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Saint Louis University - College of Law

Comprehensive Reviewer in Persons and Family Relations


By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

PERSONS AND FAMILY RELATIONS 2. Permissive or Suppletory Laws – those which may be deviated from if the individual
so desires.
I. INTRODUCTION
CIVIL LAW – mass of precepts which determines and regulates the relations of assistance,
LAW – is a rule of conduct promulgated by a legitimate authority for the common good and authority and obedience existing among members of family as well as among members of
observance of all. society for the protection of private interest, family relations and property rights.

CLASSIFICATION OF LAW CIVIL CODE – collection of laws which regulates the private relations of civil society,
a.) Natural Law – promulgated impliedly in human body and conscience. determining their respective rights and obligations with reference to persons, things, and civil
1. Natural Moral Law – applies to our higher faculties (do good and avoid evil). acts.
2. Law of Nature – applies to both our higher and lower faculties (law of gravity).
Sources of the Civil Code of the Philippines (REPUBLIC ACT NO. 386)
b.) Positive Law – promulgated expressly or impliedly. 1. Civil Code of Spain of 1889
1. Divine Positive Law – like The Ten Commandments. 2. Codes and laws of other countries
2. Divine – Human Positive Law – like The Commandments of the Catholic Church. 3. Judicial decisions of the Supreme Court of the Philippines and of various states
3. Human Positive Law – like Congressional Statutes or Executive Orders. 4. Philippine laws and statutes
5. Works of jurists and commentators of various nations
CONCEPT OF LAW AS “DERECHO” AND “LEY” 6. Filipino customs and traditions
7. Code Commission itself
Derecho is the general or abstract concept of law which defines law as the science of moral
rules founded on rational nature of man, demandable and reciprocal, and governs the free Effectivity of the Civil Code of the Philippines
activity of man for the realization of the individual and social ends.
The Civil Code of the Philippines took effect on August 30, 1950. This date is exactly one year
Ley is the specific or material concept of law which defines law as a rule of human conduct, after the Official Gazette publishing the Code was released for circulation, the said release
just, obligatory, promulgated by legitimate authority, and of common observance and benefit. having been made on August 30, 1949. (Lara v. Del Rosario, 94 Phil 778)

HUMAN POSITIVE LAW - is a reasonable rule of action, expressly or directly promulgated by


competent human authority for the common good, and usually, but not necessarily, imposing a
sanction in case of disobedience.

Essential Elements of Human Positive Law


a.) reasonable rule of action
b.) due promulgation
c.) promulgation by competent authority
d.) a sanction imposed for disobedience.

Classification of Human Positive Law

A. According to whether a right is given or merely the procedure for enforcement is


laid down:
1. Substantive Law – that which establishes rights and duties.
2. Remedial or Procedural Law – that which prescribes the manner of enforcing legal
rights and claims.

B. According to the scope or content of the law:


1. Private Law – that which regulates the relations of the members of a community with
one another. (Civil and Commercial Laws )
2. Public Law – that which governs the relations of the individual with the State or ruler
or community as a whole. (Political, Criminal and Remedial Laws )

C. According to force and effect:


1. Mandatory or Prohibitive Laws - those which have to be complied with because they
are expressive of public policy.

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

II. EFFECT AND APPLICATION OF LAWS INTERPRETATIVE REGULATIONS AND THOSE LAWS OR RULES WHICH ARE MERELY
INTERNAL IN NATURE, that is, regulating only the personnel of the administrative agency
EFFECTIVITY OF LAWS and not the public, need not be published.

Laws shall take effect after 15 days following the completion of their publication in the Official Neither is publication required of the so-called LOI issued by administrative superiors
Gazette, or in a newspaper of general circulation, unless otherwise provided. (Article 2, NCC concerning the rules or guidelines to be followed by their subordinates in the performance of
as amended by E.O. 200, 18 June 1987). their duties.

General Rule: Laws shall take effect after 15 days following the completion of their publication
in the Official Gazette, or in a newspaper of general circulation. IGNORANTIA LEGIS NON EXCUSAT

Exception: When the law provides for its own affectivity, less than or greater than 15 days Ignorance of the law excuses no one from compliance therewith. (Art. 3, NCC)
after publication.
Concept
Publication Is Mandatory
This rule is a conclusive presumption of law. It is based on expediency as well as public policy
The phrase “UNLESS OTHERWISE PROVIDED” refers to the date of effectivity and not to the and necessity. So that ignorance of the law cannot be used as a valid defense in favor of one
requirement of publication, which cannot in any event be omitted. It does not dispense the who violated a law. The rule refers only to mistakes of the existence of a law rather than to
requirement of publication. PUBLICATION is INDISPENSABLE. (Tanada v. Tuvera, 146 mistakes with regard to the application and interpretation of law. The latter is called mistake of
SCRA 446) It is the prerogative of Congress to shorten or lengthen the period of publication. law which may be a valid defense like mistake of fact.
HOWEVER, when the law is penal in character, the 15-day period shall not be shortened.
Application: All domestic laws, mandatory or prohibitive, and whether substantive or remedial
Omission would offend DUE PROCESS insofar as it would deny the public the knowledge of on grounds of expediency, policy, and necessity, to prevent evasion of the law.
the laws that are supposed to govern them. Section 6 of the Bill of Rights recognizes "the right
of the people to information on matters of public concern." Exceptions:
1. Permissive or suppletory laws.
How Publication be Made 2. Foreign Laws
Ignorance of foreign law is not ignorance of the law but ignorance of fact because foreign
PUBLICATION MUST BE IN FULL or it is no publication at all since its purpose is to inform the laws must be alleged and proved as matters of fact, there being, as a rule, no judicial
public of the contents of the laws. notice of said foreign laws.

Where Publication be Made Processual Presumption - if the foreign law is not properly alleged and proved, the
presumption is that it is the same as our law.
In the Official Gazette or in a newspaper of general circulation, it is NOT required that laws be
published in both.
LEX PROSPICIT, NON RESPICIT
What Must be Published
Laws shall have no retroactive effect, unless the contrary is provided. (Art. 4, NCC)
Laws of general application especially those penal or punitive in character whether in the form
of statutes, Presidential Decrees, Executive Orders, Administrative Rules and Regulations. GENERAL RULE: Laws are prospective, not retroactive.

Rules and regulations must also be published if their purpose is to ENFORCE or REASON: If the rule was that laws were retroactive, grave injustice would occur as they would
IMPLEMENT EXISTING LAW. punish individuals for violations of laws not yet enacted. While ignorance of the law does not
serve as an excuse, such ignorance refers only to laws that have already been enacted.
The circulars issued by the MONETARY BOARD must be published if they are meant not
merely to interpret but to "FILL IN THE DETAILS" of the Central Bank Act. EXCEPTIONS: PIERCER
 PENAL statutes favorable to the accused and that the accused is not a habitual
The charter of a city must be published notwithstanding that it applies to only a portion of the delinquent and that the law does not provide for its non-retroactive application.
national territory and directly affects only the inhabitants of that place. Local Ordinances
passed by local legislative bodies must also be published.  INTERPRETATIVE statutes

Not Covered By Publication Requirement  statute EXPRESSLY provides for retroactivity (e.g. Art 256 of the Family Code)

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

Limitations: Rights may be waived, unless the waiver is contrary to law, public order, public policy, morals,
 Ex post facto law or good customs, or prejudicial to a third person with a right recognized by law. (Art. 6, NCC)
 Impairment of obligation and contracts
Rules for the Waiver of Rights
Illustration:
FACTS: Illegitimate children, born before the effectivity of the FC were claiming General rule: Rights can be waived.
illegitimate filiation with the putative deceased father under the old civil law stating that Exception: CPAN
the right to be recognized vests from the moment of birth and succession vests from the 1. When the waiver is Contrary to law, public order, public policy, morals, or good customs.
moment of death of the owner of property. The legal heirs of the dececeased countered 2. If the waiver is Prejudicial to a 3rd person with a right recognized by law.
that their action is already barred by the FC because the action for illegitimate filiation 3. Alleged rights which do not yet exist.
based on open and continuous possession of the status of illegitimate children shall be 4. If the right is a Natural right such as right to be supported, political rights, future
filed during the lifetime of the putative father. HELD: The action is not barred because the inheritance when intended to prejudice creditors.
rights of the illegitimate children were already vested under the old Civil Code. Rights of
the illegitimate children already vested under the old civil code shall not be impaired. RIGHTS – the power or privilege given to one person and as a rule demandable of another. It
(Aruego, Jr. v. CA, 254 S 711; Bernabe v. Alejo, 21 January 2002) may be:
a. Real Rights (jus in rem) – enforceable against the whole world. (Absolute rights)
 REMEDIAL statutes, as there is no vested right in procedural laws. b. Personal Rights (jus in personam) – enforceable against a particular individual. (Relative
Rights)
NO retroactive effect, however, if it disturbs final judgments or if it is more onerous to
party litigants. Note: Inherent, constitutional or fundamental rights are, as a rule, not subject to contractual
waivers. Constitutional rights to be waived must comply with the constitutional requirements.
 CURATIVE statutes, that is to cure defects or imperfections in judicial or administrative Statutory rights are subject to waivers.
proceedings.
WAIVER – the intentional or voluntary relinquishment of a known right, or such conduct as
 EMERGENCY laws as they are authorized by the police power of the state. warrants an inference of the relinquishment of such right.

 If a substantive RIGHT be declared for the first time, unless vested rights are impaired. Requisites of Valid Waiver CCA-FORNO
(e.g. Law that allows the illegitimates to use the surname of the father) 1. The person waiving must be Capacitated to make the waiver.
2. The waiver must be made Clearly, but not necessarily express.
3. The person waiving must Actually have the right which he is renouncing.
MANDATORY / PROHIBITORY LAWS 4. In certain instances, the waiver must comply with certain FORmalities.
5. The waiver must NOt be contrary to law, public order, public policy, morals or good
Acts executed against the provisions of mandatory or prohibitory laws shall be void, except customs, or prejudicial to others with a right recognized by law.
when the law itself authorizes their validity. (Art. 5, NCC)
Illustration:
Effect of Violation of Mandatory or Prohibitory Laws: HELD: There was a void waiver in this case because there was nothing to be waived. By
the time the right was waived, no definite relationship between the children vis-à-vis
GENERAL RULE: Acts executed against the provisions of mandatory or prohibitory laws shall deceased. Assuming the waiver is valid, mother has no authority to waive such rights of
be VOID. children because she did not avail of judicial approval. (Guy vs. CA, 502 SCRA 151)

EXCEPTIONS: JUDICIAL APPLICATION AND INTERPRETATION OF LAWS


a.) When the law itself authorizes their validity. (e.g. lotto, sweepstakes)
b.) When the law makes the act merely voidable. Thus, subject to ratification. Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the
c.) When the law makes the act valid but subjects the wrongdoer to liability. (e.g. marriage legal system of the Philippines. (Art. 8, NCC)
solemnized by a person without legal authority; W who got married within 300 days after
death of H) Are Judicial Decisions Laws?
d.) When the law makes the act itself void but recognizes legal effects flowing therefrom. (e.g.
children of void marriage are illegitimates but they have rights recognized under the law) Judicial decisions, though not laws, are evidence, however, of what the laws mean and this is
why they are part of the legal system of the Philippines. The interpretation placed upon the
written law by competent court has the force and effect of law.
WAIVER OF RIGHTS

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

RULES ON APPLICATION AND INTERPRETATION OF LAWS 1 day – 24 hours; 1 month – actual number of days;
1 year – be computed based on 12 calendar months. (Art. 13, NCC as Repealed by
No judge or court shall decline to render judgment by reason of the silence, obscurity or Administrative Code; CIR v Primetown, Aug 28, 2007)
insufficiency of the laws. (Art. 9, NCC)
Calendar month: if months are designated by their name, they shall be computed by the
Duty of the Court to Render Judgment number of days which they respectively have.

The court must give a decision, even if the law is silent, obscure, or insufficient. Computation of periods: the first day shall be excluded, and last day included, unless the
latter is a Sunday or a legal holiday, in which event, the time shall run until the end of the next
Stare Decisis Non Quieta Movere (adherence to precedents) – once a case has been day which is neither a Sunday or a legal holiday.
decided one way, then another case, involving exactly the same point at issue, should be
decided in the same manner. Judicial decisions interpreting the law shall form part of the NOTE: When the act and the period are CONTRACTUAL, the act must be done on the last
legal system of the Philippines. Only SC can establish stare decisis or legal doctrines. day, even if the latter is a Sunday or a legal holiday.
CA may in rare cases establish stare decisis

Ratio Decidendi – final judgment which states the reason for such judgment. APPLICABILITY OF CUSTOMS (Arts. 11 and 12, NCC)

Obiter Dictum – opinions not necessarily to the determination of a case. They are not Custom - is a rule of human action/conduct established by repeated acts and uniformly
binding and cannot have the force of judicial precedents. observed or practiced as a rule of society, thru the implicit approval of the lawmakers, and
which is obligatory and legally binding.
Effect of Silence, Obscurity or Insufficiency of Laws
Requisites:
The court may apply any rule he desires as long as the rule chosen is in harmony with general a. A custom must be proved as a fact, according to the rules of evidence.
interest, order, morals and public policy. b. The custom must not be contrary to law, public order or public policy.
c. There must be a number of repeated acts (plurality of use).
Judicial Aids d. The repeated acts must have been uniformly performed.
a. Customs which are not contrary to law, public order, and public policy; e. There must be a juridical intention to make a rule of social conduct.
b. Equity and justice; f. There must be a sufficient lapse of time.
c. Decisions of foreign and local courts on similar cases;
d. Opinions of highly qualified writers and professors; Custom Propter Legem v. Custom Contra Legem
e. Rules of statutory construction;
f. Principles laid down in analogous instances. Custom propter legem – not contrary to law.

Rules on Interpretation of Laws Custom contra legem – contrary to law

1. If the Law is Clear – apply the law as it is. Dura Lex Sed Lex - “The law may be hard,
but it is still the law.”
HOW LAWS LOSE THEIR EFFECTIVITY (Art. 7, NCC)
The judge must impose death penalty though contrary to his personal/religious belief.
(Pp. v. Veneracion, 249 S 251) 1. Lapse of a Law - laws which, without any repeal, cease to have effect because they
lapse by their own terms. A law may expressly provide that it shall be effective only for a
2. If the Law is not so Clear fixed period.

In case of doubt in the interpretation or application of laws, it is presumed that the 2. Repeal - annulment of a law by a subsequent one.
lawmaking body intended right and justice to prevail. (Art. 10, NCC)
Express Repeal and Implied Repeal
“Interpret not by the letter that kill but by the spirit that gives life”
Express Repeal – when the subsequent law expressly provides that the prior law is
Cessante Ratione Cessat Ipsa Lex in Criminal Law - When the reason for the law repealed (there is repealing clause).
ceases, the law automatically ceases to be one.
Implied repeal – when there are inconsistencies or irreconcilable differences between the
Computation of Periods prior and the subsequent law.

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

Note: In both cases, the later enactment prevails. THEORY OF STATUTES/CONFLICT OF LAW RULES

Effect of Repeal of Repealing Law on Law First Repealed Persons: NATIONALITY PRINCIPLE
1. When a law which expressly repeals a prior law is itself repealed, the repeal of the
repealing law does not revive the first law repealed, unless expressly so provided. Laws relating to family rights and duties, or to the status, condition and legal capacity of
2. When a law which impliedly repeals a prior law is itself repealed, the repeal of the persons are binding upon citizens of the Philippines, even though living abroad. (Art. 15,
repealing law revives the prior law, unless the language of the repealing law NCC)
provides otherwise.
Nationality/Personal Theory - the status and capacity of an individual are generally
3. Declaration of Unconstitutionality governed by the law of his nationality.

Generally, an unconstitutional law confers no right, creates no office, affords no Status - the sum total of a person’s rights, duties, and capacities.
protection and justifies no acts performed under it, there are instances when the
operation and effects of the declaration of its unconstitutionality may be relaxed or Characteristics of Status:
qualified because the actual existence of the law prior to such declaration is an operative a. It is inalienable.
fact and may have consequences which cannot justly be ignored. b. It is imprescriptible.
c. It cannot be the object of compromise.
Constitution – the fundamental law of the land to which all other laws must conform. d. The action to claim it cannot be renounced.
e. The rights arising from it cannot be exercised by creditors.
Supremacy of the Constitution
Legal Capacity – power to do acts with legal effects.
When the courts declare a law to be inconsistent with the Constitution, the former shall
be void and the latter shall govern. It is not supremacy of the Supreme Court but Protective Principle - prohibitive laws concerning persons, their acts or property, and
supremacy of the Constitution. This is pursuant to judicial power of the court. those which have for their object public order, public policy and good customs shall not
be rendered ineffective by laws or judgments promulgated, or by determinations or
conventions agreed upon in a foreign country. (Art. 17, par. 3, NCC)
BINDING EFFECT OF LAWS (Art. 14, in relation to Art. 2, Revised Penal Code)
Domiciliary Theory - The basis for determining personal law of an individual is his
Territoriality - Penal laws and those of public security and safety shall be enforceable domicile.
throughout the territorial jurisdiction of the Philippines, subject to the principles of public
international law and to treaty stipulation. Renvoi - It literally means a “referring back”. It arises when one state follows the
nationality theory and the other the domiciliary theory, the problem may be referred back
General Rule: Laws are enforceable within the territorial jurisdiction of the Philippines. to the law of the first state. (See Discussion in Private International Law)

Exceptions: Property: LEX REI SITAE (Mobilia Sequntur Personam abandoned)


1. Ex-territoriality - When the acts referred to are executed before the diplomatic
or consular officials of the Republic of the Philippines in a foreign country, the General Rule: Real property as well as personal property is subject to the law of the
solemnities established by Philippine laws shall be observed in their execution. country where it is situated. (Art. 16 par 1, NCC)
2. Extra-territoriality – laws of the Philippines is applicable outside its territory. (e.g.
Art. 2, RPC) Exception: Intestate and testamentary SUCCESSION (capacity to succeed), order of
succession, amount of successional rights; and intrinsic validity of testamentary
Generality - Penal laws and those of public security and safety shall be obligatory upon all provisions shall be regulated by the NATIONAL LAW of the person whose succession is
who live or sojourn in Philippine territory, subject to the principles of public international law under consideration, whatever maybe the nature of the property and regardless of the
and to treaty stipulation. country wherein said property may be found. (Art 16 Par 2, NCC) Thus, the property of a
deceased Filipino shall be included in his estate.
General Rule: Laws are binding upon those who live or sojourn in the Philippines.
Forms and Solemnities of Contracts and Wills: LEX LOCI CELEBRATIONIS
Exceptions:
a. Principles of Public International Law. It is a principle which applies the law of the place where the contract was executed as far
b. Treaty stipulations (e.g. VFA) as the formalities and solemnities (extrinsic validity) are concerned.
c. Laws of preferential application (e.g. those under RA 75)
General Rule: The forms and solemnities of contracts, wills and other public instruments
shall be governed by the laws of the country in which they are executed. (Art. 17, NCC)

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

Exceptions:
a. Lex loci voluntatis - The intrinsic validity of contracts shall be governed by the law
of the place voluntarily selected. In case of controversy, the court shall apply the
court of the forum.
b. Lex loci intentionis - The intrinsic validity of contracts shall be governed by the law
of the place intended by the parties to the contract.

Lex Nationalis Lex rae sitae Lex loci


Art 15 Art 16 Celebrationis
Art. 17
Basis: Nationality Basis: Law of the Basis: Law of the
place where the place where the
property is situated contract was
executed
Covers: family Covers: Real and Covers: forms and
rights and duties, personal properties solemnities
status, condition (extrinsic validity)
and legal capacity
Exception: Art 26 Exceptions: Art 16 Exception: Art 26
par 2, FC par 2, NCC par 1, FC

SUPPLETORY APPLICATION OF THE CIVIL CODE OF THE PHILIPPINES

In matters which are governed by the Code of Commerce and special laws, their deficiency
shall be supplied by the provisions of this Code. (Art. 18, NCC)

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

III. HUMAN RELATIONS


INJURY - It refers to the legal wrong to be redressed.
FUNDAMENTAL HUMAN RIGHTS
a. right to life DAMAGE - It refers to the amount of money awarded by the court to compensate for the loss
b. right to liberty or injury suffered.
c. right to property
Purpose: It is awarded to compensate the plaintiff for the loss or damage that he
CHARACTERISTICS/ATTRIBUTES OF HUMAN RIGHTS suffered, not to enrich him, or to impose a penalty on the wrongdoer.
a. inalienable – it cannot be passed by the State or through certain contract.
b. Inherent – innate to human existence. Kinds: (MANTLE)
c. Indivisible a. moral damages
b. actual or compensatory damages
STANDARDS/NORMS OF HUMAN RIGHTS (Art 19, NCC) c. nominal damages
d. temperate damages
Every person must, in the exercise of his rights and in the performance of his duties, act with e. liquidated damages
justice, give everyone his due, and observe honesty and good faith. (Article 19, NCC) f. exemplary damages

NOTE: It is considered as cardinal law on human conduct. It abolished the old rule which
states that: “He who uses a right injures no one.” LIABILITY EX-MALEFICIO OR EX-DELICTO (Art. 20 in rel. to Art. 100 of the Revised
Penal Code)
Principle of Abuse of Right
Every person who, contrary to law, willfully (dolo) or negligently (culpa) causes damage to
He who acts with abuse, his right ceases, and his act becomes illicit, giving rise to liability. The another, shall indemnify the latter for the same. (Article 20, NCC)
term refers to acts which are not illegal but nevertheless make the actor liable for damages.
Negligence – failure to observe for the protection of the interest of another person that degree
Elements of Abuse of Right of care, precaution and vigilance which the circumstances greatly demand.
1. there is a legal right or duty (what right has been abused?);
2. the exercised of such right is in bad faith (Bad faith does not only connote bad judgment Willful Act – if it is done with knowledge of its injurious effect. It is not required that the act be
or negligence; it imparts a dishonest purpose and conscious doing of wrong); and done purposely to produce the injury. The act need not be committed against the person
3. there is an intent to prejudice or injure others (what is the intention?). injured.

Standards to be Observed to Avoid Abuse of Rights: Civil Liability for Delict


1. to act with justice
2. to give everyone his due Every person criminally liable for a felony is also civilly liable. (Art. 100, RPC)
3. to observe honesty and good faith
Civil liability for Quasi-delict
Justice – acts must be done in accordance with law.
Whoever by act or omission causes damage to another, there being fault or negligence, but no
Honesty – careful regard for other’s rights and property. pre-existing contractual relation between the parties, is obliged to pay for the damage done
(Art. 2176, NCC).
Good Faith – honest intention to avoid taking undue advantage of another.

Some Rules Observe Under Article 19 ACTS CONTRARY TO MORALS, GOOD CUSTOMS OR PUBLIC POLICY

1. Where a person exercises his rights or performs his duties, observing the standards Any person who willfully causes loss or injury to another in a manner that is contrary to morals,
under Article 19, but still causes damage to another. good customs or public policy shall compensate the latter for the damage. (ARTICLE 21,
NCC)
a. actor benefited – liable but not beyond such benefit and damage by virtue of equity.
b. actor did not benefit – no liability is created by virtue of damnum absque injuria Note: This refers to acts “CONTRA BONUS MORES.”
(damage but no legal injury).
Coverage: Any act or omission not contrary to law but contrary to morals, good customs and
2. Where a person exercises his rights but does so arbitrarily or performs his duties in a public policy.
manner that is not in keeping with honesty and good faith, he opens himself to liability.

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

b. In the first the victim is virgin, while in the second the victim is no longer virgin but
Elements of Contra Bonus Mores has a high reputation.
1. there must be an act which is legal;
2. the act must be contrary to morals, good customs, public order or public policy; and 2. Malicious Prosecution
3. the act is done willfully with intent to injure.
Malicious Prosecution is one that is instituted just to vex and humiliate the defendant
Kinds despite the absence of a cause of action or probable cause against him.
1. Breach Of Promise To Marry
Malicious prosecution in criminal cases, elements
General rule: Not an actionable wrong. c. the fact of the prosecution and the further fact that the defendant was himself the
prosecutor, and that the action was finally terminated with acquittal;
Exceptions: d. that in bringing the action, the prosecutor acted without probable cause; and
When there has been sexual intercourse e. the prosecutor was actuated or impelled by legal malice.
a. The aggrieved party becomes pregnant and subsequently delivers, she may ask the
other to RECOGNIZE THE CHILD, should there be one, and PROVIDE SUPPORT Malicious prosecution in civil cases, elements
to said child. She can also recover compensatory damages and hospitalization a. the defendant previously filed a civil action against the plaintiff;
expenses as well as attorney’s fees. b. the action was dismissed for being lack of merit or for being baseless, unfounded
b. Sue for MORAL DAMAGES if there be criminal or moral seduction, but not if the and malicious;
intercourse was due to mutual lust; if the cause be the promise to marry, and the c. the defendant who filed the previous complaint as plaintiff was motivated by ill-will or
effect be the carnal knowledge, there is criminal or moral seduction. sinister design;
c. Sue for MORAL DAMAGES if the act of the defendant constitutes a tort under Art d. the present plaintiff suffered injury or damage by reason of the previous complaint
21. against him.
d. Sue for ACTUAL DAMAGES, should there be any, such as advanced money or
property upon the faith of the promise to marry or expenses for the wedding Misconduct - implies a wrongful intention and not merely error in judgment.
preparations on the ground that no person can enrich himself unjustly at the
expense of another. Article 20 and Article 21, Distinguished

When there was no sexual intercourse Article 20 Article 21


a. Sue for MORAL DAMAGES in case there has been a deliberate desire to inflict loss The act is contrary to law The act is contrary to morals,
or injury or there has been an evident abuse of right. good customs or public policy
b. Sue for MORAL DAMAGES if the act of the defendant constitutes a tort under Art The act is done either willfully The act is done willfully
21. or negligently
c. Sue for ACTUAL DAMAGES, should there be any, such as advanced money or
property upon the faith of the promise to marry or expenses for the wedding
preparations on the ground that no person can enrich himself unjustly at the UNJUST ENRICHMENT
expense of another
Basis: Equity
Notes:
Moral seduction, although not punishable, connotes the idea of deceit, enticement, Article 22. Every person who through an act or performance by another, or any other means,
superior power or abuse of confidence on the part of the seducer to which the woman acquires or comes into possession of something at the expense of the latter without just or
has yielded (Gashem Shokat Baksh vs CA) legal ground, shall return the same to him.

Sexual intercourse is not by itself a basis for recovery; damages could only be awarded if Stated in another way, “No person shall unjustly enrich himself at the expense of another.”
the sexual intercourse is not a product of voluntariness or mutual desire. One has the duty to return what was acquired unjustly or illegally EXCEPT when there is a
legal right or entitlement thereto (final judgment) or when there is no causal relation between
Civil seduction is different from criminal seduction. In civil seduction, age of the victim is the one’s enrichment and the other’s impoverishment.
immaterial. Unjust enrichment and quasi-contracts have a merger. Under Art. 22, the enrichment of the
defendant must acquire or come into possession of something at the expense of another.
Moral fault is something that works inside of a man. Thus, it is not an actionable wrong. Unjust enrichment not due to acquisition or delivery of something may still be recovered under
quasi-contract.
Qualified Seduction vs Simple Seduction
a. In qualified seduction there is a moral ascendancy, while in simple seduction there Enrichment is every patrimonial physical or moral advantage, so long as appreciable in
is no moral ascendancy. money.

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

ARTICLE 24. protection of the underdog: In all contractual, property or other relations,
Requisites of accion in rem verso when one of the parties is at a disadvantage on account of his moral dependence, ignorance,
1. One party must be enriched; indigence, mental weakness, tender age of other handicap, the courts must be vigilant for his
2. The other party suffered a loss; protection.
3. There must be a causal relation between the two;
4. The enrichment must not be justifiable; otherwise, there can be no recovery; NOTE: Such protection is only applicable in case of DOUBT as to the interpretation of law
5. There must be no other way to recover such as those based on contract, quasi-contract governing the conflict between parties where one is at the disadvantage.
or quasi-delict; and
6. The indemnity cannot exceed the loss or enrichment, whichever is less. Rationale of the Article

NOTES: The law is intended to protect the weak and ignorant in the face of rigid and classical principle
 The incapacity of the defendant to enter into contracts does not bar the accion in rem of equality before the law. The government acts as parent of the people which is in
verso, so long as he has been unjustly enriched. consonance with the promotion of social justice.
 The indemnity does not include unrealized profits because defendant’s enrichment is
the limit of his liability. Doctrine Of Parens Patriae
 Just or legal cause is always presumed, the plaintiff has the burden of proving its
absence. Literally means father or parent of his country. It refers to the inherent power of the state and
 If a plaintiff delayed his action under the contract, quasi-contract, crime or quasi-delict authority of the State to provide protection of the person and property of a person non sui juris.
and prescription had barred the action, he could no longer have recourse to accion in rem It is the sovereign power of the state in safeguarding the rights of person under disability. It is
verso. the obligation to minimize the risk to those who, because of their disability, are as yet unable
to take care of themselves.
Classification of Unjust Enrichment
1. Enrichment through the act of the injured party (e.g. payment of a debt which does not Vigilant for his Protection - means that in case of doubt, the doubt must be resolved in favor
exist; payment by virtue of a contract which is void) of the underdog.

2. Enrichment without the act of the injured party (e.g. defendant stealing the plaintiff’s ARTICLE 28. Prohibited competition: Unfair competition in agricultural, commercial or
property) industrial enterprises or in labor through the use of force, intimidation, deceit, machination or
any other unjust, oppressive or high-handed method shall give rise to a right of action by the
Accion in Rem Verso and Solutio Indebiti, Distinguished person who thereby suffers damages.

In accion in rem verso there is NO mistake; while in the quasi-contract of solution indebiti Rationale of the Article
(undue payment) it is essential that there is mistake. Under Article 2154, “If something is
received and there is no right to demand it, and it was duly delivered through mistake, the To promote free enterprise and to avoid monopoly in business through unjust means.
obligation to return it arises.” In case of solution indebiti, the remedy is Restitution, that is, to
return the thing acquired by mistake or without legal ground to possess. Characteristics
1. it must involve an injury to a competitor or trade rival; and
2. it must involve acts which are characterized as “contrary to good conscience” or unlawful.
ARTICLE 23. Even when an act or event causing damage to another’s property was not due
to the fault or negligence of the defendant, the latter shall be liable for indemnity if through the Test of Unfair Competition
act or event, he was benefited.
Whether certain goods have been intentionally clothed with an appearance which is likely to
NOTE: This pertains to the duty of a person to indemnify even without fault provided he deceive the ordinary purchaser exercising ordinary care.
benefited. The basis of which is equity.
Principle of Cutthroat Competition, Not Allowed

Extent of Liability It exists when a person starts an opposing place of business, not for the sake of profit to
Indemnify the damage caused to the extent of enrichment. The indemnity does not include himself, but regardless of loss, and for the sole purpose of driving his competitor out of
unrealized profits because defendant’s enrichment is the limit of his liability. Plaintiff has the business so that later on, he can take advantage of the effects of his malevolent purpose.
burden of proving the extent of the benefit or enrichment of the defendant.

THOUGHTLESS EXTRAVAGANCE
UNFAIR COMPETITION

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

ARTICLE 25. Thoughtless extravagance in expenses for pleasure or display during a period of e. bank deposits
acute public want or emergency may be stopped by order of the courts at the instance of any
government or private charitable institution. 2. Meddling with or disturbing the private life or family relations of another.

Rationale of the Article A stranger would be liable irrespective of his good motives, if he interferes with family
relations, whereas a parent or close relative would not be liable unless there is malice
Thoughtless extravagance during emergencies may incite the passions of those who cannot proven by the plaintiff. A distant relative could escape liability if he proves good faith and
afford to spend. honest motives.

Remedy: Injunction It includes alienation of the affections of the husband or the wife.

Filed by: Charitable Institution (either government or private) Alienation of Affection, When Actionable

When the following elements concur:


RESPECT FOR PERSONALITY AND DIGNITY OF OTHERS a. Wrongful conduct of the defendant. The defendant should have done acts
calculated to alienate affections of the husband or wife. In a sense, the defendant
ARTICLE 26. Rights protected: Every person shall respect the personal dignity, personality, must be a pursuer, not merely the pursued.
privacy, peace of mind, personal security, family relations, and social intercourse. b. Loss of affection or consortium.
c. Causal connection between such conduct and loss.
Remedies In Case Of Violation: damages; prevention; other relief. The action may be
dependent upon a criminal action like in defamation. It may be independent action as it is 3. Intriguing to cause another to be alienated from his friends.
covered by quasi-delict. 4. Vexing or humiliating another on account of his religious beliefs, lowly station in life, place
of birth, physical defect, or other personal condition.
Prohibited Acts: PMI-VO 5. Other similar acts.
1. Prying into the privacy of another’s residence. Includes respect for one’s name, picture or
personality EXCEPT insofar as is needed for publication of information and pictures of Some Acts Against Personal Security
legitimate news value. 1. Assault - an intentional, unlawful offer of physical injury to another by force unlawfully
directed toward the person of another, under such circumstances as will create a well-
PRIVACY - is the right of an individual to be alone or to be free from unwarranted founded fear of imminent peril, coupled with the apparent present ability to effectuate the
publicity, or to live without unwarranted interference by the public in matters which the attempt if not prevented.
public is not necessarily concerned. 2. Battery - actual infliction of any unlawful or unauthorized violence on the person of
another, irrespective of its degree.
Limitations on Privacy
a. The right to privacy is limited whenever the circumstances show a reasonable
interest on the part of the public in the conduct or affairs of persons who have NEGLECT OR REFUSAL OF PUBLIC SERVANT
become public characters.
b. Also, the right to privacy is limited by the privilege similar to that of “fair comment” in ARTICLE 27. Non-feasance: Any person suffering material or moral loss because a public
the law of defamation. servant or employee refuse or neglects, without just cause, to perform his official duty may file
an action for damages and other relief against the latter, without prejudice to any disciplinary
administrative action that may be taken.
Torts Invading the Right to Privacy
a. Appropriation for the defendant’s benefit, of the plaintiff’s name or likeness; Reason for the Article
b. Intrusion upon the plaintiff’s solitude as by invading his home;
c. Public disclosure of private facts, consisting of a cause of action in publicity, of a To promote public office as a public trust.
highly objectionable kind, given to private information about the plaintiff, even
though it is true and no action would lie to defamation; Requisites for Action
d. Publicity which places the plaintiff in a false light in the public eye. 1. The defendant is a public official charged with the performance of official duties.
2. The public servant or employee refuses or neglects to perform his official duty;
Spheres of Privacy: 3. There is no valid reason for the refusal or neglect to perform official duty.
a. person 4. There is injury suffered by the plaintiff.
b. home/dwelling/residence
c. papers and effects Non-feasance, Misfeasance, Malfeasance, Distinguished
d. correspondence

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

Non-feasance – is the omission of some act which ought to be performed; total neglect of
duty. a. Acquittal which Bars Civil Action
1. whenever the accused has been found to be not the author of the act;
Misfeasance – is the improper performance of some act which might lawfully be done. 2. that the supposed act attributed to the accused did not exist;
3. if there is a finding that in the final judgment in the criminal action that the act or
Malfeasance – is the performance of some act which ought not to be done. omission from which the civil liability may arise did not exist. (Note: Republic v.
Patanao: Tax liability is not a mere civil liability arising from a crime that could
Excuses for non-performance be wiped out by the judicial declaration of non-existence of the criminal acts
1. impossibility of performance; charged).
2. contributory negligence of the plaintiff; 4. If due to justifying circumstances, civil liability is extinguished. Except:
3. ministerial officer acting in obedience to orders of superiors; Avoidance of greater evil, in which case, civil liability remains. (State of
4. officer with discretionary function, UNLESS, he acted in arbitrary manner or with gross Necessity)
neglect.
Note: Acquittal in a criminal case bars prosecution for the same offense, thus appeal
NOTE: Good faith or absence of malice is not a defense for non-performance. It is only a assailing the verdict of acquittal is not warranted because of double jeopardy.
mitigating factor. However, the civil aspect of the crime may be appealed or even the subject of a
separate civil action provided the acquittal is based on reasonable doubt.

