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PERSONS AND FAMILY RELATIONS REVIEW

SY 2016 Trancsription | From the lectures of Atty. Lydia Galas


Ateneo de Davao University | The College of Law | Kwatro Manresa

order for it be effective because without the


[Read this together with your Civil Law codal, for cross-
publication, then it run counters to the
referencing and stuff. ]
constitutional guarantee on due process. So
August 8, 2016 (Transcribed by: JPader, BSarno) the due process clause in the Constitution
would be violated in the absence of the
THE NEW CIVIL CODE OF THE publication. So whether it is for general
PHILIPPINES application or merely favoring a particular
individual, the law has to be published.
PRELIMINARY TITLE Included in that particular word “LAW” would be circulars and
Implementing Rules and Regulations (IRRs) that provide
CHAPTER 1
PUNISHMENT. Because it is penal in nature, hence, it must be
Effect and Application of Laws
published to be effective.

So, let’s go the Civil Code first. Just remember that RA But ordinances are NOT included because these are governed
by your LGC. Likewise, this will NOT also include Administrative
386 is the New Civil Code of the Philippines.
Orders that merely provide for the application of a particular
We now go to effectivity of the laws. law where no punishment is mandated.
Law shall take effect depending on what is provided for in the Now in relation to this is Art. 3.
law itself. But in the absence of any provision as to the
effectivity of the law, then we follow Art. 2 of the CC. Article 3. Ignorance of the law excuses no one from
compliance therewith. (2)
Article 2. Laws shall take effect after fifteen days following
the completion of their publication in the Official Gazette, or in So all prohibitory or mandatory laws – you are presumed to
a newspaper of general circulation in the Philippines, unless it know the existence of these prohibitory or mandatory laws for
is otherwise provided. This Code shall take effect one year as long as these laws are published.
after such publication. (1a)
But we do NOT take judicial notice of foreign laws. These are
factual matters that must be alleged and proved in order that
The “unless otherwise provided” phrase refers to whether
our courts will take judicial conclusion of foreign laws,
the law becomes effective immediately or it might be effective
judgments, conventions, determinations because as I said
depending on the law itself. So it might shorten or it might
these are factual matters.
lengthen it.
In relation to Art. 3, we will go to Art. 15 later which I
I have noticed that prior to the departure of your former
understand is already discussed to you by Atty. Juan. We will
President, there were so many laws that become laws because
proceed later to Art. 15 in relation to the application of
he failed to sign it. So it lapsed into a law.
Presumed Identity Approach or the Doctrine of Processual
But I read those laws (ex: Anti-distracted driving law), almost Presumption.
of those laws provided that it shall become effective after 15
So we go to Art. 4 on laws generally are given prospective
days following the completion of their publication in the Official
application.
Gazette, or in a newspaper of general circulation.
Now publication is indispensable. This is the holding of the Article 4. Laws shall have no retroactive effect, unless the
court in the case of: contrary is provided. (3)
Tanada v. Tuvera (146 SCRA 448)
It frowns on retroactivity. It looks forward.
That case was filed actually immediately
after Marcos who is now the center of The reasons why our laws are generally given prospective
controversy left Malacanang, and the Cory application are the following:
Government discovered that there were so
1) It would prejudice vested rights;
many Presidential Decrees that were not
published, and yet was enforced by the 2) It would create new obligations;
Marcos regime. So all these became the
3) It imposes a new duty; or
basis of the petition that was filed by
Tanada. 4) It might attach a new disability to transactions that are
already past.
So the SC held that all laws of general
application or all local statutes whether it is Hence, laws are generally given prospective application subject
for general application or merely favorable to to the following exceptions:
a particular person must be published in
1) Where the law itself authorizes retroactivity;
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To God be the Glory!
PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

Number one example is of course your Family Code, Art. 4) Tax laws;
256, which provides that the Code shall have retroactive
Because your President cannot travel from one place to
effect insofar as it does not prejudice or impair vested or
another without your taxes paid.
acquired rights in accordance with the Civil Code or other
laws. 5) Curative laws;
So that is a perfect example of a law that is given These are laws designed to cure defects in a prior law but
express retroactivity by the law itself. the defects do not refer to the substance of the law itself.
Of course, it might also be implied, but we do not It would refer to the formerly (?) of a prior law that was
immediately give rise to the presumption that simply passed and there are defects therein so it can be cured by
because a new law is not in harmony of a prior law, there the subsequent passage of a law that would cure these
is already an implied retroactivity because this one is defects.
different from the old law.
6) Emergency laws;
There is this one law where there is implied retroactivity –
RA 9255 (Allowing illegitimate children to use the These are laws designed to meet emergency situations
surname or bear the surname of the father). like the emergencies or those that are catastrophic in
nature. So that can be given retroactive application.
If you have read the law, there is nothing there which
speaks of retroactivity. So this is actually not in 7) Laws creating new rights.
consonance with the provisions of the Family Code, isn’t These are true in the Family Code giving the illegitimate
it? Because under the FC, even if the father recognizes the child half of the share of 1 legitimate child. This was not
illegitimate child, the child cannot carry the surname of true under the Civil Code because in order for an
the father. You remember that case involving a lawyer? illegitimate child where there is an impediment on the part
Ah wala na kasi nakatingin na kayo lahat sa akin.  of whom? On the part of the father. Kasi kung mother ano
because prior to this (RA 9255) even if the father ang presumption? Subsisting valid marriage. Remember
recognizes, because the law says that the child shall bear the case of Concepcion? Inaabangan ko yun ba sa bar
the surname of the mother under the parental authority of exam, di pa talaga lumalabas. So the defect or the
the mother. You remember that particular provision? But impediment is on the part of the father but the father
there was this lawyer who recognized the child as his recognizes the child. So under the CC, the child recognized
illegitimate child. What he did was to bring the birth by the father, by legal fiction, is entitled only to 4/5 of the
certificate to the civil registrar and said that I will allow my share of the illegitimate child. So mas maliit because the
child to – of course, it was proper for the civil registrar to illegitimate child, the acknowledged natural child under
deny because the FC does not allow it. the CC, is entitled to ½ of the share. But with the FC,
But when the passage of RA 9255 became into a law, it regardless of whether the father has an impediment and
applies even to births prior to the effectivity of the law. So for as long as the father recognizes the child as his
it has retroactive application even if it was silent and not illegitimate child, then the child is entitled to ½ of the
in conformity with the provision of the FC on the use of share of one legitimate child. That is the new law as
surnames respecting illegitimate children. provided for under the FC.

2) Remedial laws; Article 5. Acts executed against the provisions of mandatory


These are given retroactive application because as a or prohibitory laws shall be void, except when the law itself
general rule remedial laws do not affect vested rights. authorizes their validity. (4a)

But there is one procedural rule that is given prospective


Exceptions are:
application. What is it? The rules on declaration of nullity
and annulment of marriage because of that decision of the 1) When the law itself expressly validated the act;
court in the case of Carlos v. Sandoval that this will only
Example is Art. 41 of the FC on those who would
apply to cases filed upon the effectivity of that rule
whereby only the husband or the wife may file petitions contract a subsequent marriage despite the subsistence of
a prior marriage but all the requisites mentioned in Art. 41
for declaration of nullity or annulment of marriages.
as enumerated by the SC in the case of Velasco v. CA
3) If it is penal in nature; had been complied with, then there can be no basis of
filing of the absentee spouse in case he would reappear
But there are 2 requisites in order that it shall be given
against the spouses of the subsequent marriage for
retroactive application:
bigamy because all the requisites had been complied with.
 It is favorable to the accused; and
2) By making the invalidity to depend upon the
 The accused is not a habitual delinquent as defined aggrieved party;
by Art. 62 of RPC.

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To God be the Glory!
PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

Like annullable contracts. Take note that under annullable Precisely, you cannot waive future inheritance subject of
contracts under Art. 1391 of your Oblicon. course to the exceptions provided for under Art. 1347 of
your Oblicon.
The one who can file an action for annulment would be
the aggrieved party – the minor, or the person upon So as a general rule, you cannot waive future inheritance
whom any of the vices of consent had been employed. because the right at the time of the waiver is not yet
existing. It is merely inchoate or a mere expectancy.
Likewise also in voidable marriages except number 1 of
Future support likewise cannot be the subject of a waiver.
Art. 45, it is only the aggrieved party who can file for an
action for annulment. Art. 45 (1) refers to those who enter 2) The person waiving must have the full capacity to
into marriage between ages of 18 to 21 who did not make the waiver;
obtain parental consent. Because there the law grants also
Capacity:
to the parent or the guardian the right to file petition for
annulment. But all the rest would depend on the  not only means age of the party waiving
aggrieved spouse.
 but also the absence of any of the impediments
3) Punishing it criminally, but validating the act; mentioned,
So the example of which would be of course the provision  or there is this absence of any of the employment of
in the RPC prohibiting the widow from marrying within the vices of consent on the part of the party waiving
300 days from the date of death of the husband. The and made by the party who is the beneficiary of the
purpose there is to determine whether or not the widow, waiver.
at the time of death of the husband, is pregnant and to
avoid any issue on the paternity of the child although this 3) It must be clear and unequivocal;
has already been answered by the FC on before 180 days Guy v. CA (502 SCRA 151)
- after 180 days, remember that? And of course there is a
move in Congress to have that particular provision under The SC said that the waiver that was signed
the RPC removed because it has no more basis actually for by Remedios does not state the purpose
its existence. with clarity. It merely says that “in
settlement of all financial obligations”.
4) Invalidating the act but recognizing legal effects
flowing from the act; According to the court, that cannot be
considered as one falling under the
We have the express provision under Art. 54 of the FC requirement that the waiver must be clear
that as a general rule, children born out of void marriages and unequivocal.
are supposed to be illegitimate but that is under Art. 36
only and Art. 53. Moreover, assuming that it was a clear
waiver on the part of the mother to waive
Now if you remember, Art. 36 is Psychological Incapacity; the children’s right over the inheritance of
and Art. 53 refers to void marriages that do not comply their late father, the SC said also that while
with the requirements under Art. 52 where the marriage is parents or guardians are allowed to accept
declared void or annulled then they have to first comply the inheritance for and on behalf of the
with the requirements under Art. 52 in order for them to minor children, but any waiver thereof must
enter into another valid subsequent marriage, but this was be with judicial authorization. So without the
not complied with. Hence, the subsequent marriage is judicial authorization, that would be void.
void.
Famanila v. CA (August 29, 2006)
But under Art. 54, children born out of this void
marriages are legitimate even if the marriage of the Do you remember the case of Famanila in
parents of the children is void. your Oblicon? The messman of a foreign
ship and then he is to be operated and he
Then we go to waiver. was repatriated to the Philippines because
he could no longer work. That was the
Article 6. Rights may be waived, unless the waiver is contrary advice of the doctor. And then later, the
to law, public order, public policy, morals, or good customs, or company went to his home and said that
prejudicial to a third person with a right recognized by law. “we are offering $13,000 as settlement of
your claim, and this was signed by Famanila
Now what are the requisites in order that there shall be a in the presence of the wife and another
valid waiver? The requisites were asked in the 2004 Bar exam. relative. Subsequently, he questioned the
validity of that waiver. He said that at the
1) The right that he is waiving must be existing at the time, the waiver was void and
time the waiver is made. unenforceable. That was his contention
because at the time he signed the waiver he
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To God be the Glory!
PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

was physically disabled. By reason of his cited Art. 9 that “no judge or court shall
physical disability and he was also in decline to render judgment xx”
financial constraint led him to accept the
The SC said yes that’s true. But if we are to
amount offered.
decide on your case, then we will be creating
But the SC said these are not the grounds a law on the matter which is not allowed.
mentioned under Art. 1391 of the CC to That is legislating. It is not license upon the
make the waiver voidable. It was inaccurate courts to engage in judicial legislation. The
for him likewise to say that it is void because duty of the courts is to apply or interpret the
the vitiation of consent would merely mean law, not to make or amend it. We might be
that it is voidable, not void. And according to to provide a protocol, according to the court,
the court, the vices of consent mentioned in but not to make any particular decision
Art. 1391(2) would only refer to force, because of the absence of the law especially
intimidation, etc. but not to physical so since the petition is more statute based.
disability and financial constraint. Moreover, Remember that the basis why he filed the
the SC said that the waiver signed by petition for the change or correction of
Famanila is valid because this was attested entries of his birth certificate is for him to
to and witnessed by the wife and another marry the American boyfriend who financed
relative. So, there can be no basis for his that surgery because they have plans of
claim that his consent to the waiver was marrying. So that is statute based. The Court
vitiated. said we cannot decide. It is for Congress.
Ours is merely to interpret the law, but not
We now go to Judicial Decisions.
to decide on the matter.

Article 8. Judicial decisions applying or interpreting the laws


Article 14. Penal laws and those of public security and safety
or the Constitution shall form a part of the legal system of the
shall be obligatory upon all who live or sojourn in the Philippine
Philippines. (n)
territory, subject to the principles of public international law
and to treaty stipulations. (8a)
They are not laws but they merely serve to interpret or
construe the law, although they form part of the legal system
This was also cited by Mr. Wilsem in:
of the Philippines but these are not laws. Otherwise, they
would be considered as encroachment on the authority of Del Socorro v. Wilsem
Congress to enact laws. So the decisions referred to herein are (December 10, 2014)
of course Supreme Court decisions that you now know as
They were formerly married and then the
jurisprudence.
divorce was granted by a Holland court.
But decisions of the Court of Appeals may also become They had one child who is about 18 months
jurisprudence if the requirements under that Miranda v. old. Wilsem promised to provide support for
Imperial case have been met: the child but no support came because after
the divorce the wife and the child returned
 meaning the CA has decided on an issue that is so novel
to the Philippines. Subsequently, he
 and is not yet decided upon by the Supreme Court, contracted another marriage and settled in
Pinamungahan, Cebu. The former wife
 and is subsequently affirmed by the SC. settled in Cebu City and they (Wilsem and
new wife) put up this catering business.
Article 9. No judge or court shall decline to render judgment Then of course, when the former wife Del
by reason of the silence, obscurity or insufficiency of the laws. Soccorro learned that there was this catering
business that was put up by Wilsem and the
Take note Art. 9 applies only to civil cases. This will not apply new wife, she now sued Wilsem for the
to criminal cases because nullum crimen nulla poena sine lege. promised support but the basis for the
There is no crime when there is no law punishing it. petition is not Art. 195 of the FC on support,
but rather based on RA 9262 (VAWC law) on
Silverio v. Republic (537 SCRA 373) refusal to give support. Remember that 9262
He filed this motion for reconsideration is penal in nature. The non-compliance of
because the court refused or denied his provisions therein is penal in nature. So
petition citing that there is no law that would Wilsem said “I cannot be covered by your
govern respecting the situation that he found penal statute because I am a citizen of
himself in. remember him? He changed his Holland, thus I cannot be held liable for my
gender through medical intervention. So he refusal to give support.

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To God be the Glory!
PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

The SC cited this Art. 14 because remember under our laws through the presentation of
that even if you are a foreigner, but you are that decree of divorce he obtained from an
sojourning or living temporarily in the Australian court.
Philippines, you have to follow our penal
But what did the SC say? It would have been
laws. You are only covered by your national
sufficient if he had presented that certificate
law with respect to family rights, duties,
of legal capacity to contract marriage under
status, condition and legal capacity, but not
Art. 21 of the FC because our courts do not
the provisions on penal laws. That is the
take judicial notice of foreign judgment of
provision used by the SC when he used that
foreign courts unless Rule 132, sections 24-
as his defense.
25 of the Rules of Court have been complied
We now go to Art. 15 on the Nationality Theory. with. Sections 24-25 would refer to the
official publication of the law, judgment or
Article 15. Laws relating to family rights and duties, or to the decree, or in the absence thereof the officer
status, condition and legal capacity of persons are binding having legal custody of the document.
upon citizens of the Philippines, even though living abroad. This was further amplified by the Supreme Court in:

Here, regardless of where the Filipino is for as long as he is a San Luis v. San Luis (February 6, 2007)
Filipino, then he is governed by his national law. By analogy, If the document is not kept in the
the foreigner is also governed by his national law but limited Philippines, then this must be certified by the
only to family rights and duties, status, condition and legal consular official of the Republic of the
capacity. Philippines assigned in the country where
Under our law, we do not recognize divorce. the document is kept and authenticated by
the seal of his office. So that is when our
Perez v. CA (January 27, 2006) courts would take judicial notice of foreign
laws or judgment. So there must be first
In the case of Elmar Perez whereby the
compliance with those requirements.
Filipino spouses obtained a decree of divorce
Otherwise, we apply the doctrine of
from a Dominican Republic Court through
processual presumption that their law is
the simple execution of a Special Power of
the same with our laws.
Attorney. But they were Filipinos at the time
the decree of divorce was obtained. Tristan, Lavadia v. Heirs of Juan
the Filipino husband, contracted a Luces Luna(July 23, 2014)
subsequent marriage in the USA. Perez, the
second wife, learned that their marriage was Lavadia refers to the application of the
void because Tristan was still validly married nationality rule under Art. 15. Juan Luces
to the first wife, they being Filipinos at the Luna is a lawyer who obtained a decree of
time the decree of divorce was obtained. Of divorce. This was agreed upon by the
course, there was confrontations and the spouses. Prior to the divorce, they entered
husband promised that he will file a petition into a settlement regarding the properties
for annulment of marriage which was filed in acquired during the marriage. Then
the Makati court. Subsequently, Perez filed subsequently, Luna contracted another
this motion for intervention claiming that she marriage. When he died, Lavadia, the
has a legal interest in the proceedings second wife, presented the decree of divorce
because they had been living together as together with the approved separation of
husband and wife for 17 years and in fact properties. But this was not approved by our
they already have a child. courts. This was merely approved by the
divorce court.
The SC however said that she does not have
a legal standing to intervene in the The SC said that that agreement respecting
proceedings because she had never been the the separation of property in the first
wife of Tristan despite the fact that they had marriage was void in the absence of any
been living together for almost 17 years but court approval. Because there can be no
that does not negate the fact that she has separation of property during the marriage
never been the wife of Tristan. Thus, she except if there is judicial approval. So
does not have the standing. according to the court, there is no valid
separation of properties. Thus, the
Recio v. Recio (October 2, 2001) properties that were acquired by Atty. Luna
all belongs to the subsisting conjugal
You remember Roderick whose defense was
partnership pursuan to Art. 148 of your FC.
that he is capacitated to contract marriage
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To God be the Glory!
PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

Noveras v. Noveras (August 20, 2014) the lower court with respect to their property
regime was erroneous. Because of the
They were Filipinos at the time of the
failure of the wife to prove the validity of the
solemnization of the marriage. In fact, the
divorce decree as well as the renunciation of
marriage was celebrated in Quezon City.
their citizenship, then the presumption is
Subsequently, they decided to go the US and
that they are still legally married and thus it’s
obtained American citizenship. Trouble was
not dissolution but only judicial separation of
the business of the husband floundered, so
property because it had already been proven
they returned to the Philippines because
that they were separated for more than one
prior to their departure for the US, they
year and that reconciliation is highly
already acquired properties in Quezon
improbable because the husband is already
Province and one in Sampaloc, Manila. So he
been living in with another woman.
said that “I will be going back to the
Philippines to administer the properties”. Orion Savings Bank v. Suzuki
Later, the wife learned that the husband had (November 2, 2014)
already been living in with another woman in
This involves the sale of a condominium unit
Quezon so she filed this divorce, and was
owned by a Korean national. Then he sold
granted by the court. All properties in the US
the property to Mr. Suzuki, a Japanese
were awarded to the wife including the
national. Included therein would be the
custody of their 2 minor children. So she
parking slot. So there’s a separate title to the
came to the Philippines and filed this judicial
parking slot. After the payment of the
separation of property. The lower court
purchase price, Mr. Kang promised to deliver
instead said that because they have already
the title because the titles over the
been divorced, then it should not be judicial
properties were in the possession of Mr.
separation of property but rather dissolution
Perez, the loans officer of Orions Savings
of their property because the marriage had
Bank.
already been terminated. An in the absence
of proof as to the property regime, according Despite demands made by Mr. Suzuki, there
to the court, then by virtue of the doctrine of was no delivery of the titles. Later, Suzuki
processual presumption, theirs is a property discovered that Kang had already left the
regime of absolute community of property. country so he went to Mr. Perez and was
So this went up to the SC. informed that but prior to that, he made a
verification with respect to the title and there
SC held that there was error on the part of
was no encumbrance in the title. In fact, the
the lower court to immediately recognize the
prior encumbrance has already been
decree of divorce because we do not take
cancelled. Meaning, the title is already clean.
judicial notice of foreign judgments in the
absence of non-compliance with what is When he went to Mr. Perez, Mr. Perez
provided for under the Rules of Court. claimed that there was still an obligation that
is supposed to be paid by Mr. Kang. But I
UNLESS –
said, this was not stated in the title. And
There is this exception wherein that requirement may be there was this dacion in payment agreed
relaxed and that is the ruling of the Court in the case of: upon by the parties. But I will not discuss
what is dacion in payment because that is
Bayot vs. Court of Appeals
covered by Obligations and Contracts. I will
Whereby if the petitioner had already just continue on the issue on the titles.
presented that divorce decree already
So he refused. So Suzuki did was to file
authenticated by the very foreign court
before the court a petition or a complaint for
which issued the divorce decree, then
specific performance. Now one of the
there is no more need to comply with the
defenses raised by Mr. Perez was that the
Rules of Court because it had already been
sale made by Mr. Kang to Mr. Suzuki is void
properly authenticated and sealed by the
because there is no consent coming from the
court issuing the divorce decree.
wife. Because it is required under Korean
Noveras vs. Noveras Law that in event of any alienation,
disposition, or sale, the same must be with
You cannot apply the doctrine of processual the consent of the spouse.
presumption precisely because this would
refer to the termination of marriage. So the What he did was to obtain a certification
processual presumption that was applied by from the Korean Embassy which was issued.
But the court despite that said that the sale
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To God be the Glory!
PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

is valid. It is valid despite the absence of the marriage has been terminated by that grant
consent. Why? The certification was without of divorce. But the SC said that there is no
the seal. It was not properly authenticated proof as to the law of Mr. Wilsem. So we
by the seal of the office of the Korean apply the doctrine of processual presumption
Embassy. that he is still under obligation to provide
support to the child especially because the
Of course, according to the court, we will
child is a legitimate child. He merely asserted
apply the presumed identity approach
that under his law, there is already
another name for processual
termination of the marriage by reason of
presumption, that our law is the same with
divorce then the father is no longer under
their law.
obligation to provide for support. The court
While it may be true that the title to the said that in the absence of proof as to your
properties say “Kang, married to…”, that is law on the matter, then we will apply the
merely descriptive of the status of Mr. Kang. doctrine of processual presumption.
In the absence of any proof that the money
Let’s now go to Article 16 exceptions.
came from the conjugal funds which if you
are going to really analyze, is contrary to the
provisions of the Family Code. Isn’t it that a Article 16. xxx However, intestate and testamentary
title is acquired during the marriage is successions, both with respect to the order of succession and
presumed to be… [Hindi natapos ni Ma’am G to the amount of successional rights and to the intrinsic
ang sentence but I think she was referring to validity of testamentary provisions, shall be regulated by the
Art. 93 of the FC]. national law of the person whose succession is under
consideration, whatever may be the nature of the property
Another issue here that was raised before and regardless of the country wherein said property may be
the SC is what governs the alienation of the found.
property. That’s Article 16 par. 1 in
consonance with the lex rei sitae. Here what will govern will be the national law of the person
whose succession is under consideration not the law of the
Article 16. Real property as well as personal property is place where the property is situated.
subject to the law of the country where it is situated. xxx
Do you remember the case of AZNAR vs.
CHRISTENSEN GARCIA (G.R.No.L-16749; January 31,
Especially on real or immovable property, that really is
1963)? This is an application of the Renvoi Doctrine.
governed by the law of the place or the country where the
property is situated by reason of the very nature of the While as a general rule, it is the law of the country of the
property. It’s immobility. So it shall follow the law of the deceased that would govern respecting the distribution of his
country where it is located or situated. estate, only with respect to testate or intestate succession.
Further, the SC said that even if the parties to the contract If we talk of intestate, there are only two issues:
under his law is capacitated but under the law of the country
1) Successional rights;
where the property is situated he is not, he is still not
capacitated. 2) Order of succession.
Like 17 is already capacitated in his country. But under our So you go back to laws on succession. Who are the heirs.
laws, 17 year old is still considered a minor. Thus, if he buys a Compulsory, primary, secondary, concurring, voluntary, legal
property in the Philippines, like that condominium unit and he or intestate and compulsory heirs.
is 17, he is still incapacitated to acquire the property because
the capacity to acquire the said property would not be based in In testate, there are three (3) issues. Aside from the two, we
his national law but by the law of the country where the have the:
property is located. So that is the express provision according 3) Intrinsic validity of the testamentary provisions.
to the law under Article 16. It’s not the capacity under the
national law of the party acquiring but the law of the place All these will be governed not by the law of the country where
where the property is situated. the property is situated but by the national law of the person
whose succession is under consideration regardless of its
But of course, the case of: nature.
DEL SOCORRO VS. WILSEM Of course we have the Renvoi Doctrine.
(G.R. No. 193707; December 10, 2014)
Because according to Mr. Wilsem, by virtue Article 17. The forms and solemnities of contracts, wills, and
of the divorce decree he is no longer under other public instruments shall be governed by the laws of the
obligation to give support to the child. The
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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

country in which they are executed. some motives or interest or ill-will that partake the nature of
fraud.
When the acts referred to are executed before the diplomatic
or consular officials of the Republic of the Philippines in a So we have so many cases involving Article 19 and I remember
foreign country, the solemnities established by Philippine laws that this was asked in the Bar last year. The gasoline station
shall be observed in their execution. that was closed through fencing. So that is Article 19 actually.
The lessor informed the lessee that he is terminating the lease
xxx but he did not vacate. Instead, what the lessor did because of
the refusal to vacate the property, he fenced the entire
Then we talk of forms and solemnities of contracts. That property. That is an application of Article 19. He has the right
will be governed by the law of the country where it is because he is the lessor but the way that he exercised the
executed. right is already considered to be a violation of Article 19. There
was bad faith because he would have gone to court and file
The exception is if you execute it before the consular or
the appropriate action. So eject the lessee who refused to
diplomatic official of the Republic of the Philippines
vacate the property despite proper notice.
then the Philippine law will govern in the execution.
FAR EAST BANK (FEBTC), NOW BANK
When we talk for formalities, forms and solemnities, that
OF THE PHIL. ISLANDS, vs. PACILAN,
would refer merely to the technical manner in the preparation
JR. | 465 SCRA 372
of the document. That would not delve into the stipulations of
the parties in the contract or what is provided for in the will, The closure of account of Mr. Pacilan
the intrinsic validity. That merely refers to the external because he issued four (4) checks but the
appearance. last check was insufficiently funded. FEB
closed the account of Mr. Pacilan. Then he
Like if we talk of a holographic will, here in the Philippines for
claimed that he immediately deposited the
it to be valid, it must be entirely handwritten, all pages are
amount due on that last check. Despite that,
signed and dated by the testator. But suppose in another
the bank closed his account. He wrote the
country that is not required, you can use the computer, then it
bank. No answer. He filed his case against
is subject to proof under the doctrine of processual
the bank for violation of Article 19.
presumption because you execute it in another country. The
exception is found in the second paragraph. The SC said that I order for the principle of
abuse of rights to arise, there must be the
Article 17. xxx Prohibitive laws concerning persons, their acts presence of the THREE (3) ELEMENTS.
or property, and those which have for their object public order, 1. the existence of a legal right or
public policy and good customs shall not be rendered duty;
ineffective by laws or judgments promulgated, or by
determinations or conventions agreed upon in a foreign 2. which is exercised in bad faith; and
country.
3. for the sole intent of prejudicing or
injuring another.
The third paragraph of Article 17 is more relevant to Article 15
because this refers to prohibitive acts concerning persons, etc. According to the SC, the last two (2)
shall not be rendered ineffective by foreign conventions, elements are wanting. It was found out
judgments in the foreign country. during the trial that it was actually Pacilan
who abused his right as depositor of the
bank. He had issued not only once but
hundreds of times checks that were
CHAPTER 2 unfunded. It did not only run for a year but
Human Relations 2 to 3 years.
Moreover, according to the court, he would
The Principle of Abuse of Rights. also sign checks with signatures different
from the record on file with the bank. All
Article 19. Every person must, in the exercise of his rights that, according to the court, it is merely
and in the performance of his duties, act with justice, give proper on the part of the bank to close the
everyone his due, and observe honesty and good faith. account of Mr. Pacilan by reason of improper
handling.
So when is there “BAD FAITH” and when is it a basis for the UYPITCHING et al vs. QUIAMCO
award of damages by reason of the violation of Article 19? (December 6, 2006)
It refers to dishonest purpose or some moral obliquity and Mr. Uypitching is a lawyer who was the
conscious doing of a wrong; a breach of known duty due to manager of the Yamaha ba yun and
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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

Davalan, Gabutero and another person CALATAGAN GOLF CLUB, INC. vs.
bought this motorcycle from the CLEMENTE, JR. 585 SCRA 300 (April 16,
establishment of Mr. Uypitching through 2009)
installment.
There was this failure of Mr. Clemente to pay
Subsequently this was delivered also by the the dues. So he became a delinquent
three to Mr. Quiamco as settlement for that member. The club knew that the post office
civil liability. But there was no delivery of the box address of Mr. Clemente was already
OR/CR. When he asked for the delivery of closed because the first two demand letters
the OR/CR, the same was never delivered. were declared unopened to the club but still
What he did is to trace the motorcycle in his persisted on the demand for payment
business establishment where it can easily sending the same the third to the same PO
be accessed by the public. The public can box address of Mr. Clemente. Of course
see the motorcycle on display. It took Mr. there was no payment. So what they did id
Uypitching all of nine (9) years before he to auction the share of Mr. Clemente.
went to the business establishment of Mr.
The courts said that there was utter bad
Quiamco. And he was accompanied by
faith on the part of the club because it could
members of the Philippine Constabulary
have easily accessed the records of Mr.
without any search warrant when he
Clemente being a member. It could have
descended to the establishment of Mr.
called him up or the exact address of Mr.
Quaimco who at that time was not in his
Clemente (could have been checked).
business establishment. So there was this
case that was filed against Mr. Quiamco for ARDIENTE v. JAVIER, et.al.
the violation of Anti-Fencing Law that was GR# 161921, July 17, 2013 701 S 389
dismissed by the court. In turn, it is now Mr.
Quiamco who filed this petition against Mr. Involve CDO Water District which
Uypitching. disconnected the water connection of Mr.
Pastorfide at the instance of Mr. Ardiente
According to the court, he did not resort to who was the former owner of the house
the remedies available to the unpaid seller. subsequently bought by Mr. Pastorfide.
Moreover, there was no search warrant. So
there was this violation which was In the MOA, they agreed that Mr. Pastorfide
committed by Mr. Uypitching. And because would work out and try to transfer the water
Mr. Uypitching is a lawyer, then three times, connection from Ardiente to Pastorfide.
triple the cost. So be careful. Instead, he did not and incurred delinquency
with the CDO Water District. The CDO Water
CEBU COUNTRY CLUB, INC. (CCCI), District informed Mr. Ardiente of the
DAPAT, et. al. vs. ELIZAGAQUE delinquencies of the account. So what he
January 18, 2008 told the employee of the CDO Water District
is to disconnect the water connection
Mr. Elizagaque who applied for membership
without first informing Mr. Pastorfide.
in Cebu Country Club. He was never
informed of the reason why his application He has the right to complain about the
for membership was denied. He in fact wrote noncompliance of what is provided for in the
the club three times but there was just MOA but he does not have to right to simply
merely silence coming from the club. When cut off the connection without first informing
he filed this case, he was informed that he Mr. Pastorfide.
cannot qualify because under the new rules,
it is suppose to be a unanimous vote from Different is the case of:
the Board of Directors which was not placed SESBRENO v. CA, VISAYAN ELECTRIC
in that application form because the CO. (VECO), et.al. | 720 S 57
application form as the old one. It was not
the revised and that was twenty (20) years Here, Sesbreno is one of the clients of VECO.
ago on the ground that they were merely In their agreement or in their contract that
saving on the costs. How could a very they had entered into, Mr. Sesbreno gave his
expensive club where the share will cost authority to the VOC (Violation of Contract)
1.35M per share at the time that it was filed inspectors of VECO to inspect the premises
save on cost on the printing on the at all reasonable times without being guilty
application form?  of trespassing.

The same hold true in the case of:


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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

The VOC inspectors conducted the inspected Article 21. Any person who wilfully causes loss or injury to
within the area including that of Mr. another in manner that is contrary to morals, good customs or
Sesbreno’s house. It is found out that the public policy shall compensate the latter for the damage.
electric meter was not working. In fact, it
was turned upside down and the rotating For it to be a ground for damages, the act must be willfully
disc was not working. The VOC Inspectors done, there must be that willful characterization of the act in
by the way were accompanied by Mr. order for the aggrieved party to be entitled to damages.
Balicha, a member of the Philippine
Constabulary. When the VOC inspectors Article 20 refers to acts contrary to law. On the other hand,
found out that the meter was not working, Article 21 refers to acts contrary to morals, good customs
they took pictures of it and then or public policy. So that’s the difference of Article 20 from
subsequently, there were three of course, 21.
they were allowed to enter the premise by
You know very well that a mere breach of promise to marry is
Mr. Sesbreno’s housekeeper, Chuchie Garcia
not an actionable wrong but to go through all the preparations,
and one Peter Sebreno.
one may be entitled to damages. So if you do not appear on
Because the electric meter was not working, the date of the wedding, you’ll be liable for moral damages
they asked permission that they be allowed because of the sleepless nights etc. If you have spent for your
to enter the house. Because the meter was wedding dress, ACTUAL damages. If you cannot prove it,
found on the garage outside of the house to TEMPERATE damages. Because a right has been violate,
determine the actual electrical load and they NOMINAL damages. But this one has to be expressly agreed
will only be able to arrive at the electrical upon by the parties. What is it? LIQUIDATED DAMAGES.
load for purposes of determining the bill if
BUENAVENTURA vs. CA & ISABEL
they would now see the number of
LUCIA SINGH BUENAVENTURA | March
appliances as well as the lights and fixtures
31, 2005
inside the house. They were allowed by
Chuchie Garcia to enter and they took notice Where the marriage was declared void by
of those and listed them down and had it the court by reason of psychological
signed by Garcia. incapacity. The wife in its partial motion for
reconsideration prayed that she should be
When Mr. Sesbreno learned of what had
awarded moral and exemplary damages
happened, he now sued VOC inspectors and
because at the time of their marriage, it was
VECO because it was done in bad faith
Noel who would leave the conjugal dwelling
considering that the authority merely says
because Isabel would woe Noel to return to
“where the meter is found” but without a
the house and start all over again. According
search warrant, according to him, he entered
to her, she suffered humiliation, sleepless
the house.
nights.
According to the court, there is no basis of
The SC said that there is no basis for the
the prayer for damages because the act of
award of moral damages. Because a
entering the house is merely a continuing act
psychologically incapacitated person has this
from where they found the meter not
innate inability to comply with the essential
working. So how can you determine the
marital obligations of marriage. And precisely
actual electrical load when the meter is not
because he is unaware that he has this
working? So they have to go inside and try
obligations to comply with, then there is no
to determine the number if appliances, the
basis for the award of moral damages. When
number of fixtures of the house.
there is no basis for the award of moral
Moreover, there is no need for search damages, then there is also no basis for the
warrant because a search warrant is only award of exemplary damages. It has no leg
necessary when it is the State or agent of to stand on. You cannot cite Article 21
the State that is conducting the warrant. for damages if it arises out of a
Here, it is a private establishment. So they is contractual relation. If there is a pre-
no need for them to have a search warrant. existing contract between the parties, you
They have fully complied with what is cannot cite Article 21 as basis for the award
required. of damages.
Article 22 on unjust enrichment.
Article 20. Every person who, contrary to law, willfully or
negligently causes damage to another, shall indemnify the
Article 22. Every person who through an act of performance
latter for the same.
by another, or any other means, acquires or comes into
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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

possession of something at the expense of the latter without recover the amount delivered but not
just or legal ground, shall return the same to him. damages because it is a void contract.

GONZALO v. TARNATE, JR. Article 26. Every person shall respect the dignity, personality,
713 S 224 | January 15, 2014 privacy and peace of mind of his neighbors and other persons.
The following and similar acts, though they may not constitute
Both parties are aware that the a criminal offense, shall produce a cause of action for
subcontracting contract they have entered damages, prevention and other relief:
into is void due to the absence of the
consent of the Secretary of DPWH. (1) Prying into the privacy of another's residence;

Before one can subcontract a work, there (2) Meddling with or disturbing the private life or
must be first the consent coming from the family relations of another;
Secretary of the DPWH. But what Mr.
(3) Intriguing to cause another to be alienated from
Gonzalo did was that the winning bidder was his friends;
immediately to subcontract it to Mr. Tarnate.
He executed this authority granting Mr. (4) Vexing or humiliating another on account of his
Tarnate the right to claim the 10 %retention religious beliefs, lowly station in life, place of birth,
fee as payment for the services that he physical defect, or other personal condition.
rendered as well as the equipment that were
delivered by reason of that cementing of the These are acts that may not constitute criminal acts however
road. But unknowingly, Mr. Gonzalo went to they may give rise to damages and other relief. There are only
the office of the DPWH and cancelled that four (4).
authority that was earlier granted to Mr.
Tarnate and claim now the retention fee. I will just mention No. 3 because this was the reason cited by
When Tarnate demanded for payment for the court in the case of CASTRO vs. PEOPLE 559 SCRA 676
the services rendered, he learned of the (July 23, 2008) whereby he was a found guilty of the crime
cancellation. So he sued Gonzalo and of grave oral defamation.
Gonzalo said that Tarnate cannot be The SC said that at most he will be guilty only of violating
afforded any affirmative relief from the court Article 26 number 3 intriguing to cause another to be alienated
because they are in pari delicto. If both from his friends by saying “Okay, you too, take care and be
parties are in pari delicto, the courts will careful talking to [Tan], that’s dangerous.” At most he will be
leave them as they are. No affirmative relief liable of damages under Article 26.
can be sought from the court.
But according to the law, there is an Article 27. Any person suffering material or moral loss
exception based on public policy. It cannot because a public servant or employee refuses or neglects,
be denied that Tarnate have rendered his without just cause, to perform his official duty may file an
service and he had delivered his equipment action for damages and other relief against the latter, without
so he had performed what is required from prejudice to any disciplinary administrative action that may be
him by reason of that void subcontracting taken.
that was entered into by the parties. So he
was allowed to recover BUT NOT DAMAGES I mentioned this because of this decision rendered by the
because it is a void contract. court. This refers to NONFEASANCE NOT MAL/MISFEASANCE
The court cited the ruling it made in the case of: or the failure of a public official or employee to comply with his
official duty without any just cause or reason so he can be held
HULST V. PR BUILDERS, INC (532 S 74) liable for damages. This would refer to nonfeasance.
These were foreigners who bought real Noncompliance of an official function.
property but it was merely a contract to sell CAMPUGAN VS. TOLENTINO
but there was no delivery of the property so A.C. No. 8261 | March 11, 2015
the Hulst spouses filed this action for
annulment. The Register of Deeds was accused of
violating Article 27 because he had cancelled
The SC said that actually it was a void the entry in the annotation on the adverse
contract because the Hulst spouses are not claim and notice of lis pendens on the titling
allowed by virtue of our constitution to own claiming that there was no basis for the
immovable property but because the cancellation according to the Campugan
contract entered into by the parties is merely because there was no order coming from the
a contract to sell, there was no court.
consummation yet. They were allowed to
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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

However, the basis of the cancellation was seven months, it is not deemed born if it dies within twenty-
actually the compromise agreement that was four hours after its complete delivery from the maternal
earlier entered into by the parties to settle womb.
this case. So when the ROD received the
compromise agreement, of course, he had These are the requisites in order that whatever has been
that annotation cancelled. promised to the conceived child who at the time of the promise
The act of cancellation of entries in the title is yet to have personality. But because the law says that it is
is merely ministerial in nature on the part of valid as long as it is favorable to the unborn child, then the
the ROD. child is given provisional personality. So you can be the
subject of legal relations. You have juridical capacity but no
When is it purely ministerial? A purely capacity to act.
ministerial act or duty is one that an officer
or tribunal performs in a given state of facts, Articles 38 and 39 are restrictions to one’s capacity to act.
in a prescribed manner, in obedience to the
mandate of a legal authority, without regard Article 38. Minority, insanity or imbecility, the state of being a
to or the exercise of his own judgment upon deaf-mute, prodigality and civil interdiction are mere
the propriety or impropriety of the act done. restrictions on capacity to act, and do not exempt the
incapacitated person from certain obligations, as when the
[Actions arising from criminal offenses will be covered by your
latter arise from his acts or from property relations, such as
Remedial Law up to Prejudicial Question. – Atty. G.]
easements. (32a)

BOOK I Article 39. The following circumstances, among others,


PERSONS modify or limit capacity to act: age, insanity, imbecility, the
state of being a deaf-mute, penalty, prodigality, family
TITLE I relations, alienage, absence, insolvency and trusteeship. The
CIVIL PERSONALITY consequences of these circumstances are governed in this
Code, other codes, the Rules of Court, and in special laws.
What is juridical capacity, and what is capacity to act. Capacity to act is not limited on account of religious belief or
political opinion.
Article 37. Juridical capacity, which is the fitness to be the A married woman, twenty-one years of age or over, is
subject of legal relations, is inherent in every natural person qualified for all acts of civil life, except in cases specified by
and is lost only through death. Capacity to act, which is the law.
power to do acts with legal effect, is acquired and may be lost.
These are not prohibitions, merely restrictions.
One way of losing one’s capacity to act is civil interdiction
where a person is considered to be civilly dead. Now, Article 43.

In relation to this would be Article 40.


Article 43. If there is a doubt, as between two or more
persons who are called to succeed each other, as to which of
Article 40. Birth determines personality; but the conceived them died first, whoever alleges the death of one prior to the
child shall be considered born for all purposes that are other, shall prove the same; in the absence of proof, it is
favorable to it, provided it be born later with the conditions presumed that they died at the same time and there shall be
specified in the following article. no transmission of rights from one to the other.

So the unborn child or the conceived child has a juridical This provision applies only to issues involving succession.
capacity. That is why they can be subject of donations, There were already two bar questions involving the application
acknowledgement on the part of the putative father, the of Article 43. But the one that was asked in the year 2000 Bar,
promise of the father to give support to the conceived child the examiner said that Article 43 applies to obligations because
because these are all favorable to the unborn child. this involves the payment of insurance proceeds. What will be
Donations , however, may be received by the parent of the applied there is for you to memorize the disputable
guardian of the unborn child. But in order for it to become presumptions of survivorship under the Rules of Court.
valid, then you go to Article 41. But in the 1998 Bar, the examiner applied Article 43. This
refers to the grandparent and the grandchildren where the
Article 41. For civil purposes, the foetus is considered born if father predeceased the children. So they went on a tour. The
it is alive at the time it is completely delivered from the boat sank. The mother of the children claimed the share of the
mother's womb. children by right of representation on the part of the children.
So the children are entitled to the estate of their father.
However, if the foetus had an intra-uterine life of less than

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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

The examiner said no because there is no proof as to which of


them died first. So it is presumed that they died at the same
time and there shall be no transmission of rights from one to
the other. This is different if we talk of issues other than
succession so memorize that provision on disputable
presumptions on survivorship.

