In relation to the effects of annulment of marriage as well as the subsequent void marriage under

article 40. There are 2 void marriages, the first is marriage is void and was not declared by the
court and one of the parties contracted a subsequent marriage that is also void. However, in the
event of the termination of the subsequent void marriage, the properties that they acquired
during void marriage cannot be governed by Articles 147 and 148, but rather governed by Article
43, paragraphs 2, 3, 4 and 5.

Art. 43. The termination of the subsequent marriage referred to in the preceding Article shall
produce the following effects:

(1) The children of the subsequent marriage conceived prior to its termination shall be
considered legitimate;
(2) The absolute community of property or the conjugal partnership, as the case may be, shall
be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or
her share of the net profits of the community property or conjugal partnership property shall
be forfeited in favor of the common children or, if there are none, the children of the guilty
spouse by a previous marriage or in default of children, the innocent spouse;
(3) Donations by reason of marriage shall remain valid, except that if the donee contracted the
marriage in bad faith, 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 insurance policy, even if such designation be stipulated as irrevocable;
and
(5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to
inherit from the innocent spouse by testate and intestate succession. (n)

Summary:

LAW THAT WILL GOVERN THE FIRST VOID MARRIAGE

Governed by Article 147 Governed by Article 148
There is a void marriage but the parties have Void marriage because they are not
no impediment to marry each other. It was capacitated to contract marriage:
merely void because: > Article 35(1) which is non-age;
> There was absence of the authority of the > Article 35(4) for bigamous or polygamous
solemnizing officer; marriages;
> There was no marriage license; > Article 37;
> Mistake as to the identity of one of the > Article 38;
contracting parties; > The first marriage under Article 40
> Those subsequent marriages that are void depending on the absence of impediment.
under Article 53;
> Article 53 due to noncompliance of Article
52
> Article 36
Likewise also the application of Article 44, if both parties to subsequent marriage are in bad faith
or in the event of annulment of marriage, because it says the effects provided by paragraphs 2,
3, 4, 5 of article 43 and 44 shall also apply to proper marriages void ab initio or annulled by final
judgment under Article 40 and 45 and shall include the execution of property for the children as
well as delivery of the children’s presumptive legitimes which may consist of cash or property
under Article 51.

Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be
void ab initio and all donations by reason of marriage and testamentary dispositions made by
one in favor of the other are revoked by operation of law. (n)

Art. 51. In said partition, the value of the presumptive legitimes of all common children,
computed as of the date of the final judgment of the trial court, shall be delivered in cash,
property or sound securities, unless the parties, by mutual agreement judicially approved, had
already provided for such matters.

The children or their guardian or the trustee of their property may ask for the enforcement of
the judgment.

The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the
ultimate successional rights of the children accruing upon the death of either of both of the
parents; but the value of the properties already received under the decree of annulment or
absolute nullity shall be considered as advances on their legitime. (n)

If the marriage has been annulled or declared void, the parties, before they can contract another
marriage validly, there must be compliance with the requirements of Article 52 as to liquidation,
partition or dissolution of the absolute community of property or conjugal partnership of gains
and the delivery of children’s presumptive legitimes under Article 51 and the registration in the
appropriate civil registry or registry of property. So have the judgment or decree of nullity
registered. Otherwise, if any of the parties contract a subsequent marriage, Article 53 applies and
the subsequent marriage shall be void. The exception however is Article 54 as to status of children
born out of void marriages under Article 36 and 53. Under Article 54 they are legitimate.

Art. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and
distribution of the properties of the spouses and the delivery of the children's presumptive
legitimes shall be recorded in the appropriate civil registry and registries of property;
otherwise, the same shall not affect third persons. (n)

Art. 53. Either of the former spouses may marry again after compliance with the requirements
of the immediately preceding Article; otherwise, the subsequent marriage shall be null and
void.
 Art. 54. Children conceived or born before the judgment of annulment or absolute nullity of
the marriage under Article 36 has become final and executory shall be considered legitimate.
Children conceived or born of the subsequent marriage under Article 53 shall likewise be
legitimate.

Read the Almelor case. It refers to a petition for declaration of nullity of marriage filed by the
wife, and during the trial she testified that she caught the husband kissing another male doctor
and reading magazines meant for women. So the court, instead of deciding the petition based on
the merits, it based its decision on psychological incapacity. The Supreme Court reversed and
held that homosexuality per se is not a ground. It is the concealment of homosexuality.

Manuel Almelor vs RTC of Las Piñas City & Leonida Trinidad

FACTS:
Manuel married Leonida in 1989. They are both medical practitioners. They begot 3 children.
11 years later, Leonida sought to annul her marriage with Manuel claiming that Manuel is
psychologically incapacitated to perform the essential marital obligations. Leonida testified
that Manuel is a harsh disciplinarian and that his policy towards their children are often
unconventional and was the cause of their frequent fight. Manuel has an unreasonable way of
imposing discipline towards their children but is remarkably so gentle towards his mom. He is
more affectionate towards his mom and this is a factor which is unreasonable for Leonida.
Further, Leonida also testified that Manuel is a homosexual as evidenced by his unusual
closeness to his male companions and that he concealed his homosexuality from Leonida prior
to their marriage. She once caught Manuel talking to a man affectionately over the phone and
she confirmed all her fear when she saw Manuel kiss a man. The RTC ruled that their marriage
is null and void not because of PI but rather due to fraud by reason of Manuel’s concealment
of his homosexuality (Art 45 of the FC). The CA affirmed the RTC’s decision.

