Family Code of the P hilippines (Rabuya)

FAMILY CODE OF THE 3 Components of legal capacity

1. Age requirement
PHILIPPINES - Must be at least 18 years of age
- Qualified by Art. 14
(RABUYA)
PARENTAL CONSENT is required if the
contracting party is below 21 years old
Took effect on August 3, 1988
Absence of parental consent renders the
marriage voidable
- Required minimum age for marriage should be
reckoned ON THE DATE OF MARRIAGE, not on
TITLE I. MARRIAGE the date of the filing of application for the issuance of
Chapter 1 marriage license
REQUISITES OF MARRIAGE **Parties contract marriage on the date of solemnization of marriage

2. Parties must be of Opposite Sex

ART. 1
Marriage is more than a contract because once executed, a relation
between the parties is created which they cannot change
- Unlike marriage, other contracts may be modified, restricted or
enlarged or entirely released upon the consent of the parties
Marriage between rapist and the raped person
- Subsequent valid marriage between the offender and offended
extinguishes the criminal action or penalty imposed
- If the legal husband is the offender, subsequent forgiveness by
the wife as offended party shall extinguish the criminal action or
penalty, but not if the marriage is void ab initio
Marriage creates a social status or relation between contracting
parties in which the State is also interested
Art. II, Sec. 12, Constitution
- State recognizes the Filipino family as the foundation of the
nation
- Sec. 2, Art. 15 Constitution
- Lawful marriage does not shed the spouses integrity or their
privacy as individuals
- Legislative regulation of marriage must not contravene the
mandates of the Constitution
- Marriage settlements must be within the limits of the Family
Code
To determine validity of marriage
- To be tested by the law in force at the time the marriage was
contracted
- GR: Nature of marriage already celebrated cannot be changed
by a subsequent amendment to the law
**Void marriages can NEVER be ratified
- Indispensable
3. Absence of Impediments mentioned in Arts. 37 and 38
- See Arts. 37 and 38
Consent
- Must be MUTUAL
- Parties must in fact consent and there must be physical assent to
the contract
- Manifestation of consent: Appear personally before the
solemnizing officer and declare in the present of not less than
two witnesses of legal age that they take each other as husband
and wife
- Must be freely, voluntarily and intelligently given
Authority of solemnizing officer
- If not authorized under the law, marriage is void ab initio
- EXCPN: However, if either or both parties believed in good
faith that the solemnizing officer had legal authority to do so,
then the marriage shall remain valid despite the solemnizer s
lack of authority
- Only the following persons are authorized to solemnized
marriage:
1. Incumbent members of the judiciary within the courts
jurisdiction
2. Priest, rabbi, imam or minister of any church or
religious sect duly authorized by his church or religious
sect
3. Ship captain or airplane chief, in case of articulo mortis
4. Military commanders of a unit, in cases of articulo
mortis
5. Consul-general, consul or vice consul, in limited cases
6. Mayos

Valid marriage license

ART. 2 - ART. 3 - To notify the public that the two persons are about to be united
Requisites of Marriage: in matrimony and that anyone who has knowledge of any
1. Essential and formal requisites impediment shall make it known to the local civil registrar
2. Legal capacity - When marriage license can be dispensed with:
3. Consent 1. Art. 27
4. Authority of the solemnizing officer 2. Art. 28
5. Valid marriage license 3. Art. 33
6. Marriage ceremony 4. Art. 34

Art. 2 ESSENTIAL REQUISITES: Marriage ceremony/ Solemnization of Marriage

1. Legal capacity - In this jurisdiction, informal or common-law marriages are not
2. Consent recognized
- Marriage by proxy is not recognized
Art. 3 FORMAL REQUISITES: - The requirements of at least 2 witnesses of legal age is merely
1. Authority of solemnizing officer directory so that a failure to comply therewith does not
2. Valid marriage license invalidate the marriage
3. Marriage ceremony
Abesamis, Austinne Joyce D. !1

ART. 4
Effect of Absence of any Requisite
- ABSENCE of any essential or formal requisite: Marriage is
VOID ab initio
EXCPN: Art. 35(2): The only exception to the rule
expressed in par. 1, Art. 4
- The following marriages are VOID ab initio:
1. Where consent is lacking
2. Contracted by any party who is not legally capacitated
3. Solemnized by any person not authorized to perform
marriages, except Art. 35(2)
4. Solemnized without a valid marriage license, except
those exempt from license requirements
5. Common law marriages and marriages by proxy
Effect of DEFECT or IRREGULARITY in the requisites
- If any of the ESSENTIAL requisites is DEFECTIVE: Marriage
is VOIDABLE
- If there is IRREGULARITY in any of the FORMAL requisites:
Validity of marriage is not affected but the party/parties
responsible for such irregularity shall be civilly, criminally or
administratively liable
Marriage Void ab initio where consent is totally lacking
- Consent must be lacking from BOTH the contracting parties
- The fact that marriage is fraudulent on the part of one party will
not render it void where other party is deceived and believed it
to be a valid marriage
May be inferred from Art. 44 which declares a
subsequent marriage as Void ab initio only if both
spouses acted in bad faith
Marriages contracted through mistake of one contracting party as to
the identity of the other
- Void ab initio
- There is no real consent
Where there is consent but same is vitiated by reason of fraud, force,
intimidation or undue influence, or either party is of unsound mind
- Marriage is voidable
- Consent is defective but present
Marriage celebrated without a valid Marriage License
- Void ab initio
- A marriage which preceded the issuance of such license is void;
subsequent issuance of such license cannot render valid or even
add an iota of validity to the marriage
- However, if there is a license but is wrongfully or fraudulently
obtained or there is an irregularity in its issuance, the validity of
marriage is not affected
- Marriage celebrated 120 days after the issuance of marriage
license is void ab initio (Art. 20)
Failure of parties to sign the marriage certificate will not likewise
affect the validity of marriage
- Purpose of the certificate: Evidence of marriage
- Absence of marriage certificate is not proof that no marriage
took place because other evidence may be presented to prove
the marriage
ART. 5 - ART. 6
For a marriage to exist, it is essential that contracting parties must
appear personally before the solemnizing officer and that their
consent to the contract of marriage be given in the latters presence
Abesamis, Austinne Joyce D.
Family Code of the P hilippines (Rabuya)
- Mere private act of signing a marriage contract without the
presence of solemnizing officer does not amount to a marriage
ceremony
3 Requisites in a marriage ceremony:
1. Personal appearance of contracting parties before
solemnizing officer
2. Personal declaration that they take each other as
husband and wife
3. Declaration done in the presence of the solemnizing
officer and at least two witnesses of legal age
ART. 7
Members of the Judiciary
1. They must be incumbent members
2. They must solemnize the marriage within their courts
jurisdiction
The following are members of the Judiciary
1. CJ and AJ of the SC- national jurisdiction
2. PJ and J of CA- national jurisdiction
3. PJ and J of Sandiganbayan- national jurisdiction
4. Judges of the RTCs, CTA, MTC, MMTC- jurisdiction
within a limited territory designated by law
Marriages outside the courts jurisdiction
- Outside of their courts jurisdiction, they are not clothed with
authority to solemnize marriages
- Ex. If marriage is solemnized by a judge of RTC outside of their
courts jurisdiction, there in an ABSENCE of a formal requisite;
the marriage will be considered void ab initio
There is a TOTAL ABSENCE of a FORMAL
REQUISITE
Marriage in Good Faith
- Art. 35(2)
- If the good faith of the parties consists in their mistaken belief
that a judge has the authority to solemnize marriages outside of
his courts jurisdiction, marriage is VOID ab initio
This is a case of ignorance of law
- HOWEVER, if their good faith consists in their mistaken belief
that the solemnizer is a judge of the locality where the marriage
is celebrated, then good faith may be invoked in this case since
there is a clear case of ignorance of fact
Priest, Rabbi, Imam or Minister
- Requisites:
1. Must be duly authorized by his respective church or
sect
2. Must be duly registered with the Civil Registrar
General
3. Must act within the limits of his written authority
4. At least one of the contracting parties must belong to
the solemnizing officers church or sect
- If any of the requisites is not present, the religious solemnizer is
not clothed with authority to solemnize a marriage
Marriage is Void ab initio
- If none of the parties belonged to the solemnizing officers
church or sect, it is submitted that good faith may not be
invoked
This is a case of ignorance of law
The issuance by the Civil Registrar General of the authorization is
purely a ministerial duty
Pursuant to Art. 33, marriages among Muslims or members of the
ethnic cultural communities may be solemnized without need of
securing a marriage license
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- However, Art. 33 does not dispense with the requirement of
registration of the solemnizing officer
Mayors
- Their authority was restored by the LGC
- Ordinarily, the powers of a mayor are confined only within his
territorial jurisdiction
But the fact that a mayor had solemnized a marriage
outside of his jurisdiction will NOT AFFECT the
validity of the marriage; this is a mere irregularity in
the exercise of his authority
Different from the authority of the members of the
judiciary which is confined by law to their courts
jurisdiction
LGC states that mayors are authorized to solemnize
marriages without limiting the exercise of such
authority to their territorial jurisdiction
ART. 8
Venue or place of marriage
1. If to be solemnized by a member of the judiciary, it
must be held in the chamber of the judge or in his sala
in open court
2. If to be solemnized by a religious solemnizer, it must be
held in the church, chapel or temple of the religious
solemnizer concerned
3. If to be solemnized by consul-general, consul or vice-
consul, the marriage must be celebrated in his office
In the following cases, marriage may be celebrated elsewhere
1. In cases contracted at the point of death
2. In cases of marriages contracted in remote places in
accordance with the provisions of Art. 29
3. In cases where both of the parties to the marriage
requested the solemnizing officer in writing and under
oath to solemnize the marriage elsewhere
Art. 8 is merely DIRECTORY
- It only refers to the venue of marriage and does not alter or
qualify the authority of the solemnizing officer
- Non-compliance will not affect the validity of the marriage
since this is a mere irregularity
- But not in the case of marriages solemnized by judges outside
their territorial jurisdiction
ART. 9 - ART. 10
If the license is obtained elsewhere, the validity of marriage is not
affected since this is a mere irregularity
If the marriage is between a Filipino and an alien, it appears that
consular officials are not clothed with authority to solemnize such
marriage
- They have no authority to solemnize marriages outside of the
country where they hold office
ART. 11 - ART. 21
Application for issuance of license must be filed in the local civil
registrar of the city or municipality where either contracting party
habitually resides
- Although a license obtained elsewhere shall not affect the
validity of the marriage
Documents accompanying the Application
1. Birth or Baptismal Certificate
2. Death Certificate of Spouse, Divorce Decree, etc.
Abesamis, Austinne Joyce D.
Family Code of the P hilippines (Rabuya)
3. Parental Consent
- Absence of parental consent is a ground to annul
marriage
4. Parental Advice
5. Certificate of Marriage Counselling
6. Certificate of Legal Capacity
- The absence thereof is a mere irregularity
If the license is issued prior to the lapse of the 10-day period of
publication or issued in the absence of such requisite publication, it
will not affect the validity of the marriage celebrated on the basis of
the license so issued
Issuance of a license is a ministerial duty of the civil registrar
Marriage celebrated on the basis of such cancelled license is void ab
initio for want of a formal requisite of marriage
ART. 22 - ART. 25
Marriage certificate or marriage contract is the best documentary
evidence of a marriage
Absence thereof is not proof that no marriage took place since other
evidence may be presented to prove the existence of marriage
There mere fact that no record of marriage exists in the registry of
marriage does not invalidate said marriage, as long as in the
celebration thereof, all requisites for validity are present
ART. 26
The following marriages are void ab initio even if valid in the place
where it was celebrated
1. If both parties are Filipinos and either one or both of them is
below 18
2. If one of the parties to a marriage is a citizen of the Ph and
he or she is below 18
3. Bigamous or polygamous marriage
4. If contracted through the mistake of one contracting party as
to the identity of the other
5. If one of the parties in a subsequent marriage is a party to a
prior marriage which has been annulled or judicially
declared void but fails to comply with the requirement of
Art. 52
6. If one of the parties to a marriage, at the time of the
celebration, was psychologically incapacitated to comply
with the essential marital obligations
7. Incestuous marriages
8. If void by reason of public policy
It is a condition sine qua non that the divorce must have been
obtained by the alien spouse and NOT by the Filipino spouse
RP v. ORBECIDO III
- Art. 26, par. 2 should be interpreted to apply cases involving
parties who at the time of the celebration of marriage were
Filipino citizens, but later on, one of them becomes naturalized
as a foreign citizen and obtains a divorce decree
- The Filipino spouse should also be allowed to remarry as if the
other party were a foreigner at the time of the solemnization of
marriage
**Reckoning point is not the citizenship of the parties at the
time of the celebration of the marriage, but their citizenship
at the time a valid divorce was obtained abroad by the alien
spouse
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Chapter 2
MARRIAGES EXEMPTED FROM THE LICENSE
REQUIREMENT
ART. 27 - ART. 30
Marriages EXEMPT from the license requirement
1. In cases where either or both of the contracting parties are at
the point of death
2. If the residence of either party is so located that there is no
means of transportation to enable such party to appear
personally before the local civil registrar
3. Marriages among Muslims or among members of ethnic
cultural communities provided the same are solemnized
according to their customs, rites or practices
4. Marriages of a man and a woman who have lived together as
husband and wife for at least five years and without any
legal impediment to marry each other
The absence of the affidavit of the solemnizing officer in cases of
marriages performed in articulo mortis will not affect the validity of
the marriage
ART. 31 - ART. 32
Authority of the ship captain or airplane chief to solemnize
marriages is subject to the following conditions and/or requisites
1. Must be in articulo mortis
2. Must be between passenger or crew members
- Authority may be exercised not only while the ship is at sea or
the plane is in flight but also during stopovers at the ports of call
- Airplane pilot refers to an airplane chief who is the head of
the crew, in the same way that the same authority is granted
only to the ship captain
Military commander of a unit has the authority to solemnize
marriage if the following conditions and/or requisites are present
1. Must be a commissioned officer, or an officer in the armed
forces holding rank by virtue of a commission from the
President
2. The assigned chaplain to his unit must be absent
3. Must be in articulo mortis
4. Must be solemnized within the zone of military operations
- Contracting parties may either be members of the armed forces
or civilians
ART. 33 - ART. 34
Rationale behind Art. 34
- To avoid exposing the parties to humiliation, shame and
embarrassment concomitant with the scandalous cohabitation of
persons outside a valid marriage due to the publication of every
applicants name for a marriage license
- The following requisites must concur
1. The man and woman must have been living together as
husband and wife for at least five years before the
marriage
2. Parties must have no legal impediment to marry each
other
3. Fact of absence of legal impediment must be present at
the time of marriage
4. Parties must execute an affidavit stating that they have
lived together for at least 5 years
5. Solemnizing officer must execute a sworn statement
that he had ascertained the qualifications of the parties
that he had found no legal impediment to their marriage
Abesamis, Austinne Joyce D.
Family Code of the P hilippines (Rabuya)
Nature of Cohabitation
- The requirement of absence of legal impediment should apply
during the entire 5-year cohabitation
- NIAL v. BAYADOG
Cohabitation must 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
characterized by EXCLUSIVITY meaning no third
party was involved at anytime within the 5 years and
CONTINUITY that is unbroken
If that continuous 5-year cohabitation is computed
without any distinction as to whether the parties were
capacitated to marry each other during the entire 5
years, then the law would be sanctioning immorality
and encouraging the parties to have common law
relationships and placing them on the same footing with
those who lived faithfully with their spouse
- The 5-year common-law cohabitation period, which is counted
back from the date of celebration of marriage, should be a
period of legal union had it not been for the absence of marriage
Chapter 3
VOID AND VOIDABLE MARRIAGES
VOID MARRIAGE VOIDABLE MARRIAGE
Deemed never to have taken Considered valid and produces
place at all and cannot be the all its civil effects, until it is set
source of rights aside by final judgment
Can NEVER be ratified and is Can be generally ratified or
not subject to prescription confirmed by free cohabitation
or prescription
Can be attacked collaterally Can be assailed only in a direct
proceeding for that purpose and
not collaterally
Can be question even after the Can be assailed only during the
death of either party lifetime of the parties
Only parties to a voidable marriage can assail it but any proper
interested party may attack a void marriage
Children conceived before a voidable marriage is annulled are
legitimate
Petition for Declaration of Absolute Nullity of void marriage may be
filed solely by the husband or the wife
- But a void marriage is still subject to a collateral attack
- For purposes other than remarriage, such as but not limited to
determination or heirship, legitimacy or illegitimacy of a child,
settlement of estate, dissolution of property regime, the court
may pass upon the validity of marriage even in a suit not
directly instituted to question the same so long as it is essential
to the determination of the case
Marriages VOID from the beginning
- Arts. 35, 36, 37, 38, 44
- Also, absence of any of the essential or formal requisites
renders the marriages void ab initio
- Marriages between persons of the same sex if celebrated in the
Ph
- Marriages where consent is totally lacking
!4