13
To God be the Glory!
PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

Aug. 10, 2016 (LSy, MJuezan, CGonzales, AJambangan) Then the second will be consent freely given in the presence of
the solemnizing officer. So these are the two essential
THE FAMILY CODE requisites that must be complied with.
OF THE PHILIPPINES
Art. 3. The FORMAL REQUISITES of marriage are:
TITLE I (1) Authority of the solemnizing officer;
MARRIAGE
(2) A valid marriage license except in the cases provided for in
Chapter 1. Requisites of Marriage Chapter 2 of this Title; and

So this is a special contract where anyone of us wants to be in (3) A marriage ceremony which takes place with the
it but once we are in it, we want out of it. So precisely there appearance of the contracting parties before the solemnizing
are so many provisions on nullity of marriage under Art. 36, as officer and their personal declaration that they take each other
one of the grounds. as husband and wife in the presence of not less than two
witnesses of legal age.
Art. 1. Marriage is a special contract of permanent union
between a man and a woman entered into in accordance with So the second requisites are the formal requisites, and there
law for the establishment of conjugal and family life. It is the are three (3) formal requisites.
foundation of the family and an inviolable social institution The authority of the solemnizing officer as enumerated under
whose nature, consequences, and incidents are governed by Art. 7 of the Family Code.
law and not subject to stipulation, except that marriage
settlements may fix the property relations during the marriage Then we have a valid marriage license except in the cases
within the limits provided by this Code. provided for in Chapter 2 of this Title, on those marriages
exempt from obtaining a marriage license.
Let us define. It is a special contract of permanent union Then we have personal appearance of the contracting parties
between a man and a woman entered into in accordance with before the solemnizing officer with their personal declaration
law for the establishment of conjugal and family life. It is the that they take each other as husband and wife in the presence
foundation of the family and an inviolable social institution of at least two witnesses of legal age. So that requirement of
whose nature, consequences, and incidents are governed by personal declaration means that there can be no marriage by
law and not subject to stipulation, except that marriage proxy. We have no marriages by proxy under our law because
settlements may fix the property relations during the marriage of that requirement.
within the limitations of the Family Code.
Republic vs. Castro
So only when the parties of the marriage can enter into with
marriage stipulations will be on marriage settlements, with Where the petitioner here filed for
respect to property relations. It will govern the property declaration of nullity of marriage on the
regime of the spouses. ground of absence of the marriage license.
The Court held that the certification coming
from the Civil Registrar where the marriage
Art. 2. No marriage shall be valid, unless these ESSENTIAL license was supposedly issued was sufficient.
REQUISITES are present: Because it says that “after due search and
(1) Legal capacity of the contracting parties who must be a inability to find, no marriage license was
male and a female; and issued by this particular office.”

(2) Consent freely given in the presence of the solemnizing Which is different in the case of:
officer. Sevilla vs. Cardenas

For one to enter into a valid marriage, there are two (2) Where the petitioner presented three
essential requisites. First is the legal capacity of the contracting certifications that there is no such marriage
parties and the emphasis that they must be a male and a license number that was issued by the Civil
female. And Art. 1 says, between a man and a woman. Registrar of San Juan. And yet the Court did
Because of that case of Silverio vs. Republic. not grant the petition for nullity, because
part of the certification included therein that
The legal capacity here does not mean only the age of the phrase which provides “by reason of our
parties, but also the absence of legal impediment at the time loaded work.” So it means that the log book
the marriage was entered into except if it would fall under Art. might be found a marriage license but
41 – marriages where there is a decree of presumptive death. because of the loaded work, the log book
that contains where the supposed marriage
license was entered into, the marriage

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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

license number, was just in the office but Is the marriage between a foreigner and a Filipino who after
because of the loaded work, it was not the celebration of the marriage did not live husband and wife
found. So that is the reason why, despite the and has no intention whatsoever to comply with the purpose
three (3) certifications that was obtained by for which a marriage was entered into, that is to establish
the petitioner husband, the court denied the conjugal and family life.
petition.
This is the case of:
Different in the case of:
Alvios vs. Republic
Morigo vs. People
Here Alvios paid $2000, she paid Freiger
Here, the parties were classmates in $2000. They got married, and allowed her to
highschool. Then the woman Lucia went to apply for American citizenship. But there was
Singapore for work and communicated with maybe no compliance with the promise, she
Lucio, the former classmate. She said that if filed now a petition for nullity of marriage on
you are to marry me, we are going to the ground that theirs is just a marriage in
Canada. I will have you follow me to jest. But the SC said that this is one kind
Canada. So they got married. But instead of marriage provided for in the United States. It
allowing Lucio to follow her to Canada, Lucio is a limited purpose marriage. So here the
received this divorce decree from the purpose is the acquisition of American
Canadian Court. And with that, armed with citizenship. But before the marriage can be
that decree divorce, Lucio now contracted considered void, there must be an
another marriage. And when Lucio got hand examination of the essential requisites. And
of what Lucio did, she returned to PH and one of the essential requisites is consent
sued Lucio for bigamy. But the SC said that freely given before the solemnizing officer.
there is no bigamy because there was no
In the case at bar, in order for consent to be
marriage at all. The mere act of appearing
validly given, it must be real. Meaning, at the
and signing the marriage contract is not the
time that the consent was given, there must
valid marriage contemplated in the law of
be vitiation whatsoever of the consent of the
bigamy. Because what is the law on bigamy
person, under Art. 45 and Art. 46.
require? Both marriages must be valid
except that on the second marriage, there is Aside from that it must be real, it must also
the subsistence of a prior valid marriage. But be intelligent and consciously given.
in the case at bar, the first marriage was Meaning, the parties must be aware of the
never celebrated. It was just merely the beneficial as well as the consequences of
parties appearing and signing the marriage entering into the marriage. So here, the
contract. So there can be no bigamy. consent of the parties to the marriage were
both real, conscious and intelligent. This is
Same ruling in the case of:
best evidenced, according to the court, of
Sally Bangayan vs. Bangayan their entering into the marriage for the sole
purpose of acquiring American citizenship
Where Sally, because she comes from a
through marriage.
conservative Chinese family, have this affair
with Bangayan who was already married at And while it may be true that they have no
the time of their affair. And to appease her intention to comply with purpose for which
parents, they signed a marriage contract the marriage was established, but
without more. But the affair ended. nonetheless, this is not found under the
Constitution, to make marriage void or to
Bangayan now files for a petition for
declare it as void. So the marriage is valid
declaration of nullity of his marriage with
according to the Court.
Sally because according to him it was a
bigamous marriage because at the time that Mallora vs. People
they married he was still validly married to
Here they contracted marriages and he was
Azucena.
sued for bigamy by the first wife. The
But the SC said that there is no need for a defense raised by Mallora was that he was a
declaration of nullity because there is a just Muslim as early as 1992 where the 1st
a marriage in jest. There was no compliance marriage was contracted in 1999. As early as
with the requirements of the law, he merely 1992, he already converted to the Muslim
appeared and signed the marriage contract faith. And under the Muslim faith, he was
and nothing more. allowed as many as 4 wives and he could

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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

not understand why the on the 1st marriage, Here what the judge did, the one who
it was indicated as a Catholic something. solemnized the marriage outside of the
Now, on the second marriage, he also did court’s jurisdiction. The Court held that it
not state that he was a Muslim. According to was a mere irregularity. It does not affect
him, he did not reveal that he was a Muslim the validity of the marriage. In this case
because of discrimination when a person however, what made the marriage void was
marries a Muslim. But the Court said that the absence of a marriage license.
religion here is not the issue. But rather if
Alcantara vs. Alcantara
you are a Muslim, you must comply with the
requirements laid down under the Muslim Remember the requirement that you obtain
Code in contracting the marriage. And since the marriage license from the civil registrar
there was no compliance, this will be where one of the parties habitually resides.
governed, based on the Sharia law, this will In this case, the SC said that there is no
be governed not by the Muslim code, but basis to declare the marriage void simply
with the Civil code, or in this case the Family because the marriage license was obtained
Code. So he cannot escape liability by the from a place other than the habitual
simple reason that he already converted into residence of the parties or the applicants.
a Muslim. Likewise, there is also that requirement for
the application of the applicants to be
Abas vs. Abas
published for 10 consecutive days. So the
The court also acquitted Abas in the crime of marriage license can only be issued after the
bigamy by the reason that there was no completion of the publication of the
marriage license. The marriage license that application of the marriage license.
was obtained belong to different persons. According to the Court, in the same case,
According to the court, in order for a person even if this is not complied with, that will not
to be held liable for the crime, both affect the validity of the marriage. Those are
marriages must be valid. Now the second considered as irregularities, subject to
marriage is void because there was no sanctions provided for by law.
marriage license. And if we are to go to the
provisions on the RPC on bigamy, that both Art. 7. Marriage may be solemnized by:
marriages must be valid. So here, the
second marriage was void for the absence of (1) Any incumbent member of the judiciary within the court's
a valid marriage license. So there is no basis jurisdiction;
to hold the husband liable for bigamy. (2) Any priest, rabbi, imam, or minister of any church or
religious sect duly authorized by his church or religious sect
Art. 4. The absence of any of the essential or formal and registered with the civil registrar general, acting within the
requisites shall render the marriage void ab initio, except as limits of the written authority granted by his church or religious
stated in Article 35. sect and provided that at least one of the contracting parties
belongs to the solemnizing officer's church or religious sect;
A defect in any of the essential requisites shall not affect the
validity of the marriage but the party or parties responsible for (3) Any ship captain or airplane chief only in the case
the irregularity shall be civilly, criminally and administratively mentioned in Article 31;
liable.
(4) Any military commander of a unit to which a chaplain is
assigned, in the absence of the latter, during a military
The absence of essential or formal requisites renders the operation, likewise only in the cases mentioned in Article 32;
marriage void. Defect in the essential renders the marriage
voidable. But irregularity does not affect the validity of the (5) Any consul-general, consul or vice-consul in the case
marriage but merely makes the person or persons responsible provided in Article 10.
for the irregularity shall be civilly, criminally and
administratively liable. Let’s go to who are authorized to solemnize marriages. Art. 7.
An example of irregularity that do not affect the validity of the So, incumbent members of the judiciary within the court’s
marriage is the case of: jurisdiction.

Aranas vs. Obsiano Then we have the priest, rabbi, imam, or minister authorized
by his church or religious sect and registered with the civil
Where the court held that if it was the one register general, acting within the limits of the written
who was authorized to solemnize marriages authority. And likewise, must be licensed. There is a
under Art. 7(1), (1) Any incumbent member corresponding license that must be issued. Because if you are
of the judiciary within the court's jurisdiction. just curious, you can ask Maam Gina to ask for the license
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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

number of Fr. Gus to solemnize marriages. There you can see expiration of the said period if the contracting parties have not
that there is an expiration. Otherwise, without that registration made use of it. The expiry date shall be stamped in bold
with the civil registrar general and the license number, that characters on the face of every license issued.
would be void. So you are not authorized to solemnize
marriages. But if you remember also in Art. 35(2): The license is valid if used anywhere in the Philippines.
Question: can you use it in a foreign country where the
Art. 35. The following marriages shall be void from the marriage would be solemnized by the consul of the Republic of
beginning: xxx the PH? Pwede. Because that would be the application of the
(2) Those solemnized by any person not legally authorized to principle of extraterritoriality. The office becomes part of PH
perform marriages unless such marriages were contracted with territory.
either or both parties believing in good faith that the The validity of the license is 120 days.
solemnizing officer had the legal authority to do so; xxx
Art. 21. When either or both of the contracting parties are
Where the parties believing in good faith that the solemnizing citizens of a foreign country, it shall be necessary for them
officer had the legal authority to do so, then the marriage before a marriage license can be obtained, to submit a
becomes valid. So that would only apply to solemnizing officer certificate of legal capacity to contract marriage, issued by
(2) under Art. 7. For if you would allow that to include all their respective diplomatic or consular officials.
others who would solemnize the marriage, you would be
opening the floodgates of fraud. You would simply enter into Stateless persons or refugees from other countries shall, in lieu
marriage and then later the marriage does not turn out to be of the certificate of legal capacity herein required, submit an
what we expect it to be, we just simply file a petition for affidavit stating the circumstances showing such capacity to
declaration of nullity because the solemnizing officer had no contract marriage.
authority to do so. So precisely it is only limited to #2 of Art. 7.
If the parties to a marriage are foreigners and they desire to
(#3 and 4) The ship captain or the airplane chief or the
contract marriage under our law, to prove that he is
commander of a unit in the absence of a chaplain, are only
capacitated to contract marriage, then he/she must obtain a
authorized to solemnize marriage in articulo mortis. So there
certification of legal capacity to contract marriage from his
must be that presence of impending death of one or both
diplomatic or consular official. Where according to the Court in
parties to the marriage for the ship captain or the airplane
the case of:
chief or the commander of a unit in the absence of a chaplain
to solemnize the marriage. Recio vs. Recio
(#5) The consul general or the vice-consul but only in their Sufficient proof that he is capacitated to
places of assignment. Not here in the Philippines, that would enter into marriage under our law, not the
be void because they have no authority whatsoever to presentation of a decree of divorce which is
solemnize marriages. In fact, the obligation to issue marriage done in the case of Recio because the Court
license is also rest upon the consul, the vice-consul or the said, in relation to Art. 15 of the NCC, we do
consul general who would solemnize the marriage. not take judicial notice of foreign judgment
or foreign law, so these must be proved in
Mayors, were only allowed to solemnize marriages when the
the courts. It would be easier for the
LGC took effect in January 1, 1992. So from the time that the
foreigner to go to his consular office and
Family Code took on effect Aug 3, 1988, the Mayors were
obtain this certificate of legal capacity to
stripped of authority to solemnize marriages. So between that
enter to marriage.
period, the Mayor that solemnize a marriage, such marriage
will be void and that cannot be cured by your belief in good
faith that the mayor has authority to solemnize marriage. Art. 23. It shall be the duty of the person solemnizing the
Because they are not authorized really by the Family Code. If marriage to furnish either of the contracting parties the original
you look at Art. 7, nothing is mentioned about Mayors. So, in of the marriage certificate referred to in Article 6 and to send
effect, all those marriages solemnized by a Mayor before the duplicate and triplicate copies of the certificate not later
January 1, 1992, are void. They are given now authority to than fifteen days after the marriage, to the local civil registrar
solemnize marriages only when the LGC took effect. of the place where the marriage was solemnized. Proper
receipts shall be issued by the local civil registrar to the
If the parties to the marriage are between 18 and 21, there solemnizing officer transmitting copies of the marriage
must be parental consent. Without the parental consent, the certificate. The solemnizing officer shall retain in his file the
marriage is voidable under Art. 45 (1). quadruplicate copy of the marriage certificate, the copy of the
marriage certificate, the original of the marriage license and, in
Art. 20. The license shall be valid in any part of the Philippines proper cases, the affidavit of the contracting party regarding
for a period of one hundred twenty days from the date of the solemnization of the marriage in place other than those
issue, and shall be deemed automatically cancelled at the mentioned in Article 8.

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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

The marriage contract is the best proof or evidence of the Art. 37. Marriages between the following are incestuous and
marriage. void from the beginning, whether relationship between the
parties be legitimate or illegitimate:
But its absence does not mean that there was no valid
marriage. This can be proven by other evidence, like the (1) Between ascendants and descendants of any degree; and
testimony of witnesses to the marriage, or the titles of the
property where it provides, X married to Y. That would be (2) Between brothers and sisters, whether of the full or half
sufficient proof. Or in a will. Those are other proofs of the blood. (81a)
marriage. Art. 38. The following marriages shall be void from the
Because if you remember under earlier provisions, the parties beginning for reasons of public policy:
to the marriage are not required to forward a copy or copies of (1) Between collateral blood relatives whether legitimate or
a marriage contract to the local civil registrar. It is actually the illegitimate, up to the fourth civil degree;
obligation of the solemnizing officer. Because if you are the
ones being married, you will not be thinking of the marriage (2) Between step-parents and step-children;
contract. You are thinking about your guests and the food that (3) Between parents-in-law and children-in-law;
is being prepared is sufficient. 
(4) Between the adopting parent and the adopted child;
Art. 26. All marriages solemnized outside the Philippines, in (5) Between the surviving spouse of the adopting parent and
accordance with the laws in force in the country where they the adopted child;
were solemnized, and valid there as such, shall also be valid in
this country, except those prohibited under Articles 35 (1), (4), (6) Between the surviving spouse of the adopted child and the
(5) and (6), 3637 and 38. (17a) adopter;

xxx (7) Between an adopted child and a legitimate child of the


adopter;
Let’s now go to more important provision. Art. 26, which has (8) Between adopted children of the same adopter; and
been already asked in the bar many times. All marriages
(9) Between parties where one, with the intention to marry the
solemnized outside the Philippines, in accordance with the laws
other, killed that other person's spouse, or his or her own
in force in the country where they were solemnized is valid in
spouse.
PH subject to the following exceptions.
When these marriages shall be void in the PH if the parties to So these are the marriages that will never be recognized by
the marriage are Filipinos. Articles 35 (1) - When the parties our law even if it is valid from where it was celebrated.
are below 18, even with the consent of their parents; Art 35
(4), bigamous marriages; Art 35(5) mistake as to the identity Article 26. Where a marriage between a Filipino citizen and a
of one of the contracting parties; and Art 35 (6) those foreigner is validly celebrated and a divorce is thereafter validly
subsequent marriages void under Art. 53 due to obtained abroad by the alien spouse capacitating him or her to
noncompliance of Art 52 that the marriage be declared void or remarry, the Filipino spouse shall have capacity to remarry
annulled by the court. Then we have Art 36 on psychological under Philippine law.
capacity, Art 37 on incestuous marriages and Art 38 on
marriages that are void by reason of public policy.
The second paragraph is a marriage between a foreigner
and a Filipino. And subsequently after celebration, the
Art. 35. The following marriages shall be void from the
foreigner spouse obtains a decree of divorce capacitating
beginning:
him/her to marry, the Filipino spouse shall likewise be
(1) Those contracted by any party below eighteen years of capacitated to contract marriage under our law.
age even with the consent of parents or guardians; xxx
But there are several issues, in fact there are several exam
(4) Those bigamous or polygamous marriages not failing under questions on whether or not this would apply to Filipinos at the
Article 41; time of the celebration of the marriage but one of the parties
to the marriage renounced PH citizenship and obtains another
(5) Those contracted through mistake of one contracting party citizenship and then divorced the Filipino spouse. So we have
as to the identity of the other; and here conflicting answers of examiners.
(6) Those subsequent marriages that are void under Article 53. Now it was laid to rest (YEHEY!) in the case of:
Art. 36. A marriage contracted by any party who, at the time Republic vs. Orbecido III
of the celebration, was psychologically incapacitated to comply
with the essential marital obligations of marriage, shall likewise Because there was this wife, who went to US
be void even if such incapacity becomes manifest only after its and renounced PH citizenship and then
solemnization. (As amended by Executive Order 227) divorced the husband and contracted a

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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

subsequent marriage. The husband who Fujiki vs. Mahinay


received a copy of the divorce decree, went
Fujiki and Marinay were married in PH. Fujiki
to court and have this recognized because
was a Japanese citizen but the relatives
he wanted to contract a subsequent
Fujiki, his parents were against the marriage.
marriage. Of course the Republic opposed
So he left Marinay. Marinay subsequently
the petition, because according to the
married another Japanese, Maekara. So they
Republic, the second paragraph only applies
got married and Maekara brought with him
to persons who marry where one of the
Marinay. But Marinay was the recipient of
parties is a foreigner at the time of the
love punches, she was physically abused by
celebration of the marriage. But in this case
Maekara. So what she did is to try to locate
both are Filipinos.
Fujiki. And it was now Fujiki who helped her
But according to the SC, it would be very to obtain a decree of nullity of marriage with
unfair on the part of the Filipino spouse to Maekara on the ground that the marriage
not be capacitated to contract marriage was bigamous which is a valid ground under
under our law even if the other spouse have the Japanese law. When judgment was
already divorced him. There would be an rendered, Fujiki came to the PH and have
absurd situation whereby there is here a that decree of nullity be recognized by the
Filipino spouse who is still married to court.
another with a spouse who already divorced
The lower court of course said no, you are
him. According to the Court, Justice is
not the proper party because in the
absurd.
declaration of nullity of marriage, only the
The reckoning point would be the husband and the wife.
citizenship of the parties at the time
So he went to the SC, the SC said that the
the divorce decree was obtained. Not
lower court was in error for it was not
the citizenship of the parties at the time of
actually a declaration of nullity but it was for
celebration.
the recognition of the decree of nullity which
Corpuz vs. Sto. Tomas is also a valid ground for nullifying a
marriage under our law. As to the absence
Corpuz is a former Filipino who became a
of personality of Fujiki to file that petition,
Canadian citizen. And then he came to PH
according to SC, he has the personality
and married Jocelyn in Jan 2005. He has to
because that will also affect his personal
return immediately to Canada for work and
status being still married to Marinay.
decided to surprise the wife who was left in
the PH, who was himself surprised. 
Because the wife was already having an
affair with another man. So he went to Chapter 2. Marriages Exempted from License
Canada and obtained a divorce and was Requirement
granted on Dec 2005. Then he wanted to
remarry another Filipina. So what he did is
So let’s go now to marriages that are exempt from obtaining a
he went to court and filed this petition for
marriage license.
recognition of that decree of divorce to
prove that he is capacitated to contract
another marriage under our law. Art. 27. In case either or both of the contracting parties are at
the point of death, the marriage may be solemnized without
The SC said NO because you are governed necessity of a marriage license and shall remain valid even if
by your national law, you are not governed the ailing party subsequently survives.
by our law. This should be filed instead by
the Filipino spouse to capacitate him/her to One is when one or both parties are in the point of death.
remarry, but not by Corpuz.
But anyway, she conformed to the petition Art. 28. If the residence of either party is so located that
because she really wanted to file for the there is no means of transportation to enable such party to
recognition of the decree of divorce but was appear personally before the local civil registrar, the marriage
hindered by financial reasons she could not may be solemnized without necessity of a marriage license.
file, so the Court remanded it to the trial
court to receive evidence on the validity of The other is when parties are living in such a place so remote
the divorce decree in accordance with the that they cannot go to the office of the civil registrar. So
Rules of Court on requiring proof of a foreign there’s absence of transportation to able the party or parties to
judgment. Rule 132, Sec. 24 and 25.
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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

appear personally before the local civil registrar. So they are We apply the Niñal ruling when the marriage is celebrated
already exempt from obtaining a marriage license. under the Civil Code. That requirement of perfect union is
required under the Civil Code. So there must be absence of
Art. 33. Marriages among Muslims or among members of the impediment during the entire 5 year cohabitation. Which is
ethnic cultural communities may be performed validly without NOT required anymore under the Family Code. It is sufficient
the necessity of marriage license, provided they are that the parties are living together for 5 consecutive years and
solemnized in accordance with their customs, rites or practices. the impediment is absent at the time of the solemnization of
the marriage. That is when you apply the Manzano v. Sanchez
if the marriage is celebrated under the Family Code. So it is
Then we have Muslims or members of ethnic communities
not as strict as the requirement under the Civil Code provision.
provided that the marriage must be solemnized in accordance
with their customs, rites or practice. But suppose the parties to the marriage have not obtained a
marriage license instead executed an affidavit of cohabitation
Article 34 on legal ratification of marital cohabitation.
but in truth and in fact they did not cohabitate for 5
Now this is the more important one because this was already consecutive years or less than 5 years. So what use would be
asked twice in the bar. Both the cases of Niñal and Gonzales the affidavit of cohabitation?
(?).
In the cases of DE CASTRO and DAYOT V. DAYOT, the SC
held that the affidavit serves no purpose whatsoever. It is a
Art. 34. No license shall be necessary for the marriage of a mere scrap of paper due to the non-compliance of that 5-year
man and a woman who have lived together as husband and cohabitation period because it is written in the law itself that
wife for at least five years and without any legal impediment requirement of living together as husband and wife without the
to marry each other. The contracting parties shall state the benefit of marriage for 5 consecutive years. So this cannot be
foregoing facts in an affidavit before any person authorized by defeated through the simple execution of affidavit of
law to administer oaths. The solemnizing officer shall also cohabitation and but in truth and in fact the parties did not
state under oath that he ascertained the qualifications of the really cohabit as husband and wife for that required period.
contracting parties are found no legal impediment to the
marriage In fact there’s this new case of:
SANTIAGO V. PEOPLE
Under Article 34, no marriage license is required if the parties
have been living together as husband and wife for 5 Leonila who was a widow contracted
consecutive years. In lieu of the marriage license, they will just marriage with Santiago and was sued by
simply execute an affidavit of cohabitation. That is the Santiago’s wife for bigamy. Santiago cannot
requirement. be found so it was only Leonila who was to
face the criminal charge. She was convicted
NIÑAL V. BAYADOG of the crime of bigamy. It went up to the SC
328 SCRA 122 March 14, 200 because according to her “I cannot be made
liable for bigamy because my subsequent
Where the Court said that in order for the
marriage with Santiago is void, there was no
cohabitation to be exempt from the marriage
marriage license. That entry in the marriage
license requirement, that cohabitation must
contract that exempt from marriage license
be akin to a perfect union. No impediment
requirement under Article 34 of the FC
whatsoever must exist during the entire 5
where we cohabited for 5 consecutive years
year of the cohabitation as rendered
was not true because we did not execute an
imperfect only by the absence of the
affidavit of cohabitation”. They merely told
marriage ceremony. That was the ruling of
the solemnizing officer that we have already
the court in the case of Ninal
cohabited for 5 consecutive years. According
Comes now the case of: to the accused, because the subsequent
marriage is void then I cannot be made
Borja-Manzano vs Sanchez
liable for bigamy which is correct. In order
MTJ-00-1329 | March 8, 2001
for bigamy to prosper, both marriages must
The Court held that it is sufficient that at the be valid.
time of the marriage, that impediment is
Can Leonila escape criminal liability to the
removed. What is only required is the
invocation that her marriage with Santiago is
cohabitation of 5 continuous years. But in
void due to the absence of a marriage
that case, the SC said that it is sufficient that
license because that cohabitation did not
the impediment is removed at the time of
really last for 5 consecutive years?
the marriage.
The SC said citing the case of:
So when do you apply the Niñal ruling and Sanchez ruling?

20
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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

TENEBRO V. COURT OF APPEALS do so would only make a mockery of the


sanctity of marriage. Claw
That we had the occasion to emphasize that
state’s penal laws on bigamy should not be Furthermore, it is a basic concept of justice
rendered nugatory by allowing the parties to that no court will “lend its aid to x x x one
the marriage to deliberately ensure that the who has consciously and voluntarily become
marriage must be flawed at the time it was a party to an illegal act upon which the
entered into. Otherwise, according to the cause of action is founded.” If the cause of
Court, we will just be making a mockery of action appears to arise ex turpi causa or that
marriage which the Constitution protects. which involves a transgression of positive
The Court held that we cannot countenance law, parties shall be left unassisted by the
Leonila’s acts of feigning a marriage and in courts. As a result, litigants shall be denied
the same breadth adjudge her innocent of relief on the ground that their conduct has
the crime. For us, to do so would only make been inequitable, unfair and dishonest or
a mockery of the sanctity of the marriage. It fraudulent, or deceitful as to the controversy
would be the height of absurdity of the court in issue. Law
to allow petitioner to use her illegal acts to
escape criminal conviction. Here, the cause of action of petitioner,
meaning her affirmative defense in this
criminal case of bigamy, is that her marriage
From the FT of Santiago v. People:
with Santos was void for having been
The Certificate of Marriage, signed by Santos secured without a marriage license. But as
and Santiago, contained the elucidated earlier, they themselves
misrepresentation perpetrated by them that perpetrated a false Certificate of Marriage by
they were eligible to contract marriage misrepresenting that they were exempted
without a license. We thus face an from the license requirement based on their
anomalous situation wherein petitioner fabricated claim that they had already
seeks to be acquitted of bigamy based on cohabited as husband and wife for at least
her illegal actions of: five years prior their marriage. In violation of
our law against illegal marriages, petitioner
(1) marrying Santos without a marriage married Santos while knowing fully well that
license despite knowing that they had not they had not yet complied with the five-year
satisfied the cohabitation requirement under cohabitation requirement under Article 34 of
the law; and the Family Code. Consequently, it will be the
(2) falsely making claims in no less than her height of absurdity for this Court to allow
marriage contract. petitioner to use her illegal act to escape
criminal conviction.
We chastise this deceptive scheme that
hides what is basically a bigamous and illicit Because in that case of Tenebro, the
marriage in an effort to escape criminal accused said that I cannot be held liable for
prosecution. Our penal laws on marriage, bigamy because there was this decision
such as bigamy, punish an individual’s rendering our marriage null and void by
deliberate disregard of the permanent and reason of psychological incapacity of the
sacrosanct character of this special bond second wife. And remember that if the
between spouses. marriage is void from the very beginning, it
In Tenebro v. Court of Appeals, we had retroacts to the date of the celebration of
the occasion to emphasize that the State’s the marriage. But this was not *** by the
penal laws on bigamy should not be court because according to the court
rendered nugatory by allowing individuals beguiling from the women. So women pa
“to deliberately ensure that each marital rin.
contract be flawed in some manner, and to
thus escape the consequences of contracting
multiple marriages, while beguiling throngs
of hapless women with the promise of Chapter 3. Void and Voidable Marriages
futurity and commitment.”
Article 35 enumerates what are those void marriages.
Thus, in the case at bar, we cannot
countenance petitioner’s illegal acts of
Art. 35. The following marriages shall be void from the
feigning a marriage and, in the same breath,
beginning:
adjudge her innocent of the crime. For us, to
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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

(1) Those contracted by any party below eighteen order for the spouse to be considered as
years of age even with the consent of parents or psychologically incapacitated to comply with
guardians; the essential marital obligations of marriage.

(2) Those solemnized by any person not legally  The first is, according to the court,
authorized to perform marriages unless such characteristic is gravity. The party must
marriages were contracted with either or both be incapable of carrying out the duties
parties believing in good faith that the solemnizing required in marriage and these duties
officer had the legal authority to do so; are found in Articles 68, 69, 70, 71, 220,
221 and 225 of the Family Code.
Subject to the exception that one of the parties or both parties  The second characteristic is juridical
believe in good faith that the solemnizing officer had authority antecedence. It must be rooted in the
to do so; history of the spouse who is alleged to
be psychologically incapacitated
(3) Those solemnized without license, except those although his overt manifestation
covered the preceding Chapter; emerged only after the celebration of
the marriage.
(4) Those bigamous or polygamous marriages not
failing under Article 41;  And third is incurability or even if it were
to be beyond the means of the spouse
Polygamous or bigamous marriages not falling under Article who is alleged to be psychologically
41 of the FC; incapacitated.
It is also in this case that the SC defined
(5) Those contracted through mistake of one what constitutes psychological incapacity. So
contracting party as to the identity of the other; and it says now that it should refer to no less
than a mental not physical incapacity that
This actually used to a ground for annulment under the Civil causes a party to be truly incognitive of the
Code but here it is already a ground of nullity. basic marital covenants that concomitantly
must be assumed and discharged by the
parties to the marriage.
(6) Those subsequent marriages that are void under
Article 53. That is how it is defined by the SC in this
case. And if you look at it the Court denied
Those subsequent marriages that are void under Article 53 the petition of Mr. Santos. The grounds cited
due to the non-compliance with Article 52 of the FC in the by Mr. Santos is the inability of the wife to
event of termination of the marriage or declaration of nullity. comply with Article 68 – The obligation of
the husband and the wife to observe mutual
PSYCHOLOGICAL INCAPACITY. love, respect and fidelity, and render
mutual help and support.
Art. 36. A marriage contracted by any party who, at the time
of the celebration, was psychologically incapacitated to comply If you remember further he went to the
United States to look for the wife because
with the essential marital obligations of marriage, shall likewise
be void even if such incapacity becomes manifest only after its the wife went to the USA to work as a nurse
solemnization. and was unable to find her. So when he
returned he filed this petition. But the SC
denied because the characteristics were not
This is borrowed from Canon 1095 of the Catholic Church and present. Moreover, the SC said that marriage
this is merely a ground for annulment under the Canon Law. is not an adventure. It is a lifetime
But the Family Code says that it is a ground for declaration of commitment. The ground for denial.
nullity.
Of course you will always remember (FOREVER AND EVER):
There were at the time that the Code Commission included
Article 36 as a ground for declaration of nullity of marriage, the Chi Ming Tsoi case
Code Commission refused to give any specific example of what
The Court declared the husband to be
constitutes psychological incapacity.
psychologically incapacitated due to that
And the first case would be of course: refusal to have the marriage consummated.
There was no basis for his refusal to have
Santos v. CA the marriage consummated despite the
Here, the SC enumerated what are the different suggestions made by the wife.
characteristics that must be complied with in According to the court, one of the essential
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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

marital obligations of marriage is procreation Subsequent to that there were several cases the court cannot
and an ungiven self is an unfulfilled self. So decide whether it must be medically or clinically examined or
for 8 months the wife waited waited waited may be. It now would depend the mind of the court because
until she got tired of waiting. Although there of the saying must, may and yet in the case of:
was this mention of the husband that it was
DEDEL case
the wife who has suffered pain whenever
they try to have sexual intercourse. There was this presentation of the
psychologist on the part of the petitioner
Molina case
where the psychologist testified that Sharon
Anyway comes now the popular MOLINA is psychologically incapacitated suffering
guidelines where the Court now enumerated from dependent personality disorder as
what are those guidelines in order for one’s shown by her sexual infidelity, her acts of
petition for declaration of nullity of marriage leaving the family, cohabiting with the lover,
under Article 36 shall prosper. There are returning after. There was this Anti-
several guidelines laid down by the court. Personality Disorder on the part of the wife
One of which is that the psychological and this was testified to by the psychiatrist.
incapacity must be medically or clinically In fact it was also shown that Sharon had
identified by the psychiatrist or the doctor. been confined but all of these were not
taken by the court, were not appreciated by
By the way in the case of Molina, here the
the Court because according to the Court, it
SC enumerated all what are those
was not shown by the petitioner that all of
considered as essential marital obligations of
these were rooted in the history of Sharon.
marriage. Aside from Article 68, we have
So juridical antecedence is wanting.
Article 69 of the fixing of the family domicile.
In case of disagreement the court shall The cases of TENEBRO and JARILLO, the same decision
decide. Then we have 70 and 71, Article 70 rendered by the Court.
on the obligation of both spouses to support
TENEBRO case
the family and Article 71 on management of
the household. Again BOTH spouses. Then Where they contracted 2 marriages then was
we have Article 220 – rights and obligations sued for bigamy by the second wife. Filed a
of the parents toward their children. Article petition for declaration of nullity under
221 refers to the obligation of the parents to Article 36, was granted. He now moved for
pay the civil liability of children even up to the dismissal of the criminal charge claiming
the age of 21 for as long as living in their that he could no longer be held liable for
company and under their parental authority. bigamy because it retroacts to the date of
I am emphasizing this because of Article 236 the celebration of the marriage.
of emancipation. Remember that this has
already been amended by RA 6809 in Case of JARILLO
lowering the age of majority. So 221 is one The woman entered into 2 marriages. Again
of the essential marital obligations of there was this declaration of nullity of the
marriage. first marriage while the criminal case was
Article 225 – the parents being the guardian still pending. But the decision of the Court in
over the person of the property of the Tenebro was merely reiterated in the case of
unemancipated child. All of these were Jarillo. The fact that the marriage has been
enumerated by the SC in this case. declared void by the Court is of no moment
as far as the penal laws are concerned.
Marcos vs. Marcos Moreover, even if the marriage is declared
void under Article 36, these are without legal
Comes the case of MARCOS V. MARCOS
consequences. And one of the consequences
because in this case there is already the
is the fact that under Article 54 of the FC,
relaxation of the requirement of medical or
children born out of void marriages under
clinical examination. The court here now said
Article 36 are legitimate.
that if the totality of the evidence would be
sufficient to a warrant a finding of the But comes the case of:
spouse is indeed psychologically
incapacitated then there is no need for the ANTONIO vs. REYES
respondent’s spouse to be medically or In that case the SC granted the petition for
clinically examined. the declaration of nullity under Article 36
because according to the court, ALL the

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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

guidelines laid down in Molina had been considered conclusive the petition for
complied with. Kaya ang haba-haba ng declaration of nullity of marriage under
decision ng Korte. Article 36 because of immorality and
abandonment. But according to the court
One of the evidence presented by the
one’s unfitness to be a member of the legal
petitioner was this decree of annulment
profession does not mean that he is unfit to
granted by the Catholic Church of the
be a husband. That is the ruling of the court.
National Appellate Matrimonial Tribunal
And moreover, you have to prove that
which decision was affirmed by the Supreme
through the Molina guidelines. Compliance
Court of the Catholic Church, The Roman
with the Molina guidelines must be complied
Rota. But the CA refused to recognize that
with.
annulment judgment. The SC however
censured the CA. It was error on the part of HALILI CASE
the appellate court not to give respect to
In the initial case of Halili (there are two
that decision. The court granted the petition
cases filed in Halili v. Halili). The first was
because according to the court, the wife is
denied by the court because Lester was not
psychologically incapacitated. She live in a
able to prove that he is psychologically
world of her own. She is a pathological liar.
incapacitated to comply with the essential
She cannot distinguished truth from reality.
marital obligations of marriage. But he filed a
That the lies she perpetrated were not
motion for reconsideration after the court
design to lure the man to marry her but
rendered a decision in Te v. Te.
rather she really live in that kind of world
where she said that I have this degree, I TE vs. TE
am a singer, etc. and all of these were all
false so she is a pathological liar. Thus, the Si Rowena and Edward. It was the woman
marriage has to be declared void because who suugested to Edward “let’s elope”. That
he could not comply with the essential was after 3 months. Sabi ng lalaki ayoko.
marital obligations of marriage. “Basta let’s elope”. Then they eloped. They
went to Cebu. They have P80,000. Because
However, the case of: they weren’t able to find a job, they returned
to Manila and they went separate ways.
NAJERA V. NAJERA
Edward went to his parents’ home while
In this case, the wife presented also as proof Rowena went to his uncle’s house. But
that her marriage had been already annulled despite that, Rowena would be calling
by the court but the court did not appreciate Edward. Kapag hindi ka pumunta ditto
that annulment that was granted by the magpakamatay ako. I will commit suicide.
Catholic Church. The reason is that the Edward went to the uncle’s house.
annulment is not based on psychological
Eventually, they got married. Only to find
incapacity rather there is grave lack of
out that he became a prisoner of that house.
discretion. The court said that there can be
He was not allowed to leave the house. He
no basis in granting the petition because the
was not allowed to call his parents and
decision of the National Matrimonial Tribunal
relatives. Moreover, the uncle said, “I have
was not one where the husband is declared
this collection of guns.  That if you will
to be psychologically incapacitated but
leave the house, I will use one of those
merely lacks that discretion of judgment.
guns.” Takot siya. In one of those occasions,
FERRARIS he was able to call the house. The mother
said umuwi ka sa bahay. Sabi naman niya
But at first the court denied the petition
kay Rowena, “Sabi ng kapatid ko, uwi raw
because the testimony of the psychologist,
tayo sa bahay.” “Ay hindi! You go to your
Dr. Dayan were all given by Ferraris. So
house, ask from your father your share in
hearsay according to the court. There is no
the inheritance”. So uwi naman siya sa
basis to declare the husband psychologically
bahay. “Daddy, can I have my share in the
incapacitated.
inheritance?” NO! Otherwise I will disinherit
PARAS V. PARAS you! Punta naman siya kay Rowena. Ayaw ni
Daddy, baka i-disinherit ako. Rowena said,
The issue here is at first the husband was wala ka namang pera. Hiwalay na tayo!
suspended by the court from the practice of That’s how it was so they separated. Later,
law through the petition filed by the wife. Edward now filed this petition of declaration
May factual findings in a disbarment case be of nullity of marriage claiming that he is
24
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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

psychologically incapacitated to comply with SC said there was no abandonment. There is


the essential marital obligations of marriage. merely a relaxation of the Molina guidelines.
He said, I want to be a pastor. I really do
Another case where the SC granted a petition is the case of:
not want to get married. I just want to be a
pastor. He presented the psychiatrist and the MARIETTA C. AZCUETA v. REPUBLIC
psychiatrist found him to be suffering from GR. No. 180668 (May 26, 2009)
dependent personality disorder. Likewise,
Rowena was also considered to be Mahirap yung mga whirlwind romance noh?
psychologically incapacitated, Anti-Social Yung kay Rowena at Edward 6 months, dito
Personality Disorder and Narcissistic 2 months lang. They got married. The
Personality Disorder. husband has no work. The wife was working.

When does one considered to be suffering The husband has no work and the wife is
from the kind of disorder that Edward is working. The wife told the husband, why
suffering? According to the court, he would won’t you find a work? The husband said,
do demeaning jobs merely to get the “wala akong sapatos at damit”. So the wife
approval of the other person. He would do provided it. Then the husband claimed that
acts that he really does not like but he has he already has a work. So the couple were
to do it because he wants to get the happy and everyday he would leave the
approval of the person and also he cannot house to “work”. One day a neighbor
decide on his own. You see how weak he is. approached the wife and told her that she
He is so immature. In the case of Rowena, would often see the husband at her mother-
she has no *** in saying that sige patayin ka in- law’s house everyday. She confronted the
ng uncle ko. She has no remorse husband. The husband cried and said, “ikaw
whatsoever. She is merely self-centered. She kasi you always nag me to find a work. So I
is so interested in herself. According to the pretended that I have a work. I get the
court, both are psychologically incapacitated. money as salary from mommy.”