ISSUE:
Whether or not the marriage between the two can be declared as null and void due to fraud
by reason of Manuel’s concealment of his homosexuality.

HELD:
The SC emphasized that homosexuality per se is not a ground to nullify a marriage. It is the
concealment of homosexuality that would. In the case at bar however, it is not proven that
Manuel is a homosexual. The lower court should not have taken the public’s perception against
Manuel’s sexuality. His peculiarities must not be ruled by the lower court as an indication of
his homosexuality for those are not conclusive and are not sufficient enough to prove so. Even
granting that Manuel is indeed a homosexual, there was nothing in the complaint or anywhere
in the case was it alleged and proven that Manuel hid such sexuality from Leonida and that
Leonida’s consent had been vitiated by such.

Now we go to Title II: Legal Separation

In the case of Ancheta vs Ancheta. The interest of the state should always be represented by the
fiscal under Article 48. The fiscal never objected to ruling of the court that the wife be declared
in default and that he be allowed to present evidence ex parte.

ANCHETA vs. ANCHETA 424 SCRA 725

Facts:
Spouses Rodolfo and Marietta separated-in-fact but had their conjugal partnership property
dissolved judicially. One of the properties adjudicated in her favor was a resort named Munting
Paraiso that is now used as residence of Marietta and the children. Rodolfo intending to
remarry filed a petition for declaration of nullity of marriage on the ground of psychological
incapacity of the wife docketed as Sp. Proc. NC-662. Although Rodolfo knew that Marietta is
residing at Munting Paraiso he had the summons served at another address. For failure to file
an Answer Rodolfo had the respondent wife declared in default and was allowed to adduce
evidence ex parte. After the grant of the petition, Rodolfo contracted another marriage with
Teresita on February 14, 1998. Marietta then filed a petition for the annulment of the order of
the RTC of Cavite.

Held:
The public prosecutor condoned the acts of the trial court when he interposed no objection to
the motion of the respondent. The trial court forthwith rendered judgment against Marietta
without a whimper of protest from the public prosecutor. The actuations of the trial court and
the public prosecutor are in defiance of Article 48 of the Family Code which states that “In all
cases of annulment or declaration of absolute nullity of marriage, the Court shall order the
prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to
prevent collusion between the parties and to take care that evidence is not fabricated or
suppressed.” They also ignored Rule 18, Section 6, 1985 Rules of Court now Rule 9, Section 3
(e) of the 1997 Rules of Court that “there is no default in actions for annulment of marriage or
legal separation.”

The following are the 10 grounds for legal separation under Article 55 of the Family Code unlike
the Civil Code where there is only adultery, concubinage and attempt against life of petitioner.
Those are only the grounds under the Civil Code.

Art. 55. A petition for legal separation may be filed on any of the following grounds:
1. Repeated physical violence or grossly abusive conduct directed against the petitioner,
a common child, or a child of the petitioner;
2. Physical violence or moral pressure to compel the petitioner to change religious or
political affiliation;
3. Attempt of respondent to corrupt or induce the petitioner, a common child, or a child
of the petitioner, to engage in prostitution, or connivance in such corruption or
inducement;
4. Final judgment sentencing the respondent to imprisonment of more than six years,
even if pardoned;
 5. Drug addiction or habitual alcoholism of the respondent;
6. Lesbianism or homosexuality of the respondent;
7. Contracting by the respondent of a subsequent bigamous marriage, whether in the
Philippine or abroad;
8. Sexual infidelity or perversion;
Maam G: This is now where adultery and concubinage have fallen. Villafuerte vs villafuerte –
psychological incapacity.
9. Attempt by the respondent against the life of the petitioner; or
Maam G: This was asked in the bar but the question was there was an attempt only on the life
of the child of the petitioner. Pero di sya pwede kasi sa child. When you say “child’, it includes
child by nature and by adoption.
10. Abandonment of petitioner by respondent without justifiable cause for more than one
year.

Art. 55 – Legal Separation (94,97,02,06) - In cases of legal separation, where violence (physical or
sexual or psychological) is alleged by the petitioner the mandatory 6-month cooling-off period
under Article 58 shall not apply [Section 19, RA 9262 or VAWC Law].

What are the grounds for the court to deny the petition for legal separation?

