Beruflich Dokumente
Kultur Dokumente
XPNs to the Publication Requirement: O-R-L-I Retroactivity clause of the Family Code (2005, 2010 BAR)
1. Municipal Ordinances (governed by the Local Government Code); The Family Code shall have retroactive effect insofar as it does not prejudice or
2. Rules and regulations which are internal in nature; impair vested or acquired rights in accordance with the Civil Code or other laws
3. Letters of Instruction issued by administrative supervisors on internal rules (FC, Art. 256).
and guidelines;
4. Interpretative regulations regulating only the personnel of administrative UNWAIVABLE RIGHTS
agency.
1. Right to live and right to future support.
Include: 2. Right to personality and family rights.
1. An interpretative regulation; 3. Right to future inheritance.
2. A regulation that is merely internal in nature; and 4. Political rights.
3. A letter of instruction issued by an administrative agency concerning rules or
guidelines to be followed by subordinates in the performance of their duties. WAIVER OF RIGHTS
GR: Rights may be waived.
Where to publish
1. Official Gazette; or XPNs:
2. Newspaper of general circulation in the Philippines 1. If waiver is:
a. Contrary to law, public order, public policy, morals or good customs;
Newspaper of general circulation b. Prejudicial to a third person with a right recognized by law. (e.g. If A
For a newspaper to be considered of general circulation: owes B P10M, B can‘t waive the loan if B owes C and B has no other assets).
1. It must be published within the court’s jurisdiction; 2. If the right is:
2. It must be published at regular intervals for disseminating local news and a. A natural right, such as right to life;
general information; b. Inchoate, such as future inheritance
3. It has a bona fide subscription list of paying subscribers; and
4. It is not devoted to the interest or published for the entertainment of a
JUDICIAL DECISIONS
particular class, profession, trade, calling, race or religious denomination
knprlyflrs | CIVIL LAW REVIEWER- PERSONS AND FAMILY RELATIONS 1
Judicial decisions applying or interpreting the laws or the Constitution shall
form a part of the legal system of the Philippines (NCC, Art. 8). (1994 BAR) Lex Loci Celebrationis
The forms and solemnities of contracts, wills, and other public instruments shall
Doctrine of Stare Decisis be governed by the laws of the country in which they are executed (NCC, Article
It is adherence to judicial precedents. Once a question of law has been examined 17).
and decided, it should be deemed settled and closed to further argument.
No judge or court shall decline to render judgment by reason of the silence, A) Forum Non Conveniens
obscurity or insufficiency of the laws (NCC, Art. 9). (2003 BAR) The refusal to assume jurisdiction because it would prove inconvenient for the
forum.
However, in criminal prosecutions, the judge must dismiss the case if a person is
accused of a non-existent crime following the maxin “nullum crimen, nulla B) Doctrine of Processual Presumption of law
poena sine lege” (Rabuya, 2009). When the proper foreign law has not been properly proved, the court of the
forum may presume that said foreign law is the same as the law of the forum
PRESUMPTION AND APPLICABILITY OF CUSTOM
that said court can now apply. It applies when the foreign law is not alleged or if
Presumption in case of doubt in the interpretation of laws alleged, it is not proved.
In case of doubt in the interpretation or application of laws, it is presumed that
the lawmaking body intended right and justice to prevail (NCC, Art. 10). (2003 C) Once the court has determined it has jurisdiction over the case, it will next
BAR) determine whether to apply the internal law of the forum or apply the proper
foreign law.
In case of silence, obscurity or insufficiency of the law with respect to a
particular controversy CITIZENSHIP
If the law is silent, or is obscure or insufficient with respect to a particular
controversy, the judge shall apply the custom of the place, and in default Theories of personal law
thereof, the general principles of law and justice. 1. The Nationality Theory or Personal Theory – the status and capacity of a
person is determined by the law of his nationality or national law (Sempio-Diy,
In criminal cases, customs cannot be applied because of the maxim nullum
2004).
crimen nulla poena sine lege(There is neither crime nor punishment, without a NOTE: The Philippines follows the Nationality Theory.
law).
2. Domiciliary Theory or Territorial Theory – the status and capacity of a
CONFLICT OF LAWS person is determined by the law of his domicile (Ibid.).
This provision has been superseded by Art. 5 of P.D. No. 603 (The Child and
RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS Youth Welfare Code), which declares that the civil personality of the child shall
commence from the time of his conception, for all purposes favorable to him,
Enforcement vs. Recognition subject to the requirements of Art. 41.