Thus, the case of: The wife also complained of very


unsatisfactory sexual life, which according to
HALILI V. HALILI the wife was only done once a month.
According to the husband, “No! Sex is
The motion for reconsideration was filed by
sacred. We should not enjoy it!” Thus, the
Lester. This time, the court granted the
wife filed for a petition for declaration of
petition. It reversed its earlier denial because
nullity of marriage based on Art. 36.
according to the court, Lester is suffering
from dependent personality disorder. All his Here, the husband was suffering from
life he never received any affirmation from Dependent Personality Disorder. The reason
the father. The father is so domineering. is because all throughout his growing years,
That is why he grew up without any self- the father of the husband was always absent
confidence. Very immature and not truly because the father was a seaman. It was the
understanding what it meant to be a mother who is always there. Thus, his
husband and what it meant to have a family dependency on his mother was rooted from
life. childhood up to the time he had entered this
marriage with Marieta.
TING V. TING
The Court said that “his inhibitions in a
Was there now an abandonment of the
sexual relationship, is referable to an
Molina guidelines? According to the court,
unconscious guilt feelings of defying the
NO, there is merely a relaxation of the
mother’s love. He has difficulty in delineating
Molina guidelines. Because in the case of Te
between the wife and the mother, so that his
v. Te, the court said that the Molina
continuous relationship with his wife
guidelines have become a straitjacket that
produces considerable anxiety, which he is
we really have to decide the case based on
unable to handle, and crippled him
the guidelines when the real purpose of the
psychologically.” so, di pa xa naka-alis sa
declaration of nullity under Article 36 is
suso ng mama niya. :p
merely to give a decent burial on a marriage
that is really dead at the time of the
celebration. According to the court, we must Marietta married Rodolfo 2 months after
approach a petition on a case to case basis their 1st meeting. The marriage lasted only
rather than immediately use the Molina for 4 years and subsequently Marietta filed a
guidelines. In the case of Ting v. Ting, the petition for declaration of nullity of marriage
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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

under Article 36. She alleged that Rodolfo sufficient compliance with Molina to warrant
was emotionally immature, irresponsible and the annulment of the parties’ marriage
continually failed to adapt himself to married under Article 36.”
life and perform the essential responsibilities
and duties of a husband. He never bothered All the subsequent cases were denied by the SC. In my hand-
to look for a job and instead relied upon his outs, I made an observation that the Court would go to Molina
mother for financial assistance including the or Marcos on totality of evidence.
payment of rentals of the room they were
occupying. He pretended that he found a job But the most recent decision is involving the case of:
but when confronted as Marietta discovered KALAW v. FERNANDEZ
that he really did not actually get a job and GR# 166357
the money he gave her (which was January 14, 2015 (745 S 512)
supposedly his salary) came from his
mother, he cried like a child and told the This is a motion for reconsideration because
wife that he did it so she would stop the first case was filed by the husband but
nagging about applying for a job. When they the court denied the petition. According to
discussed about their sexual problem as the Court, the fact that the wife here is a
theirs is an unsatisfactory sex once a month, fashion model, she is constantly going to the
Rodolfo would always say that sex is sacred parlor and plays mahjong, commits acts of
and should not be enjoyed or abused. He adultery and goes out with friends or playing
did not even want to have a child yet mahjong at the house of her relatives or that
because he was not ready. The psychiatrist of the husband, she brings the children with
testified that Rodolfo was suffering from her. So the children is not actually being
Dependent Personality Disorder whose neglected because there are also yayas who
response to ordinary way of life was will provide them food and attend to their
ineffectual and inept, characterized by loss needs. This, the Court denied the first
of self-confidence, constant self-doubt, petition that she can be considered
inability to make his own decisions and psychological incapacitated. The totally of
dependency on other people. evidence falls to the opposite direction that
she is incapacitated. So the husband filed for
SC: The root cause of the above clinical a motion for reconsideration.
condition is due to a strong and prolonged
dependence with a parent of the opposite Both parties presented their respective
sex, to a period when it becomes no longer psychologists. The husband presented his
appropriate. This situation crippled his psychologist and a canon law lawyer who is
psychological functioning related to sex, self- the advocate before the national matrimonial
confidence, independence, responsibility and tribunal. The testimony of the psychologist
maturity. It existed prior to the marriage, must not be taken in isolation. All three
but became manifest only after the testimonies must be taken into account. The
celebration due to marital stresses and testimony of the psychologist of the wife
demands. It is considered as permanent and said that Elena (wife) is suffering from
incurable in nature, because it started early narcissistic personality disorder and
in his life and therefore became so deeply antisocial personality disorder. So this was of
ingrained into his personality structure. It is course affirmed by Fr. Hili, the canon lawyer.
severe and grave in degree, because it So the SC reversed its first decision that the
hampered and interfered with his normal wife is not psychologically incapacitated.
functioning related to heterosexual
adjustment.
On September 19, 2011 the Supreme
His inhibitions in a sexual relationship, is Court denied the petition for declaration of
referable to an unconscious guilt feelings of nullity of marriage under Article 36, FC
defying the mother’s love. At this point, he stating that Ma. Elena Fernandez’es acts of
has difficulty in delineating between the wife constant mahjong sessions, visits to the
and the mother, so that his continuous beauty parlor, going out with friends,
relationship with his wife produces adultery, neglect of children were not
considerable anxiety, which he is unable to actually proven. The totality of evidence
handle, and crippled him psychologically. points to the direction.
The SC also cited Santos, Marcos, and Te The Supreme Court however, overturned its
decisions. It further stated that, “there was earlier denial and held that Dr. Gates’
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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

(psychologist) expert opinion should not be (8) Between adopted children of the same adopter; and

considered in isolation but along with the
other evidence presented. The Court took (9) Between parties where one, with the intention to marry the
into account the testimony of respondent’s other, killed that other person's spouse, or his or her own
own witness, Dr. Dayan, who testified that spouse.
respondent had “compulsive and dependent
tendencies” to the extent of being Art. 38 included there would be first cousins up to 4th civil
“relationship dependent”. It did not degree.
contradict Dr. Gates’ findings that Fernandez
These are marriages which are void by reason of public policy
is suffering from Narcissistic Personality
Disorder and Antisocial Personality Disorder. EXCLUDED there is the marriage between the adopted child
Likewise, a Canon law expert and an and the illegitimate child of the adopter.
Advocate before the National Appellate
Matrimonial Tribunal of the Archdiocese of Take note that the enumeration in Art. 38 is exclusive. So as
Manila, Fr. Healy, testified that respondent is much as marriages between the illegitimate child and adopted
narcissistic and is more concentrated on her child of the adopter is not mentioned, then the presumption is
own beauty that it became an obsession, her that they are allowed to marry. That would be valid even if the
family being merely secondary. illegitimate child is leaving with the adoptive parent.
In par. (9), for this article to apply, there must be a holding in
We now go to INCESTOUS MARRIAGES. the decision that the killing is motivated with the intention of
marrying the other spouse. Absence of that declaration in the
Art. 37. Marriages between the following are incestuous and decision, then the presumption is that the marriage is valid.
void from the beginning, whether relationship between the Let’s go to Art. 40, the need to have the prior marriage
parties be legitimate or illegitimate: declared void.
(1) Between ascendants and descendants of any degree; and
Art. 40. The absolute nullity of a previous marriage may be
(2) Between brothers and sisters, whether of the full or half
invoked for purposes of remarriage on the basis solely of a
blood.
final judgment declaring such previous marriage void.

These marriages are void from the very beginning. These are
So the absolute nullity of a previous marriage may be invoked
marriages between:
for purposes of remarriage on the basis solely of a final
1. Ascendant-descendant of any degree. judgment declaring such previous marriage void.
2. Brothers-sisters, whether full or half- blood. So if the marriage is void, like on the basis of absence of
marriage license, the parties to be capacitated to contract a
In Art. 38, it included first cousins up to 4th civil subsequent marriage, there must be a declaration of nullity of
degree collateral blood relatives. marriage of that previous void marriage, otherwise that
Void for being AGAINST PUBLIC POLICY. subsequent marriage shall also be void.
But this is a special kind of a void marriage if we go later to
Art. 38. The following marriages shall be void from the Art. 43 as well as on the dissolution of the property regimes.
beginning for reasons of public policy:
(1) Between collateral blood relatives whether legitimate or Art. 41. A marriage contracted by any person during
illegitimate, up to the fourth civil degree; subsistence of a previous marriage shall be null and void,
unless before the celebration of the subsequent marriage, the
(2) Between step-parents and step-children; prior spouse had been absent for four consecutive years and

(3) Between parents-in-law and children-in-law;
 the spouse present has a well-founded belief that the absent
spouse was already dead. In case of disappearance where
(4) Between the adopting parent and the adopted child;
 there is danger of death under the circumstances set forth in
the provisions of Article 391 of the Civil Code, an absence of
(5) Between the surviving spouse of the adopting parent and
only two years shall be sufficient.
the adopted child;

For the purpose of contracting the subsequent marriage under
(6) Between the surviving spouse of the adopted child and the the preceding paragraph the spouse present must institute a
adopter;
 summary proceeding as provided in this Code for the
(7) Between an adopted child and a legitimate child of the declaration of presumptive death of the absentee, without
adopter;
 prejudice to the effect of reappearance of the absent spouse.

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SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

A marriage contracted during the subsistence of a previous decree of presumptive death. The SC said
marriage shall be void EXCEPT all the requisites mentioned in that it is sufficient that the 7 year period as
the case of NOLASCO v. CA are satisfied. provided under Ar. 390 of the New Civil Code
had been complied with or even less than
1. There must be a disappearance of the absentee spouse
that if spouse present considers the
for 4 consecutive years or 2 consecutive years if the
absentee spouse dead and believe to be so,
disappearance under the danger of death in Art. 391 of
then that would be sufficient.
the Civil Code. So ano yun?
a) There is the passenger and the ship/airplane Subsequent marriage was solemnized on
disappeared. May 8, 1958 the law in force at that time
was the Civil Code (Article 83).
b) Members of the AFP who participated in the war
A judicial declaration of absence of the
c) Or any of the circumstances under the danger of
absentee spouse is not necessary as long
death. So the 4 years now is lessen to 2 years in
as the prescribed period of absence (7
order for the spouse- present to enter a valid
consecutive years or if less, generally
subsequent marriage.
considered to be dead and believed to be
2. That the spouse present has a well-founded belief that the so) is met.
absentee spouse is already dead;
In contrast, under the 1988 Family
3. There is a judicial decree of presumptive death in a Code, in order that a subsequent
summary proceeding marriage may exceptionally be considered
the following conditions must concur:
4. for purposes of remarriage.
(1) the prior spouse of the contracting
So if all of these are complied with, then the spouse present party must have been absent for 4
can validly enter into a subsequent marriage without fear of consecutive years or 2 years where
being prosecuted for bigamy. there is danger of death under Article 391
There are several cases involving article 41. of the NCC,

Take note that under the Civil Code, Art. 390, absence is 7 (2) the spouse present has a well-
consecutive years or if it is less than that, then the spouse founded belief that the absent spouse
present must consider the absentee spouse already dead and is already dead,
believed to be so. Yan lang ang requirement sa civil code. (3) there is a judicial declaration of
There is no need to obtain a decree of presumptive death. This presumptive death and
is precisely in the case of Calistero Case.
(4) for the purpose of remarriage.
PRESUMPTION OF DEATH.
The court went on, different if the disappearance happened
Art. 390. After an absence of seven years, it being unknown under the Family Code. What if the disappearance is more
whether or not the absentee still lives, he shall be presumed than 4years?
dead for all purposes, except for those of succession.
Or in the case of:
The absentee shall not be presumed dead for the purpose of
opening his succession till after an absence of ten years. If he EDUARDO P. MANUEL vs. PEOPLE
disappeared after the age of seventy-five years, an absence of November 29, 2005
five years shall be sufficient in order that his succession may
The wife disappeared for about 22 years. So
be opened.
is there a need for the husband of a decree
of presumptive death when the law itself,
CALISTERIO VS.CALISTERIO Art. 390, already gives the presumption of
April 16, 2000 death? Isn’t it, that “presumed dead for all
The first marriage was celebrated under the intents and purposes EXCEPT that of
Old Spanish Civil Code. They contracted a opening the succession unless he
subsequent marriage under the civil code. disappeared at the age of 75 then at least 5
But the absentee spouse has already years is sufficient?” This is the case of
disappeared for more than 7 years when the Manuel v People.
spouse- present contracted a subsequent The wife had been missing for more than 10
marriage. When one of the spouses died, the or 17 years, if I remember it correctly. Then
heirs now questioned the validity of the the husband contracted a subsequent
marriage on the ground of absence of marriage, under now the Family Code. But
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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

he abandoned the second wife. The second declared presumptively dead by means of a
wife searched and found out in Baguio that judgment rendered in a proper
the husband had a previous marriage that proceedings.), in relation to Article 41 of
was solemnize under the civil code. She now the Family Code. Such judicial declaration
sued Manuel for bigamy. Manuel’s defense constitutes proof that petitioner acted in
was, “I could not be liable for bigamy good faith, and would negate criminal
because the law itself provides for the intent on his part when he married Tina
presumption of death under the Civil Code, and, as a consequence, he could not be
that if the person disappears for 7 held guilty of bigamy. The requirement of
consecutive years so she will be presumed judicial declaration is also for the benefit of
dead for all purposes.” the State. Under Article II, Section 12 of
the Constitution, the “State shall protect
The SC said that the best evidence that you
and strengthen the family as a basic
contracted the subsequent marriage in good
autonomous social institution.” Marriage is
faith is the decree of presumptive death.
a social institution of the highest
importance.
Is the spouse who contracts a subsequent
marriage during the subsistence of a
So now we know that regardless of the number of years that
previous marriage still liable for bigamy
the other spouse has been missing but under the Family Code,
despite the absentee spouse having been
you still have to obtain the decree of presumptive death to
missing for 21 years?
render the subsequent marriage valid and not to be liable for
Facts: Eduardo married Rubylus in 1975. bigamy.
She went missing also in the same year and
Because the provision has been abused, so many petitions for
was unheard of since then. In 1996, he
presumptive death have been filed, the court in the case of
married Tina. When he left Tina in 2001,
Alegro laid down the requirements for one to have a well-
the latter became curious and made
founded belief that the absentee spouse is already dead.
inquiries with the NSO in Manila and
learned that Eduardo had been previously REPUBLIC vs. CA and ALEGRO
married. Sued for bigamy, Eduardo avers December 9, 2005
that when he married Tina in 1996, Rubylus
had been “absent” for 21 years since 1975. In this case, after 3months of marriage, the
He points out that, under the 1st paragraph wife disappeared.
of Article 390 of the Civil Code she was He tried to locate the wife. The husband
presumed dead as a matter of law because went to the house of his in-laws. His in- laws
if one has been absent for 7 years, whether have this radio station but he did not avail
or not he/she is still alive, shall be the services of that radio station. (Diba sa
presumed dead for all purposes except for bukid effective na like, “oi, ma, momi uli na.
succession. Thus, the presumptive death of sorry ha. Mahal kita ” )
the absentee spouse arises by operation of
law upon the satisfaction of 2 He contacted the friends of Leah, the wife.
requirements: the specified period and the He was been told that Leah is already in
present spouse’s reasonable belief that the Caloocan in her bestfriend’s house.
absentee is dead. Nowhere under Article He went to Caloocan but he was not able to
390 of the Civil Code does it require that contact the bestfriend or the wife, instead
there must be a judicial declaration of their was this relative of the bestfriend who
death before the rule on presumptive death told him that Leah was not there.
would apply.
He persistent. He drove taxi and even goes
Held: It was the burden of petitioner to to the mall in order to find the wife.
prove his defense that when he married
Tina in 1996, he was of the well-grounded Unable to find the wife, he went back to
belief that his first wife was already dead, Samar(or Tacloban) to file a petition for
as he had not heard from her for more than declaration of presumptive death.
20 years since 1975. He should have The court denied the petition because of
adduced in evidence a decision of a absence of that well- founded belief. The act
competent court declaring the presumptive of the husband to find the wife did not
death of his first wife as required by Article comply with that requirement of well-
349 of the RPC (Bigamy- The penalty x x x founded belief. According to the court he
x or before the absent spouse has been should have:
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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

1. Presented the friend from whom he owner of DYMS. He did report and seek the
inquired the whereabouts of Leah; help of the local police and the NBI to locate
Lea, but it was only an afterthought. He did
2. He could have availed of the services of
so only after the OSG filed its notice to
their radio station;
dismiss his petition.
3. He did not report the disappearance
before the proper authorities. He did it only This is the same with the earlier case of Nolasco under art.
after he had already filed the petition of 41 because in this case, the husband said that he went to
declaration of presumptive death. England to find the wife.
It was only an after- thought on the 1. England is so wide, how can he find the wife?
husband’s part to report it to the proper
authorities. Thus, no well- founded belief. 2. He did not report it before the British Embassy or report it
with the local authorities.
Alan filed a petition for the declaration of He said that he wrote letters but the Court said where are
presumptive death of his wife, Rosalia (Lea) these letters, you should have presented it so that it would
when barely a month after the marriage, Lea prove that in deed you wrote letters and it were all returned.
left their conjugal abode. He then looked for
her in his in-laws house, in her friend’s REPUBLIC VS. NOLASCO | 220 SCRA
house where the brother-in-law of Lea’s 20
friend told him that his wife left for Manila.
He also inquired from his friends of Lea’s Four requisites that must be met for the
whereabouts but to no avail. He also sought declaration of presumptive death under
the help of Barangay Captain Magat who Article 41. These are 1. the absentee spouse
promised to help him locate his wife. In must have been absent for 4 consecutive
1995, he left for Manila and went to the years or 2 years if the disappearance is
house of Lea’s friend but despite repeated accompanied by any of the circumstances
talks with her, he failed to find her. He also mentioned in Article 391 of the Civil Code;
looked for Lea in the malls but to no avail. 2.the spouse present has a well-founded
In 1997, he decided to return to Catbalogan belief that the absentee spouse is already
and again looked for his wife but failed. In dead; 3. there is a judicial decree of
2001, he reported Lea’s disappearance to presumptive death; and 4. for the purpose
the local police and also to NBI. Magat of remarriage.
corroborated his statements during the trial. Spouses should not be allowed, by the
SC: The spouse present is, thus, burdened simple expedient of agreeing that one of
to prove that his spouse has been absent them leaves the conjugal abode and never
and that he has a well-founded belief that to return again, to circumvent the policy of
the absent spouse is already dead before the laws on marriage.
the present spouse may contract a
subsequent marriage. The belief of the Then there was this case ***. Actually, I was laughing about
present spouse must be the result of proper this case because the husband disappeared because the wife
and honest to goodness inquiries and efforts complained to the husband that during their marriage, she
to ascertain the whereabouts of the absent never experienced you know, sexual orgasm and also
spouse and whether the absent spouse is quarelled with her father. He disappeared. Speaking about
already dead, in Republic vs. Nolasco, the orgasm, I read from the Philippine Star featuring “female
Court warned against collusion between the orgasm” one page pa jud. [joke time]. Anyway, in that case,
parties when they find it impossible to the wife said that “I tried to look for the husband. I go to the
dissolve the marital bonds through existing hospital during my free time to look for him.” Of course, the
legal means. It is also a maxim that “men SC denied the petition because there was really no well-
readily believe what they wish to be true.” founded belief on the part of the wife. The mere act of
trying to find the husband is insufficient.
In this case, Alegro failed to present a
witness other than Magat. He failed to There are 2 new cases that are actually new.
present Janeth or Nelson or any other
person from whom he allegedly made REPUBLIC v. EDNA ORCELINO
inquiries about Lea to corroborate his VILLANUEVA
testimony. What is worrisome is that, Alegro GR# 210929, July 29, 2015
failed to make inquiries from his parents-in-
law considering that Lea’s father was the Edna who worked as a domestic helper in

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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

Singapore returned to the Philippines after the course of his search. Neither did he
she allegedly heard news from her children prove that he sought assistance of the
that their father Romeo, Edna’s husband, pertinent government agencies as well as
who worked as a mechanic in Valencia City, the media. Neither did he name the
Bukidnon left their conjugal home without particular places, provinces, cities that he
reason or information as to his visited by reason of the search.
whereabouts. She inquired from her
parents-in-law and from their friends in In both cases, the SC denied the petition because of the
Iligan City and even went to Romeo’s absence of well-founded belief. According to the court, it
birthplace in Escalante, Negros Oriental, would just be very easy for the spouses to merely agree that
and made inquiries from his relatives but one would disappear and the spouse present would file the
found no leads as to his whereabouts or petition for the declaration of presumptive death. So there is
existence. that stringent requirement on the well-founded belief requisite
In 2009 or 15 years after Romeo’s according to the court.
disappearance, Edna instituted a petition SOCIAL SECURITY SYSTEM (SSS) and
to declare Romeo presumptively dead the SOCIAL SECURITY COMMISSION
under Article 41 of the Family Code with (SSC) vs. TERESITA JARQUE vda. DE
petitioner as sole witness. BAILON
HELD: The stringent requirement of “well- March 24, 2006
founded belief” was not complied with. It
imposes a burden upon the spouse- But here, it’s quite different.
present/petitioner to show proper and Here, the wife allegedly disappeared when
honest-to-goodness inquiries and efforts to the Civil Code was still in effect. 30 years
ascertain not only the absent spouse’s later, the husband filed a petition for the
whereabouts but, more importantly, declaration of presumptive death and
whether the absent spouse is still alive or is contracted a subsequent marriage with
already dead. Teresita. Then the husband died. The first
Her claim of making diligent search and wife reappeared, but did not do any positive
inquiries remained unfounded as it merely act under Article 242. You have to execute
consisted of bare assertions without any an Affidavit of Reappearance. So she said,
corroborative evidence or record. “Why should I execute an Affidavit of
Reappearance when actually I did not
disappear? In the first place, I left the
REPUBLIC v. JOSE SARENOGAN, JR.
conjugal home because my husband is a
GR# 199194, February 10, 2016
philanderer. He had this other woman. So I
FACTS: Jose and Netchie lived together as decided to leave, but he was aware of my
husband and wife for only about a month as whereabouts. I was just in my parents’
Jose has to work as a seaman. Netchie went house in another town of the same
to Hongkong to work as a domestic helper. province.”
For 3 months Jose did not receive any
The issue here was the husband was already
communication from Netchie. He tried to
dead and they were quarrelling over the SSS
contact Netchie’s parents but was informed
benefit. So according to the court, if you do
that Netchie’s parents had already Clarin,
not comply with that requirement, on
Misamis Occidental.
executing that affidavit of reappearance,
When his contract expired, he went home under the law, by fiction of law, you are still
and made inquiries from Netchie’s relatives considered to be dead because it is the
and friends but yielded negative results. affidavit of reappearance that will terminate
Thus, he filed this petition to declare Netchie the subsequent marriage and would also be
presumptively dead so he can marry again. the ground to have you now considered as
He presented as witnesses his brother and the legal spouse of the party who claimed
Netchie’s aunt. the decree of presumptive death which she
did not do. In fact, according to the court,
HELD: Aside from his bare claims that he
there was no requirement on the part of the
inquired from alleged friends and relatives
husband to obtain a decree of presumptive
as to Netchie’s whereabouts, he did not call
death because the disappearance happened
to the witness stand specific individuals or
when the Civil Code was still in effect and no
persons whom he allegedly saw and met in
such requirement is required.
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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

In the case at bar, as found by the CFI, Alice


Close to 13 years after his wife Alice was
had been absent for 15 consecutive years
declared presumptively dead, Bailon
when Bailon sought the declaration of
contracted a subsequent marriage with
presumptive death, which judicial
Teresita in Casiguran, Sorsogon. When
declaration was not even a requirement then
Bailon died Teresita claimed the death
for purposes of remarriage. Under the Civil
benefits from the SSS. It now appears that
Code, a subsequent marriage being
Alice is very much alive and that it was
voidable, it is terminated by final judgment
Bailon who abandoned or deserted the
annulling the previous marriage or declaring
spouse. Alice alleged that she lived with her
it void ab initio.
parents at Barcelona, Sorsogon because she
found out that Bailon was having an extra Under the Family Code, no judicial
marital affair but Bailon used to visit her proceeding to annul a subsequent marriage
there after their separation. That she only is necessary. Article 42 provides: “The
recently knew of the petition filed by Bailon subsequent marriage referred to in the
to declare her presumptively dead. The SSS preceding Article shall be automatically
denied Teresita’s claim contending that her terminated by the recording of the affidavit
subsequent marriage with Bailon is void as it of reappearance of the absent spouse, x x x
was contracted while Bailon’s marriage with x.” The termination of the subsequent
Alice was still subsisting and that there is no marriage by affidavit does not preclude the
need to require Alice to execute an affidavit filing of an action in court to prove the
of reappearance as there is no reappearance of the absentee and obtain a
disappearance of Alice. In fact, the CFI order declaration of dissolution or termination of
declaring Alice presumptively dead did not the subsequent marriage.
become final, her (ALICE) “presence” being
If the absentee reappears, but no step is
“contrary proof” against the validity of the
taken to terminate the subsequent marriage,
order. Teresita, however, maintains that her
either by affidavit or by court action, such
marriage with Bailon was not declared
absentee’s mere appearance, even if made
before any court of justice as bigamous or
known to the spouses in the subsequent
unlawful, hence, it remained valid and
marriage, will not terminate such marriage.
subsisting for all legal intents and purposes
Since the 2nd marriage has been contracted
as in fact Bailon designated her as his
because of a presumption that the former
beneficiary. Went to the Social Security
spouse is dead, such presumption
Commission but the SSC upheld the denial
continues in spite of the spouse’s
of the SSS respecting Teresita’s claim for
physical reappearance, and by fiction of
death benefits.
law, he or she must still be regarded as
SC: The 2 marriages having been legally an absentee until the subsequent
solemnized prior to the effectivity of the marriage is terminated as provided by law.
Family Code, the applicable law to determine
If the subsequent marriage is not terminated
their validity is the Civil Code specifically Art.
by registration of an affidavit of
83 which was the law in effect at the time of
reappearance or by judicial declaration but
their celebration. Under the said provision, a
by death of either spouse as in the case at
subsequent marriage contracted during the
bar, Tolentino submits: x x x. Generally if a
lifetime of the first spouse is illegal and void
subsequent marriage is dissolved by the
ab initio unless the prior marriage is first
death of either spouse, the effects of
annulled or dissolved or contracted under
dissolution of a valid marriage shall arise.
any of the 3 exceptional circumstances (7
The good faith or bad faith of either spouse
continuous years absence or if less than 7
can no longer be raised, because as in
years, generally considered to be dead and
annullable or voidable marriages, the
believed to be so by the spouse present, or
marriage cannot be questioned in a direct
disappeared under any of the circumstances
action for annulment. Such marriages can be
mentioned in Articles 390 or 391) falling
assailed only during the lifetime of the
under said Article. It bears noting that the
parties and not after the death of either, in
marriage under any of these exceptional
which case the offspring will be left as if the
cases is deemed valid “until declared null
marriage had been perfectly valid. The
and void by a competent court.” It follows
marriage cannot be impeached, and is made
that the onus probandi in these cases rests
good ab initio.
on the party assailing the second marriage.

32
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SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

Now, if the marriage is terminated by death of one of the their mutual agreement to live separately.
parties of the subsequent marriage, then what is to be
considered as valid subsisting marriage will be the marriage SC: The marriages of Angelita to Sofio and
that was the subsequent marriage and you are still Virgilio on January 11, 1971 and June 20,
presumptively dead under the law. 1985, respectively, were both celebrated
under the auspices of the Civil Code.
VALDEZ vs. REPUBLIC
G.R. No. 180863 | September 8, 2009 For purposes of the civil marriage law, it is
not necessary to have the former spouse
Here, the spouses agreed to go to their judicially declared an absentee. The
separate ways then the wife contracted a declaration of absence made in accordance
subsequent marriage of course after the with the provisions of the Civil Code has for
period required was complied with. The its sole purpose to enable the taking of the
trouble was the husband migrated to US and necessary precautions for the administration
was declined by the National Security of the of the estate of the absentee. For the
US because according to the report, the wife celebration of civil marriage, however, the
was still validly married and the marriage law only requires that the former spouse has
was bigamous. The wife now filed a petition been absent for 7 consecutive years at the
for declaration of presumptive death. it was time of the 2nd marriage, that the spouse
denied by the lower court because according present does not know his or her former
to the lower court, the petitioner has no spouse to be living, that such former spouse
well-founded belief that the husband is is generally reputed to be dead and the
already dead. Remember that they agreed to spouse present so believes at the time of the
separate in 1975. She contracted another celebration of the marriage.
marriage in 1985. So the SC ruled that the
petitioner has indeed no well-founded belief Under the Civil Code, the presumption of
that the spouse is already dead, but the death is established by law and no court
court held that there was no need for the declaration is needed for the presumption to
wife to obtain a decree of presumptive death arise. Since death is presumed to have taken
because the period under Article 390 has place by the 7th year of absence, Sofio is to
already been fully satisfied. There is nothing be presumed dead starting October 1982.
in the Civil Code that requires a declaration
of the presumptive death for the spouse SANTOS v. SANTOS
present to contract a subsequent valid GR#187061 | October 8, 2014
marriage. It was sufficient because the law Now, what if the petitioner acted in bad
itself provides for the presumption of death faith?
so there was no need to obtain a decree of
presumptive death. In this case, the husband filed a petition for
the declaration of presumptive death
Sofio, married to Angelita, disappeared in claiming that the wife disappeared and
1972. He returned in 1975 and the spouses according to him, they are residents of
agreed to separate and executed a Tarlac and because their business did not
document to that effect. That was the last succeed, the wife insisted that she worked in
time Angelita saw Sofio. After that she did another country as a kasambahay. He said,
not hear any news of Sofio, his whereabouts “actually I opposed the decision of my wife
or whether he was alive or not. to go to Hong Kong to work as kasambahay,
but she insisted and now I could no longer
Believing that Sofio is already dead, Angelita contact her and that’s why I filed this
contracted a subsequent marriage in 1985. petition.”
Subsequently, however, Virgilio’s (Angelita’s
2nd husband) application for naturalization The court granted the petition and then he
filed with the United States Department of contracted another marriage. The decision
Homeland Security was denied because became final and executory. A year after,
Angelita’s marriage to Sofio was subsisting. the wife appeared and filed a petition for
She then filed a petition seeking for the annulment of judgment of the decision
declaration of presumptive death of Sofio. granting the petition of presumptive death
claiming that there was an intrinsic fraud
The RTC denied the petition contending that employed by the petitioner. According to
by petitioner’s own admission, she did not her, “I never disappeared. We were never
try to find her husband anymore in light of

33
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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

residents of Tarlac City. I am residing in claimed that he had exerted efforts to locate
Quezon City. The petition was in bad faith.” Celerina, asking her whereabouts from her
parents, relatives and friends, but no one
The lower court denied the petition claiming
gave him any information.
that annulment judgment is not a proper
remedy. Under Art. 42, all she has to do is to Celerina learned of Ricardo’s petition a year
execute an Affidavit of Reappearance as later. She filed a petition for annulment of
required by law. She insisted, “no! if I will judgment before the CA on grounds of
execute that, then I am confirming the extrinsic fraud and lack of jurisdiction. She
validity of the subsequent marriage and all posits that she was deprived of her day in
the effects mentioned in Article 43 will be court when Ricardo despite knowledge of
effective. Meaning to say, if there are her true residence, misrepresented that she
children, then the children will be legitimate! was a Tarlac City resident when actually she
And the properties acquired during their had been residing in Neptune Extension,
union will be governed not by 147 or 148 but Congressional Ave., Quezon City since 1989
either by Article 104 or 129 depending on until Ricardo left in May 2008. That she has
the property regime. So, I will not accept never been a resident of Tarlac nor has she
that because that was really obtained in bad worked as a domestic helper abroad and
faith on the part of my husband!” neither has she been absent for 12 years, in
fact it was Ricardo who left the conjugal
SC said, she is correct. The proper remedy is
dwelling and cohabited with another woman.
the annulment of judgment. There was really
an intrinsic fraud employed by the husband The CA dismissed Celerina’s petition for
when he filed a petition for declaration of being a wrong mode of remedy. The CA held
presumptive death. that the proper remedy was to file a sworn
statement before the civil registry declaring
So to terminate the subsequent marriage,
her reappearance in accordance with Article
the law provides that the reappearing
42 of the Family Code. But Celerina
spouse must execute an Affidavit of
contends that reappearance is not a
Reappearance and there must be submission
sufficient remedy because it will only
of a copy thereof on the Office of the Civil
terminate the subsequent marriage but not
Registrar of the place where the parties to
nullify the effects of the declaration of her
the subsequent marriage are residing and
presumptive death and the subsequent
copy furnished the spouses to the
marriage.
subsequent marriage. This was emphasized
by the Supreme Court in the case of Santos SC: Annulment of judgment is the remedy
vs. Santos. So non-compliance, mere when the Regional Trial Court’s judgment,
execution, will not terminate because the order or resolution has become final, and
law further required that you have to the “remedies of new trial, appeal, petition
register this and give a copy to the parties to for relief (or other appropriate remedies) are
the subsequent marriage to effectively no longer available through no fault of the
terminate that subsequent marriage. petitioner. The grounds for annulment of
judgment are extrinsic fraud and lack of
In fact, if you read the law, there is no
jurisdiction. For fraud to become a basis for
requirement that it must be the reappearing
annulment of judgment, it has to be
spouse that must execute that affidavit
extrinsic or actual. Extrinsic fraud as defined
because what it says “any party interested”
by the Court in Stilianopulos v. City of
so it may be the heirs. So that can be dine
Legaspi (374 Phil. 879) is when a litigant
by the heirs not necessarily the reappearing
commits acts outside of the trial which
spouse.
prevents a party from having a real contest,
or from presenting all his case, such that
Sometime July 2007, Ricardo obtained a there is no fair submission of the
decree of presumptive death from the court, controversy.
12 years after his wife Celerina allegedly
disappeared from their residence in Tarlac A subsequent marriage contracted in bad
City. He alleged that Celerina insisted that faith, even if it was contracted after a court
she be allowed to work as domestic helper declaration of presumptive death, lacks the
in Hongkong after their buy and sell requirement of a well-founded belief that
business floundered. She left Tarlac in April the spouse is already dead. The first will be
1995 and was never heard from again. He considered as having been validly
terminated. Marriages contracted prior to
34
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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

the valid termination of a subsisting August 17 (RDatukon, CBRemoroza, KDelaCruz)


marriage are generally considered bigamous
Article 43 of the Family Code refers to the effects of the
and void. Only a subsequent marriage
reappearance of the absentee spouse. After the absentee
contracted in good faith is protected by law.
spouse executed the affidavit of reappearance and furnishing a
Celerina is correct in her contention that copy thereof to the office of local civil registrar in the place
reappearance is not a sufficient remedy. If it where the parties to the subsequent marriage are residing;
is terminated by mere reappearance, the Copy furnished the parties to the subsequent marriage.
children of the subsequent marriage Although the execution of the affidavit of reappearance may
conceived before the termination shall be also be done by an interested party so the heir of the
considered legitimate. Moreover, a judgment reappearing spouse, the interested party may execute an
declaring presumptive is a defense against affidavit instead of the reappearing spouse.
prosecution for bigamy.
Article 43 would be the effects –
For the purpose of not only terminating the
(1) The children of the subsequent marriage conceived prior
subsequent marriage but also nullifying the
to its termination shall be considered legitimate.
effects of the declaration pf presumptive
death and the subsequent marriage, mere (2) The absolute community of property or the conjugal
filing of reappearance would not suffice. partnership, as the case may be, shall be dissolved and
liquidated, but if either spouse contracted said marriage in
Now we go to Article 43, with the effects of termination of bad faith, his or her share of the net profits of the
subsequent marriage upon reappearance of absentee spouse. community property or conjugal partnership property shall
be forfeited in favor of the common children or, if there
Art. 43. The termination of the subsequent marriage referred are none, the children of the guilty spouse by a previous
to in the preceding Article shall produce the following effects: marriage or in default of children, the innocent spouse.

(1) The children of the subsequent marriage conceived prior The forfeiture cannot be the entire share of the spouse
to its termination shall be considered legitimate; who acted in bad faith but only the share in the net
profits. Now the net profits as defined Article 102 (4)
(2) The absolute community of property or the conjugal refers to the increase in value between the market value
partnership, as the case may be, shall be dissolved and at the time of the celebration of the marriage and the
liquidated, but if either spouse contracted said marriage market value at the time of the termination of the
in bad faith, his or her share of the net profits of the marriage. So what will only be forfeited will be not the
community property or conjugal partnership property entire share of the guilty spouse but only the share in the
shall be forfeited in favor of the common children or, if net profits.
there are none, the children of the guilty spouse by a
previous marriage or in default of children, the innocent To whom it will pertain? It will pertain first to the common
spouse; xxx children. In the absence of the common children then, it
will go to the children of the guilty spouse from a previous
marriage and the children must be legitimate. In the
This is what Mrs. Santos wanted to avoid.
absence of the legitimate children of the guilty spouse, it
will be given to the innocent spouse.
(3) Donations by reason of marriage shall remain valid,
except that if the donee contracted the marriage in bad (3) Donations by reason of marriage shall remain valid, except
faith, such donations made to said donee are revoked by that if the donee contracted the marriage in bad faith,
operation of law; such donations made to said donee are revoked by
operation of law.
(4) The innocent spouse may revoke the designation of the
other spouse who acted in bad faith as beneficiary in any Unlike that of Art 86 where the law provides “may be
insurance policy, even if such designation be stipulated as revoked”. Here it is by operation of law. It is by operation
irrevocable; and of law if the donor is the innocent spouse otherwise, if it is
a third person then, we go to Art 86 – may be revoked.
(5) The spouse who contracted the subsequent marriage in But if the donor is the innocent spouse himself or herself,
bad faith shall be disqualified to inherit from the innocent it is revoked by operation of law.
spouse by testate and intestate succession. (n)
(4) The innocent spouse may revoke the designation of the
other spouse who acted in bad faith as beneficiary in any
I want you to memorize all these because they are the same
insurance policy, even if such designation be stipulated as
under Article 45 and Article 40, referring to the subsequent
irrevocable; and
void marriage. Let’s call it a night.

35
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SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

(5) The spouse who contracted the subsequent marriage in commits acts outside of the trial which
bad faith shall be disqualified to inherit from the innocent prevents a party from having a real contest,
spouse by testate and intestate succession. or from presenting all of his case, such that
there is no fair submission of the
Art. 44. If both spouses of the subsequent marriage acted in controversy.
bad faith, said marriage shall be void ab initio and all donations This court recognized the conditional nature
by reason of marriage and testamentary dispositions made by of reappearance as a cause for terminating
one in favor of the other are revoked by operation of law. (n) the subsequent marriage in Social Security
System v. Vda. de Bailon. This court
Cases involving ART 41: noted that mere reappearance will not
terminate the subsequent marriage even if
SANTOS v SANTOS
the parties to the subsequent marriage were
GR No. 187061 | October 8, 2014
notified if there was "no step . . . taken to
The execution of the affidavit of terminate the subsequent marriage, either
reappearance rather it is an annulment of by [filing an] affidavit [of reappearance] or
judgment because the husband obtained a by court action[.]" "Since the second
decree of presumptive death in bad faith. marriage has been contracted because of a
She really did not disappear instead it is the presumption that the former spouse is dead,
husband who left the conjugal home. Then, such presumption continues inspite of the
file this petition for declaration of spouse's physical reappearance, and
presumptive death of the wife. by fiction of law, he or she must still be
regarded as legally an absentee until the
According to the SC, annulment of judgment
subsequent marriage is terminated as
by reason of extrinsic fraud is the proper
provided by law."
remedy not the execution of affidavit of
reappearance because if the reappearing The choice of the proper remedy is also
spouse would merely execute the affidavit of important for purposes of determining the
reappearance then, all the consequences status of the second marriage and the
mentioned in Art 43 shall govern. But if there liabilities of the spouse who, in bad faith,
is annulment of judgment by reason of claimed that the other spouse was absent.
extrinsic fraud then, the property regime of
A subsequent marriage contracted in bad
the spouses to the subsequent marriage
faith, even if it was contracted after a court
shall be governed by Art 148 and the
declaration of presumptive death, lacks the
children shall likewise be illegitimate. So
requirement of a well-founded belief that the
that’s the difference between the effects of
spouse is already dead. The first marriage
Art 43 where there is bad faith on the part of
will not be considered as. validly terminated.
the spouse present in obtaining a decree of
Marriages contracted prior to the valid
presumptive death.
termination of a subsisting marriage are
generally considered bigamous and
Annulment of judgment is the remedy when void. Only a subsequent marriage contracted
the Regional Trial Court's judgment, order,
in good faith is protected by law.
or resolution has become final, and the
"remedies of new trial, appeal, petition for Therefore, the party who contracted the
relief (or other appropriate remedies) are no subsequent marriage in bad faith is also not
longer available through no fault of the immune from an action to declare his
petitioner." subsequent marriage void for being
bigamous. The prohibition against marriage
The grounds for annulment of judgment are during the subsistence of another marriage
extrinsic fraud and lack of jurisdiction. This still applies.
court defined extrinsic fraud in Stilianopulos
v. City of Legaspi: Celerina does not admit to have been
absent. She also seeks not merely the
For fraud to become a basis for annulment termination of the subsequent marriage but
of judgment, it has to be extrinsic or actual. also the nullification of its effects. She
It is intrinsic when the fraudulent acts contends that reappearance is not a
pertain to an issue involved in the original sufficient remedy because it will only
action or where the acts constituting the terminate the subsequent marriage but not
fraud were or could have been litigated, It is
nullify the effects of the declaration of her
extrinsic or collateral when a litigant presumptive death and the subsequent
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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

marriage. because if it were the party who did not obtain consent, it will
be 5 years after attaining the age of 21.
Celerina is correct. Since an undisturbed
subsequent marriage under Article 42 of the
Family Code is valid until terminated, the (2) That either party was of unsound mind, unless
"children of such marriage shall be such party after coming to reason, freely cohabited
considered legitimate, and the property with the other as husband and wife; xxx
relations of the spouse[s] in such marriage (2) For causes mentioned in number 2 of Article 45,
will be the same as in valid marriages." If it by the same spouse, who had no knowledge of the
is terminated by mere reappearance, the other's insanity; or by any relative or guardian or
children of the subsequent marriage person having legal charge of the insane, at any time
conceived before the termination shall still before the death of either party, or by the insane
be considered legitimate. Moreover, a spouse during a lucid interval or after regaining
judgment declaring presumptive death is a sanity; xxx
defense against prosecution for bigamy.
Therefore, for the purpose of not only No prescriptive period. This is the unsoundness of mind or
terminating the subsequent marriage but insanity on the part of one of the parties to the marriage
also of nullifying the effects of the because Art 47 says that there can still be a petition regardless
declaration of presumptive death and the of the number of years for it says before the death of either
subsequent marriage, mere filing of an party. At anytime before the death of either party. All the rest
affidavit of reappearance would not suffice. 5 years.
Celerina's choice to file an action for
annulment of judgment will, therefore, lie. (3) That the consent of either party was obtained by
fraud, unless such party afterwards, with full
ANNULMENT OF MARRIAGE. knowledge of the facts constituting the fraud, freely
cohabited with the other as husband and wife; xxx
[These refers to voidable marriages.]
(3) For causes mentioned in number 3 of Articles 45,
Art. 45. A marriage may be annulled for any of the following by the injured party, within five years after the
causes, existing at the time of the marriage: discovery of the fraud; xxx

(1) That the party in whose behalf it is sought to have


FRAUD.
the marriage annulled was eighteen years of age or
over but below twenty-one, and the marriage was From the time of the discovery of fraud but not all
solemnized without the consent of the parents, fraud will constitute as a valid ground for annulment
guardian or person having substitute parental of marriage, for purposes of annulment we go to Art
authority over the party, in that order, unless after 46 where the enumeration is EXCLUSIVE.
attaining the age of twenty-one, such party freely
cohabited with the other and both lived together as Art. 46. Any of the following circumstances shall
husband and wife; xxx constitute fraud referred to in Number 3 of the
preceding Article:

Art. 47. The action for annulment of marriage must be filed (1) Non-disclosure of a previous conviction
by the following persons and within the periods indicated by final judgment of the other party of a
herein: crime involving moral turpitude;

(1) For causes mentioned in number 1 of Article 45 by (2) Concealment by the wife of the fact that
the party whose parent or guardian did not give his or at the time of the marriage, she was
her consent, within five years after attaining the age pregnant by a man other than her husband;
of twenty-one, or by the parent or guardian or person (3) Concealment of sexually transmissible
having legal charge of the minor, at any time before disease, regardless of its nature, existing at
such party has reached the age of twenty-one; xxx the time of the marriage; or
(4) Concealment of drug addiction, habitual
The period within which to file the petition for annulment, it
alcoholism or homosexuality or lesbianism
will depend as to who would file the annulment. If it were the
existing at the time of the marriage.
guardian or the parent or the person exercising substitute
parental authority then, any time before the party who did not No other misrepresentation or deceit as to character,
obtain consent reaches the age of 21. So the period is shorter health, rank, fortune or chastity shall constitute such
fraud as will give grounds for action for the

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SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

annulment of marriage. (86a) GR No. 179620 | August 26, 2008


Evidently, no sufficient proof was presented to
46.1. When is there a crime involving moral substantiate the allegations that Manuel is a
turpitude? It would refer to crimes that will reflect the homosexual and that he concealed this to Leonida at
inherent vileness of man. the time of their marriage. The lower court
46.2. It is not the concealment of the author of the considered the public perception of Manuel's sexual
pregnancy that would constitute fraud; it is the preference without the corroboration of witnesses.
concealment of the fact of pregnancy because if the Also, it took cognizance of Manuel's peculiarities and
future wife would say “I am pregnant” there is no interpreted it against his sexuality.
concealment of the fact of pregnancy only that you Even assuming, ex gratia argumenti, that Manuel is a
are not the author of pregnancy. homosexual, the lower court cannot appreciate it as a
What would be the recourse of the husband in the ground to annul his marriage with Leonida. The law is
event that he will find out he is not the father of the clear - a marriage may be annulled when the consent
child? IMPUGNING THE LEGITIMACY OF THE CHILD of either party was obtained by fraud, such as
within the period provided for by law. concealment of homosexuality. Nowhere in the said
decision was it proven by preponderance of evidence
46.3. SEXUALLY TRANSMISSIBLE DISEASE. that Manuel was a homosexual at the onset of his
marriage and that he deliberately hid such fact to his
Different from the ground mentioned in Art 45
wife. It is the concealment of homosexuality, and not
because in Art 45, the STD must be serious and
homosexuality per se, that vitiates the consent of the
appear to be incurable.
innocent party. Such concealment presupposes bad
Here, as to constitute fraud, it is regardless of its faith and intent to defraud the other party in giving
nature and it was concealed because there are consent to the marriage.
persons afflicted with STDs who are carriers
Consent is an essential requisite of a valid marriage.
(asymptomatic carrier) so regardless of its nature
To be valid, it must be freely given by both parties.
existing at the time of marriage.
An allegation of vitiated consent must be proven by
46.4. DRUG ADDICTION, HABITUAL ALCOHOLISM, preponderance of evidence. The Family Code has
HOMOSEXUALITY, LESBIANISM. enumerated an exclusive list of
circumstances constituting fraud. Homosexuality per
Precisely the case of: Almelor vs. RTC of Las
se is not among those cited, but its concealment.
Piñas, where the wife initially filed a petition for
declaration of nullity of marriage under Art 36 To reiterate, homosexuality per se is only a ground
claiming that the husband is psychologically for legal separation. It is its concealment that serves
incapacitated to comply with the essential marital as a valid ground to annul a marriage. Concealment
obligations of marriage on the ground of in this case is not simply a blanket denial, but one
homosexuality. that is constitutive of fraud. It is this fundamental
element that respondent failed to prove.
Now the RTC instead of deciding the petition on
merits instead on its own annulled the marriage on
the ground of homosexuality. Of course the husband
files this appeal up to the Supreme Court.
Article 45. xxx
According to the SC, the RTC should have first
decided on the petition for declaration of nullity and (4) That the consent of either party was obtained by
because it is based on Art 36 and it was not proven force, intimidation or undue influence, unless the
that the husband was suffering from psychological same having disappeared or ceased, such party
incapacity. Then, it should have outright dismissed thereafter freely cohabited with the other as husband
the petition. Assuming indeed that the husband is a and wife; xxx
homosexual but it is not homosexuality per se that Article 47. xxx
would be a ground for annulment of marriage. It
should be read in conjunction with Art 46 (4) that it is (4) For causes mentioned in number 4 of Article 45,
concealment of homosexuality that would be a proper by the injured party, within five years from the time
ground for annulment of marriage based on fraud in the force, intimidation or undue influence disappeared
relation to Art 46(4). (Because according to the wife, or ceased; xxx
he saw her husband kissing another male doctor and
he is keeping graphic materials etc.) Vitiation of consent other than fraud so that would be FORCE,
INTIMIDATION or UNDUE INFLUENCE. The 5-year period is
ALMELOR vs RTC of LAS PIÑAS counted from the cessation of any of the vices of consent.