Article 56. The petition for legal separation shall be denied on any of the following grounds:
1. Where the aggrieved party has condoned the offense or act complained of;
2. condonation comes after the act
3. Where the aggrieved party has consented to the commission of the offense or act
complained of;
4. Where there is connivance between the parties in the commission of the offense or act
constituting the ground for legal separation;
5. Where both parties have given ground for legal separation;
6. Where there is collusion between the parties to obtain decree of legal separation; or
7. Where the action is barred by prescription. (100a)

When is there connivance? When is there collusion? Collusion is when the parties make it appear
that there is ground for legal separation when in truth there is none. Connivance is when parties
bring an action for legal separation and mutually make it appear despite the absence of any legal
ground.

Ocampo vs FLORENCIANO
Collusion in divorce or legal separation means the agreement. . . . between
husband and wife for one of them to commit, or to appear to commit, or to be
represented in court as having committed, a matrimonial offense, or to suppress
evidence of a valid defense, for the purpose of enabling the other to obtain a
divorce. This agreement, if not express, may be implied from the acts of the
 parties. It is a ground for denying the divorce. (Griffiths vs. Griffiths, 69 N. J. Eq.
689 60 Atl. 1099; Sandoz vs. Sandoz, 107 Ore. 282, 214 Pas. 590.).
In this case, there would be collusion if the parties had arranged to make it
appear that a matrimonial offense had been committed although it was not, or
if the parties had connived to bring about a legal separation even in the absence
of grounds therefor. ---------------

CONNIVANCE (http://www.lectlaw.com/def/c283.htm) An agreement or

consent, indirectly given, that something unlawful shall be done by another. xxx
Connivance must be the act of the mind before the offence has been committed,
while condonation is the result of a determination to forgive an injury which was
not known until after it was inflicted. Connivance also differs from collusion. The
former is generally collusion for a particular purpose, while the latter may exist
without connivance.

Ma’am G: If the respondent constantly inflicts physical abuse on the child of the respondent, can
the other spouse file a petition for legal separation? Of course not, because it is the child of the
petitioner - a common child or a child of the petitioner.

Article 57. An action for legal separation shall be filed within five years from the time of the
occurrence of the cause. (102)

Art. 57 – prescriptive period in instituting petition for legal separation (94) 5 years from the
occurrence of the cause. [Ma’am G: not discovery]

Article 58. An action for legal separation shall in no case be tried before six months shall have
elapsed since the filing of the petition. (103)

The exception to that is when the grounds cited by the petitioner is any of the grounds under
Republic Act 9262. In such case, the court shall immediately hear the petition for legal separation.
BUT, if based on Article 55, then the court enjoins to allow or give chance to the parties to
reconcile.

Article 59. No legal separation may be decreed unless the Court has taken steps toward the
reconciliation of the spouses and is fully satisfied, despite such efforts, that reconciliation is
highly improbable. (n)

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

In any case, the Court shall order the prosecuting attorney or fiscal assigned to it to take steps
to prevent collusion between the parties and to take care that the evidence is not fabricated
or suppressed.
Remember the very old case of Ocampo vs Florenciano? There was a confession of judgment but
the SC says evidence should be independent of the admission. So once the petition for legal
separation is filed, the spouses are entitled to live separately from each other immediately upon
the filing. Marital vinculum is not severed. What happens if the court grants the petition? The
effects are found in Article 63.

De Ocampo vs. Florenciano 107 Phil 35

FACTS: Jose de Ocampo and Serafina Florenciano were married in 1938. They begot several
children who are not living with plaintiff. In March 1951, latter discovered on several occasions
that his wife was betraying his trust by maintaining illicit relations with Jose Arcalas. Having
found out, he sent the wife to Manila in June 1951 to study beauty culture where she stayed
for one year. Again plaintiff discovered that the wife was going out with several other man
other than Arcalas. In 1952, when the wife finished her studies, she left plaintiff and since then
they had lived separately. In June 1955, plaintiff surprised his wife in the act of having illicit
relations with Nelson Orzame. He signified his intention of filing a petition for legal separation
to which defendant manifested conformity provided she is not charged with adultery in a
criminal action. Accordingly, Ocampo filed a petition for legal separation in 1955.

ISSUE: Whether the confession made by Florenciano constitutes the confession of judgment
disallowed by the Family Code.

HELD: Florenciano’s admission to the investigating fiscal that she committed adultery, in the
existence of evidence of adultery other than such confession, is not the confession of judgment
disallowed by Article 48 of the Family Code. What is prohibited is a confession of judgment, a
confession done in court or through a pleading. Where there is evidence of the adultery
independent of the defendant’s statement agreeing to the legal separation, the decree of
separation should be granted since it would not be based on the confession but upon the
evidence [independent of the statement] presented by the plaintiff. What the law prohibits is
a judgment based exclusively on defendant’s confession. The petition should be granted based
on the second adultery, which has not yet prescribed.

