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The UST GOLDEN NOTES is the annual student-edited bar
review material of the University of Santo Tomas, Faculty of
Civil Law. Communications regarding the NOTES should be
addressed to the Academics Committee of the Team: Bar-Ops.

ADDRESS: Academics Committee

Team Bar-Ops
Faculty of Civil Law
University of Santo Tomas
Espaa, Manila 1008

TEL. NO.: (02) 731-4027

(02) 4061611 loc. 8578

Academics Committee
Faculty of Civil Law
University of Santo Tomas
Espaa, Manila 1008

All Rights Reserved by the Academics Committee of the Faculty of Civil Law of
the Pontifical and Royal University of Santo Tomas, the Catholic University of
the Philippines.

2015 Edition

No portion of this material may be copied or reproduced in books, pamphlets,

outlines or notes, whether printed, mimeographed, typewritten, copied in
different electronic devises or in any other form, for distribution or sale,
without a written permission.

A copy of this material without the corresponding code either proceeds from
an illegal source or is in possession of one who has no authority to dispose the


Printed in the Philippines, June 2015.

























For being our guideposts in understanding the intricate sphere of Civil Law.
- Academics Committee 2015



I. Effect and Application of Laws (Civil Code) 1

Include: Conflict of Laws (Private International Law) 7

II. Human Relations (Arts. 19-22, Civil Code) 10

Exclude: Independent civil actions and prejudicial questions which will be covered by the
examinations in Remedial Law


I. Persons and Personality (Civil Code) 13

II. Marriage (Family Code) 16

Exclude: Muslim Code (P.D. 1083)

Exclude: Duties of a Civil Registrar under Articles 12-19, 23-25 (Family Code)

Exclude: A.M. No. 02-11-10-SC, Rule on Declaration of Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages; R.A. No. 6955, entitled An Act to Declare Unlawful the
Practice of Matching Filipino Women for Marriage to Foreign Nationals on a Mail Order Basis
and Other Similar Practices x x x; R.A. No. 9208 or the Anti-Trafficking in Persons Act of

III. Legal Separation (Family Code) 34

Exclude: A.M. No. 02-11-11-SC, or the Rule on Legal Separation

IV. Rights and Obligations Between Husband and Wife (Family Code) 41

Exclude: R.A. No. 7192 or the Women in Development and Nation Building Act; R.A. No. 8187, or the
Paternity Leave Act of 1996; R.A. No. 9710, or The Magna Carta of Women.

V. Property Relations of the Spouses (Family Code) 42

VI. The Family 57

VII. Paternity and Filiation (Family Code) 60

VIII. Adoption 67

A. Domestic Adoption Act of 1998 (R.A. No. 8552) 67

1. Rule on Adoption (A.M. No. 02-6-02-SC )
2. R.A. No. 9523, entitled An Act Requiring Certification of the Department of Social
Welfare and Development to Declare a Child Legally Available for Adoption as a
Prerequisite for Adoption Proceedings x x x.

B. Inter-Country Adoption Act of 1995 (R.A. No. 8043) 70

Exclude: Articles 183-188, 191-193 (Family Code)

IX. Support (Family Code) 71

X. Parental Authority (Family Code) 75

1. Rule on Guardianship of Minors (A.M. No. 03-02-05-SC)
2. Rules on Custody of Minors and Writ of Habeas Corpus in Relation to Custody
of Minors (A.M. No. 03-04-04-SC)
3. Solo Parents' Welfare Act of 2000 (R.A. No. 8972)
4. The Early Childhood Care and Development Act (R.A. No. 8980)

Exclude: R.A. No. 9231, entitled An Act Providing for the Elimination of the Worst
Forms of Child Labor and Affording Stronger Protection for the Working Child x x
x, which will be covered under Labor Law

Include: Child Abuse Law (R.A. No. 7610)

XI. Emancipation (Arts. 234 and 236, Family Code, as amended by R.A. No. 6809
which lowered the age of majority) 80

XII. Summary Judicial Proceedings in Family Law Cases 80

XIII. Retroactivity of the Family Code (Art. 256) 81

Exclude: Arts. 254-255, 257 (Family Code)

XIV. Funerals (Arts. 305-310, Civil Code) 81

Exclude: Care and Education of Children (Arts. 356-363, Civil Code)

XV. Use of Surnames 82

Arts. 364-369, 369-380, Civil Code (other articles repealed by Family Code)

XVI. Absence (Art. 43, Civil Code; Art. 41, Family Code) 85

XVII. Civil Registrar 88

Exclude: Act No. 375 and the Implementing Rules and Regulations of R.A. No. 9048

I. Characteristics 91

II. Classification 91

III. Ownership 96

IV. Accession 100

V. Quieting of Title to or Interest in and Removal or Prevention of Cloud over Title to or

Interest in Real Property 113

VI. Co-ownership 114

VII. Possession 122

VIII. Usufruct 130

IX. Easements 136

X. Nuisance 145

XI. Modes of Acquiring Ownership 147


I. Definition 156

II. No prescription applicable 158

III. Prescription or limitation of actions 159


I. Definition 160

II. Elements of an Obligation 160

III. Different Kinds of Prestations 160

IV. Classification of Obligations 160

V. Sources of Obligations 162

VI. Nature and Effect of Obligations 167

VII. Kinds of Civil Obligations 177

VIII. Joint and Solidary Obligation 182

IX. Extinguishment of Obligations 186


I. Essential Requisites 203

II. Kinds of Contracts 208

III. Formality 208

IV. Defective Contracts 211

V. Effect of Contracts 219


I. Definition and Essential Requisites of a Contract of Sale 220

II. Parties to a Contract of Sale 225

III. Subject Matter 228

IV. Obligations of the Seller to Transfer Ownership 230

V. Price 231

VI. Formation of Contract of Sale

VII. Transfer of Ownership 239

VIII. Risk of Loss 244

IX. Documents of Title 245

X. Remedies of an Unpaid Seller 248

XI. Performance of a Contract 250

XII. Warranties 251

XIII. Breach of Contract

XIV. Extinguishment of Sale 254

XV. The Subdivision and Condominium Buyers Protective Decree (P.D. 957) 259

XVI. The Condominium Act (R.A. No. 4726) 263

Exclude: Electronic Commerce Act of 2000 (R.A. No. 8792); Public Land Law, Retail Trade and
Liberalization Act, Bulk Sales Law (Act No. 3952)

I. General Provisions 270

II. Testamentary Succession 273

III. Legal or Intestate Succession 308

IV. Provisions Common to Testate and Intestate Succession 313

Exclude: Executors and administrators (Arts. 1058-1060, Civil Code), which will be covered
under Remedial Law


I. Contract of Partnership 319

II. Rights and Obligations of Partnership

III. Rights and Obligations of Partners Among Themselves 332

IV. Obligations of Partnership/Partners to Third Persons 336

V. Dissolution 338

VI. Limited Partnership 342


I. Definition of Agency 348

II. Powers 351

III. Express vs. Implied Agency 354

IV. Agency by Estoppel 355

V. General vs. Special Agency 355

VI. Agency Couched in General Terms 356

VII. Agency Requiring Special Power of Attorney 356

VIII. Agency by Operation of Law 357

IX. Rights and Obligations of Principal 357

X. Irrevocable Agency 358

XI. Modes of Extinguishment 358


I. Definition 361

II. Void Compromise 361

III. Effect 361


I. Loan 363

II. Deposit 372

III. Guaranty and Suretyship 377

IV. Pledge 386

V. Real Mortgage 391

Include: Act 3135, as amended by R.A. No. 4118

VI. Antichresis 397

VII. Chattel Mortgage 398

Include: Act 1508

VIII. Quasi-contracts 400

IX. Concurrence and Preference of Credits 401


I. Lease of Things 416

II. Lease of Work or Services 419

III. Lease of Rural and Urban Lands 421

IV. Rights and Obligations of Lessor and Lessee

V. Special Rules for Lease of Rural/Urban Lands

VI. Household Service (Exclude, for inclusion in Labor Law)

VII. Contract of Labor (Exclude, for inclusion in Labor Law)

VIII. Contract for Piece of Work (Exclude, for inclusion in Labor Law)

I. Torrens System 424

II. Regalian Doctrine 431

III. Citizenship Requirement 432

IV. Original Registration 433

V. Subsequent Registration 458

VI. Non-registrable Properties 462

VII. Dealings with Unregistered Lands 463

1. History of land laws
2. Remedies sufficiently covered under Remedial Law
3. Registration of judgments, orders and partitions
4. Assurance fund
5. Registration of patents
6. Administrative structure of the Register of Deeds
7. Consultas


Book I--Torts

I. Principles 465

II. Classification of Torts 465

III. The Tortfeasor 466

IV. Act of Omission and its Modalities 467

V. Proximate Cause 473

VI. Legal Injury 474

VII. Intentional Torts 475

VIII. Negligence 490

IX. Special Liability in Particular Activities 496

X. Strict Liability 497

Book II--Damages

I. General Considerations 498

II. Actual and Compensatory Damages 500

III. Moral Damages 504

IV. Nominal Damages 506

V. Temperate or Moderate Damages 506

VI. Liquidated Damages 506

VII. Exemplary or Corrective Damages 507

VIII. Damages in Case of Death 507

IX. Graduation of Damages 508

X. Miscellaneous Rules 508


1. This listing of covered topics is not intended and should not be used by the law schools as a course
outline. This was drawn up for the limited purpose of ensuring that Bar candidates are guided on the
coverage of the 2015 Bar Examinations.

2. All Supreme Court decisions - pertinent to a given Bar subject and its listed topics, and promulgated up to
March 31, 2015 - are examinable materials within the coverage of the 2015 Bar Examinations.
PRELIMINARY MATTERS NOTE: The reason for this rule is that the basic
constitutional requirement of due process must be
EFFECT AND APPLICATION OF LAWS satisfied (Rabuya, 2009). Without such notice and
publication, there would be no basis for the application of
Law the maxim ignoratia legis non excusat (Rabuya, 2009).

In its jural and concrete sense, law means a rule of conduct XPNs:
formulated and made obligatory by legitimate power of 1. Municipal Ordinances (governed by the Local
the state (Diaz, Statutory Construction, p. 1). Government Code)
2. Rules and regulations which are internal in nature
Effectivity of laws 3. Letters of Instruction issued by administrative
supervisors on internal rules and guidelines
Effectivity of a law will depend on whether or not it has 4. Interpretative regulations regulating only the
provided a specific date for its effectivity: personnel of administrative agency
1. If date is specified Upon the lapse of the said period
following its complete publication and not before XPNs to the XPNs: Administrative rules and
2. If no date is specified 15-day period, which may regulations that require publication:
either be on the 15th or on the 16th day depending on
the language used by the Congress in fixing the 1. The purpose of which is to implement or enforce
effectivity date of the statute (Rabuya, 2009). existing laws pursuant to a valid delegation;
2. Penal in nature;
a. 15th day - If the law declares that it shall become 3. It diminishes existing rights of certain individuals
effective 15 days after its publication
b. 16th day - If the law declares that it shall be NOTE: Circulars of issued by the monetary board are
effective after 15 days following its publication required to be published if they are meant not merely to
fill in details of the Central Bank Act which that body is
3. If the law provides for immediate effectivity or upon suppose to enforce. As a rule, circulars which prescribe a
approval It is effective immediately after its penalty of their violations should be published before
complete publication and not after signing by the coming into effect. However, circulars which are mere
President statements of a general policy as to how the law should be
4. If the law is voluminious Reckoning shall begin from construed do not need publication in the Official Gazette
the release of the last of the series for their publication.

NOTE: Publication is indispensable in every case, but the Where to publish

legislature may in its discretion provide that the usual
fifteen-day period shall be shortened or extended (Umali v. 1. Official Gazette
Estanislao, G.R. No. 104037, May 29, 1992; Taada v. 2. Newspaper of general circulation in the Philippines
Tuvera, G.R. No. L-63915, December 29, 1986).
Newspaper of general circulation
Unless it is otherwise provided provision on
effectivity of laws For a newspaper to be considered in general circulation:
1. It must be published within the courts jurisdiction
The clause "unless it is otherwise provided" refers to the 2. It must be published at regular intervals for
date of effectivity and not to the requirement of disseminating local news and general information
publication itself, which cannot, in any event be omitted. 3. It has a bona fide subscription list of paying
This clause does not mean that the legislator may make the subscribers
law effective immediately upon approval, or on any other 4. It is not devoted to the interest or published for the
date without its previous publication. entertainment of a particular class, profession, trade,
calling, race or religious denomination (Alvarez v.
Publication requirement People, G.R. No. 192591, June 29, 2011)

Publication must be in full or it is no publication at all since Q: Honasan questions the authority and jurisdiction of
its purpose is to inform the public of the contents of the the DOJ panel of prosecutors to conduct a preliminary
law. The mere mention of the number of the presidential investigation and to eventually file charges against
decree, the title of such decree, its whereabouts, the him, claiming that since he is a senator with a salary
supposed date of effectivity, and in a mere supplement of grade of 31, it is the Office of the Ombudsman, not the
the Official Gazette cannot satisfy the publication DOJ, which has authority and jurisdiction to conduct
requirement. This is not even substantial compliance the preliminary investigation. DOJ claims that it has
(Taada v. Tuvera, G.R. No. L-63915, December 29, 1986). concurrent jurisdiction, invoking an OMB-DOJ Joint
Circular which outlines the authority and
Indispensability of publication responsibilities among prosecutors of the DOJ and the
Office of the Ombudsman in the conduct of preliminary
GR: All laws are required to be published in full. investigations. Honasan counters that said circular is
ineffective as it was never published. Is OMB-DOJ
Circular No. 95-001 ineffective because it was not


published? question of law may come within the scope of the
preceding article.
A: No. OMB-DOJ Circular No. 95-001 is merely an internal c. Art. 1344: In order that fraud may make a contract
circular between the two offices which outlines the voidable, it should be serious and should not have
authority and responsibilities among prosecutors of the been employed by both contracting parties.
DOJ and of the Office of the Ombudsman in the conduct of Incidental fraud only obliges the person employing it
preliminary investigations. It does not contain any penal to pay damages.
provision nor prescribe a mandatory act or prohibit any
under pain of penalty. Further, it does not regulate the Laws covered
conduct of persons or the public, in general. As such, it
need not be published (Honasan, II v. The Panel of The laws referred to under Art. 3 of the NCC are those of
Investigating Prosecutors of the Department of Justice, G.R. the Philippine Laws and it applies to all kinds of domestic
No. 159747, Jun. 15, 2004). laws, whether civil or penal, substantive or remedial.
However, the article is limited to mandatory and
Q: The Sangguniang Bayan of Hagonoy, Bulacan prohibitory laws. It does not include those which are
enacted an ordinance which increased the stall rentals merely permissive (Rabuya, 2006).
of the market vendors in Hagonoy. Art. 3 of the said
ordinance provided that it shall take effect upon Non-applicability to foreign laws
approval. The ordinance was posted from November 4
to 25, 1996. In the last week of November 1997, Ignorance of a foreign law is a mistake of fact. There is no
petitioners were personally given copies and were presumption of knowledge of foreign laws. It must be
informed that it shall be enforced in January 1998. The alleged and proved as a matter of fact; otherwise, the
petitioners contended that the subject ordinance was doctrine of processual presumption will apply.
not published as required by law. Did the ordinance
comply with the rule of publication? Doctrine of Processual Presumption

A: Yes. An ordinance which increased the stall rentals of In international law, the party who wants to have a foreign
the market vendors has complied with the publication law applied to a dispute or case has the burden of proving
requirement when the same was posted in 3 conspicuous the foreign law. The foreign law is treated as a question of
places. Since there was no newspaper of local circulation in fact to be properly pleaded and proved as the judge or
the municipality which is in accordance with Sec. 188 of labor arbiter cannot take judicial notice of a foreign law.
the LGC (Hagonoy v. Municipality, G.R. No. 137621, He is presumed to know only domestic or forum law (ATCI
February 6, 2002). Overseas Corporation, et al. v. Echin, G.R. No. 178551.
October 11, 2010).
NOTE: Sec. 188 of the LGC provides that within ten (10)
days after their approval, certified true copies of all Mistake of fact v. Mistake of law
provincial, city, and municipal tax ordinances or revenue
measures shall be published in full for three (3) BASIS MISTAKE OF MISTAKE OF LAW
consecutive days in a newspaper of local circulation: FACT
Provided, however, That in provinces, cities and Want of Want of knowledge
municipalities where there are no newspapers of local knowledge of or acquaintance
circulation, the same may be posted in at least two (2) some fact or facts with the laws of the
conspicuous and publicly accessible places. Want of
constituting or land insofar as they
relating to the apply to the act,
subject matter on relation, duty, or
hand. matter under
Presumption of knowledge of laws consideration.
When some facts Occurs when a
GR: Everyone is conclusively presumed to know the law. which really exist person having full
Hence, ignorance of the law excuses no one from are unknown or knowledge of the
compliance therewith (Art. 3). Nature of
some fact is facts come to an
supposed to exist erroneous
NOTE: The conclusive presumption that every person which really does conclusion as to its
knows the law presupposes that the law has been not exist. legal effects
published. Without such notice and publication, there Good faith is an Not excusable, even
would be no basis for the application of the maxim Defense
excuse if in good faith
ignoratia legis non excusat (Rabuya, 2009).
Q: Eduardo was married to Ruby. He then met Tina
and proposed marriage, assuring her that he was
XPNs: single. They got married and lived together. Tina,
a. Mistake upon a doubtful or difficult question of law upon learning that Eduardo had been previously
may be the basis of good faith (Art. 526 [3], NCC) married, charged Eduardo for bigamy for which he
b. Art. 2155: Payment by reason of a mistake in the was convicted. Eduardo testified that he declared he
construction or application of a doubtful or difficult was single because he believed in good faith that his


first wife was already dead, having not heard from her Province of Amoy concerning marriage were in 1895.
for 20 years, and that he did not know that he had to Therefore, there is lacking proof so clear, strong and
go to court to seek for the nullification of his first unequivocal as to produce a moral conviction of the
marriage before marrying Tina. Is Eduardo liable for existence of the alleged prior Chinese marriage.
the crime of bigamy?
Ignorance of a foreign law is not ignorance of the law but
A: Yes. Eduardo is presumed to have acted with malice or of fact because such foreign law must be first alleged and
evil intent when he married Tina. As a general rule, proved as a matter of fact, there being no judicial notice of
mistake of fact or good faith of the accused is a valid said foreign law. The Chinese marriage was not adequately
defense in a prosecution for a felony by dolo; such defense proved (Estate of Boo v. Gee, G.R. No. 18081, March 3, 1922).
negates malice or criminal intent. However, ignorance of
the law is not an excuse because everyone is presumed to RETROACTIVITY OF LAWS
know the law. It was the burden of Eduardo to prove that
when he married Tina, he was of the well-grounded belief Retroactive law
that his first wife was already dead. He should have
adduced in evidence a decision of a competent court A legislative act that looks backward or contemplates the
declaring the presumptive death of his first wife as past, affecting acts or facts that existed before the act come
required by Art. 349 of the RPC, in relation to Art. 41 of the into effect (Blacks Law Dictionary, 2009).
FC. Such judicial declaration constitutes proof
that Eduardo acted in good faith, and would negate Retroactive effect of laws
criminal intent on his part when he married the private
complainant (Manuel v. People, G.R. No. 165842, November GR: Laws shall have no retroactive effect (lex prospicit, non
29, 2005). respicit).

Q: Complainants who were connected with the Daily XPNs: (TIN CREEP)
Informer (a widely circulated newspaper in Western 1. Tax laws
Visayas) were charged before the MTC by Judge 2. Interpretative statutes
Pamonag of the crime of libel. Respondent judge 3. Laws creating New substantive rights
conducted a preliminary investigation and thereafter 4. Curative statutes
issued warrants for the arrest of the complainants. 5. Remedial/procedural
Complainants filed an administrative case against the
judge for gross ignorance of the law. They contended NOTE: Statutes regulating the procedure of the courts
that the judge neither has authority to conduct a will be construed as applicable to actions pending and
preliminary investigation nor to issue warrants for undetermined at the time of their passage. Procedural
their arrest. The judge said that it was his first libel laws are retrospective in that sense and to that extent
case and that he issued the warrants in good faith. Is (Mun. Govt of Coron v. Carno, G.R. No. 65894, Sept. 24,
the respondent guilty of gross ignorance of the law? 1987).

A: Yes. Judges are expected more than just cursory 6. Emergency laws
acquaintance with statutes and procedural rules. They 7. when Expressly provided
must know the law and apply them properly in good faith. 8. Penal laws favorable to the accused provided, accused
The provisions of Art. 360 of the RPC on the persons is not a habitual criminal
authorized to conduct preliminary investigation in libel
cases is so elementary. Not to know it constitutes gross XPNs to the XPNs: If the application of the retroactive
ignorance of the law (Miaque v. Judge Pamonag, A.M. No. law:
MTJ-02-1412. March 28, 2003). 1. Impairs obligation of contracts,
2. Is in the nature of ex post facto law or a bill of
Q: Cheong Boo, a native of China died intestate in attainder,
Zamboanga. He left a property worth P100,000. The 3. Divests vested rights, or
estate of the deceased was claimed on one hand by 4. Is constitutionally forbidden (Blacks Law
Gee, who alleged that he was a legitimate child by a Dictionary, 2009)
marriage contracted by Boo with Tan Dit in China in
1895. The estate was claimed, on the other hand, by NOTE: In case of doubt, laws apply prospectively.
Mora Adong who alleged that she had been lawfully
married to Boo in 1896. Gee introduced in evidence a Non-retroactivity of laws vis--vis judicial decisions
document in Chinese stating the marriage ceremony
that took place in Amoy, China. Is the document Judicial decisions have no retroactive effects. When a
presented by Gee sufficient enough to prove the doctrine of the Supreme Court is overruled and a different
Chinese marriage of Cheong Boo and Tan Dit? view is adopted, the new doctrine should be applied
prospectively and should not apply to parties who had
A: The Supreme Court held that the the document is not relied on the old doctrine and acted on the faith thereon
sufficient to prove the Chinese marriage between Cheong (Rabuya, 2009).
Boo and Tan Dit. Gee only presented a document in
Chinese stating the alleged marriage ceremony but there is
no competent testimony as to what the laws of China in the


Retroactivity clause of Family Code Kinds of rights

Family Code contains a retroactive clause. Art. 256 of the 1. Natural Rights Those which grow out of the nature
Family Code provides that the Code shall have retroactive of man and depend upon personality. e.g. right to life,
effect insofar as it does not prejudice or impair vested or liberty, privacy, and good reputation
acquired rights in accordance with the NCC or other laws. 2. Political Rights Consist in the power to participate,
directly or indirectly, in the establishment or
MANDATORY OR PROHIBITORY LAWS administration of government. e.g. right of suffrage,
right to hold public office, right of petition
Mandatory law 3. Civil Rights Those that pertain to a person by virtue
of his citizenship in a state or community. e.g.
A law or a provision in a statute is said to be mandatory property rights, marriage, equal protection of laws,
when disobedience to it, or want of exact compliance with freedom of contract, trial by jury (Pineda, 2009).
it, will make the act done under the statute absolutely void a. Rights of personality or human rights;
(Blacks Law Dictionary, 2009). b. Family rights; and
c. Patrimonial rights:
Prohibitory law i. Real rights
ii. Personal rights (Rabuya, 2009)
A law or a provision in a statute is said to be prohibitory
when it forbids a certain action (Blacks Law Dictionary, Unwaivable rights
1. Right to live and right to future support
Permissive law 2. Right to personality and family rights
3. Right to future inheritance This is especially so if the
A law or a provision in a statute is said to be permissive or waiver is intended to prejudice creditors. Hence,
directory when it allows certain acts but does not under Art. 1052 of the NCC, if an heir repudiates the
command them (Blacks Law Dictionary, 2009). inheritance to the prejudice of his own creditors, the
latter may petition the court to authorize them to
Violation of Mandatory or Prohibitory Laws accept it in the name of the heir (Albano, Civil Law
Reviewer, 2013).
GR: Acts executed against the provisions of mandatory or 4. Political rights- Hence, if a candidate for mayor agrees
prohibitory laws are void (Art. 5, NCC) to split his term of office with the vice-mayor to
prevent the latter from running against him, the
XPNs: Where the law: contract is void by reason of public policy (Albano,
1. Makes the act valid but punishes the violator. e.g. 2013).
Marriage solemnized by a person not authorized to do
so; Waiver of rights
2. Itself authorizes its validity;
3. Makes the act merely voidable; GR: Rights can be waived.
4. Declares the nullity of an act but recognizes its effects
as legally existing, e.g. Child born after the annulment XPNs:
of marriage is considered legitimate.
1. If waiver is:
WAIVER OF RIGHTS a. Contrary to law, public order, public policy,
morals or good customs.
Waiver b. Prejudicial to a third person with a right
recognized by law.
It is the intentional or voluntary relinquishment of a 2. If the right is:
known right or such conduct as warrants an inference of a. A natural right, such as right to life.
relinquishment of such right. b. Inchoate, such as future inheritance.

NOTE: Waivers can be express or implied, however, it Requisites of a valid waiver

cannot be presumed. It must be clearly and convincingly
shown, either by express stipulation or acts admitting no 1. Waiving party must actually have the right he is
other reasonable explanation. renouncing
2. He must have full capacity to make the waiver
Right 3. Waiver must be clear and unequivocal
4. Waiver must not be contrary to law, public order,
It is a legally enforceable claim of one person against public morals, etc.
another, that the other shall do a given act, or shall not do a 5. When formalities are required, they must be complied
given act (Pineda, 2009). with


Q: A student was granted a scholarship but agreed not 2. There is a clear, necessary and irreconcilable conflict
to transfer to another school unless he would refund 3. The subsequent general law covers the whole subject
all the benefits he derived out of his scholarship. Is the and is clearly intended to replace the special law on
stipulation valid? Why? the matter (Rabuya, 2009).

A: No, it is void because it is contrary to public policy and Self-lapsing laws

morals (Cui v. Arellano University, G.R. L-15127, May 30,
1961). Laws that provide for their limited application (i.e. House
Rental Law, Annual Appropriations Act, Import Control


Is the abrogation of an existing law by a legislative act Judicial decisions

(Blacks Law Dictionary, 2009).
Judicial decisions are evidence of what the laws mean.
Ways of repealing laws
The judicial decisions form part of the law of the land as of
1. Express - If the law expressly provides for such the date of the enactment of said law. The Supreme Courts
2. Implied If the provisions of the subsequent law are interpretation merely establishes the contemporaneous
incompatible or inconsistent with those of the legislative intent that the construed law purports to carry
previous law, provided, it is impossible to reconcile into effect. However, the decisions referred to in Art. 8 of
the two laws. the NCC are only those enunciated by the SC (Rabuya,
Requisites of implied repeal
NOTE: When a doctrine is overruled and a different view is
1. The laws cover the same subject matter; and adopted, the new doctrine should be applied prospectively
2. The latter is repugnant to the earlier (Rabuya, 2009) and should not prejudice parties who relied on the old
NOTE: Implied repeals are not to be favored because they
rest only on the presumption that because the old and the Doctrine of Stare Decisis
new laws are incompatible with each other, there is an
intention to repeal the old (Rabuya, 2009). It is adherence to judicial precedents. Once a question of
law has been examined and decided, it should be deemed
Instances of implied repeal settled and closed to further argument.

1. When the provisions in the two acts on the same NOTE: This doctrine, however, is not inflexible, so that
subject matter are irreconcilably contradictory, in when in the light of changing conditions, a rule has ceased
which case, the later act, to the extent of the conflict, to be beneficial to the society, courts may depart from it.
constitutes an implied repeal of earlier one; and
2. When the later act covers the whole subject of the Obiter Dictum
earlier one and is clearly intended as a substitute;
thus it will operate to repeal the earlier law An opinion expressed by a court upon some question of
(Carmelita Lledo v. Atty. Cesar V. Lledo, A.M. No. P-95- law which is not necessary to the decision of the case
1167, February 9, 2010). before it. Such are not binding as precedent (Rabuya,
Revival of repealed law
Revival depends on the manner how 1st law was repealed:
1. If the 1st law is repealed by implication by the 2nd law Rendering of judgment by reason of silence of law
and the 2nd law is repealed by the 3rd law; the 1st law
is revived unless otherwise provided. No judge or court shall decline to render judgment by
2. If the 1st law is expressly repealed by the 2nd law and reason of the silence, obscurity or insufficiency of the law
the 2nd law is repealed by the 3rd law, the 1st law is not (Art. 9, NCC).
revived unless expressly provided so.
However, in criminal prosecutions, the judge must dismiss
Conflict between general and special laws the case if a person is accused of a non-existent crime
following the maxin nullum crimen, nulla poena sine lege
If the general law was enacted prior to the special law, the (Rabuya, 2009).
latter is considered the exception to the general law.
NOTE: This duty, however, is not a license for courts to
If the general law was enacted after the special law, the engage in judicial legislation. The duty of the courts is to
special law remains unless: apply or interpret the law, not to make or amend it.

1. There is an express declaration



Guidelines on rendition of decisions under Art. 9 Non-applicability of customs in criminal cases

1. When there is no law exactly applicable to the point in In criminal cases, customs cannot be applied because
controversy, the custom of the place shall be applied nullum crimen nulla poena sine lege (There is neither crime
and in default thereof, the general principles of law. nor punishment, without a law).
2. Decisions of foreign courts
3. Opinions of known authors and professors LEGAL PERIODS
4. Applicable rules of Statutory Construction
5. Principles formulated in analogous cases Computation of period

PRESUMPTION AND APPLICABILITY OF CUSTOM 1. Year 12 calendar months (CIR v. Primetown

Property Group, Inc., 531 SCRA 436, 2007)
Presumption in the interpretation of laws
NOTE: In CIR v. Primetown Property Group, Inc., the
In case there is doubt in the interpretation or application Supreme Court declared that the provision of Section
of laws, it is presumed that the lawmaking body intended 31, Chapter VII, Book I of the Administrative Code of
right and justice to prevail (Art. 10, NCC). 1987, being a more recent law, governs the
computation of legal periods with respect to counting
In case of silence, obscurity or insufficicency of the law a year.
with respect to a particular controversy
In the same case, the Court explained that Calendar
If the law is silent, or is obscure or insufficient with respect Month is a month designated in the calendar without
to a particular controversy, the judge shall apply the regard to the number of days it may contain. It is the
custom of the place, and in default thereof, the general period of time running from the beginning of a
principles of law and justice. certain numbered day of the next month, and if there
is not sufficient number of days in the next month,
Customs then up to and including the last day of that month.
To illustrate, one calendar month from December 31,
Customs are rules of conduct, legally binding and 2007 will be from January 1, 2008 to January 31,
obligatory, formed by repetition of acts uniformly 2008; one calendar month from January 31, 2008 will
observed as a social rule. be from February 1, 2008 until February 29, 2008.
Hence, twelve calendar months from December 31,
Necessity of proving customs 2007 is December 31, 2008; while twelve calendar
months from January 31, 2008 to January 31, 2009 (as
GR: Customs must be proved as a fact, according to the cited in Rabuya, 2009).
rules on evidence (Art. 12, NCC).
2. Month 30 days, unless designated by their name, in
XPN: Courts may take judicial notice of a custom if there is which case, they shall be computed according to the
already a decision rendered by the same court recognizing number of days which they respectively have.
the custom. 3. Day 24 hours
4. Night time from sunset to sunrise
Requisites before such custom could be considered a 5. Week 7 successive days regardless of which day it
source of right would start
6. Calendar week Sunday to Saturday
1. Plurality of acts
2. Uniformity of acts NOTE: In computation of period, the first day shall be
3. General practice by the great mass of the people of the excluded, and the last day included.
country or community
4. Continued practice for a long period of time If the last day falls on a Sunday or a legal holiday
5. General conviction that the practice is the proper rule
of conduct If the act to be performed within the period is:
6. Conformity with law, morals or public policy (1
Tolentino. Civil Code, p. 39; 1 Manresa 82). 1. Prescribed or allowed by:
a. the Rules of Court
Application of customs in civil cases b. an order of the court; or
c. any other applicable statute
In civil cases, customs may be applied by the courts in
cases where the applicable law is: (SOI) The last day will automatically be the next working day.
a. Silent
b. Obscure 2. From a contractual relationship The act will still
c. Insufficient become due despite the fact that the last day falls on a
Sunday or a legal holiday.
NOTE: Provided said customs are not contrary to law,
public morals, etc.


testamentary provisions - governed by national
CONFLICT OF LAWS law (in Philippines) not lex situs
b. Contracts involving real property but do not deal
Application of laws with title or real rights over the property, the
issue being the contractual rights and liabilities
1. Penal laws of parties - governed by the proper law of the
contract (lex loci voluntatis or lex loci intentionis)
GR: Territoriality rule - Penal laws and laws of public c. In contracts where real property is given as
security and safety shall be obligatory upon all who security by way of mortgage to secure a principle
live or sojourn in the Philippine territory (Art. 14, contract (i.e. loan) - loan is governed by the
NCC) proper law of the contract while the mortgage is
governed by the lex situs
XPNs: Philippine penal laws will not apply by virtue d. While the validity of the transfer of land must be
of: determined by the lex situs, the validity of the
contract to transfer is determined by the proper
a. Treaty stipulations law of the contract
b. Principles of Public International Law
c. Laws of Preferential Application. e.g. 4. Law governing extrinsic validity of contracts, wills and
Ambassadors, Ministers public instruments
d. International agencies enjoying diplomatic
immunity GR: Lex loci celebrationis (Art. 17, NCC) forms and
solemnities of contracts, wills and other public
NOTE: Consul is not entitled to the privileges and instruments shall be governed by the laws of the
immunities of ambassadors or ministers. country in which they are executed

2. Status laws XPNs: Philippine law shall apply in the following

cases even though performed abroad:
GR: Nationality rule - Laws relating to:
a. Family rights and duties a. Acts are executed before the diplomatic or
b. Status and condition consular officials of the Philippines.
c. Legal capacity of persons are binding upon b. Prohibitory laws concerning persons, their acts
citizens of the Philippines even though living or property, and those which have for their
abroad (Art. 15, NCC) object public order, public policy and good
customs (Art. 17, NCC).
a. In case of divorce obtained validly by an alien Q: The second clause of the will of Joseph, a Turkish
pursuant to the rules that governs his country, citizen and a resident of the Philippines, states that:
the Filipino spouse shall be considered also as xxx, it is my wish that the distribution of my property
divorced (Van Dorn v. Romillo, Jr., 139 SCRA 139, and everything in connection with this, my will, be
1985). made and disposed of in accordance with the laws in
force in the Philippine Islands, requesting all of my
Once it is proven however that a party was no relatives to respect this wish, otherwise, I annul and
longer a Filipino citizen when he obtained the cancel beforehand whatever disposition found in this
divorce from his Filipino spouse, the ruling in will favorable to the person or persons who fail to
Van Dorn would also apply. Thus, the validity of comply with this request. Is the clause above-quoted
the divorce will be determined based on the law valid?
of the country of which he is a citizen at the time
the valid divorce is obtained (Rabuya, 2009). A: No, it is void. The second clause of the will regarding the
law which shall govern it and the condition imposed, is
b. Domiciliary rule applies to stateless persons null and void, being contrary to law. Art. 792 of the Civil
Code provides that Impossible conditions and those
NOTE: The basis for determining the personal law of contrary to law or good morals shall be considered as not
an individual is either the Domiciliary Rule (Domicile) imposed and shall not prejudice the heir or legatee in any
or Nationality Rule (Citizenship) manner whatsoever, even should the testator otherwise
3. Real statutes Laws on Property
Said clause is contrary to law because it expressly ignores
GR: Lex Rei Sitae Real property as well as personal the testator's national law when, according to Art. 16 of
property is subject to the law of the country where it the NCC, such national law of the testator is the one to
is situated (Art. 16, NCC). govern his testamentary dispositions. Said condition then
is considered unwritten, hence the institution of legatees is
XPNS: unconditional and consequently valid and effective.
a. Succession as to order of succession, amount of
successional rights and intrinsic validity of the


Conflict of Laws Doctrines XPN: Art. 26 par. 2 of the Family Code (FC), on mixed
marriages where the foreigner obtained a divorce decree
1. Renvoi Doctrine (referring back) Renvoi takes abroad and was thereby capacitated to remarry.
place when the conflicts rule of the forum makes a
reference to a foreign law, but the foreign law is found NOTE: In this case, even though divorce is not recognized
to contain a conflict rule that returns or refers the in the Philippines as a mode of terminating marriage, still
matter back to the law of the forum (Remission). the marriage is terminated by virtue of a judgment of
2. Transmission theory Provides that when the conflicts divorce and issuance of a divorce decree by a foreign court.
rule of the forum makes a reference to a foreign law,
but the foreign law is found to contain a conflict rule Requirements for the application of par. 2 of Art. 26 of
that refers it to a third country, the law of the third the Family Code
country shall apply.
3. Doctrine of Processual Presumption The foreign law, 1. There is a valid marriage that has been celebrated
whenever applicable, should be proved by the between a Filipino citizen and a foreigner; and
proponent thereof, otherwise, such law shall be 2. A valid divorce is obtained abroad by the alien spouse
presumed to be exactly the same as the law of the capacitating him or her to re-marry (Albano, Civil Law
forum. Reviewer, 2013).
4. Doctrine of Operative Facts Acts done pursuant to a
law which was subsequently declared Law that governs the validity of marriage in case of
unconstitutional remain valid, but not when the acts mixed marriages
are done after the declaration of unconstitutionality.
If the marriage is valid
Q: Edward is a citizen of California domiciled in the under the law of one of
Philippines. After he executed his will, he went back to the spouses while void
America and stayed there. During the post mortem under the law of the other,
probate of the will, Helen, his illegitimate natural the validity of the
Marriage between a
child, opposed it on the ground of preterition. She marriage should be
Filipino and foreigner
claims that under Art. 16 par. 2 of the Civil Code, in upheld, unless the
case of succession, the national law of the deceased - marriage is universally
the civil code of California - should govern., which incestuous or highly
provides that if a Californian not domiciled in immoral (the same rule as
California dies, the law of his domicile must govern. to foreigners who get
Lucy, on the other hand, counters that under the same married abroad)
provision, the national law of the deceased should The national law of the
apply. Which law should be applied Philippine law or Marriage between a Filipino Philippine law
Californian Law? Filipino and a should be followed
foreigner in the otherwise the countrys
A: Philippine law should be applied. Where the testator PHILIPPINES public policy would be
(Edward) was a citizen of California, and domiciled in the violated
Philippines, the amount of successional rights should be
governed by his national law, that is, Californian law. Law that governs the personal relations of the spouses
However, the conflict of law rules of California provides
that in cases of citizens who are residents of another GR: The personal relations of the spouses are governed by
country, the law of the country of domicile should apply, the national law of the husband
hence, Philippine law on legitimes should be applied. This
is so because California law itself refers the case back to Ipso facto becomes a
the Philippines. The Philippine court has no other Filipino citizen if she does
alternative but to accept the referring back, for to do not suffer under any
otherwise, might result again in its referring back to the disqualification for
Philippines, which would give rise to a sort of an Alien woman who
naturalization as a Filipino
international football (Aznar v. Garcia, G.R. No.L-16749. marries a Filipino
January 31, 1963). husband
Personal relations:
Effect of laws, judgments promulgated or conventions national law of the
agreed upon in a foreign country on Philippine husband shall govern (GR)
prohibitive laws Constitution provides that
she shall retain her
GR: Prohibitive laws concerning persons, their acts, or Philippine citizenship,
property and laws which have for their object public order, unless by her act or
public policy or good customs are not rendered ineffective A Filipina who marries
omission, she is deemed,
by laws, judgments promulgated or conventions agreed an alien husband
under our law, to have
upon in foreign country. renounced her


Personal relations: Art. adopter is the childs constructive domicile
80 of the Family Code
provides that the national INSANES, IDIOTS, IMBECILES
law of the wife or The law assigns their domicile to them:
Philippine law would
govern the spouses 1. If they are below the age of majority, the rules on
personal relations (rule minors apply to them
was intended to protect
the Filipino wife) 2. If they are of age and have guardians, they follow
the domicile of choice of their guardians
Effects of change of nationalities of the spouses
governing law 3. If they are of age and have no guardians, their
constructive domicile is their domicile of choice
1. If the spouses have the same nationality but they before they became insane
acquire a new nationality by their common act their
new national law will govern their personal relations MARRIED WOMEN
2. If the husband alone changes his nationality after the 1. The constructive
marriage The law of the last common nationality of domicile of the wife is
the spouses would govern the domicile of both
3. If the spouses retain their different nationalities after spouses, unless the law
the marriage National law of both spouses should allows the wife to have
govern a separate domicile for
valid and compelling
Rules in determining the domicile of a person reasons
If the marriage is valid 2. If there is legal
His domicile of origin is separation between the
that of his parents at the spouses, the wife can
time of his birth have her own domicile
If the child is legitimate of choice
If parents are separated, 3. If there is a separation
the domicile of the de facto, the wife can
custodial parent also have a separate
His domicile of origin is domicile
If the child is illegitimate that of the mother at the Apply the same rules
time of his birth when the marriage is
The domicile of his father If the marriage is valid. However, after
If the child is legitimated at the time of his birth voidable annulment, the wife can
controls freely select her own
The domicile of origin is domicile of choice
the domicile of his real The wife can have a
If the child is adopted parents at the time of his If the marriage is void domicile separate from
birth, NOT the domicile of the husband
the adopters OTHER PERSONS
The domicile of origin is His domicile is the one he
If a foundling the country where it was Convict or prisoner had possessed prior to his
found incarceration
Their domicile is their
MINORS Their domicile is the one
1. If legitimate, the domicile of both parents they had before they were
Public officials or assigned elsewhere,
In case of disagreement, that of the father, unless employees abroad unless they voluntarily
there is a judicial order to the contrary (diplomats, etc) adopt their place of
employment as their
2. If illegitimate, the domicile of the mother permanent residence

3. In case of absence or death of either parent, the

domicile of the present parent.

Even in case of remarriage of the surviving parent,

still his/her domicile determines the constructive
domicile of the minor child

4. If the child is adopted, the domicile of choice of the


Law that governs the validity of contracts Warsaw Convention

Extrinsic Capacity Intrinsic NOTE: If contracts involve encumbrances of property, real

validity of validity or personal, apply lex situs. If personal contracts, law on
parties contracts will apply.
Barter, sale,
Lex situs Lex situs Lex situs
Lease of
property: Abuse of right
Lex situs Lex situs Lex situs
creates real
rights A right, though by itself legal because recognized or
Lease of Personal Lex granted by law as such, may become the source of some
property: does Lex loci law of voluntatis illegality. When a right is exercised in a manner which
not create real celebrationis the or lex loci does not conform to the norms enshrined in Art. 19 and
rights parties intentionis results in damage to another, a legal wrong is thereby
Pledge, chattel committed for which the wrongdoer must be held
mortgage, real responsible.
estate Lex situs Lex situs Lex situs
mortgage, This principle is based upon the famous maxim summum
antichresis jus summa injuria (the abuse of a right is the greatest
Personal Lex loci possible wrong) (Arlegui v. CA, G.R. No. 126437, March 6,
Contract of Lex loci law of voluntatis 2002).
loan: mutuum celebrationis the or lex loci
parties intentionis Rationale: The exercise of a right ends when the right
Contract of disappears, and it disappears when it is abused, especially
loan: Lex situs Lex situs Lex situs to the prejudice of others. The mask of a right without the
commodatum spirit of justice which gives it life is repugnant to the
Lease of modern concept of social law. It cannot be said that a
service, agency, person exercises a right when he unnecessarily prejudices
guaranty, another or offends morals or good customs (Pineda, 2009).
suretyship Lex loci
Personal Elements of abuse of right
NOTE: Agency Lex loci voluntatis
law of
to alienate or celebrationis or lex loci
parties 1. There is a legal right or duty;
encumber real intentionis
property is 2. Such duty is exercised in bad faith;
governed by lex 3. It is for the sole intent of prejudicing or injuring
situs another;
Personal 4. The absence of good faith is essential to abuse of right
Lex loci law of Lex loci (Rabuya, Civil Law Reviewer)
celebrationis the voluntatis
parties Principle of Damnum Absque Injuria
Liability for loss, destruction,
deterioration of goods in transit: law Under this principle which literally means damage without
of destination of goods (Art. 1753, injury, one who merely exercises ones rights does no
NCC) actionable injury and cannot be held liable for damages.
This is premised on the valid exercise of a right (Amonoy v.
If COGSA applies, limitation on liability Guitierrez, 351 SCRA 731, 2001).
applies, unless the shipper declares
Contract of value of goods and inserts such NOTE: Injury is the illegal invasion of a legal right; damage
transportation declaration in the bill of lading is the loss, hurt, or harm which results from the injury; and
or carriage damages are the recompense or compensation awarded
(render for the damage suffered. There can be damage without
services) Contract for air transportation injury in those instances in which the loss or harm was not
(Warsaw Convention) the result of a violation of a legal duty. In such cases, the
consequences must be borne by the injured person alone
1. The liability of the airline in case of (Panteleon v. American Express, G.R. No. 174269, August 25,
death, injury to passengers, or loss or 2010).
damage to cargo is governed by
Warsaw Convention Article 19, 20 and 21 in the enforcement and sanctions
of abuse of right
2. If there was malice, gross
negligence, or bad faith, or improper While Art. 19 lays down the rule of conduct for the
discrimination, carrier is liable for government of human relations, it does not provide a
damages beyond those limited by remedy. Generally, an action for damages under either Art.
20 or Art. 21 would be proper. Art. 21 deals with acts


contra bonus mores or contrary to good morals and XPN: When the act is not a mere breach of promise to
presupposes loss or injury, material or otherwise, which marry but constitutes one where damages pursuant to Art.
one may suffer as a result of such violation. Under Arts. 19 21 of the NCC may be recovered, such as:
and 21, the act must be intentional (Rabuya, 2006).
1. Where the woman is a victim of moral seduction
Furthermore, Article 20 speaks of the general sanction for (Gashem Shookat Baksh v. CA, G.R. No. 97336, February
all other provisions of law which do not especially provide 19, 1993).
for their own sanction. Article 21 on the other hand, 2. Where one formally sets a wedding and go through
speaks of act which is legal but is contrary to morals, good and spend for all the preparations and publicity, only
custom, public order or public policy and is done with to walk out of it when the matrimony was about to be
intent to injure. solemnized (Wassmer v. Velez, G.R. No. L-20089,
December 26, 1964).
Sanction for abuse of right under Article 20 of the NCC 3. Where the woman is a victim of abduction and rape,
and thereafter the accused promised to marry her to
Generally, laws provide for their own sanctions and avoid criminal liability but later reneged on his
methods of enforcement thereof. Article 20 applies only in promise. These are grossly insensate and
cases where the law does not provide for its own reprehensible transgressions which indisputably
sanctions. Hence, Every person who, contrary to law, warrant and abundantly justify the award of moral
wilfully or negligently causes damage to another shall and exemplary damages, pursuant to Art. 21 (Buag,
indemnify the latter for the same (Art. 20, NCC). Said article Jr. v. CA, G.R. No. 101749, July 10, 1992).
provides for a general sanction indemnification for
damages (Pineda, 2009). Q: Maria met Ayatollah, an Iranian medical student, at
the restaurant where she worked. A few days after,
In view of the general sanction provided for under Art. 20, Ayatollah courted and proposed to marry Maria. The
a person however does not have an absolute right to be latter accepted his love on the condition that they
indemnified, it is essential that some right of his be would get married. When the couple visited Maria's
impaired. Without such, he is not entitled to parents, Ayatollah was allowed to sleep with Maria
indemnification (Pineda, 2009). during the few days of their stay. The couple continued
to live together in an apartment, but Ayatollah's
Sanctions for abuse of right under Article 21 of the NCC attitude towards Maria changed. He maltreated her
and when Maria became pregnant, Ayatollah gave her
Any person who willfully causes loss or injury to another medicine to abort the fetus. Despite the abuses, Maria
in a manner that is contrary to morals, good customs or continued to live with Ayatollah and kept reminding
public policy shall compensate the latter for the him of his promise to marry her. However, Ayatollah
damage(Art. 21, NCC). It fills countless gaps in the statutes, told her that he could not do so because he was
which leave so many victims of moral wrongs helpless, already married to a girl in Bacolod City. Maria left and
even though they suffered material and moral damages filed a complaint for damages against Ayatollah for the
(Tolentino, p. 70). alleged violation of their agreement to get married.
May damages be recovered for a breach of promise to
Elements of an action under Art. 21, NCC (Contra Bonus marry on the basis of Art. 21 of the NCC?
A: Yes. A breach of promise to marry per se is not an
1. There is an act which is legal; actionable wrong. But where a man's promise to marry is
2. Such act is contrary to morals, good customs, public the proximate cause of the acceptance of his love by a
order or policy; woman and his representation to fulfill that promise
3. It is done with intent to injure. thereafter becomes the proximate cause of the giving of
herself unto him in a sexual congress, proof that the
Civil liability for moral negligence promise was only a deceptive device to inveigle her to
obtain her consent to the sexual act, could justify the
There is no civil liability for moral negligence. A person is award of damages pursuant to Art. 21, not because of such
required to act with prudence towards others, but not with promise to marry but because of the fraud and deceit
charity; the law imposes diligence and not altruism. Hence, behind it and the willful injury to her honor and reputation
the failure to make sacrifices or egoism does not constitute which followed thereafter. It is essential, however, that
a source of liability (Tolentino, p. 69). such injury should have been committed in a manner
contrary to morals, good customs or public policy. In the
Illustration: A person who fails to render assistance to a instant case, Ayatollah's fraudulent and deceptive
drowning person or to the victim of an accident, cannot be protestations of love for and promise to marry Maria that
held liable for damages (3 Colin & Capitant 826). made her surrender her virtue and womanhood to him
and to live with him on the honest and sincere belief that
Breach of promise to marry he would keep said promise. In short, Maria surrendered
her virginity, the cherished possession of every single
GR: A breach of promise to marry per se is not an Filipina, not because of lust but because of moral seduction
actionable wrong. There is no provision in the NCC (Gashem Shookat Baksh v. CA, G.R. No. 97336, February 19,
authorizing an action for breach of promise to marry. 1993).


Q: Soledad a high school teacher used to go around
together with Francisco who was almost ten (10) years Remedy for Unjust Enrichment
younger than her. Eventually, intimacy developed
between them after Soledad became an underwriter in The remedy is Accion In Rem Verso. It is an action for
Cebu. One evening, they had sexual intercourse in recovery of what has been paid without just cause.
Francisco's cabin on board M/V Escao, to which he
was then attached as apprentice pilot. After a few NOTE: Mistake is not an essential element, as opposed to
months, Soledad advised Francisco that she was solution indebiti where mistake is an essential element.
pregnant, whereupon he promised to marry her. Later
their child was born. However, subsequently, Accion in rem verso
Francisco married another woman. Soledad filed a
complaint for moral damages for alleged breach of It is an action for recovery of what has been paid or
promise to marry. May moral damages be recovered delivered without just cause or legal ground. Under Art. 22
for breach of promise to marry? of the NCC, if a person acquires or comes into possession of
something at the expense of another without just or legal
A: No. It is the clear and manifest intent of our law making ground through an act or of performance by another or
body not to sanction actions for breach of promise to any other means has the obligation to return the same.
marry. Moreover, Francisco is not morally guilty of
seduction, not only because he is approximately 10 years Accion in rem verso can only be availed of if there is no
younger than the complainant who around 36 years of other remedy to enforce it based on contract, quasi-
age, and as highly enlightened as a former high school contract, crime or quasi-delict.
teacher and a life insurance agent are supposed to be
when she became intimate with him, than a mere Requisites
apprentice pilot, but, also, because, the court of first
instance found that, complainant "surrendered herself" to 1. The defendant has been enriched;
Francisco because, "overwhelmed by her love" for him, 2. The plaintiff has suffered a loss;
she "wanted to bind" "by having a fruit of their 3. The enrichment of the defendant is without just or
engagement even before they had the benefit of clergy legal ground; and
(Hermosisima v. CA, G.R. No. L-14628, September 30, 1960). 4. The plaintiff has no other action based on contract,
quasi-contract, crime or quasi-delict.
NOTE: To constitute seduction there must be some
sufficient promise or inducement and the woman must When accion in rem verso may be availed of
yield because of the promise or other inducement. If she
consents merely from carnal lust and the intercourse is It can only be availed of if there is no other remedy to
from mutual desire, there is no seduction. enforce it based on contract, quasi-contract, crime or
Prohibition against Unjust Enrichment
Accion in rem verso v. Solutio Debiti
No one shall unjustly enrich himself at the expense of
another (Pacific Merchandising Corp. v. Consolacion Mistake is an essential element in solutio indebiti. In accion
Insurance and Surety Co., Inc., No. L-30204, October 29, in rem verso, it is not necessary that there should have
1976). been mistake in the payment (Rabuya, 2006).

