, the
earlier case should be held applicable.
HELD: Art. 8 of the Civil Code decrees that judicial decisions
applying or interpreting the laws or the Constitution form part of

this jurisdiction's legal system. These decisions, although in

themselves not law, constitute evidence of what the laws
mean. The application or interpretation placed by 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 interpretation
merely establishes the contemporaneous legislative intent that
the construed law purports to carry into effect. A new doctrine
abrogating an old rule operates prospectively and should not
adversely affect those favored by the old rule.
PEOPLE V. PINUILA [55 O.G. 23 p. 4228 (1958)] - Where
accused who were charged with murder, filed a motion to
quash on the ground of lack of jurisdiction, which the lower
court granted, and the government, following, the doctrine of
People v. Salico which held that an appeal by the government
does not place accused in double jeopardy, this interpretation,
though later abandoned, must be held applicable to accused,
and they cannot invoke the defense of double jeopardy.
People v. Salico has long become final and conclusive and has
become the law of the case. It may be erroneous, judged by
the law on double jeopardy as recently interpreted by the SC.
Even so, it may not be disturbed and modified. The SC's recent
interpretation of the law may be applied to new cases, but
certainly not to an old one finally and conclusively determined.
"Law of the case has been defined as the opinion delivered on
a former appeal. More specifically, it means that whatever is
once irrevocably established as the controlling legal rule of
decision between the same parties in the same case continues
to be the law of the case, WHETHER CORRECT ON
GENERAL PRINCIPLES OR NOT, so long as the facts on
which such decision was predicated continue to be the facts of
the case before the court." [21 C.J.S. 330]
"It may be stated that as a rule of general application, where
the evidence on a second or succeeding appeal is substantially
the same as that on the first or preceding appeal, all matters,
questions, points or issues adjudicated on the prior appeal are
the law of the case on all subsequent appeals and will not be
reconsidered or readjudicated therein." The rule is founded on
the policy of ending litigation, and to be necessary to enable an
appellate court to perform its duties satisfactorily and
effectively.
Art. 9. No judge or court shall decline to render judgment by
reason of the silence, obscurity or insufficiency of
the laws.
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 Commission omitted
the second paragraph of Art. 6 of the OCC, from w/c the
provision came w/c provided that "if there is not law exactly
applicable xxx the customs of the place shall be applied, and in
default thereof, the general principles of law. But this is not
completely abrogated because of Art. 10 and 11.
Tolentino: Applicability of Article -- This article does not
apply to criminal prosecutions, because when there is no law

PERSONS REVIEWER
Notes, Cases, Annotations
punishing an act, the case must be dismissed, however,
reprehensible the act may seem to the judge.
Obscurity or Deficiency of Law -- If the law is vague or
obscure, the court should clarify it in the light of the rules of
statutory construction; it is silent or insufficient, the court should
fill the deficiency by resorting to customs or general principles
of law.
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.
In the interpretation of doubtful laws, the judge should acquaint
himself with the prevailing principles in statutory construction to
guide and enlighten him every now and then in arriving at what
is reasonable, just and lawful.
Some fundamental principles in Statutory Construction or
Interpretation of laws
a. A law should be interpreted not by the letter that killeth but
by the spirit that giveth life;
b. When statutes are silent or ambiguous, the courts should
consider the vehement urge of the conscience;
c. When the reason for the law ceases, the law automatically
ceases;
d. Strict interpretation should be applied to laws which are in
derogation of natural or basic rights;
e. Criminal laws and tax laws should be interpreted strictly
against the State;
f. The judge should not apply equity if equity will not serve the
ends of justice. The judge should instead apply the law
strictly.
g. Equity follows the law. Justice is done according to law.
h. Equity is justice tempered with mercy. Its purpose is to
soften the rigors of positive laws.
i. The Rules of Court must be liberally construed in order to
promote their object and to assist the parties in obtaining
just, speedy, and inexpensive determination of every action
and proceeding.
Art. 11. Customs which are contrary to law, public order or public
policy shall not be countenanced.
What if customs are not contrary to law? The custom would be
countenanced. However, this does not mean that the custom
would have obligatory force.

Art. 12. A custom must be proved as a fact, according to the rules

of evidence.
Concept of Customs -- Custom may be defined as the
juridical rule w/c results from a constant and continued uniform
practice by the members of a social community, w/ respect to a
particular state of facts, and observed w/ a conviction that it is
juridically obligatory.
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.
Balane: Commentators say that custom is important in cases
involving negligence. For example, if a kalesa in Manila is by
custom supposed to have rattan baskets to prevent people
from slipping, if a person slips because there is no rattan
basket, then he can sue for negligence.
YAO KEE v. SY-GONZALES [167 S 737] - F: Sy-Kiat, a
Chinese national, died in 1977 in Kaloocan City, where he was
residing, leaving behind substantial real and personal
properties here in the Phils.
Petition for letters of
administration filed by his natural children, was opposed on the
ground that Sy Kiat was legally married to Yao Kee, in Fookien,
China on 1/13/31 and that the oppositors are the legitimate
children. The probate court rendered judgment in favor of the
oppositors; this was modified and set aside by the CA w/c held
that both sets of children were acknowledged natural children.
Both parties moved for partial reconsideration.
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

PERSONS REVIEWER
Notes, Cases, Annotations
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 speak 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.
Art. 13 has been superseded by Sec. 31, Book I of EO 292
(Administrative Code of 1987) w/c provides that
Sec. 31. Legal Periods.-- "Year" shall be understood
to be twelve (12) calendar months; "months" of thirty
(30) days, unless it refers to a specific calendar
month in which case it shall be computed according
to the number of days the specific month contains;
"day," to a day of twenty four (24) hours; and
"nights," from sunset to sunrise.

Under E.O. No. 292, a year is now equivalent to 12 calendar

months and not 365 days. Under Article 13 leap years are not
considered. For example, in order to make a will, one has to
be 18 years old. But if you use Article 13, one loses 4 to 5 days
if you dont count the leap years. E.O. No. 292 is better than
Article 13 since it is more realistic.
There should have been a definition of hours. That definition is
relevant for Labor law. According to Professor Balane, an hour
should be defined as 1/24 of a calendar day. If you use the
definition that an hour is equal to 60 minutes, then we would
have to define minutes, then seconds, and so on. It would be
too scientific.
Baviera: This article applies only to legal provisions and not to
contracts, where the parties may stipulate on the manner of
computing years, months and days.
Meaning of "Week" - The term "week," when computed
according to the calendar, means a period of 7 days beginning
on Sunday and ending on Saturday, but where the word is
used simply as a measure of duration of time and w/o
reference to the calendar, it means a period of 7 consecutive
days w/o regard to the day of the week on w/c it begins.
(Tolentino)
Meaning of "Month" - There are several senses in w/c the
term "month" may be understood. A "lunar" mo. is composed
of 28 days. A "calendar" mo. as designated in the calendar,
w/o regard to the no. of days it may contain, etc. The Code,
however, does not use "month" in either of these senses, but
strictly in a legal sense, as a period composed of 30 days.
Computation of period when last day falls on a Sunday or
holiday As to whether the Sunday or holiday shall be
considered in the computation, will depend upon the nature of
the act to be performed or done:

1. If the act to be performed within the period is prescribed or

allowed by the Rules of Court, by an order of the court, or by
any other applicable statute, the Sunday or holiday will not
be considered as the last day. The last day will automatically
be the next working day. The period is extended. (Gonzaga
v. Ce David, 110 P 460).
2. If the act to be performed within the period arises from a
contractual relationship, the act will become due
notwithstanding the fact that the last day falls on a Sunday
or holiday. The period is not extended. This is so because
the contract is the law between the parties (Art. 1159).
Rule on the filing of pleadings through the post office
The post office is considered an agent of the Government.
Consequently, the date of mailing is considered the date of
filing of any petitions, motion or paper addressed to a court,
tribunal or administrative body (Caltex Phils. v. Katipunan
Labor Union, 98 P 340). The mail must be registered for
evidentiary purposes on the date of mailing.
Technique of computation If for instance, a complaint was
received on January 10 and the defendant is required to
answer within 15 days just add 15 to 10. The result will be
25. The Answer is thus due on January 25, unless it is a
Saturday, Sunday or holiday, in which case, the deadline will
be the next working day. (Pineda)
Rule of next-working day does not apply to public sales
or foreclosures of mortgages nor to trial dates fixed by the
court If the date fixed by the sheriff or notary public for the
auction sale of properties is declared a holiday, the sale is not
automatically moved to the next working day. There is need for
a republication of the notice of public auction sale or
foreclosure. Similarly, if the date fixed for the trial of the case
has been declared a holiday, the trial is not is not automatically
transferred to the next working day. The next working day rule
applies only to periods fixed by law or by the Rules of Court
(Rural bank v. CA, 104 S 151).
NAMARCO V. TECSON [29 S 70 (1969)] - F: On 10/14/55, the
CFI rendered judgment in a civil case, Price Stabilization Corp.
v. 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 plaintiff in that case and judgment creditor
therein, filed w/ the same court, a complaint against defendants
for the revival of the judgment rendered therein. Defendant
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,
I: WON 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 judgment 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

10

PERSONS REVIEWER
Notes, Cases, Annotations
defendants on 10/21/55 -- no appeal having been taken
therefrom. The issue is thus confined to the date on w/c the 10
yrs from 12/21/55 expired. Plaintiff alleges that it was 12/21/65,
but appellee maintains otherwise, because when the law
speaks of years xxx it shall be understood that years are of 365
days each" - and, in 1960 and 1964 being leap years, so that
10 yrs of 365 days each, or an aggregate of 3650 days, from
12/21/55, expired on 12/19/65. Plaintiff-appellant further insists
that there is no 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 not a day of the year, because it is the 366th day,
then to what year does it belong? Certainly, it must belong to
the year where it falls, and therefore, that the 366 days
constitute one yr.
H: The very conclusion thus reached by appellant shows that
its theory contravenes the explicit provision of Art. 13 limiting
the connotation of each "year" - as the term is used in our laws
-- to 365 days. The action to enforce a judgment which became
final on December 21, 1955 prescribes in 10 years. Since the
Civil Code computes "years" in terms of 365 days each, the
action has prescribed on December 19, 1955, since the two
intervening leap years added two more days to the
computation. It is not the calendar year that is considered.
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.
II.

Conflicts of Law Provisions

Art. 14. Penal laws and those of public security and safety shall
be obligatory upon all who live or sojourn in the
Philippine territory, subject to the principles of public
international law and to treaty stipulations.

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 vessel
while it is in a Phil. port, constituting a breach of public order
and a violation of the policy established by the legislature, is
triable in Phil. ports.
Art. 15. Laws relating to family rights and duties, or to the status,
condition and legal capacity of persons are binding
upon citizens of the Philippines, even though living
abroad.
Theories on Personal Law:
1. Domiciliary theory - the personal laws of a person are
determined by his domicile
2. Nationality theory - the nationality or citizenship
determines the personal laws of the individual
Under Article 15, the Philippines follow the nationality theory.
Family rights and duties, status and legal capacity of Filipinos
are governed by Philippine law wherever they may be. Family
rights and duties refer to rights and duties in the Family Code
and other special laws relating to family law.
Ex. A Filipino husband, who obtained a divorce decree abroad,
is not released from his marriage bond with his wife. Absolute
divorce contravenes Philippine law. Hence, the decree could
not be recognized in the country (Baretto Gonzales v.
Gonzales, 58 P 67).
Ex. A Filipino, who was divorced by her foreign spouse abroad,
found herself in an ironical situation considering that the
divorce decree is valid as far as her spouse is concerned, but
is void as far she is concerned (Van Dorn v. Romillo, 139 S
139). It must be noted however, that under the FC, if placed in
the same situation now, the Filipino is freed from the marriage
bond if it is the foreign spouse who obtained validly the divorce
abroad (Art. 26, FC).

Territoriality and

A former Filipino is no longer bound by Philippine personal

laws after he acquires another states citizenship (Garcia v.
Recio, 366 S 437).

1. Territoriality means that our criminal laws are enforceable

only w/in Phil. territory. Exception to the territoriality principle is
Art. 2 of RPC (extraterritorial jurisdiction).

Renunciation of Allegiance - The question of how a citizen

may strip himself of the status as such citizen is governed by
his national law.

There are 2 principles involved here:

Generality.

2. 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.)]
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. (Tolentino)

General Rule: Under Article 26 of the Family Code, all

marriages solemnized outside the Philippines in accordance
with the laws in force in the country where they were
solemnized and valid there as such, is also valid in the
Philippines.
Exception: If the marriage is void under Philippine law, then
the marriage is void even if it is valid in the country where the
marriage was solemnized.
Exception to the exception:
1. Article 35, 2, Family Code - 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 such marriages were contracted with either
or both parties believing in good faith that the solemnizing
officer had the legal authority to do so;

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Notes, Cases, Annotations

2. Article 35, 3, Family Code - Art. 35. The following

marriages shall be void from the beginning: xxx (3) Those
solemnized without license, except those covered the
preceding Chapter;
Even if the foreign marriage did not comply with either s 2 and
3 of Article 35, Philippine law will recognize the marriage as
valid as long as it is valid under foreign law.
TENCHAVEZ v. ESCANO [15 SCRA 355] - F: Pastor
Tenchavez (PT), 32, married Vicenta Escano (VE), 27 on Feb.
24, 1948, in Cebu City. As of June 1948, the newly-weds were
already estranged. On 6/24/50, VE left for the US. On 8/22/50,
she filed a verified complaint for divorce against the herein
plaintiff in the State of Nevada on the ground of "extreme
cruelty, entirely mental in character." On 10/21050, a decree of
divorce was issued by the Nevada Court. On 9/13/54, VE
married an American Russel Leo Moran in Nevada. She now
lives with him in California and by him, has begotten children.
She acquired American citizenship on 8/8/58. On 7/30/55, PT
filed a complaint for legal separation and damages against VE
and her parents in the CFI-Cebu.
HELD: At the time the divorce decree was issued, VE like her
husband, was still a Filipino citizen. She was then subject to
Philippine law under Art. 15, NCC. Philippine law, under the
NCC then now in force, does not admit absolute divorce but
only provides for legal separation. For Phil. courts to recognize
foreign divorce decrees between Filipino citizens would be a
patent violation of the declared policy of the State, especially in
view of the 3rd par. of Art. 17, NCC. Moreover, recognition
would give rise to scandalous discrimination in favor of wealthy
citizens to the detriment of those members of our society
whose means do not permit them to sojourn abroad and obtain
absolute divorce outside the Philippines. Therefore, a foreign
divorce between Filipino citizens, sought and decreed after the
effectivity of the NCC, is not entitled to recognition as valid in
this jurisdiction.
VAN DORN v. ROMILLO [139 SCRA 139] - F: Petitioner Alice
Reyes Van Dorn is a citizen of the Philippines while PR
Richard Upton is a US citizen; they were married in HK in
1972; after the marriage, they established their residence in the
Philippines and begot 2 children; the parties were divorced in
Nevada, US, in 1982; and petitioner has remarried also in
Nevada, this time to Theodore Van Dorn. On 6/18/83, Upton
filed a suit against petitioner in the RTC-Pasay, stating that
petitioner's business in Ermita, Mla. (the Galleon Shop), is
conjugal property and asking that petitioner be ordered to
render an accounting of that business, and that Upton be
declared as having the right to manage the conjugal prop.
Is it true that owing to the nationality principle embodied in Art.
13, NCC, only Phil. nationals are covered by the policy against
absolute divorces the same being considered contrary to our
concept of public policy and morality. However, aliens may
obtain divorces abroad, w/c may be recognized in the Phils.,
provided they are valid according to their national law.

dissolves the marriage. 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 exercise control over conjugal assets. To maintain,
as Upton does, that under our laws, petitioner has to be
considered still married to him and still subject to a wife's
obligations under the NCC cannot be just. Petitioner should not
be obliged to live together with, observe respect and fidelity,
and render support to PR. The latter should not continue to be
one of her heirs with possible rights to conjugal properties. She
should not be discriminated against in her own country if the
ends of justice are to be observed.
Art. 16
Real property as well as personal property is subject to
the law of the country where it is stipulated.
However, intestate and testamentary successions,
both with respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person
whose succession is under consideration, whatever may be the
nature of the property and regardless of the country wherein said
property may be found.
Art. 16, 1. Real property as well as personal property is
subject to the law of the country where it is stipulated.
- Lex situs or lex rei sitae governs real or personal property
(property is subject to the laws of the country in which it is
located).
- In Tayag vs. Benguet consolidated, the SC said that
Philippine law shall govern in cases involving shares of
stock of a Philippine corporation even if the owner is in the
US.
Tolentino: The rule of mobilia sequuntur personam in personal
property has yielded to the to the lex situs because of the great
increase in modern times of the amount and variety of prop.
not immediately connected w/ the person of the owner.
Art. 16, 2. However, intestate and testamentary successions,
both with respect to the order of succession and to the amount
of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law
of the person whose succession is under consideration,
whatever may be the nature of the property and regardless of
the country wherein said property may be found.
- In this second paragraph, Lex nationalii or in accordance
with the nationality of the decedent applies and not the lex
situs rule.
- Law on Succession - The law governing succession may be
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
place of execution (Art. 17, par. 1.) But the distribution of
the estate is governed by the law of the nation of the
deceased.
- This is merely an extension of the nationality theory in Article
15

In this case, the divorce in Nevada released PRs from the

marriage from the stds of American law, under w/c divorce

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PERSONS REVIEWER
Notes, Cases, Annotations
- The national law of the decedent regardless of the location
of the property shall govern. Thus, the national law of the
decedent shall determine who will succeed.
- In Miciano vs. Brimo, the SC said that the will of a foreigner
containing the condition that the law of the Philippines
should govern regarding the distribution of the properties is
invalid. A Turkish citizen cannot validly provide in his will that
his property be distributed in accordance with Philippine law.
Turkish law, the testators national law, should govern.
- In Aznar vs. Garcia, what was involved was the renvoi
doctrine. In this case, the decedent was a citizen of
California who resided in the Philippine. The problem was
that under Philippine law, the national law of the decedent
shall govern. On the other hand, under California law, the
law of the state where the decedent has his domicile shall
govern. The SC accepted the referral by California law and
applied Philippine law (single renvoi).
- Problem: What if the decedent is a Filipino domiciled in a
foreign country which follows the domiciliary theory?
According to Professor Balane, one way to resolve the
situation is this Philippine law should govern with respect
to properties in Philippine while the law of the domicile
should govern with respect to properties located in the state
of domicile.
Renvoi Doctrine Literally, renvoi means a referring back
which arises where our law refers a case to another country for
solution, but the law of that country refers it back to our country
for determination. When the reference is made back to the law
of the forum, that is known as remission or (single renvoi)
while the reference made to a third state is known as
transmission (double renvoi). (Pineda)
CHRISTENSEN v. CHRISTENSEN GARCIA, 117 P 96 Since
the California law itself refers back the case to the Philippines,
the Philippine Court has no other alternative but to accept the
referring back to the Philippines, which would give rise to a sort
of an international football.
Art. 17. The forms and solemnities of contracts, wills, and other
public instruments shall be governed by the laws of the country in
which they are executed.
When the acts referred to are executed before the
diplomatic or consular officials of the Republic of the Philippines in
a foreign country, the solemnities established by Philippine laws
shall be observed in their execution.
Prohibitive laws concerning persons, their acts or
property, and those which have for their object public order, public
policy and good customs shall not be rendered ineffective by laws
or judgments promulgated, or by determinations or conventions
agreed upon in a foreign country.
Principle of Lex Loci Celebrationis, concept Under this
principle, matters bearing upon the execution, interpretation
and validity of a contract are determined by the law of the place
where the contract us made (locus contractus regit actum).
INSULAR GOVERNMENT v. FRANK, 13 P 239 F: Frank, an
American citizen entered into a contract with the Philippine
government to serve as a stenographer for a period of two

years. The contract was executed in Illinois, USA. The Insular

Government sued Frank for damages for not continuing his
contract after serving only for 6 months. Frank contends that
under Philippine law, he is a minor, hence, the contract could
not be enforced against him. However, under the law of Illinois,
he is an adult. I: Is Frank capacitated to enter into a contract
with the Insular Government?
H: Yes, he is and the contract is valid because it was
celebrated in Illinois and the law of the place of execution
governs, whereat, he is an adult. Matters bearing upon the
execution, interpretation and validity of a contract are
determined by the law of the place where the contract is made.
GERMANN & CO. v. DONALDSON, 1 P 63 F: Kammerzel, a
German but a resident of Manila was authorized to file a case
for recovery of a sum of money in the Philippines by Tornow
another German national by virtue of a general power for suits
which was executed in Germany. The power was not notarized
in Germany. I: Is the power of attorney valid in the Philippines?
H: Yes, because it was validly executed in Germany which
requires no notarization.
Intrinsic validity, not covered by this Article The first par.
of this Article speaks f the extrinsic validity of contracts, wills,
and other public instruments. It is silent on what law shall
govern the intrinsic validity of contracts. In determining the
intrinsic validity of contracts, the ff. rules can be followed
(Manresa & Valverde)
1. The law stipulated by the parties shall apply;
2. In the absence of any stipulation, and if the parties are of the
same natinalities, their national law shall e applied;
3. If the parties are not of the same nationalities, the law of the
place of perfection of the obligation shall govern its essence
and nature and the law of the place of performance shall
govern its fulfilment;
4. If the above 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.
Principle of exterritoriality The second paragraph of Article
17 recognizes the principle of exterritoriality. Said offices are
considered extensions of the Philippine territory.
AZNAR v. GARCIA [61 O.G. No. 46 p. 7303 (1963)] - Where
the testator was a citizen of California, and domiciled in the
Philippines, the amount of successional rights should be
governed by his national law. However, since the conflicts of
law rules of California provides that in case of citizens who are
residents of another country, the law of the country of domicile
should apply, then Philippine law on legitimes was applied.
Hence, under Philippine laws, the acknowledged natural
daughter cannot be deprived of her legitime.
BELLIS v. BELLIS [20 S 358 (1967)] - Where the testator was
a citizen of Texas and domiciled in Texas, the intrinsic validity
of his will should be governed by his national law. Since Texas
law does not require legitimes, then his will which deprived his
illegitimate children of the legitimes is valid. While Art. 17, par.
3 provides that prohibitive laws of our country concerning

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Notes, Cases, Annotations
persons and their property shall not be rendered ineffective by
contrary laws in a foreign country, this cannot be considered an
exception to Art. 16 which categorically provides for the
situations when the national law shall apply. Precisely,
Congress deleted the phrase "notwithstanding the provisions of
this and the next preceding article" when they incorporated Art.
11 of the Old Civil Code as Art. 17 of the New Civil Code, while
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
specific provision in itself which must be applied in testate and
intestate successions. Thus, in Miciano v. Brimo, a provision in
a foreigner's will to the effect that his properties shall be
distributed in accordance with Philippine law and not with his
national law, is illegal and void, for his national law cannot be
ignored in regard to those matters that Art. 10 - now Art. 16 states said national law shall govern.
Other Conflict of Law Rules:
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 Philippines in
accordance with the laws in force in the country where they
were solemnized, and valid there as such, shall also be valid in
this country, except those prohibited under Articles 35 (1), (4),
(5) and (6), 36, 37 and 38.
xxx. (Family Code.)
- Art. 35 (1) - must not be below 18
- Art. 35 (4) - not bigamous or polygamous
- Art. 35 (5) - no mistake as to identity of the other party
- Art. 35 (6) - void marriages for failure to comply with Art. 53
on recording in the Civil Registry of the judgment of annulment
or absolute nullity of marriage, partition and distribution of
properties of the spouses, and the delivery of the children's
presumptive legitimes.
- Art. 36 - psychological incapacity
- Art. 37 - incestuous marriages
- Art. 38 - void marriages by reason of public policy.
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.
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:
(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
(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. (Family Code.)
Art. 18. In matters which are governed by the Code of Commerce
and special laws, their deficiency shall be supplied by the
provisions of this Code.
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." (Tolentino)
III. 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.

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Notes, Cases, Annotations

Lecture this provision is considered as the golden rule of the

Civil Code.
Principle of abuse of rights is the principle embodied in this
Article. This term of abuse of rights is used to refer to acts
performed which are not illegal but nevertheless make the
actor liable for damages, if in so acting or in exercising his
right, his purpose is to prejudice or injure another. The absence
of good faith is essential in abuse of right.
Elements of abuse of rights under this Article (1) there is
a legal right or duty; (2) which is exercised in bad faith; (3) for
the sole intent of prejudicing or injuring another.
Art. 20. Every person who, contrary to law, willfully or negligently
causes damage to another, shall indemnify the latter for the same.
Art. 21. Any person who willfully causes loss or injury to another
in 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
impossible for human foresight to provide for specifically in the
statutes.
VELAYO v. SHELL [54 O.G. No. 46 p. 7303 (1956)] - Where
the creditors of an insolvent company entered into a
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 to
implement such agreement, in assigning its credit to a sister
company in the U.S. which filed a collection suit and attached
the plane, constitutes bad faith and a betrayal of confidence in
violation of Art. 19 as implemented by Art. 21.
PNB v. CA [83 S 237 (1978)] - While the Board of Directors of
PNB had the power to approve the lease of the sugar quota
allotments of its debtor, its act in unduly refusing to grant such
approval when the terms of the lease were reasonable
constitutes a violation of Art. 21 of the Civil Code.
Baviera: The Board of Directors should have been held liable,
not the bank.
BALANE v. YU CHIANG [54 O.G. No. 3, p. 687 (1957)] Where a man by virtue of a notarized agreement, convinced
the 19-year old daughter of petitioner, to live with him, and later

on left her when she got pregnant, he can be made to

recognize his child and is liable for damages under Art. 21 of
the Civil Code for inducing the daughter to live with him in a
manner contrary to morals and good customs.
Under the New Civil Code, it is not necessary that there be a
breach of promise of marriage in order that the plaintiff in an
action for acknowledgment of natural child and support may
recover damages. The reason given by the Code Commission
is that in case a girl is already of age and was seduced, no
action for Seduction under the RPC would lie, however, the girl
and her family would have suffered incalculable damages,
which must be compensated.
Art. 22. Every person who through an act of performance by
another, or any other means, acquires or comes into possession
of something at the expense of the latter without just or legal
ground, shall return the same to him.
Principle against unjust enrichment this Article embodies
the Roman Law principle of Nemo cum alterius detrimento
locupletaro potest (No one shall unjustly enrich himself at the
expense of another).
Rendition of services is not included in the coverage of this
Article. The liability will lie on quasi-contract (Art. 2146).
Action in rem verso vs. solutio indebiti - In rem verso, it is
not necessary that the payment be made by mistake. Payment
could have been made knowingly and voluntarily, but
nevertheless, there would be recovery of what has been paid.
Thus, a person who already paid an obligation through a
representative (who has the receipt and is absent), and second
payment was effected by the obligor to avoid any
inconvenience, the second payment could be recovered if the
first payment by the representative could be proved; whereas,
in solute indebiti, payment was made by mistake, which is an
essential element to maintain the action for recovery (Art.
2154). (Pineda)
Requisites of accion rem verso In order that an action
under Art. 22 on unjust enrichment may prosper, the ff.
conditions must concur: (1) that the defendant has been
enriched; (2) that the plaintiff has suffered a loss; (3) that the
enrichment of defendant is without just or legal ground; and (4)
that the plaintiff has no other action based on contract, quasicontract, crime or quasi-delict (Tan v. Largo). (Pineda)
Government is not exempted from the principle of unjust
enrichment (CIR v. Firemans Fund Ins. Co., 148 S 316)
Art. 23. Even when an act or event causing damage to another's
property was not due to the fault or negligence of the defendant,
the latter shall be liable for indemnity if through the act or event he
was benefited.
Art. 24. In all contractual, property or other relations, when one of
the parties is at a disadvantage on account of his moral
dependence, ignorance, indigence, mental weakness, tender age
or other handicap, the courts must be vigilant for his protection.

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PERSONS REVIEWER
Notes, Cases, Annotations
Doctrine of parens patria (father of his country) refers to the
inherent power and authority of the State to provide protection
of the person and property of a person non sui juris. Under this
doctrine, the State has the sovereign power of guardianship
over persons under disability. Thus, the State is considered the
parens patria of minors. (Pineda)
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 instance of any government
or private charitable institution.
Art. 26. Every person shall respect the dignity, personality, privacy
and peace of mind of his neighbors and other persons. The
following and similar acts, though they may not constitute a
criminal offense, shall produce a 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 family relations of
another;
(3) Intriguing to cause another to be alienated from his friends;
(4) Vexing or humiliating another on account of his religious
beliefs, lowly station in life, place of birth, physical defect, or
other personal condition.
LAGUNZAD v. GONZALES [92 S 476 (1979)] - An agreement
whereby a film producer would pay the heirs and relatives of
Moises Padilla a sum of money in order to depict them in the
movie which he included a love interest angle depicting the
mother and a sweetheart, is not a violation of freedom of expression. While it is true that the film producer purchased the
rights to the book entitled "The Moises Padilla Story," that did
not dispense with the need for prior consent and authority from
the deceased's heirs to portray publicly episodes in said
deceased's life and in that of his mother and the members of
his family. As held in Schuyler v. Curtis, "a privilege may be
given the surviving relatives of a deceased person to protect
his memory, but the privilege exists for the benefit of the living,
to protect their feelings and to prevent a violation of their own
rights in the character and memory of the deceased."
"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 representation of a person, no matter how
public a figure he or she may be. In the case at bar, while it is
true that petitioner exerted efforts to present a true-to-life story
of Moises Padilla, petitioner admits that he included a little
romance in the film because without it, it would be a drab story
of torture and brutality."
"The right of freedom of expression, indeed, occupies a
preferred position in the hierarchy of civil liberties. However, it
is limited by the clear and present danger rule and the
balancing of interest test. The latter 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 and freedom of expression. Taking
into account the interplay of those interests, we hold that under
the particular circumstances presented, and considering the

obligations in the contract, the validity of such contract must be

upheld because the limits of freedom of expression are
reached when expression touches upon matters of essentially
private concern."
AYER v. CAPULONG [160 S 865 (1988) En Banc] - Senator
Enrile cannot object to his inclusion in the movie on the EDSA
Revolution by invoking his right to privacy. "The 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 figure and the
information sought to be elicited from him or to be published
about him constitutes matters of a public character. Succinctly
put, the right of privacy cannot be invoked to resist publication
and dissemination of matters of public interest. The right of
privacy of a "public figure" is necessarily narrower than that of
an ordinary citizen."
As distinguished from Lagunzad v. Gonzales, which involved a
film biography necessarily including at least his immediate
family, the subject matter of the move in this case is one of
public concern and does not relate to the individual or public
life of Senator Enrile.
Art. 27. Any person suffering material or moral loss because a
public servant or employee refuses or neglects, without just
cause, to perform his official duty may file an action for damages
and other relief against he latter, without prejudice to any
disciplinary administrative action that may be taken.
Requisites for filing action (1) A public servant or employee
refuses or neglects to perform his official duty; (2) There is no
valid reason for the refusal or neglect to perform official duty;
(3) That injury or damage is suffered by the plaintiff.
Application of article applies only to acts of non-feasance
or non-performance of official duty by a public officer and not to
negligence or misfeasance in carrying out an official duty.
Nature of duty, ministerial For a public servant to be held
liable the duty which he refused to perform must be ministerial
in character, that is, the law absolutely requires him to perform
it. If the duty is discretionary, he is not liable, unless, he acted
in a notoriously arbitrary manner or wilfully, maliciously, or with
gross neglect.
Art. 28. Unfair competition in agricultural, commercial or industrial
enterprises or in labor through the use of force, intimidation,
deceit, machination or any other unjust, oppressive or highhanded
method shall give rise to a right of action by the person who
thereby suffers damage.
Unfair competition, concept It consists in employing
deception or any other means contrary to good faith by which
any person shall pass off the goods manufactured by hi, or in
which he deals, or his business, or services for those of the
one having established goodwill, or omitting any acts
calculated to produce such result.
Unfair competition is punishabl under Art. 189 of the RPC.