In enforcement, the plaintiff or petitioner wants the court to carry out and make
effective the foreign judgment, while in recognition, the defendant or EXCEPTION:
respondent is only presenting the foreign judgment as a defense. Hence, it is “Born later in accordance with law” (1995, 1999, 2008 BAR)
usual that in enforcement, a separate action or proceeding needs to be filed to
make the foreign judgment effective, while in recognition, no action or A foetus with an intra-uterine life of:
proceeding need be filed, as it implies that an action or proceeding has already 1. Less than 7 months – Must survive for at least 24 hours after its complete
been filed against the defendant or respondent invoking the foreign judgment. delivery from the maternal womb.
2. At least 7 months – If born alive, it shall be considered born even if it dies
Reason for procedure for enforcement within 24 hours after complete delivery.
A foreign judgment cannot be automatically enforced because it has no effect Acquisition of personality through birth
beyond the territorial jurisdiction of the foreign court which issued it. Hence, an GR: Actual/Permanent Personality– Personality begins at birth, not at
action or proceeding needs to be filed to make it effective in the forum. conception.
XPN: Presumptive/Temporary – The law considers the conceived child as born
Effect of foreign judgment (Conceptus pro natohabetur)
Right to be acknowledged
A conceived child has the right to be acknowledged even if it is still conceived. A MARRIAGE UNDER FAMILY CODE
child, upon being conceived, becomes a bearer of legal rights and is capable of
being dealt with as a living person. The fact that it is yet unborn is no
impediment to the acquisition of rights provided it be born later in accordance A special contract of permanent union between a man and a woman entered
with law (De Jesus v. Syquia, G.R. No. L-39110, November 28, 1933). into in accordance with law for the establishment of conjugal and family life. It
is the foundation of the family and an inviolable social institution whose nature,
DEATH consequences, and incidents are governed by law and not subject to stipulation,
except that marriage settlements may fix the property relations during the
Rules to apply in case there is doubt as to who died first marriage within the limits provided by the Family Code (FC, Art. 1).
Duty of the solemnizing officer in a marriage in articulo mortis EXCEPTIONS TO MARRIAGE LICENSE REQUIREMENT
The solemnizing officer in a marriage in articulo mortis after solemnizing such
marriage shall state in an affidavit executed before the local civil registrar or 1. Marriages among Muslims or members of ethnic cultural communities –
any other person legally authorized to administer oaths, that the marriage was Provided they are solemnized in accordance with their customs, rites or
performed in articulo mortis and that he took the necessary steps to ascertain practices (FC, Art. 33);
the ages and relationship of the contracting parties and the absence of a legal
impediment to the marriage (FC, Art. 29). 2. Marriages in Articulo mortis
a. In case either or both of the contracting parties are at the point of death (FC,
Art. 27);
Effect of solemnizing officer’s failure to execute an affidavit
b. Solemnized by a ship captain or airplane pilot (FC, Art. 31);
It will have no effect as to the validity of the marriage. The marriage will still be
c. Within zones of military operation (FC, Art. 32).
valid.
3. Marriages in Remote places (FC, Art. 28)
A marriage solemnized by a judge outside of his jurisdiction is valid Remote Place - no means of transportation to enable the party to personally
If there is defect in such requirement, the same would not make the marriage appear before the local civil registrar (Rabuya, 2009).
void, but it merely subjects the officer to criminal, civil, or administrative
responsibility. 4. Marriages between parties Cohabiting for at least 5 years and without legal
impediment to marry each other (FC, Art. 34);
Exception to the rule requiring authority of the solemnizing officer
REQUISITES FOR THE 5-YEAR COHABITATION AS AN EXCEPTION TO THE II. VOID MARRIAGES
MARRIAGE LICENSE REQUIREMENT (2002, 2008 BAR)
Marriages that are void ab initio(1993, 2004, 2005, 2006 BAR)
1. Living together as husband and wife at least 5 years before the marriage. 1. Solemnized without License, except those marriages that are exempt from the
The 5 year period must be characterized by: license requirement;
a. Exclusivity – the partners must live together exclusively, with no other 2. Absence of any of the essential or formal requisites of marriage;
partners, during the whole 5-year period. 3. Solemnized by any person not legally Authorized to perform marriages unless
b. Continuity– such cohabitation was unbroken. such marriages were contracted with either or both parties believing in good
faith that the solemnizing officer had the legal authority to do so;
2. No legal impediment to marry each other During the period of cohabitation. 4. Contracted through Mistake of one of the contracting parties as to the identity
NOTE: The five-year period of cohabitation must have been a period of legal of the other;
union had it not been for the absence of marriage.