- Common-law marriages and marriages by proxy
- Marriages where exchange of vows was not done personally by
the contracting parties in the presence of the solemnizing officer
ART. 35
Marriage contracted by any party below 18 years of age
- Absence of legal capacity
Solemnized by any person not authorized to perform marriages
- Rule is not absolute
- Even if solemnizing officer has no legal authority as long as
either or both contracting parties believed in good faith that he
had the legal authority to do so, marriage is still valid, not only
with respect to the parties to such marriage but also with respect
to third persons and the State
- If contracting parties will go before a person not specifically
mentioned by law as having authority to solemnize marriages,
the exception does not apply
- If they go before a person enumerated in Art. 7 but who is not
authorized to perform marriages for failing to comply with the
requirements laid down by law, marriage will still be valid if
either or both parties relied in good faith in his apparent
authority
Lack of marriage license
- Marriage license obtained after the celebration of marriage does
not cure its invalidity
Bigamous and Polygamous Marriages
- A second or subsequent marriage is void ab initio for being
bigamous, even if the other party had acted in good faith and
was not aware of the existence of the previous marriage at the
time of the celebration of the subsequent marriage
- Not absolute because a subsequent bigamous marriage may be
considered valid if all the requisites under Art. 41 are present
Mistake in Identity
- Mistake in identity must be with reference to the actual physical
identity of the other party, not merely a mistake in the name,
personal qualifications, character, social standing, etc.
- There is absence of real consent
Non-compliance with procedure under Art. 52
- Only after complying with the requirements may either of the
spouses be allowed to remarry
ART. 36
No precise definition of Psychological Incapacity as to allow some
resiliency in its application
Whether or not psychological incapacity exists depends crucially on
the facts of the case
Psychological incapacity should refer to no less than mental (not
physical) incapacity that causes a party to be truly incognitive of the
basic marital covenants that concomitantly must be assumed and
discharged by the parties to the marriage which include their mutual
obligations to live together, observe love, respect and fidelity and
render help and support
Psychologic condition must EXIST at the time the marriage is
celebrated
Characteristics of Psychological Incapacity
- SANTOS v. CA
1. Gravity
Abesamis, Austinne Joyce D.
Family Code of the P hilippines (Rabuya)
- Incapacity must be grave or serious that the party
would be incapable of carrying out the ordinary duties
required in marriage
- Grave enough to bring about the disability of the party
to assume essential obligations of marriage
- Illness must be shown as downright incapacity or
inability, NOT a refusal, neglect or difficulty, much
less ill will
- There is natal or supervening disabling factor in the
person, an adverse integral element in the personality
structure that effectively incapacitates the person from
really appreciating and thereby complying with the
obligations essential to marriage
2. Juridical Antecedence
- Must be rooted in the history of the party antedating
the marriage, although overt manifestations may
emerge only after the marriage
- Manifestation of the illness need not be perceived at
the time of their I Dos, but the illness itself must
have attached at such moment, or prior thereto
3. Incurable
- It must be incurable or, even if it were otherwise, the
cure would be beyond the means of the party involved
- Medically or clinically permanent or incurable
- Incurability may be absolute or even relative only in
regards to the other spouse, not necessarily absolutely
against everyone of the same sex
- Must be relevant to the assumption of marriage
obligations, not necessarily to those not related to
marriage
Rule on Declaration of Absolute Nullity of Marriages and
Annulment of Voidable Marriages
- AM No 02-11-10-SC which took effect on March 15, 2003
1. Burden of proof to show the nullity of the marriage belongs to the
plaintiff
- Any doubt should be resolved in favor of the existence and
continuation of the marriage and against its dissolution and
nullity
2. A petition under Art. 36 shall specifically allege the complete
facts showing that either or both parties were PI from complying
with the essential marital obligations of marriages at the time of
the celebration of marriage even if incapacity becomes manifest
only after its celebration
- Expert opinion need not be alleged
3. Incapacity must be proven to be existing at the time of the
marriage
4. Incapacity must be shown to be medically or clinically permanent
or incurable
- Declaration by a physician or psychologist is not a
requirement
- If the totality of the evidence presented is enough to sustain
a finding of psychological incapacity, then actual medical
examination of the person concerned need not be resorted to
5. Illness must be grave enough to bring about the disability of the
party to assume essential obligations of marriage
6. Essential marital obligations must be those embraced by Arts.
68-71 as regards husband and wife as well as Arts. 220, 221 and
225 in regard to parents and their children
7. Interpretations given by the National Appellate Matrimonial
Tribunal of the Catholic Church in the Ph, while not controlling
or decisive, should be given respect in out courts
In proving PI, there is no distinction between an alien spouse and a
Filipino spouse to that of Filipino spouses
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CHI MING TSOI v. CA
- Love is useless unless it is shared with another :))
No award of Moral Damages in PI
Legal Separation
- Marriage is valid and the grounds for LS occur only after the
celebration of marriage
- Marital bond is not broken
ART. 37
Incestuous Marriages
Even if solemnized abroad in accordance with the laws in force in
the country where they are solemnized, and valid there as such, such
incestuous marriage is not recognized as valid in the Ph
ART. 38
Void by reason of Public Policy
The intention of the law is to prohibit marriages between persons
who were once related to each other by affinity as parents-in-law
and children-in-law, even if marriage, which serves as the source of
relationship of affinity, is already dissolved or terminated by reason
of death or final judgment of annulment or of absolute nullity
The adopted child is prohibited from marrying only the legitimate
child of the adopting parent
- Prohibition does not extend to adopters illegitimate child
An adopted child is prohibited from marrying the following
1. Adopter
2. Surviving spouse of the adopter
3. Legitimate children of the adopter
4. Other adopted children of the same adopter
The adopter is prohibited form marrying the following
1. Adopted child
2. Surviving spouse of the adopted child
Intentional Killing of Spouse
- A prior criminal conviction is not necessary to render the
marriage void
- The killing, whether perpetrated by the spouse or by another
person, must be animated primarily by the intention or desire to
do away with the victim, who is an obstacle to a contemplated
marriage, for the purpose of marrying the surviving spouse
- So long as killing is for the purpose of contracting a marriage
with the surviving spouse, the marriage will be void ab initio
even if the surviving spouse was not aware of such plan
ART. 39
An action or defense based on the absolute nullity of marriage is
IMPRESCRIPTIBLE
- Void marriages can be questioned even after death of either
party
AM No. 02-11-10-SC
- Provides that a petition for declaration of absolute nullity of a
void marriage may be filed solely by the husband or wife and, if
filed, the case shall be closed and terminated upon the death of
either parties at any stage of the proceeding prior to entry of
judgment, it now appears that a direct proceeding for the
purpose of obtaining a judicial declaration of nullity of a void
marriage may no longer be filed after the death of either party to
such void marriage
Abesamis, Austinne Joyce D.
Family Code of the P hilippines (Rabuya)
- It may still be subject to a collateral attack
ART. 40
Need for judicial declaration of nullity of a void marriage
- The absolute nullity of a previous marriage may be invoked for
purposes of remarriage on the basis solely of a final judgment
declaring such previous marriage void
- However, other than for purposes of remarriage, no judicial
action is necessary to declare a marriage an absolute nullity
Ex. For purposes of determination of heirship,
settlement of estate, etc., the court may pass upon the
validity of the marriage even in a suit not directly
instituted to question the same so long as it is essential
to the determination of the case
Subsequent marriage without judicial declaration of nullity of
previous marriage is Void ab initio
- The intention of the FC is to declare a marriage void ab initio by
reason of non-compliance with the provisions of Art. 40
- A subsequent marriage entered into in violation of Art. 40 is a
void marriage under Art. 35(4)
- The applicable property regime is that provided for my Art. 148
Void marriages under Art. 40, in relation to Art. 50, 35(4), 35(6), in
relation to Arts. 53 and 52
- Property Relations
In a void marriage, regardless of cause thereof, the
property relations shall be governed by the provisions of
Art. 147 or 148, as the case may be; it is neither ACP or
CPG
In bigamous marriage which is void under Art. 35(4), the
property regime is governed by Art. 148
Art. 147 governs the property regime of void marriages
under Art. 35(6), in relation to Arts. 53 and 52, since it
applies to unions of parties who are legally capacitated
and not barred by any impediments to contract marriage,
but whose marriage is nonetheless void for other reasons
Par. 2 of Art. 43 is made applicable to void marriages
under Art. 40
- Filiation
Children conceived or born before the judgment of
absolute nullity of marriage under Art. 53 are considered
legitimate
Children born or conceived of void marriages under Arts.
35(4) and Art. 40, in relation to Art. 50 are illegitimates
Art. 40 is applicable to remarriages entered into after the effectivity
of the FC on August 3, 1988 regardless of the date of the first
marriage
MERCADO v. TAN
- A judicial declaration of nullity of a previous marriage is
necessary before a subsequent one can be legally contracted
- One who enters into a subsequent marriage without first
obtaining such judicial declaration is guilty of bigamy
- This principle applies even if the earlier union is characterized
by statutes as void
Without a judicial declaration of its nullity, the first marriage is
presumed to be subsisting
ART. 41 - ART. 42
GR: Any marriage contracted by any person during the subsistence
of a previous marriage be null and void and may be found guilty of
bigamy
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EXCPN: Subsequent bigamous marriage may be exceptionally
considered valid if the following conditions concur:
1. Prior spouse of the contracting party must have been absent
for 4 consecutive years, or 2 years where there is danger of
death
2. Spouse present has a well-founded belief that the absent
spouse is already dead
3. A judicial declaration of presumptive death of the absentee
for which purpose the spouse present can institute a
summary proceeding in court
There must be a judicial declaration of presumptive death;
otherwise, the subsequent marriage is void ab initio
Requisites for Declaration of Presumptive Death
- RP v. NOLASCO
1. Absent spouse has been missing for 4 consecutive
years, or 2 consecutive years if disappearance occurred
where there is danger of death
2. Present spouse wishes to remarry
3. Present spouse has a well-founded belief that the
absentee spouse is dead
4. Present spouse files a summary proceeding for the
declaration of presumptive death of absentee
Effects of judicial declaration of presumptive death
- Absentee shall be presumed dead, but only for the purpose of
allowing the present spouse to contract a subsequent marriage
- Present spouse will then be capacitated to contract a subsequent
marriage
- It is without prejudice to the effect of his reappearance
- Once reappearance is established, the presumption of death is
rendered ineffective
- FC is not clear on the effects of the declaration upon the
property regime of the previous marriage
Effects of recording of affidavit of reappearance
- The mere reappearance of the absentee spouse DOES NOT
terminate the subsequent marriage
- It is the RECORDING of the affidavit of reappearance of the
absentee spouse which results in the automatic termination of
the subsequent marriage
- Since the termination of the subsequent marriage is automatic
and without need of judicial intervention, the second spouse,
barring the existence of other impediments, may immediately
contract another marriage sine the requirements in Art. 52 do
not apply in case of extrajudicial termination of the subsequent
marriage under Art. 41
The affidavit or reappearance may be executed and filed by any
interested person and not only by the reappearing spouse
ART. 43 - ART. 44
The custody and support of the children may be the subject of an
agreement between the spouses to the subsequent marriage
- In case of dispute, the matter shall be decided by the court in a
proper proceeding
Upon termination of subsequent marriage, the AC or CG shall be
dissolved and liquidated
Donation Propter Nuptias
- Donations by reason of marriage are those which are made
before its celebration, in consideration of the same, and in favor
of one or both of the future spouses
- As a rule, it shall remain valid
Abesamis, Austinne Joyce D.
Family Code of the P hilippines (Rabuya)
- If the donee contracted the marriage in bad faith, such donations
are revoked by operation of law
- If both spouses are in bad faith, in which case the subsequent
marriage is void, all donations by reason of marriage are
likewise revoked by operation of law
In the subsequent marriage referred to in Art. 41, if one of the
spouses acted in bad faith in contracting the marriage and he/she
had been designated as the beneficiary in any insurance policy of
the innocent spouse, the latter has the right to revoke such
designation even if the designation is irrevocable
If the subsequent marriage is contracted in the absence of a judicial
declaration of presumptive death of the absentee spouse, subsequent
marriage is void for being a bigamous marriage
The law requires that the good faith should last up to the time of the
celebration of the subsequent marriage
If both parties in subsequent marriage have acted in bad faith, their
marriage is considered bigamous and they shall be liable for the
crime of bigamy notwithstanding the existence of the judicial
declaration of presumptive death
The existence of such declaration does not immunize the parties
from liability for bigamy
ART. 45 - ART. 47
A marriage that is annulled presupposes that it subsists but later
ceases to have legal effects when it is terminated through a court
action
Characteristics of Voidable marriage
1. Valid until otherwise declared by the court
2. Defect must exist at the time of the celebration of marriage
3. Cannot be assailed collaterally except in a direct proceeding
4. Can be assailed only during the lifetime of the parties and
not after death of either
5. Only parties to a voidable marriage can assail it
6. Action for annulment is subject to prescription
7. Defect is generally subject to ratification except for grounds
mentioned in Art. 45 (5) and (6)
The law deems to be insufficient the consent given by a party who is
at least 18 years old but below 21
- Consent is defective
Ratification cleanses the contract from all its defects from the
moment it was constituted
To successfully invoke the ground of unsound mind to annul a
marriage, it is essential that the mental incapacity of one of the
parties must relate specifically to the contract of marriage
- Test: Whether the party at the time of the marriage was capable
of understanding the nature and consequences of the marriage
- Burden of proof rests upon him who alleges insanity
- If the sane spouse had knowledge of the others insanity at the
time of marriage, the action may be filed by:
1. Any relative or guardian or person having legal charge
of the insane; or
2. The insane spouse during a lucid interval or after
regaining sanity
- The law authorizes ONLY the INSANE person, after gaining
sanity, to ratify the marriage
The sane spouse is not entitled to ratify the marriage
even if he/she had no knowledge of the others insanity
at the time of the marriage
!7