NOTE: Coverage of the article applies only if: Liability without fault or negligence

1. Someone acquires or comes into possession of The NCC recognizes liability without fault or negligence,
something which means delivery or acquisition of even when the event producing loss to others may be
things; and accidental or fortuitous, so long as another person is
2. Acquisition is undue and at the expense of another, benefited through such event or act (Art. 23, NCC).
which means without any just or legal ground.


PERSONS AND FAMILY RELATIONS 3. Deaf-mute Lacking sense of hearing and the inability
to speak
Person v. Personality
NOTE: Only deaf-mutes who do not know how to
A person is every physical or moral, real or juridical and write are declared by law incapable of giving consent.
legal being susceptible of rights and obligations or being
the subject of legal relations. Personality, on the other 4. Imbecility State of a person who while advanced in
hand, is the aptitude to be the subject, active or passive, of age has the mental capacity comparable to that of a
juridical relations. One is a person, while one has child between two and seven years of age
personality (Rabuya, 2006). 5. Prodigality A spendthrift or squanderer
6. Civil Interdiction An accessory penalty imposed
Kinds of persons upon an accused who is sentenced to a principal
penalty not lower than reclusion temporal.
1. Natural Human beings and have physical existence
2. Juridical Artificial persons and product of legal NOTE: The following are the effects of civil
fiction interdiction:

Juridical capacity v. Capacity to act 1. Deprivation of parental or marital authority;

2. Deprivation of the right to be the guardian of the
JURIDICAL person and property of a ward;
BASIS CAPACITY TO ACT 3. Deprivation of his property by act inter vivos; and
Fitness to be the 4. Deprivation of the right to manage one's properties
Power to do acts (Art. 34, RPC).
subject of legal
Definition with legal effect
relations (Art
(Art. 37, NCC) NOTE: They do not exempt the incapacitated person from
37, NCC)
certain obligations.
Through the
Inherent (co-
fulfillment of
Acquisition exists with the Circumstances that modify or limit capacity to act
specific legal
natural person)
1. Insanity
Only through Through death and
Loss 2. Prodigality
death other causes
3. Age
Can exist
In relation to Cannot exist w/o 4. Imbecility
without capacity
the other juridical capacity 5. Deaf-Mute
to act
6. Family Relations
Art. 38 (restriction) 7. Alienage
Art. 39
8. Trusteeship
Limitation None (modification/
9. Penalty
10. Insolvency
among others
11. Absence
NOTE: A person is presumed to have capacity to act NOTE: Prodigality per se doesnt automatically modify or
(Standard Oil Co. v. Arenas, et al, 14 Phil. 363). restrict a persons capacity to act. There must be a
declaration thereof and be placed under guardianship
Status under the Rules on Special Proceeding.
The status of a person is the legal condition or class to BIRTH
which one belongs in a society (1 del Viso 32, 2 Sanchez
Roman 110). Determination of personality
Civil personality The Civil Code provides that birth determines personality,
but the conceived child shall be considered born for all
It is merely the external manifestation of either juridical purposes that are favorable to it, provided it is born later
capacity or capacity to act. Consequently, it may be defined with the conditions specified in Art. 41 (Art. 40, NCC).
as the aptitude of being the subject of rights and
obligations (2 Sanchez Roman 114-147). This provision has been superseded by Art. 5 of P.D. No.
603 (The Child and Youth Welfare Code), which declares
RESTRICTIONS ON CAPACITY TO ACT that the civil personality of the child shall commence from
the time of his conception, for all purposes favorable to
Restrictions on capacity to act (MIDI-PC [Art. 38, NCC]) him, subject to the requirements of Art. 41 of the NCC.
1. Minority - State of a person who is under the age of
legal majority which is eighteen years of age
2. Insanity State of a person whose mental faculties are


Acquisition of personality through birth Effect of death on civil personality

GR: Actual/Permanent Personality Personality begins at Death extinguishes civil personality. However, the rights
birth, not at conception. and obligations of the deceased are not necessarily
extinguished by his death (Pineda, 2009).
XPN: Presumptive/Temporary The law considers the
conceived child as born (Conceptus pro natohabetur) Rules to apply in case there is doubt as to who died
NOTE: For there to be presumptive personality, the foetus
must be born later in accordance with law and the It depends on whether the parties are called to succeed
purpose for which such personality is given must be each other.
beneficial to the child.
1. If successional rights are involved Art. 43 of the NCC:
Born later in accordance with law Survivorship Rule, and Rule 131, Sec. 3(kk):
Presumption of simultaneous deaths between persons
A foetus with an intra-uterine life of: called to succeed each other, apply.
1. Less than 7 months Must survive for at least 24 2. If no successional rights are involved Rule 131, Sec. 3
hours after its complete delivery from the maternal (jj) of the Rules of Court applies. (Presumption of
womb survivorship)
2. At least 7 months If born alive, it shall be considered
born even if it dies within 24 hours after complete NOTE: Both are to be applied only in the absence of facts.
Q: Jaime, who is 65, and his son, Willy, who is 25, died
NOTE: Complete delivery means the cutting of the in a plane crash. There is no proof as to who died first.
umbilical cord. Jaimes only surviving heir is his wife, Julia, who is also
Willys mother. Willys surviving heirs are his mother,
Provisional personality of a conceived child Julia, and his wife, Wilma.

A conceived child, although as yet unborn, has a limited In the settlement of Jaimes estate, can Wilma
and provisional personality. Its personality is provisional successfully claim that her late husband, Willy, had a
because it depends upon the child being born alive later hereditary share since he was much younger than his
under certain conditions. father and therefore, should be presumed to have
survived longer?
Rights of the conceived child
A: No, Wilma cannot successfully claim that Willy had a
Since a conceived child has a provisional personality even hereditary share in his fathers estate.
while inside the mothers womb, it is entitled to the
following rights: Under Art. 43 of the NCC, two persons who are called to
succeed each other are presumed to have died at the same
a. Right to support time, in the absence of proof as to which of them died first.
b. To receive donations This presumption of simultaneous death applies in cases
c. To be acknowledged (Rabuya, 2009) involving the question of succession as between the two
who died, who in this case, are mutual heirs, being father
Right to be acknowledged and son.

A conceived child has the right to be acknowledged even if Q: Suppose, Jaime had a life insurance policy with his
it is still conceived. It is a universal rule of jurisprudence wife Julia, and his son, Willy, as the beneficiaries. Can
that a child, upon being conceived, becomes a bearer of Wilma successfully claim that one-half of the proceeds
legal rights and is capable of being dealt with as a living should belong to Willys estate? (1998 Bar Question)
person. The fact that it is yet unborn is no impediment to
the acquisition of rights provided it be born later in A: Yes, Wilma can invoke the presumption of survivorship
accordance with law (De Jesus v. Syquia, G.R. No. L-39110, and claim that one-half of the proceeds should belong to
November 28, 1933). Willys estate, under Rule 131, Sec.3 (jj), par. 5, Rules of
Court, as the dispute does not involve succession.
Under this presumption, the person between the ages of
Civil personality ceases depending upon the 15 and 60 is deemed to have survived one whose age was
classification of persons over 60 at the time of their deaths. The estate of Willy
endowed with juridical personality stands in place and
1. Natural persons by death stead of Willy, as beneficiary.
2. Juridical persons by termination of existence


COMPARISON OF ART. 43 AND RULE 131 evidence (Joaquin v. Navarro, G.R. No. L-5426, May 29,
Q: At the age of 18, Marian found out that she was
Survivorship rule under the NCC pregnant. She insured her own life and named her
unborn child as her sole beneficiary. When she was
If there is doubt as to who died first between 2 or more already due to give birth, she and her boyfriend Pietro,
persons who are called to succeed each other, as to which the father of her unborn child, were kidnapped in a
of them died first: resort in Bataan. The military gave chase and after one
1. Burden of Proof: Whoever alleges the death of one week, they were found in abandoned hut in Cavite.
prior to the other has the burden of proving such Marian and Pietro were hacked with bolos. Marian and
claim. the baby she delivered were both found dead, with the
2. Absent such proof: Presumption is they all died at the babys umbilical cord already cut. Pietro survived.
same time. There shall be no transmission of a. Can Marians baby be the beneficiary of the
successional rights (Rule 131, Sec. 3 [kk], Rules of insurance taken on the life of the mother?
Court). b. Between Marian and the baby, who is presumed to
have died ahead?
Conditions in the application of the survivorship rule c. Will Prieto, as surviving biological father of the
baby, be entitled to claim the proceeds of the life
It applies when the following conditions are present: insurance on the life of Marian? (2008 Bar
1. The parties are heirs to one another Question)
2. There is no proof as to who died first
3. There is doubt as to who died first A:
a) An unborn child may be designated as the beneficiary
PRESUMPTION ON SURVIVORSHIP UNDER THE RULES in the insurance policy of the mother. An unborn child
OF COURT shall be considered a person for purposes favorable to
it provided it is born later in accordance with the NCC.
Requisites for the presumption on survivorship under There is no doubt that the designation of the unborn
the Rules of Court child as a beneficiary is favorable to the child.

1. There are two or more persons; b) If the baby was not alive when completely delivered
2. They perish in the same calamity; from the mothers womb, it was not born as a person,
3. It is not shown who died first; and then the question of whom between two persons
4. There are no particular circumstances from which it survived will not be an issue. The baby had an intra-
can be inferred that one died ahead of the other. uterine life of more than 7 months, thus, it would be
considered born if it was alive at the time of its
The presumption under the survivorship rule under the complete delivery from the mothers womb. We can
Rules of Court is that the survivorship shall be determined gather from the facts that the baby was completely
from the probabilities resulting from the strength and age delivered. But whether or not it was alive has to be
of the sexes according to the following rules: proven by evidence.

Age/Sex of decedents at the time If the baby was alive when completely delivered from
Who presumed
of death the mothers womb, then it was born as a person and
to have survived
Decedent A Decedent B the question of who survived as between the baby and
Under 15 Under 15 Older the mother shall be resolved by the provisions of the
Above 60 Above 60 Younger Rules of Court on survivorship. This is because the
Under 15 question has nothing to do with succession. Obviously,
Under 15 Above 60 the resolution of the question is needed just for the
Different sexes implementation of an insurance contract. Under Rule
Above 15 BUT Above 15 BUT male 13, Sec. 3, (jj), (5) as between the baby who was under
under 60 under 60 Same sex 15 years old and Marian who was 18 years old,
Older Marian is presumed to have survived.
Under 15 OR Between 15 and Between 15 and
over 60 60 60 In both cases, therefore, the baby never acquired any
right under the insurance policy. The proceeds of the
NOTE: The statutory rules in the determination of insurance will then go to the estate of Marian.
sequence of death do not absolutely apply in a case where
indirect and/or inferential evidence surrounding the c) Since the baby did not acquire any right under the
circumstances of the deaths exists. Where there are facts, insurance contract, there is nothing for Prieto to
known or knowable, from which a rational conclusion can inherit.
be made, the presumption does not step in, and the rule of
preponderance of evidence controls. It is the "particular
circumstances from which survivorship can be inferred"
that are required to be certain as tested by the rules of



Kinds of Juridical Persons Marriage as an inviolable social institution

The following are the different kinds of Juridical Persons: It means that, marriage is an institution in which the
1. The State and its political subdivisions; community is deeply interested. The State has surrounded
2. Other corporations, institutions and entities for public it with safeguards to maintain its purity, continuity and
interest or purpose, created by law; their personality permanence. The security and stability of the State are
begins as soon as they have been constituted largely dependent on it. It is in the interest and duty of
according to law; each member of the community to prevent the bringing
3. Corporations, partnerships and associations for about of a condition that would shake its foundation and
private interest or purpose to which the law grants a lead to its destruction. The incidents of the status are
juridical personality, separate and distinct from that governed by law, not by will of the parties (Beso v.
of each shareholder, partner or member (Art. 44, NCC) Daguman, A.M. No. MTJ-99-1211, January 28, 2000 [citing
Jimenez v. Republic, G.R. No. L-12790, August 31,1960]).
Capacity of a Juridical Person
Marriage v. ordinary contract
A juridical person can acquire and possess property of all
kinds as well as incur obligations and bring civil or ORDINARY
criminal actions, provided that they are in conformity with CONTRACT
the laws and regulations of their organization (Art. 46, Special contract
Sui Generis
Nature Merely a contract
Social institution
Residence v. Domicile Governing Law Law on marriage Law on contracts
GR: Not subject
Residence is a place of abode, whether permanent or to stipulation
The parties are
temporary. Right of the
free to stipulate
parties to XPN: Property
subject to certain
Domicile denotes a fixed permanent place to which, when stipulate relations in
absent, one has the intention of returning (Animus marriage
Revertendi). settlements
Minors may
Domicile of natural persons contract thru
Capacity to Legal capacity is their parents or
The place of habitual residence is the domicile of a natural contract required guardians or in
person for the exercise of civil rights and fulfilment of civil some instances,
obligations. by themselves
Domicile of juridical persons parties may be
Gender parties must only
two or more
requirement be two persons
1. The place fixed by the law creating or recognizing the persons
of opposite sexes
juridical person; regardless of sex
2. In the absence thereof, the place where their legal Dissolved only by
representation is established or where they exercise Can be dissolved
death or
their principal functions. Dissolution by by mutual
annulment, never
agreement agreement
by mutual
MARRIAGE among others.

Marriage is a special contract of permanent union between Evidence of Marriage

a man and a woman entered into in accordance with law
for the establishment of conjugal and family life. It is the The best documentary evidence of a marriage is the
foundation of the family and an inviolable social institution marriage contract. Although a marriage contract is
whose nature, consequences, and incidents are governed considered primary evidence of marriage, the failure to
by law and not subject to stipulation, except that marriage present it is not, however, proof that no marriage took
settlements may fix the property relations during the place, as other evidence may be presented to prove
marriage within the limits provided by the Family Code marriage (Balogbog v. CA, G.R No. 83598, March 7, 1997).
(Art. 1, FC). The following may be presented as proof of marriage: (a)
testimony of a witness to the matrimony (b) the couples
public and open cohabitation as husband and wife after the
alleged wedlock (c) the birth and baptismal certificate of
children born during such wedlock and (d) the mention of
such nuptial in subsequent documents (Sarmiento v. CA,
G.R. No. 96740, March 25, 1999 citing Trinidad v. CA).


Effect in the status of marriage
Status of Marriage in case of:
Essential Requisites of Marriage 1. Absence of any of the essential requisites - Void ab
initio (Art. 4, FC)
1. Legal capacity of the contracting parties who must be 2. Absence of any of the formal requisites Void ab initio
a male and a female; (Art. 4, FC)
2. Consent freely given in the presence of the solemnizing
officer (Art. 2, FC). XPNs: Valid even in the absence of formal requisite:
a. Marriages exempt from license requirement
Legal capacity of the parties to marry (ASL) b. Either or both parties believed in good faith that
the solemnizing officer had the proper authority
1. Age at least 18 years of age (Art. 35 [2], FC)
2. Sex between male and female
3. Lack of legal impediment to marry 3. Defect in essential requisites - Voidable

NOTE: The impediments which may affect legal capacity 4. Irregularity in formal requisites - Valid, but the party
are those mentioned in Articles 37 and 38 of the Code. responsible for such irregularity shall be civilly,
Thus, the contracting parties are not legally capacitated to criminally or administratively liable.
marry each other
Reckoning of attainment of minimum age requirement
Valid marriage ceremony
The attainment of the required minimum age for marriage
should be reckoned, not on the date of filing of the That which takes place with the:
application for issuance of a marriage license, but on the 1. Personal appearance of the contracting parties before
date of the marriage. Pursuant to Article 6 of the same the solemnizing officer;
Code, parties may contract marriage on the date of the
solemnization of the marriage, i.e., when they appear NOTE: There is no marriage ceremony if what
personally before the solemnizing officer and declare in transpired was a mere private act of signing a
the presence of not less than two witnesses of legal age marriage contract by the contracting parties, without
that they take each other as husband and wife (Rabuya, the presence of the solemnizing officer (Rabuya, citing
2009). Morigo v. People, 422 SCRA 376 [2004])

Other requirements needed for the validity of such 2. Their personal declaration that they shall take each
marriage depending upon the age of the contracting other as husband and wife; and
party 3. In the presence of not less than 2 witnesses of legal
REQUIREMENTS NOTE: No particular form of ceremony or religious rite for
solemnization of the marriage is required by law (Art. 6,
Parental consent and
18 to 21 years old FC).
Marriage counseling

Parental advice and Validity of marriage by proxy

22 to 25 years old
Marriage counseling
Validity of marriage by proxy depends on the place of
celebration of marriage:
NOTE: Absence of the additional requirement of parental
advice does not make the marriage void or voidable, it only
1. If performed in the Philippines No, it is not allowed,
affects the release of the marriage license to be postponed
hence the marriage is void.
until (3) three months from the complete publication of
the application.
NOTE: Philippine laws prohibit marriages by proxy.
Since the marriage is performed in the Philippines,
Philippine laws shall apply following the principle of
lex loci celebrationis.
Formal Requisites of Marriage (CAL)
2. If performed abroad Whether it is allowed or not
1. Marriage Ceremony
depends upon the law of the place where the marriage
2. Authority of the solemnizing officer
was celebrated (lex loci celebrationis).
3. Valid marriage License (Art. 3, FC)
NOTE: As to marriages between Filipinos - all
marriages solemnized outside the Philippines, in
accordance with the laws enforced in said country


where they are solemnized, and valid there as such, executed before the local civil registrar or any other
shall also be valid here in the country, except those person legally authorized to administer oaths, that the
prohibited under Art. 35 (1), (2), (4), (5), (6), 36, 37 marriage was performed in articulo mortis and that he
and 38 (Art. 26, FC). took the necessary steps to ascertain the ages and
relationship of the contracting parties and the absence of a
SOLEMNIZING AUTHORITY legal impediment to the marriage (Art. 29, FC).

Persons authorized to solemnize marriage Failure to execute an affidavit by solemnizing officer

no effect on validity of marriage
The following are the persons authorized to solemnize
marriage depending upon the circumstances: The failure of the solemnizing officer to execute an
affidavit that he solemnized the marriage in articulo mortis
1. Under ordinary circumstances: will have no effect as to the validity of marriage. The
a. Incumbent judiciary member Provided, within marriage will still be valid. The law permits marriages in
the courts (his) jurisdiction articulo mortis without marriage license but it requires the
solemnizing officer to make an affidavit and file it.
NOTE: Where a judge solemnized a marriage
outside his courts jurisdiction, this is a mere However, such affidavit is not an essential or formal
irregularity in the formal requisite, which while it requisite of marriage, the same with a Marriage Contract.
may not affect the validity of the marriage, may The signing of the marriage contract and the affidavit is
subject the officiating official to administrative only required for the purpose of evidencing the act, not a
liability (Navarro v. Domagtoy, A.M. No. MTJ-96- requisite of marriage. It is the obligation of the solemnizing
1088. July 19, 1996, as cited in Rabuya, 2009). officer. It does not affect the validity of marriage (De Loria
v. Felix, G.R. No. L-9005, Jun. 20, 1958).
b. Priest, rabbi, imam or minister of any
church/religious sect duly authorized Provided Authorized venues of marriage
at least one of the parties belongs to such church
or religious sect. GR: Must be solemnized publicly within the jurisdiction of
c. Consul general, consul or vice-consul Provided the authority of the solemnizing officer:
both parties are Filipinos and marriage takes a. Chambers of the judge or in open court
place abroad in the country where the consul b. Church, chapel or temple
holds office. c. Office of the consul-general, consul or vice-consul
d. Mayors (Arts. 444 and 445 of LGC) including
Acting Mayor XPNs:
1. Marriage at the point of death
NOTE: From the time of the effectivity of the 2. Marriage in remote places
Family Code on August 3, 1988 up to the time of 3. Marriage at a house or place designated by the parties
the effectivity of the Local Government Code on with the written request to the solemnizing officer to
January 1, 1992, mayors do not have the that effect.
authority to solemnize marriage
NOTE: This provision is only directory, not mandatory. The
2. Marriages in articulo mortis: requirement that the marriage be solemnized in a
a. Ship captain or airplane chief provided the particular venue or a public place is not an essential
marriage is performed: requisite for the validity of the marriage.
i. During voyage, even during stopovers
ii. Between passengers or crew members Validity of a marriage solemnized by a judge outside of
his jurisdiction
NOTE: Such authority may be exercised not only
while the ship is at sea or the plane is in flight but The marriage solemnized by a judge outside of his
also during stop-overs at ports of call (Rabuya, jurisdiction is valid. Under Art. 3 of the FC, one of the
2009). formal requisites of marriage is the "authority of the
solemnizing officer." Under Art. 7, marriage may be
b. Military commander of a unit who is a solemnized by, among others, "any incumbent member of
commissioned officer provided the marriage is the judiciary within the court's jurisdiction." Art. 8, which
performed: is a directory provision, refers only to the venue of the
i. In absence of chaplain; marriage ceremony and does not alter or qualify the
ii. Within zone of military operation; authority of the solemnizing officer as provided in the
iii. Between members of the armed forces or preceding provision. If there is defect in such requirement,
civilians the same would not make the marriage void, but it merely
subjects the officer to criminal, civil, or administrative
Duty of the solemnizing officer in a marriage in responsibility (Navarro v. Domagtoy, A.M. No. MTJ-96-
articulo mortis 1088. July 19, 1996).

The solemnizing officer in a marriage in articulo mortis NOTE: In case of a marriage solemnized by a mayor
after solemnizing such marriage shall state in an affidavit outside of his territorial jurisdiction, LGC is silent on the


matter, hence the abovementioned case may be applied by NOTE: Obtaining a marriage license in a place other than
analogy. where either party habitually resides is a mere
Exception to the rule requiring authority of the
solemnizing officer Requirement in the application for marriage license

The exception to the rule requiring authority of the Each of the contracting parties is required to file a sworn
solemnizing officer is when marriages contracted with application for the issuance of marriage license, specifying
either or both parties believing in good faith that the the following:
solemnizing officer had the authority to do so (Art. 35 [2],
FC). 1. Full name of the contracting party;
2. Place of birth;
MARRIAGE LICENSE 3. Age and date of birth;
4. Civil status;
Purpose of a valid marriage license 5. If previously married, how, when and where the
previous marriage was dissolved or annulled;
A marriage license is required in order to notify the public 6. Present residence and citizenship;
that two persons are about to be united in matrimony and 7. Degree of relationship of the contracting parties;
that anyone who is aware or has knowledge of any 8. Full name, residence and citizenship of the father;
impediment to the union of the two shall make it known to 9. Full name, residence and citizenship of the mother;
the local civil registrar. and
10. Full name, residence and citizenship of the guardian
The requirement and issuance of marriage license is the or person having charge, in case the contracting party
States demonstration of its involvement and participation has neither father nor mother and is under the age of
in every marriage (Rabuya, 2009). twenty-one years (Art. 11, NCC)

Validity of marriage license FOREIGN NATIONAL

The license shall be valid in any part of the Philippines for Additional requirement for foreign national applicants
a period of 120 days from the date of issue, and shall be
deemed automatically cancelled at the expiration of said When either or both of the contracting parties are citizens
period if the contracting parties have not made use of it of a foreign country, it shall be necessary for them to
(Art. 20, FC). submit a certificate of legal capacity to contract marriage,
issued by their respective diplomatic or consular officials.
NOTE: If the parties contracted marriage after the lapse of
120 days from the issuance of the marriage license, such Stateless persons or refugees from other country shall, in
marriage shall be considered void for lack of marriage lieu of the certificate of legal capacity herein required,
license. submit an affidavit stating the circumstances showing such
capacity to contract marriage (Art 21, FC).
Effect of lack of parental advice when required to file
Validity of the marriage without the required
In case a party who is required by law to obtain parental certificate of legal capacity to marry
advice or undergo marriage counselling fails to do so, the
issuance of marriage license is suspended for 3 months The status of the marriage celebrated on the basis of a
from the completion of publication of the application. license issued without the required Certificate of Legal
Capacity is valid as this is merely an irregularity in
Validity of the marriage celebrated during the complying with a formal requirement of the law in
suspension of the issuance of marriage license procuring a marriage license, which will not affect the
validity of the marriage (Garcia v. Recio, G.R. 138322,
The status of the marriage if the parties get married within October 2, 2001).
the said 3-month period depends:
1. If the parties did not obtain a marriage license the EXCEPTIONS TO MARRIAGE LICENSE REQUIREMENT
marriage shall be void for lack of marriage license.
2. If the parties were able to obtain a marriage license Marriages exempt from the license requirement
the marriage shall be valid without prejudice to the (MARCO)
actions that may be taken against the guilty party.
1. Marriages among Muslims or members of ethnic
Persons authorized to issues the marriage license cultural communities Provided they are solemnized
in accordance with their customs, rites or practices
The marriage license is issued by the local civil registrar of (Art. 33, FC).
the city or municipality where either contracting party 2. Marriages in Articulo mortis
habitually resides (Art. 9, FC). a. In case either or both of the contracting parties
are at the point of death (Art. 27, FC)
b. Solemnized by a ship captain or airplane pilot
(Art. 31, FC)


c. Within zones of military operation (Art. 32, FC). and exclusivity, meaning no third party was involved at
3. Marriages in Remote places (Art. 28, FC). anytime within the 5 years. It should be a period of
legal union had it not been for the absence of the
NOTE: Remote Place - no means of transportation to marriage.
enable the party to personally appear before the local
civil registrar. In this case, Pepito and Norma are not exempt from
the marriage license requirement because at the time
4. Marriages between parties Cohabiting for at least 5 of Pepito and Norma's marriage, it cannot be said that
years (Art. 34, FC) they have lived with each other as husband and wife
5. Marriages solemnized Outside the Philippines where for at least five years prior to their wedding day
no marriage license is required by the country where because from the time Pepito's first marriage was
it was solemnized dissolved to the time of his marriage with Norma, only
about twenty months had elapsed.
Requisites for the 5-year cohabitation as an exception
to the marriage license requirement b) Yes, the marriage is still void. Even if they were
separated in fact, and thereafter both Pepito and
The requisites are: (5D PAS) Norma had started living with each other that has
1. Living together as husband and wife at least 5 years already lasted for five years, the fact remains that
before the marriage. Pepito had a subsisting marriage at the time when he
started cohabiting with Norma. It is immaterial that
The 5 year period must be characterized by: when they lived with each other, Pepito had already
a. Exclusivity the partners must live together been separated in fact from his lawful spouse. The
exclusively, with no other partners, during the subsistence of the marriage even where there was
whole 5-year period. actual severance of the filial companionship between
b. Continuity such cohabitation was unbroken. the spouses cannot make any cohabitation by either
spouse with any third party as being one as "husband
NOTE: The period is counted from the date of and wife" (Nial v. Bayadog, GR No. 133778, March 14,
celebration of marriage. It should be the years 2000).
immediately before the day of the marriage.
Q: Roderick and Faye were high school sweethearts.
2. No legal impediment to marry each other During the When Roderick was 18 and Faye, 16 years old, they
period of cohabitation. started living together as husband and wife without
the benefit of marriage. When Faye reached 18 years
NOTE: The five-year period of cohabitation must have of age, her parents forcibly took her back and
been a period , of legal union had it not been for the arranged for her marriage to Brad. Although Faye
absence of marriage. lived with Brad after the marriage, Roderick continued
to regularly visit Faye while Brad was away at work.
3. Fact of absence of legal impediment must be Present During their marriage, Faye gave birth to a baby girl,
at the time of the marriage Laica. When Faye was 25 years old, Brad discovered
4. Parties must execute an Affidavit that they are living her continued liaison with Roderick and in one of their
together as husband and wife for 5 years and that heated arguments, Faye shot Brad to death. She lost no
they do not have any impediment to marry time in marrying her true love Roderick, without a
5. Solemnizing officer must execute a Sworn statement marriage license, claiming that they have been
that he had ascertained the qualifications of the continuously cohabiting for more than 5 years. Was
parties and found no legal impediment to their the marriage of Roderick and Faye valid? (2008 Bar
marriage (Manzano v. Sanches, March 1, 2001). Question)

Q: Pepito was married to Teodulfa. Teodulfa was shot A: The marriage was void because there was no marriage
by him resulting in her death. After 1 year and 8 license. Their marriage was not exempt from the requisite
months, he married Norma without any marriage of a marriage license because Roderick and Faye have not
license. In lieu thereof, they executed an affidavit been cohabiting for at least 5 continuous years before the
stating that they had lived together as husband and celebration of their marriage. Their lovers trysts and brief
wife for at least five years and were thus exempt from visitations did not amount to cohabitation. Moreover, the
securing a marriage license. Supreme Court held that for the marriage to be exempt
a. What is the status of their marriage? from a license, there should be no impediment for them to
b. Would your answer be the same if Pepito was marry each other during the entire 5 years of cohabitation.
separated in fact from Teodulfa? Roderick and Faye could not have cohabited for 5 years of
cohabitation. Roderick and Faye could not have been
A: cohabited for 5 continuous years without impediment
a) Void for lack of marriage license. To be exempt from because Faye was then legally married to Brad.
the license requirement under the 5-year cohabitation
rule, the cohabitation should be in the nature of a
perfect union that is valid under the law but rendered
imperfect only by the absence of the marriage contract
and is characterized by continuity, that is, unbroken,


XPNs: It shall be void, even if it is valid in the foreign
Marriage license v. Marriage certificate country where the marriage was celebrated, if any of the
following circumstances are present: (LIM 2B 2P)
BASIS MARRIAGE MARRIAGE 1. Lack of legal capacity even with parental consent (e.g.
LICENSE CERTIFICATE party is below 18);
Authorization by Best evidence of the 2. Incestuous;
the state to existence of the 3. Contracted through Mistake of one party as to the
Nature identity of the other;
celebrate marriage.
marriage. 4. Contracted following the annulment or declaration of
Formal requisite Neither essential nullity of a previous marriage but Before partition,
Requisite of etc.;
of marriage. nor formal requisite
Marriage 5. Bigamous or polygamous except as provided in Art. 41
of marriage.
FC on terminable bigamous marriages;
6. Void due to Psychological incapacity;
Q: Guillermo and Josefa lived together as husband and
7. Void for reasons of Public policy
wife, but there is doubt as to whether they got
married, since no record of the marriage existed in the
Requisites for application of 2nd paragraph of Art. 26
civil registry but their relatives and friends
maintained that the two in fact married each other and
1. It must be a case of mixed marriage (one party is
lived as husband and wife for more than half a century.
Filipino and the other is an alien)
Is Guillermo married to Josefa?
2. The divorce must be obtained by the alien spouse and
not by the Filipino spouse.
A: They are presumed to be married. In this jurisdiction,
3. The divorce obtained by the alien spouse must
every intendment of the law leans toward legitimizing
capacitate him or her to remarry (Rabuya, 2009).
matrimony. Persons dwelling together apparently in
marriage are presumed to be in fact married. This is the
Q: Suppose in a valid mixed marriage (marriage
usual order of things in society and, if the parties are not
between a citizen of a foreign country and a citizen of
what they hold themselves out to be, they would be living
the Philippines) the foreign spouse obtained a divorce
in constant violation of the common rules of law and
decree abroad and was capacitated to remarry.
propriety. Semper praesumitur pro matrimonio always
presume marriage (Vda.De la Rosa v. Heirs of Vda. De
a. May the Filipino spouse remarry despite the fact
Damian, G.R. No. 103028, October 10, 1997).
that divorce is not valid in the Philippines?
b. Will your answer be the same if it was a valid
NOTE: Although a marriage contract is considered a
marriage between Filipinos?
primary evidence of marriage, its absence is not always
proof that no marriage took place (Vda.De la Rosa v. Heirs
of Vda. De Damian, G.R. No. 103028, October 10, 1997).
a. Yes, the Filipino spouse is likewise capacitated.
Divorce validly obtained abroad by the alien spouse
capacitating him/her to remarry will likewise allow
the Filipino spouse to remarry. This is the rule laid
down in Art. 26 (2) of the FC.
Rules governing the validity of marriage
It should be noted however that the foreign spouse
1. As to its extrinsic validity Lex loci celebrationis
must be capacitated to remarry before the Filipino
spouse may also be capacitated to remarry.
NOTE: Locus regit actum (the act is governed by the
law of the place where it is done) - is adhered to here
NOTE: It is true that owing to the nationality principle
in the Philippines as regards the extrinsic validity of
embodied in Art. 16 of the NCC, only Philippine
nationals are covered by the policy against absolute
divorces, the same being considered contrary to our
2. As to its intrinsic validity Personal law
concept of public policy and morality. Nevertheless,
aliens may obtain divorces abroad which may be
NOTE: Personal law may either be the national law or
recognized in the Philippines, provided they are valid
the law of the place where the person is domiciled.
according to their national law (Van Dorn v. Romillo,
Jr., GR No. L-68470, October 8, 1985).
If the person involved is a stateless person, domiciliary
rule applies, otherwise, lex nationalii applies.
b. It depends. What is material in this case is the
citizenship of the spouse who obtained a divorce
Marriages between Filipinos solemnized abroad in
decree abroad at the time the decree was obtained
accordance with the law in force in said country
and not their citizenship at the time the marriage was
GR: Marriages between Filipinos solemnized outside the
Philippines in accordance with the law of the foreign
If the Filipino spouse was naturalized as a citizen of a
country where it is celebrated, if valid there, shall be valid
foreign country before he/she obtains a divorce
here as such.


decree and was thereafter capacitated to remarry, the presented and admitted in evidence. A divorce obtained
Filipino spouse will be capacitated to remarry. abroad is proven by the divorce decree itself. Indeed, the
best evidence of a judgment is the judgment itself (Rule 30,
Q: A Filipina was married to an American who Sec. 3, Rules of Court). The decree purports to be a written
obtained a divorce decree in the U.S. When the Filipina act or record of an act of an official body or tribunal of a
came back to the Philippines and started her business, foreign country (Sec. 19, Rule 130).
the American followed suit and wanted to enforce his
rights over the Filipina to the extent of claiming his Under Secs. 24 and 25 of Rule 132, a writing or document
rights to administer the properties of the woman, may be proven as a public or official record of a foreign
contending that they are still married. He also claimed country by either: a.) an official publication; or b.) a copy
hereditary rights. Is he correct? Why? thereof attested by the officer having legal custody of the
document. If the record is not kept in the Philippines, such
A: No. In Van Dorn v. Romillo, Jr. (October 8, 198), it was copy must be a.) accompanied by a certificate issued by the
said that public policy and our concept of morality abhor proper diplomatic or consular office in the Philippine
absolute divorce. But owing to the nationality principles foreign service stationed in the foreign country in which
under Art. 15, NCC, only Philippine nationals are governed the record is kept; and 2.) authenticated by the seal of his
by the policy against absolute divorce obtained abroad by office (Garcia v. Recio, G.R. No. 138322, October 2, 2002).
an alien which may be recognized in the Philippines,
provided, it is valid according to his national law. NOTE: Without the divorce decree and foreign law as part
of the evidence, the Court cannot rule on the issue of
Burden of proof in recognition of foreign divorce whether petitioner has the personality to file the petition
for declaration of nullity of marriage. After all, petitioner
Burden of Proof lies with "the party who alleges the may have the personality to file the petition but the
existence of a fact or thing necessary in the prosecution or divorce decree obtained was a limited divorce or a mensa
defense of an action." Since the divorce was a defense et thoro or the foreign law may restrict remarriage even
raised by respondent, the burden of proving the pertinent after the divorce decree becomes absolute (Garcia v. Recio,
foreign law validating it falls squarely upon him. Courts ibid).
cannot take judicial notice of foreign laws. The power of
judicial notice must be exercised with caution, and every STATUS OF MARRIAGES
reasonable doubt upon the subject should be resolved in
the negative (Garcia v. Recio, G.R. No. 138322, October 2, Status of Marriages
1. Valid
The naturalization of one of the parties, as well as the 2. Void
divorce decree obtained by him or her, must be proven as 3. Voidable
a fact under our rules on evidence. The foreign law under
which the divorce was obtained must likewise be proven VOID MARRIAGE
as our courts cannot take judicial notice of foreign laws
and judgments; hence, like any other facts, both the Marriages that are void ab initio (LAaMB- PIPS-18)
divorce decree and the national law of the alien must be
alleged and proven according to our law on evidence 1. Absence of any of the essential or formal requisites of
(Garcia v. Recio, G.R. No. 138322, October 2, 2002). marriage;
2. Marriages contracted by any party below 18 years of
However, if the Filipino spouse remained to be a citizen of age even with the consent of parents or guardians;
the Philippines when he/she obtained a divorce decree 3. Solemnized without License, except those marriages
abroad, such decree will not be recognized in the that are exempt from the license requirement;
Philippines even if that spouse is subsequently naturalized 4. Solemnized by any person not Authorized to perform
as a citizen of a foreign country. This is so because at the marriages unless such marriages were contracted
time the spouse obtained the divorce decree, he/she was with either or both parties believing in good faith that
still a citizen of the Philippines and being naturalized the solemnizing officer had the legal authority to do
afterwards does not cure this defect (Republic v. Iyoy, G.R. so;
No. 152577, September 21, 2005). 5. Contracted through Mistake of one of the contracting
parties as to the identity of the other;
Q: If a foreigner who was divorced seeks to obtain a 6. Bigamous or polygamous marriages;
marriage license in the Philippines, what should he 7. Subsequent marriages which are void under Art. 53
do? Explain. FC;
8. Marriages contracted by any party, who at the time of
A: The applicant for marriage license has to prove his legal the celebration of the marriage, was Psychologically
capacity. If the marriage was dissolved by reason of incapacitated (Art. 36, FC);
divorce, he has to file a sworn statement as to how the 9. Incestuous Marriages (Art. 37, FC);
marriage was dissolved (Art. 11, FC) and furnish the local 10. Marriages declared void because they are contrary to
civil registrar with the judgment (Art. 13, FC) and must Public policy (Art. 38, FC).
register the same with the local civil registrar to bind third
persons (Art. 52, FC). Before a foreign judgment is given
presumptive evidentiary value, the document must first be


Void v. Voidable marriages annulment


MARRIAGE How may be Either directly or
declaration is
Status of Void ab initio Valid until impugned collaterally
marriage annulled
GR: Illegitimate; Legitimate
Declaration of Annulment of
Petition filed
Nullity of Marriage Marriage
XPN: Those
GR: Solely by the GR: Offended
conceived or born
husband or wife. Spouse
of marriages
declared void
XPN: Any real XPN:
Children under:
party in interest, 1. Parents or
1. Art. 36
only in the guardians in
following cases: cases of
incapacity), or
1. Nullity of insanity
2. Art. 52 in
marriage cases 2. Parents or
relation to Art.
commenced guardians
before the before the
GR: Property GR: Governed by
effectivity of party
relations are rules on absolute
A.M. No. 02-11- reaches 21
governed by rules on community
10 - March 15, years old on
2003. the ground of
XPN: Unless
2. Marriages Lack of
XPN: If the marriage another system is
celebrated Parental
is declared void by agreed upon in
during the Authority
reason of non- marriage
effectivity of
compliance with settlement
the Civil Code Property
Article 40 of the FC,
Who may (De Dios Carlos
the absolute
file v. Sandoval, G.R.
community or the
No. 179922,
conjugal partnership,
December 16,
as the case may be,
shall be dissolved
3. A party to the
and liquidated (Art.
43 (2), in relation to
marriage may
Art. 50).
seek the nullity
GR: There is no Necessary
of the
necessity to obtain a
judicial declaration
marriage on the Judicial
ground that the Declaration
XPN: For purposes of
remarriage, one is
marriage is
Republic of the
Philippines G.R. Status of a marriage between Filipinos if the parties
No. 169766 thereto are of the same sex
March 20,2011)
Void. For a marriage to be valid, it must be between
No prescriptive GR: Within 5 years
persons of opposite sexes.
period from discovery of
the ground
Q: In case of a change in sex, can the person who has
undergone said change be allowed to marry another of
the same sex as he/she originally had?
1. Lifetime of
spouse in
Prescriptive A: It depends upon the cause for the change in sex.
cases of
1. If the change is artificial No, he/she cannot.
2. Before the
party reaches
NOTE: The sex or gender at the time of birth shall be
21 in cases
taken into account. He is still, in the eyes of the law, a
where parents
man although because of the artificial intervention, he
or guardians
now has the physiological characteristics of a woman
may file
(Silverio v. Republic, G.R. No. 174689, October22, 2007)


Effect of lack of authority of solemnizing officer
2. If the change is natural He/she can. Ex.
hermaphrodite GR: The marriage is void ab initio.

Q: Jennifer was registered as a female in her Certificate XPN:

of Live Birth. In her early years, she suffered from 1. Express - If either or both parties believed in good
clitoral hypertrophy and was found out that her faith that the solemnizing officer had the legal
ovarian structures had minimized. She also alleged authority to do so (Art. 35, FC).
that she has no breasts or menstruation. She was 2. Implied - Article 10 in relation to Article 26 of the
diagnosed to have Congenital Adrenal Hyperplasia Family Code. If the marriage between a foreigner and
(CAH) a condition where persons thus afflicted possess a Filipino citizen abroad solemnized by a Philippine
secondary male characteristics because of too much consul assigned in that country is recognized as valid
secretion of androgen. She then alleged that for all in the host country, such marriage shall be considered
interests and appearances as well as in mind and as valid in the Philippines (Sta. Maria Jr., Persons and
emotion, she has become a male person. What is Family Relations Law).
Jennifers gender or sex?
Q: Judge Palaypayon solemnized marriages even
A: Male. Where the person is biologically or naturally without the requisite of marriage license. Thus, some
intersex the determining factor in his gender classification couples were able to get married by the simple
would be what the individual, having reached the age of expedient of paying the marriage fees. As a
majority, with good reason thinks of his/her sex. Jennifer consequence, their marriage contracts did not reflect
here thinks of himself as a male and considering that his any marriage license number. In addition, the judge
body produces high levels of androgen, there is did not sign their marriage contracts and did not
preponderant biological support for considering him as indicate the date of the solemnization, the reason
being male. Sexual development in cases of intersex being that he allegedly had to wait for the marriage
persons makes the gender classification at birth license to be submitted by the parties. Such marriage
inconclusive. It is at maturity that the gender of such contracts were not filed with the Local Civil Registry.
persons is fixed. Are such marriages valid?

Jennifer has simply let nature take its course and has not A: No. The Family Code pertinently provides that the
taken unnatural steps to arrest or interfere with what he formal requisites of marriage are, inter alia, a valid
was born with. And accordingly, he has already ordered marriage license, necessary for the validity of marriage,
his life to that of a male. He could have undergone except in the cases provided for therein. Complementarily,
treatment and taken steps, like taking lifelong medication, it declares that the absence of any of the essential or
to force his body into the categorical mould of a female but formal requisites shall generally render the marriage void
he did not. He chose not to do so. Nature has instead taken ab initio and that, while an irregularity in the formal
its due course in his development to reveal more fully his requisites shall not affect the validity of the marriage, the
male characteristics. party or parties responsible for the irregularity shall be
civilly, criminally and administratively liable (Cosca v.
To him belongs the primordial choice of what courses of Palaypayon, A.M. No. MTJ-92-721, September 30, 1994).
action to take along the path of his sexual development
and maturation. In the absence of evidence that he is an Mistake to render the marriage void
incompetent and in the absence of evidence to show that
classifying him as a male will harm other members of For marriage to be rendered void, the mistake in identity
society who are equally entitled to protection under the must be with reference to the actual physical identity of
law, the Court affirms as valid and justified his position other party, not merely a mistake in the name, personal
and his personal judgment of being a male (Republic v. qualifications, character, social standing, etc (Rabuya,
Jennifer Cagandahan, G.R. No. 166676, Sep. 12, 2008). 2009).

Status of marriages where one or both of the parties PSYCHOLOGICAL INCAPACITY

are below 18 years of age
Psychological incapacity
Marriages contracted where one or both of the parties are
below 18 years of age are void for lack of legal capacity The Supreme Court defined psychological incapacity as no
even if the parents consented to such marriage. less than a mental (not physical) incapacity that causes a
party to be truly incognitive of the basic marital covenants
Validity of the marriage if it is a mixed marriage where that concomitantly must be assumed and discharged by the
the Filipino is 18 years old but the foreigner is below parties to the marriage.
17 years of age
NOTE: In such case, the spouse declared to be
If the national law of the foreigner recognizes 17 year old psychologically incapacitated cannot be held liable to pay
persons to be capacitated to marry, then their marriage is moral damages to the other spouse based on Articles 2217
valid, otherwise it is void. and 21 of the NCC, which connotes wilfulness of the acts
complained of, if the same acts constitutive of the
psychological incapacity were to be made the basis for the


award of moral damages. It is contradictory to characterize Guidelines set by the Court to aid it in its disposition of
acts as a product of psychological incapacity, and hence cases involving psychological incapacity
beyond the control of the party because of an innate
inability, while at the same time considering the same set 1. Burden of proof to show the nullity of the marriage
of acts as willful (Buenaventura v. CA, 454 SCRA 261 [2005] belongs to the plaintiff;
as cited in Rabuya, 2009). 2. The root cause of the psychological incapacity must
be: (a) medically or clinically identified, (b) alleged in
Determination is left solely with the courts on a case- the complaint, (c) sufficiently proven by experts and
to-case basis (d) clearly explained in the decision.
3. The incapacity must be proven to be existing at the
Determination of psychological incapacity depends on the time of the celebration of the marriage.
facts of the case. Every court should approach the issue of 4. Such incapacity must also be shown to be medically or
nullity not on the basis of a priori assumptions, clinically permanent or incurable.
predilections or generalizations, but according to its own 5. Such illness must be grave enough to bring about the
facts in recognition of the verity that no case would be on disability of the party to assume the essential
all fours with the next one in the field of psychological obligations of marriage.
incapacity as a ground for the nullity of marriage; hence, 6. The essential marital obligations must be those
every trial judge must take pains in examining the factual embraced by Arts. 68 up to 71 of the FC as regards the
milieu and the appellate court must, as much as possible, husband and wife, as well as Arts. 220, 221 and 225 of
avoid substituting its own judgment for that of the trial the same Code in regard to parents and their children.
court. Such non-complied marital obligation(s) must also be
stated in the petition, proven by evidence and
By the very nature of Article 36, courts, despite having the included in the text of the decision.
primary task and burden of decision-making, must not 7. Interpretations given by the National Appellate
discount but, instead, must consider as decisive evidence Matrimonial Tribunal of the Catholic Church in
the expert opinion on the psychological and mental the Philippines, while not controlling or decisive,
temperaments of the parties (Kalaw v. Fernandez, G.R. No. should be given great respect by our courts.
166357, January 15, 2015). 8. The trial court must order the prosecuting attorney or
fiscal and the Solicitor General to appear as counsel
Requisites of Psychological Incapacity for the state. No decision shall be handed down unless
the Solicitor General issues a certification, which will
1. Juridical antecedence Must be rooted in the history be quoted in the decision, briefly stating therein his
of the party antedating the marriage, although overt reasons for his agreement or opposition, as the case
manifestations may arise only after such marriage. may be, to the petition (Danilo A. Aurelio v. Vide Ma.
2. Gravity Grave enough to bring about the disability of Corazon P. Aurelio, G.R. No. 175367, June 6, 2011).
the party to assume the essential marital obligations.
3. Permanence or incurability Must be incurable. If NOTE: In Republic v. Quintero-Hamano, 428 SCRA 735
curable, the cure should be beyond the means of the (2004, the SC held that these guidelines may not be relaxed
parties involved. just because the spouse alleged to be psychologically
incapacitated happens to be a foreign national. The norms
Proof of Psychological Incapacity used for determining psychological incapacity should
apply to any person regardless of nationality because the
The root cause of psychological incapacity must be: rules were formulated on the basis of studies of human
a. Medically or clinically identified behavior in general (Rabuya, Civil Law Reviewer I, p. 62).
b. Alleged in the complaint
c. Sufficiently proven by experts Instances where allegations of psychological
d. Clearly explained in the decision incapacity were not sustained

NOTE: Expert evidence may be given by qualified 1. Mere showing of irreconcilable differences and
psychiatrists and clinical psychologists. conflicting personalities (Carating-Siayngco v.
Siayngco, G.R. No. 158896, Oct, 27. 2004).
Necessity of physicians examination for proving
psychological incapacity Mere sexual infidelity or perversion, do not by
themselves constitute psychological incapacity, as
The physicians examination is not required in establishing well as immaturity and irresponsibility.
psychological incapacity as ground for declaration of
nullity. If the totality of evidence presented is enough to NOTE: It must be shown that these acts are
sustain a finding of psychological incapacity, physicians manifestations of a disordered personality which
examination of the person concerned need not be resorted would make respondent completely unable to
to (Marcos v. Marcos, G.R. No. 136490, Oct. 19, 2000; Glenn discharge the essential obligations of a marital state,
Vias v. Mary Grace Parel-Vias, G.R. No. 208790, January not merely youth, immaturity or sexual promiscuity
21, 2015). (Dedelvs CA, G.R. no. 151867, January29, 2004).

2. Disagreements regarding money matters (Tongol v.

Tongol, G.R. No. 157610, October 19, 2007).


3. Mere abandonment. the respondent is incapacitated to comply with the
essential marital obligations of marriage and that it is also
NOTE: To constitute psychological incapacity, it must essential that he must be shown to be incapable of doing
be shown that the unfaithfulness and abandonment so due to some psychological, not physical illness (Republic
are manifestations of a disordered personality that v. Quintero-Hamano, G.R. No. 149498, May 20, 2004).
completely prevented the erring spouse from
discharging the essential marital obligations Alternative Answer: A congenital sexual pervert may be
(Republic of the Philippines vs. Cesar Enselan G.R. No. psychologically incapacitated if his perversion
170022; January 9, 2013). incapacitates him from discharging his marital obligations;
for instance, if his perversion is of such a nature as to
4. Sexual infidelity (Republic v. Dagdag, GR No. 109975, preclude any normal sexual activity with his spouse.
February 9, 2001).
Q: Would the state of being of unsound mind or the
concealment of drug addiction, habitual alcoholism, Marriages that are considered as incestuous
homosexuality or lesbianism be considered indicia of
psychological incapacity, if existing at the inception of a) Between ascendants and descendants of any degree;
marriage? (2002 Bar Question) b) Between brothers and sisters whether of the full or
half blood (Art. 37, FC).
A: In the case of Santos v. CA (240 SCRA 20, 1995), the
Supreme Court held that being of unsound mind, drug NOTE: Regardless of whether the relationship between the
addiction, habitual alcoholism, lesbianism or parties is legitimate or illegitimate.
homosexuality may be indicia of psychological incapacity,
depending on the degree of severity of the disorder. Void marriages by reason of public policy
However, the concealment of drug addiction, habitual
alcoholism, lesbianism or homosexuality is a ground of Marriages between:
annulment of marriage. 1. Collateral blood relatives (legitimate or Illegitimate)
up to the 4th civil degree;
Q: Art. 36 of the FC provides that a marriage 2. Step-parents & step-children;
contracted by any party who, at the time of the 3. Parents-in-law & children-in-law;
celebration, was psychologically incapacitated to
comply with the essential marital obligations of NOTE: The prohibition under Nos. 2 and 3 applies
marriage, shall be void. even after the termination of the marriage which is
the very source of the relationship by affinity,
Choose the spouse listed below who is psychologically regardless of the cause of such termination.
a. Nagger 4. Adopting parent & the adopted child;
b. Gay or Lesbian 5. Surviving spouse of the adopting parent & the
c. Congenital sexual pervert adopted child;
d. Gambler 6. Surviving spouse of the adopted child & the adopter;
e. Alcoholic (2006 Bar Question) 7. Adopted child & legitimate child of the adopter;
8. Adopted children of the same adopter;
A: B and C. To be sure, the existence and concealment of 9. Parties where one, with the intention to marry the
these conditions at the inception of marriage renders the other, kills the latters spouse, or his/her spouse (Art.
marriage contract voidable (Art 46, FC). They may serve as 38, FC).
indicia of psychological incapacity, depending on the
degree and severity of the disorder (Santos v. CA, G.R. No. NOTE: The list is exclusive. If not falling within this
112019, January 4, 1995). Hence, if the condition of enumeration, the marriage shall be valid. Such as
homosexuality, lesbianism or sexual perversion, existing at marriages between:
the inception of the marriage, is of such a degree as to i. Adopted and Illegitimate child of the adopter
prevent any form of sexual intimacy, any of them may ii. Step brother and step sister
qualify as a ground for psychological incapacity. The law iii. Brother-in-law and sister-in-law
provides that the husband and wife are obliged to live iv. Parties who have been guilty of adultery or
together, observe mutual love, respect and fidelity (Art. 68, concubinage
FC). The mandate is actually the spontaneous, mutual
affection between the spouses in the natural order it is Q: Amor gave birth to Thelma when she was 15 years
sexual intimacy which brings the spouses wholeness and old. Thereafter, Amor met David and they got married
oneness (Chi Ming Tsoi v. CA, G.R. No. 119190, January 16, when she was 20 years old. David has a son, Julian,
1997). with his ex-girlfriend Sandra. Can Julian and Thelma
get married? (2007 Bar Question)
Alternative Answer: None of them are necessarily
psychologically incapacitated. Being a nagger, etc., are at A: If the marriage was solemnized during the effectivity of
best only physical manifestations indicative of the NCC, the marriage between stepbrother and stepsister
psychological incapacity. More than just showing the is void. However, under the FC, the marriage may be valid.
manifestations of incapacity, the petitioner must show that


SUBSEQUENT MARRIAGE Special cases when subsequent marriage is allowed

Q: If a person contracts a subsequent marriage during 1. Marriage between a Filipino and a foreigner and
the subsistence of a prior marriage, what is the status procurement by the alien spouse of a valid divorce
of the subsequent marriage? decree abroad, capacitating him/her to remarry.
2. Terminable bigamous marriages (Art. 41).
A: GR: Void for being bigamous or polygamous, even if
celebrated abroad and valid there as such. Requisites for validity of subsequent marriage under
Art. 41
XPN: Valid if it is a terminable bigamous marriage.
Before the celebration of the subsequent marriage: (ABD)

Bigamous Marriage 1. The Absent spouse had been absent for 4 consecutive
years (ordinary absence) or 2 consecutive years
It is when a person contracts a second or subsequent (extra-ordinary absence);
marriage before the former marriage has been legally 2. The present spouse has a well-founded Belief that the
dissolved, or before the absent spouse has been declared absent spouse is already dead;
presumptively dead by means of judgment rendered in the 3. There is judicial Declaration of presumptive death in a
proper proceedings (Art. 349, RPC). summary proceeding.

