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PERSONS AND FAMILY RELATIONS Gazette considering its erratic release and limited

Article 3
Article 1
“Ignorance of the law excuses no one from
“This Act shall be known as the Civil Code of the compliance therewith”

This Code was embodied in Republic Act No. 386 Is this an absolute rule of the law?

No. It was cited in Kasilag vs. Rodriguez, “good faith”

Article 2 can be a valid defense to set up.

“Laws shall take effect after fifteen days In the abovementioned case, the non-alienation of land,
following the completion of their publication in under free patent or homestead, requirement of Section
the Official Gazette, unless it is otherwise 116 of Act No. 2874 was violated because an ordinary
provided. This Code shall take effect one year contract of mortgage was declared by the Court as a
publication.” contract of sale subject to alienation. This contract
turned to a contract of antichresis on a verbal agreement
Date of effectivity of the Civil Code of the Philippines – of the parties.
August 30, 1950
Good faith was set up because the intention of the
However, with regards to the publication requirement, possessor of the land (under the contract of antichresis)
the article says “laws” and not only referring solely in or the creditor only intends to collect the amount that
this Code. the debtor owe to him by means of the fruits of the land
he possessed from the latter.
Stated differently, publication is an indispensable
requirement for all laws. The phrase “unless
otherwise provided” is not applicable to the Can ignorance of our laws by persons of
publication requirement but in the number of different nationality be a valid defense?
days after publication requirement.
No. In the case of Elegado vs. Court of Tax Appeals, the
Court held that foreigners can also be bound in the laws
What laws are needed to be published? of our country.

In the case of Tanada vs. Tuvera, it was held that laws of The case involved a first assessment of estate tax liability
“general applicability” shall be published, such as which was petitioned by foreign lawyers but the same
Republic Acts, Executive Orders, Presidential Decrees, was denied, thus making the liability final and executory.
and the like. On the second assessment, which was lower than of the
first assessment, the Filipino lawyer contested its validity
Note: The whole law shall be published, not just some but the contention was denied by the Courts.
parts of it.
Also, in the above case, it was obvious that there is no
good faith on the part of the Filipino lawyer.
Is the Official Gazette the only place where the
publication is needed?

No. Though the initial intention of Article 2 is that the

publication of laws shall be in the Official Gazette, this
was amended by Executive Order No. 200 which
states that “Laws shall be effective after 15 days following
the completion of their publication either in the
Official Gazette of in a newspaper of general
circulation in the Philippines, unless otherwise

The reason was cited in Tanada vs. Tuvera, where it was

said that the publication need not be in the Official
Article 4 Article 5
“Laws shall have no retroactive effect, unless “Acts executed against the provisions of
otherwise provided.” mandatory or prohibitory laws shall be void,
except when the law itself authorizes their
What are the instances wherein a retroactive
effect is valid? In the case if Brehm vs. Republic, it was recognized that
a step father or step mother can adopt his step child
1. When the law expressly states retroactive effect (Article 338 of the Civil Code of the Philippines).
2. When the law is curative or correctional However, in the case of when the step father or
3. When the law is procedural step mother is a non-resident alien, adoption is
4. When the law is penal in character and is in not allowed (Article 335 (4) of the Civil Code of the
favor of the accused Philippines.

CASE 1 It was held in the above case that no matter how good
In the case of Atienza vs. Judge Brillantes, the Court the intention of the non-resident alien to legally adopt
invoked the retroactive application stated in Article 256 his/ her stepchild, since the law prohibits the adoption
of the Family Code in accordance with the nullity of made by a non-resident alien, it was not allowed nor it
previous marriage as stated in Article 40 if the same was valid.
Code. It shall have retroactive effect because there is no
right of a “nulled marriage” given to the accused prior to
the effectivity of the Family Code. Article 7
Note: 1965 – Celebration of First Marriage “Laws are repealed only by subsequent ones, and
1987 – Effective date of the Family Code their violation or non-observance shall not be
1991 – Celebration of Second Marriage excused by disuse, or custom, or practice to the

In the case of Article 256 of the Family Code, When the courts declare a law to be inconsistent
what is an example of right/s that can be with the Constitution, the former shall be void
prejudiced? and the latter shall govern.

CASE 2 Administrative or executive acts, orders and

However, in the case of Aruego vs. Court of Appeals, regulations shall be valid only when they are not
retroactive effect of Article 256 of the Family Code did contrary to the laws or the Constitution.”
not apply because it was expressly stated that it is not
applicable if there is a “previous right” or “vested right”
that will be prejudiced. In this case, the illegitimate child Article 18, Section 3 – 1987 Constitution
status of a person cannot be taken from him/her if the
same right or title was properly given to him/her “All existing laws, decrees, executive orders,
through a previous law, by virtue of proper procedures. proclamations, letters of instructions, and other
Nor it cannot take the right to apply for these procedures executive issuances not inconsistent with this
if the old law allowed him or her a “period” contrary to a Constitution shall remain operative until
general law to file his or her claim. amended, repealed, or revoked.”

Is it possible to apply the prohibition of a new Can a memorandum from the Executive repeal
law to a prior date not stated therein? an existing law?
CASE 3 No. It was expressly stated by Article 7 that “a law can
In the case of Espiritu vs. Cipriano, it was held that if the only be repealed by a subsequent law”. Thus, in
law expressly states the date or range of prohibition it the case of Frivaldo vs. Commission on Elections, it was
tends to apply, there can be no retroactive effect. held that a Letter of Instruction/ a memorandum issued
by the President does not, in effect, invalidate or repeal
an existing law. Citizenship that was granted by a law to,
in this case, is not being cancelled by a memorandum
because the latter is not a law.

Article 8 Rule 129 – Revised Rules of Court
“Judicial decisions applying or interpreting the Section 2
laws or the Constitution shall form part of the
legal system of the Philippines.” “Judicial notice, when discretionary — A court
may take judicial notice of matters which are of
public knowledge, or are capable to
Does this article apply to all Courts of the land? unquestionable demonstration, or ought to be
known to judges because of their judicial
No. The judicial decisions being recognized above are functions.”
only from the Supreme Court, and not from the lower
courts. Section 3

Thus, in the case of DM Consunji vs. Inc, it was held that “Judicial notice, when hearing necessary —
a prior decision made by the Supreme Court as to a case During the trial, the court, on its own initiative,
with similar facts, shall be applied to a subsequent one. or on request of a party, may announce its
The rationale is that to apply the law on a consistent intention to take judicial notice of any matter
basis. and allow the parties to be heard thereon.”

Article 9 What are customs?