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SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

transpired in the court a quo as shown by


(5) That either party was physically incapable of the records. The records show that for the
consummating the marriage with the other, and such petitioner’s failure to file an answer to the
incapacity continues and appears to be incurable; or complaint, the trial court granted the
xxx motion of the respondent herein to declare
(5) For causes mentioned in number 5 and 6 of Article her in default. The public prosecutor
45, by the injured party, within five years after the condoned the acts of the trial court when
marriage. (87a) he interposed no objection to the motion of
the respondent. The trial court forthwith
received the evidence of the respondent
Physical incapacity of consummating the marriage. Do you
ex-parte and rendered judgment against
remember the case of Chi Ming Tsoi? There is no
the petitioner without a whimper of protest
consummation of the marriage.
from the public prosecutor. The actuations
Likewise sterility is not also a ground for annulment. of the trial court and the public prosecutor
Remember in relation with this is the Doctrine of Triennial are in defiance of Article 48 of the Family
Cohabitation where the wife is still a virgin after 3 years, the Code, which reads:
husband is presumed to be impotent. Vaginismus is an
Article 48. In all cases of annulment or
incurable nervous disorder that would render sexual
declaration of absolute nullity of marriage,
intercourse very painful so there can be no consummation of
the Court shall order the prosecuting
marriage by affliction of this particular disorder. Impotency on
attorney or fiscal assigned to it to appear
the part of the husband, virginity on the part of the wife.
on behalf of the State to take steps to
prevent collusion between the parties and
(6) That either party was afflicted with a sexually- to take care that evidence is not fabricated
transmissible disease found to be serious and appears or suppressed.
to be incurable.
In the cases referred to in the preceding
The STD which is serious and appears to be incurable. In both, paragraph, no judgment shall be based
5 years from the celebration of the marriage. upon a stipulation of facts or confession of
judgment.
Villanueva vs. CA
The trial court and the public prosecutor
Where the petition for annulment was on the also ignored Rule 18, Section 6 of the 1985
grounded on the fact of absence of Rules of Court (now Rule 9, Section 3[e] of
cohabitation between the husband and the the 1997 Rules of Civil Procedure) which
wife, the SC says NO. It is not a ground for provides:
annulment there is nothing under the law
that says that the fact of the parties not Sec. 6. No defaults in actions for
living together as husband and wife is a annulment of marriage or for legal
ground for annulment. separation.— If the defendant in an action
for annulment of marriage or for legal
separation fails to answer, the court shall
Art. 48. In all cases of annulment or declaration of absolute order the prosecuting attorney to
nullity of marriage, the Court shall order the prosecuting investigate whether or not a collusion
attorney or fiscal assigned to it to appear on behalf of the between the parties exits, and if there is no
State to take steps to prevent collusion between the parties collusion, to intervene for the State in order
and to take care that evidence is not fabricated or suppressed. to see to it that the evidence submitted is
In the cases referred to in the preceding paragraph, no not fabricated.
judgment shall be based upon a stipulation of facts or A grant of annulment of marriage or legal
confession of judgment. (88a) separation by default is fraught with the
danger of collusion. Hence, in all cases for
annulment, declaration of nullity of
marriage and legal separation, the
ANCHETA vs ANCHETA prosecuting attorney or fiscal is ordered to
GR No. 145370 | March 4, 2004 appear on behalf of the State for the
purpose of preventing any collusion
The action in Rule 47 of the Rules of Court
between the parties and to take care that
does not involve the merits of the final
their evidence is not fabricated or
order of the trial court. However, we
suppressed. If the defendant-spouse fails
cannot but express alarm at what
to answer the complaint, the court cannot
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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

declare him or her in default but instead,


should order the prosecuting attorney to Art. 52. The judgment of annulment or of absolute nullity of
determine if collusion exists between the the marriage, the partition and distribution of the properties of
parties. The prosecuting attorney or fiscal the spouses and the delivery of the children's presumptive
may oppose the application for legal legitimes shall be recorded in the appropriate civil registry and
separation or annulment through the registries of property; otherwise, the same shall not affect
presentation of his own evidence, if in his third persons. (n)
opinion, the proof adduced is dubious and
fabricated. In order for the parties to that annulled marriage to contract a
subsequent valid marriage, there must be compliance with Art
52.
1. You have to have the decree of nullity or annulment
Art. 50. The effects provided for by paragraphs (2), (3), (4) registered with the appropriate civil registry.
and (5) of Article 43 and by Article 44 shall also apply in the
proper cases to marriages which are declared ab initio or 2. You have to dissolve and liquidate the absolute
annulled by final judgment under Articles 40 and 45. community or conjugal partnership,

The final judgment in such cases shall provide for the 3. There must be delivery of the children’s presumptive
liquidation, partition and distribution of the properties of the legitime.
spouses, the custody and support of the common children, and Otherwise, non-compliance with this provision by either of the
the delivery of third presumptive legitimes, unless such parties of the marriage that has been annulled or declared
matters had been adjudicated in previous judicial proceedings. void, that subsequent marriage will be void under Art 53.
All creditors of the spouses as well as of the absolute What will consist of the children’s presumptive legitime?
community or the conjugal partnership shall be notified of the Answered by the SC in the case of Noveras vs Noveras.
proceedings for liquidation.
In the partition, the conjugal dwelling and the lot on which it is NOVERAS vs NOVERAS
situated, shall be adjudicated in accordance with the provisions GR No. 188289| August 20, 2014
of Articles 102 and 129. Under the first paragraph of Article 888 of
the Civil Code, "(t)he legitime of legitimate
In the event of Annulment, what are the effects? children and descendants consists of one-
half or the hereditary estate of the father
We have the same effects as that of Art 43 – dissolution,
and of the mother." The children arc
donation by reason of marriage, paragraphs 2, 3, 4 and 5 of
therefore entitled to half of the share of
Art 43 and Art 44 shall also apply in proper cases to marriages
each spouse in the net assets of the
which are void ab initio under Art 40.
absolute community, which shall be
Remember in Art 40, there are 2 void marriages and one of annotated on the titles/documents covering
those marriages instead of being governed by Art 147 or 148 the same, as well as to their respective
in relation to Art 43 (2) refers to the dissolution of either of the shares in the net proceeds from the sale of
absolute community or the conjugal partnership. So which of the Sampaloc property including the
the void marriages under Art 40 in the event of termination the receivables from Sps. Paringit in the
property regime shall be dissolved in accordance with the amount of P410,000.00. Consequently,
provisions of either the absolute community or conjugal David and Leticia should each pay them the
partnership? amount of P520,000.00 as their
presumptive legitimes therefrom.
In Art 50 speaks not only of Art 45 that would refer to
marriages to that are voidable (valid until annulled). It also
includes therein Art 40 but which of the 2 void marriages that
this is applied, this is answered by the SC in the cases of
Valdez vs RTC Br 102 of Quezon City and Buenaventura Art. 54. Children conceived or born before the judgment of
vs CA. It actually refers to the subsequent void marriage annulment or absolute nullity of the marriage under Article 36
which is void due to the absence of nullity of the previous void has become final and executory shall be considered legitimate.
marriage. Children conceived or born of the subsequent marriage under
Article 53 shall likewise be legitimate.
So this is one exception whereby in the event of the
termination of that marriage, the property regime will not be
Art 54 provides for the exception to the general rule that
governed by Art 147 and 148 rather it will be govern by Art
children that are born outside of a valid marriage are supposed
102 on absolute community or 129 on conjugal partnership of
to be illegitimate. The exceptions are –
gains.

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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

(1) Children who are born under of Art 36 where the child by nature or by adoption.
marriage is declared void by reason of psychological
incapacity. The children born out of that void There are now already 10, it used to be 3.
marriage are still legitimate.
 Adultery on the part of the wife
(2) Void marriages under Art 53. Children are also
legitimate.  Concubinage on the part of the husband
In annulment of marriage, the consent of the parents under  Attempt on the life of one spouse against the life of
number 1 cannot be given afterwards. If the party who did not the other spouse.
obtain consent desires to file a petition for annulment of
That was under the New Civil Code. There are now already ten
marriage. Consent cannot be given after the celebration of the
(10) GROUNDS FOR LEGAL SEPARATION.
marriage.
Likewise, on number 6, under sexually transmissible disease be Art. 58. An action for legal separation shall in no case be tried
restricted to the fact that the transmissible disease appears to before six months shall have elapsed since the filing of the
be serious. Good faith is not a proper defense. petition.
That already came out in the bar. Absence of knowledge that Art. 59. No legal separation may be decreed unless the Court
he is afflicted. has taken steps toward the reconciliation of the spouses and is
fully satisfied, despite such efforts, that reconciliation is highly
improbable.
TITLE II
LEGAL SEPARATION The court is enjoined from immediately hearing the petition for
legal separation unless 6 months have elapsed. The purpose of
which is to allow the spouses to reconcile. But, if the ground
So, going back to Article 55. for legal separation is based on any of the violence mentioned
in RA 9262, then the court need not observe Article 58. The
Art. 55. A petition for legal separation may be filed on any of court must immediately hear the petition for legal separation.
the following grounds:
The grounds for the court to deny is found in Article 56.
(1) Repeated physical violence or grossly abusive
conduct directed against the petitioner, a common Art. 56. The petition for legal separation shall be denied on
child, or a child of the petitioner; any of the following grounds:
(2) Physical violence or moral pressure to compel the (1) Where the aggrieved party has condoned the
petitioner to change religious or political affiliation; offense or act complained of;
(3) Attempt of respondent to corrupt or induce the (2) Where the aggrieved party has consented to the
petitioner, a common child, or a child of the commission of the offense or act complained of;
petitioner, to engage in prostitution, or connivance in
such corruption or inducement;
So, it’s consent. Does consent come before or after? Before.
(4) Final judgment sentencing the respondent to Condonation is after.
imprisonment of more than six years, even if
pardoned; (3) Where there is connivance between the parties in
(5) Drug addiction or habitual alcoholism of the the commission of the offense or act constituting the
respondent; ground for legal separation;

(6) Lesbianism or homosexuality of the respondent; (4) Where both parties have given ground for legal
separation;
(7) Contracting by the respondent of a subsequent
bigamous marriage, whether in the Philippines or (5) Where there is collusion between the parties to
abroad; obtain decree of legal separation; or

(8) Sexual infidelity or perversion; (6) Where the action is barred by prescription.

(9) Attempt by the respondent against the life of the


Prescription. When do you count the prescriptive period? From
petitioner; or
the discovery, occurrence of the cause. 5 years from the
(10) Abandonment of petitioner by respondent occurrence.
without justifiable cause for more than one year.
For purposes of this Article, the term "child" shall include a Art. 57. An action for legal separation shall be filed within five

41
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SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

years from the time of the occurrence of the cause. Article 213 that no child below seven years must be separated
from the mother unless the court finds that the mother is not
So, those are the grounds for denial of the petition. fit to have custody of the child.

What would be the effects in the event of the grant of the The disqualification of the guilty spouse to inherit from the
decree? In fact, at the time of the filing, the spouses are innocent spouse in intestate succession. If ever there are
already allowed to live separately from each other. So, as soon provisions in the will in favor of the guilty spouse, it is revoked
as the petition is filed, they are already allowed to live by operation of law.
separately from each other. So, what happens to donations by reason of marriage or the
designation?
Art. 61. After the filing of the petition for legal separation, the
spouses shall be entitled to live separately from each other. Art. 64. After the finality of the decree of legal separation,
The court, in the absence of a written agreement between the the innocent spouse may revoke the donations made by him
spouses, shall designate either of them or a third person to or by her in favor of the offending spouse, as well as the
administer the absolute community or conjugal partnership designation of the latter as beneficiary in any insurance policy,
property. The administrator appointed by the court shall have even if such designation be stipulated as irrevocable. The
the same powers and duties as those of a guardian under the revocation of the donations shall be recorded in the registries
Rules of Court. of property in the places where the properties are located.
Alienations, liens and encumbrances registered in good faith
before the recording of the complaint for revocation in the
In case the court grants the petition, these are now the registries of property shall be respected. The revocation of or
effects. change in the designation of the insurance beneficiary shall
take effect upon written notification thereof to the insured.
Art. 63. The decree of legal separation shall have the
following effects: The action to revoke the donation under this Article must be
brought within five years from the time the decree of legal
(1) The spouses shall be entitled to live separately separation become final.
from each other, but the marriage bonds shall not be
severed; This becomes optional on the part of the innocent spouse. In
(2) The absolute community or the conjugal fact the innocent spouse is given only 5 years from the grant
partnership shall be dissolved and liquidated but the of the decree of legal separation whether or not to revoke the
offending spouse shall have no right to any share of donation by reason of marriage or to revoke the designation of
the net profits earned by the absolute community or the guilty spouse as beneficiary in the insurance policy.
the conjugal partnership, which shall be forfeited in This is the difference between Art 43 involving annulment of
accordance with the provisions of Article 43(2); marriage and Art 40 involving the subsequent void marriage
(3) The custody of the minor children shall be because here, the revocation is dependent upon the will
awarded to the innocent spouse, subject to the of the innocent spouse.
provisions of Article 213 of this Code; and So in the event of RECONCILATION, the following are the
(4) The offending spouse shall be disqualified from effects:
inheriting from the innocent spouse by intestate
succession. Moreover, provisions in favor of the Art. 65. If the spouses should reconcile, a corresponding joint
offending spouse made in the will of the innocent manifestation under oath duly signed by them shall be filed
spouse shall be revoked by operation of law. with the court in the same proceeding for legal separation. (n)
Art. 62. During the pendency of the action for legal separation, Art. 66. The reconciliation referred to in the preceding Articles
the provisions of Article 49 shall likewise apply to the support shall have the following consequences:
of the spouses and the custody and support of the common
children (1) The legal separation proceedings, if still pending,
shall thereby be terminated at whatever stage; and
Take note that nothing in the law grants the innocent spouse (2) The final decree of legal separation shall be set
the right to be supported by the guilty spouse. This must be aside, but the separation of property and any
prayed for. forfeiture of the share of the guilty spouse already
effected shall subsist, unless the spouses agree to
Aside from living separately from each other. The marriage revive their former property regime.
bond is not terminated. There is also this requirement on
having the absolute community or conjugal partnership The court's order containing the foregoing shall be recorded in
liquidated. The custody of the minor children shall be allowed the proper civil registries. (108a)
to the innocent spouse subject of course to the provision of
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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

Art. 67. The agreement to revive the former property regime When the marriage was celebrated under
referred to in the preceding Article shall be executed under the civil code. The default property is
oath and shall specify: conjugal partnership of gains. But the
decree of legal separation was granted
(1) The properties to be contributed anew to the under the Family Code. If you remember Art
restored regime; 105 of your FC, the conjugal partnership
(2) Those to be retained as separated properties of provisions in the FC shall also apply to
each spouse; and existing Conjugal partnerships prior to the
effectivity of FC. So it is given retroactive
(3) The names of all their known creditors, their effect provided there is no vested rights that
addresses and the amounts owing to each. will be prejudiced.
The agreement of revival and the motion for its approval shall So the husband said, aside from questioning
be filed with the court in the same proceeding for legal what constitutes the net profits, because the
separation, with copies of both furnished to the creditors AC is different from CP, and moreover
named therein. After due hearing, the court shall, in its order, according to the husband, vested rights will
take measure to protect the interest of creditors and such be prejudiced if provisions of the FC will be
order shall be recorded in the proper registries of properties. given retroactive application.
The recording of the ordering in the registries of property shall The net profits of the CPG are all the fruits
not prejudice any creditor not listed or not notified, unless the of the separate property of the spouses and
debtor-spouse has sufficient separate properties to satisfy the the products of their labor and industry. But
creditor's claim. for purposes of defining what constitutes net
profits, again you go to Art. 102 par (4). But
If it is still pending before the court, it is terminated at the net profits definition is this one which is
whatever stage it is found. If already granted, it will be set given by the SC, all the fruits of the separate
aside. But forfeiture of the share of the guilty spouse shall property of the spouses and the products of
subsist unless there is a revival of the former property regime. their labor and industry. It shall refer to the
But this is not actually 100% revival of the former property fruits and what about the allegation on
regime. Because the spouses have to agree what would be vested rights?
contributed anew to the revived property regime. Because
According to SC, on the issue of the
those which were not agreed upon shall be his or her exclusive
retroactive application that can affect vested
property.
rights already acquired, The concept of
In fact, in the case of: vested right is a consequence of
the constitutional guaranty of due
Pala vs. Heirs
process that expresses a present fixed
This is one of those allowed to modify the interest which in right reason and natural
property regime during the marriage. There justice is protected against arbitrary state
are 5 ways of modifying the property action; it includes not only legal or equitable
regime, it was enumerated in this case. title to the enforcement of a demand but
also exemptions from new obligations
SIOCHI vs. GOZON created after the right has become
vested. Rights are considered vested when
Issue: What will be forfeited? Is it the the right to enjoyment is a present interest,
entire share of the guilty spouse? absolute, unconditional, and perfect or fixed
Held: Of course not, it is only the share in and irrefutable.
the net profits of either the community In the case at bar, the husband does not get
property or conjugal partnership. anything. Because all the properties were
Net profit as defined by Art. 102 par (4) of acquired during the marriage. The share of
the FC. It is the increase in value of the the husband is given to the children.
market value of the community property at
the time of celebration of marriage and the Now let’s go to the rights and obligations between the
market value at the time of dissolution of husband and the wife. The first, this is one of the essential
the marriage. That will constitute the net martial obligations of marriage.
profit.

QUIAO vs QUIAO
TITLE III

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SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

RIGHTS AND OBLIGATIONS BETWEEN Support and maintenance now becomes the obligation of both
HUSBAND AND WIFE the husband and the wife unlike before when the husband is
supposed to only bring home the bacon and the wife stays in
Rights and obligations. the house attends to the needs of the children as well as the
household. The husband is the king of the house no more.
Art. 68. The husband and wife are obliged to live together, Take note of the law that says that the spouses in the event
observe mutual love, respect and fidelity, and render mutual that there is insufficiency of the community property, the
help and support. respective exclusive property shall be liable.

Ilusorio vs Bildner Art. 73. Either spouse may exercise any legitimate profession,
occupation, business or activity without the consent of the
The wife filed before the court a petition for other. The latter may object only on valid, serious, and moral
the issuance of the writ of habeas corpus to grounds.
compel the husband to return to the
conjugal home. No court is empowered as a In case of disagreement, the court shall decide whether or not:
judicial authority to compel a husband to live
(1) The objection is proper, and
with his wife. It is a purely personal
obligation on the husband. IF he chooses not (2) Benefit has occurred to the family prior to the
to, then he cannot be compelled by any form objection or thereafter. If the benefit accrued prior to
of process. That is a matter beyond judicial the objection, the resulting obligation shall be
authority and is best left to the man and the enforced against the separate property of the spouse
woman’s free choice. who has not obtained consent.
The foregoing provisions shall not prejudice the rights of
Art. 69. The husband and wife shall fix the family domicile. In creditors who acted in good faith.
case of disagreement, the court shall decide.
The court may exempt one spouse from living with the other if If it is the husband objects, he will be liable for violation of RA
the latter should live abroad or there are other valid and 9262. In the case of disagreement, the court will decide
compelling reasons for the exemption. However, such whether the opposition of the spouses is based on serious,
exemption shall not apply if the same is not compatible with moral or legal grounds.
the solidarity of the family.
What happens if the court finds the objection is proper? To
whom does the obligations incurred by reason of the exercise
In case of disagreement, the decision of the husband will of the profession, occupation or business, then, first is if the
prevail or rather it is the court will decide. benefit accrued prior to the objection, that will be charged
Exceptions: when one is exempted from living with the other against the community property or the conjugal partnership.
spouse. Otherwise if the benefit accrued after, any obligation arising
therefrom shall be charged against the exclusive property of
Exception to the exception: when it is not compatible to the the spouse who did not obtain consent.
solidarity of the family.
So, it would appear that you really have to obtain consent.
Because if there is no consent, you will be liable for the
Art. 70. The spouses are jointly responsible for the support of
obligation, although the family benefited from such.
the family. The expenses for such support and other conjugal
obligations shall be paid from the community property and, in
the absence thereof, from the income or fruits of their
separate properties. In case of insufficiency or absence of said TITLE IV
income or fruits, such obligations shall be satisfied from the PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE
separate properties.
Art. 71. The management of the household shall be the right Chapter 1. General Provisions
and the duty of both spouses. The expenses for such Art. 74. The property relationship between husband and wife
management shall be paid in accordance with the provisions shall be governed in the following order:
of Article 70.
(1) By marriage settlements executed before the
Art. 72. When one of the spouses neglects his or her duties marriage;
to the conjugal union or commits acts which tend to bring
danger, dishonor or injury to the other or to the family, the (2) By the provisions of this Code; and
aggrieved party may apply to the court for relief.
(3) By the local custom.
Art. 75. The future spouses may, in the marriage settlements,
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SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

agree upon the regime of absolute community, conjugal A civil interdictee while deprived most of his rights is allowed
partnership of gains, complete separation of property, or any to donate his properties mortis causa, to enter into marriage
other regime. In the absence of a marriage settlement, or and allowed to execute a MS, a pre nup agreement. But the
when the regime agreed upon is void, the system of absolute law requires that in order for it to be valid, there must be a
community of property as established in this Code shall guardian. Guardian must not be the choice of the Civil
govern. Interdictee but rather it is appointed by the court. It is
required that he must be made a party thereto. That’s Art 79.
First of course is the marriage settlement executed by the Exceptions on Article 80.
parties.
In the absence of the marriage settlement, or if the marriage Art. 80. In the absence of a contrary stipulation in a
settlement is void, then it would be the provisions of the FC, marriage settlement, the property relations of the spouses
where the default property regime is the ACP and by local shall be governed by Philippine laws, regardless of the place
customs. of the celebration of the marriage and their residence. xxx

Art. 76. In order that any modification in the marriage In relation to our earlier discussion on Article 16 and 15. In the
settlements may be valid, it must be made before the absence of a stipulation in the MS, the property relations of the
celebration of the marriage, subject to the provisions of spouses shall be governed by Phil law regardless of the place
Articles 66, 67, 128, 135 and 136. of the celebration of marriage and the residence.

Art. 77. The marriage settlements and any modification The exceptions are:
thereof shall be in writing, signed by the parties and executed
before the celebration of the marriage. They shall not prejudice xxx This rule shall not apply:
third persons unless they are registered in the local civil
registry where the marriage contract is recorded as well as in (1) Where both spouses are aliens;
the proper registries of properties.
Of course they are governed by their national law.
For the marriage settlement to be valid, this must be made
before the celebration of marriage, signed by the parties and (2) With respect to the extrinsic validity of contracts affecting
in writing. The law does not require that the marriage property not situated in the Philippines and executed in the
settlement must be in public instrument. The purpose of country where the property is located; and
having it registered in the appropriate civil registry of property
is only for convenience as to affect third persons. It does not Because generally the law that will govern the property is the
affect the validity of the MS. law of the country where it is located. But when we talk about
Likewise, any modification in the marriage settlement must the extrinsic validity, it refers to the forms and solemnities of
also be made before the celebration of the marriage otherwise, the contracts, wills and other public instruments.
it will be void.
(3) With respect to the extrinsic validity of contracts entered
Except those mentioned by the SC in the case of: into in the Philippines but affecting property situated in a
EFREN PANA vs. HEIRS OF JUANITE foreign country whose laws require different formalities for its
extrinsic validity.
Where post modification of the marriage
settlement is allowed.
Remember the doctrine of the Immutability of the
Matrimonial Property Regime. That regardless of the Art. 81. Everything stipulated in the settlements or contracts
change of the nationality of the husband and the wife or both, referred to in the preceding articles in consideration of a
the original property regime will remain to subsist. future marriage, including donations between the prospective
spouses made therein, shall be rendered void if the marriage
This is different with the Immutability of the Law. Because
does not take place. However, stipulations that do not
if it is the law itself that would change the property regime,
depend upon the celebration of the marriages shall be valid.
then the spouses must change accordingly.

What are those stipulations that do not depend upon the


Art. 79. For the validity of any marriage settlement executed
celebration of marriage?
by a person upon whom a sentence of civil interdiction has
been pronounced or who is subject to any other disability, it  The promise to give support
shall be indispensable for the guardian appointed by a
competent court to be made a party thereto.  Acknowledgement by the father of the child.

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SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

So even if the marriage will not celebrated, but still since they The purpose of which is not for enforceability but for the
do not depend on the celebration of the marriage, these validity. You remember Art 1356.
stipulations are considered as valid.
Article 1356. Contracts shall be obligatory, in whatever form
they may have been entered into, provided all the essential
requisites for their validity are present. However, when the
Chapter 2. Donations by Reason of Marriage law requires that a contract be in some form in order that it
may be valid or enforceable, or that a contract be proved in a
So, in order for one to be considered as a donation by reason certain way, that requirement is absolute and indispensable.
of marriage. This must be: In such cases, the right of the parties stated in the following
article cannot be exercised.
1) Made before the celebration of marriage
2) In consideration of the marriage, and That it is valid in whatever form provided, unless form is
3) In favor of one or both future spouses. necessary for validity, enforceability or convenience. You
should remember that because of Art. 17.
Art. 82. Donations by reason of marriage are those which are Limitations of donations between future spouses.
made before its celebration, in consideration of the same, and
in favor of one or both of the future spouses. Art. 84. If the future spouses agree upon a regime other than
the absolute community of property, they cannot donate to
So I said time and again, bring your gifts before the each other in their marriage settlements more than one-fifth of
celebration of the marriage, because if you will bring it and you their present property. Any excess shall be considered void.
present it after the celebration, it ceases to be a donation by
Donations of future property shall be governed by the
reason of marriage. It becomes an ordinary donation. But,
provisions on testamentary succession and the formalities of
nonetheless, because under the FC, the formalities to be
wills.
observed by the donations by reason of marriage shall be the
formalities on ordinary donations.
They cannot give to one another more than 1/5th of their
property. In excess, it would be void.
Art. 83. These donations are governed by the rules on
ordinary donations established in Title III of Book III of the But with respect to future properties, there is no limitations.
Civil Code, insofar as they are not modified by the following But rather it would be governed by the formalities of wills.
articles.
Art. 85. Donations by reason of marriage of property subject
Which is different under the civil code, because the donations to encumbrances shall be valid. In case of foreclosure of the
will be governed by Art 1403 (2) on the statute of frauds. encumbrance and the property is sold for less than the total
Those made in the consideration of marriage, other than the amount of the obligation secured, the donee shall not be
mutual promise to marry. That is under 1403. liable for the deficiency. If the property is sold for more than
the total amount of said obligation, the donee shall be
LOCQUIAO vs VALENCIA
entitled to the excess.
SC said that it is sufficient that there is
acceptance by the spouses because there in The property is subject to an encumbrance. This is not allowed
that particular case, there was no under the Civil Code. But the FC, allows that the property
acceptance of what was donated. This subject to an encumbrance be the subject of donations by
consists of a real property. reason of marriage. Only that in the event of non-payment, by
The heirs now said that it is void because of the debtor-donor, and there is foreclosure and there is
the absence of acceptance. According to the deficiency in the foreclosure sale, the donee spouses will not
court, that they immediately possessed the be liable for the deficiency. But in case of sale and there is an
property is already sufficient. Unlike that of excess, then the spouses will be entitled to the excess.
the FC which requires now the formalities of What are those grounds that donations by reason of marriage
donation. will be revoked?
To refresh your mind:
Art. 86. A donation by reason of marriage may be revoked
1. If personal property and value exceeds 5,000 pesos, by the donor in the following cases:
it must be in writing and the acceptance must be in
writing. (1) If the marriage is not celebrated or judicially
declared void ab initio except donations made in the
2. If real property, it must be in a public instrument, the marriage settlements, which shall be governed by
acceptance must also be in a public instrument.
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SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

Article 81; xxx Article 765. The donation may also be revoked at the
instance of the donor, by reason of ingratitude in the following
If the marriage is void, the donor cannot immediately revoke cases:
the donation. Why? It should be judicially declared. There (1) If the donee should commit some offense against the
must be first a judicial declaration of nullity of the marriage person, the honor or the property of the donor, or of his wife
before the donor can revoke the donation by reason of or children under his parental authority;
marriage.
(2) If the donee imputes to the donor any criminal offense, or
(2) When the marriage takes place without the any act involving moral turpitude, even though he should
consent of the parents or guardian, as required by prove it, unless the crime or the act has been committed
law; against the donee himself, his wife or children under his
authority;
This does not require a decree of annulment by the court. (3) If he unduly refuses him support when the donee is legally
When? When the marriage is between 18-21 and no parental or morally bound to give support to the donor. (648a)
consent is obtained. There is no need for annulment.
Prohibition during the marriage.
Which is different in:
Art. 87. Every donation or grant of gratuitous advantage,
(3) When the marriage is annulled, and the donee direct or indirect, between the spouses during the marriage
acted in bad faith; shall be void, except moderate gifts which the spouses may
give each other on the occasion of any family rejoicing. The
prohibition shall also apply to persons living together as
husband and wife without a valid marriage. (133a)
(4) Upon legal separation, the donee being the
guilty spouse; Donation between spouses during the marriage is only limited.
For example, during birth anniversary. Of course, never forget
that. Forget the birth anniversary of the husband, but never
Number (4) is also the same as Article 67 where the spouse
that of the wife. There will be war. And, Valentine’s.
may or may not revoke the donation made to the guilty
spouse. It is optional. Arcaba v Tabancura
This prohibition shall also apply to persons
(5) If it is with a resolutory condition and the
living together as husband and wife without
condition is complied with;
a valid marriage.
(6) When the donee has committed an act of
What is an example of grant of gratuitous advantage?
ingratitude as specified by the provisions of the
Civil Code on donations in general The wife is the usufructuary in a contract of usufruct of a
property exclusively owned by the husband. She is to receive
What is a resolutory condition? The obligation is extinguished whatever fruits that would be derived from the property. That
upon the happening of the condition. is a grant of a gratuitous advantage.

Example: Also, in a contract of commodatum.

Negative resolutory condition – Remember the case of Central We have no problem with a direct donation. But when is it
Phil University? The non-construction of the medical building is indirect?
a negative resolutory condition. When the donation is given to the heir of the spouse not
If we talk of suspensive condition, the obligation arises upon related to the donor. An example would be, the minor child of
the happening of the condition. the done from a previous marriage. It is indirect.

Example: Why is it a violation? Because the donee-spouse is actually the


heir of the minor child. That is an indirect violation of Art 87.
Contract to Sell – The payment of the purchase price is a That would still be void.
positive suspensive condition. The full payment of the buyer
gives rise to the obligation of the seller to transfer the title of Reasons why we have Art 87:
the property to the buyer. 1) For the protection of the creditors;
When the donee has committed an act of ingratitude found in 2) To protect the weaker spouse from the domineering
Art 765 of your NCC (on what constitutes as an act of spouse; and
ingratitude).

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SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

3) To prevent any indirect modification of the marriage celebration of the marriage or acquired thereafter.
settlement.
The ACP shall consist of all property owned by the spouses at
the time of the celebration of the marriage and those acquired
thereafter subject to the following exceptions (considered as
Chapter 3. System of Absolute Community
the exclusive property of the owner-spouse):
Section 1. General Provisions
Art. 92. The following shall be excluded from the community
When shall it commence? property:
(1) Property acquired during the marriage by gratuitous title by
Art. 88. The absolute community of property between either spouse, and the fruits as well as the income thereof, if
spouses shall commence at the precise moment that the any, unless it is expressly provided by the donor, testator or
marriage is celebrated. Any stipulation, express or implied, for grantor that they shall form part of the community property;
the commencement of the community regime at any other
time shall be void. (2) Property for personal and exclusive use of either spouse.
However, jewelry shall form part of the community property;
It shall commence at the precise moment that the marriage is (3) Property acquired before the marriage by either spouse
celebrated and any agreement to the contrary is void. who has legitimate descendants by a former marriage, and the
fruits as well as the income, if any, of such property.
Art. 89. No waiver of rights, shares and effects of the
absolute community of property during the marriage can be 1) Property acquired during the marriage by
made except in case of judicial separation of property. gratuitous title by either spouse as well as the
When the waiver takes place upon a judicial separation of fruits and income therein;
property, or after the marriage has been dissolved or annulled, Except: When the donor, transferor, testator
the same shall appear in a public instrument and shall be expressly provides that the property as well as its
recorded as provided in Article 77. The creditors of the spouse income and fruits shall form part of the ACP.
who made such waiver may petition the court to rescind the
waiver to the extent of the amount sufficient to cover the 2) Property for personal use of the husband and the
amount of their credits. wife;
Except: Jewelry shall form part of the ACP.
No waiver of rights, interest or share in the ACP during the
marriage shall be valid except judicial separation of property Take note that jewelry is not qualified. Included
during the marriage. The waiver must appear in a public would be your costume jewelry kahit na walang value
instrument and must be registered with the appropriate civil kasi wala mang sinabi, diba?
registry. Did you hear about that brassiere in Japan that is
What will govern the ACP? studded with diamonds? Personal use man yan sya
but it is studded with diamonds. Kasali ba yan sya?
Art. 90. The provisions on co-ownership shall apply to the Well, if I were the husband, I will remove all the
absolute community of property between the spouses in all diamonds para masali sa ACP. Bahala na ang asawa
matters not provided for in this Chapter. (n) jan sa bra nya.
Or that underwear made of pure gold. Tanggalin mo
The provisions of the Family Code shall primarily govern and yung gold.
suppletorily, the provisions of the Civil Code on co-ownership.
So, there are so many ways of skinning the cat.
Basis: Case of Homeowners’ Savings Bank v Dairo.
3) Property acquired before the marriage brought by
the owner-spouse who has a legitimate
descendant by a former marriage including the
Section 2. What Constitutes Community Property fruits and the income.
Presumption under Art 93.
What shall it consist?
Art. 93. Property acquired during the marriage is presumed to
Art. 91. Unless otherwise provided in this Chapter or in the belong to the community, unless it is proved that it is one of
marriage settlements, the community property shall consist of those excluded therefrom.
all the property owned by the spouses at the time of the

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SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

This is actually the same with Art 116. Obligations incurred by one of the spouses without the consent
of the other only insofar as it has redounded to the benefit of
Art. 116. All property acquired during the marriage, whether the family or the ACP.
the acquisition appears to have been made, contracted or
registered in the name of one or both spouses, is presumed to
(4) All taxes, liens, charges and expenses, including
be conjugal unless the contrary is proved.
major or minor repairs, upon the community
property; xxx
(4) All taxes, liens, charges, and expenses, including
Section 3. Charges and Obligations of the Absolute major or minor repairs upon the conjugal partnership
Community property; xxx

What are those that can be charged against the ACP?


Art 94 is the same as Art 121 except No. 9 of Art 94 because
the latter is found under Art 122 of the CPG. (5) All taxes and expenses for mere preservation
made during marriage upon the separate property of
[PLEASE CROSS-REFFER Articles 94 for ACP and 121 of CPG] either spouse used by the family; xxx

Art. 94. The absolute community of property shall be liable (5) All taxes and expenses for mere preservation
for: made during the marriage upon the separate property
of either spouse; xxx
(1) The support of the spouses, their common children,
and legitimate children of either spouse; however, the Taxes and expenses for mere preservation of the exclusive
support of illegitimate children shall be governed by property of either spouse used by the family because it
the provisions of this Code on Support; xxx redounded to the benefit of the family so it can be charged
Art. 121. The conjugal partnership shall be liable for: against the ACP.