NOTE: The same applies to polygamy. NOTE: If both spouses of subsequent marriage acted in bad
faith, such marriage is void ab initio.
Q: Arnold, a Filipino, and Britney, an American, both
residents of California, decided to get married in their Requisites for issuance of judicial declaration of
local parish. Two years after their marriage, Britney presumptive death
obtained a divorce in California. While in Boracay,
Arnold met Jenny, a Filipina, who was vacationing 1. That the absent spouse has been missing for four
there. Arnold fell in love with her. After a brief consecutive years, or two consecutive years if the
courtship and complying with all the requirements, disappearance occurred where there is danger of
they got married in Hong Kong to avoid publicity, it death under the circumstances laid down in Article
being Arnolds second marriage. Is his marriage with 391 of the New Civil Code
Jenny valid? (2006 Bar Question) 2. That the present spouse wishes to remarry
3. That the present spouse has well-founded belief that
A: Yes. The marriage will not fall under Art. 35(4) on the absentee is dead
bigamous marriages, provided that Britney obtained an 4. That the present spouse files a summary proceeding
absolute divorce, capacitating her to remarry under her for the declaration of presumptive death of the
national law. Consequently, the marriage between Arnold absentee (Republic of the Philippines vs. Nolasco G.R.
and Jenny may be valid as long as it was solemnized and 94053, March 17, 1993).
valid in accordance with the laws of Hong Kong.
NOTE: The requirement for a judgment of the presumptive
Q: May a person contract a valid subsequent marriage death of the absent spouse is for the benefit of the spouse
before a first marriage is declared void ab initio by a present because she could be charged and convicted of
competent court? bigamy if the defense of good faith based on mere
testimony is found incredible. It is also for the protection
A: No. The Supreme Court has consistently held that a of the State. The law regulating civil marriages are
judicial declaration of nullity is required before a valid necessary to serve the interest, safety, good order, comfort
subsequent marriage can be contracted; or else, what or general welfare of the community and the parties can
transpires is a bigamous marriage, reprehensible and waive nothing essential to the validity of the proceedings.
immoral. Article 40 of the Family Code expressly requires A civil marriage anchors an ordered society by
a judicial declaration of nullity of marriage (In re: Salvador encouraging stable relationships over transient ones; it
v. Serafico, A.M. 2008-20-SC, March 15, 2010). enhances the welfare of the community (Eduardo Manuel v.
People, G.R. No. 165842, November 29, 2005).
NOTE: Under Art. 40 of the FC, before one can contract a
second marriage on the ground of nullity of the first Finality of judicial declaration of presumptive death
marriage, there must first be a final judgment declaring the
first marriage void. If a party fails to secure a judicial GR: The order of the trial court granting the petition for
declaration of nullity of the first marriage, he or she runs judicial declaration of presumptive death under Article 41
the risk of being charged with bigamy as the marital bond of the Family Code is immediately final and executory by
or vinculum in the first nuptial subsists (Mercado v. Tan the express provision of Article 247 of the Family Code
GR: 137110, August, 2000; Te v. CA GR No: 126746, (Republic of the Philippines vs. Bermudez-Lorino,
November 29, 2009). G.R.160258 January 19,2005).

XPN: Under Article 41 of the Family Code, the losing party

in a summary proceeding for the declaration of
presumptive death may file a petition for certiorari with


the CA on the ground that, in rendering judgment thereon, Q: RTC declared Celerina J. Santos (Celerina)
the trial court committed grave abuse of discretion presumptively dead after her husband, Ricardo T.
amounting to lack of jurisdiction. From the decision of the Santos (Ricardo), had filed a petition for declaration of
CA, the aggrieved party may elevate the matter to this absence or presumptive death for the purpose of
Court via a petition for review on certiorari under Rule 45 remarriage on June 15, 2007. Subsequently, Ricardo
of the Rules of Court (Republic of the Philippines vs Yolanda remarried.
Cadacio Granada, G.R. 187512, June 13, 2012).
Celerina claimed that she learned about Ricardo's
Effect if both parties in the subsequent marriage under petition only sometime in October 2008 when she
Article 41 acted in bad faith could no longer avail the remedies of new trial, appeal,
petition for relief, or other appropriate remedies.
1. The subsequent marriage is void ab initio Thereafter, on November 17, 2008, she filed a petition
2. All donations propter nuptias made by one in favour for annulment of judgment before the Court of Appeals
of the other are revoked by operation of law on the grounds of extrinsic fraud and lack of
3. All testamentary dispositions made by one in favour jurisdiction. She argued that she was deprived her day
of the other are revoked by operation of law in court when Ricardo, despite his knowledge of her
4. The parties shall be liable for the crime of bigamy true residence, misrepresented to the court that she
(Rabuya, 2009) was a resident of Tarlac City when, in fact, she never
resided there. As a result of Ricardo's
Termination of Subsequent Bigamous Marriage misrepresentation, she was deprived of any notice of
and opportunity to oppose the petition declaring her
The recording of the affidavit of reappearance of the presumptively dead. The Court of Appeals dismissed
absent spouse in the civil registry of the residence of the Celerina's petition for annulment of judgment for
parties to the subsequent marriage shall automatically being a wrong mode of remedy and ruled that the
terminate the terminable bigamous marriage unless there proper remedy was to file a sworn statement before
is a judgment annulling the previous marriage or declaring the civil registry, declaring her reappearance in
it void ab initio (Art. 42, FC). accordance with Article 42 of the Family Code. Was the
CA correct?
In Art 42, FC, no judicial proceeding to annul a subsequent
marriage contracted under Art. 41 is necessary. Also, the A: No. For the purpose of not only terminating the
termination of the subsequent marriage by affidavit subsequent marriage but also of nullifying the effects of
provided for in Art. 42 does not preclude the filing of an the declaration of presumptive death and the subsequent
action in court to prove the reappearance of the absentee marriage, mere filing of an affidavit of reappearance would
and obtain a declaration of dissolution or termination of not suffice. Hence, Celerina's choice to file an action for
the subsequent marriage (SSS v. Jarque Vda. De Bailon, G.R. annulment of judgment is the proper remedy as annulment
No. 165545, March 24, 2006). of judgment is the remedy when the Regional Trial Court's
judgment, order, or resolution has become final, and the
Q: Gregorio married Janet. When he was employed remedies of new trial, appeal, petition for relief (or other
overseas, he was informed that Janet left. Five years appropriate remedies) are no longer available through no
later, he filed an action for her to be declared fault of the petitioner (Celerina J. Santos v. Ricardo T.
presumptively dead without alleging that he wishes to Santos, G.R. No. 187061, October 8, 2014).
remarry. Will his action prosper?
Q: When are non-bigamous subsequent marriages
A: No. A petition to declare an absent spouse void?
presumptively dead may not be granted in the absence of
any allegation that the spouse present will remarry. Also, A: The subsequent marriage of a person whose prior
there is no showing that Gregorio conducted a search for marriage has been annulled but contracted said
his missing wife with such diligence as to give rise to a subsequent marriage without compliance with Art. 52, FC,
"well-founded belief" that she is dead. The four requisites shall be void.
not having concurred, his action for the declaration of
presumptive death of his wife should be denied (Republic Before he contracts a subsequent marriage, he must first
v. Nolasco, G.R. No. 94053, March 17, 1993). comply with the requirement provided for in Art. 52, viz:

Q: What is the effect if the parties to the subsequent The recording in the civil registries and registries of
marriage obtains knowledge that the spouse absent properties of the following: (JPDD)
has reappeared? 1. Judgment of annulment;
2. Partition;
A: None. If the absentee reappears, but no step is taken to 3. Distribution of properties, and
terminate the subsequent marriage, either by affidavit or 4. Delivery of presumptive legitimes
by court action, such absentee's mere reappearance, even if
made known to the spouses in the subsequent marriage, Q: Ana Rivera had a husband, a Filipino citizen like her,
will not terminate such marriage (SSS v. Jarque Vda. De who was among the passengers on board a commercial
Bailon, G.R. No. 165545, March 24, 2006). jet plane which crashed in the Atlantic Ocean ten (10)
years earlier and had never been heard of ever since.
Believing that her husband had died, Ana married


Adolf Cruz Staedler, a divorced German national born
of a German father and a Filipino mother residing in Effect of death of a party in a petition for declaration of
Stuttgart. To avoid being required to submit the nullity of marriages
required certificate of capacity to marry from the
German Embassy in Manila, Adolf stated in the 1. Before the entry of judgment The court shall order
application for marriage license stating that Adolf was the case closed and terminated without prejudice to
a Filipino, the couple got married in a ceremony the settlement of estate in proper proceedings.
officiated by the Parish Priest of Calamba, Laguna in a 2. After the entry of judgment The decision shall be
beach in Nasugbu, Batangas, as the local parish priest binding upon the parties and their successors-in-
refused to solemnize marriage except in his church. Is interest in the settlement of the estate.
the marriage valid? (2008 Bar Question)
Petition for the declaration of nullity of marriage by
A: The issue hinges on whether or not the missing husband the heirs of a deceased person after his death
was dead or alive at the time of the second marriage.
The heirs cannot file for declaration of nullity of marriage.
If the missing husband was in fact dead at the time the The advent of the Rule on Declaration of Absolute Nullity
second marriage was celebrated, the second marriage was of Void Marriages marks the beginning of the end of the
valid. Actual death of a spouse dissolves the marriage ipso right of the heirs of the deceased spouse to bring a nullity
facto whether or not the surviving spouse had knowledge of marriage case against the surviving spouse. The heirs
of such fact. A declaration of presumptive death even if can still protect their successional right, for, compulsory or
obtained will not make the marriage voidable because intestate heirs can still question the validity of the
presumptive death will not prevail over the fact of death. marriage of the spouses, not in a proceeding for
declaration of nullity but upon the death of a spouse in a
If the missing husband was in fact alive when the second proceeding for the settlement of the estate of the deceased
marriage was celebrated, the second marriage was void ab spouse filed in the regular courts.
initio because of a prior subsisting marriage. Had Ana
obtained a declaration of presumptive death, the second However, with respect to nullity of marriage cases
marriage would have been voidable. commenced before the effectivity of A.M. No. 02-11-10 and
marriages celebrated during the effectivity of the NCC, the
In both cases, the fact that the German misrepresented his doctrine laid down in the Nial v. Bayadog case still
citizenship to avoid having to present his Certificate of applies; that the children have the personality to file the
Legal Capacity, or the holding of the ceremony outside the petition to declare the nullity of marriage of their deceased
church or beyond the territorial jurisdiction of the father to their stepmother as it affects their successional
solemnizing officer, are all irregularities which do not rights (De Dios Carlos v. Sandoval, G.R. No. 179922,
affect the validity of the marriage. December 16, 2008).

JUDICIAL DECLARATION OF NULLITY OF MARRIAGE Q: If the court denies a petition for declaration of
nullity of marriage based on psychological incapacity,
Necessity of Judicial Declaration of Nullity of Marriage may a party to the said case file another petition for
declaration of its nullity based on the absence of
The absolute nullity of a previous marriage may be marriage license?
invoked for purposes of remarriage on the basis solely of a
final judgment declaring such previous marriage void (Art. A: A petition to declare the marriage void due to absence
40, FC). of marriage license, filed after the court denied a petition
to declare the marriage void due to psychological
There has yet to be a judgment declaring it void, for it is incapacity is barred by res judicata. There is only one
solely on the basis of that final judgment that a party can cause of action which is the declaration of nullity of the
remarry (Albano, 2013). marriage. Hence, when the second case was filed based on
another ground, there was a splitting of a cause of action
NOTE: Remarriage is not the sole purpose of declaration of which is prohibited. The petitioner is estopped from
nullity of a marriage, as it can be declared void for other asserting that the first marriage had no marriage license
purposes. In Valdes vs. RTC, Branch 102, QC, G.R. No. because in the first case, he impliedly admitted the same
122749, July 31, 1996, it was said that the law aims to do when he did not question the absence of a marriage
away with any continuing uncertainty on the status of the license. Litigants are provided with the options on the
second marriage (Albano, 2013). course of action to take in order to obtain judicial relief.
Once an option has been taken and a case is filed in court,
Prescriptive Period the parties must ventilate all matters and relevant issues
therein. The losing party who files another action
The time for filing an action or defense for the declaration regarding the same controversy will be needlessly
of absolute nullity of marriage, whether in a direct or squandering time, effort and financial resources because
collateral manner, does not prescribe (Art. 39, FC). he is barred by law from litigating the same controversy all
over again (Mallion v. Alcantara, G.R. No. 141528, October
NOTE: Any of the parties in a void marriage can file an 31, 2006).
action for the declaration of nullity of marriage even
though such party is the wrongdoer.


Q: Is the declaration of nullity of marriage applied VOIDABLE MARRIAGES
Voidable Marriage
A: No, it retroacts to the date of the celebration of the
marriage. Although the judicial declaration of nullity of a A voidable marriage is considered valid and produces all
marriage on the ground of psychological incapacity its civil effects until it is set aside by final judgment of a
retroacts to the date of the celebration of the marriage competent court in an action for annulment (Rabuya, 2006,
insofar as the vinculum between the parties is concerned, p. 295).
it must be noted that the marriage is not without legal
consequences or effects. One such consequence or effect is Determination of the unsoundness of mind as a ground
the incurring of criminal liability for bigamy. To hold for annulment
otherwise would be to render nugatory the State's penal
laws on bigamy as it would allow individuals to It is essential that the mental incapacity must relate
deliberately ensure that each marital contract be flawed in specifically to the contract of marriage and the test is
some manner, and to thus escape the consequences of whether the party at the time of the marriage was capable
contracting multiple marriages (Tenebro v. CA, G.R. No. of understanding the nature and consequences of the
150758, February 18, 2004). marriage (Rabuya, 2006).

Q: Is a decree of nullity of the first marriage required Fraud as a ground for annulment
before a subsequent marriage can be entered into
validly? Fraud, as distinguished from fraud as a ground for
annulment of contracts, refers to the non-disclosure or
A: concealment of some facts deemed material to the marital
GR: Under the Art. 40 of the FC, the absolute nullity of a relations (Rabuya, 2009).
previous marriage may be invoked for purposes of
remarriage on the basis solely of a final judgment Circumstances constituting fraud under Art. 45(3)
declaring such previous marriage void.
1. Non-disclosure of conviction by final judgment of
XPN: If the second marriage, however, took place prior to crime involving moral turpitude;
the effectivity of the FC, there is no need for judicial 2. Concealment by the wife of the fact that at the time of
declaration of nullity of the first marriage pursuant to the marriage, she was Pregnant by a man other than her
prevailing jurisprudence at that time (Rabuya, 2006). husband;
3. Concealment of Sexually transmitted disease,
NOTE: Art. 40 is applicable to remarriages entered into regardless of nature, existing at the time of marriage;
after the effectivity of the FC on August 3, 1988 regardless 4. Concealment of Drug addiction, habitual alcoholism,
of the date of the first marriage. Besides, under Art. 256 of homosexuality and lesbianism (Art. 46, FC).
the FC, said Article is given retroactive effect insofar as it
does not prejudice or impair vested or acquired rights in NOTE: Where there has been no misrepresentation or
accordance with the Civil Code or other laws (Atienza v. fraud, that is, when the husband at the time of the
Brillantes, A.M. No. MTJ-92-706, March 29, 1995). marriage knew that the wife was pregnant, the marriage
cannot be annulled (Buccat v. Buccat, G.R. No. 47101, April
Q: While his first marriage is subsisting, Veronico 25, 1941).
married Leticia, which marriage was later declared
void on the ground of psychological incapacity. When
Veronico got married for the third time, Leticia filed a
case for bigamy against him.

For his defense, Veronico claims that effects of the

nullity of his marriage with Leticia retroacts to the
date when it was contracted, hence, he is not guilty of
bigamy for want of an essential element the
existence of a valid previous marriage. Rule on
Veronicos argument.

A: Veronicos argument has no merit. Art. 349 of the RPC

penalizes the mere act of contracting a second or
subsequent marriage during the subsistence of a previous
valid marriage. Here, as soon as the second marriage to
Leticia was celebrated, the crime of bigamy had already
been consummated as the second marriage was contracted
during the subsistence of the valid first marriage (Tenebro
v. CA, G.R. No. 150758, February 18, 2004).


Voidable marriages and its ratification


Contracting party who failed to Within 5 years after
obtain parental consent: By the contracting party attaining the age of 21
Marriage of a party 18 years Through free cohabitation after
of age or over but below 21 attaining the age of 21.
solemnized without the
consent of the parents, NOTE: The parents cannot
guardian or person having ratify the marriage. The effect
Parent, guardian, or person At any time before such
substitute parental authority of prescription on their part is
having legal charge of the party has reached the age
over the party, in that order that they are barred from
contracting party of 21
contesting it but the marriage
is not yet cleansed of its defect.
GR: Sane spouse who had no
knowledge of the others
At any time before the
Insane spouse: Through free death of either party
Either party was of unsound Any relative, guardian or
cohabitation after coming to
mind person having legal charge of
reason. During a lucid interval or
the insane
after regaining sanity
Insane spouse during a lucid
interval or after regaining
Injured party: Through free
Consent of either party was cohabitation with full Within 5 years after the
Injured party
obtained by fraud knowledge of the facts discovery of fraud
constituting the fraud.
Injured party: Through free Within 5 years from the
Vices of consent such as force, cohabitation after the vices time the force,
intimidation or undue have ceased or disappeared. Injured party intimidation or undue
influence influence disappeared or
May not be ratified but action
Impotence and STD may be barred by prescription Within 5 years after the
Injured party
only, which is 5 years after the celebration of marriage

Q: Aurora prayed for the annulment of her marriage annulment of marriage to the 3 cases therein may be
with Fernando on the ground of fraud in obtaining her deduced from the fact that, of all the causes of nullity
consent after having learned that several months prior enumerated in Art. 85 (now, Art. 46 of the FC), fraud is the
to their marriage, Fernando had pre-marital only one given special treatment in a subsequent article
relationship with a close relative of his. According to within the chapter on void and voidable marriages. If its
her, the "non-divulgement to her of such pre-marital intention were otherwise, Congress would have stopped at
secret" constituted fraud in obtaining her consent Art. 85, for anyway, fraud in general is already mentioned
w/in the contemplation of Art. 46 of the FC. Is the therein as a cause for annulment (Anaya v. Palaroan, GR L-
concealment by the husband of a pre-marital 27930, November 26, 1970).
relationship with another woman a ground for
annulment of marriage? Q: Under what conditions, respectively, may drug
addiction be a ground, if at all, for the declaration of
A: No. The non-disclosure to a wife by her husband of his nullity of marriage, annulment of marriage, and legal
pre-marital relationship with another woman is not a separation? (1997 Bar Question)
ground for annulment of marriage. For fraud as a vice of
consent in marriage, which may be a cause for its A:
annulment, comes under Art. 46 of the FC. This fraud, as a. The drug addiction must
vice of consent, is limited exclusively by law to those kinds amount to psychological
or species of fraud enumerated in Art. 46 in relation to Art. Declaration of incapacity to comply with
45(3). Nullity of the essential obligations of
Marriage marriage;
NOTE: The intention of Congress to confine the b. It must be antecedent
circumstances that can constitute fraud as ground for (existing at the time of


marriage), grave and Requisites for impotence to be a ground for annulment
incurable: of marriage
a. The drug addiction must be
concealed; 1. Exists at the time of the Celebration of marriage
b. It must exist at the time of 2. Permanent (does not have to be absolute)
marriage; 3. Incurable
Annulment of c. There should be no 4. Unknown to the other spouse
Marriage cohabitation with full 5. Other spouse must not also be Impotent
knowledge of the drug
addiction; Presumption of potency of one spouse
d. The case is filed within five
(5) years from discovery. GR: Presumption is in favor of potency.
a. There should be no
condonation or consent to XPN: Doctrine of triennial cohabitation.
the drug addiction;
b. The action must be filed Doctrine Triennial cohabitation
within five (5) years from
Legal Separation If after 3 years of living together with her husband, the
the occurrence of the cause.
c. Drug addiction arises during wife remained a virgin, the husband is presumed to be
the marriage and not at the impotent (Rabuya, 2009). The husband will have to
time of marriage. overcome this presumption.

Q: The day after John and Marsha got married, John

Q: If drug addiction, habitual alcoholism, lesbianism or told her that he was impotent. Marsha continued to
homosexuality should occur only during the marriage, live with John for two years. Is Marsha now estopped
would these constitute grounds for a declaration of from filing an annulment case against John? (2007 Bar
nullity or for legal separation, or would they render Question)
the marriage voidable? (2002 Bar Question)
A: No. Unlike the other grounds for annulment of voidable
A: In accordance with law, if drug addiction, habitual marriage which are subject to ratification by continued
alcoholism, lesbianism or homosexuality should occur only cohabitation, the law does not allow ratification in case of
during the marriage, they will: impotency.
1. Not constitute grounds for declaration of nullity (Art.
36, FC). Requisites of affliction of a sexually transmitted
2. Constitute grounds for legal separation (Art. 55, FC); disease (STD) as a ground for annulment
3. Not constitute grounds to render the marriage 1. One of the parties is Afflicted with STD
voidable (Arts. 45 and 46 of the FC) . 2. STD must be:
a. Existing at the time the marriage is celebrated
Vitiated consent as a ground for annulment of b. Serious
marriage c. Apparently Incurable
3. The other spouse must not be Aware of the others
There is vitiation of consent when: affliction
4. Injured party must be Free from STD.
GR: Consent of either party was obtained by force,
intimidation or undue influence Q: Yvette was found to be positive for HIV virus,
considered sexually transmissible, serious and
XPN: However, if the same having disappeared or ceased, incurable. Her boyfriend Joseph was aware of her
such party thereafter freely cohabited with the other as condition and yet married her. After two (2) years of
husband and wife cohabiting with Yvette, and in his belief that she would
probably never be able to bear him a healthy child,
NOTE: A threat to enforce one's claim through competent Joseph now wants to have his marriage with Yvette
authority however, if the claim is just or legal, does not annulled on the ground that Yvette has STD. Yvette
vitiate consent. opposes the suit contending that Joseph is estopped
from seeking annulment of their marriage since he
Impotence or physical incapacity knew even before their marriage that she was afflicted
with HIV virus. Can the action of Joseph for annulment
Impotence (impotentia copulandi) refers to lack of power of his marriage with Yvette prosper?
of copulation and not to mere sterility (impotentia
genrandi) which refers to ability to procreate. The test is A: No. Concealment of a sexually transmitted disease may
not the capacity to reproduce, but the capacity to copulate annul the marriage if there was fraud existing in the party
(Paras,2008). concerned. In this case, there was no fraud because Joseph
knew that Yvette was suffering from HIV when he married
her (Art. 46, par 3, FC).


Art. 45 v. 46 of the FC on STD as ground for annulment
Affliction Concealment Effects of Judicial Declaration of Nullity of Marriage
Ground for Annulment
1. Status of the Children
The act of concealing
The fact of being afflicted because it constitutes GR: Illegitimate
Concealment XPN: Legitimate if:
Not necessarily Necessary i. If the marriage is void on the ground of
Nature of the Disease psychological incapacity of either or both parties
ii. If the marriage is void due to the non-compliance
Must be serious and Does not have to be
with the requirements set forth under Article 52
incurable serious and incurable
of the Family Code
2. Property Relations
Role of the prosecutor or Solicitor General in cases of
GR: Either Article 147 or 148 (Co-Ownership) will
annulment and judicial declaration of Nullity
The prosecutor or Solicitor General shall take steps to
XPN: If the subsequent marriage is void due to non-
prevent collusion between the parties and to take care that
compliance with Article 40, the property relations of
evidence is not fabricated or suppressed. Concomitantly,
the void subsequent marriage will either be absolute
even if there is no suppression of evidence, the public
community or conjugal partnership of gains
prosecutor has to make sure that the evidence to be
presented or laid down before the court is not fabricated.
3. Donations Propter Nuptias
Truly, only the active participation of the public prosecutor
or the Solicitor General will ensure that the interest of the
GR: Donations propter nuptias are revocable at the
State is represented and protected in proceedings for
instance of the donor
declaration of nullity of marriages by preventing the
fabrication or suppression of evidence (Art. 48, FC).
i. If the donation propter nuptias is embodied in a
NOTE: The non-intervention of the prosecutor is not fatal
marriage settlement, the donation is void under
to the validity of the proceedings in cases where the
Article 86 par. 1
respondent in a petition for annulment vehemently
ii. If the subsequent marriage is judicially declared
opposed the same and where he does not allege that
void by reason of Article 40, the donation
evidence was suppressed or fabricated by any of the
remains valid
parties (Tuason v. CA, G.R. No. 116607, April 10, 1996).
XPN to the XPN: If the donee spouse contracted
Actions prohibited in annulment and declaration of
the marriage in bad faith, all donations are
absolute nullity of marriage cases
revoked by operation by law.
1. Compromise
iii. When both parties to a subsequent marriage
2. Confession of judgment
contracted in bad faith under Article 44, all
3. Stipulation of facts
donations propter nuptias are revoked by
4. Summary judgment
operation by law.
5. Judgment on the pleadings
4. Designation as Beneficiary in Insurance Policy
NOTE: What the law prohibits is a judgment based
exclusively or mainly on defendant's confession (Ocampo
If the subsequent marriage is judicially declared to
v. Florenciano, 107 Phil. 35). Thus, stipulation of facts or
void by reason of Article 40, the innocent spouse may
confession of judgment if sufficiently supported by other
revoke such designation if the beneficiary spouse
independent substantial evidence to support the main
acted in bad faith, even if such designation be
ground relied upon, may warrant an annulment or
stipulated as irrevocable.
declaration of absolute nullity.
5. Right to Inherit
a. Intestate Succession: The parties cannot inherit
from each other by way of intestate succession
During the pendency of the action for annulment,
since they are no longer considered as spouses
declaration of absolute nullity of marriage or legal
b. Testate Succession:
separation, the Court shall, in the absence of adequate
written agreement between the spouses, provide for the:
GR: Any Testamentary provision by one in favour of
1. Support of the spouses
the other shall remain valid
2. Support and custody of the common children
3. Visitation rights of the other parent (Art.49, FC).


XPN: children of the guilty spouse by previous marriage or in
1. If the subsequent marriage is rendered void by default thereof, the innocent spouse.
non-compliance with Article 40 of the Family
Code, the spouse who contracted the subsequent Final judgment of nullity or annulment
marriage in bad faith is disqualified to inherit
from the innocent spouse The final judgment of nullity or annulment shall provide
2. If the marriage is void by reason of the bad faith the following:
of both parties under Article 41 of the Family 1. Liquidation, partition and distribution of the
Code, all testamentary dispositions made by one properties of the spouses;
in favour of the other are revoked by operation of 2. Custody and support of the common children; and
law 3. Delivery of their presumptive legitimes.

NOTE: The parties are not disqualified to Unless such matters had already been adjudicated in
institute each other as voluntary heir in their previous judicial proceedings, in which case, the final
respective wills to be executed after the judicial judgment of nullity or annulment need not provide for
declaration of nullity those which have already been adjudicated.

6. Parental Authority and Custody of Children NOTE: Where there was a failure to record in the civil
registry and registry of property the judgment of
GR: Since the children are considered as illegitimate, annulment or absolute nullity of the marriage, the
the parental authority and the custody of the children partition and distribution of the property of the spouses,
will be exercised by their mother. The illegitimate and the delivery of the childrens presumptive legitimes, it
father even if he admits paternity, will only have shall not affect third persons (Arts. 52, FC).
visitation rights.
Forms of presumptive legitime
XPN: If the marriage is declared void by the reason of
psychological incapacity of either or both of the 1. Cash
parties, the parental authority and the custody will be 2. Property
exercised by the parent designated by the court. 3. Sound security

Effects of Decree of Annulment Q: What must be done by a person whose prior

marriage was annulled or declared void if he wishes to
1. Termination of the marital bond, as if it had never remarry?
been entered into, but the effects thereof are not
totally wiped out. A: He must comply with the requirement provided for in
2. Children conceived or born before the judgment of Art. 52, before he contracts a subsequent marriage, viz:
annulment has become final and executory are
considered legitimate. The recording in the civil registries and registries of
3. Absolute community property regime or the conjugal properties of the following:
partnership property regime is terminated of 1. Judgment of annulment;
dissolved and the same shall be liquidated in 2. Partition;
accordance with the provisions of Arts. 102 and 129. 3. Distribution of properties; and
4. The innocent spouse may revoke the designation of 4. Delivery of presumptive legitimes.
the other spouse who acted in bad faith as beneficiary
in the insurance policy whether or not the designation LEGAL SEPARATION
is revocable.
5. The spouse who contracted the marriage in bad faith Legal separation
shall be disqualified to inherit from the innocent
spouse by testate and intestate succession Legal separation is a legal remedy available to a parties in
6. Donation propter nuptias a valid but failed marriage for the purpose of obtaining a
decree from the court entitling him or her certain reliefs
GR: It shall remain valid such as the right to live separately from each other
(without affecting the marital bond that exists between
XPN: If the donee spouse acted in bad faith, the donor them), the dissolution and liquidation of their absolute
may revoke the donation. community or conjugal partnership property regime and
the custody of their minor children.
Q: What will happen to the liquidation of property,
after final judgment of annulment, if either spouse Nature of legal separation
contracted the marriage in bad faith?
An action for legal separation which involves nothing more
A: If either spouse contracted the marriage in bad faith, his than bed-and-board separation of the spouses is purely
or her share of the net profits of the community property personal. The Civil Code recognizes this by:
or conjugal partnership property shall be forfeited in 1. By allowing only the innocent spouse and no one else
favour of the common children or if there be none, the to claim legal separation;


2. By providing that the spouses can, by their Acts considered as acts of violence under R.A. 9262
reconciliation, stop or abate the proceedings and even
rescind a decree of legal separation already granted 1. Causing, threatening to cause, or attempting to cause
(Lapuz v. Eufemio, G.R. No. L-31429, January 31, 1972). physical harm to the woman or her child;
2. Threatening to cause the woman or her child physical
3. Attempting to cause the woman or her child physical
Grounds for legal separation harm;
4. Placing the woman or her child in fear of imminent
1. Repeated Physical violence or grossly abusive conduct physical harm;
against petitioner, common child, child of petitioner; 5. Attempting to compel or compelling the woman or
2. Attempt to corrupt or induce petitioner, common her child to:
child, child of petitioner to engage in prostitution, or a. Engage in conduct which the woman or her child
connivance in such corruption or inducement; has the right to desist from; or
3. Attempt by respondent against Life of petitioner; b. Desist from conduct which the woman or her
4. Final judgment sentencing respondent to child has the right to engage in,
imprisonment of more than 6 years, even if pardoned;
5. Drug Addiction or habitual alcoholism of respondent; 6. Attempting to restrict or restricting the womans or
her childs freedom of movement or conduct by:
NOTE: It must exist after celebration of marriage a. Force, or
b. Threat of force;
6. Physical violence or moral pressure to Compel c. Physical, or
petitioner to change religious or political affiliation; d. Other harm, or
7. Bigamous marriage Subsequently contracted by e. Threat of physical or other harm;
respondent in the Philippines or abroad f. Intimidation directed against the woman or child.
8. Sexual Infidelity or perversion; This shall include, but not limited to, the
9. Lesbianism or homosexuality of respondent; following acts committed with the purpose or
effect of controlling or restricting the womans or
NOTE: It must exist after celebration of marriage her childs movement or conduct:
i. Threatening to deprive or actually depriving
10. Abandonment of petitioner by respondent without the woman or her child of custody to her/his
justifiable cause for more than 1 year. family;
ii. Depriving or threatening to deprive the
Q: If a man commits several acts of sexual infidelity, woman or her children of financial support
particularly in 2002, 2003, 2004, 2005, does the legally due her or her family, or deliberately
prescriptive period to file for legal separation run providing the womans children insufficient
from 2002? (2007 Bar Question) financial support;
iii. Depriving or threatening to deprive the
A: The prescriptive period begins to run upon the woman or her child of a legal right;
commission of each act of infidelity. Every act of sexual iv. Preventing the woman in engaging in any
infidelity committed by the man is a ground for legal legitimate profession, occupation, business
separation. or activity or controlling the victims own
money or properties, or solely controlling
Q: Lucita left the conjugal dwelling and filed a petition the conjugal or common money, or
for legal separation due to the physical violence, properties;
threats, intimidation and grossly abusive conduct she
had suffered at the hands of Ron, her husband. Ron 7. Inflicting or threatening to inflict physical harm on
denied such and claimed that since it was Lucita who oneself for the purpose of controlling her actions or
had left the conjugal abode, then the decree of legal decisions;
separation should not be granted, following Art. 56 (4) 8. Causing or attempting to cause the woman or her
of the FC which provides that legal separation shall be child to engage in any sexual activity which does not
denied when both parties have given ground for legal constitute rape, by:
separation. Should legal separation be denied on the a. Force, or
basis of Rons claim of mutual guilt? b. Threat of force;
c. Physical harm, or
A: No. Art. 56 (4) of the FC does not apply since the d. Through intimidation directed against the
abandonment that is a ground for legal separation is woman or her child or her/his immediate family;
abandonment without justifiable cause for more than one
year. In this case, Lucita left Ron due to his abusive 9. Engaging in purposeful, knowing, or reckless conduct,
conduct. Such act does not constitute the abandonment personally or through another that alarms or causes
contemplated in the said provision. Therefore, there is no substantial emotional or psychological distress to the
mutual guilt between them as there is only one erring woman or her child. This shall include, but not be
spouse (Ong Eng Kiam v. CA, GR No. 153206, October 23, limited to, the following acts:


a. Stalking or following the woman or her child in 7. Death of either party during the pendency of the case
public or private places; (Lapuz-Sy v. Eufemio, G.R. No. L-31429, January 31,
b. Peering in the window or lingering outside the 1972);
residence of the woman or her child; 8. Reconciliation of the spouses during the pendency of
c. Entering or remaining in the dwelling or on the the case (Art. 56, FC)
property of the woman or her child against
her/his will; Prescriptive period for filing a petition for legal
d. Destroying the property and personal separation
belongingness or inflicting harm to animals or
pets of the woman or her child; and An action for legal separation shall be filed within five
e. Engaging in any form of harassment or violence; years from the time of the occurrence of the cause (Art. 57,
FC). An action filed beyond that period is deemed
10. Causing mental or emotional anguish, public ridicule prescribed.
or humiliation to the woman or her child, including,
but not limited to, repeated verbal and emotional Failure to interpose prescription as a defense
abuse, and denial of financial support or custody of
minor children of access to the womans While it is true that prescription was not interposed as a
child/children. defense, nevertheless, the courts can take cognizance
thereof, because actions seeking a decree of legal
Protection Order separation, or annulment of marriage, involve public
interest and it is the policy of our law that no such decree
A protection order under R.A. 9262 is an order issued be issued if any legal obstacles thereto appear upon the
under this act for the purpose of preventing further acts of record.
violence against a woman or her child and granting other
necessary relief. The relief granted under a protection This is an exception to the Rules of Court provision that
order serves the purpose of safeguarding the victim from defenses not raised in the pleadings will not be considered
further harm, minimizing any disruption in the victims since provisions on marriage are substantive in nature
daily life, and facilitating the opportunity and ability of the (Brown v. Yambao, G.R. No. L-10699, October 18, 1957).
victim to independently regain control over her life. The
provisions of the protection order shall be enforced by law Q: Rosa and Ariel were married in the Catholic Church
enforcement agencies. The protection orders that may be of Tarlac, Tarlac on January 5, 1988. In 1990, Ariel
issued under this Act are the barangay protection order went to Saudi Arabia to work. There, after being
(BPO), temporary protection order (TPO) and permanent converted into Islam, Ariel married Mystica. Rosa
protection order (PPO). learned of the second marriage of Ariel on January 1,
1992 when Ariel returned to the Philippines with
Who may file Petition for Protection orders Mystica. Rosa filed an action for legal separation on
February 5, 1994.
The following may file for protection order:
1. The offended party; 1. Does Rosa have legal grounds to ask for legal
2. Parents or guardians of the offended party; separation?
3. Ascendants, descendants or collateral relatives within 2. Has the action prescribed? (1994 Bar Question)
the fourth civil degree of consanguinity or affinity;
4. Officers or social workers of the DSWD or social A:
workers of local government units (LGUs); 1. Yes, the abandonment of Rosa by Ariel for more than
5. Police officers, preferably those in charge of women one (1) year is a ground for legal separation unless
and childrens desks; upon returning to the Philippines, Rosa agrees to
6. Punong barangay or Barangay Kagawad; cohabit with Ariel which is allowed under the Muslim
7. Lawyer, counselor, therapist or healthcare provider of Code. In this case, there is condonation.
the petitioner;
8. At least 2 concerned responsible citizens of the city or The contracting of a subsequent bigamous marriage
municipality where the violence against women and whether in the Philippines or abroad is a ground for
their children occurred and who has personal legal separation under Art. 55 (7) of the FC. Whether
knowledge of the offense committed. the second marriage is valid or not, Ariel having
converted into Islam, is immaterial.
2. No. Under Art. 57 of the FC, the aggrieved spouse
Grounds for denial of petition for legal separation must file the action within 5 years from the
occurrence of the cause. The subsequent marriage of
1. Condonation of the act complained of; Ariel could not have occurred earlier than 1990, the
2. Consent to the commission of the offense/act; time he went to Saudi Arabia. Hence, Rosa has until
3. Connivance in the commission of the act; 1995 to bring the action under the FC.
4. Collusion in the procurement of decree of LS;
5. Mutual guilt;
6. Prescription: 5 yrs from occurrence of cause;


COOLING-OFF PERIOD or agreed upon, to enable him to obtain the decree of legal
separation that he sought without regard to the legal
Mandatory cooling-off period merits of his case. One such circumstance is the fact of
William's cohabitation with Lilia, since it bars him from
The requirement set forth by law that an action for legal claiming legal separation by express provision of Art. 100
separation shall be in no case tried before 6 months has of the NCC. Such evidence of misconduct is a proper
elapsed since the filing of the petition, to enable the subject of inquiry as they may justifiably be considered
contending spouses to settle differences. In other words, it is circumstantial evidence of collusion between the spouses.
for possible reconciliation (Art. 58, FC).
Art. 101 of the NCC, calling for the intervention of the state
The 6 months cooling-off period is a mandatory attorneys in case of uncontested proceedings for legal
requirement. Petition shall not be granted if it is not separation (and of annulment of marriages, under Art. 88)
observed (Pacete v. Carriaga, G.R. No. L-53880 March 17, emphasizes that marriage is more than a mere contract;
1994). that it is a social institution in which the state is vitally
interested, so that its continuation or interruption cannot
NOTE: There is no cooling-off period if the grounds alleged be made dependent upon the parties themselves. It is
are those under R.A. 9262 (Anti-Violence against Women consonant with this policy that the inquiry by the Fiscal
and Children Act). The court can immediately hear the should be allowed to focus upon any relevant matter that
case. may indicate whether the proceedings for separation or
annulment are fully justified or not (Brown v. Yambao, G.R.
RECONCILIATION EFFORTS No. L-10699, October 18, 1957).

The Court is required to take steps toward the Filing of petition for legal separation
reconciliation of the spouses and must be fully satisfied
that, despite such efforts, reconciliation is highly Who may file Husband or wife
improbable (Art. 59, FC). Within 5 years from the time of the
When to file
occurrence of the cause
CONFESSION OF JUDGMENT Family Court of the province or city
where the petitioner or the respondent
Rule in rendering a judgment of legal separation based has been residing for at least 6 months
upon a stipulation of facts or confession of judgment Where to file prior to the date of filing or in case of a
non-resident, where he may be found in
A decree of legal separation cannot be issued solely on the the Philippines, at the election of the
basis of a stipulation of facts or a confession of judgment. petitioner
The grounds for legal separation must be proved. Neither
confession of judgment nor summary judgment is allowed. EFFECTS OF FILING PETITION
In any case, the court shall order the prosecuting attorney
or fiscal to take steps to prevent collusion between the Effects of filing of a petition for legal separation
parties and to take care that the evidence is not fabricated
or suppressed. (Art. 60, FC). 1. The spouses shall be entitled to live separately from
each other.
NOTE: What the law prohibits is a judgment based 2. In the absence of a written agreement between the
exclusively or mainly on defendant's confession (Ocampo v. parties, the court shall designate either the husband
Florenciano, G.R. No. L-13553, February 23, 1960). or the wife or a 3rd person to administer the absolute
community or conjugal partnership property.
Q: After learning of Juanitas misconduct, William filed
a petition for legal separation. During his cross- EFFECT OF DEATH DURING PENDENCY
examination by the Assistant Fiscal, it was discovered
that William lived with a woman named Lilia and had Effect of the death of a party
children with her after the liberation. The court
denied the petition on the ground that both of them Being personal in character, it follows that the death of one
had incurred in a misconduct of similar nature that party to the action causes the death of the action itself -
barred the right of action under Art. 100, NCC. actio personalis moritur cum persona (Lapuz v. Eufemio,
G.R. No. L-31429, January 31, 1972, as cited in Rabuya,
William argues that in cross-examining him with 2009).
regard to his marital relation with Lilia, who was not
his wife, the Assistant Fiscal acted as counsel for Effect of death of a party before entry of judgment
Juanita when the power of the prosecuting officer is
limited to finding out whether or not there is collusion, The court shall order the case closed and terminated
and if there is no collusion, to intervene for the state. without prejudice to the settlement of estate proper
Is his argument correct? proceedings in the regular courts (Sec. 21, A.M. 02-11-11-
A: The argument is untenable. It was legitimate for the
Fiscal to bring to light any circumstances that could give
rise to the inference that Juanita's default was calculated,


Effect of death of a party after entry of judgment afford the child a desirable atmosphere where he can grow
and develop into an upright and moral-minded person.
If the party dies after the entry of judgment, the same shall
be binding upon the parties and their successors in Q: Which of the following remedies,
interest in the settlement of the estate in the regular courts A. Declaration of nullity of marriage,
(Sec. 21, A.M. 02-11-11-SC). B. Annulment of marriage,
C. Legal separation, and/or
Q: May the heirs of the deceased spouse continue the D. Separation of property,
suit (petition for decree of legal separation) if the
death of the spouse takes place during the pendency of Can an aggrieved spouse avail himself/herself of:
the suit?
a. If the wife discovers after the marriage that her
A: No. An action for legal separation is purely personal, husband has AIDS?
therefore, the death of one party to the action causes the b. If the wife goes abroad to work as a nurse and
death of the action itself action personalis moritur cum refuses to come home after the expiration of her
persona. three-year contract there?
c. If the husband discovers after the marriage that
NOTE: In cases where one of the spouses is dead, or where his wife has been a prostitute before they got
the deceaseds heirs continue the suit, separation of married?
property and any forfeiture of share already effected d. If the husband has a serious affair with his
subsists, unless spouses agree to revive former property secretary and refuses to stop notwithstanding
regime. advice from relatives and friends?
e. If the husband beats up his wife every time he
EFFECTS OF LEGAL SEPARATION comes home drunk? (2003 Bar Question)

Effects of decree of legal separation A:

a) A. Annulment of marriage
1. Spouses entitled to live separately but the marriage Since AIDS is a serious and incurable sexually
bond is not severed; transmissible disease, the wife may file an action for
2. ACP/CPG shall be dissolved and liquidated. The share annulment of the marriage on this ground whether
of the offending spouse in the net profits shall be such fact was concealed or not from the wife,
forfeited in favour of: provided that the disease was present at the time of
a. Common children the marriage. The marriage is voidable even though
b. In default of the common children, children of the the husband was not aware that he had the disease at
guilty spouse by a previous marriage the time of marriage.
c. In default of common children and the children of
the guilty spouse, innocent spouse b) D. Separation of property,
3. Custody of minor children is awarded to the innocent If the wife refuses to come home for three (3) months
spouse (subject to Art. 213, FC); from the expiration of her contract, she is presumed
4. Offending spouse is disqualified to inherit from to have abandoned the husband and he may file an
innocent spouse by intestate succession; action for judicial separation of property. If the refusal
5. Provisions in the will of innocent spouse which favors continues for more than one year from the expiration
offending spouse shall be revoked by operation of law; of her contract, the husband may file the action for
6. Innocent spouse may revoke donations he/she made legal separation under Art. 55(10) of the FC on the
in favor of offending spouse; ground of abandonment of petitioner by respondent
without justifiable cause for more than one year. The
NOTE: Prescriptive period: 5 years from finality of wife is deemed to have abandoned the husband when
decree of legal separation she leaves the conjugal dwelling without any intention
of returning (Art. 101, FC). The intention not to return
7. Innocent spouse may revoke designation of offending cannot be presumed during the 3-year period of her
spouse as beneficiary in any insurance policy, even contract.
when stipulated as irrevocable.
c) None.
Q: In case an action for legal separation is granted, If the husband discovers after the marriage that his
what will happen to a child below the age of seven? Is wife was a prostitute before they got married, he has
the rule absolute? no remedy. No misrepresentation or deceit as to
character, health, rank, fortune or chastity shall
A: As a rule, the custody of the child shall be awarded to constitute fraud as legal ground for an action for the
the innocent spouse, except if the child is below the age of annulment of marriage (Art. 46, FC).
seven where the law says that the child cannot be
separated from the mother, except if there is a compelling d) C. Legal separation
reason to do so. In Cervantes v. Fajardo (Jan. 27, 1989), it The wife may file an action for legal separation. The
was said that the common-law relationship of a child's husbands sexual infidelity is a ground for legal
mother with a married man is a ground to separate the separation (Art. 55, FC). She may also file an action for
child from the mother, because such a situation will not judicial separation of property for failure of her


husband to comply with his marital duty of fidelity of the properties desired to be returned to the
(Art. 135[4], Art. 101, FC). community or conjugal property and those which will
remain separate, a list of creditors and their
e) C. legal separation, and D. separation of property, addresses.
The wife may file an action for legal separation on the
ground of repeated physical violence on her person 3. As to capacity to succeed: The Family Code does not
(Art. 55[1], FC). She may also file an action for judicial provide for the revival of revoked provisions in a will
separation of property for failure of the husband to originally made in favor of the offending party as a
comply with his marital duty of mutual respect (Art. result of the LS. This absence gives the innocent
135[4], Art. 101, FC). She may also file an action for spouse the right to choose whether the offending
declaration of nullity of the marriage if the husbands spouse will be reinstituted.
behavior constitutes psychological incapacity existing
at the time of the celebration of marriage. 4. As to the forfeited shares: Those given to the children
cannot be returned since the spouses are no longer
Effect to the donations made by the spouses to each the owners of such. But those given to the innocent
other spouse may be returned.

The revocation of the donations shall be recorded in the Revival of previous property regime after
registries of property in the places where the properties reconciliation
are located. Alienations, liens and encumbrances
registered in good faith before the recording of the Reconciliation does not automatically revive the former
complaint for revocation in the registries of property shall property regime of the spouses. If the spouses want to
be respected. The revocation of or change in the revive the previous property regime, they must execute an
designation of the insurance beneficiary shall take effect agreement to revive the former property regime, which
upon written notification thereof to the insured. agreement shall be submitted in court, together with a
verified motion for its approval (Art. 67, FC).
The action to revoke the donation must be brought within
five years from the time the decree of legal separation has The agreement to revive must be under oath and specify:
become final. 1. The properties to be contributed anew to the
restored regime;
RECONCILIATION 2. Those to be retained as separated properties of
each spouse; and
Effects of reconciliation 3. The names of all their known creditors, their
addresses and the amounts owing to each
1. As to the Decree: (Pineda, 2008).
a. During the pendency of the case: LS proceedings
terminated at whatever stage Effects of reconciliation while the petition is being
b. After the issuance of the decree: Final decree of LS heard by the court
to be set aside (Art. 66, FC).
1. If the spouses should reconcile, a corresponding joint
2. As to the Property Regime: manifestation under oath duly signed by them shall be
filed with the court in the same proceeding for legal
GR: In case there had been already separation of separation.
property and forfeiture of the share of the guilty 2. The legal separation proceedings, if still pending, shall
spouse, the same shall be maintained (Pineda, 2008). thereby be terminated at whatever stage.

