Art. 35.

The following marriages shall be void

from the beginning:

registries of property; otherwise, the same shall not

affect third persons.

(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;

Hence, Art. 53 provides a second marriage is void if it

fails to comply with Art. 52 which mandates:
(a) The recording in the appropriate civil
registry, the annulment judgment of
declaration of nullity of marriage, and;
(b) The recording of the partition, distribution
of properties of the presumptive legitimes
of the child.

Gen. Rule: Authority of solemnizing officer is a formal

requisite [Art. 3 (1)] the absence of which will render
the marriage void ab initio [Art. 4 (1)].
Exception: If either or both parties believe in good
faith that the solemnizing officer had the legal
authority to do so.

Q. What are the VOID MARRIAGES expressly provided

by law in the Family Code?

Belief in good faith of one of the party is

enough for Art. 35 (2) to apply
marriage in good faith - present in Sec. 27 of
Act. No. 3613; removed in the Civil Code,
returned now in Art. 35 (2)

(3) Those solemnized without license,

except those covered in the preceding Chapter;

1.

Art. 4, par. 1 making the absence of the

essential requisites in Art. 2, and formal
requisites in Art. 3 of a marriage, void.

2.

Art. 35, pars. 1-6

3.

Art. 36 Psychological Incapacity

4.

Art. 37 Incestuous marriages

5.

(5) Those contracted through mistake of

one contracting party as to the identity of the
other; and

Art. 38 void marriages by reason of public

policy

6.

Q. What is the MISTAKE OF IDENTITY

contemplated by Art. 35 (5) which would make the
marriage void ab initio?

Art. 40 subsequent marriage without

having a previously null and void marriage
judicially declared as such

7.

Art. 41 Bigamous marriage

8.

Art. 44 bad faith spouses of the subsequent

marriage who knew that the original, absent
spouse was alive when they entered into the
2nd marriage

9.

Art. 53 failure to record the judicial

annulment or declaration of absolute nullity of
marriage, partition, distribution of spouses
properties and delivery of presumptive
legitimes of their children in the civil
registry and the registry of properties
under Art. 52.

A. Mistake of Identity refers to mistake with

respect to the actual physical identity of the other
contracting party. It does NOT cover mistake merely as
to the name, character, attributes, age, religion, social
standing, pedigree, pecuniary means, temperament,
condition in life, chastity or righteous virtue, etc.
This means that there is substitution by
another party, who is not the same person that the
other party intends to marry or actually knew before
the marriage.
Q. Why is this marriage void?
A. In this case, there was really NO CONSENT
freely given by the party who got married {Art. 3 (2)},
thus, the marriage is void ab initio (Art. 4, par. 1)
(6) Those subsequent marriages that are
void under Art. 53
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. 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 childrens presumptive legitimes shall
be recorded in the appropriate civil registry and

Discussion of Art. 35
Proper proceedings in the regular courts
This means that a partition of for nullity of a void
marriage can no longer proceed once a party (husband
or wife) to the case dies while the case is on-going. In
effect, or by implication, a petition for nullity cannot be
filed if only one of the spouses is alive
Q.

Will the good faith or bad faith of the parties to

the marriage affect the determination of
whether or not the marriage is null and void

Q.

Will the courts declare the nullity of marriage if

the party who files the petition is the one guilty
or in bad faith

A.

No. If a marriage is void, the good faith or bad

faith of the parties is immaterial.

The doctrine that courts will not grant relief to

someone who comes to court with unclean hands is a
doctrine of equity. Equity finds no room for application
where there is a law. (RP v Dayot, GR No. 175581,
March 28, 2008)

father with their stepmother for

lack of a marriage license
(Ninal v Bayadog, 328 SCRA
122)

Where: Family Court of the province or

city where the petitioner or respondent
has been residing for at least 6 months
prior to the date of filing. Or, in the
case of non-resident respondent, where
he may be found in the Philippines at
the election of the petitioner

Instance when direct attack of the

nullity of a marriage must be taken:
1. When either or both spouses
want to remarry. Before either
may remarry legally, they need
to obtain a judicial declaration
of
nullity
of
marriage.
Otherwise, they will be guilty of
bigamy. (Art. 40; Domingo v
CA, 226 SCRA 572)
2. If a donor wants to revoke a
donation propter nuptias (in
consideration
of
marriage)
given to one or both of the
spouses due to the nullity of
the marriage.

It does not apply in an action for declaration of nullity

which is based on
Already existed
VOID MARRIAGE: CHARACTERISTICS AND LEGAL
EFFECTS
Suntay v Cojuangco, GR No. 132524, December 29,
1998

Q.

As to nature: Inexistent from the time of the

performance; not valid from inception

As to susceptibility of convalidation:
be convalidated or ratified

As to effect on children:
Children are ILLEGITIMATE

As to how marriage may be impugned: May be

attacked directly or collaterally; may be
impugned even after death of the parties;
imprescriptible

cannot

Here, either of the parties of

the void marriage must first file
and obtain a petition for
declaration of the nullity of
marriage.
Once
judicially
declared, the donor, if a 3 rd
party, will now have a cause of
action to revoke the donation
propter nuptias under Art. 86
(1)

When can a void marriage be attacked directly or

collaterally?

As to manner:
General rule:

Void marriage can be attacked directly

or collaterally

Or, if the donor is the spouse

and the donee is the spouse in
bad faith, then the donation is
revoked by operation of law
under Art. 50, in relation to Art.
43 (3).

DIRECT ATTACK OF A VOID MARRIAGE

Domingo v CA, 226 SCRA 572
Supreme Court En Banc Resolution A.M. No.
02-11-10, March 15, 2003

What: Petition
is
filed
for
the
declaration of absolute nullity of a void
marriage, Sec 2a, A.M. No. 02-11-10,
March 15, 2003
Who: Petition can be filed solely by
the husband or the wife
1. A father may file a case to
declare
void
a
bigamous
marriage of his daughter to a
married man (Cojuangco v
Romillo, 167 SCRA 751)
2. A legitimate 1st wife can file a
case to declare null and void
the marriage to the 2nd wife on
the
ground
of
bigamy
(Cardenas v Cardenas, 98 Phil
73)
3. The heirs of a dead father can
file a case to declare null and
void the marriage of their dead

3.