1. ABSENCE OF ANY ESSENTIAL OR FORMAL REQUISITES OF MARRIAGE
3. Fact of absence of legal impediment must be Present at the time of the
marriage. Marriage between Filipinos who are of the same sex is VOID
XPT:
4. Parties must execute an Affidavit that they are living together as husband and
Ex. Hermaphrodite, Congenital Adrenal Hyperplasia
wife for 5 years and that they do not have any impediment to marry.
Validity of the marriage if it is a mixed marriage where the Filipino is 18
5. Solemnizing officer must execute a Sworn statement that he had ascertained
years old but the foreigner is below 17 years of age
the qualifications of the parties and found no legal impediment to their
If the national law of the foreigner recognizes 17 year old persons to be
marriage (Manzano v. Sanchez, AM No. MTJ-00-1329, March 8, 2001).
capacitated to marry, then their marriage is valid, otherwise it is void.
MARRIAGES BETWEEN FILIPINOS SOLEMNIZED ABROAD IN ACCORDANCE
Effect of lack of authority of solemnizing officer
WITH THE LAW IN FORCE IN SAID COUNTRY
GR: The marriage is void ab initio.
XPNs:
GR: Marriages between Filipinos solemnized outside the Philippines in
1. Express- If either or both parties believed in good faith that the solemnizing
accordance with the law of the foreign country where it is celebrated, if valid
officer had the legal authority to do so (FC, Art. 35).
there, shall be valid here as such.
2.
XPNs: It shall be void, even if it is valid in the foreign country where the 3. Implied - Article 10 in relation to Article 26 of the Family Code. If the
marriage was celebrated, if any of the following circumstances are present: marriage between a foreigner and a Filipino citizen abroad solemnized by a
Philippine consul assigned in that country is recognized as valid in the host
1. Lack of legal capacity even with parental consent (e.g. party is below 18); country, such marriage shall be considered as valid in the Philippines (Sta.
2. Incestuous; Maria, 2010).
3. Contracted through Mistake of one party as to the identity of the other;
4. Contracted following the annulment or declaration of nullity of a previous 2. PSYCHOLOGICAL INCAPACITY
marriage but Before partition, etc.;
5. Bigamous or polygamous except as provided in Art. 41 FC on terminable 1. Burden of proof to show the nullity of the marriage belongs to the plaintiff;
bigamous marriages;
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2. The root cause of the psychological incapacity must be: (a) medically or a. Between ascendants and descendants of any degree;
clinically identified, (b) alleged in the complaint, (c) sufficiently proven by b. Between brothers and sisters whether of the full or half-blood (FC, Art. 37).
experts and (d) clearly explained in the decision;
3. The incapacity must be proven to be existing at “the time of the celebration” Void marriages by reason of public policy (1999, 2007, 2008 BAR)
of the marriage;
4. Such incapacity must also be shown to be medically or clinically permanent Marriages between:
or incurable; 1. Collateral blood relatives (legitimate or Illegitimate) up to the 4th civil
5. Such illness must be grave enough to bring about the disability of the party to degree;
assume the essential obligations of marriage; 2. Step-parents & step-children;
6. The essential marital obligations must be those embraced by Arts. 68 up to 71 3. Parents-in-law & children-in-law;
of the FC as regards the husband and wife, as well as Arts. 220, 221 and 225 of 4. Adopting parent & the adopted child;
the same Code in regard to parents and their children. Such non-complied 5. Surviving spouse of the adopting parent & the adopted child;
marital obligation(s) must also be stated in the petition, proven by evidence and 6. Surviving spouse of the adopted child & the adopter;
included in the text of the decision; 7. Adopted child & legitimate child of the adopter;
7. Interpretations given by the National Appellate Matrimonial Tribunal of the 8. Adopted children of the same adopter;
Catholic Church in the Philippines, while not controlling or decisive, should be 9. Parties where one, with the intention to marry the other, kills the latter’s
given great respect by our courts; spouse, or his/her spouse (FC, Art. 38).