XPN: The parties, however, can come into an

agreement to revive their previous regime. Their
agreement must be under oath and must contain a list


Difference of Declaration of Nullity of Marriage, Annulment and Legal Separation


Marriage No effect, marriage bond
Dissolved Dissolved
bond remains
GR: Illegitimate
Status of
XPN: Children conceived or born of marriages before Legitimate
declaration of nullity under Arts. 36 and 53 considered
ACP/CPG shall be dissolved & liquidated.
(Art. 43 [2], FC)
GR: Governed either by Article 147 or Article 148 of the Family
Code. Thus, property regime shall be liquidated pursuant to the Share of spouse, who contracted the
ordinary rules on co-ownership. subsequent marriage in bad faith, in the net
profits of the community property or
XPN: Marriages declared void under Art. 40 which shall be conjugal partnership, shall be forfeited in
liquidated in accordance with Art. 43 (2) (Valdes v. RTC, G.R. No. favor of the common children, or
122749. July 31, 1996).
If there are none, the children of the guilty
spouse by a previous marriage, or

In default of children, the innocent spouse

GR: Donations propter nuptias are revocable at the instance of
the donor

XPN: GR: Shall remain valid (Art. 43 [3], FC).

ii. If the donation propter nuptias is embodied in a marriage
settlement, the donation is void under Article 86 par. 1 XPN:
Donationsiii. If the subsequent marriage is judicially declared void by reason 1. If donee contracted the marriage in bad
propter of Article 40, the donation remains valid faith, such donations made to said donee
nuptias shall be revoked by operation of law.
XPN to the XPN: 2. If both spouses to the marriage acted in
1. If the donee spouse contracted the marriage in bad faith, all bad faith, all donations propter nuptias
donations are revoked by operation by law. shall be revoked by operation of law.
2. When both parties to a subsequent marriage contracted in
bad faith under Article 44, all donations propter nuptias are
revoked by operation by law.
If one spouse acted in bad faith, innocent
If the subsequent marriage is judicially declared by void by
spouse may revoke his designation as
reason of Article 40, the innocent spouse may revoke such
Insurance beneficiary in the insurance policy even if
designation if the beneficiary spouse acted in bad faith, even if
such designation be stipulated as irrevocable
such designation be stipulated as irrevocable
(Art. 43 [4], FC).
Intestate Succession: The parties cannot inherit from each other
by way of intestate succession since they are no longer
considered as spouses

Testate Succession:

GR: Any Testamentary provision by one in favour of the other

shall remain valid
If one spouse contracted the marriage in bad
faith, he shall be disqualified to inherit from
Succession XPN:
innocent spouse by testate and intestate
1. If the subsequent marriage is rendered void by non-
succession (Art. 43 [5], FC).
compliance with Article 40 of the Family Code, the spouse
who contracted the subsequent marriage in bad faith is
disqualified to inherit from the innocent spouse
2. If the marriage is void by reason of the bad faith of both
parties under Article 41 of the Family Code, all testamentary
dispositions made by one in favour of the other are revoked
by operation of law


NOTE: The parties are not disqualified to institute each other
as voluntary heir in their respective wills to be executed after
the judicial declaration of nullity

RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND b. In the absence thereof from the income or fruits
WIFE of their separate properties
c. In the absence or insufficiency thereof from their
ESSENTIAL OBLIGATIONS separate properties
4. Manage the household (Art. 71, FC)
Rights and obligations of the spouses 5. Not to neglect duties, or commit acts which tend to
bring danger, dishonor, or injury to family (Art. 72, FC)
1. Essential marital obligations (LOR) (Art. 68, FC): 6. Either spouse may practice any legitimate
a. Live together which includes consortium profession/business, even without the consent of the
(cohabitation) and copulation (sexual other.
b. Observe mutual love, respect, fidelity NOTE: The other spouse may object on valid, serious
c. Render mutual help and support and moral grounds. In case of disagreement, the court
shall decide whether:
NOTE: It is true that the Family Code, obligates the a. Objection is proper; and
spouses to love one another but this rule sanctions b. Benefit has accrued to the family prior to the
affection and sexual intimacy, as expressions of love, objection or thereafter. If the benefit accrued
that are both spontaneous and mutual and not the prior to the objection, the resulting obligation
kind which is unilaterally exacted by force or shall be enforced against the community
coercion. Further, the delicate and reverent nature of property. If the benefit accrued thereafter, such
sexual intimacy between a husband and wife excludes obligation shall be enforced against the separate
cruelty and coercion. Sexual intimacy brings spouses property of the spouse who has not obtained
wholeness and oneness. It is a gift and a participation consent (Art. 73, FC as amended by R.A. 10572).
in the mystery of creation. It is a deep sense of
spiritual communion. It is a function which enlivens The foregoing provisions shall not prejudice the
the hope of procreation and ensures the continuation rights of creditors who acted in good faith.
of family relations. It is an expressive interest in each
other's feelings at a time it is needed by the other and Other obligations of spouses
it can go a long way in deepening marital relationship.
When it is egoistically utilized to despoil marital union 1. Exercise the duties and enjoy the rights of parents;
in order to advance a felonious urge for coitus by 2. Answer for civil liability arising from injuries caused
force, violence or intimidation, the Court will step in by children below 18;
to protect its lofty purpose, vindicate justice and 3. Exercise parental authority over childrens property
protect our laws and State policies. Besides, a (Republic v. CA, Molina, G.R. No. 108763, February 13,
husband who feels aggrieved by his indifferent or 1997).
uninterested wife's absolute refusal to engage in
sexual intimacy may legally seek the court's Essential marital obligations cannot be compelled by
intervention to declare her psychologically court
incapacitated to fulfill an essential marital obligation.
But he cannot and should not demand sexual intimacy GR: Performance of essential marital obligation under Art.
from her coercively or violently (People vs. Jumawan, 68 cannot be compelled by court because it will be a
G.R. no. 187495, April 21, 2014). Therefore: violation of personal liberty.
a. The right to sexual intercourse involves normal
intercourse. Thus the wife may refuse to have XPN: Giving support (Arroyo v. Arroyo, G.R. No. L-17014,
sexual intercourse with the husband if he resorts August 11, 1921)
to abnormal or perverse practices.
b. The wife can also refuse to have sexual Reasons when the Court may exempt one spouse from
intercourse with the husband if she is ill, if it living with the other
would endanger her health, or if he is suffering
from some venereal disease. 1. If one spouse should live abroad.
c. If the husband forces the wife to have sexual 2. Other valid and compelling reasons.
intercourse with him against her will, he may be
charged with coercion (Sempio-Diy, 1995). NOTE: The Court shall not grant the exemption if it is not
compatible with the solidarity of the family.
2. Fix the family domicile (Art. 69, FC)

NOTE: In case of disagreement the Court shall decide.

3. Jointly support the family (Art. 70, FC)

a. Expenses shall be paid from the community



GENERAL PROVISIONS Marriage Settlement (MS)

Rule on Property Relations It is a contract entered into by spouses about to be married

for the purpose of fixing the terms and conditions of their
The property relations shall be governed by the ff. in the property relations with regard to their present and future
stated order: property.
1. Property relation agreed and embodied in the
marriage settlement It is also referred to as Ante Nuptial Agreement or
2. Provisions of the FC Matrimonial Contract (Pineda, 2008 ed.).
3. Local custom (Art. 74).
Requisites of a valid MS (W-SER)
NOTE: The marriage settlements must be registered in the
proper local civil registry where the marriage contract was 1. In Writing;
recorded as well as in the proper registries of property in 2. Signed by the parties;
order that they may prejudice or bind third persons (Art. 3. Executed before the celebration of marriage;
77, FC). 4. Registration (to bind 3rd persons)

Laws that will govern the property relations of the NOTE: The provisions in the marriage settlement must be
spouses in accordance with law, morals or public policy; otherwise
such agreement is void (Paras, book I, p. 516).
GR: Philippine laws shall govern, regardless of place of
celebration of marriage and residence of spouses, in the Q: A and B are married. Prior to their marriage, they
absence of contrary stipulation in a marriage settlement entered into an ante-nuptial agreement without
(Art. 80, FC). having it notarized. Is the agreement valid?

XPN: Lex rei sitae applies: A: Yes, the law is clear that the marriage settlements and
1. Where both spouses are aliens; any modification thereof shall be in writing, signed by the
2. With respect to the extrinsic validity of contracts parties and executed before the celebration of the
affecting property not situated in the Philippines; and marriage (Art. 77, FC). The law merely requires it to be in
executed in the country where the property is located; writing; it does not require that it be in a public instrument
3. With respect to extrinsic validity of contracts entered for purposes of its validity (Albano, 2013).
into in the Philippines but affecting property situated
in a foreign country whose laws require different Additional requirements for validity of the MS
formalities for its extrinsic validity (Art. 80).
Rule on waiver of rights over the share in the REQUIREMENT
community or conjugal property The ff. must be made a
If one of both of the
party to the MS,
GR: Cannot be waived during the marriage. parties are:
otherwise the MS is void:
Parents; or
XPN: In case of judicial separation of property. 18-21 years old those required to give
NOTE: The waiver must be in a public instrument and
Sentenced with civil Guardian appointed by the
recorded in the office of the local civil registrar where the
interdiction court
marriage contract was recorded as well as in the proper
registry of property. Guardian appointed by the
Q: Marriage being a contract, may the parties enter
into stipulations which will govern their marriage? Modification of the marriage settlement

A: The nature, consequences and incidents of marriage are For any modification in the MS to be valid:
governed by law and not subject to stipulation between 1. The requisites for a valid MS must be present;
the spouses. This, however, is not an absolute rule. The law 2. There must be judicial approval;
allows the spouses to fix their property relations during 3. Subject to the provisions of Arts. 66, 67, 128, 135, and
the marriage through a device known as marriage 136.
settlement subject only to the condition that whatever
settlement they may have must be within the limits Effect on the ante-nuptial agreement in case the
provided by the Family Code. marriage is not celebrated

GR: Everything stipulated in the settlements or contracts

in consideration of the marriage shall be rendered void.


XPN: Those stipulations not dependent upon, or are not 2. Donation in the MS be not more than 1/5 of the
made in consideration of, the marriage, subsist. present property
3. There must acceptance by other spouse
Rule regarding DPN made between spouses
Donation propter nuptias or Donation by reason of
marriage GR: Future spouses cannot donate to each other more than
1/5 of their present property and any excess from which
Those donations which are made before the celebration of shall be considered void.
the marriage, in consideration of the same, and in favor of
one or both of the future spouses XPN: If they are governed by ACP, then each spouse can
donate to each other in their marriage settlements present
The formalities of the donation propter nuptias follows the property without limit, provided there is sufficient
same formalities as set forth in the law on donations property left for their support and the legitimes are not
NOTE: Donations of future property are governed by
provisions on testamentary succession and formalities of Effect of donations of encumbered property
Such donations are valid. In case of foreclosure of the
Donation propter nuptias (DPN) v. Ordinary Donation encumbrance and the property is sold for less than the
total amount of the obligation secured, the donee shall not
BASIS DPN ORDINARY be liable for the deficiency. If the property is sold for more
DONATION than the total amount of the obligation, the donee shall be
Donations of Governed by entitled to the excess (Art. 85, FC).
future property Title III, Book III
are governed by of the NCC Donations that may be revoked by the donor
the provisions on
As to formalities testamentary A donation by reason of marriage may be revoked by the
succession and donor in the following cases:
the formalities of 1. GR: Marriage is not celebrated or is judicially declared
wills (Art. 84, par. void ab initio
Present property There is no limit XPN: donations made in the marriage settlements
may be donated except that the
up to 1/5 of the donor shall leave 2. Marriage takes place without the required consent of
donors present sufficient parents or guardians
property if the property for his 3. Marriage is annulled and donee acted in bad faith
future spouses support and that 4. Upon legal separation, the donee being the guilty
As to inclusion have chosen a of all relatives spouse
of present regime other than entitled to 5. If with a resolutory condition which was complied
property absolute support from with
community of him (Art. 750, 6. Donee has committed an act of ingratitude
property NCC) and further
no legitimes of Grounds for filing an action for revocation of a DPN
compulsory heirs and their respective prescriptive periods
shall be impaired
Future property Future property GROUNDS (Art. 86) Reckoning
may be included cannot be Period
As to inclusion Point
provided the included (Art. From the time
of future
donation is mortis 751, NCC) 1. Marriage is not celebrated the marriage
causa (Art. 84, was not
par. 2) 5 yrs
XPN: Those automatically solemnized on
rendered void by law the fixed date
Requisites for DPN (Art. 1149)
1. Made before celebration of marriage; for
2. Made in consideration of the marriage; nullity:
3. Made in favor of one or both of the future spouses. 2. Marriage is a.
judicially Contracted Revoked by operation of
Requisites if the DPN is made by one spouse in favor of declared subsequen law
the other void t marriage
1. There must be a MS stipulating a property regime prior
other than AC marriage


declared Different property regimes which may be adopted by
void future spouses
Finality of
judicial 1. Absolute Community of Property (ACP)
declaration of 2. Conjugal Partnership of Gains (CPG)
b. Any other 3. Absolute Separation of Property (ASOP)
5 yrs nullity (if
grounds 4. Any other regime within limits provided by the FC
action is to
property) Q: Does the prohibition against donation between the
Time the spouses include the act of making the other spouse a
donor came to beneficiary in an insurance contract?
3. Marriage took place without
know that the
consent of parents or A: No. In Gercio v. Sun Life Assurance Co., of Canada (48
5 yrs required
guardian, when required by Phil. 53), it was held that the rule against donation to one
law another between the spouses does not include a spouse
consent was
not obtained. being a beneficiary of an insurance contract over the life of
4. Marriage is annulled and Finality of the other.
5 yrs
donee acted in bad faith decree
5. Upon legal separation (LS), Time decree of ACP v. CPG v. ASOP.
donee being the guilty 5 yrs LS has become
spouse final ACP CPG ASOP
6. Donation subject to Happening of When it applies
resolutory condition which 5 yrs the resolutory When spouses: 1. When the 1. When future
was complied with condition. 1. Adopt it in a future spouses spouses adopt
From donors marriage adopt it in a it in a marriage
knowledge of settlement; marriage settlement
7. Donee committed an act of the 2. Do not settlement. 2. ACP or CPG is
1 yr
ingratitude commission of choose any 2. If the marriage dissolved
an act of economic is celebrated 3. Prior marriage
ingratitude. system; or under the New is dissolved
3. Adopted a Civil Code and due to death of
NOTE: Acts of ingratitude: different they have not one spouse and
1. Commission of an offense against the person, honor or property adopt any surviving
property of the donor, his wife or his children under regime and economic spouse failed
his parental authority the same is system to comply with
2. GR: Imputation to the donor any criminal offense or void. the
any act involving moral turpitude requirements
under Art. 103
XPN: if the crime was committed against the donee (judicial
himself, his wife or his children under his authority settlement
proceeding of
3. Undue refusal to support the donor when he is legally the estate of
or morally bound to give such support. deceased
order. Judicial
Rule regarding donations between spouses during the separation of
marriage property may
either be
GR: Every donation or grant of gratuitous advantage, voluntary or
direct or indirect, between spouses is considered void. for sufficient
XPN: Moderate gifts on the occasion of any family Composition
rejoicing. All the properties Each spouse
owned by the retains his/her
NOTE: The aforementioned rules also apply to common spouses at the property before
law spouses (Matabuena v. Cervantes, 38 SCRA 284). time of marriage the marriage and
become only the fruits and
community income of such
property properties
become part of
the conjugal


properties during 2. Subsequent marriage contracted within one year from
the marriage the death of the deceased spouse without liquidation
Effect of Separation In Fact of the community property or conjugal partnership of
gains, either judicially or extrajudicially, as required
The separation in fact shall not affect
under Arts. 103 and 130 of the FC. In such case, a
the regime of ACP, but:
mandatory regime of complete separation of property
1. The spouse who leaves the
shall govern the subsequent marriage (Rabuya, 2009).
conjugal home or refuses to live
therein, without just cause,
Grounds for revival of former property regime
shall not have the right to be
1. Civil interdiction of the prisoner-spouse terminates;
2. When consent of one spouse to
2. Absentee spouse reappears;
any transaction of the other is
3. Court authorizes resumption of administration by the
required by law, judicial
spouse formerly exercising such power;
authorization shall be obtained
4. Spouse who has abandoned the conjugal home
in a summary proceeding.
returns and resumes common life with the other;
3. In case of insufficiency of
5. Parental authority is judicially restored to the spouse
community or conjugal
previously deprived thereof;
partnership property, separate
6. Reconciliation and resumption of commonlife of
property of both spouses shall
spouse who had been separated in fact for at least 1
be solidarily liable for the
support of the family. Spouse
7. Spouses agree to revive their former property regime
present shall, upon proper
petition in a summary
Grounds for transfer of administration of the exclusive
proceeding, be given judicial
property of each spouse
authority to administer or
encumber any specific separate
When one spouses:
property of the other spouse
1. Is sentenced to penalty with civil interdiction;
and use the fruits or proceeds
2. Becomes fugitive from justice or is hiding as an
thereof to satisfy the latters
accused in a criminal case;
share (Arts. 100 & 127, FC).
3. Is judicially declared absent
Effect of Dissolution 4. Becomes guardian of another
Upon dissolution
Upon of the NOTE: Transfer of administration of the exclusive
dissolution and partnership, the property of either spouses does not confer ownership over
liquidation of separate the same (Rodriguez v.De la Cruz, G.R. No. 3629, September
the community properties of the 28, 1907).
property, what spouses are
is divided returned and ABSOLUTE COMMUNITY
equally between only the net
the spouses or profits of the GENERAL PROVISIONS
their heirs is the partnership are
net remainder of divided equally Absolute community property
the properties of between the
the ACP. spouses of their A property regime wherein the spouses are considered co-
heirs. owners of all property brought into the marriage, as well
as those acquired during the marriage, which are not
Commencement of property regime otherwise excluded from the community either by the
provisions of the Family Code or by the marriage
Property regime commences at the precise moment of the settlement (Rabuya, 2009).
celebration of the marriage.
Commencement of ACP
Property regime governing the property relations of
spouses in the absence of marriage settlement Absolute community of property commences at the precise
moment of the celebration of the marriage. i.e. actual time
GR: Absolute Community Property the marriage is celebrated on a certain date.

XPNs: NOTE: Any stipulation, express or implied, for the

1. For marriages contracted prior to the effectivity of the commencement of the community regime at any other
Family Code on August 3, 1988, conjugal partnership time shall be void (Art. 88, FC).
of gains shall govern the property relations. This is so
because Art. 119 of the NCC will apply. The provisions Law that governs the absolute community of property
of the FC shall have no retroactive effect because it
shall impair vested rights. 1. Family Code
2. Civil Code provisions on co-ownership


A: The register of deeds is incorrect. A wife, by affixing her
Properties included in the absolute community signature to a deed of sale on the space provided for
witnesses, is deemed to have given her implied consent to
1. All the property owned by the spouses: the contract of sale. The consent need not always be
a. At the time of the celebration of the marriage; or explicit or set forth in any particular document so long as it
b. Acquired thereafter; is shown by acts of the wife that such consent or approval
2. Property acquired during the marriage by gratuitous was in fact given (Pelayo v. Perez, G.R. No. 141323, June 8,
title, if expressly made to form part of the community 2005).
property by the donor, testator or grantor;
3. Jewelry or properties with monetary value; NOTE: In this case, it will be noted that the sale was
4. Winnings in gambling. entered into prior to the effectivity of the FC. Because of
such, Art. 173, in relation to Art. 166 of the NCC would
Properties excluded in the Absolute Community have applied if there was a finding of lack of the wife's
consent. Under said provisions, the sale would have been
1. Property acquired during the marriage by gratuitous merely voidable, and not void.
title and its fruits as well as income thereof unless the
grantor expressly provide they shall form part of the Q: Andres sold a parcel of land belonging to the
community property conjugal partnership to Pepito. Days before the sale,
2. Property for personal and exclusive use of either Kumander, his wife, assented to such by signing a
spouse but jewelries shall form part of the ACP document entitled "Marital Consent" contained in a
because of their monetary value. jurat, which was then sworn to before the same notary
3. Property acquired before the marriage by one with public who notarized the deed of sale, and then
legitimate descendants by former marriage and its appended to the deed of sale itself. Is the conveyance
fruits and income, if any; valid?
4. Those excluded by the marriage settlement (Art. 92,
FC). A: It depends. The use of the jurat, instead of an
acknowledgment, does not elevate the marital consent into
Presumption of inclusion in the absolute community the level of a public document but instead consigns it to
the status of a private writing. Hence, the presumption of
In absence of evidence, property acquired during the regularity does not apply and the wife still needs to prove
marriage is presumed to belong to the community, unless its genuineness and authenticity as required under the
proven otherwise by strong and convincing evidence (Art. rules of evidence (Pan Pacific Industrial Sales Co., Inc. v. CA,
93, FC). G.R. No. 125283, February 10, 2006).

Q: Mister, without Missus consent, executed a special NOTE: The fact that the document contains a jurat, and not
power of attorney in favor of Drepa in order to secure an acknowledgment, should not affect its genuineness or
a loan to be secured by a conjugal property, which loan that of the related document of conveyance itself, the Deed
was later obtained. When the loan was not paid, the of Absolute Sale. In this instance, a jurat suffices as the
mortgage was foreclosed and sold on auction. Missus document only embodies the manifestation of the spouse's
seeks the declaration of the mortgage and sale as void consent, a mere appendage to the main document (Pan
invoking Art. 124 of the FC. Will the wifes action Pacific Industrial Sales Co., Inc. v. CA, G.R. No. 125283,
prosper? February 10, 2006).

A: Yes. The settled rule is that the sale or encumbrance of CHARGES UPON AND OBLIGATIONS OF THE
a conjugal property requires the consent of both the COMMUNITY PROPERTY
husband and the wife (Guiang v. CA, 353 Phil. 578). The
absence of the consent of one renders the entire sale or Charges upon the ACP
encumbrance null and void, including the portion of the
conjugal property pertaining to the husband who 1. The support of
contracted the sale. Neither would the conjugal a. The spouses
partnership be liable for the loan on the ground that it b. Their common children
redounded to the benefit of the family. The sweeping c. Legitimate children of either spouse;
conclusion that the loan was obtained by the husband in
order to finance the construction of housing units, without NOTE: Support of illegitimate children of either
however adducing adequate proof, does not persuade spouse is chargeable to exclusive property of the
(Homeowners Savings & Loan Bank v. Dailo, G.R. No. illegitimate parent (Art. 197).
153802, March 11, 2005).
2. All debts and obligations contracted during the
Q: In a sale of a piece of land that she and her husband, marriage by:
David, owned, Lorenza, who witnessed the sale, signed a. the designated administrator-spouse for the
on the page reserved for witnesses to the deed. When benefit of the community
the buyer sought to register the sale, it was denied by b. by both spouses
the Register of Deeds for lack of the wife's consent to c. by one spouse with the consent of the other;
the sale. Decide.


3. Debts and obligations contracted by either spouse Insufficiency of the community property to cover
without the consent of the other to the extent that the liabilities
family may have been benefited;
4. All taxes, liens, charges and expenses, including major GR: The spouses shall be solidarily liable for the unpaid
or minor repairs, upon the community property; balance with their separate properties.
5. All taxes and expenses for mere preservation made
during marriage upon the separate property of either XPN: Those falling under paragraph 9 of Art. 94. (Ante-
spouse used by the family; nuptial debts, support of illegitimate children, liabilities
6. Expenses to enable either spouse to commence or incurred by spouse by reason of a crime or quasi-delict)
complete a professional or vocational course, or other in which case the exclusive property of the spouse who
activity for self-improvement; incurred such debts will be liable. However, if the exclusive
7. Ante-nuptial debts of either spouse insofar as they property is insufficient, payment will be considered as
have redounded to the benefit of the family; advances to be deducted from share of debtor-spouse (Art.
94 [9], FC).
NOTE: For ante-nuptial debts, those contracted by
one spouse without the consent of the other during OWNERSHIP, ADMINISTRATION, ENJOYMENT AND
the marriage and those contracted by the DISPOSITION OF THE COMMUNITY PROPERTY
administrator-spouse, the burden of proof that such
debts were contracted for the benefit of the Administration of Community Property
community or of the family lies with the creditor-
party litigant claiming as much (Rabuya, 2007, citing GR: The administration of community property belongs to
Homeowner's Savings & Loan Bank v. Dailo, 453 SCRA both spouses jointly.
283 [2005]).
8. The value of what is donated or promised by both 1. Agreement that only one of the spouses shall
spouses in favor of their common legitimate children administer the community property
for the exclusive purpose of commencing or 2. If one spouse is incapacitated or otherwise unable to
completing a professional or vocational course or other participate in the administration of the common
activity for self-improvement; properties capacitated or able spouse may assume
9. Payment, in case of absence or insufficiency of the sole powers of administration without the need of
exclusive property of the debtor-spouse, of: court approval or authorization
a. Ante-nuptial debts of either spouse which did not 3. If a spouse without just cause abandons the other or
redound to the benefit of the family; fails to comply with his or her obligations to the
b. the support of illegitimate children of either family, the aggrieved spouse may petition the court
spouse; for sole administration
c. liabilities incurred by either spouse by reason of a 4. During the pendency of the legal separation case, the
crime or quasi-delict; court may designate either of the spouses as sole
NOTE: The payment of which shall be considered as
advances to be deducted from the share of the debtor- NOTE: But such powers do not include:
spouse upon liquidation of the community 1. Disposition;
2. Alienation; or
10. Expenses of litigation between the spouses. However, if 3. Encumbrance of the conjugal or community property.
suit is found to be groundless, it cannot be charged
against the ACP Art. 94, FC). Q: When is "court authorization" in the sale of conjugal
properties resorted to?
Q: An individual, while single, purchases a house and
lot in 1990 and borrows money in 1992 to repair it. In A: Court authorization is resorted to in cases where the
1995, such individual is married while the debt is still spouse who does not give consent is incapacitated. If there
being paid. After the marriage, is the debt still the is no showing that the spouse is incapacitated, court
responsibility of such individual? (2007 Bar Question) authorization cannot be sought (Manalo v. Fernandez, G.R.
No. 147928, January 23, 2002).
A: No. Ante-nuptial debts of either spouse shall be
considered as the liability of the absolute community of Disagreement in the administration of community
property insofar as they have redounded to the benefit of property
the family.
In case of disagreement, the decision of the husband shall
NOTE: There is no presumption that the obligations prevail but subject to recourse to the court by the wife for
incurred by one of the spouses during the marriage are proper remedy.
charged against their community of property. Before any
obligation may be chargeable against the community of NOTE: Prescriptive period for recourse is within 5 years
property, it must first be established that such obligation is from the date of the contract implementing such decision.
among the charges against the same (Wong, et al, v. IAC,
G.R. No. 70082, August 19, 1991).


Sale or Disposition of Community Property 2. When consent of one spouse to any transaction of the
other is required by law, judicial authorization must
Alienation or encumbrance of community property must be obtained
have the written consent of the other spouse or the 3. If community property is insufficient, the separate
authority of the court without which the disposition or property of both spouses shall be solidarily liable for
encumbrance is void. However, the transaction shall be the support of the family
construed as a continuing offer on the part of the
consenting spouse and the third person, and may be Abandonment
perfected as a binding contract upon the acceptance by the
other spouse or authorization by the court before the offer If a spouse without just cause abandons the other or fails
is withdrawn by either or both offerors (Arts. 96 and 124, to comply with his or her obligations to the family, the
FC; Sps. Antonio and Luzviminda Guiang v. CA, et al., G.R. No. aggrieved spouse may petition the court for:
125172, June 26, 1998). 1. Receivership;
2. Judicial separation of property;
The absence of consent of one the spouse renders the 3. Authority to be the sole administrator of the absolute
entire sale null and void, including the sale of the portion community (Art. 101, FC)
of the conjugal property pertaining to the spouse who
contracted the sale. Presumption of Abandonment

NOTE: The consent of one spouse regarding the A spouse is deemed to have abandoned the other when he
disposition does not always have to be explicit or set forth or she has left the conjugal dwelling without intention of
in any particular document, so long as it is shown by acts returning. The spouse who has left the conjugal dwelling
of the said spouse that such consent or approval was for a period of three months or has failed within the same
indeed given (Sps. Cirelos v. Sps. Hernandez, et al. G.R. No. period to give any information as to his or her
146523, June 15, 2006). However, even if the other spouse whereabouts shall be prima facie presumed to have no
actively participated in negotiating for the sale of the intention of returning to the conjugal dwelling (Pineda,
property, that other spouse's written consent to the sale is 2008).
required by law for its validity. Being aware of a
transaction is not consent (Jader-Manalo v. Camaisa, 45 NOTE: The presumption is rebuttable by the presentation
Phil. 346, 2002) of clear, strong and convincing evidence that the absent
spouse did not intend to leave the present spouse and
Q: Does the prohibition cited above include lease by family (Pineda, 2008).
the husband over properties of the community of
property without the consent of the wife? Prohibition against the sale of property between
A: Yes. In Roxas v. CA (G.R. No. 92245, June 26, 1991), in the
contract of lease, the lessor transferred his right of use in GR: Spouses cannot sell property to each other.
favor of the lessee. The lessor's right of use is impaired
therein. He may even be ejected by the lessee if the lessor XPNs:
uses the leased realty. Therefore, the lease is a burden on 1. When a separation of property was agreed upon in
the land. It is an encumbrance on the land. Moreover, lease the marriage settlement;
is not only an encumbrance but also a qualified alienation, 2. When there has been a judicial separation of property
with the lessee becoming, for all intents and purposes, and under Articles 135 and 136 of FC (Art. 1490, NCC).
subject to its terms, the owner of the thing affected by the
lease. NOTE: The proscription against the sale of property
between spouses under Art. 1490 applies even to common
Donation of a community property by a spouse law relationships. In an earlier ruling, the SC nullified a
sale made by a husband in favor of a concubine, after he
GR: A spouse cannot donate any community property had abandoned his family and left the conjugal home
without the consent of the other. where his wife and children lived, and from whence they
derived their support, for being contrary to morals and
XPN: Moderate donations for charity or on occasion of public policy. The sale was regarded by the court as
family rejoicing or distress (Art. 98, FC). subversive of the stability of the family, a basic social
institution which public policy cherishes and protects
Separation in fact between husband and wife (Ching v. CA, GR No. 165879, November 10, 2006).

GR: Such separation does not affect the regime of absolute DISSOLUTION OF COMMUNITY REGIME
Dissolution of Absolute Community Property
1. Spouse who leaves the conjugal home or refuses to Absolute Community Property is terminated by:
live therein without just cause has no right to be
supported 1. Death of either spouse;


NOTE: If the surviving spouse contracts another Consequences of failure to liquidate within 1 year
marriage without compliance with the foregoing
requirement, a mandatory regime of complete 1. Failure to liquidate the community property within 1
separation shall govern the property relations of the year from the death of the deceased spouse contrary
subsequent marriage. to Art. 103, FC, would render any disposition or
encumbrance involving community property of the
Upon lapse of the one-year period and liquidation is terminated marriage void.
made, any disposition or encumbrance involving the 2. If the surviving spouse contracts a subsequent
community property of the terminated marriage shall marriage without compliance with the foregoing
be void (Art. 103). requirements, the subsequent marriage shall be
governed, mandatorily, by a regime of complete
The reason for the law is that, the law seeks to protect separation of property (Rabuya, 2006).
the children's interest in the first marriage (Albano,

2. Legal separation; GENERAL PROVISIONS

3. Annulment;
4. When the marriage is declared void under Art.40, FC Conjugal Partnership of Gains
5. Judicial separation of property during marriage (Art.
99, FC) It is the property relation formed by the husband and the
wife by placing in a common fund:
NOTE: The absolute community of property or the 1. The proceeds, product, fruits and income of their
conjugal partnership is considered dissolved only upon the separate properties;
issuance of the judicial decree of separation, not at the 2. Those acquired by either or both of them through:
moment when the parties enter into a compromise a. Effort
agreement in the course of the proceedings for separation b. Chance
of property (Albano, 2013).
Commencement of CPG
ASSETS AND LIABILITIES CPG shall commence at the precise moment when the
marriage ceremony is celebrated.
Procedure in case of dissolution of ACP
Law that governs the conjugal partnership
1. Inventory of all properties of the ACP, listing
separately the communal properties from exclusive The rules on the contract of partnership in all that is not in
properties of each spouse; conflict with what is expressly determined in the FC and by
2. Payment of community debts; the spouses in their marriage settlements (Art. 108, FC).

NOTE: First, pay out of the community assets. If not EXCLUSIVE PROPERTY OF EACH SPOUSE
enough, husband and the wife are solidarily liable for
Exclusive properties of the spouses
the unpaid balance with their separate properties.
1. Those brought into the marriage as his/her own;
3. Delivery to each spouse of his/her remaining
exclusive properties;
4. Equal division of net community assets
(a) A property purchased before the marriage and
Unless there is:
fully paid during the marriage remains to be a
a. An agreement for a different proportion; or
separate property of either spouse (Lorenzo v.
b. A voluntary waiver of such share;
Nicolas, L-4085, July 30, 1952).
5. Delivery of the presumptive legitimes of the common
children; (b) Fruits and income of said properties shall be
included the conjugal partnership
6. Adjudication of conjugal dwelling and custody of
(c) Those included therein in the marriage
common children (Art. 102, FC).
settlement, subject to the 1/5 limitation under
Article 84 and the rule in Article 92(3) of the
Applicable procedure in the dissolution of the ACP in
Family Code which apply by analogy
case the marriage is terminated by death
2. Those acquired during the marriage by gratuitous
Community property shall be liquidated in the same
proceeding for the settlement of the estate of the deceased.
If no judicial proceeding is instituted, the surviving spouse
(a) Pensions will not form part of the conjugal
shall, judicially or extra-judicially, liquidate the community
partnership of gains when it is given to him
property within 1 year from the death of the deceased
spouse (Art. 103, FC). voluntarily and he is not entitled as a matter of
right such as a fruit of industry or labor
(b) Proceeds of life insurance policy will not form
part of the conjugal partnership of gains when


the beneficiary of the life insurance is the estate when her father died. What will apply her instead is the
and the premiums are sourced from the separate ordinary rule of accession. However, the conjugal
property of the spouse partnership of gains will still enjoy the said property as a
(c) Retirement Benefits will not form part of the usufructuary and W will be the naked owner thereof.
conjugal partnership of gains when it is given to
him voluntarily and he is not entitled as a matter Presumption of inclusion of property in the Conjugal
of right such as a fruit of industry or labor Partnership of Gains

3. Those acquired by right of redemption, barter or GR: All property acquired during the marriage, whether
exchange with exclusive property; the acquisition appears to have been made, contracted or
registered in the name of one or both spouses, is presumed
NOTE: In right of redemption, for it to form part of the to be conjugal.
exclusive property of the spouse, the ownership over
such property must still pertain to the said spouse. XPN: Unless the contrary is proved.

4. That purchased with exclusive money of either Obligations Chargeable to Separate Property
1. Support of illegitimate children
NOTE: The controlling factor is the source of the 2. Liabilities incurred by reason of a crime or quasi-
money used, or the money promised to be paid delict
(Rivera v. Bartolome, C.A., 40 O.G. 2090). 3. Expenses of litigation between the spouses if found to
be groundless
Alienation of exclusive properties of either spouse 4. Debts contracted during the marriage by the
administrator-spouse which does not benefit the
Either spouse may mortgage, encumber, alienate or community
otherwise dispose of his or her exclusive property (Art. 5. Debts contracted during the marriage without the
111 as amended by R.A. 10572). consent of the other which did not benefit the family
6. Ante-nuptial debts by either spouse which did not
Rules in cases of improvement of exclusive property benefit the family
7. Taxes incurred on the separate property which is not
1. Reverse accession If the cost of the improvement and used by the family
the value of the improvement is more than the value 8. Expenses incurred during the marriage on a separate
of the principal property at the time of the property if the property is not used by the family and
improvement, the entire property becomes conjugal. not for its preservation

NOTE: For reverse accession to apply, the separate CONJUGAL PARTNERSHIP PROPERTY
property must be owned by a spouse exclusively at
the time of the introduction of the improvement Composition of CPG
neither it will apply if the property is partly owned by
a spouse and partly owned by a third person. 1. Those acquired by onerous title during the marriage
with conjugal funds;
2. Accession If the cost of the improvement and the
value of the improvement is equal to or less than the NOTE: Requisites:
value of the principal property, the entire property (a) Acquisition is made during the marriage
becomes the exclusive property of the respective (b) Thru onerous title
spouse. (c) At the expense of common fund

NOTE: In either case, there shall be reimbursement 2. Those obtained from labor, industry, work or
upon the liquidation of the conjugal partnership and profession of either or both spouses;
ownership of entire property shall be vested only 3. Fruits of conjugal property due or received during the
upon reimbursement. marriage and net fruits of separate property;

Q: A parcel of land is owned by the father of W. With NOTE: Net fruits refer to the remainder of the fruits
his permission, H and W constructed their house over after deducting the amount necessary to cover the
the said parcel of land. After some time, the father of W expenses of administration of said exclusive property.
died leaving W as his sole heir. Who now owns the
parcel of land and the improvements introduced by 4. Share of either spouse in hidden treasure;
the H and W? Assume that the property regime of the H 5. Those acquired through occupation such as hunting
and W is conjugal partnership of gains. or fishing;
6. Livestock in excess of what was brought to the
A: The wife will now own both the parcel of land the house marriage;
introduced by the H and W. Reverse Accession under 7. Those acquired by chance such as winnings in
Article 120 of the Family Code will not apply since at the gamblings and bettings (Art. 117, FC).
time of the introduction of the improvement the parcel of
land is owned by the father of W which she inherited it


Property bought through installment no showing as to when the properties alleged to be
conjugal were acquired, the presumption does not apply
Requisites: (Francisco v. CA, G.R. No. 102330, November 30, 1998).
1. Property is bought on installment prior to the Proof of acquisition during the coverture is a condition
marriage sine qua non to the operation of the presumption in favor
2. Paid partly from exclusive funds and partly from of the conjugal partnership (Pintiano-Anno, v. Anno, et al.,
conjugal funds G.R. No. 163743, January 27, 2006).

Rules in determining ownership: Effect if properties were registered during the

1. If full ownership was vested before the marriage it marriage
shall belong to the buyer spouse.
2. If full ownership was vested during the marriage it A: The fact that the properties were registered in the name
shall belong to the conjugal partnership. of the spouses is no proof that the properties were
acquired during the marriage. It is well-settled that the
NOTE: In either case, any amount advanced by the registration does not confer title but merely confirms one
partnership or by either or both spouses shall be already existing (Jocson v. CA, 204 SCRA 297).
reimbursed by the owner/s upon liquidation of the
partnership. Q: H & W got married on October 1926. H subsequently
cohabited with X. During the cohabitation of H with X,
Q: Yamane asserts that the parcel of land, which was H acquired certain properties and places his status as
purchased at auction, belonged to the conjugal single. What is the nature of said properties?
partnership of him and his late wife. In the title, his
name appeared to be merely descriptive of the civil A: They are conjugal properties. Whether a property is
status of the registered owner, his late wife. The conjugal or not is determined by law and not by the will of
purchase took place prior to the advent of the Family one of the spouses. No unilateral declaration by one
Code. Is the property conjugal or paraphernal spouse can change the character of conjugal property. The
property of his late wife? clear intent of H in placing his status as single is to exclude
W from her lawful share in the conjugal property. The law
A: Conjugal. In this case, the provisions of the NCC would does not allow this. The cohabitation of a spouse with
apply since the purchase took place before the FC took another person, even for a long period, does not sever the
effect. Under Art. 160 of the NCC, all property of the tie of a subsisting previous marriage. H and Xs
marriage is presumed to belong to the conjugal cohabitation cannot work to the detriment of W as the
partnership, unless it be proved that it pertains exclusively legal spouse. The marriage of H and W continued to exist
to the husband or the wife. In this case, there was no proof regardless of the fact that H was already living with X.
that the property had been acquired exclusively by Hence, all property acquired from the date of their
Yamane's late wife. The mere registration of a property in marriage until the death of W are presumed conjugal. It
the name of one spouse does not destroy its conjugal was neither claimed nor proved that any of the subject
nature in the absence of strong, clear and convincing properties was acquired outside or beyond this period
evidence that it was acquired using the exclusive funds of (Villanueva v. CA, G.R. No. 143286, April 14, 2004).
said spouse (Spouses Go v. Yamane, G.R. No. 160762, May 3,
2006). Q: Suppose a property was acquired by one spouse
while they were living separately, is this property
Q: Dolores seeks to recover a parcel of land, alleging conjugal or not?
that she and her husband acquired such during their
marriage, that it formed part of their conjugal A: It is presumed to be conjugal. All property acquired
properties and that he sold it without her consent. She during the marriage regardless of whether the spouses are
presents as evidence their marriage contract and the living together or not, are presumed to be conjugal
initial tax declaration over the property. property (Flores v. Escudero, 92 Phil. 786).

A: Recovery is not warranted. The rule is all property of CHARGES UPON AND OBLIGATIONS OF THE CPG
the marriage is presumed to be conjugal in nature.
However, for this presumption to apply, the party who Charges upon the CPG
invokes it must first prove that it was acquired during the
marriage. Here, Dolores' evidence consisted of her 1. Support of the spouses, their common children and
marriage contract and the initial tax declaration over the the legitimate children of either spouse;
property. She did not identify when she and her husband 2. Debts and obligations contracted by one without the
first occupied and possessed the land. Neither did she consent of the other to the extent that the family
present any witness to prove that they first occupied the benefited;
property during their marriage and that they both, worked 3. Debts and obligations contracted during the marriage
on the land (Pintiano-Anno v. Anno, G.R. No. 163743, by an administrator-spouse, both spouses or one with
January 27, 2006). the consent of the other;
4. Taxes, liens, charges, expenses, including major or
NOTE: The presumption of conjugality of the properties of minor repairs upon conjugal property;
the husband and wife applies only when there is proof that 5. Taxes and expenses for mere preservation made
the property was acquired during the marriage. If there is during the marriage of separate property;


6. Expenses for professional, vocational or self- XPN:
improvement courses of either spouse; 1. If one spouse is incapacitated or otherwise unable to
7. Ante-nuptial debts to the extent the family has been participate in the administration of the common
benefited; properties capacitated or able spouse may assume
8. Value of what is donated or promised to common sole powers of administration.
legitimate children for professional, vocation or self- 2. If a spouse without just cause abandons the other or
improvement courses; fails to comply with his or her obligations to the
9. Expenses of litigation between the spouses unless the family, the aggrieved spouse may petition the court
suit is found to be groundless (Art. 121, FC). for sole administration
3. During the pendency of a legal separation case, the
NOTE: If the conjugal partnership is insufficient to cover court may designate either of the spouse as sole
the foregoing liabilities, spouses shall be solidarily liable administrator.
for the unpaid balance with their separate properties.
But such powers do not include: (DAE)
Charges against the Separate Property that may be 1. Disposition;
charged upon the CPG 2. Alienation; or
3. Encumbrance of the conjugal or community property.
1. All the responsibilities of the partnership have already Disagreement in the administration of the CPG
been covered
2. The spouse who is bound has no exclusive properties In case of disagreement, the decision of the husband shall
or the same are insufficient prevail subject to recourse to the court by the wife for
proper remedy.
1. Personal debts of either spouse contracted before the NOTE: Prescriptive period for recourse is 5 years from the
marriage which did not redound to the benefit of the date of the contract implementing such decision.
2. Support of the illegitimate children of either spouse DISSOLUTION OF CPG REGIME
3. Fines and indemnities arising from delicts and quasi-
delicts. Dissolution of CPG

Q: Levy was made on the conjugal partnership of Conjugal partnership is terminated by:
husband and wife on the basis of liability of the 1. Death of either spouse;
husband as guarantor. Is the levy proper? 2. Legal separation;
3. Annulment or Declaration of Nullity;
A: No. The payment of personal debts contracted by the 4. Judicial separation of property during marriage (Art.
husband or the wife before or during the marriage shall 126, FC).
not be charged to the conjugal partnership except as they
redounded to the benefit of the family (Art. 122, FC). LIQUIDATION OF THE CONJUGAL PARTNERSHIP
Q: If one of the spouses committed the crime of slander
Steps in the liquidation of the CPG
and was held liable for damages in a damage suit, is it
chargeable against the conjugal partnership?
1. Inventory of all the properties;
2. Restitution of advances made to each of the spouses;
A: No. Unlike in the system of absolute community where
3. Reimbursement for use of exclusive funds;
liabilities incurred by either spouse by reason of a crime or
4. Debts and obligations of the CP are paid;
quasi-delict is chargeable to the absolute community of
5. Delivery of exclusive properties;
property, in the absence or insufficiency of the exclusive
property of the debtor-spouse, the same advantage is not 6. Payment of losses and deterioration of movables
belonging to each of the spouses;
accorded in the system of conjugal partnership of gains. To
7. Division of the net conjugal partnership;
reiterate, conjugal property cannot be held liable for the
8. Delivery of the common childrens presumptive
personal obligation contracted by one spouse, unless some
advantage or benefit is shown to have accrued to the
9. Adjudication of conjugal dwelling and custody of
conjugal partnership (Go v. Yamane, G.R. No. 160762, May 3,
common children (Art. 129, FC).
Liquidation of community property if the termination
of the marriage by death
Administration of CPG
Upon termination of marriage by death, the community
property shall be liquidated in the same proceeding for the
GR: The right to administer the conjugal partnership
belongs to both spouses jointly. settlement of the estate of the deceased spouse.


Support to the surviving spouse and to the children b. Partial In this case, the property not agreed
during liquidation upon as separate shall pertain to the absolute
The support to be given to the surviving spouse and to the
children during liquidation shall come from the common 2. As to kinds of property:
mass of property and shall be particularly charged against a. Present property
the fruits, rents or income pertaining to their shares to the b. Future property
inventories property. But where the support given exceeds c. Both present and future property
the fruits, rents or income pertaining to their shares, the
excess shall be deducted from their respective shares as Instances when separation of property is allowed
these are deemed advances from the inventoried property
(Art. 133, FC). 1. By agreement through marriage settlement
2. By judicial order
Liquidation of community property in the absence of a
judicial settlement proceeding Sufficient causes for judicial separation of property

In the absence of a judicial settlement proceeding, the 1. Civil interdiction of the spouse of petitioner;
surviving spouse shall liquidate the community property 2. Judicial declaration of absence;
either, judicially or extrajudicially within 1 year from the 3. Loss of parental authority as decreed by the court;
death of the deceased spouse. 4. Abandonment or failure to comply with family
If during the liquidation of the CP, the conjugal partnership 5. Administrator spouse has abused authority;
assets are less than the conjugal partnership liabilities, the 6. Separation in fact for one year and reconciliation is
surviving spouse and the children shall not be entitled to highly improbable (Art. 135, FC).
NOTE: In cases provided in 1, 2 and 3, the presentation of
Effects if the community property is not liquidated the final judgment against the guilty or absent spouse shall
be enough bases for the grant of the decree of judicial
1. Any disposition or encumbrance made by the separation of property.
surviving spouse involving community property of the
terminated marriage shall be void. Effects of judicial separation of property between
2. Should the surviving spouse contract a subsequent spouses
marriage a mandatory regime of complete separation
of property shall govern the property relations of the 1. The absolute community or conjugal partnership is
subsequent marriage dissolved;
2. The liability of the spouses to creditors shall be
REGIME OF SEPARATION OF PROPERTY solidary with their separate properties;
3. Mutual obligation to support each other continues
Complete separation of property except when there is legal separation;
4. Rights previously acquired by creditors are not
The system of complete separation of property will govern prejudiced.
the property relations between the spouses only in the
following cases: Rights of the spouses under the regime of separation
1. When it is expressly provided for in the marriage of property
2. When it is so decreed by a competent court 1. Each spouse shall own, dispose of, administer,
3. Mandatory regime of complete separation of property possess, and enjoy his or her own separate property,
4. By failure of the surviving spouse to liquidate the without need of the consent of the other.
absolute community or conjugal partnership of gains 2. Each spouse shall own all earnings from his or her
of a previous marriage which has been terminated by profession, business or industry and all fruits, natural,
death within the one-year period required by law industrial or civil, due or received during the marriage
prior to contracting another marriage. The from his or her separate property.
subsequent marriage is mandatorily governed by a
regime of complete separation. Liabilities of the spouses for family expenses under
the regime of separation of property
Rules governing the regime of separation of property
GR: Both spouses shall bear the family expenses in
1. Marriage settlement proportion to their income.
2. Family Code in supplemental character (Art. 149, FC).
XPN: In case of insufficiency or default thereof, to the
Kinds of separation of property current market value of their separate properties.

1. As to extent:
a. Total


Revival of previous property regime marry each incapacitated
other; to marry each
If the spouses opted for voluntary separation of property, 2. live exclusively other or they
the parties may agree to the revival even in the absence of with each other do not live
a reason/ground. However, a subsequent voluntary as husband and exclusively
separation of property is no longer allowed. wife; and with each other
3. their union is as husband and
If the separation of property is for a sufficient cause, the without the wife; and
revival of the previous property regime depends upon the benefit of 2. their union is
cessation of the ground which was the basis of the judicial marriage or without the
order. A subsequent judicial separation of property for a their marriage is benefit of
sufficient cause may be allowed so long as there is a new void (Mercado- marriage or
ground to rely on. Fehr v. Fehr, 414 their marriage
SCRA 288, 2003; is void (Art.
The procedure of the revival of previous property regime Salas, Jr. v. 148, NCC).
is the same as those followed upon reconciliation of the Aguila, GR. No.
spouses after the finality of legal separation. 202370, 2013)
Owned in equal Separately
Transfer of Administration of Exclusive Property to shares owned by the
another Spouse during the Marriage parties. If any is
Salaries & married, his/her
(a) By agreement wages salary pertains to
the CPG of the
Requisites: legitimate
1. By means of a public instrument; marriage.
2. To be recorded in the registry of property of the Belongs to party Belongs to such
place where the property is located. Property
upon proof of party
acquisition through
(b) By order of the court upon petition acquired
exclusive funds
Property Governed by rules Owned in common
Based on these grounds:
acquired by of co-ownership in proportion to
1. Other spouse becomes the guardian of the
both their respective
through contributions
2. The other spouse is judicially declared an
their work
or industry
3. Other spouse is sentenced to a penalty which
carries with it civil interdiction; or Property No presumption of
4. Other spouse becomes fugitive from justice or acquired while joint acquisition.
hiding as an accused in a criminal case (Art. living together
142). presumed Actual joint
obtained by their contribution of
work or industry or industry shall
Property regime of unions without marriage and owned by be owned by them
them in equal in common
BASIS ART. 147 ART. 148 shares. proportion.
1. Parties without With legal
Presumpti If one party did However, their
legal impediment
on not participate in contributions are
impediment to caused by:
acquisition: presumed equal,
marry; 1. Adulterous
presumed to in the absence if
2. Void marriage relationships
have contributed proof to the
on the ground of 2. Bigamous/poly
through care and contrary
psychological gamous maintenance of
Applicability incapacity. marriages family and
3. Incestuous void household
marriages (Buenaventura
under Art. 37
v. Buenaventura,
4. Void marriages
G.R. No. 127358,
by reason of
March 31, 2005)
public policy
(Art. 38) When only one of If one of the
the parties to a parties is validly
1. The man and the 1. The man and
As to Forfeiture void marriage is married to
woman must be the woman
requisites in good faith, the another, his/her
capacitated to must be
share of the party share in the co-


in bad faith in the ownership shall regards his participation in their purchase. However,
co-ownership accrue to the ACP she did not prove that she acquired the properties
shall be forfeited or CPG existing in using her personal funds and prior to her cohabitation
in favor of: the marriage. with Eduardo. Is her contention correct?

1. their common If the party who A: No. Art. 148 of the FC does not apply since, in said
children acted in BF is not article, a co-ownership may ensue in case of cohabitation
2. in case of validly married to where, for instance, one party has a pre-existing valid
default of or another or if both marriage, provided that the parties prove their actual joint
waiver by any or parties are in BF, contribution of money, property or industry and only to
all of the such share be the extent of their proportionate interest thereon.
common forfeited in Petitioner failed to adduce preponderance of evidence that
children or their manner provided she contributed money, property or industry in the
descendants, in the last par. of acquisition of the subject property and, hence, is not a co-
each vacant Art. 147 owner of the property. Since the subject property was
share shall acquired during the subsistence of the first marriage of
belong to the Eduardo, under normal circumstances, the same should be
respective presumed to be conjugal property of Eduardo and Josefina
surviving (Francisco v. Master Iron Works Construction Corp., G.R. No.
descendants 151967. February 16, 2005).
3. In the absence of
descendants, Q: Francisco and Ermindas marriage was nullified by
such share shall the trial court due to psychological incapacity. He did
belong to the not contest the decree of nullity but he assailed the
innocent party. division in the properties which was contained in the
Proof of Not necessary Necessary decree. He asserted that the properties were acquired
actual through his efforts and that she had no contribution
contribution whatsoever in their acquisition and maintenance;
hence, she should not be entitled to a joint share in
NOTE: For as long as it is proven that property was their properties. Is Franciscos contention correct?
acquired during marriage, the presumption of conjugality
will attach regardless in whose name the property is A: No. The property relation between the parties is
registered. governed by Art. 147 of the FC. Under this article, there is a
presumption that the properties which they acquired
The presumption is not rebutted by the mere fact that the during their cohabitation were acquired through their
certificate of title of the property or the tax declaration is joint efforts, work or industry. It further provides that a
in the name of one of the spouses (Villanueva v. CA, G.R. No. party who did not participate in the acquisition thereof
143286, Apr. 14, 2004). shall be deemed to have contributed jointly in the
acquisition thereof if his or her efforts consisted in the care
Property regime in case the marriage is declared and maintenance of the family and of the household.
null and void on the ground of psychological
incapacity NOTE: In this case, Francisco himself testified that his wife
was not a plain housewife but one who helped him in
The property relation between the parties is governed by managing the family's business. Hence, Erminda is
Art. 147 of the FC. Under this property regime, property rightfully entitled to a joint share in their properties
acquired by both spouses through their work and industry (Gonzales v. Gonzales, G.R. No. 159521, December16, 2005).
shall be governed by the rules on equal co-ownership. Any
property acquired during the union is prima facie Q: Romeo and Juliet lived together as husband and
presumed to have been obtained through their joint wife without the benefit of marriage. During their
efforts. A party who did not participate in the acquisition cohabitation, they acquired a house. When they broke
of the property shall still be considered as having up, they executed an agreement where he agreed to
contributed thereto jointly if said party's "efforts consisted leave the house provided Juliet will pay his entire
in the care and maintenance of the family household." share in their properties. She failed to do so but she
Unlike the conjugal partnership of gains, the fruits of the also ignored his demand for her to vacate. Romeo sued
couple's separate property are not included in the co- her for ejectment which the court granted. Was the
ownership. court correct in granting the same?