“No judge or court shall decline to render The case of In re Salazar et al., defines customs as a rule
judgment by reason of the silence, obscurity or of conduct formed by repetition of acts; uniformly
insufficiency of the laws.” observed or practiced as a social rule, legally binding and
obligatory. It must also be proved as a fact according to
the rules of evidence.
Article 10
“In case of doubt in the interpretation and
application of laws, it is presumed that the CASE 1
lawmaking body intended right and justice to In the case of Martinez vs. Buskirk, the driver of a
prevail.” vehicle nor its employer cannot be held liable for
damages because it cannot be said that they are
negligent of their acts, if such act is the normal practice
in the industry.
Article 11
“Customs which are contrary to law, public In the case of In re Salazar et al., it was held that an act
order or public policy shall not be cannot be considered as a custom if it only
countenanced.” happened for the first time or where the Courts only
handled/ faced with such a case for the first time. The
case involves the use of the name of deceased partners in
Article 12 the name of the partnership of law practice and the court
ruled that they actually cannot. However, it was
“A custom must be proven as a fact, according to subsequently ruled that they can actually can, provided,
the rules of evidence.” that there’s a disclosure to the clients that the partners
were already deceased.

Article 12, Section 5 – 1987 Constitution

Why the Court recognizes customs in its
“The State, subject to the provisions of this decisions?
Constitution and national development policies
and programs, shall protect the rights of The answer is related to Article 9. There are instances
indigenous cultural communities to their that the Courts are faced with a case wherein the law is
ancestral lands to ensure their economic, social, obscure or there’s actually no law applying to it, but
and cultural well-being.” according to the said article, the courts cannot say that it
cannot make any judgment because the law does not so

provides. Thus, as a remedy, the Court will render Article 15
judgment using a different basis such as customs.
“Laws relating to family rights and duties, or to
Article 13 the status, condition and legal capacity of
persons are binding upon citizens of the
“When the law speaks of years, months, days or Philippines, even though living abroad.”
nights, it shall be understood that years are
three hundred sixty five days each; months, of
thirty days; days, of twenty four hours; and Article 26 (2) – Family Code of the
nights from sunset to sunrise. Philippines
If months are designated by their name, they “Where a marriage between a Filipino citizen
shall be computed by the number of days which and a foreigner is validly celebrated and a
they respectively have. divorce is thereafter validly obtained abroad by
the alien spouse capacitating him or her to
In computing a period, the first day shall be remarry, the Filipino spouse shall have capacity
excluded, and the last day included.” to remarry under Philippine law.”

Rule 22 – Revised Rules of Court What is the impact of Article 15 to civil cases
and criminal cases?
Section 1
Article 15 enumerates civil rights/ obligations where
“How to compute time — In computing any a citizen of the Philippines can be held liable, through a
period of time prescribed or allowed by these civil case, although living abroad.
Rules, or by order of the court, or by any
applicable statute, the day of the act or event On the other hand, as in the case of criminal cases, if a
from which the designated period of time begins citizen of the Philippines committed a crime abroad, he/
to run is to be excluded and the date of she cannot be held answerable under Philippine criminal
performance included. If the last day of the laws, because such laws are territorial in nature.
period, as thus computed, falls on a Saturday a
Sunday, or a legal holiday in the place where the
court sits, the time shall not run until the next Article 16
working day.”
“Real property as well as personal property is
Section 2 subject to the law of the country where it is
“Effect of interruption — Should an act be done
which effectively interrupts the running of the However, intestate and testamentary
period, the allowable period after such successions, both with respect to the order of
interruption shall start to run on the day after succession and to the amount of successional
notice of the cessation of the cause thereof. rights and to the intrinsic validity of
testamentary provisions, shall be regulated by
The day of the act that caused the interruption the national law of the person whose succession
shall be excluded in the computation of the is under consideration, whatever may be the
period.” nature of the property and regardless of the
country wherein said property may be found.”

Can the proper application of the period

provided by this article be a valid defense in the Can an alien’s property be subjected to
non-compliance of additional procedures Philippine laws in case of succession?
prescribed by law?
As provided by the above article, no. However, in the
No. In the case of Estanislao vs. Court of Appeals, it was case of Aznar vs. Christensen Garcia, the law of the
held that although the debtor-mortgagor has correctly Philippines was applied on the properties of a US
applied the 365 days rule in his right of redemption national deceased. The reason is that, when his will has
period, the same is not sufficient to exercise the right been tried to be probated in his country, there is no
unless the principal plus interest must be paid to the specific law that can be applied to such type of
creditor-mortgagee, as provided by Section 6 of Act No. succession. But, it was provided in their Civil Code that
the personal property of the owner shall be governed by Can a person be held liable for doing an
his domicile, unless otherwise provided. unlawful act and causing damages to another?

Because of the above provision on the country of the Yes. Article 20 is explicit on this matter. A damage that
alien, the will has been executed under the Philippine was sustained due to an illegal act by another shall
laws as the court ruled that the Philippines, was his be compensated to the aggrieved party.
domicile. This is an example of the concept of revoi.

CASE 2 Can payment of damages acquit another person

In the case of Bellis vs. Bellis, it was held that a will of an for doing an illegal act?
alien deceased shall be applied in his country since their
law of succession specifically provides that the concept of No. While it is true that Article 20 entitles the aggrieved
legitime (provided in the Philippine laws) is not party for damages, it does not follow that the unlawful
applicable to them. Thus, the law of his country shall act done be extinguished by mere payment or
prevail over the succession and renders the second will indemnification of damages. The act itself may be
executed in the Philippines illegal and void because it punishable by another branch of law, such
was already a violation of Article 16 of our Civil Code. criminal law, and be covered by another statute such as
the Revised Penal Code. Article 20 only applies for
Note: In both cases, article 16 (2) has been applied but the indemnity of damages incurred or sustained
has two different results – it was only successful in the due to the unlawful or illegal act of another.
case of Bellis. If there’s no subsequent action needed
because the law of the alien already provides a procedure
or ruling in the case of succession, such law shall be Can the acquittal of a person relieve him from
applied; application of the Philippine law will then be paying damages?
illegal and void.
No. In the case of People of the Philippines vs. Ritter,
although the accused was acquitted on the charge of rape
Article 19 with homicide on the grounds of reasonable doubt, he
was still required to pay for moral damages because of
“Every person must, in the exercise of his rights the fact he might be a contributor in the death of the
and in the performance of his duties, act with victim due to his acts.
justice, give everyone his due, and observe
honesty and good faith.”
What if the act done by the accused is lawful but
Article 20 causes damages to another, should there also be
an indemnification of damages?
“Every person, contrary to law, willfully and
negligently causes damage to another, shall Yes. This is where Article 21 comes into play. Such
indemnify the latter for the same.” provision protects the right of the aggrieved party to
receive damages, as long as based on the preponderance
of evidence, the accused willfully or intentionally
causes damages to another that is contrary to
Article 21 morals, good customs and public policy.
“Any person who willfully causes loss or injury CASE 1
to another in a manner that is contrary to In the case of Llorente vs. Sandiganbayan, it was held
morals, good customs or public policy shall that although the accused is acting legally and is acting
compensate the latter for damages.” based on the prescribed procedures, the facts showed
that he went beyond his powers and discriminately
causes damages to another. Indeed, it was his duty
The above provisions are intended to regulate human to do the prescribed procedures but being inconsistent
conduct, and almost have the same requisite, that is, the with his actions by not applying the same decision to
act shall be done intentionally or willfully. another person faced with the same conditions as the
other, is a different matter. Compensatory damages were
In general, what damages can be brought awarded to the aggrieved party since the act is contrary
against a person who willfully causes damages to morals, good customs and public policy.
to another?