Other issues where judicial

declaration of nullity of a void
marriage is necessary even if
the purpose of the petitioner is
not to remarry.
PUTOL NA ANG PIC, KUNG NAAY MADUGANG, PALIHOG
NA LANG.
(3) To cause revocation of donation propter nuptias
given to the guilty or bad faith spouse
(4) So that the innocent spouse can revoke
designation of a guilty spouse as beneficiary in any
insurance policy, even if stipulated as irrevocable
(5) To disqualify the spouse in bad faith to inherit from the
innocent spouse by testate or intestate succession
COLLATERAL ATTACK OF A VOID MARRIAGE:

The nullity of a void marriage can be asserted (

as an offense or defense as the case may be)
even is the main case filed is not for the
judicial declaration of marriage but for another
matter (such as an inheritance case where the
succession to decedents estate by a spouse or
the child is the main issue)
Example:

In an intestate proceeding, the

compulsory heirs of their dead father may
question the validity of the marriage by their
father to a woman who claims to be the 2 nd
wife. Here, the heirs need not present a judicial
declaration of absolute nullity
of the 2 nd
marriage by their dead father to the 2nd wife.
Under the law they cannot directly attack or file
a case for the declaration of nullity of marriage.
Here, the heirs can present evidence
and prove to the court, the nullity of the 2nd
marriage of their dead father collaterally
(Tamano v Ortiz, 291 SCRA 584; Ninal v Bayadog, 328
SCRA 122)
AS TO TIME OR PERIOD:

The action for declaration of nullity of

marriage is imprescriptible.
No statute of limitation, no period limit
within which to file the case.
Doctrine of laches or estoppel will not
apply. (RP v Dayot G.R. No. 175581,
March 20, 2008)

o ANTONIO v. REYES,
G.R. No. 155800, Mar. 10, 2006
X x x 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.
Q. What are the ESSENTIAL MARITAL OBLIGATIONS
in the Family Code?
A. 1. To procreate children
2. To live together under one roof (Art. 68)
3. To observe mutual love, respect and fidelity
(id)
4. To render mutual help and support (Art. 70)
Q. Is PSYCHOLOGICAL INCAPACITY a vice of consent;
is it a form of insanity?
DISTINGUISH:
1.

DISCUSSION OF PYSCHOLOGICAL INCAPACITY: ART. 36

Art. 36. A marriage contracted by any party who, at the

time
of
the
celebration,
was
psychologically
incapacitated to comply with the essential marital
obligations of marriage, shall likewise be void even if
such incapacity becomes manifest only after its
solemnization. (As amended by EO 227, July 17, 1987)

SOURCE:
Taken from par. 3 of Canon 1095 of the New Code of
Canon Law which took effect Nov. 27, 1983 which
states:
3. Those who, because of psychological nature,
are unable to assume the essential obligations of
marriage.
CONCEPT:

No definition or meaning given by law

The theory behind psychological incapacity is

that one or both of the spouses cannot
discharge one or more of the essential marital
obligations (in Art. 68). There must be an
absolute incapability to do so.

Subject to interpretation of the court, resulting

to judicial legislation

PSYCHOLOGICAL
CONSENT

INCAPACITY

vs.

VICE

OF

Consent to marriage is not defective, freely

given unlike in VC
PI party is incapable of fulfilling the rights
and obligations arising from the marriage
he/she has consented to.
PI ground for declaration of nullity of
marriage; VC is ground for annulment of
marriage
PI not subject to ratification; VC may be
ratified

2.

PI vs. INSANITY

Insanity is a form of mental incapacity or

sickness. Like physical incapacity, it is a vice of
consent. PI is not.
PI incurable; Insanity curable
Similar distinctions with VC

Q. Must psychological incapacity be present at the

time of the marriage?
A. Yes, although it might have been manifest only
after the marriage.
Q. If a person is found to be psychologically
incapacitated in the course of a case for judicial
declaration of absolute nullity of a void marriage, will
he/she be disqualified or prohibited from marrying
again?

A. No. For he/she may get the right partner to marry

again, for he/she may get the right partner who
understands his problem. The first spouse may have
aggravated the problem, while the second spouse may
compensate or understand him/her. (Sempio-Dy,
Family Code, quoting Fr. Healy of the Catholic Church)

regardless of the cause thereof. (Valdez v. RTC,

G.R. No. 122749, July 31m 1996)
Q. What is the status of the children conceived or
born before the declaration of nullity of marriage under
Art. 36?

Q. Who can file the action to declare the marriage

void due to psychological incapacity?
A. Either party, even the one who is psychologically
incapacitated.

A. The children are legitimate.

Q. Does the action to declare the marriage void due

to psychological incapacity in Art. 36 prescribe?
A. Under Art. 39 The action or defense for the
declaration of absolute nullity of marriage shall not
prescribe.

(As amended by EO 227 and RA 8533; The

phrase However, in case of marriage
celebrated before the effectivity of this Code
and falling under Art. 36, such action or
defense shall prescribe in ten years after this
Code shall take effect has been deleted by RA
8533, approved in Feb. 23, 1998)

Q. How will the properties acquired by the parties

be divided or disposed of after their marriage is
declared null and void under Art. 36?

A. Yes, if the facts of the case fall under any

ground/s for annulment of marriage (art. 45, 46). In
certain cases, the latter is more advantageous to the
aggrieved spouse. Why? In this case, the aggrieved
spouse will have all the effects of a valid marriage.
Example: X married his wife Y. Husband X was
unable to have sex with Y despite being married for 1
year. X is dependent on his mother financially and
psychologically.
It
turned
out
that
X
was
psychologically incapacitated, a closet homosexual and
has early stage of AIDS.

If X & Ys marriage is annulled under Art. 45 (5)

(6). There will be liquidation of their community
property if they did not have any pre-nuptial
agreement signed before their marriage. This is
so as the marriage is deemed valid until
annulled. (Disposition of properties governed
under Arts. 50, 51, 52, in relation to Arts. 102 &
129 of the Family Code )
If X 7 Ys marriage is declared as an absolute
nullity under Art. 36, the property relations of
the parties during the period of cohabitation is
governed by the provisions of Art. 147 or Art.
148, such as the case may be, of the Family
Code. This is the rule in a void marriage,

In Santos v. CA, the SC enumerated the

following characteristics of psychological
incapacity:

1.
2.
3.

Gravity
Judicial antecedence
Incurability

In Chi Ming Tsoi v. CA, the convergence of all

the factors stated in the complaint amounted
to psychological incapacity; that either spouse
may file the action to declare marriage void,
even the psychologically incapacitated.

Art. 37. Marriages between the following are

incestuous and void from the beginning, whether the
relationship between the parties be legitimate or
illegitimate:
(1) Between ascendants and descendants of any
degree; and

A. The family home and their common property will

be divided between them in equal shares; they will be
governed by rules on co-ownership under Art. 147 of
the Family Code.
Q. Can an action for declaration of nullity of
marriage be also filed as an action for annulment of
marriage?

(2) Between brothers and sisters, whether of full or

half blood.
Reasons:
i.

Universally considered as immoral, offensive to

decency and morals.
Often results to deficient and degenerate
offsprings which could cause deterioration of
race if widely occurring.
Confuses the rights and duties to incident
family relations.

ii.
iii.

Art. 38. VOID MARRIAGES for being AGAINST PUBLIC

POLICY
(1) Between collateral blood relatives, whether
legitimate or illegitimate, up to fourth civil
degree;

Covers collateral blood relatives up to the 4 th

civil degree, or up to first cousins, whether
legitimate or illegitimate.
No longer deemed incestuous but still void for
being against public policy due to the
degenerative effects of such marriages to
offsprings (e.g. retarded minds, deaf or mute,
bad eyesight, etc.)