Q: Josefinas petition for nullity of her marriage to A: No. Under Art. 147 of the FC, the property is co-owned
Eduardo was granted on the ground of existence of a by the parties. Under said provision, in the absence of
prior marriage. She now asserts that since her proof to the contrary, any property acquired by common-
marriage to Eduardo is void, their property relation is law spouses during their cohabitation is presumed to have
to be governed by the rules on co-ownership under been obtained thru their joint efforts and is owned by
Art. 148 of the FC and not by Art.144 of the Civil Code. them in equal shares. Their property relationship in such a
In this regime, Eduardo has no share at all in the case is essentially governed by the rules on co-ownership.
properties since no proof was adduced by him as Thus, Romeo cannot seek the ejectment of Juliet therefrom.


As a co-owner, she is as much entitled to enjoy its separated, Rico lived together with Mabel, a maiden 16
possession and ownership as him (Abing v. CA,G.R. No. years of age. While living together, Rico was a salaried
146294, Jul. 31, 2006). employee and Mabel kept house for Rico and did full-
time household chores for him. During their
Q: Luis and Rizza, both 26 years of age and single, live cohabitation, a parcel of coconut land was acquired by
exclusively with each other as husband and wife Rico from his savings.
without the benefit of marriage, Luis is gainfully
employed, Rizza is not employed, stays at home, and After living together for 1 year, Rico and Mabel
takes charge of the household chores. separated. Rico then met and married Letty, a single
woman 26 years of age. During the marriage of Rico
After living together for a little over twenty years, Luis and Letty, Letty bought a mango orchard out of her
was able to save from his salary earnings during that own personal earnings.
period the amount of P200,000.00 presently deposited
in a bank. A house and lot worth P500,000.00 was a. Who would own the riceland, and what property
recently purchased for the same amount by the couple. relation governs the ownership? Explain.
Of the P500.000.00 used by the common-law spouses b. Who would own the coconut land, and what
to purchase the property, P200.000.00 had come from property relation governs the ownership? Explain.
the sale of palay harvested from the hacienda owned c. Who would own the mango orchard, and what
by Luis and P300,000.00 from the rentals of a building property relation governs the ownership? Explain.
belonging to Rizza. In fine, the sum of P500.000.00 had (1992 Bar Question)
been part of the fruits received during the period of
cohabitation from their separate property, a car worth A:
P100.000.00 being used by the common-law spouses, a. Rico and Cora are the co-owners of the riceland. The
was donated just months ago to Rizza by her parents. relation is that of co-ownership (Art. 147, [1] FC)

Luis and Rizza now decide to terminate their Addendum: However, after Rico's marriage to Letty,
cohabitation, and they ask you to give them your legal the half interest of Rico in the riceland will then
advice on how, under the law should the bank deposit become absolute community property of Rico and
of P200,000.00 the house and lot valued at Letty.
P500.000.00 and the car worth P100.000.00 be
allocated to them (1997 Bar Question)? b. Rico is the exclusive owner of the coconut land. The
relation is a sole/single proprietorship (Art. 148, [1]
A: Art. 147 of the FC provides in part that when a man and FC, and not Art. 147 FC).
a woman who are capacitated to marry each other, live
exclusively with each other as husband and wife without Addendum: However, after Rico's marriage to Letty,
the benefit of marriage or under a void marriage, their the coconut land of Rico will then become absolute
wages and salaries shall be owned by them in equal shares community property of Rico and Letty.)
and the property acquired by both of them through their
work or industry shall be governed by the rules of co- c. Rico and Letty are the co-owners. The relations is the
ownership. In the absence of proof to the contrary, Absolute Community of Property (Arts, 75, 90 and 91,
properties acquired while they lived together shall be FC).
presumed to have been obtained by their joint efforts,
worker industry, and shall be owned by them in equal Q: Benjamin is married to Azucena. While Azucena is
shares. A party who did not participate in the acquisition out of country, Benjamin developed a romantic
by the other party of any property shall be deemed to have relationship with Sally, but her father was against this.
contributed jointly in the acquisition thereof if the former's In order to appease her father, Sally convinced
efforts consisted in the care and maintenance of the family Benjamin to sign a purported marriage contract.
and of the household. Thus: Eventually, their relationship ended a few years later.
1. The wages and salaries of Luis in the amount of P200, Benjamin asked the court for the partition of the
000.00 shall be divided equally between Luis and properties he acquired with Sally in accordance with
Rizza. Article 148 of the FC, for his appointment as
2. The house and lot valued at P500.000.00 having been administrator of the properties during the pendency
acquired by both of them through work or industry of the case. Among the 44 properties which were the
shall be divided between them in proportion to their subject of the partition, 7 were enumerated by
respective contribution, in consonance with the rules Benjamin while Sally named 37 properties in her
on co-ownership. Hence, Luis gets 2/5 while Rizza answer. Is Benjamins contention correct?
gets 3/5 of P500.000.00.
3. The car worth P100, 000.00 shall be exclusively A: Yes. The property relations of Benjamin and Sally is
owned by Rizza, the same having been donated to her governed by Article 148 of the FC. They cohabitated
by her parents. without the benefit of marriage. Thus, only the properties
acquired by them through their actual joint contribution of
Q: In 1989, Rico, then a widower 40 years of age, money, property, or industry shall be owned by them in
cohabited with Cora, a widow 30 years of age. While common in proportion to their respective contributions.
living together, they acquired from their combined Thus, the 37 properties being claimed by Sally is excluded
earnings a parcel of riceland. After Rico and Cora as part of her conjugal properties with Benjamin because


Sally was not legally married to Benjamin. As regards the penalizing judicial employees for their dalliances with
seven remaining properties, only one of them is registered married persons or for their own betrayals of the marital
in the names of the parties as spouses. The other four were vow of fidelity (Concerned Employee v. Mayor, A.M. No. P-
registered in the name of either one of them with the 02-1564, November 23, 2004).
description married to and the last two were named to
Sally as an individual. The words married to preceding Requisites before a suit between members of the same
the name of a spouse are merely descriptive of the civil family may prosper
status of the registered owner, which do not prove co-
ownership. Without proof of actual contribution from 1. Earnest efforts toward a compromise have been
either or both spouses, there can be no co-ownership made;
under Article 148 of the Family Code. (Go-Bangayan vs. 2. Such efforts failed;
Bangayan, Jr., G.R. No. 201061, July 3, 2013) 3. The fact that earnest efforts toward a compromise
have been made but the same have failed appears in
Retroactive application of Art. 148, FC the verified complaint or petition.

Although the adulterous cohabitation of the parties or the NOTE: This rule shall not apply to cases which may not be
acquisition of the property occurred before the effectivity subject of compromise under the Art. 2035 of the NCC.
of the Family Code on August 3, 1998, Article 148 applies
because the said provision was intended precisely to fill up The following cannot be compromised:
the hiatus in Article 144 of the NCC. Before Article 148 of 1. civil status of persons;
the FC was enacted, there was no provision governing 2. validity of a marriage or legal separation;
property relations of couples living in a state of adultery or 3. any ground for legal separation;
concubinage (Atienza v. De Castro, 508 SCRA 593, 2006). 4. future support;
5. jurisdiction of courts; and
THE FAMILY 6. future legitime (Art. 2035, NCC).

THE FAMILY AS AN INSTITUTION Q: In a complaint filed by Manolo against his brother,

Rodolfo, it was alleged that the case "xxx passed
Concept of family through the Barangay and no settlement was forged
between the plaintiffs and defendant as a result of
Being the foundation of the nation, it is a basic social which Certification to File Action was issued xxx".
institution which public policy cherishes and protects. (Art. Rodolfo moved to dismiss for failure to comply with a
149, FC). condition precedent - that earnest efforts for an
amicable settlement among the parties had been
Family relations exerted but that none was reached. Decide.

Family relations include: A: The case will prosper. There was in fact substantial
1. Between husband and wife compliance with Art. 151 of the FC since the spouses
2. Between parents and children alleged in the complaint for ejectment that the case "xxx
3. Among other ascendants and descendants passed through the Barangay and no settlement was
4. Among brothers and sisters, whether of the full or half forged between the plaintiffs and defendant as a result of
blood (Art. 150, FC) which Certification to File Action was issued by Barangay
97, Zone 8, District I, Tondo, Manila xxx". It bears stressing
NOTE: Thus, a suit between a brother-in-law and a sister- that under Sec. 412 (a) of R.A. 7160, no complaint
in-law is not within the coverage of the law, hence, the involving any matter within the authority of the Lupon
failure of the plaintiff to allege earnest efforts to effect a shall be instituted or filed directly in court for adjudication
compromise is not necessary. The relationship is based on unless there has been a confrontation between the parties
consanguinity, except that of the husband and wife (Gayon and no settlement was reached.
v. Gayon, 36 SCRA 105). The enumeration of brothers and
sisters as members of the same family does not Moreover, the phrase "members of the same family" found
comprehend brothers- or sisters-in-law (Guerero v. RTC, in Art. 151 of the FC must be construed in relation to Art.
G.R. No. 109068, Jan. 10, 1994). 150 thereof (Martinez, et al. v. Martinez, G.R. No. 162084.
Jun. 28, 2005).

Rules governing family relations NOTE: A sister-in-law or a brother-in-law is not covered

by these two provisions. Being an exception to the general
Family relations are governed by law. No custom, practice rule, Art. 151 must be strictly construed (Gayon v. Gayon,
or agreement destructive of the family shall be recognized G.R. No. L-28394, November 26, 1970).
or given effect (Art. 149, FC).
NOTE: Even if not all forms of extra-marital relations are
punishable under penal law, the sanctity of marriage is Family home (FH)
constitutionally recognized and likewise affirmed by our
statutes as a special contract of permanent union. It is the dwelling house where the husband and wife and
Accordingly, the Court has had little qualms with their family reside, and the land on which it is situated. It is


constituted jointly by the husband and the wife or by an home either by the owner thereof or by any of its
unmarried head of a family (Art. 152, FC). beneficiaries must be actual. That which is actual is
something real, or actually existing, as opposed to
Constitution of FH something merely possible, or to something which is
presumptive and constructive. Actual occupancy, however,
The family home is deemed constituted on a house and lot need not be by the owner of the house. Rather, the
from the time it is occupied as a family residence (Art. 153, property may be occupied by the beneficiaries
FC). enumerated by Art. 154 of the FC (Manacop v. CA, 277
SCRA 65, August 11, 1997).
Guidelines in the constitution of the family home
NOTE: This enumeration may include the in-laws where
1. FH is deemed constituted from the time of actual the family home is constituted jointly by the husband and
occupation as a family residence; wife. But the law definitely excludes maids and overseers.
2. Only 1 FH may be constituted;
3. Must be owned by the person constituting it; Effect of death of one or both spouses or of the
4. Must be permanent; unmarried head of the family upon the family home
5. Same rule applies to both valid and voidable
marriages and even to common law spouses; (Arts. The family home shall continue despite the death of one or
147 and 148) both spouses or of the unmarried head of the family for a
6. It continues despite death of one or both spouses or period of 10 years or for as long as there is a minor
an unmarried head of the family for 10 years or as beneficiary and the heirs cannot partition the same unless
long as there is a minor beneficiary. the court finds compelling reasons therefor. This rule shall
apply regardless of whoever owns the property or
NOTE: The heirs cannot partition the same unless the constituted the family home (Art. 159, FC).
court finds compelling reasons therefor. This rule shall
apply regardless of whoever owns the property or Exemption of FH from execution, forced sale or
constituted the family home. attachment

Q: On which patrimony must the family pertain? From the time of its constitution and so long as any of its
beneficiaries resides therein, the FH continues to be such
A: The family home must be part of the properties of the and is exempt from execution, forced sale or attachment
absolute community or the conjugal partnership or the (Art. 153, FC).
exclusive properties of either spouse with the latters
consent. It may also be constituted by an unmarried head However, the rule is not absolute. Art. 155 of the FC
of a family on his or her own property. provides the circumstances wherein the FH will not be
exempt from execution, forced sale of attachment, to wit:
NOTE: Property that is subject of a conditional sale on 1. Debts due to laborers, mechanics, architects, builders,
installments where ownership is reserved by the vendor to material men and others who rendered service or
guarantee payment of the purchase price may be furnished materials for the constitution of the
constituted as a family home. building;
2. Non-payment of Taxes;
Beneficiaries of a FH 3. Debts incurred Prior to its constitution;
4. Debts secured by Mortgages on the premises before
1. Husband and wife, or unmarried head of the family or after such constitution.
Parents (may include parents-in-law), ascendants,
brothers and sisters (legitimate or illegitimate) living in NOTE: Exemption is limited to the value allowed in the FC.
the FH and dependent on the head of the family for
support (Art. 154, FC). Rule for the family home to be exempted from
Requisites to be considered as beneficiary
1. If the family home was constructed before the
1. They must be among the relationships enumerated in effectivity of the FC, then it must have been
Art. 154 of the FC; constituted either judicially or extrajudicially as
2. They live in the family home; and provided under Arts. 225, 229-231 and 233 of the
3. They are dependent for legal support upon the head NCC. Judicial constitution of the family home requires
of the family. the filing of a verified petition before the courts and
the registration of the courts order with the
Q: Miko contends that he should be deemed residing in Registry of Deeds of the area where the property is
the family home because his stay in the U.S. is merely located. Meanwhile, extrajudicial constitution is
temporary. He asserts that the person staying in the governed by Arts. 240 to 242 of the NCC and involves
house is his overseer and that whenever his wife, the execution of a public instrument which must also
Rosanna, visited the Philippines, she stayed in the be registered with the Registry of Property.
family home. Is the contention of Miko meritorious? 2. For family homes constructed after the effectivity of
the FC, there is no need to constitute extrajudicially
A: The law explicitly provides that occupancy of the family or judicially, and the exemption is effective from the


time it was constituted and lasts as long as any of its plus all the costs of execution
beneficiaries actually resides therein. Moreover, the
family home should belong to the absolute community The excess, if any, shall be delivered to the judgment
or conjugal partnership, or if exclusively by one debtor (Art. 160, FC).
spouse, its constitution must have been with consent
of the other, and its value must not exceed certain Q: A complaint for damages was filed against Hinahon
amounts depending upon the area where it is located. in 1986 when she incurred liabilities as early as 1977,
Further, the debts incurred for which the exemption which action prospered in 1989. The house and lot
does not apply as provided under Art. 155 for which that she owned was levied upon and sold at auction.
the family home is made answerable must have been She assails the levy and sale on the ground that it was
incurred after the effectivity of the FC. her family home and therefore exempt from execution.
3. And in both cases, whether under the Civil Code or the Decide.
Family Code, it is not sufficient that the person
claiming exemption merely alleges that such A: It is not exempt. Under Art. 155 of the FC, the family
property is a family home. This claim for exemption home shall be exempt from execution, forced sale, or
must be set up and proved (Juanita Trinidad Ramos, et attachment except for, among other things, debts incurred
al. v. Danilo Pangilinan et al. G.R. No. 185920, July 20, prior to the constitution of the family home. In the case at
2010). bar, the house and lot was not constituted as a family
home, whether judicially or extra-judicially, at the time
Exemption of Family Home must first be set up and that the debtor incurred her debts. Under prevailing
proved jurisprudence, it is deemed constituted as such by
operation of law only upon the effectivity of the Family
The family homes exemption from execution must be set Code on August 3, 1988, thus, the debts were incurred
up and proved to the Sheriff before the sale of the property before the constitution of the family home (Gomez-Salcedo,
at public auction. It should be asserted that the property is et al. v. Sta. Ines, et al., G.R. No. 132537, October 14, 2005).
a family home and that it is exempted from execution at
the time it was levied or within a reasonable time Q : Has the residential house and lot of Cesario
thereafter. It is not sufficient that the person claiming Montana which he and his family built in 1960 but
exemption merely alleges that such property is a family which was not constituted as a family home, whether
home. Failure to do so will estop one from later claiming judicially or extrajudicially, under the NCC been
the said exemption (Spouses Araceli Oliva-De Mesa and constituted as a family home by operation of law
Ernesto de Mesa v. Spouses Claudio D. Acero Jr. and under Art. 153 of the FC, and therefore, exempt from
Ma.Rufina D. Acero, Sheriff Felixberto L. Samonte and execution from a money judgement where the debt or
Registrar Alfredo Santos, G.R. No. 185064, January 16, liability was incurred before the effectivity of the FC ?
A : Under Art. 162 of the FC, it is provided that the
Requisites for the creditor to avail of the right to provisions of this Chapter shall also govern existing family
execute residences insofar as said provisions are applicable. It
does not mean that Arts. 152 and 153 of the FC have a
1. He must be a judgment creditor; retroactive effect such that all existing family residences
2. His claim must not be among those excepted under are deemed to have been constituted as a family home at
Art. 155; the time of their occupation prior to the effectivity of the
3. He has reasonable grounds to believe that the family FX and are exempt from execution for the payment of
home is worth more than the maximum amount fixed obligations before the effectivity of the FC. Art. 162 simply
in Art. 157. means that all existing family residences at the time of the
effectivity of the FC are considered family homes and are
Procedure in exercising the right to execute prospectively entitled to the benefits accorded to a family
home under the FC (Manacop v. CA, 277 SCRA 64, August
1. Creditor must file a motion in the court proceeding 11, 1997).
where he obtained a favorable judgment for a writ of
execution against the FH; Requisites in the sale, alienation, donation,
2. There will be a hearing on the motion where the assignment or encumbrance of the FH
creditor must prove that the actual value of the FH
exceeds the maximum amount fixed by the Family The following must give their written consent:
Code, either at the time of its constitution or as a 1. The person who constituted the FH;
result of improvements introduced after its 2. The spouse of the person who constituted the FH;
constitution; 3. Majority of the beneficiaries of legal age.
3. If the creditor proves that the actual value exceeds the
maximum amount, the court will order its sale in NOTE: In case of conflict, the court shall decide.
4. If the family home is sold for more than the value Limitations on FH
allowed, the proceeds shall be applied as follows:
a. The obligations enumerated in Art. 155 must be 1. Each family can have only one family home. After one
paid family home has been constituted, no other family
b. The judgment in favor of the creditor will be paid,


home can be established without first dissolving the 2. The artificial insemination on the wife is done with
existing one. the sperm of the husband or of a donor, or both the
2. The family home can be constituted only on the husband and a donor;
dwelling place, and therefore in the locality where the 3. The artificial insemination has been authorized or
family has its domicile. ratified by the spouse on a written instrument
3. The value of the family home must not exceed the executed and signed by them before the birth of the
limit fixed by law (Tolentino, Book I, p. 508). child; and
4. The written instrument is recorded in the civil
PATERNITY AND FILIATION registry together with the birth certificate of the child
(Art. 164, FC).
Paternity and Filiation
Rights of legitimate children
Paternity is the civil status of a father with regard to the
child. 1. To bear the surname of the father and the mother;
2. To receive support from their parents, their
Filiation is the civil status of a child with regard to his ascendants, and in proper cases, their brothers and
parents. sisters;
3. To be entitled to the legitimate and other successional
Filiation may be by nature or adoption, legitimate or rights granted to them by Art. 174 of the FC.
Presumption of legitimacy
NOTE: Paternity or filiation is established by clear and
convincing evidence (Constantino v. Mendez, 209 SCRA 18 Article 164 of the Family Code provides that the children
[1992]). conceived or born during the marriage of the parents are
Classifications of filiation
The presumption of legitimacy of children does not only
1. Natural flow out from a declaration contained in the statute but is
a. Legitimate conceived or born within a valid based on the broad principles of natural justice and the
marriage supposed virtue of the mother. The presumption is
b. Illegitimate conceived and born outside a valid grounded in a policy to protect innocent offspring from the
marriage odium of illegitimacy (Liyao, Jr. vs Tanhoti-Liyao, G.R.
2. Judicial Act 138961, March 7, 2002).
a. Legitimated conceived and born outside of
wedlock of parents without impediment to marry The presumption of legitimacy under Article 164 of the
at the time of conception or were so disqualified Family Code may be availed only upon convincing proof of
only because either or both of them were below the factual basis therefor, i.e., that the childs parents were
eighteen (18) years of age. legally married and that his/her conception or birth
b. Adopted a filiation created by law which vests occurred during the subsistence of that marriage. Else, the
between two persons a relationship similar to presumption of law that a child is legitimate does not arise
that which results from legitimate paternity and (Angeles vs Maglaya, G.R. 153798, September 2, 2005).
NOTE: The child by himself cannot choose his own
LEGITIMATE CHILDREN filiation. Neither can he elect the paternity of the husband
of his mother when the presumption of his legitimacy has
Legitimate child been successfully overthrown.

GR: One who is conceived or born during the marriage of Q: What is the effect of the declaration of a wife against
the parents the legitimacy of the child where the child is
conclusive presumed to be the legitimate child of H
XPN: Born outside of a valid marriage (void marriages) but and W?
considered as legitimate child:
A: The child shall still be legitimate, although the mother
1. Children of marriages which are declared void under may have declared against his legitimacy. This law likewise
Art. 36; and applies to such instances where the mother may have been
2. Children of marriages which are declared void under sentenced as an adulteress (Art. 167, FC).
Art. 53 (Rabuya, 2009).
NOTE: Art. 167 of the FC applies only to a situation where
Requisites for a child conceived by artificial the wife denies the paternity of the husband. Art. 167 does
insemination to be considered legitimate not apply to a situation where a child is alleged not to be
the child of nature or biological child of the couple
1. The artificial insemination is made on the wife, not on (Rabuya, 2009).
another woman;


Q: Roderick and Faye were high school sweethearts. same municipality
When Roderick was 18 and Faye, 16 years old, they or city where birth XPN: Lifetime of the
started living together as husband and wife without took place putative father
the benefit of marriage. When Faye reached 18 years 2 years husband
of age, her parents forcibly took her back and does NOT reside in In cases where the
arranged for her marriage to Brad. Although Faye the same action is for the
lived with Brad after the marriage, Roderick continued municipality or recognition of
to regularly visit Faye while Brad was away at work. city illegitimate child by
During their marriage, Faye gave birth to a baby girl, 3 years husband open and
Laica. When Faye was 25 years old, Brad discovered is living abroad continuous
her continued liaison with Roderick and in one of their possession of the
heated arguments, Faye shot Brad to death. She lost no status.
time in marrying her true love Roderick, without a
marriage license, claiming that they have been Person/s who may attack the legitimacy of the child
continuously cohabiting for more than 5 years.
a. What is the filial status of Laica? GR: Only the husband can contest the legitimacy of the
b. Can Laica bring an action to impugn her own child.
status on the ground that based on DNA results,
Roderick is her biological father? (2008 Bar XPNs: Heirs of the husband may impugn the filiation of the
Question) child within the period prescribed in Art. 170 of the FC
only in the following cases:
A: 1. If the husband should die before the expiration of the
a) Having been born during the marriage of Faye and period fixed for bringing his action;
Brad, she is presumed to be the legitimate child of 2. If he should die after the filing of the complaint,
Faye and Brad. This presumption had become without having desisted therefrom; or
conclusive because the period of time to impugn her 3. If the child was born after the death of the husband
filiation had already prescribed. (Art. 171, FC).

b) No, she cannot impugn her own filiation. The law does Prescriptive period for filing action impugning the
not allow a child to impugn his or her own filiation. In legitimacy of the child
the problem, Laicas legitimate filiation was accorded
to her by operation of law which may be impugned GR: The prescriptive period for filing action impugning the
only by Brad, or his heirs in the cases provided by law legitimacy of the child shall be counted from the
within the prescriptive period. knowledge of birth or its recording in the civil registry.

Action to impugn legitimacy v. Action to claim XPN: If the birth was:

legitimacy. 1. Concealed from or
2. Was unknown to the husband or his heirs, the periods
BASIS ACTION TO shall be counted from the discovery or knowledge of
IMPUGN the birth of the child or of the act of registration of
LEGITIMACY said birth, whichever is earlier.
Action to impugn Action to claim
legitimacy or legitimacy Grounds in impugning legitimacy of a child
illegitimacy (compulsory
recognition) Legitimacy of the child may be impugned only on the
GR: Husband GR: Child following grounds:
1. Physical impossibility for the husband to have sexual
XPNs: Heirs, in XPNs: Heirs of the intercourse with his wife within the first 120 days of
cases where: child, in cases where: the 300 days which immediately preceded the birth of
1. Husband died 1. Child died in state the child because of:
before the of insanity a. Physical incapacity of the husband to have sexual
expiration of 2. Child died during intercourse with his wife,
the period for minority b. The fact that the husband and wife were living
Real party bringing the separately in such a way that sexual intercourse
in interest action; NOTE: Must be filed was not possible, or
2. Husband died within 5 years. c. Serious illness of the husband which absolutely
after filing the prevented intercourse;
complaint, 2. Proved that for biological or other scientific reasons,
without having the child could not have been that of the husband,
desisted; except in the case of children conceived through
3. Child was born artificial insemination;
after the death 3. In case of children conceived through artificial
of husband. insemination, the written authorization or ratification
1 year husband GR: During the of either parent was obtained through mistake, fraud,
Prescription violence, intimidation or undue influence.
resides in the lifetime of the child



Sterility and Impotency Rule on status of child where the mother contracted
another marriage within 300 days after termination of
Sterility is not synonymous with impotency. Sterility is the the former
inability to procreate, while impotency is the physical
inability to copulate (Menciano v. San Jose, 89, Phil. 63). The child shall be considered as conceived during the:
1. Former marriage if child is born:
Before 180 days after the solemnization of the
Q: Will an infliction of the last stages of tuberculosis be subsequent marriage, provided it is born within
a ground for impugnation of the legitimacy of the 300 days after termination of former marriage
child? 2. Subsequent marriage if a child is born:
180 days after the celebration of the subsequent
A: Tuberculosis, even in its last stages, is not the kind of marriage, even though it be born within 300 days
serious illness of the husband that will establish physical after the termination of the former marriage.
impossibility of access (Andal v. Macaraig, 89 Phil.165).


1. 180th day takes place before 300th day

180th day from
Former marriage Subsequent marriage solemnization of 300th day from
terminated solemnized subsequent marriage termination of former

Born during this period:

Born during this period:
Conceived during Former Marriage
Conceived during Subsequent Marriage

2. 180th day takes place after 300th day

Subsequent 300th day from 180th day from
Former marriage marriage termination of solemnization of
terminated solemnized former marriage subsequent marriage

Born during this period: Born during this period:

Conceived during Former Marriage Conceived during Subsequent

ILLEGITIMATE CHILDREN be considered valid and the children will be considered

Illegitimate children

1. Children conceived and born outside a valid marriage:

2. Children born of couples who are not legally married or
of common law marriages; Rights of an illegitimate child (LASS)
3. Children born of incestuous marriage;
4. Children born of bigamous marriage; 1. They shall use the Surname of the mother;
5. Children born of adulterous relations between parents; 2. They shall be under the parental Authority of the
6. Children born of marriages which are void for reasons mother;
of public policy under Art. 18, FC; 3. They shall be entitled to Support in conformity with
7. Children born of couples below 18, whether they are the FC;
married (which marriage is valid) or not; 4. They shall be entitled to a Legitime which shall consist
8. Children born of void marriages under art. 35, except of of the legitime of a legitimate child (Art. 176, FC).
where the marriage is void for lack of authority on the
part of the solemnizing officer, but the parties or either
of them believed in good faith that the solemnizing
officer had authority, in which case the marriage will


Effect of the recognition of an illegitimate child by the Legitimation
Legitimation is a remedy or process by means of which
Such recognition would be a ground for ordering the latter those who in fact not born in wedlock and should
to give support to, but not the custody of the child. The law therefore be ordinarily illegitimate, are by fiction,
explicitly confers to the mother sole parental authority considered legitimate.
over an illegitimate child; it follows that only if she defaults
can the father assume custody and authority over the It takes place by a subsequent valid marriage between
minor (Briones v. Miguel, G.R. No. 156343, October 18, 2004) parents. Furthermore, it shall retroact to the time of the
childs birth (Art 180, FC).
Also, under the R.A. 9255, the illegitimate child has the
option to use the surname of the father. NOTE: The annulment of a voidable marriage shall not
affect the legitimation (Art. 178, FC).
Republic Act 9255
Children entitled to legitimation
This act provides that illegitimate children may optionally
use the fathers surname provided that: Only children conceived and born outside of wedlock of
1. Filiation has been recognized by the father through parents who, at the time of conception, were not
the record of birth appearing in the civil register disqualified by any impediment to marry each other or
2. Admission in public document or were so disqualified only because either or both of them
3. Private handwritten instrument is made by the father were below eighteen (18) years of age (Art. 177, FC as
amended by R.A. 9858).
NOTE: Provided that the father has the right to institute an
action before the regular courts to prove non-filiation Requisites of legitimation
during his lifetime.
1. Child must have been conceived and born outside of
Q: How may an illegitimate children establish their wedlock;
illegitimate filiation should their status be impugned? 2. Childs parents, at the time of formers conception,
When must the action to claim illegitimacy be were not disqualified by any impediment to marry
brought? each other or were so disqualified only because either
or both of them were below eighteen (18) years of
A: Illegitimate children may establish their illegitimate age;
filiation in the same way and on the same evidence as 3. The subsequent valid marriage of the parents.
legitimate children.
Q: Who may impugn the legitimation?
The action must be brought in the same period specified in
Art. 173 of the FC, except when the action is based on the A: Legitimation may be impugned only by those who are
2nd par. of Art. 172 of the FC, in which case the action may prejudiced in their rights, within 5 years from the time
be brought during the lifetime of the alleged parent (Art. their cause of action accrues, that is, from the death of the
175, FC). putative parent.

Q: Why is an illegitimate child of a woman, who gets NOTE: The right referred to are successional rights. Hence,
married, allowed to bear the surname of her spouse, only those whose successional rights are directly affected
while a legitimate child may not? may impugn the legitimation that took place.

A: To allow the child to adopt the surname of his mothers Q: Roderick and Faye were high school sweethearts.
second husband, who is not his father, could result in When Roderick was 18 and Faye, 16 years old, they
confusion in his paternity. It could also create the started living together as husband and wife without
suspicion that the child, who was born during the the benefit of marriage. When Faye reached 18 years
covertures of his mother with her first husband, was in fact of age, her parents forcibly took her back and
sired by the second husband, thus bringing his legitimate arranged for her marriage to Brad. Although Faye
status into discredit (Republic v. Vicencio, G.R. No. 88202. lived with Brad after the marriage, Roderick continued
December 14, 1998). to regularly visit Faye while Brad was away at work.
During their marriage, Faye gave birth to a baby girl,
LEGITIMATED CHILDREN Laica. When Faye was 25 years old, Brad discovered
her continued liaison with Roderick and in one of their
Legitimated children heated arguments, Faye shot Brad to death. She lost no
time in marrying her true love Roderick, without a
Legitimated children are those who, because of the marriage license, claiming that they have been
subsequent marriage of their parents to each other, are by continuously cohabiting for more than 5 years. Can
legal fiction considered legitimate. Laica be legitimated by the marriage of her biological
parents? (2008 Bar Question)

A: No, she cannot be legitimated by the marriage of her

biological parents. In the first place she is not, under the


law, the child of Roderick. In the second place, her Yes No right to
biological parents could not have validly married each inherit ab intesto
other at the time she was conceived and born simply from legitimate
because Faye was still married to Roderick at that time. children and
Under Art. 177 of the FC, only children conceived or born Right to inherit relatives of
outside of wedlock of parents who, at the time of the ab intesto father and
conception of the child were not disqualified by any mother under
impediment to marry each other, may be legitimated. Art. 992, NCC
(Iron Curtain

Rights of legitimate and illegitimate children ACTION TO CLAIM FILIATION

LEGITIMATE ILLEGITIMATE Action to claim filiation

Bear the Paternity and filiation or the lack of the same is a
surname of relationship that must be judicially established and it is for
either the the court to declare its existence or absence. It cannot be
mother or the left to the will or agreement of the parties (De Asis vs. Court
father under R.A. of Appeals, G.R. 127578, February 15, 1999).
Bear the The manner of claiming filiation is the same for both
surnames of NOTE: Under the legitimate and illegitimate children
Surname both parents amendatory
(mother and provisions of RA Person/s who may file for claim legitimate filiation
father) 9255, the use of
illegitimate GR: The right of claiming legitimacy belongs to the child
father's surname
is permissive XPN: The right is transferred to his heirs when the child
and not dies:
obligatory 1. During minority or
(Rabuya, 2008). 2. In a state of insanity.
Receive support Receive support 3. After commencing the action for legitimacy
from: according to
1. Parents; provision of FC NOTE: Questioning legitimacy may not be collaterally
2. Ascendants; attacked. It can be impugned only in a direct action
Support 3. in proper Person/s who may file for claim illegitimate filiation
brothers and GR: The right of claiming illegitimacy belongs to the child
sisters under
Art. 174. XPN: The right is transferred to his heirs when:
1. During minority or
Full Legitimes Share is 2. In a state of insanity.
and other equivalent to 3. After commencing the action for legitimate filiation
successional of the share of a
Legitime Prescription of action to claim legitimacy or
rights under the legitimate child
NCC illegitimacy

His/her whole For primary An action must be brought:

lifetime proof: his/her 1. By the child during his lifetime
regardless of whole lifetime 2. By his heirs within 5 years should the child dies
Period for filing type of proof during minority, in a state of insanity or after
action for claim provided under For secondary commencing the action for legitimacy
of legitimacy or Art. 172 proof:
illegitimacy only during the NOTE: Provided that the action for illegitimacy is based on
lifetime of the admission of paternity or filiation in a birth certificate or
alleged parent written instrument.

Transmissibility Yes No However, if the action for illegitimacy is based on open and
of right to file continuous possession of status of illegitimate filiation or
an action to any other means allowed by the Rules of Court and special
claim laws, the action must be brought during the lifetime of the
legitimacy alleged parent.


Kinds of proof of filiation A: It still constitutes a public document or private
handwritten instrument signed by parent concerned.
Proof of filiation has two kinds:
1. Primary proof consists of the ff: Prima facie case of sexual relations with the putative
a. Record of birth appearing in civil registrar or father
final judgment;
b. Admission of legitimate filiation in public We explained that a prima facie case exists if a woman
document or private handwritten instrument declares supported by corroborative proof that she
signed by parent concerned. had sexual relations with the putative father; at this point,
2. Secondary consists of the ff: the burden of evidence shifts to the putative father. We
a. Open and continuous possession of legitimacy; explained further that the two affirmative defenses
b. Any means allowed by the Rules of Court and available to the putative father are: (1) incapability of
special laws. sexual relations with the mother due to either physical
absence or impotency, or (2) that the mother had sexual
NOTE: To prove open and continuous possession of the relations with other men at the time of conception (Charles
status of an illegitimate child, there must be evidence of Gotardo v. Divina Buling, G.R. No. 165166, August 15, 2012).
manifestation of the permanent intention of the supposed
father to consider the child as his, by continuous and clear Q: Rosanna, as surviving spouse, filed a claim for death
manifestations of parental affection and care, which cannot benefits with the SSS upon the death of her husband,
be attributed to pure charity. Pablo. She indicated in her claim that the decedent is
also survived by their minor child, Lyn, who was born
Such acts must be of such a nature that they reveal not in 1991. The SSS granted her claim but this was
only the conviction of paternity, but also the apparent withdrawn after investigation, when a sister of the
desire to have and treat the child as such in all relations in decedent informed the system that Pablo could not
society and in life, not accidentally, but continuously (Jison have sired a child during his lifetime because he was
v. CA, G.R. No. 124853, February 24, 1998). infertile. However in Lyns birth certificate, Pablo
affixed his signature and he did not impugn lyns
Rules in proving filiation legitimacy during his lifetime. Was the SSS correct in
withdrawing the death benefits?
GR: Primary proof shall be used to prove filiation.
A: No. Under Art. 164 of the FC, children conceived or born
XPN: In absence of primary proof, secondary proof may be during the marriage of the parents are legitimate. This
resorted to. presumption becomes conclusive in the absence of proof
that there is physical impossibility of access under Art. 166.
Pictures or certificate of baptism do not constitute Further, upon the expiration of the periods for impugning
authentic documents to prove the legitimate filiation legitimacy under Art. 170, and in the proper cases under
of a child Art. 171, of the FC, the action to impugn would no longer
be legally feasible and the status conferred by the
Pictures or the canonical baptismal certificate do not presumption becomes fixed and unassailable. In this case,
constitute the authentic documents to prove the legitimate there is no showing that Pablo, who has the right to
filiation of a child. The baptismal certificate of the child, impugn the legitimacy of lyn, challenged her status during
standing alone, is not sufficient. It is not a record of birth. his lifetime. Furthermore, there is adequate evidence to
Neither is it a public instrument nor a private handwritten show that the child was in fact his child, and this is the
instrument (Abelle v. Santiago, 7 SCRA 925). birth certificate where he affixed his signature (SSS v.
Aguas, et al., G.R. No. 165546, February 27, 2006).
Baptismal certificate does not prove filiation
Q: In an action for partition of estate, the trial court
Just like in a birth certificate, the lack of participation of dismissed it on the ground that the respondent, on the
the supposed father in the preparation of a baptismal basis of her birth certificate, was in fact the
certificate renders this document incompetent to prove illegitimate child of the deceased and therefore the
paternity. And while a baptismal certificate may be latter's sole heir, to the exclusion of petitioners.
considered a public document, it can only serve as However, trial court failed to see that in said birth
evidence of the administration of the sacrament on the certificate, she was listed therein as adopted. Was
date specified but not the veracity of the entries with the trial court correct in dismissing the action for
respect to the childs paternity. Thus, baptismal certificates partition?
are per se inadmissible in evidence as proof of filiation and
they cannot be admitted indirectly as circumstantial A: No. The trial court erred in relying upon the said birth
evidence to prove the same. (Antonio Perla v. Mirasol certificate in pronouncing the filiation of the respondent.
Baring and Randy B. Perla, G.R. No. 172471, November 12, However, since she was listed therein as adopted, she
2012). should therefore have presented evidence of her adoption
in view of the contents of her birth certificate. In this case,
Q: May a will which was not presented for probate there is no showing that she undertook such. It is well-
sufficiently establishes filiation? settled that a record of birth is merely prima facie evidence
of the facts contained therein. It is not conclusive evidence
of the truthfulness of the statements made there by the


interested parties (Rivera v. Heirs of Romualdo Villanueva, sole legitimate daughter of decedent, Ramon and Van
G.R. No. 141501, July 21, 2006). Bolatis. Phoebe, the decedent's second wife, opposed
the petition and questioned the legitimate filiation of
Q: In a complaint for partition and accounting with Cheri to the decedent, asserting that Cheris birth
damages, Ma. Theresa alleged that she is the certificate was not signed by Ramon and that she had
illegitimate daughter of Vicente, and therefore entitled not presented the marriage contract between her
to a share in the estate left behind by the latter. As alleged parents which would have supported her
proof, she presented her birth certificate which claim.
Vicente himself signed thereby acknowledging that
she is his daughter. Is the evidence presented by Ma. In said birth certificate, it was indicated that her birth
Theresa sufficient to prove her claim that she is an was recorded as the legitimate child of Ramon and Van
illegitimate child of Vicente? Bolatis, and contains as well the word "married" to
reflect the union between the two. However, it was not
A: Yes. Citing the earlier case of De Jesus v. Estate of Juan signed by Ramon and Vanemon Bolatis. It was merely
Dizon, (366 SCRA 499), the Supreme Court held that the Ma. signed by the attending physician, who certified to
Theresa was able to establish that Vicente was in fact her having attended to the birth of a child. Does the
father. The due recognition of an illegitimate child in a presumption of legitimacy apply to Cherimon?
record of birth, a will, a statement before a court of record,
or in any authentic writing is, in itself, a consummated act A: No. Since the birth certificate was not signed by Cher's
of acknowledgment of the child, and no further court alleged parents but was merely signed by the attending
action is required. The rule is, any authentic writing is physician, such a certificate, although a public record of a
treated not just as a ground for compulsory recognition; it is private document is, under Sec. 23, Rule 132 of the Rules
in itself a voluntary recognition that does not require a of Court, evidence only of the fact which gave rise to its
separate action for judicial approval (Eceta v. Eceta, G.R. No. execution, which is, the fact of birth of a child. A birth
157037, May 20, 2004). certificate, in order to be considered as validating proof of
paternity and as an instrument of recognition, must be
Q: Gerardo filed a complaint for bigamy against Ma. signed by the father and mother jointly, or by the mother
Theresa, alleging that she had a previous subsisting alone if the father refuses. There having been no convincing
marriage when she married him. The trial court proof of respondent's supposed legitimate relations with
nullified their marriage and declared that the son, who respect to the decedent, the presumption of legitimacy
was born during their marriage and was registered as under the law did not therefore arise in her favor (Angeles
their son, as illegitimate. What is the status of the v. Angeles-Maglaya, G.R. No. 153798, September2, 2005).
Q: On the basis of the physical presentation of the
A: The first marriage being found to be valid and plaintiff-minor before it and the fact that the alleged
subsisting, whereas that between Gerardo and Ma. Theresa father had admitted having sexual intercourse with
was void and non-existent; the child should be regarded as the child's mother, the trial court, in an action to prove
a legitimate child out of the first marriage. This is so filiation with support, held that the plaintiff-minor is
because the child's best interests should be the primordial the child of the defendant with the plaintiff-minor's
consideration in this case. mother. Was the trial court correct in holding such?

Q: Gerardo and Ma. Theresa, however, admitted that A: No. In this age of genetic profiling and DNA analysis, the
the child was their son. Will this affect the status of the extremely subjective test of physical resemblance or
child? similarity of features will not suffice as evidence to prove
paternity and filiation before courts of law. This only
A: No. The admission of the parties that the child was their shows the very high standard of proof that a child must
son was in the nature of a compromise. The rule is that: the present in order to establish filiation.
status and filiation of a child cannot be compromised. Art.
164 of the FC is clear that a child who is conceived or born NOTE: The birth certificate that was presented by the
during the marriage of his parents is legitimate plaintiff-minor appears to have been prepared without the
(Concepcion v. CA, G.R. No. 123450. August 31, 2005). knowledge or consent of the putative father. It is therefore
not a competent piece of evidence on paternity. The local
Q: What is the effect of Ma. Theresas claim that the civil registrar in this case has no authority to record the
child is her illegitimate child with her second husband, paternity of an illegitimate child on the information of a
to the status of the child? third person. Similarly, a baptismal certificate, while
considered a public document, can only serve as evidence
A: None. This declaration an avowal by the mother that of the administration of the sacrament on the date
her child is illegitimate is the very declaration that is specified therein but not the veracity of the entries with
proscribed by Art. 167 of the FC. This proscription is in respect to the child's paternity (Macadangdang v. CA, 100
consonance with, among others, the intention of the law to SCRA 73). Thus, certificates issued by the local civil
lean towards the legitimacy of children (Concepcion v. CA, registrar and baptismal certificates are per se inadmissible
G.R. No. 123450. August 31, 2005). in evidence as proof of filiation and they cannot be
admitted indirectly as circumstantial evidence to prove the
Q: In a petition for issuance of letters of same (Jison v. CA, 350 Phil. 138; Cabatania v. CA, G.R. No.
administration, Cheri Bolatis alleged that she is the 124814. October 21, 2004).


Q: Ann Lopez, represented by her mother Araceli
Lopez, filed a complaint for recognition and support of Domestic Adoption
filiation against Ben-Hur Nepomuceno. She assailed
that she is the illegitimate daughter of Nepomuceno Applies to adoption of Filipino children, where the entire
submitting as evidence the handwritten note allegedly adoption process beginning from the filing of the petition
written and signed by Nepomuceno. She also up to the issuance of the adoption decree takes place in the
demanded for financial support along with filial Philippines (Rabuya, 2009).
recognition. Nepomuceno denied the assertions
reasoning out that he was compelled to execute the WHO CAN ADOPT
handwritten note due to the threats of the National
Peoples Army. RTC ruled in favor of Ann. Is the trial Who can adopt
court correct?
1. Filipino citizens;
A: Anns demand for support is dependent on the 2. Aliens;
determination of her filiation. However, she relies only on 3. Guardians with respect to their ward.
the handwritten note executed by petitioner. The note
does not contain any statement whatsoever about her NOTE: A guardian may only adopt his ward after
filiation to petitioner. It is, therefore, not within the ambit termination of guardianship and clearance of his
of Article 172(2) vis--vis Art. 175 of the FC which admits financial accountabilities.
as competent evidence of illegitimate filiation an
admission of filiation in a private handwritten instrument Qualifications of a Filipino who may adopt
signed by the parent concerned.
1. Must be of legal age;
The Court is mindful that the best interests of the child in 2. In a position to support and care for his children;
cases involving paternity and filiation should be advanced. 3. Good moral character;
It is, however, just as mindful of the disturbance that 4. Full civil capacity and legal rights;
unfounded paternity suits cause to the privacy and peace 5. Not been convicted of any crime involving moral
of the putative fathers legitimate family (Ben-Hur turpitude;
Nepomuceno v. Archbencel Ann Lopez, represented by her 6. Emotionally and psychologically capable of caring for
mother Araceli Lopez G.R. No. 181258, March 18, 2010). children;
7. GR: At least 16 years older than adoptee
XPN: It is not necessary that adopter be at least 16
Adoption years older:
a. Adopter is the biological parent of the adoptee,
Adoption is defined as the process of making a child, b. Adopter is the spouse of adoptees parent.
whether related or not to the adopter, possess in general,
the rights accorded to a legitimate child. It is a juridical act, NOTE: In Nieto v. Magat (136 SCRA 533), it was held that a
a proceeding in rem which creates between two persons a reading of Arts. 27 and 28 of P.D. 603 clearly shows that
relationship similar to that which results from legitimate the temporary residence of the adopting parents in a
paternity and filiation. The modern trend is to consider foreign country does not disqualify them from adopting.
adoption not merely as an act to establish a relationship of
paternity and filiation, but also as an act which endows the Qualifications of an alien who may adopt under R.A.
child with a legitimate status (In the Matter of the Adoption 8552
Stephanie Nathy Astorga Garcia, G.R. 148311 March 31,
2005). 1. Possesses same qualifications as those enumerated
for Filipino adopters;
The relationship established by the adoption is limited to 2. His country has diplomatic relations with the
the adopting parents and does not extend to their other Philippines;
relatives, except as expressly provided by law. Thus, the 3. His government allows the adoptee to enter his
adopted child cannot be considered as a relative of the country as his adopted child
ascendants and collaterals of the adopting parents, nor of 4. He has been certified by his diplomatic or consular
the legitimate children which they may have after the office or any appropriate government agency that he
adoption, except that the law imposes certain impediments has the legal capacity to adopt in their country
to marriage by reason of adoption. Neither are the children 5. GR: Has been living in the Philippines for at least 3
of the adopted considered descendants of the adopter. continuous years prior to the application for adoption
and maintains such residence until adoption decree
Preference in adoption has been entered.

1. Adoption by the extended family XPNs:

2. Domestic Adoption a. He is a former Filipino who seeks to adopt a
3. Inter-Country Adoption relative within the 4th civil degree of consanguinity
or affinity,
b. He is married to a Filipino and seeks to adopt


jointly with his spouse a relative within the 4th adoption were filed only by Monina herself, without
degree of consanguinity or affinity, joining her husband, Olario, the trial court was correct in
c. He is married to a Filipino and seeks to adopt the denying the petitions for adoption on this ground (In Re:
legitimate or illegitimate child of his Filipino Petition for Adoption of Michelle P. Lim, In Re: Petition for
spouse. Adoption of Michael Jude P. Lim, Monina P. Lim, G.R. Nos.
168992-93, May 21, 2009).
Rule on Joint Adoption of Spouses
Joint adoption when the adoptees are already
GR: Such person must adopt with his spouse jointly. emancipated

XPNs: Even if emancipation terminates parental authority, the

1. One spouse seeks to adopt the legitimate son or adoptee is still considered a legitimate child of the adopter
daughter of the other; with all the rights of a legitimate child such as: (1) to bear
2. One spouse seeks to adopt his own illegitimate son or the surname of the father and the mother; (2) to receive
daughter; support from their parents; and (3) to be entitled to the
legitime and other successional rights. Conversely, the
NOTE: In seeking to adopt his own illegitimate son or adoptive parents shall, with respect to the adopted child,
daughter, the law requires that the consent of the enjoy all the benefits to which biological parents are
spouse of the adopter must be given to such adoption. entitled such as support and successional rights.