(1) The support of the spouse, their common children,


(6) Expenses to enable either spouse to commence or
and the legitimate children of either spouse; however,
complete a professional or vocational course, or other
the support of illegitimate children shall be governed
activity for self-improvement; xxx
by the provisions of this Code on Support; xxx
(6) Expenses to enable either spouse to commence or
Support of illegitimate children shall be charged against the complete a professional, vocational, or other activity
exclusive property of the parent-spouse. for self-improvement; xxx

(2) All debts and obligations contracted during the For those who are married here, this is applicable to you. Does
marriage by the designated administrator-spouse for self-improvement include botoxing or Belo-fying? Hindi yan sya
the benefit of the community, or by both spouses, or kasama ha?
by one spouse with the consent of the other; xxx But if you want to improve your skills on cooking, you can
(2) All debts and obligations contracted during the charge that against the ACP. Or if you want to improve your
marriage by the designated administrator-spouse for physical fitness, that can be charged too because that will
the benefit of the conjugal partnership of gains, or by improve your health.
both spouses or by one of them with the consent of
the other; xxx (7) Antenuptial debts of either spouse insofar as they
have redounded to the benefit of the family; xxx
Debts and obligations where there is consent from both the (7) Ante-nuptial debts of either spouse insofar as they
spouses. have redounded to the benefit of the family; xxx

(3) Debts and obligations contracted by either spouse Example is, prior to the marriage the wife and the husband
without the consent of the other to the extent that bought a property that will later on be used as the site for the
the family may have been benefited; xxx conjugal home.
(3) Debts and obligations contracted by either spouse
without the consent of the other to the extent that (8) The value of what is donated or promised by both
the family may have benefited; xxx spouses in favor of their common legitimate children
for the exclusive purpose of commencing or
completing a professional or vocational course or

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SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

other activity for self-improvement; xxx


Art 94.
(8) The value of what is donated or promised by both
xxx
spouses in favor of their common legitimate children
for the exclusive purpose of commencing or (9) Ante-nuptial debts of either spouse other than those falling
completing a professional or vocational course or under paragraph (7) of this Article, the support of illegitimate
other activity for self-improvement; and xxx children of either spouse, and liabilities incurred by either
spouse by reason of a crime or a quasi-delict, in case of
And for those of you here who are still unmarried and are absence or insufficiency of the exclusive property of the
about to take the Bar and the parents promised you SUV of debtor-spouse, the payment of which shall be considered as
your dreams, that is No. 8 advances to be deducted from the share of the debtor-spouse
upon liquidation of the community;
Article 99. xxx xxx
(9) Ante-nuptial debts of either spouse other than
those falling under paragraph (7) of this Article, the
support of illegitimate children of either spouse, and
liabilities incurred by either spouse by reason of a Art. 122. The payment of personal debts contracted by the
crime or a quasi-delict, in case of absence or husband or the wife before or during the marriage shall not be
insufficiency of the exclusive property of the debtor- charged to the conjugal properties partnership except insofar
spouse, the payment of which shall be considered as as they redounded to the benefit of the family.
advances to be deducted from the share of the
debtor-spouse upon liquidation of the community; Neither shall the fines and pecuniary indemnities imposed
and xxx upon them be charged to the partnership.
However, the payment of personal debts contracted by either
Ante-nuptial debts that did not redound to the benefit of the spouse before the marriage, that of fines and indemnities
family shall be the exclusive liability of the debtor-spouse. imposed upon them, as well as the support of illegitimate
children of either spouse, may be enforced against the
But this is different from CPG because here, it says that, in the
partnership assets after the responsibilities enumerated in the
event that the debtor-spouse’s property is insufficient to preceding Article have been covered, if the spouse who is
answer for his personal obligations such as those arising from bound should have no exclusive property or if it should be
crimes, quasi-delict, torts and support of illegitimate children, it
insufficient; but at the time of the liquidation of the
can be charged against the ACP and shall be considered as partnership, such spouse shall be charged for what has been
advances subject to the right of the ACP to demand
paid for the purpose above-mentioned.
reimbursement upon termination of the ACP. This is NOT
found in the CPG.
They are the same:
Article 94. xxx
Art. 95. Whatever may be lost during the marriage in any
(10) Expenses of litigation between the spouses game of chance, betting, sweepstakes, or any other kind of
unless the suit is found to be groundless. gambling, whether permitted or prohibited by law, shall be
borne by the loser and shall not be charged to the community
If the community property is insufficient to cover the foregoing
but any winnings therefrom shall form part of the community
liabilities, except those falling under paragraph (9), the
property.
spouses shall be solidarily liable for the unpaid balance with
their separate properties. Art. 123. Whatever may be lost during the marriage in any
game of chance or in betting, sweepstakes, or any other kind
Art 121. xxx
of gambling whether permitted or prohibited by law, shall be
(9) Expenses of litigation between the spouses unless borne by the loser and shall not be charged to the conjugal
the suit is found to groundless. partnership but any winnings therefrom shall form part of the
conjugal partnership property.
If the conjugal partnership is insufficient to cover the foregoing
liabilities, the spouses shall be solidarily liable for the unpaid
balance with their separate properties. When you win in the lotto, that will form part of the ACP or
CPG but losses will be your sole liability.
If the ACP is insufficient to cover the liabilities except No. 9,
then the exclusive properties of the spouses will be liable for
the unpaid balance. And the liability is solidary. Section 4. Ownership, Administrative, Enjoyment and
Disposition of the Community Property

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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

This is the same with Art 124. This falls under Art 96 involving a community
property. The future husband (FH) stayed in
Art. 96. The administration and enjoyment of the community the Philippines while the future wife (FW)
property shall belong to both spouses jointly. In case of stayed abroad as a domestic helper. The FH
disagreement, the husband's decision shall prevail, subject to requested the FW to send money in order to
recourse to the court by the wife for proper remedy, which purchase a parcel of land where the conjugal
must be availed of within five years from the date of the home will later on be constructed. So, she
contract implementing such decision. sent the money and got married with the FH
eventually. And they constructed the
In the event that one spouse is incapacitated or otherwise conjugal home on the lot bought by the
unable to participate in the administration of the common husband. It was bought on installment and
properties, the other spouse may assume sole powers of when the title was released, it was only
administration. These powers do not include disposition or named to the husband.
encumbrance without authority of the court or the written
consent of the other spouse. In the absence of such authority Later, she returned to where she was
or consent, the disposition or encumbrance shall be void. working. And just like any other husband, he
However, the transaction shall be construed as a continuing found it to be so lonely without the other, he
offer on the part of the consenting spouse and the third decided to take with him the other woman to
person, and may be perfected as a binding contract upon the the house. When she learned of it, she
acceptance by the other spouse or authorization by the court returned to the Philippines and filed two
before the offer is withdrawn by either or both offerors. cases – legal separation and concubinage.
During the pendency of both cases, she
Before, the property is administered by the husband under the learned of the plan of the husband to sell the
Civil Code. Now, it is both spouses jointly. But this time, in property. She informed her neighbor
case of disagreement, the husband’s decision shall prevail including the relative of the prospective
subject to the recourse of the wife to the courts. The 5-year buyer that there is this pending litigation
period is counted from the date of the contract implementing before the court and thus, advised them not
the decision. to buy the property until the cases are
resolved.
But this right granting the wife the right to go to court to
question the transaction incurred by the husband must involve Anyway, Nobleza still decided to buy the
an act of administration. This does not include acts of property because the title states that the
ownership like encumbrance or disposition. Although, there is husband was single. According to Nobleza,
a deviant decision granted by the court in the case of Villa she could be in good faith because the title
Abrille v Ravina. But we will talk about it later when we go says that the owner is single. So, the
to the CPG. presumption is it is exclusively owned by the
husband.
Acts of administration only because the disposition or
encumbrance of the ACP without the written consent or judicial The court granted the Petition for Legal
authorization of the wife is void. Separation and the decision ordered the
parties to dissolve the ACP and the forfeiture
However, judicial authorization can only be availed of in case
of the share in the net profits of the
of incapacity or the other spouse is unable to participate in the
husband. But the property was already sold
administration or the disposition of the ACP.
to Nobleza.
Effects:
According to the court, Nobleza cannot be
1) As between the consenting spouse and the third considered to be a purchaser in good faith
person because she was aware of the pendency of
the proceedings (both civil and criminal).
It is a continuing offer and shall be considered as a
Therefore, the wife has no obligation
perfected contract as soon as the written consent or whatsoever to reimburse Nobleza of the
the judicial authorization is obtained unless earlier purchase price because the sale was null and
revoked by either of the parties. void. Nobleza should run after the husband
2) As to the spouse who did not give the written consent who sold the property to her.

It is void.
Art. 97. Either spouse may dispose by will of his or her
There is this case of: interest in the community property. (n)
NOBLEZA vs NUEGA Art. 98. Neither spouse may donate any community property
without the consent of the other. However, either spouse may,

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SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

without the consent of the other, make moderate donations other spouse and use the fruits or proceeds thereof to
from the community property for charity or on occasions of satisfy the latter's share.
family rejoicing or family distress. (n)
The need to encumber or dispose the exclusive property of the
spouse who left the conjugal home. Same with No. 2, go to
court obtain judicial authorization in a summary proceeding.
Section 5. Dissolution of Absolute Community Regime The court is enjoined to protect the owner-spouse.
When is the spouse deemed to abandon the other?
The following are grounds for dissolution.
Art. 101. If a spouse without just cause abandons the other
Art. 99. The absolute community terminates: or fails to comply with his or her obligations to the family, the
aggrieved spouse may petition the court for receivership, for
(1) Upon the death of either spouse;
judicial separation of property or for authority to be the sole
(2) When there is a decree of legal separation; administrator of the absolute community, subject to such
precautionary conditions as the court may impose.
(3) When the marriage is annulled or declared void; or
The obligations to the family mentioned in the preceding
This would refer to the subsequent void marriage because this paragraph refer to marital, parental or property relations.
speaks of the dissolution of the ACP. A spouse is deemed to have abandoned the other when her or
she has left the conjugal dwelling without intention of
(4) In case of judicial separation of property during the returning. The spouse who has left the conjugal dwelling for a
marriage under Articles 134 to 138. period of three months or has failed within the same period to
give any information as to his or her whereabouts shall be
Judicial separation of property during the marriage under Arts. prima facie presumed to have no intention of returning to the
135 and Art 136 (?) (Voluntary dissolution and dissolution for a conjugal dwelling.
cause).
The spouse who left the conjugal dwelling for 3 months and
Separation in fact will not affect the ACP.
there is failure to inform the other spouse with his/her
whereabouts within the said period. There will be a prima facie
Art. 100. The separation in fact between husband and wife presumption that there is no intention of returning.
shall not affect the regime of absolute community except that:
So what are the courses of action available to the aggrieved
(1) The spouse who leaves the conjugal home or refuses spouse?
to live therein, without just cause, shall not have the
right to be supported; 1) Receivership;
2) Judicial separation of property during the marriage; and
However, the spouse who leaves the conjugal home without
just cause shall not be entitled to support. Because there is 3) Become the sole administrator of the ACP.
just cause for leaving the conjugal home if the spouse is the
recipient of love punches. That is a valid ground to leave the
conjugal home and despite that, he or she is still entitled to
Section 6. Liquidation of the Absolute Community
support.
Assets and Liabilities

(2) When the consent of one spouse to any transaction of


How is dissolution made?
the other is required by law, judicial authorization
shall be obtained in a summary proceeding; This is the same dissolution that will be used by property
regimes falling under Art 147 by reason of the decision of the
There is a need to dispose or encumber the ACP but the court in the case of Ocampo v Ocampo. The same manner of
consent of the other cannot be obtained. So, you go to court dissolution.
and obtain judicial authorization in a summary proceeding.
Art. 102. Upon dissolution of the absolute community regime,
(3) In the absence of sufficient community property, the the following procedure shall apply:
separate property of both spouses shall be solidarily (1) An inventory shall be prepared, listing separately all
liable for the support of the family. The spouse the properties of the absolute community and the
present shall, upon proper petition in a summary exclusive properties of each spouse.
proceeding, be given judicial authority to administer
or encumber any specific separate property of the (2) The debts and obligations of the absolute community
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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

shall be paid out of its assets. In case of insufficiency


Art. 103. Upon the termination of the marriage by death, the
of said assets, the spouses shall be solidarily liable for
community property shall be liquidated in the same proceeding
the unpaid balance with their separate properties in
for the settlement of the estate of the deceased.
accordance with the provisions of the second
paragraph of Article 94. If no judicial settlement proceeding is instituted, the surviving
spouse shall liquidate the community property either judicially
(3) Whatever remains of the exclusive properties of the
or extra-judicially within six months from the death of the
spouses shall thereafter be delivered to each of them.
deceased spouse. If upon the lapse of the six months period,
(4) The net remainder of the properties of the absolute no liquidation is made, any disposition or encumbrance
community shall constitute its net assets, which shall involving the community property of the terminated marriage
be divided equally between husband and wife, unless shall be void.
a different proportion or division was agreed upon in
Should the surviving spouse contract a subsequent marriage
the marriage settlements, or unless there has been a
without compliance with the foregoing requirements, a
voluntary waiver of such share provided in this Code.
mandatory regime of complete separation of property shall
For purpose of computing the net profits subject to
govern the property relations of the subsequent marriage.
forfeiture in accordance with Articles 43, No. (2) and
63, No. (2), the said profits shall be the increase in
value between the market value of the community This is where the law provides that a mandatory regime of
property at the time of the celebration of the complete separation of property shall govern the property
marriage and the market value at the time of its relations between the husband and the wife of a subsequent
dissolution. marriage when the first marriage is terminated by death.

(5) The presumptive legitimes of the common children The surviving spouse is required to liquidate the ACP together
shall be delivered upon partition, in accordance with with the liquidation of the estate of the deceased spouse. If
Article 51. there is no liquidation of the estate of the deceased spouse,
then the ACP shall be liquidated within 1 year from the date of
(6) Unless otherwise agreed upon by the parties, in the death of the deceased spouse. If no liquidation is made, any
partition of the properties, the conjugal dwelling and disposition or encumbrance involving the community property
the lot on which it is situated shall be adjudicated to of the terminated marriage shall be void.
the spouse with whom the majority of the common
children choose to remain. Children below the age of [Note: The provision says 6 months but Atty. G says 1 year.]
seven years are deemed to have chosen the mother, And if the surviving spouse contracts a subsequent marriage
unless the court has decided otherwise. In case there without liquidating, a mandatory regime of complete
in no such majority, the court shall decide, taking into separation of property shall govern the property relations of
consideration the best interests of said children. the subsequent marriage.

 You make an inventory of all the community properties Art. 104. Whenever the liquidation of the community
and exclusive properties of the spouses; properties of two or more marriages contracted by the same
 Satisfy all the obligations; person before the effectivity of this Code is carried out
simultaneously, the respective capital, fruits and income of
 If insufficient, then the exclusive properties of the spouses each community shall be determined upon such proof as may
shall be made liable; be considered according to the rules of evidence. In case of
 If there are still remaining properties, then those will be doubt as to which community the existing properties belong,
delivered back to the owner spouse; the same shall be divided between the different communities
in proportion to the capital and duration of each.
 If the ACP still has excess properties despite the payment
of all the obligations, then the same will be divided equally Hindi ‘to maglabas sa Bar.
between the spouses unless a different division had been
agreed upon earlier in the marriage settlement; Whenever there are several marriages but no liquidation is
made and all were entered into prior to the effectivity of the
 Deliver the children’s presumptive legitimes; and Family Code, then the surviving spouse decided to liquidate it
 The conjugal home shall be awarded to the spouse with under the Family Code.
whom majority of the children choose to remain subject to Proofs:
the provisions of Art 213. When there is no majority, the
court shall take into consideration the best interest of the 1) Titles
children because the court will decide if the parent chosen
2) Contracts
by the children over 7 years of age is unfit.
3) Receipts
Art 103 is the same with Art 130.

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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

Otherwise, you just identify where the properties belong based spouse:
on the duration of the marriage.
(1) That which is brought to the marriage as his or her
Example: own;
Total number of years of all marriages: 20 years (2) That which each acquires during the marriage by
gratuitous title;
1st marriage lasted for 5 years
(3) That which is acquired by right of redemption, by
5 years/ 20 years (value of the property).
barter or by exchange with property belonging to only
one of the spouses; and
August 24, 2016 (BSLogramonte & EMurcia) (4) That which is purchased with exclusive money of the
wife or of the husband.
Chapter 4. Conjugal Partnership of Gains
What would govern the conjugal partnership?
Section 1. General Provisions
It is the provisions of the Civil Code on partnerships that
We go now to the conjugal partnership, Article 105. primarily govern and suppletorily only are the provisions of the
Family Code. This was discussed by the SC in the case of
Homeowners Savings & Loan Bank vs. Miguela C. Dailo.
Art. 105. In case the future spouses agree in the marriage
settlements that the regime of conjugal partnership gains shall Now, we look at Article 110:
govern their property relations during marriage, the provisions
in this Chapter shall be of supplementary application. Art. 110. The spouses retain the ownership, possession,
The provisions of this Chapter shall also apply to conjugal administration and enjoyment of their exclusive properties.
partnerships of gains already established between spouses Either spouse may, during the marriage, transfer the
before the effectivity of this Code, without prejudice to vested administration of his or her exclusive property to the other by
rights already acquired in accordance with the Civil Code or means of a public instrument, which shall be recorded in the
other laws, as provided in Article 256. registry of property of the place the property is located.

The provisions on the chapter of conjugal partnership also I want you to remember this because this is an example in
apply to existing conjugal partnership of gains prior to the Article 2258 of your Obligations & Contracts:
effectivity of the Family Code. Please remember that the
conjugal partnership is the default property regime under the
Art. 2258. Actions and rights which came into being but were
Civil Code. However, under the Family Code, this must be
not exercised before the effectivity of this Code, shall remain in
expressly agreed upon by the parties through their marriage
full force in conformity with the old legislation; but their
settlement.
exercise, duration and the procedure to enforce them shall be
The provisions of the Family Code on conjugal partnership regulated by this Code and by the Rules of Court. If the
shall likewise apply to existing conjugal partnerships for as exercise of the right or of the action was commenced under
long as no vested right would be prejudiced. Article 106 states: the old laws, but is pending on the date this Code takes effect,
and the procedure was different from that established in this
Art. 106. Under the regime of conjugal partnership of gains, new body of laws, the parties concerned may choose which
the husband and wife place in a common fund the proceeds, method or course to pursue.
products, fruits and income from their separate properties and
those acquired by either or both spouses through their efforts What are those that must be in a public instrument? So this is
or by chance, and, upon dissolution of the marriage or of the an example, the transfer of the administration of the exclusive
partnership, the net gains or benefits obtained by either or property of one spouse to the other spouse BUT must be a
both spouses shall be divided equally between them, unless public instrument and the requirement of having it registered
otherwise agreed in the marriage settlements. in the Registry of Property.

Art. 113. Property donated or left by will to the spouses,


jointly and with designation of determinate shares, shall
Section 2. Exclusive Property of Each Spouse pertain to the donee-spouses as his or her own exclusive
property, and in the absence of designation, share and share
alike, without prejudice to the right of accretion when proper.
What are those properties considered to be exclusive
properties? It is provided by Article 9 of the Family Code.
Article 114, this refers to donations that are onerous in nature
or donations with conditions.
Art. 109. The following shall be the exclusive property of each
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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

attached a "Certification from the Embassy


Art. 114. If the donations are onerous, the amount of the of the Republic of Korea" to prove the
charges shall be borne by the exclusive property of the donee existence of Korean Law. This certification,
spouse, whenever they have been advanced by the conjugal does not qualify as sufficient proof of the
partnership of gains. conjugal nature of the property for there is
no showing that it was properly
For purposes of the buyer, if the donee spouse has no authenticated by the seal of his office, as
sufficient property to answer for or to comply with the required under Section 24 of Rule 132.
conditions attached to the donation, then he/she can advance
from the conjugal partnership. This is one instance when the Accordingly, the International Law doctrine
law allows the onerous spouse to make advances from the of presumed-identity approach or processual
conjugal partnership if his/her property is insufficient to presumption comes into play, i.e., where a
answer for the conditions attached to the onerous donation. foreign law is not pleaded or, even if
pleaded, is not proven, the presumption is
Article 115 determines from where the funds shall be sourced that foreign law is the same as Philippine
respecting retirement benefits, pensions, annuities, gratuities, Law.
usufructs and other similar benefits.
Under Philippine Law, the phrase "Yung Sam
Kang ‘married to' Hyun Sook Jung" is merely
Art. 115. Retirement benefits, pensions, annuities, gratuities, descriptive of the civil status of Kang. In
usufructs and similar benefits shall be governed by the rules other words, the import from the certificates
on gratuitous or onerous acquisitions as may be proper in each of title is that Kang is the owner of the
case. properties as they are registered in his name
alone, and that he is married to Hyun Sook
Because it is gratuitous, then it belongs to the exclusively to Jung. Thus, we see no reason to declare as
the owner spouse. The other one, it shall belong to the invalid Kang’s conveyance in favor of Suzuki
conjugal partnership. for the supposed lack of spousal consent.
We go now to properties that should belong to the conjugal
partnership.
Section 3. Conjugal Partnership Property
Art. 117. The following are conjugal partnership properties:
Article 116 provides for presumptions:
(1) Those acquired by onerous title during the marriage
at the expense of the common fund, whether the
Art. 116. All property acquired during the marriage, whether acquisition be for the partnership, or for only one of
the acquisition appears to have been made, contracted or the spouses;
registered in the name of one or both spouses, is presumed to
be conjugal unless the contrary is proved. (2) Those obtained from the labor, industry, work or
profession of either or both of the spouses;
Orion Savings Bank vs Suzuki (3) The fruits, natural, industrial, or civil, due or received
during the marriage from the common property, as
There, the SC applied the doctrine of
well as the net fruits from the exclusive property of
processual presumption in the absence of
each spouse;
proof that the property of Mr. Kang is his
sole property. Mr. Kang, a Korean, is already (4) The share of either spouse in the hidden treasure
married to a particular person. This is which the law awards to the finder or owner of the
actually the presumption (property is property where the treasure is found;
conjugal), however the SC refused to apply
this claiming that there was no sufficient (5) Those acquired through occupation such as fishing or
proof that, indeed, the property is a conjugal hunting;
property. (6) Livestock existing upon the dissolution of the
Property relations between spouses are partnership in excess of the number of each kind
governed principally by the national law of brought to the marriage by either spouse; and
the spouses. However, the party invoking (7) Those which are acquired by chance, such as
the application of a foreign law has the winnings from gambling or betting. However, losses
burden of proving the foreign law. therefrom shall be borne exclusively by the loser-
In the present case, Orion, unfortunately spouse.
failed to prove the South Korean law on the
conjugal ownership of property. It merely
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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

We have other properties considered to belong to the conjugal to the SC, this is a different provision from the conjugal
partnership depending on the circumstances. partnership of property. It is covered, at that time, by the
provisions of the Civil Code. So that is how you should
Property bought on instalment, when is ownership vested?
remember it. Do not confuse Article 117 with Article 1187. For
With that, we talk of “contracts to sell” and “contracts of sale”.
ordinary contracts, yes, but not when you talk of properties
In a contract to sell, the ownership is reserved by the vendor involving conjugal partnership, we follow Article 117 to
to ensure performance of the obligation which consists in the determine when ownership is vested.
delivery of the purchase price or the payment of the
We go to Article 119. When one of the spouses is engaged in
instalment. Let’s go to obligations and contracts, this is, the
the business of lending.
payment of the purchase price is the reason for the positive
suspensive condition that once the vendee delivers the full
purchase price, the obligation of the vendor to transfer title to Art. 119. Whenever an amount or credit payable within a
the property arises. period of time belongs to one of the spouses, the sums which
may be collected during the marriage in partial payments or by
But, when we talk of contracts of sale, the title of the property installments on the principal shall be the exclusive property of
is immediately transferred to the buyer and the mode of the spouse. However, interests falling due during the marriage
payment is through instalment, the payment of the instalment on the principal shall belong to the conjugal partnership.
is a negative resolutory condition. The non-payment thereof
extinguishes the right of the vendee over the property. The So, what will only form part of the conjugal partnership will be
remedy there is recession. This remedy is not available in a the interest earned. The capital still belongs to the owner
contract to sell because recession, under Article 1191, applies spouse.
only to contracts already existing. There is no existing contact
yet in a contract to sell. Then we have Article 120 which deals with the situation when
there is an improvement introduced on the exclusive property
So, for purposes of conjugal partnership, we must determine of the owner spouse.
when ownership is vested.
a) If ownership vested prior to the marriage, then even if the Art. 120. The ownership of improvements, whether for utility
instalment payments are sourced from the conjugal funds, or adornment, made on the separate property of the spouses
it will still belong to the owner-spouse whose obligation is at the expense of the partnership or through the acts or efforts
to reimburse the conjugal partnership for the instalment of either or both spouses shall pertain to the conjugal
payments that were sourced from the conjugal funds. partnership, or to the original owner-spouse, subject to the
following rules:
b) If ownership is vested at the time of the marriage, then
the property belongs to the conjugal partnership with the When the cost of the improvement made by the
obligation to reimburse the owner-spouse of the value of conjugal partnership and any resulting increase in
the property or the amount that was paid by the owner value are more than the value of the property at the
spouse. time of the improvement, the entire property of one
of the spouses shall belong to the conjugal
BUT do you remember Article 1187 in your Obligations &
partnership, subject to reimbursement of the value of
Contracts? Article 1187 refers to an obligation subject to a
the property of the owner-spouse at the time of the
suspensive condition and once the condition is fulfilled, it
improvement;
retroacts to the date of the constitution of the obligation.
Otherwise, said property shall be retained in
Art. 1187. The effects of a conditional obligation to give, once ownership by the owner-spouse, likewise subject to
the condition has been fulfilled, shall retroact to the day of the reimbursement of the cost of the improvement.
constitution of the obligation. Nevertheless, when the
In either case, the ownership of the entire property
obligation imposes reciprocal prestations upon the parties, the
shall be vested upon the reimbursement, which shall
fruits and interests during the pendency of the condition shall
be made at the time of the liquidation of the conjugal
be deemed to have been mutually compensated. If the
partnership.
obligation is unilateral, the debtor shall appropriate the fruits
and interests received, unless from the nature and
circumstances of the obligation it should be inferred that the The value of the improvement will be the determining factor
intention of the person constituting the same was different. whether the improvement belongs to the owner-spouse or the
conjugal partnership:
Now, you would say that if you talk of Article 1187 in relations a) If the value of the improvement is greater than the
to 117, suppose the period of the purchase price is merely a principal, then it belongs to the conjugal partnership;
positive suspensive condition and the happening of the
condition retroacts to the date of the constitution, then it b) If it is less than the value of the principal, then it belongs
should belong to the owner spouse, isn’t it? However, we still to the owner-spouse subject, of course, to
remember the case of Villamos (?) because, here, according reimbursement.
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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

Ferrer vs Ferrer Now, we go to Article 124 which refers to the administration


of the conjugal partnership. This is the same as Article 96
The SC held that the improvements’ value is
less than the value of the principal and,
thus, belongs to the owner-spouse. Art. 124. The administration and enjoyment of the conjugal
partnership shall belong to both spouses jointly. In case of
HOWEVER, the reimbursement should be disagreement, the husband's decision shall prevail, subject to
made upon the termination of the marriage, recourse to the court by the wife for proper remedy, which
to be demanded from the debtor-spouse must be availed of within five years from the date of the
with respect to his share upon the estate of contract implementing such decision.
the deceased spouse but not from a third
person. In the event that one spouse is incapacitated or otherwise
unable to participate in the administration of the conjugal
In this case, the property was sold by the properties, the other spouse may assume sole powers of
husband during the marriage but the wife administration. These powers do not include disposition or
did not demand reimbursement of the funds encumbrance without authority of the court or the written
that were sourced from the conjugal consent of the other spouse. In the absence of such authority
partnership for the construction of the or consent, the disposition or encumbrance shall be void.
warehouse, 2 apartment units, as well as a However, the transaction shall be construed as a continuing
house that was constructed on the property. offer on the part of the consenting spouse and the third
person, and may be perfected as a binding contract upon the
acceptance by the other spouse or authorization by the court
before the offer is withdrawn by either or both offerors.
Section 4. Charges Upon and Obligations of the
Conjugal Partnership
Article 125 is the same as Article 98.

So, charges against the conjugal partnership, this is the same


Art. 125. Neither spouse may donate any conjugal
Article 941 except paragraph 9.
partnership property without the consent of the other.
This actually refers to personal obligations arising from those However, either spouse may, without the consent of the
listed in Art. 121. [Discussed above, cross-refer.] other, make moderate donations from the conjugal
partnership property for charity or on occasions of family
Note that obligations arising from crimes, torts or quasi-
rejoicing or family distress.
delicts, these cannot be charged against the conjugal
partnership even if the debtor-spouse has no sufficient
property to answer for obligations unless all the liabilities
mentioned in Article 121 have been fully covered or satisfied.
Section 6. Dissolution of Conjugal Partnership Regime
So, it can only be made liable for the personal obligations of
the debtor-spouse if all the liabilities mentioned in Article 121
have been fully satisfied unlike that of the absolute Article 126 is the same as Article 99.
community property where the personal obligations of the
debtor–spouse, if the debtor-spouse have no sufficient Art. 126. The conjugal partnership terminates:
property to answer for those obligations that can be
(1) Upon the death of either spouse;
immediately charged against the absolute community
property. (2) When there is a decree of legal separation;
(3) When the marriage is annulled or declared void; or
(4) In case of judicial separation of property during the
Section 5. Administration of the Conjugal Partnership marriage under Articles 134 to 138.
Property
Article 127 is the same as Article 100.

1 Art. 94. The absolute community of property shall be liable for: Art. 127. The separation in fact between husband and wife
xxx shall not affect the regime of conjugal partnership, except
(9) Ante-nuptial debts of either spouse other than those falling under that:
paragraph (7) of this Article, the support of illegitimate children of either
spouse, and liabilities incurred by either spouse by reason of a crime or a (1) The spouse who leaves the conjugal home or refuses
quasi-delict, in case of absence or insufficiency of the exclusive property to live therein, without just cause, shall not have the
of the debtor-spouse, the payment of which shall be considered as right to be supported;
advances to be deducted from the share of the debtor-spouse upon
liquidation of the community; (2) When the consent of one spouse to any transaction
57
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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

of the other is required by law, judicial authorization for the value of his or her exclusive property, the
shall be obtained in a summary proceeding; ownership of which has been vested by law in the
conjugal partnership.
(3) In the absence of sufficient conjugal partnership
property, the separate property of both spouses shall (4) The debts and obligations of the conjugal
be solidarily liable for the support of the family. The partnership shall be paid out of the conjugal assets.
spouse present shall, upon petition in a summary In case of insufficiency of said assets, the spouses
proceeding, be given judicial authority to administer shall be solidarily liable for the unpaid balance with
or encumber any specific separate property of the their separate properties, in accordance with the
other spouse and use the fruits or proceeds thereof provisions of paragraph (2) of Article 121.
to satisfy the latter's share.
(5) Whatever remains of the exclusive properties of the
spouses shall thereafter be delivered to each of
Article 128 is the same as Article 101. them.

Art. 128. If a spouse without just cause abandons the other (6) Unless the owner had been indemnified from
or fails to comply with his or her obligation to the family, the whatever source, the loss or deterioration of
aggrieved spouse may petition the court for receivership, for movables used for the benefit of the family,
judicial separation of property, or for authority to be the sole belonging to either spouse, even due to
administrator of the conjugal partnership property, subject to fortuitous event, shall be paid to said spouse
such precautionary conditions as the court may impose. from the conjugal funds, if any.

The obligations to the family mentioned in the preceding (7) The net remainder of the conjugal partnership
paragraph refer to marital, parental or property relations. properties shall constitute the profits, which shall be
divided equally between husband and wife, unless a
A spouse is deemed to have abandoned the other when he or different proportion or division was agreed upon in
she has left the conjugal dwelling without intention of the marriage settlements or unless there has been a
returning. The spouse who has left the conjugal dwelling for a voluntary waiver or forfeiture of such share as
period of three months or has failed within the same period to provided in this Code.
give any information as to his or her whereabouts shall be
prima facie presumed to have no intention of returning to the (8) The presumptive legitimes of the common children
conjugal dwelling. shall be delivered upon the partition in accordance
with Article 51.
(9) In the partition of the properties, the conjugal
dwelling and the lot on which it is situated shall,
Section 7. Liquidation of the Conjugal Partnership unless otherwise agreed upon by the parties, be
Assets and Liabilities adjudicated to the spouse with whom the majority of
the common children choose to remain. Children
below the age of seven years are deemed to have
Likewise, Article 129 is the same as Article 102 with the
chosen the mother, unless the court has decided
exception of number 6 because this refers to a movable
otherwise. In case there is no such majority, the
owned exclusively by one of the spouses but used by the
court shall decide, taking into consideration the best
family. In short, it redounded to the benefit of the family. If
interests of said children.
the same is lost, regardless of the cause, if it is by reason of a
fortuitous event or negligence, then the conjugal partnership
can be made liable for it unless there the spouse has already Article 130 is the same as Article 103.
been indemnified for the said loss. This refers to the termination of marriage by death. The
obligation of the surviving spouse is to liquidate the
Art. 129. Upon the dissolution of the conjugal partnership partnership within 1 year from the time of death of the
regime, the following procedure shall apply: deceased spouse. If there is a liquidation made within that
period, any encumbrance of disposition shall be void, and if
(1) An inventory shall be prepared, listing separately all
the surviving spouse shall contract another marriage without
the properties of the conjugal partnership and the
compliance with the foregoing requirements, a mandatory
exclusive properties of each spouse.
regime of complete separation of property shall govern the
(2) Amounts advanced by the conjugal partnership in property relations of the subsequent marriage.
payment of personal debts and obligations of either
spouse shall be credited to the conjugal partnership Art. 130. Upon the termination of the marriage by
as an asset thereof. death, the conjugal partnership property shall be liquidated
in the same proceeding for the settlement of the estate of the
(3) Each spouse shall be reimbursed for the use of his or
deceased.
her exclusive funds in the acquisition of property or
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If no judicial settlement proceeding is instituted, the surviving of said PBM. These salaries and benefits,
spouse shall liquidate the conjugal partnership property either are not the benefits contemplated by
judicially or extra-judicially within six months from the death Articles 121 and 122 of the Family
of the deceased spouse. If upon the lapse of the six-month Code. The benefits contemplated by
period no liquidation is made, any disposition or encumbrance the exception in Article 122 (Family
involving the conjugal partnership property of the terminated Code) is that benefit derived directly
marriage shall be void. from the use of the loan. In the case at
bar, the loan is a corporate loan extended to
Should the surviving spouse contract a subsequent marriage PBM and used by PBM itself, not by the
without compliance with the foregoing requirements, a husband or his family. The alleged benefit, if
mandatory regime of complete separation of property shall any, continuously harped by respondents-
govern the property relations of the subsequent marriage. appellants, are not only incidental but also
speculative.
Article 131 is the same as Article 104.
Of course, in the subsequent case of:
Art. 131. Whenever the liquidation of the conjugal Ching vs CA
partnership properties of two or more marriages contracted
Mr. Ching again acted as a surety for the
by the same person before the effectivity of this Code is
loan obligation of PBM from Allied Banking
carried out simultaneously, the respective capital, fruits and
Corporation. Again, there was non-payment
income of each partnership shall be determined upon such
so the sheriff levied on the 100,000 shares
proof as may be considered according to the rules of
that were registered solely in the name of
evidence. In case of doubt as to which partnership the
Mr. Ching. Again, this was objected to by the
existing properties belong, the same shall be divided between
wife claiming that the shares were conjugal
the different partnerships in proportion to the capital and
properties and were acquired during the
duration of each.
marriage.

Let’s go to the CASES INVOLVING CONJUGAL The SC cited its decision in the earlier case
PARTNERSHIP: of Ayala Investment vs CA. Accordingly, the
shares of stocks cannot be levied upon
Nobleza vs Nuega because it belongs to the conjugal
I have already discussed the case of Nobleza partnership. Again, it says that the benefits
vs Nuega, this is about the absolute must be those directly resulting from the
community property isn’t it? The property loan. They cannot merely be a by-product or
was sold by the husband without the a spin-off of the loan itself.
consent of the wife. In the contract, he On the matter the Mr. Ching acted as a
stated that he is still single but actually the surety does not mean that he is engaged in
property was acquired through the joint the business of suretyship.
efforts, especially on the part of the wife
while she was working as domestic helper Buado vs Nicol
abroad. While working abroad she would The wife was found criminally liable for the
send money for them to be able to construct crime of slander and was made to pay
their family home. P35,000. It turned out that the accused has
Ayala Investment vs CA no sufficient property to answer for the civil
liability. So, levy was made upon the
If you remember, here, the Executive Vice- conjugal property which was opposed by the
President of Philippine Bloming Mills, Inc., husband on the ground that he is a stranger
Mr. Ching, made himself a surety to an to the case. Hence, the conjugal property
obligation that was obtained by PBM. cannot be made liable for the obligation.
Because of non-payment of the obligation by
PBM, the investors tried to levy the property The SC held that the husband cannot be
of Sps. Ching. This is objected to by the wife considered a stranger ONLF IF the obligation
claiming that the conjugal partnership redounded to the benefit of the family. Here,
cannot be made liable for the obligation in the case, the conjugal partnership cannot
contracted by PBM. be made liable because there was no
showing that any benefit redounded to the
The SC sided with the spouses. While it may family.
be true that the husband, Mr. Ching, derives
salaries, dividends benefits from PBM, it is Unlike in the system of absolute community
only because said husband is an employee where liabilities incurred by either spouse by
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reason of a crime or quasi-delict is against the partnership assets after the


chargeable to the absolute community of responsibilities enumerated under
property, in the absence or insufficiency of Article 121 have been covered, and
the exclusive property of the debtor-spouse, there is no need to await for the dissolution
the same advantage is not accorded in the or termination of the marriage. No prior
system of conjugal partnership of gains. The liquidation of those assets is required. This is
conjugal partnership of gains has no not altogether unfair since Article 122 states
duty to make advance payments for that at the time of liquidation of the
the liability of the debtor-spouse. partnership, such [offending] spouse shall be
charged for what has been paid for the
This was reiterated in the case of:
purposes above-mentioned.
Pana vs Heirs of Juanite
Then we have the cases involving ADMINISTRATION,
Here, the wife was sentenced and was found ENJOYMENT and DISPOSITION:
guilty of the crime of murder. The accused
Under the Civil Code, remember that it is the husband who is
was adjudged to indemnify the heirs for
presumed to be the administrator of the conjugal partnership.
damages and civil indemnity and to satisfy
In the event of the encumbrance, alienation or disposition
the same, the heirs levied on the properties
with the consent of the other, it is merely VOIDABLE, it is not
registered under the name of the spouses.
void.
The heirs claim contended that athough the
marriage of the spouses was celebrated Heirs of Ayuste vs CA and Malabonga
under the Civil Code, but by virtue of Article
The wife found out of the disposition by the
256 of the FC, their properties are now
husband. The Court held that the petition for
governed by the absolute community of
annulment is already barred because under
property.
the provisions of the CC, there are 2
The SC, in this case, there are only 5 post- requisites for annulment to prosper:
marriage modifications of marriage
1. It must be made within 10 years from
settlements. Post-marriage modification of
the transactions; and
such settlements can take place only where:
2. It must be made during the subsistence
(a) the absolute community or conjugal
of the marriage.
partnership was dissolved and liquidated
upon a decree of legal separation; The first requisite having been found to be
wanting, then the action for annulment is
(b) the spouses who were legally separated
already barred.
reconciled and agreed to revive their
former property regime; BA Finance vs CA
(c) judicial separation of property had been Now, if the husband abandons the conjugal
had on the ground that a spouse home and obtains a loan without the
abandons the other without just cause consent of the wife using the conjugal
or fails to comply with his obligations to property as security thereof, in the absence
the family; of any showing that it redounded to the
benefit of the family, the conjugal property
(d) there was judicial separation of property
used as a security cannot be made liable
under Article 135;
cover the obligation. This is the ruling in the
(e) (e) the spouses jointly filed a petition case of BA Finance vs CA.
for the voluntary dissolution of their
I am looking at the cases under the Civil
absolute community or conjugal
Code, ha. If the property is sold without the
partnership of gains.
consent of the other spouse, does the
The conversion of the conjugal partnership annulment cover only the share of the
into absolute community of property is not spouse who did not give his/her consent?
one of the circumstances allowed by law for This was the issue in the case of Heirs of
the modification of the marriage settlement. Reyes vs Mijares.
To do so would prejudice the vested rights
Heirs of Reyes vs Mijares
of the spouses.
The SC held that it should be the sale of the
It is also here where the SC held that the
entire property that should be annulled and
personal obligation contracted by either
not only the share of the spouse who did not
spouse before the marriage may be enforced
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give his/her consent because had Congress In the case of Hernandez, the heirs are
intended to limit such annulment in so far as already barred by prescription aside from the
the contract shall prejudice the wife, such fact that the husband already died.
limitation should have been spelled out in
HEIRS OF GO, SR.
the statute.
vs. SERVACIO
Further, the conjugal partnership is not only
This involved the sale by the husband and
liable for the obligations of the conjugal
the son of the conjugal partnership which
partnership, but rather, it should also be
was not yet liquidated because the wife died
liable to the personal obligations of the
in 1987. Subsequently, the father and the
debtor-spouse in the event the property of
son sold the property to Servacio without the
the debtor-spouse is insufficient to cover
property having been partitioned and
his/her obligations if all the responsibilities
liquidated by the heirs. The heirs now say
mentioned in the CC had been fully satisfied.
that it is void.
So it is the entire share.
But according to SC, what is only void is with
PELAYO vs. PEREZ
respect to the portion of the heir who did
This is the reiteration of the general not give consent to the sale but with respect
provision on obligations and contracts to the share of the surviving spouse and the
regarding sale where the wife failed to sign son, that would be valid, the sale of their
the first 2 pages of a 3-paged contract of intellectual share in the property, because
sale and in fact, the signature was affixed upon the death of the wife, the conjugal
not on the spouse’s conformity of the sale partnership is already converted to co-
but rather on the space provided for ownership. So the co-owner is allowed to sell
witnesses. So when Perez, the buyer, went his/her intellectual share in the terminated
to the spouse, Lorenza, she refused to affix conjugal partnership but with respect to the
her signature. portion of the heir whose legitime had been
prejudiced by the sale, the buyer shall audit
SC said, consent under the Civil Code by the
in trust for the heir whose legitime has been
wife to the alienation of the property need
prejudiced by the sale.
not be in writing. It might be expressed
because sale is consensual in nature and GUIANG VS. CA
consent may be given expressly or impliedly.
Under the FC, the SC said that even if the
In this case, it was apparent that Lorenza is marriage was celebrated under the CC and is
aware on the disposition of the property by governed by the conjugal partnership, but if
the fact that she affixed her signature on the the disposition is made already when the FC
space provided for. is in effect, then the disposition is considered
void without the written consent of the wife
HEIRS OF HERNANDEZ VS. MINGOA
or judicial authorization.
The heirs found out about the sale after the
MANALO VS. CAMAISA
death of the husband and they also found
out that the irrevocable SPA authorizing The issue here is: Does the fact that the wife
Dolores to sell the property was a forgery. participated actively during the negotiation
So they now claim, citing art. 1409 and 1410 of the sale of the property considered to
of the CC on void contracts as a defense, to having consented to the disposition?
have that disposition made by the husband Because at the time that the negotiation was
without the consent of the wife void. ongoing, the wife was actively participating
but when the buyer went to the house with
But the SC said that the provisions of the CC
already the prepared contracts to sell,
on void contracts in general do not apply to
because there were two properties in Makati
conjugal partnership property because there
that were involved, in this case, the wife
are specific provisions under the CC that will
now refused to affix her signature to the
govern that disposition of property without
contract. What Jader-Manalo did instead was
the consent of the other spouse and under
to go to the court because according to her,
the provisions of the CC, it is merely
if consent is withheld or unjustly refused,
voidable but must be brought within 10
then judicial authorization can be had
years from the date of transaction and
pursuant to the provisions of the FC.
during the subsistence of the marriage.

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But SC said that judicial authorization is only was the lawyer who promised to secure the
allowed if it is shown that the spouse who consent of the wife. And he presented now
withheld the consent is incapacitate which is the affidavit of consent. Unfortunately, the
not true in this case. So no relief was affidavit was notarized in Zamboanga.
accorded to her respecting the prayer for
SC held that that notarization by itself was
judicial authorization
already defective and renders the affidavit of
HOMEOWNER’S SAVINGS consent merely a private instrument. It is
AND LOAN BANK VS. DAILO reduced to a private document and has no
effect whatsoever. Moreover, the wife,
The wife also discovered about the mortgage
Rosario, and Tranciano died almost at the
of the property with the homeowner’s
same time. Traciano died 3 months after
savings bank after the death of the husband
Rosario died. So the heirs discovered the
although the property was registered in the
sale because when the affidavit of consent
name of the husband alone who, during his
was presented to the buyer, they executed
lifetime, mortgaged it with the bank through
this deed of absolute sale in 1989 after the
the agent. But there was no payment of the
passage of FC. So according to the heirs, the
loan obligation so the bank foreclosed the
sale is void because there was no consent.
security to the mortgage then consolidated
That affidavit of consent that was signed by
the title in the absence of redemption. So
the wife is a forgery and the SC said that
when the wife found out, she filed this
indeed, it would be easy for Traciano to
petition for the annulment of the mortgage
forge the signature of the wife, having been
and the foreclosure and all other events
separated for a long time because he might
respecting the mortgage. The homeowner’s
run the risk of Rosario not affixing her
savings bank said that the property belongs
signature or refusing to affix her signature or
to the husband alone if it is registered only
she might but ask a price for that signature.
in the name of the husband. So the answer
So what he did was to forge the signature of
to that is Art. 116. And the other contention
the wife. And inasmuch as the sale was
that assuming it is conjugal, then art. 493 on
made in January 1989, thus, the sale was
co-ownership shall apply.
null and void. So the heirs can still recover
Is that correct? the property from the buyer.