- The provision authorizing the sane spouse who had no
knowledge of the others insanity at the time of the marriage to
file an action must be interpreted as exercisable only prior to the
ratification of marriage by the insane spouse after coming to
reason
Because after ratification, the contract is cleansed of its
defect and the action for annulment is extinguished
Fraud as a ground for annulment of marriage refers to non-
disclosure or concealment of some facts deemed material to the
marital relations
- Marriage is subject to ratification by the injured party by freely
cohabiting with the guilty spouse as husband and wife after
gaining full knowledge of the facts constituting fraud
- Pregnancy by another man at the time of marriage is not by
itself a ground for annulment
It is the CONCEALMENT of such fact at the time of
the marriage that may constitute a ground
- Affliction with STD, at the time of the marriage, by itself and
even without concealment, is a ground for annulment so long as
the disease is serious and appears to be incurable (Art. 45(6))
If it is not serious and appears to be curable, it is not a
ground for annulment UNLESS the existence of the
STD is CONCEALED by the party afflicted from the
other party at the time of marriage
If the ground is CONCEALMENT of STD, the law
does NOT distinguish between serious or non-serious
and curable or incurable disease
If the party afflicted was not aware of its existence at
the time of the marriage, there is no fraud that will
constitute as ground for annulment, although it may be
a ground if it is serious and incurable
- If the fact of addiction, alcoholism, homosexuality or lesbianism
existing at the time of marriage is not concealed and is known to
the other party, it is NOT a ground for annulment
Impotency caused by a supervening infirmity does not invalidate the
marriage
Physical incapacity for marriage imports a total want of power of
copulation, and only as necessary incident thereto the inability for
procreation; hence, barrenness or sterility of itself or mere sexual
weakness or frigidity are not grounds for annulment
- Impotency is the physical ability to have sexual intercourse
- Sterility is the inability to procreate
- Presumption is in favor of potency
- DOCTRINE OF TRIENNIAL COHABITATION
If the wife remains a virgin after three years of
cohabitation, the husband will be presumed impotent, and
the burden to overcome such presumption will be shifted
upon him
- Requisites:
1. Incapacity must be existing at the time of the
celebration of marriage
2. Continues up to the filing of the action for annulment
3. Appears to be incurable
4. Must be unknown to the other contracting party
- Action must be filed within 5 days after the celebration of the
marriage and not after discovery of such incapacity
- Not subject to ratification
Art. 46(3) v. Art. 45(6)
Art. 45(6); Requisites in order for the existence of STD to be a
ground for annulment
1. STC must have existed at the time of the celebration of
marriage
2. It is found to be serious
Abesamis, Austinne Joyce D.
Family Code of the P hilippines (Rabuya)
3. It appears to be incurable
4. It must be unknown to the other party at the time of the
marriage
- The action may be filed by the injured party the other party
who was not aware of the existence of such disease at the time
of marriage and who himself/herself was not afflicted with a
disease of the same nature
- Action must be filed within 5 years after celebration of marriage
and not after discovery of such disease
- Not subject to ratification
Effects of final judgment of Annulment
- Dissolves the special contract of marriage as if it had never been
entered into nut the effects of marriage are not totally wiped out
1. Termination of marital bond
2. Children conceived or born before the judgment of
annulment has become f/e are considered legitimate
3. ACP or CPP is terminated or dissolved and the same shall be
liquidated in accordance with Art. 102 and 129, respectively
4. Final judgment must also provide for the custody and
support of the common children and the delivery of the
common children;s presumptive legitimes, unless
adjudicated in the previous judicial proceedings
5. Donations by reason of marriage shall remain valid except if
the donee contracted the marriage in bad faith
6. Innocent spouse may revoke the designation of the other
spouse who acted in bad faith as beneficiary in any insurance
policy, even if designation is irrevocable
7. The spouse who contracted marriage in bad faith shall be
disqualified to inherit from the innocent spouse by testate or
intestate succession
8. If the wife is the guilty party, she shall resume her maiden
name and surname; if she is the innocent spouse, she may
resume her maiden name and surname; she may choose to
continue using her former husbands surname, unless the
court decides otherwise or she or the former husband is
married again to another person
9. Parties again are free to remarry but they must comply with
the requirements of Art 52; otherwise, the same shall not
affect third persons and the subsequent marriage shall be
null and void
ART. 48 - ART. 49
Procedure now governed by AM No. 02-11-10-SC and AM No.
02-11-12-SC
FamCourts shall have exclusive jurisdiction; petition shall be filed
in the FamCourt of the province or city where the petitioner or
respondent has been residing for at least 6 moths prior to the date of
the filing, or in case of a non-resident, where he may be found in the
Ph, at the election of the petitioner
If the court renders a decision granting the petition, it shall declare
therein that the decree sha be issued by the court only after
compliance with Arts. 50 and 51
In case a party dies at any stage of the proceedings before the entry
of judgment, the court shall order the case closed and terminated
without prejudice to the settlement of the estate in proper
proceedings in regular courts
Grant of provisional remedies or protection orders
1. Spousal support
2. Child support
3. Child custody
4. Visitation rights
5. Hold departure order
!8

6. Order of protection
7. Administration of common property
ART. 50 - ART. 51
Marriage that is void ab initio is considered as having never to have
taken place
- Judicial declaration of nullity retroacts to the date of the
celebration of the marriage insofar as the vinculum between
spouses is concerned
All children conceived and born outside a valid marriage are
illegitimate, unless the law itself gives them legitimate status
ART. 52 - ART. 54
TITLE II.
LEGAL SEPARATION
ART. 55
Legal separation is a legal remedy available to parties in a VALID
BUT FAILED MARRIAGE for the purpose of obtaining a decree
from the court entitling him/her to certain reliefs such as right to live
separately (without affecting the marital bonds that exists between
them), dissolution and liquidation of property regime and child
custody
- Legal separation does not dissolve the marriage tie, much less
authorize the parties to remarry
- Cause giving rise to LS exists only after the celebration of
marriage
- Involves nothing more than the bed-and-board separation
- The death of one party to the action of LS causes the death of
the action itself
Grounds for LS
1. Infliction of Physical Violence
- Repeatedly resorted to by the respondent
- If form of violence is against the life of a partner, the
same is a ground under par. 9 and it need not be repeated
for it to be a ground
- Psychological and sexual violence and repeated verbal
abuse may qualify as grounds for LS
- Grossly abusive conduct
2. Moral Pressure
- If resorted to in order to compel the petitioner to change
his/her religious or political affiliation
3. Promotion of Prostitution
- Under VAWC, it is also punished as a crime if the same is
directed against the wife or a child of the wife
4. Final judgment of more than 6 years imprisonment
- Ground for LS even if respondent is pardoned and
regardless of the nature of the crime for which the
respondent is convicted
- If convicted prior to marriage, it is a ground for
annulment if the crime involves moral turpitude and it is
not disclosed to the other party
- For LS, the conviction occurs only AFTER the
celebration of marriage
5. Drug addiction, habitual alcoholism, lesbianism or
homosexuality
- If present at the time of marriage but concealed from the
other party, there is fraud which constitutes a ground for
annulment
Abesamis, Austinne Joyce D.
Family Code of the P hilippines (Rabuya)
- If there is no concealment and it is known to the other
party at the time of marriage, there is no ground to annul
the marriage
- Must exist only AFTER the celebration of marriage
6. Contracting of subsequent bigamous marriage
- Contracting a subsequent bigamous marriage is a ground
to declare subsequent marriage void but it does not affect
the validity of the prior marriage
- Remedy of the aggrieved party in the prior marriage is
LS
7. Sexual Infidelity
- It is no longer required that the sexual infidelity be in the
form of adultery or concubinage before it may constitute
as ground for LS
- Any sexual act short of the actual sexual intercourse may
fall under sexual infidelity
8. Attempt on the life of the Spouse
- There must be intent to kill
- If the act of attempting to kill the spouse is wholly
justified or excused, as in the case of legitimate self-
defense, the same is not ground for legal justification
9. Abandonment
- A spouse is deemed to have abandoned the other when
he/she has left the conjugal dwelling without intention of
returning
ART. 56 - ART. 57
Condonation
- Conditional forgiveness or remission, by husband or wife, of a
matrimonial offense which the other had committed
- It blots out the imputed offense so as to restore the offending
party to the same position he/she occupied before the offense
was committed
- It is presumed that any cohabitation with the guilty party and
with knowledge or belief on the part of the injured party of its
commission is condonation
Consent
- It is given in advance or prior to the commission of the act
which would be a ground for LS, whereas in condonation, the
forgiveness of the matrimonial offense is given after
commission
Connivance
- Implies an agreement, express or implied, by BOTH spouses,
unlike in consent, it is unilateral
- It involves criminality on the part of the individual who
connives, while condonation may take place without imputing
the slightest blame to the party who forgives the injury
- It is an act of the mind before the offense has been committed
Collusion
- Agreement between husband and wife for one of them to
commit, or to appear to commit, or to be represented in court as
having committed, a matrimonial offense, or to suppress
evidence of a valid defense, for the purpose of enabling the
other to obtain divorce or LS
- It may not be inferred from the mere fact that the guilty party
confesses to the offense and thus enables the other party to
procure evidence necessary to prove it
Recrimination (mutual guilt)
- For LS to prosper, it must be claimed only by the innocent
spouse
- Where both spouses are offenders, LS cannot be claimed by
either of them
!9