(2) Between step-parents and step-children;

But a stepsister and stepbrother can marry

(3) Between parents-in-law and children-in-law;

Step-parents and step-children; parents-in-law

and children-in-law are related by affinity.
Deemed against public policy for it is
scandalous and offensive to ones sensibility
for a step-father to marry his step-daughter, or
father in law to marry his daughter in law; for
step-mother to marry her step-son, for a
mother-in-law to marry her son-in-law.
Under Philippine customs and traditions,
Filipino step-parents and parents in law treat
their step children and children-in-law like their
own, part of their extended family.
Also, part of family tradition in the Phils. is that
parents live with their children, or vice versa.

ANNULMENT OF MARRIAGE

Art. 45. A marriage may be annulled for any

of the following causes, existing at the time
of the marriage:
x x x
(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;
(6) That either party was afflicted with a
sexually-transmissible disease found to
be serious and appears to be incurable.
Art. 46. Any of the following circumstances
shall constitute fraud referred to in Number
3 of the preceding Article:
x x x
(3) Concealment of sexually transmissible
disease, regardless of its nature, existing
at the time of the marriage; or

Art. 45(3) (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;
Art. 46(3) - (3) Concealment of
sexually
transmissible
disease,
regardless of its nature, existing at
the time of the marriage;
DIFFERENTIATE ART. 45(6) FROM ART.
45 (3) in relation to ART. 46 (3):
I. In Art. 45 (6) where one spouse is afflicted
with a serious STD which appears
incurable, the marriage annulment can
prosper, if this ground exist AT THE TIME
OF MARRIAGE.

Art. 47. The action for annulment of

marriage must be filed by the following
persons and within the periods indicated
herein:
(3) For causes mentioned in number 3 of
Article 45, by the injured party, within
five years after the discovery of the
fraud;

DISCUSSION:
A. ANNULMENT OF MARRIAGE BASED ON
SEXUALLY TRANSMITTED DISEASE
The ground for annulment of marriage
under Art. 45(6) (6) That either party was
afflicted
with
a
sexually-transmissible
disease found to be serious and appears to
be incurable.
MUST BE DISTINGUISHED FROM
The ground for annulment of marriage
under the related articles in :

This ground for annulment can

prosper whether or not the serious
or incurable STD was concealed from
the other spouse.
[Example of serious, incurable STD
AIDS, herpes, chronic syphillis]

This ground for annulment in Art. 45

(6) can prosper:

(i.)

(ii.)

(iii.)

even
if
there
was
no
concealment by the ill spouse,
or;
even
if
there
was
prior
knowledge of the serious illness
by the healthy spouse, or;
even if there was cohabitation
by the healthy spouse despite
knowing the serious illness
which appears incurable.

Reason:
1. Annulment is allowed in Art. 45(6),
because the continuance of the
marriage may cause transmission
of
the
serious
or
incurable
disease/illness and pose a danger
to the healthy spouse or their

offspring, and NOT because there

was defect in the consent of the
healthy
spouse
when
he/she
married the seriously ill spouse.
2. This goes to the essentials of
marriage contract the legalization
of sexual relations and procreation
of children. Anything that makes
natural
sexual
intercourse
impossible
is
a
ground
for
annulment. (Smith v. Smith, 171
Mass. 404, 50 N.E. 933)

PRESCRIPTIVE PERIOD: Failure to file

the action within the 5-year period
after the marriage ceremony, will bar
the healthy spouse from ever filing the
annulment case based on this ground.
RATIFICATION OR CONVALIDATION:
Q. Is the ground for annulment in Art.
45 (6) subject of ratification or
convalidation when the healthy
spouse despite knowledge, freely
cohabited
with
the
spouse
suffering from a serious, incurable
STD, and therefore can no longer
file for an action for annulment
even before lapse of the 5-year
period?
A. NO. In Art. 45 (6) there is no
ratification by the free cohabitation
of the healthy spouse with the stdill spouse, despite knowing the
latters serious, incurable illness.
The healthy spouse may bring the
action to annul the marriage based
on Art. 45 (6) at any time within 5
years after the celebration of
marriage; for the law prefers to
preserve the health of the healthy
spouse and offspring, if any.

II.

In Art. 45 (3) and Art. 46 (3) Concealment of sexually transmissible

disease, regardless of its nature,
existing at the time of the marriage.

This ground for annulment can

prosper only if:
(a.) there was
CONCEALMENT by the sick spouse
of the sexually transmitted disease
(whether serious or not); (b.) AT
THE TIME OF MARRIAGE.

This ground for annulment in Art.

45 (3) vis-a-vis Art. 46 (3) CANNOT
prosper if :

(i.) if there was prior knowledge of the

STD by the healthy spouse, or;
(ii.)
if there was cohabitation by the
healthy
spouse
despite
knowing the STD of the other
spouse.

PRESCRIPTIVE PERIOD:
Action
must be filed within 5 years from
discovery
of
the
fraud
or
concealment
from the healthy
spouse of the STD by the other
spouse.

RATIFICATION
CONVALIDATION:

OR

Q.
Is the ground for annulment in
Art. 45 (3) vis-a-vis Art. 46 (3)
subject to ratification or convalidation
if
the
healthy
spouse
despite
knowledge,
freely
married
and
cohabited with the spouse suffering
from a serious, incurable STD, and
therefore can no longer file for an
action for annulment even before
lapse of the 5-year period?
A. Yes. If the ground for annulment is
Art. 45 (3) vis-a-vis Art. 46 (3) there
is ratification or convalidation, if,
despite knowing the spouses serious,

incurable illness, the healthy spouse

freely cohabited with the std-ill
spouse. For here, there is NO
Concealment; thus, there is no fraud.

concealment by the afflicted spouse;

whether or not the healthy spouse
continued living with the std-ill spouse
despite knowledge thereof, provided
the 5-year prescription period has not
yet lapsed.

The healthy spouse in this case can no

longer file for annulment of the
marriage based on Art. 45 (3) vis-a-vis
Art. 46 (3) even if the 5-year
prescriptive period is not yet over.
RECONCILE seeming inconsistency in
ART. 45 (6) from that of Art. 45(3) vis
Art. 46(3):
In Art. 45(3) vis Art. 46(3) - the STD
of a spouse (serious or not; incurable
or not) IF CONCEALED constitutes
FRAUD and is ground for annulment.
But if the healthy spouse after
knowing of the concealed STD freely
cohabited with the std-ill spouse,
there is ratification. Consequently, the
petition for annulment cannot prosper
even if the 5 year period is not yet
over.
Q. Does this mean that if the STD is
serious and incurable but CONCEALED
by the ill-spouse from the healthy
spouse, annulment can no longer
prosper?
Q. Or, does this mean that if there
was concealment of a serious and
incurable
STD,
and
there
was
subsequent
cohabitation
by
the
healthy spouse, there is ratification,
thus, annulment can no longer
prosper?
Not necessarily. Civil law authors
opine that, if it is shown that the other
spouse is afflicted with a SERIOUS
STD which appears INCURABLE, AT
THE TIME OF MARRIAGE, the ground
under the law in Art. 45(6) may
instead be invoked for annulment of
marriage to prosper.
This will prosper under Art. 45 (6)
whether
or
not
there
was