No because conjugal partnership is a special Now let’s go to SEPARATION OF PROPERTY during the
form of partnership which is governed by the marriage. So we talk of Art. 135. Let’s go first to cases
provisions of partnership under the civil involving reimbursement of conjugal funds.
code. The provisions of co-ownership shall
MULLER VS. MULLER
not apply even suppletorily.
The husband is a German citizen and he
Now another contention raised was that it
returned to the Philippines after he sold his
redounded to the benefit of the family
house forming part of his inheritance, used
because the loan was obtained to finance his
the money in buying the parcel of land in
construction business. But the burden of
Antipolo but being aware that there is this
proof that it redounded indeed to the
Constitutional prohibition on foreigners
conjugal partnership is on the party alleging
owning private or public lands, he had the
it. In the absence of proof, then no such
property registered in the name of the wife
presumption shall arise. Homeowner’s
and on that land, he also constructed a 2.3M
savings bank failed to prove that it
house. But the marriage did not last long
redounded to the benefit of the conjugal
because Muller found out that there are a lot
partnership.
of other Filipinas more beautiful than the
FUENTES VS. ROCA wife. So he became a womanizer and
abused the wife. So he left the conjugal
This refers to the sale by the husband who home. He now prayed for the
was separated in fact with the wife for more reimbursement of what he paid for the
than 30 years. Initially, the parties entered Antipolo lot as well as the house he
into a contract to sell where the buyer will constructed. He said that “I’m not asking for
pay the full purchase price upon the removal my share in the conjugal partnership
of those occupying the property as well as because I am aware of the Constitutional
the structures found thereon and as well as prohibition. Thus, I had it registered in the
the obtention of the consent of the wife who name of my wife. So all I’m asking is
at the time was already residing in Manila. It reimbursement.”
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The Court denied the petition and said “you despite the knowledge of the Constitutional
are fully aware of the prohibition. Thus, if we prohibition and neither can there be a grant
allow the reimbursement, then we are of reimbursement on the basis of unjust
allowing you to enjoy the fruits of the enrichment. The provisions on unjust
property that you should not, in the first enrichment do not apply if the action is
place, own. There can be no implied trust proscribed by the constitution. Likewise,
because the act made by Muller is already there is not injustice by reason of his foreign
contrary to the provisions of the citizenship. It is the constitution itself that
Constitution.” He who comes to court must demarcates the rights of the citizens and not
come with clean hands. the citizens owning public land. So the
constitutional ban on foreigners applies only
MAQUILLAN VS. MAQUILLAN
to ownership of Philippine land and not to
The wife was earlier sentenced to improvements built thereon. So he is entitled
imprisonment involving the crime of to a share in the value of the houses that
adultery. Subsequently, the husband filed a were constructed on those 4 parcels of land
petition for declaration of nullity of marriage. but not in the share of the land itself.
During the pendency of the proceedings, the
spouses entered into a compromise
agreement respecting partial separation of
properties. This was approved by the court. Chapter 5. Separation of Property of the Spouses and
But the husband had a change of heart. He Administration of Common Property by One Spouse
now claims that the agreement was void During the Marriage
because at the time that this was entered
into by them, there was no presence of the Let’s go to Judicial Separation of Property.
fiscal which is required under Art. 48 of the
FC that in all cases involving separation, the Art. 135. Any of the following shall be considered sufficient
state must always be represented. And cause for judicial separation of property:
moreover, she should be deprived of
administering the property because of the (1) That the spouse of the petitioner has been sentenced to a
earlier conviction of the wife of adultery. penalty which carries with it civil interdiction;

But the SC said that the compromise (2) That the spouse of the petitioner has been judicially
agreement is valid despite the absence of declared an absentee;
the fiscal inasmuch as it only touched on (3) That loss of parental authority of the spouse of petitioner
their property. It did not touch on the merits has been decreed by the court;
of the petition of declaration of nullity of
their marriage. So the presence of the fiscal (4) That the spouse of the petitioner has abandoned the latter
is not required. or failed to comply with his or her obligations to the family as
provided for in Article 101;
And the fact that the wife is sentenced to
imprisonment does not deprive her of her (5) That the spouse granted the power of administration in the
right to administer her property because civil marriage settlements has abused that power; and
interdiction is not an accessory penalty in (6) That at the time of the petition, the spouses have been
that particular offense. separated in fact for at least one year and reconciliation is
BEUMER VS. AMORES highly improbable.

This is the same with Muller vs. Muller. This


For purposes of filing a petition for judicial separation of
time, the husband is a Dutch national and
property based on par. 1, 2 or 3, it is sufficient for petitioner to
during the marriage, he acquired 6 parcels
attach the final judgment declaring the spouse as an absentee
of land 4 of which were in the name of the
or having lost parental authority or having been sentenced to a
wife. So when the marriage was declared
penalty that carries with it civil interdiction.
void by the court, he now claimed that he
should be reimbursed of the value of the But if the spouses voluntarily dissolve the conjugal or absolute
properties he acquired because all those community property under Art. 136, the petition must be
properties were acquired using his money. verified. Take note that Art. 136 puts a limitation. This can
The wife has no work whatsoever. only be availed of once. Unlike that of Art. 135. For as long
as a ground exists under Art. 135, then the spouse may file a
But using the ruling in Muller vs. Muller,
petition for judicial separation of property during the marriage.
he is not entitled to reimbursement because
he knowingly entered into the contract
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So if the court grants the petition, then they will be governed processual presumption, governed by the
by separation of property which may be total or partial. If it is absolute community of property because
partial, the property not agreed upon as his/her exclusive they are married in 1988.
property shall form part of the conjugal/absolute community
So the SC said, it was error for the court to
property. It may refer to future or present property. Now, the
immediately recognize that decree of
regime of separation of property is under Art. 143.
divorce. The doctrine of processual
presumption cannot apply with respect
Art. 136. The spouses may jointly file a verified petition with to that decree of divorce because it has
the court for the voluntary dissolution of the absolute to be proven and alleged before our
community or the conjugal partnership of gains, and for the courts. Inasmuch as it was not proven, that
separation of their common properties. decree of divorce as a way of terminating
All creditors of the absolute community or of the conjugal the marriage, then the presumption is, this
partnership of gains, as well as the personal creditors of the time the proper application of processual
spouse, shall be listed in the petition and notified of the filing presumption, that they are still legally
thereof. The court shall take measures to protect the creditors married. But inasmuch as it is shown that
and other persons with pecuniary interest. they have separated in fact for more than
one year and that reconciliation is highly
improbable as shown by the fact that David
NOVERAS VS. NOVERAS
is already with another woman, then judicial
The parties were initially Filipino citizens. In separation of property is the proper remedy.
fact, they got married in the Philippines.
It is also in this case where the Court said
Subsequently they went to US, renounced
that respecting the legitimes of the common
Phil. Citizenship and obtained US citizenship.
children, David’s ½ share will be forfeited in
But before they left for the US, they have
favour of the common children while ½ of
already acquired certain properties: One in
the properties of Leticia shall be forfeited in
Sampaloc and the other in Quezon province.
favour of the common children; the 562k
The property in Sampaloc was supposed to
share of David of the sale in Sampaloc
be sold where they agreed that half of the
property shall be given to the common
proceeds will go to the wife and the other
children. Nothing goes to him.
half will go to the husband. Unfortunately,
the husband’s business in the US did not
succeed and decided that he will go back to Art. 147. When a man and a woman who are capacitated to
the Phil. and manage their properties in marry each other, live exclusively with each other as husband
Quezon. But because absence makes the and wife without the benefit of marriage or under a void
heart go fonder and the US is too far and it’s marriage, their wages and salaries shall be owned by them in
too expensive to fly, so he found another equal shares and the property acquired by both of them
woman and this was discovered by the wife. through their work or industry shall be governed by the rules
She filed a petition for divorce that was on co-ownership.
granted by the court awarding to her all the In the absence of proof to the contrary, properties acquired
properties acquired in the US as well as while they lived together shall be presumed to have been
custody of their 2 minor children. Then she obtained by their joint efforts, work or industry, and shall be
came to the Phil. and filed this petition for owned by them in equal shares. For purposes of this Article, a
judicial separation of properties citing Art. party who did not participate in the acquisition by the other
135 (4) on abandonment and no. 6. But the party of any property shall be deemed to have contributed
lower court said that the parties having been jointly in the acquisition thereof if the former's efforts
divorced, then it should not be judicial consisted in the care and maintenance of the family and of the
separation of property but dissolution of household.
their conjugal partnership property. And it
awarded the properties found in the Phil. to Neither party can encumber or dispose by acts inter vivos of
David and all the properties to Leticia in the his or her share in the property acquired during cohabitation
US. and owned in common, without the consent of the other, until
after the termination of their cohabitation.
SC said that it was error on the part of the
court to immediately recognize that decree When only one of the parties to a void marriage is in good
of divorce without having first complied with faith, the share of the party in bad faith in the co-ownership
Rule 132, Sec. 24 & 25 of the Rules of Court. shall be forfeited in favor of their common children. In case of
By the way, in the lower court, the court default of or waiver by any or all of the common children or
said that in the absence of proof in their their descendants, each vacant share shall belong to the
property regime then it is, by doctrine of respective surviving descendants. In the absence of
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Ateneo de Davao University | The College of Law | Kwatro Manresa

descendants, such share shall belong to the innocent party. In marriage. If the party who acted in bad faith is not validly
all cases, the forfeiture shall take place upon termination of the married to another, his or her shall be forfeited in the manner
cohabitation. (144a) provided in the last paragraph of the preceding Article.
The foregoing rules on forfeiture shall likewise apply even if
This refers to the property regime of persons living together both parties are in both faith.
without the benefit of marriage or under a void marriage. 148
applies to relationship which are either adulterous in nature or
Now, in Art. 148, there must be a showing of actual
in a state of concubinage or parties who live together with
contribution of money, property or industry. The maintenance
several alliances because in Art. 147 (1) which refers to a man
of the family and household is not considered as actual
and a woman living exclusively with each other as husband
contribution.
and wife and not suffering from any legal impediment under
Art. 37 and 38. In fact, in the case of HERNANDEZ, administration of the
property is not considered as industry as to warrant
In the absence of proof to the contrary, then the presumption
entitlement to a share in the properties acquired during the
is that they shall own the wages and salaries as well as the
cohabitation. So in the absence of proof that there is
properties acquired during the cohabitation, in equal shares.
contribution by one of the parties, then share and share alike.
And for one to be entitled to a share, there is no need for
This was used by the SC in the case of SAGUID. Do you
actual proof of contribution of money, property or industry.
remember the case of Saguid?
The contribution may consist in the form of maintenance of the
family and the household and, thus, is deemed to have Now if one of the parties is still validly married to another,
contributed to the acquisition of properties during the his/her share will be given to the subsisting absolute
cohabitation. community or conjugal partnership.
Now, the last paragraph refers to a void marriage where one Suppose they are legally separated? Kanino mapupunnta ang
of the parties to the void marriage is in bad faith. The share? Tapos walang common children? To the existing
forfeiture is not the same as the forfeiture mentioned in Art. marriage? NO. It still belongs to him kasi meron ng legal
43(2) because here, the forfeiture is to be forfeited in favour of separation eh. In legal separation, one of the effects is the
the common children; in the event of absence or waiver, to the dissolution of the ACP or conjugal partnership. Hindi naman
descendants; in the absence of descendants, to the innocent siya in bad faith diba? Ang share niya supposedly will go to the
spouse. Whereas if we talk of Art. 43, it is in favour of the subsisting conjugal or absolute community. But suppose he is
common children; in the absence of common children, to the already legally separated? It would be otherwise if in bad faith
children of the guilty spouse from a previous marriage; and siya.
then to the innocent spouse.
And what is forfeited in Art. 147 is the ENTIRE SHARE of the
guilty spouse while in Art. 43(2) the share in the NET profits of August 31, 2016 (NDBajenting & RMonday)
either the absolute community property or conjugal We have discussed Jacinto Saguid vs. CA, this is under
partnership as defined in Art. 102(4). Here it is the entire Article 148.
share.
Now, I’m sure that you already know the ruling of the Court in
So forfeiture will only apply if the parties are in a void Cariño vs. Cariño. Remember that case? Where, both
marriage. So there is no forfeiture with respect to man and marriages are void because the first marriage is void due to
woman who are living exclusively with each other as husband the absence of a marriage license, then without the first
and wife without the benefit of marriage. Different if there are marriage declared void, the husband contracted the
several alliances because there can be good faith and there subsequent marriage. The women are both named Susan.
can be forfeiture if there is bad faith.
Cariño vs. Cariño
Art. 148. In cases of cohabitation not falling under the G.R. No. 132529 | February 2, 2001
preceding Article, only the properties acquired by both of the
parties through their actual joint contribution of money, FACTS: Santiago Cariño, contracted two
property, or industry shall be owned by them in common in marriages, the first was in 1969, with
proportion to their respective contributions. In the absence of petitioner Susan Nicdao Cariño (SN), with
proof to the contrary, their contributions and corresponding whom he had two children; and the second
shares are presumed to be equal. The same rule and was in 1992, with respondent Susan Yee
presumption shall apply to joint deposits of money and Cariño (SY), with whom he had no children
evidences of credit. in their almost 10-year cohabitation starting
way back in 1982.
If one of the parties is validly married to another, his or her
share in the co-ownership shall accrue to the absolute In 1988, Santiago became ill and bedridden.
community or conjugal partnership existing in such valid He passed away on November 1992, under
the care of SY, who spent for his medical
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SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

and burial expenses. Both Susan’s filed in proportion to their respective


claims for monetary benefits and financial contributions ...”
assistance pertaining to the deceased from
In this property regime, the properties
various government agencies. SN was able
acquired by the parties through their actual
to collect P146k from “MBAI, PCCUI,
joint contribution shall belong to the co-
Commutation, NAPOLCOM, and Pag-ibig,”
ownership. Wages and salaries earned by
while SY received P21k from “GSIS Life,
each party belong to him or her exclusively.
Burial (GSIS) and burial (SSS).”
Then too, contributions in the form of care
SY later filed for collection of sum of money of the home, children and household, or
praying that SN return to her at least 1/2 of spiritual or moral inspiration, are excluded in
the said 146k “death benefits”. this regime.
SY admitted that her marriage took place Considering that the marriage of SY and the
during the subsistence of, and without first deceased is a bigamous marriage, having
obtaining a judicial declaration of nullity of, been solemnized during the subsistence of a
the marriage between SN and the deceased. previous marriage then presumed to be valid
She however, contended among others that (SN and the deceased), the application of
the marriage of SN and the deceased is void Article 148 is therefore in order.
ab initio because the same was solemnized
For SN:
without the required marriage license.
As to the property regime of SN and the
HELD: The declaration in the instant case of
deceased, Article 147 of the Family Code
nullity of the previous marriage of the
governs. This article applies to unions of
deceased and SN due to absence of
parties who are legally capacitated and
marriage license does not validate the
not barred by any impediment to
second marriage of the deceased with
contract marriage, but whose marriage is
respondent Susan Yee. The fact remains
nonetheless void for other reasons, like the
that their marriage was solemnized without
absence of a marriage license.
first obtaining a judicial decree declaring the
marriage of SN and the deceased void. In contrast to Article 148, under the
Hence, the marriage of SY and the deceased foregoing article, wages and salaries earned
is, likewise, void ab initio. by either party during the cohabitation shall
be owned by the parties in equal shares
One of the effects of the declaration of
and will be divided equally between them,
nullity of marriage is the separation of the
even if only one party earned the
property of the spouses according to the
wages and the other did not contribute
applicable property regime.
thereto.
Considering that the two marriages are void
ab initio, the applicable property regime Now prior to that is the Decision of the Court in the case of
would not be absolute community or Valdez vs. RTC Branch 102 of QC, et al. whereby their
conjugal partnership of property, but marriage was declared null and void under article 36. So in
rather, be governed by the provisions that particular case the Supreme Court mentioned that the
of Articles 147 and 148 of the Family property regime for those who are incapacitated, especially
Code on “Property Regime of Unions those falling under Article 37 and 38 will be governed by
Without Marriage.” Article 148.
For SY:
Valdez vs. RTC Br. 102 QC, et al.
Under Article 148 of the Family Code, which G.R. No. 122749 | July 31, 1996
refers to the property regime of bigamous
marriages, adulterous relationships, FACTS: RTC rendered a decision declaring
relationships in a state of concubine, the marriage of Antonio Valdez and
relationships where both man and woman Consuelo Gomez-Valdez null and void under
are married to other persons, multiple Article 36 of the FC on the ground of their
alliances of the same married man, - mutual psychological incapacity to comply
with their essential marital obligations. It
“... Only the properties acquired by both of directed them to start proceedings on the
the parties through their actual joint liquidation of their common properties as
contribution of money, property, or defined by Article 147 of the FC, and to
industry shall be owned by them in common comply with the provisions of Articles 50, 51,
66
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SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

and 52 of the same code, within thirty (30) cohabitation will be governed by Article 50 in
days from notice of this decision. relation to Article 43 paragraphs (2), (3), (4)
and (5) — so the dissolution will be in
HELD: The trial court correctly applied the accordance with either absolute community
law. In a void marriage, regardless of the or conjugal partnership. Yung conjugal
cause thereof, the property relations of the partnership is Article 129. Yung absolute is
parties during the period of cohabitation is Article 102.
governed by the provisions of Article 147 or
Article 148, such as the case may be, of the So, the Court went back, because it must be
Family Code. in consonance of the provisions of Article 80
and exceptionally to void marriages under
The particular kind of co-ownership referred Article 40.
to in Article 147 applies when a man and a
woman, suffering no illegal impediment to So that the Decision in the Cariño vs. Cariño ruling is actually
marry each other, so exclusively live a deviant Decision. (Note: See pre-bar for Buenaventura
together as husband and wife under a void digest.)
marriage or without the benefit of marriage.
However, there is now this case of:
The term "capacitated" in the provision (in
the first paragraph of the law) refers to the
legal capacity of a party to contract Ocampo vs. Ocampo
marriage, i.e., any "male or female of the G.R. No. 198908, August 3, 2015
age of eighteen years or upwards not FACTS: In 1990, Virginia Ocampo filed a
under any of the impediments Petition for the Declaration of Nullity of her
mentioned in Articles 37 and 38" of the marriage with Deogracio Ocampo on the
Code. ground of Article 36, FC. RTC declared their
Under this property regime, property marriage null and void. It also ruled that the
acquired by both spouses through their work properties declared by the parties belong to
and industry shall be governed by the rules each one of them on a 50-50 sharing.
on equal co-ownership. Any property ISSUE: W/N Deogracio should be deprived
acquired during the union is prima facie of his share in the conjugal partnership of
presumed to have been obtained through gains by reason of bad faith and
their joint efforts. psychological perversity.

And then, subsequent to that is the ruling of HELD: While Virginia and Deogracio tied the
Cariño vs. Cariño. So, the case of Cariño, marital knot on January 16, 1978, it is still
both marriages were void so when the the Family Code provisions on conjugal
marriage was terminated by the death of the partnerships, however, which will govern the
husband, the SC held that the first marriage property relations between Deogracio and
is presumed to be subsisting but because it Virginia even if they were married before the
is a void marriage, that will be governed by effectivity of the Family Code.
Article 147. And the subsequent marriage, Article 105 of the Family Code explicitly
considered to be bigamous in nature—I’m mandates that the Family Code shall apply
referring to the properties, required during to conjugal partnerships established
the cohabitation—that will be governed by before the Family Code without
Article 148. prejudice to vested rights already acquired
But then, there comes now the case of: under the Civil Code or other laws. Thus,
under the Family Code, if the properties are
Buenaventura vs. CA acquired during the marriage, the
presumption is that they are conjugal.
The Buenaventura ruling went back to the
Hence, the burden of proof is on the party
Valdez ruling where it now says that the first
claiming that they are not conjugal. This is
marriage — I’m referring to void marriages
counter-balanced by the requirement that
under Article 40 — shall be governed by
the properties must first be proven to have
Article 147 or 148 depending on the
been acquired during the marriage before
defect of the first marriage. Because it can
they are presumed conjugal.
be 147 or 148.
The applicable law, however, in so far
But the subsequent marriage shall be — I’m
as the liquidation of the conjugal
referring to the termination/dissolution of
partnership assets and liability is
the properties acquired during the
67
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SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

concerned, is Article 129 of the Family governed by, with respect to the dissolution,
Code in relation to Article 147 of the it will be governed by Article 129. That will
Family Code. be the conjugal partnership, although the
marriage was declared void under Article 36.
The Court held that in a void marriage, as in
those declared void under Article 36 of the But the provision in Article 129 merely
FC, the property relations of the parties applies to the manner in the dissolution
during the period of cohabitation is but the partition shall still be governed
governed either by Article 147 or Article 148 by Article 147.
of the Family Code. Article 147 of the Family
Again, can there be forfeiture in void marriages under Article
Code applies to union of parties who are
36 where one of the parties or both parties are suffering from
legally capacitated and not barred by any
psychological incapacity? So can there be forfeiture? Does
impediment to contract marriage, but whose
forfeiture in the last paragraph of Article 147 apply?
marriage is nonetheless void, as in this case.
Buenaventura vs. CA
From the foregoing, property acquired by
both spouses through their work and There’s no basis for the grant of moral and
industry should, therefore, be governed by exemplary damages. The reason given by
the rules on equal coownership. Any the court in that case is innate inability of
property acquired during the union is prima the psychologically incapacitated spouse to
facie presumed to have been obtained comply with the essential marital obligations
through their joint efforts. A party who did of marriage hence there is no willfulness on
not the part of the psychologically incapacitated
spouse to comply with the essential marital
participate in the acquisition of the property
obligations of marriage. And therefore, there
shall be considered as having contributed to
is no basis for the grant of moral and with
the same jointly if said party's efforts
more reason, with exemplary damages.
consisted in the care and maintenance of
the family household. Efforts in the care and But can there be forfeiture? This was answered by the SC in
maintenance of the family and household the case of:
are regarded as contributions to the
acquisition of common property by one who Ocampo vs. Ocampo
has no salary or income or work or industry. The issue states that: May respondent
The trial court and the appellate court spouse in a marriage declared void by the
correctly held that the court under Article 36 of the Family Code be
deprived of his share in the conjugal
parties will share on equal shares partnership of gains by reason of bad faith
considering that Virginia failed to prove that and psychological perversity?
the properties were acquired solely on her
own efforts, to wit: It would appear so because according to the
Court, the ruling of the court in this case,
xxx attempts to establish says that: “attempts to establish respondent
respondent as an irresponsible and as an irresponsible and unfaithful husband,
unfaithful husband, as well as as well as family man were made but the
family man were made but the testimonies adduced towards that end, failed
testimonies adduced towards that to fully convince the Court that respondent
end, failed to fully convince the should be punished by depriving him of his
Court that respondent should be share of the conjugal property because of
punished by depriving him of his his indiscretion.”
share of the conjugal property
because of his indiscretion. xxx So, with that, because it’s a vague ruling. Do
you agree, or not agree? So it would appear
that if it can be proven that there was this
Now, of course there is this dissolution. So what particular
perversion on the part of the psychologically
provision of the Family Code will govern respecting the
incapacitated spouse, then forfeiture will
dissolution?
apply. Because that is how it was worded.
So this was answered by the Supreme Court in the case of: The only reason given by the Court was that
the testimonies were insufficient to prove
Ocampo vs Ocampo the contention of the petitioner that there
In as much as they were married under the was this perversity on the part of the
Civil Code, then the properties will be
68
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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

husband as to be deprived of his share of But the SC said that what will only be
the conjugal property. excluded from the eight (8), will be the
property acquired under the Civil Code.
So this is the case that the SC held that with
Because remember that under the Civil
respect to the dissolution, the manner of
Code, what only governs is Article 144, that
dissolution shall be Article 129 because the
refers to persons living together as husband
property relations at the start of the
and wife without the benefit of marriage. But
marriage was governed by the conjugal
nothing was provided for under relationships
partnership under the Civil Code. So if you
where there is an impediment. Whether it is
apply this under the Family Code, then if the
under the state of adultery or concubinage.
marriage is declared void, the manner in the
So this is the reason why you have Article
dissolution of the properties acquired during
148. The SC in that case said, that what will
the cohabitation shall be Article 102, but the
only be covered --- [interrupted by the grand
division, shall be determined by Article 147.
entrance of the electric fan + chika about
Do you understand?
karma.]
Likewise, you should also remember that
We go now to the chapter on THE FAMILY AS AN
excluded in the dissolution would be the
INSTITUTION.
exclusive property of the spouses, whose
marriage was later on declared void by
Article 36. And further, excluded would be Art. 149. The family, being the foundation of the nation, is a
the fruits of that exclusive property. So basis basic social institution which public policy cherishes and
would be Buenaventura vs. CA. protects. Consequently, family relations are governed by law
and no custom, practice or agreement destructive of the
Now, going back to the Ocampo case, if family shall be recognized or given effect. (216a, 218a)
there will be sufficient proof, that the
property was acquired during the marriage So we have under Article 150, for purposes of Article 151. So,
but gratuitously, then it ceases to be part of what do family relations include? This refers to husband and
the absolute community property or conjugal wife who must be legally married. Common law relationships
partnership. This is in relation to Article 92 are excluded. Between parents children, among descendants
on the absolute community. Those are the and ascendants, among brothers or sister whether of full or
exceptions. Then exclusion under the half blood. Now, the subsequent enumeration need not be
conjugal partnership is Article. [Giinitan ni legitimate or the relationship need not be legitimate. It is
Maam G. Klaro na sa exam, LOL] sufficient that they would be falling under this particular
provision.

TITLE V Art. 150. Family relations include those:


THE FAMILY (1) Between husband and wife;
Chapter 1. The Family as an Institution (2) Between parents and children;

Did I discuss Borromeo vs. Descallar? That’s falling under (3) Among brothers and sisters, whether of the full or
Article 148. halfblood. (217a)

Mallilin Jr. vs. Castillo Now what’s the purpose of this determination? It is for
Both were already married at the time of purposes of Article 151, that no suit between members of the
their cohabitation. Then they put up this same family shall prosper unless it should appear in a verified
business. The woman was the treasurer, the complaint or petition that earnest efforts toward a compromise
man was the president of that business. have been made but the same have failed. Now the failure to
Then of course the treasurer bought several allege would mean dismissal of the complaint or petition.
properties. There were eight (8) [9 TCTs sa
full text] properties that they acquired during Art. 151. No suit between members of the same family shall
their cohabitation. Now one of those was prosper unless it should appear from the verified complaint or
bought under the Civil Code, but the rest petition that earnest efforts toward a compromise have been
were bought already when the Family Code made, but that the same have failed. If it is shown that no
was in effect. So when they decided to such efforts were in fact made, the same case must be
terminate their relationship, the woman dismissed.
claimed all the properties. So it pays to use
your brain, be the treasurer. This rules shall not apply to cases which may not be the

69
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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

subject of compromise under the Civil Code. (222a) subject property, under pain of litigation.
Petitioners and their other siblings filed a
Now in previous cases, in the case of: Complaint against respondent and the ROD
Guerrero vs. RTC Branch 16 for annulment and cancellation of TCT and
(January 10, 1994) the June 2006 deed of sale, reconveyance,
and damages, on the claim that the deed of
SC says that requirement is mandatory but it sale is a forgery and that as heirs of Macario
used to be jurisdictional in nature; That in and Felicidad, the true owners of the subject
the absence of allegation in the complaint or property, they were entitled to a
petition that earnest efforts toward a reconveyance of the same. On the other
compromise have been made, this absent or hand, respondent filed an unlawful detainer
non-allegation, the court did not acquire case against them in the MeTC.
jurisdiction over the case. Thus it can motu
proprio dismiss the petition. MeTC rendered a decision in favor of
respondent. On appeal, RTC affirmed in
However, this had already been reversed by the SC in the toto. However, on MR, RTC ruled among
recent Decision it rendered in the case of: others that the MeTC should have dismissed
the complaint outright for failure to comply
Romero vs. Singson
with a condition precedent under Section 10,
G.R. No. 200969, August 3, 2015
Rule 16 of the Rules of Civil Procedure, the
In that case, the SC said, “True, that no suit parties being siblings and there being no
between members of the same family shall allegations in the complaint as regards
prosper unless it should appear from a efforts at compromise having been exerted,
verified complaint or petition that earnest a matter that was raised in the answer of
efforts toward a compromise had been defendants Consolation and Rosario.
made. However, the failure of the party
HELD: The procedural issue of lack of
to comply with this condition precedent
attempts at compromise should be resolved
is not a jurisdictional defect. If the
in respondent's favor. True, no suit between
opposing party fails to raise such defect in a
members of the same family shall prosper
motion to dismiss, then there is an implied
unless it should appear from the verified
waiver.”
complaint or petition that earnest efforts
toward a compromise have been made.
FACTS: Petitioners Consolacion Domingo However, the failure of a party to comply
Romero and Rosario Domingo and with this condition precedent is not a
respondent Engracia Domingo Singson - are jurisdictional defect. If the opposing party
siblings. Their parents, Macario and Felicidad fails to raise such defect in a motion to
Domingo, own a 223-sqm piece of property dismiss, such defect is deemed waived.
covered by TCT which was issued in 1953. It
appears that petitioners and other siblings,
So this now the very recent holding of the Court respecting
Rafael and Ramon Domingo, are the actual
Article 151. So, there must be a Motion to Dismiss coming
occupants of the subject property, having
from the respondent. Without that Motion to Dismiss, he
stayed there with their parents since birth.
instead files an Answer, then the presumption is that there is a
On the other hand, respondent took up
waiver on the part of the respondent. So it is cured by the
residence in another place after getting
failure to raise that in a Motion to Dismiss, but subject of
married.
course to the following which cannot be the object of a
In 1981, Macario passed away, while compromise between persons mentioned in Article 150:
Felicidad died in 1997.
1) The civil status of persons;
In 2006, TCT was cancelled and a new
2) The validity of a marriage or legal separation;
certificate of title was issued in respondent's
name, by virtue of a notarized "Absolute 3) Any ground for legal separation
Deed of Sale" ostensibly executed on June
6, 2006 by and between Macario and 4) Future support;
Felicidad - as sellers, and respondent - as 5) The jurisdiction of courts;
buyer. And this despite the fact that Macario
and Felicidad were then already deceased. 6) Future legitime.

Soon thereafter, respondent sent letters to Now the other exclusions to that requirement under Article
her siblings demanding that they vacate the 151, where even if the parties to the case are members of the
70
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SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

same family as mentioned in Article 150, but nonetheless, it attachment, subject of course to the exceptions provided for
will not be a ground for dismissal under the following under Articles 145 and 160. Article 160 is exceptional. And,
exceptions is: a case is between collateral relatives who unlike that of the family home under the Civil Code where in
are not brothers and sisters because what is included in order for it to be considered as a family home, there must be
Article 150 of the last number would be brothers and sisters judicial or extrajudicial constitution. This is no longer true
whether of the full or half blood. And, that if included therein is under the Family Code. As soon as it is occupied as a family
a stranger. Because the interest of a stranger is different from residence, then it is already a family home and thus exempt
the parties to the case. Example there would be a co-owner. already from execution, forced sale, or attachment. And from
Then, included in the suit would be the in-law. Because the in- the time of its constitution and so long as any of its
law is considered to be a stranger, not forming part of family beneficiaries actually resides therein, the family home
relations as defined by Article 150. And, of course special continues to be such, and is exempt from execution, forced
proceedings. Because the term “suit” refers to civil actions. sale, or attachment.
Special proceedings are excluded. So there’s no need for the
For the house to be considered as a family home, there must
parties therein even if the heirs will be killing each other,
be actual occupancy by those mentioned in Article 154, who
because that’s excluded.
are the beneficiaries of the family home.
Other Exclusions of Article 151:
1) Between collateral relatives who are not brothers and Art. 154. The beneficiaries of a family home are:
sisters; (1) The husband and wife, or an unmarried person who is the
2) If a stranger is included head of a family; and

3) In-laws (2) Their parents, ascendants, descendants, brothers and


sisters, whether the relationship be legitimate or illegitimate,
4) Special proceedings cases who are living in the family home and who depend upon the
head of the family for legal support. (226a)

Even if the person/s constituting the family home are not


Chapter 2. The Family Home
actually residing therein, for as long as those mentioned in No.
Art. 152. The family home, constituted jointly by the husband 2 will be occupying the family home, then the family home
and the wife or by an unmarried head of a family, is the shall continue as such. Because suppose the parents, are
dwelling house where they and their family reside, and the working abroad, leaving only the children, the children would
land on which it is situated. fall under No. 2 because they are living with the person
constituting the family home and dependent upon No.
Now, even those whose marriage is void like void under Article 1 for support.
36, may still constitute a family home. Only that in the event of So these are the two (2) requirements.
dissolution, partition and liquidation of the properties acquired
during their cohabitation, the family home shall be There’s a third one, we will discuss the case of Patricio vs.
included in the dissolution. Dario III.

This is not true if there is annulment or legal separation. So there can be no family home, if the lower portion is devoted
Because if you remember, the family home shall be awarded to to business, and the upper portion is used as a family
the spouse with whom majority of the children shall choose to residence, because it should be the entire house that
remain. So the family home will not be included in the should be devoted as a family home and occupied by
dissolution of either the absolute community or conjugal the beneficiaries mentioned in Article 154.
partnership. Rather, it is awarded to the spouse with whom
Who shall constitute the family home?
majority of the children shall choose to remain.
It will be husband, the wife, or the unmarried head of the
Art. 153. The family home is deemed constituted on a house family.
and lot from the time it is occupied as a family residence. And then, the beneficiaries therein would be the parents,
From the time of its constitution and so long as any of its ascendants, descendants, brothers and sisters, whether that
beneficiaries actually resides therein, the family home relationship be legitimate or illegitimate, but:
continues to be such and is exempt from execution, forced
sale or attachment except as hereinafter provided and to the (1) living under the family home; and
extent of the value allowed by law. (223a)
(2) dependent upon the head of the family for
legal support.
The law affords certain protection over the family home. It is
now constituted as soon as the residence is occupied by the So the two requirements must be met. 1) They are living with
family. And it is now exempt from execution, forced sale or No. 1; and 2) dependent upon No. 1 for legal support to be
considered as beneficiaries of the family home.
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To God be the Glory!
PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

Now there is this case of Patricio vs. Dario III. This was
already asked in the BAR. In relation to Article 154, is Article Art. 155. The family home shall be exempt from execution,
159, for as long as it would continue as a family home xxx forced sale or attachment except:
(1) For nonpayment of taxes;
Art. 159. The family home shall continue despite the death of
(2) For debts incurred prior to the constitution of the family
one or both spouses or of the unmarried head of the family for
home;
a period of ten years or for as long as there is a minor
beneficiary, and the heirs cannot partition the same unless the (3) For debts secured by mortgages on the premises before or
court finds compelling reasons therefor. This rule shall apply after such constitution; and
regardless of whoever owns the property or constituted the
family home. (238a) (4) For debts due to laborers, mechanics, architects, builders,
materialmen and others who have rendered service or
furnished material for the construction of the building.
So under 159, it shall continue despite the death of one or
both spouses or of the unmarried head of the family, for a
period of ten (10) years, or for as long as there a minor This No. 2 exception was used by the SC in the cases of:
beneficiary and the heirs cannot partition the same unless the Modequillo vs. Breva
court finds compelling reasons.
The decision of the court had become final
Patricio vs. Dario III and executory before the effectivity of the
The father who constituted the family home Family Code. One of the contentions of the
died leaving the wife. So surviving spouse, lawyer for Modequillo was that should be
and two sons. And the property is located in given retroactive application. By virtue of
Oxford St., Cubao, Q.C. so the value of the Article 256 of the Family Code. But according
property is very high. So, the mother and to the SC, referring to Article 162, it merely
the other son decided to partition. So they says that “The provisions of this Chapter
informed Dario III that they will partition the shall also govern existing family residences
property, and he opposed because according insofar as said provisions are applicable.” So
to him, there is still a minor beneficiary, who according to the court, it is only given
at that time was twelve (12) years old. And prospective application, but not
it was his son. retroactive application. So, in this case,
inasmuch as there was no constitution of the
So, the Court here said, that to be a house as a family home, whether judicially
beneficiary of the family home, three (3) or extrajudicially, and the judgment of the
requisites must concur: court had become final and executory before
the effectivity of the Family Code, then it can
(1) They must be among the relationships
be subject of execution.
enumerated in Art. 154 of the Family
Code; Taneo Jr. vs. CA
(2) They live in the family home; and While it may be true that there was this
constitution of the family home, but the
(3) They are dependent for legal
constitution was made after the judgment
support upon the head of the
has already been rendered by the court. So
family.
constitution made by the debtor, was made
In this case, the SC said that both requisites, two (2) years after the judgment has
1 & 2 had been complied with. become final. So according to the Court, it
Unfortunately, requisite No. 3 is no longer was merely an afterthought. And moreover,
true. The reason is that Marcelino Lorenzo IV the Court had also found out that the house
is not dependent upon the person who was not constructed on the land owned by
constituted the family home. Rather, he is the person constituting the family home. It
dependent for support upon his father who was constructed on a rented lot.
has the obligation to support Marcelino
Now in the case of:
Lorenzo IV. So the third requirement is
absent, and thus the family home can now Manacop vs. CA and E&L Mercantile
be the subject of partition by the members
of the family. In-laws are included as beneficiaries of the
family home, if the family home is
What are the exceptions where the family home shall not be constituted by the spouses—either of the
exempt from execution? Article 155. spouses. But not maids and overseers.
Overseers can’t be considered as
72
To God be the Glory!
PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

beneficiaries of the family home. That;s also exceeds that of what is provided for under Article 157. So he
in Manacop. has to apply to the court and if the court is satisfied that
indeed, the value of the family home exceeded that what is
So what would be the actual value? In the absence of any
provided for under Article 157, then it would order the auction
amendment to Article 157, then we have to be guided by the
of the family home.
amount in this article:
But there are two (2) requirements that must be observed.
Art. 157. The actual value of the family home shall not That’s found in the second paragraph:
exceed, at the time of its constitution, the amount of the 1) No bid below the value allowed for a family home shall be
three hundred thousand pesos in urban areas, and two considered; and
hundred thousand pesos in rural areas, or such amounts as
may hereafter be fixed by law. 2) The proceeds shall be applied first to the amount
mentioned in Article 157, and then to the liabilities under
In any event, if the value of the currency changes after the the judgment and the costs.
adoption of this Code, the value most favorable for the
constitution of a family home shall be the basis of So if it is in Davao, then the first P 300,000 shall be given to
evaluation. the judgment debtor for purposes of again the family home.
And, only the excess will be delivered to the judgment creditor.
For purposes of this Article, urban areas are deemed to So you can only have (1) one family home even if you are Mr.
include chartered cities and municipalities whose annual Pacquiao. He has a house in USA, Forbes, in Alabang, Gensan
income at least equals that legally required for chartered (3 houses), excluding Nanay Dionisia’s. So what will be the
cities. All others are deemed to be rural areas. (231a) bases to consider the house as a family home? We have
several. One of which is the animus revertendi diba? The
Where shall a family home be constituted? intention of returning. So yun ang basis mo.
1) On either the absolute community or the conjugal
partnership; or Art. 161. For purposes of availing of the benefits of a family
home as provided for in this Chapter, a person may constitute,
2) the exclusive property of either spouse with the consent of or be the beneficiary of, only one family home.
the owner spouse; or
3) made by the exclusive property of the unmarried head of
the family.
The exception under Article 160 — this is NOT falling under TITLE VI
PATERNITY AND FILIATION
Article 155.
Chapter 1. Legitimate Children
Art. 160. When a creditor whose claims is not among those
Art. 163. The filiation of children may be by nature or by
mentioned in Article 155 obtains a judgment in his favor,
adoption. Natural filiation may be legitimate or illegitimate.
and he has reasonable grounds to believe that the family
home is actually worth more than the maximum amount
fixed in Article 157, he may apply to the court which Unlike that of the Civil Code, where there are several
rendered the judgment for an order directing the sale of the classifications of illegitimate children. The Family Code now
property under execution. The court shall so order if it finds says, dalawa lang: legitimate and illegitimate.
that the actual value of the family home exceeds the And in illegitimate: recognized and not recognized.
maximum amount allowed by law as of the time of its
constitution. If the increased actual value exceeds the
Art. 164. Children conceived or born during the marriage of
maximum allowed in Article 157 and results from
the parents are legitimate.
subsequent voluntary improvements introduced by the
person or persons constituting the family home, by the Children conceived as a result of artificial insemination of the
owner or owners of the property, or by any of the wife with the sperm of the husband or that of a donor or both
beneficiaries, the same rule and procedure shall apply. are likewise legitimate children of the husband and his wife,
provided, that both of them authorized or ratified such
At the execution sale, no bid below the value allowed for a
insemination in a written instrument executed and signed by
family home shall be considered. The proceeds shall be
them before the birth of the child. The instrument shall be
applied first to the amount mentioned in Article 157, and
recorded in the civil registry together with the birth certificate
then to the liabilities under the judgment and the costs. The
of the child.
excess, if any, shall be delivered to the judgment debtor.