 Actual Damages
 Compensatory Damages
 Moral Damages
CASE 2 obvious that she did such act with her consent and due
In the case of Wassmer vs. Court of Appeals, while it is to her love of the accused.
true that our Civil Code does not have any provision
which declares a promise to marry be unlawful, CASE 2
willfully eloping from a marriage celebration after all In the case of Nikko Hotel and Lim vs. Roberto Reyes,
the preparations have been done, is a different matter. the accused obviously consented to the injury he might
This was clearly an act contrary to morals, good customs receive by going to an “exclusive” party of another
and public policy as it has given the aggrieved party person, for which he himself is not invited. No damages
public humiliation. Actual and moral damages were can be recovered despite the allegations that he was
awarded to the aggrieved party. publicly humiliated, and such allegation was not proved
by the evidences presented.
In the case of Gashem Shookat Baksh vs. Court of EXCEPTION
Appeals, wherein the case also involves of a breach of In the case of Pe vs. Pe, it is true that the woman
promise to marry, damages was awarded to the consented to be in an unlawful (having an affair with a
aggrieved party since the facts showed that the accused married man) and immoral relationship with the
intentionally made a promise to marry just to execute accused, based on the fact that their family tried to
his worldly desires toward the other. In this case, the separate them. However, the Supreme Court
accused also abused the fact that the family of the granted the damages since the act was contrary to
woman is part of the “inferior families” of the morals, good customs and public policy since the
community, and marrying him could be one way to help accused have caused damages in their (family)
them. reputation.

In the case of Bunag vs. Court of Appeals, it was held Article 22
that damages can be awarded to the aggrieved party who
was promised to marry by another, due to the fact that “Every person who through an act or
the latter already cohabited with the aggrieved party for performance by another, or any other means,
21 days as if they are already husband and wife. In this acquires or comes into possession of something
case, the Court took the standpoint of the aggrieved at the expense of the latter without just or legal
party that she did not gave her consent (in fact, ground, shall return the same to him.”
allegedly claims that she was raped) to the accused
to do such acts. Needless to say, it was his intention to
cause damage to the woman when she abducted her and What are the requisites of this provision?
do such acts, which is contrary to morals, good customs
and public policy. 1. That the defendant has been enriched;
2. That the plaintiff has suffered a loss;
3. That the enrichment of the defendant is without
Should the aggrieved party also, whether in just or legal (unlawful) ground; and
part or in whole, consented to the injury 4. That the plaintiff has no other action based on
received, will there be an indemnification of contract, quasi contract, crime or quasi delict

No. What Articles 19, 20, and 21 are stressing, is that one CASE 1
person causing damages to another (of course, In the case of HL Carlos Construction vs. Marina
without the consent to be aggrieved), shall Properties, since the contract explicitly states that there
indemnify the latter for damages. will be an indemnification of price escalation as to labor
and both parties have agreed of the additional related
Volenti non fit injuria refers to self-inflicted injury or work which caused the said escalation, the Court ruled
when a person consented to the injury, he shall be that the indemnification is required because disallowing
precluded for the recovery of damages. it would result in the unjust enrichment of one of the

In the case of Hermosisima vs. Court of Appeals, it was In the case of Arturo Flores vs. Spouses Lindo, it was
held that the recovery of moral damages cannot be held that mere irregularity of the Rules of Procedures
awarded to the woman who alleges that she was seduced (mutual exclusivity of right to collect debt and
(because she said that there was actually a promise to foreclosure of mortgage) does not deprive a mortgagee-
marry) by another causing her to give in into his worldly creditor to collect the debt which is owed to him, for this
desires. The Court did not affirm her allegations as it was will result in unjust enrichment.

CASE 3 the status of the photo uploaded is “Friends Only”, there
In the case of UP vs. Philab Industries, there can be no is no assurance that these will not be available for
unjust enrichment if one is not a party of the contract. viewing for the friends of a person, who was tagged
While it is true that the UP is the beneficiary of the therein, thus a multiplier effect is present. In this case, it
laboratory equipment, claims against them cannot was deemed that the defendant or the children has
pursue because the party of the contract were Ferdinand consented to the injury received by not exercising
E. Marcos Foundation and Philab Industries. enough precautions of their actions.