If on the other hand, the spouse would adopt the ADOPTEE

illegitimate son or daughter of the other, joint
adoption is still mandatory Adoptee

3. Spouses are legally separated. 1. Any person below eighteen (18) years of age who has
been administratively or judicially declared available
Q: Spouses Primo and Monina Lim, childless, were for adoption;
entrusted with the custody of two minor children, the 2. The legitimate son/daughter of one spouse by the
parents of whom were unknown. Eager to have other spouse;
children of their own, the spouses made it appear that 3. An illegitimate son/daughter by a qualified adopter to
they were the childrens parents by naming them improve his/her status to that of legitimacy;
Michelle P. Lim and Michael Jude Lim. Subsequently, 4. A person of legal age if, prior to the adoption, said
Monina married Angel Olario after Primos death. She person has been consistently considered and treated
decided to adopt the children by availing the amnesty by the adopter(s) as his/her own child since minority;
given under R.A. 8552 to those individuals who 5. A child whose adoption has been previously
simulated the birth of a child. She filed separate rescinded; or
petitions for the adoption of Michelle, then 25 years 6. A child whose biological or adoptive parent(s) has
old and Michael, 18. Both Michelle and Michael gave died: Provided, that no proceedings shall be initiated
consent to the adoption. within six (6) months from the time of death of said
The trial court dismissed the petition and ruled that
Monina should have filed the petition jointly with her Child
new husband. Monina, in a Motion for Reconsideration
argues that mere consent of her husband would suffice A child is any person below 18 years old.
and that joint adoption is not needed, for the adoptees
are already emancipated. Child legally free for adoption

Is the trial court correct in dismissing the petitions for A child voluntarily or involuntarily committed to the
adoption? DSWD, is freed of his biological parents, guardians, or
adopters in case of rescission.
A: Yes. Sec. 7 Art. 3 of R.A. 8552 reads: Sec. 7 Husband
and wife shall jointly adopt xxx. Necessity of written consent for adoption under
domestic adoption
The use of the word shall in the above-quoted provision
means that joint adoption by the husband and the wife is The written consent of the following is necessary for
mandatory. This is in consonance with the concept of joint adoption:
parental authority over the child which is the ideal 1. Biological parent(s) of the child, if known, or the legal
situation. As the child to be adopted is elevated to the level guardian, or the proper government instrumentality
of a legitimate child, it is but natural to require the spouses which has legal custody of the child;
to adopt jointly. The rule also ensures harmony between 2. Adoptee, if ten (10) years of age or over;
the spouses. 3. Illegitimate sons/daughters, ten (10) years of age or
over, of the adopter if living with said adopter and the
The law is clear. There is no room for ambiguity. Monina, latter's spouse, if any;
having remarried at the time the petitions for adoption
were filed, must jointly adopt. Since the petitions for


4. Legitimate and adopted sons/daughters, ten (10) 18 years of age but incapacitated, the Department of Social
years of age or over, of the adopter(s) and adoptee, if and Welfare Development as the adoptees guardian or
any; counsel may assist the adoptee for rescinding the decree of
5. Spouse, if any, of the person adopting or to be adoption.
The adopter cannot seek the rescission of the adoption but
Q: Bernadette filed a petition for adoption of the three he may disinherit the adoptee.
minor children of her late brother, Ian. She alleged
that when her brother died, the children were left to Grounds upon which an adoptee may seek judicial
the care of their paternal grandmother, Anna, who rescission of the adoption
went to Italy. This grandmother died however, and so
she filed the petition for adoption. The minors gave When the adopter has committed the following:
their written consent to the adoption and so did all of 1. Repeated physical and verbal maltreatment by the
her own grown-up children. The trial court granted adopter despite having undergone counselling
the decree of adoption even though the written 2. Attempt on the life of the adoptee
consent of the biological mother of the children was 3. Sexual assault or violence committed against the
not adduced by Bernadette. Was the trial court correct adoptee
in granting the decree of adoption? 4. Abandonment and failure to comply with parental
A: No. The rule is adoption statutes must be liberally
construed in order to give spirit to their humane and Grounds by which an adopter may disinherit adoptee
salutary purpose which is to uplift the lives of unfortunate,
needy or orphaned children. However, the discretion to 1. Groundless accusation against the testator of a crime
approve adoption proceedings on the part of the courts punishable by 6 years or more imprisonment;
should not to be anchored solely on those principles, but 2. Found guilty of attempt against the life of the testator,
with due regard likewise to the natural rights of the his/her spouse, descendant or ascendant;
parents over the child. The written consent of the biological 3. Causes the testator to make changes or changes a
parents is indispensable for the validity of the decree of testators will through violence, intimidation, fraud or
adoption. Indeed, the natural right of a parent to his child undue influence;
requires that his consent must be obtained before his 4. Maltreatment of the testator by word or deed;
parental rights and duties may be terminated and vested 5. Conviction of a crime which carries a penalty of civil
in the adoptive parents. In this case, since the minors' interdiction;
paternal grandmother had taken custody of them, her 6. Adultery or concubinage with the testators wife;
consent should have been secured instead in view of the 7. Refusal without justifiable cause to support the parent
absence of the biological mother. This is so under Sec. 9 (b) or ascendant;
of R.A. 8552, otherwise known as the Domestic Adoption 8. Leads a dishonorable or disgraceful life.
Act of 1998. Diwata failed in this respect, thus
necessitating the dismissal of her petition for adoption Effects of rescission of the adoption under the
(Landingin v. Republic, G.R. No. 164948, June 27, 2006). Domestic Adoption Act of 1998 (RA 8552)

Effects of Domestic Adoption 1. If adoptee is still a minor or is incapacitated

Restoration of:
1. GR: Severance of all legal ties between the biological a. Parental authority of the adoptees biological
parents and the adoptee and the same shall then be parents, if known or
vested on the adopters b. Legal custody of the DSWD;
2. Reciprocal rights and obligations of the adopters and
XPN: In cases where the biological parent is the adoptee to each other shall be extinguished;
spouse of the adopter; 3. Court shall order the civil registrar to cancel the
amended certificate of birth of the adoptee and
2. Deemed a legitimate child of the adopter; restore his/her original birth certificate;
3. Acquires reciprocal rights and obligations arising 4. Succession rights shall revert to its status prior to
from parent-child relationship; adoption, but only as of the date of judgment of
4. Right to use surname of adopter; judicial rescission;
5. In legal and intestate succession, the adopters and the 5. Vested rights acquired prior to judicial rescission shall
adoptee shall have reciprocal rights of succession be respected.
without distinction from legitimate filiation. However,
if the adoptee and his/her biological parents had left a
will, the law on testamentary succession shall govern. Q: Despite several relationships with different women,
Andrew remained unmarried. His first relationship
Q: Who may file the action for rescission of domestic with Brenda produced a daughter, Amy, now 30 years
adoption? old. His second, with Carla, produced two sons: Jon and
Ryan. His third, with Donna, bore him two daughters:
A: The adoptee has the sole right to sever the legal ties Vina and Wilma. His fourth, while Elena, bore him no
created by adoption and the one who will file the action for children although Elena has a daughter Jane, from a
rescission. However, if the adoptee is still a minor or above previous relationship. His last, with Fe, produced no


biological children but they informally adopted ADOPTER
without court proceedings, Sandy, now 13 years old,
whom they consider as their own. Sandy was orphaned Adopter
as a baby and was entrusted to them by the midwife
who attended to Sandys birth. All the children, 1. Any alien;
including Amy, now live with Andrew in his house. 2. Filipino citizen, both permanently residing abroad.

a. Is there any legal obstacle to the legal adoption of Qualifications needed for a Filipino or alien to adopt
Amy by Andrew?
b. To the legal adoption of Sandy by Andrew and 1. At least 27 years old and 16 years older than the child
Elena? to be adopted at the time of the application unless:
c. In his old age, can Andrew be legally entitled to a. adopter is the parent by nature of the child;
claim support from Amy, Jon, Ryan, Vina, Wilma b. adopter is the spouse of the parent by nature of
and Sandy assuming that all of them have the the child to be adopted
means to support him? 2. If married, his spouse must jointly file for adoption;
d. Can Amy, Jon, Ryan, Vina, Wilma and Sandy legally 3. Has the capacity to act or assume all rights and
claim support from each other? responsibilities of parental authority;
e. Can Jon and Jane legally marry? (2008 Bar 4. Not been convicted of a crime involving moral
Question) turpitude;
5. Eligible to adopt under his national law;
A: 6. In a position to provide for proper care and support
a. No, there is no legal obstacle to the legal adoption of and give necessary moral values;
Amy by Andrew. While a person of age may not be 7. Agrees to uphold the basic rights of the child
adopted, Amy falls within two exceptions: (1) she is mandated by the UN convention of rights of Child and
an illegitimate child and she is being adopted by her the Philippine Laws;
illegitimate father to improve her status; and (2) even 8. Comes from a country with which the Philippines has
on the assumption that she is not an illegitimate child diplomatic relations and adoption is allowed under
of Andrew, she may still be adopted, although of legal his national law;
age, because she has been consistently considered and 9. Possesses all the qualifications and none of the
treated by the adopter as his own child since minority. disqualifications under the law or other applicable
In fact, she has been living with him until now. Philippine laws.

b. Yes. There is a legal obstacle to the adoption of Sandy Necessity of written consent for adoption in inter-
by Andrew and Elena. Andrew and Elena cannot adopt country adoption
jointly because they are not married.
The written consent of the following is necessary for
c. Yes. Andrew can claim support from all of them, adoption:
except from Sandy, who is not his legitimate, 1. Written consent of the adopters biological or adopted
illegitimate or adopted child. children above ten (10) years of age in the form of
sworn statement is required to be attached to the
d. Yes. Amy, Jon, Ryan, Vina and Wilma can ask support application to be filed with the Family Court or Inter-
from each other because they are half-blood brothers Country Adoption Board
and sisters, and Vina and Wilma are full-blood sisters 2. If a satisfactory pre-adoptive relationship is formed
(Art. 195 [5], FC), but not Sandy who is not related to between the applicant and the child, the written
any of them. consent to the adoption executed by the DSWD is
e. Yes. Jon and Jane can legally marry because they are
not related to each other. Jane is not a daughter of Q: Sometime in 1990, Sarah, born a Filipino but by
Andrew. then a naturalized American citizen, and her American
husband Sonny Cruz, filed a petition in the Regional
INTERCOUNTRY ADOPTION ACT OF 1995 Trial Court of Makati, for the adoption of the minor
(R.A. 8043) child of her sister, a Filipina, can the petition be
granted? (2000 Bar Question)
Inter-Country Adoption
A: It depends. If Sonny and Sarah have been residing in
It is a socio-legal process of adopting a Filipino child by a the Philippines for at least 3 years prior to the effectivity of
foreigner or a Filipino citizen permanently residing abroad R.A. 8552, the petition may be granted. Otherwise, the
where the petition is filed, the supervised trial custody is petition cannot be granted because the American husband
undertaken, and the decree of adoption is issued outside is not qualified to adopt.
the Philippines (Sec. 3(a), RA 8043).
While the petition for adoption was filed in 1990, it was
considered refi led upon the effectivity of R.A. 8552.
This is the law applicable, the petition being still pending
with the lower court. Under the Act, Sarah and Sonny must
adopt jointly because they do not fall in any of the


exceptions where one of them may adopt alone. When Results of Trial Custody
husband and wife must adopt jointly, the Supreme Court
has held in a line of cases that both of them must be 1. If unsatisfactory the relationship shall be suspended
qualified to adopt. While Sarah, an alien, is qualified to by the board and the foreign adoption agency shall
adopt, for being a former Filipino citizen who seeks to arrange for the childs voluntary care.
adopt a relative within the 4th degree of consanguinity or 2. If satisfactory the Board shall submit the written
affinity, Sonny, an alien, is not qualified to adopt because consent of the adoption to the foreign adoption
he is neither a former Filipino citizen nor married to a agency within 30 days after the request of the latters
Filipino. One of them not being qualified to adopt, their request.
petition has to be denied. However, if they have been
residents of the Philippines 3 years prior to the effectivity NOTE: The child shall be repatriated as a last resort if
of the Act and continues to reside here until the decree of found by the ICAB to be in his/her interests.
adoption is entered, they are qualified to adopt the
nephew of Sarah under Sec. 7(b) thereof, and the petition SUPPORT
may be granted.
It comprises everything indispensable for sustenance,
Adoptee dwelling, clothing, medical attendance and transportation,
in keeping with the financial capacity of the family,
Only a legally free child may be adopted provided the including the education of the person entitled to be
following are submitted: supported until he completes his education or training for
1. Child study; some profession, trade or vocation, even beyond the age of
2. Birth certificate/ foundling certificate; majority (Art. 194, FC).
3. Deed of Voluntary Commitment/Decree of
Abandonment/Death Certificate of parents; Characteristics of support
4. Medical evaluation or history;
5. Psychological evaluation; 1. Personal
6. Recent photo; 2. Reciprocal on the part of those who are by law bound
to support each other
Child 3. Intransmissible
4. Mandatory
A child is any person below 15 years old. 5. Provisional character of support judgment
6. Exempt from attachment or execution
NOTE: No child shall be matched to a foreign adoptive 7. Not subject to waiver or compensation
family unless it is satisfactorily shown that the child cannot
be adopted in the Philippines. COMPOSITION OF SUPPORT

GR: There shall be no physical transfer of a voluntarily Composition of support

committed child earlier than 6 months from the date of
execution of Deed of Voluntary Commitment. Support comprises everything indispensable for:
1. Sustenance
XPN: 2. Dwelling
1. Adoption by relative; 3. Clothing
2. Child with special medical condition. 4. Medical attendance
5. Education includes schooling or training for some
INTER-COUNTRY ADOPTION BOARD profession, trade or vocation, even beyond the age of
Function of Inter-Country Adoption Board 6. Transportation includes expenses going to and from
school, or to from place of work
The Inter-Country Adoption Board (ICAB) acts as the
central authority in matters relating to inter-country Kinds of support
adoption. The Board shall ensure that all the possibilities
for adoption of the child under the Family Code have been 1. Legal required or given by law;
exhausted and that the inter-country adoption is in the 2. Judicial required by court; May be:
best interest of the child a. Pendente lite
b. In a final judgment
Trial custody 3. Conventional by agreement.

It is the pre-adoptive relationship which ranges 6 months Rules on support of illegitimate children of either
from the time of the placement. It starts from the actual spouse
transfer of the child to the applicant who, as actual
custodian, shall exercise substitute parental authority over It depends upon the property regime of the spouses.
the person of the child
1. ACP or CP- For the support of the following:


a. spouses; not apply if the
b. common children of the spouses; and spouses are under ACP
c. legitimate children of either spouse based on Art. 153.
NOTE: If the community property or the conjugal From the
partnership is insufficient to cover them, the spouses From the
From the community separate
shall be solidarily liable for the unpaid balance with community
property properties of
their separate properties. property
the spouses

2. Separate property of person- For the support of the Liability to support

The liability to support should be observed in the following
a. illegitimate children; order:
b. legitimate ascendants; 1. Spouse
c. descendants, whether legitimate or illegitimate; 2. Descendants in the nearest degree
d. brothers and sisters, whether legitimately or 3. Ascendants in the nearest degree
illegitimately related (Rabuya, 2009). 4. Brothers and sisters
PERSONS OBLIGED TO GIVE SUPPORT Q: Belen, in behalf of her minor children, instituted a
petition for declaration of legitimacy and support
Persons obliged to support each other against Federico, their alleged father, and Francisco,
father of Federico. It appears that the marriage of the
1. Spouses; two was annulled due to the minority of Federico. May
Francisco be ordered to give support?
NOTE: The spouse must be the legitimate spouse in
order to be entitled to support A: Yes. There appears to be no dispute that the children
are indeed the daughters of Federico by Belen. Under Art.
2. Legitimate ascendants & descendants; 199 of the FC, Whenever two or more persons are obliged
3. Parents and their legitimate children, and the to give support, the liability shall devolve upon the
legitimate and illegitimate children of the latter; following persons in the following order herein provided:
4. Parents and their illegitimate children, and the 1. The spouse;
legitimate and illegitimate children of the latter; 2. The descendants in the nearest degree;
5. Legitimate brothers and sisters whether full or half- 3. The ascendants in the nearest degree: and
blood (Art. 195, FC). 4. The brothers and sisters.
NOTE: Brothers and sisters not legitimately related The obligation to give support rests principally on those
likewise bound to support each other. However, when more closely related to the recipient. However, the more
the need for support of the brother or sister, being of remote relatives may be held to shoulder the
age, is due to a cause imputable to the claimants fault responsibility should the claimant prove that those who
or negligence, in this case, the illegitimate brother or are called upon to provide support do not have the means
sister has no right to be supported (Rabuya, 2009). to do so. Here, since it has been shown that the girls'
father, Federico, had no means to support them, then
Sources of support Francisco, as the girls grandfather, should then extend the
support needed by them.
During NOTE: The second option in Art. 204 of the FC, that of
Pending Litigation After Litigation
Marriage taking in the family dwelling the recipient, is unavailing in
Spouses this case since the filing of the case has evidently made the
ACP GR: No relations among the parties bitter and unpleasant
GR: From the obligation to (Mangonon, et al. v. CA, et al., G.R. No. 125041, Jun. 30,
community property support 2006).
XPN: If there is Q: Marcelo and Juana called Dr. Arturo to their house
XPN: If Art. 203
Legal to render medical assistance to their daughter-in-law
applies, that if the
Separation. In who was about to give birth to a child. He performed
claimant spouse is the
From the which case, the the necessary operation. When Dr. Arturo sought
guilty spouse, he/she
community court may payment, Marcelo and Juana refused to pay him
is not entitled to
property require the without giving any good reason. Who is bound to pay
guilty spouse to the bill for the services rendered by Arturo?
give support
Support is considered A: Her husband, not her father and mother- in-law. The
an advance of such rendering of medical assistance in case of illness is
spouses share. comprised among the mutual obligations to which the
spouses are bound by way of mutual support (Arts. 142
NOTE: The rule does


and 143). If every obligation consists in giving, doing or Mutual support of the spouses after the final judgment
not doing something (Art. 1088), and spouses are mutually granting the petition for legal separation, annulment
bound to support each other, there can be no question but and declaration of nullity of marriage
that, when either of them by reason of illness should be in
need of medical assistance, the other is under the GR: Spouses are no longer obliged to render mutual
unavoidable obligation to furnish the necessary services of support after final judgment. The obligation of mutual
a physician in order that health may be restored, and he or support ceases after final judgment.
she may be freed from the sickness by which life is
jeopardized. XPN: In case of legal separation the Court may order that
the guilty spouse shall give support to the innocent one.
Q: Cheryl married Edward Lim and they begot three
children. Cheryl, Edward and their children lived at Effect of adultery of the wife
the house of Edwards parents, Prudencio and
Filomena, together with Edwards ailing grandmother Adultery of the wife is a valid defense in an action for
and her husband. Edward was employed with the support. If adultery is proved and sustained, it will defeat
family business, which provided him with a monthly the action for support. But if both are equally at fault, the
salary of P6,000 and shouldered the family expenses. principle of in pari delicto applies in which the husband
Cheryl had no steady source of income. Cheryl caught cannot avail of the defense of adultery.
Edward in a very compromising situation with the
midwife of Edwards grandmother. After a violent Q: H and W are living separately. Both had been
confrontation with Edward, Cheryl left the Forbes Park unfaithful to each other. After their separation, H had
residence. She subsequently sued, for herself and her been giving money to W for her support. Subsequently,
children, Edward, Edwards parents and grandparents W brought an action against H for separate
for support. Edward and his parents were ordered by maintenance. Will the action prosper?
the RTC to jointly provide, monthly support to Cheryl
and her children. Is the courts judgment in making A: Yes. The principle of in pari delicto is applicable. Both
Edwards parents concurrently liable with Edward to are at fault. Consequently, H cannot avail of himself of the
provide support to Cheryl and her children correct? defense of adultery of W. Besides, the act of H in giving
money to W is implied condonation of the adultery of W
A: Yes. However, the Supreme Court modified the (Amacen v. Baltazar, L-10028, May 28, 1958).
appealed judgment by limiting liability of Edwards
parents to the amount of monthly support needed by AMOUNT
Cheryls children. Edwards parents are liable to provide
support but only to their grandchildren. By statutory and Amount of support
jurisprudential mandate, the liability of ascendants to
provide legal support to their descendants is beyond cavil. Amount shall be in proportion to the resources or means
Petitioners themselves admit as much they limit their of the giver and to the necessities of the recipient (Art. 201,
petition to the narrow question of when their liability is FC).
triggered, not if they are liable.
Support may be decreased or increased proportionately
There is no showing that private respondent is without according to the reduction or increase of the necessities of
means to support his son; neither is there any evidence to the recipient and the resources of the person obliged to
prove that petitioner, as the paternal grandmother, was furnish the same (Art. 202, FC).
willing to voluntarily provide for her grandson's legal
support. Cheryl is unable to discharge her obligation to WHEN DEMANDABLE
provide sufficient legal support to her children. It also
shows that Edward is unable to support his children. This The obligation to give support is demandable from the
inability of Edward and Cheryl to sufficiently provide for time the person who has a right to receive support needs it
their children shifts a portion of their obligation to the for maintenance.
ascendants in the nearest degree, both in the paternal
(petitioners) and maternal lines, following the ordering in The support shall be paid only from the date of judicial or
Article 199 (Spouses Lim v. Cheryl Lim, G.R. No. 163209, extrajudicial demand.
October 30, 2009).
The right to support does not arise from mere fact of
SUPPORT DURING MARRIAGE LITIGATION relationship but from imperative necessity without which
it cannot be demanded. The law presumes that such
Source of support during the pendency of legal necessity does not exist unless support is demanded.
separation, annulment and declaration of nullity of
marriage proceedings OPTIONS
The spouses and their common children shall be
supported from the properties of the absolute community Options given to persons giving support
or the conjugal partnership.
1. To give a fixed monthly allowance; or
2. To receive and maintain the recipient in the givers
home or family dwelling (Art. 204, FC).


Edward assails the grant of the support in arrears as
Q: What if support is given by a stranger without the erroneous since under Art. 203 of the FC, there was
knowledge of the person obliged to give support? never any demand for support, judicial or extra-
judicial, from them. Is his contention right?
GR: The stranger shall have the right of reimbursement. A: No. Edward could not possibly expect his daughters to
demand support from him considering their tender years
XPN: Unless it appears that he gave it without any at the time that he abandoned them. In any event, the
intention of being reimbursed (Art. 206, FC). mother of the girls had made the requisite demand for
material support although this was not in the standard
Q: What if the person obliged to give support unjustly form of a formal written demand. Asking one to give
refuses or fails to give support when urgently needed? support owing to the urgency of the situation is no less a
demand just because it came by way of a request or a plea
A: Any third person may furnish support to the needy (Lacson v. Lacson, et al., G.R. No. 150644, August 28, 2006).
individual, with a right of reimbursement (Art. 207, FC).
Q: Noel helped Lea by extending financial help to
ATTACHMENT support Leas children with Edward. May Noel seek
reimbursement of his contributions? If yes, from
Attachment or execution of the right to receive whom may he do so?
A: Yes. Pursuant to Art. 207 of the FC, Noel can rightfully
GR: The right to receive support and any money or exact reimbursement from Edward. This provision reads
property obtained as support cannot be attached nor be that "[W]hen the person obliged to support another unjustly
subject to execution to satisfy any judgment against the refuses or fails to give support when urgently needed by the
recipient. latter, any third person may furnish support to the needy
individual, with right of reimbursement from the person
XPN: In case of contractual support or support given by obliged to give support." The resulting juridical relationship
will, the excess in amount beyond that required for legal between the Edward and Noel is a quasi-contract, an
support shall be subject to levy on attachment or equitable principle enjoining one from unjustly enriching
execution. himself at the expense of another (Lacson v. Lacson, et al.,
GR No. 150644, August 28, 2006).
NOTE: Contractual support shall be subject to adjustment
whenever modification is necessary due to changes in Q: Fe and her son Martin sued Martins alleged
circumstances beyond the contemplation of the parties biological father Arnel for support. Arnel denied
having sired Martin, arguing that his affair and
Q: Jurisdictional questions may be raised at any time. intimacy with Fe had allegedly ended in long before
What is the exception with respect to the provisional Martins conception. As a result, Fe and Martin moved
character of judgment for support and the application for the issuance of an order directing all the parties to
of estoppel? submit themselves to DNA paternity testing. The said
motion was granted by the court. Did the order of the
A: Judgment for support is always provisional in character. court convert the complaint for support to a petition
Res Judicata does not apply. The lower court cannot grant a for recognition?
petition based on grounds, such as bigamy, not alleged in
the petition. Such a decision based on grounds not alleged A: The assailed order did not convert the action for
in the petition is void on the ground of no jurisdiction. support into one for recognition but merely allowed Fe to
prove their cause of action. But even if the order effectively
However, if the lower courts void decision is not assailed integrated an action to compel recognition with an action
on appeal which dealt only with the matter of support, the for support, such was valid and in accordance with
losing party is now estopped from questioning the jurisprudence. In Tayag v. Court of Appeals (209 SCRA 665),
declaration of nullity and the SC will not undo the the Supreme Court allowed the integration of an action to
judgment of the RTC declaring the marriage null and void compel recognition with an action to claim one's
for being bigamous. inheritance. A separate action will only result in a
multiplicity of suits. Furthermore, the declaration of
It is axiomatic that while a jurisdictional question may be filiation is entirely appropriate to the action for support
raised at any time, this however admits of an exception (Agustin v. CA, G.R. No. 162571, June 15, 2005).
where estoppel has supervened (Lam v. Chua, G.R. No.
131286, March 18, 2004). Q: Can DNA testing be ordered in a proceeding for
support without violating the constitutional right
Q: Edward abandoned his legitimate children when against self-incrimination?
they were minors. After 19 years from the time
Edward left them, they, through their mother, finally A: Yes. In People v. Yatar (428 SCRA 504), the Supreme
sued him for support, which the court granted. The Court had already upheld the constitutionality of
court ordered him to pay 2M pesos as support in compulsory DNA testing and the admissibility of the
arrears. results thereof as evidence. Moreover, it has mostly been
in the areas of legality of searches and seizure and in the


infringement of privacy of communication where the waiver of parental authority only in cases of adoption,
constitutional right to privacy has been critically at issue. guardianship and surrender to a children's home or an
orphan institution (Arts. 222-224, FC; Act No. 3094).
If, in a criminal case, an accused whose very life is at stake
can be compelled to submit to DNA testing, so much more Visitation rights
so may a party in a civil case, who does not face such dire
consequences, be likewise compelled. DNA testing and its It is the right of access of a noncustodial parent to his or
results is now acceptable as object evidence without her child or children.
running afoul self-incrimination rights of a person (Agustin
v. CA, GR No. 162571, June 15, 2005). Q: Who are entitled of visitation rights?

PARENTAL AUTHORITY A: The following are entitled for visitation rights:

1. The non-custodial parent in cases of:
Parental authority a. Legal separation
b. Separation de facto
Parental authority refers to mass of rights and obligations c. Annulment
which parents have in relation to the person and property d. Declaration of nullity on the ground of
of their children until the latter reaches the age of psychological incapacity or failure to comply with
majority, the obligational aspect is now supreme. In other the requirements of Article 52
words, the rights of the parents are but ancillary to the 2. Illegitimate father over his illegitimate child
proper discharge of parental duties to their children under
parental authority NOTE: In case of annulment or declaration of absolute
nullity of marriage, Article 49 of the Family Code grants
GENERAL PROVISIONS visitation rights to a parent who is deprived of custody of
his children. Such visitation rights flow from the natural
Patria potestas right of both parent and child to each others company.
There being no such parent-child relationship between
The total rights of parents over the person and property of them, a person has no legally demandable right of
their minor child. visitation (Concepcion vs. Court of Appeals, G.R. 123450,
August 31, 2005).
Parental authority includes
Q: Carlitos Silva and Suzanne Gonzales had a live-in
1. Caring for and rearing of such children for civic relationship. They had two children, namely, Ramon
consciousness and efficiency; Carlos and Rica Natalia. Silva and Gonzales eventually
2. Development of their moral, mental and physical separated. They had an understanding that Silva
character and well-being. would have the children in his company on weekends.
Silva claimed that Gonzales broke that understanding
Characteristics of parental authority on visitation rights. Hence, Silva filed a petition for
custodial rights over the children before the RTC. The
1. Jointly exercised by the father and mother; petition was opposed by Gonzales who claimed that
2. Natural right and duty of the parents; Silva often engaged in gambling and womanizing
3. GR: Cannot be Renounced, transferred or waived; which she feared could affect the moral and social
values of the children. In the meantime, Suzanne had
XPN: In cases authorized by law such as in cases of gotten married to a Dutch national. She eventually
adoption, guardianship and surrender to a children's immigrated to Holland with her children Ramon
home or an orphan institution (Santos v. CA, G.R. No. Carlos and Rica Natalia. Can Silva be denied visitation
113054, March 16, 1995). rights?

4. Purely personal; A: GR: No.

5. Temporary.
XPN: If the fears and apprehensions were unfounded as to
Exercise of parental authority the fathers corrupting influence over the children and if it
is proven therefore that indeed the father is a negative
1. The father and the mother shall jointly exercise influence because of reasons like immorality, drunkenness,
parental authority over the persons of their common etc. on the children, the court, taking into consideration the
children. In case of disagreement, the fathers decision best interest of the children, can deny his petition for the
shall prevail unless there is a judicial order to the exercise of his visitation rights (Silva v. CA, G.R. No. 114742,
contrary. July 17, 1997).
2. If the child is illegitimate, parental authority is with
the mother. Parental preference rule

NOTE: Parental authority and responsibility are The natural parents, who are of good character and who
inalienable and may not be transferred or renounced can reasonably provide for the child are ordinarily entitled
except in cases authorized by law. The right attached to to custody as against all persons.
parental authority, being purely personal, the law allows a


Exercise of parental authority in case of absence, with a communicable disease (Pablo-Gualberto vs.
death, remarriage of either parent, or legal or de facto Gualberto, G.R. 154994 & 156254, June 28, 2005).
separation of parents
NOTE: Mere fact that the mother is a lesbian is not a
1. Absence or death of either parent parent present compelling reason to deprive her of custody without
shall continue exercising parental authority showing that she carried on her purported relationship
2. Remarriage of either parent it shall not affect the with a person of the same sex in the presence of the child
parental authority over the children, unless the court or under circumstances not conducive to the child's proper
appoints another person to be the guardian of the moral development. not even the fact that a mother is a
person or property of the children (Art. 213, FC). prostitute or has been unfaithful to her husband would
3. Legal or de facto separation of parents the parent render her unfit to have custody of her minor child. To
designated by the court. deprive the wife of custody, the husband must clearly
establish that her moral lapses have had an adverse effect
Considerations in the designation of child custody on the welfare of the child or have distracted the offending
spouse from exercising proper parental care (Rabuya,
The Court shall take into account all relevant 2009).
considerations in the designation of the parent, especially
the choice of the child over seven years of age except when Q: If the parents are separated de facto, who between
the parent chosen is unfit. them has custody over their child/ children?

NOTE: The relevant Philippine law on child custody for A: In the absence of a judicial grant of custody to one
spouses separated in fact or in law (Art. 213, 2nd par., FC) is parent, both of them have custody over their
also undisputed: no child under seven years of age shall child/children
be separated from the mother x x x. (This statutory
awarding of sole parental custody to the mother is The parent who has been deprived of the rightful custody
mandatory, grounded on sound policy consideration, of the child may resort to the remedy of habeas corpus
subject only to a narrow exception not alleged to obtain (Salientes v. Abanilla, G.R. No. 162734, August 29, 2006).
here.) Clearly then, the Agreements object to establish a
post-divorce joint custody regime between respondent Q: The petition for declaration of nullity of marriage
and petitioner over their child under seven years old filed by Crisanto against his wife included a prayer for
contravenes Philippine law. The Philippine courts do not custody pendente lite of their 4-year old son. The
have the authority to enforce an agreement that is supplication for custody was based on the alleged
contrary to law, morals, good customs, public order, or immorality of the mother who, the husband asserted,
public policy (Dacasin v. Dacasin, G.R. No. 168785, February was a lesbian. However, the trial court citing Art. 213
5, 2010). of the FC, denied Crisanto's prayer for temporary
custody of his son, there having been no compelling
Tender-Age Presumption reason to so order it. Was the trial court correct in
denying Crisantos prayer for temporary custody?
GR: No child below 7 years of age shall be separated from
the mother because the law presumes that the mother is A: Yes. The petitioner failed to overcome the so-called
the best custodian. "tender-age presumption" rule under Art. 213 of the FC.
There was no compelling evidence of the mother's
XPN: When the court finds compelling reasons to consider unfitness. Sexual preference or moral laxity alone does not
otherwise prove parental neglect or incompetence to deprive the
wife of custody, the husband must clearly establish that
NOTE: The paramount consideration in matters of custody her moral lapses have had an adverse effect on the welfare
of a child is the welfare and well-being of the child of the child or have distracted the errant spouse from
exercising proper parental care.
The use of the word shall in Art. 213 of the FC is
mandatory in character. It prohibits in no uncertain terms NOTE: The general rule that children less than 7 years of
the separation of a mother and her child below 7 years, age shall not be separated from the mother finds its raison
unless such separation is grounded upon compelling d'etre in the basic need of minor children for their
reasons as determined by a court (Lacson v. San Jose- mother's loving care. This is predicated on the "best
Lacson, G.R. No. L-23482, August 30, 1968). interest of the child" principle which pervades not only
child custody cases but also those involving adoption,
Compelling Reason guardianship, support, personal status and minors in
conflict with the law (Pablo-Gualberto v. Gualberto, G.R. No.
The so-called tender-age presumption under Article 213 154994/G.R. No. 156254, Jun. 28, 2005).
of the Family Code may be overcome only by compelling
evidence of the mothers unfitness. The mother has been SUBSTITUTE AND SPECIAL PARENTAL AUTHORITY
declared unsuitable to have custody of her children in one
or more of the following instances: neglect, abandonment, Substitute Parental Authority
unemployment, immorality, habitual drunkenness, drug
addiction, maltreatment of the child, insanity or affliction It is the parental authority which the persons designated
by law may exercise over the persons and property of


unemancipated children in case of death, absence or
unsuitability of both parents or in default of a judicially Special Parental Authority
appointed guardian.
It is the parental authority granted by law to certain
Order of substitute parental authority persons, entities or institutions in view of their special
relation to children under their supervision instruction or
1. Surviving Grandparent; custody. It is denominated as special because it is limited
and is present only when the child is under their
NOTE: The law considers the natural love of a parent supervision instruction or custody. It can also co-exists
to outweigh that of the grandparents, such that only with the parents parental authority
when the parent present is shown to be unfit or
unsuitable may the grandparents exercise substitute Persons who may exercise special parental authority
parental authority (Santos v. CA, G.R. No. 113054,
March 16, 1995). 1. The school
2. School administrators
2. Oldest brother or sister, over 21 years unless unfit or 3. School teachers
disqualified 4. Individual, entity or institution engaged in child care
3. Actual Custodian over 21 year unless unfit or
disqualified (Art. 216, FC) Scope of special parental authority
4. In case of foundlings, abandoned, neglected or abused
children similarly situated, parental authority shall be The scope of special parental authority and responsibility
entrusted in summary judicial proceedings to heads of applies to all authorized activities, whether inside or
childrens homes, orphanages and similar institutions outside the premises of the school, entity or institution.
duly accredited by the proper government agency
(Art. 217, FC). NOTE: The nature of the liability of persons having special
parental authority over said minors for their acts or
Q: Bonifacia Vancil, a US citizen, is the mother of omissions causing damage to another is principal and
Reeder C. Vancil, a US Navy serviceman who died in the solidary. The parents, judicial guardians or the persons
USA on December 22, 1986. During his lifetime, Reeder exercising substitute parental authority over said minor
had two children named Valerie and Vincent by his shall be subsidiarily liable (Art. 219, FC).
common-law wife, Helen G. Belmes. Bonifacia obtained
a favorable court decision appointing her as legal and Substitute parental authority vis--vis Special parental
judicial guardian over the persons and estate of authority
Valerie Vancil and Vincent Vancil, Jr. She alleged that
Helen was morally unfit as guardian of Valerie SUBSTITUTE PARENTAL SPECIAL PARENTAL
considering that Helens live-in partner raped Valerie AUTHORITY AUTHORITY
several times. Can Bonifacia exercise substitute Exercised in case of: DAU 1. Exercised
parental authority over Valerie and Vincent? concurrently with the
1. Death, parental authority of
A: Bonifacia, as the surviving grandparent, can exercise 2. Absence, or the parents;
substitute parental authority only in case of death, absence 3. Unsuitability of 2. Rests on the theory
or unsuitability of Helen. Considering that Helen is very parents. that while the child is
much alive and has exercised continuously parental in the custody of the
authority over Vincent, Bonifacia has to prove, in asserting person exercising
her right to be the minors guardian, Helens unsuitability. special parental
Bonifacia, however, has not proffered convincing evidence authority, the parents
showing that Helen is not suited to be the guardian of temporarily
Vincent. Bonifacia merely insists that Helen is morally relinquish parental
unfit as guardian of Valerie considering that her live-in authority over the
partner raped Valerie several times. (But Valerie, being child to the latter.
now of major age, is no longer a subject of this
Even assuming that Helen is unfit as guardian of minor
Vincent, still Bonifacia cannot qualify as a substitute Right to Childs Custody
guardian. She is an American citizen and a resident of
Colorado. Obviously, she will not be able to perform the The right of parents to the custody of their minor children
responsibilities and obligations required of a guardian. In is one of the natural rights incident to parenthood, a right
fact, in her petition, Bonifacia admitted the difficulty of supported by law and sound public policy. The right is an
discharging the duties of a guardian by an expatriate, like inherent one, which is not created by the state or decisions
her. To be sure, she will merely delegate those duties to of the courts, but derives from the nature of the parental
someone else who may not also qualify as a guardian relationship (Sagala-Eslao vs Court of Appeals, G.R. 116773,
(Vancil v. Belmes, G.R. No. 132223, June 19, 2001). January 16, 1997).


Parents right to custody of the child
NOTE: Parents, judicial guardians or those exercising
GR: Parents are never deprived of the custody and care of substitute parental authority over the minor are
their children. subsidiarily liable for said acts and omissions of the minor.

XPNS: Q: Jayson and his classmates were conducting a

1. For cause science experiment about fusion of sulphur powder
and iron fillings under the tutelage of Tabugo, the
NOTE: the law presumes that the childs welfare will subject teacher and employee of St. Joseph College.
be best served in the care and control of his parents. Tabugo left her class while the experiment was
ongoing without having adequately secured the
2. If in consideration of the childs welfare or well-being, students from any untoward incident or occurrence. In
custody may be given even to a non-relative. the middle of the experiment, Jayson checked the
result of the experiment by looking into the test tube
Basis for the duty to provide support with magnifying glass and it was moved towards his
eyes. At that instance, the compound spurted from the
Family ties or relationship, not parental authority. test tube and several particles hit Jaysons eyes. His
left eye was chemically burned, for which he had to
NOTE: The obligation of the parents to provide support is undergo surgery and spend for medication. Jayson
not coterminous with the exercise of parental authority. filed a complaint for damages against the school and
Tabugo. Can the said school and its teacher, Tabugo, be
Rule on the parents duty of representation held liable for the unfortunate incident of Jayson?

GR: Parents are duty-bound to represent their minor A: Yes. The proximate cause of the students injury was the
children in all matters affecting their interests; concurrent failure of petitioners to prevent the foreseeable
mishap that occurred during the conduct of the science
NOTE: This duty extends to representation in court experiment. Petitioners were negligent by failing to
litigations. exercise the higher degree of care, caution and foresight
incumbent upon the school, its administrators and
XPN: A guardian ad litem may be appointed by the court to teachers. Art. 218 of the FC, in relation to Art. 2180 of the
represent the child when the best interest of the child so NCC, bestows special parental authority on a school, its
requires. administrators and teachers, or the individual, entity or
institution engaged in child care, and these persons have
Scope of the parents right to discipline the child responsibility over the minor child while under their
supervision, instruction or custody. Authority and
Persons exercising parental authority may: responsibility shall apply to all authorized activities
1. Impose discipline on minor children as may be whether inside or outside the premises of the school,
required under the circumstances. entity or institution.
2. Petition the court for the imposition of appropriate
disciplinary measures upon the child, which include In this case, the petitioners negligence and failure to
the commitment of the child in entities or institutions exercise the requisite degree of care and caution was
engaged in child care or in childrens homes duly demonstrated by the following: (i) petitioner school did
accredited by the proper government agency. not take affirmative steps to avert damage and injury to its
students although it had full information on the nature of
NOTE: Such commitment must not exceed 30 days. dangerous science experiments conducted by the students
during class; (ii) petitioner school did not install safety
Limitations on the exercise of the right to discipline measures to protect the students who conduct
the child and its consequences experiments in class; (iii) petitioner school did not provide
protective gears and devices, specifically goggles, to shield
Persons exercising such right are not allowed to: students from expected risks and dangers; and (iv)
1. Treat the child with excessive harshness or cruelty; or petitioner Tabugo (the teacher) was not inside the
2. Inflict corporal punishment. classroom the whole time her class conducted the
experiment, specifically, when the accident involving the
Otherwise, the following are its consequences: student occurred (St. Josephs College v. Miranda, G.R. No.
1. Parental authority may be suspended; 182353, June 29, 2010).
2. Parent concerned may be held criminally liable for
violation of RA 7160 (Special Protection of Children EFFECTS OF PARENTAL AUTHORITY UPON THE
against Abuse, Exploitation and Discrimination Act) PROPERTY OF THE CHILDREN

Liability of persons exercising special parental Parental authority upon the property of the children
authority over the child
Legal guardianship can be exercised by the father or
They are principally and solidarily liable for damages mother, jointly, without need of court appointment over
caused by the acts or omissions of the child while under the property of an unemancipated child.
their supervision, instruction or custody.


NOTE: In case of disagreement, the fathers decision shall 2. Temporarily: it may be revived
prevail unless there is a judicial order to the contrary. a. Adoption of the child;
b. Appointment of general guardian;
Kinds of properties of a minor c. Judicial declaration of abandonment of the child
in a case filed for the purpose;
ADVENTITIOUS PROSFECTITIOUS d. Final judgment divesting parents of parental
1. Earned or acquired by 1. Property given by the
e. Incapacity of parent exercising parental
the child through his parents to the child for
work or industry by the latter to administer;
f. Judicial declaration of absence or incapacity of
onerous or gratuitous 2. Owned by the parents;
person exercising parental authority (Art. 229,
title; 3. Parents are
2. Owned by the child; usufructuary;
3. Child is also the 4. Property administered
NOTE: In case of temporary termination of parental
usufructuary, but the by the child.
authority, parental authority may be revived thru a
childs use of the
court judgment (Rabuya, 2009).
property shall be
secondary to all
Grounds for suspension of PA
collective daily needs of
the family;
1. Gives corrupting orders, counsel or example;
4. Administered by the
2. Treats child with excessive harshness and cruelty;
3. Subjects/allows child be subjected to acts of
lasciviousness (Art. 231, FC);
Necessity of posting a bond by the parents 4. Conviction of crime with penalty of civil interdiction
(Art. 230, FC);
A parent is required to post a bond if the market value of 5. Culpable negligence of parent or person exercising
the property or the annual income of the child exceeds Php parental authority;
50,000. 6. Compels the child to beg.
NOTE: The bond shall not be less than 10% of the value of NOTE: If the person exercising PA has subjected the child
the property or annual income (Art. 225, FC). or allowed him to be subjected to sexual abuse, he/she
shall be permanently deprived of PA.
Rules regarding the use of the childs property
If the ground for suspension of parental authority is civil
1. The property of minor children shall be devoted to interdiction, the suspension is automatic so as its
their support and education unless the title or reinstatement.
transfer provides otherwise.
2. The parents have the right to use only the fruits and Revocation of suspension of PA and its revival
income of said property for the following purposes:
a. Primarily, to the childs support; The suspension may be revoked and parental authority
b. Secondarily, to the collective daily needs of the revived by filing a case for the purpose, or in the same
family. proceeding if the court finds that the cause therefore had
ceased and will not be repeated.
Rule on lease of property belonging to minor children
Transfer or renunciation of PA
GR: The parents, as legal guardians of the minors
property, may validly lease the same, even without court GR: Parental authority and responsibility are inalienable
authorization, because lease has been considered as an act and may not be transferred and renounced.
of administration.
XPN: In cases authorized by law.
XPNs: Court authorization is required if:
1. If the lease will be recorded in the Registry of NOTE: Parents may exercise authority over their
Property; childrens property.
2. If the lease is for a period of more than one year,
because this is already deemed an act of dominion. Loss of parental authority over the minor under the
Child Abuse Law (R.A. 7610)
AUTHORITY When an ascendant, stepparent or guardian of the minor,
induces, delivers or offers him to any person who would
Grounds for Termination of Parental Authority (PA) keep or have in his company such minor, twelve (12) years
or under or who in ten (10) years or more his junior, in
1. Permanently: any public or private place, hotel, motel, beer joint,
a. Death of parents; discotheque, cabaret, pension house, sauna or massage
b. Emancipation of the child; parlor, beach and/or other tourist resort or similar places.
c. Death of child (Art. 228, FC).


Corporal punishment to any of the parties therein (Republic v. Bermudez-
Lorinom 449 SCRA 57, 2005).
It is the infliction of physical disciplinary measures to a
student. This is absolutely prohibited under the Family 5. Action of a child for delivery of presumptive legitime
Code (Sta. Maria, Jr., Persons and Family Relations Law). 6. Judicial determination of family domicile in case of
disagreement between the spouses
NOTE: While a teacher is administratively liable or civilly 7. Objection of one spouse as to the profession,
liable in the event that he or she inflicts corporal occupation, business or activity of the other (Art. 73,
punishment to a student, it has been held that where there FC in relation to Art. 253, FC).
was no criminal intent on the part of the teacher who 8. Action entrusting parental authority over foundlings,
angrily and repeatedly whipped a student resulting in abandoned, neglected or abused children to heads of
slight physical injuries to the said student and where the institutions (Art. 217, FC in relation to Art. 253, FC).
purpose of the teacher was to discipline a student, the said 9. Annulment by wife of the husband's decision in the
teacher cannot be held feloniously liable for the criminal administration and enjoyment of community or
offense of slight physical injuries (Bagajo v. Marave, G.R. conjugal property (Arts. 96 and 124, FC).
No. L-33345, November 20, 1978, also cited by Sta. Maria, Jr., 10. Appointment of one of the spouses as sole
Persons and Family Relations Law). administrator but only when the other spouse is
absent, or separated in fact, or has abandoned the
EMANCIPATION other or the consent is withheld (Uy v. CA, G.R. No.
109557, November 29, 2000).
Q: W filed a petition with the RTC under the rules on
It is the release of a person from parental authority Summary Judicial Proceedings in the Family Law
whereby he becomes capacitated for civil life. provided for in the FC, for the declaration of the
presumptive death of her absent spouse, H, for
Emancipation takes place by attainment of majority at the purposes of remarriage, based on Art. 41 of the FC.
age of (18) eighteen years (Art. 234, FC, as amended by RA After trial, the RTC rendered a decision declaring the
6809). presumptive death of H. The Republic received a copy
of the decision on November 14, 2001. Subsequently,
Effects of emancipation the Republic filed a Notice of Appeal on November 22,
2001. The RTC held that the appeal was filed within
1. Parental authority over the person and property of the reglementary period and thus, elevated the
the child is terminated records to the Court of Appeals. However, the Court of
2. Child shall be qualified and responsible for all acts of Appeals denied the Republics appeal and accordingly
civil life, save exceptions established by existing laws. affirmed the appealed RTC decision. Did the Court of
3. Contracting marriage shall require parental consent Appeals acquire jurisdiction over the appeal on a final
until the age of 21. and executory judgment of the RTC?
4. The responsibility of parents or guardians for children
and wards below 21 under the second and third A: No. In Summary Judicial Proceedings under the Family
paragraphs of Art. 2180 of the NCC shall not be Code, there is no reglementary period within which to
derogated. perfect an appeal, precisely because judgments rendered
thereunder, by express provision of Art. 247 of the FC, are
SUMMARY JUDICIAL PROCEEDINGS IN FAMILY LAW immediately final and executory. An appellate court
CASES acquires no jurisdiction to review a judgment which, by
express provision of law, is immediately final and
Matters subject to summary proceedings executory. The right to appeal is not a natural right nor is it
a part of due process, for it is merely a statutory privilege.
1. Petition for judicial authority to administer or Since, by express mandate of Article 247 of the Family
encumber specific separate property of the Code, all judgments rendered in summary judicial
abandoning spouse and to use the fruits or the proceedings in Family Law are immediately final and
proceeds thereof for the support of the family (Arts. executory, the right to appeal was not granted to any of
100 (3) and 127 (3), FC in relation to Arts. 239 to 248, the parties therein. The Republic, as oppositor in the
FC). petition for declaration of presumptive death, should not
2. Petition for an order providing for disciplinary be treated differently. It had no right to appeal the RTC
measures over a child (Art. 223, FC in relation to Art. decision of November 7, 2001. The RTC's decision was
249, FC). immediately final and executory upon notice to the parties
3. Petition for approval of bond of parents who exercise (Republic v. Bermudez-Lorino, G.R. No. 160258, January 19,
parental authority over the property of their children 2005).
(Art. 225, FC in relation to Art. 249, FC).
4. Judicial declaration of presumptive death (Art. 41, FC) NOTE: However, an aggrieved party may file a petition for
certiorari to question abuse of discretion amounting to
NOTE: An order of the trial court granting the petition lack of discretion (Republic v. Tango, G.R. No. 161062, July
for judicial declaration of presumptive death pursuant 31, 2009).
to Art. 41 of FC is immediately final and executory
(Art. 247, FC). Hence, the right to appeal is not granted


Rule on the retroactivity of the Family Code
Rules regarding funeral
GR: The Code shall have retroactive effect.
General Guidelines:
XPN: When retroactivity would prejudice vested rights. 1. Duty and right to make arrangements in funerals in
accordance with Art. 199, FC:
Vested right a. Spouse,
b. Descendants in the nearest degree,
Some right or interest in property that has become fixed or c. Ascendants in the nearest degree,
established, and is no longer open to doubt or controversy. d. Brothers and Sisters
Rights are vested when the right to enjoyment, present or
prospective, has become the property of some person as NOTE: In case of descendants of the same degree, or
present interest. of brothers and sisters, the oldest shall be preferred.