ART. 58 - ART. 59
To provide the parties a cooling off period
The prohibition of hearing during the cooling off period is not an
absolute bar to the hearing of a motion for preliminary injunction
- The requirement of 6 month cooling off period shall not apply
in cases of LS where violence is alleged
ART. 60
The prohibition is predicated on the fact that the institutions of
marriage and family are sacred and therefore are as much the
concern of the State as the spouses
ART. 61 - ART. 62
During the pendency of the action for LS, the court, motu propio or
upon application under oath of any of the parties, guardian or
designated custodian, may issue provisional orders and protection
orders with or without hearing
ART. 63 - ART. 64
The wife, even after the legal separation has been decreed, shall
continue using her name and surname employed before the legal
separation
- Her married status is unaffected by the separation, there being
no severance of the vinculum
ART. 65 - ART. 67
If, after the issuance of the decree of LS, the parties simply
reconcile and resume their marital relations previous to the decree
but without obtaining a decree of reconciliation from the same court
which issued the decree of LS, their de facto reconciliation does not
have the effect of setting aside the decree of LS
The FC speaks only of revival of the former property regime of
the spouses in case of reconciliation and not an adoption of an
altogether different property regime
- At any rate, they mare not adopt either ACP or CPG as their
new property regime since these property regimes can only
commence at the precise moment that the marriage is celebrated
and any stipulation, express or implied, for the commencement
of these regimes at any other time shall be void
TITLE III
RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND
WIFE
ART. 68
Cohabitation is public assumption by a man and a woman of the
marital relation, and dwelling together as man and wife, thereby
holding themselves out to the public as such
The courts cannot force one of the spouses to cohabit with the other,
the law, however, provides for other remedies and sanctions
One of the essential marital obligations is to procreate children
based on the universal principle that procreation of children through
sexual cooperation is the basic end of marriage
Abesamis, Austinne Joyce D.
Family Code of the P hilippines (Rabuya)
Such obligation to support ones spouse attaches at the inception of
the marriage and ordinarily continues as long as the relationship of
husband and wife exists
Of the mutual obligations between the spouses, it is only the
obligation of MUTUAL SUPPORT between the spouses which can
be enforced through legal action
ART. 69
In the event that one spouse refuses to live with the other in the
family dwelling, as fixed either by the spouses or by the court, the
court is powerless to enforce the provisions of Art. 69, even if such
refusal is not justifiable
The spouse who refuses to live with the other without just cause is
not entitled to a separate maintenance or support
ART. 70 - ART. 71
For an article to constitute a family expense, it is essential that it be
not only purchased for, but also that it be used, or kept for use, in or
by the family, or be benefited thereto
- An expense for the family is one which is incurred for an item
which contributes to the familys welfare generally and tends to
maintain its integrity
ART. 72
Relief available to spouses
a) When spouse leave the conjugal dwelling
- Art. 198
- If one spouse had left without the intention of returning,
the aggrieved spouse may petition the court for
receivership, for judicial separation of property or for
authority to be sole administrator
b) When spouse commits acts of sexual infidelity
- When a philandering husband squanders the properties of
the CP or AC to satisfy his vices, the aggrieved spouse
may petition the court for injunction to stop his further
disposition of property aside from seeking sole
administration of the property
c) When spouse sells the conjugal or community property
without the others consent
- Aggrieved spouse may seek an injunction to stop further
disposition of property without the others consent
d) When husband commits violation of VAWC
- Wife may obtain protection orders either from the
barangay or from the courts
ART. 73
When the objection is found to be proper by the courts, the spouse
who did not consent for such profession, business or activity shall
be responsible, with his or her own separate property, for any
obligation that may be incurred in connection therewith
- UNLESS, it is shown that the same has redounded to the benefit
of the family, in which case, the AC or CP shall be liable
!10
 Family Code of the P hilippines (Rabuya)
Title IV - Celebration of marriage is a condition sine qua non for the
validity of MS
PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE

Chapter 1 Marriage Settlement Donations Propter Nuptias

General Provisions
The fact of non-celebration of The fact that marriage did not
ART. 74 - ART. 75 marriage renders the MS void take place does not render the
Law allows spouses to fix their property relations during marriage donation void, except if the
through a marriage settlement subject only to the condition that donation is contained in the MS
whatever settlement they may have must be within the limits itself
provided by FC
Depends on the celebration of Does not depend upon the
marriage to be valid marriage taking place
For spouses who got married on August 3, 1988 or thereafter without
any marriage settlement: property relations shall be governed by
ACP Art. 86(1) only makes the
donation revocable at the
instance of the donor if the
For spouses who got married without marriage settlement prior to
August 3, 1988 but after August 30, 1950: property relations shall be marriage does not take place
governed by CPG The fact that marriage did not
take place only gives rise to a
The possibility that local customs will govern the property relations cause or ground to revoke the
of spouses during marriage will only arise if the future spouses DPN
execute a marriage settlement and stipulate therein that AC shall not
exist between them but without providing for rules or regime that If not revoked, it continues to be
will govern their property relations valid

ART. 76 - ART. 79
MARRIAGE SETTLEMENT or ante nuptial contract is a contract
which is entered into before, but in contemplation and in
consideration of marriage, whereby the property relations of the
spouses during marriage are fixed and determined
The rule that the non-happening of marriage shall render any
stipulation in the MS void does not apply to any provision therein
that does not depend upon the celebration of marriage for its validity

It is not possible for the parties to execute a marriage settlement Chapter 2

during the marriage if there is not at the start at the start of the
marriage
Marriage settlement is an agreement made in consideration of
marriage; hence, it is governed by the Statute of Frauds
- A contract which infringes the SF is not a void contract but
cannot be enforced unless ratified
- An oral MS is merely unenforceable under SF
ART. 80
Future spouses are free to stipulate in their MS what laws shall
govern their property relations, especially, if they are residents in a
foreign country
- However, with respect to mandatory provisions of FC, the latter
shall still govern since the freedom of the parties to stipulate in
their MS must be done within the limits provided for the under
the Code
Issues relating to property, whether real or personal, are to be
governed by the law of the country where the property is situated
While the present article seems to limit the inapplicability of Ph laws
only to extrinsic validity of contracts affecting property not situated
in the Ph, the rule must likewise be extended to any issues relating to
such properties, including the intrinsic validity of contracts affecting
the same
ART. 81
If marriage does not take place, everything stipulated in the MS,
including donations between prospective spouses made therein, shall
be rendered void
Donations by Reason of Marriage
ART. 82
It is essential that donee/s be either of the future spouses or both of
them, although the donor may either be one of the future spouses or
a third person
The following are not DPN:
1. Made in favor of spouses after celebration of marriage
2. Those executed in favor of the future spouses but not in
consideration of the marriage
3. Those granted to persons other than the spouses even though
they may be founded on the marriage
The marriage in DPN is rather a resolutory condition which
presupposes the existence of the obligation which may be resolved
or revoked, and is not a condition necessary for the birth of the
obligation
ART. 83
DPN must follow the formal requirements of Arts. 748 and 749 NCC
Implied acceptance is sufficient for validity of DPN
ART. 84
If property regime agreed upon in MS is other than ACP donation
must not exceed 1/5 of the present property of the donor
- If donation exceeds limitations, only the excess is considered
void but remainder thereof remains valid

Abesamis, Austinne Joyce D. !11


If regime agreed upon in MS is ACP law does not impose any
limitations as to the extent of what may be donated by one of the
future spouses in favor of the other
- Because in ACP, spouses are considered co-owners of all the
property owned by them at the time of the celebration of
marriage or acquired thereafter, unless otherwise provided in FC
or in MS
Rule is based on policy that no spouse should be allowed to take
advantage of the love or tender feelings of the other to acquire
property from the latter
The rule is also to apply to donations between spouses even outside
of the MS, so long as the property regime agreed upon is other than
AC
If future spouses did not execute MS, any DPN between them is not
subject to 1/5 limitation since they will be governed by a regime of
AC by default
DPN of future property between future spouses are not prohibited
and shall be governed by provisions on testamentary succession and
the formalities of wills
- In the nature of donations mortis causa
- Arts. 804 to 819 NCC applies
If donation of future property is to be made by third person, Art. 751
NCC applies and such donation is prohibited
ART. 85
Mere encumbrance does not divest the donor of ownership of
property donated
If donee has constructive notice of encumbrance, such is binding
upon the donee and attaches to the property donated
ART. 86
If marriage is not celebrated, the DPN is not rendered ineffective or
void, except a donation made in the MS itself
DPNs in MS are void if marriage does not take place
If marriage is judicially declared void ab initio DPN remains
valid but such fact gives rise to a ground for the revocation of said
donation
If marriage is judicially declared void ab initio under Art. 40
DPN is REVOKED BY OPERATION OF LAW if the donee
contracted the marriage in bad faith or if both spouses of the
subsequent marriage contracted the marriage in bad faith
- Art. 50 makes applicable Art. 43(3) and 44 to marriages which
are declared void ab initio under Art. 40
Art. 86 is incompatible and inconsistent with Art. 50, in relation to
Art. 43(3) and 44
To give rise to a ground for revocation, the rule is that a voidable
marriage must first be annulled
- EXCPN: If marriage is voidable by reason of absence of parental
consent, there is no more need for a judgment annulling the
marriage for the donation to be revocable because such fact
already gives rise to a cause for revocation of donation
Since FC does not expressly provide for prescriptive period of
actions to revoke DPN, rules on ordinary donations shall apply
Abesamis, Austinne Joyce D.
Family Code of the P hilippines (Rabuya)
- It is submitted that 1-year prescriptive period for revocation of
donations based on acts of ingratitude applies
For other grounds which are not controlled by a particular
prescriptive period, resort to ordinary rules of prescription may be
had
ART. 87
Any donation between the spouses DURING marriage, direct or
indirect, is considered VOID
- But the article recognizes the validity of moderate gifts which
the spouses may give each other on the occasion of any family
rejoicing
H and W are prohibited from selling property to each other and any
such sale is void ab initio
- EXCPN:
1. When separation of property was agreed upon in MS; or
2. When there has been a judicial separation of property
- Excpns do not apply in prohibition between spouses from
donating to each other
Spouses are prohibited from donating to each other during marriage
whether their property regime is complete separation of property or
otherwise
Chapter 3
System of Absolute Community
Section 1. General Provisions
ART. 88 - ART. 90
In ACP, spouses are considered co-owners of all property brought
into and acquired during marriage which are not excluded from the
community
There is only one instance when waiver during the marriage may be
considered valid, and that is, it the waiver is made in case of judicial
separation of property
Valid waiver may take place after the marriage has been dissolved or
annulled
Section 2. What Constitutes Community Property
ART. 91 - ART. 93
Future spouses may execute a MS prior to marriage and adopt ACP
as their property regime; they may agree to exclude whatever
properties they may have at the time of the celebration of marriage
and include therein only the properties that they may acquire during
marriage
- Exclusion of fruits and income from such properties depends
upon the agreement of spouses in MS
They may exclude the fruits and income in their MS
In the absence of such agreement, fruits and income
are to be considered part of the community property
In ACP, the presumption in favor of community must relate to all
properties of the spouses and not only to the properties acquired
during the marriage
- In CPG, the properties of each spouse at the time of celebration
of marriage are not included in the conjugal property, unless
contrary is provided in MS
The presumption of conjugality attaches only to
property acquired DURING marriage
!12