However, the Court did not ruled for a situation wherein,

Article 26 if the post was set to a status of “Only Me” nor it has
ruled when the account of the defendants were accessed
“Every person shall respect the dignity, by persons who know their username and password
personality, privacy and peace of mind of his (such as Facebook administrators who has a database of
neighbors and other persons. The following and all of their user’s information), since these were not
similar acts, though they may not constitute a raised in this case.
criminal offense, shall produce a cause of action
for damages, prevention and other relief:
Article 31
(1) Prying into the privacy of another's
residence: "When the civil action is based on an obligation
not arising from the act or omission complained
(2) Meddling with or disturbing the private life of as a felony, such civil action may proceed
or family relations of another; independently of the criminal proceedings and
regardless of the result of the latter.”
(3) Intriguing to cause another to be alienated
from his friends;
Rule 111, Section 3 – Revised Rule of
(4) Vexing or humiliating another on account of Courts
his religious beliefs, lowly station in life, place of
birth, physical defect, or other personal “When civil action may proceed independently –
condition.” In the cases provided in Articles 32, 33, 34 and
2176 of the Civil Code of the Philippines, the
independent civil action may be brought by the
Is this limited to the above cases or situations offended party. It shall proceed independently of
enumerated? the criminal action and shall require only a
preponderance of evidence. In no case, however,
No. It was held in the case of Concepcion vs. Court of may the offended party recover damages twice
Appeals that the violations in the provision (Art. 26) are for the same act or omission charged in the
not exclusive but are merely examples and do not criminal action.”
preclude or exclude other similar or analogous acts.
There is a grant of damages in this case wherein What is the general rule for criminal cases in
humiliation by having allegedly accused of having an relation to civil liabilities?
affair with the sister-in-law of the defendant; and loss of
business was also experienced by the plaintiff due to it. As a rule, persons with criminal liabilities are also
deemed to have a civil liability (Article 100 of Revised
Penal Code). In the case of People of the Philippines vs.
Ritter, although the case being charged is rape (criminal
in character), award for damages (civil in character) was
granted although no separate civil case was filed
Is there an invasion of privacy when the because based on the preponderance of evidence, the
evidence was obtained from Facebook, Twitter, Court ruled that there is a violation of Article 21 of the
or other online social network? Civil Code. Note that in the case of Ritter, the accused
was acquitted because his guilt was not proven beyond
It depends. In the case of Vivares vs. St. Theresa’s reasonable doubt.
College, damages were not granted to the plaintiff when
their children have been deprived to attend the The above provisions are pertaining to civil cases filed
commencement exercises due to an incident (photos are separately and will pursue as an independent case from
uploaded in Facebook, which are contrary to school the criminal case.
policies) not permitted by the said institution. The
Court’s reason is that although the plaintiffs claim that

Should the criminal case be dismissed, what (6) The right against deprivation of property
will happen to the civil aspect of it? without due process of law;

It is a general rule that the civil aspect is already (7) The right to a just compensation when
attached in every criminal case, thus, when the latter was private property is taken for public use;
dismissed, the former will also be dismissed.
(8) The right to the equal protection of the laws;

Is this an absolute rule? Will the party claiming (9) The right to be secure in one's person,
for damages can’t prevent this to happen? house, papers, and effects against unreasonable
searches and seizures;
No. There are exceptions where a person can still
file a civil case although the criminal case was (10) The liberty of abode and of changing the
already dismissed, and they are: same;

1. The civil case was already filed prior to the (11) The privacy of communication and
filing of the criminal case correspondence;
2. When the person reserved the right to file a
civil action prior to the dismissal of the criminal (12) The right to become a member of
case (will file in the future) associations or societies for purposes not
If the person waived his right to file a civil case prior the contrary to law;
dismissal of the criminal case, he cannot change that
waiver in the future. (13) The right to take part in a peaceable
assembly to petition the government for redress
In the case of Hambon vs. Carantes, civil action was not of grievances;
granted to the plaintiff since he did not meet any of the
above enumeration in order to support his filing. (14) The right to be free from involuntary
servitude in any form;

Will there be a tendency of double claiming of (15) The right of the accused against excessive
civil action for damages? bail;

No. This is prohibited by Rule 111, Section 3 of the (16) The right of the accused to be heard by
Revised Rules of Court. If the civil case already granted himself and counsel, to be informed of the
damages, the same will not be granted in the criminal nature and cause of the accusation against him,
case, for which the criminal aspect will only be the one to have a speedy and public trial, to meet the
left needed to be decided upon by the Court. And if the witnesses face to face, and to have compulsory
criminal case already provided for damages, the same process to secure the attendance of witness in
will not be granted in the civil case. his behalf;

Article 32 (17) Freedom from being compelled to be a

witness against one's self, or from being forced
“Any public officer or employee, or any private to confess guilt, or from being induced by a
individual, who directly or indirectly obstructs, promise of immunity or reward to make such
defeats, violates or in any manner impedes or confession, except when the person confessing
impairs any of the following rights and liberties becomes a State witness;
of another person shall be liable to the latter for
damages: (18) Freedom from excessive fines, or cruel and
unusual punishment, unless the same is imposed
(1) Freedom of religion; or inflicted in accordance with a statute which
has not been judicially declared
(2) Freedom of speech; unconstitutional; and
(3) Freedom to write for the press or to
maintain a periodical publication; (19) Freedom of access to the courts.

(4) Freedom from arbitrary or illegal detention; In any of the cases referred to in this article,
whether or not the defendant's act or omission
(5) Freedom of suffrage; constitutes a criminal offense, the aggrieved
party has a right to commence an entirely
separate and distinct civil action for damages,

and for other relief. Such civil action shall  Quasi delict or that there is no pre-existing
proceed independently of any criminal relationship between the parties – Article 2176
prosecution (if the latter be instituted), and mat
be proved by a preponderance of evidence. In the case of Samson vs. Daway, civil action for
The indemnity shall include moral damages. damages can be pursued independently since it was filed
Exemplary damages may also be adjudicated. stating a violation of Article 33 (Fraud). Also, although
one of the court dismissed the criminal case, the civil
The responsibility herein set forth is not case was filed prior to the filing of the criminal case.
demandable from a judge unless his act or
omission constitutes a violation of the Penal
Code or other penal statute.” Should a civil case being filed does not fall with
the above enumerations, will the civil action
pursue independently?
Article 33
No. If they are not in the enumeration above, no separate
“In cases of defamation, fraud, and physical civil case can be bought before a court, thus leaving the
injuries a civil action for damages, entirely civil aspect solely to the criminal case.
separate and distinct from the criminal action,
may be brought by the injured party. Such civil
action shall proceed independently of the Article 36
criminal prosecution, and shall require only a
preponderance of evidence.” “Pre-judicial questions which must be decided
before any criminal prosecution may be
instituted or may proceed, shall be governed by
Article 34 rules of court which the Supreme Court shall
promulgate and which shall not be in conflict
“When a member of a city or municipal police with the provisions of this Code.”
force refuses or fails to render aid or protection
to any person in case of danger to life or
property, such peace officer shall be primarily Rule 111 – Revised Rules of Court
liable for damages, and the city or municipality
shall be subsidiarily responsible therefor. The Section 5
civil action herein recognized shall be
independent of any criminal proceedings, and a “Judgment in civil action not a bar — A final
preponderance of evidence shall suffice to judgment rendered in a civil action absolving the
support such action.” defendant from civil liability is not a bar to a
criminal action against the defendant for the
same act or omission subject of the civil action.”
Article 2176
Section 6
“Whoever by act or omission causes damage to
another, there being fault or negligence, is “Suspension by reason of prejudicial question —
obliged to pay for the damage done. Such fault or A petition for suspension of the criminal action
negligence, if there is no pre-existing contractual based upon the pendency of a prejudicial
relation between the parties, is called a quasi- question in a civil action may be filed in the
delict and is governed by the provisions of this office of the prosecutor or the court conducting
Chapter.” the preliminary investigation. When the
criminal action has been filed in court for trial,
the petition to suspend shall be filed in the same
What is the purpose of the above provisions? criminal action at any time before the
prosecution rests.”
The provisions enumerate the instances that can be a
ground for civil actions that can independently be filed
other than the criminal case. They are: What are prejudicial questions?