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Notes, Cases, Annotations
Test of unfair competition whether certain goods have
been intentionally clothed with an appearance which is likely to
deceive the ordinary purchaser exercising ordinary care, and
not whether a certain limited class of purchasers with special
knowledge not possessed by the ordinary purchaser could
avoid mistake by the exercise of this special knowledge.
Art. 29. When the accused in a criminal prosecution is acquitted
on the ground that his guilt has not been proved beyond
reasonable doubt, a civil action for damages for the same act or
omission may be instituted. Such action requires only a
preponderance of evidence. Upon motion of the defendant, the
court may require the plaintiff to file a bond to answer for
damages in case the complaint should be found to be malicious.
If in a criminal case the judgment of acquittal is based
upon reasonable doubt, the court shall so declare. In the absence
of any declaration to that effect, it may be inferred from the text of
the decision whether or not the acquittal is due to that ground.
Acquittal which bars civil action (a) accused is not the
author of the crime, or (b) no crime existed (on which the civil
action ex delicto is based, an action for damages based on the
same act or omission is barred, or (c) when the acquittal is
based on pure innocence and not on reasonable doubt, or (d) if
there is a finding that in a final judgment in a criminal action
that the act or omission from which the civil liability may arise
did not exist.
Acquittal which does not bar civil action (a) the liability of
the accused is not criminal but only civil; or (b) the civil liability
is not derived from or based on the criminal act of which the
accused is acquitted, civil action will still prosper.
Prescription of criminal action, not a bar to civil action
the dismissal of a criminal case based on prescription will not
bar the filing of a civil action based on the same act or
omission specially if pursued as a quasi-delict (Art. 2176) or
based on the principle of unjust enrichment (Art. 22).
Article 29 refers to dependent civil actions not to
independent civil actions. Independent civil actions under
Articles 32, 33, 34, and 2177 can be pursued independently of
the criminal action and regardless of the outcome of the
criminal case. There is no more need to make a reservation
under Sec. 3, Rule III (2000 Revised Rules of Criminal
Procedure). Dependent civil actions if not reserved will be
deemed impliedly instituted with the criminal action. If reserved,
they may be prosecuted independently but must await the
outcome of the criminal case to which they are dependent.
MENDOZA v. ALCALA [2 S 1032 (1961)] - Where the accused
in a criminal case for estafa is acquitted on the ground that the
prosecution has not proven his guilt beyond reasonable doubt,
a civil action based on the same transaction may prosper. (1)
The conclusion that his guilt has not been proven beyond
reasonable doubt is equivalent to one of reasonable doubt.
Thus, a civil action may prosper. (2) Under the Rules of Court,
the extinction of the penal action does not carry with it
extinction of civil unless there is a declaration 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 the civil
action in favor of the offended party. (4) Furthermore, since
estafa involves fraud, an independent civil action may prosper
under Art. 33 of the Civil Code.
MENDOZA v. ARRIETA [91 S 113 (1979)] - Where in a
multiple highway accident involving a truck which hit a jeep
which then hit a Mercedes Benz coming from the opposite
direction, two criminal actions for reckless imprudence was
filed against the drivers of the truck and jeep, and the driver of
the truck was found guilty and the driver of the jeep acquitted,
a civil action for damages against the owner of the truck would
prosper as there is no res judicata, the parties and causes of
action being different. Furthermore, under Art. 31 of the Civil
Code, when the civil action is based on an obligation not
arising from crime, the civil action may proceed 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 from
crime or create an action for quasi-delict or culpa extracontractual. The former is a violation of the criminal law, while
the latter is a distinct and independent negligence, having
always had its own foundation and individuality. Some legal
writers are of the view that in accordance with Article 31, the
civil action based upon quasi-delict may proceed independently
of the criminal proceeding for criminal negligence and
regardless of the result of the latter. Hence, the proviso in
Section 2 of Rule 111 (requiring reservation of civil actions)
with reference to Articles 32, 33, and 34 of the Civil Code, is
contrary to the letter and spirit of the said articles, for these
articles were drafted and are intended to constitute as
exceptions to the general rule stated in what is now Section 1
of Rule 111. The proviso, which is procedural, may also be
regarded as an unauthorized amendment of substantive law,
Articles 32, 33 and 34 of the Civil Code, which do not provide
for the reservation required in the proviso."
However, a civil action for damages against the owner-driver of
the jeep would not prosper because civil liability arising from
crime co-exists with criminal liability in criminal cases. Hence,
the offended party had the option to prosecute on civil liability
arising from crime or from quasi-delict. His active participation
in the criminal case implies that he opted to recover the civil
liability arising from crime. Hence, since the acquittal in the
criminal case, which was not based on reasonable doubt, a
civil action for damages can no longer be instituted.
REPUBLIC v. BELLO [120 S 203 (1983)] - Where a cashier
was acquitted in a Malversation case on the ground that his
guilt was not proven beyond reasonable doubt, since he spent
the money for a legitimate purpose, a civil case for the
recovery of the amounts will prosper since there was no
declaration in the criminal case that the facts from which the
civil action might arise did not exist.
PADILLA v. CA [129 S 558 (1990)] - Where in the complaint
for Grave Coercion against the mayor and policemen, they
were acquitted on the ground that their guilt has not been

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Notes, Cases, Annotations
proven beyond reasonable doubt, such acquittal will not bar a
civil case for damages arising from the demolition of petitioner's market stalls. The acquittal on the ground that their guilt
has not been proven beyond reasonable doubt refers to the
element of Grave Coercion and not to the fact of that the stalls
were not demolished. Under the Rules of 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 in a separate civil action. The
civil liability can be recovered either in the same or a separate
action. The purpose of recovering in the same action is to
dispense with the filing of another civil action where the same
evidence is to be presented, and the unsettling implications of
permitting reinstitution of a separate civil action. However, a
separate civil action is warranted when (1) additional facts are
to be established; (2) there is more evidence to be adduced;
(3) there is full termination of the criminal case and a separate
complaint would be more efficacious than a remand. Hence,
CA did not err in awarding damages despite the acquittal.
REYES v. SEMPIO-DY [141 S 208 (1986)] - Where the private
complainant in an information for intriguing against honor was
represented by a private prosecutor but defendant pleaded
guilty and was sentenced to a fine, a civil case damages is will
prosper despite the lack of reservation and the intervention of a
private prosecutor, because there was no opportunity to
present evidence by reason of the unexpected plea of guilty.
Roa v. De La Cruz is not applicable because in that case, there
was a full-blown hearing where a private prosecutor
participated actively but failed to present evidence to support
the claim for damages. Hence, a civil action could not prosper.
Furthermore, under Article 33, there is no requirement for
reservation to file an independent civil action arising from
defamation.
MAXIMO v. GEROCHI [144 S 326 (1986)] - Where the
accused was acquitted of Estafa on the ground of failure to
establish guilt beyond reasonable doubt and that if accused
had any obligation, it was civil in nature, the court can award
civil liability in the same case without need of the institution of a
separate civil action. Citing Padilla v. CA, the court may acquit
and at the same time order payment of civil liability in the same
case. The rationale is that there is no reason to require a
separate civil action where the facts to be proved in the civil
case have been proven in the criminal case, and due process
has already been accorded to the accused, and to prevent
needless clogging of court dockets and unnecessary
duplication of litigation.
Art. 30. When a separate civil action is brought to demand civil
liability arising from a criminal offense, and no criminal
proceedings are instituted during the pendency of the civil case, a
preponderance of evidence shall likewise be sufficient to prove
the act complained of.
Art. 31. When the civil action is based on an obligation not
arising from the act or omission complained of as a felony, such
civil action may proceed independently of the criminal
proceedings and regardless of the result of the latter.

Coverage of the Article The civil action contemplated herein

is one which arises from some other acts such as contract or a
suit based on culpa contractual; legal obligation to return
money malversed; or a suit based on quasi-delict.

Art. 32. Any public officer or employee, or any private individual,

who directly or indirectly obstructs, defeats, violates or in any
manner impedes or impairs any of the following rights and
liberties of another person shall be liable to the latter for
damages:
(1) Freedom or religion;
(2) Freedom of speech;
(3) Freedom to write for the press or to maintain a periodical
publication;
(4) Freedom from arbitrary or illegal detention;
(5) Freedom of suffrage;
(6) The right against deprivation of property without due process
of law;
(7) The right to a just compensation when private property is
taken for public use;
(8) The right to the equal protection of the laws;
(9) The right to be secure in one's person, house, papers, and
effects against unreasonable searches and seizures;
(10) The liberty of abode and of changing the same;
(11) The privacy of communication and correspondence;
(12) The right to become a member of associations or societies
for purposes not contrary to law;
(13) The right to take part in a peaceable assembly to petition the
Government for redress of grievances;
(14) The right to be a free from involuntary servitude in any form;
(15)The right of the accused against excessive bail;
(16)The right of the accused to be heard by himself and counsel,
to be informed of the nature and cause of the accusation
against him, to have a speedy and public trial, to meet the
witnesses face to face, and to have compulsory process to
secure the attendance of witness in his behalf;
(17) Freedom from being compelled to be a witness against one's
self, or from being forced to confess guilt, or from being
induced by a promise of immunity or reward to make such
confession, except when the person confessing becomes a
State witness;
(18) Freedom from excessive fines, or cruel and 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.
In any of the cases referred to in this article, whether or not the
defendant's act or omission constitutes 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 proceed independently of any criminal prosecution (if
the latter be instituted), and mat be proved by a preponderance of
evidence.

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Notes, Cases, Annotations
The indemnity shall include moral damages. Exemplary
damages may also be adjudicated.
The responsibility herein set forth is not demandable from a
judge unless his act or omission constitutes a violation of the
Penal Code or other penal statute.
Good faith not a defense For the impairment or violation of
the fundamental rights covered in this article, good faith is not a
defense. Otherwise, the main reason for the Article would be
lost. (Pineda)
Art. 33. In cases of defamation, fraud, and physical injuries a civil
action for damages, entirely separate and distinct from the
criminal action, may be brought by the injured party. Such civil
action shall proceed independently of the criminal prosecution,
and shall require only a preponderance of evidence.
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.
The defense of having observed the diligence of a good father
of a family to prevent the damage is not available to the city or
municipality. The situation is different from the liability of the
state for the quasi-delicts of its employees under Art. 2180, par.
6 of the CC where the defense of such diligence is allowable.
(Pineda)
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 rendered. However, if no final judgment has been
rendered by the trial court in the civil action, the same may be
consolidated with the criminal action upon application with the
court trying the criminal action. If the application is granted, the
evidence presented and admitted in the civil action shall be
deemed automatically reproduced in the criminal action,
without prejudice to the admission of additional evidence that
any party may wish to present. In case of consolidation, both
the criminal and the civil actions shall be tried and decided
jointly.
(b) Extinction of the penal action does not carry with it
extinction of the civil, unless the extinction proceeds from a
declaration (need not be an express declaration- Baltic) in a
final judgment that the fact from which the civil might arise did
not exist. (Rules of Court.)

ABELLANA V. MARAVE [57 S 106 (1974)] - Where accused

appealed his conviction by the City Court of Physical injuries
thru reckless imprudence to the CFI, and while the case was
on appeal, the heirs of the victim filed an independent civil
action against him and his employer in another branch, the civil
action will prosper despite the lack of reservation. The
restrictive interpretation of the Rules of Court provision on civil
actions requiring reservation as to include the independent civil
action under Art. 33 does not 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 SUBSTANTIVE RIGHT, not to be
frittered away by a construction that could render it nugatory, if
through oversight, the offended parties failed at the initial stage
to seek recovery for damages in a civil suit. The grant of power
to this Court, both in the present constitution and under the
1935 Charter, does not extend to any diminution, increase or
modification of substantive right.
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.
MADEJA V. CARO [126 S 295 (1983)] - Where accused was
charged with Homicide thru reckless imprudence, pending the
criminal action, an independent civil action under Art. 33 may
proceed independently of the criminal case. Citing Carandang
v. Santiago [97 P 94 (1955)], "The term "physical injuries" is
used in the generic sense, not the crime of physical injuries
defined in the Revised Penal Code. It includes not only
physical injuries but consummated, frustrated and attempted
homicide." Defamation and fraud are also used in their generic
sense because there are no specific provisions in the Revised
Penal Code using these terms as means of offenses defined
therein.
Art. 35. When a person, claiming to be injured by a criminal
offense, charges another with the same, for which no independent
civil action is granted in this Code or any special law, but the
justice of the peace finds no reasonable grounds to believe that a
crime has been committed, or the prosecuting attorney refuses or
fails to institute criminal proceedings, the complaint may bring a
civil action for damages against the alleged offender. Such civil

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Notes, Cases, Annotations

Art. 36. Pre-judicial questions, which must be decided before

any criminal prosecution may be instituted or may proceed, shall
be governed by rules of court which the Supreme Court shall
promulgate and which shall not be in conflict with the provisions of
this Code.

MERCED v. DIAZ [109 P 156 (1960)] - Where the husband

files a civil case for annulment of the second marriage on the
ground of lack of consent, and the second wife subsequently
files a criminal case for bigamy against him, the civil case for
annulment is a prejudicial question to be determined before the
criminal case can proceed. Consent is an essential element of
a valid marriage. Without consent, the marriage is void. But the
question of invalidity cannot ordinarily be decided in the
criminal action for bigamy but in a civil action for annulment.
Since the validity of the second marriage, subject of the action
for bigamy, cannot be determined in the criminal case, and
since prosecution for bigamy does not lie unless the elements
of the second marriage appear to exist, it is necessary that a
decision in a civil action to the effect that the second marriage
contains all the essentials of a marriage must first be secured.

Prejudicial question, defined A prejudicial question is one

based on a fact distinct and separate from the crime but so
intimately connected with it that it determines the guilt or
innocence of the accused, and for it to suspend the criminal
action, it must appear not only that said case involves facts
intimately related to those upon which the criminal prosecution
would be based but also that in the resolution of the issue or
issues raised in the civil case, the guilt or innocence if the
accused would necessarily be determined.

LANDICHO v. RELOVA [22 S 731 (1968)] - Where the first

wife filed a criminal action for bigamy against the husband, and
later the second wife filed a civil case for annulment of the
marriage on the ground of force and intimidation, and the
husband later files a civil case for annulment of marriage
against the first wife, the civil cases are not prejudicial
questions in the determination of his criminal liability for
bigamy, since his consent to the second marriage is not in
issue.

Rationality behind prejudicial question to avoid two

conflicting decisions which will cause absurdity, damage the
image and integrity of the courts, and more, the accused will be
placed at great disadvantage.

"The mere fact that there are actions to annul the marriages
entered into by accused in a bigamy case does not mean that
"prejudicial questions" are automatically raised in civil actions
as to warrant the suspension of the criminal case. In order that
the case of annulment of marriage be considered a prejudicial
question to the bigamy case against the accused, 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 must
be involuntary and cannot be the basis of his conviction for the
crime of bigamy. The situation in the present case is markedly
different. At the time the petitioner was indicted for bigamy, the
fact that two marriage ceremonies had been contracted
appeared to be indisputable. And it was the second spouse,
not the petitioner who filed the action for nullity on the ground
of force, threats and intimidation. And it was only later that
petitioner as defendant in the civil action, filed a third party
complaint against the first spouse alleging that his marriage
with her should be declared null and void on the ground of
force, threats and intimidation. Assuming the first marriage was
null and void on the ground alleged by petitioner, that fact
would not be material to the outcome of the criminal case.
Parties to the marriage should not be permitted to judge for
themselves its nullity, for the same must be submitted to the
judgment of a competent court and only when the nullity of the
marriage is so declared can it be held as void, and so long as
there is no such declaration, the presumption is that the
marriage exists. Therefore, he who contracts a second
marriage before the judicial declaration of nullity of the first
marriage assumes the risk of being prosecuted for bigamy."

action may be supported by a preponderance of evidence. Upon

the defendant's motion, the court may require the plaintiff to file a
bond to indemnify the defendant in case the complaint should be
found to be malicious.
If during the pendency of the civil action, an
information should be presented by the prosecuting attorney, the
civil action shall be suspended until the termination of the criminal
proceedings.

When to invoke PQ can be raised during the preliminary

investigation or during the trial but before the prosecution had
rested its case. (Pineda)
Party who can invoke - it is the defendant who can invoke this
and not the prosecutor especially after he had presented the
evidence for the prosecution. It is unfair to the accused who is
entitled to a speedy trial (PP v. Villamor, 4 S 482).
Rule 111, Sec. 5. Elements of prejudicial question. - The
two (2) essential elements of a prejudicial question are:
(a) the civil action involves an issue similar or intimately
related to the issue raised in the criminal action;
(b) the resolution of such issue determines whether or not
the criminal action may proceed. (Rules of Court.)
Rule 111, Sec. 6. Suspension by reason of prejudicial
question. - A petition for suspension of the criminal action
based upon the pendency of a prejudicial question in a
civil action may be filed in the office of the fiscal or the
court conducting the preliminary investigation. When the
criminal action has been filed in court for trial, the petition
to suspend shall be filed in the same criminal action any
time before the prosecution rests. (ibid.)
Bigamy - Art. 349, RPC. Contracting of second or subsequent
marriage:
a. before legal dissolution of first marriage
b. before declaration of presumptive death of absent spouse.

BOOK I
LAW ON PERSONS
TITLE I

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Notes, Cases, Annotations

I. CIVIL PERSONALITY

Tolentino: Concept of Person - In a juridical sense, the term

"person" is now understood as any being, physical or moral,
real or juridical and legal, susceptible of rights and obligations,
or of being the subject of legal relations. (Sanchez Roman.
Classes of Persons - (1) natural persons - human beings or
men; and (2) juridical persons entities created by law or by a
group pr association of men for certain lawful purposes.
Status - The position of an individual I relation to another or
others; a state or condition of affairs; the standing of a person
before the law; the legal relation of an individual to the rest of
the community.
Characteristics of status (a) it cannot be subject of
commerce, (b) it is imprescriptible, (c) it is not subject of
compromise, (d) right to claim it cannot be renounced and (e)
rights arising from it cannot be exercised by creditors.
Tolentino: Concept of Personality - Personality is the quality
derived from being a person. While a person is any being
susceptible of rights and obligations, personality is the aptitude
of that becoming the subject, active or passive, of juridical
relations.
Characteristics - (1) It is not a being, but a quality of certain
beings; (2) it is not a physical element, but a juridical concept;
(3) it is not an object of contract, or of possession, and cannot
be impaired by agreement; (4) it is a matter of public interest.
Art. 37. Juridical capacity, which is the fitness to be the subject
of legal relations, is inherent in every natural person and is lost
only through death. Capacity to act, which is the power to do acts
with legal effect, is acquired and may be lost.
Kinds of Capacity - Capacity may be (1) juridical capacity,
and (2) capacity to act. Juridical capacity is synonymous to
legal capacity and to personality. They all refer to the aptitude
for the holding and enjoyment of rights. On the other hand,
capacity to act refers to the aptitude for the exercise of rights,
and is often referred to merely as "capacity."
Juridical capacity vs. Capacity to act
a. JC is inherent in every human being (not in artificial
persons); whereas, CA is not; the latter is merely acquired
upon fulfilment of certain conditions or requisites fixed by
law.
b. JC is the capacity to be the subject o legal relations;
whereas, CA is the capacity to do acts with binding or legal
effect.
c. JC can exist without capacity to act; but CA cannot exist
without JC.
d. JC is lost only through death; whereas, CA may be lost
through grounds other than death.
Full civil capacity or plena capacidad civil - A person is
considered to have full civil capacity if he has both JC and CA.

Capacity of Public Interest - The capacity or incapacity of

persons depends upon the law and cannot be modified,
extended, or restricted by agreement. Both JC and CA are not
rights, but qualities of persons; hence, they cannot be alienated
or renounced.
Art. 38. Minority, insanity or imbecility, the state of being a deafmute, prodigality and civil interdiction are mere restrictions on
capacity to act, and do not exempt the incapacitated person from
certain obligations, as when the latter arise from his acts or from
property relations, such as easements.
Causes of Incapacity Minority- The unemancipated minor cannot enter into
contracts (Art. 1327); but he may be estopped from disavowing
his contract if he has misled the other party as to his age. The
SC has held that: xxx [T]he sale of real estate, effected by
minors who have already passed the ages of puberty and
adolescence and are near the adult age, when they pretend to
have already reached their majority, while in fact they have not,
is valid, and they cannot be permitted afterwards to excuse
themselves from compliance w/ the obligation assumed by
them or seek their annulment. This doctrine is entirely in
accord w/ the provisions of our law on estoppel. (Mercado vs.
Espiritu, 37 Phil. 215.
But there is authority to the effect that misrepresentation of an
incapacitated person does not bind him.
"xxx Misrepresentation made by a party as to his age does not
estop him from denying that he was of age or from asserting
that he was under age, at the time he entered into the contract,
for the breach of w/c an action is brought. Under the principle
of estoppel, the liab. resulting from misrepresentation has its
juridical source in the capacity of the person making the
misrepresentation to bind himself. If the person making the
misrepresentation cannot bind himself by contract, he cannot
also be bound by any misrepresentation he may have made in
connection therewith. A person entering into a contract must
see to it that the other party has sufficient capacity to bind
himself." (Young vs. Tecson, 39 OG 953.)
Insanity or Imbecility.-- Insanity includes the 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 delusions, unnatural exaltation
or depression, or insane ideas of persecution or power.
An insane person cannot make a valid will or testament (Art.
798); and he cannot validly give consent to contracts (Art.
1327, par. 2.)
Imbecility is a defect in the quantity of mental development.
The mental ages up to the completed eighth year are included.
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 cannot give consent
to contracts (1327, par. 2, and he cannot personally accept or
repudiate an inheritance (1048.)

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Notes, Cases, Annotations

Civil Interdiction - This is an accessory penalty 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. 34. 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.
Prodigality - A spendthrift or prodigal is "a person who, by
excessive drinking, gambling, idleness or debauchery of any
kind shall so spend, waste or lessen his estate as to expose
himself or his family to want or suffering.
Prodigality in itself does not limit the capacity of a person to
act. It seems erroneous to include prodigality in the Art. 38
because as a circumstance w/c limits capacity, because there
is no specific provision of law w/c implements this general
provision. It is not the circumstance of prodigality, but the fact
of being under guardianship, that restricts the capacity to act of
the spendthrift.
Obligations of Incapacitated Persons - They may have
obligations arising from all sources, except contracts. They
have obligations arising from law, such as those imposed on
family relations.
Incapacitated persons are also civilly liable for crimes
committed by them, even if they are exempted from criminal
liab. (Art. 101, RPC.) They are liable for quasi-delicts, under
the express provisions of Articles 2181 and 2182.
They are liable on quasi-contracts, on the principle that nobody
can unjustly enrich himself at the expense of another.
Where necessaries are delivered to a minor or other
incapacitated person, he must pay a reasonable price
therefore. (Art. 1489.)
Art. 39. The following circumstances, among others, modify or
limit capacity to act: age, insanity, imbecility, the state of being a
deaf-mute, penalty, prodigality, family relations, alienage,
absence, insolvency and trusteeship. The consequences of these
circumstances are governed in this Code, other codes, the Rules
of Court, and in special laws. Capacity to act is not limited on
account of religious belief or political opinion.
A married woman, twenty-one years of age or over, is qualified for
all acts of civil life, except in cases specified by law.
Articles 38 and 39 are really the same thing.
redundant.

They are

Insolvency certain obligations cannot be performed (i.e., one

cannot pay off debts in favor of one creditor while excluding
other creditors)
Trusteeship - one is placed in guardianship.

Prodigality - it is not by itself a restriction. It is a ground to be

placed in guardianship
These restrictions dont exempt incapacitated persons from
certain obligations. Under Article 1156, there are 5 sources of
obligations:
1. Law
2. Contract
3. Delict
4. Quasi-delict
5. Quasi-contract
Thus, Articles 38 and 39 prevent incapacitated persons from
incurring contractual obligations only. Thus, even though an
insane person cannot be thrown in jail for a criminal act, the
insane person is still civilly liable (delict). An incapacitated
person must still pay income tax if income is earned.
Although Articles 38 and 39 dont mention it, incapacitated
persons may acquire rights. For example, they have the right
to accept donations or to succeed.
The enumeration in Articles 38 and 39 is not exclusive. There
are others spread throughout the code. (i.e., a lawyer cannot
buy property in litigation Article 1491 (5))
Article 39, last has been amended by R.A. No. 6809.
years is no longer the age of majority but 18.

21

II. KINDS OF PERSONS

A. Natural Persons
Art. 40. Birth determines personality; but the conceived child shall
be considered born for all purposes that are favorable to it,
provided it be born later with the conditions specified in the
following article.
Personality springs from Birth To be considered born, a
foetus must be completely delivered from the mothers womb
which delivery could either be natural or artificial. It is natural if
the delivery is through the mothers vaginal opening. It is
artificial if delivery is through another opening like in Caesarian
operation.
A still-born baby one born dead- is not considered a person.
Conceived child - The personality of the conceived child has 2
characteristics: (1) it is essentially limited, because it is only for
purposes favorable to the child, and (2) it is provisional or
conditional, because it depends upon the child being born alive
later, such that if it is not born alive, its personality disappears
as if it had never existed.
Aborted foetus is not covered by Art. 2206 A foetus which
was aborted by a doctor is not a person under the law and the
doctor may be held liable for moral damages and exemplary
damages suffered by the parents, but not for actual damages
for the death of the foetus under Art. 2206. The unborn foetus
had not been endowed with personality. Award for death of a

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PERSONS REVIEWER
Notes, Cases, Annotations
person under Article 2206 does not cover an unborn foetus.
(Pineda)
Period of Conception - Legally, in a normal child, the period
of conception is the first 120 days of the 300 days preceding
the birth of the child.
The following provisions of the NCC are relevant:
Art. 742. Donations made to conceived and unborn
children may be accepted by those persons who would
legally represent them if they were already born.
Art. 1025. In order to be capacitated to inherit, the heir,
devisee or legatee must be living at the moment the
succession opens, except in case of representation, when
it is proper.
A child already conceived at the time of the death
of the decedent is capable of succeeding provided it be
born later under the conditions prescribed in article 41.
GELUZ v. CA [2 S 801 (1961)] - F: Nita Villanueva came to
know the defendant (Antonio Geluz) for the first time in 1948-thru her aunt. In 1950, she became pregnant by her present
husband before they were legally married. During to conceal
her pregnancy from her parent, she had herself aborted by def.
After the marriage w/ the plaintiff she again became pregnant.
As she was employed in the COMELEC and her pregnancy
proved to be inconvenient, she had herself aborted again by
def. in Oct 1953. Less than 2 years later, she again became
pregnant. On 2/21/55, she again repaired to the defendant's
clinic. Nita was again aborted of a 2-month old foetus, in
consideration of the sum of P50.

(2) This is not to say that the parents are not entitled to collect
any damages at all. But such damages must be those inflicted
directly upon them, as distinguished from the injury or violation
of the rights of the deceased, his right to life and physical
integrity. Because the parents cannot expect either help,
support or services from an unborn child, they would normally
be limited to moral damages for the illegal arrest of the normal
development of the spes hominis that was the foetus, i.e., on
account of distress and anguish attendant to its loss, and the
disappointment of their parental expectations (Art. 2217, CC),
as well as to exemplary damages, if the circumstances should
warrant them (Art. 2230, CC). But in this case, there is no basis
for an award of moral damages, evidently because the
husband's indifference to the previous abortions clearly
indicates that he was unconcerned with the frustration of his
parental hopes and affection.
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 intra-uterine 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.
General Rule: To be born, it is enough that the fetus is alive
when the umbilical cord is cut.
Exception: If the intra-uterine life is less than 7 months, it must
live for at least 24 hours, before it is considered born (There is
no distinction as to how the child dies whether natural,
accidental, etc.)
In posse, in esse A foetus or conceived child not yet born is
said to be in posse; once it is born, it is in esse.

It is the third and last abortion that constitutes plaintiffs basis in

filing this action and award of damages. The CA and the trial
court predicated the award of damages upon the provisions of
the initial par. of Art. 2206 of the NCC.

According to Professor Balane, modern medicine cannot as of

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

RULING: This award, we believe, to be error for the said art.,

in fixing an award for the death of a person, does not cover the
case of an unborn foetus that is not endowed w/ personality.

An example of a case where upon birth occurs personality

retroacts to the moment of conception is in case of succession
since it is favorable to the child. On the other hand, if the
purpose is for paying taxes, personality does not retroact since
it is unfavorable to the child.

RATIO: Parents of unborn foetus cannot sue for damages on

its behalf. A husband of a woman who voluntarily procured her
abortion could not recover damages from the physician who
caused the same. (1) Since an action for pecuniary damages
on account of personal injury or death pertains primarily to the
injured, no such right of action could derivatively accrue to the
parents or heirs of an unborn child. In fact, even if a cause of
action did accrue on behalf of the unborn child, the same was
extinguished by its pre-natal 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 the provisional personality of a
conceived child (conceptus pro nato habetur) under Article 40
of the Civil Cod, because that same article expressly limits
such provisional personality by imposing the condition that the
child should be subsequently born alive: "provided it be born
later with the condition specified in the following article." In the
present case, there is no dispute that the child was dead when
separated from its mother's womb.

In Geluz vs. CA, the SC said that the father could not file the
action for damages. The fetus never acquired personality
because it was never born it was not alive at the time it was
delivered from the mothers womb. Since the fetus did not
acquire any personality, it acquired no rights which could be
transmitted to the father. Thus, the father could not sue in a
representative capacity. The father could have sued in his
personal capacity had the father suffered anguish which he did
not.
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.
Natural Death - This Article refers to natural or
physical death, because this is the only kind of
death recognized by present legislation. The law
does not recognize the so-called "civil death,"

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PERSONS REVIEWER
Notes, Cases, Annotations
known to legislation in the past, by virtue of w/c a
man who was alive was considered dead for all
purposes because of a conviction for crime or of
the taking of a religious profession.
Balane:
same.

Physical death and legal death are the

The following are relevant provisions:

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.

Art. 777. The rights to the succession are

transmitted from the moment of death of the
decedent.

This is a presumption regarding simultaneous death and not a

rule on survivorship. On the other hand, the Rules provide for
a presumption of survivorship based on certain criteria.

Art. 776. The inheritance includes all the property,

rights and obligations of a person which are not
extinguished by his death.

The Rules of Court shall apply where:

Art. 1919. Agency is extinguished:

(3) By the death, civil interdiction, insanity or
insolvency of the principal or of his agent.
Art. 1830. Dissolution (of partnership) is caused:
(5) By the death of any partner.
Art. 603. Usufructuary is extinguished:
(1) By the death of the usufructuary, unless a
contrary intention clearly appears;
Art. 1311. Contracts take effect only between the
parties, their assigns and heirs, except in case
where the rights and obligations arising from the
contract are not transmissible by their nature, or
by stipulation or by provision of law. The heir is not
liable beyond the value of the property he
received from the decedent.
Art. 89. How criminal liability is totally
extinguished. - Criminal liability is totally
extinguished:
(1) By the death of the convict, as to the personal
penalties; and as to pecuniary penalties, liability
therefor is extinguished only when the death of
the offender occurs before final judgment.

Art. 43. 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, it is presumed that they
died at the same time and there shall be no transmission of rights
from one to the other.
RULE 131, RULES OF COURT, Sec. 3. Disputable
presumptions The following presumptions are satisfactory
if uncontradicted, but may be contradicted and overcome by
other evidence: (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;

1. The issue does not involve succession but something else

(i.e., insurance, suspensive conditions); and
2. The persons perish in the same calamity
Article 43 shall apply where:
1. The case involves succession; and
2. The persons do not perish in the same calamity.
If the conditions in the Rules of Court or Article 43 do not
concur, do not apply either.
Problem: What if succession is involved and the persons
perish in the same calamity?
Most commentators say Article 43 will prevail. This is the only
case of conflict between the Rules of Court and Article 43.
In Joaquin vs. Navarro, Article 43 was not applied. There was
no need to apply the presumption in Article 43 since there was
evidence to show who died first.
II. 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.
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.)
BARLIN v. RAMIREZ [7 P 41] - F: The defendant, Ramirez,
having been appointed by the plaintiff 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 defendant for the delivery to him of the church,
convent, and cemetery, and the sacred ornaments, books,

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PERSONS REVIEWER
Notes, Cases, Annotations
jewels, money, and other property of the church. The
defendant, 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 which is at Manila.
In 1/4, the plaintiff brought this action against defendant, 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 property belonging thereto, and asking that it be
restored to the possession thereof and that the def. render an
account of the property which he had received and w/c was
retained by him, and for other relief. The CFI-Ambos Camarines
ruled in favor of the plaintiff.
HELD: It is suggested by the appellant that the Roman Catholic
Church has no legal personality in the Philippine Islands. This
suggestion, made with reference to an institution w/c antedates by
almost a thousand years any other personality in Europe, and w/c
existed "when Grecian eloquence still flourished in Antioch, and
when idols were still worshipped in the temple of Mecca," does
not require serious consideration.
Art. 45. Juridical persons mentioned in Nos. 1 and 2 of the
preceding article are governed by the laws creating or recognizing
them.
Private corporations are regulated by laws of general application
on the subject.
Partnerships and associations for private interest or purpose are
governed by the provisions of this Code concerning partnerships.
What Governs Juridical Persons - The State is governed by
the provisions of the Constitution 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,
because 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.
Capacity of Juridical Persons - The juridical person is not
completely at par w/ natural persons as to capacity, because 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 association or incorporation.

The following provisions of the Constitution are relevant:

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 twenty-five 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.
Taking into account the requirements of conservation,
ecology and development and subject to the principles of
agrarian reform, the Congress shall determine, by law, the size
of lands of the public domain which may be acquired,
developed, held or leased and the conditions therefor.
Art. XII, Sec. 7. Save in cases of hereditary succession, no
private lands shall be transferred or conveyed except to
individuals, corporations, or associations qualified to acquire or
hold lands of the public domain.
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.
Dissolution is found in detail in the Corporation Code.
III.

Citizenship and Domicile

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 January 17, 1973 of Filipino mothers,
who elect Philippine citizenship upon reaching the age of
majority; and
(4) Those who are naturalized in accordance with law.
Art. 49. Naturalization and the loss and reacquisition of
citizenship of the Philippines are governed by special laws.
Naturalization is the process of acquiring the citizenship of
another country through procedures authorized in said country:
(a) the process could be judicial where certain formalities of the
law have to be satisfied including a judicial hearing, approval of
the application and oath of allegiance to the country, or (b) the
process could be nonjudicial such as by marriage to a citizen of
a foreign country or the exercise of an option to elect a specific
citizenship, or (c) the process could also be by presidential

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PERSONS REVIEWER
Notes, Cases, Annotations
decrees like the one ones issued by President Ferdinand
Marcos during the Martial law time, or by Act of Congress.
Naturalization is a proceeding in rem publication is
required before the curt could acquire jurisdiction over the
whole world, which would be bound by the decision.
Publication must be done in the OG or in a newspaper of
general circulation.
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.