Spouse-owner retains ownership, possession, administration and
enjoyment of the separate or exclusive properties
If the property was gratuitously acquired prior to celebration of
marriage or if donor, testator or grantor expressly provided that it
shall form part of the community property it shall belong to the
community
Acquisition by gratuitous title by BOTH spouses jointly the FC is
silent and Art. 113 is not made to apply in ACP
- In the absence of any special provision, it is Art. 753 NCC which
will apply
- The share of each spouse in the donation, which is understood to
be equal, shall pertain to his or her exclusive property
Purpose of excluding properties of spouse who has legitimate
descendants by a prior marriage to facilitate identification of
properties from which the legitimate descendants in prior marriage
may later on lay claim
- Fruits and interest of these properties are also excluded
- Spouses cannot include there properties by agreement in the MS
If an excluded property by reason of MS, in the absence of any
agreement, the alienation of such property converts the proceeds or
the property acquired in its place to the AC, following Arts. 91 and
93
If property is excluded by mandatory provisions of law, it is
submitted that the policy of the law to stamp there properties with
separate character should not be easily defeated by the simple
expedient of converting said properties into some new form
Section 3. Charges Upon and Obligations of the Absolute
Community
ART. 94 - ART. 95
If debt contracted during marriage by both spouses or by either
spouse with the consent of the other, the law conclusively presumes
that such debt has redounded to the benefit of the family
If debt is contracted by the designated administrator-spouse or by
one spouse without the consent of the other, the AC shall be liable
only if it can be proven that the debt benefited the community or the
family
Liability of AC extend only to expenses incurred for the preservation
of such separate property used by the family and does not extend to
expenses incurred for mere improvement or embellishment of such
separate property, even if used by the family
Obligations chargeable to Exclusive Property
1. Support of illegitimate children
2. Debts contracted by administrator-spouse during marriage
which did not benefit the community
3. Debts contracted during marriage by either spouse without
the consent of the other which did not redound to the benefit
of the family
4. Ante nuptial debt of either spouse which did not redound to
the benefit of the family
5. Taxes and expenses incurred during the marriage for the
preservation of separate property of either spouse which is
not being used by the family
6. Civil liability of either spouse arising from crime or quasi-
delict
7. Expenses of litigation between spouses, if suit is found to be
groundless
Abesamis, Austinne Joyce D.
Family Code of the P hilippines (Rabuya)
8. Losses during marriage in any game of chance, betting,
sweepstakes, or any other kind of gambling, whether
permitted or prohibited by law, shall be borne by the loser-
spouse
Section 4. Ownership, Administration, Enjoyment and
Disposition of the Community Property
ART. 96 - ART. 98
Alienation of property must have the written consent of the other
spouse or the authority of the court without which the disposition or
encumbrance is void
When the other spouse or the court eventually gives their consent or
authorization, the previous transaction is not deemed ratified since a
void contract is not subject to ratification
While AC is a form of co-ownership, neither spouse can dispose of
their respective shares in the community property by way of
disposition inter vivos
- Art. 493 NCC does not find application in this case because
prior to liquidation of AC, the interest of each spouse in the
community assets is INCHOATE, a mere expectancy, which
constitutes neither a legal nor equitable estate, and does not
ripen into title until liquidation and settlement
- Any disposition of spousess respective shares or interest in AC
shall be void since right to 1/2 does not vest until the liquidation
of the AC
However, the Code expressly authorizes either spouse to dispose his
or her interest in the community property if the disposition is in the
nature of disposition mortis causa and made in a will
Section 5. Dissolution of Absolute Community Regime
ART. 99 - ART. 101
Existence of property regime is co-terminus with the marriage
The Code allows only a shift to complete separation of property
during marriage, either as an incident of the decree of legal
separation or pursuant to a petition for judicial separation
The cause for termination of AC of judicial declaration of nullity of
marriage is limited only to judicial declaration of void marriage
under Art. 40
- AC may exist only in a valid, or at least voidable marriage, and
does not, as a rule exist in a void marriage
In a VOID marriage, regardless of the cause thereof, the property
relations during the period of cohabitation is governed by Arts. 147
or 148, as the case may be
It is the decree of legal separation which results in the termination of
absolute community
- A mere separation de facto between spouses does not affect the
regime of ACP
Consequences of Separation de facto
1. Spouses retained their right of consortium because in the eyes
of law, they are not entitled to live separately from each other
2. Does not affect regimes of AC or CP
3. Spouses continue to be the legal heir of each other in intestate
succession
4. There is neither a guilty spouse nor an innocent one
!13
 Family Code of the P hilippines (Rabuya)
Chapter 6. Liquidation of the Absolute Community Assets and
Liabilities

ART. 102
NET ASSETS is what remains of the community property after
payment of all the charges and obligations for which the community
is liable

NET PROFITS represents the increase in the market value of the

community property at the time of the celebration of marriage and
the market value at the time of its dissolution but minus the charges
and obligations for which the community is liable

Legitime to be delivered to common children upon dissolution is

merely presumptive: and provisional since the final legitime can
only be determined upon the death of the person whose succession is
under consideration

ART. 103 - ART. 104

Termination of AC is produced ipso jure by any of the causes
mention in Art. 99, while liquidation involves some positive act on
the part of the spouses or surviving spouse, in case AC is terminated
by reason of death

Any alienation or encumbrance involving the community property of

the terminated marriage prior to liquidation and partition shall be
valid to the extent of what may be allotted in the property involved,
in the final partition, to the vendor or mortgagor
- What the transferee obtains by virtue of such alienation or
encumbrance are the same rights as the transferor had as a co-
owner, in an ideal share equivalent to the consideration given
under their transaction

Abesamis, Austinne Joyce D. !14


Chapter 4
Conjugal Partnership of Gains
Section 1. General Provisions
ART. 105 - ART. 108
There is no co-ownership between spouses in the properties of CPG
Prior to effectivity of FC, CPG governs the property relations of
spouses in the absence of MS or when the same is void
- Provisions of FC on CPG are also made applicable to CPG
already established before its effectivity unless vested rights
have already been acquired under NCC or other laws
Section 2. Exclusive Property of Each Spouse
ART. 109
Does not produce the merger of separate property of each spouse
The right of future spouses to include properties acquired prior to
marriage in their CP is subject to the following limitations
1. Future spouses cannot include in their CP more than 1/5 of
their present property
2. Future spouses cannot include in their CP properties acquired
prior to the marriage by one of them who has legitimate
descendants in his/her previous marriage
Property acquired by either spouse during the marriage is to be
considered as an exclusive property if acquired through gratuitous
title
- but, unlike ACP, the fruits and income of the separate properties
of the spouses are part of the CP
Property acquired by either spouse through the exercise of right of
redemption is an exclusive property of the redemptioner-spouse,
regardless of the source of the money used to redeem said property
- Even if source of money used in redemption is CP, the property
so redeemed shall still be considered as exclusive property of the
owner of the right to redemption, subject to reimbursement by
redemptioner-spouse
ART. 110 - ART. 112
Transfer of administration to the other spouse must be embodied in a
public instrument and recorded in the registry of property of the
place where the property is located, otherwise it shall not prejudice
the interest of third persons
When any exclusive property property is alienated by administrator-
spouse without consent of the owner-spouse or without court
authorization, such administration is automatically terminated and
proceeds of alienation shall be turned other to owner-spouse
ART. 113 - ART. 114
If donation is made jointly to persons who are not H and W, the rule
is that there is no accretion, accretion taking place only when so
expressly provided for by the donor
If donation made to H and W jointly, the rule is that there is
accretion between them if the contrary has not been provided for by
the donor
- Acceptance by one spouse shall be sufficient for perfecting the
donation notwithstanding the non-acceptance by the other
donee-spouse
Abesamis, Austinne Joyce D.
Family Code of the P hilippines (Rabuya)
If donation is made during marriage in favor of one spouse but the
donor imposes a burden or charges inferior in value to the property
donated, property donated remains as exclusive property of donee-
spouse although paid from conjugal funds
- CP shall be reimbursed
ART. 115
Ownership of benefit depends on the manner of acquisition
- If obtained out of pure liberality of grantor, benefit is considered
as exclusive property of grantee-spouse
- If benefit is simply an accumulation or deductions from money
earned during the marriage or from salaries of either spouse, the
benefit is part of conjugal partnership
Section 3. Conjugal Partnership Property
ART. 116
For presumption to apply, it is not necessary to prove that property
was acquired with funds of the partnership
- Property shown to be acquired during marriage, considered
conjugal
- Presumption is not rebutted by mere fact that certificate of title
or tax declaration is in the name of one of the spouses only
W H AT I S I M P O RTA N T I S T H AT T H E
ACQUISITION IS MADE DURING MARRIAGE
Presumption does not operate when there is no showing as to when
the property alleged to be conjugal was acquired
- Proof of acquisition of property during the marriage is a
condition sine qua non for the operation of presumption in favor
of CP
- When property is registered in the name of only one spouse and
there is no showing as to when the property was acquired by the
same spouse, this is an indication that it is exclusive property of
said spouse
In ACP, presumption in favor of community property exists
regardless of w/n property is shown to be acquired during the
marriage or prior thereto
Person who claims that the property is not CP is burdened to prove
the source of the money utilized to purchase the same
ART. 117 - ART. 119
Two-tiered test in determining whether property acquired during
marriage is conjugal or exclusive
1. Manner of acquisition test (whether onerous or gratuitous);
2. In case of onerous acquisitions, source of funds test (whether
conjugal funds or exclusive money)
If acquired during marriage by gratuitous title by either spouse
Exclusive property
If through onerous title ownership will depend upon the
SOURCE of funds used in such acquisition
- If from exclusive money = Exclusive property
- If from CP = CP, regardless of whether the acquisition is in the
name of the CP or in the name of only one of the spouses
For properties purchased on installments by either or both spouses
prior to marriage but the payment is completed only during marriage
- TIME WHEN FULL OWNERSHIP IS VESTED determines
ownership of the property, not the source of fund or time when
payment is completed
!15

- If full ownership vested BEFORE marriage = Exclusive property
of buyer/s, even if the purchase price is partly and/or
substantially paid from CP
- If full ownership vested DURING marriage = CP, even if
purchase price is partly and/or substantially paid from exclusive
funds of either or both spouses
- In either case, amount advanced shall be reimbursed by owner/s
upon liquidation of partnership
Bear in mind the presumption of conjugality
Wages, salaries, fees or income be earned during marriage is
considered CP
- If earned prior to marriage = Exclusive property
Requisites in order that things may be acquired by occupation
1. There must be seizure
2. Things must be corporeal
3. There must be intention to appropriate
4. Things must not be owned by anybody
5. Rules laid down by law must be fulfilled
ART. 120
Requisites
1. Property is owned exclusively by one of the spouses
2. Said property has been subject of an improvement, whether
for utility or adornment
3. Improvements were made at the expense of the conjugal
partnership or through acts or efforts of either or both spouses
Reimbursement may be made even prior to liquidation of property
Section 4. Charges Upon and Obligations of the Conjugal
Partnership
ART. 121 - ART. 123
For solidary liability of either spouse to attach, it is incumbent upon
the creditor to prove that the assets of the partnership are not
sufficient to pay for its obligations
An obligation entered into by H and W is chargeable against their CP
and it is the partnership which is primarily bound for its repayment
- When spouses are sued for enforcement of an obligation entered
into by them, they are being impleaded in their capacity as
representatives of the conjugal partnership and not as
independent debtors
If the debt is contracted by administrator-spouse or by one spouse
without the consent of the other or if prior debt is contracted prior to
marriage, the conjugal partnership shall be liable only if it can be
proven that the debt redounded to the benefit of the CP or the family
- If the husband himself is the principal obligor in the contract,
that contract falls within the term obligations for the benefit
of the conjugal partnership
Here, no actual benefit may be proved
It is enough that the benefit to the family is apparent at
the time of the signing of the contract
When the husband contracts obligations on behalf of the
family business, the law presumes that such obligation
will redound to the benefit of the CP
- If the money or services are given to another person or entity,
and the husband acted only as a surety or guarantor, that contract
cannot alone be categorized as falling within the context of
obligations for the benefit of the conjugal partnership
Abesamis, Austinne Joyce D.
Family Code of the P hilippines (Rabuya)
The contract of loan or services is clearly for the benefit
of the principal debtor and not for the surety or his
family
- The CP should not be made liable for the surety agreement
which is clearly for the benefit of a third party
- The benefits contemplated must be one directly resulting from
the loan and cannot be merely be a by-product or a spin-off of
the loan itself
Section 5. Administration of the Conjugal Partnership Property
ART. 124 - ART. 125
Art. 61, FC
Art. 101, FC
The administration of CP is a joint undertaking of the husband and
wife
In all instances, the law requires the written consent of the other
spouse, or authority of the court for the disposition or encumbrance
of CP property without which, the disposition or encumbrance shall
be void
- Rule may only be applied to any alienation or encumbrance of
CP property after effectivity of FC
Rule also applies to donations because it is also a form of disposition
- However, either spouse may, even without the consent of the
other, to make moderate donations from the CP property for
charity or on occasions of family rejoicing or family distress
The right of H/W to one-half of the conjugal assets does not vets
until the dissolution and liquidation of CP, or after dissolution of
marriage, when it is finally determined that, after settlement of
conjugal obligations, there are net assets left which can be divided
between the spouses or their respective heirs
- Any disposition of the spouses respective shares or interest in
the CP shall be void since no one can give what he has not
- However, the spouses are not prohibited from disposing by will
of his or her interest in the CP
Section 6. Dissolution of Conjugal Partnership Regime
ART. 126 - ART. 128
Same as ACP
Section 7. Liquidation of the Conjugal Partnership Assets and
Liabilities
ART. 129 - ART. 133
Similar to ACP
!16
 Family Code of the P hilippines (Rabuya)
Chapter 5 - However, rights which are previously acquired by
Separation of Property of the Spouses and Administration of creditors prior to judicial SP shall not be prejudiced
Common Property by One Spouse During the Marriage by the judicial decree of SP

ART. 134
Separation of property, when it may take place
1. When future spouses have agreed in the MS that their
property relations during marriage shall be governed by
regime of SP
2. When previous marriage had been terminated by death of one
of the spouses and the surviving spouse contracts a
subsequent marriage without subjecting AC or CP in the
previous marriage to liquidation within a period of one year
from death of the spouse
3. Upon finality of a decree of legal separation, the AC or CP
shall be dissolved and liquidated and, thereafter, the spouses
shall be governed by a regime of complete separation of
property
4. When court approves the joint petition of the spouses for the
voluntary dissolution of the AC or CP
5. When the court decrees legal separation of property of
spouses following the petition of one of the spouses for such
separation under the ground enumerated in Art. 135
Mere separation de facto does not affect the AC or CP
ART. 141
Procedure for revival of previous property regime in case of judicial
separation of property is the same as that provided under Art. 67
ART. 142
Administration of exclusive property of either spouse may be
transferred to the other spouse either by agreement or by order of the
court
- FC allows such transfer by means of public instrument, which
shall be recorded in the registry of property of the place where
the property is situated
If transfer is by virtue of court order, the same can only be based on
the grounds provided for in Art. 142
The alienation of exclusive property of a spouse administered by the
other results in the automatic termination of the administration over
such property and the proceeds of the alienation shall be turned over
to the owner-spouse