Reasons:
(1) No ratification by cohabitation
because the ground is not based on
defective consent arising from the
fraudulent concealment of the STD,
but the basis for annulment is due the
seriousness and incurability of the
STD.
(2) The cause for annulment
remains as long as the sick spouse
remains afflicted;
(3) This is to give the healthy
spouse the right to annul the
marriage, to prevent transmission of
the serious illness to the healthy
spouse and possible offspring;
B. ANNULMENT OF MARRIAGE BASED ON
PHYSICAL
INCAPABILITY
OF
CONSUMMATING THE MARRIAGE
Art. 45. A marriage may be annulled for
any of the following causes, existing at
the time of the marriage:
(5) That either party was physically
incapable
of
consummating
the
marriage with the other, and such
incapacity continues and appears to
be incurable; or

PHYSICAL INCAPACITY TO CONSUMMATE

THE MARRIAGE refers to lack of power
to copulate or fulfill the sexual relation
aspect of the marriage; not to sterility.

WHEN MUST BE RECKONED to be a

valid
ground
for annulment
of
marriage, the physical incapacity to
consummate must be present AT THE
TIME OF MARRIAGE.
It must be
continuous and appears incurable, not

temporary
science.

or

curable

by

medical

Q. If the incapacity to consummate

or impotency occurred AFTER the
marriage, will this still serve as
valid ground for annulment of
marriage?
o

NO. For Art. 45 (5) to prosper, it

must be pre-existing; present AT
THE TIME OF MARRIAGE.

If the physical incapacity to

consummate occurred AFTER the
marriage,
annulment
cannot
prosper.
Read
Anonymous
v
Anonymous, 49 NYS 2d
314, (see also p.322 Sta.
Maria, Persons and Family
Relations)

NOT SUBJECT TO RATIFICATION If

the spouse is found to be physically
incapable of sexual intercourse and
this appears incurable, the fact that
the spouse freely cohabited with the
other will NOT RATIFY the annullable
marriage.
However, if the aggrieved spouse
does not file the action within the
5year
prescription
period
for
annulment,
after
the
marriage
ceremony, his/her right will now be
barred under Art. 47(5).
Reasons:
(1) Since the cause for annulment is not
defective consent, but the impotency
which does not cease to exist if its
incurable;
(2) To allow ratification will negate one of
the essential aspects of marriage
which is the legal sexual relations of
the couple and the consequent
purpose of marriage which is to
procreate healthy children.

TITLE II LEGAL SEPARATION

Art. 55. A petition for legal separation may be filed on any of
the following grounds:
(1) Repeated physical violence or grossly abusive conduct
directed against the petitioner, a common child, or
a child of the petitioner;
(2) Physical violence or moral pressure to compel the
petitioner to change religious or political affiliation;
(3) Attempt of respondent to corrupt or induce the
petitioner, a common child, or a child of the
petitioner, to engage in prostitution, or connivance
in such corruption or inducement;

(4)

(5)

Final judgment sentencing the respondent to

imprisonment of more than six years, even if
pardoned;
Drug addiction
respondent;

or

habitual

alcoholism

of

How is legal separation distinguished from Separation

de Facto?

LS can be effected only by decree of court, while the

parties can separate at any time without court order.

LS will result to dissolution of the spouses property

regime relations (community or conjugal) and the
guilty party cannot inherit from innocent spouse;
while in separation de facto, the property relations of
the spouses remain and they are still heirs of each
other, no matter how guilty one spouse may be,
unless the innocent spouse expressly disinherits the
guilty spouse in his/her will.

the

(6) Lesbianism or homosexuality of the respondent;

(7) Contracting by the respondent of a subsequent
bigamous marriage, whether in the Philippines or
abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the
petitioner; or
(10) Abandonment of petitioner by respondent without
justifiable cause for more than one year.

ART. 55 - WHAT ARE THE GROUNDS FOR PETITION FOR

LEGAL SEPARATION ?
(1) Repeated physical violence or grossly abusive
conduct directed against the
petitioner,
a
common child, or a child of the petitioner;
o

Violence physical infliction of pain or bodily harm;

repeated or frequent even if the pain inflicted is not
severe.

Grossly abusive conduct may be verbal,

psychological or even physical such as squeezing of
neck, pulling of hair and the like with intent to kill.

The physical violence or grossly abusive conduct may

be directed to the - (a) spouse-petitioner, or; (b)
petitioners own child from a previous relationship,
or; (c) their common child.

Child covers child by

illegitimate), or adopted.

Note:
The physical violence or gross abusive
conduct which is committed by the guilty spouse
against his/her own child with another person from a
previous relationship, is not included in par. 1 and
cannot be invoked as ground for legal separation by
the other spouse.

For purposes of this Article, the term "child" shall include a

child by nature or by adoption. (9a)
DISCUSSION:
CONCEPT OF LEGAL SEPARATION :
What is Legal Separation?

Legal Separation is relative divorce; it is only separation

from bed and board but the parties remain married and
cannot legally re-marry.

How is legal separation different from Absolute

Divorce?

It is different from absolute divorce which dissolves the

marriage and the parties can marry again.

How is legal separation different from Annulment of

Marriage?

In LS, the marriage is not defective; while in annulment

the marriage is defective or voidable.

In LS, the grounds arise after the marriage; while this

must exist prior to or at the time of marriage in case of
annulment.

In LS, the common life of the spouses is suspended,

both as to persons, (some personal obligations such
as to cohabit and have sexual intercourse Art. 68)
and their properties;
while in separation
of
properties, only the property relation is terminated.
LS decree cannot be granted by mere stipulation or
agreement of parties or confession of judgment (Art.
60); while separation of property can be effected by
agreement of parties subject to court approval (Arts.
134 & 136)

(legitimate

or

But this can be a ground to suspend or terminate

the parental authority of the respondent-spouse upon
his/her own minor child with another person per Art.
231 (1) of the Family Code.
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;

In LS, the parties are still married to each other and

cannot remarry;
While in annulment, the marriage is annulled or set
aside and the parties are free to legally remarry.

How is legal separation distinguished from Separation

of Property?

nature

(2) Physical violence or moral pressure to compel

the petitioner to change religious or political
affiliation;
o

The physical violence or moral pressure here is for

the purpose of making the other spouse to change
either: (a) religious affiliation, or; (b) political
affiliation.

The act in par. 2 is directed to the petitioner spouse

not to the children of the parties.