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
principal functions.
Article 50 governs the domicile of natural persons. Article 51
talks about the domicile of juridical persons.
The following Articles in the Civil Code mention domicile:
1. Article 821 - The following are disqualified from being
witnesses to a will:
(1) Any person not domiciled in the Philippines;

Domicile the means permanent home, the place to which,

whenever absent for business or pleasure, one intends to
return and depends on facts and circumstances in the sense
that they disclose intent.

(2) Those who have been convicted of falsification of a

document, perjury or false testimony.
2. Article 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.

Requisites of Domicile: (1) physical presence; (2) animus

manendi (intent to remain) (Gallego v. Vera, 73 P 453.)
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 domicile
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.

3. Article 1251 - Payment shall be made in the place

designated in the obligation.
There being no express stipulation and if the undertaking is
to deliver a determinate thing, the payment shall be made
wherever the thing might be at the moment the obligation
was constituted.
In any other case the place of payment shall be the domicile
of the debtor.

Three Rules in Domicile:

(1) A man must have a domicile somewhere.
(2) A domicile once established remains until a new one is
acquired.
(3) A man can have only 1 domicile at a time.
Residence and domicile Both terms imply relations
between a person and a place; but in residence, the relation is
one of fact, while in domicile, it is legal or juridical, independent
of the necessity of physical presence. A man can have but one
domicile for one and the same purpose at any time, but he may
have numerous places of residence.
Requisites for acquisition of new domicile (1) residence
or bodily presence in the new locality, (2) an intention to remain
there (animus manendi), and (3) an intention to abandon the
old domicile (animus non revertendi). The purpose to remain I
pr at the domicile of choice must be for an indefinite period of
time. The acts of the person must conform with his purpose.
The change of residence must be voluntary; the residence at
the place chose for the domicile must be actual; and to the fact
of residence there must be added the animus manendi
(Gallego v. Verra, 73 P 453).
According to the Supreme Court in Marcos vs. COMELEC, the
wife does not lose her domicile upon marriage. She does not
necessarily acquire her husbands domicile. Until the spouses
decide to get a new domicile, the wife retains her old domicile.
Under Article 698 of the Family Code, the domicile is fixed
jointly.

If the debtor changes his domicile in bad faith or after he has

incurred in delay, the additional expenses shall be borne by
him.
These provisions are without prejudice to venue under the
Rules of Court.
The concept of domicile is not as important in civil law
countries unlike common law countries which follow the
nationality theory.
X.

Funerals

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 Article 2941. 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.

1.

The arrangement for funeral is both a duty and a right

of those who stand as relatives of the deceased.

2.

In case of disagreement, the order of preference under

the law is as follows:
a.
The spouse;
b.
The descendants in the nearest degree;
c.
The ascendants in the nearest degree; and

Now Art.199 of the FC

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PERSONS REVIEWER
Notes, Cases, Annotations
d.
3.
a.
b.
4.

The brothers and sisters.

Same degree; rules.
If descendants, the oldest shall be
preferred.
If ascendants, the paternal side shall have
a better right.

A corpse is a quasi-property right; hence, recoverable

from third persons.

Art. 306. Every funeral shall be in keeping with the social position of the
deceased.
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 make
arrangements for the same, after consulting the other members of the
family.

1.

b.
c.
d.
e.

Limitations on the funeral wishes of the deceased2:

Burial is prohibited in unauthorized places
except in cases of emergency;
No dead body shall be buried without a
death certificate except in cases of emergency;
No embalmed body shall remain unburied
longer than 48 hours after death, unless required for legal
investigation or when authorized by local health officers;
The body of one who died of a dangerous
communicable disease shall not be carried from place to place
except for purposes of burial/cremation; and
In case of epidemic, the body shall not be
brought in any place of public assembly, and only 4 adult
members of the immediate family/nearest friends shall be
allowed to attend therein.

Art. 308. No human remains shall be retained, interred, disposed of or

exhumed without the consent of the persons mentioned in articles 294
and 305.

2.

Consent of relatives (under Art. 199 of the FC, supra)

or, if none, of municipal authorities are required in the following
cases: (RIDE)
a.
Retention
b.
Interment
c.
Disposal
d.
Exhumation The body must have been
buried for:
i.
5 years, if he died of any
dangerous communicable disease;
ii.
3 years, if not covered by (i) and
the purpose is only for reburial or medical
investigation; and
iii.
Any period, if the purpose is for
transfer only (special permit).

Effect of violation: criminal and liability may arise

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.

Disrespect to the dead is an actionable wrong (e.g. libel,

mutilating the body)
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.

The wishes of the deceased must be respected

insofar as his burial is concerned. In the absence thereof, the
rites shall be determined by his religious beliefs or affiliations.

2.
a.

1.

In all cases, a shorter period may be allowed by

the Director of Health if public health will not be
endangered thereby.
Court order is required if the relatives object.
Exhumation can be ordered by the court, even
against the will of the relatives if absolutely
necessary in the administration of justice.

XII - CARE AND EDUCATION OF CHILDREN

Art. 356. Every child:
(1) Is entitled to parental care;
(2) Shall receive at least elementary education;
(3) Shall be given moral and civic training by the parents or guardian;
(4) Has a right to live in an atmosphere conducive to his physical, moral
and intellectual development.

Minimum rights of children; other rights:

a.
Art. 174 of the FC: To bear surname of
father and mother and to receive support, legitimes and other
successional rights;
b.
PD 603, Art. 3. also provides for a list.
Art. 357. Every child shall:
(1) Obey and honor his parents or guardian;
(2) Respect his grandparents, old relatives, and persons holding substitute
parental authority;
(3) Exert his utmost for his education and training;
(4) Cooperate with the family in all matters that make for the good of the
same.

The provision provides for the duties and responsibilities of

children. Some are also found in PD 603 (Art. 4).

Art. 358. Every parent and every person holding substitute

parental authority shall see to it that the rights of the child are respected
and his duties complied with, and shall particularly, by precept and
example, imbue the child with high-mindedness, love of country,
veneration for the national heroes, fidelity to democracy as a way of life,
and attachment to the ideal of permanent world peace.

1.

This
applies
to
parents and to persons holding substitute parental authority.

2.

The FC enumerates
an exclusive list of persons who can exercise substitute
parental authority

Revised Administrative Code

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PERSONS REVIEWER
Notes, Cases, Annotations
the minor. Of course, the putative father may adopt his own
illegitimate child; in such a case, the child shall be
considered a legitimate child of the adoptive parent
(Mossesgeld v. CA, 1998).

Art. 216. In default of parents or a judicially appointed guardian,

the following persons shall exercise substitute parental authority over the
child in the order indicated:
(1) The surviving grandparent, as provided in Art. 214;
(2) The oldest brother or sister, over 21 years of age, unless unfit
or disqualified; and
(3) The child's actual custodian, over twenty-one years of age,
unless unfit or disqualified. xxx

Art. 359. The government promotes the full growth of the faculties
of every child. For this purpose, the government will establish, whenever
possible:
(1) Schools in every barrio, municipality and city where optional
religious instruction shall be taught as part of the curriculum at the option
of the parent or guardian;
(2) Puericulture and similar centers;
(3) Councils for the Protection of Children; and
(4) Juvenile courts.
Art. 360. The Council for the Protection of Children shall look after
the welfare of children in the municipality. It shall, among other functions:
(1) Foster the education of every child in the municipality;
(2) Encourage the cultivation of the duties of parents;
(3) Protect and assist abandoned or mistreated children, and
orphans;
(4) Take steps to prevent juvenile delinquency;
(5) Adopt measures for the health of children;
(6) Promote the opening and maintenance of playgrounds;
(7) Coordinate the activities of organizations devoted to the
welfare of children, and secure their cooperation.
Art. 361. Juvenile courts will be established, as far as practicable,
in every chartered city or large municipality.

Title XIII. - USE OF SURNAMES

Art. 364. Legitimate and legitimated children shall principally use
the surname of the father.

1.

Concepts

Name
Surname
A word/s, when applied to a
A word/s used by which a person
particular person, used to
is known not only as an individual,
distinguish or to identify that
but also as belonging to a
person. It is the label which a
particular family.
person bears for the convenience
of the world at large in addressing
him, or in addressing him, or in
speaking of or dealing with him.
Given/first name is freely selected
Last/family name which is fixed by
by the parents.
law.
Names and surnames are not owned by anyone. Thus, anyone may use
the same name or surname.

2.

Legitimate/d children shall principally use the surname of

their father. But the word principally as used in the law is not
equivalent to exclusively so that there is no legal obstacle
if a legitimate/d child should choose to use the surname of
his mother to which he is equally entitled (Alfon vs.
Republic, 1980).

3.

The official name of a person is that one given him in the

civil register (Republic vs. Hernandez), and not elsewhere
such as church records.

Juvenile and Domestic Relations Courts have already been

abolished and their functions absorbed by the RTCs (Sec.
24, B.P. 129).

Art. 365. An adopted child shall bear the surname of the adopter.
Art. 362. Whenever a child is found delinquent by any court, the
father, mother, or guardian may in a proper case be judicially admonished.
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.

1.

Childrens welfare is the paramount consideration in the

following: care, custody, education, property of children.

2.

Child under 7 should not be separated from the mother;

exception:

If there is a compelling reason therefor (e.g.

immorality, neglect and abandonment, drug addiction
and non-employment.

3.

4.

Generally, the choice of the child over 7 years is respected

by the court. However, if the parent chosen is unfit in any
way to exercise the responsibilities attendant to the duties of
a parent, the court may disregard the choice of the child.
The law explicitly confers to the mother sole parental
authority over an illegitimate child; it follows that only if she
defaults can the father assume custody and authority over

The use of the surname of the adopter by the adopted child

is both a right and an obligation (Republic vs. Fernandez,
253 SCRA).

Art. 366. A natural child acknowledged by both parents shall

principally use the surname of the father. If recognized by only one of the
parents, a natural child shall employ the surname of the recognizing
parent. (Repealed by subsequent laws)

Effects of the amendments

Art. 366 (CC)

Art. 176 (FC)

RA 9225
(March 19, 2004)

acknowledged
natural child
If acknowledged by
both parents, use
surname of father.
If only one
acknowledged,
follow the surname
of the recognizing
parent.

illegitimate child

illegitimate child

Whether
acknowledged or
not by the putative
father, the child
shall use solely
the surname of
the mother. The
remedy of the
father is to adopt
the child.

G.R. Mother
EXCEPT: If the father:
- expressly recognized
filiation in the record of
birth,
- admitted filiation in a
public document, or
- admitted filiation in a
private
handwritten
instrument made by

28

PERSONS REVIEWER
Notes, Cases, Annotations
b.

him.3

Art. 369. Children conceived before the decree annulling a

voidable marriage shall principally use the surname of the father.

1.
2.
3.

Note the word conceived. The law does not require that
the child be born yet.
Conceived before decree of annulment: Use surname of the
father.
Conceived after the decree: Use the surname of the mother,
if she had not yet remarried.

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.

1.
Art. 370. A married woman may use:
(1) Her maiden first name and surname and add her husband's
surname, or
(2) Her maiden first name and her husband's surname or
(3) Her husband's full name, but prefixing a word indicating that
she is his wife, such as "Mrs."

1.

Use of husbands name is not obligatory.

2.

The authority of the wife to use the surname of her husband

impliedly excludes others from using the same name.
Otherwise, there is usurpation of status as the man is
married to another woman, who alone has the right to claim
the status of a wife (Silva vs. Peralta, 110 Phil)

Art. 371. In case of annulment of marriage, and the wife is the

guilty party, she shall resume her maiden name and surname. If she is the
innocent spouse, she may resume her maiden name and surname.
However, she may choose to continue employing her former husband's
surname, unless:
(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.
Art. 373. A widow may use the deceased husband's surname as
though he were still living, in accordance with Article 370.

1.

2.

3.

Options of wife in case of annulment

a. If guilty party resume maiden name
b. If innocent spouse
i. Resume maiden name (optional);
ii. Resume maiden name (mandatory) IF: the court
says so or either of the spouses remarries; or
iii. Retain husbands surname.

Add the descriptive appellation of Viuda de or Vda.

de.

When additional names and surnames are required:

a.
In case of identity of names and surnames
younger one is obliged to add name/surname
b.

In case of such identity between

ascendants and descendants
i.
Same with (a); and
ii.
Junior can only be used by a
son.

c.

In case of identity of names involving a

grandson or other direct male descendants
i.
Use a middle name (the
mothers surname); OR
ii.
Add I, II etc.

Art. 376. No person can change his name or surname without

judicial authority.

1.

RA 9048 (approved on March 22, 2001)

now provides for an exception to this rule. It reads

Section 1. Authority to Correct Clerical or Typographical Error and

Change of First Name or Nickname. No entry in a civil register shall be
changed or corrected without a judicial order, except for clerical or
typographical errors and change of first name or nickname which can be
corrected or changed by the concerned city or municipal civil registrar or
consul general in accordance with the provisions of this Act and its
implementing rules and regulations.
Section 4. Grounds for Change of First Name or Nickname. The
petition for change of first name or nickname may be allowed in any of the
following cases:
(1) The petitioner finds the first name or nickname to be ridiculous,
tainted with dishonor or extremely difficult to write or pronounce.
(2) The new first name or nickname has been habitually and
continuously used by the petitioner and he has been publicly known by
that first name or nickname in the community: or
(3) The change will avoid confusion.

In case of legal separation, the wife must still use her

husbands surname, as she still remains his wife.
a. Her guilt or innocence is immaterial.
b. The law is mandatory.

2.

Options of wife in case she is widowed

a. Follow number (1) as if the husband were still alive; or

Art. 377. Usurpation of a name and surname may be the subject

of an action for damages and other relief.

This list is without prejudice to the fathers right to institute

an action before the court to prove non-filiation during his
lifetime.

The said law is retroactive insofar as it does

not impair vested rights.

Art. 378. The unauthorized or unlawful use of another person's

surname gives a right of action to the latter.

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PERSONS REVIEWER
Notes, Cases, Annotations
1.

Distinctions

Art. 377.
Usurpation of name and surname
The use is for the purpose of
designation personality or
identifying a person.
Elements of usurpation of name:
a.
When there is actual
use of anothers name by the
defendant;
b.
The
use
in
unauthorized; and
c.
The use of anothers
name is to designate
personality or identify a
person.

Art. 378.
Unauthorized or unlawful use of
surname
Covers the use of name for other
purposes, (e.g. name is used to
call an animal or a trademark).

b.
2.

Alias name
A name/s used by a person or intended to be used by
him publicly and habitually usually in business
transactions in addition to his real name by which he is
registered at birth or baptized; or
A substitute name authorized by a competent authority.

General Rule: No person shall use different names

and surnames.

i.

ii.

3.

No specific period of
absence

2 years no agent
(counted from the time
of disappearance)

Exceptions:
Pen names protected only if it
is used in connection with an activity in the
literary field
Stage names protected if it is
used in connection with some artistic or theatrical
activities

Conditions before the use of pen or stage names will

be protected:
a.
Done in good faith;
b.
There is no injury to
third persons; and
c.
Connected with its
purpose.

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.
This same rule shall be observed when under similar
circumstances the power conferred by the absentee has expired.

1.

Situations:
a. Person disappears without leaving an agent to
administer his property
b. Power of the absentees agent has expired

2.

No necessity to appoint representative if there are no

properties left because to declare a person an absentee,
there must be a specific purpose.

3.

Reyes vs. Alejandro: Considering that neither the petition

alleges, nor the evidence shows, that Roberto L. Reyes has
any rights, interest or property in the Philippines, there is no
point in judicially declaring him an absentee.

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 representative, 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.

1.

The rules on guardianship under

Rule 96 of the ROC are applicable.

2.

If a person is administering an
absentees property without authority, negotiorum gestio
shall arise. He is called an officious manager, whose duties
are provided under Arts. 2145-2152 of the CC.

3.

If not legally separated, the

spouse present shall be preferred in appointing the
absentees representative. If not married, any competent
person may be appointed.

Title XIV. - ABSENCE

1st type

2nd type
(JUDICIAL
DECLARATION OF
ABSENCE)

Creates a presumption
of death after 7 years
under Arts. 390-392

Chapter 1. Provisional Measures In Case Of Absence

Art. 380. Except as provided in the preceding article, no person

shall use different names and surnames.

a.

May be declared after

absence of 2-5 years
under Arts. 384-389

5 years an agent has

been appointed

Art. 379. The employment of pen names or stage names is

permitted, provided it is done in good faith and there is no injury to third
persons. Pen names and stage names cannot be usurped.

1.

Authorizes the taking of

provisional measures
under Arts. 381-383

3rd type

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PERSONS REVIEWER
Notes, Cases, Annotations
4.

A spouse, without being

appointed as representative or administrator of the property
of his or her spouse, has no capacity to file an action to
recover possession of such properties (Ablang vs.
Fernandez)

Chapter 2. Declaration Of Absence

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.

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.

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.

Art. 385. The following may ask for the declaration of absence:
(1) The spouse present;
(2) The heirs instituted in a will, who may present an authentic
copy of the same;
(3) The relatives who may succeed by the law of intestacy;
(4) Those who may have over the property of the absentee some
right subordinated to the condition of his death.

Chapter 4. Presumption of Death

1.

Preference is also given to the spouse, if not legally

separated.

2.

Any person who has a direct interest in the absentees

propertyby reason of succession or otherwisehas the
right to file the action.

Art. 390. After an absence of seven years, it being unknown

whether or not the absentee still lives, he shall be presumed dead for all
purposes, except for those of succession.
The absentee shall not be presumed dead for the 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 that his succession may be opened.

1.

Presumption of death under ordinary circumstances

not certain whether alive or not
there is no need of judicial declaration, since the
presumption of death arises by operation of law
this may be invoked even for purposes of remarriage,
without exposing oneself to prosecution for bigamy.
Unlike in Art. 41 of the FC, the latter case requires a
judicial declaration of absence because the period
therein is shorter.

2.

Years required
a. 7 years for all purposes, excluding succession
b. 10 years for opening succession
c. 5 years if disappeared at age 75, presumed dead for
all purposes

3.

The period of absence shall be reckoned from the date

referred to by last news concerning the absentee and not
from the actual receipt of the news. If there are no news, it
shall be counted from the date of disappearance.

Art. 386. The judicial declaration of absence shall not take effect
until six months after its publication in a newspaper of general circulation.

1.
2.

3.

Order of declaration of absence must be first published in a

newspaper of general circulation.
HOWEVER, after compliance with the publication
requirement, the court must still issue another Order
declaring the effectivity of the declaration.
The date of effectivity should be not less than 6 months from
such publication.

Chapter 3. Administration Of The Property Of The Absentee

Art. 387. An administrator of the absentee's property shall be
appointed in accordance with Article 383.

The spouse present shall be preferred as long as s/he is not

legally separated from the absentee.

Art. 388. The wife who is appointed as an administratrix of the

husband's property cannot alienate or encumber the husband's property,
or that of the conjugal partnership, without judicial authority.

Limitations on the powers of the administrator-spouse

a. Cannot alienate or encumber the absentee-spouses
property
b. Cannot alienate or encumber ACP/CPG property
without judicial authority

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.

1.

Presumption of death under extraordinary/dangerous

circumstances
for all purposes, including succession

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PERSONS REVIEWER
Notes, Cases, Annotations
2.

Period shall be counted from the date of occurrence of the

incident upon which the presumption of death is based.

Art. 412. No entry in a civil register shall be changed or corrected,

without a judicial order. (STE)

3.

Loss of vessel/aircraft there must be no trace of the

whereabouts, not just mere damage as understood in
insurance law

Art. 413. All other matters pertaining to the registration of civil

status shall be governed by special laws.

Art. 392. If the absentee appears, or without appearing his

existence is proved, he shall recover his property in the condition in which
it may be found, and the price of any property that may have been
alienated or the property acquired therewith; but he cannot claim either
fruits or rents.

1.

Recoverable upon re-appearance or proof of existence are

a. His property in the condition as it may be found

b. Price of alienated properties
c. Property acquired by reason of the alienation of his
properties

2.

Fruits or rents are not recoverable.

3.

The rules on acquisitive prescription still apply.

EXECUTIVE ORDER NO. 2094

THE FAMILY CODE OF THE

PHILIPPINES
Art. II, Sec. 12. The State recognizes the sanctity of family life and
shall protect and strengthen the family as a basic autonomous social
institution. It shall equally protect the life of the mother and the life of the
unborn from conception. The natural and primary right and duty of parents
in the rearing of the youth for civic efficiency and the development of
moral character shall receive the support of the Government.
Art. XV, Sec. 1. The State recognizes the Filipino family as the
foundation of the nation. Accordingly, it shall strengthen its solidarity and
actively promote its total development.
Art. XV, Section 2. Marriage, as an inviolable social institution, is
the foundation of the family and shall be protected by the State.

Title XVI. - CIVIL REGISTER

TITLE I: MARRIAGE
Chapter 1. Requisites of Marriage

Art. 407. Acts, events and judicial decrees concerning the civil
status of persons shall be recorded in the civil register.
Art. 408. The following shall be entered in the civil register:
(1) Births;
(2) marriages;
(3) deaths;
(4) legal separations;
(5) annulments of marriage;
(6) judgments declaring marriages void from the beginning;
(7) legitimations;
(8) adoptions;
(9) acknowledgments of natural children;
(10) naturalization;
(11) loss, or (12) recovery of citizenship;
(13) civil interdiction;
(14) judicial determination of filiation;
(15) voluntary emancipation of a minor; and
(16) changes of name.

Article 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.

b.

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.

Aspects of marriage:
Special contract
1.
Only between a man and a
woman
2.
Permanent, as a rule, since it
can only be dissolved upon death
3.
Rights and duties are fixed by
law and are not subject to stipulation (except: property
relations)]
4.
Breach of obligations does not
give rise to an action for damages, but there may be
other penal and civil sanctions therefor
ii.
Status
1.
An inviolable social institution
i.

c.

Art. 411. Every civil registrar shall be civilly responsible for any
unauthorized alteration made in any civil register, to any person suffering
damage thereby. However, the civil registrar may exempt himself from
such liability if he proves that he has taken every reasonable precaution to
prevent the unlawful alteration.
4

Sarmiento vs. CA [G.R. No. 96740. March 25, 1999]:

While it is true that A and B cohabited as husband and wife,
C testified that the said cohabitation was without the benefit
of marriage. In People vs. Borromeo, this Court held that
persons living together in apparent matrimony are
presumed to be in fact married, absent any counter
presumption or evidence special to the case.
July 6, 1987 (approval). August 3, 1988 (effectivity).

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PERSONS REVIEWER
Notes, Cases, Annotations

d.

Trinidad vs. Court of Appeals, et al. [G.R. No.

118904, April 20, 1998]: As proof of marriage, the following
may be presented:
a.
testimony
of
a
witness to the matrimony;
b.
the couples public
and open cohabitation as husband and wife 5 after the
alleged wedlock;
c.
the
birth
and
baptismal certificate of children born during such
union; and
d.
the mention of such
nuptial in subsequent documents.

2.

Other Requirements
When either or both parties is -

18 years old and above but below 21

Parental consent

21 years old and above but below 25

Parental advice

18 years old and above but below 25

Marriage counseling

3.
a.
b.
4.

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; and
(2) Consent freely given in the presence of the solemnizing officer.
Art. 3. The formal requisites of marriage are:
(1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases provided for in
Chapter 2 of this Title; and
(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.

a.
b.

1.

Legal capacity means

Of legal age or parental consent if below 21
years old
No impediment to marry (not falling under
any of the cases in Arts. 35, 37 and 38)
Consent means
That given by the contracting parties
The absence of any vice of consent

5.

Republic vs. Court of Appeals and Castro: The

certification issued by the local civil registrar is sufficient to
prove the non-issuance of the marriage license. The
certification of due search and inability to find issued by a
civil registrar enjoys probative value, he being an officer
charged under the law to keep such record.

6.

Araez vs. Occiano: Where a judge solemnizes

marriage outside his courts jurisdiction, there is a resultant
irregularity in the formal requisite under Article 3, which
while it may not affect the validity of the marriage may
subject the officiating official to administrative liability.

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).
A defect in any of the essential 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.

Requirement

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.

Requisites of marriage

Essential (Art.2)
-Legal capacity of male and
female parties
-Consent freely given in the
presence of solemnizing officer

DEFECT in any requisite VOIDABLE

Formal (Art.3)
-Authority of the solemnizing officer
-Valid marriage license (STE)
-Marriage ceremony with the
appearance of the contracting
parties before the solemnizing
officer and in the presence of not
less than two witnesses
IRREGULARITY in any requisite
VALID but party responsible for
such irregularity shall be civilly,
criminally and administratively
liable

ABSENCE of any of the requisite

1.

Sy vs. CA [G.R. No. 127263. April 12, 2000]: A marriage

license is a formal requirement; its absence renders the
marriage void ab initio.

Art. 6. No prescribed form or religious rite for the solemnization of

the marriage is required. It shall be necessary, however, for the
contracting parties to appear personally before the solemnizing officer and
declare in the presence of not less than two witnesses of legal age that
they take each other as husband and wife. This declaration shall be
contained in the marriage certificate which shall be signed by the
contracting parties and their witnesses and attested by the solemnizing
officer.

General Rule: The absence of any of the above requisites shall render
the marriage VOID AB INITIO.

In case of a marriage in articulo mortis, when the party at the point

of death is unable to sign the marriage certificate, it shall be sufficient for
one of the witnesses to the marriage to write the name of said party, which
fact shall be attested by the solemnizing officer.

Exceptions:
1.
Art. 35 (2) when either or both parties believes in good faith that
the solemnizing officer has authority;

1.

No required form of ceremony.

2.

Minimum requirements:
a. Parties appear before the solemnizing officer
b. Declare in the presence of 2 witnesses that they take
each other as husband and wife
c. The witnesses must be of legal age.

2.

Articles 27, 28, 31, 32, 33, 34 - marriages exempted from

marriage license

Section 3 (aa) of Rule 131 of the Rules of Court

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PERSONS REVIEWER
Notes, Cases, Annotations

3.

The absence of the following shall not render the marriage

void:
a. No witnesses
b. No oral declaration
c. No marriage certificate or contract

Art. 7. Marriage may be solemnized by:

(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 religious sect and registered with the
civil registrar general, acting within the limits of the written authority
granted by his church or religious sect and provided that at least one of
the contracting parties belongs to the solemnizing officer's church or
religious sect;
(3) Any ship captain or airplane chief only in the case mentioned in
Article 31;
(4) Any military commander of a unit to which a chaplain is
assigned, in the absence of the latter, during a military operation, likewise
only in the cases mentioned in Article 32;
(5) Any consul-general, consul or vice-consul in the case provided
in Article 10.

1.

The list above is exclusive.

2.

Limitations:
a. Judges

within territorial jurisdiction (lower court)

entire Philippines (SC, CA, the Sandiganbayan,

CTA)

Must be done on a working day

b. Religious leader

Authorized by his church

Registered with the civil registrar general

Acting within the limits of his churchs authority

At least one of the parties belongs to the said

church
c. Ship captain or airplane chiefs

Only in articulo mortis cases

Between passengers or crew members

May be made in stop-overs at ports of call

d. Military commanders

Only in articulo mortis cases in the absence of

the chaplain

Must be a commissioned officer

The unit must be a battalion.

e. Consuls etc.

Only in marriages between Filipinos abroad

Consuls in home assignment in the Philippines

cannot solemnize marriage.

Article. 8. The marriage shall be solemnized publicly in the

chambers of the judge or in open court, in the church, chapel or temple, or
in the office the consul-general, consul or vice-consul, as the case may
be, and not elsewhere, except in cases of marriages contracted on the
point of death or in remote places in accordance with Article 29 of this
Code, or where both of the parties request the solemnizing officer in
writing in which case the marriage may be solemnized at a house or place
designated by them in a sworn statement to that effect.

General Rule: The ceremony must be made in public.

Exceptions:
a. Court chambers
b. In articulo mortis
c. In a remote place
d. When both parties in sworn statement requests that it
be done somewhere else

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.
Art. 10. Marriages between Filipino citizens abroad may be
solemnized by a consul-general, consul or vice-consul of the Republic of
the Philippines. The issuance of the marriage license and the duties of the
local civil registrar and of the solemnizing officer with regard to the
celebration of marriage shall be performed by said consular official.

1.

ML
Issued by the local civil registrar (except Art. 10)
City or municipality where either contracting party
habitually resides

2.

Instances when ML is not required:

In articulo mortis
In a remote place
Marriage among ethnic cultural
solemnized under their customs
Ratification of marital cohabitation

3.

communities

Article 10 does not apply if one of the parties is a foreigner.

Art. 11. Where a marriage license is required, each of the

contracting parties shall file separately a sworn application for such
license with the proper local civil registrar which shall specify the following:
(1) Full name of the contracting party;
(2) Place of birth;
(3) Age and date of birth;
(4) Civil status;
(5) If previously married, how, when and where the previous
marriage was dissolved or annulled;
(6) Present residence and citizenship;
(7) Degree of relationship of the contracting parties;
(8) Full name, residence and citizenship of the father;
(9) Full name, residence and citizenship of the mother; and
(10) Full name, residence and citizenship of the guardian or
person having charge, in case the contracting party has neither father nor
mother and is under the age of twenty-one years.
The applicants, their parents or guardians shall not be required to
exhibit their residence certificates in any formality in connection with the
securing of the marriage license.

1.

Sworn application for ML administered by the LCR

2.

Application is made separately, but any falsity stated therein

will not invalidate the marriage unless of course, it is invalid
on some other grounds.

3.

CTCs are not required to be presented.

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PERSONS REVIEWER
Notes, Cases, Annotations
iv.

If either of the contracting parties is unable to produce his birth or

baptismal certificate or a certified copy of either because of the
destruction or loss of the original or if it is shown by an affidavit of such
party or of any other person that such birth or baptismal certificate has not
yet been received though the same has been required of the person
having custody thereof at least fifteen days prior to the date of the
application, such party may furnish in lieu thereof his current residence
certificate or an instrument drawn up and sworn to before the local civil
registrar concerned or any public official authorized to administer oaths.
Such instrument shall contain the sworn declaration of two witnesses of
lawful age, setting forth the full name, residence and citizenship of such
contracting party and of his or her parents, if known, and the place and
date of birth of such party. The nearest of kin of the contracting parties
shall be preferred as witnesses, or, in their default, persons of good
reputation in the province or the locality.
The presentation of birth or baptismal certificate shall not be
required if the parents of the contracting parties appear personally before
the local civil registrar concerned and swear to the correctness of the
lawful age of said parties, as stated in the application, or when the local
civil registrar shall, by merely looking at the applicants upon their
personally appearing before him, be convinced that either or both of them
have the required age.
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 certificate required in the last preceding article, the
death certificate of the deceased spouse or the judicial decree of the
absolute divorce, or the judicial decree of annulment or declaration of
nullity of his or her previous marriage.
In case the death certificate cannot be secured, the party shall
make an affidavit setting forth this circumstance and his or her actual civil
status and the name and date of death of the deceased spouse.

1.

What to present to the LCR:

a. PROOF OF MAJORITY, which can be any of the
following
i. Original birth certificate
ii. Baptismal certificate or certified copy thereof

Certificates or certified copies - need not be

sworn to and shall be exempt from the documentary
stamp tax.

The signature and official title of the person

issuing the certificate shall be sufficient proof of its
authenticity.

IF:
iii.

Birth or baptismal certificate is not required

the parents appear personally and swear to the
correctness of the lawful age, or
the LCR is convinced that he is of age by merely
looking at him, or
the case falls under letter (b) (infra.).
Current residence certificate

A sworn declaration of 2 witnesses stating

full name
residence and citizenship of the contracting party
and of his or her parents (if known)

place and date of birth of such party.

Art. 12. The local civil registrar, upon receiving such application,
shall require the presentation of the original birth certificates or, in default
thereof, the baptismal certificates of the contracting parties or copies of
such documents duly attested by the persons having custody of the
originals. These certificates or certified copies of the documents by this
Article need not be sworn to and shall be exempt from the documentary
stamp tax. The signature and official title of the person issuing the
certificate shall be sufficient proof of its authenticity.

The nearest of kin of the contracting parties

shall be preferred as witnesses, or, in their default,
persons of good reputation in the province or the
locality.
b.

PROOF OF DISSOLUTION OF PREVIOUS

MARRIAGE which can be
i. death certificate6 of the deceased spouse
ii. judicial decree of the absolute divorce
iii. judicial decree of annulment
iv. declaration of nullity

Art. 14. In case either or both of the contracting parties, [not

having been emancipated by a previous 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 civil 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.
Art. 15. Any contracting party between the age of twenty-one and
twenty-five shall be obliged to ask their parents or guardian for advice
upon the intended marriage. If they do not obtain such advice, or if it be
unfavorable, the marriage license shall not be issued till after three
months following the completion of the publication of the application
therefor. A sworn statement by the contracting parties to the effect that
such advice has been sought, together with the written advice given, if
any, shall be attached to the application for marriage license. Should the
parents or guardian refuse to give any advice, this fact shall be stated in
the sworn statement.
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 counselor duly accredited by the proper
government agency to the effect that the contracting parties have
undergone marriage counseling. Failure to attach said certificates of
marriage counseling shall suspend the 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 counseling
referred to in the preceding paragraph.