Article 63. The decree of legal separation shall have the following effects:

The spouses shall be entitled to live separately from each other, but the marriage bonds shall
not be severed;

The absolute community or the conjugal partnership shall be dissolved and liquidated but the
offending spouse shall have no right to any share of the net profits earned by the absolute
community or the conjugal partnership, which shall be forfeited in accordance with the
provisions of Article 43(2);

The custody of the minor children shall be awarded to the innocent spouse, subject to the
provisions of Article 213 of this Code; and
 No child below 7 yrs of age shall be separated from the mother

The offending spouse shall be disqualified from inheriting from the innocent spouse by
intestate succession. Moreover, provisions in favor of the offending spouse made in the will
of the innocent spouse shall be revoked by operation of law.

Is it a matter of right that the spouse is entitled to support under legal separation? No. It must
be prayed for by the innocent spouse. It is only the unemancipated children who have this as a
matter of right.

Forfeiture under Article 43 par. 2 that they are required to live separately but there must be
dissolution, liquidation of conjugal partnership same as in Article 43 (2) which refers to the share
only as defined by Article 102 par. 4. What constitutes profit? It’s the increase in price in market
value at the time of the celebration of the marriage and the market value at the time of the
dissolution of the marriage.

BRIGIDO QUIAO v. RITA C. QUIAO 675 S 642 (July 4, 2012)

Parties were legally separated on October 10, 2005 with Brigido’s share of the net profits
earned by the conjugal partnership forfeited in favor of the common children. Brigido wanted
to clarify the meaning of “net profit earned” for purposes of effecting the forfeiture authorized
under Article 63 of the FC.

The other issues raised were: 1) Can Article 256 of the Family Code be given retroactive effect
for purposes of determining the net profits without impairing vested rights already acquired
under the Civil Code; and 2) what properties shall be included in the forfeiture of the share of
the guilty spouse?

SC: The net profits of the conjugal partnership of gains are all the fruits of the separate
properties of the spouses and the products of their labor and industry. Article 102 (4) applies
in the instant case for purposes only of defining “net profit”. The provision applies to both the
absolute community regime and conjugal partnership as provided for under Article 63, No. (2)
of the Family Code relative to the provisions on Legal Separation.

When a couple enters into a regime of conjugal partnership of gains under Article 142 of the
Civil Code, “the husband and the wife place in common fund the fruits of their separate property
and income from their work or industry, and divide equally, upon the dissolution of the marriage
or the partnership, the net gains or benefits obtained indiscriminately by either spouse during
the marriage.”

From the foregoing provision, each of the couple has his and her own property and debts. The
law does not intend to effect a mixture or merger of those debts or properties between the
spouses. Rather, it establishes a complete separation of capitals. Article 129 of the Family Code
 applies in the liquidation of the couple’s properties. What remains of the separate or exclusive
properties of the husband and the wife shall be returned to each of them.

In the instant case, since it was already established by the trial court that the spouses have no
separate properties, there is nothing to return to any of them.
On the issue of retroactivity of the Family Code affecting vested rights already acquired, the SC
said “The concept of “vested right” is a consequence of the constitutional guaranty of due
process that expresses a present fixed interest which in right reason and natural justice is
protected against arbitrary court action. While one may not be deprived of his “vested right”,
he may lose the same if there is due process and such deprivation is founded in law and
jurisprudence.”

What about donations made? The innocent spouse may or may not revoke the donation by
reason of marriage unlike in Article 45 and Article 43 where it says revoked by operation of law.
Here, it is the option of the innocent spouse. The innocent spouse is given 5 years and any
encumbrance or alienation registered prior to the recording of the complaint for revocation shall
be respected.

Article 64. After the finality of the decree of legal separation, the innocent spouse may revoke
the donations made by him or by her in favor of the offending spouse, as well as the
designation of the latter as beneficiary in any insurance policy, even if such designation be
stipulated as irrevocable. The revocation of the donations shall be recorded in the registries
of property in the places where the properties are located. Alienations, liens and
encumbrances registered in good faith before the recording of the complaint for revocation in
the registries of property shall be respected. The revocation of or change in the designation
of the insurance beneficiary shall take effect upon written notification thereof to the insured.
The action to revoke the donation under this Article must be brought within five years from
the time the decree of legal separation become final. (107a)

Arts. 61 – 64 as to effects of legal separation, Ma’am G says: Just remember that separation does
not terminate the marriage, thus they are still married to each other. Only that the law grants
them the right to live separately from each other. But there is also that requirement that aside
from allowing the spouse to live separately from each other from bed and board, they are also
required to liquidate their CPG or ACP with forfeiture in accordance with Article 43(2). And that
would refer to the forfeiture of the share in the net profits. On forfeiture of the guilty spouse’s
share of the net profits (Article 63 [2])

What happens if the parties reconcile? It depends. If the petition for legal separation is still
pending in court, it will be terminated in whatever stage it may be. If there is already a decree of
legal separation, then that’s Article 66 (2). It shall be set aside. But the separation of property
and any forfeiture of share of the guilty spouse shall subsist, unless, they agree to revive the
former property regime. But remember this is not 100% revival because they have to agree what
will be contributed anew to the revived prop regime, and those not agreed upon can be his/her
separate property.
 Pana v Heirs of Jose Juanite, Sr. and Jose Juanite, Jr.
December 10, 2012

ISSUE:
Whether or not the conjugal properties of spouses Efren and Melencia can be levied and
executed upon for the satisfaction of Melencia’s civil liability in the aforesaid murder case.