DEPENDENT CIVIL ACTIONS / ACTIONS FOR DAMAGES BASED ON CRIME/DELICT b. Acquittal which Does not Bar Civil Action
1. the acquittal is based on reasonable doubt, if the civil case has been reserved;
1. ARTICLE 29. Civil action not barred by acquittal: When the accused in a criminal if there is reservation, the judgment shall make a finding on the civil liability of
prosecution is acquitted on the ground that his guilt has not been proved beyond the accused;
reasonable doubt, a civil action for damages for the same act or omission may be 2. if the decision contains a declaration that the liability of the accused is not
instituted. criminal but only civil in nature;
3. the civil liability is not derived from or based on the criminal act of which the
Reason: Difference in the proceedings. accused is acquitted.
4. If due to exempting circumstances, civil liability remains. Except: Paragraphs 4
Basis Criminal action Civil action (injury by mere accident) and 7 (lawful cause) of Article 12.
Parties State v. defendant Offended party
involved v. defendant 2. ARTICLE 20 (see discussion above)
Rules involved Criminal Civil 3. ARTICLE 30 (civil action even if there is no criminal action instituted)
procedure/penal procedure/civil
code code When a separate civil action is brought to demand civil liability arising from a criminal
Quantum of Proof beyond Preponderance offense, and no criminal proceedings are instituted during the pendency of the civil case,
evidence reasonable doubt of evidence a preponderance of evidence shall likewise be sufficient to prove the act complained of.
Purpose For punishment of For reparation
the offender of damages 4. ARTICLE 35 (civil action even if there is no independent civil action and criminal
action instituted)
Filing Of Bond: Upon motion of the defendant, the court may require the plaintiff to file a
bond, to answer for damages in case the complaint should be found to be malicious. When a person, claiming to be injured by a criminal offense, charges another with the
same, for which no independent civil action is granted in this Code or any special law, but
Duty Of The Court: If in a criminal case, the judgment of acquittal is based upon the court finds no reasonable grounds to believe that a crime has been committed, or the
reasonable doubt, the court shall so declare. In the absence of any declaration to that prosecutor refuses or fails to institute criminal proceedings, the complainant may bring a
effect, it may be inferred from the text of the decision whether or not the acquittal is due civil action for damages against the alleged offender.
to that ground.
If during the pendency of the civil action, an information should be presented by the
Kinds of Acquittal prosecutor, the civil action shall be suspended until the termination of the criminal
a. Acquittal based on reasonable doubt – when the guilt of the accused has not been proceedings.
proven beyond reasonable doubt.
b. Acquittal based on innocence – when the accused is not the author of the crime; Upon motion of the defendant, the court may require the plaintiff to file a bond, to answer
c. Acquittal when the crime complained of did not exist. for damages in case the complaint should be found to be malicious.

Effects of Acquittal Rule 111, Section 1, 2000 Rules of Criminal Procedure:

11 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

criminal action has been


When the criminal action is instituted, the civil action for the recovery of civil liability rendered.
arising from the offense charged shall be deemed instituted UNLESS the offended party
waives the civil action, reserves the right to institute it separately or institutes the civil 1. ARTICLE 31. When the civil action is based on an obligation not arising from the act or
action prior to the criminal action. omission complained of as a felony, such civil action may proceed independently of the
criminal proceedings and regardless of the result of the latter.
Suspension of Separate Civil Action: Rule 111, Section 2, 2000 Rules of Criminal
Procedure Civil Action Based on Other Sources of Obligation Other than Delict – law, contract,
quasi-contract, quasi-delict
After the criminal action has been commenced, the separate civil action arising therefrom
cannot be instituted until final judgment has been entered in the criminal action. 2. ARTICLE 32. Breach Of Constitutional Rights / Civil Liability for Violation of
Constitutional Rights
If the criminal action is filed after the said civil action has already been instituted, the
latter shall be suspended in whatever state it may be found before judgment on the Persons Liable
merits. The suspension shall last until final judgment is rendered in the criminal action… 1. any public officer or employee
2. any private individual even if in good faith
During the pendency of the criminal action, the running period of prescription of the civil
action which cannot be instituted separately or whose proceeding has been suspended Limited liability / When Responsibility Demandable from a Judge
shall be tolled.
General Rule: The responsibility herein set forth is not demandable from a judge.
The extinction of the penal action does not carry with it extinction of the civil action.
However, the civil action based on delict shall be deemed extinguished if there is a Exception: Unless his act or omission constitutes a violation of the Penal Code or other
finding in a final judgment in the criminal action that the act or omission from which the penal laws (see Art. 204 – 207 of the Revised Penal Code).
civil liability may arise did not exist.
NOTES:
 It is not necessary that the defendant should have acted with malice/bad faith to be
INDEPENDENT CIVIL ACTIONS liable. Although the same normally involves intentional acts, it can be committed
through negligence.
Concept and Rationale  Public officer who is a defendant cannot escape liability under the doctrine of state
immunity; the said doctrine applies only if acts involved are done by officers in the
It is one that is brought distinctly and separately from a criminal case allowed for performance of their official duty within the ambit of their powers.
considerations of public policy regardless of the result of the criminal case.  It only requires a preponderance of evidence and the aggrieved party may ask for
It is for the purpose of allowing the citizen to enforce his rights in a private action. moral and exemplary damages but in the latter case, it depends upon the discretion
of the court.
Evidence Required: Preponderance of Evidence.
3. Art. 33. Civil Liability for Defamation, Fraud, Physical Injuries (In generic sense). In
Independent and dependent Civil Actions, Distinguished cases of defamation, fraud, and physical injuries, a civil action for damages, entirely
separate and distinct from the criminal action, may be brought by the injured party.
INDEPENDENT DEPENDENT
Not based on delict. Based on delict. Defamation – is an invasion of the interest in reputation and good name, by
No reservation is required. Reservation is upon the communication to others which tend to diminish the esteem in which the plaintiff is held,
discretion of the offended or to excite adverse feelings or opinion against him. It is any act, writing or utterance
party. which tend to prejudice or humiliate another. It includes libel and slander.
Can proceed simultaneously Can proceed simultaneously
and separately from the with the criminal action ONLY Physical Injuries – covers all kinds of physical injuries including attempted, frustrated or
criminal action regardless of when no waiver, reservation, or consummated homicide. If resulted because of negligence or imprudence, they are
the outcome of the latter. prior filing of the civil action is already covered by Article 2176 of the Civil Code.
done.
It may be filed before the It may be filed prior to the Fraud - intentional deception to induce another to part with something of value or to
institution of the criminal action institution of the criminal action surrender a legal right, like, estafa or swindling.
and it cannot be suspended but it will be suspended once
when the latter is instituted. the criminal action is instituted 4. Art. 34. Civil Liability of Member of Municipal or City Police
until final judgment in the

12 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

Primary liability: When a member of a city or municipal police force refuses or fails to c. that the injury suffered must not have been due to any voluntary action or
render aid or protection to any person in case of danger to life or property, such police contribution on the part of the person injured.
officer shall be primarily liable for damages.

Requisites PREJUDICIAL QUESTIONS (Art 36, NCC)


1. there is danger to life or property of a person;
2. a member of a city or municipal police force who is present in the scene refused or Prejudicial question - one which must be decided before any criminal prosecution may be
failed to render aid or protection to the person; instituted or may proceed, because a decision therein is vital to the judgment in the criminal
3. damages are caused to the person or property. case. It is a question which arises in a case, the resolution of which is a logical antecedent of
the issue involved in said case, and the cognizance of which pertains to another tribunal.
Subsidiary liability: The city or municipal government shall be subsidiarily responsible in
case of insolvency of said police officer. Petition for Suspension by reason of prejudicial question, Where Filed

Note: The defense of exercise of due diligence in the selection and supervision of its A petition for suspension of the criminal action based upon the pendency of a prejudicial
employees, as provided under Art. 2180, cannot be used as this is available only to question in a civil action may be filed in the office of the prosecutor or the court
private employers. conducting the preliminary investigation. When the criminal action has been filed in court
5. Art. 2176. QUASI-DELICT. “Whoever by act or omission causes damage to another, for trial, the petition to suspend shall be filed in the same criminal action at any time before the
there being fault or negligence, is obliged to pay for the damage done. Such fault or prosecution rests. (Rule 111, Sec. 6 of 2000 Rules of Criminal Procedure)
negligence, if there is no pre-existing contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of this Chapter.” Elements:
1. The previously instituted civil action involves an issue similar or intimately related to the
Note: It is not limited to culpa-aquiliana cases but covers also intentional acts. issue raised in the subsequent criminal action.
2. The resolution of such issue determines whether or not the criminal action may proceed.
Defenses that can be interposed in quasi-delict: 3. The jurisdiction to try said question must be lodged in another tribunal. (See Rule 111,
a. Doctrine of Last Clear Chance - where both parties are negligent but the negligent Sec. 7 of 2000 Rules of Criminal Procedure)
of one succeeds that of the other by an appreciable interval of time, the one who
has the last reasonable opportunity to avoid the impending harm and fails to do so, Effect: It will suspend the proceeding in the criminal action.
is chargeable with the consequences, without reference to the prior negligence of
the other NOTE: Prejudicial questions shall be governed by the Rules of Court which the Supreme
b. Contributory Negligence - the defendant may claim that plaintiff’s own negligence Court shall promulgate and which shall not be in conflict with the Civil Code.
contributed to the injury. This defense will merely mitigate the award of damages.
c. Proximate Cause of the Loss or Injury is the Negligence of Plaintiff. Illustrations:
d. Defense of Due Diligence in the Selection and Supervision of Employees: Only a. FACTS: H and W1 are separated in fact. H contracted a subsequent marriage with W2.
applicable in culpa aquiliana. W1 filed a case for bigamy against H. H filed a civil action for the declaration of nullity of
e. Assumption of Risk: It will absolve the defendant from liability. the 2nd marriage on the ground of lack of license. HELD: NO prejudicial question because
Requisites: the 2nd marriage is ostensibly valid. Besides, the 1st marriage still exists.
a. there must be knowledge as to the existence of the danger b. FACTS: Same with the first but this time, the civil action filed by the husband is for the
b. there must be an understanding and appreciation of the risk of such danger by declaration of nullity of the 1st marriage for lack of license. HELD: NO prejudicial question
the plaintiff. because of violation of Art 40 of FC.
c. the plaintiff voluntarily expose himself to such danger. c. FACTS: H and W are legally married. H has an illegal affair with GF. W filed a criminal
f. Prescription: If the action is filed beyond four years from loss or injury. case for concubinage. H filed a civil action for the declaration of nullity of the marriage on
the ground of lack of license. HELD: NO prejudicial question because the marriage is
Res Ipsa Loquitor - The thing speaks for itself. presumed to be valid and existing.
d. FACTS: H and W are legally married. H contracted a subsequent marriage with GF. W
A Rule of Evidence. The fact of the injury is prima facie evidence of negligence. It can not filed a criminal case foe bigamy. H filed an action for annulment of the 2nd marriage on
be used with contributory negligence. the ground that his consent was vitiated. HELD: There is prejudicial question because the
civil case is determinative of whether the criminal action will prosper.
Requisites:
a. the accident is one of a kind which does not ordinarily occur unless someone is
negligent,
b. that the instrumentality or agency which caused the injury was under the exclusive
control of the person charged with negligence,

13 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

IV. PERSONS AND PERSONALITY 2. Voluntary Insolvency – at the time of filing by the instant debtor.

CIVIL PERSONALITY - the aptitude of being the subject, active or passive, of rights and j. trusteeship
obligations.
PERSON - Any being, natural or artificial, capable of possessing legal rights and obligations.
Juridical Capacity and Capacity to Act (Art. 37, NCC)
Classes of Persons
JURIDICAL CAPACITY - the fitness to be the subject of legal relations; it is inherent in every
natural person and is lost only through death. 1. NATURAL PERSONS - human beings created by God through the intervention of
parents.
CAPACITY TO ACT - the power to do acts with legal effect; it can be acquired and may be
lost. Personality:

Juridical capacity Capacity to act a. Presumptive Personality (Art. 40, NCC)


Passive Active
Inherent Acquired (upon reaching the age of Personality begins at conception; the conceived child shall be considered born for
majority) all purposes that are favorable to it, provided it be born later with the conditions
Lost only through death Lost through death and other means specified in Art. 41.

Can exist even without capacity to act Always exist with juridical capacity  The personality in this case is essentially limited and it is provisional or
conditional.
Unlimited/cannot be restricted Limited/can be restricted by circumstances
b. Actual personality - Personality begins at birth.

THEORIES OF CAPACITY TO ACT Birth - the removal of the foetus from the mother’s womb who must be alive at the
Theory of General Capacities Theory of Special Capacities time of complete separation; before birth, the foetus is not a person, but merely a
Applies to natural persons Applies to juridical persons part of the internal organs of the mother. However, because of the expectancy that it
One has the ability to act with Powers of juridical persons may be born, the law protects it and reserves its rights, making its legal existence, if
legal effects except when limited to those expressly it should be born alive, retroact to the moment of its conception.
capacity to act is restrained conferred and those which can
be implied therefrom or Legal Conditions (Art 41, NCC):
incidental thereto.
1. Ordinary Birth - with an intra-uterine life of at least seven months. For civil
Restrictions or Modifications on Capacity to Act (Arts. 38 – 39, NCC) MIS-PC-FAAIT purposes, the fetus is considered born if it is alive at the time it is completely
a. Minority (below 18) delivered from the mother’s womb.
b. insanity or imbecility 2. Extra-ordinary Birth: with an intra-uterine life of less than seven months. For
civil purposes, it is not deemed born if it dies within 24 hours after its complete
Note: There is a need for judicial declaration of insanity because sanity is presumed. If delivery from the maternal womb.
there is declaration of insanity, the capacity to act is possessed by the guardian.
Elements:
c. state of being deaf-mute a. Child must be alive at the time of complete separation; and
d. prodigality (state of squandering money or property to the prejudice of another) b. Must be alive within 24 hours thereafter.
e. civil interdiction
f. family relations Note: Only one with juridical personality can die. Thus, the aborted child never died
g. alienage because it never acquired a juridical personality. Hence, the action for damages
h. absence under Art 2206 of NCC by the husband will not prosper. At most, he can recover
i. insolvency damages arising from frustration of parental expectation. (Geluz v. CA, 2 S 801)

Note: There is also a need for judicial declaration. Extinguishment of Civil Personality

When Insolvency Reckoned Death - refers to natural or physical death. It extinguishes civil personality. (Art. 42,
1. Involuntary Insolvency – from the time of adjudication and not from the time of filing NCC)
by the creditors.

14 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

The effect of death upon civil personality is determined by law, contract or will. probabilities resulting from the strength and age of the sexes, according to the
following rules:
Note: The rule that death extinguishes civil personality is not absolute. The estate of a 1. If both were under the age of fifteen years, the older is presumed to have
deceased is a person that may continue the personality of the deceased for the purpose survived;
of settling debts. Thus, the estate is an extension of civil personality of a decedent which 2. If both were above the age of sixty, the younger is presumed to have survived;
comes into being at the moment of his death. There is no need of judicial declaration to 3. If one is under fifteen and the other above sixty, the former is presumed to have
that effect. Once the liabilities of the estate have been settled and distribution of the survived;
residue to the heirs has been effected, the estate ceases to exist ipso facto. 4. If both be over fifteen and under sixty, and the sexes be different, the male is
presumed to have survived; if the sexes be the same, then the older;
Corpse is not a person because juridical personality is extinguished by death. 5. If one be under fifteen or over sixty, and the other between those ages, the latter
is presumed to have survived.
Effects of Death On Rights
(kk) If there is a doubt, as between two or more persons who are called to succeed each
Upon the death of a person, the subject of legal relations disappears. Some of his rights other, as to which of them died first, whoever alleges the death of one prior to the
and obligations are completely extinguished, while others are transmitted to his other, shall prove the same; in the absence of proof, it is presumed that they died at
successors. the same time.

Illustrations: Elements On Survivorship under the Rules of Court


 FACTS: X, charged with the crime of Rape. Pending trial, he died. HELD: His a. There is no proof which of 2 persons died first;
criminal liability and his civil liability arising from crime are extinguished. (Pp. v. b. They must have died during a calamity; and
Bayotas, 236 S 239) c. They are not called to succeed each other.
 FACTS: In the same problem, supposed there has been judgment convicting X of
the crime of rape. Pending appeal, he died. HELD: His criminal liability and civil
liability arising from crime are extinguished.
 FACTS: In the same set of facts, supposed the judgment of conviction becomes 2. JURIDICAL PERSONS: Theory of Special Capacities
final and executor for failure of X to appeal. During service of sentence, X died.
HELD: The criminal liability is extinguished but the civil liability is not extinguished, CORPORATION - It is an artificial being created by operation of law, having the right of
thus, may be recovered against the estate of the deceased on the basis of the final succession and the powers, attributes, and properties expressly authorized by law or
judgment. incident to its existence.

Rule on Survivorship under Art. 43, NCC Classification (Art 44, NCC):
1. The State and its political subdivisions - governed by the laws creating or
Burden of proof: If there is a doubt, as between 2 or more persons who are called recognizing them. (Art. 45, NCC)
to succeed each other, as to which of them died first, whoever alleges the death of 2. Juridical persons for public interest or purpose, created by law - their personality
one prior to the other, shall prove the same. begins as soon as they have been constituted according to law; governed by the
laws creating or recognizing them. (Art. 45, NCC)
Presumption: In the absence of proof, it is presumed that they died at the same
time. In case of dissolution, their property and other assets shall be disposed of in
pursuance of law or the charter creating them. If nothing has been specified on this
Effect of presumption: There shall be no transmission of rights from one to the point, the property and other assets shall be applied to similar purposes for the
other. benefit of the LGUs which during the existence of the institution derived the principal
benefits from the same. (Art. 47, NCC)
Elements of Art 43:
a. There is no proof which of 2 persons died first; and 3. Juridical persons for private interest or purpose - their personality begins from the
b. They are called to succeed each other. moment a certificate of incorporation is granted and issued by the SEC; Regulated
by laws of general application on the subject. (Art. 45, NCC)
Rule 131(jj)and (kk) of the Revised Rules of Court on presumptions on
survivorship. Partnerships and associations for private interest or purpose are governed by the
provisions of this Code concerning partnerships. (Art. 45, NCC)
(jj) When two persons perish in the same calamity, such as wreck, battle, or
conflagration, and it is not shown who died first, and there are no particular In case of dissolution, see the Corporation Code.
circumstances from which it can be inferred, the survivorship is presumed from the
4. The Roman Catholic Church.

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Saint Louis University - College of Law
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By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

5. The estate of a deceased person.

Governing Law (Art. 45, NCC)

Nationality test - The nationality of a corporation is generally determined by the place of


its incorporation.

Control test - The nationality of a corporation is determined by the nationality of the


controlling stockholders.

For the grant of the rights in the Constitution to the operation of public utilities, and for the
acquisition of land and other natural resources, a corporation, even if incorporated in the
Philippines, cannot acquire said rights unless 60% of its capital be Philippine-owned.

During war, for the purpose of determining an enemy corporation, by piercing the veil of
corporate entity, and going to the very nationality of the controlling stockholders,
regardless of where the incorporation had been made.

Rights and obligation of a juridical person (Art. 46, NCC):

Juridical persons may:


a. acquire and possess property of all kinds, (subject to limitations under Art. 12,
Sections 2-3 of the 1987 Constitution)
b. incur obligations
c. bring civil or criminal actions.

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

V. DOMICILE

DOMICILE - place of a person’s habitual residence. Illustration:


FACTS: X, a former Filipino, went to US and became a naturalized US citizen. Because he
Domicile Residence violated a law in US, X was denaturalized. He came back to the Phils and started to establish
more or less permanent more or less temporary his residence here. He ran for mayor and won. His wife filed a civil case involving personal
a person can have generally a person can have several rights and obligations. X contended that national shall not be applied because he is a stateless
only one domicile places of residence person. HELD: Domiciliary theory is called upon to operate because X is a stateless person.
denotes a fixed permanent denotes a place of abode Nationality principle cannot be applied. Thus, X is still liable under Philippine Law.
residence to which when (physical relation to a place)
absent, one has the intention Domicile of natural persons
of returning (legal relation to a
place) For the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural
domicile is residence coupled residence is not domicile persons is the place of their habitual residence. (Art. 50, NCC)
with the intention to remain for
an unlimited time Domicile of juridical persons

Note: Residence as used in the Constitution must be understood to mean domicile. The domicile of juridical persons is
i. the place provided for in the law creating or recognizing them or in their articles of
Kinds of Domicile agreement;
ii. when the law creating or recognizing them, or any other provision does not fix the
 Domicile Of Origin - it is assigned to him by the law at the moment of birth. domicile of juridical persons, the same shall be understood to be the place where their
legal representation is established or where they exercise their principal functions. (Art.
In case of a foundling, his domicile is the country where he was found. 51, NCC)

Can a person be devoid of domicile? NO, because a person always have domicile of Domicile vs Citizenship/Nationality
origin which is granted at the moment of birth. No natural person must ever be without a
domicile. Domicile is a place of abode. While citizenship/nationality indicates ties, allegiance and loyalty
to the government.
 Constructive Domicile/Domicile By Operation Of Law - it is assigned to him by the
law after birth on account of a legal disability caused for instance by minority, insanity or Q: Can a Person be Devoid of Nationality or citizenship?
marriage in case of a woman.
A: Yes, because citizenship is merely a privilege which can be taken anytime on valid
 Domicile Of Choice - the place freely chosen by a person so that whenever he is grounds. Besides, there are those stateless persons whose nationality or citizenship was
absent, he intends to return. taken from them.

Elements:
1. Physical presence in a fixed place.
2. Intention to remain permanently (animus manendi).
3. Intention to abandon the old domicile (animus non revertendi).

Intention without physical presence or physical presence without intention will not suffice
for the acquisition of domicile, but will be sufficient for the retention of an existing
domicile.

Who Can Establish a Domicile

One who has the legal capacity. Thus, a person with civil interdiction or suffering from
penalty of law cannot establish domicile because his act is limited.

Domiciliary Theory – the status, condition, rights, obligations and capacity of a person should
be governed by the law of his domicile.

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

VI. MARRIAGE 1. Legal Capacity of the contracting parties who must be a male and a female.

The Family Code of the Philippines Includes:


a. Age – at least 18 years of age at the time of celebration of marriage. Be it
Effectivity Date: 3 August 1988 remembered that formerly, the marriageable age was 14 years for females and 16
years for males.
Retroactive Application
Note: With the SC’s decision in CIR vs Primetown amending Art 13 of NCC, did you
The code shall have retroactive effect insofar as it does not prejudice or impair vested or really become 18 years old at your 18th birthday?
acquired rights in accordance with the Civil Code or other laws. (Article 256)
b. Sex – must be a male and a female.
MARRIAGE - is a special contract of permanent union between a man and a woman entered
into in accordance with law for the establishment of conjugal and family life. It is the foundation Illustration:
of the family and an inviolable social institution whose nature, consequences, and incidents FACTS: X, a Filipino male. In his certificate of live birth, it was indicated that he is
are governed by law and not subject to stipulation, except that marriage settlements may fix male. Later, he publicly represented himself as a woman. Eventually, he underwent
the property relations during the marriage within the limits provided by this Code. (Art 1, FC) sex reassignment. He now anatomically possessed of genetalia of a woman. He
then filed a petition for the correction of entry so that male will be change to female
Marriage vs. Ordinary Contract so that he could marry another male. Will the petition for correction of entry be
1. Marriage is a special contract; and ordinary contract is just a mere contract. granted? HELD: NO, because there is no mistake of entry to speak of. The law does
2. Marriage is governed by law on marriage; an ordinary contract is governed by law on not recognize correction of entries on the ground of sex reassignment, otherwise,
contacts. such may disturb public interest and policy. Besides, there is no law regulating sex
3. Marriage is an inviolable institution; an ordinary contract is not. reassignment. (Silverio vs. Republic, October 22, 2007)
4. Marriage is not subject to stipulation except only with regard to marriage settlement which
the parties may agree upon before the marriage; an ordinary contract is subject to Note: Civil Registry – historical record of all acts, events, judicial decrees that affects
stipulation. rights, duties, status, condition, and legal capacity of persons. Birth Certificate is a
5. In marriage, the contracting parties must only be 2, one is a male and the other is a historical record of facts at birth. What may be changed are clerical or typographical
female; in ordinary contract, there can be 2 or more parties and the difference of gender errors, ridiculous name, etc.
is not material.
6. Marriage is terminated by death or annulment due to legal cause, i.e., it cannot be c. Absence of legal impediment
terminated without the consent of the state; an ordinary contract is terminated upon
expiration of the term of the contract, upon fulfillment of the condition for which it was Examples of Legal Impediment
entered into, rescission, mutual agreement of the parties or through other causes. c.1. Prior subsisting marriage
c.2. Relationship - Incestuous marriages (Art. 37) and Quasi-incestuous marriages
Presumption in Favor of Existence and Validity of Marriage (Art. 38)
c.3. Public Policy (e.g. last par of Art 38)
A man and a woman deporting themselves as husband and wife have entered into a lawful
contract of marriage. This legal presumption may be rebutted by evidence showing that
marriage did not actually take place. Legal Capacity to Contract Marriage by Foreigners, Stateless Persons, Refugees

Elements of Presumption of Marriage When either or both of the contracting parties are CITIZENS OF A FOREIGN COUNTRY,
1. Cohabitation of man and woman it shall be necessary for them before a marriage license can be obtained, to submit a
2. Accompanied with intent to dispose marital obligations CERTIFICATE OF LEGAL CAPACITY TO CONTRACT MARRIAGE, issued by their
3. Public deportment or representation as husband and wife. respective diplomatic or consular officials. (A21, FC)

Proof to Disprove the Presumption STATELESS PERSONS OR REFUGEES FROM OTHER COUNTRIES shall, in lieu of
the certificate of legal capacity herein required, submit an AFFIDAVIT SHOWING SUCH
The fact that there was no record of the marriage is not sufficient to prove that there is no CAPACITY TO CONTRACT MARRIAGE. (A21, FC)
marriage. To overcome the presumption, one or both are in fact married to another.
The legal capacity of a foreigner to marry, as determined by the law of the country of
REQUISITES OF A VALID MARRIAGE which he is a citizen, is recognized by our laws. This is in accordance with the nationality
theory under Article 15 of the Civil Code.
Essential Requisites (Art 2, FC):

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

Under Article 35(1): a marriage contracted by any party below 18 years of age EVEN with 2. the marriage must be between passengers or crew members;
the consent of parents or guardians shall be void ab initio. 3. generally, the ship must be at sea or the plane must be in flight.

2. Consent freely given in the presence of the solemnizing officer. Notes: Assistant pilot has no authority.

Freely given before a solemnizing officer and in the presence of at least two witnesses of Marriages may be solemnized during stopovers at ports of call.
legal age. The consent is real and not vitiated or rendered defective by any of the vices of
consent. It must be free, voluntary, intelligent and personally given. d. Any military commander of a unit (only in cases mentioned in Art 32)

Consent need not be expressed in any special manner or particular form so long as there Requisites:
is a manifestation that the contracting parties take each other as husband and wife. 1. he/she must be a military commander of a unit;
2. he/she must be a commissioned officer (his/her rand should start from a second
Total absence of consent makes the marriage void ab initio. lieutenant);
3. he/she must be assigned to such unit;
Hence, the marriage may be annulled if the consent of either party was obtained by 4. the said chaplain must be absent at the time of marriage;
fraud, (Art. 45, par. 3), or if the consent of either party was obtained by force, intimidation 5. the marriage must be one in articulo mortis;
or undue influence (Art. 45, par. 4). 6. the contracting parties, whether members of the armed forces or civilians must
be within the zone of military operation.

Formal Requisites (Art 3, FC): Notes: The authority of the chaplain to solemnize is based on Art 7.

1. Authority of the solemnizing officer. Of course, other people like a judge or a consul, can perform a marriage in articulo
mortis.
It is not the absence or presence of the solemnizing officer which constitute a formal
requirement but it is the absence or presence of authority. e. Any consul-general, consul, or vice-consul.

Marriage may be solemnized by (Art 7, FC): Marriages between Filipino citizens abroad may be solemnized by a consul-general,
consul or vice-consul of the Philippines. (A10, FC)
a. Any incumbent member of the judiciary within the court’s jurisdiction.
The duties of the solemnizing officer with regard to the celebration of marriage shall
Conditions: be performed by the consular official. (A10, FC)
i. during incumbency
Notes: Only if the contracting parties are both Filipino citizens. If one is foreigner,
If on leave – still have the authority marriage is void.

On Sundays, Saturdays, holidays – still have the authority. They don’t have authority to solemnize marriage within the territory of the Phils.

ii. within territorial jurisdiction f. Incumbent Mayor of a city/municipality (See secs. 444 and 445 of the Local
Government Code).
b. Any priest, rabbi, imam or minister of any church or religious sect
Conditions:
Requisites for authority of a priest to solemnize marriage: i. During incumbency
a. He must have written authority to solemnize marriages given by his church or ii. Within territorial jurisdiction
religious sect.
b. He must be registered in the office of the Civil Registrar General (not the local Note: It has been held that the Vice Mayor has the authority to solemnize marriages
civil registrar). because if the vice mayor assumes the powers and duties of the office of the mayor,
c. He must act within the limits of such authority. when proper, it is immaterial whether he is the Acting Mayor or merely acting as
d. Both or one of the parties to the marriage must belong to his church or sect. mayor, for in both cases, he discharges all the duties and wields the powers
appurtenant to said office. (Pp. vs Bustamante, 105 P 64)
c. Any ship captain or airplane chief (only in cases mentioned in Art 31)
Effect if Solemnizing Officer NO Authority; Exception (Effect of Good Faith)
Requisites:
1. the marriage must ne in articulo mortis (at least 1 is at the point of death)

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

The marriage shall be VOID if it shall be solemnized by any person not legally authorized
to perform marriages, UNLESS such marriages were contracted with either or both When Original Birth Certificate or Baptismal Certificate Need Not be Presented
parties believing in good faith that the solemnizing officer had the legal authority to do so.
(A35[2], FC) The presentation of birth or baptismal certificate shall not be required if the parents
of the contracting parties appear personally before the local civil registrar concerned
and swear to the correctness of the lawful age of said parties, as stated in the
2. A valid marriage license EXCEPT in the cases provided for in Articles 27, 28, 31 – application, or when the local civil registrar shall, by merely looking at the applicants
34. upon their personally appearing before him, be convinced that either or both of them
have the required age. (A12 par 3, FC)
Purpose of the Marriage License
3. If either of the contracting parties is unable to produce his birth or baptismal
It is the best proof of the presence of legal capacity of the contracting parties. certificate or a certified copy of either because of the destruction or loss of the
original or if it is shown by an affidavit of such party or of any other person that such
Where to apply? birth or baptismal certificate has not yet been received though the same has been
required of the person having custody thereof at least fifteen days prior to the date
A marriage license shall be issued by the Local Civil Registrar of the city or municipality of the application, such party may furnish in lieu thereof his CURRENT RESIDENCE
where either contracting party habitually resides except in marriages where no license is CERTIFICATE or an instrument drawn up and sworn to before the local civil
required in accordance with Chapter 2 of this Title. (A9, FC) registrar concerned or any public official authorized to administer oaths. Such
instrument shall contain the sworn declaration of two witnesses of lawful age, setting
If a marriage between Filipino citizens will be celebrated abroad to be solemnized by a forth the full name, residence and citizenship of such contracting party and of his or
consul-general, consul or vice-consul of the Republic of the Philippines, the issuance of her parents, if known, and the place and date of birth of such party. The nearest of
the marriage license shall be performed by said consular official. (A10, FC) kin of the contracting parties shall be preferred as witnesses, or, in their default,
persons of good reputation in the province or the locality. (A12 par 2, FC)
Requirements for Application
4. In case either of the contracting parties has been previously married, the applicant
1. Separate sworn application which shall specify the ff.: (Art. 11, FC) shall be required to furnish, instead of the birth or baptismal certificate required in
the last preceding article, the DEATH CERTIFICATE of the deceased spouse or the
a. Full name of the contracting party; (authentic) JUDICIAL DECREE OF THE ABSOLUTE DIVORCE, or the (authentic)
b. Place of birth; JUDICIAL DECREE OF ANNULMENT or DECLARATION OF NULLITY of his or her
c. Age and date of birth; previous marriage. (A13 par 1, FC)
d. Civil status;
e. If previously married, how, when and where the previous marriage was In case the death certificate cannot be secured, the party shall make an affidavit
dissolved or annulled; setting forth this circumstance and his or her actual civil status and the name and
f. Present residence and citizenship; date of death of the deceased spouse. (A13 par 2, FC)
g. Degree of relationship of the contracting parties;
h. Full name, residence, and citizenship of the father; Note: In case there is a valid divorce decree, there must first be a Petition For
i. Full name, residence, and citizenship of the mother; and Recognition Of Divorce Decree because our courts do not take judicial notice of
j. Full name, residence and citizenship of the guardian or person having charge, foreign judgments for they must be alleged and proved.
in case the contracting party has neither father nor mother and is under the age
of twenty-one years. 5. Parental Consent

NOTE: The applicants, their parents or guardians shall not be required to exhibit When Necessary (A14, FC)
their residence certificates in any formality in connection with the securing of the
marriage license. In case either or both of the contracting parties, not having been emancipated by a
previous marriage, are between the ages of 18 and 21, shall exhibit to the local civil
2. Original birth certificates or, in default thereof, the baptismal certificates of the registrar, the consent to their marriage of their father, mother, surviving parent or
contracting parties or copies of such documents duly attested by the persons having guardian, or persons having legal charge of them, in the order mentioned.
custody of the originals. (A12 par 1, FC)
Such consent shall be manifested in writing by the interested party, who personally
These certificates or certified copies of the documents by this Article need not be appears before the proper local civil registrar, or in the form of an affidavit made in
sworn to and shall be exempt from the documentary stamp tax. The signature and the presence of two witnesses and attested before any official authorized by law to
official title of the person issuing the certificate shall be sufficient proof of its administer oaths. The personal manifestation (by parents) shall be recorded in both
authenticity. (A12 par 1, FC)

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
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Dick Francisco Fernandez & Claryl-Anne D. Laminato

applications for marriage license, and the affidavit, if one is executed instead, shall The notice shall be POSTED for 10 consecutive days on a bulletin board outside the
be attached to said applications. office of the local civil registrar located in a conspicous place within the building and
accessible to the general public.
Note: Absence of consent will render the marriage voidable.
This notice shall request all persons having knowledge of any impediment to the
It is submitted that parental consent is required if any or both parties are between marriage to advise the local civil registrar thereof.
the ages of 18, 19, and 20.
The marriage license shall be issued after the completion of the period of publication.
6. Parental Advice
Duties of Local Civil Registrar
When Necessary (A15, FC) 1. Receive the application for marriage license.
2. Require the presentation of original birth/baptismal certificates except when
Any contracting party between the age of 21 and 25 shall be obliged to ask their presentation of this certificates shall not be required.
parents or guardian for advice upon the intended marriage. A sworn statement by 3. Require to furnish, instead of this certificate, the death certificate of the deceased
the contracting parties to the effect that such advice has been sought, together with spouse or the judicial decree of annulment or declaration of nullity of his or her
the written advice given, if any, shall be attached to the application for marriage previous marriage. In case of default, an affidavit for such matter shall suffice.
license. (it can be manifested in writing or actual presence of the parents and such 4. In case of default to present such birth certificates, such party may furnish in lieu
shall be noted by the LCR) thereof his current residence certificate or an affidavit for such matter. Such
instrument shall contain the sworn declaration of 2 witnesses of lawful age.
Should the parents or guardian refuse to give any advice, this fact shall be stated in 5. The local civil registrar shall prepare a notice and post the same for 10 consecutive
the sworn statement. days.
6. In case of any impediment known to the local civil registrar or brought to his
If they do not obtain such advice, or if it be unfavorable, the marriage license shall attention, he shall note down the particulars thereof and his findings thereon in the
not be issued till after 3 months following the completion of the publication of the application for a marriage license, but shall nonetheless issue said license after the
application therefor. completion of the period of publication, UNLESS ordered otherwise by a competent
court at his own instance or that of any interested party (the oppositor may file an
7. Marriage counseling (A16, FC) injunctive action because LCR has only ministerial function). No filing fee shall be
charged for the petition nor a corresponding bond required for the issuance of the
In the cases where parental consent or parental advice is needed, the party or order. (A18, FC)
parties concerned shall, in addition to the requirements of the preceding articles, 7. The local civil registrar shall require the payment of the fees prescribed by law or
attach a certificate issued by a priest, imam or minister authorized to solemnize regulation before the issuance of the marriage license. No other sum shall be
marriage under Article 7 of this Code or a marriage counsellor duly accredited by collected in the nature of a fee or tax of any kind for the issuance of said license. It
the proper government agency to the effect that the contracting parties have shall, however, be issued free of charge to indigent parties, that is, those who have
undergone MARRIAGE COUNSELLING. no visible means of income or whose income is insufficient for their subsistence, a
fact established by their affidavit or by their oath before the local civil registrar. (A19,
Failure to attach said certificates of marriage counselling shall suspend the issuance FC)
of the marriage license for a period of 3 months from the completion of the 8. Prepare the documents required and to administer oaths to all interested parties
publication of the application. without any charge in both cases. The documents and affidavits filed in connection
with the applications for marriage licenses shall be exempt from documentary stamp
Issuance of the marriage license within the prohibited period shall subject the tax.
issuing officer to administrative sanctions but shall not affect the validity of the 9. The local civil registrar concerned shall enter all applications for marriage licenses
marriage. filed with him in a registry book strictly in the order in which the same are received.
10. Issue the License after publication unless ordered otherwise by a competent court.
Should only one of the contracting parties need parental consent or parental 11. Proper receipts shall be issued by the LCR to the solemnizing officer transmitting
advice, the other party must be present at the counselling referred to in the copies of the marriage certificate.
preceding paragraph.
Note: If Marriages between Filipino citizens abroad be solemnized by a consul-general,
Publication/Posting Requirement (A17, FC) consul or vice-consul of the Philippines, The duties of the local civil registrar with regard
to the celebration of marriage shall be performed by the consular official. (A10, FC)
The local civil registrar shall prepare a notice which shall contain the full names and
residences of the applicants for a marriage license and other data given in the Suspension of the Issuance of the Marriage License
applications.