In case the death certificate cannot be secured, the party

shall make an affidavit setting forth this circumstance and
his or her actual civil status and the name and date of death
of the deceased spouse.

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PERSONS REVIEWER
Notes, Cases, Annotations
1.

Additional requirement for applicants who are between 1821 years old
a. Affidavit (written consent) of father, mother, surviving
parent or guardian, or persons having legal charge of
them (follow order given), which should be executed in
the presence of 2 witnesses, or personal written
manifestation by the interested party, who personally
appears before the LCR
The affidavit or manifestation should be attached to
the application.
The consent must state the person to be married,
not just consent to marry anyone.
b.

2.

Certificate issued by a priest, imam or minister

authorized to solemnize marriage or a governmentaccredited marriage counselor to the effect that the
contracting parties have undergone marriage
counseling
Failure to attach said certificate of marriage
counseling shall suspend the issuance of the ML
for a period of 3 months from the completion of
the publication of the application.
Issuance of the ML within the prohibited period shall
subject the issuing officer to administrative
sanctions but shall not affect the validity of the
marriage.

Additional requirement for applicants who are between 2125 years old
a. Ask for parents or guardians advice, or if they do not
obtain such advice, or if it be unfavorable, the ML
shall not be issued till after three months following
the completion of the publication of the
application.
b. Affidavit to the effect that such advice has been sought
or, if refused, the same should be stated therein.
c. Certificate issued by a priest, imam or minister
authorized to solemnize marriage or a governmentaccredited marriage counselor to the effect that the
contracting parties have undergone marriage
counseling
Failure to attach said certificate of marriage
counseling shall suspend the issuance of the ML for
a period of 3 months from the completion of the
publication of the application.
Issuance of the ML 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 counseling.

Art. 17. The local civil registrar shall prepare a notice which shall
contain the full names and residences of the applicants for a marriage
license and other data given in the applications. The notice shall be
posted for ten consecutive days on a bulletin board outside the office of
the local civil registrar located in a conspicuous place within the building
and accessible to the general public. This notice shall request all persons
having knowledge of any impediment to the marriage to advise the local

civil registrar thereof. The marriage license shall be issued after the
completion of the period of publication.
Art. 18. In case of any impediment known to the local civil registrar
or brought to his attention, he shall note down the particulars thereof and
his findings thereon in the application for marriage license, but shall
nonetheless issue said license after the completion of the period of
publication, unless ordered otherwise by a competent court at his own
instance or that of any interest party. No filing fee shall be charged for the
petition nor a corresponding bond required for the issuances of the order.
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.
-

Duties of the LCR upon receipt of the application:

a. Prepare a notice (stating the full names, residences
and other important data)
b. Post notice for 10 days in a conspicuous place outside
his office
c. The notice shall request from the public information as
to any impediments to marry of either of the parties.
d. Note down the particulars of any impediments and his
findings thereon in the application, but shall
nonetheless issue said license.
EXCEPT when ordered otherwise by a competent
court at his own instance or that of any interest
party.
No filing fee shall be charged for the petition nor a
corresponding bond required for the issuances of
the order.
e. Issue the ML after the completion of the period.

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 canceled at the expiration of the 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.

1.

Validity of the ML
a. 120 days from date of issue
b. Any part of the Philippines

2.

ML deemed canceled at the expiration if unused.

3.

Expiry date stamped in bold characters

Art. 21. When either or both of the contracting parties are citizens
of a foreign country, it shall be necessary for them before a marriage
license can be obtained, to submit a certificate of legal capacity to
contract marriage, issued by their respective diplomatic or consular
officials.
Stateless persons or refugees from other countries shall, in lieu of
the certificate of legal capacity herein required, submit an affidavit stating
the circumstances showing such capacity to contract marriage.

Other requirements for ML

a. If either or both parties are foreigners -

36

PERSONS REVIEWER
Notes, Cases, Annotations
i.
ii.
b.

Submit certificate of legal capacity to contract

marriage
Issued by his/their diplomatic or consular officials
If stateless/refugee submit an affidavit stating the
circumstances showing such capacity to contract
marriage

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 marriage 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 settlement, if any,
attaching a copy thereof.
-

Marriage certificate
a. Neither an essential nor formal requisite for the validity
of a marriage
b. It is, however, the best documentary evidence of such
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 referred to in Article 6 and to send the duplicate and triplicate
copies of the certificate not later than fifteen days after the marriage, to
the local civil registrar of the place where the marriage was solemnized.
Proper receipts shall 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 quadruplicate copy of the
marriage certificate, the copy of the marriage certificate, the original of the
marriage license and, in proper cases, the affidavit of the contracting party
regarding the solemnization of the marriage in place other than those
mentioned in Article 8.
-

Duties of the solemnizing officer

a. Furnish either contracting parties the original copy of
the marriage certificate (15 days from marriage)
b. Send the duplicate and triplicate copies thereof to the
LCR of the place where it was solemnized (15 days
from marriage)
c. Retain:
i.
quadruplicate copy
ii.
copy of the marriage certificate
iii. original of the ML
iv. affidavit of the party/ies regarding solemnization
other than those mentioned in Art. 8

Art. 24. It shall be the duty of the local civil registrar to prepare the
documents required by this Title, and to administer oaths to all interested
parties without any charge in both cases. The documents and affidavits
filed in connection with applications for marriage licenses shall be exempt
from documentary stamp tax.

Art. 25. The local civil registrar concerned shall enter all
applications for marriage licenses filed with him in a registry book strictly
in the order in which the same are received. He shall record in said book
the names of the applicants, the date on which the marriage license was
issued, and such other data as may be necessary.
Art. 26. All marriages solemnized outside the Philippines, in
accordance with the laws in force in the country where they were
solemnized, and valid there as such, shall also be valid in this country,
except those prohibited under Articles 35 (1), (4), (5) and (6), 36, 37 and
38.
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 have capacity to remarry under Philippine law.

1.

General Rule: All marriages solemnized abroad are also

valid here so long as solemnized in accordance with the
laws therein (doctrine of lex loci celebrationis).
Exceptions: Those falling under
a. Art. 35(1)
b. Art. 35(4)
c. Art. 35(5)
d. Art. 35(6)
e. Art. 36-38.

2.

Article 26 applies only if both contracting parties are

Filipinos. Otherwise, apply conflicts of law.

3.

Requirements in proving foreign marriage

a. Existence of the pertinent provision of the foreign law
b. Performance of the marriage in accordance with the
said law

4.

Divorce obtained by a foreign spouse capacitates the

Filipino spouse to marry.

Chapter 2. Marriages Exempted from License Requirement

In articulo mortis
Art. 27. In case either or both of the contracting parties are at the
point of death, the marriage may be solemnized without necessity of a
marriage license and shall remain valid even if the ailing party
subsequently survives.
In a remote place
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
necessity of a marriage license.
Affidavit of solemnizing officer
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 legal impediment to the marriage.

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PERSONS REVIEWER
Notes, Cases, Annotations
b.

Art. 30. The original of the affidavit required in the last preceding
article, together with the legible copy of the marriage contract, shall be
sent by the person solemnizing the marriage to the local civil registrar of
the municipality where it was performed within the period of thirty days
after the performance of the marriage.

5 years

Within zone of military operation

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 operation, whether
members of the armed forces or civilians.

Ratification of marital cohabitation

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 are found no legal impediment to the marriage.

1.

2.

3.

Requisites for pleading exemption under Art. 34

a. Must be living together as husband and wife for at
least 5 years
b. No legal impediments to marry each other at the time
of the marriage
c. Execution of the parties of affidavit stating the abovefacts
d. Execution of the solemnizing officer of an affidavit that
he had ascertained the legal qualifications of the
parties
Using this provision to short-cut the process by stating false
facts in the affidavit shall avoid the marriage and shall give
rise to criminal liability.

How to count the 5-year period:

a. For marriages before the FC Nial vs. Badayog

5 years

Marriage

This period of co-habitation should be

characterized by EXCLUSIVITY and
CONTINUITY. There should be no legal
impediment on either party to marry.

Marriage

The period of co-habitation need not

be marked by EXCLUSIVITY and
CONTINUITY. What is more important is
that at the time of marriage, no
legal impediment exists.

During voyage/flight/stopovers
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.

Ethnic cultural communities

Art. 33. Marriages among Muslims or among members of the
ethnic cultural communities may be performed validly without the
necessity of marriage license, provided they are solemnized in
accordance with their customs, rites or practices.

For marriages under the FC Manzano vs. Sanchez

Chapter 3. Void and Voidable Marriages

Void marriage
Inexistent from
celebration

the

Voidable marriage
As to nature
time of Existent until judicially and finally
annulled

As to susceptibility to validation
Can never be validated
Can be validated by:
cohabitation or prescription
Co-ownership

free

As to effect on property relations

Absolute community of property
exists (unless other property
regime has been agreed upon)

As to effect on the status of children

Illegitimate under Art. 165 (STE)
Legitimate if conceived prior to the
declaration
-

As to how the marriage may be impugned

Collateral attack is allowed.
Collateral attack is not
But for the purpose of reallowed.
Direct action is always
marriage, a direct action is required.
required to annul it.
Nullity may be raised even May no longer be raised
after death of the parties.
after the death of either
party.

PART ONE: VOID MARRIAGES

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;
(2) Those solemnized by any person not legally authorized to
perform marriages unless such marriages were contracted with either or
both parties believing in good faith that the SOLEMNIZING OFFICER7
had the legal authority to do so;
(3) Those solemnized without license, except those covered the
preceding Chapter;
(4) Those bigamous or polygamous marriages not falling under
Article 41;
(5) Those contracted through mistake of one contracting party as
to the identity of the other; and
(6) Those subsequent marriages that are void under Article 53.

1.

The enumeration under this provision is not exclusive.

Belief in good faith as to the authority of the SOLEMNIZING

OFFICER applies only to priests. Otherwise, even if either or
both parties believed in GF that the solemnizing officer has
the requisite authority, but the latter is not a priest, the
marriage is still VOID.

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PERSONS REVIEWER
Notes, Cases, Annotations

2.

Suntay vs. Cojuangco-Suntay

The fundamental distinction between void and voidable
marriages is that void marriage is deemed never to have taken
place at all. The effects of void marriages, with respect to
property relations of the spouses are provided for under Article
144 of the Civil Code. Children born of such marriages who are
called natural children by legal fiction have the same status, rights
and obligations as acknowledged natural children under Article 89
irrespective of whether or not the parties to the void marriage are
in good faith or in bad faith.

b.

On the other hand, a voidable marriage, is considered valid

and produces all its civil effects, until it is set aside by final
judgment of a competent court in an action for annulment.
Juridically, the annulment of a marriage dissolves the special
contract as if it had never been entered into but the law makes
express provisions to prevent the effects of the marriage
from being totally wiped out.

c.

The annulment of the marriage by the court abolishes the

legal character of the society formed by the putative spouses, but
it cannot destroy the juridical consequences which the
marital union produced during its continuance8.
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.

1.

The psychological incapacity of either party to comply with

the essential marital obligations must already be present at
the time of the marriage, although it might have been
manifest only after the marriage.

2.

The psychologically incapacitated person is not

disqualified from marrying again.

3.

Even the psychologically incapacitated party may file the

action.

4.
a.

Cases
Santos vs. Court of Appeals [G.R. No. 112019 January 4,
1995]
Psychological incapacity" should refer to no less than a
mental (not physical) incapacity that causes a party to be truly
incognitive of the basic marital covenants that concomitantly must
be assumed and discharged by the parties to the marriage which,
as so expressed by Article 68 of the Family Code, include their
mutual obligations to live together, observe love, respect and
fidelity and render help and support. There is hardly any doubt
that the intendment of the law has been to confine the meaning of
"psychological incapacity" to the most serious cases of
personality disorders clearly demonstrative of an utter intensitivity
or inability to give meaning and significance to the marriage. This
psychologic condition must exist at the time the marriage is
celebrated. The law does not evidently envision, upon the other
hand, an inability of the spouse to have sexual relations with the
other.

Chi Ming Tsoi vs. Court of Appeals [G.R. No. 119190.

January 16, 1997]
One of the essential marital obligations under the Family
Code is "To procreate children based on the universal principle
that procreation of children through sexual cooperation is the
basic end of marriage." Constant non-fulfillment of this obligation
will finally destroy the integrity or wholeness of the marriage. In
the case at bar, the senseless and protracted refusal of one of
the parties to fulfill the above marital obligation is equivalent
to psychological incapacity.
Republic vs. Molina [G.R. No. 108763. February 13, 1997]
reiterated in Malcampo-Sin vs. Sin [G.R. No. 137590
March 26, 2001]
The guidelines in the interpretation and application of Article
36 of the Family Code are as follows:
(1) The burden of proof to show the nullity of the marriage
belongs to the plaintiff. Any doubt should be resolved in favor of
the existence and continuation of the marriage and against its
dissolution and nullity.
(2) The root cause of the psychological incapacity must be:
a) medically or clinically identified 9, b) alleged in the complaint, c)
sufficiently proven by experts and d) clearly explained in the
decision. Article 36 of the Family Code requires that the
incapacity must be psychological, not physical, although its
manifestations and/or symptoms may be physical.
(3) The incapacity must be proven to be existing at "the
time of the celebration" of the marriage. The evidence must show
that the illness was existing when the parties exchanged their "I
do's."
(4) Such incapacity must also be shown to be medically or
clinically permanent or incurable. Such incurability may be
absolute or even relative only in regard to the other spouse, not
necessarily absolutely against everyone of the same sex.
(5) Such illness must be grave enough to bring about
the disability of the party to assume the essential obligations of
marriage.
(6) The essential marital obligations must be those
embraced by Articles 68 up to 71 of the Family Code as regards
the husband and wife as well as Articles 220, 221 and 225 of the
same Code in regard to parents and their children.
(7) Interpretations given by the National Appellate
Matrimonial Tribunal of the Catholic Church in the Philippines,
while not controlling or decisive, should be given great respect by
our courts.
In short, [t]he evidence [to establish psychological
incapacity] must convince the court that the parties, or one
of them, was mentally or psychically ill to such extent that
the person could not have known the obligations he was
assuming, or knowing them, could not have given valid
assumption thereto.

E.g. children born/conceived during the marriage are still

considered legitimate

See modifications in Marcos vs. Marcos (2000), infra

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PERSONS REVIEWER
Notes, Cases, Annotations

d.

Hernandez vs. Court of Appeals [G.R. No. 126010.

December 8, 1999]
As alleged habitual alcoholism, sexual infidelity or
perversion, and abandonment do not by themselves constitute
grounds for finding that he is suffering from a psychological
incapacity within the contemplation of the Family Code. It must
be shown that these acts are manifestations of a disordered
personality which make A completely unable to discharge the
essential obligations of the marital state, and not merely due to
his youth and self-conscious feeling of being handsome xxx
The root cause of the psychological incapacity must be:
(a) medically or clinically identified,
(b) alleged in the complaint,
(c) sufficiently proven by experts and
(d) clearly explained in the decision.

Although no example of such incapacity need be given here

so as not to limit the application of the provision under the
principle of ejusdem generis, nevertheless, such root cause
MUST be identified as a psychological illness and its
incapacitating nature fully explained. Expert evidence may be
given by qualified psychiatrists and clinical psychologists.
e.

Marcos vs. Marcos [G.R. No. 136490. October 19, 2000]

The personal medical or psychological examination of
respondent is NOT a requirement for a declaration of
psychological incapacity.
The guidelines incorporate the three basic requirements
earlier mandated by the Court in Santos v. Court of Appeals:
"psychological incapacity must be characterized by
(a) gravity
(b) juridical antecedence, and
(c) incurability."
The foregoing guidelines do not require that a
physician examine the person to be declared psychologically
incapacitated. In fact, the root cause may be "medically or
clinically identified." What is important is the presence of
evidence that can adequately establish the party's
psychological condition. For indeed, if the totality of evidence
presented is enough to sustain a finding of psychological
incapacity, then actual medical examination of the person
concerned need not be resorted to.

that the husband is a fugitive from justice was not sufficiently

proven. xxx
Expert testimony should have been presented to establish
the precise cause of As psychological incapacity, if any, in order
to show that it existed at the inception of the marriage.
g. Macias vs. Macias [G.R. No. 149617. September 3, 2003]
Facts: Without allowing the respondent to file her answer to the
petition and knowing there was no joinder of issues as yet, the
trial court hastily authorized petitioner to present his evidence exparte.
Issue: Is this summary procedure allowed? NO.
Pursuant to Section 3 (e), Rule 9 of the 1997 Rules of Civil
Procedure, as amended, where the defending party fails to file
his or her answer to the petition, the trial court should order
the prosecutor to intervene for the State by conducting an
investigation to determine whether or not there was collusion
between the parties. Here, the trial court disregarded such
procedure. Obviously, the summary proceeding is a patent
nullity.
h.

Barcelona vs. Court of Appeals [G.R. No. 130087.

September 24, 2003]
Subsequent to Santos and Molina, the Court adopted the
new Rules on Declaration of Absolute Nullity of Void Marriages
and Annulment of Voidable Marriages (new Rules).
Specifically, Section 2, paragraph (d) of the new Rules
provides:
SEC. 2. Petition for declaration of absolute nullity of void marriages
x x x.
(d) What to allege. A petition under Article 36 of the Family Code
shall specifically allege the complete facts showing that either or both
parties were psychologically incapacitated from complying with the
essential marital obligations of marriage at the time of the celebration of
marriage even if such incapacity becomes manifest only after its
celebration.
The complete facts should allege the physical manifestations,
if any, as are indicative of psychological incapacity at the time of the
celebration of the marriage but expert opinion need not be alleged.
(Emphasis supplied)

Article 36 of the Family Code is not to be confused with a

divorce law that cuts the marital bond at the time the causes
therefor manifest themselves. It refers to a serious
psychological illness afflicting a party even before the
celebration of the marriage. It is a malady so grave and so
permanent as to deprive one of awareness of the duties and
responsibilities of the matrimonial bond one is about to assume.

Procedural rules apply to actions pending and unresolved at

the time of their passage. The obvious effect of the new Rules
providing that expert opinion need not be alleged in the
petition is that there is also no need to allege the root cause
of the psychological incapacity. Only experts in the fields of
neurological and behavioral sciences are competent to determine
the root cause of psychological incapacity. Since the new Rules
do not require the petition to allege expert opinion on the
psychological incapacity, it follows that there is also no need
to allege in the petition the root cause of the psychological
incapacity.

f.

i.

Republic vs. Dagdag [G.R. No. 109975. February 9, 2001]

A failed to comply with guideline No. 2 which requires that
the root cause of psychological incapacity must be medically or
clinically identified and sufficiently proven by experts, since no
psychiatrist or medical doctor testified as to the alleged
psychological incapacity of her husband. Further, the allegation

Antonio vs. Reyes [G.R. No. 155800 March 10, 2006]

Statistics never lie, but lovers often do, quipped a sage. This sad truth
has unsettled many a love transformed into matrimony. Any sort of
deception between spouses, no matter the gravity, is always disquieting.
Deceit to the depth and breadth unveiled in the following pages, dark and
irrational as in the modern noir tale, dims any trace of certitude on the

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PERSONS REVIEWER
Notes, Cases, Annotations
e.

guilty spouses capability to fulfill the marital obligations even more. J.

Tinga

f.
The wife allegedly persistently lied about herself, the
people around her, her occupation, income, educational
attainment and other events or things. Do these constitute
psychological incapacity?
Ruling:
The initial common consensus on psychological incapacity under
Article 36 of the Family Code was that it did not constitute a species of
vice of consent. Justices Sempio-Diy and Caguioa, both members of the
Family Code revision committee that drafted the Code, have opined that
psychological incapacity is not a vice of consent, and conceded that the
spouse may have given free and voluntary consent to a marriage but was
nonetheless incapable of fulfilling such rights and obligations. Dr.
Tolentino likewise stated in the 1990 edition of his commentaries on the
Family Code that this psychological incapacity to comply with the
essential marital obligations does not affect the consent to the marriage.

At the same time, it has been consistently recognized by

this Court that the intent of the Family Code committee was to
design the law as to allow some resiliency in its application, by
avoiding specific examples that would limit the applicability of the
provision under the principle of ejusdem generis. Rather, the
preference of the revision committee was for the judge to
interpret the provision on a case-to-case basis, guided by
experience, in the findings of experts and researchers in
psychological disciplines, and by decisions of church
tribunals which, although not binding on the civil courts, may be
given persuasive effect since the provision was taken from Canon
Law.
Void for being incestuous
Art. 37. Marriages between the following are incestuous and void
from the beginning, whether 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.
Void for being contrary to public policy
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
(9) Between parties where one, with the intention to marry the
other, killed that other person's spouse, or his or her own spouse.

1.

Other relationships not listed about are not impediments to

marriage, to wit
a. Brother and sister-in law
b. Stepbrother and sister
c. Guardian and ward
d. Adopted and illegitimate children of the adopter

2.

Adopted son of a spouse and adopted daughter of the

other spouse
Parties convicted of adultery or concubinage

Art. 38(9) requires a final judgment, which states that the

killing was motivated by ones intention to marry another.

Art. 39. The action or defense for the declaration of absolute nullity
of a marriage shall not prescribe.
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.

1.

For the purpose of re-marriage, it is always required that a

void marriage be judicially declared as such (with finality).
Otherwise, the party contracting a subsequent marriage
exposes himself to prosecution for bigamy and the
subsequent marriage shall also be void.

2.

Art. 40 is applicable regardless of the date of the first

marriage, since it is a rule of procedure and therefore,
retroactive (insofar as it does not prejudice vested rights)
(Atienza vs. Brillantes)

3.

Domingo vs. CA
The word solely (in At. 40) is meant to qualify final
judgment declaring such previous marriage void. Undoubtedly,
one can conceive of other instances where a party might well
invoke the absolute nullity of a previous marriage for purposes
other than remarriage, such as in case of an action for liquidation,
partition, distribution and separation of property between the
erstwhile spouses, as well as an action for the custody and
support of their common children and the delivery of the latters
presumptive legitimes.
In such cases, evidence must be adduced, testimonial or
documentary (which may include the decree of nullity), to prove
the existence of the grounds rendering such a previous marriage
an absolute nullity. Thus, there is no need of prior judicial
declaration in order that the defense of nullity may be invoked as
a defense.10

Where the absolute nullity of a previous marriage is sought

to be invoked for purposes of contracting a second
marriage, the sole basis acceptable in law for said projected
marriage to be free from legal infirmity is a final judgment
declaring the previous marriage void.

The declaration of nullity of marriage carries ipso facto a

judgment for the liquidation of property, custody and support
of children etc as provided in Articles 50, 43 and 44, as the
case may be.

4.

Cario vs. Cario

Since the second marriage was solemnized without first
obtaining a judicial decree declaring the first marriage void, the
second marriage is likewise void ab initio.

10

In short, collateral attack is allowed. :p

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PERSONS REVIEWER
Notes, Cases, Annotations
Art. 41. A marriage contracted by any person during 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 has a well-founded
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.

not he/she is still alive, and the present spouse has a wellfounded belief that the missing spouse is already dead
3.

Except when: There is a judgment annulling the

previous marriage or declaring it void ab initio.
4.

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.
Art. 43. The termination of the subsequent marriage referred to in
the preceding Article shall produce the following effects:
(1) The children of the subsequent marriage conceived prior to its
termination shall be considered legitimate;
(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.

1.

Nature of the second marriage

a. Provisional - it is without prejudice to the effect of
reappearance of the absentee spouse.
b. It is automatically terminated upon the recording of the
affidavit of reappearance of the absent spouse.

5.

Affidavit of reappearance
a. State the fact and circumstances of reappearance
b. Record in the LCR of the residence of the parties to
the subsequent marriage at the instance of any
interested person
c. With notice to the spouses of the subsequent marriage
d. Without prejudice to the fact of reappearance being
judicially determined in case disputed
Effects of termination of second marriage (Art. 43)
Children
ACP/CPG

Donations
Insurance
Succession

If conceived prior to termination, legitimate

- If both parties are in GF, it shall be dissolved and
liquidated
- If either party is in BF, his/her share of the net
profits11 shall be forfeited in this order:

Common children

Children of the guilty spouse (if previously

married)

Innocent spouse
- If in GF, they shall remain valid.
- If in BF, such donations made to said donee are
revoked by operation of law.
The designation of the spouse in BF may be revoked
by the spouse in GF, even if stated as irrevocable.
Spouse in BF disqualified to inherit from the spouse in
GF

General Rule: A marriage contracted by any person during

subsistence of a previous marriage shall be null and void.

Cases
Republic vs. Nolasco
Nolasco failed to conduct search for his missing wife with
such diligence as to give rise to a well-founded belief that she is
dead. xxx Walking into a major city like Liverpool or London with a
simple hope of somehow bumping into one particular person
there cannot be regarded as a reasonably diligent search.

Exception: Marriage after a declaration of presumptive

death of a spouse; requisites.
a. Before the celebration of the subsequent
marriage, the prior spouse had been absent for

b. Armas vs. Calisterio

Facts: Both the first and the second marriages were celebrated
prior to the effectivity of the FC. An intestate proceeding over the
estate of the second husband was initiated in 1992.

4 consecutive years (ordinary absence), or

2 consecutive years (extraordinary absence under Article
391 of the CC);

b.
c.
d.

The spouse present has a well-founded belief

that the absent spouse was already dead;
A summary proceeding for the declaration of
presumptive death of the absentee is filed; and
The spouse present wishes to remarry.

6.
a.

Issue: Was the second marriage where the wife, who had been
previously married, did not seek a judicial declaration of
presumptive death of her first husband?
Ruling: Yes, it was valid. Article 256 of the Family Code itself
limited its retroactive governance only to cases where it thereby
11

2.

Absent the other spouse has been missing for at least 2 or

4 years (as the case may be), it being unknown whether or

Net profits the increase in the MV of the properties from

the celebration of the marriage up to the time of its
dissolution; does not refer to the respective capital
contributed by each spouse, who retains his/her right thereto
regardless of GF/BF.

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PERSONS REVIEWER
Notes, Cases, Annotations
would not prejudice or impair vested or acquired rights in
accordance with the Civil Code or other laws.
Under the old law (CC), a judicial declaration of absence of
the absentee spouse is not necessary as long as the prescribed period of
absence is met, i.e. 7 years. Both marriages, having been celebrated prior
to the FC, the CC should apply.

the validity of the marriage, UNLESS it amounts to

psychological incapacity under Art. 36
c.

Fraud

Non-disclosure of conviction by final judgment of crime

involving moral turpitude

Concealment of pregnancy by another man

Concealment of STD, regardless of nature, existing at

the time of marriage

Concealment of drug addiction, habitual alcoholism,

homosexuality and lesbianism

d.

Force, intimidation or undue influence

e.

Impotency

Contemplates lack of power to copulate and not to

mere sterility. Although impotency carries sterility, a
sterile person may not necessarily be impotent.

Doctrine of triennial cohabitation if the wife still

remains a virgin after living together with the husband
for 3 years, the latter is presumed impotent, and he
has the burden of proving otherwise.

Impotency due to old age is not a ground because one

who marries an old person takes a calculated risk
that he may be impotent.

f.

Affliction of STD found to be serious and which appears to

be incurable

Query: What if only the first marriage was celebrated under the
CC?
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.

1.

This is another instance of void marriage.

2.

The effects of the declaration of nullity under this provision

are the same with the table above (Art. 43).

3.

In addition, donations by reason of marriage and

testamentary dispositions made by one in favor of the other
are revoked by operation of law.
PART TWO: VOIDABLE MARRIAGES

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 eighteen years of age or over but below twenty-one, 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 twenty-one, such party freely cohabited
with the other and both lived together as husband and wife;
(2) That either party was of unsound mind, unless such party after
coming to reason, freely cohabited with the other as husband and wife;
(3) That the consent of either party was obtained by fraud, unless
such party afterwards, with full knowledge of the facts constituting the
fraud, freely cohabited with the other as husband and wife;
(4) That the consent of either party was obtained by force,
intimidation or undue influence, unless the same having disappeared or
ceased, such party thereafter freely cohabited with the other as husband
and wife;
(5) That either party was physically incapable of consummating the
marriage with the other, and such incapacity continues and appears to be
incurable; or
(6) That either party was afflicted with a sexually-transmissible
disease found to be serious and appears to be incurable.

1.
a.

Grounds for annulment:

Lack of parental consent

b.

Insanity of one of the parties

Mere mental weakness does not deprive a party with

the capacity to understand and appreciate the
consequences of the step s/he is taking does not affect

2.
a.
b.

Voidable marriages may be either

Annulled, or
Ratified by free and voluntary cohabitation.
Only the contracting parties can
ratify.

Art. 46. Any of the following circumstances shall constitute fraud

referred to in Number 3 of the preceding Article:
(1) Non-disclosure of a previous conviction by final judgment of the
other party of a crime involving moral turpitude;
(2) Concealment by the wife of the fact that at the time of the
marriage, she was pregnant by a man other than her husband;
(3) Concealment of sexually transmissible disease, regardless of
its nature, existing at the time of the marriage; or
(4) Concealment of drug addiction, habitual alcoholism or
homosexuality or lesbianism existing at the time of the marriage.
No other misrepresentation or deceit as to character, health,
rank, fortune or chastity shall constitute such fraud as will give
grounds for action for the annulment of marriage.

Art. 47. The action for annulment of marriage must be filed by the
following persons and within the periods indicated herein:
(1) For causes mentioned in number 1 of Article 45 by the party
whose parent or guardian did not give his or her consent, within five years
after attaining the age of twenty-one, or by the parent or guardian or
person having legal charge of the minor, at any time before such party has
reached the age of twenty-one;
(2) For causes mentioned in number 2 of Article 45, by the same
spouse, who had no knowledge of the other's insanity; or by any relative
or guardian or person having legal charge of the insane, at any time
before the death of either party, or by the insane spouse during a lucid
interval or after regaining sanity;

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PERSONS REVIEWER
Notes, Cases, Annotations
(3) For causes mentioned in number 3 of Article 45, by the injured
party, within five years after the discovery of the fraud;
(4) For causes mentioned in number 4 of Article 45, by the injured
party, within five years from the time the force, intimidation or undue
influence disappeared or ceased;
(5) For causes mentioned in number 5 and 6 of Article 45, by the
injured party, within five years after the marriage.

1.

Action for annulment; grounds; prescriptive period; who may

file; how ratified.
Who Can File

Prescriptive Period
Ratification
Lack of parental consent
-Within 5 years after
Free cohabitation after
attaining 21
reaching 21
-Before child reaches 21
Insanity of one party

-Party under age

-Non-consenting
parent/ guardian
Sane spouse

2 views:
Sempio-Diy
Before death of other
party
Dean Del Castillo
Within 5 years from the
time the right or action
accrues

Guardian of insane
spouse
Insane spouse

Anytime before the death

of either party
During the lucid interval or
after regaining sanity also
before death of other
party
Fraud
Within 5 years from
discovery of fraud

Injured party

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.

1.

Stipulation of facts and confession of judgment are not

allowed.

2.

Stipulation of facts facts are agreed upon and signed by

both parties

3.

Confession of judgment may either be

a. By warrant of attorney authority given by defendant
to the plaintiffs attorney allowing the latter to tell the
court that the defendant admits the plaintiffs claim to
be true and just

Free cohabitation after

insane regains sanity

b.

4.

Free cohabitation after

knowledge of fraud

Force, intimidation or undue influence

Within 5 years from the
Free cohabitation after
cessation of cause
cause has disappeared
Impotence of one party
Within 5 years after
marriage
Serious STD
Within 5 years after
marriage

Potent party

Healthy party

2.

2.
Cannot be ratified but
action prescribes
Cannot be ratified but
action prescribes

Distinctions between STD as ground for annulment and STD

as a species of fraud (which is also a ground for annulment)
Article 45

Article 46

STD is a ground for annulment

STD is a type of fraud which in turn is

a ground for annulment

STD does not have to be concealed

by a party

STD must have been concealed by a

party

STD must be serious and incurable

STD does not have to be serious and

incurable

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

See Ancheta case (424 SCRA 725) the rule on default

does not apply in actions for annulment

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 the custody and
support of their common children. The Court shall give paramount
consideration to the moral and material welfare of said children and their
choice of the parent with whom they wish to remain as provided to in Title
IX. It shall also provide for appropriate visitation rights of the other parent.

1.
Injured party

By confession cognovit actionem instead of

defending himself, the defendant chooses to
acknowledge the rightfulness of the plaintiffs action

In the absence of written agreement, the court shall arrange

and order the following
a. Support pendente lite (spouses and children)
b. Custody and support of the common children.
No child below 7 years old shall be separated from the
mother, UNLESS the court finds compelling reasons to order
otherwise. (Art. 213 [2])

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 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 children, and the delivery of third presumptive
legitimes, unless such matters had been adjudicated in previous judicial
proceedings.
All creditors of the spouses as well as of the absolute community
or the conjugal partnership shall be notified of the proceedings for
liquidation.
In the partition, the conjugal dwelling and the lot on which it is
situated, shall be adjudicated in accordance with the provisions of Articles
102 and 129.

1.