SUPREME COURT:
YES, provided that the conditions under Article 121 of the Family Code have been covered.
First of all, the Supreme Court explained that it is clear from the facts that Efren and Melencia
were married when the Civil code was still the operative law on marriages. The presumption,
absent any evidence to the contrary, is that they were married under the regime of conjugal
partnership of gains.

Furthermore, Article 119 of the Civil Code provides that the future spouses main in marriage
settlements agree upon absolute or relative community or conjugal partnership of gains or
upon a complete separation of property, or upon any other regime. The family code itself
provides in Article 76 that marriage settlements cannot be modified except prior to marriage,
and clearly, under this situation, the spouses cannot modify their regime. Post marriage
modification of settlements can take place only where (a) the absolute community or conjugal
partnership was dissolved and liquidated upon a decree of legal separation; (b) the spouses
who were legally separated reconciled and agreed to revive their former property regime;
(c)judicial separation of property had been had on the ground that a spouse abandons the
other without just cause or fails to comply with his obligations to the family; (d) there was
judicial separation of property under article 135; (e) the spouses jointly filed a petition for the
voluntary dissolution of their absolute community or conjugal partnership of gains. None of
these circumstances exists in this case.

Furthermore, Article 119 provides as well, that in the absence of marriage settlements, or
when the same is void, the system of relative community or conjugal partnership of gains
established under the civil code shall govern the property regime of the spouses. the family
code contains terms governing the conjugal partnership of gains that supersede the terms of
the conjugal partnership of gains under the civil code. Article 105 of the family code states that
the provisions of such chapter on the conjugal partnership of gains shall also apply to conjugal
partnerships of gains already established between spouses before the affectivity of this code,
without prejudice to vested rights already acquired in accordance with the civil or other laws
as provided in Article 256.

Article 66. The reconciliation referred to in the preceding Articles shall have the following
consequences:
(1) The legal separation proceedings, if still pending, shall thereby be terminated at whatever
stage; and
 (2) The final decree of legal separation shall be set aside, but the separation of property and
any forfeiture of the share of the guilty spouse already effected shall subsist, unless the spouses
agree to revive their former property regime.
The court's order containing the foregoing shall be recorded in the proper civil registries

Article 66 (2) is in relation to Article 67.

Article 67. The agreement to revive the former property regime referred to in the preceding
Article shall be executed under oath and shall specify:

1. The properties to be contributed anew to the restored regime;

2. Those to be retained as separated properties of each spouse; and
3. The names of all their known creditors, their addresses and the amounts owing to each.
4.
The agreement of revival and the motion for its approval shall be filed with the court in the
same proceeding for legal separation, with copies of both furnished to the creditors named
therein. After due hearing, the court shall, in its order, take measure to protect the interest of
creditors and such order shall be recorded in the proper registries of properties.

The recording of the ordering in the registries of property shall not prejudice any creditor not
listed or not notified, unless the debtor-spouse has sufficient separate properties to satisfy the
creditor's claim.

So now we go to the obligations between husband and wife.

TITLE III
RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE

Article 68. The husband and wife are obliged to live together, observe mutual love, respect
and fidelity, and render mutual help and support. (109a)

In the case of Sochi vs Gozon. The issue was: What constitutes the share that will be forfeited?
Not the entire share but only the share in the net profit. In the Quaio vs Quiao case, the SC said
because all the property was acquired during the marriage, can the husband who is the claiming
party get any share? It was shown that no property was brought into the marriage celebrated
under the Civil Code. So the court said, husband forfeited the entire share, and the basis is the
value of the property at the time.

SIOCHI vs. GOZON 616 SCRA 87 March 18, 2010

Elvira obtained a decree of legal separation against her husband Alfredo. The dispositive
portion reads: “x x x x. Being the offending spouse, respondent (husband) is deprived of his
 share in the net profits and the same is awarded to their child Winifred R. Gozon whose custody
is awarded to petitioner.”

ISSUE: Does the forfeiture refer to the one-half undivided share of Alfredo in the property?

Article 63 shall have the following effects:

(1) x x x x x;
(2) The absolute community or conjugal partnership shall be dissolved and liquidated but the
offending spouse shall have no right to any share of the net profits earned by the absolute
community or the conjugal partnership, which shall be forfeited in accordance with the
provisions of Article 42 (2);
(3) X x x x x .

Article 43. The termination of the subsequent marriage referred to in the preceding Article
shall produce the following effects:
X x x x. 1. The absolute community of property or the conjugal partnership, as the case may
be, x x x x x x his or her share of the net profits of the community property or conjugal
partnership property shall be forfeited in favor of their common children or, x x x x x;

Thus, among the effects of the decree of legal separation is that the conjugal partnership is
dissolved and liquidated and the offending spouse would have no right to any share of the net
profits earned by the conjugal partnership. It is only Alfredo’s share in the net profits which is
forfeited in favor of Winifred. Article 102 (4) of the FC provides that “for purposes of computing
the net profits subject to forfeiture in accordance with Article 43 (2) and 63, No. (2), the said
profits shall be the increase in value between the market value of the community property at
the time of the celebration of the marriage and the market value at the time of its dissolution.”