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

If parental advice is required and the parties do not obtain such advice, or if it be Marriage by proxy:
unfavorable, the marriage license shall not be issued till after 3 months following the a. If performed here in the Philippines, the marriage is void because physical presence
completion of the publication of the application therefor. of both parties is required.
b. If performed abroad, whether between Filipinos or foreigners or mixed, and valid
Failure to attach certificates of marriage counseling, if required, shall suspend the there as such, the marriage should be considered valid in the Philippines as
issuance of the marriage license for a period of 3 months from the completion of the mentioned under Art. 26.
publication of the application.
MARRIAGE CERTIFICATE – proof of marriage in which the parties declare that they take
Enforceability/Validity of the License (A20, FC) each other as husband and wife.

The license shall be valid in any part of the Philippines for a period of 120 days from the Contents of Marriage Certificate
DATE OF ISSUE, and shall be deemed automatically cancelled at the expiration of said
period if the contracting parties have not made use of it. The marriage certificate, in which the parties shall declare that they take each other as
husband and wife, shall also state:
The expiry date shall be stamped in bold characters on the face of every license issued.
(1) The full name, sex and age of each contracting party;
The date of issue is the date of signing of the marriage license by the Local Civil
Registrar (2) Their citizenship, religion and habitual residence;

An expired license is a void license. A void license cannot validate a marriage. (3) The date and precise time of the celebration of the marriage;

3. A marriage ceremony which takes place with the appearance of the contracting parties (4) That the proper marriage license has been issued according to law, except in marriage
before the solemnizing officer and their personal declaration that they take each other as provided for in Chapter 2 of this Title;
husband and wife in the presence of not less than 2 witnesses of legal age. (A3, FC)
(5) That either or both of the contracting parties have secured the parental consent in
Form – No prescribed form or religious rite for the solemnization of the marriage is appropriate cases;
required. It shall be necessary, however, for the contracting parties to appear personally
before the solemnizing officer and DECLARE in the presence of not less than 2 (6) That either or both of the contracting parties have complied with the legal requirement
witnesses of legal age that they take each other as husband and wife. This declaration regarding parental advice in appropriate cases; and
shall be contained in the marriage certificate which shall be signed by the contracting
parties and attested by the solemnizing officer. (A6 par 1, FC) (7) That the parties have entered into marriage settlement, if any, attaching a copy thereof.
(A22, FC)
In case of a marriage in articulo mortis, when the party at the point of death is unable to
sign the marriage certificate, it shall be sufficient for one of the witnesses to the marriage Purpose and Value of Marriage Certificate
to write the name of said party, which fact shall be attested by the solemnizing officer.
(A6 par 2, FC) The primary or best evidence of a marriage is the marriage contract or marriage certificate.

Authorized Venues for Marriages Since marriage certificate is neither an essential nor a formal requisite, an unsigned or
GENERAL RULE: The marriage shall be solemnized publicly, and not elsewhere: unattested marriage certificate does not invalidate the marriage.
1. In the chambers of the judge;
2. In open court; Who Issues Marriage Certificate: Solemnizing Officer
3. In the church, chapel or temple;
4. In the office of the consul-general, consul or vice consul, and not elsewhere.
Duties Of The Solemnizing Officer:
EXCEPT: 1. To prepare marriage certificate: the original for the contracting parties (either of them);
1. In marriages contracted at the point of death; 2 (duplicate and triplicate) for the LCR not later than 15 days after the celebration of the
2. In remote places; marriage; one (quadruplicate) shall be retained by the solemnizing officer.
3. Marriage at a house or place designated by the parties in a sworn statement upon
their written to the solemnizing officer. 2. In the cases provided under Art. 27 (marriage in articulo mortis) and 28 (marriage in
4. All marriages solemnized OUTSIDE the Philippines in accordance with the laws in remote places), the solemnizing officer shall state in an affidavit executed before the
force in the country where they were solemnized and valid there as such, shall also local civil registrar or any other person legally authorized to administer oaths that the
be valid in this country, except those void foreign marriages. (A8, FC) marriage was performed under such circumstances stated in said articles, and that the

22 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

officer took the necessary steps to ascertain the ages and relationship of the contracting d. Incestuous Marriages (Art 37, FC)
parties and the absence of a legal impediment to the marriage.
e. Quasi-Incestuous Marriages/Void Marriages by Reason of Public Policy (Art 38, FC)
The affidavit of the solemnizing officer required by this article takes the place of the
marriage license and constitutes an assurance that the parties are of the proper ages and Instances of Absence of Consent
that there is no impediment to their marriage. a. If one or both are suffering from psychological incapacity at the time of marriage
even if becomes manifest after the celebration. (Art 36, FC; see discussion below)
3. The original of the affidavit required above, together with a legible copy of the marriage b. When there is mistake of identity (Art 35 [5], FC)
contract, shall be sent by the person solemnizing the marriage to the LCR of the place c. Marriage by proxy (no consent/no declaration) EXCEPT when celebrated abroad
where it was performed within the period of 30 days after the performance of the and valid there as such.
marriage.

LCR has the duty to record the marriage certificate. Failure to record will not invalidate No Authority of the Solemnizing Officer – the marriage is void, provided both parties
the marriage because it is merely an administrative requirement. are in bad faith, that is, they did not intend to be bound by the marriage, thus marriage is
a sham.
4. For marriages involving ratification of marital cohabitation, the solemnizing officer shall
state under oath that he ascertained the qualifications of the contracting parties and EXCEPT:
found no legal impediment to the marriage. 1. Either or both parties believing in good faith that the solemnizing officer had the
legal authority to do so; (A35[2], FC)
Distinguished From Marriage License 2. Lex Loci Celebrationis

1. Marriage license is a formal requisite of marriage, while marriage certificate is not. Lack of Marriage License - Marriage license is a prerequisite to the celebration of
2. Marriage license is issued before celebration of marriage, while marriage certificate is marriage, thus absence of which renders the marriage void.
issued after the celebration of marriage.
3. Marriage license shows the authority to contract marriage, while marriage certificate EXCEPT:
shows facts of celebration. 1. Lex Loci Celebrationis
4. Absence of marriage license renders the marriage void, while absence of marriage
certificate will not invalidate marriage. Marriages solemnized outside the Philippines where no marriage license is required
by the country where it is solemnized and valid there as such, shall also valid here.

ABSENCE, DEFECT OR IRREGULARITY IN THE REQUISITES 2. Marriages Under Exceptional Circumstances (A27-34, FC; See discussion below)

Effect of ABSENCE of Essential and Formal Requisites


Lack of Marriage Ceremony
GENERAL RULE: The absence of any of the essential or formal requisites shall render the
marriage void ab initio. (A4 par 1, FC) EXCEPT: Lex Loci Celebrationis

Absence is a mere ground for declaration of nullity of marriage. Thus, if there is no judicial Illustration:
declaration of nullity of marriage, the marriage is presumed valid and existing. FACTS: H and W got married in the Philippines. W went to Canada where she obtained a
divorce. H contracted subsequent marriage with W2. H then filed a petition for declaration
Instances of Absence of Legal Capacity of nullity of his 1st marriage on the ground of the existence of divorce and that there was
a. Any or both contracting parties are below 18 at the time of celebration of marriage. no marriage ceremony. The fiscal charged him with bigamy for which he was convicted.
(Art 35 par 1, FC) Pending appeal of the judgment of conviction, the marriage was declared void in the
petition for declaration of nullity on the ground that there was no marriage ceremony took
This is true notwithstanding the fact that the marriage was celebrated abroad and place. CA affirmed the conviction. HELD: SC reversed the judgment. H cannot be held
valid there as such, shall not be valid in the Philippines because it falls under the liable for bigamy because the 1st marriage is not ostensibly valid. (Morigo vs Pp, 422 S
exception of lex loci celeracionis. (Art 26, par 1, FC) 376)

b. Bigamous/Polygamous marriages (Art 35 par 4, FC) – see Discussion Below


Effect of Defect in Essential Requisites
c. Void marriage because of no compliance with Art 53 (Art 35[6], FC) – see
Discussion Below A defect in any of the essential requisites shall render the marriage voidable as provided in
Art. 45. (A4 par 2, FC)

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

Effect of Irregularity in Formal Requisites FOREIGN DIVORCES

An irregularity in the formal requisites shall not affect the validity of the marriage but the party Absolute Divorce by a Filipino Spouse
or parties responsible for the irregularity shall be held civilly, criminally or administratively
liable. (A4 par 3, FC) Divorce initiated by a Filipino is against public policy, thus, cannot be recognized. Art 15 of
NCC provides that laws relating to family rights and duties or to status, condition and legal
This is a three-fold liability. capacity of persons are binding upon citizens of the Phils, even though living abroad.
Moreover, Art 17 par 3 of NCC provides that prohibitive laws concerning persons, their acts or
Examples of Irregularity of in Formal Requisites: property, and those which have for their object public order, public policy and good customs
1. Marriage solemnized outside territorial jurisdiction of the judge – irregularity of the formal shall not be rendered ineffective by laws or judgments promulgated, or by determinations or
requisite of authority of the solemnizing officer. conventions agreed upon in a foreign country. A Filipino is governed by his national law
2. Marriage solemnized in places other than those authorize venues – irregularity in wherever he goes.
marriage ceremony.
3. A marriage contracted by a party who is 21-25 years old without parental advice – HOWEVER, insofar as the foreigner is concerned, the divorce obtained by the Filipino spouse
irregularity in securing a valid marriage license. will be recognized because of the Philippine’s adherence to the nationality rule. Thus, the
4. Failure to post the application for marriage license – irregularity in securing a valid foreigner spouse cannot claim that he/she still has an interest in the property acquired by the
marriage license. Filipino after the divorce. As to the foreigner, he/she shall be considered divorced. Foreigner
5. Absence of 2 witnesses of legal age – irregularity in marriage ceremony. cannot also file a criminal case of adultery/concubinage against the Filipino spouse because
6. Absence of marriage certificate. while the latter is considered married to him/her, the foreign spouse is no longer married to the
7. Unsworn application for marriage license. Filipino. (Van Dorn vs Romillo, 139 S 139; Pilapil Case)

Divorce by Foreigner Spouse


MARRIAGES CELEBRATED OUTSIDE THE PHILIPPINES
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce
GENERAL RULE: All marriages solemnized outside the Philippines, in accordance with the is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry,
laws in force in the country where they were solemnized, and valid there as such, shall also the Filipino spouse shall likewise have capacity to remarry under Philippine law. (A26 par 2,
be valid in this country (LEX LOCI CELEBRATIONIS). (A26 par 1, FC) FC, as amended by EO 227)

EXCEPTIONS: Note: This is a limited recognition of divorce.


a. Either or both parties did not have the legal capacity to get married. (A35[1], FC)
REQUISITES:
Art 15 of NCC provides that laws relating to legal capacity of persons are binding upon 1. Marriage between a Filipino citizen and a foreigner is validly celebrated (textually
citizens of the Phils, even though living abroad. Art. 26 of FC and Art 15 of NCC express mixed marriage);
the extra-territorial effect of the exception. Moreover, Art 17 par 3 of NCC provides that 2. Alien spouse obtained a divorce against the Filipino spouse;
prohibitive laws concerning persons, their acts or property, and those which have for their 3. Divorce is VALID under the national law of the alien spouse;
object public order, public policy and good customs shall not be rendered ineffective by 4. The divorce dissolves the marital bonds;
laws or judgments promulgated, or by determinations or conventions agreed upon in a 5. The divorce capacitates the alien spouse to remarry.
foreign country.
TRADITIONAL RULE: Art 26 par 2 applies when parties at the time of celebration are a
b. The marriage is immoral being bigamous or polygamous not falling under Art 41. (A35[4], Filipino and an alien.
FC)
c. Consent of one party is lacking because of mistake as to the identity of the other. (A35[5], BUT UNDER RECENT JURIPRUDENCE, a divorce obtained by a former Filipino who
FC) had been naturalized in another country after his naturalization is NOW recognized.
d. Subsequent marriages which are considered void due to lack of recording under Art. 53.
(A35[6], FC) The validity of divorce is determined by the nationality of the party who obtained it. (San
e. One of the parties is psychologically incapacitated at the time of the marriage. (A36, FC) Luis vs. San Luis, February 2007)
f. Incestuous marriage. (A37, FC)
g. Void marriages by reason of public policy. (A38, FC) Mitigation of Consequences Principle

Note: Common-law marriages obtained abroad by Filipinos are also not valid in the For as long as divorce is valid and even if the Philippines does not recognized it,
Philippines. nevertheless, it would mitigate the effects of divorce in favor of the Filipino spouse.

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

The intent of said provision (Art 26, par 2, FC) is to avoid the absurd situation where the residence of either party, specifying the barrio or barangay, is so located that there
Filipino spouse remains married to the alien spouse, who after obtaining a divorce, is no is no means of transportation to enable such party to appear personally before the
longer married to the Filipino spouse. Taking into consideration the legislative intent, the LCR and that the officer took the necessary steps to ascertain the ages and
provision should be interpreted to include cases involving parties who, at the time of relationship of the contracting parties and the absence of legal impediment to the
celebration of the marriage, were Filipino citizens, but later one of them becomes marriage. (A29, FC)
naturalized as a foreign citizen and obtains a divorce decree. The Filipino spouse should
likewise be allowed to remarry as if the other party was a foreigner at the time of the The original of the affidavit required together with the legible copy of the marriage
solemnization of the marriage. To rule otherwise would be to sanction absurdity and contract, shall be sent by the person solemnizing the marriage to the LCR of the
injustice. (Republic v Obrecido, Oct 5, 2005; Republic v Iyoy, Sept 21, 2005) The other municipality where it was performed within the period of 30 days after the
reason for this is the application of nationality theory for a former Filipino is no longer performance of the marriage. (A30, FC)
governed by Philippine Law.

c. Marriages among Muslims or among Members of the ethnic cultural communities.


MARRIAGES UNDER EXCEPTIONAL CIRCUMSTANCES
Art. 33: Marriages among Muslims or among members of the ethnic cultural communities
a. Marriage in Articulo Mortis provided that they are solemnized in accordance with their customs, rites or practices.

Art. 27: marriage in articulo mortis; remains valid even if the ailing party subsequently d. Convalidation of Cohabitation/Ratification of Marital Cohabitation
survives.
Art. 34: Marriage of a man and a woman who have lived together as husband and wife
for at least five years and without any legal impediment to marry each other.

Duty of the Solemnizing Officer Requisites of ratification of marital cohabitation:


1. The contracting parties must have been living together as husband and wife for at
The solemnizing officer shall state in an AFFIDAVIT executed before the LCR or least 5 years before the marriage.
any other person legally authorized to administer oaths that the marriage was 2. The parties must have no legal impediment to marry each other during the
performed in articulo mortis. (A29, FC) cohabitation.
3. The contracting parties shall state the foregoing facts in an affidavit before any
The original of the affidavit required together with the legible copy of the marriage person authorized by law to administer oaths.
contract, shall be sent by the person solemnizing the marriage to the LCR of the 4. The solemnizing officer shall also state under oath that he ascertained the
municipality where it was performed within the period of 30 days after the qualifications of the contracting parties are found no legal impediment to the
performance of the marriage. (A30, FC) marriage.

Art. 31: marriage in articulo mortis between passengers or crew while the ship is at sea or Status of the Marriage
the plane is at flight, and during stopovers at ports of call.
The marriage is valid even if celebrated without marriage license.
Art. 32: marriages in articulo mortis between persons within the zone of military
operation, whether members of the armed forces or civilians. Marriages solemnized without license are void from the beginning, except those Marriages
under exceptional circumstances. (A35[3], FC)
Who May Solemnize
Marriage license is a formal requisite of marriage EXCEPT those marriages under exceptional
All those authorized under Article 7 of the Family Code and the Mayor. Compliance with circumstances. (A3[2], FC)
other requirements before they can solemnize is necessary

b. Marriages in Remote Place VOID AB INITIO MARRIAGES

Art. 28: marriage in remote places (no means of transportation to personally appear to VOID MARRIAGES – marriage which is not valid from its inception.
the LCR).
Declaration of Nullity Divorce
Duty of the Solemnizing Officer Cause of nullification exists Cause exists after the
from the beginning of marriage. marriage.
The solemnizing officer shall state in an affidavit executed before the local civil One recognized in the Phils Not recognized in the Phils
registrar or any other person legally authorized to administer oaths that the which allows the parties to EXCEPT when obtained by

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

remarry. foreigners and valid in their b. the spouse present has a WELL-FOUNDED BELIEF that the absent spouse
country. was already dead.

Void Marriages Under the FC: In Republic vs Nolasco, this requirement is satisfied if serious and diligent
1. Between minors (below 18) even with consent of parents or guardians. (A35[1], FC) efforts is exerted to locate the whereabouts of the absent spouse. If there is
police assistance, thus the disappearance must be reported to the police.
2. Solemnized by unauthorized officer, EXCEPT good faith of one or both of the parties. There must also be sending of letters to the relatives or known acquaintances
(A35[2], FC) of the absent spouse. And there must be actual physical search of the places
where the absent spouse is possibly be.
3. Solemnized without marriage license, except under Art. 27, 28, 31–34(marriages
exempt from marriage license). (A35[3], FC) c. Spouse present must institute a summary proceeding (NOT a special
proceeding) for the judicial declaration of presumptive death (by way of
4. Bigamous/polygamous petition) of the absentee, without prejudice to the effect of reappearance of the
absent spouse.
Requisites of Bigamy
a. There is a prior subsisting marriage; Note: Courts usually refuses to make judicial declaration of presumptive death
b. Prior marriage not validly terminated; because it is not conclusive. Unlike in Arts 390 and 391, NCC, it is only in Art
c. Spouse contracted a 2nd or subsequent marriage; 41 of FC that a judicial declaration of presumptive death is mandatorily
d. 2nd or subsequent marriage would have been valid were it not for prior subsisting required for the purpose of capacitating the present spouse to remarry. It is
one. also required in cases of settlement of estate.

GENERAL RULE: A marriage contracted by any person during the subsistence of a RECENT JURISPRUDENCE ruled that the judicial declaration of presumptive
previous marriage is VOID. death is immediately final and executory, thus not subject to appeal.

EXCEPTIONS: The judicial declaration must be registered with the LCR.


a. Code of Muslim Personal Laws
Effect of registration:
Muslim men in the Philippines are allowed maximum of 4 marriages even if the prior a. The effects of 1st marriage is merely suspended.
marriage/s are still subsisting. Such privilege is not granted among Muslim women. b. 2nd marriage is conditional, that is, dependent on the confirmation of death
and reappearance.
b. Art. 41: a marriage contracted by any person during the subsistence of a previous
marriage in cases where the prior spouse had been absent; (A35[4], FC) Effects of Subsequent Marriage

Valid Bigamous Marriage - before the celebration of the subsequent marriage, the IF BOTH PARTIES IN GOOD FAITH – marriage is valid. If the absent spouse
prior spouse had been absent for 4 consecutive years and the spouse present had a reappeared and he/she or any interested person does not file an affidavit with the
well-founded belief that the absent spouse was already dead. In case of civil registrar of the fact of reappearance, 2 valid marriages exist (valid bigamous
disappearance where there is danger of death under the circumstances set forth marriage).
under Art. 391 of the Civil Code, an absence of only 2 years shall be sufficient.
IF BOTH SPOUSES OF THE SUBSEQUENT MARRIAGE ACTED IN BAD FAITH –
For the purpose of contracting the subsequent marriage, the spouse present must marriage shall be void ab initio (for being bigamous) and all donations by reason of
institute a summary proceeding for the declaration of presumptive death of the marriage and testamentary dispositions made by one in favor of the other are
absentee, without prejudice to the effect of reappearance of the absent spouse: revoked by operation of law. (A44, FC) An example of this is when both parties to
this provision is intended to protect the present spouse from a criminal prosecution the 2nd or subsequent marriage know the whereabouts of the absent spouse.
for bigamy because with the judicial declaration that the missing spouse is
presumptively dead, the good faith of the present spouse in contracting a second Cause of Termination of Subsequent Marriage
marriage is already established.
The subsequent marriage shall be automatically terminated (terminated ipso facto)
Requisites (A41, FC): by the recording of the affidavit of reappearance of the absent spouse (constitute as
a. Before the celebration of the subsequent marriage, the prior spouse had been a notice in rem, UNLESS there is a judgment annulling the previous marriage or
absent for FOUR consecutive years (In case of disappearance where there is declaring it void ab initio.
danger of death under the circumstances set forth in the provisions of Article
391 of the Civil Code, an absence of only TWO YEARS shall be sufficient); A sworn statement of the fact and circumstances of reappearance shall be recorded
in the civil registry of the residence of the parties to the subsequent marriage at the

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

instance of any interested person, with due notice to the spouses of the subsequent Odayat vs Amante, June 2, 1977 – no need for judicial delaration.
marriage and without prejudice to the fact of reappearance being judicially
determined in case such fact is disputed. (A44, FC) Weigel vs. Sempio Diy, Aug 19, 1986 – there was a need for judicial declaration.

This is the only instance where a marriage is terminated extra-judicially EXCEPT Yap vs CA, Oct 28, 1986 – no need for a judicial declaration.
when reappearance is disputed.
Family Code, Aug 3, 1988 – there is a need for judicial declaration.
Effects of Termination of Subsequent Marriage
Purpose/Aim of Art 40
The termination of the subsequent marriage referred to in the preceding Article shall
produce the following effects (Art. 43, FC): The aim is to do away with any continuing uncertainty on the status of the 2nd marriage.
The 2nd marriage shall likewise be void. The parties to a marriage should not be allowed
(1) The children of the subsequent marriage conceived prior to its termination shall to assume that there marriage is void even if such be the fact but must first secure a
be considered legitimate; judicial declaration of the nullity of their marriage. Before such declaration, the person
who marries again can be charged with bigamy. (Mercado Case)
(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 Distinguished From Bigamous Void Marriage
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 In bigamous void marriage, the subsisting first marriage is valid, while in Art 40, the
common children or, if there are none, the children of the guilty spouse by a subsisting marriage is void. Thus, if a person remarries without a judicial declaration of
previous marriage or in default of children, the innocent spouse; nullity of the first marriage, the subsequent marriage is void not because it is bigamous
but because it violates Art 40.
(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 Distinguished From Criminal Bigamy
revoked by operation of law;
The crime of bigamy contemplates a situation where the first marriage is valid, or at least
(4) The innocent spouse may revoke the designation of the other spouse who acted annullable and not void from the beginning.
in bad faith as beneficiary in any insurance policy, even if such designation be
stipulated as irrevocable; and HOWEVER, in the case of Mercado vs. Mercado, Aug 1, 2000, SC held that bigamy is
committed for as long as a subsequent marriage was contracted without judicial
(5) The spouse who contracted the subsequent marriage in bad faith shall be declaration of nullity of the first marriage pursuant to Art 40 in relation to Arts 52 and 53 of
disqualified to inherit from the innocent spouse by testate and intestate FC. (But see dissenting opinion of Justice Vitug) This ruling, in effect, states that criminal
succession. bigamy is determined not by the fact that the first marriage is really legally void but by the
fact that no judicial declaration of nullity of the first marriage was obtained prior to the
Exception to the Exception: If both the spouses of the subsequent marriage acted subsequent marriage.
in bad faith, such marriage is void ab initio. (Art 44)
Note: Although the first marriage is judicially declared void, any subsequent marriage
c. Art 26 par 2, FC – Valid Foreign Divorce (see Discussion Above) may still be considered void because of the failure to comply with Arts. 52 and 53.

5. Contract by Mistake In identity – the mistake here is with regard to the physical identity Art. 52. The judgment of annulment or of absolute nullity of the marriage, the partition
of one of the parties and not with regard merely to the character, health, rank, fortune, or and distribution of the properties of the spouses and the delivery of the children's
chastity of one party to the marriage. This is tantamount to absence or lack of consent presumptive legitimes shall be recorded in the appropriate civil registry and registries of
which makes the marriage void. (A35[5], FC) property; otherwise, the same shall not affect third persons.

6. Subsequent marriages in violation of Arts 40, 52 and 53 Final Judgment of Nullity of Marriage is binding only between the parties, the effect of
which is terminating the marriage bond.
Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of
remarriage on the basis solely of a final judgment declaring such previous marriage void. GENERAL RULE: Judgment NOT binding against 3rd persons.

Pp vs Aragon, Feb 28, 1957 – no need of judicial declaration. EXCEPT: When there is registration of the judgment.

Gomez vs Lipana, June 30, 1970 – there was a need for a judicial declaration. Where to Register: Appropriate civil registry and registries of property.

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

Art. 53. Either of the former spouses may marry again after compliance with the
requirements of the immediately preceding Article; otherwise, the subsequent marriage In the case of Marcos vs Marcos, October 19, 2000, it is not indispensable to
shall be null and void. undergo psychiatric evaluation, it is sufficient that one is assessed by expert for
purposes of the petition.
Note: The recording is NECESSARY to bind 3rd persons and for the parties to be able to
validly contract a subsequent marriage. Expert testimony is no longer indispensable.

The fact of registration restores legal capacity to contract a subsequent marriage. Under present jurisprudence, the incapacity must be proven based on the
totality of evidence presented.

7. Art. 36: Those contracted by a party who at the time of the celebration of marriage was In Ferraris vs Ferraris, 495 SCRA 396, SC held that the marriage cannot be
psychologically incapacitated to comply with the marital obligations even if such voided on the ground of psychological incapacity because of the failure to
incapacity becomes manifest only after its solemnization. prove the existence of the same. SC also discussed in this case the probative
weight of the expert testimony to the effect that the doctor failed to prove the
Psychological incapacity - the condition of a person who does not have the mind, will, existence of mixed personality disorder of the husband. The testimonies of the
and heart for the performance of essential marital/parental obligations. It is the inability to doctor were just her assumptions and based on what the plaintiff confined to
understand the marital obligations leading to non-performance of the same. her, thus hearsay. There was failure to obtain collateral information.

It has no exact definition but is restricted to psychological incapacity to comply with the However, if there are independent evidence to show the incapacity, then the
essential marital obligations of marriage. It involves a senseless, protracted, and constant marriage may be declared void.
refusal to comply with the essential marital obligations by one or both of the spouses
although he/she or they are physically capable of performing such obligations. (Chi Ming Expert testimony is only indispensable when no other evidence was presented,
Tsoi vs CA) otherwise, such will only be considered cumulative or corroborative.

It must be adjudged on a case to case basis. It should refer to no less than a mental (not 4. Clearly explained in the decision
physical) incapacity.
c. The incapacity must be proven to be existing at the time of the celebration of the
General characteristics of psychological incapacity: marriage although the manifestation need not be perceivable at such time.
a. It must be Grave - if the subject cannot carry out the normal and ordinary duties of
marriage and family, shouldered by any average couple existing under ordinary d. The incapacity must also be shown to be medically or clinically permanent or
circumstances of life and work. incurable, although the incurability may be relative only in regard to the other
b. Juridical Antecedent - if the roots of the trouble can be traced to the history of the spouse, not necessarily absolutely against everyone of the same sex.
subject before the marriage although its overt manifestations appear only after the
wedding. Incurability may be absolute as when the incapacity persists in all relationships. It
c. It must Permanent and Incurable - if treatments required exceed the ordinary may also be relative as when the incapacity is only with the present spouse.
means of the subject, or involve time and expense beyond the reach of the subject.
e. Such illness must be grave enough to bring about the disability of the party to
Jurisprudential Guidelines in Interpreting and Applying Article 36 – BREIGOIC assume the essential obligations of marriage.
(Republic v. Molina)
This means that there must be a serious mental and personality disorder which
a. The burden of proof to show the nullity of the marriage belongs to the plaintiff, and renders him or her incapable of understanding his/her marital obligations.
any doubt must be resolved in favor of the existence of the marriage and against its
nullity. If the mental disorder is not connected with the failure to perform marital obligations,
it is considered merely as a difficulty.
b. The root cause of the psychological incapacity must be:
f. The essential marital obligations must be those embraced by Arts. 68 –71 and
1. Medically or clinically identified Arts. 220 - 225 of the Family Code, with regard to parents and children. Such non-
compliance must also be state in the petition, proven by evidence, and included in
2. Alleged in the complaint the text of the decision.

It has been relaxed, thus it need not be alleged in the complaint. Essential marital obligations:
Art. 68: the husband and wife are obliged to live together, observe mutual love,
3. Sufficiently proven by experts respect and fidelity, and render mutual help and support.

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

Art. 220: parental authority over the person of their unemancipated children. 1. Between collateral blood, whether legitimate or illegitimate, up to the fourth civil
Art. 225: parental authority over the property of their unemancipated children. degree.
2. Between step-parents and step-children.
g. Interpretations given by the National Appellate Matrimonial Tribunal of the 3. Between parents-in-law and children-in-law.
Catholic Church, while not controlling, should be given great respect by our courts. 4. Between the adopting parent and the adopted child.
5. Between the surviving spouse of the adopting parent and the adopted child.
When the marriage is annulled by the NAMT, still, the marriage under the civil law is 6. Between the surviving spouse of the adopted child and the adopter.
valid and existing. 7. Between an adopted child and a legitimate child of the adopter.
8. Between adopted children of the same adopter.
h. The trial court must order the fiscal and the Solicitor general to appear as counsel 9. Between parties where one, with the intention to marry the other, killed that other
for the State. No decision shall be handed down unless the Solicitor general issues person’s spouse, or his or her own spouse; in this case, there is no need for
a certification, which will be quoted in the decision, briefly stating his reasons for his conviction of the guilty party.
agreement or opposition to the petition. The Solicitor General and the fiscal shall
submit such certification to the court within 15 days from the date the case is Reasons for the Prohibition
submitted for resolution.
They are against public policy. It is the policy of the state to foster a normal, peaceful and
Note: The favorable recommendation of OSG has been relaxed. There must be an wholesome integral nuclear family unit which would constitute the very foundation of
independent judgment of the court. society.

The Following Do Not Constitute Psychological Incapacity Other relationships which are not impediments to marriage:
1. Drunkenness / habitual alcoholism 1. Brother-in-law and sister-in-law
2. Joblessness 2. Stepbrother and stepsister
3. Mere sexual infidelity or perversion 3. Guardian and ward
4. Abandonment 4. Adopted and illegitimate child of the adopter
5. Immaturity 5. Adopted son of the husband, and adopted daughter of the wife
6. Irresponsibility
7. Refusal to give support NOTE: RA 6995 (Mail Order Bribe Act) declares as unlawful the practice of matching
8. Infliction of physical violence Filipino women for marriage to foreign nationals on a mail order basis and other similar
practices including the advertisement, publication, printing or distribution of brochures,
Note: While these may not constitute psychological incapacity, they may be fliers and other propaganda materials in furtherance thereof.
considered as manifestations.
Action For Declaration Of Nullity Of Marriage
8. Incestuous Marriages (Art 37, FC)
Who may Bring
Marriages between the following are incestuous and void from the beginning, whether the
relationship between the parties be legitimate or illegitimate: A petition for the declaration of absolute nullity of void marriage may be filed SOLELY by the
1. Between ascendants and descendants of any degree. husband or the wife.” (S2[a], AM 02-11-10-SC)
2. Between brothers and sisters, whether of the full or half-blood.
Petition for declaration of nullity of marriage, in the case of Catalan vs CA, February 2, 2007,
Rationale for the Ban on Incestuous Marriage is considered as an ordinary civil action, thus any proper party who has legal interest may file
the petition. In this case, SC recognized the legal capacity of the 1 st wife to institute the
In the first place, they are abhorrent to the nature, not only of civilized men, but of petition.
barbarous and semi-civilized people and, in the second place, tend to the confusion of
rights and duties incident to family relations. Also, a child of incestuous union creates a Petition for declaration or annulment of marriage shall be filed by the aggrieved spouse and
special problem of social placement, because its status is so confused, as is that of its such is personal to him/her while he/she is still living. After death, the heirs may assail the
parents. In addition, science and experience have established beyond cavil that such validity of marriage in the settlement proceedings. (Enrico Case, 534 SCRA 418) In effect, the
intermarriages very often result in deficient and degenerate offspring, which if occurring settlement court can decide on the validity of marriage whose decision is final and
to any great extent, would amount to a serious deterioration of the race. Finally, social inappealable.
prohibitions against incest promote solidarity of the nuclear family.
Moreover, in the case of Ninal vs Bayadog, March 14, 2000, SC recognized the right of the
9. Quasi-incestuous Marriages / Void by Reason of Public Policy (ART 38, FC) heirs of the deceased father assailing the validity of his marriage with their step-mother in a
settlement proceeding. They have legal interest to determine their successional right to the
These marriages are void from the beginning for reasons of public policy: exclusion of the step-mother.