ART. 135
SP may be resorted to by the spouses during marriage in two ways: Chapter 6
1. By filing a petition for legal separation; or Regime of Separation of Property
2. By filing a petition for separation of property, either
voluntarily or for a sufficient cause ART. 143 - ART. 146

The power of administration must be granted to the abusive spouse

in the MS itself, otherwise the provisions of par. 5, Art. 135 will not
apply
- If the power of administration has been assumed solely by one
of the spouses in view of the incapacity or inability of the other
spouse to participate in the administration of AC or CP, and not
by virtue of MS, any abuse of power is not the ground
contemplated in the article

If the separation in fact for at least one year and reconciliation is

highly improbable, either of the spouse may petition for separation
of property

ART. 136
Spouses may agree to voluntarily dissolve the AC or CP, but it will
not produce any effect if the same is not approved by the courts

Spouses may petition for SP even in the absence of a sufficient cause

- The court is not required to look into the reasons of the spouses
for resorting to separation of property
- Judicial approval is done only to protect the interest of third
persons, especially the creditors of AC or CP

ART. 137 - ART. 140

Effects of Decree granting SP
1. AC or CP shall be liquidated
2. After dissolution of AC or CP, the souses shall thereafter be
governed by regime of complete SP
3. In order to bind third persons, the petition for SP and final
judgment granting the same are required to be recorded in the
proper local civil registries and registries of property

Abesamis, Austinne Joyce D. !17


Chapter 7
Property Regime of Unions Without Marriage
ART. 147
Art. 147 applies
1. If two minors coming from opposite sexes live exclusively as
H/W without the benefit of marriage since they are not
capacitated to marry each other
2. Applies to unions of parties who are legally capacitated and
not barred by any impediment to contract marriage, but
whose marriage is nonetheless void for other reasons, like
absence of a marriage license or by reason of psychological
incapacity
Distribution of properties under Art. 147
1. With respect to wages and salaries, the same shall be owned
by them in equal shares, even if only one party earned the
wages and the other did not contribute thereto;
2. Property acquired by both of them through their work or
industry shall be governed by the rules on co-ownership
- Any property acquired during the union is prima facie
presumed to have been obtained through their joint
efforts
- However, a party who did not participate in the
acquisition of property shall still be considered as
having contributed thereto jointly if said partys
efforts consisted in the care and maintenance of the
family household
3. When only one of the parties to a void marriage is in good
faith, the share of the party in bad faith shall be forfeited in
favor of the common children
- Rules on forfeiture
Family Code of the P hilippines (Rabuya)
- It is different from Art. 147 where efforts in the
care and maintenance of the family and household
are regarded as contributions to the acquisition of
common property by one who has no salary or
income or work or industry
- Mere cohabitation without proof of contribution
will not result in a co-ownership
3. Share of the party validly married to another shall accrue to
the property regime of such existing marriage
- Property acquired by a man while living with a
common-law wife during subsistence of his
marriage is AC or CP, even when the property was
titled in the name of the common-law wife
- In such cases, a constructive trust is deemed to
have been created by operation of Art. 1456 NCC
over the property which lawfully pertains to the AC
or CP of the subsisting marriage
4. If the party who has acted in BF is not validly married to
another, his/her share shall be forfeited in the matter already
heretofore expressed
- Foregoing rules on forfeiture shall likewise apply
even if both parties are in BF

In co-ownership existing between parties under Art. 147, neither

party can encumber or dispose by acts inter vivos of his or her share
in the property acquired during the cohabitation and owned in
common, without the consent of the other, until after the termination
of their cohabitation
- Either party may dispose of his/her share in the following
instances:
1. If disposition is by way of acts mortis causa; or
2. Even if disposition is by way of acts inter vivos, if the
same is with the consent of the other party

ART. 148
Art. 148 applies
1. Bigamous marriages
2. Adulterous relationships
3. Relationships in a state of concubinage
4. Relationships where both man and woman are married to
other persons
5. Multiple alliances of the same married man
6. Common-law spouses who suffer from a legal impediment to
marry or when they do not live exclusively with each other as
H/W
7. Void marriages by reason of public policy
8. Incestuous marriages

Distribution of properties under Art. 148

1. Wages and salaries earned by each party belong to him/her
exclusively
2. Only the property acquired by both of them through their
actual joint contribution of money, property or industry shall
be owned in common and in proportion to their respective
contributions
- If actual contribution is not proved, there will be no
co-ownership and no presumption of equal shares

Abesamis, Austinne Joyce D. !18


TITLE V
THE FAMILY
Chapter 1
The Family as an Institution
ART. 149 - ART. 150
The scope and coverage of family relation defined in Art. 150 is
exclusive
It is mandatory that the complaint or petition, which must be
verified, should allege that earnest efforts toward a compromise have
been made but that the same failed; if it is shown that no such efforts
were made, the case must be dismissed
Members of the same family must be construed in relation to Art.
150 FC
- A brother-in-law or a sister-in-law is a stranger with respect to
the family of their spouses and, as such, the mandatory
requirement of earnest effort toward a compromise does not
apply to them
- Earnest efforts to compromise are not jurisdictional
prerequisite for the maintenance of an action whenever a
stranger to the family is a party thereto, whether as necessary or
indispensable one
Art. 151 is NOT applicable to cases which are not subject to
compromise (Art. 2035 NCC)
1. Civil status of persons
2. Validity of marriage or legal separation
3. Any ground for legal separation
4. Future support
5. Jurisdiction of the courts
6. Future legitime
Chapter 2
The Family Home
ART. 152 - ART. 154
Family home is a real right, which is gratuitous, inalienable and free
from attachment, constituted over the dwelling place and the land on
which it is situated, which confers upon a particular family the right
to enjoy such properties, which must remain with the person
constituting it and his heirs
The occupancy of the family home either by the owner or any of its
beneficiaries must be actual
- That which is actual is something real, or actually existing, as
opposed to something merely possible, or to something which is
presumptive or constructive
For purposes of availing of the benefits of a family home, a person
may only constitute, or be the beneficiary of only ONE family home
The enumeration of beneficiaries of a family home may include the
in-laws where the family home is constituted jointly by the H/W
ART. 155 - ART. 157
GR: Family home is exe,pt from execution, forced sale or
attachment effective from the time of the constitution and lasts so
long as any of its beneficiaries actually resides therein
It appears that the intent of the law is to exempt the family home
from execution, forced sale or attachment only to the extent of the
value provided for in Art. 157
Abesamis, Austinne Joyce D.
Family Code of the P hilippines (Rabuya)
- It is for this reason that the law authorizes the sale of the family
home when a judgment creditor has reasonable grounds to
believe that the family home is actually worth more than the
maximum amount fixed in Art. 157
ART. 158
Considering the purpose of the law which affords protection to the
family home only to the extent of the value allowed under Art. 157,
it is submitted that the alienation or encumbrance in excess of the
value allowed under Art. 157 shall be considered valid
However, when the family home is part of the CP or AC, its
alienation or encumbrance during the marriage without the consent
of the other spouse shall be void
ART. 159
Present article qualifies the rule stated in Article 153
Rules that will apply in the event of the death of the person/s who
constituted the family home:
1. The family home continues to be such for as long as there is a
minor beneficiary actually residing therein;
2. But if there is no minor beneficiary, the family home
continues to be such only for a period of ten years provided
that a beneficiary of legal age actually resides therein
So long as the family home continues as such pursuant to the
provisions of the present article, the heirs are prohibited from
partitioning the family home unless the court finds compelling
reasons therefore
ART. 160
Since the law affords protection to the family home up to the extent
of the value allowed in Art. 157, the law directs that the amount
mention in Art. 157 shall first be satisfied prior to the satisfaction of
the judgment debt and costs
ART. 161 - ART. 162
The effect of Art. 162 is to constitute, by operation of law, all
existing family residences at the time of the effectivity of FC into
family homes
- However, Arts. 152 and 152 do not have retroactive effect
- Art. 162 simply means that all existing family residences at the
time of effectivity of FC are considered family homes and are
prospectively entitled to the benefits accorded to a family home
under the FC
!19

TITLE VI
PATERNITY AND FILIATION
Chapter 1
Legitimate Children
ART. 163 - ART. 165
PATERNITY is the civil status of a father in relation to his child
FILIATION is the civil status of a child in relation to his/her parents
Judgment of adoption is a judicial act whereby the same rights and
obligations arising out of filiation by blood are established for the
adoptive parent and the adopted child
Children conceived or born in a voidable marriage are likewise
considered legitimate since a voidable marriage is valid until
annulled
- Art. 54 FC
The following children of void marriages are also considered
LEGITIMATE
1. Children of marriages which are declared void under Art. 36
(psychological incapacity)
2. Children of marriages which are declared void under Art. 53
If the parents of children born outside of wedlock were, at the time
of the childs conception and birth, not legally barred from marrying
each other and subsequently do so, the childs filiation improves as
he becomes legitimized
- Art. 177 FC
Child conceived as a result of AI is considered legitimate child of
both husband and wife, even if the donor of the sperm used in the
insemination is not the husbands
- So long as the requirements of Art. 164 are met, the law deems
the child to be filiated, by nature, to the H/W
- If the H/W indeed authorized or ratified the insemination using
the sperm other than that of the husband, the husband may not
impugn the childs legitimacy by claiming that he could not have
been the father due to biological or other scientific reasons
The law does not recognize as valid the use of a surrogate mother,
even if the sperm is that of the husband
- Contrary to law, morals and public policy
ART. 166 - ART. 167
The presumption is grounded in policy to protect innocent offspring
from the odium of illegitimacy
The presumption of legitimacy of the child is not conclusive and
may be overthrown by evidence to the contrary
GR: Impugning the legitimacy of the child is a strictly personal right
of the HUSBAND for the simple reason that he is the one directly
confronted with the scandal and ridicule which the infidelity of the
wife produces
- EXCPN: ART. 171; the HEIRS may be allowed to impugn the
childs legitimacy in the following instances:
1. If the husband should die before the expiration of the
period fixed for bringing his action
2. If the husband should die after filing the complaint
without having desisted therefrom
3. If the child was born after the death of the husband
- Outside of these cases, none even the husbands heirs can
impugn legitimacy
Abesamis, Austinne Joyce D.
Family Code of the P hilippines (Rabuya)
The child himself cannot choose his own filiation
- If the husband, presumed to be the father does not impugn the
legitimacy of the child, then the status of the child is fixed, and
the latter cannot choose to be the child of his mothers alleged
paramour
- If the presumption of legitimacy is overthrown, the child cannot
elect the paternity of the husband who successfully defeated the
presumption
Reasons for presumption under Art. 167
1. In a fit of anger, or to arouse jealousy in the husband, the wife
may have made this declaration
2. The article is established as a guaranty in favor of the
children whose condition should not be under the mercy of
the passions of their parents
Art. 167 covers a situation where the wife denies the husbands
paternity of a child conceived or born during their marriage
- It does not contemplated a situation where a child is alleged not
to be the child of nature or biological child of a certain couple
Grounds to Impugn Childs Legitimacy
1. Physical impossibility to have sexual intercourse
- In order to overthrow the presumption of legitimacy, it
must be shown beyond reasonable doubt that there was no
access as could have enabled the husband to be the father
of the child
Where sexual intercourse is presumed or proved,
the husband must be taken to be the father of the
child
A. Physical Incapacity
IMPOTENCE which imports a total want of power
of copulation and, as a necessary incident thereto,
the inability to procreate
While sterility itself is not a sufficient ground to
overthrow the presumption of legitimacy, the
sterile husband may still successfully impugn the
childs legitimacy by resorting to biological or
other scientific reasons
B. Living Separately
Separation between the spouses must be such as to
make sexual access impossible
They reside in different countries or provinces, and
they have never been together during the period of
conception
The husband may be in prison during the period of
conception, unless it appears that sexual union took
place through corrupt violation of or allowed by
prison regulations
C. Serious Illness of Husband
Illness of the husband must be of such a nature
as to exclude the possibility of his having sexual
intercourse with his wife
Illness which produced temporary or permanent
impotence
2. Biological or other scientific reasons
- In issues relating to paternity and filiation, our courts are
mandated to apply the results of science in proper cases,
since it is one of the remedies made available to a
husband in impugning the legitimacy of a child
- Blood grouping tests are conclusive on non-paternity,
although inconclusive on paternity
- DNA analysis that excludes putative father from paternity
should be conclusive proof of non-paternity
!20