 Constitutional rights were violated – Article 32 It will be easier to define such term if the elements are
 Defamation, Fraud, or Physical Injuries – Article 33 available. (See Rule 111, Section 7)
 Refusal of a police officer – Article 34

Rule 111, Section 7 CHAPTER 2
The elements of a prejudicial question/s are:
Article 40
(a) the previously instituted civil action involves an issue
similar or intimately related to the issue raised in the “Birth determines personality; but the conceived
subsequent criminal action, and child shall be considered born for all purposes
that are favorable to it, provided it be born later
(b) the resolution of such issue determines whether or with the conditions specified in the following
not the criminal action may proceed. article.”

(c) two cases were filed in two different courts

Article 41
Simply stated, a criminal case may be dismissed on the “For civil purposes, the fetus is considered born
ground of prejudicial question if all of the above if it is alive at the time it is completely delivered
elements are present. The rationale behind this principle from the mother's womb. However, if the fetus
is for the Courts not to arrive in two conflicting had an intra-uterine life of less than seven
decisions. months, it is not deemed born if it dies within
twenty-four hours after its complete delivery
CASE 1 from the maternal womb.”
In the case of People of the Philippines, it was held by
the Supreme Court that in a criminal case of estafa,
admission of different civil cases not related or does not
state facts similar to what’s in the criminal case, Article 2, Section 12 – 1987 Constitution
prejudicial question is not present.
“The State recognizes the sanctity of family life
CASE 2 and shall protect and strengthen the family as a
In the case of Pahang vs. Vestil, it was held that the basic autonomous social institution. It shall
concept of prejudicial question cannot be set up as a equally protect the life of the mother and the life
defense because of the fact that there is only one case of the unborn from conception. The natural and
that was filed, the other being a motion and not a case. primary right and duty of parents in the rearing
of the youth for civic efficiency and the
development of moral character shall receive the
support of the Government.”

P.D. 605, Article 5

“Commencement of Civil Personality – The civil
personality of the child shall commence from the
time of his conception, for all purposes favorable
to him, subject to the requirements of Article 41
of the Civil Code.”

Article 164 – Family Code

“Children conceived or born during the
marriage of the parents are legitimate.

Children conceived as a result of artificial

insemination of the wife with the sperm of the
husband or that of a donor or both are likewise
legitimate children of the husband and his wife,
provided, that both of them authorized or
ratified such insemination in a written
instrument executed and signed by them before
the birth of the child. The instrument shall be
recorded in the civil registry together with the
birth certificate of the child.”

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Revised Penal Code When does a person deemed to have legal
Art. 256. Intentional abortion.
Any person who shall intentionally cause an It is when the person is born (Article 40) or when the
abortion shall suffer: child was premature, less than 7 months, provided that
he was born and survived for 24 hours (Article 41).
1. The penalty of reclusion temporal, if he shall
use any violence upon the person of the pregnant
In the case of Geluz vs. Court of Appeals, there is no
2. The penalty of prision mayor if, without using question that the child was not born, having been
violence, he shall act without the consent of the aborted when he is 2 months. The main issue is whether
woman the plaintiff has the right damages for physical injuries
and moral damages. There is no right to damages arising
3. The penalty of prision correccional in its from physical injuries since the plaintiff is not the one
medium and maximum periods, if the woman who suffered the said injury. There is also no moral
shall have consented damages that can be awarded, since the Court held that
despite having a knowledge of the previous abortions
Art. 257. Unintentional abortion. made by his wife, he only came to file a case related to
The penalty of prision correccional in its the third one, thus, rendering him “not really” suffered
minimum and medium period shall be imposed from moral anguish, etc.
upon any person who shall cause an abortion by
violence, but unintentionally. Also, in the abovementioned case, the Supreme Court
ruled that civil personality is not acquired by an
Art. 258. Abortion practiced by the woman unborn child.
herself or by her parents.
The penalty of prision correccional in its
medium and maximum periods shall be imposed What does “conception” means in Article 2,
upon a woman who shall practice abortion upon Section 12 of the 1987 Constitution?
herself or shall consent that any other person
should do so. It is when the sperm of a man meets the egg cell of a
woman. Thus, use of contraception is not prohibited by
Any woman who shall commit this offense to this article since there is no conception yet.
conceal her dishonor, shall suffer the penalty of
prision correccional in its minimum and
medium periods. Can the death of a child in the process of
delivery, deprives a parent for claiming death
If this crime be committed by the parents of the benefits as provided in the agreement between
pregnant woman or either of them, and they act him and his employer?
with the consent of said woman for the purpose
of concealing her dishonor, the offenders shall While it is true that the unborn child does not have
suffer the penalty of prision correccional in its civil personality, it does not follow that the child
medium and maximum periods. did not acquire life. As provided in the concept of
“conception”, there is already life when the moment the
Art. 259. Abortion practiced by a physician or sperm of a man meets the egg cell of a woman. And as a
midwife and dispensing of abortives. logical definition of death is the extinguishment of life.
The penalties provided in Article 256 shall be
imposed in its maximum period, respectively, In answering the question raised above, the case of
upon any physician or midwife who, taking Continental Steel vs. Montano is a good reference. In this
advantage of their scientific knowledge or skill, case, the award for death benefits is awarded by the
shall cause an abortion or assist in causing the Court because although the Collective Bargaining
same. Agreement does not explicitly states the death of an
unborn child for entitlement of such benefits, the natural
Any pharmacist who, without the proper meaning of death shall be used, which is the
prescription from a physician, shall dispense extinguishment of life. The right for this claim is
any abortive shall suffer arresto mayor and a personal to the parent and not of the unborn child.
fine not exceeding 1,000 pesos.

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Article 42 Article 45
“Civil personality is extinguished by death. “Juridical persons mentioned in Nos. 1 and 2 of
the preceding article are governed by the laws
The effect of death upon the rights and creating or recognizing them.
obligations of the deceased is determined by law, Private corporations are regulated by laws of
by contract and by will.” general application on the subject.