For marriages which are declared ab initio or annulled under

Articles 40 and 45, the effects are as follows:

Children

VOIDABLE Legitimate if conceived prior to finality of

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PERSONS REVIEWER
Notes, Cases, Annotations
-

decree of annulment

ACP/CPG

Donations
Insurance
Succession

2.

VOID
General Rule: Children of marriages that are judicially
declared void are ILLEGITIMATE.
Exceptions:
Art. 36 on psychological incapacity
Art. 53 on failure to comply with Art. 52
(re: presumptive legitimes)
- If both parties are in GF, it shall be dissolved and
liquidated
- If either party is in BF, his/her share of the net
profits12 shall be forfeited in this order:

Common children

Children of the guilty spouse (if previously

married)

Innocent spouse
- If in GF, they shall remain valid.
- If in BF, such donations made to said donee are
revoked by operation of law.
The designation of the spouse in BF may be revoked
by the spouse in GF, even if stated as irrevocable.
Spouse in BF disqualified to inherit from the spouse in
GF

Requirements under Art. 50:

a. Unless previously decided in another proceeding, the
decree of nullity or annulment should provide for the
following (LCD)
i. Liquidation, partition and distribution of the
properties;
ii. Custody and support of the children;
iii. Delivery of the presumptive legitimes.
b. The creditors of the spouses and of the AC/CP should
be notified of the liquidation.
c. The conjugal dwelling and the lot in which it is situated
shall go to the spouse with whom the majority of the
common children choose to reside.

Computed as of the date of the final judgment

Delivered in: cash, property, or sound securities

2.

Who can ask for enforcement of the above rights

a. Children themselves
b. Guardian/trustee

3.

Compromise agreements are allowed provided approved by

the court.

Art. 52. The judgment of annulment or of absolute nullity of the

marriage, the partition and 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 property; otherwise, the
same shall not affect third persons.
Art. 53. Either of the former spouses may marry again after
compliance with the requirements of the immediately preceding Article;
otherwise, the subsequent marriage shall be null and void.
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 considered legitimate. Children conceived or
born of the subsequent marriage under Article 53 shall likewise be
legitimate.

1.

The following should be registered in the proper civil and

property registries, as the case may be
a. Decree of annulment or absolute nullity of marriage;
b. Partition and distribution of the properties; and
c. Delivery of the presumptive legitimes.

2.

Effects of non-compliance with the above requirements:

a. Third persons shall not be bound unless the
recording is had.
b. Any subsequent marriage shall be null and void,13 but
children conceived or born are still legitimate.

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.

TITLE II
LEGAL SEPARATION

The children or their guardian or the trustee of their property may

ask for the enforcement of the judgment.

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;

The delivery of the presumptive legitimes herein prescribed shall in

no way prejudice the ultimate successional rights of the children accruing
upon the death of either of both of the parents; but the value of the
properties already received under the decree of annulment or absolute
nullity shall be considered as advances on their legitime.

1.

PRESUMPTIVE LEGITIMES
Shares of the common children in the partition of the
net profits of the AC/CP of their parents
Considered as advances on their legitimes, BUT these
shall not prejudice their ultimate successional rights
accruing them upon the death of either parent

(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;

12

Net profits the increase in the MV of the properties from

the celebration of the marriage up to the time of its
dissolution; does not refer to the respective capital
contributed by each spouse, who retains his/her right thereto
regardless of GF/BF.

13

According to my notes, the legal effects flowing from the

second marriage are valid.

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PERSONS REVIEWER
Notes, Cases, Annotations
(7) Contracting by the respondent of a subsequent bigamous
marriage, whether in the Philippines or abroad;
(8) Sexual infidelity or perversion;

(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;

(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.

(3) Where there is connivance between the parties in the

commission of the offense or act constituting the ground for legal
separation;

For purposes of this Article, the term "child" shall include a child by
nature or by adoption.

1.

2.

Legal separation; other names; concept.

Divorce a mensa et thoro Latin for divorce from

bed and board

Relative divorce (a vinculo matrimonii)

Concept: As opposed to absolute divorce, this

type is only a separation from bed and board, where the
parties still remain married.
Distinctions
Separation of Property

Legal Separation
The common life of the spouses is
suspended, both as to person and
properties.
Cannot be granted on mere
agreement of the parties
Involves separation of property

Only the property relations are

suspended. They may still be
living together.
Can be effected by mere
agreement, subject to court
approval
May not involve legal separation

Legal Separation
Can only be effected by decree of
court
Necessarily results in dissolution of
the ACP/CPG

Separation de facto
May be done by the parties
anytime
The property relations still remain.

The guilty party can no longer

inherit from the innocent party.

They are still heirs of each other,

no matter how guilty the other
spouse is, UNLESS disinherited in
a will.
No forfeiture

The guilty partys share in the net

profits is forfeited

3.

4.

Only preponderance of evidence is required. EXCEPT Art.

55 (4) on Final judgment sentencing respondent to
imprisonment of more than 6 years, even if pardoned, where
proof of guilt beyond reasonable doubt is required.
Grounds of drug addiction or habitual alcoholism, and
lesbianism or homosexuality. Distinctions.

Art. 46 (4)
Art. 55 (5) and (6)
For annulment
For legal separation
A species of marital fraud, which
No fraud involved
vitiates consent (an essential
element of marriage)
Must be proved to exist at the time
May exist only after the celebration
of the celebration of marriage
of marriage
Grounds for denial
Art. 56. The petition for legal separation shall be denied on any of
the following grounds:

(4) Where both parties have given ground for legal separation;
(5) Where there is collusion between the parties to obtain decree
of legal separation; or
(6) Where the action is barred by prescription.

Procedural Requirements
Art. 57. An action for legal separation shall be filed within five
years from the time of the occurrence of the cause.
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.
Art. 59. No legal separation may be decreed unless the Court has
taken steps toward the reconciliation of the spouses and is fully satisfied,
despite such efforts, that reconciliation is highly improbable.
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.
a.

Some rules
Prescription 5 years from the time of the occurrence
of the cause or ground

b.

The six-month cooling-off period below shall not

apply if any of the following grounds under RA 9262
(VAWC) is alleged: (PEPS)
i.
Physical violence
ii.
Economic abuse
iii.
Psychological violence
iv.
Sexual violence

c.

Process; the Court shall

i.
Set the date for hearing, which shall not be
within 6 months (cooling-off period) from the filing
thereof.
ii.
Within the 6-month period, the court must
also provide for the support of the spouses and the
children as well as custody of the latter.
iii.
Order the fiscal to take steps to prevent
collusion between the parties and to take care that
the evidence is not fabricated or suppressed.
iv.
Take steps toward the reconciliation of the
spouses.
v.
Proceed with the hearing and decide, if it is
fully satisfied that reconciliation is highly
improbable.

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PERSONS REVIEWER
Notes, Cases, Annotations
d.

No decree of legal separation shall be based upon a

stipulation of facts or a confession of judgment.

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 agreement 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.
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.

a.
b.
c.
d.

Effects of FILING of the petition:

The spouses are entitled to live separately from each
other.
The law on rape already applies.
In the absence of agreement, the court shall appoint
an administrator of the propertieswho may be either
of the spouse or a third person.
In all cases, the administrator shall be governed by the
rules of guardianship.

be forfeited in this order:

Common children

Children of the guilty spouse (if previously

married)

Innocent spouse
Custody of
Awarded to the innocent spouse, subject to Art. 213 of
minor children
the FC
Succession
Offending spouse in BF disqualified to inherit from the
spouse in GF
Optional on the part of the innocent spouse
Donations
The innocent spouse may revoke donations in favor of
the guilty spouse.
Insurance
The innocent spouse may revoke the designation of
the offending spouse even if stated as irrevocable.

1.

Revocation of donation

Should be recorded in the proper registry of

property

Alienations, liens and encumbrances registered

in GF before the recording of the complaint for
revocation shall be respected.

Action to revoke must be made within 5 years

from the finality of the decree.

2.

Revocation of designation as beneficiary in insurance

Effective upon written notification to the insured

Art. 63. The decree of legal separation shall have the following
effects:
(1) The spouses shall be entitled to live separately from each
other, but the marriage bonds shall not be severed;

Art. 65. If the spouses should reconcile, a corresponding joint

manifestation under oath duly signed by them shall be filed with the court
in the same proceeding for legal separation.

(2) The absolute community or the conjugal partnership shall be

dissolved and liquidated but the offending spouse shall have no right to
any share of the net profits earned by the absolute community or the
conjugal partnership, which shall be forfeited in accordance with the
provisions of Article 43(2);

Art. 66. The reconciliation referred to in the preceding Articles shall

have the following consequences:

(3) The custody of the minor children shall be awarded to the

innocent spouse, subject to the provisions of Article 213 of this Code; 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.

(4) The offending spouse shall be disqualified from inheriting from

the innocent spouse by intestate succession. Moreover, provisions in
favor of the offending spouse made in the will of the innocent spouse shall
be revoked by operation of law.
Art. 64. After the finality of the decree of legal separation, the
innocent spouse may revoke the donations made by him or by her in favor
of the offending spouse, as well as the designation of the latter as
beneficiary in any insurance policy, even if such designation be stipulated
as irrevocable. The revocation of the donations shall be recorded in the
registries of property in the places where the properties are located.
Alienations, liens and encumbrances registered in good faith before the
recording of the complaint for revocation in the registries of property shall
be respected. The revocation of or change in the designation of the
insurance beneficiary shall take effect upon written notification thereof to
the insured.
The action to revoke the donation under this Article must be
brought within five years from the time the decree of legal separation
become final.

1. Effects of the DECREE of legal separation

Marriage bond
ACP/CPG

It is not severed.
- It shall be dissolved and liquidated automatically.
- The guilty spouses share of the net profits14 shall

(1) The legal separation proceedings, if still pending, shall thereby

be terminated at whatever stage; and

The court's 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,

14

Net profits the increase in the MV of the properties from

the celebration of the marriage up to the time of its
dissolution; does not refer to the respective capital
contributed by each spouse, who retains his/her right thereto
regardless of GF/BF.

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PERSONS REVIEWER
Notes, Cases, Annotations
the court shall, in its order, take measure to protect the interest of creditors
and such order shall be recorded in the proper registries of properties.

injury to the other or to the family, the aggrieved party may apply to the
court for relief.

The recording of the ordering 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. 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.

1.

2.

3.

What to do in case of reconciliation of the spouses (pending

litigation or after the finality of the decree):

File a joint manifestation under oath in the same

proceeding for legal separation

If they agree to revive the former property

regime, follow the requirements under Art. 67.

File motion for approval.

Furnish creditors with copies of such motion.

Hearing and the court should take measures to

protect the creditors interests.

Record the order in the property registry.

The recording of the order shall not prejudice creditors, who
were not notified nor listed in the order of revival of the
property regime.

However, if the debtor-spouse has sufficient

separate properties to pay off the debt, the creditors
cause of action shall be with such spouse alone.

In case of disagreement, the court shall decide whether or not:

(1) The objection is proper; and
(2) Benefit has occurred 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.

1.

2. Either spouse may exercise any legitimate profession or

business without the consent of the other.

The other spouse may object on valid, serious and

moral grounds.

Effects of reconciliation

If the action is still pending, it shall be terminated

at whatever stage.

The final decree of legal separation shall be set

aside.

The separation of property and forfeiture of share

shall subsist. EXCEPT: When both spouses agree to
revive the property regime.

TITLE III: RIGHTS AND OBLIGATIONS BETWEEN HUSBAND

AND WIFE
Art. 68. The husband and wife are obliged to live together, observe
mutual love, respect and fidelity, and render mutual help and support.
Art. 69. The husband and wife shall fix the family domicile. In case
of disagreement, the court shall decide.
The court may exempt one spouse from living with the other if the
latter should live abroad or there are other valid and compelling reasons
for the exemption. However, such exemption shall not apply if the same is
not compatible with the solidarity of the family.
Art. 70. The spouses are jointly responsible for 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
income or fruits of their separate properties. In case of insufficiency or
absence of said income or fruits, such obligations shall be satisfied from
the separate properties.
Art. 71. The management of the household shall be the right and
the duty of both spouses. The expenses for such management shall be
paid in accordance with the provisions of Article 70.
Art. 72. When one of the spouses neglects his or her duties to the
conjugal union or commits acts which tend to bring danger, dishonor or

Obligations of husband and wife

Live together
Observe mutual love, respect and fidelity
Render mutual help and support

In case of disagreement, the court shall decide whether

The objection is proper; and

Benefit has accrued to the family before and

after the objection.

If benefit accrued to the family before the objection,

the resulting obligation shall be enforced against the
ACP.

If benefit accrued to the family after the objection has

been made, the resulting obligation shall be enforced
against the separate property of the spouse who has
not obtained consent.

2.

Ilusorio vs. Bildner [G.R. No. 139789.

May 12, 2000]
Issue: May a wife secure a writ of habeas corpus to compel her
husband to live with her in conjugal bliss?
Ruling: No. Marital rights including coverture and living in conjugal
dwelling may not be enforced by the extra-ordinary writ of habeas
corpus.
In case the husband refuses to see his wife for private
reasons, he is at liberty to do so without threat of any penalty
attached to the exercise of his right. No court is empowered as a
judicial authority to compel a husband to live with his wife.

TITLE IV: PROPERTY RELATIONS BETWEEN HUSBAND AND

WIFE
Chapter 1. General Provisions

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PERSONS REVIEWER
Notes, Cases, Annotations
o
o
o

Art. 74. The property relationship 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 custom.

1.

2.
a.
b.
c.
d.
e.

f.

Requisites:
Executed before the celebration of the
marriage
Not contrary to law, good morals, customs,
public order and policy
Generally confined to property relations
Written and signed by the parties
If the party executing the settlement is
under civil interdiction or any other disability, the
guardian appointed by the court must be made a party
to the settlement
Registered (to bind third persons)

Art. 75. The future spouses may, in the marriage settlements,

agree upon the regime of absolute community, conjugal partnership of
gains, complete separation of property, or any other regime. In the
absence of a marriage settlement, or when the regime agreed upon is
void, the system of absolute community of property as established in this
Code shall govern.

1.

Marriage settlement (ante-nuptial agreement) a

contract entered into prior to a marriage by a man and a
woman, who intend to fix the property regime that will govern
their present and future properties.

Options of the future spouses

a. ACP (default regime, if the regime chosen is VOID)
b. CPG
c. Complete separation of property
d. Other regime

2.

Once a regime is chose, all properties are governed by that

regime. The parties cannot exclude specific properties from
the regime.

3.

Should there be void provisions in the settlement, these

shall not nullify the other valid ones, unless the latter cannot
stand by themselves.

b.

Art. 79. For the validity of any marriage settlement 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.

Additional requirement for validity of marriage settlement

executed by a person under civil interdiction The
contracting party should be assisted by a judicially
appointed guardian.

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:
(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
(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 its extrinsic validity.

General Rule: 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.
Exceptions:
a. When otherwise stipulated by the parties
b. Both aliens national law
c. Property abroad (executed also abroad) extrinsic
validity governed by the lex situs rule
d. Property abroad (executed in the Philippines)
extrinsic validity governed by lex situs rule15

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 properties.

How a marriage settlement is modified

a. It should be in writing, signed and executed PRIOR to
the marriage.
In the following cases, it can be modified even
AFTER the marriage:

In order to bind third parties, the same should be

recorded in the proper registries.

[Art. 78. A minor who according to law may contract marriage may
also execute his or her 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. 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. 66-67 - reconciliation

Art. 128 - abandonment
Art. 135 judicial declaration
of separation of property
Art 136 voluntary dissolution
of CPG/ACP

Art. 81. Everything stipulated in the settlements or contracts

referred to in the preceding articles in consideration of a future marriage,
including donations between the prospective spouses made therein, shall
be rendered void if the marriage does not take place. However,
15

Applies only when such foreign country requires different

formalities.

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PERSONS REVIEWER
Notes, Cases, Annotations
stipulations that do not depend upon the celebration of the marriages shall
be valid.

Rules if the donated property is encumbered

a.
Donation is still valid.
b.
If encumbrance is foreclosed and sold
i.
Donee is not liable for any
deficiency,
ii.
But he is entitled to the excess
of the proceeds, if any.

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.

General Rule: Marriage settlements and donations propter

nuptias are rendered void if the marriage does not take place.
Exception: Stipulations that do not depend upon the marriage
shall remain valid.
Chapter 2. Donations by Reason of Marriage
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.

1.

Donations

propter

Art. 86. A donation by reason of marriage may be revoked by the

donor in the following cases:
(1) If the marriage is not celebrated or judicially declared void ab
initio except donations made in the marriage settlements 16, which shall
be governed by Article 81;
(2) When the marriage takes place without the consent of the
parents or guardian, as required by law;
(3) When the marriage is annulled, and the donee acted in bad
faith;

nuptias propter means before

2.
a.
b.
c.
d.

(4) Upon legal separation, the donee being the guilty spouse;

Requisites:
Made before the celebration of marriage
Made in consideration of the same
Made in favor of one or both of the future spouses
Complies with the formalities of ordinary donations (e.g.
if involving realty, it must be in a public document and
must be accepted)

3.

Distinctions
Ordinary Donations

Donations Propter
Nuptias
Implied acceptance allowed
May be made by minors
May include future property
If present property is donated and
the property regime is not ACP,
limited to only 1/5 of the present
property of the donor-spouse.
Grounds for revocation are found in
Art. 86.

Express acceptance is necessary

Cannot be made by minors
Cannot include future property
No limit on amount of donation.

(5) If it is with a resolutory condition and the condition is complied

with;
(6) When the donee has committed an act of ingratitude as
specified by the provisions of the Civil Code on donations in general.

1.

Art. 86 - Non-celebration of the

reason of re-appearance of absentee

spouse

marriage

While donations generally remain

valid, the revocation of donation in
favor of the spouse in BF happens
as a matter of law.

The prerogative to revoke remains

with the donor since the law uses
the word may.

2.

Grounds for revocation are found

in the law on donations.

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.
Donations of future property shall be governed by the provisions
on testamentary succession and the formalities of wills.

- Donations of future property law on testamentary succession

is followed
Art. 85. Donations by reason of marriage of property subject to
encumbrances shall be valid. In case of foreclosure of the encumbrance
and the property is sold for less than the total amount of the obligation
secured, the donee shall not be liable for the deficiency. If the property is
sold for more than the total amount of said obligation, the donee shall be
entitled to the excess.

Distinctions

Art. 43 - Termination of marriage by

Under Art. 765 of the

CC, the acts of ingratitude are as follows
The donee (ICU)
a. Imputes to the donor any criminal offense involving
moral turpitude, even if found to be true
o EXCEPT: when the said offense is committed
against the donee himself, his wife, or children
under parental authority
b. Commits an offense against the (PHP) person, honor or
property of the donor, his wife, or children under
parental authority.
c. Unduly refuses to support the donor despite legal or
moral obligation

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 shall also apply to
persons living together as husband and wife without a valid marriage.

1.
a.

Reasons for the prohibition:

To prevent an indirect violation of the rule
prohibiting modifications on the marriage settlement

16

Donations that do not depend on the celebration of

marriage

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PERSONS REVIEWER
Notes, Cases, Annotations
b.
c.
2.

To protect creditors
To prevent the weaker spouse from being
influenced by the stronger spouse

Although a donation which contravenes the above

provision is VOID, only those prejudiced by such transfer
may assail its validity.

3.

Valencia vs. Locquiao [G.R. No. 122134. October 3,

2003]
Facts: It was argued that the donation propter nuptias (made in a
public instrument) was VOID because of a CC provision, which
requires that the acceptance by the donee- spouses should be
made also in a public instrument.

Art. 89. No waiver of rights, 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. The creditors of the spouse who made such waiver may
petition the court to rescind the waiver to the extent of the amount
sufficient to cover the amount of their credits.

1.

Exception: Judicial separation of property; requirements.

Public instrument
Recorded in the civil registry (where the marriage
contract is registered) and in the property registry
(where the property is located)

Ruling: The donation was valid. It is the Old CC, which applies in
this case since the donation propter nuptias, was executed in
1944 and the New CC took effect only on August 30, 1950.
New Civil Code

Old Civil Code

Donations propter nuptias must be:
1. In a public instrument
2. The property donated must be
specifically described.

The form is only needs to be in

writing (Art. 1403 (2)).

General Rule: Waiver of rights, effects and shares in the

ACP cannot be made during the marriage.

2.

Waiver after dissolution of marriage

a. Death of either spouse
b. Annulment or declaration of nullity
-In these cases, the requirements are still the same as those
enumerated above.

Under Art. 1330, acceptance is

not necessary to the validity of
such gifts.

Express acceptance is not

necessary for the validity of these
donations (Art. 129). Thus, implied
acceptance is sufficient.

The celebration of the marriage

and compliance with the
prescribed form were enough to
effectuate the donation.

Hence, applying Article 1330 of the Old CC in the

determination of the validity of the questioned donation, it does
not matter whether or not the donees had accepted the donation.
The validity of the donation is unaffected in either case.
Even if the provisions of the New Civil Code were to be
applied, the case of the petitioners would collapse just the same.
As earlier shown, even implied acceptance of a donation propter
nuptias suffices under the New Civil Code.

3.

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.

Section 2. 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.

1.

Property Regimes

All
properties
belonging to the spouses before the marriage are
automatically converted into ACP upon the celebration of
marriage, without need of any other act.
Exception: Those properties excluded under Art. 92.

2.

System of Absolute Community

Rescission available to prejudiced creditors, but only up to

the extent of their credits

The spouses have no

option to exclude specific properties from the ACP.

Chapter 3.
Section 1. General Provisions
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. 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;

Under the FC, this is the default regime.

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PERSONS REVIEWER
Notes, Cases, Annotations
(2) Property for personal and exclusive use of either spouse.
However, jewelry shall form part of the community property;

as advances to be deducted from the share of the debtor-spouse upon

liquidation of the community; and

(3) Property acquired before the marriage by either spouse who

has legitimate descendants by a former marriage, and the fruits as well as
the income, if any, of such property.

(10) Expenses of litigation between the spouses unless the suit is

found to be groundless.

Excluded from the ACP are as follows

1.
Property acquired by donation, and
the fruits and income thereof
Exception: When the donor states that it should form
part of the ACP
2.
Personal property for exclusive use of
each spouse
Exception: Jewelry - ACP
3.
Property acquired before marriage by
a spouse who has legitimate descendants in the
former marriage (including its fruits and income)

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.

1.

Presumption: A property acquired during marriage belongs

to the ACP.

2.

Rebutted by proof that it is among those excluded by law.

Section 3. Charges 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;

If the community property is insufficient to cover the foregoing

liabilities, except those falling under paragraph (9), the spouses shall be
solidarily liable for the unpaid balance with their separate properties.

1.

ACP liabilities
Support (family,
legitimate children of either spouse)
2.
Debts
and
obligations during the marriage by administratorspouse, or both, or by one with marital consent
3.
Debts and
obligations without marital consent, to the extent that the
family has been benefited
4.
Taxes,
liens,
charges and expenses on ACP
5.
Taxes
and
expenses for preservation of separate properties used by
the family during the marriage
6.
Expenses for
professional/vocational course of either spouse
7.
Ante-nuptial
debts insofar as they redounded to the benefit of the
family
8.
Donation/promi
se to donate to common legitimate children for schooling
9.
Expenses
of
suit between spouses (except when groundless)
10.
In case of
insufficiency of exclusive property of either spouse:
1.
Antenuptial debts of either spouses other than those
under (g)
2.
Supp
ort of illegitimate children of either spouse
3.
Liabil
ities of either spouse in a quasi-/delict
**In these 3 instances, the payments shall be
considered as advances to the share of the debtorspouse upon liquidation.
1.

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 but any winnings therefrom shall form part of
the community property.

(7) Ante-nuptial debts of either spouse insofar as they have

redounded to the benefit of the family;
(8) The value of what is donated or promised by both spouses in
favor of their common legitimate children for the exclusive purpose of
commencing or completing a professional or vocational course or other
activity for self-improvement;
(9) Ante-nuptial 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

Section 4. Ownership, Administrative,

Enjoyment and Disposition of the Community Property
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.

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PERSONS REVIEWER
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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 disposition or encumbrance without 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.

1.

General Rule: Joint powers of administration and enjoyment

of ACP
Exception: Husband in case of disagreement (subject to
judicial relief by the wife within 5 years from the date of the
contract implementing the husbands decision)

2.

3.

Third person dealing with a husband without the wifes

consent cannot later on complain that he is a purchaser in
GF and for value, if later on the contract is rescinded by the
court. The wife is given the right to question the transaction
in court.
RULES IF ONE IS INCAPACITATED OR OTHERWISE
UNABLE TO PARTICIPATE
a. The other may assume sole powers of administration.
b. Disposition or encumbrance requires authority of court
or written consent of the other spouse.
c. If (b) is violated, the contract is VOID, and the right to
question the contract is imprescriptible.
d. BUT, the contract shall be considered as a continuing
offer to the non-consenting spouse
e. The said offer can only be perfected upon
i. Authority of court, or
ii. Acceptance by the non-consenting spouse, which
must be made prior to the withdrawal of either the
third person or the other spouse.

Art. 97. Either spouse may dispose by will of his or her interest in
the community property.

1.

A spouse cannot alienate his rights, effects and shares

(RES) in the ACP during the marriage.
Reason: His rights are merely inchoate.

2.

He may only alienate them mortis causa observing the

formalities of a will, and the law on legitimes.

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.

Section 5. Dissolution of Absolute Community Regime

Art. 99. The absolute community terminates:
(1) Upon the death of either spouse;

(2) When there is a decree of legal separation;

(3) When the marriage is annulled or declared void; or
(4) In case of judicial separation of property during the marriage
under Articles 134 to 138.
Art. 100. The separation in fact between husband and wife shall
not affect the regime of absolute community 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 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.

2.

Effects of separation de
facto
1. It shall not affect the property regime.
2. Spouse who leaves the conjugal dwelling without just
cause has no right to support
3. In cases where marital consent is required and the
other spouse refuses to give the same, judicial
authority may be had in a summary proceeding.
4. If ACP is insufficient to support the family, the separate
properties of both spouses shall be solidarily liable.
The spouse present may seek judicial authority
(following number 3) to satisfy the liability of the
absentee-spouse.

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 her 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.

1.

Obligations under this provision (Pro-Ma-Pa): Property,

Marital and Parental

2.

Abandonment is not mere separation de facto, but implies

an intention not to return to the conjugal home and without
providing for the needs and maintenance of the family

3.

Presumption of abandonment:
a. Left the conjugal home for a period of 3 months, or
b. Failed within 3 months to give any information as to
whereabouts.

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PERSONS REVIEWER
Notes, Cases, Annotations
4.

Remedies in case the above-obligations are not met;

petition.
a. Receivership
b. Judicial separation of property
c. Authority to be the sole administrator of the ACP

i.

f.
g.

Section 6. Liquidation of the Absolute Community

Assets and Liabilities
Art. 102. Upon dissolution of the absolute community regime, the
following procedure shall apply:
(1) An inventory shall be prepared, listing separately all the
properties of the absolute community and the exclusive properties of each
spouse.
(2) The debts and obligations of the absolute community shall be
paid out of its assets. In case of insufficiency of said assets, the spouses
shall be solidarily liable for the unpaid balance with their separate
properties in accordance with the provisions of the second paragraph of
Article 94.
(3) Whatever remains of the exclusive properties of the spouses
shall thereafter be delivered to each of them.
(4) The net remainder of the properties of the absolute community
shall constitute its net assets, which shall be divided equally between
husband and wife, unless a different proportion or division was agreed
upon in the marriage settlements, or unless there has been a voluntary
waiver of such share provided in this Code. For purpose of computing the
net profits subject to forfeiture in accordance with Articles 43, No. (2) and
63, No. (2), the said profits shall be the increase in value between the
market value of the community property at the time of the celebration of
the marriage and the market value at the time of its dissolution.
(5) The presumptive legitimes of the common children shall be
delivered upon partition, in accordance with Article 51.

2.
a.
b.

b.
c.

Procedure; outline.
Inventory of all properties listing
properties of the ACP and of the spouses exclusively
Payment of all the debts and obligations of
the ACP
If insufficient, the spouses shall be solidarily
liable with their separate properties following Art. 94 (2).

Rules on forfeiture (supra):

The offending spouse shall have no right to any share in the
net profits earned by the ACP.
If either party contracted the marriage in BF, his/her share in
the net profits18 shall be forfeited in this order:

Common children

Children of the guilty spouse (if previously married)

Innocent spouse

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 six months from the death of the deceased spouse. If
upon the lapse of the six months 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.

1.
a.

(6) Unless otherwise agreed upon by the parties, in the partition of

the properties, the conjugal dwelling and the lot on which it is situated
shall be adjudicated to the spouse with whom the majority of the common
children choose to remain. Children below the age of seven years are
deemed to have chosen the mother, unless the court has decided
otherwise. In case there in no such majority, the court shall decide, taking
into consideration the best interests of said children.

1.
a.

A different proportion has been

agreed upon in the marriage settlement, or
ii.
A voluntary waiver of such share
has been made by a spouse.
The presumptive legitimes of the children
shall be delivered.
The conjugal dwelling shall be adjudicated
to the spouse with whom the majority of the children choose
to remain.17 (Except: When the spouses have agreed
otherwise)

b.

2.
a.
b.

xxx(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; xxx

Procedure of liquidation; death of a spouse.

If there are debts to be paid, a judicial
action for the settlement of the estate of the deceased
must be instituted and liquidation shall be made in the
same proceeding.
If (a) is not instituted and there are no debts
to be paid, the spouse (within 1 year from the death)
may either:
i.
Extra-judicially settle the estate,
or
ii.
Initiate an ordinary action for
partition.
Effects of non-liquidation:
Any disposition or encumbrance shall be
void.
Should the spouse contract another
marriage, a mandatory regime of complete separation
of property shall govern the subsequent marriage.

17

d.
e.

Remaining exclusive properties shall be

delivered to owner-spouse.
Net remainder of the ACP shall be the net
assets, which shall be divided equally between the spouses.
Except in the following cases:

In custody of children, always remember Art. 213 of the FC

(7-year old rule).
18

Net profits the increase in the MV of the properties from

the celebration of the marriage up to the time of its
dissolution; does not refer to the respective capital
contributed by each spouse, who retains his/her right thereto
regardless of GF/BF.

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PERSONS REVIEWER
Notes, Cases, Annotations
and agree in a marriage settlement that the same be divided
between them equally upon the dissolution of the marriage.
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.

1.
a.
b.
2.

This applies when

Two or more marriages contracted by one
person before the effectivity of the FC, and
The liquidation thereof is done
simultaneously.

Share (in the capital, fruits and income) is determined

upon such proof as may be considered according to the
rules of evidence.

3.

2.
3.

Distinction

Conjugal Partnership
Has no juridical personality
Generally, regulated by law
Generally, managed by the
husband
Not for profit

Rules

ACP:
a.
b.

Ordinary Partnership
Has juridical personality
Generally, regulated by agreement;
the law is only subsidiary thereto
Depends on the stipulation of the
parties
For profit

Art. 107. The rules provided in Articles 88 and 89 shall also apply
to conjugal partnership of gains.

In case of doubt, apply this

Number of years
in one marriage
Total number of
years married

Under the FC, CPG exists only when agreed upon by

the parties, since ACP is the default property regime.

Total value of
property

similar

with

Commencement precise moment that the

marriage is celebrated
Waiver of RES (rights, effects and shares in
the CPG) as a rule, it cannot be made during the
marriage

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.

Conjugal Partnership of Gains

a.

Chapter 4.

settlement

Section 1. General Provisions

b.

Art. 106. Under the regime of conjugal partnership of gains, the

husband and wife place in a common fund the proceeds, products, fruits
and income from their separate properties and those acquired by either or
both spouses through their efforts or by chance, and, upon dissolution of
the marriage or of the 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.

1.

Conjugal partnership of gains formed when a

married couple place in a common fund:
a.
b.

The proceeds, products, fruits and income

from their separate properties, and
Those acquired by either or both spouses
through their efforts or by chance

This
Chapter

Art. 105. In case the future spouses agree in the marriage

settlements that the regime of conjugal partnership gains shall govern
their property relations during marriage, the provisions in this Chapter
shall be of supplementary application.
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.

Governing rules:
Marriage

c.

Law

on

partnership
Section 2. Exclusive Property of Each Spouse
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; and
(4) That which is purchased with exclusive money of the wife or of
the husband.
Art. 110. The spouses retain the 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
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

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PERSONS REVIEWER
Notes, Cases, Annotations
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.

1.
a.
b.
c.
d.
2.

The exclusive properties under the CPG are

Paraphernal or capital property that which
is brought as his/her own
Donations and inheritance
Those acquired thru redemption, barter or
exchange with property belonging to only one of the
spouses
Those acquired using exclusive money of a
spouse
Rights of owner-spouse (PMA)
Possession,
ownership,
administration (POEA)

Art. 115. Retirement benefits, 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.

Section 3. 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.

1.

Presumption: It is conjugal property if it is acquired

during the marriage (even if registered in the name of either
spouse only).

2.

How overcome: By showing strong, clear and

convincing evidence to the contrary.

enjoyment,

Mortgage, encumber, alienate (MEA) or

otherwise dispose without need of marital conformity
Appear in court to defend any and all
claims arising from such property

3.

How administration may be transferred to the other

during the marriage

It should be made in a public instrument.

It should be recorded in the proper registry.

4.

Rules when (appointed) administrator-spouse

alienates the property

Powers as administrator are automatically

terminated

Proceeds should 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 doneespouses 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.