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

such false or non-existent cause of action before the proper court with the objective of
The pleading may be in the form of petition or complaint where all grounds must be alleged. In facilitating the issuance of a decree of annulment of nullity of marriage.
one case, there was a petition filed for declaration of nullity of marriage under Art 36. The
court dismissed the case. On appeal, one new ground is included which is lack of license. SC The Following Warrants the Conduct of Investigation
held that the new ground should be disregarded. All grounds must be alleged. Further, SC a. If defendant does not tender an answer.
held that the judgment can no longer be reversed because parties are estopped from citing the b. If there is an answer but no further appearance.
new ground. Neither the party can file a 2nd petition for nullity by reason of res judicata. c. If either of the parties withdraw from the case.

Where to File: If there is collusion, dismissal of the petition is warranted.

The petition shall be filed in the Family Court of the province or city where the petitioner or the HOWEVER, even if there is an agreement to file the annulment or nullity case, collusion will
respondent has been residing for at least 6 months prior to the date of the filing or in the case not exist if the grounds relied upon truly exist and are not just concocted.
of non-resident respondent, where he may be found in the Philippines, at the election of the
petitioner. (S2[b], AM 02-11-10-SC) STIPULATION OF FACTS – admission by both parties made in court agreeing to the
existence of the act constituting the ground for annulment or nullity.
Prescriptive Period
CONFESSION OF JUDGMENT – admission made in court by the defendant admitting fault as
The action or defense for the declaration of absolute nullity of a marriage shall not prescribe. invoked by the plaintiff to sever the marriage ties.
(Art 39, FC; S2[c], AM 02-11-10-SC)
Right To Support And Custody During The Pendency Of The Action
Note: RA 8533 amended Art. 39, eliminating the second sentence thereof which states the
prescriptive period of 10 years in case of marriages celebrated before the affectivity of FC Art. 49. During the pendency of the action and in the absence of adequate provisions in a
which fall under Art 36 . written agreement between the spouses, the Court shall provide for the support of the
spouses and the custody and support of their common children. The Court shall give
Appearance of the State/Prohibition vs. Default Judgment paramount consideration to the moral and material welfare of said children and their choice of
the parent with whom they wish to remain as provided to in Title IX (See Art 213). It shall also
Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court provide for appropriate visitation rights of the other parent.
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 Art. 213. In case of separation of the parents, parental authority shall be exercised by the
fabricated or suppressed. parent designated by the Court. The Court shall take into account all relevant considerations,
especially the choice of the child over seven years of age, unless the parent chosen is unfit.
In the cases referred to in the preceding paragraph, no judgment shall be based upon a
stipulation of facts or confession of judgment. No child under 7 shall be separated from the mother, unless the court finds compelling
reasons to order otherwise.
If the defendant fails to answer within 15 days from receipt of the summons, he or she cannot
be declared in default unlike in ordinary civil cases, and the court will order the full-blown (not Necessity of Final Judgment / Requirement for Remarriage (Art 40 in rel to Arts. 52 and
summary) hearing of the case. 53 – see discussion above)

If the answer admits the allegations of the petition, judgment on the pleadings cannot be Effects of Declaration of Nullity
decreed. Material facts alleged in the petition shall always be proved. 1. No more marriage ties between the parties. No obligation to support one another. Duty to
perform marital obligations is extinguished.
Note: Appearance of the OSG is no longer indispensable if the State is already protected by 2. Children conceived and born during the marriage is downgraded to the status of
the appearance of the prosecutor. illegitimate. The finality of judgment makes the children illegitimate ipso facto. An
exception to this rule id Art 35[6] and Art 36 of the FC.
Reason for the Appearance of the State 3. Children are entitled to support. If the matter of custody is not yet resolved, apply the
rules on custody. There is grant of physical custody to be exercised by one party and
The reason for the duty is because marriage is not just a contract between the parties but a visitation rights to be exercised by the other.
social institution, in the preservation of which, the State is interested. 4. There is dissolution and liquidation of co-owned property under the rule on co-ownership
under Art 147.
COLLUSION – one which occurs where, for purposes of getting an annulment or nullity
decree, the parties come up with an agreement making it appear that the marriage is defective The property will be divided in equal share unless there is proof to the contrary.
due to the existence of any of the grounds for annulment or nullity and agreeing to represent
Liquidation only happens after finality of judgment. In US, they call it “bifurcated process.”

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the
The liquidation is subject to the rule on forfeiture. Thus, if either spouse contracted said ultimate successional rights of the children accruing upon the death of either of both of
marriage in bad faith, his or her share of the net profits of the community property or the parents; but the value of the properties already received under the decree of
conjugal partnership property shall be forfeited in favor of the common children or, if annulment or absolute nullity shall be considered as advances on their legitime.
there are none, the children of the guilty spouse by a previous marriage or in default of
children, the innocent spouse.(Art 43 [2], FC) Note: As a rule, in void marriages, delivery of presumptive legitimes is not required
EXCEPT only in void subsequent marriage resulting from non-compliance with Art 40 in
SC held that in bigamous marriages along with adulterous relationships, relationships in a relation to Arts 52 and 53. This is because the rules on co-ownership shall govern the
state of concubinage, relationships with prior existing marriages, or multiple marriages of partition and liquidation.
married man, Article 148 of the FC on Rule of Limited Co-ownership shall apply. In such
case, there is no presumption of equal sharing. Thus, co-ownership extends during  Art. 52. The judgment of annulment or of absolute nullity of the marriage, the partition
relationship upon proof of actual acquisition. (Atienza vs De Castro) 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
5. Donations by reason of marriage shall remain valid, except that if the donee contracted property; otherwise, the same shall not affect third persons.
the marriage in bad faith, such donations made to said donee are revoked by operation
of law. (Art 43 [3], FC)  Art. 53. Either of the former spouses may marry again after compliance with the
6. The innocent spouse may revoke the designation of the other spouse who acted in bad requirements of the immediately preceding Article; otherwise, the subsequent marriage
faith as beneficiary in any insurance policy, even if such designation be stipulated as shall be null and void.
irrevocable; (Art 43 [4], FC) and
7. The spouse who contracted the subsequent marriage in bad faith shall be disqualified to Status of Children born of Void Marriage
inherit from the innocent spouse by testate and intestate succession. (Art 43 [5], FC)
8. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void GENERAL RULE: Children conceived and born outside a valid marriage or inside a void
ab initio and all donations by reason of marriage and testamentary dispositions made by marriage are illegitimate.
one in favor of the other are revoked by operation of law. (Art 44, FC)
EXCEPTIONS:
NOTES: 1. Children conceived or born (after the marriage but) before the judgment absolute nullity
 The final judgment in such cases shall provide for the liquidation, partition and of the marriage under Article 36 has become final and executory shall be considered
distribution of the properties of the spouses, the custody and support of the common legitimate.
children, and the delivery of third presumptive legitimes, unless such matters had been 2. Children conceived or born of the subsequent marriage under Article 53 shall likewise be
adjudicated in previous judicial proceedings. (A51, FC) legitimate. (A54, FC)

All creditors of the spouses as well as of the absolute community or the conjugal
partnership shall be notified of the proceedings for liquidation. VOIDABLE MARRIAGES / ANNULLABLE MARRIAGES

In the partition, the conjugal dwelling and the lot on which it is situated, shall be VOIDABLE MARRIAGE - is valid until it is annulled. Before annulment, the voidable marriage
adjudicated in accordance with the provisions of Articles 102 and 129. must be regarded as valid. One cannot just take the law into his own hands. He must go to
court.
Unless otherwise agreed upon by the parties, in the partition of the properties, the
conjugal dwelling and the lot on which it is situated shall be adjudicated to the spouse
with whom the majority of the common children choose to remain. Children below the age VOID VOIDABLE
of 7 years are deemed to have chosen the mother, unless the Court has decided Invalid/void from the beginning. Valid until annulled.
otherwise. In case there is no such majority, the Court shall decide, taking in to Never be ratified. Susceptible of ratification.
consideration the best interests of said children. Children, illegitimate EXCEPT Children, legitimate.
Arts. 36 & 53.
 Art. 51. In said partition, the value of the presumptive legitimes of all common children, Liquidation of property, co- Based on property regime.
computed as of the date of the final judgment of the trial court, shall be delivered in cash, ownership under Art 147 and if
property or sound securities, unless the parties, by mutual agreement judicially bigamous marriage Art 148.
approved, had already provided for such matters. Can be collaterally attacked Direct attack.
EXCEPT for purposes of
The children or their guardian or the trustee of their property may ask for the enforcement remarriage, or revocation of
of the judgment. donation propter nuptias.
Nullification is imprescriptible. There is prescription.
Any party who has legal Parties are only those provided

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

interest may impugn the by law. 3. Vitiated Consent through Fraud - That the consent of either party was obtained by
validity of marriage. fraud, UNLESS such party afterwards, with full knowledge of the facts constituting the
Judicial decree of nullity is Judicial declaration is fraud, freely cohabited with the other as husband and wife.
necessary for purposes of necessary.
remarriage. Fraud constitutes (Art 46):
a. Non-disclosure of a previous conviction by final judgment of the other party of a
crime involving moral turpitude.
Grounds for the annulment of marriage (Art 45 – the grounds are exclusive):
Note: In determining whether a crime involves moral turpitude, it is the nature of the
The marriage may be annulled for any of the following causes, existing AT THE TIME OF THE offense is considered.
MARRIAGE: LIV-VIA
Negligence cases under the Revised Penal Code do not involve moral turpitude
1. Lack of Parental Consent - That the party in whose behalf it is sought to have the EXCEPT if it is so reckless amounting to malicious conduct.
marriage annulled was 18 years of age or over but below 21, and the marriage was
solemnized without the consent of the parents, guardian or person having substitute Crimes under Special Laws also involve moral turpitude like violation of BP 22, vote
parental authority over the party, in that order, UNLESS after attaining the age of 21, buying, election offenses.
such party freely cohabited with the other and both lived together as husband and wife.
b. Concealment (there must be bad faith) by the wife of the fact that at the time of the
2. Insanity - That either party was of unsound mind, unless such party, after coming to marriage, she was pregnant by a man other than her husband.
reason, freely cohabited with the other as husband and wife.
c. Concealment of a STD, regardless of its nature, existing at the time of the marriage.
INSANITY – a manifestation, in language or conduct, of disease or defect of the brain, or
a more or less permanently diseased or disordered condition of the mentality, functional d. Concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism,
or organic, and characterized by perversion, inhibition, or disordered function of the existing at the time of the marriage.
sensory or the intellective faculties, or by impaired or disordered volition.
Note: No other misrepresentation or deceit as to character, health, rank, fortune, or
Test of Unsoundness of Mind chastity shall constitute such fraud as will give grounds for action for the annulment of
marriage.
The test is whether the party was deprive of reason. Insanity which occurred after the
celebration of marriage cannot constitute a cause of nullity. 4. Vitiated Consent by Force, Intimidation or Undue influence - That the consent of
either party was obtained by force, intimidation, or undue influence, UNLESS the
Drunkenness – may be considered insanity depending on the degree of drunkenness same having disappeared or ceased, such party thereafter freely cohabited with the other
which deprives a person of his reason. as husband and wife.

Somnambulism (sleep-walking) – there is deprivation of reason, thus insanity. FORCE – there is actual physical coercion and serious or irresistible force is employed.

Hypnotism – considered insanity provided there is deprivation of reason. INTIMIDATION - when one of the contracting parties is compelled by a reasonable and
well-grounded fear of imminent and grave evil upon his person or property, or upon the
Comatose – considered insanity. It is not the disease that is considered but the effect of person or property of his spouse, descendants or ascendants, to give his consent.
the disease.
The marriage cannot be annulled on the ground of intimidation if the threat is to enforce
Presumption of the Law one’s claim, which is just or legal, through competent authority. To be considered a
ground, the threat must be unjust or illegal.
The general presumption of the law is in favor of sanity. He who alleges unsoundness of
mind has the burden of proof. UNDUE INFLUENCE - when a person takes improper advantage of his power over the
will of another, depriving the latter of a reasonable freedom of choice.
Insanity vs Psychological Incapacity
5. Impotency - That either party was physically incapable of consummating the marriage
Insanity is a restriction of the capacity to act, while psychological incapacity is the with the other and such incapacity continues and appears to be incurable.
incapacity to comply with marital obligations.
Requisites for physical incapacity:
a. That the incapacity exists at the time of the celebration of the marriage.

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

b. That such incapacity continues to the time when the case for annulment is being a. Disease must be existing at the time of marriage
tried. b. The disease must be STD
c. That it appears to be incurable. c. STD must be Serious
d. It must be unknown to the other contracting party. d. STD appears to be incurable

The physical incapacity referred to by law as a ground for annulment of marriage is Affliction of STD as a ground for annulment Under Article 45 (6) v. Affliction of STD
Impotency. as constituting fraud under Article 46 (3).

IMPOTENCY – inability of the male or female organ of copulation to perform its proper Art. 45 (6) Art. 46 (3)
function. It is the physical condition of the husband or the wife in which sexual intercourse
with a normal person of the opposite sex is impossible. It is the lack of power to copulate, One party is afflicted with a One party is afflicted with a
the absence of the functional capacity for the sexual ac. STD found to be serious STD regardless of its
and appears to be incurable nature
Test of Impotency

It is the inability to copulate and not the inability to procreate. The disease is present at The disease is present at
the time of the marriage the time of the marriage
Impotentia Copulandi vs Impotentia Generandi

Impotentia Copulandi is the physical impotency or inability to copulate and considered as Concealment is immaterial;
a ground for annulment of a voidable marriage. Impotentia Generandi on the other hand the disease may be known There is concealment
is known as sterility or the inability to procreate. In sterility, there is capacity to copulate to the other party
which is absent in impotency.

Relative/Temporary impotency – is where a person is impotent with respect to his or Note: No ratification by free cohabitation in STD.
her spouse but not with another woman or man. Under the Family Code, relative
impotency may be invoked as ground for annulment of marriage in view of the physical Ratification/Convalidation of Voidable Mariiage, Modes
incapability of one party to consummate said marriage with the other.
1. Free Cohabitation
Potency is presumed
To What Marriages Applicable
Potency is presumed unless the person is too old for normal sexual activity. Impotency
being an abnormal conditions should not be presumed. a. In marriage where there is lack of parental consent – after attaining the age of 21

Burden of Proof b. In marriage where one is of unsound mind – after coming to reason

He who claims impotency must prove the claim because the presumption is in favor of c. In marriage where consent is obtained by fraud – after having full knowledge of the
potency. facts constituting fraud

Doctrine of triennial cohabitation - if the wife remains virgin after living together with d. In marriage where the consent is obtained by force, intimidation – after force,
her husband for 3 years from the time of marriage, the presumption is that the husband is intimidation or undue influence has disappeared.
impotent, and he will have to overcome this presumption.
Cohabitation, How Proven
Note: NO ratification by free cohabitation in cases of absolute impotency because there a. After knowledge of the defect, the party who is entitled to file an action, freely
could be no cohabitation as consummation of the marriage is not possible. However, discharges his/her marital obligations.
estoppel is applicable. Knowledge of impotency at the time of marriage will negate b. Consummation of marriage, after knowledge of the defect.
annulment of marriage.
Effects of Ratification – extinguishment of the right of action for annulment of a voidable
6. Affliction of STD - That either party was afflicted with a STD (Sexually-transmissible marriage.
disease) found to be serious and appears to be incurable (e.g. Hepatitis B and C are
STD and serious while Hepatitis A is not STD) Note: If the ground is impotency or affliction of STD, there is no ratification to speak of
since the defect is permanent. They can be convalidated only by prescription.
Requisites:

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

2. Prescription (See the Table Below) Appearance of the State (Art 48 – See Discussion Above, Same in Declaration of Nullity
of Marriage)
Action for Annulment of Marriage
Right to Support and Custody During Pendency of Action (Same in Declaration of
Who May Bring and Within What Period (Art 47; AM 02-11-10-SC) nullity of marriage)

Grounds Persons who may Prescriptive period Necessity of Final Judgment / Requirements for Remarriage (Same in declaration of
sue Nullity of marriage)
Lack of The party who lacks Within 5 years after
parental parental consent reaching the age of Art 40 which speaks of absolute nullity includes annulment of marriage. Thus, the necessity of
consent 21 judicial declaration for purposes of remarriage.
Lack of The parent, legal At anytime before the
parental guardian or person party who lacks When Decree of Annulment of Marriage be Issued by the Court (same in declaration of
consent having substitute parental consent nullity marriage)
parental authority reaches 21
who did not give The court shall issue the decree after:
consent, in that order 1. Registration of the entry of judgment granting the petition for declaration of nullity or
Sane spouse (no At anytime before the annulment of marriage in the Civil Registry where the marriage was celebrated and in the
Insanity knowledge of the death of either party Civil Registry of the place where the Family Court is located.
ground) 2. Registration of the approved partition and distribution of the properties of the spouses in
Insanity Relatives, guardians At anytime before the the proper Register of Deeds where the real properties are located.
or person having death of either party 3. The delivery of the children’s presumptive legitimes in cash, property or sound securities.
legal charge of the (S22, A.M. No. 02-18-10-SC)
insane
Insanity Insane spouse During sanity or lucid
interval Note: The Decree in the Civil Registry where the marriage was registered, the Civil Registry of
Injured party Within 5 years after the place where the Family is situated, and in the National Census and Statistics Office is the
Fraud the discovery of the vest evidence to prove declaration of absolute nullity or to serve as notice to 3 rd person
fraud concerning the properties of the spouses as well as presumptive legitimes delivered to the
Force, Injured party Within 5 years from common children.
intimidation the time the grounds
or undue stated ceased
influence If there are no properties of the spouses which could be the subject of liquidation, partition and
distribution, there is NO need for the recording of the judgment in the appropriate registries of
Physical Injured party. If both
property. Our governing laws do not require such judgment to be furnished and recorded in
incapability are impotent, no one Within 5 years after
the proper registries of property.
can file because there the marriage
is no injured party.
Effects of Annulment (Same in Nullity)
Affliction of Within 5 years after
Injured party
STD the marriage
Status of Children Born of Voidable Marriage

Children conceived OR born before the judgment of annulment shall be considered legitimate.
When Actions for Annulment will not Prosper
a. If persons other than those specified by law filed the case.
b. When the action was filed after prescription had set in. LEGAL SEPARATION
c. When the injured party freely cohabited with the other as husband and wife.
LEGAL SEPARATION - the marriage bond between the husband and wife is not severed. The
Where to File the Petition parties are merely separated from bed and board.
The petition shall be filed in the Family Court of the province or city where the petitioner or the A Vinculo Matrimonii and A Mensa et Thoro, Distinguished
respondent has been residing for at least 6 months prior to the date of the filing or in the case
of non-resident respondent, where he may be found in the Philippines, at the election of the A Vinculo Matrimonii or Absolute divorce is a separation of the spouses for a cause authorized
petitioner. by law by a judgment of competent court where the marriage tie is dissolved leaving the

34 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

parties free to contract a new marriage. A Mensa et Thoro or Relative Divorce, on the other Must be done thru the court. 1.) If one prior to marriage-may
hand is the separation of the spouses from bed and board for a cause authorized by law by be done thru the marriage
the judgment of a competent court but the marriage tie subsists and the parties are not settlement.
allowed to marry again. Under the Family Code, relative divorce is known as LEGAL 2.) If done during the existence
SEPARATION. of the marriage-must be done
thru the courts.
History of Divorce and Legal Separation Always involves separation of May exist with or without legal
 Siete Partidas, during the Spanish regime, provided for relative divorce/legal separation property. Thus, may be separations. Thus, May be
in the Philippines, not Absolute Divorce. This was our law until Act 2710, which allowed considered as a cause of considered as one of the
only absolute divorce. separation of property. effects of legal separation.
 The Divorce Law (Act 2710) recognized only two grounds for absolute divorce and Cannot be granted on mere Can be effected by agreement
implicitly ruled out relative divorce. The two grounds were: Adultery on the part of the stipulation of facts, or of the spouses during the
wife; Concubinage on the part of the husband. confession of judgment or marriage subject to court
 Executive Order 141 enlarged the grounds for divorce under Act 2710 by adding 8 more agreement of the parties. approval. If done before the
grounds – during the Japanese regime. marriage, it can be effected
 Oct 23, 1944, EO 141 was repealed and Act 2710 was revived. thru marriage settlement.
 Act 2710 (the Old Divorce Law) was repealed by the New Civil Code on Aug 30, 1950. The spouses are necessarily The spouses are NOT
Today, with the exception of Moslem divorces and the implicit absolute divorce law separated. necessarily separated.
allowed under Article 36 (Psychological incapacity) of the Family Code, we only have
relative divorce or legal separation in the Philippines
Legal Separation (Art. 55) vs. Separation De Facto (Art. 100-101)
Rules for Absolute Divorce TODAY both under the Civil Code and the Family Code
(without prejudice to Muslim Code of Personal Laws)
1. In legal separation, the separation is the result of judicial decree. While in de facto
 If the action is brought HERE in the Philippines
separation, the spouses are just living separately irrespective of the period but the absent
b. Between Filipinos-will NOT prosper EXCEPT divorces between Filipino Muslims
spouse has no clear intention of deserting the conjugal dwelling (as distinguished from
c. Between foreigners-will NOT prosper
abandonment where there is no intention to return and there is a period of time required
d. Between a Filipino and a foreigner-will NOT prosper.
to lapsed before abandonment can be considered).
2. In legal separation, the law provides for certain consequences like separation of property,
 If the action is brought in a FOREIGN COURT
dissolution of the absolute or conjugal property regime, disqualification to inherit from the
1.) Between Filipinos-will NOT be recognized here even if allowed by said foreign court,
innocent spouse in intestate succession, and cessation of the right to cohabitation. In de
and even if the ground be either adultery on the part of the wife or concubinage on
facto separation (like in abandonment), there is no judicial intervention and no dissolution
the part of the husband.
of the conjugal partnership or absolute community of property, thus the husband and wife
2.) Between foreigners-foreign decree will be RECOGNIZED here only if the following
are still heirs of each other, their property relations remain, unless the innocent party
two conditions concur:
disinherits the guilty party in his will or her will.
a.) The foreign court has jurisdiction to grant the absolute divorce.
3. In both cases, the spouses live separately. The absent spouse is not entitled to support
b.) Said divorce is recognized as valid by the personal law of the parties involved,
and the marriage remains intact which presupposes that the obligation of mutual fidelity
that is, if valid according to their national law or the law of their domicile
remains, violation of which subjects the violator to criminal prosecution such as for
depending upon the theory adopted by their countries.
adultery and concubinage. In separation de facto, when the consent of one spouse to any
transaction of the other is required by law, judicial authorization shall be obtained in a
3.) Between a Filipino and a foreigner-If obtained by the foreigner and valid according to
summary proceeding and; in the absence of sufficient community property, the separate
his personal law-valid for both foreigner and Filipino under Art 26.
property of both spouses shall be solidarily liable for the support of the family. The
spouse present shall, upon proper petition in a summary proceeding, be given judicial
Absolute Divorce Under Muslim Code of Personal Laws
authority to administer or encumber any specific separate property of the other spouse
and use the fruits or proceeds thereof to satisfy the latter’s share.
For a period of 20 years from June 17, 1949, absolute divorce in accordance with
Mohammedan customs and practices is recognized for Mohammedans residing in non- Legal Separation vs. Annulment of Marriage
Christian provinces. This law, in turn, is now superseded by the Muslim Code of Personal
Laws, wherein absolute divorce in accordance with Muslim customs and practices is also
Legal Separation Annulment of marriage
recognized.
Marriage is not defective. Marriage is defective.
Legal Separation vs. Separation of Property (Arts. 134 – 136, FC) Grounds arise only after the Grounds must exist at the time
marriage. of or before the marriage.
Legal Separation Separation of Property Spouses are still married to Spouses are no longer married
each other and cannot to each other, thus they can
35 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

remarry. remarry. The attempt must come from an evil design. There is no need of conviction. Such attempt
There are 10 grounds. There are only 6 grounds. can be proven by preponderance of evidence.

Grounds for legal separation (Art 55): RP-FADALACS 10. Abandonment of petitioner by respondent without justifiable cause for more than one
1. Repeated physical violence or grossly abusive conduct directed against the petitioner, a year.
common child, or a child of the petitioner.
ABANDONMENT – refusal or failure to comply with the marital obligations. It does not
Illustration: only refer to desertion of the conjugal dwelling without intention of returning. (Art 101, FC)
FACTS: 5 years after celebration of the marriage, H, in several occasions, inflicted upon
W injuries. The latter filed a criminal case for serious physical injuries. W also filed a civil Constructive Abandonment – where one spouse, without just cause, forcibly ejects the
action for the issuance of a decree of legal separation. H filed a motion to suspend the other from their home and refuses to allow her to return and that will constitute
civil case contending that it should wait for the judgment in the criminal case. HELD: The abandonment.
motion should not be granted because legal separation is a separate proceeding and
conviction by final judgment in the criminal case is not necessary for the civil case to Presumption of abandonment:
prosper. 1. When the spouse who has left the conjugal dwelling for a period of no less than 3
months; or
2. Physical violence or moral pressure to compel the petitioner to change religious or 2. When he/she has failed within the same period to give any information as to his or
political affiliation. her whereabouts. (Art 101, FC)

3. Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of Effects of Abandonment without just cause
the petitioner, to engage in prostitution, or connivance in such corruption or inducement. a. Possible legal separation
b. Petition for Receivership, Judicial Separation of Property, Sole Administration of the
4. Final judgment sentencing the respondent to imprisonment of more than six years, even Absolute Community or conjugal partnership (subject to precautionary conditions).
if pardoned. These remedies are also available in case of failure to comply with obligations to the
family. The obligations to the family mentioned refer to marital, parental or property
5. Drug addiction or habitual alcoholism of the respondent. relations. (Art 101, FC)
c. One who abandoned not entitled to support.
6. Lesbianism or homosexuality of the respondent;

NOTE: The extent of drug addiction, habitual alcoholism, lesbianism or homosexuality is Defenses Against Legal Separation (Art 56)
the same as those in annulment. However, in annulment, they are instances of fraud 1. Condonation / Pardon
which must exist at the time of the celebration of marriage. In legal separation, such
grounds exist even after the marriage ceremony. Where the aggrieved party has condoned the offense or act complained of.

7. Contracting by the respondent of a subsequent bigamous marriage, whether in the CONDONATION – this is forgiveness, express or implied, after the commission of the
Philippines or abroad. offense or act complained of and not before.

Bigamy, as a ground for legal separation does not require a prior conviction for as long as Forms:
there is proof of subsequent bigamous marriage. a. Express
b. Implied - Implied condonation may come in the form of voluntary sexual intercourse
8. Sexual infidelity or perversion. after knowledge of the cause.

SEXUAL INFIDELITY – includes adultery, concubinage and other acts short of adultery “Each sexual intercourse of the wife outside marriage is a separate act of adultery.
and concubinage for as long as such acts constitute a clear betrayal of the trust of his/her Therefore, condonation of one act does not necessarily imply condonation of the others”.
spouse. In case of concubinage as a ground for annulment of a voidable marriage, there (People v Zapata and Bondoc, L-3047, May 16, 1951)
is no need of conviction by final judgment for such can be proven by preponderance of
evidence. “Where the wife left the conjugal home after her adulterous acts were discovered, the fact
that the husband did not actively search for her is not condonation. It was not the duty of
SEXUAL PERVERSION – can refer to any abnormal or pervert act or turning from the the husband to search for the wife under the circumstances. On the contrary, hers was
true end or proper purpose of sexual organs. the duty to return to the conjugal home”. (De Ocampo v. Florenciano, L-13553, Feb. 23,
1960)
9. Attempt by the respondent against the life of the petitioner.

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Saint Louis University - College of Law
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By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

Condonation must be given by the aggrieved party after full knowledge of the marital
offense committed. It must be subsequent of the commission of the marital offense. Where both parties have given ground for legal separation;

Effect of Conditional Condonation/Pardon MUTUAL GUILT/RECRIMINATION - both parties are in pari delicto, there is no offended
spouse who deserves to bring the action. This is true even if one of the parties has been
If the aggrieved party expressly forgives the guilty spouse subject to the condition that the pardoned but the other has not. The reason for this lies in the equitable maxim that “He
latter should not commit the marital offense again. Should the guilty spouse commits who comes to court must come with clean hands.” Also, it is also a rule that, when 2
another marital offense, there is no compliance with the condition. Thus, the basis of persons acted in bad faith, they should be considered as having acted in good faith.
legal separation can be the previous marital offense because non-compliance with the
condition amounts to no condonation at all and the subsequent marital offense. 5. Collusion

2. Consent Where there is collusion between the parties to obtain decree of legal separation.

Where the aggrieved party has consented to the commission of the offense or act COLLUSION - This is an agreement to commit marital offense or an agreement whereby
complained of. one will pretend to have committed the ground relied upon.

CONSENT – acquiescence or permission or willingness to agree to the commission of A legal separation obtained thru collusion is void.
the act complained of.
6. Prescription
Forms:
a. Express Prescriptive period
b. Implied.
An action for legal separation shall be filed within 5 years from the time of the occurrence
Consent vs. Condonation of the cause. (Art 57)
Consent is prior to the act of commission of marital offense, while condonation comes
after the commission of marital offense. To make use of either, the same must be In certain acts of adultery, each adulterous act is a separate cause for legal separation.
BEFORE the filing of the complaint. Each one is subject to a separate prescriptive period.

“An agreement between a husband and wife whereby each could live with others, have The law should be interpreted to mean within 5 years from the time of discovery of the
carnal knowledge of them, without interference from the other, constitutes consent”. cause.
(People v. Schneckenburger) While such agreement is void for being contrary to public
policy, the policy being that the nature and consequence of marriage is not subject to Action for Legal Separation
stipulation, it can still be used as a defense to negate the action of nullity.
Procedure (AM 02-11-11-SC)
Consent must be distinguished from entrapment. Therefore, if the purpose is to merely
catch the wife, this is not consent even if the husband deliberately went away only to Who May File
come back and trap the wife.
The petition may be filed only by the husband or wife.
3. Connivance
Where to file (Same in nullity and annulment)
Where there is connivance between the parties in the commission of the offense or act
constituting the ground for legal separation. Summons shall be serve to the respondent

CONNIVANCE – this is a tacit permission to the commission of the act complained of. Respondent’s Answer/Failure to File an Answer, Effects (Same in nullity and
Not both spouses are parties to the connivance but only one spouse with a third person. annulment)

If a husband hires a detective to spy on his wife, and tells him to have sexual intercourse Appearance of the State (Same in nullity and annulment)
with her in order to have evidence, this will be a case of Connivance. The husband here
is unworthy or that he himself is guilty. If there is no finding of collusion, the hearing of the petition shall proceed.

This is similar to instigation in the criminal as distinguished fro entrapment. If there is collusion, the petition will be dismissed motu proprio.

4. Mutual guilt Motion to Dismiss

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

parent with whom they wish to remain. It shall also provide for appropriate visitation rights
No motion to dismiss the petition shall be allowed except on the ground of lack of jurisdiction of the other parent. (Art 49)
over the subject matter or over the parties.
From the common mass of property, support shall be given to the surviving spouse and
Mandatory COOLING-OFF period to the children during the liquidation of the inventoried property and until what
belongs to them is delivered. But from this shall be deducted that amount received for
An action for legal separation shall in no case be tried before 6 months shall have elapsed support which exceeds the fruits or rents pertaining to them.
since the filing of the petition. (Art 58, FC)
During the proceedings for legal separation or for annulment of marriage, and for
REASON: To make a possible reconciliation between the spouses. declaration of nullity of marriage, the spouses and their children shall be supported
from the property regime. After the final judgment granting the petition, the obligation of
NOTE: There is no cooling-off period if the ground alleged are those under RA 9262 (Violence mutual support between the spouses ceases. However, in cases of legal separation, the
Against Women and Children). Art 19 of said law provides: “In cases of legal separation, Court may order that the guilty spouse shall give support to the innocent one.
where violence as specified in this act is alleged, Art 58 of FC will not apply. The court shall
proceed in the main case and other incidents of the case as soon as possible. The hearing on Effects of DECREE of Legal Separation (after the lapse of the period to appeal)
any application for a protection order filed by the petitioner must be conducted within the 1. The spouses are entitled to live separately, but the marriage bonds shall not be severed.
mandatory period specified in this Act. (Art 63 [1], FC)
2. Innocent spouse is entitled to support from the guilty spouse not vice-versa.
Duty of Court to Effect Reconciliation 3. The status and condition of children are not affected.
4. The property regime shall be dissolved and liquidated but the offending party shall
No legal separation may be decreed unless the court has taken steps toward the reconciliation have no right to any share of the net profits earned by the property regime, and shall be
of the spouses and is fully satisfied, despite such efforts, that reconciliation is highly forfeited in favor of the common children or, if none, the children of the guilty spouse by a
improbable. (Art 59, FC) previous marriage or, in default of children, the innocent spouse [this is in accordance
with Art. 43 (2)]. (Art 63 [2], FC)
Necessity of Trial and Intervention of State 5. The custody of the minor children shall be awarded to the innocent spouse subject to
the provisions of Art 213. (Art 63 [3], FC)
No decree of legal separation shall be based upon a stipulation of facts or a confession of
judgment. Art. 213: in case of separation of the parents, parental authority shall be exercised by the
parent designated by the Court. The Court shall take into account all relevant
In any case, the Court shall order the prosecuting attorney or fiscal assigned to it to take considerations, especially the choice of the child over 7 years of age, unless the parent
steps to prevent collusion between the parties and to take care that the evidence is not chosen is unfit. No child under 7 years of age shall be separated from the mother, unless
fabricated or suppressed. (Art 60, FC) the court finds compelling reasons to order otherwise.

Effects Legal Separation Pendente Lite 6. The offending spouse shall be disqualified from inheriting from the innocent spouse by
1. After the filing of the petition for legal separation, the spouses shall be entitled to live intestate succession. Moreover, Provisions in favor of the offending spouse made in the
separately from each other. (Art 61 par 1, FC) will of the innocent spouse shall be revoked by operation of law.
2. The administration of the absolute community property or conjugal partnership may be
agreed upon in writing between them. NOTES:
3. The court, in the absence of a written agreement between the spouses, shall designate  If, however, the offended spouse executes another will in favor of the offending
either of them or a third person to administer the absolute community or conjugal spouse after the decree of legal separation, the will shall be valid.
partnership property. The administrator appointed by the court shall have the same  The conviction of the wife of adultery does not disqualify her to inherit from the
powers and duties as those of a guardian under the Rules of Court. (Art 61 par 2, FC) offended husband, if there is no decree of legal separation between them.
4. The wife is suable alone without impleading the husband. Accordingly, the guilty spouse shall not be disqualified from inheriting unless the
5. When the consent of one spouse is needed in any transaction, judicial authorization is innocent spouse files a case for legal separation.
necessary.
6. During the pendency of the action for legal separation, the provisions of Article 49 shall 7. Art. 64: the innocent spouse may revoke the donations made by him or her in favor of
likewise apply to the support of the spouses and the custody and support of the common the offending spouse, as well as the designation of the guilty party as a beneficiary in any
children. insurance policy, even if such designation be stipulated as irrevocable.