Clearly, what is forfeited in favor of Winifred is not Afredo’s share in the conjugal partnership
property but merely in the net profits of the conjugal partnership property.

Remember Ilusorio vs Bildner? Can he be compelled by a court order? No, because it is purely
personal on the part of the spouse to live with the other spouse. The only remedy is to deprive
support. Of course the exception is when there is justifiable ground for one spouse not to live
together with the other spouse.

Ilusorio vs. Bildner 332 SCRA 169

May a wife secure a writ of habeas corpus to compel her husband to live with her in conjugal
bliss?

Facts: Erlinda and Potenciano were married for 30 years. In 1972, the spouse separated from
bed and board. When Potenciano arrived from the States in 1991 he stayed with Erlinda. The
children alleged that Erlinda gave Potenciano an overdose of antidepressant drug. On May 31,
1998, after attending a corporate meeting in Baguio City, Potenciano did not return to Antipolo
 City with Erlinda, but instead stayed with a daughter at Cleveland Condominium, Makati. The
wife then filed a petition for habeas corpus. Proper?

No court is empowered as a judicial authority to compel a husband to live with his wife.
Coverture cannot be enforced by compulsion of a writ of habeas corpus carried out by sheriff
or by any other mesne process. That is a matter beyond judicial authority and is best left to the
man and woman’s free choice.

In the event of disagreement, the court decides, not the husband. Art 69 2nd paragraph provides
for the exception. The exception to the exception is in the last sentence --- if the same is not
compatible with the solidarity of the family

Article 69. The husband and wife shall fix the family domicile. In case of disagreement, the
court shall decide.

The court may exempt one spouse from living with the other if the latter should live abroad
or there are other valid and compelling reasons for the exemption. However, such exemption
shall not apply if the same is not compatible with the solidarity of the family. (110a)

Article 70. The spouses are jointly responsible for the support of the family. The expenses for
such support and other conjugal obligations shall be paid from the community property and,
in the absence thereof, from the income or fruits of their separate properties. In case of
insufficiency or absence of said income or fruits, such obligations shall be satisfied from the
separate properties. (111a)

Ma’am G: Article 70 is the management of the household. And unlike under CC where it is only
the wife who manages the household, xxx the husband could no longer complain that washing
the dishes or doing the laundry would be that solely of the wife’s duty because Article 70 is very
explicit – JOINTLY xxx. Mutual obligation na.

Article 71. The management of the household shall be the right and the duty of both
spouses. The expenses for such management shall be paid in accordance with the provisions
of Article 70. (115a)

Article 72. When one of the spouses neglects his or her duties to the conjugal union or commits
acts which tend to bring danger, dishonor or injury to the other or to the family, the aggrieved
party may apply to the court for relief. (116a)

Article 72 is an interim relief. Now, the injury mentioned, unlike in the Civil Code which limits it
to economic injury, this also allows other forms of injury, like emotional, physical, or moral injury
because Article 72 does not particularly define what constitutes injury.
 Article 73. Either spouse may exercise any legitimate profession, occupation, business or
activity without the consent of the other. The latter may object only on valid, serious, and
moral grounds.

In case of disagreement, the court shall decide whether or not:

1. The objection is proper; and
2. Benefit has occurred to the family prior to the objection or thereafter. If the benefit
accrued prior to the objection, the resulting obligation shall be enforced against the
separate property of the spouse who has not obtained consent.

The foregoing provisions shall not prejudice the rights of creditors who acted in good
faith. (117a)

This refers to rights of either spouse to exercise without need of obtaining consent from the other
spouse. In case of disagreement, court decides based on serious, valid, and moral grounds. If the
husband objects and the objection is not based on serious valid or moral grounds, the husband
can be liable for violation of RA 9262 (VAWC Law).

So if the court finds that objection is proper and there are obligations incurred by the spouse who
did not obtain consent., and if benefit redounded prior to the objection, any obligation shall be
charged to the absolute community or conjugal partnership. But if the obligation was incurred
after the objection was found to be proper, then, any obligation shall be charged to the exclusive
property of the spouse who did not obtain consent.

TITLE IV
PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE

So we have:
1. System of Absolute Community
2. Conjugal Partnership of Gains
3. or complete Separation of Property of the Spouses

In the absence of a marriage settlement or if the pre-nuptial agreement is void, it will be the
Family Code and the default under the Family Code is absolute community of property, which is
different from the Civil Code, which is conjugal partnership of gains. We still have cases decided
by the SC based on provisions of the Civil Code involving disposition and encumbrance of conjugal
property and by local customs.