1.

When a property is donated or willed to the spouses

jointly and with designation of determinate shares, extent of
separate ownership depends on such designation.
Otherwise, they shall own the property share and share
alike.

2.

Accretion under the law on succession applies too. It

arises when either (RIP)
a.
Refuses to accept
b.
is Incapacitated to accept
c.
Predeceases the donor or testator

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.

Gratuitous exclusive property

Onerous If payment is out of the CPG, then the
benefits are part of the CPG (e.g. insurance).

3.

Gavino and Euste vs. Court of Appeals [G.R. No.

120154. June 29, 1998]
In the proceedings before the trial court, plaintiffs presented
the Deed of Conditional Sale executed by the RFC describing
vendee Luis P. Arejola as married to Juana Arejola, ineluctably
showing that he acquired his right over the land during his
marriage to Juana. This being the case, the land is presumed
to be conjugal, hence, Art. 160 of the New Civil Code will have to
be applied, i.e., all property of the marriage is presumed to belong
to the conjugal partnership unless it be proved that it pertains
exclusively to the husband or to the wife. Although this
presumption is rebuttable, it can only be overcome by strong,
clear and convincing evidence of exclusive ownership of one
of the spouses. In the case at bar, the quantum of proof
demanded by law has not been satisfied.
If the sale was without judicial approval, it could only be
attributable to Juana's (the widow) own fault because she knew
very well that she was no longer administratrix of the estate and
therefore could not be empowered by the intestate court to sell
the property.
Where innocent third persons, relying on the correctness of
the certificate of title thus issued, acquire rights over the property,
the court cannot disregard such rights and order the cancellation
of the certificate.
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;
(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;

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PERSONS REVIEWER
Notes, Cases, Annotations
(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;
(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

ownership by the owner-spouse, 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.

(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.

TEST: If the money

used to acquire the property is conjugal money, the property
is part of the CPG. The ultimate beneficiary thereof being
immaterial.

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 owners upon liquidation of the partnership.

1.

2.

Property bought on instalments by either spouse

(where CPG contributed to payments)
a.
If ownership is vested before the marriage
it belongs to the buyer-spouse
b.
If vested during the marriage it belongs to
the CPG
In both cases, the amounts advanced by the CPG
shall be reimbursed by owner-spouse upon liquidation.

Art. 119. Whenever an amount or credit payable within a period of

time belongs to one of the spouses, the sums which may be collected
during the marriage in 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 belong to the conjugal
partnership.

Credits payable to
either spouse
a.
Principal creditor-spouse (exclusive
property)
b.
Interests falling due during the marriage CPG

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 owner-spouse at the
time of the improvement; otherwise, said property shall be retained in

Rules when there are improvements on any separate

property
a.

The entire property will go to the CPG IF

- the value after the improvement plus costs
is greater than the value of the property before the
improvement

b.

The entire property will go to the owner-spouse IF

- the value of the property before the improvement
is greater than the value of the property after the
improvement
Section 4. Charges Upon and Obligations of
the Conjugal Partnership

Art. 121. The conjugal partnership shall be liable for:

(1) The support of the spouse, their common children, and the
legitimate children of either spouse; however, the support of illegitimate
children shall be governed by the provisions of this Code on Support;
(2) All debts and obligations contracted during the marriage by the
designated administrator-spouse for the benefit of the conjugal
partnership of gains, or by both spouses or by one of them with the
consent of the other;
(3) Debts and obligations contracted by either spouse without the
consent of the other to the extent that the family may have benefited;
(4) All taxes, liens, charges, and expenses, including major or
minor repairs upon the conjugal partnership property;
(5) All taxes and expenses for mere preservation made during the
marriage upon the separate property of either spouse;
(6) Expenses to enable either spouse to commence or complete a
professional, vocational, or other activity for self-improvement;
(7) Ante-nuptial debts of either spouse insofar as they have
redounded to the benefit of the family;
(8) The value of what is donated or promised by both spouses in
favor of their common legitimate children for the exclusive purpose of
commencing or completing a professional or vocational course or other
activity for self-improvement; and
(9) Expenses of litigation between the spouses unless the suit is
found to groundless.
If the conjugal partnership is insufficient to cover the foregoing
liabilities, the spouses shall be solidarily liable for the unpaid balance with
their separate properties. (161a)

1.

The enumeration is the same with those under ACP, except

Art. 94 (5) and (9), which are not found under Art. 121, to
wit:

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PERSONS REVIEWER
Notes, Cases, Annotations
(5) All taxes and expenses for mere preservation made during
marriage upon the separate property of either spouse used by the
family;
(9) Ante-nuptial debts of either spouse other than those falling
under paragraph (7)19 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;

2.

Ayala Investment vs. Court of Appeals [G.R. No. 118305.

February 12, 1998] (BAR)
Issue: What debts and obligations contracted by the husband
alone are considered for the benefit of the conjugal partnership
which are chargeable against the conjugal partnership?
Is a surety agreement or an accommodation contract entered into
by the husband in favor of his employer within the contemplation
of the said provision?
Ruling: No. Where the husband contracts obligations on behalf of
the family business, the law presumes, and rightly so, that such
obligation will redound to the benefit of the conjugal partnership.
However, if the money or services are given to another
person or entity, and the husband acted only as a surety or
guarantor, that contract cannot, by itself, alone be categorized
as falling within the context of obligations for the benefit of
the conjugal partnership.
The contract of loan or services is clearly for the benefit of
the principal debtor and not for the surety or his family. No
presumption can be inferred that, when a husband enters into a
contract of surety or accommodation agreement, it is for the
benefit of the conjugal partnership. Proof must be presented to
establish benefit redounding to the conjugal partnership.
The benefits (to the husband and his family in this case)
must be one DIRECTLY resulting from the loan. It cannot merely
be a by-product or a spin-off of the loan itself.

- Carlos vs. Abelardo [G.R. No. 146504. April 9, 2002]

Payment of personal debts contracted by the husband or
the wife before or during the marriage shall not be charged to the
conjugal partnership except insofar as they redounded to the
benefit of the family. The defendants never denied that the check
of US$25,000.00 was used to purchase the subject house and lot.
They do not deny that the same served as their conjugal home,
thus benefiting the family. On the same principle,
acknowledgment of the loan made by the defendant-wife binds
the conjugal partnership since its proceeds redounded to the
benefit of the family. Hence, defendant-husband and defendantwife are jointly and severally liable in the payment of the loan.
Art. 123. Whatever may be lost during the marriage in any game
of chance or in 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 conjugal partnership but any winnings
therefrom shall form part of the conjugal partnership property.

Section 5. Administration of the Conjugal Partnership Property

Art. 124. The administration and enjoyment of the conjugal
partnership 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 conjugal properties, the other
spouse may assume sole powers of administration. These powers do not
include disposition or encumbrance without 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.

1.

The rules are the same with those under ACP.

2.

Guiang vs. Court of Appeals (1998)

NOTE: This case was decided under the Family Code.

Art. 122. The payment of personal debts contracted by the

husband or the wife before or during the marriage shall not be charged to
the conjugal properties partnership except insofar as they redounded to
the benefit of the family.

In this case, Gildas consent to the contract of sale of their

conjugal property was totally inexistent or absent. xxx This being
the case, said contract properly falls within the ambit of Article 124
of the Family Code.

Neither shall the fines and pecuniary indemnities imposed upon

them be charged to the partnership.

Article 173 of the Civil Code was not carried over to

the Family Code. It is thus clear that any alienation or
encumbrance made after August 3, 1988 when the Family Code
took effect by the husband of the conjugal partnership property
without the consent of the wife is NULL AND VOID.

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 be insufficient;
but at the time of the liquidation of the partnership, such spouse shall be
charged for what has been paid for the purpose above-mentioned. (163a)

19

(7) Ante-nuptial debts of either spouse insofar as they

have redounded to the benefit of the family

3.

Heirs of Christina Ayuste vs. Court of Appeals

[G.R. No. 118784. September 2, 1999]

NOTE: This case was decided under the Civil Code.

Facts: It is argued that the present action is not barred because

the action to declare the nullity of a contract does not prescribe
and that Christina Ayuste cannot be faulted for having brought the

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PERSONS REVIEWER
Notes, Cases, Annotations
action only after the death of her husband, despite the periods
stated in Article 173 of the CC, since she had no knowledge of the
sale during his lifetime as he concealed the same from her.

such authority if the same is warranted by the circumstances.

However, it should be stressed that court authorization under Art.
124 is only resorted to in cases where the spouse who does not
give consent is incapacitated.

Ruling: Article 173 of the Civil Code which states thatThe wife may, during the marriage, and within ten years from the
transaction questioned, ask the courts for the annulment of any contract
of the husband entered into without her consent, when such consent is
required, or any act or contract of the husband which tends to defraud her
or impair her interest in the conjugal partnership property. Should the wife
fail to exercise this right, she or her heirs, after the dissolution of the
marriage, may demand the value of property fraudulently alienated by the
husband. (emphasis supplied)

There is no ambiguity in the wording of the law. A sale

of real property of the conjugal partnership made by the husband
without the consent of his wife is VOIDABLE. The action for
annulment must be brought during the marriage and within ten
years from the questioned transaction by the wife. Where the law
speaks in clear and categorical language, there is no room for
interpretation there is room only for application.
In the present case, the deed of sale was executed on
February 27, 1987. Rafael Ayuste died on October 13, 1989.
However, it was only on March 2, 1990 that Christina Ayuste filed
her complaint with the lower court asking for the annulment of the
sale. Although the action was filed within ten years from the
questioned transaction, it was not brought during the existence of
the marriage which was dissolved upon the death of Rafael
Ayuste in 1989.
4. Jader-Manalo vs. Camaisa [G.R. No. 147978. January 23,
2002]

In this case, petitioner failed to allege and prove that the

wife was incapacitated to give her consent to the contracts. In the
absence of such showing of the wifes incapacity, court
authorization cannot be sought.
5. Aguilar-Reyes vs. Mijares [G.R. No. 143826. August 28,
2003]
NOTE: The contract was made prior to the FC. Decided under the CC.

Ruling: The husband could not alienate or encumber any

conjugal real property without the consent, express or implied, of
the wife otherwise, the contract is voidable.
Indeed, in several cases the Court had ruled that such
alienation or encumbrance by the husband is void. The better
view, however, is to consider the transaction as merely voidable
and not void. This is consistent with Article 173 of the Civil Code
pursuant to which the wife could, during the marriage and within
10 years from the questioned transaction, seek its annulment.
Issue: Should there be partial or total annulment?
Ruling: TOTAL. The plain meaning attached to the plain
language of the law is that the contract, in its entirety, executed by
the husband without the wife's consent, may be annulled by the
wife. Had Congress intended to limit such annulment in so far
as the contract shall prejudice the wife, such limitation
should have been spelled out in the statute. It is not the
legitimate concern of this Court to recast the law.

NOTE: Decided under the FC.

Issue: Whether or not the husband may validly dispose of a

conjugal property without the wifes written consent
Ruling: No. The law requires that the disposition of a conjugal
property by the husband as administrator in appropriate cases
requires the written consent of the wife, otherwise, the disposition
is void.
The properties subject of the contracts in this case were
conjugal; hence, for the contracts to sell to be effective, the
consent of both husband and wife must concur.
Even granting that the wife actively participated in
negotiating for the sale of the subject properties, which she
denied, her written consent to the sale is required by law for its
validity. Significantly, petitioner herself admits that the wife
refused to sign the contracts to sell. Respondent Norma may
have been aware of the negotiations for the sale of their conjugal
properties. However, being merely aware of a transaction is
not consent.

The necessity to strike down the contract xxx as a whole,

not merely as to the share of the wife, is not without its basis in
the common-sense rule.
To be underscored here is that upon the provisions of
Articles 161, 162 and 163 of the Civil Code, the conjugal
partnership is liable for many obligations while the conjugal
partnership exists. Not only that. The conjugal property is even
subject to the payment of debts contracted by either spouse
before the marriage, as those for the payment of fines and
indemnities imposed upon them after the responsibilities in Article
161 have been covered (Article 163, par. 3), if it turns out that the
spouse who is bound thereby, should have no exclusive property
or if it should be insufficient. These are considerations that go
beyond the mere equitable share of the wife in the property.
These are reasons enough for the husband to be stopped from
disposing of the conjugal property without the consent of the
wife.

Issue: It is argued that since the wife unjustly refuses to affix her
signatures to the contracts to sell, court authorization under Article
124 of the FC is warranted. Is this correct?

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.

Ruling: No. The contention is correct insofar as she alleges that if

the written consent of the other spouse cannot be obtained or is
being withheld, the matter may be brought to court which will give

- This is the same with the rules under ACP.

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PERSONS REVIEWER
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Section 6. Dissolution of Conjugal Partnership Regime
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 declared void; or
(4) In case of judicial separation of property during the marriage
under Articles 134 to 138.

(4) The debts and obligations of the conjugal partnership shall be

paid out of the conjugal assets. In case of insufficiency of said assets, the
spouses shall be solidarily liable for the unpaid balance with their separate
properties, in accordance with the provisions of paragraph (2) of Article
121.
(5) Whatever remains of the exclusive properties of the spouses
shall thereafter be delivered to each of them.

-Note the requirement of registration of the CPGs dissolution;

otherwise, any third party may consider the any contract upon
CPG property as one contracted in behalf of the CPG.

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

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;

(7) The net remainder of the conjugal partnership properties shall

constitute the profits, which shall be divided equally between husband and
wife, unless a different proportion or division was agreed upon in the
marriage settlements or unless there has been a voluntary waiver or
forfeiture of such share as provided in this Code.

(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.

(8) The presumptive legitimes of the common children shall be

delivered upon the partition in accordance with Article 51.
(9) In the partition of the properties, the conjugal dwelling and the
lot on which it is situated shall, unless otherwise agreed upon by the
parties, be adjudicated to the spouse with whom the majority of the
common children choose to remain. Children below the age of seven
years are deemed to have chosen the mother, unless the court has
decided otherwise. In case there is no such majority, the court shall
decide, taking into consideration the best interests of said children.

Art. 128. If a spouse without just cause abandons the other or fails
to comply with his or her obligation 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.

a.

The obligations to the family mentioned in the preceding

paragraph refer to marital, parental or property relations.

c.

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.

d.

b.

e.
f.

-The rules above are the same with ACP.

g.
Section 7. Liquidation of the Conjugal Partnership Assets and
Liabilities
Art. 129. Upon the dissolution of the conjugal partnership regime,
the following procedure shall apply:
(1) An inventory shall be prepared, listing separately all the
properties of the conjugal partnership and the exclusive properties of each
spouse.

h.

(2) Amounts advanced by the conjugal partnership in payment of

personal debts and obligations of either spouse shall be credited to the
conjugal partnership as an asset thereof.
(3) Each spouse shall be reimbursed for the use of his or her
exclusive funds in the acquisition of property or for the value of his or her
exclusive property, the ownership of which has been vested by law in the
conjugal partnership.

i.

Procedure; outline.
Inventory
listing separately of the conjugal and separate properties
Advances
made by the CPG for separate obligations (of either spouse)
shall be considered assets
Reimburse
ment to spouses in cases where his/her propertys
ownership is vested in the CPG (ref. Articles 118 and 120)
Payment
of CPG obligations out of its assets.
In
case
insufficient, spouses shall be solidarily liable with their
separate properties.
Delivery of
the remainder in the exclusive/separate properties to the
respective owners
Payment
for out of the CPG funds for loss/deterioration of movables
(owned by either spouse) used for the benefit of the family
(EXCEPT when already paid)
Net
remainder of the CPG properties shall constitute profits.
They shall be divided equally, unless

a different proportion has been agreed upon in the marriage

settlement, or

there has been a waiver, or

there has been a forfeiture of such share.

Delivery of
the presumptive legitimes

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PERSONS REVIEWER
Notes, Cases, Annotations
j.

Adjudicati
on of the conjugal dwelling to spouse where majority of
children chooses to reside (note: the 7-year old rule)

Art. 134. In the absence of an express declaration in the marriage

settlements, the separation of property between 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.

Art. 130. Upon the termination of the marriage by death, the

conjugal partnership property shall be liquidated in the same proceeding
for the settlement of the estate of the deceased.

1.

If no judicial settlement proceeding is instituted, the surviving

spouse shall liquidate the conjugal partnership property either judicially or
extra-judicially within six months from the death of the deceased spouse.
If upon the lapse of the six-month period no liquidation is made, any
disposition or encumbrance involving the conjugal partnership property of
the terminated marriage shall be void.

Since separation of property during the marriage cannot

take place without judicial order, this chapter governs the
process on how to dissolve the ACP/CPG during the
marriage, either voluntarily or involuntarily.

2.

Distinction

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.
Art. 131. Whenever the liquidation of the conjugal partnership
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 partnership shall be
determined upon such proof as may be considered according to the rules
of evidence. In case of doubt as to which partnership the existing
properties belong, the same shall be divided between the different
partnerships in proportion to the capital and duration of each.

1.
2.

The rules under Articles 130 and 131 are the same with the
rules under Articles 103 and 104 (ACP).
Options as to how liquidation may be made, according to
cause
a. Death:
i. Testate/intestate proceedings of the deceased
spouse
ii. Extra-judicial partition among the compulsory heirs
(no debts)
iii. Ordinary action for partition
b.

3.

Dissolution like legal separation, annulment or

declaration of nullity etc in the same proceeding. But
if none is made in the said proceeding, partition is
proper.

Valuation market value at the time of dissolution

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 and until what belongs to them is delivered; but
from this shall be deducted that amount received for support which
exceeds the fruits or rents pertaining to them.

Chapter 5. Separation of Property of the

Spouses and Administration of Common Property by One
Spouse During the Marriage

Art. 134
(Chapter 5)
This is only a mode of effecting a
separation of property during the
marriage.
There is an order from the court.

3.

Art. 143
(Chapter 6)
This is the mother provision on
separation of property regime.
There may or may not be an order
from the court, since it may
- Be agreed upon by the parties in
the marriage settlement, or
- Take place by operation of law
(Art. 103, par. 3), or
- Be made judicially (Art. 134).

Classes of judicial separation of property:

a. Voluntary by agreement
b. Involuntary for sufficient cause

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) 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.
Procedure
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 and notified of the filing thereof. The court shall

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PERSONS REVIEWER
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take measures to protect the creditors and other persons with pecuniary
interest.

(4) When the spouse who has left the conjugal home WITHOUT A
DECREE OF LEGAL SEPARATION resumes common life with the other;

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.

(5) When parental authority is judicially restored to the spouse

previously deprived thereof;

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.

(6) When the spouses who have separated in fact for at least one
year, reconcile and resume common life; or
(7) When after voluntary dissolution of the absolute community of
property or conjugal partnership has been judicially decreed upon the joint
petition of the spouses, they agree to the revival of the former property
regime. No voluntary separation of property may thereafter be granted.
The revival of the former property regime shall be governed by
Article 67.

1.

How availed of

By filing a motion to revive former property regime

with a copy of an agreement by the parties to that
effect

In the same proceeding where the decree was

granted

2.

Agreement to revive former property regime; how executed;

Art. 67.

Art. 140. The separation of property shall not prejudice the rights
previously acquired by creditors.

1. Procedure for judicial separation of property

a. File a joint verified petition for voluntary dissolution of
ACP/CPG, and for the separation of properties.
b. Of course, if involuntary, it need not be joint, but it must still
be a verified petition.
c. List all the creditors of the ACP/CPG and the personal
creditors of each spouse.
d. Notify the creditors.
e. The court shall take measures to protect the creditors and
others who have pecuniary interests in the properties.
f.
Pending resolution, the ACP/CPG shall be liable for the
support of the family.
g. Decree of separation of property
h. Liquidation
i.
Recording in the CIVIL and PROPERTY registries of
a. Petition for separation of property
b. Final judgment granting the same
2.

Effects of the decree:

a. Dissolution of the ACP/CPG.
b. Exclusive management and ownership of earnings,
properties and their fruits.
c. Liability to creditors shall be solidary with their
separate properties.
d. Mutual obligation to support each other continues
(EXCEPT when there is legal separation).
e. It cannot prejudice any creditors vested rights.

Remedy of revival of property regime after decree of separation of

property
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 regime that existed between them before the
separation of property in any of the following instances:
(1) When the civil interdiction terminates;
(2) When the absentee spouse reappears;
(3) When the court, being satisfied that the spouse granted the
power of administration in the marriage settlements will not again abuse
that power, authorizes the resumption of said administration;

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 measure to protect the interest of creditors
and such order shall be recorded in the proper registries of properties.
The recording of the ordering 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.

Grounds for transfer of administration of exclusive properties

Art. 142. The administration of all classes of exclusive property
of either spouse may be transferred by the court to the other spouse:
(1) When one spouse becomes the guardian of the other;
(2) When one spouse is judicially declared an absentee;
(3) When one spouse is sentenced to a penalty which carries with
it civil interdiction; or
(4) When one spouse becomes a fugitive from justice or is in
hiding as an accused in a criminal case.
If the other spouse is not qualified by reason of incompetence,
conflict of interest, or any other just cause, the court shall appoint a
suitable person to be the administrator.

Distinction

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PERSONS REVIEWER
Notes, Cases, Annotations
Art. 110
Done by a spouse in favor of the
other spouse in a public
instrument, duly registered in the
property registry
No particular grounds (love?? ).
So, the spouse may transfer
powers of administration for any
reason.
Alienation of property administered
without the consent of the ownerspouse automatically terminates
all powers of administration

Art. 142
Done by the court in the form of an
order

ACP/CPG

Complete
separation
of
property

There is no provision to this effect.

Chapter 6.
Art. 143. Should the future spouses agree in the marriage
settlements that their property relations during marriage shall be governed
by the regime of separation of property, the provisions of this Chapter
shall be suppletory.

2.

Regime of separation of property; characteristics.

a. The spouses retain ownership, management and
control of their properties acquired before and during
the marriage.
b. Each is responsible for his/her liabilities.
c. Each spouse shall contribute to the family expenses
proportionately.
Some notes

Advantages
It is simple.
There are no common properties;
hence no liquidation.

Neither can be accused of being

interested in the others properties.

3.

Illustration

Disadvantages
Based on distrust.
There will be little trouble with
reference to personal expenses,
but since they share in the family
expenses pro rata, trouble at this
point may be expected.

ACP/CPG
Otherwise, Art.88
will be violated.

Classes of separation of property

As to extent
Partial those not covered are
considered ACP properties

Total

Present

As to properties covered
Future

Both present and

future

Property Regime of Unions

Without Marriage

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.

1.

cannot be
converted into

Art. 144. Separation of property may refer to present or future

property or both. It may be total or partial. In the latter case, the property
not agreed upon as separate shall pertain to the absolute community.

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.

The liabilities of the spouses to creditors for family expenses shall,

however, be solidary.

Complete
separation of
property

BUT

Basically grounded on either

incapacity or absence of a spouse

Regime of Separation of Property

can be
converted into

Chapter 7.
Capacitated parties
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.
In the absence of proof to the contrary, properties acquired while
they lived together shall be presumed to have been obtained by their joint
efforts, work or industry, and shall be owned by them in equal shares. For
purposes of this Article, a party who did not participate in the acquisition
by the other party of any property shall be deemed to have contributed
jointly in the acquisition thereof if the former's efforts consisted in the care
and maintenance of the family and of the household.
Neither party can encumber or dispose by acts inter vivos 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.
When only one of the parties to a void marriage is in good faith,
the share of the party in bad faith in the co-ownership shall be forfeited in
favor of their common children. In case of default of or waiver by any or all
of the common children or their descendants, each vacant share shall
belong to the respective surviving descendants. In the absence of
descendants, such share shall belong to the innocent party. In all cases,
the forfeiture shall take place upon termination of the cohabitation.

1.

Requisites for Art. 147 to apply:

a. The parties are capacitated to marry each other
b. They live exclusively as husband and wife
c. There is no marriage OR the marriage is void.

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2.

Rules on co-ownership under Art. 147; mechanics.

a. Wages and salaries earned during cohabitation are
owned in equal shares.
b.

Properties acquired during cohabitation are governed

by the rules on co-ownership, where ownership is
determined in proportion to respective effort, work or
industry.

c.

Rebuttable presumption: Effort, work or industry is

JOINT; hence, the shares are EQUAL.

d.

A party who did not participate in the acquisition of a

property is deemed to have contributed jointly IF
his/her efforts consisted in the care and
maintenance of the family and the household.

Valdes vs. RTC of Quezon City [GRN 122749 July 31,

1996]
Facts: A marriage was declared void under Article 36. It was
argued that:
a. Article 147 does not apply, and
b. The disposition and liquidation of properties should be
made in accordance with Articles 50-52 of the FC, and
not with the CC provisions on co-ownership.

Excerpts from the case:

On Art. 147

This peculiar kind of co-ownership applies when a man

and a woman, suffering no legal impediment to marry each
other, so exclusively live together as husband and wife
under a void marriage or without the benefit of marriage.

The term "capacitated" in the provision (in the first

paragraph of the law) refers to the legal capacity of a party
to contract marriage, i.e., any "male or female of the age of
eighteen years or upwards not under any of the
impediments mentioned in Articles 37 and 38 of the Code.

Under this property regime, property acquired by both

spouses through their work and industry shall be
governed by the rules on EQUAL co-ownership.

Any property acquired during the union is prima facie

presumed to have been obtained through their joint efforts.
A party who did not participate in the acquisition of the
property shall still be considered as having contributed
thereto jointly if said party's "efforts consisted in the care
and maintenance of the family household."

Unlike the conjugal partnership of gains, the fruits of

the couple's separate property are not included in the
co-ownership.

Article 147 has 2 new additional provisions, to wit

3.

Issue #1: When a marriage is declared void under Art. 36, what is
the property regime?
Ruling: In a void marriage, REGARDLESS OF THE CAUSE
THEREOF, the property relations is governed by Article 147 or
Article 148, as the case may be.

(a) Neither party can dispose or encumber by act inter vivos

his or her share in co-ownership property, without the
consent of the other, during the period of cohabitation, and

Hence, the parties own the family home and all their
common property in equal shares.

(b) In the case of a void marriage, any party in bad faith

shall forfeit his or her share in the co-ownership in favor of
their common children; in default thereof or waiver by any or
all of the common children, each vacant share shall belong
to the respective surviving descendants, or still in default
thereof, to the innocent party. The forfeiture shall take place
upon the termination of the cohabitation or declaration of
nullity of the marriage.

Issue #2: How should the properties be liquidated and

partitioned?
Ruling: Following Article 147, the liquidation and partition of the
property should be governed by the provisions on coownership under the Civil Code, not Articles 50, 51 and 52 in
relation to Articles 102 and 129, of the Family Code.
Reasons:
1.
Article 50, par. 1 relates only to:

VOIDABLE marriages, and

Exceptionally, to VOID marriages under Article 40, i.e. the

declaration of nullity of a subsequent marriage, which was
contracted without first obtaining a declaration of nullity of the
prior marriage.

On Art. 148
When the common-law spouses
(1) suffer from a legal impediment to marry or
(2) when they do not live exclusively with each other (as
husband and wife):

Only the property acquired by both of them through their

ACTUAL20 joint contribution of money, property or industry
shall be owned in common and in proportion to their
respective contributions.

Issue #3: How should the family home be adjudicated?

Ruling: The provisions of the Family Code on the "family home,"

found in Title V, Chapter 2, remain in force and effect regardless
of the property regime of the spouses.

Rebuttable presumption: The

corresponding shares are equal.

20

2.

Articles 50-52 contemplate a validly existing regime of ACP/CPG. In

this case, however, the property regime is that of co-ownership
under Art. 147. This being the case, there is no need to comply with
Articles 50-52 of the FC.

contributions

and

Unlike in Article 147, efforts consisting of care and

maintenance of the family are no longer considered as
ACTUAL joint contribution under Article 148.

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Notes, Cases, Annotations
Valdes vs. RTC of QC
(260 SCRA)
Art. 50 applying Art. 43,
paragraphs (2) to (5)

Cario vs. Cario

(351 SCRA)
Articles 147 and 148

Basis: Legal provision

Basis: Logic and law

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 ruling was anchored on the

fact that the subsequent marriage
is a BIGAMOUS one (see table
above).

Problematic/Incapacitated parties
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.

Facts that you should know...

Facts that you should know...

If one of the parties is validly married to another, his or her share in

the co-ownership shall accrue to the absolute community or conjugal
partnership existing in such valid marriage. If the party who acted in bad
faith is not validly married to another, his or her shall be forfeited in the
manner provided in the last paragraph of the preceding Article.

RULES ON FORFEITURE IN CASES OF BAD FAITH

1. To one who is validly married to another
His share of shall accrue to the ACP/CPG
2.

To one who is not validly married to another

His or her share shall be forfeited in this order...
o Common children
o In case of default/waiver, respective surviving
descendants
o Innocent spouse

This provision applies to

a. Bigamous marriages
b. Adulterous relationships
c. Relationships in a state of concubinage

2.

Summary
Article 147

There were two marriages

here, and both were VOID.

The SC said that:

As
to
the
FIRST
MARRIAGE,
Art.
147
applies (because the first
void marriage was then
presumed to be valid
considering that there has
been no judicial declaration
of nullity yet).
As to the SECOND
MARRIAGE,
Art.
148
applies (because it was
solemnized
during
the
subsistence of a previous
marriage then presumed to
be valid).

NOTE: If youre still confused, please review the case nalang, hehe.
I already tried my best to simplify.

Article 148

Art.
35(2)

solemnizing officer has no

authority (EXC: if either
or both of the parties is in
GF)

Art. 35(1)

minority

Art.
35(3)
Art.
35(5)
Art.
35(6)

marriage without license

Art. 35(4)

bi/polygam
ous
incestuous

Art. 36

psychological incapacity

mistake in identity

Art. 37

failure to
liquidate/property partition
and to deliver
presumptive legitimes

Art. 38

void by
reason of
public
policy

living exclusively, but

WITHOUT the benefit of
marriage

3.

There was only one marriage

involved in Valdes, which
was declared void under Art.
36.

The foregoing rules on forfeiture shall likewise apply even if both

parties are in bad faith.

1.

Although the basis was a

direct provision of law, the
main issue in Valdes is not
really Article 40, but rather
Article 36 in relation to Article
147.

If VOID under Art. 40, which declares a subsequent

marriage void by reason of failure to secure first a
declaration of nullity of a prior marriage, what provision
should govern?

4. Tumlos vs. Fernandez [GRN 137650 April 12, 2000]

Facts: A paramour claims that she is a co-owner of a property with
a man who was previously married. She presented a contract to
sell covering the property, which described her as the wife of the
married man.
She insists that given that their cohabitation and the
acquisition occurred prior to the FC, Art. 14421 of the CC applies
and not Art. 148 of the FC.
Ruling: Art 148 of the FC applies. The law itself states that it
can be applied retroactively if it does not prejudice vested or
acquired rights. In this case, petitioner failed to show any vested
right over the property in question. Moreover, to resolve similar
issues, we have applied Article 148 of the Family Code
retroactively.
Under Article 148 of the Family Code, a man and a woman
who are not legally capacitated to marry each other, but who
21

Art. 144. When a man and a woman live together as

husband and wife, but they are not married, or their
marriage is void from the beginning, the property acquired
by either or both of them through their work or industry or
their wages and salaries shall be governed by the rules on
co-ownership.

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PERSONS REVIEWER
Notes, Cases, Annotations
nonetheless live together conjugally, may be deemed co-owners
of a property acquired during the cohabitation only upon proof that
each made an actual contribution to its acquisition. Hence, mere
cohabitation without proof of contribution will not result in a
co-ownership.

This rules shall not apply to cases which may not be the subject of
compromise under the Civil Code.

1.

The property is thus presumed to belong to the conjugal

partnership property of Mario and Lourdes Fernandez, it being
acquired during the subsistence of their marriage and there being
no other proof to the contrary.
5. Mallilin Jr. vs. Castillo [GRN 136803 June 16, 2000]
Facts: It was argued that co-habiting parties were both married;
hence, it was impossible for them to own properties in common,
pursuant to Article 144 of the CC.

Exception: If earnest efforts to arrive at a compromise have

failed and this fact is averred/alleged in a verified
complaint/petition.
2.

Ruling: While Article 144 of the CC applies only to cases in which a man
and a woman xxx are not incapacitated or are without impediment to
marry each other, or in which the marriage is void ab initio, (and does not
cover adulterous relationships), it does not mean that the co-habiting
parties who are married to other persons can no longer own properties in
common.

Article 148 of the Family Code now provides for a

LIMITED CO-OWNERSHIP in cases where the parties in union
are incapacitated to marry each other.
Hence, it was error to say that, because the parties in
this case were not capacitated to marry each other at the time
that they were alleged to have been living together, they could not
have owned properties in common.
CAVEAT: With respect to the property acquired before the
Family Code took effect, if it is shown that it was really
acquired under the regime of the Civil Code, then it should
be excluded.
TITLE V: THE FAMILY
Chapter 1. The Family as an Institution
Art. 149. The family, being the foundation of the nation, is a basic
social institution which public policy cherishes and protects. Consequently,
family relations are governed by law and no custom, practice or
agreement destructive of the family shall be recognized or given effect.
Art. 150. Family relations include those:
(1) Between husband and wife;
(2) Between parents and children;
(3) Among other ascendants and descendants; and
(3) Among brothers and sisters, whether of the full or half-blood.