(3) Attempt of respondent to corrupt or induce the

petitioner, a common child, or a child of the

petitioner,
to
engage
in
prostitution,
connivance in such corruption or inducement;

or

The attempt to corrupt or induce to enter in

prostitution must be perpetrated by the respondent
spouse to : (a) petitioner spouse; (b) their own child,
or; (c) child of petitioner

Even if the respondent-spouse is not the one who

directly/personally corrupted or induce his/her
spouse, or their child, but CONNIVANCE of the
respondent-spouse with another in such attempt to
corrupt or induce into prostitution his/her spouse or
common child or child of petitioner

The child may or may not be emancipated.

The act of corruption and inducement in par. 3, refer

to PROSTITUTION only; it does not extend to other
immoral or corrupt acts.

In par. 3, mere ATTEMPT is sufficient ground for

legal separation. That the attempt to corrupt or
induce into prostitution succeeded or not is not
important for legal separation to prosper.

Note:
The attempt to corrupt or induce into
prostitution which is committed by the guilty spouse
against his/her own child with another person from a
previous relationship, is not included in par. 1 and
cannot be invoked as ground for legal separation by
the other spouse.

(5)

Drug addiction or habitual alcoholism of the

respondent;
o

Drug addiction or habitual alcoholism of the

respondent as ground for legal separation can exist
even after celebration of marriage. Its extent and
nature is similar as those in annulment of marriage.

Note however that:

i.)

o
ii.)

(6)

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.

Respondent-spouse is convicted of a criminal offense

where penalty imposed is more than 6 years ; even
if pardoned by President, legal separation may still
prosper and cannot be used as exemption by
respondent-spouse.
The judgment must be final, before the petitionerspouse may file for legal separation, for the
judgment may still be reversed and respondent
acquitted.
Q.
What about if the respondent-spouse was
acquitted in the criminal case but lost in the civil
action arising from the same criminal offense? Can
the other spouse still petition for legal separation ?
A.

NO. Art. 55 refers only to a final judgment in a

criminal case, not a civil action, no matter the
amount involved. (Pineda, Family Code, 2011
ed.)

or

homosexuality

of

the

If the lesbianism or homosexuality

of
the
respondent-spouse is already present prior to or at
the time of marriage, and this was concealed from
the other spouse.
[ Must be filed within 5 years from discovery of
the fraud. ]

This can also constitute as Fraud which is a ground

for annulment of marriage under Art. 45 (3) in
relation to Art. 46 (4).

If the lesbianism or homosexuality of the

respondent-spouse is already present prior to or at
the time of marriage, and this has deprived
her/him of the capacity to perform the essential
obligations of marriage, this can also amount to
psychological incapacity which can be a ground
for declaring the marriage null and void under Art.
36.

Final judgment sentencing the respondent to

imprisonment of more than six years, even if
pardoned;
o

Must be filed within 5 years from

discovery of the fraud.

If the drug addiction or habitual alcoholism

of the spouse was already present prior to or
at the time of marriage, and this has
deprived him/her of the capacity to perform
the essential obligations of marriage, this can
even amount to psychological incapacity
which can be a ground for declaring the
marriage null and void under Art. 36.

Lesbianism
respondent;

But this can be a ground to suspend or terminate

the parental authority of the respondent-spouse upon
his/her own minor child with another person per Art.
231 (2) and (4) of the Family Code.

(4)

Also, if the drug

addiction or habitual
alcoholism of the spouse was already present
prior to or at the time of marriage, and this
was concealed from the other spouse, this can
constitute Fraud which is a ground for
annulment of marriage under Art. 45 (3) in
relation to Art. 46 (4).

(7)

Contracting by the respondent of a subsequent

bigamous marriage, whether in the Philippines
or abroad;

Here respondent-spouse contracted a second

marriage, whether in the Phils. or abroad.
o
Legal Consequences:
i.)
The first spouse may petition for legal separation
from the guilty or respondent spouse.
ii.)
The first spouse may sue the guilty spouse for
bigamy under Art. 349 of the Revised Penal Code.
o

(8)

Sexual
o

Infidelity

or

Perversion;

SEXUAL
INFIDELITY
is
considered
sexual
unfaithfulness of the husband or Wife from their duty

to observe mutual love, respect and fidelity under

Art. 68. Adultery and concubinage are acts of sexual
infidelity.
o

This replaces the old grounds for adultery on the part

of wife; concubinage on the part of husband in the
Civil Code deemed as double standard in law.

Whether the sexual infidelity is committed once or

multiple times sufficient ground for legal
separation. It also gives the court more leeway to
determine whether the unfaithfulness of the spouse
is sufficient to justify the case for legal separation.

have no intention of returning to the conjugal

dwelling.
o

Period of Abandonment for purpose of Legal

Separation action to prosper - (i.) For more than 1
year; (ii.) Unjustified

If there is only physical separation but they still

support each other and their children, there is no
abandonment.

Other forms of Abandonment or Desertion (Foreign

Decisions):

SEXUAL PERVERSION is not also defined by the

Family Code to give courts latitude in determining on
a case to case basis, whether the ground exist or not.

1.)

Q. If the husband demands oral sexual intercourse

from the wife who vehemently refuses to do so, is
this a valid ground that the wife can raise for legal
separation?
A. Yes. See - Minutes of 156 th Joint Meeting of the
Civil Code and Family Law committees held on Sept.
27, 1986, p. 12. (Sta. Maria, Persons and Family
Relations, 6th ed. p. 376)
Note: If either spouse condones sexual infidelity or
perversion of the other, he/she is estopped from
raising this as a ground for legal separation.

(9)

2.) The husbands refusal to provide quarters away

from his mother who made the plaintiff-wifes life
intolerable, justifies her leaving and constitutes
constructive desertion (Bruch v. Bruch, 1946,
271 A.D. 885, 67 NYS, 2d, 89)
WHAT ARE THE DEFENSES TO RESIST LEGAL
SEPARATION; GROUNDS FOR DENIAL OF PETITION
FOR LEGAL SEPARATION?
Art. 56. The petition for legal separation shall be denied on
any of the following grounds:

Attempt by the respondent against the life

of the petitioner; or
o
o

This is a case of attempted or frustrated parricide.

No criminal conviction is required for the legal

separation to prosper.
But the attempt to kill the petitioner spouse must be
criminal or with malice or evil design.

(2) Where the aggrieved party has consented to the

commission of the offense or act complained of;
(3) Where there is connivance between the parties in
the commission of the offense or act constituting the
ground for legal separation;
(4) Where both parties have given ground for legal
separation;
(5) Where there is collusion between the parties to
obtain decree of legal separation; or

Infliction of physical injuries is not enough unless

intent to kill is proven. If done repeatedly, it may fall
under par. 1 of Art. 55 (repeated physical violence or
gross abusive conduct).

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

(1) Where the aggrieved party has condoned the

offense or act complained of;

If the attempt against the life of the petitioner arose

from other justifying circumstance like: self-defense,
or; defense of their child from the unlawful violence
of the other spouse, or; when he/she caught the
other spouse while in the act of adultery with another
person.

Also if the act results from criminal negligence, the

ground does not exist since there is no deliberate
intent to kill.