In order for marriage settlement to be valid there are 3 requisites as well as for any modification
thereof:
1. Must be excited before the celebration of marriage
2. In writing
3. Signed by parties
 Article 74. The property relationship between husband and wife shall be governed in the
following order:
1. By marriage settlements executed before the marriage;
2. By the provisions of this Code; and
3. By the local custom. (118)

Article 75. The future spouses may, in the marriage settlements, agree upon the regime of
absolute community, conjugal partnership of gains, complete separation of property, or any
other regime. In the absence of a marriage settlement, or when the regime agreed upon is
void, the system of absolute community of property as established in this Code shall
govern. (119a)

Article 76. In order that any modification in the marriage settlements may be valid, it must be
made before the celebration of the marriage, subject to the provisions of Articles 66, 67, 128,
135 and 136. (121)

Article 77. The marriage settlements and any modification thereof shall be in writing, signed
by the parties and executed before the celebration of the marriage. They shall not prejudice
third persons unless they are registered in the local civil registry where the marriage contract
is recorded as well as in the proper registries of properties. (122a)

Not required that it be in a public instrument. The requirement that the sale shall be registerd
with the appropriate registry of property is to affect third persons and not for validity. Recall
Article 1358 --- What are those agreements but must be in writing not for validity but for
convenience?

Art. 1358. The following must appear in a public document:

(1) Acts and contracts which have for their object the creation, transmission, modification or
extinguishment of real rights over immovable property; sales of real property or of an interest
therein a governed by Articles 1403, No. 2, and 1405;
(2) The cession, repudiation or renunciation of hereditary rights or of those of the conjugal
partnership of gains;
(3) The power to administer property, or any other power which has for its object an act
appearing or which should appear in a public document, or should prejudice a third person;
(4) The cession of actions or rights proceeding from an act appearing in a public document.

So to recap: Art. 74, 75, 76, & 77 – property regime of future spouses, requisites (92,95,05)
- Property relations between husband and wife is governed in the following order:
> Marriage settlements which might either be the a. absolute community property or b. conjugal
partnership of gains or c. complete separation of property;
> By the provisions of this Code [Ma’am G: ACP or if the MS is void then ACP governs]; and
> By local customs.
Ma’am G: Likewise, any modification thereof must also be made before the celebration of
marriage. Any modification after or during the marriage shall be void. Can you still remember the
Doctrine of Immutability of the Matrimonial Property Regime that regardless of the change of
the citizenship of the parties to the marriage, their original property regime shall remain, the
purpose of which is to ensure stability of the marriage relationship. In contrast to that, is the
Mutability of the Law, where if the law itself changes the marital property regime, then the
property regime (of the spouses) must likewise change accordingly.

Article 78. A minor who according to law may contract marriage may also execute his or her
marriage settlements, but they shall be valid only if the persons designated in Article 14 to give
consent to the marriage are made parties to the agreement, subject to the provisions of Title
IX of this Code. (120a)

And the law requires that the guardian must be made a party to the marriage settlement and he
is an indispensable party.

Article 79. For the validity of any marriage settlement executed by a person upon whom a
sentence of civil interdiction has been pronounced or who is subject to any other disability, it
shall be indispensable for the guardian appointed by a competent court to be made a party
thereto.

Ma’am G: What about a person who is sentenced to a penalty that carries with it civil
interdiction? We all know that a civil interdictee is considered to be civilly dead. But nonetheless,
he is allowed to enter into a contract of marriage. And because he is allowed to enter into a
contract of marriage, he is also allowed to enter into a marriage settlement. But the requirement
of the law is that there must be a guardian that would represent the civil interdictee; and who
appoints the guardian? It is the court who will choose the guardian of the civil interdictee and
further requires that it is indispensable that he must be named a party thereto.

We go to exceptions:

Article 80. In the absence of a contrary stipulation in a marriage settlement, the property
relations of the spouses shall be governed by Philippine laws, regardless of the place of the
celebration of the marriage and their residence.

This rule shall not apply:

1. Where both spouses are aliens; governed by national law siola
2. With respect to the extrinsic validity of contracts affecting property not situated in the
Philippines and executed in the country where the property is located; and
3. With respect to the extrinsic validity of contracts entered into in the Philippines but
affecting property situated in a foreign country whose laws require different formalities
for its extrinsic validity. (124a)
 Maam G: This refers to Article 17 respecting the instrinsic validity of contracts about property
not situated in the Philippines and executed in the country where the property is located.
Paragraph 1, Article 16 of the Civil Code as to real property, and personal propery naman ang
#3.

Ma’am G: What if the husband is a filipino and the wife is a foreigner and they did not execute a
marriage settlement? What law will govern? The HUSBAND’S NATIONAL LAW. So it would be the
ACP unless both are foreigners then follow Article 15 of the NCC.

Article 81. Everything stipulated in the settlements or contracts referred to in the preceding
articles in consideration of a future marriage, including donations between the prospective
spouses made therein, shall be rendered void if the marriage does not take place. However,
stipulations that do not depend upon the celebration of the marriages shall be valid. (125a)

Chapter 2. Donations by Reason of Marriage

What are those stipulations that do not depend upon the celebration of marriage?
Acknowledgement of the child, promise to provide support. Those are examples.