During the pendency of the action, the Court shall provide for the support of the spouses The revocation shall be recorded in the registry of property in the places where the
and the custody and support of their common children. The court shall give paramount properties are located. Alienations, liens and encumbrances registered in good faith
consideration to the moral and material welfare of said children and their choice of the before the recording of the revocation shall be respected. The revocation of or change in

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Saint Louis University - College of Law
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By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

the designation in any insurance beneficiary shall take effect upon written notification to RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE (Arts 68 – 73)
the insured.
The action to revoke donation must be brought within 5 years from the time the decree of Obligations Of Spouses: FLORM
legal separation has become final.
1. To live together
Reconciliation
The duty to live together includes cohabitation or consortium and sexual intercourse.
This is a mutual agreement of the spouses to resume their marital relationship, thus putting an
end to their marital differences. Spouses are obliged to live together. But such is not absolute. Thus a spouse may be
exempted by the court from living with the other spouse:
Requirements in Case of Reconciliation 1. If the latter should live abroad; or
2. there are other valid and compelling reasons for the exemption; like the following
Should the spouses reconcile, the corresponding joint manifestation under oath duly signed by where the wife may refuse to live with the husband:
them shall be filed with the Court in the same proceeding for legal separation. (Art 65) a. If the place chosen by the husband as family residence is dangerous to her life.
b. If the husband subjects her to maltreatment or abusive conduct or insults,
Effects of reconciliation (Art 66): making common life impossible.
1. The legal separation proceedings, if still pending, shall thereby be terminated in c. If the husband compels her to live with his parents, but she cannot get along
whatever stage. with her mother-in-law and they have constant quarrels.
2. The final decree of legal separation shall be set aside, but the separation of property d. Where the husband continuously carried illicit relations for 10 years with
and any forfeiture of the share of the guilty spouse already effected shall subsist, unless different women and treated his wife roughly and without consideration.
the spouses agree to revive their former property regime. e. Where the husband spent his time in gambling, giving no money, and at the
same time insulting his wife and laying hands on her.
The agreement to revive the former property regime shall be executed under oath and f. If the husband has no fixed residence and lives a vagabond life as a tramp.
shall specify (Art 67): g. When the husband is carrying on a shameful business at home.
a. The properties to be contributed anew to the restored regime. h. If the husband is immoderate or barbaric in his demands for sexual intercourse.
b. Those to be retained as separated properties of each spouse.
c. The names of all their known creditors, addresses and corresponding credits. NOTE: However, such exemption shall not apply if the same is not compatible with the
solidarity of the family.
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 In cases where a husband or a wife abandons the conjugal home without justifiable
named therein. After due hearing, the Court shall take measures to protect the interest of cause, neither the other spouse can compel him or her to come home under the pain of
creditors and such order shall be recorded in the proper registry of property. contempt of court. Cohabitation is a purely personal obligation, and to compel a spouse
to comply with such obligation would be a violation of his/her personal liberty as well as
Notice to creditors: The recording of the order in the registries of property shall not his/her freedom of abode which are guaranteed by the Constitution.
prejudice any creditor not listed or not notified, unless the debtor-spouse has sufficient
separate property to satisfy the creditor’s claim. But the present spouse has the following remedies:
a. To withhold support or ask for support.
In other words, the revival of the old property regime between the parties is without b. To recover moral damages.
prejudice to vested rights already acquired by creditors prior to such revival. In effect, a c. To seek legal separation if proper.
legal lien is created in favor of unsecured creditors. Thus: d. To ask the Court to admonish his wife to return, but she cannot be held in contempt
a. Contractual lien holders retain their liens. in case of non-performance; also, no mandamus or injunction will lie.
b. Creditors without liens are given a legal lien. e. To seek separation of property.
c. In case of insufficiency of property to settle the debts, the future shares of debtor- f. To apply for sole administration of the property.
spouse in the property regime will answer his personal obligations. g. To ask the court for other relief.

NOTES: 2. To observe mutual love, respect and fidelity


Reconciliation has no retroactive effect.
These duties are personal to the spouses and go into their intimate relations, so that they
The order of the court ordering the termination of the legal separation proceeding and the must be performed voluntarily by them. Accordingly, some consequences of the duties
setting aside of the decree of legal separation shall be registered in the proper civil are the following:
registries for the guidance of all interested parties a. The unfaithful spouse may be charged criminally with adultery or concubinage.
(proof of having an illegitimate child is not a proof of concubinage; each act of
adultery is a separate offense)

39 | P a g e
Saint Louis University - College of Law
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By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

b. Sexual infidelity and perversion are also grounds for legal separation, and so is The management of the household shall be the right and the duty of both spouses. The
repeated physical violence or grossly abusive conduct directed against a spouse by expenses for such management shall be paid in accordance with the provisions of
the other, which shows lack of love and respect for the former. Article 70. (Art 71)
c. Both spouses to administer the family property, and they also have joint parental
authority over their minor children, both over their persons and property. 5. To Fix the family domicile
d. If one spouse commits acts which tend to bring danger, dishonor, or injury to the
other, the aggrieved spouse may apply to the Court for relief. In case of disagreement, the court shall decide. (Art 69)

RULE 130, Rules of Evidence on Marriage Privilege Rule and Marital Relief Against Breach Of Duties
Communication Rule
When one of the spouses neglects his or her duties to the conjugal union or commit acts
Disqualification By Reason Of Marriage Or The Marital Disqualification Rule 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.
GENERAL RULE: During the marriage neither spouse ( i.e. the witness spouse) may
testify for or against the other (i.e. the Party spouse) without the consent of the affected Note: Injury contemplated: not economic or financial injury but physical, moral, emotional or
spouse ( i.e. the party spouse). psychological injury.

EXCEPTIONS: Exercise Of Profession/Business (Art 73)


1. In a civil case filed by one against the other. Examples: cases of annulment, legal
separation, support, declaration of mental incompetency, separation of property. General rule: Either spouse may exercise any legitimate profession, occupation, business or
2. In a criminal case for a crime (i) committed by one against the other such as those activity without the consent of the other. The latter may object only on valid, serious and moral
involving physical assault and violence; Violation of RA 9262; economic abuse or grounds.
(ii) against the direct ascendant or descendant of the other. (Problem: If the
husband raped his daughter, can the wife who witnessed the rape testify against the Exception: In case of disagreement, the Court shall decide whether or not:
husband? YES. The husband cannot invoke Marital Disqualification Rule in order to a. The objection is proper.
serve the end of justice) b. Benefit has accrued to the family prior to the objection or thereafter. If the benefit accrued
3. When the reason for the law has ceased. Where the marital and domestic relations prior to the objection, the resulting obligation shall be enforced against the community
are so strained that there is no more harmony to be preserved, nor peace and property. If benefit accrued thereafter, such obligation shall be enforced against the
tranquility which maybe disturbed, the reasons based on such harmony and separate property of the spouse who has not obtained consent (even if redounded to the
tranquility no longer apply. In such cases, the identity of interest disappears and the benefit of the family).
consequent danger of perjury based on identity of interest disappears. (The law
ceases when the reason for the law ceases) Notes: The foregoing provisions shall not prejudice the rights of creditors who acted in good
faith. Creditors in good faith are those who have no knowledge of the objection or no
The Marital Privileged Communication Disqualification Rule (Spousal Privilege) knowledge of absence of consent.

GENERAL RULE: The husband or wife, during or after the marriage, cannot be examined
without the consent of the other as to any communication received in confidence by one PROPERTY RELATIONS BETWEEN SPOUSES
from the other during the marriage.
Marriage settlement/Ante Nuptial Agreement
EXCEPTIONS: Same in the Marital Disqualification Rule.
Definition and Purpose
3. To render mutual help and support
It is the contract entered into by a man and a woman who intend or plan to get married fixing
The spouses are jointly responsible for the support of the family (both spouses and the property regime that will govern their present and future properties during their marriage.
children) and the management of the household. The expenses for such support and The future spouses may, in the marriage settlements, agree upon the regime of absolute
other conjugal obligations shall be paid from: community property, conjugal partnership of gains, complete separation of property or any
a. the community property; other regime. In the absence of a marriage settlement, or when the regime agreed upon is
b. in the absence thereof, from the income or fruits of their separate properties; and void, the system of absolute community property shall govern (Art 75).
c. In case of insufficiency or absence of said income fruits, such obligations shall be
satisfied from their separate properties. (Art. 70, FC) The property relations between husband and wife shall be governed in the following order (Art
74):
4. To Manage the household

40 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

a. Marriage Settlements – agreement of future spouses before the marriage upon the
regime of ACP, CPG, complete separation of property, or any other regime. Any modification thereof shall be in writing, signed by the parties and executed before
b. Family Code – if there is no marriage settlement or when the marriage settlement is void, the celebration of the marriage. They shall not prejudice 3rd persons unless they are
the system of ACP shall govern. registered in the LCR where the marriage contract is recorded as well as in the proper
c. Local Customs (provided not contrary to law, good morals, good customs, public order, registries of property. (Art 77)
and public policy)
2. After Celebration of Marriage
Note: A minor cannot enter into a marriage settlement even with the consent of his/her
parents. Only those who are of legal/majority age (at least 18 years of age) can do so. There must be an order of a competent court in appropriate proceedings. Some
instances where modification is proper are: in case of reconciliation; abandonment; in
Forms and Essential Elements case there is a ground for judicial separation; or in case of joint filing.

1. In writing (Need not be in a public instrument) Governing Law (Art 80)


2. Signed by the parties
3. Executed before the celebration of the marriage (Art 77) In the absence of a contrary stipulation in the marriage settlements, the property relations of
4. To fix the terms and conditions of their property relations the spouses shall be governed by Philippine laws, regardless of the place of the celebration
of the marriage and their residence.
Terms, Conditions and Stipulations
This rule shall not apply:
The future spouses may agree what property regime that will govern their present and future 1. Where both spouses are aliens.
properties. Such terms, conditions and stipulations shall not be contrary to law, morals, good 2. With respect to the extrinsic validity of contracts affecting property not situated in the
customs and public policy Philippines and executed in the country where the property is located.
3. With respect to the extrinsic validity of contracts entered into in the Philippines but
affecting property situated in a foreign country whose laws required different formalities
If the Party to the Marriage Settlement Needs Parental Consent for their extrinsic validity.

If the party executing the settlement needs parental consent, the persons designated in Art.14 Effect if Marriage Does not Take Place (Art 81)
to give consent must be made parties to the agreement (Art 78)
GENERAL RULE: Everything stipulated in the settlements or contracts referred to in
If the Party to Marriage Settlement Under Civil Interdiction consideration of a future marriage, including donations between the prospective spouses
made therein, shall be rendered VOID if the marriage does not take place.
If the party executing the marriage settlement is under civil interdiction or subject to any other
disability (like imbecility), the guardian appointed by a competent court must be made a party REASON: Marriage is a condition precedent to the effectivity of the marriage settlement.
thereto (Art 79) His capacity is restricted by law.
EXCEPTION: Stipulations that do not depend upon the celebration of the marriage shall be
Binding Effect of Marriage Settlement valid (e.g. Acknowledgment by the prospective husband of a natural child in the marriage
settlement and acknowledgment of previous subsisting indebtedness of one to the other).
GENEREAL RULE: Binding only between the parties.
Donations By Reason Of Marriage
EXCEPTION: Binding to 3rd persons IF the marriage settlement is registered with the LCR
where the marriage contract is recorded as well as in the proper Registries Of Property where Donation Propter Nuptias / Donations By Reason Of Marriage - are those which are made
the property is located. (Art 77) before marriage celebration, in consideration of the same, and in favor of one or both of the
FUTURE spouses. (Art 82)
Effectivity of Marriage Settlement
Requisites:
The marriage settlement shall take effect upon the celebration of marriage. 1. Must be made before the celebration of the marriage.
2. Must be made in consideration of the marriage.
Modifications In The Marriage Settlement 3. Must be made in favor of one or both of the future spouses.

1. Before Marriage Donation propter nuptias Ordinary donations


Does not require express Express acceptance is
In order that any modification in the marriage settlements may be valid, it must be made acceptance necessary
before the celebration of the marriage. May include future property Cannot include future property

41 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

provided donation mortis place, since marriage settlements cannot be modified much less revoked after the
causa marriage)
If present property is donated No limit to donation of present
and property regime is not property provided legitimes are Exception: Donation cannot be revoked if the marriage already took place.
absolute community, limited to not impaired
1/5 Donations Of Property With Encumbrance
Grounds for revocation are Grounds for revocation are
found in Art. 86 of FC found in law on donations: Art Donations by reason of marriage of property subject to encumbrance shall be valid. In
760 (birth and reappearance of case of foreclosure of the encumbrance and the property is sold for less than the total
children), Art 764 (non- amount of the obligation secured, the donee shall not be liable for the deficiency. If the
performance of condition) and property is sold for more than the total amount of said obligation, the donee shall be
Art 765 (acts of ingratitude) entitled to the excess.
Governed by the rules on Governed by the ordinary rules
donations except donations of on donations except donations 2. During Marriage (Art 87)
future property which are mortis causa which is
governed by provisions on governed by the formalities of GENERAL RULE: Every donation or grant of gratuitous advantage, direct or indirect,
testamentary succession and wills between the spouses during the marriage shall be VOID. The prohibition shall also apply
the formalities of wills to person living together as husband and wife without a valid marriage (see Matabuena v.
Cervantes, 38 SCRA 284).
May a Marriage Settlement Contain a Donation Propter Nuptias? If yes, in what form?
REASONS:
YES. There is no prohibition. As to what form, follow the rules on ordinary donations. a. To prevent the weaker spouse form being influenced by the stronger spouse,
whether by abuse of affection or by threats or violence.
Who can Donate in Donation Propter Nuptias b. To protect creditors.
c. To prevent an indirect modification of the marriage settlement during the marriage.
Any of the future spouses in favor of the other OR by a 3rd person in favor of one or both of the
future spouses. EXCEPTIONS:
a. moderate gifts (and beneficiary in an insurance policy) which the spouses may give
Prohibition against Donation to Each Other each other on the occasion of any family rejoicing.
b. Donation mortis causa.
1. Before Marriage (Art 84, FC)

GENERAL RULE: cannot donate to each other in their marriage settlements more than Effectivity / Commencement of Donation Propter Nuptias
1/5 of their present property. Any excess shall be considered void.
It shall take effect upon the celebration of marriage.
Requisites:
a. Made before the celebration of marriage Who may question validity of donation?
b. In celebration of marriage
c. In favor of one or both future spouses Only a person prejudiced thereby, like the donor or his heirs. An heir may question the
donation made on the ground of inofficiousness if it can impair his legitime.
EXCEPTION: If they are governed by ACP.
Revocation of Donation; Grounds and Prescribed Period to Revoke (Art 86)
Donation of future property
Grounds Prescriptive Period
While donations of future property are not allowed in ordinary donations, they are allowed If the marriage is not 5 years (Art 1149, NCC) from
in donations propter nuptias. Donations propter nuptias of future property shall be celebrated (except donations the time marriage is not
governed by the provisions on testamentary succession and the formalities of wills. contained in the marriage solemnized on the fixed date.
settlement which are
Is the will which contains a donation propter nuptias revocable? automatically rendered void if
the marriage does not take
General Rule: Yes, it is revocable. (unlike in donations of present properties in the place)
marriage settlements which cannot be revoked except if the marriage does not take If judicially declared void for By operation of law if done-
non-compliance with Art 40 in spouse contracted subsequent

42 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

rel to Arts 52-53 and Art 44 void marriage in bad faith ABSOLUTE COMMUNITY OF PROPERTY (ACP) – there is merger of all the properties of the
husband and the wife owned by them at the time of the celebration of the marriage or those
If both of them are in good acquired thereafter.
faith, 5 years from the finality of
judicial declaration of nullity When Mandatory
If judicially declared void on 5 years from the finality of
grounds other than Art 40 in judicial declaration of nullity When there is no marriage settlement or when there is but it is void. This is so because it is
rel to Arts 52-53 and Art 44 more in keeping with Filipino culture.
When the marriage takes 5 years from the time of
place without the consent of knowledge that the needed Commencement of ACP
parents or guardian as consent was not obtained by
required by law the party/parties Art. 88. The absolute community of property between spouses shall commence at the precise
When the marriage is 5 years from finality of decree moment that the marriage is celebrated. Any stipulation, express or implied, for the
annulled, and the donee (if we follow the rule that Art commencement of the community regime at any other time shall be void.
acted in bad faith 86[3], the latest provision shall
prevail over Art 43[3], the prior Effect of Waiver of Rights
provison)
1. Before the Marriage – Waiver is valid.
If we follow Art 43[3] in keeping
with the spirit of the law, the 2. During the Marriage
donation is revoked by
operation of law. GENERAL RULE: Art. 89. No waiver of rights, shares and effects of the absolute
Upon legal separation, the 5 years from the time the community of property during the marriage can be made.
donee being the guilty decree of legal separation has
spouse become final EXCEPT when EXCEPT: In case of judicial separation of property.
the ground is sexual infidelity in
the form of adultery and When the waiver takes place upon a judicial separation of property, or after the marriage
concubinage because in the has been dissolved or annulled, the same shall appear in a public instrument and shall be
latter case, the donation is recorded as provided in Article 77. The creditors of the spouse who made such waiver
void. may petition the court to rescind the waiver to the extent of the amount sufficient to cover
If it is with a resolutory 5 years from the happening of the amount of their credits.
condition and the condition is the condition
complied with 3. After Dissolution of Marriage – Waiver is valid for then it is considered assignment of
If donation was made by the rights, interests, shares, and effects in the absolute community of property.
spouse in favor of the other, no
prescription because under Art Co-Ownership
1109, prescription does not run
between husband and wife, Art. 90. The provisions on co-ownership shall apply to the absolute community of property
even though there be between the spouses in all matters not provided for in this Chapter.
separation of property agreed
upon in the marriage ACP is a special type of co-ownership as the spouses are co-owners of their communal
settlement. properties.
When the donee has Art. 765: 1 year from donor’s
committed an act of knowledge of the fact of Property Included
ingratitude ingratitude
Art. 91. Unless otherwise provided in this Chapter or in the marriage settlements, the
community property shall consist of all the property owned by the spouses at the time of the
Absolute Community of Property celebration of the marriage or acquired thereafter.

Concept Also, winnings in gambling are included.

NOTE: Art. 93. Property acquired during the marriage is presumed to belong to the
community, unless it is proved that it is one of those excluded therefrom.

43 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

Such debts shall be included for the following reasons:


Registration of property in the name of “X married to Y” is no proof that the properties were a. if the assets cannot be made liable, creditors who have extended credit relying on
acquired during their marriage. The property could have been acquired by X while he was still the existence of such assets would be unduly prejudiced.
a bachelor but registered after his marriage. Nonetheless, the presumption is not rebutted by b. Debts contracted during the marriage are certainly more pressing than those
the mere fact that the deed of sale or certificate of title is in the name of only one spouse. contracted before such marriage.

Property Excluded (Art 92) It is, however, necessary, as a matter of justice, that all or most of such conjugal
assets should have been acquired through the effect or industry of the spouse-
1. Property excluded from ACP in the marriage settlement. debtor. Otherwise, Art 122 of the FC shall be applied literally and the ACP cannot
then be held liable.
2. Property acquired during the marriage by gratuitous title by either spouse, and the fruits
as well as the income thereof, if any, UNLESS it is expressly provided by the donor, (4) All taxes, liens, charges and expenses, including major or minor repairs, upon the
testator or grantor that they shall form part of the community property. community property.

Note: Donation propter nuptias made by 1 future spouse in favor of the other shall not (5) All taxes and expenses for mere preservation made during marriage upon the separate
form part of the ACP because the property donated was acquired during the marriage property of either spouse used by the family.
(the donation propter nuptias took affect upon celebration of marriage) by gratuitous title,
thus separate property of the done. (6) Expenses to enable either spouse to commence or complete a professional or vocational
course, or other activity for self-improvement.
3. Property for personal and exclusive use of either spouse. However, jewelry shall form
part of the community property. (7) Antenuptial debts of either spouse insofar as they have redounded to the benefit of the
e.g. clothes, shoes, eyeglasses and the like family.

4. Property acquired before the marriage by either spouse who has LEGITIMATE (8) The value of what is donated or promised by both spouses in favor of their common
DESCENDANTS by a former marriage, and the fruits as well as the income, if any, of legitimate children for the exclusive purpose of commencing or completing a
such property. professional or vocational course or other activity for self-improvement.

REASON: To protect the presumptive legitimes of the legitimate descendants. The rule (9) Antenuptial debts of either spouse other than those falling under paragraph (7) of this
will not apply if the descendants are illigetimate. Article, the support of illegitimate children of either spouse, and liabilities incurred by
either spouse by reason of a crime or a quasi-delict, in case of absence or insufficiency
Charges and Obligations of the Absolute Community of the exclusive property of the debtor-spouse, the payment of which shall be
considered as advances to be deducted from the share of the debtor-spouse upon
Art. 94. The absolute community of property shall be liable for: (SADD-E2VAT2) liquidation of the community.

(1) The support of the spouses, their common children, and legitimate children of either (10) Expenses of litigation between the spouses unless the suit is found to be groundless.
spouse; however, the support of illegitimate children shall be governed by the provisions
of this Code on Support. NOTES:
1. If the community property is insufficient to cover the foregoing liabilities, except those
(2) All debts and obligations contracted during the marriage by the designated administrator- falling under paragraph (9), the spouses shall be solidarily liable for the unpaid balance
spouse for the benefit of the community, or by both spouses, or by one spouse with the with their separate properties.
consent of the other.
2. Art. 95. Whatever may be lost during the marriage in any game of chance, betting,
(3) Debts and obligations contracted by either spouse without the consent of the other to the sweepstakes, or any other kind of gambling, whether permitted or prohibited by law,
extent that the family may have been benefited. shall be borne by the loser and shall not be charged to the community but any winnings
therefrom shall form part of the community property.
What if the obligation contracted did not redound to the benefit of the Family? Is the ACP
still liable? The winnings derived from a ticket gratuitously given to a spouse shall not form part of
According to Jurado, yes, the ACP is still liable. It is submitted that the provision of the community property since such is considered as donation, thus excluded from the
Art 122 of the FC is applicable by analogy, but subject to the following requisites: first, ACP as well as the fruits and income thereof.
lack of exclusive property of the spouse who contracted the obligation; and second,
satisfaction of the basic obligations under Art 94 of the FC. Once the obligation has been Ownership, Administrative, Enjoyment and Disposition of the Community Property
paid, the latter spouse becomes a debtor of the ACP and at the time of the liquidation, he
shall be charged for what has been paid.

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

GENERAL RULE: Art. 96. The administration and enjoyment of the community property shall
belong to both spouses JOINTLY. (1) Upon the death of either spouse;

EXCEPTIONS: NOTE: After the dissolution comes the liquidation and partition. The surviving spouse
1. In case of disagreement, the husband's decision shall prevail. must liquidate the ACP within 1 year from death of the deceased. After the lapse of 1
year without liquidation, any disposition involving the community property shall be void.
Remedies in Case of Disagreements
(2) When there is a decree of legal separation;
Wife’s recourse is go to court for proper remedy, which must be availed of within 5 years
from the date of the contract implementing such decision. (3) When the marriage is annulled or declared void (only in cases falling under Art 40 in rel
to Arts 52 and 53);
2. In the event that one spouse is incapacitated or otherwise unable to participate in the
administration of the common properties, the other spouse may assume sole powers of (4) In case of judicial separation of property during the marriage under Article 134 to 138.
administration.
(5) Termination of a subsequent marriage by filing an affidavit of reappearance under Art 41,
These powers do not include: ACP of the subsequent marriage is dissolved. (Art 43)

Disposition or encumbrance without authority of the court or the written consent of Effects of Separation De Facto
the other spouse.
SEPARATION DE FACTO - The spouses are no longer living together. Their cohabitation or
In the absence of such authority or consent, the disposition or encumbrance shall be common life under the same roof is terminated, although there is no legal separation between
VOID. However, the transaction shall be construed as a continuing offer on the part of them.
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 Art. 100. The separation in fact between husband and wife shall not affect the regime of
withdrawn by either or both offerors. absolute community except that:

Disposition by Will (1) The spouse who leaves the conjugal home or refuses to live therein, without just cause,
shall not have the right to be supported;
Art. 97. Either spouse may dispose by will of his or her interest (not specific property
because of co-ownership) in the community property. (2) When the consent of one spouse to any transaction of the other is required by law, judicial
authorization shall be obtained in a summary proceeding;
Donation of Communal Property, Prohibited
(3) In the absence of sufficient community property, the separate property of both spouses
GENERAL RULE: Art. 98. Neither spouse may donate any community property without shall be solidarily liable for the support of the family. The spouse present shall, upon
the consent of the other. (This rule applies to commom-law spouses) proper petition in a summary proceeding, be given judicial authority to administer or
encumber any specific separate property of the other spouse and use the fruits or
If with the consent of the other, the donation is valid subject to revocation or reduction if it proceeds thereof to satisfy the latter's share.
turns out to be inofficious or if it infringes the legitimes of compulsory heirs.
Liquidation of the Absolute Community Assets and Liabilities, Procedure
REASON: To protect the spouse from the prodigality of a reckless or faithless spouse.
Art. 102. Upon dissolution of the absolute community regime, the following procedure shall
EXCEPTIONS: apply:
Either spouse may, without the consent of the other:
a. make moderate donations from the community property for charity; 1. An inventory shall be prepared, listing separately all the properties of the absolute
b. make moderate donations from the community property on occasions of family community and the exclusive properties of each spouse.
rejoicing or family distress.
2. The debts and obligations of the absolute community shall be paid out of its assets. In
NOTE: What is moderate depends upon the financial and social standing of the family case of insufficiency of said assets, the spouses shall be solidarily liable for the unpaid
and must not at all substantially affect the value of the communal assets. balance with their separate properties in accordance with the provisions of the second
paragraph of Article 94.
Dissolution and Liquidation of Absolute Community Regime, Grounds (Art. 99)
3. Whatever remains of the exclusive properties of the spouses shall thereafter be delivered
The absolute community terminates: to each of them.

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

CONJUGAL PARTNERSHIP OF GAINS – it is a partnership established through the marriage


4. The net remainder of the properties of the absolute community shall constitute its net of a man and a woman who as partners place in a common fund – (a) the proceeds, products,
assets, which shall be divided equally between husband and wife unless a different fruits and income from their separate properties; (b) those acquired by either or both spouses
proportion or division was agreed upon in the marriage settlements, or unless there has through their efforts; or (3) those acquired by chance, and, upon dissolution of the marriage or
been a voluntary waiver of such share provided in this Code. For purpose of computing of the partnership, the net gains or benefits obtained by either or both spouses shall be
the net profits subject to forfeiture in accordance with Articles 43, No. (2) and 63, No. divided equally between them, unless otherwise agreed in the marriage settlements. (Art. 106)
(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. Distinctions between Conjugal Partnership of Gains & Absolute Community Property
5. The presumptive legitimes of the common children shall be delivered upon partition, in Basis CPG ACP
accordance with Article 51. As to Basis Exclusive property All properties
6. Unless otherwise agreed upon by the parties, in the partition of the properties, the of spouses are kept acquired by the
conjugal dwelling and the lot on which it is situated shall be adjudicated to the spouse entirely separate spouses even
with whom the majority of the common children choose to remain. Children below the age and distinct from before marriage
of seven years are deemed to have chosen the mother, unless the court has decided the benefits which become community
otherwise. In case there in no such majority, the court shall decide, taking into they acquired property. The basis
consideration the best interests of said children. during the is essentially trust
marriage. This is and confidence
Liquidation of ACP in case Termination of Marriage is by Death not primarily based between the
on mutual trust and spouses which will,
Art. 103. Upon the termination of the marriage by death: confidence of the thus, foster unity
a. The community property shall be liquidated in the same proceeding for the settlement of spouses and does between them.
the estate of the deceased. not enhance the
b. If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the presumption of
community property either judicially or extra-judicially within 1 year from the death of the solidarity between
deceased spouse. If upon the lapse of 1 year period, no liquidation is made, any them.
disposition or encumbrance involving the community property of the terminated marriage As to Retention of Each spouse Spouses do not
shall be void. Property retains his/her retain any property
properties acquired acquired before
Effects if the ACP is Not Liquidated After 1 Year from Death of Deceased Spouse prior to the marriage and all
marriage but the properties they own
fruits and income of at the time of
a. Any disposition or encumbrance involving the community property of the terminated such properties marriage become
marriage shall be void. form part of the part of the
b. Should the surviving spouse contract a subsequent marriage without compliance with the conjugal properties community
foregoing requirements, a mandatory regime of complete separation of property shall during marriage. property.
govern the property relations of the subsequent marriage. (Art 103, FC) As to Dissolution Exclusive There are no
properties of the exclusive properties
Liquidation of ACP of 2 or more Marriages Contracted by the Same Person before the spouses are to be returned and
Effectivity of FC returned upon upon dissolution of
dissolution of the the ACP, the
Whenever the liquidation of the community properties of two or more marriages contracted by partnership. spouses or their
the same person before the effectivity of this Code is carried out simultaneously, the following heirs equally divide
procedure shall be applied in the absence of agreement of all the heirs: the net remainder
a. The respective capital, fruits and income of each community shall be determined upon of the properties.
such proof as may be considered according to the rules of evidence. As to method of Entails identification Easier to liquidate
b. In case of doubt as to which community the existing properties belong, the same shall be liquidation and return of since its net
between the different communities in proportion to the capital and duration of each. exclusive properties remainder is merely
of the spouses. divided equally
Conjugal Partnership of Gains between the
spouses or their
Concept heirs.

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

Gains the partnership is made without


Distinctions between Conjugal Partnership of Gains & Ordinary Partnership dissolved. dissolution of the
partnership.
Basis Conjugal Ordinary
Partnership Partnership Distinctions between Conjugal Partnership of Gains & Co-Ownership
Creation Created by Created by Basis CPG Co-Ownership
operation of law agreement of the Creation Created by Created by law,
parties operation of law contract,
Governing law Generally governed Generally governed succession,
by law by stipulations of fortuitous event, or
the parties occupancy
Commencement At the moment of On the date agreed Purpose Not created for Common
celebration of upon by the parties profits but regulates enjoyment of the
marriage property relations of thing or right owned
Legal Personality Not a juridical It is a juridical husband and wife in common
person person with during the marriage
personality Management Right of Vested in the co-
separate and management is owners who
distinct from the joint; in case of represent the
personality of the disagreement, controlling interest
partners decision of
Purpose Not created for Created for profits husband prevails
profits but regulates without prejudice to
property relations of the wife’s remedy
husband and wife to question the
during the marriage decision.
Management Right of Rights of Division of profits Equally divided Shares of co-
management is management are irrespective of the owners shall be
joint; in case of the same to all as amount of proportional to their
disagreement, individual partners contribution unless respective interest
decision of except when one or otherwise agreed
husband prevails more partners are upon in the
without prejudice to designated as marriage settlement
the wife’s remedy managers. Disposition of Spouses cannot Co-owners can
to question the shares dispose of their dispose of their
decision. shares even with shares even
Division of gains Equally divided Depends upon the the consent of the without the consent
irrespective of the agreement of the spouses of the other co-
amount of parties; in the owners
contribution unless absence thereof Power to demand No power to Each co-owner may
otherwise agreed upon the amount of partition demand partition demand anytime
upon in the capital contributed save by virtue of the partition of the
marriage settlement by each partner judicial order thing owned in
Causes for Death of either Death, insolvency; common
dissolution party; decree of civil interdiction; Effect of death Partnership is Existence of co-
legal separation; termination of the dissolved ownership is not
annulment or term; express will of affected
declaration of nullity any partner; and Dissolution Different from co- Different form CPG
of marriage; judicial others listed in Arts ownership
separation of 1830 and 1831.
property during When Applicable
marriage
Liquidation of Net No liquidation until Liquidation may be

47 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

1. Art. 105. In case the future spouses agree in the marriage settlements that the regime Whenever an amount or credit payable within a period of time belongs to one of the
of conjugal partnership gains shall govern their property relations during marriage. spouses, the sums which may be collected during the marriage in partial payments or by
2. When CPG were already established between spouses before the effectivity of the FC, installments on the principal shall be the exclusive property of the spouse. However,
without prejudiced to vested rights already acquired in accordance with the NCC or other interests falling due during the marriage on the principal shall belong to the conjugal
laws as provided in Art 256 of the FC. partnership. (Art 119)

Applicability of Ordinary Partnership Rules REASON: Interest is considered a fruit derived from a particular property.

Art. 108. The conjugal partnership shall be governed by the rules on the contract of c. The share of either spouse in the hidden treasure which the law awards to the finder or
partnership in all that is not in conflict with what is expressly determined in this Chapter or by owner of the property where the treasure is found.
the spouses in their marriage settlements.
Hidden treasure found by the spouses on the property of either of them is conjugal.
The Rules of Court on the administration of estates of deceased persons shall be observed in
the appraisal and sale of property of the conjugal partnership, and other matters which are not d. Those acquired through occupation such as fishing or hunting.
expressly determined by law.
e. Livestock existing upon the dissolution of the partnership in excess of the number of each
Note: The provisions of CPG in the Family Code shall be of supplementary application to the kind brought to the marriage by either spouse.
agreement of the parties. (Art 105)
f. Those which are acquired by chance such as winnings from gambling or betting.
Immutability of Matrimonial Property Regime However, losses therefrom shall be borne exclusively by the loser-spouse.

The provisions of the Chapter on CPG shall also apply to conjugal partnerships of gains g. Property bought on installments paid partly from exclusive funds of either or both
already established between spouses before the effectivity of FC, without prejudice to vested spouses and partly from conjugal funds belongs to the conjugal partnership if such
rights already acquired in accordance with the Civil Code or other laws, as provided in Article ownership was vested during the marriage.
256. In other words, the original regime of property relations is maintained.
Belongs to the buyer or buyers if full ownerships was vested before the marriage.
Commencement of the CPG - same as in ACP
In either case, any amount advanced by the partnership or by either or both spouses
Effect of Waiver of Rights, interest, share or effects; rights of creditor as to such waiver shall be reimbursed by the owner or owners upon liquidation of the partnership. (Art 118)
- same as in ACP

Property Included h. The ownership of improvements, whether for utility or adornment, made on the separate
property of the spouses at the expense of the partnership or through the acts or efforts of
The following are conjugal partnership properties (Art 117): either or both spouses shall pertain to the conjugal partnership, or to the original owner-
spouse, subject to the following rules:
By Direct Acquisition
a. When the cost of the improvement made by the conjugal partnership AND any
a. Those obtained from the labor, industry, work or profession of either or both of the resulting increase in value are more than the value of the property at the time of the
spouses. improvement – the entire property of one of the spouses shall belong to the
conjugal partnership, subject to reimbursement of the value of the property of the
Teacher’s gratuity under special law, being remuneratory, is not conjugal. owner-spouse at the time of the improvement (REVERSE ACCESSION);
b. If improvement is lesser than the value of the property at the time of improvement -
b. The fruits, natural, industrial, or civil due or received during the marriage from the said property shall be retained in ownership by the owner-spouse, likewise subject
common property, as well as the net fruits from the exclusive property of each spouse to reimbursement of the cost of the improvement (ACCESSION).
(net fruits – after deducting the expenses for administration and preservation). c. In either case, the ownership of the entire property shall be vested upon the
reimbursement, which shall be made at the time of the liquidation of the conjugal
If fruits were pending on separate property of spouse at the time of the marriage, the partnership. (Art 120) Thus, the property never ceased to be paraphernal property
harvest collected during the marriage is conjugal, and the conjugal partnership is not until reimbursement.
bound to pay the expenses of cultivation to the spouse who owns the property from which
the fruits were harvested, because the right of the conjugal partnership is a real right of Hence, prior to reimbursement at the time of liquidation, the conjugal partnership
usufruct. Therefore, the law on usufruct shall apply. may use both the land and improvement, not as an owner but in the exercise of a
usufruct.
NOTE:

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

By Substitution
THUS, if the benefits are gratuitous, they are generally considered to be exclusive
i. Those acquired by onerous title during the marriage at the expense of the common fund, properties of the spouse, and if they are onerous, they are generally considered to be
whether the acquisition be for the partnership, or for only one of the spouses (even place conjugal.
in the name of one spouse).
ANNUITY – The aleatory contract of life annuity binds the debtor to pay an annual
By Presumption pension or income during the life of one or more determine persons in consideration of a
capital consisting of money or other property whose ownership is transferred to him at
j. Art. 116. All property acquired during the marriage, whether the acquisition appears to once with the burden of income. (Art 2021, NCC)
have been made, contracted or registered in the name of one or both spouses, is
presumed to be conjugal unless the contrary is proved. He who constitutes an annuity by gratuitous title upon his property, may provide at the
time the annuity is established that the same shall not be subject to execution or
It is a condition sine qua non for the operation of the presumption to prove first the attachment on account of the obligations of the recipient of the annuity. IF the annuity
acquisition of property was made during the marriage. was constituted in fraud of creditors, the latter may ask for the execution or attachment of
the property. (Art 2026, NCC)
Property Excluded/Exclusive Property of Each Spouse
The right to the annuity is at all times considered to be exclusive property of the spouse.
Art. 109. The following shall be the exclusive property of each spouse:
GRATUITY – this is something voluntarily given out of pure liberality, thus, exclusive
By Direct Acquisition property of the beneficiary.