Number (1) does not cover common-law spouses.

Numbers (2) to (4) cover illegitimate relationships.

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 same
case must be dismissed.

General Rule: No civil suit may prosper between members

of the same family as stated in Art. 150.

No compromise agreements are allowed in the following

cases
a. Civil status of persons
b. Validity of marriage or legal separation
c. Any ground for legal separation
d. Future support or legitime
e. Jurisdiction of courts

3.

OLaco vs. Co Cho Chit [GRN 58010 March 31,1993.]

Admittedly, the present action is between members of the
same family since A and B are half-sisters. Consequently, there
should have been an averment in the complaint that earnest
efforts toward a compromise have been made, or a motion to
dismiss could have been filed under of the Rules of Court. The
absence of such allegation in the complaint is assailable at any
stage of the proceeding, even on appeal, for lack of cause of
action.
HOWEVER, while B did not formally amend the
complaint (to cure the jurisdictional defect), B was nonetheless
allowed to introduce evidence purporting to show that earnest
efforts toward a compromise had been made. Hence, the
complaint was deemed accordingly amended to conform to
the evidence, pursuant to Sec. 5, Rule 10 of the ROC. It reads
"Sec. 6. Amendment to conform to or authorize presentation of
evidence. When issues not raised by the pleadings are tried by express
or implied consent of the parties, they shall be treated in all respects, as if
they had been raised in the pleadings xxx

Therefore, the insufficiency of the allegations in the

complaint is deemed ipso facto rectified.
4.

Guerrero vs. RTC of Ilocos Norte [GRN 109068 January

10, 1994]
Art. 151starts with the negative word "No." Hence, the
requirement is mandatory that the complaint or petition, which
must be verified, should allege that earnest efforts towards a
compromise have been made but that the same failed, so that,
"[i]f it is shown that no such efforts were in fact made, the case
must be dismissed."
5.

Gayon vs. Gayon [GRN L-28394 November 26, 1970]

The impediment arising from this provision applies to suits
filed or maintained between members of the same family. This
phrase, members of the same family, should, however, be
construed in the light of Art. 217 of the CC (now Art. 150 of the
FC).
It does not cover relationships by affinity.

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Notes, Cases, Annotations
Chapter 2. The 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.
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.

1.

Who constitutes the FH

a. The husband and the wife (jointly)
b. An unmarried head of a family (covers a widow/er)

2.

Coverage
a. The dwelling house where the family resides
b. The land on which is it is situated

3.

When deemed constituted

From the time it is actually occupied as a family
residence (NO OTHER ACT IS REQUIRED)
Thus, even if there is recording, but there is no actual
occupancy, the FH is not yet deemed constituted.

4.

Duration of its being FH in the eyes of law

- From the time of its constitution, until none of the
beneficiaries actually resides therein
- Hence, the mere death of the person who constituted it
does not necessarily strip the FH of its character as such.
- There is no retroactive effect here.

5.

Benefitsexempt from execution, forced sale or attachment

(STE)

6.

Limitations:
a. Each family can only have one family home.
b. It can only be constituted in the place where the family
has its domicile.
c. It cannot be constituted on a lot belonging to another.
d. It cannot be constituted on premises used for business
purposes.
e. The value must not exceed the limits fixed by law.

(2) For debts incurred prior to the constitution of the family home;
(3) For debts secured by mortgages on the premises BEFORE OR
AFTER such constitution; and
(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.

1.

Manacop vs. Court of Appeals [GRN 97898 August

11,1997]
Issue: Can a final and executory decision promulgated and a writ
of execution issued before the effectivity of the FC be executed
on a FH occupied even prior to the effectivity of the FC?
Ruling: Yes, it can still be executed because the FH is not exempt.
The residential house and lot of was not constituted as
family home whether judicially or extrajudicially under the Civil
Code. It became a family home by operation of law only
under Article 153 of the Family Code. It is deemed constituted
as a family home upon the effectivity of the Family Code on
August 3, 1988.
HOWEVER, the contention that it should be considered a
family home from the time it was occupied in 1960 is not welltaken.
Under Article 162 of the Family Code, it is provided that 'the
provisions of this Chapter shall also govern existing family
residences insofar as and provisions are applicable.' It does not
mean that Articles 152 and 153 of said Code have a
retroactive effect such that all existing family residences are
deemed to have been constituted as family homes at the time
of their occupation prior to the effectivity of the Family Code
and are exempt from execution for the payment of
obligations incurred before the effectivity of the Family Code.
Article 162 simply means that all existing family residences
at the time of the effectivity of the Family, Code, are considered
family homes and are PROSPECTIVELY entitled to the benefits
accorded to a family home under the Family Code. Article 162
does not state that the provisions of Chapter 2, Title V have a
retroactive effect.
2.

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.

Includes in-laws who live in the same house.

Art. 155. The family home shall be exempt from execution, forced
sale or attachment EXCEPT:
(1) For nonpayment of taxes;

Taneo Jr. vs. Court of Appeals [GRN 108532 March 9,

1999]
Under the Civil Code (Articles 224 to 251), a family home
may be constituted judicially and extrajudicially, the former by the
filing of the petition and with the approval of the proper court, and
the latter by the recording of a public instrument in the proper
registry of property declaring the establishment of the family
home. The operative act then which created the family home
extrajudicially was the registration in the Registry of Property of
the declaration prescribed by Articles 240 and 241 of the Civil
Code. Under the Family Code, however, registration was no
longer necessary. Article 153 of the Family Code provides that the
family home is deemed constituted on a house and lot from the
time it is occupied in the family residence.
However, the retroactive effect of the Family Code,
particularly on the provisions on the family home has been clearly

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PERSONS REVIEWER
Notes, Cases, Annotations
laid down by the court as explained in the case of Manacop v.
Court of Appeals (supra).
Moreover, the constitution of the family home is even
doubtful considering that such constitution did not comply with the
requirements of the law. The house was erected not on the land
which the Taneos owned but on the land of one Plutarco
Vacalares. By the very definition of the law that the "family home
is the dwelling house where a person and his family resides and
the land on which it is situated," it is understood that the house
should be constructed on a land not belonging to another.
Art. 156. The family home must be part of the properties of the
absolute community or the conjugal partnership, or of the exclusive
properties of either spouse with the latter's consent. It may also be
constituted by an unmarried head of a family on his or her own property.

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.

1.

Exception: The court finds compelling reasons to other its

partition.
2.

Nevertheless, property that is the subject of a conditional sale on

installments where ownership is reserved by the vendor only to guarantee
payment of the purchase price may be constituted as a family home.

What properties (house and lot) may be constituted as FH?

1. Any ACP/CPG property
2. Exclusive property of either spouse, with the latters
consent
3. An unmarried head of a familys own property
4. Property under a contract to sell

Art. 157. The actual value of the family home shall not exceed, at
the time of its constitution, the amount of the three hundred thousand
pesos in urban areas, and two hundred thousand pesos 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.

1.

2.

The above rules apply whoever the owner and the person/s
who constituted the FH is.

Art. 160. When a creditor whose claims is not among those

mentioned in Article 155 obtains a judgment in his favor, and he has
reasonable grounds to believe that the family home is actually worth more
than the maximum amount fixed in Article 157, he may apply to the court
which rendered the judgment for an order directing the sale of the property
under execution. The court shall so order if it finds that the actual value of
the family home exceeds the maximum amount allowed by law as of the
time of its constitution. If the increased actual value exceeds the
maximum allowed in Article 157 and results from subsequent voluntary
improvements introduced by 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 proceeds shall be applied first to the
amount mentioned in Article 157, and then to the liabilities under the
judgment and the costs. The excess, if any, shall be delivered to the
judgment debtor.

1.

Requisites for Art. 160 to apply:

a. The creditors under Art. 155 must first be paid (before
the creditor under Art. 160 will be allowed to apply for
an order under this provision).
b. The creditor under Art. 160 must first obtain a final
judgment in his favor and against the owner of the FH.
c. The creditor has reasonable grounds to believe that
the value of the FH exceeds the limit fixed bylaw.

2.

Procedure:
a. Apply to the court (which rendered the final judgment
finding the FH owner liable) for an order directing the
sale of the property.
b. The court shall determine if indeed the value of the FH
exceeds the limit fixed by law as of the time of its
constitution.

Maximum exemption limit on the value of the FH

a. Urban PhP300,000.00
b. Rural PhP200,000.00
*Congress may fix this.

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.

General Rule: The FH continues as such and cannot be

partitioned despite the death of the person/s who constituted
it
-For a period of 10 years, or
-For as long as there is a minor beneficiary.

The written consent of the following is required to effect any

acts of ownership over the FH
a. The person who constituted the FH
b. His/her spouse
c. A majority of the beneficiaries who are of legal age

c.

Judicial intervention may be had in case of conflict. :p

e.

d.

Any improvements on the FH increasing the value

thereof do not bar these rules from being applied.

If it exceeds the threshold under Art.157, the court

shall order the sale.
No bid below the value allowed for the FH shall be
accepted.
The proceeds shall be applied in this wise
i. To the value of the FH (under Art. 157);

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PERSONS REVIEWER
Notes, Cases, Annotations
ii.
iii.
iv.

To the liabilities under the judgment;

To the costs of the sale; and
To the judgment debtor, if there are excess.

shall be recorded in the civil registry together with the birth certificate of
the child.

1.

Legitimate children are those conceived/born

a. During a valid marriage
b. To a marriage where either or both parties believed in
GF that the solemnizing officer had authority to
officiate the marriage (Art. 35(2))
c. Prior to the decree of nullity (Art. 36)
d. To a marriage, where one spouse failed to properly
liquidate and to deliver presumptive legitimes of a prior
dissolved marriage (Art. 53)
e. To a provisional marriage, where the absentee
spouse reappears (Art. 43)
f. To a voidable marriage (Art. 45)
g. By means of artificial insemination

2.

Artificial insemination; requirements for legitimacy.

a. The spouses authorized or ratified the insemination
b. In a written instrument
c. Executed and signed prior to birth
d. The instrument is recorded in the civil registry with the
birth certificate of the child (BUT note that the fact of
artificial insemination should not appear on the birth
certificate).

Art. 161. For purposes of availing of the benefits of a family home

as provided for in this Chapter, a person may constitute, or be the
beneficiary of, only one family home.
Art. 162. The provisions in this Chapter shall also govern
existing family residences insofar as said provisions are applicable.

Art. 162 does not mean that this Chapter has retroactive
effect. It simply provides that all existing FH at the time of
the effectivity of the FC are considered FH and are
prospectively entitled to the benefits under the FC.
TITLE VI: PATERNITY AND FILIATION
Chapter 1. Legitimate Children

Art. 163. The filiation of children may be by nature or by adoption.

Natural filiation may be legitimate or illegitimate.

1.

Distinction

Paternity/Maternity
The civil status or relationship
of the father or mother to the
child.

Filiation
The civil status or relationship of the child to the
father.
Natural Filiation
Filiation by adoption
Legitimate
Illegitimate

Art. 165. Children conceived and born outside a valid marriage are
illegitimate, unless otherwise provided in this Code.

2.

Classification of children under the FC

a. Legitimate (Art. 164)
b. Legitimated (Art. 177 and 178)
c. Illegitimate (Art. 165)

3.

Distinction

Legitimate
Illegitimate
As to the right to use surname of father
Has the right to use surname of
Has the right and/option to use
father
surname of father (RA9255)
As to parental authority
Joint authority of parents
Sole parental authority of mother
As to right to support
Has the preferential right to
Has no preference
support over his mother, if father
has no sufficient means to meet
both claims
As to successional rights
Full share
share of an illegitimate child
As to beneficiary rights under SSS/GSIS
Primary beneficiary
Not so
As to right of father to paternity leave
Claimable 7 days with pay
Not so

Art. 164. Children conceived or born during the marriage of the

parents are legitimate.
Children conceived as a result of artificial insemination of the wife
with the sperm of the husband or that of a donor or both are likewise
legitimate children of the husband and his wife, provided, that both of
them authorized or ratified such insemination in a written instrument
executed and signed by them before the birth of the child. The instrument

Illegitimate children are those conceived/born

a. To incestuous marriages
b. To bigamous marriages
c. To void marriages by reason of public policy (Art. 38)
d. To void marriages under Art. 35, except paragraph 2
e. By couples who are not legally married
f. By minor couples (whether married or not)
g. By couples maintaining adulterous relations

Grounds for impugning legitimacy

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; 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.

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Notes, Cases, Annotations
1.

FIRST GROUND
0

180th day/6th mo.

Termination of
1st marriage

300th day

6 months

birth
300 days
120 days/4 mos.
Within this period, there was a physical impossibility of sexual
intercourse due to any of the grounds under Art. 166, par. 1.

The celebration of 2nd marriage is within

the 300-day period.

2.

SECOND GROUND biological and other scientific reasons

Case #1: If the child is born before the 6-month period ends, he is
considered a child of the first marriage. (Art. 168)

3.

THIRD GROUND in cases of artificial insemination, the

written authorization/ratification of either parent was tainted
with any vice of consent

Case #2: If the child is born after the 6-month period, he is

considered a child of the second marriage. (Art. 169)

Art. 167. The child shall be considered legitimate although the

mother may have declared against its legitimacy or may have been
sentenced as an adulteress.

1.

Situations contemplated
a. The mother says that the child is illegitimate, or
b. The mother is sentenced guilty of adultery

2.

The mother is, of course, married. In both cases, the child

shall be considered born within lawful wedlock and, hence,
legitimate.

3.

The policy of the law is to favor the childs legitimacy.

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.

1.

The rules below shall apply only if there are no evidence to

the contrary.

2.

Requisites for a child to be considered a child of the first

marriage
a. The mother must have married again within 300 days
from the termination of the first marriage
b. The child must have been born within 300 days after
the termination of the first marriage
c. The child must have been born within 180 days (6
months) after the solemnization of the second
marriage.

3.

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.

1.

The law does not give a status to a child born after 300 days
following the termination of a marriage, unless if the mother
remarries within the 300-day period. In the latter case, such
child shall be considered a child of the second marriage.

2.

Whoever alleges the legitimacy or illegitimacy of a child born

after the 300-day period has the burden of proof.

Action to Impugn Legitimacy

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 heirs,
should reside in the city or municipality where the birth took place or was
recorded.
If the husband or, in his default, all of his heirs do not reside at the
place of birth as defined in the first paragraph or where it was recorded,
the period shall be two years if they should reside in the Philippines; and
three years if abroad. If the birth of the child has been concealed from or
was unknown to the husband or his heirs, the period shall be counted
from the discovery or knowledge of the birth of the child or of the fact of
registration of said birth, whichever is earlier.

1.

Only the following can bring an action to impugn the

legitimacy of the child
a. Husband
b. The husbands heirs22 (in proper cases)

2.

Prescriptive periods:
a. If the persons enumerated above reside in the place
where the birth took place or was recorded, ONE
YEAR from
i. Knowledge of the birth, or
ii. Its recording in the civil register
b.

Illustration

22

If they do not reside in the same locality

i. TWO YEARS if they are only in the Philippines
ii. THREE YEARS if they are abroad

Includes any kind of heirs

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PERSONS REVIEWER
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c.

If the birth was concealed or was unknown to them,

the period shall be counted from the discovery or
knowledge
i. Of the birth, or
ii. Of the fact of registration, WHICHEVER IS
EARLIER.

3.

Mere registration of the birth certificate does not amount to

constructive notice to the father or his heirs. There must be
actual knowledge of such fact of registration.

4.

This provision cannot be used to impugn maternity and to

have the child declared as not the mothers legal heir. Art.
170 and 171 presuppose that the child was the undisputed
offspring of the mother.

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

Issue: B contends that the action to contest her status as a child

of the late Hermogena has already prescribed. She cites Article
170 of the FC which provides the prescriptive period for such
action. Is she correct?
Ruling: No. This action involves the cancellation of B's Birth
Certificate; it does not impugn her legitimacy. Thus, the
prescriptive period set forth in Article 170 of the Family Code does
not apply. Verily, the action to nullify the Birth Certificate does not
prescribe, because it was allegedly void ab initio.
Chapter 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

(3) If the child was born after the death of the husband.

1.

2.

The husbands heirs may impugn only if

a. The husband dies before the expiration of the
prescriptive period
b. The husband dies after filing the complaint without
having desisted
c. If the child was born after the husband dies.
The heirs must be merely acting as substitute of the
husband in contesting the legitimacy of the child. They
cannot file if it clearly appears that the husband
a. Did not make use of the right, or
b. Desisted from his intention to file the action.

3. Babiera vs. Catotal [GRN 138493 June 15, 2000]

Issue: Can A (a legitimate child) bring an action to cancel the birth
certificate of another child B, who appears to have been
registered as a child of her (As) mother?
Ruling: Yes, but Art. 171 of the FC is not the law applicable.
A close reading of Article 171 shows that it applies to
instances in which the father impugns the legitimacy of his wife's
child. The provision, however, presupposes that the child was the
undisputed offspring of the mother.
The present case alleges and shows that As mother did
not give birth to B. In other words, the prayer herein is not to
declare that B is an illegitimate child of Hermogena (As mother),
but to establish that B is not the latter's child at all.
Verily, the present action does not impugn Bs filiation to
Spouses Eugenio and Hermogena Babiera, because there is no
blood relation to impugn in the first place.

(2) Any other means allowed by the Rules of Court and special
laws.

1.

Proofs of Filiation

Primary Evidence
Record of birth (e.g.
Admission of legitimate filiation in
appearing in the civil register

or a final judgment)
a public document (e.g.
notarial will) or
If the father did not
a private handwritten
intervene
in
the instrument (e.g. holographic
preparation thereof, it
will or a letter)
cannot be used; since the
signature of the putative
signed by the parent
father is necessary.
concerned.
Secondary Evidence
Open and continuous
Any other means allowed under
possession of status of a
the ROC and special laws
legitimate child
E.g.
The following must concur
- baptismal certificate
The child has always been -judicial admission
using the surname of the -family bible where the name of
the child appears
father.
The father has treated him -common reputation respecting
pedigree
as his legitimate child.

The child has -admission by silence

been
constantly -testimonies of witnesses
recognized as such child
in society and by the
family.
2.

Mendoza vs. Court of Appeals [G.R. No. 86302

September 24, 1991.]

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To establish "the open and continuous possession of
the status of an illegitimate child," it is necessary to comply
with 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

without concealment though without publicity

(since the relation is illegitimate).
There must be a showing of the permanent intention of the
supposed father to consider the child as his own, by continuous
and clear manifestation of paternal affection and care.
But although Teopista has failed to show that she was in
open and continuous possession of the status of an illegitimate
child of Casimiro, we find that she has nevertheless established
that status by another method.
An illegitimate child is allowed to establish his claimed
filiation by "any other means allowed by the Rules of Court
and special laws," according to the Civil Code, or "by evidence
or proof in his favor that the defendant is her father,"
according to the Family Code.
Such evidence may consist of his baptismal certificate, a
judicial admission, a family Bible in which his name has been
entered, common reputation respecting his pedigree, admission
by silence, the testimonies of witnesses, and other kinds of proof
admissible under Rule 130 of the Rules of Court.
3.

Fernandez vs. Court of Appeals [GRN 108366 February

16, 1994.*]
Petitioners cannot rely on the photographs showing the
presence of A in the baptism of B. These photographs are far from
proofs that A is the father of B.
The pictures taken in the house of B, showing A showering
affection to B fall short of the evidence required to prove paternity.

Code Commission's stand to liberalize the rule on the

investigation of the paternity of illegitimate children.
Articles 276, 277, 278, 279 and 280 of the CC were
repealed by the FC, which now allows the establishment of
illegitimate filiation in the same way and on the same
evidence as legitimate children (Art. 175).
5.

Trinidad vs. Court of Appeals [GRN 118904 April 20,

1998.]
Facts: A submitted in evidence a certification that records relative
to his birth were either destroyed during the last world war or
burned when the old town hall was razed to the ground on June
17, 1956. To prove his filiation, he presented in evidence 2 family
pictures, his baptismal certificate and Gerardo's testimony.
Issue: In the absence of a birth certificate, how may filiation be
proven?
Ruling: Other evidence allowed under the ROC may be used.
The pictures were taken before the case was instituted.
Although they do not directly prove As filiation to Inocentes, they
show that A was accepted by the private respondents as
Inocentes' legitimate son ante litem motam.
Although a baptismal certificate is indeed not a conclusive
proof of filiation, it is one of "the other means allowed under the
Rules of Court and special laws" to show pedigree.
Furthermore, A consistently used Inocentes' surname
(Trinidad) without objection from private respondents - a
presumptive proof of his status as Inocentes' legitimate child.
6.

De Asis vs. Court of Appeals [GRN 127578 February 15,

1999]
Facts: A filed a manifestation to the effect that she is withdrawing
the action for support against B, stating that B had already
denied paternity over As child. The said withdrawal was
conditioned on the withdrawal by B of the latters counter-claim in
the case. The case was dismissed.
B, when sued again for support, raised interposed res

The baptismal certificate of B, naming A as his father, has

scant evidentiary value. There is no showing that A participated in
its preparation.

judicata.

The certificate of live birth of B, identifying A as his father, is

not also competent evidence on the issue of paternity. Again, the
records do not show that A had a hand in the preparation of said
certificate.

The right to receive support can neither be renounced

nor transmitted to a third person. Neither can it be a subject of
compromise.

4.

Rodriguez vs. Court of Appeals [GRN 85723 June 19,

1995]
Facts: In a proceeding for compulsory recognition, the putative
father contended that the mother should not be allowed to reveal
the name of the childs father because such revelation was
prohibited by Article 280 of the CC.
Ruling: No similar prohibition found in Article 280 of the CC
has been replicated in the present FC. This undoubtedly
discloses the intention of the legislative authority to uphold the

Ruling: The defense is untenable.

The agreement entered into between the A and B for

the dismissal of the complaint for maintenance and support
conditioned upon the dismissal of the counterclaim is in the nature
of a compromise which cannot be countenanced. It violates the
prohibition against any compromise of the right to support.
It is true that in order to claim support, filiation and/or
paternity must first be shown between the claimant and the
parent. However, paternity and filiation or the lack of the same
is a relationship that must be judicially established and it is

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PERSONS REVIEWER
Notes, Cases, Annotations
for the court to declare its existence or absence. It cannot be
left to the will or agreement of the parties.
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;

Action to Claim 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.

1.

(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; and
(3) To be entitled to the legitimate and other successional rights
granted to them by the Civil Code.

Distinction
Action to Claim Legitimacy/for
Declaration of Filiation

Action to Impugn Legitimacy

Action to Establish Illegitimacy

(Articles 166, 168-171)

(Articles 172-173)

Who has the right to bring action

General Rule: Child
General Rule: Father
Exception: Heirs of the child

Exception: Heirs of the father

Prescriptive period
Child imprescriptible during his
1-3 years depending on the
lifetime
circumstances (see Notes under
Art. 171)
Heirs of the child 5 years
Effect of death
Child can bring the action even
Father can bring the action even
after the death of the putative
after the death of the child so long
parent.
as prescription has not yet set in.

2.

A childs right to claim legitimacy is transmitted to his heirs if

a. The child dies during minority

b. The child dies during a state of insanity(no matter what
age)
c. The child dies after he has commenced the action.

3.

Marquino vs. IAC [GRN 72078 June 27, 1994.]

The death of the putative parent while the case against
him for recognition of his alleged child is pending will not
extinguish the action but the same can be continued with the
heirs substituted for said deceased parents because:
a)

the law does not require that the case be brought and
decided while the putative parent is alive;

b)

that would be adding another requisite for the action which

is not sanctioned by the law or jurisprudence;

c)

it would be unfair to the plaintiff-child to have his action for

recognition depend on the speed of the Court in disposing of
the case and on a fortuitous event. This is because if the
court takes, let us say, 10 years to decide the ease, the
chances that the defendant parent would survive the case is
very much less, especially if he was already of advanced
age it the time the action is brought;

d)

there are no compelling reasons not to allow substitution of

the deceased parent with his heirs, for with the death of the
defendant parent, the effects of recognition will practically be
limited to successional rights.

Chapter 3. Illegitimate Children

Art. 175. Illegitimate children may establish their illegitimate
filiation in the same way and on the same evidence as legitimate children.
The action must 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 be brought during the lifetime of
the alleged parent.

1.

Distinction
Action to Claim Legitimacy
(Articles 172-173)

Action to Establish Illegitimacy

(Art. 175)

Who has the right to bring action

General Rule: Child
Exception: Heirs of the child
Prescriptive period
Child imprescriptible during his
General Rule: The same periods
lifetime
under Art. 173 (if using primary
evidence).
Heirs of the child 5 years
Exception: When the action is
based on Art. 172, par. 2, i.e. the
evidence available is merely
secondary. In this case, the action
can only be brought during the
lifetime of the putative parent.
Effect of death of putative parent
Child can bring the action even
If the action is based on Art. 172,
after the death of the putative
par. 2, the death of the putative
parent.
parent bars the child from
establishing his filiation.

Article 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. However, illegitimate children may
use the surname of their father if their filiation has been expressly
recognized by the father through the record of birth appearing in the civil
register, or when an admission in a public document or private handwritten
instrument is made by the father. Provided, the father has the right to
institute an action before the regular courts to prove non-filiation during his
lifetime. The legitime of each illegitimate child shall consist of one-half of
the legitime of a legitimate child.

1.

An illegitimate child has the right to

a. Use the surname of mother
b. Use the surname of father IF filiation has been
expressly recognized

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PERSONS REVIEWER
Notes, Cases, Annotations

c.
2.
3.

i. By the father thru the record of birth, or

ii. In an admission in a public document or private
handwritten instrument made by the father23
Succeed (gets share of a legitimate child).

The father has the right to institute an action before the

regular courts to prove non-filiation during his lifetime.
Iron Bar Rule An illegitimate child has no right to inherit
thru intestacy from the legitimate children and relatives of
his father/mother, nor shall such children and relatives
inherit from the illegitimate child.
Chapter 4. Legitimated Children

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.
Art. 178. Legitimation shall take place by a subsequent valid
marriage between parents. The annulment of a voidable marriage shall
not affect the legitimation.

1.

2.

3.

Legitimation
It is the conferment of the status of legitimacy to
children as a result of a subsequent valid marriage
between their parents.
This applies to those children born outside of wedlock
and hence, should have been considered illegitimate.
This takes places by operation of law and without
judicial approval.
The subsequent annulment of the marriage does not
change the legitimate status of the child.
Minimum requirement at the time of the childs conception,
his/her parents were not disqualified by any impediment to
marry each other
Children of minor couples cannot be legitimated since, nonage is a legal impediment.

Art. 179. Legitimated children shall enjoy the same rights as

legitimate children.

3.

Some grounds
a. Subsequent marriage is void
b. Child allegedly legitimated is not a natural child
c. Child is not really the child of the alleged parents

4.

Prescriptive period 5 years from the time the right of action

accrues
Support

Art. 194. Support compromises everything indispensable for

sustenance, dwelling, clothing, medical attendance, education and
transportation, in keeping with the financial capacity of the family.
The education of the person entitled to be supported referred to in
the preceding paragraph shall include his schooling or training for some
profession, trade or vocation, even beyond the age of majority.
Transportation shall include expenses in going to and from school, or to
and from place of work.

Support comprises everything indispensable for

sustenance, dwelling, clothing, medical attendance, education,
and transportation, in keeping with the financial capacity of the
family.
3 Kinds of Support
1. Legal that which is required to be given by law also
known as family support.
2. Judicial that which is required to be given by court
order whether pendente lite or in a final judgment.
3. Voluntary or Conventional by agreement. An
example of conventional support is as follow. X donates land to Y.
However X imposes a mode Y has to support Xs mother.

Characteristics of Support
1. Personal
2. Intransmissible
3. Not subject to waiver or compensation with regard to
future support (support in arrears can be waived).
4. Exempt from attachment or execution (Article 205)
5. Reciprocal on the part of those who are by law bound
to support each other (Article 195)
6. Variable (Articles 201 and 202)

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.

1.

Even if a child dies before the marriage, legitimation shall

benefit the childs descendants, who may benefit by
inheriting thru the right of representation.

2.

The heirs (legal or testate) may impugn the legitimation.

23

Compare this with proof of filiation to establish legitimacy

under Art. 172. In the latter, the written instrument is
required to be signed by the father.

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 full or half-blood

The spouses The obligation of the spouses to

support one another arises from the fact of marriage and is
imposed by law in obligating them to render mutual help and
support. Consequently, upon the annulment of a marriage, the
obligation to support ceases.

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Adultery is a valid defense against the wifes claim for

support. Mere allegation of adultery, however, is not enough to
bar the wife from support pendente lite. It must be proved by
competent evidence.

However, if both husband and wife commit

concubinage and adultery, they are in pari delicto and as such
they are deemed to have acted both in good faith. In such case,
the wife can lawfully demand support from the husband
(Almacen v. Baltazar, 103 P 1147).

Legitimate brothers and sisters The obligation of

brothers and sisters to mutually support each other is subsidiary
and shall arise only when there are no descendants or
ascendants capable of granting the support needed. The support
is further subject to the rules of priority of preference under Article
199.

Uncles and aunts do not have the duty to support their

nephews or nieces whether legitimate or illegitimate.
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.
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 vs. CA [61 SCRA 440] - Adultery is a good

defense against a petition for support. A petition in bad faith, such
as that filed by one who is himself or herself guilty of an act which
constitutes the ground for legal separation, can't be considered as
within the intendment of the law granting separate support. Under
Art. 303, the obligation to give support shall cease when the
recipient, be he a forced heir or not, has committed some act
which gives rise to disinheritance; and under Art. 291, one of the
causes for disinheriting a spouse is when the spouse has given
cause for legal separation. The right to separate support or
maintenance, even from the conjugal partnership property
presupposes the existence of a justifiable cause for the spouse
claiming such right to live separately.

Reyes vs. Ines-Luciano [88 SCRA 803] - While it is

true that the adultery of the wife is a defense in an action for
support, the alleged adultery must be established by competent
evidence. Mere allegation that the wife has committed adultery
will not bar her from the right to receive support pendente lite.

During the hearing of the application for support pendente lite,

adultery must be properly proved to defeat the action for support.
(Note: But if both spouses are guilty of infidelity or if there has
been consent or condonation of the acts constituting infidelity, the
right to support remains.)
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; and
(4) The brothers and sisters.

Article 199 is important because it establishes the

order of preference for the givers of support. When a relative
needs support, there are many relatives one can go after. That
relative in need cannot choose but must follow the order
established in this Article 199.

If a parent needs support from his children, that parent

may choose any of the children. All of the children are solidarily
liable.

While the spouse is the number one in the order of

priority, there is an exception when he or she concurs with a child
subject of parental authority, in which case the latter is preferred
(Art. 200(3)).
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.

Article 200 establishes the order of preference for

recipients. When several relatives come to a particular relative for
support, the relative who will give support must follow Article 200.

If the relative who will give support has enough, he

must give all those enumerated in Article 199. If the relative does
not have enough, then the hierarchy enumerated in Article 199
must be followed.

A minor who is an illegitimate child asks support from

his father. This illegitimate child will not be preferred over the
spouse of the father. Those who will be preferred over the
spouse of the father are those children who are subject to the
fathers parental authority. In this case, since the child is
illegitimate, the father has no parental authority. The illegitimate
child will be behind legitimate children and the spouse of his
parent. Illegitimate children are in Article 199 (2) since there is no
distinction between legitimate and illegitimate.

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Art. 201. The amount of support, in the cases referred to in

Articles 195 and 196, shall be in proportion to the resources or means of
the giver and to the necessities of the recipient.
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.

Support shall always be in proportion to the means of

the giver and the necessities of the recipient.

There is no res judicata as to the amount of support to

be given since support is variable.

The amount of support to be awarded to an

acknowledged natural child must not exceed that which a
legitimate child receives; for I could not have been the intention of
the law to grant to an acknowledged natural child a right better
than that of a legitimate child, otherwise that would be in effect
giving a premium to illegitimacy (Diaz vs. Celdran).
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
extrajudicial demand.
Support pendente lite may be claimed in accordance with the
Rules of Court.
Payment shall be made within the first five days of each
corresponding month or when the recipient dies, his heirs shall not be
obliged to return what he has received in advance.

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. But X only calls his father on 1 April 1996. On 1 June
1996, he files a suit against the father for support. The Court
orders support to be given. 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 (or 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.

Support in arrears being an ordinary civil action, may

be renounced; however, the right to receive support may not be
renounced

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.

The person obliged to render support may fulfill his

obligation in 2 ways at his option:
o
Paying the amount fixed or
o
Receiving and maintaining in the family
dwelling the person who has a right to receive
support

This second option cannot be availed of when there is

a moral or legal obstacle. For example, a husband in supporting
his wife, cannot choose the second option if he had been
maltreating her (Goitia vs. Campos Rueda).
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
on 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.

To recover the support given, it must be alleged and

proved, first, that support has been given to a dependent of one
bound to give support but who failed to do so, second, that the
support was supplied by a stranger, and third, that the support
was given without the knowledge of the person charged with the
duty (Ramirez v. Redfern, 49 P 849).
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
particularly apply when the father or mother of a child under the age of
majority unjustly refuses to support or fails to give support to the child
when urgently needed.

In Article 206, the giving of support by a stranger is

without the knowledge of the obligor. In this Article, it
may be with or without the knowledge of the obligor
with the difference that there is refusal on the part of
the obligor to give support when support is 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.
Furthermore, contractual support shall be subject to adjustment
whenever modification is necessary due to changes of circumstances
manifestly beyond the contemplation of the parties.