Now we go to donations by reason of marriage.

Article 82. Donations by reason of marriage are those which are made before its celebration,
in consideration of the same, and in favor of one or both of the future spouses. (126)

What are the requisites for a valid donation propter nuptias?

Before the marriage, in consideration of marriage and in favor of one or both spouses. But what
are the requisites that must be observed? Article 83 provides the requisites. Unlike that of the
Civil Code where donations by reason of marriage pursuant to the decision of the court in the
case of Valencia vs Loquiao, the donation by reason of marriage was governed by Article 1403
par. 2 of the Civil Code which refers to the Statute of Frauds made in consideration of marriage
other than mutual promise to marry. But under the Family Code, it is already governed by
ordinary rules on donation which depend whether the property is personal or real. If personal
and more than 5k--- must be in writing ang acceptance. If real --- must be in a public instrument
and acceptance must be in writing.

Article 83. These donations are governed by the rules on ordinary donations established in
Title III of Book III of the Civil Code, insofar as they are not modified by the following articles.

Article 84. If the future spouses agree upon a regime other than the absolute community of
property, they cannot donate to each other in their marriage settlements more than one-fifth
of their present property. Any excess shall be considered void.
 Donations of future property shall be governed by the provisions on testamentary succession
and the formalities of wills. (130a)

Art. 84 – Limitation in cases of donation of present property (91)

- If the spouses agree upon a regime other than the absolute community property, they cannot
donate to each other in their marriage settlement more than 1/5 of their present property. The
excess is void. The law on testamentary succession and the formalities of wills will govern
donations involving future property.

Article 85. Donations by reason of marriage of property subject to encumbrances shall be

valid. In case of foreclosure of the encumbrance and the property is sold for less than the total
amount of the obligation secured, the donee shall not be liable for the deficiency. If the
property is sold for more than the total amount of said obligation, the donee shall be entitled
to the excess. (131a)

This is not found in the Civil Code, only in the Family Code. It is valid to donate property that is
encumbered, but in the event of non-payment of the donor, the property is subject to foreclosure
and any deficiency is not the liability of the donee-spouses. If there is an excess, the done-spouses
are entitled to the excess.

Article 86. A donation by reason of marriage may be revoked by the donor in the following
cases:
1. If the marriage is not celebrated or judicially declared void ab initio except donations
made in the marriage settlements, which shall be governed by Article 81;
2. When the marriage takes place without the consent of the parents or guardian, as
required by law;
3. When the marriage is annulled, and the donee acted in bad faith;
4. Upon legal separation, the donee being the guilty spouse;
5. If it is with a resolutory condition and the condition is complied with;
6. When the donee has committed an act of ingratitude as specified by the provisions of
the Civil Code on donations in general. (132a)

Art. 86 – grounds for revocation of donations propter nuptias (96)

Ma’am G: Now unlike that of Article 43(3) where donations by reason of marriage, if it is the
donee who is the guilty spouse, “IS REVOKED BY OPERATION OF LAW”, under Article 86, it is
“MAY BE REVOKED.”

Now that provision on mandatory revocation of donation propter nuptias under article 43(3)
applies only when it is the spouse who is the donor but if it is a third person then we go to Article
86. If the donor is the innocent spouse then it is revoked by operation of law. There is no need
for a revocation.
 (1) – “If the marriage is not celebrated or judicially declared void ab initio” – so even if the
marriage is void, but there was no judicial declaration of nullity, the donor cannot revoke,
because the law requires that there must be a judicial declaration of nullity that the
marriage is void from the beginning.

Now what if the marriage is declared void under Article 36? Can there be revocation? Because
take note, in the case of Buenaventura vs CA, there can be no basis for the award of moral and
exemplary damages to the aggrieved spouse because there is no willfulness on the act of the
incapacitated spouse. It is an innate inability to comply with the essential marital obligations of
marriage. So can there be revocation? YES because it is separate and distinct from damages.

Take note of (2), there is no need for annulment of the marriage. This would refer to one of the
parties to the marriage being between the ages of 18 and 21 and did not obtain parental consent.
Because paragraph (3) requires annulment of marriage before the donor may revoke the
donation by reason of marriage and the donee is in bad faith. xxx

Article 765 of NCC for (6).

Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be
void ab initio and all donations by reason of marriage and testamentary dispositions made by
one in favor of the other are revoked by operation of law. (n)

Art. 43. The termination of the subsequent marriage referred to in the preceding Article shall
produce the following effects:

(3) Donations by reason of marriage shall remain valid, except that if the donee contracted
the marriage in bad faith, such donations made to said donee are revoked by operation of law;

Article 43 (3) also speaks of revocation of donation by operation of law. So if the donor is the
innocent spouse, it is revoked by operation of law. But if the donor is a third person, we apply
Article 86--- may be revoked.

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