Now, first paragraph of Art. 164 is a disputable


The court may also order the sale of the family home if the
presumption. This can be rebutted by evidence to the
judgment creditor has this belief that the family home’s value
contrary.
73
To God be the Glory!
PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

But the second paragraph, this is so old already because we because of:
already have other methods of becoming pregnant. Artificial
insemination. Of course Mayor Sara, is kasama dyan. Inamin (a) the physical incapacity of the husband to have
nya nagpa artificial insemination siya. sexual intercourse with his wife;

Going back to this, there are men who have no sperm at all. (b) the fact that the husband and wife were living
That we call as azoospermia, the complete absence of sperm. separately in such a way that sexual intercourse was
Also there are also certain dysfunctions, erectile dysfunction, if not possible; or
the man is suffering from diabetes. So better not to eat (c) serious illness of the husband, which absolutely
papayas kase maka cause sya ng dysfunction. So absence of prevented sexual intercourse; xxx
sperm or the required number is not met. So you resort now to
artificial insemination. And if there is complete absence of
So physical impossibility for the husband to have sexual
sperm what is there to freeze. So you go now to doctor and
intercourse with the wife within the first 120 days, you should
ask that a stranger be the donor. So that is part of artificial
memorize this, 120 days of the 300 days which immediately
insemination. So you have no way of selecting who will be the
preceded the birth of the child.
donor. Hindi mo pwedeng sabihin na can I have George
Clooney, Brad Pitt or si James Reid. Because the doctor will For what reasons?
determine first yung physical appearance m. So kung Asian ka,
Asian pa rin. But there is no way for either the donor or the  Physical incapacity of the husband to have sexual
donee to know the parties because of the possible conflict that intercourse with his wife, so impotency is one example;
may arise by reason of the artificial insemination. If you were  The fact that the husband and wife were living separately
the donor, you would be very curious ano kaya ang itsura ng in such a way that sexual intercourse was not possible, so
anak ko. If you were the donee, you would be curious ano if the husband is living in Hong Kong it would be easy for
kaya ang mukha ng donor ko. So it would just be between the him to return to the Philippines especially thru Cebu
doctor and the donor, the doctor and the donee. And it is Pacific;
highly confidential in fact if there is a defect in the donor the
doctor would be held liable for the defect. If it is stranger’s  Seriousness illness of the husband, which absolutely
hormone tissues (?) because if what is produced in ejaculation prevented sexual intercourse, but tuberculosis is not
is not within the normal range pwede kang ifreeze(?) the considered in fact those having tuberculosis becomes
sperm of the husband and if it is sufficient then artificial more sexually active [Diba Mr. Morales? You should know
insemination may be done. In relation to this is those babies because you are a nurse.]
born out thru the test tubes so meron pa man yan maraming
ng ways of conceiving. So that’s Article 164 second paragraph. (2) That it is proved that for biological or other scientific
reasons, the child could not have been that of the husband,
So what does it require? There must be authorization or except in the instance provided in the second paragraph of
certification of the artificial insemination by both these Article 164; or xxx
husband and the wife. And this must be in writing and signed
before the birth of the child. The instrument shall be recorded
in the civil registry together with the birth certificate of the That it is proved that for biological or other scientific reasons,
child. That’s artificial insemination. the child could not have been that of the husband, unless
expressly provide under the second paragraph referring to
So Article 165 also provides for presumption. artificial insemination.

Art. 165. Children conceived and born outside a valid (3) That in case of children conceived through artificial
marriage are illegitimate, unless otherwise provided in this insemination, the written authorization or ratification of either
Code. parent was obtained through mistake, fraud, violence,
intimidation, or undue influence.
The exception of course if you remember are those born of
void marriages under Article 36 and 53, these children are That in case of children conceived through artificial
legitimate. insemination, there is this employment of any of the vices of
the consent where there is mistake, fraud, violence,
Now when to impugn the legitimacy of the child? The
intimidation, or undue influence.
enumeration in Article 166 is exclusive.
But the fact that the child does not have the same blood type
Art. 166. Legitimacy of a child may be impugned only on the with the father does not mean that the child is not the child of
following grounds: the father. The wise test would be the DNA test. That is
already accepted by the courts. It is expensive but that is the
(1) That it was physically impossible for the husband to have best way of determining whether the child is that of the father.
sexual intercourse with his wife within the first 120 days of the
300 days which immediately preceded the birth of the child

74
To God be the Glory!
PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

So the presumption of legitimacy continues even if the mother If the husband or, in his default, all of his heirs do not reside
may have declared against its legitimacy or may have been at the place of birth as defined in the first paragraph or where
sentenced as an adulteress. it was recorded, the period shall be two years if they should
reside in the Philippines; and three years if abroad. If the birth
Art. 167. The child shall be considered legitimate although the of the child has been concealed from or was unknown to the
mother may have declared against its legitimacy or may have husband or his heirs, the period shall be counted from the
been sentenced as an adulteress. discovery or knowledge of the birth of the child or of the fact
of registration of said birth, whichever is earlier.
There is this always presumption of legitimacy of the child.
So 1, 2 or if the birth of the child is concealed, 1, 2, 3. So 1 if
Now this provides for presumption if the marriage is they, the husband or the heirs, live in the same city or
terminated and the wife contracts a subsequent marriage, municipality where the birth took place or was recorded. 2
before this was not found in the Civil Code. years if it is not within the same city or municipality. And three
years if abroad.
Art. 168. If the marriage is terminated and the mother
contracted another marriage within three hundred days after If it is concealed, then take note that the reckoning point will
such termination of the former marriage, these rules shall be:
govern in the absence of proof to the contrary: 1) Discovery;
(1) A child born before one hundred eighty days after the 2) Knowledge (because knowledge is different from
solemnization of the subsequent marriage is considered to discovery); or
have been conceived during the former marriage, provided it
be born within three hundred days after the termination of the 3) Fact of registration.
former marriage; Whichever is earlier.
(2) A child born after one hundred eighty days following the And then, as a GR: It is only the husband who has the
celebration of the subsequent marriage is considered to have right to impugn the legitimacy of the child.
been conceived during such marriage, even though it be born
within the three hundred days after the termination of the But exceptions can be found in Article 171.
former marriage.
Art. 171. The heirs of the husband may impugn the filiation of
Art. 169. The legitimacy or illegitimacy of a child born after
the child within the period prescribed in the preceding article
three hundred days following the termination of the marriage
only in the following cases:
shall be proved by whoever alleges such legitimacy or
illegitimacy. (1) If the husband should died before the expiration of
the period fixed for bringing his action;
So all you have to know is to remember before one hundred (2) If he should die after the filing of the complaint
eighty days. So to which marriage does the child belong? This
without having desisted therefrom; or
is only used if there is absence of proof to the contrary ha.
(3) If the child was born after the death of the husband.
In the absence of proof to the contrary, if the wife is pregnant
and the child is born before one hundred eighty days provided
it be born within three hundred days after the termination of So these are now the exceptions where the heirs of the
the former marriage then it shall be presumed to belong to the husband may impugn the legitimacy of the child.
first marriage. Now in the cases of Padua and Babiera, there is no
But if the child is born after one hundred eighty days even it application of the provisions on presumption of legitimacy of
be born within three hundred days after the termination of the the child under Article 164, par. 1. Likewise, there is also no
former marriage then the child shall be presumed to belong to application of the grounds impugning the legitimacy of the
the subsequent marriage. So yun lang ang isipin nyo. This was child, prescription and heirs because the child is actually not
asked in the 1999 Bar Exam. the child of the wife and the husband. This can only be use if
the husband says that the child is not his child; or the heirs
Period within which to impugn legitimacy of the child, that’s would say that the child is not that of the husband.
170.
But if the heirs would claim that the child is not the child of
both the husband and the wife, then there is no application of
Art. 170. The action to impugn the legitimacy of the child
the presumptions under Article 164; likewise on the grounds
shall be brought within one year from the knowledge of the for impugning the legitimacy of the child, the prescriptive
birth or its recording in the civil register, if the husband or, in a
period, and grounds for the heirs are allowed to impugn the
proper case, any of his heirs, should reside in the city or legitimacy of the child.
municipality where the birth took place or was recorded.

75
To God be the Glory!
PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

Now suppose a child is born when the spouses are separated. Where they got married in December and
This was the issue, whose child was it? This was the issue in the following December they had a child and
the: the following December filed a petition for
annulment. So December, December,
Case of Heirs of Juan Dizon
December. December they got married, the
Where Juan Dizon have 2 children with following December they had a child, the
Carolina and executed a notarized document following December the husband filed this
whereby acknowledges that daughters Jinkie petition for declaration of nullity of marriage
and (I forgot the name of the other one) are on the ground that their marriage is a
his legitimate children with Carolina. But at bigamous marriage. So this was granted by
the time of the birth of the children, Caroline the Court and then the father was granted
is still married to Danilo When Dizon died; the visitation rights. According to Theresa,
Jinkie and the other daughter presented this illegitimate parents are not given visitorial
notarized document to claim their share in rights under the law; and the child should be
the estate of Juan Dizon. declared illegitimate and thus should use her
surname.
So according to the court, there was a
succinct attempt on the part of the children The RTC denied the petition. The MR citing
to impugn their very own legitimacy, which best interest of the child.
the law does not allow because the status is
Went to the Court of Appeals, affirmed. MR,
fixed by the law; and it is only the husband
reversed.
or in exceptional cases the heirs who may
impugn the legitimacy of the child. The So the appellate court now said that the
husband, because it is he who is confronted child is actually the child of Theresa with
with the scandal brought about by the Mario Gopiao, the husband of Theresa. And
infidelity of the wife. So he might just simply here the Court used the basis in order that
keep quiet over it. As well as the economic the child cannot be considered as the child
interests involved. of the first marriage, it is absence of sexual
access during the first 120 days of the 300
That’s the reason why it is only the husband
days that immediately preceded the birth of
who is given the right to impugn the
the child. That is the proof beyond
legitimacy of the child; and exceptionally by
reasonable doubt that should be used.
the heirs. And the presumption is that: if the
Absence of sexual access during the first 120
child is born during a valid marriage, the
days of the 300 days that immediately
child is presumed to belong to that valid
preceded the birth of the child. Because it
subsisting marriage.
was shown that Mario is living along 4
So Jinkie and the other daughter are kilometres away from where Theresa and
presumed to be the legitimate children of Hilario were living. So the access, according
Carolina and Danilo. Not with Juan Dizon. to the Court there are only a scant of 4
kilometres apart and so it would be very
This was also the ruling used by the SC in the case of: easy for Mario to have sexual access with
Liyao vs. Tanhoti-Liyao Theresa.

She was merely separated when there was I was waiting for this to be asks in the Bar.
an addition on the part of the daughter that Ong vs. Diaz
indeed William the child, the big is the child
of William with the mother but because Jinky, who was already married, had an
William was born during the subsistence of affair with Rogelio Ong. The husband is a
the marriage of Corazon and the husband, Japanese National who only come to the
then the presumption is that the child Philippines once a year. So lonely she had
appears to be the child of Corazon with the this affair with Rogelio.
husband and not with Tanhoti-Liyao.
Remember my joke, “Marry Her!” You
[Please refer to the case found in the remember that joke? Ay ‘di na talaga. Pati
outline] joke? [lol]
And this one is waiting to be asks in the Bar: So in this case, so that is what Junky did,
she had an affair with Ong and of course
Concepcion vs. Almonte they had a child. Unfortunately Ong decided
to abandon her so she filed this petition for

76
To God be the Glory!
PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

recognition. Of course, together with it, (1) The open and continuous possession of the status of a
support. Rogelio said that that is the child of legitimate child and
Jinky with her husband, Hasegawa. The
(2) Any other means allowed by the Rules of Court and special
presumption under the law that the child
laws.
born during the subsistence of marriage
belongs to the marriage, he died so he was So if you remember your evidence, bible isn’t it, entries in the
substituted by the heirs so Jinky insisted that bible, may pedigree. So these are the means of proving
the child undergo DNA test to determine the legitimate filiation.
paternity of the child and this was granted
by the court despite opposition from the So how will you prove illegitimate filiation? In the same
heirs because it was found out that manner as proving legitimate filiation, only that if the
Hasegawa before the birth of the child never illegitimate child based the claim on the secondary proof, the
came to the Philippines and even law requires that the petition for acknowledgment and
immediately after the birth of the child. So recognition must be brought during the lifetime of the putative
this is one exception because there was father, this is article 175. Otherwise the action to claim
proof that there was this absence of the illegitimacy will be barred by the death of the father.
alleged husband at the time before the
pregnancy of Jinky as well as immediately Art. 173. The action to claim legitimacy may be brought by
after the birth of the child. So there is a the child during his or her lifetime and shall be transmitted to
need to determine the paternity of the child the heirs should the child die during minority or in a state of
and thus allowing the child to undergo DNA insanity. In these cases, the heirs shall have a period of five
testing. years within which to institute the action.

Before we proceed to the other provisions, legitimate children


shall have the following rights:
Chapter 2. Proof of Filiation
Art. 174. Legitimate children shall have the right:
So how do you prove filiation? Under article 172, there are 2
ways of proving filiation: primary and secondary. (1) To bear the surnames of the father and the mother, in
conformity with the provisions of the Civil Code on Surnames;
Art. 172. The filiation of legitimate children is established by (2) To receive support from their parents, their ascendants,
any of the following: and in proper cases, their brothers and sisters, in conformity
(1) The record of birth appearing in the civil register or a with the provisions of this Code on Support; and
final judgment; or (3) To be entitled to the legitimate and other successional
(2) An admission of legitimate filiation in a public rights granted to them by the Civil Code.
document or a private handwritten instrument and
signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate
filiation shall be proved by: Chapter 3. Illegitimate Children

(1) The open and continuous possession of the status of Art. 176. Illegitimate children shall use the surname and shall
a legitimate child; or be under the parental authority of their mother, and shall be
entitled to support in conformity with this Code. The legitime
(2) Any other means allowed by the Rules of Court and of each illegitimate child shall consist of one-half of the
special laws. legitime of a legitimate child. Except for this modification, all
other provisions in the Civil Code governing successional rights
So the PRIMARY proofs would consist of either: shall remain in force.

The record of birth appearing in the civil register or a final


Now what about the illegitimate children, we go to article 176.
judgment;
Now this is important by virtue of the amendment brought
and the second would be an admission of legitimate filiation in
about by RA 9255 on allowing the illegitimate children to use
a public document or a private handwritten instrument and
the surname of the father and of course the decision of the
signed by the parent concerned.
court in the case of:
In the absence of the primary proof we go to the
Antonio v Grande
SECONDARY proofs consisting of the:
So illegitimate children shall use the
surname and shall be under the parental
77
To God be the Glory!
PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

authority of their mother, and shall be Now what about the recognition of the child
entitled to support in conformity with this in back pay, application for recognition of
Code. The legitime of each illegitimate child backpay where the child was claimed to be
shall consist of 1/2 of the legitime of a the child of the claimant can it be considered
legitimate child. Now remember that the as public document falling under paragraph
support for the ilegitimate child shall not be 1 of article 172 of the family code. The SC
charged against absolute community or the said, “it may be conceded that the
conjugal partnership, it shall be taken from Application for Recognition of Back Pay is a
the exclusive property of the parent obliged public document nevertheless it was not
to give support to the illegitimate child. executed to admit filiation of Jose with
Although, again if you remember, if you talk Rodolfo. The public document contemplated
about he absolute community property, if under article 172 refers to written admission
the parent has no sufficient property to of filiation and not as obtaining in this case
answer for the support of the illegitimate wherein the public document was executed
child it can be charged against the as an application for the recognition of rights
community property which is not true with to back pay, the contents being, only a
respect to the conjugal partnership unless all prima facie evidence of the facts stated
the responsibilities mentioned in the said therein.”
article 121 had been fully satisfied, it can be
Labagala v Santiago
charged against the conjugal partnership.
What about income tax return where the
So most of the cases involving illegitimate filiation would
name of the child was found or claimed to
involve the use of article 175 paragraph 2.
be dependent on the person who filed the
income tax return? These are merely proof
Art. 175. Illegitimate children may establish their illegitimate that taxes are paid but not to prove filiation.
filiation in the same way and on the same evidence as
legitimate children. Locsin v Locsin

The action must be brought within the same period specified in As between the original certificate of live
Article 173, except when the action is based on the second birth obtained from the local civil registrar
paragraph of Article 172, in which case the action may be where the record is kept and that of a
brought during the lifetime of the alleged parent. certified true copy obtained from the civil
registrar general and entries on both are
Fernandez v CA different which shlla prevail?

What did he petitioner use as evidence? One The petitioner applied for issuance of letters
would be photographs taken during the of administration. To prove that he is the
baptism of the child where the alleged father illegitimate child, he presented the certificate
was carrying the child showering the child of live birth that he obtained from the local
with gifts, the testimony of the priest who civil registrar of Iloilo and this was the
administered the baptism of the child and of original certificate and the on formant
course the birth certificate of the child. But therein entered was Juan Locsin.
all these, according to the Court were not On the other hand the oppositors to the
sufficient to prove that the child is the child issuance of letter of administration obtained
of the alleged father because pictures are a certified copy form the civil registrar
not sufficient proof to prove filiation. At most general, the informant in that certificate of
these are hearsay. What about the live birth was that one Escamina, the mother
testimony of the pries? The testimony of the of the petitioner.
priest who administered the baptism of the
child was through the information of the So of the 2, which shall prevail?
mother (tinuro pa ng mother nay an ang According to the SC the one coming from
father). The information was given by the the civil registrar general should prevail over
mother of the child. So the priest testified, of that certificate of live birth that was obtained
course, through the information given by the from the local civil registrar. There were
mother. And certificate of live birth, in the several discrepancies that were noted by the
absence of any proof that the father had SC Aside from the fact that this was already
participated in the preparation thereof, it is removed from the original register, the book
insufficient to prove filiation. This was true in it was nt properly explained why this record
the case of Fernandez v CA. was removed from that. Another reason is

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SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

that with respect to the what came from the


civil registrar general. From a mass of TITLE VIII.
records it would take several employees to SUPPORT
locate one particular birth record so it would
be impossible to the employees of the civil
Support is not subject to execution or attachment. It is never
registrar general to place therein information
fixed because it is always dependent on the needs of the
that would be against the petitioner so that
recipient, as well as the resources of the person obliged to give
would be considered as proof that would
support. It is reciprocal on those bound to support each other,
prevail over that of the claim of the
demandable from the time it is needed, demandable even if
petitioner.
the recipient is beyond the age of majority, and demandable
Now what about the pictures where the even if the recipient is already married.
mother and he child where beside the coffin
So what does it compromise?
of the dead person? So with the more
reason that that would not be accepted
because otherwise it would be very easy for Art. 194. Support comprises everything indispensable for
any person claiming to be the heir or the sustenance, dwelling, clothing, medical attendance, education
child of the dead and utilize it in claiming the and transportation, in keeping with the financial capacity of the
estate of the deceased. family.

Bernabe v Alejo The education of the person entitled to be supported referred


to in the preceding paragraph shall include his schooling or
This was already asked twice in the bar. This training for some profession, trade or vocation, even beyond
involved a child born under the civil code, the age of majority. Transportation shall include expenses in
the father died, both the husband and the going to and from school, or to and from place of work.
wife died.
So the mother of the minor child filed this Comprises everything indispensable for sustenance, dwelling,
petition. And of course it was supposed clothing, medical attendance, education and transportation, in
where the daughter claiming that this is keeping with the financial capacity of the family. Which is the
already barred by reason of article 175 complete opposite of support under Article 290 of the Civil
paragraph 2. That this should be brought Code, because under Article 290 of the Civil Code, it is in
during the lifetime of the putative father but keeping with the social position. Now it is in keeping with the
the SC said that because the child was born financial capacity.
under the civil code, he is governed by
The education of the person entitled to be supported referred
article 285 of the civil code where the action
to in the preceding paragraph include his schooling or training
for recognition can be brought 5 years after
for some profession, trade or vocation even beyond the age of
attaining the age of 21, so thus article 285
majority.
of the civil code is a substantive right. That
cannot be repealed by the subsequent Transportation shall include expenses going to and from
passage of the family code, So 4 years after school, and to and from place of work.
the child has attained the age of majority so
Who are those obliged to support each other?
the child can still file an action for
recognition despite the death of the father.
Art. 195. Subject to the provisions of the succeeding articles,
Now the 2nd paragraph is merely a means or manner to compel the following are obliged to support each other to the whole
the putative father to recognize the child. It is not a form of extent set forth in the preceding article:
recognition. That open and continuous possession of status of
an illegitimate child or legitimate child, does not if it is (1) The spouses;
satisfied, because the child uses the surname, known in the (2) Legitimate ascendants and descendants;
community as such and treated as such does not mean that
there is already recognition. This is merely a mode to compel (3) Parents and their legitimate children and the
recognition or acknowledgment on the part of the putative legitimate and illegitimate children of the latter;
father but not recognition per se. That would fall under the 1 st
(4) Parents and their illegitimate children and the
paragraph of article 172 in relation to 175.
legitimate and illegitimate children of the latter; and
So there is this case of De la rosa v Vda de Damian. So let’s
(5) Legitimate brothers and sisters, whether of full or
continue next meeting.
half-blood.

Now spouses of course, the obligation to give support between


September 7, 2016 (EEscovilla & ALLora)
spouses springs from the fact of marriage.
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SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
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Then we have legitimate ascendants and descendants; parents order established in the preceding article shall be followed,
and their legitimate children, and the legitimate or illegitimate unless the concurrent obligees should be the spouse and a
children of the later; parents and their illegitimate children, child subject to parental authority, in which case the child shall
and the legitimate or illegitimate children of the latter; and be preferred.
legitimate brothers and sisters whether in the full or half blood.
But support for the illegitimate children shall be the sole The third paragraph refers to two or more recipients. The
responsibility of the illegitimate parent. That cannot be taken order of preference shall be the spouse first, then the child;
from the absolute community or conjugal partnership. unless, the child is an unemancipated child, then the
unemancipated child, the minor child, shall take preference
over that of the spouse, because the resources of the person
Art. 199. Whenever two or more persons are obliged to give
support, the liability shall devolve upon the following persons obliged to give support is not sufficient. So the preference will
be the spouse and then the child. But if the child is a minor,
in the order herein provided:
the child shall be given preference.
(1) The spouse;
That is why support is never fixed, because it can be reduced
(2) The descendants in the nearest degree; or increased proportionately according to the reduction or
increase of the necessities of the recipient, or the resources or
(3) The ascendants in the nearest degree; and
means of the person obliged to furnish the same.
(4) The brothers and sisters. (294a)
That is why when you will be attending your bar review, the
support will be greater than when you are still studying,
199 is the more important provision. This refers to two or more because you have to buy your vitamins, your milk, the food,
persons who are obliged to give support. the fruits, and you want to be alone in your room because
So the order of preference shall be: when you get tired, you cry. That’s normal. Especially when it’s
already October. Then there will be additional expenses
 the first is of course the spouse; because you will be traveling to Cebu, then you go to
Manaoag, then you go to Sto. Nino. Where else?
 then if there is no spouse you go down first, to the
descendant of the nearest degree; When shall it be demandable?
 then you go up, the ascendant in the nearest degree;
Art. 203. The obligation to give support shall be demandable
 then the last would be the brothers and the sisters. from the time the person who has a right to receive the same
Now for parents, if the parent has legitimate and illegitimate needs it for maintenance, but it shall not be paid except from
children, under the Family Code, the parent can ask from the date of judicial or extrajudicial demand. xxx
either, whether it is legitimate or illegitimate, unlike that of
Article 294 of the Civil Code, where the order of preference in What comes to mind? 1169 isn’t it? On obligations and
intestate succession shall be observed. Meaning, it shall be the contracts? When is a person deemed to have incurred in
legitimate child first before the illegitimate child. So the parent delay? From the time of the judicial or extrajudicial demand.
shall demand first from the legitimate child then from the
illegitimate child. xxx
Support pendente lite may be claimed in accordance with the
Art. 200. When the obligation to give support falls upon two
Rules of Court.
or more persons, the payment of the same shall be divided
between them in proportion to the resources of each. Payment shall be made within the first five days of each
corresponding month or when the recipient dies, his heirs shall
However, in case of urgent need and by special circumstances,
not be obliged to return what he has received in advance.
the judge may order only one of them to furnish the support
provisionally, without prejudice to his right to claim from the
other obligors the share due from them. xxx In fact it cannot be the subject of compensation. If the support
received is more than what the child or the person entitled to
receive support is in excess of the required amount, that
200, this refers to two or more persons who are obliged to
cannot be the subject of compensation; and if it is given in
give support. The division shall be in proportion to the
advance and the recipient dies, the heirs are under no
resources of each.
obligation to return what has been paid in advance.

xxx
Art. 204. The person obliged to give support shall have the
When two or more recipients at the same time claim support option to fulfill the obligation either by paying the allowance
from one and the same person legally obliged to give it, should fixed, or by receiving and maintaining in the family dwelling
the latter not have sufficient means to satisfy all claims, the the person who has a right to receive support. The latter

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Ateneo de Davao University | The College of Law | Kwatro Manresa

alternative cannot be availed of in case there is a moral or from the father. But the father is known for
legal obstacle thereto. being without any means of livelihood
because he’s dependent upon his father, si
Now 204 had been cited by the court in two cases: Don Paco Delgado. And because there was
Mangonon and Lim vs. Lim, where the person obliged to this denial of the request for support, so
give support has two options: either to pay the amount fixed, they filed this petition.
or the allowance fixed, or to receive the person entitled to Of course the grandfather now
receive support in his family dwelling. acknowledged that if he has the obligation to
The second option is not available if there is legal or moral give support, he said, I have the option;
grounds, or legal or moral obstacle. instead of paying the allowance fixed I will
just receive the children in my family
dwelling.
Art. 205. The right to receive support under this Title as well
as any money or property obtained as such support shall not But according to the court the second option
be levied upon on attachment or execution. cannot be availed of by Don Paco Delgado
because of what happened. Prior to the
What cannot be the subject of execution or attachment? It commencement of this action, the
would only be legal support. relationship between respondent Francisco,
on one hand, and petitioner and her twin
But for contractual support, it may be the subject of execution daughters, on the other, was indeed quite
or attachment, in excess of the legal support needed by the pleasant. The correspondences exchanged
person entitled to receive support. among them expressed profound feelings of
thoughtfulness and concern for one
Gan vs. Reyes
another’s well-being.
The Court held that support cannot be
All of these, however, are now things of the
stayed by an appeal. It is immediately
executory. So no appeal, and no payment of past. With the filing of this case, and the
allegations hurled at one another by the
supersedeas bond, because it is immediately
executory; it cannot be the subject of an parties, the relationships among the parties
had certainly been affected. So he could no
appeal.
longer avail of the second option.
De Asis vs. Court of Appeals
Which is also true in the case of:
Likewise, it cannot be the subject of a
Lim vs. Lim
compromise, the future support.
Because according to the court, Sheryl, the
Where the petitioner agreed to have the
mother of the minor children, cannot be
petition for support dismissed provided that
compelled to the house where, according to
the respondent would also dismiss the
her, is the place where she witnessed the
counterclaim. According to the SC that is not
unfaithfulness of the husband.
allowed. To allow renunciation, because that
is equivalent to renunciation, or transmission In this case however, the SC said, the
or compensation of the family right of a obligation of the grandparents, of the
person to support is virtually to allow either ascendants of the nearest degree, to give
suicide or conversion of the recipient to a support is limited only to the descendant,
public burden. but not to the spouse, because the
obligation of the grandparents is only limited
It cannot be the subject of compromise
to relatives by blood.
between the petitioner and the respondent.
Mangonon vs. Court of Appeals In the case of the spouse, the spouse is a
complete stranger. So the spouse can
This refers to the children, who were the demand support only from the other spouse,
grandchildren of Paco Delgado, one of the but not from the in-laws.
prominent families in Manila, whereby the
Dolina vs. Vallecera
marriage was annulled. After the annulment
the wife became pregnant. She had twins. This is actually a case involving violation of
She migrated to the USA and married. But R.A. 9262. However, included in the
when the children were about to enter complaint is a prayer for support of their
college — it’s very expensive in the USA — alleged illegitimate child. The court
so the mother decided to ask for support dismissed the petition because that prayer

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SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

for support is one supposed to be a petition erroneous legitimation of CCC. And thus CCC
for recognition, because once the father is not entitled to receive support from me.
recognizes the child as his illegitimate child,
You know what the Supreme Court applied
then support follows as a matter of law. So it
in this case? Estoppel. Article 1431. That is
was error on the part of the petitioner to
what was applied by the Supreme Court.
include in the petition a prayer for support
Ang layo naman non. Obligations and
without first proving filiation. She has first to
Contracts yan ah. So the principle of
file a petition for recognition and
estoppel finds application and now bars BBB
acknowledgement of the child. And once the
from making an assertion contrary to his
court grants, then support follows as a
previous representations. He should not be
matter of law.
allowed a responsibility arising from his own
Lua vs. Lua misrepresentation. He is bound by the
effects of the legitimation process.
Suppose support is given in advance. What
can be deducted from the support in So for the men, if you feel like
arrears? acknowledging a child that is not yours,
ayan, estoppel. First time ever.
Only those that would relate to medical
expenses, dental expenses, and purchases
through credit card for dried goods and
groceries, but not for the maintenance of the TITLE IX
cars or the value of the cars that were given PARENTAL AUTHORITY
to the children, because the son was given a
BMW. Iba talaga ang Chinese. Kasi yung sa Chapter 1. General Provisions
anak na babae Volkswagen lang. Diba Mr.
Lao? Art. 209. Pursuant to the natural right and duty of parents
over the person and property of their unemancipated children,
Anyway, that cannot be the subject of parental authority and responsibility shall include the caring for
deduction for the support in arrears. Only and rearing them for civic consciousness and efficiency and the
those that are limited to the basic necessities development of their moral, mental and physical character and
of those entitled to receive support. well-being.
Now suppose the child is legitimated by subsequent marriage Art. 210. Parental authority and responsibility may not be
of the parents, but actually, one of the children that was renounced or transferred except in the cases authorized by
legitimated was not the child of the father, but was the child of law.
the mother with a different man. This is what happened in the
case of AAA vs. BBB. Ano kasi ito eh, 9262.
So when can it be transferred? Of course, in the case of
AAA vs. BBB guardianship, adoption of the child. In case of emancipation of
the child, parental authority terminates, and then deprivation
Anyway, they lived together first, without of parental authority or suspension of parental authority for
the benefit of marriage. They had two reasons provided for under the Family Code.
children. But prior to the common-law
relationship, AAA, the woman, has already a So who shall exercise parental authority?
son with a different man, si CCC. During the
cohabitation, they had two children, si DDD Art. 211. The father and the mother shall jointly exercise
and EEE. When DDD and EEE were born, parental authority over the persons of their common children.
they (AAA and BBB) decided to get married. In case of disagreement, the father's decision shall prevail,
And isn’t it that, after legitimation shall unless there is a judicial order to the contrary.
follow. But the trouble was, the father also
allowed CCC to be legitimated by signing the Children shall always observe respect and reverence towards
birth certificate of CCC. But the relationship their parents and are obliged to obey them as long as the
turned sour because AAA found out that BBB children are under parental authority. (311a)
is having an affair with FFF. So they
separated, and in the course of the petition If the children are legitimate, of course, the parents. In case of
there was this prayer for the support of the disagreement, the father’s decision shall prevail. Because if the
children. child is illegitimate, the child is under the parental authority of
the mother.
So the defense now of BBB was that, CCC is
actually not my son. There was just an
Art. 212. In case of absence or death of either parent, the
parent present shall continue exercising parental authority.
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SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

The remarriage of the surviving parent shall not affect the When shall substitute parental authority be exercised? That’s
parental authority over the children, unless the court appoints 214.
another person to be the guardian of the person or property of
the children. (n) Art. 214. In case of death, absence or unsuitability of the
parents, substitute parental authority shall be exercised by the
The remarriage of the surviving parent shall not affect the surviving grandparent. In case several survive, the one
parental authority over the children, that is why the step- designated by the court, taking into account the same
parent cannot exercise parental authority over the consideration mentioned in the preceding article, shall exercise
stepchildren. The law does not grant to the step-parent. So the authority. (355a)
yang mga madrasta madrasta, that’s not true.
So who are those authorized to exercise substitute parental
Now we go to the more important provision, Article 213.
authority aside from the grandparents?

Art. 213. In case of separation of the parents, parental 1) Eldest brother or sister; and the law did not amend the
authority shall be exercised by the parent designated by the age; it still is 21 years of age unless unfit or disqualified.
Court. The Court shall take into account all relevant 2) The child’s actual custodian over 21 years of age unless
considerations, especially the choice of the child over seven
unfit or disqualified.
years of age, unless the parent chosen is unfit. (n)
Take note that there might be two guardians over the child:
Now we go to the tender age presumption principle, that no guardian over the property or administrator over the property
child below 7 years of age shall be separated from the mother of the unemancipated child, and another guardian over the
unless the court finds compelling reasons to order otherwise. person of the unemancipated child.
And what are those compelling reasons? The reasons were
enumerated by the Supreme Court in the case of:
Gualberto vs. Gualberto Chapter 2. Substitute and Special Parental Authority
When may a mother be deprived of the
custody of the child despite the fact that the Now let’s go back to Article 215, no. This is the filial privilege
child is below 7 years of age? rule.

From FT of the case: Art. 215. No descendant shall be compelled, in a criminal


case, to testify against his parents and grandparents, except
The so-called tender-age presumption when such testimony is indispensable in a crime against the
under Article 213 of the Family Code may be descendant or by one parent against the other. (315a)
overcome only by compelling evidence of
the mothers unfitness.
So the exceptions are, aside from what is mentioned in Article
The mother has been declared unsuitable to 215, would be if:
have custody of her children in one or more
1) The child would voluntarily testify
of the following instances:
2) Even if the child is compelled to testify, but it involves a
 Neglect
civil action
 Abandonment
These are the exceptions.
 Unemployment
Art. 217. In case of foundlings, abandoned neglected or
 Immorality
abused children and other children similarly situated, parental
 Habitual drunkenness authority shall be entrusted in summary judicial proceedings to
heads of children's homes, orphanages and similar institutions
 Drug addiction
duly accredited by the proper government agency. (314a)
 Maltreatment of the child
 Insanity or
Wala naming elections so wala nang foundling. But foundlings
actually are those whose parents are unknown.
 Affliction with a communicable
Abandoned children, these are children that are completely
disease.
forsaken; so yung iniwan sa ospital. Ang foundling yung
nakalagay sa box, or if you are a Catholic, ilagay doon sa may
In relation to the tender age principle is the best interest of the
holy water like Grace Poe.
child principle. Again, asked in the bar, both twice.

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SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

Neglected children are those who receive inadequate care; and children living in their company and under their parental
abused children, it refers to children that may be abused, authority subject to the appropriate defenses provided by law.
whether physical or sexual abuse.
Parental authority will be exercised by the heads of children’s Under R.A. 6809, the age of majority has been lowered from
homes, orphanages, and other similar institutions, duly 21 to 18. But if the child is still living with the parent and under
accredited by the DSWD. parental authority, even though between those ages of 18 and
21, the civil liability still is with the parents.
Who exercise special parental authority?
There are only two requirements:
Art. 218. The school, its administrators and teachers, or the 1) In their parental authority, and
individual, entity or institution engaged in child are shall have
special parental authority and responsibility over the minor 2) Is living in their company.
child while under their supervision, instruction or custody. So even if the child is already married, but complies with the
Authority and responsibility shall apply to all authorized two requirements under Article 221, the parents are still civily
activities whether inside or outside the premises of the school, liable for the tort, the act or omission committed by the child.
entity or institution. (349a)
Art. 222. The courts may appoint a guardian of the child's
Art. 219. Those given the authority and responsibility under property or a guardian ad litem when the best interests of the
the preceding Article shall be principally and solidarily liable for child so requires. (317)
damages caused by the acts or omissions of the
unemancipated minor. The parents, judicial guardians or the
persons exercising substitute parental authority over said
minor shall be subsidiarily liable.
Chapter 4. Effect of Parental Authority Upon the
The respective liabilities of those referred to in the preceding Property of the Children
paragraph shall not apply if it is proved that they exercised the
proper diligence required under the particular circumstances.
The more important one is Art 225.
All other cases not covered by this and the preceding articles
shall be governed by the provisions of the Civil Code on quasi- Art. 225. The father and the mother shall jointly exercise legal
delicts. guardianship over the property of the unemancipated common
child without the necessity of a court appointment. In case of
Special parental authority can be exercised concurrently with disagreement, the father's decision shall prevail, unless there is
either substitute or parental, but not parental and substitute. a judicial order to the contrary.
What would be the liability? The school, or the teacher, is Where the market value of the property or the annual income
primarily and solidarily liable. The parents are subsidiarily liable of the child exceeds P50,000, the parent concerned shall be
in case something should happen to the child by reason of the required to furnish a bond in such amount as the court may
act of another child. determine, but not less than ten per centum(10%) of the value
of the property or annual income, to guarantee the
We are already done with 219 in relation to 218. The effect of
performance of the obligations prescribed for general
parental authority upon the persons of the children, what are
guardians.
the obligations of the parents over their children? Remember
this is one of the essential marital obligation of marriage. Non- A verified petition for approval of the bond shall be filed in the
compliance with any of those as enumerated in the case of proper court of the place where the child resides, or, if the
Molina, you just read that for the purposes of the Molina child resides in a foreign country, in the proper court of the
guidelines. place where the property or any part thereof is situated.
The petition shall be docketed as a summary special
proceeding in which all incidents and issues regarding the
Chapter 3. Effect of Parental Authority performance of the obligations referred to in the second
Upon the Persons of the Children paragraph of this Article shall be heard and resolved.
The ordinary rules on guardianship shall be merely suppletory
But let’s go to Article 221, where the parents are still liable for except when the child is under substitute parental authority, or
the act or omission of children even already between the ages the guardian is a stranger, or a parent has remarried, in which
of 18 and 21. case the ordinary rules on guardianship shall apply.

Art. 221. Parents and other persons exercising parental The unemancipated child has property, so who shall be the
authority shall be civilly liable for the injuries and damages administrator?
caused by the acts or omissions of their unemancipated
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SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

It would be the parents. In case of disagreement, the father’s (3) Upon judicial declaration of abandonment of the child in a
decision shall prevail unless there is a judicial order to the case filed for the purpose;
contrary.
(4) Upon judgment of a competent court divesting the party
There is a further requirement, but there is no need for a court concerned of parental authority; or
order or a court decree granting the parents administration
over the property of the unemancipated child. It is not (5) Upon judicial declaration of absence or incapacity of the
required under Art 225. Only that if the value of the property person exercising parental authority.
or the income of the property of the unemancipated child
exceeds P50,000, the law requires that the parents furnish a In adoption of the child – Take note under RA 8552, it is only
bond in an amount not less than 10% of the value or the the adopted child who can rescind the decree of adoption, no
income. The purpose of the bond is to guarantee the longer the adopting parent.
performance of the obligations prescribed for general
guardian. Art. 230. Parental authority is suspended upon conviction of
Where can you find it? the parent or the person exercising the same of a crime which
carries with it the penalty of civil interdiction. The authority is
We go to the Rules of Court. And the petition must be automatically reinstated upon service of the penalty or upon
verified. pardon or amnesty of the offender. (330a)
Where shall it be filed?
Now, suspension of parental authority without need of filing a
The place where the child resides. If the child is residing in subsequent petition for revival – when the parent is sentenced
a foreign country, the place where the property is found. to a penalty that carries with it interdiction.
This Rule (Art. 225) applies if the parents are the ones But upon service or upon pardon, then there is automatic
administering over the property of the Unemancipated Child. reinstatement of parental authority.
Because the ordinary rules on guardianship will be the primary
rule in the following cases: But there is permanent deprivation of parental authority under
Art 232.
1) when the child is under Substitute parental authority;
2) the guardian is a stranger; or Art. 232. If the person exercising parental authority has
subjected the child or allowed him to be subjected to sexual
3) the parent has remarried. abuse, such person shall be permanently deprived by the court
This time it will be the ordinary rules of guardianship. But if it of such authority. (n)
is the parents then it will be Art 225, the ordinary rules on
guardianship shall be merely suppletory. So Art 231 refers to suspension but maybe a ground also for
permanent deprivation. Initially it is supposed to be merely
suspension of parental authority but if the circumstances so
warrant it might be permanent deprivation of parental
Chapter 5. Suspension or Termination of Parental authority. That’s 231.
Authority
Art. 228. Parental authority terminates permanently: Art. 231. The court in an action filed for the purpose in a
related case may also suspend parental authority if the parent
(1) Upon the death of the parents; or the person exercising the same:
(2) Upon the death of the child; or (1) Treats the child with excessive harshness or cruelty;
(3) Upon emancipation of the child. (327a) (2) Gives the child corrupting orders, counsel or example;

Death of the parents, death of the child and emancipation of (3) Compels the child to beg; or
the child. (4) Subjects the child or allows him to be subjected to
Then the following terminates parental authority but may be acts of lasciviousness.
revived by judgment. The grounds enumerated above are deemed to include cases
which have resulted from culpable negligence of the parent or
Art. 229. Unless subsequently revived by a final judgment, the person exercising parental authority.
parental authority also terminates:
If the degree of seriousness so warrants, or the welfare of the
(1) Upon adoption of the child; child so demands, the court shall deprive the guilty party of
parental authority or adopt such other measures as may be
(2) Upon appointment of a general guardian;
proper under the circumstances.