- Even if it was the wife whose written authorization or
ratification was obtained through mistake, fraud, violence,
intimidation, or undue influence, she has no right to
impugn the legitimacy of the child
- When the sperm used in AI is that of the husband, he
should not be allowed to impugn the childs legitimacy
even if his written authorization or ratification was
obtained through mistake, fraud, violence, intimidation or
undue influence
ART. 168
The article applies only in the absence of proof to the contrary
- It mere establishes presumptions as to which marriage the child
belongs and does not provide for presumptions of legitimacy of
the child concerned
ART. 169
It applies to a situation where a marriage has been terminated and
the woman gave birth to a child after 300 days following the
termination of the marriage
The child born under this situation is neither presumed to be
legitimate nor legitimate
ART. 170 - ART. 171
The issue of legitimacy cannot be attacked collaterally
- The legitimacy of the child can be impugned only in a direct
action brought for that purpose, by the proper parties, and within
the period limited by law
- The legitimacy of the child cannot be contested by way of
defense or as a collateral issue in another action for a different
purpose
Upon expirations of the periods provided in Art. 170, the action to
impugn legitimacy of a child can no longer be brought
- The status conferred by the presumption becomes fixed and can
no longer be questioned
Chapter 2
Proof of Filiation
ART. 172 - ART. 174
Chapter 3
Illegitimate Children
ART. 175 - ART. 176
Paternity or filiation, or the lack of it, is a relationship that must be
judicially established and it is for the court to declare its existence or
absence
- It cannot be left to the will or agreement of the parties
No compromise upon the civil status of persons shall be valid
A birth certificate, being a public document, offers prima facie
evidence of filiation and high degree of proof is needed to overthrow
the presumption of truth contained in such public document
- For a birth certificate to be considered competent evidence of
paternity, it is necessary that the putative father must have a
participation in its preparation
- A certificate of live birth purportedly identifying the putative
father is not competent evidence as to the issue of paternity,
Abesamis, Austinne Joyce D.
Family Code of the P hilippines (Rabuya)
when there is no showing that the putative father had a hand in
the preparation of the said certificates
- If the father did not intervene in the birth certificate, the
inscription of his name by the mother or doctor or registrar is
null and void
- The mere certificate by the registrar without the signature of the
father is not proof of voluntary acknowledgment on the latters
part
- It is not indispensable that the birth certificate be signed by the
putative father; what is important is that the putative father had a
hand in the preparation of the birth certificate
- Its evidentiary worth cannot be sustained where there exists
strong, complete and conclusive proof of its falsity or nullity
Baptismal certificate, a private document, which, being hearsay, is
not conclusive proof of filiation
- No longer public writings, nor kept by duly authorized public
officials
- Does not attest to the truth of the statements therein as to the
parentage of the child baptized; it only attests to the fact of the
administration of the sacrament
Admission of legitimate filiation must be made personally by the
parent himself or herself
- Any admission or recognition made by any brother, sister or
relative of the putative father is ineffective
- Filiation may likewise be established by holographic as well as
notarial wills, except that they no longer need to be probated or
to be strictly in conformity with the formalities thereof for the
purposes of establishing filiation
Open and continuous possession of the status of legitimate child is
meant the enjoyment by the child of the position and privileges
usually attached to the status of a legitimate child
- To prove open and continuous possession of the status of an
illegitimate child, there must be evidence of the manifestation of
the permanent intention of the supposed father to consider the
child as his
The acts must be of such nature that they reveal not only
the conviction of paternity, but also the apparent desire
to have and treat the child as such in all relations in
society and in life, not accidentally, but continuously
- Continuous means uninterrupted and consistent, but does not
require any particular length of time
Family portrait offered in evidence is not sufficient proof of filiation
An action to establish illegitimate filiation may be brought by the
child within the same period specified in Art.173, except when the
action is based on par. 2 of Art. 172, in which case the action must
be brought during the lifetime of the alleged parent
If the action to establish illegitimate filiation is based on the
following: (1) record of birth appearing in civil register or final
judgment; or (2) admission of paternity in a public document or a
private handwritten instrument and signed by the parent concerned
the same may be brought BY THE CHILD AT ANY TIME
DURING HIS/HER LIFETIME
If action is based on (1) open and continuous possession of status of
illegitimate child; or (2) any other means allowed by ROC and
special laws the same must be brought DURING THE
LIFETIME OF THE ALLEGED PARENT
Illegitimate children shall principally use the surname of their
mother
- They may be allowed to use the surname of their father only in
the following instances:
!21
 Family Code of the P hilippines (Rabuya)
1. If their illegitimate filiation has been expressly
recognized by the father through the record of birth
appearing in the civil register; or
2. When an admission of paternity is made by the putative
father in a public document or private handwritten
instrument
- If illegitimate filiation is established only through the use of
evidence in par. 2, Art. 172, an illegitimate child may not be
allowed to use the surname of the father
It is the GR in Art. 176 that shall apply, in which case,
such illegitimate child shall use the surname of the
mother

Chapter 4
Legitimated Children

ART. 177 - ART. 182

The process of legitimation takes place automatically by the
subsequent valid marriage of the parents, and as a result of which,
such children born out of wedlock become legitimate children of the
spouses

If, at the time of the childs conception, the parents are disqualified
by any impediment to marry each other, the child is not legitimated
by the subsequent marriage of the parents
- The remedy available to raise the child into the status of
legitimacy is that of adoption

What if the child is conceived and born inside a void marriage but
the parents are not disqualified by any impediment to marry each
other, i.e., in a marriage void by reason of absence of marriage
license, may the child be legitimated by the subsequent re-marriage
of the parents, now with a valid marriage license?
- Yes. What is essential is that the child must be conceived at the
time the parents are not disqualified by any impediment to marry
each other

If the impediment exists at the time of the conception of the child,

the child may not be legitimated

What if the impediment did not exist at the time of the conception
but present when the child was born, can he be legitimated? i.e., at
the time of conception, the parents were not married but not
suffering from any impediment to marry; but prior to childs birth,
his father marries another; marriage is later on terminated and his
father subsequently marries his mother, may the child be
legitimated?
- Yes

If an impediment ceases to exists at the time of the childs birth, so

long as the same existed at the TIME OF CONCEPTION, it is
believed that the child is not qualifies for legitimation

Legitimation does not require any additional act on the part of either
of the child or parents except that of the valid marriage of the childs
parents
- Child is automatically raised to the status of legitimacy which
retroacts to the time of the childs birth

The legal or compulsory heirs of the parents of the legitimated child

are to be considered as proper party to impugn legitimation
- The cause of action by those who are prejudiced in their rights
because of the legitimation accrues only upon the death of the
parent whose property is transmitted through succession

Validity of legitimation may only be question in a direct proceeding

Abesamis, Austinne Joyce D. !22


TITLE VII
ADOPTION
ART. 183 - ART. 193
Domestic Adoption Act (DAA) of 1998 is intended to govern
domestic adoption of Filipino children, whether the adopter is a
citizen of the Ph or an alien
Inter-Country Adoption Act (ICA) of 1995 is intended to govern
adoption of a Filipino child in a foreign country by a person who
may not even be qualified to adopt under the FC or DAA
- Adopter may either be a foreigner or a Filipino citizen
permanently residing abroad where the petition for adoption is
filed
ADOPTION is the process of making a child, whether related or not
to the adopter, possess in general, the rights accorded to a legitimate
child
- Juridical act, a proceeding in rem which creates between two
persons a relationship similar to that which results from
legitimate paternity and filiation
ONLY adoption that has gone through judicial process is considered
ad valid in the Ph
I.
DOMESTIC ADOPTION
Adopter
1. Citizen of Ph
2. Alien, so long as they are qualified to adopt
Qualifications of Filipino Adopter
1. Must be of legal age and at least 16 years older than adoptee,
except if the adopter is the biological parent of the adoptee or
the spouse of the adoptees parent
2. In possession of full civil capacity and legal rights, of good
moral character and has not been convicted of any crime
involving moral turpitude
3. Must be emotionally and psychologically capable of caring
for children and in a position to support and care for his/her
children in keeping with the means of the family
Qualifications of Alien Adopter
1. Must possess the same qualifications of Filipino nationals,
and in addition:
2. His/her country must have diplomatic relations with the RP
3. He/she has been certified by his/her diplomatic or consular
office or any appropriate government agency to be legally
capacitated to adopt in his/her country
4. His/her government allows the adoptee to enter his/her
country as his/her adopted son/daughter
5. He/she has been living in the Ph for at least 3 continuous
years prior to the filing of the application for adoption and
maintains such residence until the adoption decree is entered
Requirements on residency and certification of aliens qualification
to adopt may be waived for the following:
1. Former Filipino citizen who seeks to adopt a relative within
the 4th degree of consanguinity or affinity
2. One who seeks to adopt the legitimate son/daughter of his/her
Filipino spouse
3. One who is married to a Filipino citizen and seeks to adopt
jointly with his/her spouse a relative within the 4th degree of
consanguinity or affinity of the Filipino spouse
Abesamis, Austinne Joyce D.
Family Code of the P hilippines (Rabuya)
GR: Mandatory for both spouses to JOINTLY ADOPT
- EXCPN:
1. If one spouse seeks to adopt the legitimate son/daughter
of the other
2. If one spouse seeks to adopt his/her own illegitimate
son/daughter, provided, however, that the other spouse
has signified his/her consent thereto
3. If the spouses are legally separated from each other
If it is the other spouse who seeks to adopt the illegitimate child of
the other spouse, the law requires that both spouses must jointly
adopt
Who may be Adopted
1. Any person below 18 years of age who has been
administratively or judicially declared available for adoption
- Child is legally available for adoption
a. Below 18 years of age
b. Voluntarily or involuntarily committed to DSWD or
to a duly licensed and accredited child-placing or
child-caring agency
c. Freed of the parental authority of his/her biological
parent/s or guardian or adopter/s in case of
rescission of adoption
- A voluntarily committed child is one whose parent/s,
known or unknown, has been permanently and judicially
deprived of parental authority due to:
a. Abandonment;
b. Substantial, continuous, or repeated neglect;
c. Abuse;
d. Incompetence to discharge parental responsibilities
- Any voluntary or involuntary termination of parental
authority shall be administratively or judicially declared
2. Legitimate son/daughter of one spouse by the other spouse
3. Illegitimate son/daughter by a qualified adopter to improve
his/her status to that of legitimacy
4. A person of legal age if, prior to the adoption, said person has
been consistently considered and treated by the adopter/s as
his/her own child since minority
5. A child whose adoption has been previously rescinded; to be
legally available for adoption, the child must be below 18
years of age
6. A child whose biological or adoptive parent/s has died
provided that the child is below 18 years of age; in this case,
the law requires that no adoption proceedings shall be
initiated within 6 months from the time of the death of the
said parent/s
Our laws do not prohibit relatives, whether by blood or affinity, from
adopting one another
Absence of parental authority on the part of a biological parent does
not necessarily mean that his/her consent is not required
The law in requiring the written consent of the biological parent/s of
the child, if know, does not distinguish between legitimate and
illegitimate filiation
Written consent of the natural parent to the adoption, while
indispensable to the validity of the decree of adoption may be
dispensed with if the parent has abandoned the child or that such
parent is insane or hopelessly intemperate
Family Court has exclusive jurisdiction to hear and decide petitions
for adoption of children and its revocation
- Venue shall be in the province or city where the prospective
parents reside
!23

Adoption is a proceeding in rem
FOUNDLING refers to a deserted or abandoned infant or child
whose parents, guardian or relatives are unknown; or a child
committed to an orphanage or charitable or similar institution with
unknown facts of birth and parentage and registered in the Civil
Register as a foundling
ABANDONED CHILD refers to one who has no proper parental
care or guardianship or whose parents have deserted him for a period
of at least 6 continuous month and has been judicially declared as
such
DEPENDENT CHILD refers to one who is without a parent,
guardian or custodian or one whose parents, guardian or other
custodian for good cause desires to be relieved of his care and
custody and is dependent upon the public for support
NEGLECTED CHILD is one whose basic needs have been
deliberately not attended to or inadequately attended to, physically
or emotionally, by his parents or guardian
All legal ties between the biological parent/s and the adoptee shall
be severed and same shall be vested upon the adopter/s, except in
cases where the biological parent is the spouse of the adopter
The adopted is deemed to be a legitimate child of the adopter for all
intents and purposes but the relationship established is limited to the
adopting parents and does not extend to their other relatives, except
as expressly provided by law
Adopted child has the right to use the surname of the adopter/s
- However, the provision of law which entitles the adopted minor
to the use of the surname of the adopter refers to the adopters
own surname and not to the surname acquired by virtue of
marriage
- There is no law prohibiting an illegitimate child adopted by her
natural father to use, as middle name, her mothers surname
The adopted and his/her biological parents are not legally bound to
support each other because of the severance of legal ties between
them
The adopter and the adoptee are legal heirs of each other, in the same
way and in the same manner that a legitimate child and his/her
legitimate parents are heirs of each other
- DAA amended Art. 190 FC
- Under DAA, the adopted and his/her parents by nature may only
succeed from each other by way of testamentary succession
The intention of the law is to extinguish the reciprocal
rights of succession that exist between the adopted and
his/her parents by nature, including the right to the
legitimate and rights arising from legal or intestate
succession
DAA withdrew the right of an adopter to rescind the adoption decree
and gave to the adopted child the sole right to severe the legal ties
created by adoption
- However, the adopter/s may disinherit the adoptee for causes
provided in Art. 919 of the NCC
Grounds for Rescission
1. Repeated physical and verbal maltreatment by the adopter/s
despite having undergone counseling;
2. Attempt on the life of the adoptee;
3. Sexual assault or violence; or
4. Abandonment and failure to comply with parental obligations
Abesamis, Austinne Joyce D.
Family Code of the P hilippines (Rabuya)
If incapacitated, adoptee must file the petition for rescission or
revocation of adoption within 5 years after he reaches the age of
majority
If he incompetent at the time of adoption, file the petition within 5
years after recovery from such incompetency
Effects of Rescission
1. Parental authority of the adoptees biological parent/s, if
known, of the legal custody of the Department, shall be
resorted if the adoptee is still a minor or incapacitated
2. Reciprocal rights and obligations of the adopter/s and adoptee
to each other shall be extinguished
3. Court shall order the Civil Registrar to cancel the amended
certificate of birth of the adoptee and restore his/her original
birth certificate
4. Succession rights shall revert to its status prior to adoption,
but only as of the date of judgment of judicial rescission;
however, vested rights acquired prior to judicial rescission
shall be respected
II.
INTER-COUNTRY ADOPTION
Policy of the state is to encourage domestic adoption so as to
preserve the Filipino childs identity and culture in his/her native
land, and only when this is not available shall ICA be considered as
a last resort
Who may Adopt
- Any foreign national of Filipino citizen permanently residing
abroad who has the qualifications and none of the
disqualifications under ICA may file an application if he/she
1. Is at least 27 years of age;
2. Is at least 16 years older than the child to be adopted at
the time of the filing of application unless the applicant
is the parent by nature of the child to be adopted or is the
spouse of such parent by nature;
3. Has the capacity to act and assume all the rights and
responsibilities incident to parental authority under his/
her national law;
4. Has undergone appropriate counseling from an
accredited counselor in his/her country;
5. Has not been convicted of a crime involving moral
turpitude;
6. Is eligible to adopt under his/her national law;
7. Can provide the proper care and support and give the
necessary moral values and example to the child and in
the proper case, to all his/her other children;
8. Comes from a country:
a. with whom PH has diplomatic relations;
b. whose government maintains a foreign adoption
agency; and
c. whose laws allow adoption; and
9. Files jointly with his/her spouse, if any, who shall have
the same qualifications and non of the disqualifications
to adopt as prescribed above
Who may be Adopted
- Only a legally free child may be the subject of ICA who is below
15 years of age
!24