Abandonment by respondent-spouse must be wilfull,

with no intention to return; there is complete
cessation of marital relations between husband and
wife, both personal and property; including relations
with children.
Art. 101 - Prima Facie Presumption of Abandonment:
(i.) The spouse who has left the conjugal dwelling for
a period of three months or; (ii.) Has failed within
the same period to give any information as to his or
her whereabouts shall be prima facie presumed to

Spouse without just cause, forcibly ejects the

other from their home and refuses to allow her
to return, constitutes abandonment (Orenstein v.
Orenstein, NY. L.J., March 6, 1947)

(6) Where the action is barred by prescription. (100a)

DISCUSSION:
Art. 56. The petition for legal separation shall be
denied on any of the following grounds:
(1) Where the aggrieved party has condoned the
offense or act complained of;
o

CONDONATION forgiveness or pardon by the

aggrieved spouse of the guilty spouse.

Condonation comes AFTER, not before the

commission of the offense. If it is given prior to the
act, it is consent, and will bar the case of legal
separation. (People v. Schneckenburger, 73 Phil. 413)

Condonation may be express or implied; husbands

sleeping together with the unfaithful wife after
knowledge of her infidelity (Ginez v. Bugayong, 100
Phil. 616)

Condonation also implies the condition of future good

behaviour by the offending spouse; subsequent
repetition of marital offense revokes the condonation
and revives the original offense.
Thus, each sexual intercourse by the wife with
another man is a separate act of adultery. Therefore,
condonation of one act by the husband does not
necessarily imply condonation of the other acts.
(People v. Zapata and Bondoc, L-3047, May 16, 1951,
88 Phil. 688)

Where the wife in an effort to save the marriage and

reconcile with the guilty husband for the sake of the
children, shortly cohabited and had sexual
intercourse with the husband after knowledge of his
marital offense, but the attempt was unsuccessful, it
was held that there was no condonation. (Hawkins v.
Hawkins, 286 Pac. 747)

(2) Where the aggrieved party has consented to the

commission of the offense or act complained of;
o

(4)

to the act.
Examples:
A husband who was abandoned by the wife who
then lived with another man but took no action
against the wife, and just went to Hawaii is
deemed to have given implied consent. After 7
years he returned to the Phils. and filed an
action against the wife for adultery. The wife is
acquitted on the ground that the husbands
conduct can be inferred that he consented to the
philandering of his wife. (People v. Sansano and
Ramos, 59 Phil. 73)
Agreement by the spouses to have an open
marriage whereby they are free to have sex
with other persons, is null and void for being
contrary to law and morals. But for purposes of
legal separation, this is deemed as Consent
which bars an action for legal separation.
(People v. Schneckenburger, 73 Phil. 413)

Example:
A husband who lures his wife into
adultery by employing a detective to spy on his wife
and tells the latter to have sex with her so he can
have evidence against her is a case of connivance
(Witherspoon v. Withershpoon, 108 Pa Super. 309, 64
A. 842e).

Where both parties have given ground for legal

separation;
o

This rule is based on the legal principle that - he

who comes to court must come with clean hands.
Both are in pari delicto.

Here, it does not matter who committed the first

offense or ground for legal separation, or that the
other is more guilty than the other.

The parties being both guilty, there is no offended

spouse who deserves to file the action, and this is
true even if one spouse has been pardoned by the
other spouse, but the latter has not been pardoned.
(Benedicto v. De La Rama, 3 Phil. 34)

(5) Where there is COLLUSION between the parties to

obtain decree of legal separation;
o

Collusion is corrupt agreement between spouses to

obtain a decree of legal separation.

Thus, to prevent collusion between the spouses, Art.

60 provides that
Art. 60. No decree of legal separation
shall be based upon a stipulation of
facts or a confession of judgment.

Consent may be express or implied; given prior

(3) Where there is connivance between the parties in

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

This is where both parties are equally or mutually

guilty for having given ground for legal separation.
(Example: Mutual sexual infidelity)

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.
(6) Where the action is barred by prescription.
o

If the ground for legal separation is already barred by

prescription under Art. 57 An action for legal
separation shall be filed within five years from
the time of the occurrence of the cause.

Note that the reckoning period of prescription is

from the time of OCCURRENCE of the cause, and
not from the time of its discovery.
Thus X & Y married in 1999. The husband was
sexually unfaithful in 2000, but the wife discovered it
only in 2015, when an illegitimate son went to their
conjugal home introducing himself as the son of her
husband, she cannot now file a valid legal separation
based on this ground of sexual infidelity.

PRESCRIPTIVE PERIOD FOR ACTION FOR LEGAL SEPARATION

Art. 57. An action for legal separation shall be filed within five
years from the time of the occurrence of the cause. (102)
PROCEDURE OF ACTION FOR LEGAL SEPARATION:
COOLING
EFFORT

OFF

PERIOD

REQUIREMENT;

RECONCILIATION

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. (103)
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. (n)

CAN STIPULATION OF FACTS OR CONFESSION OF JUDGMENT

BE BASIS FOR LEGAL SEPARATION DECREE?

(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

Art. 60. No decree of legal separation shall be based upon a

stipulation of facts or a confession of judgment.

(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.

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. (101a)
WHAT ARE THE LEGAL EFFECTS UPON FILING OF PETITION
AND PENDING THE ACTION FOR LEGAL SEPARATION?
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.
(104a)
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.

What are the LEGAL EFFECTS upon filing the petition for legal
separation and while this is Pending in court ?
1.
2.

The spouses can live separately from each other;

As consequence, husband has no more right to have
sexual intercourse with his wife. If he forces himself
on her, he can be charged with rape.

3.

Court can designate either of the spouses, or even a

third person, to administer the absolute community
or conjugal partnership property, unless they have
their own written agreement.

4.

The appointed administrator will have powers/duties

as a guardian; thus, he cannot alienate or encumber
the properties of the spouses without court authority.

5.

Court will provide for the support of the spouse and

children, and custody of the latter.

WHAT ARE THE CONSEQUENCES OR LEGAL EFFECTS ONCE

DECREE OF LEGAL SEPARATION IS ISSUED BY THE COURT ?
(Arts. 63 & 64)
Art. 63. The decree of legal separation shall have the following
effects:

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. (107a)
DISCUSSION:
Q. What are the Legal Effects after finality of the decree of
legal separation?
A. See Arts. 63 and 64.
Q. After finality of the decree of legal separation, what rights
are available to the innocent spouse in Art. 64?
A. The innocent spouse may file an action to revoke the: (1)
Donations propter nuptias (by reason of marriage) given
earlier to the offending spouse; (2) Designation of the
offending spouse as beneficiary in any insurance policy, even
if it was stipulated as irrevocable.
Q. Is the revocation of the donation propter nuptias and
designation as beneficiary in the insurance policy in favour of
the offending spouse not automatically revoked by operation
of law?
A. No. These are not automatically revoked by operation of
law like the Will earlier made by the innocent spouse in Art.
63.
Q.
When must the innocent spouse file the action of
revocation?
A. The innocent spouse must revoke the donation propter
nuptias or insurance in favour of the guilty spouse within 5
years from finality of the decree of legal separation.
Q.