1. That which is brought to the marriage as his or her own. PENSIONS – given to the recipient for services rendered, thus necessarily classifies as
conjugal.
A property purchased before the marriage and fully paid during the marriage, remains to
be separate property. This notwithstanding the fact that there was registration of the Special rules on life insurance:
property in the name of the owner spouse with the other spouse as co-owner. The
registration of the latter merely creates a trust. If beneficiary is the Insured Himself

2. That which each brought to the marriage as his or her own Since a contract of insurance in onerous in character, if the beneficiary is the insured
himself or his estate, the character of the proceeds will depend on the character of the
Acquisitions include succession, devise or legacy, donation, gratuity, remission, free premiums paid:
patent, unearned increment (increase in the value of the property without any effort) and
other modes where no recompense is involve. a. If the premiums were paid with conjugal funds, the proceeds are conjugal.

The law does not include fruits and income of property received by gratuitous title as b. If the premiums were paid with separate funds, the proceeds are separate.
separate property. This is different from ACP.
c. If the premiums were paid partly with conjugal funds, and partly with separate funds,
Notes: the proceeds will be partly conjugal and partly separate.

Art. 113. Property donated or left by will to the spouses, jointly and with designation of Tolentino believes, however, that we should follow the rule in Louisiana that if the policy
determinate shares, shall pertain to the donee-spouses as his or her own exclusive of the insurance was taken out when the insured was still single, the proceeds thereof
property, and in the absence of designation, share and share alike, without prejudice to should go to the insured’s separate estate even if the premiums were paid out of conjugal
the right of accretion when proper (when not prohibited by the donor). (See Art 753, funds, but the conjugal partnership should be refunded by the insured the amounts that it
NCC) had paid as premiums.

Art. 114. If the donations are onerous, the amount of the charges shall be borne by the If the other spouse is the beneficiary
exclusive property of the donee spouse, whenever they have been advanced by the a. An insurance taken by one spouse on his own life and with the other spouse as
conjugal partnership of gains. (the property donated though onerous is still considered beneficiary belongs to the latter even if the premiums are paid out of conjugal funds,
exclusive property of the done-spouse) but the beneficiary-spouse, who is deemed a donee of the premiums paid, must
return one-half of the premiums to the conjugal partnership.
Art. 115. Retirement benefits, pensions, annuities, gratuities, usufructs and similar b. When the spouses are jointly insured in a single policy, the proceeds to be paid to
benefits shall be governed by the rules on gratuitous or onerous acquisitions as may be the surviving spouse, the survivor gets the insurance proceeds even if no obligation
proper in each case. to return any part of the premiums to the conjugal partnership, because there is

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

deemed to be reciprocal donations thereof, which in effect constitute aleatory  Fines and pecuniary indemnities arising from crime and quasi-delict – excluded from
onerous contracts. CPG but incorporated in Art 122.
c. When the insurance is taken by a third person with a spouse as beneficiary, the
latter owns the insurance proceeds as it is deemed a gift to him or her. Art. 122. The payment of personal debts contracted by the husband or the wife before or
d. If the insurance is taken by the wife on the life of the husband or vice versa and the during the marriage shall not be charged to the conjugal properties partnership EXCEPT
premiums are paid out of conjugal funds, the proceeds are conjugal property. insofar as they redounded to the benefit of the family.
e. If the beneficiary is somebody other than the insured or his estate, the beneficiary is
the owner of the insurance indemnity regardless of whether or not the premiums Neither shall the fines and pecuniary indemnities imposed upon them be charged to the
were paid out of the insured’s separate property or the conjugal funds. partnership.
f. If the insured made his estate as the beneficiary and the premiums were paid by
conjugal funds, the proceeds of the insurance constitute conjugal property. HOWEVER, the payment of personal debts contracted by either spouse before the marriage,
that of fines and indemnities imposed upon them, as well as the support of illegitimate
children of either spouse, may be enforced against the partnership assets after the
By Substitution responsibilities enumerated in the preceding Article (Art 121) have been covered, if the
spouse who is bound should have no exclusive property or if it should be insufficient; but at
3. That which is acquired by right of redemption (if conjugal fund or the fund of the other the time of the liquidation of the partnership, such spouse shall be charged for what has been
spouse is used to redeem, it must be reimbursed), by barter or by exchange (not sale paid for the purpose above-mentioned.
because such is acquired by onerous title) with property belonging to only one of the
spouses. Art. 123. Whatever may be lost during the marriage in any game of chance or in betting,
sweepstakes, or any other kind of gambling whether permitted or prohibited by law, shall be
4. That which is purchased with exclusive money of the wife or of the husband. borne by the loser and shall not be charged to the conjugal partnership but any winnings
therefrom shall form part of the conjugal partnership property. (Same in ACP)
Note: The exclusive property of the husband is otherwise known as capital. While the
exclusive property of the wife is known as paraphernal property. Ownership, Possession, Enjoyment and Administration of CPG

Ownership, Administration, Enjoyment And Disposition of Exclusive Property GENERAL RULE: Art. 124. The administration and enjoyment of the conjugal partnership
shall belong to both spouses jointly.
Art. 110. The spouses retain the ownership, possession, administration and enjoyment of
their exclusive properties. (Thus, a spouse cannot be restrained from selling his/her exclusive EXCEPTIONS:
property even if such sale would deprive the conjugal partnership of its fruits) a. In case of disagreement, the husband's decision shall prevail.

Either spouse may, during the marriage, transfer the administration of his or her exclusive Remedy in Case of Disagreement
property to the other (even to a stranger without the consent of the other) by means of a
public instrument, which shall be recorded in the registry of property of the place the Recourse to the court by the wife for proper remedy, which must be availed of within 5
property is located. years from the date of the contract implementing such decision.

Art. 111. A spouse may mortgage, encumber, alienate or otherwise dispose of his or her b. In case Sole Administration is Permitted
exclusive property, without the consent of the other spouse, and appear alone in court to
litigate with regard to the same. In the event that one spouse is incapacitated or otherwise unable to participate in the
administration of the conjugal properties, the other spouse may assume sole powers of
Art. 112. The alienation of any exclusive property of a spouse administered by the other administration.
automatically terminates the administration over such property and the proceeds of the
alienation shall be turned over to the owner-spouse. These powers do not include

Limitation: In case of separation de facto, the spouse present may be given authority by the Disposition or encumbrance without authority of the court or the written consent of
court to administer any separate property of the absent spouse. In case there is authority, the the other spouse.
absent spouse cannot revoke the judicially approved administration, neither he can alienate
his property without the consent of the administrator spouse or approval of the court. (Art 127) In the absence of such authority or consent, the disposition or encumbrance shall be
VOID. HOWEVER, the transaction shall be construed as a continuing offer on the part
Charges Against/Obligations of CPG 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
Art. 121. The same as in ACP, except: the offer is withdrawn by either or both offerors.
 Support for illegitimate children - excluded from CPG.

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

Donation
Art. 125. Neither spouse may donate any conjugal partnership property without the (7) The net remainder of the conjugal partnership properties shall constitute the profits, which
consent of the other. However, either spouse may, without the consent of the other, make shall be divided equally between husband and wife, unless a different proportion or
moderate donations from the conjugal partnership property for charity or on occasions of division was agreed upon in the marriage settlements or unless there has been a
family rejoicing or family distress. voluntary waiver or forfeiture of such share as provided in this Code.

Dissolution of Conjugal Partnership Regime (8) The presumptive legitimes of the common children shall be delivered upon the partition in
accordance with Article 51.
Art. 126. The conjugal partnership terminates:
(9) In the partition of the properties, the conjugal dwelling and the lot on which it is situated
1. Upon the death of either spouse; shall, unless otherwise agreed upon by the parties, be adjudicated to the spouse with
2. When there is a decree of legal separation; whom the majority of the common children choose to remain. Children below the age of
3. When the marriage is annulled or declared void; or seven years are deemed to have chosen the mother, unless the court has decided
4. In case of judicial separation of property during the marriage under Articles 134 to 138. otherwise. In case there is no such majority, the court shall decide, taking into
consideration the best interests of said children. (181a, 182a, 183a, 184a, 185a)
Effects of Separation De Facto – Same in ACP (Art 127)
Art. 130. Upon the termination of the marriage by death, the conjugal partnership property
Separation in fact v. Abandonment shall be liquidated in the same proceeding for the settlement of the estate of the deceased.
Separation de facto is the termination of the cohabitation or common life of the spouses
under the same roof, but the spouses might still be complying with their mutual duty of If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the
support, as well as their duty to support and maintain the children. Abandonment is not conjugal partnership property either judicially or extra-judicially within 1 year from the death of
mere separation de facto but implies an intention never to return to the conjugal home the deceased spouse. If upon the lapse of the 1 year period no liquidation is made, any
and without providing for the needs and maintenance of one’s family. disposition or encumbrance involving the conjugal partnership property of the terminated
marriage shall be void.
Abandonment in CPG, Concept – Same in ACP (Art 128)
Should the surviving spouse contract a subsequent marriage without compliance with the
Procedure in Liquidation - Same as Absolute Community of Property (Arts 129-133) foregoing requirements, a mandatory regime of complete separation of property shall govern
the property relations of the subsequent marriage.
Art. 129. Upon the dissolution of the conjugal partnership regime, the following procedure
shall apply: Art. 131. Whenever the liquidation of the conjugal partnership properties of two or more
marriages contracted by the same person before the effectivity of this Code is carried out
(1) An inventory shall be prepared, listing separately all the properties of the conjugal simultaneously, the respective capital, fruits and income of each partnership shall be
partnership and the exclusive properties of each spouse. determined upon such proof as may be considered according to the rules of evidence. In case
of doubt as to which partnership the existing properties belong, the same shall be divided
(2) Amounts advanced by the conjugal partnership in payment of personal debts and between the different partnerships in proportion to the capital and duration of each.
obligations of either spouse shall be credited to the conjugal partnership as an asset
thereof. Art. 132. The Rules of Court on the administration of estates of deceased persons shall be
observed in the appraisal and sale of property of the conjugal partnership, and other matters
(3) Each spouse shall be reimbursed for the use of his or her exclusive funds in the which are not expressly determined in this Chapter.
acquisition of property or for the value of his or her exclusive property, the ownership of
which has been vested by law in the conjugal partnership. Art. 133. From the common mass of property support shall be given to the surviving spouse
and to the children during the liquidation of the inventoried property and until what belongs to
(4) The debts and obligations of the conjugal partnership shall be paid out of the conjugal them is delivered; but from this shall be deducted that amount received for support which
assets. In case of insufficiency of said assets, the spouses shall be solidarily liable for the exceeds the fruits or rents pertaining to them.
unpaid balance with their separate properties, in accordance with the provisions of
paragraph (2) of Article 121. Problem: Determine whether the following properties are included in the ACP or CPG with the
presumption that the marriage between the Husband and Wife was validly entered into in
(5) Whatever remains of the exclusive properties of the spouses shall thereafter be delivered 1990.
to each of them.
ACP CPG
(6) Unless the owner had been indemnified from whatever source, the loss or deterioration of Parcel of land Yes. No. If payable on installment
movables used for the benefit of the family, belonging to either spouse, even due to purchased in 1985 and still unpaid during the
fortuitous event, shall be paid to said spouse from the conjugal funds, if any. marriage, it depends when the

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

title/ownership is vested subject Sale is void in its entirety. The nullity does not extend to the share of the other spouse who did
to the right of reimbursement. give consent and valid as to the share of the other who did not obtain the required consent.
Rental income of Yes. Yes. Net income during the The sale is entirely void.
the parcel of land at marriage.
10K per month Property (ACP/CPG) executed as security for the obtained loan without the consent of
Parcel of land Yes. No. Exclusive property of H. the other spouse to be used as capital for business.
inherited by H in
1988. Encumbrance is valid provided there must be proof of benefit redounded to the family.
Shares of stocks Yes. No.
registered under
W’s name in 1989. Separation of Property
Stock dividends at Yes. Yes. Acquired during the
10K per year marriage. Voluntary Separation of Property
House and Lot in Yes. Yes.
the name of both During the Marriage
spouses acquired
in 1995 Art. 134. In the absence of an express declaration in the marriage settlements, the
Condo unit in the Yes. It depends upon the source of separation of property between spouses during the marriage shall not take place except by
name of H acquired fund. If out of the conjugal fund, judicial order. Such judicial separation of property may either be voluntary or for sufficient
in 2000 it belongs to CPG. Ownership is cause.
not acquired by registration but
by law. If out of exclusive fund Before the Marriage
of the husband, condo is his
exclusive property. If condo is Art. 143. Should the future spouses agree in the marriage settlements that their property
worth 5M, 3M out of H property relations during marriage shall be governed by the regime of separation of property, the
and the 2M is taken out from provisions of this Chapter shall be suppletory.
CPG. In such case only 2M
belongs to the CPG. Art. 144. Separation of property may refer to present or future property or both. It may be
total or partial. In the latter case, the property not agreed upon as separate shall pertain to
Parcel of land No. No.
inherited by W in the absolute community.
2000
Art. 145. Each spouse shall own, dispose of, possess, administer and enjoy his or her own
Rental income of No. Yes. Net income during the
separate estate, without need of the consent of the other. To each spouse shall belong all
the parcel of land marriage.
earnings from his or her profession, business or industry and all fruits, natural, industrial or
inherited by W at
civil, due or received during the marriage from his or her separate property.
100K per annum
Art. 146. Both spouses shall bear the family expenses in proportion to their income, or, in case
Can a spouse dispose a property co-owned without the consent of the other spouse?
of insufficiency or default thereof, to the current market value of their separate properties.
No, there must be written consent of the other spouse or judicial authorization.
The liabilities of the spouses to creditors for family expenses shall, however, be solidary.
How consent manifested
1. Consent must be in writing (e.g. both spouses must be named in a deed of sale; in the
name of one spouse with the marital consent of the other)
Judicial Separation of Property
2. Special Power of Attorney given to the other spouse.
Grounds
When is Judicial Authorization to Dispose Property Needed
1. When one is granted sole administration of the property
Art. 135. Any of the following shall be considered sufficient cause for judicial separation of
2. When the other spouse is insane or otherwise incompetent
property:
Note: Lack of judicial authorization will not cure the defect of no consent.
(1) That the spouse of the petitioner has been sentenced to a penalty which carries with it civil
interdiction;
Effect of No Consent in Writing in Sale
(2) That the spouse of the petitioner has been judicially declared an absentee;

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

during the 2nd marriage, the wife has only the right of usufruct. If the conjugal is terminated
(3) That loss of parental authority of the spouse of petitioner has been decreed by the court; upon death of the wife, the property will be considered H’s property.

(4) That the spouse of the petitioner has abandoned the latter or failed to comply with his or
her obligations to the family as provided for in Article 101; Revival

(5) That the spouse granted the power of administration in the marriage settlements has Art. 141. The spouses may, in the same proceedings where separation of property was
abused that power; and decreed, file a motion in court for a decree reviving the property regime that existed between
them before the separation of property in any of the following instances:
(6) That at the time of the petition, the spouses have been separated in fact for at least one
year and reconciliation is highly improbable. (1) When the civil interdiction terminates;

Note: In the cases provided for in Numbers (1), (2) and (3), the presentation of the final (2) When the absentee spouse reappears;
judgment against the guilty or absent spouse shall be enough basis for the grant of the decree
of judicial separation of property. (3) When the court, being satisfied that the spouse granted the power of administration in the
marriage settlements will not again abuse that power, authorizes the resumption of said
Procedure: administration;
1. The spouses may jointly file a verified petition with the court for the voluntary dissolution
of the absolute community or the conjugal partnership of gains, and for the separation of (4) When the spouse who has left the conjugal home without a decree of legal separation
their common properties. (Art 136, par 1) resumes common life with the other;
2. All creditors of the absolute community or of the conjugal partnership of gains, as well as
the personal creditors of the spouse, shall be listed in the petition and notified of the (5) When parental authority is judicially restored to the spouse previously deprived thereof;
filing thereof. The court shall take measures to protect the creditors and other persons
with pecuniary interest. (Art 136 par 2) (6) When the spouses who have separated in fact for at least one year, reconcile and resume
3. During the pendency of the proceedings for separation of property, the absolute common life; or
community or the conjugal partnership shall pay for the support of the spouses and their
children. (Art 137 par 2) (7) When after voluntary dissolution of the absolute community of property or conjugal
4. Once the separation of property has been decreed, the absolute community or the partnership has been judicially decreed upon the joint petition of the spouses, they
conjugal partnership of gains shall be liquidated in conformity with this Code. (Art 137 agree to the revival of the former property regime. NO VOLUNTARY SEPARATION OF
par 1) PROPERTY MAY THEREAFTER BE GRANTED.
5. After dissolution of the absolute community or of the conjugal partnership, the provisions
on complete separation of property shall apply. (Art 138) Note: The revival of the former property regime shall be governed by Article 67.
6. The petition for separation of property and the final judgment granting the same shall be
recorded in the proper local civil registries and registries of property. (Art 139)
When Administration of Exclusive Property be Transferred to the Other Spouse
Note: The separation of property shall not prejudice the rights previously acquired by creditors.
(Art 140) Art. 142. The administration of all classes of exclusive property of either spouse may be
transferred by the court to the other spouse:
Mere agreement of the husband and wife to have a separation of property reduced in an
instrument validly notarized is not valid. It must be submitted before the court for approval. It is (1) When one spouse becomes the guardian of the other;
the duty of the court to take precautionary measure to protect the children.
(2) When one spouse is judicially declared an absentee;
Illustrations:
FACTS: There was a judicial separation of property between H and W, which was initiated by (3) When one spouse is sentenced to a penalty which carries with it civil interdiction; or
W because of H’s infidelity. The court adjudicated all real estate located in the Phils in favor of
W. H, an alien, protested claiming that he contributed to the purchased of those properties. (4) When one spouse becomes a fugitive from justice or is in hiding as an accused in a
HELD: H is not entitled to his share over the subject real properties for he is disqualified under criminal case.
the constitution. The only way by which he can acquire real properties in the Phils is by way of
hereditary succession or if he is a former natural-born Filipino citizen. Not even equity can Note: If the other spouse is not qualified by reason of incompetence, conflict of interest, or any
allow him to be entitled to reimbursement because he did not come to court with clean hands. other just cause, the court shall appoint a suitable person to be the administrator.

FACTS: H in the 1st marriage has 4 children and in the 2nd marriage has another 4 children; a Summary of Grounds for Separation of Property and revival of the Former Property
property is acquired during the 2nd marriage. HELD: Under the NCC, the property acquired

53 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

Article 135 (grounds for separation of Article 141 (revival of former property
property) regime) When only one of the parties to a void marriage is in good faith, the share of the party in
Civil interdiction When it terminates bad faith in the co-ownership shall be forfeited in favor of their common children. In case
Absentee When the absentee spouse reappears of default of or waiver by any or all of the common children or their descendants, each
vacant share shall belong to the respective surviving descendants. In the absence of
Loss of parental authority When parental authority is judicially restored descendants, such share shall belong to the innocent party. In all cases, the forfeiture
shall take place upon termination of the cohabitation.
Abandonment Resumption of common life with each other

Abuse of power of administration When the court authorizes the resumption of b. Bigamous, Adulterous relationships – the property regime is governed limited co-
the power of administration ownership under Art 148. There is no presumption of equal shares. There must be proof
of actual contribution.
Separated in fact Reconciliation and resumption of common life
Art. 148. In cases of cohabitation not falling under the preceding Article, only the
Voluntary dissolution under Art. 136 Revival of the former property regime (no properties acquired by both of the parties through their ACTUAL JOINT
voluntary separation of property may CONTRIBUTION of money, property, or industry shall be owned by them in common in
thereafter be granted; the revival shall be proportion to their respective contributions. In the absence of proof to the contrary, their
governed by Art. 67) contributions and corresponding shares are presumed to be equal.

The same rule and presumption shall apply to joint deposits of money and evidences of
Effect of dissolution of ACP or CPG: credit.
a. After dissolution, the provisions on complete separation of property shall apply. If one of the parties is validly married to another, his or her share in the co-ownership
b. Each spouse shall own, dispose, possess, administer and enjoy his or her own separate shall accrue to the absolute community or conjugal partnership existing in such valid
estate, without the need of the consent of the other. To each spouse shall belong all marriage. If the party who acted in bad faith is not validly married to another, his or her
earnings from his or her profession, business or industry and all fruits, natural, industrial shall be forfeited in the manner provided in the last paragraph of the preceding Article.
or civil, due or received during the marriage from his or her separate property.
c. Both spouses shall bear the family expenses in proportion to their income, or in case of The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith.
insufficiency or default thereon, to the current market value of their separate properties.
The liability of the spouses to creditors for family expense shall be solidary. Illustration:
FACTS: H is legally married to W. H has an illicit affair with A. During the marriage, H
acquired a condo unit which was registered in the name of A. During the time when H
Property Regime Of Unions Without Marriage and A lived together, they acquired 2 cars, they have savings account of 5M and
personal properties. After sometime, H and A parted ways. A asks for her share claiming
a. Void Marriages or Common-Law/Live-in Relationships – the property regime shall be that at the time of cohabitation she was receiving salary. Is she entitled? HELD: NO. With
governed by simple co-ownership under Art 147. There is presumption of equality of regard to the condo unit, A is only a trustee for and in behalf of ACP or CPG. With
shares in the absence of contrary proof. respect to 2 cars, savings account, and personal properties, there must be proof of actual
contribution.
Art. 147. When a man and a woman who are capacitated to marry each other, live
exclusively with each other as husband and wife without the benefit of marriage or under Proof of Actual Contribution
a void marriage, their wages and salaries shall be owned by them in EQUAL SHARES 1. Receipts
and the property acquired by both of them through their work or industry shall be 2. Agreements of the parties
governed by the rules on co-ownership.

In the absence of proof to the contrary, properties acquired while they lived together shall
be PRESUMED to have been obtained by their JOINT EFFORTS, WORK OR
INDUSTRY, and shall be owned by them in EQUAL SHARES. For purposes of this
Article, a party who did not participate in the acquisition by the other party of any
property shall be deemed to have contributed jointly in the acquisition thereof if the
former's efforts consisted in the care and maintenance of the family and of the
household.

Neither party can encumber or dispose by acts inter vivos of his or her share in the
property acquired during cohabitation and owned in common, without the consent of the
other, until after the termination of their cohabitation.
54 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

VII. THE FAMILY The family home, constituted jointly by the husband and the wife or by an unmarried head of a
family, is the dwelling house where they and their family reside, and the land on which it is
FAMILY - the foundation of the nation, is a basic social institution which public policy cherishes situated. (Art. 152, FC)
and protects. Consequently, family relations are governed by law and no custom, practice or
agreement destructive of the family shall be recognized or given effect. (Art 149, FC) How Constituted

Family Relations, Coverage The family home is deemed constituted on a house and lot from the time it is occupied as a
1. Between husband and wife; family residence. (Art. 153, FC)
2. Between parents and children;
3. Among other ascendants and descendants; and Who constitutes Family Home
4. Among brothers and sisters, whether of the full or halfblood. (Art 150)
The family home may be constituted jointly by the husband and the wife or by an unmarried
Suit Among Members of the Same Family / Necessity of Earnest Efforts toward head of a family.
Compromise
Also, under Art. 161, a person may constitute, or be the beneficiary of, only one family home.
NO suit between members of the same family shall prosper UNLESS it should appear from
the verified complaint or petition that earnest efforts toward a compromise have been made, Duration
but that the same have failed. If it is shown that no such efforts were in fact made, the same
case must be dismissed. “ From the time of its constitution and so long as any of its beneficiaries actually resides
therein, the family home continues to be such. (Art. 153, FC)
This rules shall not apply to cases which may not be the subject of compromise under the
Civil Code. (Art 151, FC) The family home shall continue despite the death of one or both spouses or of the unmarried
head of the family for a period of ten years or for as long as there is a minor beneficiary, and
Prohibited Compromise the heirs cannot partition the same unless the court finds compelling reasons therefor. This
rule shall apply regardless of whoever owns the property or constituted the family home. (Art.
No compromise upon the following questions shall be valid: CJ-VAFF 159, FC)
1. Civil Status of persons (e.g action for compulsory recognition or to impugn legitimacy)
2. Validity of marriage or a legal separation Where Family Home is Constituted
3. Any ground for legal separation
4. Future support The family home must be part of the properties of the absolute community or the conjugal
5. Jurisdiction of courts partnership, or of the exclusive properties of either spouse with the latter's consent. It may
6. Future legitime (Art 2035, NCC) also be constituted by an unmarried head of a family on his or her own property.

Note: “There may be a compromise upon the civil liability arising from an offense; but such Nevertheless, property that is the subject of a conditional sale on installments where
compromise shall not extinguish the public action for the imposition of the legal penalty.” (Art ownership is reserved by the vendor only to guarantee payment of the purchase price may
2034, NCC) be constituted as a family home. (Art 156, FC)

Q: H filed case against brothers of W. Brothers filed Motion to Dismiss on the ground of lack of Limitation on the Actual Value of Family Home
cause of action (no showing of earnest effort to a compromise). Should the motion be
granted? The actual value of the family home shall not exceed, at the time of its constitution, the amount
of P300,000.00 in urban areas, and P200,000.00 in rural areas or such amounts as may be
A: No because H and brothers of W are not relatives under Art.150. fixed by law. In any event, if the value of the currency changes, the value most favorable for
the constitution of a family home shall be the basis of evaluation.
Note: Family relation between father and his illegitimate child shall be recognized only if there
was recognition by the father that the child is his illegitimate child. Note: Urban areas include chartered cities and municipalities whose annual income at least
equals that legally required for chartered cities. All others are deemed rural areas. (Art 157,
FC)
Family Home
Beneficiaries
Definition
a. The husband and wife, or an unmarried person who is the head of family.

55 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

b. Their parents, ascendants, descendants, brothers and sisters, whether the relationship Q: The house and lot was constituted as family home in 1995. In 2000, H&W obtained a P1.5
be legitimate or illegitimate, who are living in the family home and who depend upon the loan secured by promissory note. The creditor filed an action for collection of sum of money
head of the family for legal support. (Art 154, FC) after H&W defaulted in payment. Judgment was rendered in favor of the creditor. Can the
c. A person may be the beneficiary of only one family home. (Art 161, FC) house and lot be subject of execution?

Benefits of Family Home A: Yes. The house and lot is not exempt from execution because it is more than the value
required by law i.e P300,000 (urban) or P200,000 (rural)
GENERAL RULE: The family home is exempt from execution, forced sale or attachment. (Art
153 and 155) Steps to be undertaken by Judgment Creditor in case of Execution:
1. Apply for writ of execution. Allege that the value of Family Home exceeds that required by
EXEMPTIONS: law. The value is shown by tax declaration or proven by experts (appraisers)
a. For non-payment of taxes. 2. In execution sales, no bid shall be below the maximum prescribed for Family Home
b. For debts incurred prior to the constitution of the family home. 3. The proceeds of sale shall be distributed as follows:
c. For debts secured by mortgages on the premises before or after such constitution. a. Restore to debtor/s the value of the family home as prescribed by law, i.e. P300,000
d. For debts due to laborers, mechanics, architects, builders, material men, and others who (urban) or P200,000 (rural)
have rendered service or furnished materials for the construction of the building. b. Apply for the payment of the debt
(laborer’s lien, materialmen’s lien, contractor’s lien) (Art 155, FC) c. The excess shall be given to debtor/s
e. When a creditor whose claim is not among those mentioned from a – d obtains a
judgment in his favor, and he has reasonable grounds to believe that the family home is
actually worth more than the maximum amount fixed herein, he may apply to the court
which rendered the judgment for an order directing the sale of the property under
execution. The court shall so order if it finds that the actual value of the family home
exceeds the maximum amount allowed by law as of the time of its constitution. If the
increased actual value exceeds the maximum allowed and results from subsequent
voluntary improvements introduced by the person or persons constituting the family
home, by the owner or owners of the property, or by any of the beneficiaries, the same
rule and procedure shall apply.

At the execution sale, no bid below the value allowed for a family home shall be
considered. The proceeds shall be applied first to the amount fixed by law, and then to
the liabilities under the judgment and the costs. The excess, if any, shall be delivered to
the judgment debtor. (Art 160, FC)

Q: H & W purchased house and lot which was occupied as family residence in 1995. In 2001,
judgment was rendered against H&W on the case involving quasi-delict which was filed by A
against H&W in 1990. Eventually, A filed Motion for Execution on the house and lot. Should
the motion be granted?

A: Yes. The house and lot is not exempt from execution. The debt was incurred prior to the
constitution of the family home.(Art 155 [2])

Q: The house and lot was constituted as family home in 1995. In 1996, H &W obtained a P2M
loan with REM on the house and lot. Is the house and lot subject to execution?

A: Yes. The house and lot is not exempt from execution. The debt was secured by mortgage
on the premises. (Art 155 [3])

Q: Can the Family Home be subject of expropriation proceedings?

A: No. Expropriation is a form of forced sale. Note that the family home is exempt from forced
sale.

56 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

VIII. PATERNITY AND FILIATION Between the certificate of live birth which is prima facie evidence of child’s illegitimacy and the
quasi-conclusive presumption of his legitimacy, the latter shall prevail. Not only does it bear
PATERNITY – is the civil status of the father with respect to the child begotten by him. more weight, it is also more conducive to the best interest of the child and in consonance with
the purpose of the law. (Concepcion vs CA, Aug 31, 2005)
MATERNITY – is the civil status of the mother with respect to the child begotten by her.
Illustrations:
FILIATION – is the civil status of the child in relation to his father. a. FACTS: 2 children were registered as children of H and W. S filed an action wherein he
recognized the 2 children as his. S presented an affidavit of recognition to support his
Kinds of Filiation claim. HELD: This action shall not prosper because public policy dictates that legitimacy
1. Natural (legitimate or illegitimate) is preferred over illegitimacy. Besides, who can impugn the legitimate filiation of the
2. Artificial i.e. Adoption children is the husband and only on grounds specified by law within the prescriptive
periods provided by law.
Kinds/Status of Children b. FACTS: W contracted a 2nd marriage with S, without her 1st marriage with H having been
1. Legitimate annulled or declared a nullity. W and S have a child A. Later, S learned of the subsisting
2. Illegitimate marriage of W with H. S then filed a petition for declaration of nullity of marriage on the
3. Legitimated ground of bigamous marriage. The court declared the marriage of S and W null and void
4. Adopted for being bigamous and declared A as their illegitimate child, granting custody in favor of
W and visitation rights of S. W appealed questioning the grant of visitation rights and that
LEGITIMATE CHILDREN the child’s surname appearing in his certificate of live birth be dropped. HELD: SC held
that A is the legitimate child of W and H because he was conceived and born during the
LEGITIMATE CHILDREN - children conceived or born during the marriage of the parents are subsistence of a valid first marriage. W and S cannot deprive A of his legitimate status
legitimate. (Art 164, FC) because such is against public policy. S is not entitled to visitation rights because he is
not related to A. H, being the father of A, has the right to impugn the legitimacy of A.
Take note that under Art. 54 of the FC, “children conceived or born before the judgment of (Concepcion vs CA, Aug 31, 2005)
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.” Children by Artificial Insemination, Requirements

Presumption of Legitimacy Children conceived as a result of artificial insemination (in-vitro fertilization) of the wife with the
sperm of the husband or that of a donor or both are likewise LEGITIMATE CHILDREN of the
In case of doubt as to the filiation of the child, legitimacy is preferred, unless, there is proof to husband and his wife, provided, that:
the contrary. a. both of them authorized or ratified such insemination in a written instrument;
b. such written instrument must be executed and signed by them before the birth of the
A child who is conceived or born during marriage of his parents is presumed legitimate and the child.
status and filiation of the child cannot be compromised. (Baluyot vs. Baluyot, June 14, 1990) c. the instrument shall be recorded in the civil registry together with the birth certificate of
the child. (Art 164, FC)
A child born during legal separation or separation de facto, is still a legitimate child because
conceived or born during subsistence of valid marriage. The husband has the right to impugn NOTE: if written authorization or ratification is made after artificial insemination, the child
such legitimacy. is still legitimate. If ratification is made after recording of birth or if there is belated
registration of ratification, still legitimate because legitimacy is preferred over illegitimacy
The presumption of legitimacy is quasi conclusive and proceeds from the sexual union in the to serve the best interest of the child.
marriage and may be refuted only by the evidence allowed by law.
No criminal liability for adultery of wife artificially inseminated without the consent of the
The legitimacy or illegitimacy of a child born after three hundred days following the termination husband.
of the marriage shall be proved by whoever alleges such legitimacy or illegitimacy. (Art. 169,
FC) What is the effect of Intervention of surrogate mothers

The child shall be considered legitimate although the mother may have declared against its If the zygote is the result of fertilization of the wife’s ovum by her husband’s sperm, it is
legitimacy or may have been sentenced as an adulteress. (Art. 167, FC) An assertion of the submitted that the child is their legitimate child, it having been sourced from their own
mother against the legitimacy of her child cannot affect the legitimacy of such child born or blood. (Pineda)
conceived within the valid marriage. A mother has no right to disavow a child because
maternity is never uncertain.

57 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

If in the same set of facts, the sperm of a donor is used without the consent of the b. 2 years - If the husband or, in his default, all of his heirs do not reside at the place of birth
husband, it is submitted that the child is illegitimate because he is not the child of the as defined in the first paragraph or where it was recorded but they reside in the
husband but that of the wife and donor. (Pineda) Philippines.
c. 3 years – if they are residing abroad.

Action to Impugn Legitimacy Note: If the birth of the child has been concealed from or was unknown to the husband or his
heirs, the period shall be counted from the discovery or knowledge of the birth of the child or of
Grounds (Art 166, FC) the fact of registration of said birth, whichever is earlier.