Q: Antonia Aruego and her sister Evelyn filed a petition In case of ascendants, the paternal shall have a better
in the courts seeking Jose Aruego, Jr. and his five right (Art, 305, NCC).
children to recognize them as illegitimate children and
compulsory heirs of Jose. They claim that there is open 2. Funeral shall be:
and continuous possession of status of illegitimate a. In keeping with the social position of the
children of Jose who had an amorous relationship with deceased,
their mother Luz Fabian until the time of the death of b. In accordance with the expressed wishes of the
Jose. The court declared that Antonia Aruego is an deceased,
illegitimate daughter of the deceased with Luz Fabian c. In absence of the expressed wishes, his religious
while Evelyn is not. Antonia and Evelyn contested the beliefs or affiliation shall determine;
decision citing provisions of the Family Code d. In case of doubt, the form of funeral is to be
particularly Art. 127 on Filiation, Art. 172 on decided upon by the person obliged to make
illegitimate childrens filiation, and Art. 256 on the arrangements for the same, after consulting the
retroactivity of the code. Whether the provisions of the other members of the family (Art. 307, NCC).
Family Code can be applied retroactively and will it
impair the vested rights of the respondents? 3. Any person who:
a. shows disrespect to the dead, or
A: The action for compulsory recognition and enforcement b. wrongfully interferes with a funeral shall be
of successional rights which was filed prior to the advent liable to the family of the deceased for damages,
of the FC, must be governed by Art. 285 of the NCC and not
material and moral (Art. 309, NCC)
by Art. 175, par. 2 of the FC. The present law cannot be
given retroactive effect insofar as the instant case is 4. Funeral expenses are chargeable against the property
concerned, as its application will prejudice the vested right of the deceased. However, if the deceased is one of the
of private respondent to have her case decided under Art. spouses, they are chargeable against the conjugal
285 of the NCC. The right was vested to her by the fact that partnership property (Art. 310, NCC).
she filed her action under the regime of the NCC.
Prescinding from this, the conclusion then ought to be that Q: Adriano and Rosario are married to each other.
the action was not yet barred, notwithstanding the fact However, their marriage turned into sour and they
that it was brought when the putative father was already were eventually separated-in-fact. Years later, Adriano
deceased, since private respondent was then still a minor met Fe which he courted and eventually decided to live
when it was filed, an exception to the general rule together as husband and wife while his marriage with
provided under Art. 285 of the NCC. Hence, the trial court, Rosario is still subsisting. Adriano later died while
which acquired jurisdiction over the case by the filing of Rosario and the rest of his family are in the United
the complaint, never lost jurisdiction over the same States spending their Christmas vacation. When
despite the passage of E.O. No. 209, also known as the Rosario learned of Adrianos death, she immediately
Family Code of the Philippines (Aruego v. CA,G.R. No. called Fe for the delay of Adrianos interment which
112193, March 13, 1996). was unheeded by Fe. The remains of Adriano were
interred at the mausoleum of Fes family allegedly
NOTE: If an action for recognition was filed prior to the according to Adrianos oral request from her. Who
effectivity of the FC, Art. 173 of the FC cannot be given between Rosario and Fe is entitled to the remains of
retroactive effect because it will prejudice the vested Adriano?
rights of petitioners transmitted to them at the time of the
death of their father, Eutiquio Marquino. "Vested right" is a A: It is clear that the law gives the right and duty to make
right in property which has become fixed and established funeral arrangements to Rosario, she being the surviving
and is no longer open to doubt or controversy. It expresses legal wife of Atty. Adriano. The fact that she was living
the concept of present fixed interest, which in right reason separately from her husband and was in the United States
and natural justice should be protected against arbitrary when he died has no controlling significance. To say that
State action (Marquino v. IAC, G.R. No. 72078, June 27, Rosario had, in effect, waived or renounced, expressly or
1994). impliedly, her right and duty to make arrangements for the


funeral of her deceased husband is baseless. The right and handwritten
duty to make funeral arrangements, like any other right, instrument (Art. 176,
will not be considered as having been waived or FC, as amended by RA
renounced, except upon clear and satisfactory proof of 9255)
conduct indicative of a free and voluntary intent to that
end. While there was disaffection between Atty. Adriano Under the amendatory
and Rosario and their children when he was still alive, the provisions of RA 9255, the
Court also recognizes that human compassion, more often use of the illegitimate
than not, opens the door to mercy and forgiveness once a father's surname is
family member joins his Creator. PERMISSIVE and not
obligatory (Rabuya, 2009).
Even assuming, ex gratia argumenti, that Atty. Adriano Conceived prior to
truly wished to be buried in the Fes family plot at the Fathers
annulment of marriage
Manila Memorial Park, the result remains the same. Article Conceived after
307 simply seeks to prescribe the "form of the funeral Mothers
annulment of marriage
rites" that should govern in the burial of the deceased. The
right and duty to make funeral arrangements reside in the Rule with regard to the use of surname of a married
persons specified in Article 305 in relation to Article 199 of woman
the Family Code. Even if Article 307 were to be interpreted
to include the place of burial among those on which the FACTUAL
wishes of the deceased shall be followed, Dr. Arturo M. CIRCUMSTANCE OF THE SURNAME TO BE USED
Tolentino (Dr. Tolentino), an eminent authority on civil WIFE
law, commented that it is generally recognized that any 1. First name and
inferences as to the wishes of the deceased should be maiden name +
established by some form of testamentary disposition. As husbands surname
Article 307 itself provides, the wishes of the deceased must 2. First name +
be expressly provided. It cannot be inferred lightly, such as husbands surname
from the circumstance that Atty. Adriano spent his last 3. Husbands full name +
remaining days with Valino. It bears stressing once more prefix indicating that
that other than Valinos claim that Atty. Adriano wished to Valid marriage (before
she is his wife (e.g.
be buried at the Fes family plot, no other evidence was husband dies)
presented to corroborate it (Valino v. Adriano, G.R. No. Art. 370
4. Retain the use of her
182894, April 22, 2014). maiden name

USE OF SURNAMES *Use of husbands

surname is not a duty but
Rule with regard to the use of surname by a child who merely an option for the
is (1) legitimate, (2) legitimated, (3) adopted and (4) wife
illegitimate Wife is the Shall resume using her
guilty party maiden name
Fathers 1. Resume using her
Legitimated maiden name
Adopted Adopters 2. Continue using
Mothers or Fathers if Marriage husbands surname
requisites of R.A. 9255 are is
complied with Annulled Wife is the
Art. 371 innocent
a. Court decrees
NOTE: An illegitimate party
child shall have the b. She or the former
"option" to use the husband is married
surname of the father in again to another
the following instances: person
1. If his/her filiation has
been expressly Wife shall continue using
recognized by the Legally Separated the name and surname
father through the Art. 372 employed by her prior to
record of birth the legal separation.
appearing in the civil She may use the
register; or Widowed Spouse deceaseds husbands
2. When an admission of Art. 373 surname as though he
paternity is made by were still living.
the father in a public
Divorced (at least if they Choices same as
document or private
allow it later or for those widowed spouse.


who got divorced during when a married woman applicant may exercise the option
the Japanese occupation) to revert to the use of her maiden name. These are death of
husband, divorce, annulment, and declaration of nullity of
Grounds for change of name which have been held marriage.
In case of renewal of passport, a married woman may
1. One has Continuously used and been known since either adopt her husbands surname or continuously use
childhood by a Filipino name and was unaware of her maiden name. However, once she opted to use her
alien parentage; husbands surname in her original passport, she may not
2. The change results as a Legal consequence, as in revert to the use of her maiden name, except if any of the
legitimation; four grounds provided under R.A. 8239 is present.
3. There is a sincere desire to adopt a Filipino name to
Erase signs of former alienage, all in good faith and Further, even assuming R.A. 8239 conflicts with the Civil
without prejudicing anyone; Code, the provisions of R.A. 8239 which is a special law
4. The change will Avoid confusion; specifically dealing with passport issuance must prevail
5. The name is: over the provisions of the Civil Code which is the general
a. Ridiculous, law on the use of surnames. A basic tenet in statutory
b. Extremely difficult to write or pronounce, construction is that a special law prevails over a general
c. Dishonorable. law (Remo v. Sec. of Foreign Affairs, G.R. No. 169202, March
5, 2010).
Q: Can a person change his registered first name and
sex on the basis of a sex reassignment? Elements of usurpation of name

A: No. Before a person can legally change his given name, 1. Actual use of anothers name by the defendant;
he must present proper or reasonable cause or any 2. Use is unauthorized;
compelling reason justifying such change. In addition, he 3. Use of anothers name is to designate personality or
must show that he will be prejudiced by the use of his true identify a person.
and official name. Under the Civil Register Law, a birth
certificate is a historical record of the facts as they existed
at the time of birth. Thus, the sex of a person is determined Remedies available to the person whose name has
at birth, visually done by the birth attendant (the physician been usurped
or midwife) by examining the genitals of the infant.
Considering that there is no law legally recognizing sex 1. Civil insofar as private persons are concerned:
reassignment, the determination of a persons sex made at a. Injunction
the time of his or her birth, if not attended by error, is b. Damages
immutable (Silverio v. Republic, G.R. No. 174689, October 2. Criminal when public affairs are prejudiced.
22, 2007).
Use of anothers name is not always actionable
Procedural requirements for a petition for change of
name It is not actionable when it is used as stage, screen or pen
1. 3 years residency in the province where the change is
sought prior to the filing (Sec. 2, Rule 103, Rules of Provided:
Court); 1. Use is in good faith;
2. Must not be filed within 30 days prior to an election 2. No injury is caused to the rights of the person
(Sec. 3, Rule 103, Rules of Court); whose name was used;
3. Petition must be verified (Sec. 2, Rule 103, Rules of 3. Use is motivated by:
Court). a. Modesty
b. Desire to avoid unnecessary trouble
Q: Virginia Remo, a Filipino citizen, is married to c. Other reason not prohibited by law or
Francisco Rallonza. In her passport, the following morals.
entries appear: "Rallonza" as her surname, "Maria
Virginia" as her given name, and "Remo" as her middle MIDDLE NAME
name. Prior to the expiration of her passport, Virginia
applied for the renewal of her passport with the DFA, Middle name
with a request to revert to her maiden name and
surname in the replacement passport. Virginia, relying A middle name has practical or legal significance as it
on Article 370 of the Civil Code, contends that the use serves to identify the maternal pedigree or filiation of a
of the husbands surname by the wife is permissive person and distinguishes him from others who may have
rather than obligatory. Is Virginia correct? the same given name and surname as he has. Art. 364 of
the Civil Code states that legitimate and legitimated
A: No. A married woman has an option, but not a duty, to children shall principally use the surname of their father.
use the surname of the husband in any of the ways Art. 174 of the Family Code gives legitimate children the
provided by Art. 370 of the Civil Code. However, R.A. 8239 right to bear the surnames of the father and mother, while
or the Philippine Passport Act of 1996 limits the instances illegitimate children, under Art. 176, as amended by R.A.


9255, shall use the surname of their mother, unless their ruling upon the statutory principle that adoption statutes,
father recognizes their filiation, in which case, they may being humane and salutary, should be liberally construed
bear the father's surname. In the case of these children, to carry out the beneficent purposes of adoption. The
their registration in the civil registry requires that their modern trend is to consider adoption not merely as an act
middle names be indicated therein, apart of course from to establish a relationship of paternity and filiation, but
their given names and surnames (In re: Petition for Change also as an act which endows a child with legitimate status
of Name and/or Correction of Entry in the Civil Registry of (In the Matter of the Adoption of Stephanie Nathy Astorga
Julian Lin Carulasan Wang, 454 SCRA 155). Garcia, G.R. No. 148311. March 31, 2005).

Q: Does an illegitimate child have a middle name? Q: The petition filed by the parents in behalf of their
minor son Julian Lin Carulasan Wang sought the
A: No. An illegitimate child whose filiation is not dropping of the latter's middle name, "Carulasan." The
recognized by the father bears only a given name and his parents averred that their plan for Julian to study in
mother's surname, and does not have a middle name. It is Singapore and adjust to its culture necessitates the
only when the illegitimate child is legitimated by the drop since in that country, middle names or the
subsequent marriage of his parents or acknowledged by mother's surname are not carried in a person's name.
the father in a public document or private handwritten They therefore anticipate that Julian may be subjected
instrument that he bears both his mother's surname as his to discrimination on account of his middle name,
middle name and his father's surname as his surname (In which is difficult to pronounce in light of Singapore's
Re: Petition for Change of Name of Julian Wang v. Cebu Civil Mandarin language which does not have the letter "R"
Registrar, G.R. No. 155966, March 30, 2005). but if there is, Singaporeans pronounce it as "L."
Should the petition for the dropping of his middle
Q: Honorato filed a petition to adopt his minor name be granted?
illegitimate child Stephanie. Stephanie has been using
her mother's middle name and surname. He prayed A: No. Petitioners justification for seeking the change in
that Stephanie's middle name be changed from the name of their child, that of convenience, was
"Astorga" to "Garcia," which is her mother's surname characterized by the Supreme Court as amorphous, to say
and that her surname "Garcia" be changed to the least, and would not warrant a favorable ruling. As
"Catindig," which is his surname. This the trial court Julian is only a minor and has yet to understand and
denied. Was the trial court correct in denying appreciate the value of any change in his name, it is best
Honoratos request for Stephanies use of her mothers that the matter be left to his judgment and discretion when
surname as her middle name? he reaches legal age.

A: No. The name of an individual has two parts the given The State has an interest in the names borne by individuals
name or proper name and the surname or family name. and entities for purposes of identification, and that a
The given name may be freely selected by the parents for change of name is a privilege and not a right, such that
the child, but the surname to which the child is entitled is before a person can be allowed to change the name given
fixed by law. The Civil Code (Arts. 364 to 380) is silent as him either in his birth certificate or civil registry, he must
to the use of a middle name. Even Art. 176 of the FC, as show proper or reasonable cause, or any compelling
amended by R.A. 9255 (An Act Allowing Illegitimate reason which may justify such change. Otherwise, the
Children to Use the Surname of Their Father) is silent request would be denied (In Re: Petition for change of
as to what middle name a child may use. name and/or correction/cancellation of entry in civil
registry of Julian Lin Carulasan Wang, G.R. No. 159966,
An adopted child is entitled to all the rights provided by March 30, 2005).
law to a legitimate child without discrimination of any
kind, including the right to bear the surname of her father NOTE: The touchstone for the grant of a change of name is
and her mother. As she had become a legitimate child on that there be proper and reasonable cause for which the
account of her adoption, it follows that Stephanie is change is sought.
entitled to utilize the surname of her father, Honorato
Catindig, and that of her mother, Gemma Garcia. Q: Giana was born to Andy and Aimee, who at the time
of Gianas birth were not married to each other. While
Since there is no law prohibiting an illegitimate child Andy was single at that time, Aimee was still in the
adopted by her natural father, like Stephanie, to use, as process of securing a judicial declaration of nullity on
middle name her mother's surname, the High Court found her marriage to her ex-husband. Giannas birth
no reason why she should not be allowed to do so. certificate, which was signed by both Andy and Aimee,
registered the status of Gianna as legitimate, her
NOTE: The Supreme Court granted the petition for 2 surname carrying that of Andys, and that her parents
reasons: were married to each other.
1. The adopted child's continued use of her
mother's surname as her middle name will Can a judicial action for correction of entries in
maintain her maternal lineage; and Giannas birth certificate be successfully maintained
2. It will also eliminate the stigma of her to:
a. Change her status from legitimate to
The Supreme Court, in granting the petition, predicated its illegitimate; and


b. Change her surname from that of Andys to administrative procedure for change of first name
Aimees maiden surname? only and not for change of surname.
c. Instead of a judicial action, can administrative
proceedings be brought for the purpose of making d. No, Gianna will not be legitimated. While the court
the above corrections? may have declared the marriage void ab initio and,
d. Assuming that Aimee is successful in declaring her therefore, no marriage took place in the eyes of the
former marriage void, and Andy and Aimee law, Gianna will still not be legitimated. This is
subsequently married each other, would Gianna because at the time she was conceived and born, her
be legitimated? (2008 Bar Question) biological parents could not have validly married each
other. For their marriage to be valid, the court must
A: first declare the first marriage null and void. In the
a. A judicial action cannot be maintained to change the problem, Gianna was conceived and born before the
status of Gianna from legitimate to illegitimate court has decreed the nullity of her mothers previous
child of Andy and Aimee. While it is true that Gianna is marriage.
the biological daughter of Andy and Aimee conceived
and born without marriage between them, Gianna is NOTE: The word "principally" as used in the codal
presumed, under the law as the legitimate child of provision is not equivalent to "exclusively" so that there is
Aimee and her husband. This filiation may be no legal obstacle if a legitimate or legitimated child should
impugned only by the husband. To correct the status choose to use the surname of its mother to which it is
of Gianna in her birth certificate from legitimate child equally entitled. If the mother's surname is used by the
of Andy and Aimee to illegitimate child of Andy and child since childhood and the child has been using it
Aimee will amount to indirectly impugning her already in various records, then there is an ample
filiation as the child of Aimees husband in a proper justification for the continuation of the use of the mothers
action. What cannot be done directly cannot be done surname. It is therefore, not whimsical, but on the
indirectly. contrary, is based on a solid and reasonable ground, i.e. to
avoid confusion (Alfon v. Republic, G.R No. L-51201, May 29,
b. A judicial action to change the surname of Gianna 1980).
from the surname of Andy to the maiden surname of
Aimee is also not allowed. Gianna, being presumed to ABSENCE
be the legitimate child of Aimees husband is required
by law to be registered under the surname of Aimees PROVISIONAL MEASURES IN CASE OF ABSENCE
husband. While it is true that Giannas registered
surname is erroneous, a judicial action for correction Absence
of entry to change the surname of Gianna to that of
Aimees maiden surname will also be erroneous. A The special status of a person who has left his domicile and
judicial action to correct an entry in the birth thereafter his whereabouts and fate are unknown, it being
certificate is allowed to correct an error and not to uncertain whether he is already dead or still alive
commit another error. (Olaguiviel v. Morada, 63 O.G. 4940).

Alternative Answers: It may be noted that the Kinds of absence

problems does not show whether Gianna was born
while Aimee was living with her ex-husband. Neither 1. Physical Absence
does it show who filed the judicial action to correct 2. Legal Absence
the entries.
3 Stages of Absence
If the problem is intended only for purpose of
determining whether factual changes are in order, 1. Provisional Absence when a person disappears from
then the answers are: his domicile his whereabouts being unknown, without
a. A change from legitimate to illegitimate is leaving an agent to administer his property (Art. 381,
proper upon proof of lack of marriage between NCC).
Andy and Aimee. 2. Declared Absence when a person disappears from
b. If the child is considered illegitimate, then she his domicile and 2 years thereafter have elapsed
should follow the surname of her mother. without any news about him or since the receipt of
the last news, or 5 years have elapsed in case he left a
c. Under R.A. 9048, only typographical errors are person to administer his property (Art. 384, NCC).
allowed to be corrected administratively. The change 3. Presumptive Death the absentee is presumed dead
of status from legitimate to illegitimate is not a (Jurado, 2009)
typographical error and even assuming that it is, its
administrative correction is not allowed under R.A. Provisional absence
9048. Typographical errors involving status, age,
citizenship, and gender are expressly excluded from 1. When a person disappears from his domicile
what may be corrected administratively. 2. His whereabouts are unknown and:
a. he did not leave any agent; or
The change of the surname is also not allowed b. he left an agent but the agents power has expired
administratively. R.A. 9048 provides for an


Remedy of an interested party, a relative or a friend of
the absentee to protect the latter's interest ADMINISTRATION OF THE PROPERTY OF THE
They may petition the Court for the appointment of a
representative to represent the absentee in all that may be Administration of the property of the absentee ceases
necessary. when:
1. Absentee appears personally or by means of an agent.
Duty of the Court after appointing the representative 2. Death of the absentee is proved and his testate or
intestate heirs appear.
The Court shall: 3. A third person appears, showing by a proper
1. Take the necessary measures to safeguard the rights document that he has acquired the absentee's
and interests of the absentee. property by purchase or other title.
2. Specify the powers, obligations, and remuneration of
the representative. PRESUMPTION OF DEATH
3. Regulate the powers, obligations and remuneration
according to the circumstances by the rules Kinds of presumed death
concerning guardians (Art. 382, NCC).
1. Ordinary presumption- ordinary absence; absentee
Order of preference in the appointment of a disappears under normal conditions without danger
representative or idea of death.
2. Extraordinary presumption- qualified absence;
1. Spouse present, except, when legally separated. disappearance with great probability of death.
2. In the absence of spouse, any competent person (Art.
383, NCC). Rules in ordinary presumption of death

NOTE: The administrator of the absentee's property shall In case of:

be appointed in accordance with the same order. 1. Disappearance upon or before reaching the age of
seventy five (75) years:
DECLARATION OF ABSENCE a. After an absence of seven (7) years -the absentee
is presumed dead for all purposes except,
Requisites for a declaration of absence succession.
b. After an absence of ten (10) years - the absentee
1. The absentee have disappeared from his domicile is presumed dead for all purposes including
2. His whereabouts are not known succession.
3. He has been absent without any news for 2 years, if 2. Disappearance at the age of seventy six (76) years or
nobody was left to administer his property or 5 years older, after an absence of five (5) years -the absentee
if somebody was left to administer such property is presumed dead for all purposes including
Absence may be judicially declared if:
1. The absentee left no agent to administer his property- NOTE: The word absence in the rule that a presumption
after two (2) years without any news about the of death is raised by the absence of a person from his
absentee or since receipt of the last news. domicile when unheard of for seven years, means that a
2. The absentee has left a person to administer his person is not at the place of his domicile and his actual
property- after five (5) years. residence is unknown, and it is for this reason that his
existence is doubtful, and that, after seven years of such
Person who may ask for the declaration of absence absence, his death is resumed. But removal alone is not
enough (Gorham v. Settegast, 98 SW 655, also cited by Sta.
1. Spouse present Maria, Jr. Persons and Family Relations Law).
2. Heirs instituted in a will
3. Relatives who may succeed by intestacy Presumption of death of absentee under an ordinary
4. Persons who may have over the property of the presumption
absentee some right subordinated to the condition of
his death. Absentee is presumed to have died under an ordinary
presumption at the end of the five, seven or ten year
Effectivity of judicial declaration of absence period, as the case may be.

Judicial declaration of absence takes effect six (6) months Presumption of death for all purposes
after its publication in a newspaper of general circulation.
The following are presumed dead for all purposes
NOTE: A judicial declaration of absence is necessary for including the division of estate among heirs in case of
interested persons to be able to protect their rights, extraordinary presumption of death (Art. 391, FC):
interests and benefits in connection with the person who 1. Person on board a vessel lost during a sea voyage, or
has disappeared. It is also necessary to protect the interest an airplane which is missing, who has not been heard
of the absentee (Sta. Maria, Jr., Persons and Family of for four (4) years since the loss of the vessel or
Relations Law). airplane;


2. Person in the armed forces who has taken at in war, provisions of the FC requiring Juana to exhibit "well-
and has been missing for four (4) years; founded belief" will, ultimately, result in the
3. Person who has been in danger of death under other invalidation of her second marriage, which was valid
circumstances and his existence has not been known at the time it was celebrated. Such a situation would
for four (4) years. be untenable and would go against the objectives that
the Family Code wishes to achieve.
Presumption of death of absentee under an
extraordinary presumption b) No. Under the NCC, the presumption of death is
established by law and no court declaration is needed
The absentee presumed to have died under an for the presumption to arise. For the purposes of the
extraordinary presumption at the time of disappearance. civil marriage law, Art. 83 of the Civil Code, it is not
i.e. when the calamity took place. necessary to have the former spouse judicially
declared an absentee. The law only requires that the
Q: May a petition for the declaration of presumptive former spouse has been absent for seven consecutive
death be the subject of a judicial declaration, if it is the years at the time of the second marriage, that the
only question upon which a competent court has to spouse present does not know his or her former
pass? spouse to be living, that such former spouse is
generally reputed to be dead and the spouse present
A: No. Under the NCC, the presumption of death is so believes at the time of the celebration of the
established by law and no court declaration is needed for marriage. Since death is presumed to have taken place
the presumption to arise. Moreover, it is clear that a by the seventh year of absence, Arturo is to be
judicial declaration that a person is presumptively dead, presumed dead starting October 1982.
being a presumption juris tantum only, subject to contrary
proof, cannot become final. If a judicial decree declaring a Further, the presumption of death cannot be the
person presumptively dead, cannot become final and subject of court proceedings independent of the
executory even after the lapse of the reglementary period settlement of the absentees estate. In case the
within which an appeal may be taken, then a petition for presumption of death is invoked independently of
such a declaration is useless, unnecessary, superfluous and such an action or special proceeding, there is no right
of no benefit to the petitioner. to be enforced nor is there a remedy prayed for by the
petitioner against her absent husband. Neither is
Q: Juana married Arturo in January 1973. However, there a prayer for the final determination of his right
because the latter was unemployed the spouses or status or for the ascertainment of a particular fact,
constantly argued. Thus, Arturo left the conjugal for the petition does not pray for a declaration that
dwelling on October 1975. Years passed without any the petitioner's husband is dead, but merely asks for a
word from Arturo. Juana didnt hear any news of declaration that he be presumed dead because he had
Arturo, his whereabouts or even if he was alive or not. been unheard of for seven years. In sum, the petition
Believing that Arturo was already dead, Juana married for a declaration that the petitioner's husband is
Dante on June 1986. Subsequently, however, Dante's presumptively dead, even if judicially made, would
application for naturalization filed with the United not improve the petitioner's situation, because such a
States Government was denied because of the presumption is already established by law (Valdez v.
subsisting marriage between Juana and Arturo. Hence, Republic, G.R. No. 180863, September 8, 2009).
on March, 2007, Juana filed a Petition for declaration
of presumptive death of Arturo with the RTC. The RTC
dismissed the petition on the ground that Juana was
not able to prove the existence of a well-grounded
belief that her husband Arturo was already dead as
required under Article 41 of the Family Code.

a. Was the RTC correct in dismissing the petition

based on Article 41 of the Family Code?
b. Will the petition for declaration of presumptive
death, therefore, prosper?

a) No. Since the marriages were both celebrated under
the auspices of the Civil Code, it is the Civil Code that
applies to this case not Art. 41 of the FC. Under the
Civil Code, proof of well-founded belief is not
required. Juana could not have been expected to
comply with the requirement of proof of "well-
founded belief" since the FC was not yet in effect at
the time of her marriage to Dante. Moreover, the
enactment of the FC in 1988 does not change this
conclusion. The FC shall have no retroactive effect if it
impairs vested rights. To retroactively apply the


Declaration of presumptive death for purpose of provisions of
contracting subsequent marriage v. Opening Article 391 of
succession and declaration of absence under the Rules the Civil Code
of Court (Art. 41, FC)
Effect of reappearance
DECLARATION OF PRESUMPTIVE If the absentee It does not The trustee or
DEATH FOR THE PURPOSE OF: appears, or automatically administrator
CONTRACTING without terminate the shall cease in the
SUBSEQUENT appearing his subsequent performance of his
MARRIAGE existence is marriage. To office, and the
Applicable laws proved, he shall cause the property shall be
Arts. 390-396, Arts. 41-44, Rule 107, Rules of recover his termination of placed at the
Civil Code Family Code Court property in the the subsequent disposal of those
Who may file petition condition in marriage, the who may have a
1. Spouse which it may be reappearance right thereto.
present; found, and the must be made in
2. Heirs price of any an affidavit of
instituted in property that reappearance
the will; may have been and the
3. Relatives who alienated or the recording of a
Absentees co- will succeed by property sworn statement
heirs, heirs, intestacy; or acquired of the fact and
assigns, 4. Those who therewith; but circumstances of
Spouse present he cannot claim such
representative have over the
or successors- property of the either fruits or reappearance in
in-interest absentee some rents. (Art. 392, the civil registry.
right Civil Code)
subordinated If, however,
to the there was
condition of previous
his death (Sec. judgment
2, Rule 107). annulling or
Purpose of petition declaring the
To appoint an prior marriage
administrator over void, then the
For the purpose the properties of reappearance of
of contracting the absentee. This the absent
To open spouse, the
subsequent is proper only
succession execution of the
marriage by where the
spouse present absentee has affidavit, and the
properties to be recording of the
administered sworn statement
When to file petition shall not result
GR: 4 to the
consecutive years After 2 years: termination of
absence of 1. From his the subsequent
spouse and the disappeara marriage.
GR: Absence of
spouse present nce and
has a well- without
founded belief any news
XPN: If he ARTICLE 407-413
that the absent about the
spouse was absentee;
after the age of Civil register
already dead or
2. From the
years, an Refers to the various registry books and related
XPN: 2 last news
absence of five certificates and documents kept in the archives of the local
consecutive years about the
years shall be civil registry offices, Philippine Consulate, and of the Office
absence of absentee.
sufficient in of the Civil Registrar General.
spouse In case
order that his
of disappearance After 5 years: If he
succession may Recorded in the civil register concerning civil status of
where there is left an
be opened persons
danger of death administrator of
under the his property (Sec.
circumstances 2). The following shall be recorded in the civil register
set forth in the concerning civil status of persons:
1. Acts


2. Events Rule with regard to changing or correction of entries
3. Judicial decrees in the civil register

Civil status GR: No entry in a civil register shall be changed or

corrected without a judicial order.
The circumstances affecting the legal situation or sum total
of capacities or incapacities of a person in view of his age, XPNs:
nationality and family membership (Beduya v. Republic, 1. Clerical or typographical errors and
G.R. L-71639, May 29, 1964). It also includes all his personal 2. Change of first name or nickname which can be
qualities and relations, more or less permanent in nature, corrected or changed administratively by the
not ordinarily terminable at his own will, such as his being concerned city or municipal civil registrar or consul
legitimate or illegitimate, or his being married or not. general in accordance with the provisions of RA 9048
(Clerical Error Law).
Acts authorized to be entered in the civil register
Clerical or Typographical error
1. Legitimation
2. Acknowledgment of illegitimate children It refers to a mistake committed in the performance of
3. Naturalization clerical work in writing, copying, transcribing or typing an
entry in the civil register that is harmless and innocuous,
Events authorized to be entered in the civil register such as misspelled name or misspelled place of birth or the
like, which is visible to the eyes or obvious to the
1. Birth understanding, and can be corrected or changed only by
2. Marriages reference to other existing record or records: Provided,
3. Naturalization that no correction must involve the change of , nationality,
4. Death age, status or sex of the petitioner (Section 2(c), RA 9048).

Judicial decrees authorized to be entered in the civil Q: Zirxthoussous delos Santos filed a petition for
register change of name with the Office of the Civil Registrar of
Mandaluyong City under the administrative
1. Legal separation proceeding provided in RA No. 9048. He alleged that
2. Annulments of marriage his first name sounds ridiculous and is extremely
3. Declarations of nullity of marriage difficult to spell and pronounce. After complying with
4. Adoption the requirements of the law, the Civil Registrar
5. Naturalization granted his petition and changed his first name
6. Loss or recovery of citizenship Zirxthoussous to "Jesus." His full name now reads
7. Civil interdiction "Jesus delos Santos."
8. Judicial determination of filiation
9. Changes of name (Silverio v. Republic, G.R. No. 174689, Jesus delos Santos moved to General Santos City to
October 22, 2007) work in a multi-national company. There, he fell in
love and married Mary Grace delos Santos. She
Nature of the books making up the civil register and requested him to have his first name changed because
the documents relating thereto his new name "Jesus delos Santos" is the same name as
that of her father who abandoned her family and
The books and documents shall be considered public became a notorious drug lord. She wanted to forget
documents and shall be prima facie evidence of the facts him. Hence, Jesus filed another petition with the Office
therein contained. of the Local Civil Registrar to change his first name to
"Roberto." He claimed that the change is warranted
NOTE: Applications for delayed registration of birth go because it will eradicate all vestiges of the infamy of
through a rigorous process. The books making up the civil Mary Grace's father. Will the petition for change of
register are considered public documents and as a public name of Jesus delos Santos to Roberto delos Santos
document, a registered certificate of live birth enjoys the under Republic Act No. 9048 prosper? (2006 Bar
presumption of validity (Nieves Estares Baldos, substituted Question)
by Francisco Baldos and Martin Baldos v. Court of Appeals
and Reynaldo Pillazar a.k.a. Reynaldo Estares Baldos, G.R. A: No, under the law, Jesus may only change his name
No. 170645, July 9, 2010). once. In addition, the petition for change of name may be
denied on the following grounds:
R.A. 9048 1. Jesus is neither ridiculous, nor tainted with dishonor
nor extremely difficult to write or pronounce.
Effectivity of RA 9048 2. There is no confusion to be avoided or created with
the use of the registered first name or nickname of the
R.A. 9048 took effect on March 22, 2001 petitioner.
3. The petition involves the same entry in the same
document, which was previously corrected or
changed under the Rules and Regulations
Implementing RA 9048.


any compelling reason justifying such change. In
RULE 108, RULES OF COURT addition, he must show that he will be prejudiced by
the use of his true and official name. In this case, he
Clerical or typographical errors cannot be corrected failed to show, or even allege, any prejudice that he
under Rule 108 of the Rules of Court might suffer as a result of using his true and official
The correction or change of clerical or typographical
errors can now be made through administrative b. No. Under RA 9048, a correction in the civil registry
proceedings and without the need for a judicial order. In involving the change of sex is not a mere clerical or
effect, RA 9048 removed from the ambit of Rule 108 of the typographical error. It is a substantial change for
Rules of Court the correction of such errors. Rule 108 now which the applicable procedure is Rule 108 of the
applies only to substantial changes and corrections in Rules of Court. The entries correctable under Rule
entries in the civil register (Silverio v. Republic, G.R. No. 108 of the Rules of Court are those provided in Arts.
174689, October 22, 2007). 407 and 408 of the NCC. These acts, events and
judicial decrees provided in Arts. 407 and 408 of the
First name NCC produce legal consequences that touch upon the
legal capacity, status and nationality of a person. Their
It refers to a name or nickname given to a person which effects are expressly sanctioned by the laws. In
may consist of one or more names in addition to the contrast, sex reassignment is not among those acts or
middle and last names. events mentioned in Art. 407. Neither is it recognized
nor even mentioned by any law, expressly or
Q: John Lloyd Cruzada filed a petition for the change of impliedly. A persons sex is an essential factor in
his first name and sex in his birth certificate in the marriage and family relations. It is a part of a persons
RTC. He alleged that his name was registered as John legal capacity and civil status. In this connection, Art.
Lloyd Cruzada in his certificate of live birth. His sex 413 of the NCC provides that all other matters
was registered as male. Further, he alleged that he is pertaining to the registration of civil status shall be
a male transsexual. Prior to filing the petition, he governed by special laws. But there is no such special
underwent sex reassignment surgery in Thailand. law in the Philippines governing sex reassignment
Thus, he seeks to have his name in his birth certificate and its effects (Silverio v. Republic, G.R. No. 174689,
changed from John Lloyd to Joanna, and his sex October 22, 2007).
from male to female on the ground of sex
reassignment pursuant to Articles 407 to 413 of the NOTE: The jurisdiction over applications for change of first
Civil Code, Rules 103 and 108 of the Rules of Court and name is now primarily lodged with the city or municipal
RA 9048. civil registrar or consul general concerned. The intent and
effect of the law is to exclude the change of first name from
a. May a person's first name be changed on the the coverage of Rules 103 (Change of Name) and 108
ground of sex reassignment? (Cancellation or Correction of Entries in the Civil Registry)
b. May a person's sex as indicated in his certificate of of the Rules of Court, until and unless an administrative
birth be changed on the ground of sex petition for change of name is first filed and subsequently
reassignment? denied. Hence, the remedy and the proceedings regulating
change of first name are primarily administrative in
A: nature, not judicial (Silverio v. Republic, G.R. No. 174689,
a. No. The State has an interest in the names borne by October 22, 2007).
individuals and entities for purposes of identification.
A change of name is a privilege, not a right. Petitions
for change of name are controlled by statutes. RA
9048 now governs the change of first name. RA 9048
provides the grounds for which change of first name
may be allowed:
(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.

RA 9048 does not sanction a change of first name on

the ground of sex reassignment. Rather than avoiding
confusion, changing petitioners first name for his
declared purpose may only create grave
complications in the civil registry and the public
interest. Before a person can legally change his given
name, he must present proper or reasonable cause or



CHARACTERISTICS Classifications of property

Property 1. As to mobility
a. Immovable or real property
It is any object which is, or may be, appropriated (Art. 414, b. Movable or personal property
NCC). 2. As to ownership
a. Public dominion
It is an object or a right which is appropriated or b. Private ownership
susceptible of appropriation by man, with capacity to 3. As to alienability
satisfy human wants and needs (Pineda, 1999). a. Alienable
b. Inalienable
Requisites for a thing to be considered as property 4. As to individuality
(USA) a. Specific property
b. Generic property
1. Utility Capacity to satisfy human wants 5. As to susceptibility to touch
2. Substantivity/ Individuality It has a separate and a. Tangible
autonomous existence. It can exist by itself and not b. Intangible
merely as a part of a whole (Paras, 2008). 6. As to susceptibility to substitution
3. Appropriability Susceptibility to a. Fungible
ownership/possession, even if not yet actually b. Non fungible
appropriated 7. As to accession
a. Principal
Properties NOT susceptible of appropriation b. Accessory
8. As to existence
1. Common things (res communes) c. Existing or present property (res existentes)
d. Future property (res futurae)
GR: Those properties belonging to everyone. While in 9. As to consumability
particular no one owns common property, still in a. Consumable
another sense, res communes are really owned by b. Non-consumable
everybody in that their use and enjoyment are given 10. As to divisibility
to all of mankind. Examples: air, wind, sunlight (Paras, a. Divisible
2008). b. Indivisible

XPN: Those that may be appropriated under certain CLASSIFICATION OF PROPERTY BY MOBILITY
conditions in a limited way.
e.g. Electricity REAL OR IMMOVABLE

2. Not susceptible due to physical impossibility Categories of immovable property:

e.g. Sun
Real Property by: (NIDA)
3. Not susceptible due to legal impossibility 1. Nature Those which cannot be carried from place to
e.g. Human body place
2. Incorporation Those which are attached to an
Human body NOT a property immovable in a fixed manner and considered as an
integral part thereof, irrespective of its ownership
The human body, whether alive or dead, is neither real nor 3. Destination Things placed in buildings or on lands
personal property. It is not even property at all, in that it by the owner of the immovable or his agent in such a
generally cannot be appropriated. manner that it reveals the intention to attach them
permanently thereto
While a human being is alive, he cannot, as such, be the 4. Analogy Classified by express provision of law.
object of a contract, for he is considered outside the
commerce of man. He may donate part of his blood, may IMMOVABLE BY NATURE & INCORPORATION
even sell part of his hair, but he cannot sell his body (Paras,
2008). Par. 1, Art. 415. Land, buildings, roads and
constructions of all kinds adhered to the soil.
NOTE: Under the R.A. 7170 or the Organ Donation Act of
1991, donation of all or a part of a human body may only Building
occur after a persons death (i.e., the irreversible
cessation of circulatory and respiratory functions or the A building is always immovable unless the same is merely
irreversible cessation of all functions of the entire brain, superimposed on the soil or is sold for immediate
including the brain system) (Sec. 2[j], R.A. 7170, as demolition, in which case it may be considered as movable
amended). or personal property; thus, barong-barongs are not
permanent structures but mere superimpositions on land.


a. by nature - if they are spontaneous products of
Where buildings are sold to be demolished immediately, the soil.
the building is not an immovable property. The sale b. by incorporation - If they have been planted thru
involves movable property. What are really sold are the cultivation or labor.
2. A personal property
Effect of demolition of a house
The moment trees are detached or uprooted from the
Once a house is demolished, its character as an immovable land it is considered as personal property.
ceases. This is because a house is classified as an
immovable property by reason of its adherence to the soil NOTE: However, in case of uprooted timber, they are
on which it is built (Bicerra v. Teneza, G.R. No. L-16218, still not considered as personal property because
November 29, 1962). timber is an integral part of the timber land.

Mortgage of a building erected on a land belonging to Growing fruits

GR: Growing fruits are considered as real property so long
A building may be mortgaged apart from the land on which as they are still attached to the soil.
it was built. While it is true that a mortgage of land
necessarily includes, in the absence of stipulation of the XPN: Growing fruits may be exceptionally treated as
improvements thereon, buildings, still a building by itself personal property pursuant to the provisions of Art.
may be mortgaged apart from the land on which it has 416(2) of the New Civil Code (Rabuya, 2008).
been built. Such a mortgage would still be a real estate
mortgage for the building would still be considered Example:
immovable property even if dealt with separately and 1. Ungathered fruits are considered personal property
apart from the land (Yee v. Strong Machinery Company, G.R. for the purpose of sale of the whole or part of the
No. 11658, February15, 1918). crops.
2. Ungathered fruits have the nature of personal
A valid real estate mortgage can be constituted. Art. 415 of property for purposes of attachment and execution
the New Civil Code mentions buildings separate from and in applying the provisions of the Chattel Mortgage
land. This means that the building by itself is an Law.
immovable and may be subject of a REM (Prudential Bank
v. Panis, G.R. No. L-50008, August 31, 1987). IMMOVABLE BY INCORPORATION

The annotation or inscription of a deed of sale of real Par. 3, Art. 415. Everything attached to an immovable
property in a chattel mortgage registry is NOT considered in a fixed manner, in such a way that it cannot be
an inscription in the registry of real property. By its separated therefrom without breaking the material or
express terms, the Chattel Mortgage Law contemplates and deterioration of the object.
makes provisions for mortgages of personal property; and
the sole purpose and object of the chattel mortgage Res vinta
registry is to provide for the registry of Chattel
mortgages, that is to say, mortgages of personal property These are immovables by incorporation, which when
executed in the manner and form prescribed in the statute separated from the immovable, regain their condition as
(Yee v. Strong Machinery Co, G.R. No. L-11658, February 15, movable.
Q: The City Assessor sought to impose realty tax on
Building can be subject of a chattel mortgage steel towers of MERALCO. The taxes were paid under
protest, MERALCO contending that the towers were
As may be gleaned from a perusal of the deed signed by the exempt from taxation and that they were personal and
parties, the undertaking executed by them is a chattel not real properties. Decide.
mortgage, as the parties have so expressly designated, and
not a real estate mortgage, especially when it is considered A: The towers are personal properties. They are not
that the property given as a security is a house of mixed buildings adhered to the soil (Art. 415 par. 1); they are not
materials which by its very nature is considered as attached to an immovable in a fixed manner and they can
personal property. (Luna v. Encarnacion, G.R. No. L-4637, be separated without substantial damage or deterioration,
June 30, 1952). and they are not machineries intended for works on the
land (Board of Assessment Appeals v. Meralco, G.R. No. L-
Par. 2, Art. 415. Trees, plants and growing fruits, 15334, January 31, 1964).
while they are attached to the land or form an
integral part of an immovable. IMMOVABLE BY INCORPORATION & BY DESTINATION

Trees and plants Par. 4, Art. 415. Statues, reliefs, paintings or other
objects for use or ornamentation, placed in
Trees may be either be: buildings or on lands by the owner of the
1. A real property immovable in such a manner that it reveals the


intention to attach them permanently to the Bus Co. v. City Assessor and Treasurer, G.R. No. L-17870,
tenements. September 29, 1962).

Machines must be essential and principal elements in the

industry and must directly meet the needs of said industry.
Placed by the owner It does not include movables which are merely incidentals,
without which the business can still continue or carry on
This means that the objects must be placed by the owner their functions.
of the immovable and not necessarily the owner of the
object. Machineries bolted or cemented on real property
Par. 3 distinguished from Par. 4
It is NOT considered an immovable property. The fact that
machineries were bolted or cemented on real property
PAR. 3 PAR. 4
mortgaged does not make them ipso facto immovable
Cannot be separated from Can be separated from the
under Art. 415 (3) and (5) as the parties intent has to be
the immovable without immovable without
looked into.
breaking or deterioration breaking or deterioration.
Must be placed by the
When immovable property by nature may be treated
Need not be placed by the owner of the immovable, or
as a chattel
owner by his agent whether
express or implied
Even if the properties appear to be immovable by nature,
Real property by
Real property by nothing detracts the parties from treating them as chattels
incorporation and
incorporation to secure an obligation under the principle of estoppel
(Tsai v. CA, G.R. No. 120098, October 2, 2001).
Par. 5, Art. 415. Machinery, receptacles, instruments or Q: What is the effect of temporary separation of
implements intended by the owner of the tenement for movables from the immovables to which they are
an industry or works which may be carried on in a attached?
building or on a piece of land & which tend directly to
meet the needs of the said industry or works. A: There are two views regarding the issue; namely:
1. They continue to be regarded as immovables.
Requisites for machinery to be considered real 2. Fact of separation determines the condition of the
property (COTE) objects thus recovering their condition as movables.

1. The industry or work must be Carried on in a building Q: Petitioners contend that the machines that were
or on a piece of land; the subjects of the Writ of Seizure were placed in the
2. The machinery must: factory built on their own land. Indisputably, they
a. Be placed by the Owner of the tenement or his were essential and principal elements of their
agent; chocolate making industry. Hence, although each of
b. Tend directly to meet the needs of the said them was movable or personal property on its own, all
industry or work; and of them have become immobilized by destination
c. Be Essential and principal to the industry or because they are essential and principal elements in
work, and not merely incidental thereto. the industry. Petitioners argue that said machines are
real properties pursuant to Art. 415 (5) of the NCC and
Machinery placed by a tenant or by a usufructuary are not, therefore, the proper subjects of a Writ of
Seizure. However, the lease agreement entered into by
It is NOT considered real property. Since it is placed by a the petitioners provides that the machines in question
person having only a temporary right, it does not become are to be considered as personal property. How should
immobilized. Where a tenant places the machinery under the machines be classified?
the express provision of lease that it shall become a part of
the land belonging to the owner upon the termination of A: The machines should be deemed personal property
the lease without compensation to the lessee, the tenant pursuant to the Lease Agreementis good only insofar as
acts as an agent of the owner and the immobilization of the the contracting persons are concerned. Hence, while the
machineries arises from the act of the owner in giving by parties are bound by the Lease Agreement, third persons
contract a permanent destination to the machinery (Valdez acting in good faith are not affected by its stipulation
v. Central Altagracia, 225 U.S. 58, 1912). characterizing the subject machinery as personal (Sergs
Products, Inc. v. PCI Leasing and Finance, Inc., 338 SCRA 504,
Equipment of a transportation business classified as August 22, 2000).
personal property
Par. 6, Art. 415. Animal houses, pigeon-houses,
A transportation business is not carried on in a building or beehives, fish ponds or breeding places of similar
on a specified land. Hence, equipment destined only to nature, in case their owner has placed them or
repair or service a transportation business may not be preserves them with the intention to have them
deemed real property, but personal property (Mindanao permanently attached to the land, and forming a


permanent part of it; the animals in these places a fixed place on a river or coast. Art. 415 (9) of the
are included. NCC considers as real property docks and structures
which, though floating are intended by their nature
These are immovables by destination. and object to remain at a fixed place on a river, lake,
or coasts (2007 Bar Question; Fels Energy, Inc. v. The
Cages are not included Province of Batangas, G.R. No. 168557, February 16,
It will be considered as personal property since they can
be moved from one place to another. 2. With respect to the equipment, the same is real
property under paragraph 5 of Art. 415, NCC. It is
Par. 7, Art. 415. Fertilizer actually used on a piece intended to meet the needs of the industry being
of land. undertaken by MPC. The equipment partakes of the
nature of the immovable upon which it has been
Fertilizers in sacks are not included
The living quarters, if attached to the immovable
Only fertilizers used on a piece of land are deemed
platform with permanence, becomes an immovable as
immovable since it is already placed in the land and can
well. Permanence means they cannot be separated
never be separated from it. Fertilizers which are still on
without destroying the platform or the quarters. On
the sacks, although there is intention to place them or use
the other hand, if the attachment is not permanent, or
them on land, it is still immovable.
not merely superimposed on the platform, then the
living quarters are movable property.
Par. 8, Art. 415. Mines, quarries and slag dumps,
while the matter thereof forms part of the bed, and
3. The trees, plants and flowers are also immovable,
waters either running or stagnant.
having been planted in the garden area, under Art.
415 (2) which provides that Trees, plants and
Par. 9, Art. 415. Docks and structure which, though growing fruits, while they are attached to the land or
floating, are intended by their nature and object to form an integral part of the immovable are likewise
remain at a fixed place on a river, lake or coast. immovable property.
Q: The Provincial Assessor sought to impose realty tax Par. 10, Art. 415. Contracts for public works and
on power barges of Fels Energy, Inc. The taxes were servitudes and other real rights over immovable
paid under protest, Fels Energy, Inc. contending that property.
the power barges which are floating were exempt from
taxation and that they were personal and not real
These are immovable by analogy.
properties. Decide.
e.g. Contract over a construction of a bridge
A: The power barges are real properties. Power barges
are categorized as immovable property by destination,
being in the nature of machinery and other implements
Movable properties (SOFTSS)
intended by the owner for an industry or work which may
be carried on in a building or on a piece of land and which
1. Movables Susceptible of appropriation which are not
tend directly to meet the needs of said industry or work.
included in Art. 415;
(Fels Energy, Inc. v. Province of Batangas, G.R. No. 168557,
2. Real property which by any Special provision of law
February 19, 2007).
considers as personalty;
e.g. growing crops under the Chattel Mortgage Law.
Q: Manila Petroleum Co. (MPC) owned and operated a
3. Forces of nature which are brought under the control
petroleum operation facility off the coast of Manila.
of science ;
The facility was located on a floating platform made of
e.g. electricity generated by electric powers, solar light
wood and metal, upon which was permanently
for batteries power.
attached the heavy equipment for the petroleum
4. In general, all things which can be Transported from
operations and living quarters of the crew. The
place to place without impairment of the real
floating platform likewise contained a garden area,
property to which they are fixed;
where trees, plants and flowers were planted. The
5. Obligations and actions which have for their object
platform was tethered to a ship, the MV101, which was
movables or demandable sums; and
anchored to a seabed.
6. Shares of stock of agricultural, commercial and
industrial entities, although they have real estate (Art.
1. Is the platform movable or immovable property?
416, NCC).
2. Are the equipment and living quarters movable or
immovable property?
Tests to determine whether a property is a movable
3. Are the trees, plants and flowers immovable or
property (MES)
movable property? (2007 Bar Question)
1. Test of Exclusion Everything not included in Art. 415,
e.g. ships or vessels or interest in a business
1. The platform is an immovable property by
destination. It was intended by the owner to remain at


2. By reason of a Special law Immovable by nature but public service is sufficient and it is not necessary that it
movable for the purpose of the special law, e.g. must actually be used as such.
Growing crops for purposes of the Chattel Mortgage
Law Kinds of property of public dominion (USD)
3. Test of Mobility If the property is capable of being
carried from place to place without injuring the real 1. For public Use;
property to which it may in the meantime be attached 2. Intended for public Service and not for public use; and
3. For the Development of the national wealth (Art. 420,

1. In relation to the State Characteristics of properties of public dominion

a. Public Dominion (ULEP- ROB)
b. Patrimonial
2. In relation to political subdivisions/local government 1. In general, they can be Used by everybody;
unit 2. Cannot be Levied upon by execution or attachment;
a. Public use 3. May Either be real or personal property;
b. Patrimonial 4. Cannot be acquired by Prescription;
3. In relation to private persons 5. Cannot be Registered under Land Registration Law
a. Owned individually and be the subject of Torrens Title;
b. Owned collectively 6. Outside the commerce of man cannot be alienated or
leased or be subject of any contract;
NOTE: Sacred and religious objects are considered outside 7. Cannot be Burdened by voluntary easement.
the commerce of man. They are neither public nor private
party. Classification of lands of public dominion


2. Forest or timber;
Properties classified according to consumability 3. Mineral lands;
4. National Parks (Art. XIV, Sec. 10, Philippine
1. Consumable property That which cannot be used Constitution).
according to its nature without being consumed or
being eaten or used up Authority to classify or reclassify public lands
2. Non-Consumable property That which can be used
according to its nature without being consumed or As provided in the Public Land Act, the classification or
being eaten or used up. reclassification of public lands into alienable or disposable,
mineral or forest lands is a prerogative of the executive
Properties classified according to susceptibility to department of the government and not of the courts.
Property of public dominion can be converted to
1. Fungible property That property which belongs to a patrimonial property through a formal declaration by the
common genus permitting its substitution executive or legislative body that the property is no longer
2. Non- fungible property That property which is needed for public use or for public service.
specified and not subject to substitution
Local Government Units DOES NOT have the power to
NOTE: As to whether a property is fungible or non- withdraw a public street from public use, unless it has
fungible is determined by the agreement of the parties and been granted such authority by law (Dacanay v. Asistio Jr.,
not on the consumability of the thing. G.R. No. 93654, May 6, 1992).

PUBLIC DOMINION Charging of fees does not remove property as public

Public Dominion
The charging of fees to the public does not determine the
It means ownership by the public in general. It may also character of the property whether it is of public dominion
mean properties or things held by the State by regalian or not. The airport lands and buildings are devoted to
right. public use because they are used by the public for
international and domestic travel and transportation. The
Properties classified as public dominion cannot be terminal fees MIAA charges to passengers, as well as the
alienated but are not totally outside the commerce of man landing fees MIAA charges to airlines, constitute the bulk
as the Constitution allows the State to enter into co- of the income that maintains the operations of MIAA.
production, joint ventures or production-sharing (Manila International Airport Authority v. CA, G.R. No.
agreements with private individuals or corporations for 155650, July 20, 2006).
their exploration, development and utilization.

NOTE: In order to be classified as property of public

dominion, an intention to devote it to public use or to



Properties in private ownership of private persons or RIGHTS IN GENERAL

All properties not belonging to the State or its political
subdivision are properties of private ownership pertaining It is the juridical relation of a person over a thing by virtue
to private persons, either individually or collectively. of which said person has the exclusive power or authority
to receive all the benefits and advantages arising from said
Patrimonial property of the State thing, save those restricted by law or the recognized rights
of others.
It is the property not devoted to public use, public service,
or the development of the national wealth. It is intended Kinds of ownership (FNSC)
rather for the attainment of the economic ends of the State,
that is, for subsistence. It is owned by the State in its 1. Full ownership Includes all the rights of an owner;
private or proprietary capacity.
NOTE: Naked ownership + Usufruct
NOTE: It may be disposed of by the State in the same
manner that private individuals dispose of their own 2. Naked ownership Ownership where the rights to the
property subject, however, to administrative laws and use and to the fruits have been denied;
NOTE: Full ownership Usufruct
Properties for public service and properties for the
development of national wealth 3. Sole ownership Ownership is vested in only one
1. Public service depends on who pays for the service. 4. Co-ownership Ownership is vested in 2 or more
If paid for by the political subdivision, public; if for persons. There is Unity of the property, and plurality
profit, patrimonial. of the subjects.
2. National wealth still property for public use under
the regalian doctrine Characteristics of ownership

Canals constructed by private persons within private 1. Elastic Power/s may be reduced and thereafter
lands are NOT of public dominion but of private automatically recovered upon the cessation of the
ownership. limiting rights.
2. General The right to make use of all the possibilities
Art. 420 states that canals constructed by the State are of or utility of the thing owned, except those attached to
public ownership; conversely, canals constructed by other real rights existing thereon.
private persons within private lands are of private 3. Exclusive There may be two or more owners, but
ownership (Santos v. Moreno, G.R. No. L-15829, December 4, only one ownership.
1967). 4. Independent Other rights are not necessary for its
Q: The City of Cebu obtained a loan which was to be 5. Perpetual Ownership lasts as long as the thing exists.
paid with its own funds. Part of the proceeds of this It cannot be extinguished by non-user but only by
loan was used to fund the construction of the Citys adverse possession.
sewage system. NAWASA sought to expropriate the
sewage system. This was opposed with the arguments BUNDLE OF RIGHTS PERSONAL OR MOVABLE
that there was no payment of just compensation;
NAWASA offered unliquidated assets and liabilities. JUS UTENDI, FRUENDI, ABUTENDI, VINDICANDI,
NAWASA averred, as an alternative course of action, DISPODENDI, POSSIDENDI, ACCESIONES
that the property is one for public use and under the
control of the legislature. Decide whether the property Attributes of ownership
is patrimonial property of the city or property for
public use. 1. Right to enjoy (jus utendi)
2. Right to the fruits (jus fruendi)
A: The property is patrimonial and not subject to 3. Right to abuse (jus abutendi)
legislative control. It is property of the city, purchased with 4. Right to dispose (jus dispodendi)
private funds and not devoted to public use (it is for 5. Right to recover (jus vindicandi)
profit). It is therefore patrimonial under the Civil Code. 6. Right to accessories (jus accessiones)
Nor can the system be considered public works for public 7. Right to possess (jus possidendi)
service under Art. 424 because such classification is
qualified by ejusdem generis; it must be of the same
character as the preceding items (City of Cebu v. NAWASA,
G.R. No. 12892, April 20, 1960).