If the innocent spouse dies before end of the 5-year

prescription period without filing for revocation, what is
the legal effect to the donation/insurance policy
designation as beneficiary?

A.

The donation or designation as beneficiary in the

insurance policy in favour of the offending spouse will
subsist.

(1) The spouses shall be entitled to live separately

from each other, but the marriage bonds shall not be
severed;
(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);

Q. After decree of legal separation, can the wife now drop the
family name of her husband and revert to her maiden name?

A. No, for she remains married to her husband even if she is

legally separated. (Laperal v. Republic, 6 SCRA 357)
WHAT MUST SPOUSES DO, SHOULD THEY RECONCILE AND
WISH THIS TO BE OFFICIALLY RECOGNIZED?
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.

WHAT ARE THE LEGAL EFFECTS OF RECONCILIATION BEFORE

OR AFTER DECREE OF LEGAL SEPARATION? (Arts. 66, 67)
Art. 66. The reconciliation referred to in the preceding
Articles shall have the following consequences:
(1) The legal separation proceedings, if still pending,
shall thereby be terminated at whatever stage; and
(2) The final decree of legal separation shall be set
aside, but the separation of property and any
forfeiture of the share of the guilty spouse already
effected shall subsist, unless the spouses agree to
revive their former property regime.
The court's order containing the foregoing shall be
recorded in the proper civil registries.
Q. Assuming that the spouses property relations is
governed by community of property; later, they
legally separated but after final decree of legal
separation the spouses reconciled, will this also
result in the automatic revival of their former
community of property relations, or, will the
separation of property and forfeiture of the share of
the guilty spouse effected in the decree subsist?
A. The separation of property and forfeiture of the
share of the guilty spouse effected in the decree of
legal separation will subsist.
However, the spouses can also agree to i.) revive
their former community property regime, or; ii.)
adopt an entirely new regime of property relation to
govern them. The procedure in Art. 67 will be
executed if they choose to revive their former
property regime of adopt a new one.
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.
Q. Can the injured or innocent spouse, file again another
action for legal separation, if after the spouses reconciled, one
of them commits another act constituting a ground for legal
separation?

A. Yes. The innocent spouse can file another action for legal
separation based on the new act constituting a ground for
legal separation.
Q. Is an action for legal separation a prejudicial question to a
prosecution of the respondent-spouse in a criminal action for
bigamy?
A. No, it is not a prejudicial question. The criminal prosecution
for bigamy may proceed independently of the petition for
legal separation.
The legal separation is intended to obtain the right to live
separately from the respondent spouse and its consequences.
While the criminal action for bigamy is to enforce liability of
the guilty spouse arising from the criminal offense.
(Gandionco v. Penaranda, 155 SCRA 725)
Q. If either spouse died while the action for legal separation is
still pending, what is the legal effect?
A. The legal separation case is terminated or abated. (Lapuz v.
Eufemio, 43 SCRA 177;
Sec. 21 (a), Special Rule on Legal
Separation)

Q. Are there other legal recourse if the husband

unjustifiably prevent his wife from working or
exercising a legitimate profession, occupation or
business or activity?

TITLE III. RIGHTS AND OBLIGATIONS BETWEEN

HUSBAND AND WIFE
WHAT ARE THE OBLIGATIONS
HUSBAND AND WIFE TO EACH OTHER?

OF

THE

Art. 68. The husband and wife are obliged to live

together, observe mutual love, respect and fidelity,
and render mutual help and support.

A. The spouse may avail and file a complaint based

on Sec. 5(e) no. 4 of RA 9262 (Anti-VAWC Act) which
provides for criminal penalty of prision correccional
(Sec. 6, par. c), for any act of preventing the woman in
engaging in any legitimate profession, occupation or
business or activity, or controlling her own money or
properties, or solely controlling the conjugal or
common money.
III.

If either spouse committed acts or transactions

without the consent, or despite objection of the
other spouse, will this bind or make the
community or conjugal property liable?

I. OBLIGATION TO LIVE TOGETHER

Means co-habitation and sexual intercourse between

husband and wife. Pro-creation of children thru sexual
cooperation is an essential marital obligation and
purpose.
Right to sexual intercourse however implies normal but
not perverse practices.
Spouse can also refuse sexual intercourse if one or the
other suffers STD.
If the spouse forces the other against her will, she may
be charged with
The foregoing provisions shall not prejudice the rights
of creditors who acted in good faith. (117a)

Old Rule in Civil Code Art. 117. The wife

may exercise any profession or occupation or
engage in business. However, the husband
may object, provided:

(1) His income is sufficient for the family,

according to its social standing, and
(2) His opposition is founded on serious and valid
grounds.
In case of disagreement on this question, the
parents and grandparents as well as the family
council, if any, shall be consulted. If no agreement
is still arrived at, the court will decide whatever
may be proper and in the best interest of the
family.

Once they have chosen a family domicile, the

spouses have the duty to live together
thereon.
But there are cases where the court may
exempt one spouse from living with the other.
EXEMPTION: Grounds
(1) If one of the spouses should live abroad, or;
(2) There are other valid and compelling
reasons for the exemption.

II.

The profession, occupation or business or

activity of either spouse must be legitimate:
lawful, honest and moral.

WHO IS RESPONSIBLE FOR THE SUPPORT OF THE

FAMILY?
WHAT IS THE ORDER OF PREFERENCE OF THE
SOURCE OF SUPPORT?
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 there of, from the income of fruits of
their separate properties. In case of insufficiency
or absence of said income or fruits, such as
obligations shall be satisfied from the separate
properties.

Compare to the Old Rule Art. III, Civil

Code:
The husband is responsible for the support of
the wife and the rest of the family. These
expenses shall be met first from the conjugal
property, then from the husbands capital and
lastly from the wifes paraphernal property. In
case there is a separation of property, by
stipulation in the marriage settlements, the
husband
and
wife
shall
contribute
proportionately to the family expenses.

1. That the spouses are jointly responsible

for the support of the family.
Because they are now joint administrators of
their absolute community or conjugal property.
(Art. 124, FC)
2. Support of the family shall be paid from
the following:
1st- community or conjugal property (also Arts.
94, FC)
2nd - Income of fruits of separate properties of
the spouses

3rd Separate properties of the spouses (Arts.

94 and 121, FC)
o Spouses respective liability is in
proportion
to
their
income
or
properties; (Art. 146, FC)
o Liabilities of the spouses to creditors
for family expenses shall, however, be
solidary. (Art. 146, FC)

Similar or consistent with Article 116,

Civil Code which Art. 72 of the family code
now replaces. Thus
When one of the spouses neglects his
or her duties to the conjugal union or
brings danger, dishonor or material
injury upon the other, the injured party
may apply to the court for relief.