General Rule: the right to receive support as well as

any money or property obtained as such support shall not be
levied upon on attachment or execution.

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Exception: Article 206.

No adjustment in support given by will the

adjustment does not apply to the support given by will. Whatever
is received is considered an advance deductible from the ultimate
successional share of the obligee.

Related provisions under the ROC - RULE 61:

SUPPORT PENDENTE LITE

PARENTAL AUTHORITY

Parental authority comes from patria potestas which

means the fathers power. The woman was always dependent on
a male figure whether it be her husband, her father or her son.

In Roman Law, patria potestas extended even to life

and death. This power was granted to the father in order to keep
his family in check. Now, the present concept of parental
authority is no longer focused on the power aspect. Rather, the
focus of parental authority is the obligational aspect. Parental
authority is given to the parents over their children in order for the
children to be reared properly. The focus is on the child and the
childs welfare.
Art. 209. Pursuant to the natural right and duty of parents over the
person and property of their unemancipated children, parental authority
and responsibility shall include the caring for and rearing them for civic
consciousness and efficiency and the development of their moral, mental
and physical character and well-being.

Concept of parental authority and responsibility

Parental authority or patria potestas is the sum total of the rights
of parents over the person and property of their children. Parental
responsibility refers to the mass of obligations which parents have
in relation to the person and property of their children.

When terminated parental authority terminates at the

time that the children shall have attained the age of majority.

In the exercise of parental authority, there is no

distinction between legitimate and illegitimate children.

Related Article in the Constitution The natural and

primary right and duty of parents in the rearing of the youth for
civic efficiency and the development of moral character shall
receive the support of the Government. (Art. 11, Sec. 12, 1987
Constitution)

Criminal liability of parents; indifference of parents

The penalty of arresto mayor and a fine not exceeding P500.00
shall be imposed upon parents who shall neglect their children by
not giving them the education which their station in life requires
and financial condition permits (Art. 277(2), RPC).

The parents also incur criminal liability for acts

enumerated in Art. 59 of PD 603 such as abandoning the child to

lose its civil status; abandoning the child to another person for
valuable consideration; abating truancy of the child from the
school he is enrolled in; depriving a child of love, care and
affection he needs.

The parents may also be admonished for

unreasonable negligence in the performance of their duties
toward their children (Art. 61, PD 603).

Medina vs. Makabili [27 SCRA 502] - While the law

recognizes the right of a parent to the custody of his/her child,
courts must not lose sight of the basic principle that in all question
on the care, custody, education and property of the children, the
latter's welfare shall be paramount, and that for compelling
reasons, even a child under seven may be ordered separated
from the mother.
Patria potestas has been transformed from "jus vitae 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 parents to rear and
care for their children is now supreme. The right of parents to the
company and custody of their children is but ancillary to the
proper discharge of parental duties to provide the children with
adequate support, education, moral, intellectual and civic training
and development. The best interest of the minor can override the
right of parents to the custody of their children if the parent/s
is/are proved to be remiss in these sacred duties.

Unson vs. Navarro [101 SCRA 183] - Mother of child

is having an affair with brother-in-law. With this premise in view, it
is in the best interest of the child to be freed from the obviously
unwholesome, not to say immoral influence that the mother has
placed herself. The situation might affect the moral and social
outlook of the child who is in her formative years and most
impressionable stage in her life.
Art. 210. Parental authority and responsibility may not be
renounced or transferred except in the cases authorized by law.

General Rule: Parental authority and responsibility

cannot be renounced or transferred.

Exceptions:
(a) guardianship (Rules 92-97, New Rules of Court);
(b) legal adoption (Art. 189(2), FC);
(c) final order or judgment of a competent court;
(d) substitute parental authority (Art. 216, FC);
(e) separation of the parents (Art. 213, FC);
(f) death, absence, or unsuitability of the parents (Art. 214,

FC);
(g) entrusting of disadvantaged children to heads of
childrens homes, orphanages and similar institutions duly
accredited (Art. 217, FC);
(h) surrender of the child by its parents done in writing to
any public institution or any benevolent or charitable institution
pursuant to Act. No. 3094.

Sagala-Eslao vs. CA and Cordero-Ouye (1997)

The law allows a waiver of parental authority only in cases of
adoption, guardianship, and surrender to a childrens home or

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orphan institution. When a parent entrusts the custody of a minor
to another, such as a relative, as in this case, or friend, or
godfather, even in a document, what is given is merely temporary
custody and it does not constitute abandonment or renunciation of
parental authority.

Santos vs. 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 development, as well as the
cultivation of their intellect and the education of their hearts and
senses. As regards 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.
Parental authority and responsibility are inalienable and
may not be transferred or renounced except in cases authorized
by law.
The right attached to parental authority, being purely
personal, the law allows a waiver of parental authority only in
cases of adoption, guardianship and surrender to a children's
home or an orphan institution. When a parent entrusts the
custody of a minor to another, such as a friend or godfather, even
in a document, what is given is merely temporary custody and it
does not constitute renunciation of parental authority. Even if a
definite renunciation is manifested, the law still disallows the
same.
The father and mother, being the natural guardians of
unemancipated children, are duty-bound and entitled to keep
them in their custody and company. xxx Only in cases of the
parent's death, absence or unsuitability may substitute parental
authority be exercised by the surviving grandparent.
Art. 211. The father and the mother shall jointly exercise parental
authority over the persons of their common children. In case of
disagreement, the father's decision shall prevail, unless there is a judicial
order to the contrary.
Children shall always observe respect and reverence towards their
parents and are obliged to obey them as long as the children are under
parental authority.

Parental authority is joint. In case of disagreement, the

husbands decision prevails. The father is given the preference
because he is generally regarded as the head of the family and
where urgent action is needed, immediate action must be made.
However, should his decision be oppressive, arbitrary or unlawful,
the wife can go to court to modify or reverse the same.

unless the court appoints another person to be the guardian of the person
or property of the children.
Art. 213. In case of separation of the parents, parental authority
shall be exercised by the parent 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 chosen is unfit.

Article 213, 2nd par. provides that no child under 7

years of age shall be separated from the mother, unless the court
finds compelling reasons to order otherwise.

In earlier cases, the mother was almost always the

custodian of a child who is below 7 years. There is a trend of
liberalizing this. Courts will always look at the best interest of the
child as the criterion.

Compelling reasons - A child below 7 years may be

separated from her mother if there are compelling reasons such
as immorality, neglect and abandonment, drug addiction, and
non-employment (Cervantes v. Fajardo, 169 S 575; Medina v.
Macabali, 27 S 502). Additionally, habitual drunkenness, drug
addiction, maltreatment of the child, insanity and being sick with a
communicable disease are also considered compelling reasons to
remove a mothers custody over a child below 7 years (Perez v.
CA, 255 S 661).

Paramount consideration - The paramount question in

Article 213 of the FC addressed to the court is what is best for the
childs happiness and welfare (Espiritu v. CA, 242 S 363).

Hontiveros vs. 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)
Art.213 (FC): In case of separation of the parents, parental
authority shall be exercised by the parent 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 chosen is unfit.

Espiritu vs. CA [242 SCRA 362] - Whether a child is

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 consideration.

For illegitimate children, parental authority is not joint.

It is with the mother.

Art. 214. In case of death, absence or unsuitability of the parents,

substitute parental authority shall be exercised by the surviving
grandparent. In case several survive, the one designated by the court,
taking into account the same consideration mentioned in the preceding
article, shall exercise the authority.

Art. 212. In case of absence or death of either parent, the parent

present shall continue exercising parental authority. The remarriage of the
surviving parent shall not affect the parental authority over the children,

Art. 215. No descendant shall be compelled, in a criminal case, to

testify against his parents and grandparents, except when such testimony
is indispensable in a crime against the descendant or by one parent
against the other.

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Disqualification of descendants to testify This Article

applies only in criminal cases. However, voluntary testimony is not
prohibited whether against or in favor of the parents and
grandparents. What is prohibited is to compel a descendant to
testify against his parents and grandparents in a criminal case
(this disqualification to testify is also found in Rule 130, Sec. 25,
ROC).

Note: The criminal case need not be filed by the

descendant or the parent. It may be filed by a 3rd person.

SUBSTITUTE AND SPECIAL PARENTAL AUTHORITY

Art. 216. In default of parents or a judicially appointed guardian,
the following person shall exercise substitute parental authority over the
child in the order indicated:
(1) The surviving grandparent, as provided in Art. 214;
(2) The oldest brother or sister, over twenty-one years of age,
unless unfit or disqualified; and
(3) The child's actual custodian, over twenty-one years of age,
unless unfit or disqualified.
Whenever the appointment or a judicial guardian over the property
of the child becomes necessary, the same order of preference shall be
observed.

Distinction

Substitute Parental Authority

It is exercised in case of death,
absence, or if unsuitability of
parents. Hence, it is not exercised
by the parents of parental authority
over the minor children

Special Parental Authority

It is exercised concurrently with the
parental authority of the parents
and rest on the theory that while
the child is in the custody of the
person exercising special parental
authority, the parents temporarily
relinquish parental authority over
the child to the latter

An appointed guardian cannot delegate his duties to a

stranger. He had the duty to take care and to attend personally
the management of the property of said ward and to safeguard
the funds and properties of said ward under his control (Zubeldia,
et. al vs. Gutierez Hermanos, 70 P 419).

The guardianship ceases when the ward reaches the

age of majority of when incapacity has ceased.

The enumeration is exclusive. Any one not mentioned

in this Article is excluded. Inclusio unius es exclusion alterius.

In default of the parents or a judicial guardian,

substitute parental authority over the child shall be exercised in
the order indicated:
1.

The surviving grandparent

If there are several grandparents, then the
guardian shall be the one designated by the court pursuant to
Articles 213 and 214
2.
The oldest brother or sister, over 21 years old, unless
unfit or disqualified

3.
The childs actual custodian, over 21 years old, unless
unfit or disqualified. This custodian need not be a relative of the
child, but he or she must have actual custody.
Art. 217. In case of foundlings, abandoned neglected or abused
children and other children similarly situated, parental authority shall be
entrusted in summary judicial proceedings to heads of children's homes,
orphanages and similar institutions duly accredited by the proper
government agency.
Art. 218. The school, its administrators and teachers, or the
individual, entity or institution engaged in child are shall have special
parental authority and responsibility over the minor child while under their
supervision, instruction or custody.
Authority and responsibility shall apply to all authorized activities
whether inside or outside the premises of the school, entity or institution.

Special parental authority and responsibility - This

special parental authority should be distinguished from substitute
parental authority under Art. 216 of the FC exercised by the
surviving grandparent, oldest brother or sister, and childs
custodian. Special parental authority can be concurrent with the
parental authority of the parents, while the child is in the custody
and care of those authorized to have special parental authority.

Substitute parental authority cannot be exercised

concurrently with the parents parents parental authority because
of obvious reasons, to wit:
(a) both parents are dead;
(b) both parents are absent;
(c) both parents are unsuitable.
As soon as the children had passed the minority age or as
soon as they have been officially removed from the school or
institution, the special parental authority and responsibility over
the minor children ceases.

Exconde vs. Capuno [101 P 843] A student Boy

Scout, attended a Rizal Day parade, and drove a jeep recklessly
resulting in the death of two passengers. Father was held
solidarily liable for damages. SC, in an obiter, exculpated the
school (not a party to the case) on the ground that it was not a
school of arts and trades. Justice JBL Reyes, with whom Padilla
concurred, dissented arguing that it was the school authorities
who should be held liable. Liability under this rule, he said, was
imposed on (1) teachers in general; and 2) heads of schools of
arts and trades in particular. The modifying clause "of
establishment of arts and trades should apply only to "heads" and
not to "teachers".

Mercado vs. CA [109 P 414] (elaborates on the

Exconde decision) A student cut a classmate with a razor blade.
Parents of victim sued the culprit's parents for damages. SC held
in an obiter again (school not a party again) that the school was
not liable; it's not an establishment of arts and trades. Custody
requirement had not been proved as this "contemplates a
situation where the student lives and boards with the teacher,
such that the control, direction and influence on the pupil
supersedes those of the parents.

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Palisoc vs. Brillantes [41 SCRA 548] (supersedes

obiter in Exconde and Mercado) A 16 year old student killed by
classmate with fist blows in the school laboratory. Although
wrongdoer was already of age and was not boarding with the
school, head and teacher were held solidarily liable with him. The
phrase "so long as (the students) remain in their custody" means
the protective and supervisory custody that the school and its
heads exercise over the pupils and students for as long as they
are at attendance in the school, including recess time. There is
nothing in the law that requires that for such liability to attach, the
pupil or student who commits the tortious act must live and board
in the school as erroneously held by the lower court, and the dicta
in Mercado (as well as in Exconde on which it relied) w/c must
now be deemed to have been set aside.

only the teacher and not the head of an academic school who
should be answerable for torts committed by their students. This
Court went on to say that in a school of arts and trades, it is only
the head of the school who can be held liable.

Note: (By JBL) Even students already of age were covered by the provision
since they were equally in the custody of the school and subject to its discipline.

Salvosa v. IAC [166 SCRA 274] - Under the

penultimate par. of Art. 2180, teachers or heads of establishments
of arts and trades are liable for "damages caused by their pupils
and students or apprentices, so long as they remain in their
custody." The rationale of such liability is that so long as the
student remains in the custody of a teacher, the latter "stands, to
a certain extent, in loco parentis (as to the student) and (is) called
upon to exercise reasonable supervision over the conduct of the
(student.)

Amadora vs. CA [160 SCRA 315] - Amadora's son

was shot to death by Daffon, a classmate at school auditorium.
The son was in school to submit physics project. The school
contends that the semester had already ended.
Held: It is immaterial whether the semester has already ended for
students were there for a legitimate purpose. He was still in the
custody of the school authorities. Even the mere savoring of the
company of his friends in the school premises is a legitimate
purpose which would also bring him in the custody of the school.
The school principal and dean are not liable because not
teachers-in-charge, but are merely exercising general authority,
not direct control and influence.
But even the teacher-in-charge is not liable because there is
no 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 happened cannot be
considered against him because he was not supposed or required
to report to school on that day. So who is liable here? It's probably
the dean of the boys. He had earlier confiscated an unlicensed
gun from one of the students and returned it to the latter w/o
taking disciplinary action or reporting the matter to higher
authorities. But while he was clearly negligent, it does not
necessarily link him to the shooting since it was not shown that
the gun was the one used to kill petitioner's son.
Who is really liable here? Nobody, since none of them was
found to have been charged with the custody of the offending
student, or has been remiss in the discharge of his duties. While
the court deeply sympathizes with the petitioners, the court
cannot extend material relief as a balm to their grief.

PASCO v. CFI [160 SCRA 784] - Art. 2180, NCC w/c

refers to liability of teachers or heads of establishments of arts
and trades for damages caused by students who are in their
custody, does not apply to the school or the university itself or to
educational institutions which are not schools of arts and trades.
The provision concerned speaks only of "teachers or heads."

Ylarde vs. Aquino [163 SCRA 697] - As regards the

principal, We hold that he cannot be made responsible for the
death of child Ylarde, he being the head of an academic school
and not a school of arts and trades. xxx Under Art. 2180, it is

Where the school is academic rather than technical or

vocational in nature, responsibility for the tort committed by the
student will attach to the teacher in charge of such student
following the first par. of the provision. This is the gen. rule. In the
case of establishments of arts and trades, it is the head thereof,
and only he, who shall be held liable as an exception to the gen.
rule. In other words, teachers in 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 head thereof who shall be answerable.

Likewise, "the phrase used in (Art. 2180)-- so long as the

(students) remain in their custody' means that the protective and
supervisory custody that the school and its heads and teachers
exercise over the pupils and students for as long as they are at
attendance in the school, including recess time.
Art. 219. Those given the authority and responsibility under the
preceding Article shall be principally and solidarily liable for damages
caused by the acts or omissions of the unemancipated minor. The
parents, judicial guardians or the persons exercising substitute parental
authority over said minor shall be subsidiarily liable.
The respective liabilities of those referred to in the preceding
paragraph shall not apply if it is proved that they exercised the proper
diligence required under the particular circumstances.
All other cases not covered by this and the preceding articles shall
be governed by the provisions of the Civil Code on quasi-delicts.

Articles 218 and 219 apply ONLY to minors since the

schools merely take the place of the parents.

1.
2.
3.
4.
5.

Rules:
Articles 218 and 219 are not limited to
schools of arts and trade, but are applicable to all schools.
Authority and responsibility apply to
activities inside and outside provided the activity is an
authorized one (i.e., field trip)
The liability of the school
administrators and the teacher is solidary and primary.
The liability of the parents or the
guardian is subsidiary.
Negligence
of
the
school
administrators and the teacher is presumed. The burden in
on the school administrator and the teacher to prove
diligence under Article 219.

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Notes, Cases, Annotations
6.

The scope of the liability extends only

to damage caused by the child in the course of an
authorized school activity.

1.

Rules regarding liability for injuries caused by students

If the student who caused the injury is
below 18, Articles 218 - 219 apply.
If the student who caused the injury is
above 18, Articles 218 - 219 do NOT apply. Article 2180 is
applicable.

2.

Article 2180 is applicable to both academic and nonacademic institutions.

1.
Academic institutions the liability
attaches to the teacher
2.
Non-academic institutions the
liability attaches to the head of the establishment (Amadora
vs. CA)

If a student is injured and the persons who caused the

injury were not students, Arts. 218, 219 of the Family Code and
Art. 2180 of the Civil Code are not applicable. The school is liable
in such a case based on the contract between the student and the
school. The school is supposed to provide the student adequate
protection (PSBA vs. CA).

EFFECT OF PARENTAL AUTHORITY UPON THE PERSONS

OF THE CHILDREN
Art. 220. The parents and those exercising parental authority shall
have with the respect to their unemancipated children on wards 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, self-discipline, self-reliance, industry and thrift,
stimulate their interest in civic affairs, and inspire in them compliance with
the duties of citizenship;
(4)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;
(5)To represent them in all matters affecting their interests;
(6)To demand from them respect and obedience;
(7) To impose discipline on them as may be required under the
circumstances; and
(8)To perform such other duties as are imposed by law upon
parents and guardians.

This enumeration is not exclusive.

Luna vs. IAC [137 SCRA 7] - The manifestation of the

child Shirley that she would kill herself or run away from home if

she should be taken away from the petitioners (grandparents) and

forced to live with her natural parents is a circumstance that would
make the execution of the judgment in the special proc.
inequitable, unfair, unjust, if not illegal. The threat may be proven
empty, but Shirley has a right to a wholesome family life that will
provide her with love, care and understanding, guidance and
counseling, and moral and material security. But what if the threat
is for real. Besides, in her letters to the members of the court,
Shirley depicted her biological parents as selfish and cruel and
who beat her often; and that they do not lover her. To return her to
the custody of the private respondents would be traumatic and
cause irreparable damage to the child.
Art. 221. Parents and other persons exercising parental authority
shall be civilly liable for the injuries and damages caused by the acts or
omissions of their unemancipated children living in their company and
under their parental authority subject to the appropriate defenses provided
by law.

Liability of parents for quasi-delicts and felonies

committed by their minor children is direct and primary and not
subsidiary (Libi v. IAC, 214 S 16). Potential adopters are not
liable for the tortuous acts of the child until they shall have actual
custody over the said child.

Defenses The acts or omissions of unemancipated

minors living in the company and under the parental authority of
the parents and the persons exercising parental authority
resulting n injuries and damages render the latter civilly liable (Art.
101, RPC) unless they can establish any of the ff. defenses: (a)
observance of the diligence of a good father of a family to prevent
damage, (b) the erring children do not live in their company, or (c)
are not under their parental authority (Art. 221, FC).

Tamargo vs. CA, (209 S 527)

Facts: A 10-yr old child subject of an adoption proceeding
accidentally shot a girl with an air rifle causing her death. At the
time of the accident the boy was still in the custody of the natural
parents although there was already a decree of adoption issued.
Issue: Who is liable for the damage caused by the boy, the
adopting parents or natural parents?
Held: The natural parents. Under the Civil Code, the basis of
parental liability for the torts of a minor child is the relationship
existing between the parents and the minor child living with them
and over whom, the law presumes, the parents exercise
supervision and control.
We do not believe that parental authority is properly
regarded as having been retroactively transferred to and vested in
the adopting parents at the time the air rifle shooting happened.
We do not consider that retroactive effect may be given to the
decree of adoption so as to impose a liability upon the adopting
parents accruing at a time when the adopting parents had no
actual or physical custody over the adopted child. Retroactive
effect may perhaps be given to the granting of the petition for
adoption where such is essential to permit the accrual of some
benefit or advantage in favor of the adopted child. In the instant
case, however, to hold that parental authority had been
retroactively lodged in the adopting parents so as to burden them
with liability for a tortuous act that they could not have foreseen

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Notes, Cases, Annotations
and which they could not have prevented (since they were at the
time in the US and had no physical custody over the child) would
be unfair and unconscionable.
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
requires.

This article simply means that even though the childs

parents are living, the courts may still appoint a guardian over the
childs property or guardian ad litem (pending litigation) when the
best interests of the said child so require.

Parental authority is provisionally vested with the

adopting parents during the period of trial custody of a child
subject of an adoption proceeding (Art. 35, PD 603; Tamayo v.
CA, 209 S 518).
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 the 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.
Where the market value of the property or the annual income of
the child exceeds P50,000, the parent concerned shall be required to
furnish a bond in such amount as the court may determine, but not less
than ten per centum (10%) of the value of the property or annual income,
to guarantee the performance of the obligations prescribed for general
guardians.
A verified petition for approval of the bond shall be filed in the
proper court of the place where the child resides, or, if the child resides in

a foreign country, in the proper court of the place where the property or
any part thereof is situated.
The petition shall be docketed as a summary special proceeding in
which all incidents and issues regarding the performance of the
obligations referred to in the second paragraph of this Article shall be
heard and resolved.
The ordinary rules on guardianship shall be merely suppletory
except when the child is under substitute parental authority, or the
guardian is a stranger, or a parent has remarried, in which case the
ordinary rules on guardianship shall apply.

Pineda v. CA [226 SCRA 754] - It is clear from Art. 225

that regardless of the value of the unemancipated common child's
property, the father and mother ipso jure become the legal
guardian of the child's property. However, if the market value of
the prop. or the annual income of the child exceeds P50,000, a
bond has to be posted by the parents concerned to guarantee the
performance of the obligations of a general guardian. It must,
however, be noted that the 2nd par. of Art. 225 speaks of the
market value of the property or the 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 the share of each of the minors in the proceeds of
the group policy in question is the minor's only property. W/o such
evidence, it would not be safe to conclude that, indeed, that is his
only property.
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 give in whole or in part shall not be charged to the child's legitime.

Parents may exercise parental authority over their

childs property.

1.
-

2 Kinds of Properties of Minors:

Adventitious (Article 226)
Adventitious property is earned or acquired by the
child through his work or industry or by onerous or
gratuitous title.
The child owns this property.
The child is also is the usufructuary as the child enjoys
the fruits unless the mode of transfer provides
otherwise. The fruits and income of adventitious
property must be applied primarily for the childs
support and secondarily for the familys collective
needs (Article 226, par. 2).
The property is administered by the parents since the
child has no capacity to act.

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2.
-

Profectitious (Article 227)

Profectitious property is owned by the parents.
However, this property is given to the child for him to
administer. For example, the parents may own a farm.
Their child is 17 years old. To teach him industry, the
parents tell the child to harvest and take care of the
farm.
The parents own this type of property.
The parents are the usufructuary. However, the child is
entitled to a monthly allowance which should be not
less than what the owner of the property would have
paid an administrator. The parents may give the entire
proceeds of the property to the child.
The property is administered by the child.

SUSPENSION OR TERMINATION OF PARENTAL AUTHORITY

Art. 228. Parental authority terminates permanently:
(1) Upon the death of the parents;
(2) Upon the death of the child; or
(3) Upon emancipation of the child.

Death of one parent does not terminate parental

authority. It is exercised by the surviving spouse (Art. 212).
Art. 229. Unless subsequently revived by a final judgment,
parental authority also terminates:
(1) Upon adoption of the child;
(2) Upon appointment of a general guardian;
(3) Upon judicial declaration of abandonment of the child in a case
filed for the purpose;
(4) Upon final judgment of a competent court divesting the party
concerned of parental authority; or
(5) Upon judicial declaration of absence or incapacity of the person
exercising parental authority.

The grounds enumerated in this Article are not

permanent, unlike in Art. 228. The parental authority may be
restored to the parents or persons originally exercising it.
Art. 230. Parental authority is suspended upon conviction of the
parent or the person exercising the same of a crime which carries with it
the penalty of civil interdiction. The authority is automatically reinstated
upon service of the penalty or upon pardon or amnesty of the offender.

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, or the right to manage his property and of the
right to dispose of such property by any act or any conveyance
inter vivos. Civil interdiction is an accessory penalty to death
penalty (Art. 40, RPC), reclusion perpetua and reclusion
temporal.

Art. 231. The court in an action filed for the purpose in a related
case may also suspend parental authority if the parent or the person
exercising the same:
(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) Subjects the child or allows him to be subjected to acts of
lasciviousness.
The grounds enumerated above are deemed to include cases
which have resulted from culpable negligence of the parent or the person
exercising parental authority.
If the degree of seriousness so warrants, or the welfare of the child
so demands, the court shall deprive the guilty party of parental authority or
adopt such other measures as may be proper under the circumstances.
The suspension or deprivation may be revoked and the parental
authority revived in a case filed for the purpose or in the same proceeding
if the court finds that the cause therefor has ceased and will not be
repeated.

Chua vs. Cabangbang [27 SCRA 792]

Facts: 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 lapse of a period of 5 long years, before
she brought action to recover custody. Her claim that she did not
take any step to recover her child bec. the Cabangbangs were
powerful and influential, does not deserve any modicum of
credence. xxx For 5 long yrs. and thereafter, she did not once
move to recover the child. She continuously shunned the natural
and legal obligations w/c she owed to the child; completely
withheld her presence, her love, her care, and the opportunity to
display maternal affection; and totally denied her support and
maintenance. Her silence and inaction have been prolonged to
such a point that her abandonment of the child and her total
relinquishment of parental claim over her, can and should be
inferred as a matter of law.
Art. 232. If the person exercising parental authority has subjected
the child or allowed him to be subjected to sexual abuse, such person
shall be permanently deprived by the court of such authority.

This article provided no room for revival of the lost

parental authority unlike in Articles 229, 230 and 231. The
deprivation is meant to be permanent because of the nature and
gravity of the act. The other three grounds for permanent
termination of parental authority are found in Article 228.
Art. 233. The person exercising substitute parental authority shall
have the same authority over the person of the child as the parents.

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In no case shall the school administrator, teacher of individual
engaged in child care exercising special parental authority inflict corporal
punishment upon the child.

1.
a.

Kinds of Termination and Suspension

Irreversible Termination
Death of the parents (Article 228 (1)) - Parental
authority is terminated as far as the dead parent is
concerned.

b.

Death of the child (Article 228 (2))

Emancipation (Article 228 (3)) - This is the
most common.
Court order under Article 232 - If the parent
or parents exercising parental authority have
subjected the child or allowed him or her to be
subjected to sexual abuse, the parent or parents shall
be deprived permanently by the court of such
parental authority.

i.
ii.

2.
a.
b.

3.
a.
b.

Reversible
Termination
(the
termination may or may not be permanent)
Upon adoption - there is a possibility that the adoption
may be rescinded.
Upon appointment of a guardian - guardianship may
be lifted if such is no longer necessary
i.
Judicial declaration of abandonment
ii.
Final judgment of a competent court under Article
231; grounds.
Treats the child with excessive
harshness or cruelty;
Gives the child corrupting orders,
counsel or example;
Compels the child to beg; or
Subjects the child or allows him or her
to be subjected to acts of lasciviousness
iii.
Judicial declaration of absence or incapacity of the
person
Suspension of Parental Authority
Parent is convicted of a crime which carries with it the
accessory penalty of civil interdiction
Court order under Article 231; grounds.
Treats the child with excessive
harshness or cruelty;
Gives the child corrupting orders,
counsel or example;
Compels the child to beg; or
Subjects the child or allows him or her
to be subjected to acts of lasciviousness

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.

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.

Emancipation - nothing more than freedom from

paternal authority both over the person and property of the child
emancipated. It makes the child not only qualified but also
responsible for all acts of civil life, save the exceptions
established by existing laws in special cases.

No more emancipation by marriage and recorded

agreement Both the New Civil Code (Art. 397) and the Family
Code (Art. 234) provided for emancipation of a minor by marriage
and recorded agreement (i.e., voluntary concession of the
parents). However, under the amendatory law, there is only one
means of emancipation now. It is through the attainment of the
age of majority now reduced to 18 years.
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 mentioned in the second and third paragraphs of Article 2180
of the Civil Code.

Requisites of Marriage - A marriage of a person bet. 18

and 21 years will still require parental consent, w/o w/c the
marriage will be voidable (Art. 45(1). This is an anomalous
situation. An emancipated person, who can enter into any
contract and qualified for all acts of civil life, is still required to
have parental consent for marriage. The provisions on marriage
should have been adjusted.

Quasi-delicts of Children - Art. 2180. xxx The father

and, in case of his death or incapacity, the mother, are
responsible for the damages caused by the minor children who
live in their company. Guardians are liable for damages caused by
the minors or incapacitated persons who are under their authority
and live in their company.

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
without authority.

Under the present law, there are 2 classifications of

emancipation:
o
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.
o
Imperfect Emancipation. An 18 yr-old,
although emancipated needs parental consent for
marriage. Parents or guardians continue to be liable

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under Art. 2180 until he reaches the age of 21 yrs. old.
(Balane)

such consent is withheld or cannot be obtained, a verified petition may be

filed in court alleging the foregoing facts.

Baliwag Transit vs. CA [169 S 849]

Facts: On 4/10/85 a complaint for damages arising from breach of
contract of carriage was filed by private respondents 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
complaint and the 3rd party complaint on the ground of release.
The CA set aside the order of RTC.

The petition shall attach the proposed deed, if any, embodying the
transaction, and, if none, shall describe in detail the said transaction 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.

Issue: The legal effect of the Release of Claims executed by

George during the pendency of the case.
Held: We hold that since the suit is one for breach of contract of
carriage, the Release of Claims executed by him, as the injured
party, discharging Fortune Insurance and Baliwag from any and
all liability is valid. He was then of legal age, a graduating student
of Agricultural Engineering, and had the capacity to do acts w/
legal effect (Art. 37 in relation to Art. 402.) Thus, he could sue and
be sued even w/o the assistance of his parents.
Art. 237. (Repealed by RA 6809)

SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW

Scope of Application
Art. 238. Until modified by the Supreme Court, the procedural
rules provided for in this Title shall apply as regards separation in fact
between husband and wife, abandonment by one of the other, and
incidents involving parental authority.

Jurisdiction over summary judicial proceedings

Jurisdiction over all summary judicial proceedings under the FC
are now vested in the Family Courts designated by the SC from
among the existing Branches of the Regional Trial Court (sec.
5(f), RA 8369). In areas where there are no Family Courts, the
Regional Trial Court in the area shall hear and adjudicate the said
summary cases.
Separation in Fact Between Husband and Wife
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

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. 243. A preliminary conference shall be conducted by the judge
personally without the parties being assisted by counsel. After the initial
conference, if the court deems it useful, the parties may be assisted by
counsel at the succeeding conferences and hearings.
Art. 244. In case of non-appearance of the spouse whose consent
is sought, the court shall inquire into the reasons for his failure to appear,
and shall require such appearance, if possible.
Art. 245. If, despite all efforts, the attendance of the nonconsenting spouse is not secured, the court may 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 nonappearing spouse.
Art. 246. If the petition is not resolved at the initial conference,
said petition shall be decided in a summary hearing on the basis of
affidavits, documentary evidence or oral testimonies at the sound
discretion of the court. If testimony is needed, the court shall specify the
witnesses to be heard and the subject-matter of their testimonies,
directing the parties to present said witnesses.
Art. 247. The judgment of the court shall be immediately final and
executory.
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
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.

The following petitions contemplated under the article

must be verified under this Article
(1) Petition with proper court for the issuance of an order for
disciplinary measures against an erring child (Art. 223);
(2) Petition to set aside or modify the fathers decision in
case of disagreement on the parents joint exercise of legal

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guardianship over the property of their common unemancipated
child (Art. 225);
(3) Petition for approval of the agreement between an
orphaned minor at least eighteen years of age and the person
exercising parental authority over him under Art. 235 (FC) is no
longer availing with repeal of said Article.

Concept of verification A pleading is verified only by

an affidavit stating that the person verifying has read the pleading
and that the allegations thereof are true and correct of his own
knowledge and belief. Verifications based on information and
belief or upon knowledge, information and belief shall be
deemed insufficient and shall be treated as unsigned pleading.
(Sec. 4, Rule 7, ROC).
Art. 250. Such petitions shall be verified and 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.

Summary judicial proceedings provided under the

Family Code:
1. Declaration of presumptive death
2. Partition of spouses property
3. Disagreement in fixing domicile
4. Disagreement in the exercise of profession
5. Disagreement in the administration of community
property
6. Disagreement in the administration of conjugal
property
7. Parental authority over foundlings
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.

FINAL PROVISIONS
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)

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