8. The trial court must order the prosecuting attorney or fiscal and the Solicitor
General to appear as counsel for the state. No decision shall be handed NOTE: The list is EXCLUSIVE. If not falling within this enumeration, the
marriage shall be valid. Such as marriages between:
INSTANCES WHERE ALLEGATIONS OF PSYCHOLOGICAL INCAPACITY WERE i. Adopted and Illegitimate child of the adopter;
NOT SUSTAINED ii. Step brother and step sister;
iii. Brother-in-law and sister-in-law;
1. Mere showing of irreconcilable differences and conflicting personalities iv. Parties who have been guilty of adultery or concubinage.
(Carating-Siayngco v. Siayngco, G.R. No. 158896, October 27, 2004).
2. Disagreements regarding money matters (Tongol v. Tongol, G.R. No. 157610, 4. SUBSEQUENT MARRIAGE
October 19, 2007) Void for being bigamous or polygamous, even if celebrated abroad and
3. Mere abandonment valid there as such.
4. Sexual infidelity (Republic v. Dagdag, G.R No. 109975, February 9, 2001)
5. Living an adulterous life when specific evidence was shown that promiscuity NOTE:
as a trait already existing at the inception of marriage (Baccay v. Baccay, G.R. No. If the first marriage is void and a party to that first marriage
173138, December 1, 2010) subsequently remarries without obtaining a judicial declaration of nullity of the
first marriage, the subsequent marriage is likewise void. It is void not because it
NOTE: (2002 BAR) is bigamous but because it failed to comply with the requirements under Article
The state of being of unsound mind, the concealment of drug addiction, 40 in relation to Articles 52 and 53 of the Family Code (Valdes v. RTC, G.R. No.
habitual alcoholism, lesbianism or homosexuality may be indicia of 122749, July 31, 1996).
psychological incapacity, depending on the degree of severity of the disorder.
However, the concealment of drug addiction, habitual alcoholism, lesbianism or A judicial declaration of nullity is required before a valid subsequent
homosexuality is a ground of annulment of marriage. marriage can be contracted; or else, what transpires is a bigamous marriage,
reprehensible and immoral
3. INCESTUOUS MARRIAGES
Requisites for validity of subsequent marriage under Art. 41 under the
Family Code (B-A-D)
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Before the celebration of the subsequent marriage: GR: (Children conceived and born outside a valid marriage or inside a void
1. The Absent spouse had been absent for 4 consecutive years (ordinary marriage are Illegitimate.)
absence) or 2 consecutive years (extra-ordinary absence);
2. The present spouse has a well-founded Belief that the absent spouse is XPNs:
already dead; i. Legitimate if the marriage is void:
3. There is judicial Declaration of presumptive death in a summary proceeding 1. On the ground of psychological incapacity of either or both parties;
in accordance with Article 253 of the Family Code. 2. Due to the non-compliance with the requirements set forth under
Article 52 of the Family Code
Termination of Subsequent Bigamous Marriage ii. Legitimate if the children were conceived or born before the judgment of
annulment or absolute nullity of the marriage under Article 36 has become final
The recording of the affidavit of reappearance of the absent spouse in the civil and executory (FC, Art. 54, 1st sentence).
registry of the residence of the parties to the subsequent marriage shall iii. Legitimate if the children were conceived or born of the subsequent
automatically terminate the terminable bigamous marriage (subsequent marriage under Article 53 (FC, Art. 54, 2nd sentence).
marriage) unless there is a judgment annulling the previous marriage or
declaring it void ab initio (FC, Art. 42).
III. VOIDABLE MARRIAGES
NOTE: 2008 BAR: A declaration of presumptive death even if obtained will not
Fraud as a ground for annulment
make the marriage voidable because presumptive death will not prevail over
Fraud, as distinguished from fraud as a ground for annulment of contracts,
the fact of death.
refers to the non-disclosure or concealment of some facts deemed material to
the marital relations (Rabuya, 2009).
Prescriptive Period
The time for filing an action or defense for the declaration of absolute nullity of
CIRCUMSTANCES CONSTITUTING FRAUD UNDER ART. 45(3) (1996, 1997,
marriage, whether in a direct or collateral manner, does not prescribe (FC, Art.