Partnerships and associations for private

Does death extinguishes all the rights of a interest or purpose are governed by the
person? provisions of this Code concerning
No. It is evident by the second provision of this article
that rights are to be determined by law, contract or by
will. Article 46
Can death of a person deprive the right of the “Juridical persons may acquire and possess
aggrieved party to file for a writ of habeas property of all kinds, as well as incur obligations
corpus? and bring civil or criminal actions, in conformity
with the laws and regulations of their
No. It was held in the case of Eugenio vs. Velez that organization.”
although generally, habeas corpus applies to the
producing of a living body of a person before the Court
for illegal detainment and the like, the same might also
be applied even the person is already dead. In this case, Article 47
the right of the dead person and the aggrieved as well
was explicitly provided by law. The law states that the “Upon the dissolution of corporations,
proper party to have custody is to be her brothers and institutions and other entities for public interest
sisters, over a dead body of a person (an unmarried or purpose mentioned in No. 2 of Article 44,
woman) and conduct the necessary wake that such their property and other assets shall be disposed
person deserves. of in pursuance of law or the charter creating
them. If nothing has been specified on this point,
the property and other assets shall be applied to
Can the right for legal redemption be also similar purposes for the benefit of the region,
extinguished upon death? province, city or municipality which during the
existence of the institution derived the principal
No. It was held in the case of Butte vs. Manuel Uy Sons, benefits from the same.”
Inc. that when a person dies, his civil personality is
extinguished. But succession rights become open to the
heirs, thus, the right of legal redemption of a property What defines juridical persons and its rights?
(wherein the deceased is actually an owner of an
undivided interest) is transferred to his heirs. Article 44 and Article 46 of this Code, respectively.

Based on the foregoing provisions, corporations

Article 44 and partnerships were included. What are their
“The following are juridical persons:

(1) The State and its political subdivisions; B.P. 68, Section 2

(2) Other corporations, institutions and entities Corporation defined. – A corporation is an artificial
for public interest or purpose, created by law; being created by operation of law, having the right of
their personality begins as soon as they have succession and the powers, attributes and properties
been constituted according to law; expressly authorized by law or incident to its existence.

(3) Corporations, partnerships and associations

for private interest or purpose to which the law
grants a juridical personality, separate and
distinct from that of each shareholder, partner
or member.”
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Corporations created by special laws or There are certain or specific instances where the capacity
charters. – Corporations created by special laws or of a person to act is restricted or limited by his or her
charters shall be governed primarily by the provisions of conditions such as minority, insanity, etc.
the special law or charter creating them or applicable to
them, supplemented by the provisions of this Code,
insofar as they are applicable. i. MINORITY
Art. 1767 of Civil Code
Article 38
By the contract of partnership two or more persons bind
themselves to contribute money, property, or industry to “Minority, insanity or imbecility, the state of
a common fund, with the intention of dividing the profits being a deaf-mute, prodigality and civil
among themselves. interdiction are mere restrictions on capacity to
act, and do not exempt the incapacitated person
Two or more persons may also form a partnership for from certain obligations, as when the latter arise
the exercise of a profession. from his acts or from property relations, such as
Art. 1768 of Civil Code

The partnership has a judicial personality separate and Article 39

distinct from that of each of the partners, even in case of
failure to comply with the requirements of Article 1772, “The following circumstances, among others,
first paragraph. modify or limit capacity to act: age, insanity,
imbecility, the state of being a deaf-mute,
penalty, prodigality, family relations, alienage,
Can judicial persons be held criminally liable absence, insolvency and trusteeship. The
and be punished by way of imprisonment? consequences of these circumstances are
governed in this Code, other codes, the Rules of
No. It is of common knowledge that only natural person Court, and in special laws. Capacity to act is not
can be detained in prison. limited on account of religious belief or political

Can a municipal corporation be sued?

Article 1327
There is a general rule in the Constitution which says
that, “the State cannot be sued without its consent”. “The following cannot give consent to a contract:
Consent described in the rule maybe express or implied.
It is express when specifically provided by law, and it is (1) Unemancipated minors;
implied when the State entered into a contract or filed a
suit against another (wherein a counterclaim is available (2) Insane or demented persons, and deaf-mutes
for the other party). who do not know how to write.”
However, this does not connote that the State, at all
times, cannot be sued. It might be sued but it cannot be
held liable in all cases.
Article 1390 (1)
In the case of Municipality of San Fernando, La Union
vs. Judge Firme, it was held that the State was sued but “The following contracts are voidable or
it cannot be said that it can be held liable. The said annullable, even though there may have been no
municipality, acting within its governmental damage to the contracting parties:
capacity, cannot be held liable for damages as a
result of the negligence of one of its employees. (1) Those where one of the parties is incapable of
However, if the said municipality acted with its giving consent to a contract xxx
proprietary function, it can be held for damages.

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Article 1403 (3) Article 1427
“The following contracts are unenforceable, “When a minor between eighteen and twenty-
unless they are ratified: one years of age, who has entered into a contract
without the consent of the parent or guardian,
(3) Those where both parties are incapable of voluntarily pays a sum of money or delivers a
giving consent to a contract. fungible thing in fulfillment of the obligation,
there shall be no right to recover the same from
the obligee who has spent or consumed it in good
Article 1397
“The action for the annulment of contracts may What is the age of majority as provided by law?
be instituted by all who are thereby obliged
principally or subsidiarily. However, persons It was 18 years old, as expressly stated in Republic Act
who are capable cannot allege the incapacity of 6809.
those with whom they contracted; nor can those
who exerted intimidation, violence, or undue
influence, or employed fraud, or caused mistake Should the child is minor, does it follow that he
base their action upon these flaws of the or she cannot exercise some of his rights until
contract.” he reaches the age of majority?

No. As long as there’s a guardian, he or she can act or do

Article 1399 some of his or her rights. The provision for guardianship
is embodied in Administrative Matter No. 03-02-05.
“When the defect of the contract consists in the
incapacity of one of the parties, the incapacitated
person is not obliged to make any restitution Can a minor contract marriage?
except insofar as he has been benefited by the
thing or price received by him.” Yes. It was clearly stated in R.A. 6809 that a minor below
18 years of age (which is the age of majority) can
contract marriage as long as there’s a parental consent.
Article 1489 However, such contract can be annulled on the grounds
of (1) age of the child; (2) lack of parental consent.
“All persons who are authorized in this Code to
obligate themselves, may enter into a contract of Article 5 – Family Code
sale, saving the modifications contained in the
following articles. Any male or female of the age of eighteen years or
upwards not under any of the impediments mentioned in
Where necessaries are those sold and delivered Articles 37 and 38, may contract marriage.
to a minor or other person without capacity to
act, he must pay a reasonable price therefor.
Necessaries are those referred to in article 290.” Article 45 (1) – Family Code

A marriage may be annulled for any of the following

Article 1426 causes, existing at the time of the marriage:

“When a minor between eighteen and twenty- (1) That the party in whose behalf it is sought to have the
one years of age who has entered into a contract marriage annulled was eighteen years of age or over but
without the consent of the parent or guardian, below twenty-one, and the marriage was solemnized
after the annulment of the contract voluntarily without the consent of the parents, guardian or person
returns the whole thing or price received, having substitute parental authority over the party, in
notwithstanding the fact that he has not been that order, unless after attaining the age of twenty-one,
benefited thereby, there is no right to demand such party freely cohabited with the other and both lived
the thing or price thus returned.” together as husband and wife;

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Can a minor vote? Should the child is a minor acted with
discernment; can a trial go against him?
Yes, but only for Sangguniang Kabataan Elections,
wherein the required age is only from 15-18. But for the Yes. However, certain procedures provided by PD 603,
higher form of elections, Article 5, Section 1 of the Sections 189 to 204 shall be applied. This include the
1987 Constitution shall be applied which states that: test for physical examination, a right to appeal or avail
for himself a bail, just like other accused.
“Suffrage may be exercised by all citizens of the
Philippines not otherwise disqualified by law, who are at
least eighteen years of age, and who shall have Can a person more than 70 years of age also be
resided in the Philippines for at least one year, exempted from criminal liability?
and in the place wherein they propose to vote, for
at least six months immediately preceding the No. Although given the fact that a person is too old to do
election. No literacy, property, or other substantive a crime, it can’t be said that he is also exempt. But
requirement shall be imposed on the exercise of Article 13 (2) of the RPC can be applied to mitigate
suffrage.” the liability and not exempt it.

In the case of Atizado and Salvador Monreal vs. People,

Should incapacity to act be applied when it was held that where the crime was proved beyond
minors have represented themselves as of legal reasonable doubt, but one of the accused is a minor;
age when entering a contract? penalties of RPC shall not be strictly followed in
determining the correct punishment. Rather, other
No, In the case of Mercado vs. Espiritu, it was held that provisions of the law shall also be considered and apply
the contract entered by minors was valid on the grounds mitigation of penalty in case of the minor.
that they were “estopped” when they have represented
themselves as members of the majority. If they are going
to be favored by the Court, it will give inequity to the ii. INSANITY
party they have entered a contract with.

Can minors be held criminally liable? Can an insane person or imbecile person enter
into a contract of marriage?
Yes. Article 12 (2) & (3) of the Revised Penal Code states
example of circumstances wherein a person can be Yes. However, the contract is valid but can be annulled
exempt from criminal liability, and includes: on the ground of having an unsound mind.

xxx Article 45 (2) – Family Code

“That either party of unsound mind, unless such party
2. A person under nine years of age – superseded after coming to reason, freely cohabited with the other as
by R.A. 9344 which states that the minimum age of husband and wife.”
responsibility is now 15 years old
Note: Should the parties are both insane or of
unsound mind, the contract shall be void.
3. A person over nine years of age and under
fifteen, unless he has acted with discernment, in
which case, such minor shall be proceeded against in Aside from a contract of marriage, can an
accordance with the provisions of Article 80 of this Code insane enter into another type/s of contract?
– nine is superseded by 15 years; and fifteen is by 18
years Generally, no: based on Article 1327 of the Civil Code.
However, should the insane person entered into a
contract during lucid interval, such contract shall be
Paragraph 13 is more relevant to the question above. A valid.
minor can be criminally liable if he acted with
discernment. However, those children 15 years and Article 1327 – Civil Code
below deemed to have absolute exemption.
“The following cannot give consent to a contract:

1. Unemancipated minors;
2. Insane or demented persons, and dead mutes who
do not know how to write
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Can an insane person be held criminally liable? Can a deaf mute write his/her own will?

Yes. Although Article 12 (1) of RPC grants an exemption Yes according to Article 807 of the Civil Code, provided
to an insane or imbecile person, but if he was not he can read the same. However, if that is not possible, he
insane during the time of commission of the shall assign 2 persons to read and communicate it to him
crime, he could be criminally liable. in any practicable manner.

xxx Can a deaf mute be a witness to an execution of

a will?

1. An imbecile or an insane person, unless the No. See the provision of Article 820 of the Civil Code.
latter has acted during lucid interval

Should an insane person cannot manage his/ iv. PRODIGALITY

her own properties, is there a need for
guardianship? See provisions of Rule 92, Section 2, Rules of
Yes. This is generally given to the nearest of kin but this
is not always the case.
In the case of Hernandez vs. Santos, where an insane
person not being treated properly by his/ her relatives of
nearest of kin (spouses, brothers and sisters, etc.), What’s the meaning of civil interdiction?
guardianship can be given to other relatives such as his
uncle or aunt. Article 34 – Revised Penal Code

“Civil interdiction shall deprive the offender during the

Can a person who has a condition of gradually time of his sentence of the rights of parental authority, or
diminishing of reason, automatically guardianship, either as to the person or property of any
considered to be an insane? ward, of marital authority, of the right to manage his
property and of the right to dispose of such property by
No. In the case of Catalan vs. Basa, contracts are valid any act or any conveyance inter vivos.”
entered by a person declared to be having some
psychological condition, provided that he’s still able to
give a valid consent on the time of the execution of a
contract. vi. FAMILY RELATIONS

What’s included in this term on its legal

iii. DEAF – MUTISM parlance?

Article 150 – Family Code

Can a deaf mute person enter into a contract of
marriage? Family relations include those:
Yes. There is no provision in the Family Code which (1) Between husband and wife;
prohibits this type of marriage. (2) Between parents and children;
(3) Among brothers and sisters, whether of the full or
How about into another type of contract?

Generally, no: based on Article 1327 of the Civil Code. Article 967 – Civil Code

Full blood relationship is that existing between persons

who have the same father and the same mother.

Half-blood relationship is that existing between persons

who have the same father, but not the same mother, or
the same mother, but not the same father.
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Can a suit prosper against the persons to allegiance, on the other hand means the loyalty of a
enumerated above? person over a country.

Article 151 – Family Code

Article 4 – 1987 Constitution
“No suit between members of the same family shall
prosper unless it should appear from the verified Section 1
complaint or petition that earnest efforts toward a
compromise have been made, but that the same have The following are citizens of the Philippines:
failed. If it is shown that no such efforts were in fact
made, the same case must be dismissed. Those who are citizens of the Philippines at the time of
the adoption of this Constitution;
This rules shall not apply to cases which may not be the
subject of compromise under the Civil Code.” Those whose fathers or mothers are citizens of the

What’s the meaning of earnest effort? Those born before January 17, 1973, of Filipino mothers,
who elect Philippine Citizenship upon reaching the age
It’s an extra effort made by family members to settle of majority; and
disputes among them. This may also include
compromise within barangay, municipal, or provincial Those who are naturalized in the accordance with law.
areas which they belong.