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.
o

Old Rule Article 115. CIVIL CODE: The

wife manages the affair if the household. She
may purchase things necessary for the support
of the family, and the conjugal partnership
shall be bound thereby. She may borrow money
for this purpose, if the husband fails to deliver
the proper sum. The purchase of jewelry and
precious object is voidable, unless the
transaction has been expressly or tacitly
approved by the husband, or unless the price
paid is from her paraphernal property.

The court may counsel the offender to

comply with his or her duties, and take
such measures as may be proper.

Article 72 covers two cases whereby the

aggrieved spouse may seek relief from
the court, such as:
1.) When one of the spouses neglects his
or her duties to the conjugal union, or;
2.) When one of the spouses commits acts
which tend to bring danger, dishonor or
injury to the other or to the family.
Note:
INJURY - is not economic or financial
injury,
but
refers
to
physical,
emotional, psychological or moral
injury. (Sympio-Diy, Handbook on the
Family Code of the Phils.)

Repealed by Art. 71, family code in view of the

demand by Flipino woman not to be
stereotyped as housewife whose main role is
only to manage the household.
Now both husband and wife shall share in the
right and duty to take care of the baby at night
if both spouses go to work during the day;
budgeting for family necessities, buying things
for the support of family members and
maintenance of the home: helping the wife
with the household chores if there is no
domestic help. etc.

Q. What about if certain purchases made by

the wife (jewelries, expensive brand of shoes,
bags, dresses), can she charge this to the
community or conjugal property, or to the fruits
and income of their separate properties, or her
own separate property?

A. The purchase of jewelries and precious

objects is voidable; if charged to the
community or conjugal property (a) unless
the transaction has been expressly or tacitly
approved by the husband, or; (b) unless the
price paid is from her separate or paraphernal
property. (Article 115, Civil Code; Connel Bros.
Co. Phils. V. Hart et al, 1CA Res. 529)

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

x x x material injury as used

in Article 116 does not refer to
patrimonial
(economic)
injury
or
damage, but to personal (i.e. physical
or moral) injury to one of the spouses,
since Article 116 lies in the chapter
concerning personal relations between
husband and wife. (Perez v. Tuason de
Perez. 109 Phil. 654)
Examples:
o If the wife is openly having an affair
with a younger man despite her
subsisting marriage;
o If the husband is a drunkard and beats
his wife when he comes home;
o If the wife spends all her time in the
casino, neglecting her children at
home.
1.

For dissipation of the spouses community

or conjugal propertyo
o

o
o

Petition for receivership,

Petition for authority to be the sole
administrator of the community or
conjugal
property
subject
to
conditions imposed by the court.
Declared the spouse as a prodigal,
or
Separation of property, or

2.

For neglect or acts tantamount to utter

inability to comply with the essential rights
and obligations of the marriages
Declaration of nullity of marriages based in
psychological incapacity under Art.36,
Family Code.

3.

Other acts committed which may give rise

to legal separation.

Art. 73. Either spouse may exercise any

legitimate profession, occupation, business or
activity without the consent of the other. The
latter may object only on valid, serious, and
moral grounds.
In case of disagreement, the court shall decide
whether or not:
(1) The objection is proper; and
(2) Benefit has 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 (117
a)

Old Rule in Civil Code- Article 117. The

wife may exercise any profession or occupation
or engage in business. However, the husband
may object provided:
I. New Rule in Art.73 Family Code: Difference
from the old law in Civil Code:
a) Consent of the husband is no longer required
for the wife to practice a profession occupation,
business or activity;
b) The only ground for objection is based on valid;
serious and moral grounds; sufficiency of
husbands income is deleted.
c) The right to object is no longer limited to the
husband, but is now mutual. The wife may also
object to the husbands profession, occupation
or business based on valid, serious, and moral
grounds.
d) In case of disagreement, the court shall decide;
family council in Civil Code Art. 117, is now
abolished.
II. The profession, occupation or business or
activity of either spouse must be legitimate;
lawful, honest and moral.

Q. Are there other legal recourse if the husband

unjustifiably prevents his wife from working or
exercising a legitimate profession, occupation
or business or activity?

A. The spouse may avail and file a complaint

based on Sec. 5 (e) no. 4 of RA 9262 (Anti-

Violence Against Women and Children Act)

which provides for criminal penalty of prison
correctional (Sec 6, par. c), for any act of
preventing the woman in engaging in any
legitimate profession, occupation, business or
activity, or controlling her own money or
properties or solely controlling the conjugal or
common money.
III. If the spouse committed acts or transactions
without the consent, or despite objection of the
other spouse, will this bind or make the
community or conjugal property liable?

BEFORE OBJECTIONo If the family has been benefitted prior

to or before the objection is made by
the other spouse, the resulting
obligation incurred shall be enforced
against the community or conjugal
property.
AFTER OBJECTIONo If the profits or benefit accrued to the
family after the objection of the
spouse, the resulting obligation of the
spouse who acted without the consent
of the other shall be enforced only
against his or her separate properties.
CREDITORS RIGHTS:
o But in both instances above, the
creditors who acted in good faith are
protected; they are not prejudiced by
the lack of consent by the other
spouse.
o The creditor can go after the absolute
community or conjugal properties, or
the separation properties of the spouse
with whom they contracted.

5. INCAPACITY TO CONSUMMATE OR IMPOTENCY:

(Arts. 45, 47)
a) What is meant by incapacity to
consummate marriage?
b) When must the incapacity to consummate or
impotency exist to be a ground for annulment
of marriage?
c) If the incapacity to consummate or
impotency occurred after the marriage, will
this still serve as valid ground for annulment
of marriage?

NO. It must be pre-existing; AT THE

TIME OF MARRIAGE.

NOT AFTER the marriage, otherwise,

annulment cannot prosper based on
this ground.

See Anonymous v Anonymous, 49

NYS 2d 314, (p.322 Sta. Maria, Person
and Family Relations)
held civilly and criminally liable? (See Art. 350
RPR)

f ) What is there a prescription period for filling

the action for annulment based on these grounds?
When is the reckoned?
g ) Are these grounds for annulment of marriage
subject to ratification? How?
MARRIAGE (Art. 48)
a) Who is ordered by the court to appear on
behalf of the State in cases of annulment and
declaration of nullity, and for what reason or
purpose?
b) Is failure to intervene by the Public Prosecutor
in an annulment case fatal, where the
defendant strongly contested the case than
counsel and there was heated litigation
between the parties without any evidence of
conclusion? (Tuason v, CA, 256 SCRA 158;
Maquilan v. Maquilan, 524 SCRA 167)

c) Can the court issue a decision or annulment or

declaration of nullity by mere stipulation of
facts of affidavits by the parties without
formality of trial? (Cardenas v Cardenas, 98
Phil. 73; Jocson v Robies, 22 SCRA 522; Roque v
Encarnation as Phil. 643)
d) What is the legal effect of consequences if the
parties are able to obtain a decree of
annulment or nullity though their collision
without other substantial evidences presented
to support the main ground for annulment or
declaration of nullity?

Annulment decree is absolutely VOID.