2002, 2003, 2006 BAR)
39). (2002, 2006 BAR)
1. Non-disclosure of a previous conviction by final judgment of the other party
Petition for the declaration of nullity of marriage by the heirs of a
of a crime involving moral turpitude;
deceased person after his death
2. Concealment by the wife of the fact that at the time of marriage, she was
pregnant by a man other than her husband;
The heirs cannot file for declaration of nullity of marriage. The heirs
3. Concealment of sexually transmitted disease, regardless of nature, existing
can still protect their successional right, for, compulsory or intestate heirs can
at the time of marriage; or
still question the validity of the marriage of the spouses, not in a proceeding for
4. Concealment of drug addiction, habitual alcoholism, homosexuality and
declaration of nullity but upon the death of a spouse in a proceeding for the
lesbianism(FC, Art. 46).
settlement of the estate of the deceased spouse filed in the regular courts.
that the children have the personality to file the petition to declare the
INCLUDES:
nullity of marriage of their deceased father to their stepmother as it affects their
successional rights (De Dios Carlos v. Sandoval, G.R. No. 179922, December 16,
1.Marriage of a party 18 years of age or over but below 21 solemnized
2008).
without the consent of the parents, guardian or person having substitute
parental authority over the party, in that order
EFFECTS OF JUDICIAL DECLARATION OF
Contracting party who failed to obtain parental consent: Through free
NULLITY OF MARRIAGE
cohabitation after attaining the age of 21.
1. Status of the Children(1990, 2010 BAR)
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2. Either party was of unsound mind If after 3 years of living together with her husband, the wife remained a
Insane spouse: Through free cohabitation after coming to reason. virgin, the husband is presumed to be impotent (Rabuya, 2009). The husband
will have to overcome this presumption.
3. Consent of either party was obtained by fraud Relative impotency may now be invoked as a ground for annulment.
Injured party: Through free cohabitation with full knowledge of the facts
constituting the fraud. REQUISITES OF AFFLICTION OF A SEXUALLY TRANSMITTED DISEASE
(STD) AS A GROUND FOR ANNULMENT
4.Vices of consent such as force, intimidation or undue influence
Injured party: Through free cohabitation after the vices have ceased or 1. One of the parties is afflicted with STD;
disappeared 2. STD must be:
a. Existing at the time the marriage is celebrated;
5. Impotence (impotencia copulandi) and afflicted with STD found to be b. Serious;
serious and appears to be incurable c. Apparently Incurable;
May not be ratified but action may be barred by prescription only, which is 5 3. The other spouse is not aware of the other’s affliction; and,
years after the marriage. 4. The injured party must be free from STD.
Drug addiction be a ground, if at all, for the declaration of nullity of LEGAL SEPARATION
marriage, annulment of marriage, and legal separation? (1997 BAR)
GROUNDS FOR LEGAL SEPARATION (FC,ART.55)
A: Declaration of Nullity of Marriage (1997, 2002, 2003, 2006, 2007 BAR)
a. The drug addiction must amount to psychological incapacity to comply with 1. Repeated physical violence or grossly abusive conduct against petitioner,
the essential obligations of marriage; common child, child of petitioner;
b. It must be antecedent (existing at the time of marriage), grave and incurable 2. Attempt to corrupt or induce petitioner, common child, child of petitioner to
(.) engage in prostitution, or connivance in such corruption or inducement;
Annulment of Marriage 3. Attempt by respondent against the life of petitioner;
a. The drug addiction must be concealed; 4. Final judgment sentencing respondent to imprisonment of more than 6 years,
b. It must exist at the time of marriage; even if pardoned;
c. There should be no cohabitation with full knowledge of the drug addiction; 5. Drug addiction or habitual alcoholism of respondent;
d. The case is filed within five (5) years from discovery. Legal Separation 6. Physical violence or moral pressure to compel petitioner to change religious
a. There should be no condonation or consent to the drug addiction; or political affiliation;
b. The action must be filed within five (5) years from the occurrence of the 7. Bigamous marriage subsequently contracted by respondent in the Philippines
cause. or abroad
8. Sexual infidelity or perversion;
IMPOTENCE OR PHYSICAL INCAPACITY 9. Lesbianism or homosexuality of respondent; and
Impotence (impotentia copulandi) refers to lack of power of copulation and not 10. Abandonment of petitioner by respondent without justifiable cause for more
to mere sterility (impotentia genrandi) which refers to ability to procreate. The than 1 year.
test is not the capacity to reproduce, but the capacity to copulate (Paras, 2008).