(1) That it was physically impossible for the husband to have sexual intercourse with his wife Rules on the Status of Children Born When Widow contracted 2nd Marriage within 300
within the first 120 days of the 300 days which immediately preceded the birth of the child Days From Termination of Former Marriage (Art 168, FC)
because of:
1. Requisites:
(a) the physical incapacity of the husband to have sexual intercourse with his wife; a. 1st marriage terminated
b. Mother contracted subsequent marriage
(b) the fact that the husband and wife were living separately in such a way that sexual c. Subsequent marriage contracted within 300 days after termination of previous
intercourse was not possible; or marriage
d. Child was born
(c) serious illness of the husband, which absolutely prevented sexual intercourse (e.g. e. No evidence as to the status of the child
husband in a state of coma or is paralyzed)
2. Rules as To Whom the Child Belongs
(2) That it is proved that for biological or other scientific reasons, the child could not have been a. To 1st marriage – if the child born before lapse of 180 days after the solemnization of
that of the husband, except in the instance provided in the second paragraph of Article the subsequent marriage provided it be born within 300 days after the termination of
164; or the former marriage.
b. To 2nd marriage – if the child born after 180 days following the celebration of the
(3) That in case of children conceived through artificial insemination, the written authorization subsequent marriage even though it be born within the 300 days after the
or ratification of either parent was obtained through mistake, fraud, violence, intimidation, termination of the former marriage.
or undue influence.
Note: The legitimacy or illegitimacy of a child born after three hundred days following the
termination of the marriage shall be proved by whoever alleges such legitimacy or illegitimacy.
Who May File (Art 170, FC) (Art. 169, FC)

GENERAL RULE: Only the husband may impugn. Action to Claim Legitimacy

EXCEPTION: The heirs of the husband may impugn the filiation of the child within the period Proof of Legitimacy/Filiation (Art. 172, FC)
prescribed in the preceding article only in the following cases:
GENERAL RULE: The filiation of legitimate children is established by any of the following:
(1) If the husband should die before the expiration of the period fixed for bringing his action; 1. record of birth appearing in the civil register or a final judgment

(2) If he should die after the filing of the complaint without having desisted therefrom; or A birth certificate to be considered as valid proof of filiation, must be signed by the father
and mother jointly, or by the mother alone if the father refuses. If the father did not
(3) If the child was born after the death of the husband. (Art 171, FC) intervene in the making of the birth certificate, the putting of his name by the mother or
doctor or registrar is void. The signature of the father is necessary. Certificates of live
birth may be disallowed as proofs of filiation if they are executed thru fraud.

Baptismal certificates do not fall under this category. They may be allowed as evidence
Prescriptive Period as allowed by the Rules of Court.

The action to impugn the legitimacy of the child shall be brought within: 2. admission of legitimate filiation in a public document or a private handwritten instrument
a. 1 year from the knowledge of the birth or its recording in the civil register - if the husband and signed by the parent concerned.
or, in a proper case, any of his heirs, should reside in the city or municipality where the
birth took place or was recorded. It is considered a judicial admission. It must also be express. Thus a card containing the
praise, “I love you like my son,” and signed by the father, is not a proof of filiation.

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

If express recognition is contained in a will, such is a valid proof of filiation even if the will The action to claim legitimacy may be brought by the child during his or her lifetime (not the
is disallowed probate or even if not presented for probate or even if such will is revoked. lifetime of the parents) and shall be transmitted to the heirs should the child die during minority
Nullity of will shall not affect provisions which do not depend on death of testator. It still or in a state of insanity. In these cases, the heirs shall have a period of five years within which
constitutes a public document or a private handwritten instrument signed by the parent to institute the action. (Art. 173, FC)
concerned.
The action already commenced by the child shall survive notwithstanding the death of either or
If express recognition is contained in a deed of sale, still, such deed may be admitted as both of the parties.
proof of filiation.

If recognition in open court or during pre-trial, such recognition constitutes as a judicial Rights of Legitimate Children (Art. 174, FC)
admission, thus may be considered as proof of filiation. (1) To bear the surnames of the father and the mother, in conformity with the provisions of the
Civil Code on Surnames.
EXCEPTIONS: In the absence of the foregoing evidence, the legitimate filiation shall be
proved by: A legitimate child cannot petition the court to drop his middle name. Middle names and
surnames are not subject to the will of persons because they are prescribed by law.
1. The open and continuous possession of the status of a legitimate child
Surname – identifies paternal lineage.
Under this, for an action to establish illegitimate filiation, a high standard proof is required.
Middle name – identifies maternal lineage.
There must be a showing of permanent intention of the supposed father to consider the
child as his own by continuous and clear manifestation of paternal affection and care. (2) To receive support from their parents, their ascendants, and in proper cases, their brothers
The paternal affection and care shall not be attributed to pure charity. Such acts must be and sisters, in conformity with the provisions of this Code on Support.
of such a nature that they reveal not only the conviction of paternity but also the apparent
desire to have and treat the child as such in all relations in society and in life, not In case of legal separation or annulment of marriages, the rights of children to support
accidentally, but continuously. (Jison vs CA 98 Phil 794) shall not be denied. The support shall be taken from separate properties of the parties
because from that time the ACP or CPG has already been dissolved and liquidated.
Continuous does not mean that the concession of status shall continue forever but only
that it shall not be of an intermittent character while it is continuous. By continuous is (3) To be entitled to the legitimate and other successional rights granted to them by the Civil
meant un-interrupted and consistent, but does not require a particular length of time. The Code. (a compulsory heir may be a voluntary heir at the same time; a legitimate child is
possession of such status means that the father has treated the child as his own, directly entitled to be represented in the succession to his parents)
and not through others, spontaneously and without concealment though without publicity.
Note: In case of legitimate minors, husband and wife exercise joint parental authority. In case
The standard of proof required is founded on the principle that an order for recognition of conflict, husband’s right shall prevail subject to the right of recourse by the wife before the
and support may create an unwholesome atmosphere or may be an irritant in the family competent court.
or lives of the parties, so that it must be issued only if paternity or filiation is established
by clear and convincing evidence. ILLEGITIMATE CHILDREN

Mere photographs with the putative father is not, per se, proof of filiation. Children conceived and born outside a valid marriage are illegitimate, unless otherwise
provided in this Code. (Art 165, FC)
Receipts indicating that the father was the one who paid all tuition fees of the child is not,
per se, proof of filiation. Children born of void marriages are illegitimate (with respect to the mother only by operation of
law; the child and the father are, as a rule, strangers with each other) EXCEPT children
BUT photographs, receipts plus other evidence, taken collectively, may be proof of conceived or born before the judgment absolute nullity of the marriage under Article 36 has
filiation. become final and executory shall be considered legitimate and children conceived or born of
the subsequent marriage under Article 53 shall likewise be legitimate. (Art 54, FC)
2. Any other means allowed by the Rules of Court and special laws.
e.g. Baptismal certificates; judicial admission; family bible in which his name has been Voluntary Recognition of Illegitimate Children, How Made
entered; common reputation respecting his pedigree; admission by silence; testimonies
of witnesses. If due recognition is made by the putative father in the record of birth, valid will, public
instrument or private handwritten instrument, it is considered as a consummated act of
acknowledgment. It is no longer required to have compulsory recognition.
Who May File, When to File

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

When is Compulsory Recognition Be Made


If W is 99.9% or higher, there is a presumption of paternity.
In cases where the proof of illegitimacy is either open and continuous possession of the status
of a legitimate child or any other means allowed by the Rules of Court and special laws. If W is less than 99.9%, there is a rebuttable proof of paternity.

Proof of Illegitimacy (Arts 175 and 172, FC) What may be used to overcome the presumption of paternity or rebut the proof of paternity:
Use the Vallejo Test.
Illegitimate children may establish their illegitimate filiation in the same way and on the same
evidence as legitimate children. (Art. 175, FC) Vallejo Tests: The court must scrutinize the following facts:
a. How the samples are collected
Thus, under Art 172, the filiation of legitimate children is established by any of the following: b. How the samples were handled
(1) The record of birth appearing in the civil register or a final judgment; or c. Possibility of contamination of samples
d. Standard procedure used in similar test should be followed
Even if the putative father, did not sign the birth certificate as the father but as an e. Competence of the person who conducted the examination.
informant, for as long as he actively participated in the execution of the certificate, such
can be used as an evidence of filiation.
Who May File and When to File Action for Compulsory Recognition (Art. 175, par. 2, FC)
(2) An admission of legitimate filiation in a public document or a private handwritten instrument
and signed by the parent concerned. The action must be brought within the same period specified in Article 173, that is within the
lifetime of the child (although action is not necessary) except when the action is based on the
In this case there must be an EXPRESS recognition. second paragraph of Article 172, in which case the action may be brought during the lifetime
of the alleged parent. The REASON of the latter rule is to give the allege parent the chance to
Admission during pre-trial that the child is his illegitimate child is a judicial admission, thus affirm or consent to the filiation of the child.
admissible, provided it was done before a court of record.
In case of nullity of marriage, children are generally considered illegitimate with respect to the
In the absence of the foregoing evidence, the legitimate filiation shall be proved by: mother only by operation of law. But the illegitimate filiation of the child with the father, there is
(1) The open and continuous possession of the status of a legitimate child. a need to prove filiation. There is no problem if there is declaration in the judgment of
(2) Any other means allowed by the Rules of Court and special laws. illegitimate filiation because such can be used as proof of filiation. In the absence of
declaration, there are 2 views:
Baptismal certificate of the child where it is signed by the putative father is admissible in 1. Traditional view
evidence but it requires other proof of recognition to establish illegitimate filiation.
There must be an action for compulsory recognition because illegitimate children cannot
DNA analysis is under this category. be considered a relative of the father.

DNA Tests: Probative Value in Paternity Cases 2. Liberal view

The court may allow the child to petition the court to have the father be subjected to DNA There is no more need of an action for compulsory recognition. The best interest of the
analysis. Such is not violative of the right of the father against self-incrimination because such child shall be taken into consideration. Having been downgraded to the status of
is available only in criminal cases and not in civil cases. There is also no violation of privacy illegitimate child, no further burden will be imposed upon the child. And it is by operation
because the right to establish paternity and filiation is superior over the right to privacy. of law following the declaration of marriage that the child is considered illegitimate child of
the parties.
In DNA analysis or test, it is not enough that there is a perfect match. Such alone is not
sufficient to establish filiation. The court should include probability of paternity (W), that is, the Rights of Illegitimate Children (Art. 176 in rel. to R.A 9255)
likelihood of paternity between the putative father and the child as compared to the probability
of paternity of random match between 2 unrelated individuals. The W must always refer to a Illegitimate children shall:
specific population base. Thus, because of the nature of this damnation, W will never be 100%
but the chances of increasing W will be greater if the putative father, child and mother are 1. use the surname and shall be under the parental authority of their mother.
included in the DNA analysis. This means that is there is 99.9% probability, the court should
not stop there. It is required that the 99.9% is the provability of paternity based on population RA 9255 which was approved on Feb 24, 2004, illegitimate children may now use the
segment that the chance or provability comes from 1 in 5 million. surname of their father IF their filiation has been expressly recognized by the father
through the record of birth appearing in the civil register, OR when the admission in a
HOWEVER, when the DNA result excludes putative father from paternity, such is conclusive public document or private handwritten instrument is made by the father. PROVIDED,
as to non-paternity. There is impossible match.

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

however, that the father has the right to institute an action before the regular courts to
prove non-filiation during his lifetime. Effect Of Annulment and Nullity of Marriage Upon Legitimated

If the child was already recognized, the surname is that of the father and the middle The annulment of a voidable marriage shall not affect the legitimation. (Art. 178, FC)
name is that of the mother. The purpose of recognition is to compel the father to give
support and so that later the illegitimate children will be entitled to their legitime. In case of declaration of nullity of marriage, as a rule, children are considered illegitimate.
Legitimation will not become operative.
Even after recognition, the father cannot demand custody over the child. The law
explicitly confess to the mother sole parental authority over an illegitimate child. It follows Rights of Legitimated Children
that only if she defaults can the father assume custody and authority over the minor.
Legitimated children shall enjoy the same rights as legitimate children. (Art. 179, FC)
While an illegitimate child of a woman is allowed to use the surname of his stepfather, a
legitimate child is not allowed because if he is allowed it could result in confusion as to its Action To Impugn, Who May Impugn and When
paternity.
Legitimation may be impugned only by those who are prejudiced in their rights, within 5 years
2. shall be entitled to support in conformity with this Code. from the time their cause of action accrues. (Art. 182, FC) Cause of action accrues from the
death of the putative parent.
3. The legitime of each illegitimate child shall consist of one-half of the legitime of a
legitimate child. Except for this modification, all other provisions in the Civil Code
governing successional rights shall remain in force.
ADOPTED CHILDREN

LEGITIMATED CHILDREN ADOPTION – is a juridical act which creates between 2 persons a relationship similar to that
which results from legitimate paternity and filiation
LEGITIMATED CHILDREN – are those conceived and born outside of wedlock who, during
conception, the parents are not disqualified to marry each other, and by subsequent marriage Nature of Adoption Proceedings
of their parents to each other are, by legal fiction, considered legitimate.
Adoption proceedings are judicial, not administrative.
LEGITIMATION – is a process of conferring legitimate status to illegitimate children by
subsequent valid marriage of the parents. Procedure

Rationale Who May Adopt (Sec 7, RA 8552, Domestic Adoption Act of 1998)

To confer legitimate status of illegitimate children and as such legitimated children have the 1. Filipino citizen who is: LPG-NEAP
same rights as those of legitimate children. a. of legal age;
b. in possession of full civil capacity and legal rights;
How Made c. of good moral character;
d. has not been convicted of any crime involving moral turpitude;
Legitimation shall take place by a subsequent valid marriage between parents. (Art. 178, FC) e. emotionally and psychologically capable of caring for children;
d. at least sixteen (16) years older than the adoptee; and
Requisites e. who is in a position to support and care for his/her children in keeping with the means
1. The child was conceived and born outside of wedlock. of the family.
2. At the time of conception of the child, the parents were not disqualified by any
impediment to marry each other. When is the requirement of 16-year difference between the age of the adopter and
3. The parents must subsequently enter into a valid marriage. adoptee may be waived
a. when the adopter is the biological parent of the adoptee; OR
When Legitimation Take Effect b. when the adopter is the spouse of the adoptee's parent.

The effects of legitimation shall retroact to the time of the child's birth. (Art. 180, FC) 2. Any alien who:
a. possesses the same qualifications as above stated for Filipino nationals;
The legitimation of children who died before the celebration of the marriage shall benefit their b. whose country has diplomatic relations with the Republic of the Philippines,
descendants. (Art. 181, FC)

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Saint Louis University - College of Law
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By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

c. has been living in the Philippines for at least three (3) continuous years prior to the c ) has the capacity to act and assume all rights and responsibilities of parental authority
filing of the application for adoption and maintains such residence until the adoption under his national laws, and has undergone the appropriate counseling from an
decree is entered; accredited counselor in his/her country;
d. has been certified by his/her diplomatic or consular office or any appropriate
government agency that he/she has the legal capacity to adopt in his/her country; d) has not been convicted of a crime involving moral turpitude;
and
e. whose government allows the adoptee to enter his/her country as his/her adopted e) is eligible to adopt under his/her national law;
son/daughter:
f) is in a position to provide the proper care and support and to give the necessary moral
When requirements on residency and certification of the alien's qualification to values and example to all his children, including the child to be adopted;
adopt in his/her country may be waived
g) agrees to uphold the basic rights of the child as embodied under Philippine laws, the U.N.
(i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of Convention on the Rights of the Child, and to abide by the rules and regulations issued to
consanguinity or affinity; or implement the provisions of this Act;

(ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or h) comes from a country with whom the Philippines has diplomatic relations and whose
government maintains a similarly authorized and accredited agency and that adoption is
(iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse allowed under his/her national laws; and
a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino
spouse; or i) possesses all the qualifications and none of the disqualifications provided herein and in
other applicable Philippine laws.
3. The guardian with respect to the ward after the termination of the guardianship AND
clearance of his/her financial accountabilities. Who May Be Adopted (Sec 8, RA 8552, Domestic Adoption Act of 1998)

(a) Any person below eighteen (18) years of age who has been administratively or judicially
Husband and Wife, Joint Adoption declared available for adoption;

GENERAL RULE: Husband and wife shall jointly adopt. CHILD LEGALLY AVAILABLE FOR ADOPTION - refers to a child who has been
voluntarily or involuntarily committed to the Department or to a duly licensed and
EXCEPTIONS: accredited child-placing or child-caring agency, freed of the parental authority of his/her
(i) if one spouse seeks to adopt the legitimate son/daughter of the other; or biological parent(s) or guardian or adopter(s) in case of rescission of adoption.

(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, However, VOLUNTARILY COMMITTED CHILD - is one whose parent(s) knowingly and willingly
that the other spouse has signified his/her consent thereto; or relinquishes parental authority to the Department.

(iii) if the spouses are legally separated from each other. INVOLUNTARILY COMMITTED CHILD - is one whose parent(s), known or unknown,
has been permanently and judicially deprived of parental authority due to abandonment;
Note: In case husband and wife jointly adopt, or one spouse adopts the illegitimate substantial, continuous, or repeated neglect; abuse; or incompetence to discharge
son/daughter of the other, joint parental authority shall be exercised by the spouses. parental responsibilities.

HOWEVER, under INTER-COUNTRY ADOPTION LAW (RA 8043), the following may adopt: Who May be Administratively Or Judicially Declared Available For Adoption

An alien or a Filipino citizen permanently residing abroad may file an application for inter- ABANDONED CHILD - refers to one who has no proper parental care or guardianship or
country adoption of a Filipino child IF he/she: (Sec 9, RA 8043) whose parent(s) has deserted him/her for a period of at least six (6) continuous months
and has been judicially declared as such.
a) is at least twenty-seven (27) years of age and at least sixteen (16) years older than the
child to be adopted, at the time of application unless the adoptor is the parent by nature DEPENDENT CHILD - is one who is without a parent, guardian or custodian; or one
of the child to be adopted or the spouse of such parent: whose parents, guardian or other custodian for good cause desires to be relieved of his
care and custody; and is dependent upon the public for support.
b) if married, his/her spouse must jointly file for the adoption;
NEGLECTED CHILD - is one whose basic needs have been deliberately unattended or
inadequately attended, physically or emotionally, by his parents or guardinan. Neglect
may occur in two ways:

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

a) There is a physical neglect when the child is malnourished, ill clad and without proper e. FACTS: H is married to W. H has an illegitimate child. Can H adopt his illegitimate
shelter. child? HELD: H can adopt his illegitimate child even if not joined by W. The surname
of the child is that of the father as the adopter. The middle name of the child is that
A child is unattended when left by himself without provisions for his needs and/or of the mother. Although the relationship between the mother and the child is
without proper supervision. severed, it is for the benefit of the child to use the surname of his mother as his
middle name.
b) Emotional neglect exists: when children are maltreated, raped or seduced; when
children are exploited, overworked or made to work under conditions not conducive HOWEVER, under INTER-COUNTRY ADOPTION LAW (RA 8043), the following may be
to good health; or are made to beg in the streets or public places, or when children adopted:
are in moral danger, or exposed to gambling, prostitution and other vices.
Only a child legally available for domestic adoption may be the subject of inter-country
FOUNDLING – refers to deserted or abandoned infant or child whose parents, guardian adoption.
or relatives are unknown; or a child committed to an orphanage or charitable or similar
institution with unknown facts of birth and parentage and registered in the Civil Register Whose Consent is Necessary to the Adoption (Sec 9, RA 8552, Domestic Adoption Act of
as a foundling. 1998)

(b) The legitimate son/daughter of one spouse by the other spouse (No need of joint adoption; After being properly counseled and informed of his/her right to give or withhold his/her
if the adopter is an alien, the requirements of residency and certification are no longer approval of the adoption, the written consent of the following to the adoption is hereby
applicable); required:

(c) An illegitimate son/daughter by a qualified adopter to improve his/her status to that of (a) The adoptee, if ten (10) years of age or over;
legitimacy;
(b) The biological parent(s) of the child, if known, or the legal guardian, or the proper
(d) A person of legal age if, prior to the adoption, said person has been consistently government instrumentality which has legal custody of the child;
considered and treated by the adopter(s) as his/her own child since minority;
If the child to be adopted is illegitimate, consent of the father is necessary if he
(e) A child whose adoption has been previously rescinded; or recognized the child as his. If no recognition, there is no need of consent because both
are strangers to each other.
(f) A child whose biological or adoptive parent(s) has died: Provided, That no proceedings
shall be initiated within six (6) months from the time of death of said parent(s). (c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the adopter(s)
and adoptee, if any;
Illustrations:
a. FACTS: H and W are legally married. Can H and W legally adopt a child of their (d) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter if living with
neighbor? HELD: YES, provided the adoptee is among those qualifies. said adopter and the latter's spouse, if any; and
b. FACTS: If the child to be adopted is W’s illegitimate child, Can W and H adopt the
child? HELD: W can adopt the child because the child is her illegitimate child. H can (e) The spouse, if any, of the person adopting or to be adopted.
also adopt the child provided he is qualified and that the child is qualified as an
adoptee who possesses none of the disqualifications. H and W can jointly adopt the Procedure
child if they decide to do so. Alleged the qualifications of the adopters and
qualifications of the adoptee in the petition for adoption. a. Hurried Decisions. - In all proceedings for adoption, the court shall require proof that the
c. FACTS: If the child to be adopted is W’s legitimate child in her former marriage, W biological parent(s) has been properly counseled to prevent him/her from making hurried
need not adopt the child because the latter is already her legitimate child. Can H, 2nd decisions caused by strain or anxiety to give up the child, and to sustain that all
husband adopt the child of W? Are H and W required to adopt the child jointly? measures to strengthen the family have been exhausted and that any prolonged stay of
HELD: H can adopt the legitimate child of W because such is allowed by law. In this the child in his/her own home will be inimical to his/her welfare and interest. (Section 10,
case there is no need for H and W to adopt the child jointly because the child is RA 8552)
already the legitimate child of W. This situation is also applicable if the husband is b. Case Study. No petition for adoption shall be set for hearing unless a licensed social
an alien and the wife is a former Filipino. worker of the Department, the social service office of the local government unit, or any
d. FACTS: If H is an alien and W is a former Filipino. The child to be adopted is the child-placing or child-caring agency has made a case study of the adoptee, his/her
illegitimate child of W. HELD: W can adopt provided she is qualified. The residency biological parent(s), as well as the adopter(s), and has submitted the report and
requirement can be waived because she is a former Filipino citizen who seeks to recommendations on the matter to the court hearing such petition. (Section 11, RA 8552)
adopt a relative within the fourth (4th) degree of consanguinity or affinity. What
about on the part of H, is residency requirement be waived? NO, because W is no At the time of preparation of the adoptee's case study, the concerned social worker shall
longer a Filipino. confirm with the Civil Registry the real identity and registered name of the adoptee. If the

63 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

birth of the adoptee was not registered with the Civil Registry, it shall be the responsibility the adoptee, the court may merit the necessary information to be released, restricting the
of the concerned social worker to ensure that the adoptee is registered. purposes for which it may be used. (Section 15, RA 8552)

The case study on the adoptee shall establish that he/she is legally available for adoption Effects Of Adoption
and that the documents to support this fact are valid and authentic. Further, the case
study of the adopter(s) shall ascertain his/her genuine intentions and that the adoption is a. Parental Authority. - Except in cases where the biological parent is the spouse of the
in the best interest of the child. adopter, all legal ties between the biological parent(s) and the adoptee shall be severed
and the same shall then be vested on the adopter(s). (Section 16, RA 8552)
The Department shall intervene on behalf of the adoptee if it finds, after the conduct of
the case studies, that the petition should be denied. The case studies and other relevant If the adopters are husband and wife, the adoptee can use the surname of the adopting
documents and records pertaining to the adoptee and the adoption shall be preserved by father as his surname and the surname of the adopting mother as his middle name.
the Department.
If the father of an illegitimate whose wife is already dead, decided to adopt his own
c. Supervised Trial Custody. - No petition for adoption shall be finally granted until the illegitimate child, the surname of the child is the surname of the father while his middle
adopter(s) has been given by the court a supervised trial custody period for at least six name is the surname of his biological mother. (In re: Adoption of Stephanie Garcia, 456 S
(6) months within which the parties are expected to adjust psychologically and 541)
emotionally to each other and establish a bonding relationship. During said period,
temporary parental authority shall be vested in the adopter(s). b. Legitimacy. - The adoptee shall be considered the legitimate son/daughter of the
adopter(s) for all intents and purposes and as such is entitled to all the rights and
The court may motu proprio or upon motion of any party reduce the trial period if it finds obligations provided by law to legitimate sons/daughters born to them without
the same to be in the best interest of the adoptee, stating the reasons for the reduction of discrimination of any kind. To this end, the adoptee is entitled to love, guidance, and
the period. However, for alien adopter(s), he/she must complete the six (6)-month trial support in keeping with the means of the family. (Section 17, RA 8552)
custody except for those enumerated in Sec. 7 (b) (i) (ii) (iii).
c. Succession. - In legal and intestate succession, the adopter(s) and the adoptee shall
If the child is below seven (7) years of age and is placed with the prospective adopter(s) have reciprocal rights of succession without distinction from legitimate filiation. However,
through a pre-adoption placement authority issued by the Department, the prospective if the adoptee and his/her biological parent(s) had left a will, the law on testamentary
adopter(s) shall enjoy all the benefits to which biological parent(s) is entitled from the succession shall govern. (Section 18, RA 8552)
date the adoptee is placed with the prospective adopter(s). (Section 12, RA 8552)
Notes:
d. Decree of Adoption. - If, after the publication of the order of hearing has been complied The adoptee has the rights as that of legitimate child, thus he has successional rights
with, and no opposition has been interposed to the petition, and after consideration of the upon death of the adopter.
case studies, the qualifications of the adopter(s), trial custody report and the evidence
submitted, the court is convinced that the petitioners are qualified to adopt, and that the If the biological parents of the adoptee died, it appears that the law bars the child from
adoption would redound to the best interest of the adoptee, a decree of adoption shall be inheriting from his biological parents intestate by operation of law. This is one
entered which shall be effective as of the date the original petition was filed. This interpretation of the law. The proposition is there should be a complete severance. If not,
provision shall also apply in case the petitioner(s) dies before the issuance of the decree adopted children will be placed above the legitimate children for they can inherit either
of adoption to protect the interest of the adoptee. The decree shall state the name by from the biological parents and adopting parents.
which the child is to be known. (Section 13, RA 8552)
e. Civil Registry Record. - An amended certificate of birth shall be issued by the Civil HOWEVER, in one case, if the father of an illegitimate whose wife is already dead,
Registry, as required by the Rules of Court, attesting to the fact that the adoptee is the decided to adopt his own illegitimate child and the father dies, the child, having the rights
child of the adopter(s) by being registered with his/her surname. The original certificate of of legitimate child, is entitled to his successional rights. If the biological mother dies, the
birth shall be stamped "cancelled" with the annotation of the issuance of an amended child is also entitled to his successional rights because in that case there was allowance
birth certificate in its place and shall be sealed in the civil registry records. The new birth of using the surname of the mother as the child’s middle name the urpose of which is to
certificate to be issued to the adoptee shall not bear any notation that it is an amended identify maternal lineage and after all the child should have a mother. (In re: Adoption of
issue. (Section 14, RA 8552) Stephanie Garcia, 456 S 541)

f. Confidential Nature of Proceedings and Records. - All hearings in adoption cases shall If both the adopting parents died, can the adoptee file a petition for support from the
be confidential and shall not be open to the public. All records, books, and papers relating biological parents? NO, death of the adopting parents does not alter the consequences of
to the adoption cases in the files of the court, the Department, or any other agency or the adoption. The biological parents are not obliged to give support. Would your answer
institution participating in the adoption proceedings shall be kept strictly confidential. be the same if the child is still a minor? YES, for the same reason as stated above.

If the court finds that the disclosure of the information to a third person is necessary for What if the adoptee himself died, what are the consequences of his death with respect to
purposes connected with or arising out of the adoption and will be for the best interest of succession? (See Discussion in Succession)

64 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

d. Succession rights shall revert to its status prior to adoption, but only as of the date of
Rescission Of Adoption judgment of judicial rescission. Vested rights acquired prior to judicial rescission shall be
respected.
Grounds (Section 19, RA 8552)
Note: All the foregoing effects of rescission of adoption shall be without prejudice to the
Upon petition of the adoptee, with the assistance of the Department if a minor or if over penalties imposable under the Penal Code if the criminal acts are properly proven.
eighteen (18) years of age but is incapacitated, as guardian/counsel, the adoption may be
rescinded on any of the following grounds committed by the adopter(s): RASA
(a) repeated physical and verbal maltreatment by the adopter(s) despite having undergone
counseling;
(b) attempt on the life of the adoptee;
(c) sexual assault or violence; or
(d) abandonment and failure to comply with parental obligations.

Who May File

Only the adoptee can file a petition for rescission. Adoption, being in the best interest of the
child, shall NOT be subject to rescission by the adopter(s).

HOWEVER, the adopter(s) may disinherit the adoptee for causes provided in Article 919 of the
Civil Code. (Section 19, RA 8552)

Note: If the decree of adoption was issued prior to the effectivity of the Domestic Adoption Act
(1998 February 25), a petition for rescission is not allowed if such was filed after the effectivity
of the said law because the policy of the present law is to favor the child.

If the adoptee is still a minor, in filing the petition for rescission, he may be represented by the
guardian ad litem/duly appointed by the court; or if the minor is one who is declared available
for adoption, he may be represented by DSWD, orphanage or institution accredited by the
DSWD.

Effects of Rescission (Section 20, RA 8552)

a. The parental authority of the adoptee's biological parent(s), if known, or the legal custody
of the Department shall be restored IF the adoptee is still a minor or incapacitated.

Notes:
Upon rescission, who are the parents of the adopted child? The parents of the adoptee
are his biological parent(s), if known.

Can the biological parents refuse to restore their legal tie with the child? NO. The
biological parents have no choice because such is mandated by law. Besides, the child
can be adopted again by any qualified adopter.

Upon rescission, the child can use the surname of his biological father as his surname
and the surname of the mother as his middle name.

b. The reciprocal rights and obligations of the adopter(s) and the adoptee to each other
shall be extinguished.
c. Cancellation of the amended certificate of birth of the adoptee and restore his/her original
birth certificate by the Civil Register as ordered by the court.

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

X SUPPORT The obligation to give support shall be demandable from the time the person who has a right
to receive the same NEEDS it for maintenance, but it shall not be paid except from the date of
Concept and Extent judicial or extrajudicial demand.

SUPPORT – is that which comprises everything indispensable for SUSTENANCE, Support pendente lite may be claimed in accordance with the Rules of Court. (Art. 203 par 2
DWELLING, CLOTHING, MEDICAL ATTENDANCE, EDUCATION AND TRANSPORTATION, and 3, FC)
in keeping with the financial capacity of the family.
Exemption from Levy and Attachment
The education of the person entitled to be supported referred to in the preceding paragraph
shall include his schooling or training for some profession, trade or vocation, even beyond the The right to receive support under this Title as well as any money or property obtained as such
age of majority. Transportation shall include expenses in going to and from school, or to and support shall not be levied upon on attachment or execution. (Art. 205, FC)
from place of work. (Art 194, FC)
Who Must Pay Support (Art 195, FC)
Kinds of Support
The following are obliged to support each other:
a. As to amount: 1. The spouses;

1. Natural (bare necessities of life) During the proceedings for legal separation or for annulment of marriage, and for
2. Civil (in accordance with financial standing) declaration of nullity of marriage, the spouses and their children shall be supported from
the properties of the absolute community or the conjugal partnership. (Art. 198, FC)
b. As to source of obligations:
After the final judgment granting the petition of annulment or declaration of nullity of
1. Legal (based from law) marriage, the obligation of mutual support between the spouses ceases. (Art. 198, FC)
2. Voluntary / Contractual Support (from agreement or from provision of a will)
However, in case of legal separation, the court may order that the guilty spouse shall give
c. Special kind (alimony pendente lite) support to the innocent one, specifying the terms of such order. (Art. 198, FC) But the
innocent spouse is not obliged to give support to the erring spouse.
Actual Need v. Capacity to Pay
If both spouses are living separately, both of them have been unfaithful to each other,
Art. 201. The amount of support, in the cases referred to in Articles 195 and 196, shall be in and the husband has been giving allowance to the wife, the latter may still file an action
proportion to the resources or means of the giver and to the necessities of the recipient. for maintenance because both of them are at fault. The husband cannot use as a
defense the adulterous act committed by the wife. Besides, the giving of allowance to the
Art. 202. Support in the cases referred to in the preceding article shall be reduced or increased wife is implied condonation of the adultery.
proportionately, according to the reduction or increase of the necessities of the recipient and
the resources or means of the person obliged to furnish the same. In a petition for support filed by the wife, it is insufficient for the husband, as a defense to
claim that the wife is guilty of adultery. There must be sufficient and competent evidence.
Thus, in one case, SC held that the provision for a common fund for the benefit of the child
cannot be considered final and res judicata since any judgment for support is always subject The wife may obliged her husband to pay the fee of the lawyer who defended her in case
to modification depending upon the needs of the child and capabilities of the parents to give of acquittal, BUT NOT in case of conviction.
support.
2. Legitimate ascendants and descendants;
Who Is Entitled to Support (Art 195, FC)
Illustration:
Those provided under Art 195 are the same persons who are entitled to support from each If the husband abandoned the family to cohabit with his paramour, can the wife file a
other. petition for support against the parents of the husband for their children and herself? Yes,
but only with respect to support in favor of their children because they are their legitimate
A right to support is not terminated after reaching the age of majority. Support is descendants, provided that inability on the part of the husband to give support be proven.
imprescriptible. W cannot ask support for herself because her relationship with the parents of her
husband is by affinity and as such the parents-in-law are not obliged to give support to
When Demandable her. The obligation to give support in a relation by affinity is only required between
husband and wife. In the same manner, W is not also obliged to give support to her
parents-in-law.