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SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

The suspension or deprivation may be revoked and the The law vests on the father and mother
parental authority revived in a case filed for the purpose or in joint parental authority over the persons of
the same proceeding if the court finds that the cause therefor their common children. In case of absence
has ceased and will not be repeated. or death of either parent, the parent
present shall continue exercising parental
Now 233, for those who are exercising substitute parental authority. Only in case of parents’ death,
authority shall have the same authority over the person of the absence, or unsuitability may substitute
child as the parents. parental authority be exercised by the
surviving grandparent.
Art. 233. The person exercising substitute parental authority The legitimate father is still preferred over
shall have the same authority over the person of the child as the grandparents despite the latter’s
the parents. demonstrated love and affection. Wealth,
too, is not a deciding factor. The father’s
In no case shall the school administrator, teacher of individual
previous inattention is inexcusable and
engaged in child care exercising special parental authority
merits only the severest criticism. It
inflict corporal punishment upon the child. (n)
cannot, however, be construed as
abandonment.
But if you’re a teacher, sino nagateach dyan sa college? The
school administrator teacher or individual engaged in child care Eslao vs. CA
are absolutely prohibited from inflicting corporal punishment
upon the child. So yang mga Grade 11 saka first year college, In Eslao according to the court even if there
kasi diba may mga 17[years old] pa dyan. is manifest renunciation on the part of the
mother but what is only given is temporary
Let’s go to CASES: custody to the grandparents, it cannot be
Santos Sr. vs. CA considered as complete renunciation of the
part of the mother renouncing parental
In the case of Santos Sr., who without authority. Unless that would fall under the
consent from the grandparents – you grounds for deprivation of parental authority.
remember Santos in the the petition for
declaration of nullity under Article 36? He This was not true in the case of Eslao. What
has a child with his wife, because he is a she did was to leave one of the daughters
soldier and because of the nature of his work with the mother-in-law who claimed that she
he has to leave the child with the in-laws, would be very lonely if the mother would be
and the in-laws are Mangalanon. taking with her the two grandchildren. What
Mangalanon is mayaman. Then in one of his she did was to leave one of the daughters.
visits he asked permission that he should be When she decided to remarry and go to US
allowed to take the child with him para with the new husband she went back to get
mamasyal. Unfortunately he did not return her daughter. This was opposed by the
the child so there is now a case because grandmother claiming that there was
according to the grandparents the father had abandonment.
abandoned the child. There never was an But according to the court even if there is
instance that he remembered the birthdays definite or manifest renunciation that would
of the child. No gifts, no cards, no letters still not be considered as abandonment on
during special occasions like birthdays, the part of the mother.
Christmases, new years, none. Moreover
they are more financially capable of
From FT: When a parent entrusts the
supporting the child unlike that of Santos.
custody of a minor to another, such as a
But according to the court there was no friend or godfather, even in a document,
abandonment on the part of the father. what is given is merely temporary custody
Despite that the grandparents’ demonstrated and it does not constitute a renunciation of
love and affection and wealth, those are not parental authority. Even if a definite
sufficient to deprive the parent of parental renunciation is manifest, the law still
authority. The father’s inattention is disallows the same.
inexcusable but not a ground for deprivation
or suspension of parental authority. Gualberto vs. Gualberto
This Case was included in the 2006 bar
From FT:
exam. This refers to the mother being a
lesbian. Does the fact that the mother is a
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SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

lesbian already sufficient to deprive her of moral and social situations of each parent,
parental authority? other factors may be considered to
ascertain which one has the capability to
Is a mother allegedly a lesbian unfit to have
attend to the physical, educational, social
custody over a child below seven years of
and moral welfare of the children.
age?
As a general rule a mother is to be
The SC in this particular case enumerated
preferred in awarding custody of children
what are the grounds for the mother may be
under the age of 7. The caveat in Article
deprived of parental authority.
213 of the Family Code cannot be ignored,
Grounds: except when the court finds cause to order
otherwise. The so-called “tender-age
1. Unemployment presumption” under Article 213 may be
2. Immorality overcome only by compelling evidence of
the mother’s unfitness. The mother has
3. Neglect been declared unsuitable to have custody
4. Abandonment of her children in one or more of the
following instances: neglect, abandonment,
5. Habitual drunkenness unemployment, immorality, habitual
6. Drug addiction drunkenness, drug addiction, maltreatment
of the child, insanity or affliction with a
7. Maltreatment of the child communicable disease. Here, Crisanto cites
immorality due to alleged lesbian
8. Insanity or affliction with a
relationship as the compelling reason to
communicable decease
deprive Joycelyn of custody. It has indeed
But not moral laxity or sexual preference. been held that under certain circumstances,
Different sexual preference does not make the mother’s immoral conduct may
the mother unfit to have custody over the constitute a compelling reason to deprive
minor child. It was in this case that the SC her of custody.
had this principle of “best interest of the
child”. What does it mean? It pervades But sexual preference or moral laxity alone
Philippine cases involving adoption, does not prove parental neglect or
guardianship, support, personal status, incompetence.
minors in conflict with the law, and child
custody. Not even the fact that a mother is a
prostitute or has been unfaithful to her
husband would render her unfit to have
From FT: The convention on the Rights of
custody of her minor child.
the Child provides that “in all actions
To deprive the wife of custody, the husband
concerning children, whether undertaken by
must clearly establish that her moral lapses
public or private social welfare institutions,
have had an adverse effect on the welfare of
courts of law, administrative authorities or
the child or have distracted the offending
legislative bodies, the best interest of the
spouse from exercising parental care.
child shall be a primary consideration. The
principle of “best interest of the child” Of course the 2nd paragraph of ART 213 on
pervades Philippine cases involving the tender age presumption: No child under
adoption, guardianship, support, personal seven years of age shall be separated from
status, minors in conflict with the law, and the mother unless the court finds compelling
child custody. reasons to order otherwise.
In these cases, it has long been recognized The parent or one of the parents is deprived of the
that in choosing the parent to whom custody of the child is a petition of writ of habeas
custody is given, the welfare of the minors corpus a proper remedy? This was answered by the SC in
should always be the paramount the case of:
consideration. Courts are mandated to take
into account all relevant circumstances that SALIENTES vs. ABANILLA
would have a bearing on the children’s well- The wife refused to separate from her
being and development. parents so in a fit of anger the husband left
Aside from the material resources and the the house of the in-laws. They have a minor
child. But the wife works as a international
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SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

flight stewardess. Whenever the mother is granted joint custody of the minor child to
abroad the father would try to get the child both parents.
but the maternal grandparents refused. So
The SC held that it was error of the appellate
this was petition that was filed by the father,
court to grant custody to both parents
the writ of habeas corpus.
because they were not separated-in-fact,
According to the court it is a proper remedy. only that the husband is a foreigner wants to
In fact this was reiterated in the case of live in Boracay because of the sea and the
Madriñan (?). I did not include that in the beautiful women who are so you know
list because it’s more of procedure rather “bare”.
than falling under the FC. But merely is a
[Nagchika si Ma’am G sa iyang boracay
reiteration of the fact that the petition for
experience, ang mga taga Davao ignorante
issuance of writ of habeas corpus is a proper
daw makakita ug mga foreigners na topless
remedy if one of the parents is deprived of
or nagsuot ug itsy bitsy teeny weenie bikini.]
custody over the minor child in the event of
the absence of the other parent especially of In this case the husband wanted to stay in
the mother who has supposed to have Boracay but the mother wants to live in
custody of the child below 7 years of age. Greenbelt. She wanted to stay in Makati, but
Simone, the 4-year old daughter stays with
From FT: the father. Then one of those days she
visited the husband and the child. After
Habeas corpus may be resorted to in cases asking money from the husband, she asked
where rightful custody is withheld from a him if she could take the child with her. But
person entitled thereto. she did not return the child. So this was now
xxx the issue, the appellate court said, you have
joint custody over the child.
In a petition for habeas corpus, the child’s
welfare is the supreme consideration. The Sabi ng SC it was error for the appellate
Child and Youth Welfare Code unequivocally court to grant joint parental custody over the
provides that in all questions regarding the child because under the law Article 213: No
care and custody of the child, his welfare child under seven years of age shall be
shall be the paramount consideration. separated from the mother by reason of the
so-called “tender age presumption” which
Article 213 of the FC deals with the judicial can only be overcome by compelling
adjudication of custody and serves as a evidence of the mother’s unfitness.
guideline for the proper award of custody by
the court. Petitioners can raise it as a Supposed the parents have already separated, meaning the
counterargument for Loran’s petition for marriage has been terminated. Can they enter into an
custody. But it is not a basis for preventing agreement respecting custody of the child, that they exercise
the father to see his own child. Nothing in both parental authority over the child?
the said provision disallows a father from This is the case of:
seeing or visiting his child under 7 years of
age. Dacasin vs. Dacasin
The marriage was terminated through
GAMBOA-HIRSCH vs. CA divorce because the husband is am
Spouses Franklin and Agnes have a 4-year American. Sharon returned to the PH
old daughter named Simone. Their problem bringing with her their child. Subsequently
started when Agnes wanted to stay in Makati the husband followed the wife and here they
while Franklin would like to stay in their agree through an agreement. They executed
conjugal home in Diniwid, Boracay Island, an agreement whereby both of them shall
Malay, Aklan. One day, Agnes went to exercise joint parental authority over the
Boracay, asked for money and for Franklin’s child. But of course the ex-wife did not
permission for her to bring their daughter to honor the agreement so this was the case
Makati City for a brief vacation. He later that was filed because he wanted to have
however, discovered that neither Agnes nor the agreement enforced.
their daughter would be coming back to The SC said that agreement where they
Boracay. He then filed a petition for habeas exercise joint parental authority over the
corpus for Agnes to produce Simone. The CA child is void. They cannot contract away
what is provided for in the family code that
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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

in the event of termination of the marriage


and the child is below 7 years of age it is the
mother who shall have custody over the TITLE X
minor child unless the mother is unfit. That
would have been proper if they have not EMANCIPATION AND AGE OF MAJORITY
been divorced, they can exercise joint
parental authority over the child. But not Let’s go to emancipation. With the passage of RA 6809 there
when they have already been divorced. are only two provisions that were retained, Articles 234 and
236.
Special parental authority. There is the case of:
SCHOOL OF THE HOLY SPIRIT OF Art. 234. Emancipation takes place by the attainment of
QUEZON CITY vs. TAGUIAM majority. Unless otherwise provided, majority commences at
Involving special parental authority where the age of eighteen years. (As amended by RA 6809)
the teacher was found to have been xxx
negligent that resulted to the death of one of
the pupils through drowning. She exercises Art. 236. Emancipation for any cause shall terminate parental
what we call as special parental authority authority over the person and property of the child who shall
and by reason of her negligence resulted to then be qualified and responsible for all acts of civil life, save
the death of the child. The teacher was held the exceptions established by existing laws in special cases.
liable for 7 million pesos. Sabi ng court the Contracting marriage shall require parental consent until the
mere admonition of not going to the deeper age of twenty-one.
part of the pool is insufficient. The warning
is insufficient, she should have done greater Nothing in this code shall be construed to derogate from the
than a mere warning. She could have asked duty or responsibility of parents and guardians for children and
another person to guard the children instead wards below twenty-one years of age mentioned in the second
of merely giving them a simple reminder. and third paragraphs of Article 2180 of the Civil Code.

From FT: Art 234 merely is 18 years as amended. So emancipation takes


place by the attainment of majority and unless otherwise
As a teacher who stands in loco parentis to provided majority commences at the age of eighteen years
her pupils, Taguiam should have made sure that is how it is now worded.
that the children were protected from all
harm while in her company. She should have Of course 236, that emancipation for any cause shall terminate
known that leaving the pupils in the parental authority, this is by reason of Article 231. Ma’am
swimming pool area all by themselves may reads Art 236 [see provision above]. In relation to that is
result in an accident. A simple reminder “not Article 221 [see provision above]:
to go the deepest part of the pool” was
If two of the requisites are present:
insufficient to cast away all the serious
dangers that the situation presented to the 1. Living in their company and
children, especially Taguiam knew that
2. Under their parental authority for as long as the ages
Chiara Mae cannot swim. Dismally,
are between 18 and 21 the parents are still civilly
respondent created an unsafe situation
liable.
which exposed the lives of all the pupils
concerned to real danger. This a clear
violation not only of the trust and confidence
reposed on her by the parents of the pupils TITLE XI
but of the school itself.
SUMMARY JUDICIAL PROCEEDINGS IN
We will not discuss RA 7610. Did you take this up in criminal THE FAMILY LAW
law? Child abuse? Do you remember in your criminal law 2, Chapter 1. Scope of Application
ha? Kasama ba ito?
Art. 238. Until modified by the Supreme Court, the procedural
By the way we have, I do not know if dean would accept that rules in this Title shall apply in all cases provided for in this
kasi we have a committee and we suggested that there should code requiring summary court proceedings. Such cases shall
be another course, all special laws, penal statutes. Another be decided in an expeditious manner, without regard to
subject siya kasi sa dami na. But did you discuss this together technical rules. (n)
with RA 9252 kasi penal man din siya, diba? RA 7610 is also
penal in nature.

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SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

You remember there are certain provisions in the FC that alienation or encumbrance of the absolute community
speak of summary proceedings. cannot be obtained so you go to court to obtain
judicial authorization.
1) Perfect example is ART 41 – petition for declaration
of presumptive death. It is a summary proceeding. 9) Art 124. Refers to the conjugal partnership property.
2) Judicial authorization to encumber the 10) Art 217. Yong who shall exercise parental authority
community or the absolute community over (Grace Poe) foundlings, abandoned, neglected
property if the consent of other spouse cannot children.
be obtained involving transactions.
These are the ones covered by the procedure mentioned in
3) Then you have judicial authorization to Title 11 of the FC. So summary in nature. In fact in the case
encumber the separate property of the spouse of:
that had abandoned the family home. It also
Republic vs Tango
speaks of summary proceedings.
It follows that no appeal can be had of the
4) Art 225 filing of a bond also speaks of summary
trial court’s judgment in a summary
proceeding.
proceeding for the declaration of
The summary proceedings here will not be governed by the presumptive death of an absent spouse
rules of court. This is under the rules laid down under Title 11 under Article 41 of the FC. It goes without
of the Family Code, summary judicial proceedings in the Family saying, however, that an aggrieved party
Code. may file a petition for certiorari to question
abuse of discretion amounting to lack of
These are the procedures that you are to observe when you
jurisdiction. Such petition should be filed in
file for:
the CA in accordance with the Doctrine of
 A petition for judicial declaration for presumptive death. Hierarchy of Courts.

 Petition for judicial authorization. Also in the disposition of Another important provision is Article 256 – retroactive effect
either the absolute community property or conjugal unless vested rights will be prejudiced
partnership it also speaks of judicial authorization.
Art. 256. This Code shall take effect one year after the
So the rules here should be observed. Take note of Article 247,
completion of its publication in a newspaper of general
respecting the rules, says that:
circulation, as certified by the Executive Secretary, Office of
the President.
Art. 247. The judgment of the court shall be immediately final
and executory. (n)
Natapos na tayo. So surnames, after surnames we will have
absence and if the absence is already determined there is
There is no appeal. That is why in the cases: Republic vs. death, we go to funerals. Where shall it be found? Go to civil
CA, Republic vs. Loreno, and Republic vs. Tango – NO register. Surnames muna tayo because buhay pa (XD). Pag
appeal. nawala we go to absence tapos confirmed dead so we go to
What will be the recourse in the event the state would oppose funerals. Saan mo makikita yan? Declaration of absence etc we
the grant of decree of presumptive death? What did the SC go to the civil register.
said in the case of Villanueva ba yon? Mabigat kayo dalahin talaga [nanambok naman gud Ma’am ].
What would be the recourse? Mabigat dalahin ang review at saka prebar there is always that
in our minds that we will not be able to deliver what we
Certiorari diba? Instead of appeal. It should be certiorari by supposed to deliver in a review. Mas mabuti pa yong first year
virtue of Article 247 of the Family Code - judgment of the court turuan mo. Pero ang mag ba-bar at kayo mabigat.
shall be immediately final and executory.
REMINDER: Anyway just read the cases ha, PLEASE! Because
Aside from Article 41: I’m SURE that most of you who were under me received the
5) Article 51. Article yong distribution of the same cases that were given to you except those that are newly
presumptive legitimes of the children. decided by the SC. By the way I did not include in the
handouts those cases decided by the SC that are not in
6) Article 69. Fixing of family domicile. accordance with the provisions of FC.
7) Article 73. Exercise of legitimate profession and Examples:
there is an opposition on the exercise of the
legitimate profession. Ravina vs. Villa Abrille

8) Article 96. This refers to the judicial authorization in Where the husband decided to sell his
the event written consent of the other spouse to the exclusive property but included therein the

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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

conjugal partnership property. The wife perfection of the contract retroacts to the date of the original
opposed the sale of the conjugal, but despite agreement. That’s contrary to Art 118. Because if we follow
that he of course without the written that particular provision under OBLICON it stands to reason
consent of the wife sold the property to that the property is still owned by the husband because it
Ravina. The SC instead of saying that it is retroacts to the date. Always remember that there are
void said the wife is aware but did not give separate provisions for the conjugal partnership and the
consent it is merely voidable, buang ang SC!! absolute community property, so do not be confused kasi sa
And the wife has 5 years within which – that bar kasama sila. Take note kung ano yan klase na property it
is really a deviant decision. would be easy for you to answer.
De Leon vs. De Leon And always have in mind what Atty. Tay said mahirap mag
exam sa Ateneo madali sa Bar. So you would be able to make
The disposition of the conjugal partnership
it! 
property was during the effectivity of the CC.
But there was no consent coming from the
wife. Trouble is the SC said without that
consent of the wife it is void. It is merely
voidable!! Amaw man ang SC!!
I did not give that even to my first year students they will be
confused. But I am giving this to you for purposes of informing
you that not all decisions of the SC are in accordance of the
law. Those are deviant decisions.
I want you also to REMEMBER: If what is involved in the
transaction would be Conjugal or absolute Community property
always remember that it should be the provision of the FC or
the CC whichever is applicable that should apply NEVER go to
the provisions on OBLICON except that case of:
Pelayo vs. Perez
Remember that case? Where the SC said
that sale being a consensual contact is
perfected by mere consent. But in that case
however take note that the wife was aware,
in fact she signed as witness. There was
really consent on the part of the wife only
that the signature was erroneously placed on
that space provided for witnesses.
Then another provision in OBLICON is Article 1187 in relation
to that is ART 118 of the FC.

Article 1187. The effects of a conditional obligation to give,


once the condition has been fulfilled, shall retroact to the day
of the constitution of the obligation. xxx
Art. 118. Property bought on installments paid partly from
exclusive funds of either or both spouses and partly from
conjugal funds belongs to the buyer or buyers if full ownership
was vested before the marriage and to the conjugal
partnership if such ownership was vested during the marriage.
In either case, any amount advanced by the partnership or by
either or both spouses shall be reimbursed by the owner or
owners upon liquidation of the partnership.

When is ownership vested? When shall it become part


of conjugal partnership property? And when shall it be
considered exclusive property of the owner spouse?
But if we go to art 1187 of OBLICON the nonpayment of the
purchase price is merely a suspensive positive condition that
once the condition is fulfilled the contract or the constitution or
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PERSONS AND FAMILY RELATIONS REVIEW
SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

September 14 (MCeballo) (1) The court decrees otherwise, or

THE NEW CIVIL CODE OF THE (2) She or the former husband is married again to another
person.
PHILIPPINES
Article 372. When legal separation has been granted, the
TITLE XIII wife shall continue using her name and surname employed
before the legal separation.
Use of Surnames
Article 373. A widow may use the deceased husband's
Article 364. Legitimate and legitimated children shall surname as though he were still living, in accordance with
principally use the surname of the father. article 370.
Article 365. An adopted child shall bear the surname of the
adopter. Now, in cases of annulment, the wife may still continue using
the surname of the husband prior to the annulment unless the
There’s no more natural child acknowledged by both parents, court decrees otherwise or both have already contracted a
we have only two types of children under the Family Code; the second marriage .
legitimate child shall use the surname of the mother (?) but But there is an exception when the married woman is
under RA 9255 , may use the surname of the father. So, if compelled to revert to her maiden name; if she is the guilty
recognized by the father but the choice does not come from party in the petition for annulment that was subsequently
the father, the choice is with the child whether to use the granted by the Court . The widow may still continue using the
surname of the recognizing father or not. But remember that surname of the husband affixing “Vda.de”.
before the effectivity of RA 9255, the illegitimate child, even if
recognized by the father shall use the surname of the mother .
Article 374. In case of identity of names and surnames, the
That was the decision in *** [di na sinama kasi irrelevant na
younger person shall be obliged to use such additional name
ang case].
or surname as will avoid confusion.
RA 9255, by virtue of its administrative order, has retroactive
Article 375. In case of identity of names and surnames
effect. The law itself is silent but if you go to the administrative
between ascendants and descendants, the word "Junior" can
order/implementing rules it is given retroactive effect.
be used only by a son. Grandsons and other direct male
What about a married woman? A married woman has the descendants shall either:
option. It is not mandatory in the part of the married woman
(1) Add a middle name or the mother's surname, or
to use the surname of the husband . The provision of the law
says “may use” and the option available to the married woman (2) Add the Roman numerals II, III, and so on.
is found in Art. 3702. Her husband's full name, but prefixing a
Article 376. No person can change his name or surname
word indicating that she is his wife, such as "Mrs." So you are
without judicial authority.
Mrs. Juan Santo, you cannot be Mrs. Nina Santos because you
cannot be a mistress to yourself . The “Mrs.” Is the Article 377. Usurpation of a name and surname may be the
abbreviation of the term mistress so its incorrect to call the subject of an action for damages and other relief.
paramour of the husband ‘Mistress’. We’re elevating the status
of the paramour to becoming the second wife , so never call Article 378. The unauthorized or unlawful use of another
the mistress, maski mas maganda pakinggan ang paramour person's surname gives a right of action to the latter.
kaysa sa mistress , never call the paramour of the husband as Article 379. The employment of pen names or stage names is
the mistress, let her be a paramour forever. permitted, provided it is done in good faith and there is no
injury to third persons. Pen names and stage names cannot be
Article 371. In case of annulment of marriage, and the wife is usurped.
the guilty party, she shall resume her maiden name and
Article 380. Except as provided in the preceding article, no
surname. If she is the innocent spouse, she may resume her
person shall use different names and surnames.
maiden name and surname. However, she may choose to
continue employing her former husband's surname, unless:
In case of identity of names and surnames, the younger
person shall be obliged to use such additional name or
surname as will avoid confusion. In case of identity of names
2Article 370. A married woman may use: and surnames ,remember that the word "Junior" can be used
(1) Her maiden first name and surname and add her husband's surname, only by a son, otherwise he shall use ‘the 3 rd” , “the 4th” “the
or 5th” for grandsons and other direct male descendants or add a
(2) Her maiden first name and her husband's surname or middle name or the mother’s surname or add the roman
(3) Her husband's full name, but prefixing a word indicating that she is numerals II, III and so on.
his wife, such as "Mrs."

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SY 2016 Trancsription | From the lectures of Atty. Lydia Galas
Ateneo de Davao University | The College of Law | Kwatro Manresa

No person can change his name or surname without judicial corrected or changed only by reference to other
authority, you have to read this in relation to RA 9048 allowing existing record or records.
now the change of name or surname not thru judicial
2) The first name or nickname is ridiculous,
proceedings but administrative proceedings by simply filing a
tainted with dishonour, or extremely difficult to
petition before the office of the Local Civil Registrar of the
write or pronounce.
place where the record is kept. But the grounds that may be
cited as enumerated by the SC, there are only 2 in fact under 3) The new first name or nickname has been
RA 9048, but there are 4 under the case of Julian Lim habitually and continuously used by the
Carulasan Wang (G.R. No. 159966. March 30, 2005)3. petitioner and he has been publicly known by
that by that first name or nickname in the
Under RA 9048 it ceases to be judicial in nature, it becomes
community; or
administrative. So, file the petition with the office of the local
civil registrar although there is still the requirement of having it 4) The change will avoid confusion.
published for 2 consecutive weeks in a newspaper of local
publication . The following are the grounds in Julian Lim Carulasan
Wang case:
Now, this was further amended because under 9048 does not
have change in the sex as well as the date of birth and, of  A sincere desire to adopt a Filipino name to erase
course, nationality because these are substantial in nature. signs of former alienage, all in good faith and without
prejudicing anybody; and
However, subsequent to that there is this new law that
amended further RA 9048 , that is RA 10172, allowing further  When the surname causes embarrassment and there
the correction in gender as well as the date of birth of is no showing that the desired change of name was
the petitioner and it ceases to be a petition, it becomes for a fraudulent purpose or that the change of name
merely in the form of an affidavit. would prejudice public interest.

In cases of those falling under RA 9048, this was asked in the So, I said this has been amended by RA 10172, allowing now a
bar, how many times can you avail of the remedy of changing correction in the gender as well as in the date of birth. But for
ones name or nickname, it’s only once. purposes of the change in gender, the law requires that
attached to it is a certification issued by an accredited
Now, the petition is filed in the place where the record is kept. government physician attesting to the fact that the
But if you have transferred to another part of the country and petitioner has not undergone sex change or sex
it will be very expensive on your part to go back to the place transplant.
where the record is kept, then you can file it in person, the law
requires that the filing must be in person, before the local civil Respecting the date of birth, the petition shall be attached with
registrar nearest to where you are residing. And if you are the earliest school record or earliest school document such as
already living abroad, before the office of the nearest Consul , but not limited to medical records, baptismal certificate and
the nearest Consular Office of the Republic of the Philippines, other documents issued by religious authorities.
in person again . So this is now the amendment under RA 10172. Just
And the grounds mentioned in RA 9048 are : remember the requirement or the additional requirements
under this law respecting change of gender.
1) Clerical or typographical error;
Now, who has the right to impugn the decision of the Local
Refers to a mistake committed in the performance of Civil Registrar granting the change?
clerical work in writing, copying, transcribing or typing
an entry in the civil register that is harmless and It is the Civil Registrar General. He has to decide whether
innocuous, such as misspelled name or misspelled to impugn the decision of the LCR granting the petition for
place of birth or the like, which is visible to the eyes change of name .
or obvious to the understanding, and can be
RA 10172
Section 3. Section 5 of the Act is hereby amended to read as
3 (a) when the name is ridiculous, dishonorable or extremely difficult to follows:
write or pronounce;
(b) when the change results as a legal consequence, as in legitimation; "SEC. 5. Form and Contents of the Petition. – The petition for
(c) when the change will avoid confusion; correction of a clerical or typographical error, or for change of
(d) when one has continuously used and been known since childhood by first name or nickname, as the case may be, shall be in the
a Filipino name, and was unaware of alien parentage; form of an affidavit, subscribed and sworn to before any
(e) a sincere desire to adopt a Filipino name to erase signs of former person authorized by law to administer oaths. The affidavit
alienage, all in good faith and without prejudicing anybody; and shall set forth facts necessary to establish the merits of the
(f) when the surname causes embarrassment and there is no showing petition and shall show affirmatively that the petitioner is
that the desired change of name was for a fraudulent purpose or that competent to testify to the matters stated. The petitioner shall
the change of name would prejudice public interest.
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state the particular erroneous entry or entries, which are children and the Court allowed them to use
sought to be corrected and/or the change sought to be made. the surname of their stepfather without
them being adopted, the Court said that this
The petition shall be supported with the following documents: is merely to erase the stigma of illegitimacy.
(1) A certified true machine copy of the certificate or of the This cannot be applied by analogy to the
page of the registry book containing the entry or entries case at bar because they were illegitimate
sought to be corrected or changed; children, here she is a legitimate child. So,
there can be no application of the decision of
(2) At least two (2) public or private documents showing the the Court in Llaneta and Calderon.
correct entry or entries upon which the correction or change
shall be based; and Julian Lim Carulasan Wang

(3) Other documents which the petitioner or the city or This was already been asked in the bar.
municipal civil registrar or the consul general may consider This involved the petition filed by the mother
relevant and necessary for the approval of the petition. of the minor child who wishes to drop the
No petition for correction of erroneous entry concerning the middle name ‘Carulasan’ because according
date of birth or the sex of a person shall be entertained except to the mother they would be migrating to
if the petition is accompanied by earliest school record or Singapore, the mother being a Chinese and
earliest school documents such as, but not limited to, medical it would be easier for Julian’s integration to
records, baptismal certificate and other documents issued by Singaporean society if he would drop the
religious authorities; nor shall any entry involving change of middle name because in Singapore, there is
gender corrected except if the petition is accompanied by a no middle name and there is no letter ‘R’ but
certification issued by an accredited government the Court denied the petition saying that the
physician attesting to the fact that the petitioner has only reason advanced by Julian for dropping
not undergone sex change or sex transplant. The his middle name is convenience. How such
petition for change of first name or nickname, or for correction change of name would make his integration
of erroneous entry concerning the day and month in the date into Singaporean society easier and
of birth or the sex of a person, as the case may be, shall be convenient is not clearly established. That
published at least once a week for two (2) consecutive weeks the continued use of his middle name would
in a newspaper of general circulation. cause confusion and difficulty does not
constitute proper and reasonable cause to
Furthermore, the petitioner shall submit a certification from the drop it from his registered complete name.
appropriate law enforcements, agencies that he has no After all, according to the Supreme Court,
pending case or no criminal record. she is just simply a minor and she can
The petition and its supporting papers shall be filed in three decide for herself when she reaches the age
(3) copies to be distributed as follows: first copy to the of majority whether or not to pursue the
concerned city or municipal civil registrar, or the consul petition for dropping of middle name.
general; second copy to the Office of the Civil Registrar In the matter of the adoption of
General; and third copy to the petitioner." Stephanie Nathy Astorga Garcia
(G.R. No. 148311. March 31, 2005)
Now, we have cases involving surnames.
It was asked in the bar twice.
Republic v Vicencio
(G.R. No. 88202 December 14, 1998) This refers to the motion for partial
reconsideration of the adopting parent who
Where the child asked that she be allowed to actually is the father of Stephanie. The
use the surname of the stepfather. But father wishes that the child continue using
according to the Court in that case, the surname Garcia, the mother’s surname
petitioner being a legitimate child is not and of course the court granted the petition.
allowed to have the surname of the While it may be true that there is nothing in
stepfather be used by her because the use our law that touches on the use of middle
of a surname if merely a privilege it is not a name except in Art. 375 paragraph 1, in
right so there will be more legal cases there is identity of names and
consequences if she will be allowed to surnames between ascendants and
change her surname from that of the father descendants. But according to the Court, in
to that of the stepfather, in the absence of granting the motion for reconsideration,
any showing that her stepfather had adopted Stephanie’s continued use of her mother’s
her. While she invoked the decision of the surname as her middle name will maintain
Court in the cases of Calderon and her maternal lineage. It is to be noted that
Llaneta where these are illegitimate Article 189(3) of the Family Code and
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Section 18, Article V of RA 8552 (law on claiming that there is nothing in RA 9255
adoption) provide that the adoptee remains compelling the child to use the surname of
an intestate heir of his/her biological parent. the father if the father recognizes the child
So to allow Stephanie to use her mother’s as his illegitimate child.
surname as her middle name will not only
Of course, the Supreme Court ruled in favor
sustain her continued loving relationship with
of the mother because , the Court said: the
her mother but will also eliminate the stigma
use of the word "may" in the provision
of her illegitimacy.
readily shows that an acknowledged
And in relation to that, please remember illegitimate child is under no compulsion to
that in all cases involving adoption ,the use the surname of his illegitimate father.
paramount consideration is the best interest The word "may" is permissive and operates
of the child . to confer discretion upon the illegitimate
children.
Republic v Capote
(G.R. No. 157043, February 2, 2007) But what happens to the Administrative order respecting the
Implementing rules and regulations? The Court held that the
The issue here is what would be the middle
Court has the constitutional prerogative and authority to strike
name of a child , illegitimate child who is not
down and declare as void the rules of procedure of special
recognized by the father? The Court held
courts and quasi- judicial bodies when found contrary to
that the illegitimate child not recognized by
statutes and/or the Constitution.
the father has no middle name . He will only
use the surname of the mother but has no Now the Administrative order cannot prevail over substantive
middle name. That’s the case of Republic v law, hence according to the court, that provision under the IRR
Capote. is considered to be void.
Grande v Antonio What about the parental authority? Art. 176 provides that
(G.R. No. 206248, February 18, 2014) illegitimate children shall be under the parental authority of the
mother. Despite the recognition of the father, the child or the
Where the father at the time of the
children shall still remain under the parental authority of the
relationship already had a prior marriage
mother.
then they decided to end their relationship
so Grace the woman wanted to move to Does the mother have to consent if the child wishes to use the
another country bringing with her their 2 surname of the father? The answer is no, it is purely
illegitimate children who at the time of their discretionary on the part of the child and does not need the
cohabitation were not actually recognized by consent of the mother if the child would opt to use the
the father. So when Grace was about to surname of the father.
depart , he now filed this petition for Judicial
Remo v Sec of DFA
Recognition of that Recognition that he had
(G.R. No. 169202, March 5, 2010)
earlier executed recognizing the children as
his illegitimate children praying further for When she filed this application for renewal of
parental authority, parental physical custody, her passport, she decided that she would
then correction/change of name of minors revert to her maiden name. This was denied.
and issuance of writ of preliminary According to her, Art. 370 says ‘may’ use the
injunction. Now, according to the court it surname, so she wants to revert to her
was superfluous on the part of Petitioner to maiden name.
have that Deed of Voluntary Recognition of
Paternity to be judicially recognized because But the SC said that it may not be allowed.
the mere act of executing that Deed of While it is true that it is optional on the part
Recognition is already sufficient recognition of the married woman, however once you
of filiation of the illegitimate children so have exercised the option, you could no
there’s no need. But what caused further longer revert to your former maiden name,
aggravation is the order of the lower Court otherwise more confusion will arise and what
to change the surname of the children from will prevent you further later from again
that of the mother to the father, citing of reverting to your husband’s surname if it will
course the Implementing Rules and not serve your purpose.
Regulations by the Civil Registrar General in
relation to RA 9255 because in the So, the Court held that no, once you have
Administrative Order it states now “shall use opted to use the surname of your husband
the surname of the father”. So the mother of then you could no longer have that changed
course questioned the order of the Court
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unless there will be valid grounds to allow copy of the same;


the married woman to revert.
(3) The relatives who may succeed by the law of intestacy;
(4) Those who may have over the property of the absentee
some right subordinated to the condition of his death. (185)
TITLE XIV
ABSENCE Article 386. The judicial declaration of absence shall not take
effect until six months after its publication in a newspaper of
CHAPTER 1
general circulation. (186a)
Provisional Measures in Case of Absence
Article 381. When a person disappears from his domicile, his One is 2 years, if he has prior to the disappearance appointed
whereabouts being unknown, and without leaving an agent to an administrator over the property, 5 years if none. Then, who
administer his property, the judge, at the instance of an is preferred? The spouse present, the heirs instituted in a will,
interested party, a relative, or a friend, may appoint a person who may present an authentic copy of the same, the relatives
to represent him in all that may be necessary. who may succeed by the law of intestacy, those who may have
over the property of the absentee some right subordinated to
This same rule shall be observed when under similar
circumstances the power conferred by the absentee has the condition of his death, like the legatee or the creditor
whose rights to the credit is subject to the condition of the
expired.
death of the debtor.
Article 382. The appointment referred to in the preceding
When shall administration cease?
article having been made, the judge shall take the necessary
measures to safeguard the rights and interests of the absentee
and shall specify the powers, obligations and remuneration of Article 389. The administration shall cease in any of the
his representative, regulating them, according to the following cases:
circumstances, by the rules concerning guardians. (1) When the absentee appears personally or by means of an
Article 383. In the appointment of a representative, the agent;
spouse present shall be preferred when there is no legal (2) When the death of the absentee is proved and his testate
separation. or intestate heirs appear;
If the absentee left no spouse, or if the spouse present is a (3) When a third person appears, showing by a proper
minor, any competent person may be appointed by the court. document that he has acquired the absentee's property by
purchase or other title.
The provisions on TITLE XIV on ABSENCE is only for purposes
of having the spouse present to administer the absolute In these cases the administrator shall cease in the
property or the conjugal partnership as well as the property of performance of his office, and the property shall be at the
the disappearing spouse; that’s the only purpose. disposal of those who may have a right thereto. (190)

This is different from Art.41 of the Family Code, because under This did not come out in the bar.
41 of the Family Code, that is only for purposes of remarriage.
What was asked in the bar would be either Art. 390 or 391.
Here, the declaration of absence is for the spouse present,
because he is preferred, it is always presumed that it is the
husband who disappeared; the administratrix which refers to CHAPTER 4
the wife oh …when does the spouse present file this petition Presumption of Death
for declaration of absence? Article 390. After an absence of seven years, it being
unknown whether or not the absentee still lives, he shall be
CHAPTER 2 presumed dead for all purposes, except for those of
Declaration of Absence succession.
Article 384. Two years having elapsed without any news The absentee shall not be presumed dead for the purpose of
about the absentee or since the receipt of the last news, and opening his succession till after an absence of ten years. If he
five years in case the absentee has left a person in charge of disappeared after the age of seventy-five years, an absence of
the administration of his property, his absence may be five years shall be sufficient in order that his succession may
declared. (184) be opened. (n)
Article 385. The following may ask for the declaration of Article 391. The following shall be presumed dead for all
absence: purposes, including the division of the estate among the heirs:
(1) The spouse present; (1) A person on board a vessel lost during a sea voyage, or an
aeroplane which is missing, who has not been heard of for four
(2) The heirs instituted in a will, who may present an authentic
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years since the loss of the vessel or aeroplane; be decided upon by the person obliged to make arrangements
for the same, after consulting the other members of the family.
(2) A person in the armed forces who has taken part in war,
and has been missing for four years;
So, who are given the duty and right to make arrangements ,
(3) A person who has been in danger of death under other you go to Art. 199 of the Family Code4; The spouse;
circumstances and his existence has not been known for four descendants in the nearest degree… go up …the ascendants in
years. (n) the nearest degree; and then brothers and sisters whether the
half or full blood.
Article 392. If the absentee appears, or without appearing his
existence is proved, he shall recover his property in the
condition in which it may be found, and the price of any Article 308. No human remains shall be retained, interred,
property that may have been alienated or the property disposed of or exhumed without the consent of the persons
acquired therewith; but he cannot claim either fruits or rents. mentioned in articles 294 and 305.
(194) Article 309. Any person who shows disrespect to the dead, or
wrongfully interferes with a funeral shall be liable to the family
Ordinary Absence, so continuous absence of 7 years , except of the deceased for damages, material and moral.
the opening of his succession, unless he disappeared at age
75. Then, that would be, how many years? 5 . But if he Article 310. The construction of a tombstone or mausoleum
disappeared before the age of 75, that will be how many years shall be deemed a part of the funeral expenses, and shall be
to open his succession? 10 . But for purposes of opening his chargeable to the conjugal partnership property, if the
succession as well as presumption of death , Art. 391 provides deceased is one of the spouses.
an absence merely of 4 years , including that of opening his
succession but limited only to 3. The more important provision here is Art. 308, no human
remains shall be retained, interred, disposed of or exhumed
A person on board a vessel lost during a sea voyage, or an without the consent of the persons mentioned in Article 199
aeroplane which is missing, so the airplane that crashed is not (Family Code!).
included, that will be under number 3, there is already danger
of death , in fact, death is already certain. Liability for damages under 309… any person who shows
disrespect to the dead, or wrongfully interferes with a funeral
Second is a person in the armed forces , the third analogous shall be liable to the family of the deceased for damages,
circumstances where there is danger of death. If he would material and moral. And because he is already dead where will
reappear whether under 390 or 391, and there is already we get the records? We go now to the local civil register .
distribution of the estate , he shall receive the property in the What will be found in the civil register that’s 408 in relation to
condition that it is found. If already alienated, the value and 407.
fruits already received in good faith, hindi na pwedeng isauli or
the value thereof , if received in good faith .
TITLE XVI
So , yun man ang important diyan, I cannot remember of CIVIL REGISTER
other provisions , just remember the period, 2 and 5. Then
390…391 these are the more important provisions under Article 407. Acts, events and judicial decrees concerning the
absence. civil status of persons shall be recorded in the civil register.
(325a)
Because the absentee is really dead so we will bury him. Let’s
go to funeral. Article 408. The following shall be entered in the civil
register:
TITLE X (1) Births;
FUNERALS (n)
(2) marriages;
Article 305. The duty and the right to make arrangements for
(3) deaths;
the funeral of a relative shall be in accordance with the order
established for support, under article 294. In case of (4) legal separations;
descendants of the same degree, or of brothers and sisters,
the oldest shall be preferred. In case of ascendants, the (5) annulments of marriage;
paternal shall have a better right. (6) judgments declaring marriages void from the beginning;
Article 306. Every funeral shall be in keeping with the social
position of the deceased.
4(1) The spouse;
Article 307. The funeral shall be in accordance with the (2) The descendants in the nearest degree;
expressed wishes of the deceased. In the absence of such (3) The ascendants in the nearest degree; and
expression, his religious beliefs or affiliation shall determine (4) The brothers and sisters. (294a)
the funeral rites. In case of doubt, the form of the funeral shall
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(7) legitimations; The Court allowed Jennifer Cagandahan to


change his gender from female to male
(8) adoptions; because Jennifer is suffering from a rare
(9) acknowledgments of natural children; medical condition, congenital adrenal
hyperplasia although at the time of birth she
(10) naturalization; was supposed to be female but growing up
(11) loss, or she has all the attributes of a male. She did
not even experience menstruation and no
(12) recovery of citizenship; breast , she was even producing more
androgen rather than the estrogen. So, the
(13) civil interdiction;
Court used merely compassion in allowing
(14) judicial determination of filiation; Jennifer to have her gender changed from
female to male because there is no law that
(15) voluntary emancipation of a minor; and
allows it . But the court also recognizes the
(16) changes of name. fact that hers is a rare medical condition.
Out of how many thousands isa lang yung
intersex .

Except voluntary emancipation of a minor kasi wala na tayong She was asked by the Court what is it you
voluntary emancipation of a minor by virtue of RA 6809. Most are praying for… that I be allowed to change
of the provisions on emancipation have already been repealed my name from Jennifer to Jeff. The Court did
by 6809, hoy do you remember ? except for Art. 235 and 236, not actually cite any particular provision,
these are only the ones retained by RA 6809. merely compassion because of that rare
medical condition that she suffered which is
So what value are the books? not true in the case of Silverio, she really
had herself changed.
Article 410. The books making up the civil register and all Corpus case
documents relating thereto shall be considered public
documents and shall be prima facie evidence of the facts In relation to that is Fujiki case, it’s more
therein contained. (n) procedural in nature, yung Rule 108 on
cancellation of entries. So does the mere fact
Then what will be the liability of the civil registrar for that there is recognition of this decree of
unauthorized alteration? That’s Art 411 divorce already warrant correction of entries
in the books of the civil register? The answer
is NO, you must go to the process of availing
Article 411. Every civil registrar shall be civilly responsible for
Rule 108 that is... ano yan? Di ko nay an
any unauthorized alteration made in any civil register, to any
sakop ha sa inyo na yan.
person suffering damage thereby. However, the civil registrar
may exempt himself from such liability if he proves that he has The same holds true in:
taken every reasonable precaution to prevent the unlawful
Fujiki v Marinay
alteration. (n)
(G.R. No. 196049, June 26, 2013)

And of course the other important provision is 412; While it is true that recognition because
remember that foreign judgments are factual
Article 412. No entry in a civil register shall be changed or matters and these must be alleged and
corrected, without a judicial order. (n) proved pursuant to Rule 132 Sec. 24 and 25
of your Rules of Court… but the mere fact
that there is no provision does not
In relation to that is RA 9048 and 10172. But in the case of automatically grant the right to have the
Republic v Cagandahan. entries therein changed or corrected. This
I will no longer discuss Silverio v Republic because this has has to be under Rule 108 of your Rules of
already been discussed. Although in Silverio v Republic, Court. It seems that Rule 108 supplements
assuming that it can be legally done, the venue is wrongfully Art. 412 of the New Civil Code, by
placed, it should have been, because it is already specifically providing for a remedial
administrative in nature so Silverio could have filed it before proceeding by which entries in the civil
the Local Civil Registrar. That was the holding of the Court. registry may be judicially cancelled or
corrected .
Republic v Cagandahan
(GR No. 166676, September 12, 2008) Iwasawa v Gangan
(G.R. No. 204169, September 11, 2013)
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If the basis of the Petition for Declaration of


Nullity of Marriage will be certification issued
and obtained from the National Statistics
Office is there a need to present the
employee who issued the document? In this
case, the marriage contract of Iwasawa and
Gangan. The marriage contract of Gangan
with Arambulo which was celebrated earlier
than the marriage of petitioner and Gangan
and the death certificate of Arambulo which
was after the marriage of Iwasawa and
Gangan . But the Lower Court denied the
petition because Iwasawa did not present
the employee from where these documents
were obtained . The SC reversed the ruling
of the SC because these are prima facie
evidence of the facts stated therein . Public
documents , in the absence of any suspicion
in relation to the issuance thereof then there
is no need to present the employee in
charge thereof.
Republic v Olaybar
(G.R. No. 189538, February 10, 2014)
This refers to the petition of Merlinda
Olaybar for the correction of entries in the
wife portion of the marriage contract
because she discovered when she tried to
obtain a certificate of no marriage that she
had been marriage to one Ye Son Sune, a
Korean national but this was denied by
Merlinda, she never married the Korean
national. As proof, she presented the
employee of the Court who testified that
while there was this marriage solemnized
between one Ye Son Sune and Merlinda
Olaybar but she was not the Merlinda
Olaybar who appeared when the marriage
was solemnized. Of course, the Republic
opposed because this will be a circumvention
of a substantive law that declares a marriage
void. But the SC said there is no marriage to
declare void because there was no marriage
at all. It was proven that the testimony of
the Court employee and of course the one
who examined the signature of Merlinda
Olaybar in the marriage contract that it was
forged. So, there is no marriage to be
declared void because in the first place there
was no marriage solemnized.

REVIEW LECTURES FOR PFR COMPLETED.


Compiled: KJavier

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