REMEDIES TO RECOVER POSSESSION prayed that an order be rendered directing Jaime to
vacate the premises. Should the complaint be
A: Yes. The records in this case show that the respondent
Legal remedies to recover possession of ones has been in possession of the property in question, not by
property mere tolerance or generosity of Rudy, but as the manager
of his mother, who conducted her business in the building
1. Personal property- Replevin which stood on a portion of the property leased from
2. Real property Alava. Jaimes possession was in behalf of his mother, and
a. Accion Interdictal not in his own right.
i. Forcible Entry
ii. Unlawful detainer Q: What is the effect of non-registration of the contract
b. Accion Publiciana of lease?
c. Accion Reinvindicatoria
A: Although the lease contract was not filed with the
DISTINCTIONS BETWEEN ACCION REIVINDICATORIA, Register of Deeds, nevertheless, Rudy was bound by the
ACCION PUBLICIANA, ACCION INTERDICTAL terms and conditions of said contract. The lease, in effect
became a part of the contract of sale. However, Rudy had
Accion interdictal no cause of action for unlawful detainer against Anita
because of the subsisting contract of lease; hence, he could
It is a summary action to recover physical or material not file the complaint against her (Lao v. Lao, G.R. No.
possession only and it must be brought within one year 149599, May 16, 2000).
from the time the cause of action arises. It may be:
2. Unlawful detainer UNLAWFUL DETAINER

Accion publiciana Forcible entry vis--vis Unlawful detainer

It is an ordinary civil proceeding to recover the better right Forcible Entry Unlawful Detainer
of possession, except in cases of forcible entry and
As to when possession became unlawful
unlawful detainer. What is involved here is not possession
de facto but possession de jure. Possession is inceptively
lawful but becomes illegal
Accion reinvindicatoria from the time defendant
unlawfully withholds
It is an action to recover real property based on possession after the
Possession of the defendant
ownership. Here, the object is the recovery of the expiration or termination of
is unlawful from the
dominion over the property as owner. his right thereto.
beginning as he acquired
possession by force,
NOTE: Where the facts averred in the complaint reveals NOTE: The question of
intimidation, strategy, threat
that the action is neither one of forcible entry nor unlawful possession is primordial,
or stealth (FISTS).
detainer but essentially involves a boundary dispute, the while the issue of ownership
same must be resolved in an accion reinvindicatoria is generally unessential in
(Sarmiento v. CA, G.R. No. 116192, November 16, 1995). unlawful detainer (Rosa Rica
Sales Center v. Sps. Ong, G.R.
Requisites of accion reinvindicatoria 132197, August 16, 2005).
As to necessity of demand
1. Identity of property
Demand is jurisdictional if
2. Plaintiffs title to the property
No previous demand for the the ground is non-payment
defendant to vacate is of rentals or failure to
Q: A contract of lease executed by Alava (lessor) and
necessary. comply with the lease
Anita Lao (lessee) was not registered with the Register
of Deeds. Aside from Anita, Rudy Lao also leased a
portion of the same property where he put up his As to necessity of proof of prior physical possession
business. At that time, Rudy knew that Anita and her Plaintiff need not have been
husband were the owners of the said building. He also in prior physical possession.
knew that she had leased that portion of the property,
and that Jaime Lao, their son, managed and Plaintiff must prove that he
NOTE: The fact that
maintained the building, as well as the business was in prior physical
petitioners are in possession
thereon. Rudy eventually purchased the entire possession of the premises
of the lot does not
property from Alava. Rudy then filed a complaint for until he was deprived
automatically entitle them
unlawful detainer against Jaime alleging that the latter thereof by the defendant.
to remain in possession
had occupied a portion of his property without any (Ganilla v. CA, G.R. No.
lease agreement and without paying any rentals, and 150755, June 28, 2005).


As to when 1 year period is counted from REAL v. PERSONAL RIGHTS
1 year period is generally 1 year period is counted
counted from the date of from the date of last demand Real Right Personal Right
actual entry of the land. or last letter of demand. Creation
Created by title alone
PROPERTY Created by both title and over a thing but is
mode directly over a thing exercised through another
Replevin against whom the action is
to be brought.
It is the remedy when the complaint prays for the recovery Object
of the possession of personal property. Incorporeal or intangible.
Generally corporeal or Object covers all the
NOTE: A property validly deposited in custodia legis tangible. Object is specific present and future
cannot be subject of a replevin suit (Calub v. CA, G.R. No. property or thing. property of the debtor.
115634, Apr. 27, 2000). (Art. 2236, NCC)
subject (e.g. owner)
Requisites in an action to recover property (b) One indefinite passive
subject which is the (a) An active subject
1. Clearly identify the land he is claiming in accordance whole world (creditor)
with the title/s on which he bases his right of Right of pursuit is (b) A definite passive
ownership; and therefore available. subject (debtor)
Real right follows its
NOTE: Burden of proof lies on the party who asserts object in the hands of
the affirmative of an issue. The description should be any possessor
so definite that an officer of the court might go to the
locality where the land is situated and definitely
Enforceable only against
locate it.
the original debtor or his
Enforceable against the
transferee charged with
2. Prove that he has a better title than the defendant whole world
notice of the personal
a. Best proof is a Torrens certificate.
b. Tax receipts, tax declarations are only prima facie
evidence of ownership; it is rebuttable. Limit
Limited by usefulness, value
No such limitation
NOTE: Plaintiffs title must be founded on positive or productivity of the thing
right or title and not merely on the lack or inefficiency Extinguishment
of the defendants title. In other words, he shall not be Not so extinguished. Claim
permitted to rely upon the defects of the defendants Extinguished by loss or for damages may still be
title (Art. 434, NCC). destruction of the thing pursued-in case of loss or
destruction of the thing
Reasons why the plaintiff is NOT allowed to rely on the
weakness of defendants title LIMITATIONS

1. Possibility that neither the plaintiff nor the defendant Limitations on the right of ownership
is the true owner of the property. In which case, the
defendant who is in possession will be preferred. Those imposed by the: (CC-SLOG)
2. One in possession is presumed to be the owner and he 1. State in the exercise of:
cannot be obliged to show or prove a better title. a. Power of taxation
3. Possessor in the concept of an owner is presumed to b. Police power
be in good faith and he cannot be expected to be c. Power of eminent domain
carrying every now and then his proofs of ownership 2. Law
over the property. a. Legal easements (i.e., easements of waters and of
4. He who relies on the existence of a fact, should prove right of way) and
that fact. If he cannot prove, the defendant does not b. The requirement of legitime in succession;
have to prove. 3. Owner himself
a. Voluntary easement
b. Mortgage
c. Pledge
d. Lease;
4. Grantor of the property on the grantee, either by:
a. Contract
b. Donation or
c. Will;


5. Those arising from Conflicts of private rights
a. Those which take place in accession continua; NOTE: If the things found be of interest to science or the
6. Constitution arts, the State may acquire them at their just price, which
a. Prohibition against the acquisition of private shall be divided in conformity with the rule stated (Art.
lands by aliens. 438, NCC).
7. Acts in state of necessity The law permits injury or
destruction of things owned by another provided this A trespasser (one prohibited to enter, or not given the
is necessary to avert a greater danger (with right to authority to enter) who discovers hidden treasure is NOT
indemnity v. principle of unjust enrichment) entitled to any share of the treasure (Paras, 2008)
8. True owner must resort to judicial process When
thing is in possession of another; law creates a By Chance
disputable presumption of ownership to those in
actual possession The finder had no intention to search for the treasure.
There is no agreement between the owner of the property
PRINCIPLE OF SELF-HELP and the finder for the search of the treasure.

This principle authorizes an owner or lawful possessor of a Yamashita treasure

property to use reasonable counterforce to prevent or stop
another person from taking the formers property. There The State is entitled to 75% share and the finder to 25%.
must be no delay in the pursuit, otherwise, his recourse (P.D. No. 7056-A).
will be to go to the court for the recovery of property.
Q: Under a tip that hidden treasure is buried in the
HIDDEN TREASURE land of A, B leases the property and conducts
excavation thereon. If in the land, valuable gold coins
Hidden treasure are found, is B entitled to the same? Explain. (1976 Bar
It is any hidden and unknown deposit of money, jewelry or
other precious objects, the lawful ownership of which does A: No, it was not found by chance (Art. 438, NCC). B
not appear (Art 439, NCC). deliberately searched for it. Moreover, treasure is defined
as hidden and unknown deposit of precious objects, the
Other precious objects lawful ownership of which does not appear. There being a
tip, the deposit is known. (Art. 439, NCC).
Under the ejusdem generis rule, the phrase should be
understood as being similar to money or jewelry. Q: Adam, a building contractor, was engaged by Blas to
construct a house on a lot which he (Blas) owns. While
Oil or gold NOT considered as hidden treasure. digging on the lot in order to lay down the foundation
of the house, Adam hit a very hard object. It turned out
These are natural resources. The Regalian Doctrine applies to be the vault of the old Banco de las Islas Filipinas.
and not the provisions on hidden treasure. Using a detonation device, Adam was able to open the
vault containing old notes and coins which were in
Rule regarding discovery of hidden treasure circulation during the Spanish era. While the notes
and coins are no longer legal tender, they were valued
GR: If the finder is the owner of the land, building, or other at P 100 million because of their historical value and
property where it is found, the entire hidden treasure the coins silver and nickel content. The following filed
belongs to him. legal claims over the notes and coins:
i. Adam, as finder;
XPN: If the finder is not the owner or is a stranger ii. Blas, as owner of the property where they were
(includes the lessee or usufructuary), he is entitled to found;
thereof (Art 566, NCC). iii. Bank of the Philippine Islands, as successor-in-
interest of the owner of the vault; and
If the finder is married iv. The Philippine Government because of their
historical value.
If the finder is married, he or she gets one half of the
treasure or its value. His or her spouse is entitled to share Who owns the notes and coins?
one-half of that share, it being a conjugal property (Art.
117, par. 4, FC). A: Hidden treasure is money jewelry or other precious
objects the ownership of which does not appear (Art. 439,
Requisites in order that the finder be entitled to any NCC). The vault of the Banco de las Islas Filipinas has been
share in the hidden treasure (ACTA) buried for about a century and the Bank of the Philippine
Islands cannot succeed by inheritance to the property of
1. Discovery was made on the property of Another, or of Banco de las Islas Filipinas. The ownership of the vault,
the State or any of its political subdivisions; together with the notes and coins can now legally be
2. Made by Chance; and considered as hidden treasure because its ownership is no
3. He is not a Trespasser or Agent of the landowner (Art. longer apparent. The contractor, Adams, is not a trespasser
438(2), NCC). and therefore entitled to one-half of the hidden treasure


and Blas as owner of the property, is entitled the other half ACCESSION
(Art. 438, NCC). Since the notes and coins have historical
value, the government may acquire them at their just price Accession
which in turn will be divided equally between Adam and
Blas (Art. 438, par.3, NCC). It may be defined as the right pertaining to the owner of a
thing over everything which is produced thereby, or which
Alternative Answer: The Banco de las Islas Filipinas is the is incorporated or attached thereto, either naturally or
owner of the vault. The finder and the owner of the land artificially (Art. 440, NCC).
cannot share in the notes and coins, because they are not
buried treasure under the law, as the ownership is known. Right of accession
Although under Art. 720 of the NCC the finder shall be
given a reward of one-tenth of the price of the thing found, It is that right of ownership of which an owner of a thing
as a lost movable, on the principle of quasi-contract. has over the products of said thing (accession discreta), as
well as to all things inseparably attached or incorporated
However, the notes and coins may have become res nullius thereto whether naturally or artificially (accession
considering that Banco de las Islas Filipinas is no longer a continua) (Pineda, 2009).
juridical person and has apparently given up looking for
them and Adam, the first one to take possession with Accession NOT a mode of acquiring ownership
intent to possess shall become the sole owner.
It is not one of the modes enumerated under Art. 712
Q: Assuming that either or both Adam and Blas are (different modes of acquiring ownership). It is, therefore,
adjudged as owners, will the notes and coins be safe to conclude that accession is not a mode of acquiring
deemed part of their absolute community or conjugal ownership.
partnership of gains with their respective spouses?
(2008 Bar Question) The reason is simple: accession presupposes a previously
existing ownership by the owner over the principal.
A: Yes. The hidden treasure will be part of the absolute Fundamentally and in the last analysis, accession is a right
community or conjugal property, of the respective implicitly included in ownership, without which it will
marriages. (Arts. 91, 93 & 106, FC) have no basis or existence (Paras, 2008).

Alternative Answer: It is not hidden treasure and NOTE: In general, the right to accession is automatic (ipso
therefore, not part of the absolute or conjugal partnership jure), requiring no prior act on the part of the owner or
of the spouses. But as the finder of the lost movable, then principal.
his reward equivalent to one-tenth of the value of the
vaults contents, will form part of the conjugal partnership. FRUITS
If the government wants to acquire the notes and coins, it
must expropriate them for public use as museum pieces Rule on the owners right of accession with respect to
and pay just compensation. what is produced by his property

Q: O, owner of Lot A, learning that Japanese soldiers To the owner belongs the:
may have buried gold and other treasures at the 1. Natural fruits - the spontaneous products of the
adjoining vacant Lot B, belonging to Spouses X and Y, soil, and the young and other products of
excavated in Lot B where she succeeded in unearthing animals;
gold and precious stones. How will the treasures found 2. Industrial fruits - are those produced by lands of
by O to be divided (1) 100% to O as finder, (2) 50% any kind through cultivation or labor;
to O and 50% to X and Y, (3) 50% to O and 50% to the 3. Civil fruits - the rents of buildings, the price of
State (4) none of the above? (2010 Bar Question) leases of lands and other property and the
amount of perpetual or life annuities or other
A: None of the above. The general rule is that the treasure similar income (Art. 441, NCC).
shall belong to the Spouses X and Y, the owners of Lot B.
Under Art. 438, NCC, the exception is that when the Obligation of the owner who receives the fruit from a
discovery of a hidden treasure is made on the property of third person
another and by chance, one-half thereof shall belong to the
owner of the land and the other one-half is allowed to the He who receives the fruits has the obligation to pay the
finder. In the problem, the finding of the treasure was not expenses made by a third person in their production,
by chance because O knew that the treasure was in Lot B. gathering and preservation.
While a trespasser is also not entitled to any share and
there is no indication in the problem whether or not O was NOTE: Only such as are manifest or born are considered as
a trespasser, O is not entitled to share because the finding natural or industrial fruits.
was not by chance.
With respect to animals, it is sufficient that they are in the
womb of the mother, although unborn.


Existence of the fruit Different kinds of accession continua as regard
movables (AMS)
It depends on the type of fruit:
1. Annual (must be planted every year/must re-plant 1. Adjunction or conjunction
after harvest; rice, wheat, corn) deemed manifest the 2. Mixture
moment their seedlings appear. 3. Specification
2. Perennial (only planted once and bear fruit for
several seasons; mango and coconut trees) deemed Adjunction
to exist only when they actually appear.
It is the process by virtue of which two movable things
Animal young belonging to different owners are united in such a way that
they form a single object and each of the things united
They are considered existing even if still in the maternal preserves its own nature (Art. 466, NCC).
womb. They should be considered existing only at the
commencement of the maximum ordinary period for Requisites of adjunction (2BUS)
There is adjunction when there are:
Pratus sequitor ventrem offspring follows the mother 1. 2 movables;
2. Belonging to different owners;
This legal maxim means that the offspring follows the dam 3. United forming a single object;
(mother). The legal presumption, in the absence of proof to 4. Separation would impair their nature or result in
the contrary, is that the calf, as well as its mother belongs substantial injury to either thing.
to the owner of the latter, by the right of accretion (US v.
Caballero, G.R. No. 8608, September 26, 1913). Thus, when Classes of adjunction or conjunction (PEWWS)
the ownership over the offspring of the animal when the
male and female belongs to different owners, the owner of 1. Painting (pintura)
the female was considered also the owner of the young, 2. Engraftment - Like setting a precious stone on a
unless there is a contrary custom or speculation. golden ring
3. Writing (escritura)
When fruits are deemed to exist 4. Weaving
5. Soldering- Joining a piece of metal to another metal
1. Civil fruits accrue daily and are considered personal a. Ferruminacion - Principal and accessory are of
property and may be pro-rated. the same metal
2. Natural and industrial fruits, while still growing, are b. Plumbatura Different metals (Art. 468, NCC)
considered as real property; ordinarily, they cannot
be pro-rated. Ownership of the resulting object

Ownership of fruits The owner of the principal by law becomes owner of the
resulting object and should indemnify the owner of the
GR: Fruits belong to the owner of the land (Art. 441, NCC). accessories for the values thereof.

XPNS: If the thing is: [PULPA] Tests to determine the principal (VVUM)
1. In possession of a Possessor in good faith (Art 546,
NCC); before the possession is legally interrupted. 1. That of greater Value- (Art. 468, NCC)
2. Subject to a Usufruct (Art. 566, NCC) 2. If two things are of equal value- That of greater
3. Lease of rural land Volume (Art. 468, NCC)
4. Pledged (Art. 1680 and Art. 2102, par. 7, NCC); pledge 3. If two things are of equal volume- That to which the
is entitled to the fruits but has the obligation to other has been United as an ornament, or for its use
compensate or set-off what he receives with those or perfection.
which are owing to him. 4. That which has greater Merits, utility and volume if
5. In possession of an Antichretic creditor (Art. 2132, things.
Ownership when the adjunction involves three or

FOR MOVABLES If the adjunction involves three or more things, the court
should first distinguish the principal and apply Art. 466 in
ACCESSION CONTINUA an equitable manner such that the principal acquires the
accessory, indemnifying the former owner thereof for its
Basic principle of accession with respect to movable value.
NOTE: Art. 466 states that Whenever two movable things
Accession exists only if separation is not feasible. belonging to different owners are, without bad faith,
Otherwise, separation may be demanded. united in such a way that they form a single object, the


owner of the principal thing acquires the accessory, Rules regarding mixtures
indemnifying the former owner thereof for its value.
1st Owner 2nd Owner
Separation of things is allowed in cases of (WIB)
By Will of Both Owners or by Accident
1. Separation Without injury
Good Faith Good Faith
2. Separation with Injury Accessory is much more
precious than the principal, the owner of the former 1. Right is subject to stipulations; OR
may demand its separation even though the principal 2. Right is in proportion to the part belonging to him (Co-
may suffer injury. ownership arises)
3. Owner of the principal acted in Bad faith. (Art. 469,
NCC) By Will of Only 1 Owner/ By Chance
Good Faith Good Faith
Rights of owners over the thing in adjunction
1. Have the things separated provided the thing suffers no
OWNER OF THE ACCESSORY 2. If cannot be separated w/o injury, acquire interest on
Good Faith Good Faith mixture in proportion to his part (co-ownership)
1. Receive payment for value Bad Faith
of accessory; OR Good Faith
1. Acquire accessory and (caused the mixture)
2. GR: Demand separation
pay owner of the 1st owner will lose his part on 2nd owner will acquire
provided the thing suffers
accessory for its the mixture and pay damages entire mixture and
no injury
value; OR to the 2nd owner entitled to damages
2. Demand separation
XPN: If accessory is more
provided the thing Good Faith
precious than principal, he Bad Faith
suffers no injury (caused the mixture)
may demand separation w/
or w/o injury to the thing As if both acted in GF,
As if both acted in GF, because
Good Faith Bad Faith since the 1st owner is in
the 2nd owner in GF was the
Acquire accessory w/o BF and the 2nd owner
one who caused the
paying the owner of Lose accessory and pay who caused the mixture
ratification, because the 1st
accessory and entitled to damages in GF in a way ratifies the
damages BF of 1st owner.
Bad Faith Good Faith
1. Pay value of accessory 1. Receive payment and Specification
and pay damages; OR damages; OR
2. Have the things 2. Have accessory separated It is the giving of new form to anothers material through
separated, even w/ or w/o injury to application of labor. The material undergoes a
though there is injury principal and receive transformation or change of identity. The labor is the
to the principal and damages principal and the materials used is the accessory.
pay damages
Bad Faith Bad Faith Respective rights of the maker and the owner of the
Same as though both acted in good faith materials in specification

Indemnity Maker (M) Owner of Materials (OM)

Good Faith Good Faith
It is made either by:
1. Delivery of a thing equal in kind and value; or GR: Appropriate the thing Receive payment for value
2. Payment of its price including the sentimental value. transformed and pay the of materials
(Art. 471, NCC) owner of the materials for
its value
XPN: If the material is more
It is the combination of materials where the respective precious than the thing
identities of the component elements are lost either transformed, the owner of
voluntarily or by chance. (Arts. 472-473, NCC) the materials has the
option to:
Kinds of mixtures (COM-CON) 1. Acquire the work and
1. Commixtion mixture of solids indemnify the maker
2. Confusion mixture of liquids for his labor; or
2. Demand indemnity for
the material
Good Faith Good Faith
1. Receive payment for 1. Appropriate new thing


value of his work; OR and pay the maker for FOR IMMOVABLES
2. Appropriate the new the work; OR
thing and pay the 2. Receive payment for ACCESSION DISCRETA
owner of materials for value of materials
its value Accession discreta
Bad Faith Good Faith
GR: It is the right pertaining to the owner of a thing over
1. Lose the new thing and 1. Appropriate the new everything produced thereby.
pay damages to owner thing without paying
of the materials; OR and receive damages; XPNs: It is subject to the following exceptions:
2. Pay value of materials OR 1. If the thing is in possession of a possessor in good
and damages to owner faith in which case such possessor is entitled to the
of the materials NOTE: Not available fruits (Art. 544, NCC).
if the new thing is 2. If the thing is subject to a usufruct, in which case the
more valuable than usufructuary is entitled to the fruits(Art. 566, NCC).
materials for 3. If the thing is leased, in which case the lessee is
scientific or artistic entitled to the fruits of the thing, although such lessee
reasons must pay the owner rentals which are in the nature of
civil fruits (Art. 1654, NCC).
2. Receive payment for the 4. If the thing is in possession of an antichretic creditor,
value of materials and in which case such creditor is entitled to the fruits
damages with the obligation of applying them to the interest
and principal (Art. 2132, NCC).
Adjunction, mixture and specification distinguished
Requisites of accession discreta
1. Increase or addition to the original thing
May involve 1 2. At repeated intervals
Involves at least 2 Involves at least thing (or more) 3. By inherent forces
things 2 things but form is

Accessory follows Co-ownership Accessory follows Accession continua

the principal results the principal
It is the right pertaining to the owner of a thing over
Things mixed or everything incorporated or attached thereto either
The new object
confused may naturally or artificially; by external forces.
Things joined retains or
either retain or
retain their preserves the
lose their 1. With respect to real property [IN]
nature nature of the
respective a. Accession Industrial (building, planting or
original object
natures sowing)
b. Accession Natural (alluvium, avulsion, change of
RULES FOR DETERMINING THE PRINCIPAL AND a river course, and formation of islands)
NOTE: In case of uprooted trees, the owner
Factors to determine the principal and the accessory retains ownership if he makes a claim within 6
months. This does not include trees which
Primary Factors (Importance/purpose) remain planted on a known portion on land
1. The thing which is incorporated to another thing as an carried by the force of the waters. In this latter
ornament is the accessory. The other is the principal. case, the trees are regarded as accessions of the
2. The thing to which is added to or joined to another for land through gradual changes in the course of
the use or perfection of the latter is the accessory. The adjoining stream (Payatas v. Tuazon, No. 30067,
other is the principal. March 23, 1929).

Secondary Factors 2. With respect to personal property [SAC]

1. The one which has a greater value shall be considered a. Specification
principal b. Adjunction or conjunction
2. If they have equal value, the one with greater volume c. Commixtion or confusion
shall be considered principal (Art. 467-468, NCC)
Basic principles in accession continua (BADONG-E)
NOTE: In painting and sculpture, writings, printed matter,
engraving and lithographs, the board, metal, stone, canvas, 1. He who is in Bad faith is liable for damages.
paper or parchment shall be deemed the accessory thing. 2. Accessory follows the principal
(Art. 468, NCC) 3. Union or incorporation must generally be effected in
such a manner that to separate the principal from the


accessory would result in substantial Damage to 3. What is built upon the land goes with it; or the land is
either or diminish its value. the principal, and whatever is built on it becomes the
4. To the Owner of the thing belongs the extension or accessory.
increases to such thing.
5. Bad faith of one party Neutralizes the bad faith of the Rule on ownership regarding accession industrial
other so that they shall be considered in good faith.
6. He who is in Good faith may be held responsible but GR: The owner of the land is the owner of whatever is
not penalized. built, planted or sown on that land, including the
7. No one shall unjustly Enrich himself at the expense of improvements or repairs made thereon.
ACCESSION INDUSTRIAL 1. When the doer is in good faith the rule is modified.
2. Improvements on the land of one of the spouses at the
Maxims in connection with accession industrial expense of the conjugal partnership will belong to the
partnership or to the spouse who owns the land
1. The accessory follows the principal. depending on which of the two properties has a
2. The accessory follows the nature of that to which it higher value (Art. 120, FC)
NOTE: If the doer is in bad faith, he is entitled only to
necessary expenses for the preservation of the land.

Rule if the planter and owner of the land are different

Gathered Fruits
Planter in GF Planter in BF
Keeps fruits (Art. 544 par 1, NCC) Reimbursed for expenses for production,
Planter gathering and preservation (Art. 443,
No necessity to reimburse the planter of Owns fruits provided he pays planter
Owner expenses since the planter retains the expenses for production, gathering and
fruits. (Art. 544 par 1, NCC) preservation (Art. 443, NCC)
Standing Crops
Planter in GF Planter in BF
Reimbursed for expenses, for production, Loses what is built, planted or sown
gathering and preservation (Art.443, NCC) without right to indemnity (Art 449,
Entitled to reimbursement for the
necessary expenses of preservation of
the land. (Art. 452, NCC).
Owns fruits provided he pays planter Owns fruits (Art. 449, NCC)
Owner expenses for production, gathering and
preservation (Art. 443, NCC)

Rule when the land owner is the builder, planter or sower

Land Owner and Builder, Planter or Sower Owner of Materials

Good Faith Good Faith
1. Receive indemnity for value of materials; or
Acquire building etc. after paying indemnity for value of
2. Remove materials if w/o injury to works, plantings or
materials. (Art. 447, NCC)
constructions (Art. 447, NCC)
Bad Faith Good Faith
Acquire building etc. after paying value of materials AND 1. Be indemnified for value of materials and damages; or
indemnity for damages, subject to the right of the owner of 2. Remove materials, w/ or w/o injury and be indemnified
materials to remove. (Art. 447, NCC) for damages (Art, 447, NCC)
Good Faith Bad Faith
1. Acquire w/o paying indemnity and right to damages (Art 1. Lose materials w/o being indemnified and pay damages
445 and 449, NCC by analogy) (Art 445 and 449, NCC by analogy)
2. Pay necessary expenses for preservation. (Art. 452 & 546, 2. Recover necessary expenses for preservation of land
NCC) without the right to retain the thing until the indemnity is
paid. (Art. 452 & 546, NCC)
Bad Faith Bad Faith
As though both acted in good faith (in pari delicto)
(Art. 453, NCC)



Rule when the land owner is NOT the builder, planter or sower

Land Owner Builder, Planter, Sower and Owner of Materials

Good Faith Good Faith
He can either: (Art. 448, NCC) If the Land Owner:
1. Acquire improvements after paying indemnity for: 1. Acquires the improvements after paying indemnity,
a. Necessary expenses, and Builder, Planter, or Sower has the right to retain the
b. Useful expenses which could either be: thing (and cannot be required to pay rent) until
a. Original costs of improvements indemnity is paid (Art. 546, NCC) .
b. Increase in the value of the whole (Art. 443 &
546, NCC) If the useful improvements can be removed without
damage to the principal thing, the Builder, Planter or
2. Sell the land to builder and planter or collect rent from Sower may remove them, unless the person who
sower unless the value of the land is considerably recovers the possession exercises the other (Art. 547 &
greater than the building etc., in which case, the builder 447, NCC).
and planter shall pay rent.
2. Sells the land, Builder or Planter cannot be obliged to
The parties shall agree upon the terms of the lease and buy the land if its value is considerably more than that of
in case of disagreement, the court shall fix the terms the building or trees.
In such case, he shall pay reasonable rent

The parties shall agree upon the terms of the lease and
in case of disagreement, the court shall fix the terms
thereof (Art. 448, NCC).
Good Faith Bad Faith
1. The land owner can either: 1. Lose improvements without right to be indemnified
a. Acquire improvements without paying indemnity unless the latter sells the land (Art. 449, NCC).
and collect damages (Art. 445 & 449, NCC). 2. Recover necessary expenses for preservation of land
b. Order the demolition of work or restoration to without the right to retain the thing until the indemnity
former condition and collect damages in both is paid (Art. 452 & 546).
cases (Art. 450, NCC). 3. Pay damages to land owner (Art. 451, NCC).
c. Sell the land to builder and planter or rent it to the
sower, and collect damages in both cases (Art. 450,

2. Pay necessary expenses for preservation (Art. 452 &

546, NCC).
Bad Faith Good Faith
Acquires improvements after paying indemnity and 1. Receive indemnity for improvements and receive
damages to builder, planter, sower, unless the latter decides damages; or
to remove (Art. 454,447&443, NCC). 2. Remove them in any event and receive damages
(Art. 454 & 447, NCC).
He cannot compel the builder planter or sower to buy the

The reason why said article (Art. 447, NCC) applies may be
explained as follows:
That if the land owner knew that something was
being built, planted or sown on his land by another
and he did not interpose any objection thereto, it is
as if he was the one building, planting or sowing in
bad faith on his own land with materials belonging
to another, using the owner of the materials as his
worker (Rabuya, Property, 2008 Ed.)
Bad Faith Bad Faith
As though both acted in good faith (in pari delicto)
(Art. 453, NCC)


Rule when the land owner, builder, planter, sower and owner of materials are different persons

Land Owner Builder, Planter, Sower Owner of Materials

Good Faith Good Faith Good Faith
He shall answer subsidiarily for their Pay value of materials to its owner (Art. 1. Collect value of materials
value and only in the event that the one 455, NCC). primarily from builder, planter,
who made use of them has no property sower, subsidiarily from land
with which to pay (Art. 455, NCC). and owner (Art. 455, NCC). Or

and If the Land Owner: 2. Remove the materials only if w/o

injury to the work constructed, or
He can either: (Art. 448, NCC) 1. Acquires the improvement, without the plantings,
1. Acquire improvements after paying Builder, Planter, or Sower may constructions or works being
indemnity for: demand from the landowner the destroyed (Art. 447, NCC).
a. Necessary expenses, and value of the materials and labor
b. Useful expenses which could (Art 455, NCC). NOTE: Landowner is subsidiarily
either be: liable only if he
a. Original costs of And he has the right to retain the appropriates/acquires the
improvements thing (and cannot be required to improvements.
b. Increase in the value of pay rent) until indemnity is paid
the whole (Art. 546 & 443, (Art. 546, NCC).
2. Sell the land to builder and planter If the useful improvements can be
or collect rent from sower unless removed without damage to the
the value of the land is principal thing, the possessor in
considerably greater than the good faith may remove them,
building etc., in which case, the unless the person who recovers
builder and planter shall pay rent. the possession exercises the other
(Art. 547 & 447, NCC)
The parties shall agree upon the
terms of the lease and in case of 2. Sells the land or rents it, Builder or
disagreement, the court shall fix Planter cannot be obliged to buy
the terms thereof. the land if its value is considerably
more than that of the building or

In such case, he shall pay

reasonable rent.

The parties shall agree upon the

terms of the lease and in case of
disagreement, the court shall fix
the terms thereof (Art. 448, NCC).
Good Faith Good Faith Bad Faith
Land Owner can either: (Art. 448, NCC) If the Land Owner: 1. Loses materials without right to
indemnity (Art. 449, NCC)
1. Acquire improvements after 1. Acquires the improvement,
paying indemnity for: Builder, Planter, or Sower has the 2. Pays damages (Art. 451, NCC)
a. Necessary expenses, and right to retain the thing (and
b. Useful expenses which could cannot be required to pay rent) The builder, planter or sower would be
either be: until indemnity is paid (Art. 546, considered merely an agent of the
a. Original costs of NCC). owner of materials.
b. Increase in the value of If the useful improvements can be Therefore, the provisions of Article
the whole (Art. 546 & removed without damage to the 449 of the Civil Code will apply by
443, NCC) principal thing, the possessor in analogy. He is even liable for damages
good faith may remove them, (Rabuya, 2008).
2. Sell the land to builder and planter unless the person who recovers
or collect rent from sower unless the possession exercises the
the value of the land is other (Art. 547, NCC).
considerably greater than the
building etc., in which case, the 2. Sells or rents it, Builder or
builder and planter shall pay rent. Planter cannot be obliged to buy
The parties shall agree upon the the land if its value is
terms of the lease and in case of considerably more than that of


disagreement, the court shall fix the building or trees.
the terms thereof.
Without subsidiary liability for In such case, he shall pay
cost of materials reasonable rent

The parties shall agree upon the

terms of the lease and in case of
disagreement, the court shall fix
the terms thereof (Art. 448, NCC).

Without indemnity to owner of

materials and collects damages
from him.
Good Faith Bad Faith Bad Faith
1. Option to: 1. Lose improvements without right 1. Recover value from builder,
a. Acquire improvements to be indemnified unless the planter, sower (in pari delicto)
without paying indemnity and landowner sells the land (Art. 449,
collect damages (Art. 445 & NCC). 2. If builder, planter, sower acquired
449, NCC). improvements, remove the materials
b. Order the demolition of work 2. Recover necessary expenses for only if w/o injury to the work
or restoration to former preservation of land without the right constructed, or without the plantings,
condition and collect damages to retain the thing until the indemnity constructions or works being
in both cases (Art. 450, NCC). is paid (Art. 452 & 546, NCC). destroyed (Art. 447, NCC).
c. Sell the land to builder and
planter or rent it to the sower, 3. Pay the value of the materials to 3. No action against land owner and
and collect damages in both the owner of the materials.
cases (Art. 450, NCC). 4. May be liable to the land owner
Since both the owner of the materials for damages (Art. 451, NCC)
2. Has right to demand damages from and the builder, etc. acted in bad faith,
both (Art. 451, NCC). as between them, they are treated as
having both acted in good faith (De
3. Pay necessary expenses for Leon, 2006)
preservation (Art. 452 & 546, NCC).
4. Pay damages to land owner (Art.
4. Not subsidiarily liable to the 451, NCC).
owner of the materials because as
to him, the two acted in bad faith.
(De Leon, Comments and Cases on
Property, 2006 Ed.)
Bad Faith Bad Faith Bad Faith

Same as though both acted in good faith (in pari delicto)(Art. 453, NCC)

Bad Faith Good Faith Good Faith

1. Acquires improvements after If he pays the owner of the materials, 1. Collect value of materials
paying indemnity and damages, unless plants or seeds: primarily from builder, planter, sower,
the latter decides to remove (Art. 454, subsidiarily from land owner (Art. 455,
447 & 443, NCC). i. He may demand from the NCC) or
landowner the value of the
2. Cannot compel builder, planter and materials and labor (Art 455, NCC) 2. Remove the materials in any
sower to buy land. and shall also be obliged to the event, with a right to be indemnified
reparation of damages (Art. 447, for damages (Art. 447, NCC)
NCC) or
ii. Remove the materials in any event,
with a right to be indemnified for
damages (Art. 454 & 447, NCC)
Bad Faith Bad Faith Good Faith
The owner of the land shall answer Pay value of materials to its owner (Art. 1. Collect value of materials
subsidiarily for their value and only in 455, NCC) primarily from builder, planter, sower,
the event that the one who made use of subsidiarily from land owner (Art. 455,
them has no property with which to and NCC) or
pay (Art. 455, NCC)
If the Land Owner: 2. Remove the materials in any
and event, with a right to be indemnified
1. Acquires the improvement, for damages (Art. 447, NCC)


Land Owner can either: (Art. 448, NCC) Builder, Planter, or Sower may demand
from the landowner the value of the
1. Acquire improvements after paying materials and labor (Art 455, NCC)
indemnity for:
a. Necessary expenses, and And he has the right to retain the thing
b. Useful expenses which could (and cannot be required to pay rent)
either be: until indemnity is paid (Art. 546, NCC).
i. Original costs of
improvements If the useful improvements can be
ii. Increase in the value of removed without damage to the
the whole (Art. 546 & 443, principal thing, the possessor in good
NCC) faith may remove them, unless the
person who recovers the possession
2. Sell the land to builder and planter exercises option 2. (Art. 547 & 447,
or collect rent from sower unless the NCC)
value of the land is considerably
greater than the building etc., in which 2. Sells or rents it, Builder or Planter
case, the builder and planter shall pay cannot be obliged to buy the land if its
rent. value is considerably more than that of
the building or trees.
The parties shall agree upon the terms
of the lease and in case of In such case, he shall pay reasonable
disagreement, the court shall fix the rent.
terms thereof.
The parties shall agree upon the terms
of the lease and in case of
disagreement, the court shall fix the
terms thereof (Art. 448, NCC).
Good Faith Bad Faith Good Faith
1. Option to: 1. Lose improvements without right 1. Collect value of materials
a. Acquire improvements to be indemnified unless the landowner primarily from builder, planter, sower,
without paying indemnity and sells the land (Art. 449, NCC). subsidiarily from land owner (Art. 455,
collect damages (Art. 445 & NCC) or
449, NCC). 2. Recover necessary expenses for
b. Order the demolition of work preservation of land without the right 2. Remove materials in any event if
or restoration to former to retain the thing until the indemnity builder, planter, sower acquired
condition and collect damages is paid (Art. 452 & 546, NCC). materials.
in both cases (Art. 450, NCC).
c. Sell the land to builder and 3. Pay value of materials to its owner
planter or rent it to the sower, plus damages (Art. 455, NCC).
and collect damages in both
cases (Art. 450, NCC). 4. Pay damages to land owner (Art.
451, NCC).
2. Pay necessary expenses for
preservation (Art. 452 & 546, NCC).

3. Subsidiarily liable to owner of


Bad Faith Good Faith Bad Faith

1. Acquires improvements after If he pays the owner of the materials, 1. Loses materials without right to
paying indemnity and damages, unless plants or seeds: indemnity (Art. 449, NCC)
the builder, planter or sower decides to
remove (Art. 454, 447 & 443, NCC). i. He may demand from the 2. Pays damages (Art. 451, NCC)
landowner the value of the
2. Cannot compel builder, planter and materials and labor (Art 455, NCC) The builder, planter or sower would be
sower to buy land. and shall also be obliged to the considered merely an agent of the
reparation of damages (Art. 447, owner of materials.
NCC) or
ii. Remove the materials in any event, Therefore, the provisions of Article 449
with a right to be indemnified for of the Civil Code will apply by analogy.
damages (Art. 454 & 447, NCC) He is even liable for damages. (Rabuya,


When there is good faith on the part of both the owner option, however, Felix shall have the right to a part of the
of the land and the builder, planter or sower expenses of cultivation and to a part of the net harvest,
both in proportion to the time of possession (Art. 545).
The owner of the land only has the options of paying the
value of the building or selling the land. He cannot refuse Q: Because of confusion as to the boundaries of the
either to pay or sell and compel the owner of the building adjoining lots that they bought from the same
to remove it from the land where it is erected. He is subdivision company, X constructed a house on the
entitled to such removal only when, after having chosen to adjoining lot of Y in the honest belief that it is the land
sell the land, the other party fails to pay for the same that he bought from the subdivision company.
(Ignacio v. Hilario, 76 Phil 606, 1946).
What are the respective rights of X and Y with respect
The landowner upon demand for payment CANNOT to X's house?
automatically become the owner of the improvement for
failure of the builder to pay for the value of the land. There A: The rights of Y, as owner of the lot, and of X, as builder
is nothing in Arts. 448 and 546 which would justify the of a house thereon, are governed by Art. 448 which grants
conclusion that upon failure of the builder to pay the value to Y the right to choose between two remedies: (a)
of the land, when such is demanded by the landowner, the appropriate the house by indemnifying X for its value plus
land owner becomes automatically the owner of the whatever necessary expenses the latter may have incurred
improvement under Art. 445. for the preservation of the land, or (b) compel X to buy the
land if the price of the land is not considerably more than
When the lands value is considerably more than the the value of the house. If it is, then X cannot be obliged to
improvement, the landowner cannot compel the builder to buy the land but he shall pay reasonable rent, and in case
buy the land. In such event, a forced lease is created and of disagreement, the court shall fix the terms of the lease.
the court shall fix the terms thereof in case the parties
disagree thereon (Depra v. Dumalo, No. L-57348, May 16, Q: Believing that a piece of land belonged to him, A
1985). erected thereon a building, using materials belonging
to C. the owner of the land, B was aware of the
Rule when landowner sells the land to a 3rd person construction being made by A, but did not do anything
who is in bad faith to stop it. What are the rights of A, B, and C, with
respect to the building and as against each other?
Builder must go against the 3rd person but if the latter has (1984 Bar Question)
paid the land owner, a case against such land owner may
still be filed by the builder and the 3rd person may file a 3rd A: B, regardless of his good or bad faith, becomes the
party complaint against land owner. owner of the building (Arts. 445 & 448, NCC). However, A, a
builder in good faith will be entitled to reimbursement of
Recourse left to the parties where the builder fails to his necessary and useful expenses, with right to retain the
pay the value of the land. same until paid. He may also remove the construction,
since B acted in bad faith in not stopping the construction
The Civil Code is silent on this point. Guidance may be had (Arts. 454 & 447, NCC). C shall have the right to
from these decisions: reimbursement and may also remove them but only if he
1. In Miranda v. Fadullon, G.R. No. L-8220, October 29, can do so without injury to the work (Art. 447, NCC).
1955, the builder might be made to pay rental only,
leave things as they are, and assume the relation of Suppose X was in good faith but Y knew that X was
lessor and lessee; constructing on his (Y's) land but simply kept quiet
2. In Ignacio v. Hilario, G.R. L-175, April 30, 1946, owner about it, thinking perhaps that he could get X's house
of the land may have the improvement removed; or later. What are the respective rights of the parties over
3. In Bernardo v. Bataclan, G.R. No. L-44606, November X's house in this case? (1999 Bar Question)
28, 1938, the land and the improvement may be sold
in a public auction, applying the proceeds first to the A: Since the lot owner Y is deemed to be in bad faith (Art.
payments of the value of the land, and the excess if 453), X as the party in good faith may (a) remove the house
any, to be delivered to the owner of the house in and demand indemnification for damages suffered by him,
payment thereof (Filipinas College Inc. v. Timbang, G.R. or (b) demand payment of the value of the house plus
No. L-12812, September 29, 1959). reparation for damages (Art. 447, in relation to Art. 454). Y
continues as owner of the lot and becomes, under the
Q: Felix cultivated a parcel of land and planted sugar second option, owner of the house as well, after he pays
cane, believing it to be his own. When the crop was the sums demanded.
eight months old, and harvestable after two more
months, a resurvey of the land showed that it really Q: Bartolome constructed a chapel on the land of Eric.
belonged to Fred. What are the options available to What are Bartolomes rights if he were: (1) possessor
Fred? (2000 Bar Question) of the land in good faith, or (2) in bad faith? (1996 Bar
A: As to the pending crops planted by Felix in good faith,
Fred has the option of allowing Felix to continue the A: (1) A chapel is a useful improvement, Bartolome may
cultivation and to harvest the crops, or to continue the remove the chapel if it can be removed without damage to
cultivation and harvest the crops himself. In the latter the land, unless Eric chooses to acquire the chapel. In the


latter case, Bartolome has the right of reimbursement of A:
the value of the chapel with right of retention until he is 1. Pablo is correct. Under Art. 448 in relation to Art.
reimbursed (Arts. 448, 546 & 547, NCC). 546, the builder in good faith is entitled to a refund of
(2) Bartolome loses whatever he built, without any right to the necessary and useful expenses incurred by him, or
indemnify. (Art. 449, NCC). the increase in value which the land may have
acquired by reason of the improvement, at the option
Q: Pecson owned a commercial lot on which he built a of the landowner. The builder is entitled to a refund of
building. For failure to pay realty taxes, the lot was the expenses he incurred, and not to the market value
sold at public auction to Nepomuceno, who in turn sold of the improvement.
it to the spouses Nuguid. The sale, however, does not
include the building. The spouses subsequently moved NOTE: The case of Pecson v. CA, G.R. No. 115814, May
for the delivery of possession of the said lot and 26, 1995 is not applicable.
apartment. Pecson filed a motion to restore possession
pending determination of the value of the apartment. 2. Pablo is entitled to the rentals of the building. As
the owner of the land, Pablo is also the owner of the
May Pecson claim payment of rentals? building being an accession thereto. However, Pedro
who is entitled to retain the building is also entitled to
A: Yes, Pecson is entitled to rentals by virtue of his right of retain the rentals. He, however, shall apply the rentals
retention over the apartment. The construction of the to the indemnity payable to him after deducting
apartment was undertaken at the time when Pecson was reasonable cost of repair and maintenance.
still the owner of the lot. When the Nuguids became the
uncontested owner of the lot, the apartment was already in Q: The Church, despite knowledge that its intended
existence and occupied by tenants. contract of sale with the National Housing Authority
(NHA) had not been perfected, proceeded to introduce
Art. 448 does not apply to cases where the owner of the improvements on the disputed land. On the other
land is the builder but who later lost the land; not being hand, NHA knowingly granted the Church temporary
applicable, the indemnity that should be paid to the buyer use of the subject properties and did not prevent the
must be the fair market value of the building and not just Church from making improvements thereon. Did the
the cost of construction thereof. To do otherwise would Church and NHA act in bad faith?
unjustly enrich the new owner of the land.
A: Yes. The Church and the NHA, both acted in bad faith,
NOTE: While the law aims to concentrate in one person hence, they shall be treated as if they were both in good
the ownership of the land and the improvements thereon faith (National Housing Authority v. Grace Baptist Church,
in view of the impracticability of creating a state of forced G.R. No. 156437, March 1, 2004).
co-ownership, it guards against unjust enrichment insofar
as the good-faith builders improvements are concerned. Q: A squatter, X, is sought to be evicted by the
The right of retention is considered as one of the measures landowner Y, seeks reimbursement from the latter for
to protect builders in good faith. the improvements he made on the property, while Y
demands the value of all the fruits X gathered from the
Pending complete reimbursement, may the spouses land during the occupancy thereof. Is X entitled to the
Nuguid benefit from the improvement? indemnity he prays for? Is he bound to pay for the
fruits he received? Why? (1983 Bar Question)
A: No. Since spouses Nuguid opted to appropriate the
improvement for themselves when they applied for a writ A: As a possessor in bad faith, X may recover only the
of execution despite knowledge that the auction sale did necessary expenses he may have incurred while in
not include the apartment building, they could not benefit possession and reimbursement for useful improvements
from the lots improvement until they reimbursed the introduced by him if owner Y chooses to retain them and X
improver in full, based on the current market value of the must pay Y the value of all the fruits he received.
property (Pecson v. CA, G.R. No. 115814, May 26, 1995).
Q: In good faith, Pedro constructed a five-door
commercial building on the land of Pablo who was also Rights of the usufructuary over improvements he
in good faith. When Pablo discovered the construction, introduced on the property held in usufruct
he opted to appropriate the building by paying Pedro
the cost thereof. However, Pedro insists that he should GR: The usufructuary is not entitled to indemnity for the
be paid the current market value of the building, expenses he had incurred in the making of the
which was much higher because of inflation. (2000 Bar improvements.
XPN: He may remove the improvements even against the
1. Who is correct, Pedro or Pablo? will of the owner, provided, that no damage would be
2. In the meantime that Pedro is not yet paid, who is caused to the property (Art. 579, NCC).
entitled to the rentals of the building, Pedro or
Pablo? The usufructuary may introduce useful or luxurious
improvements but is prohibited from altering the form and
substance of the property.


If the improvements cannot be removed without causing
damage to the property, the usufructuary may set off the Alluvial deposits must be registered. Though,
improvements he may have made on the property against automatically it is owned by the riparian owner (Heirs of
any damage to the same (Art 580, NCC). Navarro v. IAC, G.R. No. 68166, February 12, 1997), it is still
subject to acquisitive prescription which may divest the
ACCESSION NATURAL riparian owner the ownership over the accretion

ALLUVION Failure to register

Alluvium or alluvion If the riparian owner fails to register the deposits within
the prescriptive period of acquiring real property (10
It is the gradual deposit of sediment by natural action of a years if ordinary prescription or 30 years if extraordinary
current of fresh water (not sea water), the original identity prescription), it subjects said accretion to acquisition thru
of the deposit being lost. Where it is by sea water, it prescription by third persons (Reynante v. CA, G.R. No.
belongs to the State (Government of Philippine Islands v. 95907, Apr. 8, 1992).
Cabangis, G.R. No. L-28379, March 27, 1929).
However, registration under the Torrens System does not
NOTE: Art. 457, NCC states To the owners of the lands protect the riparian owner against the diminution of the
adjoining the banks of the rivers belongs the accretion area of his registered land through gradual changes in the
which they gradually receive from the effects of the course of an adjoining stream.
current of the waters.
Reasons for granting a riparian owner the right to
Accretion v. Alluvium alluvion deposited by a river

Accretion is the process whereby the soil is deposited 1. To compensate him for:
while alluvium is the soil deposited. a. danger of loss that he suffers due to the location
of his land; and
Requisites of alluvium (GRA) b. for the encumbrances and other easements on
his land
1. Deposit be Gradual and imperceptible 2 To promote the interests of agriculture as he is in the
2. Resulted from the effects of the current of the water best position to utilize the accretion.
3. The land where the accretion takes place is Adjacent
to the banks of a river CHANGE IN THE COURSE OF RIVER

If all the requisites are present, the riparian owner is Change in the course of river
automatically entitled to the accretion.
When a river changes its course by natural causes and its
NOTE: The alluvion starts to become the property of the bed is formed on a private estate, it becomes a property of
riparian owner from the time that the deposit created by public dominion whether it is navigable or floatable.
the current of water becomes manifest (Heirs of Navarro v.
IAC, GR. No. 68166, February 12, 1997). Requisites (NAPA)

Man-made or artificial accretions to lands NOT 1. There must be a Natural change in the course of the
included waters of the river; otherwise, the bed may be the
subject of a State grant (Reyes-Puno, p.54).
The rule on alluvion does not apply to man-made or 2. The change must be Abrupt or sudden;
artificial accretions to lands that adjoin canals or esteros 3. The change must be Permanent;
or artificial drainage system (Ronquillo v. CA, G.R. No
43346, March 20, 1991). NOTE: The rule does not apply to temporary
overflowing of the river.
NOTE: If the deposits accumulate, not through the effects
of the current of the water, but because of the 4. There must be Abandonment by the owner of the bed.
constructions made by the owner purely for defensive
purposes against the damaging action of the water, the NOTE: Abandonment pertains to the decision not to
deposits are still deemed to be alluvion and will belong to bring back the river to the old bed (Reyes-Puno, p.53).
the riparian owner.
Effect when the river bed is abandoned
If the deposit is brought about by sea water
River beds which are abandoned through the natural
It belongs to the State and forms part of the public domain. change in the course of the waters ipso facto belong to the
owners whose lands are occupied by the new course in
proportion to the area lost. However, the owners of the
lands adjoining the old bed shall have the right to acquire
the same by paying the value thereof, which value shall not


exceed the value of the area occupied by the new bed (Art Rule on avulsion of uprooted trees
461, NCC).
GR: The owner of the tree retains ownership.
NOTE: The rule on abandoned river bed does not apply to
cases where the river simply dries up because there are no XPN:
persons whose lands are occupied by the waters of the 1. The owner must claim them within a period of 6
river. months.
2. If uprooted trees have been transplanted by the
AVULSION owner of the land which the trees may have been cast
and said trees have taken root in said land, the owner
Avulsion of the trees, upon making the claim, is required to
refund the expenses incurred in gathering them or in
It is the deposit of known (identifiable) portion of land putting them in safe place, including the expenses
detached from the property of another which is attached incurred by the owner of the land for the preservation
to the property of another as a result of the effect of the of the trees (Rabuya, 2008).
current of a river, creek or torrent.
Art. 459, NCC states that whenever the current of a river,
creek, or torrent segregates from an estate on its banks a Rules on ownership with regard to formation of
known portion of land and transfers it to another estate, islands
the owner of the land to which