66 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

If one of the parents died, who is obliged to give support to the children? It is the However, in case of urgent need and by special circumstances, the judge may order only
surviving parent. If he/she remarries, the 2nd spouse is not obliged to give support to the one of them to furnish the support provisionally, without prejudice to his right to claim
children of the former in the previous marriage because of absence of relationship. In this from the other obligors the share due from them.
case the support will be taken from the separate property of the surviving parent. This is
why properties acquired after termination of the previous marriage shall not form part of When two or more recipients at the same time claim support from one and the same
the ACP or CPG of the subsequent marriage to answer for the support of the children person legally obliged to give it, should the latter not have sufficient means to satisfy all
although the latter may advance the support of the children but such is considered a debt claims, the order established in the preceding article shall be followed, UNLESS the
subject to reimbursement. concurrent obligees should be the spouse and a child subject to parental authority, in
which case the child shall be preferred. (Art. 200, FC)
Can the illegitimate child of the husband file a petition for support against the wife of the
husband? NO, because the child is not related to the wife. What if the petition is directed Thus, in case of separation de facto, the wife filed a petition for support against the erring
against the parents of the husband or the child’s grandparents, will the petition prosper? husband the amount of 35K monthly. The husband’s net income monthly is 35K. The
Yes, because the parents are obliged to give support in favor of their legitimate children expenses of their children as alleged is 25K monthly and the wife’s expenses is 10K
and the legitimate and illegitimate children of the latter. monthly. The needs of the children are preferred. The excess shall be divided
proportionately between the husband and the wife except when the wife is gainfully
3. Parents and their legitimate children and the legitimate and illegitimate children of the employed and able to support herself.
latter;
4. Parents and their illegitimate children and the legitimate and illegitimate children of the
latter; and How Support is Given
5. Legitimate brothers and sisters, whether of full or half-blood.
Payment shall be made within the first five days of each corresponding month or when the
Notes: Brothers and sisters not legitimately related, whether of the full or half-blood, are recipient dies, his heirs shall not be obliged to return what he has received in advance. (Art.
likewise bound to support each other to the full extent set forth in Article 194, except only 203 par 3, FC)
when the need for support of the brother or sister, being of age, is due to a cause
imputable to the claimant's fault or negligence. (Art. 196, FC) In this case, the one The person obliged to give support shall have the option to fulfill the obligation either by paying
entitled to support, it is not sufficient that the need for support is not due to his fault or the allowance fixed, or by receiving and maintaining in the family dwelling the person who has
negligence but there must be proof of filiation, that is, he has been recognized as an a right to receive support. The latter alternative cannot be availed of in case there is a moral or
illegitimate child. legal obstacle thereto. (Art. 204, FC)

Sources of Support Right of Third Persons Who Pay


In case of legitimate ascendants; descendants, whether legitimate or illegitimate; and
brothers and sisters, whether legitimately or illegitimately related, only the separate When, without the knowledge of the person obliged to give support, it is given by a stranger,
property of the person obliged to give support shall be answerable provided that in case the latter shall have a right to claim the same from the former, UNLESS it appears that he
the obligor has no separate property, the absolute community or the conjugal partnership, gave it without intention of being reimbursed. (Art. 206, FC)
if financially capable, shall advance the support, which shall be deducted from the share
of the spouse obliged upon the liquidation of the absolute community or of the conjugal When the person obliged to support another unjustly refuses or fails to give support when
partnership. (Art. 197, FC) urgently needed by the latter, any third person may furnish support to the needy individual,
with right of reimbursement from the person obliged to give support. This Article shall
Order of Liability in case 2 or More Persons are Obliged to Give support (Art. 199, particularly apply when the father or mother of a child under the age of majority unjustly
FC) refuses to support or fails to give support to the child when urgently needed. (Art. 207, FC)

Whenever two or more persons are obliged to give support, the liability shall devolve Contractual Support or Support in a Will
upon the following persons in the order herein provided:
1. The spouse; Contractual support – is an agreement to give support between parties not obliged to give
2. The descendants in the nearest degree; support; what may be given is subject to the agreement of the parties, thus may be partial or
3. The ascendants in the nearest degree; and full; it is subject to levy or attachment. As compared to legal support, the latter is one
4. The brothers and sisters. established by law; it comprises everything indispensable for sustenance, dwelling, clothing,
medical attendance, education and transportation, in keeping with the financial capacity of the
Sources of Fund family, thus to the full extent; and not subject to levy, attachment or execution.
When the obligation to give support falls upon two or more persons, the payment of the
same shall be divided between them in proportion to the resources of each. Note: In case of contractual support or that given by will, the excess in amount beyond that
required for legal support shall be subject to levy on attachment or execution.

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

Furthermore, contractual support shall be subject to adjustment whenever modification is reimbursement thereof in a separate action from the person legally obliged to give such
necessary due to changes of circumstances manifestly beyond the contemplation of the support.
parties. (Art. 208, FC)

Procedure (Rule 61, 1997 Rules of Civil Procedure)

Section 1. Application. At the commencement of the proper action or proceeding, or at any


time prior to the judgment or final order, a verified application for support pendente lite may be
filed by any party stating the grounds for the claim and the financial conditions of both parties,
and accompanied by affidavits, depositions or other authentic documents in support thereof.

Sec. 2. Comment. A copy of the application and all supporting documents shall be served
upon the adverse party, who shall have five (5) days to comment thereon unless a different
period is fixed by the court upon his motion. The comment shall be verified and shall be
accompanied by affidavits, depositions or other authentic documents in support thereof.

Sec. 3. Hearing. After the comment is filed, or after the expiration of the period for its filing, the
application shall be set for hearing not more than three (3) days thereafter. The facts in issue
shall be proved in the same manner as is provided for evidence on motions.

Sec. 4. Order. The court shall determine provisionally the pertinent facts, and shall render
such orders as justice and equity may require, having due regard to the probable outcome of
the case and such other circumstances as may aid in the proper resolution of the question
involved. If the application is granted, the court shall fix the amount of money to be
provisionally paid or such other forms of support as should be provided, taking into account
the necessities of the applicant and the resources or means of the adverse party, and the
terms of payment or mode for providing the support. If the application is denied, the principal
case shall be tried and decided as early as possible.

Sec. 5. Enforcement of order. If the adverse party fails to comply with an order granting
support pendente lite, the court shall, motu proprio or upon motion, issue an order of execution
against him, without prejudice to his liability for contempt.

When the person ordered to give support pendente lite refuses or fails to do so, any third
person who furnished that support to the applicant may, after due notice and hearing in the
same case, obtain a writ of execution to enforce his right of reimbursement against the person
ordered to provide such support. (n)

Sec. 6. Support in criminal cases. In criminal actions where the civil liability includes support
for the offspring as a consequence of the crime and the civil aspect thereof has not been
waived, reserved or instituted prior to its filing, the accused may be ordered to provide support
pendente lite to the child born to the offended party allegedly because of the crime. The
application therefor may be filed successively by the offended party, her parents, grandparents
or guardian and the State in the corresponding criminal case during its pendency, in
accordance with the procedure established under this Rule.

Sec. 7. Restitution. When the judgment or final order of the court finds that the person who
has been providing support pendente lite is not liable therefor, it shall order the recipient
thereof to return to the former the amounts already paid with legal interest from the dates of
actual payment, without prejudice to the right of the recipient to obtain reimbursement in a
separate action from the person legally obliged to give the support. Should the recipient fail to
reimburse said amounts, the person who provided through same may likewise seek

68 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

X. PARENTAL AUTHORITY AND CUSTODY 1. Legitimate children - The father and the mother shall jointly exercise parental authority
over the persons of their common children. (Art. 211, FC)
PATRIA POTESTAS, CONCEPT AND EVOLUTION
In this case there is no need of judicial authority.
In the Roman and Germanic law, the patria potestas conferred on the father the power of life
or death over the children which will last until the lifetime of the father. This authority is 2. Illegitimate children – it is always the mother who exercises parental authority even if the
established primarily for his benefit. The modern view, manifested in our code, means that this father recognized the child.
authority is for the benefit of the children and granted to the parents as a consequence of the
heavy responsibilities imposed upon them by law, which they have to discharge. Effect of Disagreement, Absence / Death, Separation or Termination of Marriage of
Parents
PARENTAL AUTHORITY (PATRIA POTESTAS) -the sum of rights and obligations which
parents have in relation to the person and property of their children, until their majority age or In case of DISAGREEMENT, the father's decision shall prevail, UNLESS there is a judicial
emancipation, and under certain circumstances. order to the contrary. (Art. 211, FC)

It is the natural right and duty of parents over the person and property of their unemancipated In case of ABSENCE OR DEATH of either parent, the parent present shall continue exercising
children which INCLUDES the caring for and rearing of such children for civic consciousness parental authority. The remarriage of the surviving parent shall not affect the parental authority
and efficiency and the development of their moral, mental and physical character and well- over the children, unless the court appoints another person to be the guardian of the person or
being. (Art 209, FC) property of the children. (Art. 212, FC)

Parental authority is not limited to the rights of parents over their children because such is In case of SEPARATION of the parents, parental authority shall be exercised by the parent
reciprocal. Children under parental authority are obliged to observed obedience, love, and designated by the Court. The Court shall take into account all relevant considerations,
respect towards their parents. Children shall always observe respect and reverence towards especially the choice of the child over seven years of age, unless the parent chosen is unfit
their parents and are obliged to obey them as long as the children are under parental (The 2nd spouse has no right of parental authority over the child). No child under 7 years of
authority. (Art 211, FC) age shall be separated from the mother, unless the court finds compelling reasons to order
otherwise. (Art. 213, FC)
It is for the purpose of strengthening the family as the foundation of the nation and to protect
the marriage institution as the foundation of the family. (Art. XV, Sec. 3 (1) and (2), 1987
Constitution) Thus, the State shall defend: Art. 49. During the pendency of the action and in the absence of adequate provisions in a
a.) Right of spouses: to found a family in accordance with their religious convictions and written agreement between the spouses, the Court shall provide for the support of the
the demands of responsible parenthood. spouses and the custody and support of their common children. The Court shall give
b.) Right of children: to assistance, including proper care and nutrition, and special paramount consideration to the moral and material welfare of said children and their choice of
protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions the parent with whom they wish to remain as provided to in Title IX. It shall also provide for
prejudicial to their development. appropriate visitation rights of the other parent.

CHILD - refers to person below eighteen (18) years of age or those over but are unable to fully Art. 50. The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and by Article
take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or 44 shall also apply in the proper cases to marriages which are declared ab initio or annulled
discrimination because of a physical or mental disability or condition. (R.A 7610) It refers to a by final judgment under Articles 40 and 45.
person under 18 years of age. (RA 9344) The final judgment in such cases shall provide for the liquidation, partition and distribution of
the properties of the spouses, the custody and support of the common children, and the
Characteristic of Parental Authority delivery of third presumptive legitimes, unless such matters had been adjudicated in previous
judicial proceedings.
GENERAL RULE: Parental authority and responsibility may not be renounced or transferred
except in the cases authorized by law. (Art 210, FC) Art. 62. During the pendency of the action for legal separation, the provisions of Article 49
shall likewise apply to the support of the spouses and the custody and support of the
EXCEPTIONS: GAC common children.
a. guardianship
b. adoption Art. 63. One of the effects of legal separation is that the custody of the minor children shall
c. commitment of the child in entities and institutions engaged in child care or in children’s be awarded to the innocent spouse, subject to the provisions of Article 213 of FC.
home duly accredited by the proper government agency
In case of legal separation, still both exercise parental authority over the child. What may be
Who Exercises Parental Authority and Custody awarded in favor of one over the other is parental custody or physical company of the child
and such will not divest of the right to parental authority which is broader in scope.

69 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

In case both parents died, grandparents judicially appointed by the court will exercise parental Extent of Authority
authority.
The person exercising substitute parental authority shall have the same authority over the
Duties of Children person of the child as the parents. (Art. 233 par 1, FC)

Children shall always observe respect and reverence towards their parents AND are obliged to SPECIAL PARENTAL AUTHORITY
obey them as long as the children are under parental authority. (Art 211 par 2, FC)
When Applicable
Filial Privilege Rule
In case of minor under supervision, instruction or custody. (Art 218, FC)
No descendant shall be compelled, in a criminal case, to testify against his parents and
grandparents, EXCEPT when such testimony is indispensable in a crime against the Who Exercises
descendant or by one parent against the other. (Art 215, FC)
HOWEVER, under the Rules on Evidence: “No person may be compelled to testify against his The school, its administrators and teachers, or the individual, entity or institution engaged in
parents, other direct ascendants, children or other direct descendants (Rule 130, sec. 25).” child shall have special parental authority and responsibility over the minor child while under
Thereupon, should a conflict arise between this provision and civil code provision, the latter their supervision, instruction or custody. (Art 218, FC)
prevails, since a procedural rule cannot impair substantive law.
Those given the authority and responsibility under the preceding Article shall be principally
SUBSTITUTE PARENTAL AUTHORITY and solidarily liable for damages caused by the acts or omissions of the unemancipated minor.
The parents, judicial guardians or the persons exercising substitute parental authority over
When Applicable said minor shall be subsidiarily liable. (Art 219 par 1, FC)

1. In case of death, absence or unsuitability of the parents. (Art. 214, FC)


2. In default of parents or a judicially appointed guardian. (Art. 216, FC) The respective liabilities of those referred to in the preceding paragraph shall not apply if it is
3. When the best interests of the child so requires. (Art. 222, FC) proved that they exercised the proper diligence required under the particular circumstances.
(Art 219 par 2, FC)
Who May Exercise
1. In case of death, absence or unsuitability of the parents, substitute parental authority All other cases not covered by this and the preceding articles shall be governed by the
shall be exercised by the surviving grandparent. In case several survive, the one provisions of the Civil Code on quasi-delicts. (Art 219 par 3, FC)
designated by the court, taking into account the same consideration mentioned in the
preceding article, shall exercise the authority. (Art. 214, FC) Extent of Special Parental Authority
2. In default of parents or a judicially appointed guardian, the following person shall exercise
substitute parental authority over the child in the order indicated: (Art. 216, FC) Authority and responsibility shall apply to all authorized activities whether inside or outside the
premises of the school, entity or institution. (Art 218, FC)
(1) The surviving grandparent, as provided in Art. 214;
In no case shall the school administrator, teacher of individual engaged in child care
(2) The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified; exercising special parental authority inflict corporal punishment upon the child. (Art 233 par 2,
and FC)

(3) The child's actual custodian, over twenty-one years of age, unless unfit or disqualified.

Whenever the appointment or a judicial guardian over the property of the child becomes EFFECTS OF PARENTAL AUTHORITY UPON THE PERSONS OF THE CHILDREN
necessary, the same order of preference shall be observed.
The parents and those exercising parental authority shall have with the respect to their
3. In case of foundlings, abandoned neglected or abused children and other children unemancipated children or wards the following rights and duties: (Art 220, FC)
similarly situated, parental authority shall be entrusted in summary judicial proceedings to 1. To keep them in their company, to support, educate and instruct them by right precept
heads of children's homes, orphanages and similar institutions duly accredited by the and good example, and to provide for their upbringing in keeping with their means;
proper government agency. (Art. 217, FC) 2. To give them love and affection, advice and counsel, companionship and understanding;
3. To provide them with moral and spiritual guidance, inculcate in them honesty, integrity,
4. When the best interests of the child so requires, the one appointed by the court as a self-discipline, self-reliance, industry and thrift, stimulate their interest in civic affairs, and
guardian of the child's property or a guardian ad litem (following the order established in inspire in them compliance with the duties of citizenship;
Art 216). (Art. 222, FC)

70 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

4. To furnish them with good and wholesome educational materials, supervise their entitled to the assistance of counsel, either of his choice or appointed by the court, and a
activities, recreation and association with others, protect them from bad company, and summary hearing shall be conducted wherein the petitioner and the child shall be heard.
prevent them from acquiring habits detrimental to their health, studies and morals;
5. To represent them in all matters affecting their interests; However, if in the same proceeding the court finds the petitioner at fault, irrespective of the
6. To demand from them respect and obedience; merits of the petition, or when the circumstances so warrant, the court may also order the
7. To impose discipline on them as may be required under the circumstances; and deprivation or suspension of parental authority or adopt such other measures as it may deem
8. To perform such other duties as are imposed by law upon parents and guardians. just and proper.

Note: Parents and other persons exercising parental authority shall be CIVILLY LIABLE for the Art. 224. The measures referred to in the preceding article may include the commitment of the
injuries and damages caused by the acts or omissions of their unemancipated children living child for not more than thirty days in entities or institutions engaged in child care or in
in their company and under their parental authority subject to the appropriate defenses children's homes duly accredited by the proper government agency.
provided by law. (Art. 221, FC)
The parent exercising parental authority shall not interfere with the care of the child whenever
Illustrations: committed but shall provide for his support. Upon proper petition or at its own instance, the
If the child is on vacation with his grandparents and caused injury to another child, his parents court may terminate the commitment of the child whenever just and proper.
may still be impleaded in an action for damages because while the child is not living in their
company, the law should be interpreted to mean legal parental authority and custody and not EFFECTS OF PARENTAL AUTHORITY UPON PROPERTY OF CHILDREN
necessarily limited to physical custody.
Art. 225. The father and the mother shall jointly exercise legal guardianship over the property
At the time of causing injury, the child who committed the act complained is the subject of a of the unemancipated common child without the necessity of a court appointment. In case of
pending adoption proceeding. By the time the judgment is to be rendered in the civil case, the disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary.
adoption decree was already issued. In this case, the adopters cannot be impleaded because
the biological parents have still parental authority over the child at the time of the commission Where the market value of the property or the annual income of the child exceeds P50,000,
of the act complained of. the parent concerned shall be required to furnish a bond in such amount as the court may
determine, but not less than ten per centum (10%) of the value of the property or annual
The child who caused injury to a classmate is a kindergarten pupil. The incident took place income, to guarantee the performance of the obligations prescribed for general guardians.
within the premises of the school. Who shall be impleaded? The school, its administrators and
teachers, as well as the parents of the child shall be impleaded. The ordinary rules on guardianship shall be merely suppletory except when the child is under
substitute parental authority, or the guardian is a stranger, or a parent has remarried, in which
If the incident took place during an educational trip, the school may still be impleaded provided case the ordinary rules on guardianship shall apply.
the educational trip is an authorized activity of the school. This notwithstanding the fact that
the victim is not a student of the said school. In the event that the teacher who supervises the Notes:
child went to bathroom, such teacher is considered negligent. He should have been The property of the minor should be registered in the name of the minor because he is the
substituted by another to supervise the children. The said persons may be impleaded despite owner thereof. It shall not be registered in the name of his parents. Judicial appointment is not
the fact that the minor is rich because the consideration is the minority of the one who caused necessary for the administration and management of the property of the child.
injury.
The parents, as administrator of the property of the child can lease the property even without
The defense of the school and others who are exercising special parental authority is the prior judicial authorization. If the leased is for more than 1 year, there is a need for prior
exercise of due diligence as in quasi-delict. For the parents, they can say that they could not judicial authorization because such amounts to encumbrance. They cannot lease for 1 year
exercise due diligence in supervising their child. with option to buy because such amount to an act of disposition UNLESS there is a prior
judicial authorization.
If the assailant and victim are no longer minors and the incident took place in the school where
they are studying, the school, its administrators and teachers may be impleaded based on The parents cannot also sell the property of their minor child UNLESS there is a prior judicial
contract because the contract between the school and student provided that the school should authorization and provided that the sale is for the benefit of the child.
provide adequate measures to protect the student. Quasi-delict may also the basis of action
for damages. Schools of arts and trade included even schools which are purely academic
institution (no distinction).
Art. 226. The property of the unemancipated child earned or acquired with his work or industry
DISCIPLINARY MEASURES or by onerous or gratuitous title shall belong to the child in ownership and shall be devoted
exclusively to the latter’s support and education, unless the title or transfer provides otherwise.
Art. 223. The parents or, in their absence or incapacity, the individual, entity or institution
exercising parental authority, may petition the proper court of the place where the child The right of the parents over the fruits and income of the child’s property shall be limited
resides, for an order providing for disciplinary measures over the child. The child shall be primarily to the child’s support and secondarily to the collective daily needs of the family.

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

b. Gives the child corrupting orders, counsel or example;


Art. 227. If the parents entrust the management or administration of any of their properties to c. Compels the child to beg; or
an unemancipated child, the net proceeds of such property shall belong to the owner. The d. Subjects the child or allows him to be subjected to acts of lasciviousness.
child shall be given a reasonably monthly allowance in an amount not less than that which the
owner would have been paid if the administrator were a stranger, unless the owner, grants the The grounds enumerated above are deemed to include cases which have resulted from
entire proceeds to the child. In any case, the proceeds thus given in whole or in part shall not culpable negligence of the parent or the person exercising parental authority.
be charged to the child’s legitime.
If the degree of seriousness so warrants, or the welfare of the child so demands, the
TERMINATION OF PARENTAL AUTHORITY court shall deprive the guilty party of parental authority or adopt such other measures as
may be proper under the circumstances.
Grounds for Permanent Termination
The suspension or deprivation may be revoked and the parental authority revived in a
Art. 228. Parental authority terminates permanently: case filed for the purpose or in the same proceeding if the court finds that the cause
therefor has ceased and will not be repeated.
(1) Upon the death of the parents;

(2) Upon the death of the child; or

(3) Upon emancipation of the child.

(4) If the person exercising parental authority has subjected the child or allowed him to be
subjected to sexual abuse, such person shall be permanently deprived by the court of
such authority. (Art. 232, FC)

Grounds for Temporary Termination

Art. 229. Unless subsequently revived by a final judgment, parental authority also terminates:

(1) Upon adoption of the child;

(2) Upon appointment of a general guardian;

(3) Upon judicial declaration of abandonment of the child in a case filed for the purpose;

(4) Upon final judgment of a competent court divesting the party concerned of parental
authority; or

(5) Upon judicial declaration of absence or incapacity of the person exercising parental
authority.

SUSPENSION OF PARENTAL AUTHORITY

Grounds

1. Upon conviction of the parent or the person exercising the same of a crime which carries
with it the penalty of civil interdiction. (Art. 230, FC)

The authority is automatically reinstated upon service of the penalty or upon pardon or
amnesty of the offender.

2. The court in an action filed for the purpose in a related case may also suspend parental
authority if the parent or the person exercising the same: (Art. 231, FC)
a. Treats the child with excessive harshness or cruelty;

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

XI. EMANCIPATION AND AGE OF MAJORITY

Concept

EMANCIPATION – is the release of a person from parental authority whereby he becomes


capacitated for civil life.

Effects

Emancipation for any cause shall terminate parental authority over the person and property of
the child who shall then be qualified and responsible for all acts of civil life. (Art. 236, FC)

When Emancipation Take Place

Emancipation takes place by the attainment of majority. Unless otherwise provided, majority
commences at the age of 18 years. (Art 234, FC, as amemded by RA 6809)

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

XII. NAMES AND SURNAMES 3. Her husband's full name, but prefixing a word indicating that she is his wife, such as
"Mrs." (Art 370, NCC)
NAME OF A PERSON – describes identity of a person to distinguish him from others.
In case of ANNULMENT of marriage, and the wife is the guilty party, she shall resume her
Characteristics maiden name and surname. If she is the innocent spouse, she may resume her maiden name
1. Absolute (to protect a person from being confused with another) and surname. HOWEVER, she may choose to continue employing her former husband's
2. Obligatory (no person can be without a name) surname, UNLESS:
3. Beyond the commerce of man (intransferrable/inalienable inter vivos or even mortis 1. The court decrees otherwise, or
causa but subject to trademarks or service marks) 2. She or the former husband is married again to another person. (Art 371, NCC)
4. Imprescriptible (same name even after death)
5. Fixed - may only be changed as a result of When LEGAL SEPARATION has been granted, the wife shall continue using her name and
a. legal consequences – marriage, legitimation/change of status; or surname employed before the legal separation. (Art 372, NCC)
b. by judicial decree due to the ff. grounds:
i. change of status of person A WIDOW may use the deceased husband's surname as though he were still living, in
ii. name is ridiculous, tainted with dishonor, or extremely difficult to pronounce or accordance with article 370. (Art 373, NCC)
write
iii. publicly known for a new name for a long period of time. Similarity and Identity of Names
iv. sincere desire to adopt Filipino name to remove all badges of foreign origin
In case of identity of names and surnames, the younger person shall be obliged to use such
Parts of Name additional name or surname as will avoid confusion. (Art 374, NCC)
1. Legitimate Child
a. Given name In case of identity of names and surnames between ascendants and descendants, the word
b. Middle name – mother’s surname "Junior" can be used only by a son (also to daughter, no prohibition). Grandsons and other
c. Surname/family name – father’s surname (Art 364 and 369, NCC) direct male descendants shall either:
1. Add a middle name or the mother's surname, or
2. Illegitimate child who is not recognized 2. Add the Roman numerals II, III, and so on. (Art 375, NCC)
a. Given name
b. Surname – mother’s surname (Art 368, NCC) Usurpation of Name / Surname in Relation to CA 142

3. Illegitimate child who is recognized Usurpation of a name and surname may be the subject of an action for damages and other
a. Given name relief. (Art 377, NCC) This is known as identity theft. There is no need of actual injury because
b. Middle name – mother’s surname there is already a potential harm. There can be civil and criminal liability.
c. Surname/family name – father’s surname (Art 366, NCC)
The unauthorized or unlawful use of another person's surname gives a right of action to the
4. Adopted child by husband and wife latter. (Art 378, NCC)
a. Given name
b. Middle name – wife adopter’s surname The employment of pen names or stage names is permitted, PROVIDED it is done in good
c. Surname – husband adopter’s surname (Arts 365 and 367, NCC) faith and there is no injury to third persons. Pen names and stage names cannot be usurped.
(Art 379, NCC)
5. Adopted by Single Person (putative father) – Stephanie Case
a. Given name GENERAL RULE: No person shall use different names and surnames (USE ONLY ONE
b. Middle name – biological mother’s surname NAME). (Art 380, NCC)
c. Surname – father’s surname
EXCEPT: One may use pen names or stage names, PROVIDED it is done in good faith and
6. Adopted by a Single Person other than Stephanie Case there is no injury to third persons.
a. Given Name
b. Surname – adopter’s surname Note: In all legal transactions, use the legal name.

Use of Surname by Women Change of Name


A MARRIED woman MAY use
1. Her maiden first name and surname and add her husband's surname, or No person can change his name or surname without judicial authority. (Art 376, NCC; See
2. Her maiden first name and her husband's surname or Discussion in Special Proceedings)

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

XIII. ABSENCE The judicial declaration of absence shall not take effect until 6 months after its publication
in a newspaper of general circulation. (Art. 386, NCC)
ABSENCE - a legal status of a person who is not in his domicile, his whereabouts being
unknown, and it is uncertain whether he is dead or alive. Appointment and Powers of Administrator

Stages of Absence An administrator of the absentee's property shall be appointed in accordance with article
1. Provisional/Temporary - when a person disappears from his domicile, his whereabouts 383. (Art. 387, NCC)
being unknown, and without leaving an agent to administer his property. (Art. 381, NCC)
The wife who is appointed as an administratrix of the husband's property cannot alienate
Remedies or encumber the husband's property, or that of the conjugal partnership, without judicial
authority. (Art. 388, NCC)
The judge, at the instance of an interested party, a relative, or a friend, may appoint a
person to represent him in all that may be necessary. (Art. 381, NCC) Termination of Administrator

This same rule shall be observed when under similar circumstances the power conferred 1. When the absentee appears personally or by means of an agent;
by the absentee has expired. (Art. 381, NCC) 2. When the death of the absentee is proved and his testate or intestate heirs appear;
The appointment referred to having been made, the judge shall take the necessary 3. When a third person appears, showing by a proper document that he has acquired
measures to safeguard the rights and interests of the absentee and shall specify the the absentee's property by purchase or other title.
powers, obligations and remuneration of his representative, regulating them, according to
the circumstances, by the rules concerning guardians. (Art. 382, NCC) Note: In these cases the administrator shall cease in the performance of his office, and
the property shall be at the disposal of those who may have a right thereto. (Art 389,
Who may be Appointed Provisional Representative NCC)
1. Present spouse - shall be preferred when no legal separation.
2. Any competent person - if the absentee left no spouse, or if the spouse present is a 3. Definite Absence / Presumptive Death – when the absentee is presumed dead.
minor. (Art. 383, NCC)
a. Ordinary Absence (No danger of Death)
Note: No acts of dominion to be exercised but only of general power of administration
except when there is court authority. After an absence of 7 years - presumed dead for all purposes, EXCEPT for those of
succession.
2. Normal/Declared – when a person disappears from his domicile, and 2 years having
elapsed without any news about the absentee or since the receipt of the last news (if no After an absence of 10 years - presumed dead for the purpose of opening
administrator/manager is appointed), or 5 years in case the absentee has left a person in succession If he disappeared after the age of 75 years, an absence of 5 years shall
charge of the administration of his property. (Art. 384, NCC) be sufficient in order that his succession may be opened. (Art 390, NCC)

Period b. Extra-ordinary Absence (there is danger of death)

After 2 years - in case the absentee left no person in charge of the administration of his After an absence of 4 years - presumed dead for ALL purposes, including the
property. division of the estate among the heirs.

After 5 years - in case the absentee has left a person in charge of the administration of Instances
his property. (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 years since the loss of the vessel
Who May File or aeroplane;
(2) A person in the armed forces who has taken part in war, and has been missing
The following may ask for the declaration of absence: for four years;
1. The spouse present; (3) A person who has been in danger of death under other circumstances and his
2. The heirs instituted in a will, who may present an authentic copy of the same; existence has not been known for four years. (Art 391, NCC)
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 ORDINARY ABSENCE EXTRAORDINARY/
the condition of his death. (Art 385, NCC) QUALIFIED ABSENCE
a. 7 YEARS, person 4 YEARS, person is
Effectivity Date presumed dead for all presumed dead for all
purposes except for purposes including those of

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

those of opening opening succession; 2 c. The provisions of the preceding article are understood to be without prejudice to the action
succession YEARS for purposes of of petition for inheritance or other rights which are vested in the absentee, his
b. 10 YEARS, person remarriage of the spouse representatives or successors in interest. These rights shall not be extinguished save by
presumed dead for present, under the following lapse of time fixed for prescription. In the record that is made in the Registry of the real
purposes of opening circumstances: estate which accrues to the coheirs, the circumstance of its being subject to the
succession except if he a. Person on board a vessel provisions of this article shall be stated. (Art. 395)
disappeared after the lost during a sea voyage
age of 75, in which case, or an aeroplane which is d. Those who may have entered upon the inheritance shall appropriate the fruits received in
a period of 5 years is missing; period is counted good faith so long as the absentee does not appear, or while his representatives or
sufficient. from the loss of the vessel successors in interest do not bring the proper actions. (Art. 396)
c. 4 YEARS, person or aeroplane.
presumed dead for b. Person in the armed Effect of Reappearance
purposes of remarriage forces who has taken part
of the spouse present. in war If the absentee appears, or without appearing his existence is proved, he shall recover his
c. Person in danger of death property in the condition in which it may be found, and the price of any property that may have
under other circumstances been alienated or the property acquired therewith; but he cannot claim either fruits or rents.
and his existence has not (Art. 392, NCC)
been known.

Note: In presumptive death there is no need of judicial declaration except for purposes of
remarriage.

Illustrations:
a. A disappeared in 1995 while there is a pending case filed by him against B for
damages, who is a partner is a partnership, and he left a will instituting X and Y as
testate heirs.

Any interested person may file a petition to represent the absentee in the pending
case. After 2 or 5 years, as the case may be, person allowed by law may file a
petition to be appointed as administrator. After 7 years (ordinary absence) or 4
years (extraordinary absence), the partnership is deemed dissolved. X and Y may
file a petition for probate of the will after 10 years (in case of ordinary absence or 5
years in case he is 75 at the time he disappeared) or 4 years (extraordinary
absence). In the latter case, the value of the estate shall be computed on the 1 st day
of disappearance.

b. B left a will in favor of A as devisee. C is the son of A. A disappeared in 1995. B died


2000. C must prove that A is still alive and present at the time of death of B.

c. If the father of A died, C, the grandson, shall inherit by representation. No need to


prove that A is alive and present.

Contingent Rights of the Absentee


a. Whoever claims a right pertaining to a person whose existence is not recognized must
prove that he was living at the time his existence was necessary in order to acquire said
right. (Art. 393)

b. Without prejudice to the provision of the preceding article, upon the opening of a succession
to which an absentee is called, his share shall accrue to his coheirs, unless he has heirs,
assigns, or a representative. They shall all, as the case may be, make an inventory of the
property. (Art. 394)

76 | P a g e
Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

XIV. CIVIL REGISTER


All other matters pertaining to the registration of civil status shall be governed by special laws.
CIVIL REGISTER – record of acts, events and judicial decrees concerning the civil status of (Art. 413, NCC)
persons. (Art. 407, NCC)
How May be Made
It is pursuant to parens patriae to constantly monitor those what are to be recorded.
1. Judicial Proceedings (in rem – mere publication is sufficient)
What Must Be Registered (Art. 408, NCC)
a. Births a. Summary – reception of evidence may be done ex-parte
b. Marriages i. correction of clerical/typographical errors (errors which are obvious to common
c. Deaths sense)
d. legal separations
e. annulments of marriage b. Adversarial – there is full blown trial if status of petitioner is directly affected. Also
f. judgments declaring marriages void from the beginning when there is change of name if ground is publicly known by such name.
g. legitimations e.g. change of sex from male to female; petition to delete the date of marriage in
h. adoptions birth certificate of child; petition to insert date of marriage (contracted after recording
i. acknowledgments of natural children of birth of child)
j. naturalization
k. loss or recovery of citizenship Note: A person of alien parents cannot file a petition for change of his former
l. civil interdiction citizenship to Filipino. He must file first for naturalization. If of Filipino mothers and
m. judicial determination of filiation born before the 1973 Constitution, the child shall elect Philippine citizenship.
n. voluntary emancipation of a minor (no longer applicable)
o. changes of name 2. Administrative Proceedings (RA 9048)
a. By way of petition to be filed with the Local Civil Registrar. Copy furnished the Local
Duty of Clerk of Court Registrar General (NSO Administrator)
b. Grounds
In cases of legal separation, adoption, naturalization and other judicial orders mentioned in the i. Clerical errors
preceding article, the clerk of the court which issued the decree has the duty: ii. Name or nickname is ridiculous, tainted with dishonor or extremely difficult to
a. to ascertain whether the same has been registered, and, write or pronounce
b. if this has not been done, to send a copy of said decree to the civil registry of the city or iii. New first name or nickname has been habitually and continuously used by the
municipality where the court is functioning. (Art. 409, NCC). In cases of legal separation, petitioner and he has been publicly known by the first name or nickname in the
adoption, naturalization and other judicial orders mentioned in the preceding article, it community
shall be the duty of the clerk of the court which issued the decree to ascertain whether iv. Change will avoid confusion.
the same has been registered, and if this has not been done, to send a copy of said
decree to the civil registry of the city or municipality where the court is functioning. (n) Change of Name, Mere Privilege

Probative Value of Civil Register Change of name can only be made once because it is a mere privilege. Convenience cannot
defeat legal purpose. SC did not allow the dropping of middle name just because in Singapore
The books making up the civil register and all documents relating thereto shall be considered do not usually use middle name.
public documents and shall be prima facie evidence of the facts therein contained. (Art. 410,
NCC)

Liability of Civil Registrar

Every civil registrar shall be civilly responsible for any unauthorized alteration made in any civil
register, to any person suffering damage thereby. However, the civil registrar may exempt
himself from such liability if he proves that he has taken every reasonable precaution to
prevent the unlawful alteration. (Art. 411, NCC)

Amendments / Correction of Entries

No entry in a civil register shall be changed or corrected, without a judicial order. (Art. 412,
NCC)

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Saint Louis University - College of Law
Comprehensive Reviewer in Persons and Family Relations
By:
Dick Francisco Fernandez & Claryl-Anne D. Laminato

XV. FUNERALS

Duty and Right to Make Funeral Arrangements


The duty and the right to make arrangements for the funeral of a relative shall be in
accordance with the order established for support, under article 199, FC. (Art. 305, NCC)
Thus, the ff. is the order of preference:
a. Spouses
b. Descendants of the nearest degree
c. Ascendants of the nearest degree
d. Brothers and sisters

Note: In case of descendants of the same degree, or of brothers and sisters, the
oldest shall be preferred. In case of ascendants, the paternal shall have a better
right. (Art. 305, NCC)

Every funeral shall be in keeping with the social position of the deceased. (Art. 306, NCC)

The funeral shall be in accordance with the expressed wishes of the deceased. In the absence
of such expression, his religious beliefs or affiliation shall determine the funeral rites. In case
of doubt, the form of the funeral shall be decided upon by the person obliged to make
arrangements for the same, after consulting the other members of the family. (Art. 307, NCC)

Any person who shows disrespect to the dead, or wrongfully interferes with a funeral shall be
liable to the family of the deceased for damages, material and moral. (Art. 309, NCC)

Disposal of Body Organs

Authorities sustain the view that mortal remains or organs of a person’s body cannot be
considered property within the meaning of the law, thus they can not be the subject matter of a
contract.

HOWEVER, RA 349 as amended by RA 1056, a person may validly grant to a licensed


physician, surgeon, known scientist, of any medical or scientific institution to detach at any
time after the grantor’s death any organ of his body for medical, surgical or scientific purposes.
The grant must be:
a. In writing
b. Specify the grantee
c. Specify the purpose
d. Signed by the grantor and 2 disinterested witnesses

Expenses of Funeral Where Chargeable

Chargeable against the property of the deceased. However, such shall be chargeable to the
conjugal partnership property, if the deceased is one of the spouses. (Art. 310, NCC)

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