TITLE VIII
SUPPORT
ART. 194
Support applies only to means of subsistence during life; thus
funeral expenses are not within the meaning of the word, although
the duty and the right to make arrangements for the funeral of a
relative shall also be in accordance with the order established for
support
Does not include and allowance for the payment of life insurance
premiums
ART. 195 - ART. 196
To be entitled to support, the spouse must be the legitimate spouse
In legal separation, while the marriage bond is not severed, the
obligation of the spouses to support each other ceases upon the
finality of the decree of legal separation
- In its discretion, the court may order the guilty spouse to give
support to the innocent one
Illegitimate descendants, whether from legitimate or illegitimate
children, are entitled to support from their grandparents
Children, whether legitimate or illegitimate, are entitled to be
supported by their parents
- Even an unborn child has the right to support
With respect to brothers and sisters not legitimately related, the
right and obligation to support each other ceases when the need for
support of the brother or sister, being of age, is due to a cause
imputable to the claimants fault or negligence
ART. 197
Support of spouses, their common children and legitimate children
of either spouse is chargeable to the AC of CP
- If insufficient, the spouses shall be solidarily liable with their
separate properties
ART. 198
Since the obligation to give support between the spouses proceeds
from the marital tie, if the defendant denies the marriage between
him and plaintiff, thus putting in issue the very status of the plaintiff,
support pendente lite may not be allowed, unless and until the
marriage is established as a fact
Adultery is a valid defense in an action for support
- However, mere allegation that the wife has committed adultery
will not bar her from the right to receive support pendente lite
ART. 199 - ART. 200
Order of liability for support
ART. 201 - ART. 202
Any judgment granting support never becomes final and is always
subject to modification, depending upon the needs of the child and
the capabilities of the parents to give support
ART. 203 - ART. 204
Abesamis, Austinne Joyce D.
Family Code of the P hilippines (Rabuya)
Where duty to support is admitted, but in spite of demands the duty
is not complied with and the person to be supported has to resort to
the court for the enforcement of his right, then the person obliged to
give support must pay reasonable attorneys fees
- Recoverable even in the absence of stipulation
Judgment in actions for support is immediately executory and cannot
be stayed by an appeal
ART. 205
Characteristics of Right to Support
1. Right to receive legal support, as well as any money or
property obtained under such support, cannot be levied upon
on attachment or execution for to allow attachment or
execution of the right to support, or of what is used for
support, would defeat the purpose which the law gives to the
recipient against want and misery;
2. Right to receive support cannot be renounced nor can it be
transmitted to a third person;
3. Future support cannot be subject of a compromise; and
4. Compensation may not even be set up against a creditor who
has a claim for support due by gratuitous title
ART. 206
Payment by Stranger
Stranger refers to one who does not have any obligation to give
support to the person who received it; must not be one of those
enumerated in Arts. 195 and 196
Obligation to reimburse is one that arises from quasi-contract
- It is necessary that support must have been given without the
knowledge of the person obliged to give support
ART. 207
Payment by Third Person
The law creates a promise of reimbursement on the part of the
person obliged to furnish support, inspite of the deliberate disregard
of his legal and moral duty
ART. 208
CONTRACTUAL SUPPORT is not based on law but originates
either from will or from the agreement of the parties
- Legal support is that which is contemplated in Arts. 195 and 196
- In legal support, the recipient and giver must be mutually
obliged to give support; whereas in contractual support, they
need not be so
- In contractual support, the excess in amount beyond that
required for legal support shall be subject to levy on attachment
or execution; it can be renounced or waived in contrast to legal
support
!25

TITLE IX
PARENTAL AUTHORITY
Chapter 1
General Provision
ART. 209 - ART. 210
Parental authority, patria potestas, is defined as the mass of rights
and obligations which parents have in relation to the person and
property of their children until their majority age or emancipation,
and even after this under certain circumstances
Exercised over unemancipated children, but in certain
circumstances, PA may still be exercised notwithstanding the
emancipation of the child, e.g. parental consent is necessary if a
person below 21 years of age wants to get married
Majority commences at the age of 18 years
Consequences of PA; parents may exercise the following rights
1. Right to have them in their company (custody);
2. Right to be obeyed and respected
3. Right to impose discipline on them as may required under the
circumstances;
4. Right to withhold or give consent in certain matters;
5. Right to exercise legal guardianship over property of
unemancipated common children;
6. Limited right of usufruct over childs property
Parental authority and responsibility are inalienable and may not be
transferred or renounced except in cases authorized by law
- Law authorizes waiver of PA only in cases of adoption,
guardianship and surrender to childrens home or an orphan
institution
ART. 211 - ART. 212
Generally, PA is jointly exercised by father and mother, but there are
instances where the exercise of PA is primarily lodged in the father
- Art. 14 and 78 FC; applies only when children are legitimate
- Illegitimate children are under the PA only of their mother
Visitation right is the right of access of a noncustodial parent to his/
child/ren
ART. 213
In legal separation, the law only confers on the innocent spouse the
exercise of PA
- The award of custody to the innocent spouse does not deprive
the guilty spouse of PA
Par. 3, Art. 63 which states that the custody of the minor children
shall be awarded to the innocent spouse is subject to the provisions
of Art. 213
- As much as possible, FC prohibits the separation of a child
below 7 years of age from the mother even if the latter is the
guilty spouse in a legal separation case
- The mere fact that the mother is the guilty spouse in legal
separation does not necessarily mean that she is not fit to be a
parent
TENDER-AGE PRESUMPTION
- GR: A mother is to be preferred in awarding custody of children
under the age of 7
- EXCPN: When the court finds cause to order otherwise;
compelling reasons
Abesamis, Austinne Joyce D.
Family Code of the P hilippines (Rabuya)
Neglect, abandonment; unemployment and immorality;
habitual drunkenness; drug addiction, maltreatment of the
child, insanity and being sick with a communicable
disease
Mere fact that the mother is a lesbian is not a compelling
reason
To deprive wife of custody, the husband must clearly
establish that her moral lapses have had an adverse effect
on the welfare of the child or have distracted the offending
spouse from exercising proper parental care
If older than 7 years of age, the child is allowed to state his
preference, but the court is not bound by that choice; it is not
controlling, decisive, or determinative
Whether a child is under or over 7 years of age, the paramount
criterion must always be the childs interests or the welfare and well-
being of the child
Couples who are separated in fact are covered under this article
ART. 214 - ART. 215
ART. 215 FC Sec. 25, Rule 130 ROC
Applicable only in criminal May be invoked in both civil
proceedings and criminal cases
Invoked only by descendants Invoked either by descendants or
ascendants
Invoked only in criminal cases Invoked in civil or criminal
against parents and grandparents cases against parents, other
direct ascendants, children or
other direct descendants
Privilege is not absolute since There appears to be no excpn
the descendants can be
compelled to testify in criminal
cases against the parents and
grandparents when their
testimony is indispensable in a
crime against the descendants or
by one parent against the other
To preserve family cohesion
If the crime is committed by a parent or grandparent against the
descendant or against the other parent and the testimony of the
descendant is indispensable, he can be compelled to testify
Chapter 2
Substitute and Special Parental Authority
ART. 216
See Santos, Sr. v CA, 242 SCRA 407 (1995)
Parental preference rule may not be invoked by the father of an
illegitimate child in case of death, absence or unsuitability of the
mother since under Art. 176, an illegitimate child is not under
parental authority of the father
- In the event that both mother and father of an illegitimate child
die during the latters minority and the child is survived by his
grandparents on both maternal and paternal sides, only the
grandparents on the maternal side shall be entitled to exercise
substitute parental authority, if suitable
!26

SUBSTITUTE PA may only be exercised by the persons designated
in Art. 216 in the case of death, absence or unsuitability of both
parents
- Cannot co-exist with parents PA
ART. 217
PA shall be entrusted in summary judicial proceedings to heads of
childrens homes, orphanages and similar institutions duly accredited
by the proper government agency
ART. 218 - ART. 219
SPECIAL PA is granted by law to certain persons, entities or
institutions in view of their special relation to children under their
supervision, instruction or custody
- Extended by law to all authorized activities whether the same is
undertaken inside or outside of the premises of the school, entity
or institution
- Co-exists with parents PA
Chapter 3
Effect of Parental Authority upon Persons of the Children
ART. 220 - ART. 222
In case of legitimate children, the father and mother, being the
natural guardians, are duty-bound and entitled to keep them in their
custody and company
In case of illegitimate child, he/she is under the sole PA of the
mother
- But the father is entitled to visitation rights
Obligation of parents to support their children is not co-terminus
with the exercise of PA
- While PA is permanently terminated upon childs emancipation,
the parents obligation to support their children is not necessarily
terminated upon such emancipation
Parents are the legal representatives of their minor children in court
proceedings
Parents are civilly liable for quasi-delicts of their minor children
subject to the following conditions
1. Minor is living in the company of his parents
2. Minor is under their PA
3. Parents failed to exercise all the diligence of a good father or
a family to prevent damage
Parental liability is anchored upon PA coupled with presumed
parental dereliction in the discharge of the duties accompanying such
authority
Bases of parental liability for torts of a minor child is the
relationship existing between the parents and the minor children
living with them and over whom, the law presumes, the parents
exercise supervision and control
No parental liability can be imposed upon the father of an
illegitimate child, especially if the child is not living in his company,
since under the law, the child is under the sole PA of the mother
Art. 2180 NCC refers to minor children who is below 21 years of
age
Abesamis, Austinne Joyce D.
Family Code of the P hilippines (Rabuya)
- While the child is already emancipated and no longer under the
PA of his parents, the parents are still liable for quasi-delict
committed by said child if the latter is below 21
Parents are civilly liable for the felonies committed by their minor
children
Art. 221 FC is intended to govern the matter of parental liability for
quasi-delicts committed by children below 18; whereas, Art. 2180
NCC governs liability of parents for quasi-delicts committed by their
children who are 18 but under 21 years of age
- Under Art 2180, enforcement of liability shall be effected
against the father and, in case of his death or incapacity, the
mother
- In Art. 221, there is no such alternative
Whether the liability of the parents arises from quasi-delict or
criminal offenses committed by their minor children under their
legal authority or control, or who live in their company, the nature of
such liability is primary and not subsidiary
- Parents are subsidiarily liable only if, at the time of the
commission of quasi-delict, the minor children are under special
PA
ART. 223 - ART. 224
Aside from personally disciplining the child, the parents or persons
exercising PA may also petition the court for the imposition of
appropriate disciplinary measures
Chapter 4
Effect of Parental Authority Upon the Property of the Children
ART. 225 - ART. 227
While parents are considered the legal guardian of the minors
property, the court may, appoint a guardian of the childs property
other than the parents when the best interests of the child so requires
Things given by the parent by way of support or as necessaries, such
as clothing and the like, remain the property of the parent and do not
belong to the child, notwithstanding the childs possession of them
Parents have a limited right of usufruct over the property of their
minor children
Chapter 5
Suspension or Termination of Parental Authority
ART. 228 - ART. 233
Authorized grounds for the appointment of guardian
1. Death, continued absence of incapacity of the minors
parents;
2. Suspension, deprivation or termination of PA;
3. Remarriage of the minors surviving parent, if the latter is
found unsuitable to exercise PA; and
4. When the best interests of the minor so require
Upon appointment of the guardian, the PA of the parents is likewise
terminated unless the same is subsequently revived by a final
judgment
In the absence of judicial declaration of abandonment the PA of the
parents remains unaffected
!27
 Family Code of the P hilippines (Rabuya)
TITLE X

EMANCIPATION AND AGE OF MAJORITY

ART. 234 - ART. 237

Emancipation is effected by operation of law when the child reaches
the age of 18 years

TITLE XI

SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW

Chapter 1
Prefatory Provisions

ART. 238

Chapter 2
Separation in Fact

ART. 239 - ART. 248

Chapter 3
Incidents Involving Parental Authority

ART. 249 - ART. 252

Chapter 4
Other Matters Subject to Summary Proceedings

ART. 253

TITLE XII

FINAL PROVISIONS

ART. 254 - ART. 257

Abesamis, Austinne Joyce D. !28