Although impotency carries with it sterility, a sterile person is not necessarily If a man commits several acts of sexual infidelity, particularly in 2002,
impotent 2003, 2004, 2005, does the prescriptive period to file for legal separation
run from 2002? (2007 BAR)
DOCTRINE TRIENNIAL COHABITATION
RULE IN RENDERING A JUDGMENT OF LEGAL SEPARATION BASED UPON A COMMENCEMENT OF PROPERTY REGIME
STIPULATION OF FACTS OR CONFESSION OF JUDGMENT
A property regime commences at the precise moment of the celebration of the
The court shall order the prosecuting attorney or fiscal to take steps to marriage (i.e. actual time the marriage is celebrated on a certain date).
prevent collusion between the parties and to take care that the evidence is not
Any stipulation, express or implied, for the commencement of the community
fabricated or suppressed (FC, Art. 60).
regime at any other time shall be void. Property regime governing the
property relations of spouses in the absence of marriage settlement or
NOTE 2003 BAR:
when regime agreed upon is void (1992, 1995, 2005 BAR)
If the husband discovers after the marriage that his wife was a
prostitute before they got married, he has no remedy. No misrepresentation or
MARRIAGE SETTLEMENT
deceit as to character, health, rank, fortune or chastity shall constitute fraud as
legal ground for an action for the annulment of marriage (FC, Art. 46).
REQUISITES OF A VALID MARRIAGE SETTLEMENT (FC,ART. 77) (1991,
The wife may file an action for legal separation. The husband’s sexual
2005 BAR) (W-SER)
infidelity is a ground for legal separation (FC, Art. 55).
a. In Writing;
NOTE: The payment of which shall be considered as advances to be deducted Abandonment (1999, 2003 BAR)
from the share of the debtor-spouse upon liquidation of the community If a spouse without just cause abandons the other or fails to comply with his or
10. Expenses of litigation between the spouses. However, if suit is found to be her obligations to the family, the aggrieved spouse may petition the court for:
groundless, it cannot be charged against the ACP (FC, Art. 94). 1. Receivership;
2. Judicial separation of property;
NOTE: 2007 BAR: Ante-nuptial debts of either spouse shall be considered as the 3. Authority to be the sole administrator of the absolute community (FC, Art.
liability of the absolute community of property insofar as they have redounded 101).
to the benefit of the family.
DISSOLUTION OF ABSOLUTE COMMUNITY PROPERTY (2009 BAR)
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1. Death of either spouse; (b) Fruits and income of said properties shall be included the conjugal
2. Legal separation; partnership
3. Annulment; (c) Those included therein in the marriage settlement, subject to the 1/5
4. When the marriage is declared void under Art.40 of the Family Code; limitation under Article 84 and the rule in Article 92(3) of the Family Code
5. Judicial separation of property during marriage (FC, Art. 99). which apply by analogy
APPLICABLE PROCEDURE IN THE DISSOLUTION OF THE ACP IN CASE THE 2. Those acquired during the marriage by gratuitous title;
MARRIAGE IS TERMINATED BY DEATH
Community property shall be liquidated in the same proceeding for the NOTE:
settlement of the estate of the deceased. 1. Pensions will not form part of the conjugal partnership of gains when it is
If no judicial proceeding is instituted, the surviving spouse shall, judicially or given to him voluntarily and he is not entitled as a matter of right such as a fruit
extra-judicially, liquidate the community property within 1 year from the death of industry or labor.
of the deceased spouse (FC, Art. 103). 2. Proceeds of life insurance policy will not form part of the conjugal
partnership of gains when the beneficiary of the life insurance is the estate and
II. CONJUGAL PARTNERSHIP OF GAINS (CPG) the premiums are sourced from the separate property of the spouse.
3. Retirement Benefits will not form part of the conjugal partnership of gains
when it is given to him voluntarily and he is not entitled as a matter of right
It is the property relation formed by the husband and the wife by placing in a
such as a fruit of industry or labor.
common fund: (FC, Art. 106)
1. The proceeds, product, fruits and income of their separate properties; 3. Those acquired by right of redemption, barter or exchange with
2. Those acquired by either or both of them through:
exclusive property;
a. Effort;
b. Chance.
NOTE: In right of redemption, for it to form part of the exclusive property of the
spouse, the ownership over such property must still pertain to the said spouse.
Law that governs the conjugal partnership 4. That purchased with exclusive money of either spouse.
The rules on the contract of partnership in all that is not in conflict with what is
expressly determined in the FC and by the spouses in their marriage NOTE: The controlling factor is the source of the money used, or the money
settlements (FC, Art. 108).
promised to be paid.
Only inchoate right over conjugal property
The interest of the spouses in the conjugal properties is only inchoate or a mere OBLIGATIONS CHARGEABLE TO SEPARATE PROPERTY
1. Support of illegitimate children;
expectancy and does not ripen into title until it appears the dissolution and
2. Liabilities incurred by reason of a crime or quasi-delict;
liquidation of the partnership that there are net assets (Sempio-Diy, 1995).
3. Expenses of litigation between the spouses if found to be groundless;
4. Debts contracted during the marriage by the administrator-spouse which
EXCLUSIVE PROPERTY OF THE SPOUSES (FC ART. 109) does not benefit the community;
5. Debts contracted during the marriage without the consent of the other which
did not benefit the family;
1. Those brought into the marriage as his/her own; 6. Ante-nuptial debts by either spouse which did not benefit the family;
NOTE: 7. Taxes incurred on the separate property which is not used by the family;
(a) A property purchased before the marriage and fully paid during the 8. Expenses incurred during the marriage on a separate property if the property
marriage remains to be a separate property of either spouse (Lorenzo v. Nicolas, is not used by the family and not for its preservation.
G.R. No. L-4085, July 30, 1952).
4. Taxes, liens, charges, expenses, including major or minor repairs upon COMPLETE SEPARATION OF PROPERTY
conjugal property;
5. Taxes and expenses for mere preservation made during the marriage of The system of complete separation of property will govern the property
separate property; relations between the spouses only in the following cases:
6. Expenses for professional, vocational or self-improvement courses of either 1. When it is expressly provided for in the marriage settlement
spouse; 2. When it is so decreed by a competent court
PROPERTY REGIME IN CASE THE MARRIAGE IS DECLARED NULL AND VOID Guidelines in the constitution of the Family Home
ON THE GROUND OF PSYCHOLOGICAL INCAPACITY 1. FH is deemed constituted from the time of actual occupation as a family
The property relation between the parties is governed by Art. 147 of the Family residence;
Code. Property acquired by both spouses through their work and industry shall 2. Only 1 FH may be constituted;
be governed by the rules on equal co-ownership. 3. Must be owned by the person constituting it;
4. Must be permanent;
NOTE 2014 BAR: Art. 50 of the Family Code, and Sec. 19 of the Rules on 5. Same rule applies to both valid and voidable marriages and even to common
Declaration of Nullity applies only to marriages which are declared void ab law spouses; (FC, Arts. 147 and 148)
initio or annulled by final judgement under Art. 40 and 45 of the Family Code. 6. It continues despite death of one, both spouses, or an unmarried head of the
Art. 50 does not apply to marriages which are declared void ab initio under Art. family for 10 years or as long as there is a minor beneficiary (FC, Art 159).
36 which should be declared void without waiting for the liquidation of the
properties of the parties. NOTE: The FH shall continue despite the death of one or both spouses or of the
unmarried head of the family for a period of 10 years or for as long as there is a
CO-OWNERSHIP UNDER ART. 147 minor beneficiary and the heirs cannot partition the same unless the court finds
When a man and a woman who are capacitated to marry each other, live compelling reasons therefor. This rule shall apply regardless of whoever owns
exclusively with each other as husband and wife without the benefit of marriage the property or constituted the FH (FC, Art. 159). (2010 BAR)
or under a void marriage, their wages and salaries shall be owned by them in
equal shares and the property acquired by both of them through their work or GR: FH is exempt from execution, forced sale or attachment
industry shall be governed by the rules of co-ownership. XPN: Under Art. 155 of the Family Code:
1. Debts due to laborers, mechanics, architects, builders, material men and
others who rendered service or furnished materials for the constitution of the
CO-OWNERSHIP UNDER ART. 148
building;
Co-ownership may ensue in case of cohabitation where, for instance, one party
2. Non-payment of Taxes;
has a pre-existing valid marriage, provided that the parties prove their actual
3. Debts incurred Prior to its constitution;
joint contribution of money, property or industry and only to the extent of their 4. Debts secured by Mortgages on the premises before or after such
proportionate interest thereon (Francisco v. Master Iron Works Construction constitution.
Corp., G.R. No. 151967, February 16, 2005).
RIGHTS OF LEGITIMATE CHILDREN (FC, ART. 174) 1. Former marriage– if child is born:
1. To bear the surname of the father and the mother; Before 180 days after the solemnization of the subsequent marriage, provided
2. To receive support from their parents, their ascendants, and in proper cases, it is born within300 days after termination of former marriage
their brothers and sisters;
B. WHO MAY ADOPT PERSONS OBLIGED TO SUPPORT EACH OTHER (2008 BAR)
a. Any alien; 1. Spouses;
b. Filipino citizen, both permanently residing abroad. NOTE: The spouse must be the legitimate spouse in order to be entitled to
support
QUALIFICATIONS NEEDED FOR A FILIPINO OR ALIEN TO ADOPT (SEC. 9, RA 2. Legitimate ascendants & descendants;
8043) 3. Parents and their legitimate children, and the legitimate and illegitimate
a. At least 27 years old and 16 years older than the child to be adopted at the children of the latter;
time of the application unless: 4. Parents and their illegitimate children, and the legitimate and illegitimate
1. adopter is the parent by nature of the child; children of the latter;
2. adopter is the spouse of the parent by nature of the child to be adopted 5. Legitimate brothers and sisters whether full or half-blood (FC, Art. 195).
b. If married, his spouse must jointly file for adoption;
c. Has the capacity to act or assume all rights and responsibilities of parental LIABILITY TO SUPPORT (FC, ART. 199)
authority; The liability to support should be observed in the following order:
d. Not been convicted of a crime involving moral a. Spouse;
turpitude; b. Descendants in the nearest degree;
e. Eligible to adopt under his national law; c. Ascendants in the nearest degree;
f. In a position to provide for proper care and support and give necessary moral d. Brothers and sisters.
values;
g. Agrees to uphold the basic rights of the child mandated by the UN convention PARENTAL AUTHORITY
of rights of Child and the Philippine Laws;
h. Comes from a country with which the Philippines has diplomatic relations NOTE: Tender-Age Presumption
and adoption is allowed under his national law; No child under seven years of age shall be separated from the mother, unless
i. Possesses all the qualifications and none of the disqualifications under the law the court finds compelling reasons to order otherwise [FC, Art 213(2)]. (2006
or other applicable Philippine laws. BAR)
NOTE: The parent who has been deprived of the rightful custody of the child 2. Temporarily:– it may be revived
may resort to the remedy of habeas corpus (Salientes v. Abanilla, G.R. No. 162734, a. Adoption of the child;
August 29, 2006). b. Appointment of general guardian;
c. Judicial declaration of abandonment of the child in a case filed for the
SUBSTITUTE PARENTAL AUTHORITY (2004 BAR) purpose;
It is the parental authority which the persons designated by law may exercise d. Final judgment divesting parents of parental authority;
over the persons and property of unemancipated children in case of death, e. Incapacity of parent exercising parental authority;
absence or unsuitability of both parents or in default of a judicially appointed f. Judicial declaration of absence or incapacity of person exercising parental
guardian. authority (FC, Art. 229).
ORDER OF SUBSTITUTE PARENTAL AUTHORITY NOTE: In case of temporary termination of parental authority, parental
1. Surviving Grandparent; authority may be revived thru a court judgment (Rabuya, 2009).
NOTE: The law considers the natural love of a parent to outweigh that of the GROUNDS FOR SUSPENSION OF PARENTAL AUTHORITY
grandparents, such that only when the parent present is shown to be unfit or
unsuitable may the grandparents exercise substitute parental authority (Santos 1. Gives corrupting orders, counsel or example;
v. CA, G.R. No. 113054, March 16, 1995). 2. Treats child with excessive harshness and cruelty;
2. Oldest brother or sister, over 21 years unless unfit or disqualified; 3. Subjects/allows child be subjected to acts of lasciviousness (FC, Art. 231);
3. Actual Custodian over 21 year unless unfit or disqualified (FC, Art. 216); 4. Conviction of crime with penalty of civil interdiction (FC, Art. 230);
5. Culpable negligence of parent or person exercising parental authority;
4. In case of foundlings, abandoned, neglected or abused children similarly 6. Compels the child to beg.
situated, parental authority shall be entrusted in summary judicial proceedings
to heads of children’s homes, orphanages and similar institutions duly CHANGE OF NAME
accredited by the proper government agency (FC, Art. 217).
GROUNDS FOR CHANGE OF NAME WHICH HAVE BEEN HELD VALID
SPECIAL PARENTAL AUTHORITY (2003, 2004, 2005, 2010 BAR)
ABSENCE
DECLARATION OF ABSESNCE
Requisites (NCC, Art. 384):
1. The absentee have disappeared from his domicile;
2. His whereabouts are not known; and
3. He has been absent without any news for 2 years, if nobody was left to
administer his property or 5 years if somebody was left to administer such
property
PRESUMPTION OF DEATH