Can a sale of property between spouses be Section 2

Natural-born citizens are those who are citizens of the
Article 1490 – Civil Code Philippines from birth without having to perform any act
to acquire or perfect their Philippine citizenship. Those
“The husband and the wife cannot sell property to who elect Philippine citizenship in accordance with
each other, except: paragraph (3), Section 1 hereof shall be deemed natural-
born citizens.
(1) When a separation of property was agreed upon in
the marriage settlements; or Section 3

(2) When there has been a judicial separation or Philippine citizenship may be lost or reacquired in the
property under Article 191.” manner provided by law.

Section 4
How about donations between spouses?
Citizens of the Philippines who marry aliens shall retain
Article 87 – Family Code their citizenship, unless by their act or omission they are
deemed, under the law to have renounced it.
“Every donation or grant of gratuitous advantage, direct
or indirect, between the spouses during the marriage
shall be void, except moderate gifts which the spouses Does dual citizenship considered to be a
may give each other on the occasion of any family restriction on a person’s capacity to act?
rejoicing. The prohibition shall also apply to persons
living together as husband and wife without a valid No. The restriction is related to Dual Allegiance.

Section 5 – 1987 Constitution

Dual allegiance of citizens is inimical to the national
interest and shall be dealt with by law.
Is Alienage the same with Citizenship?
In the case of Cordora vs. COMELEC, a candidate that
No. Citizenship was defined in Sections 1-4, Article 4 of has dual citizenship but maintains his allegiance to the
the 1987 Constitution. Alienage which is tantamount Government of the Philippines was allowed to run for a
position in the government.

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viii. ABSENCE What if a person’s property has been
alienated due to a declaration of him being
absent or dead, and suddenly appears?
When a person deemed to be absent and its
effect? Article 392 – Civil Code

Article 381 – Family Code If the absentee appears, or without appearing his
existence is proved, he shall recover his property in
“When a person disappears from his domicile, his the condition in which it may be found, and the price
whereabouts being unknown, and without leaving an of any property that may have been alienated or the
agent to administer his property, the judge, at the property acquired therewith; but he cannot claim
instance of an interested party, a relative, or a friend, either fruits or rents.
may appoint a person to represent him in all that
may be necessary.
This same rule shall be observed when under similar
circumstances the power conferred by the absentee Article 1381 – Civil Code
has expired.”
The following contracts are rescissible:

Can a person be declared dead by being (1) Those which are entered into by guardians
absent? whenever the wards whom they represent suffer
lesion by more than one-fourth of the value of the
Yes. See provisions below. things which are the object thereof;

Civil Code of the Philippines (2) Those agreed upon in representation of

absentees, if the latter suffer the lesion stated in the
Article 390 preceding number;

After an absence of seven years, it being unknown (3) Those undertaken in fraud of creditors when the
whether or not the absentee still lives, he shall be latter cannot in any other manner collect the claims
presumed dead for all purposes, except for those of due them;
The absentee shall not be presumed dead for the (4) Those which refer to things under litigation if
purpose of opening his succession till after an they have been entered into by the defendant
absence of ten years. If he disappeared after the age without the knowledge and approval of the litigants
of seventy-five years, an absence of five years shall or of competent judicial authority;
be sufficient in order that his succession may be
opened. (5) All other contracts specially declared by law to be
subject to rescission.
Article 1491

Article 391 The following persons cannot acquire by

purchase, even at a public or judicial auction,
The following shall be presumed dead for all either in person or through the mediation of
purposes, including the division of the estate among another:
the heirs:
(1) The guardian, the property of the person or
(1) A person on board a vessel lost during a sea persons who may be under his guardianship;
voyage, or an aeroplane which is missing, who has
not been heard of for four years since the loss of the (2) Agents, the property whose administration or
vessel or aeroplane; sale may have been entrusted to them, unless the
consent of the principal has been given;
(2) A person in the armed forces who has taken part
in war, and has been missing for four years; (3) Executors and administrators, the property of the
estate under administration;
(3) A person who has been in danger of death under
other circumstances and his existence has not been (4) Public officers and employees, the property of the
known for four years. State or of any subdivision thereof, or of any
government-owned or controlled corporation, or

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institution, the administration of which has been DOMICILE & RESIDENCE OF PERSONS
intrusted to them; this provision shall apply to
judges and government experts who, in any manner
whatsoever, take part in the sale; What is domicile in legal parlance?

(5) Justices, judges, prosecuting attorneys, clerks of It depends. When we are talking about the domicile of
superior and inferior courts, and other officers and juridical persons (not natural), the provision below
employees connected with the administration of shall apply:
justice, the property and rights in litigation or levied
upon an execution before the court within whose Article 51 – Civil Code
jurisdiction or territory they exercise their respective
functions; this prohibition includes the act of “When the law creating or recognizing them, or any
acquiring by assignment and shall apply to lawyers, other provision does not fix the domicile of juridical
with respect to the property and rights which may be persons, the same shall be understood to be the place
the object of any litigation in which they may take where their legal representation is established or where
part by virtue of their profession. they exercise their principal functions.”

(6) Any others specially disqualified by law.

For natural persons, the following provisions shall

x. GENDER Article 50 – Civil Code

Are both men and women equal in the eyes “For the exercise of civil rights and the fulfillment of civil
of law? obligations, the domicile of natural persons is the
place of their habitual residence.”
Article 2, Section 14 – 1987 Constitution
Is domicile and residence the same?
“The State recognizes the role of women in nation-
building, and shall ensure the fundamental Generally, no. Domicile means an individual’s
equality before the law of women and men.” “permanent home” while residence implies the factual
relationship of an individual to a certain place – physical
presence of a person in a given area.
Is there a provision of law seems to be
peculiar or inconsistent with the However, for election purposes, the two terms are the
fundamental right mentioned above? same.

Yes. In the case Romualdez – Marcos vs. COMELEC, it was

held that even a person has transferred from places to
Article 403 – Civil Code places; she is not deprived of her right to run for a
position in a place where she was born and is not
“Notwithstanding the provisions of the preceding deemed to be in violation of the “residency requirement”
article, a daughter above twenty-one but below for electoral candidates. Meaning, the start of the
twenty-three years of age cannot leave the parental count shall start from the moment she was born
home without the consent of the father or mother in in the Philippines or in the place where she
whose company she lives, except to become a wife, intends to run for a position.
or when she exercises a profession or calling, or
when the father or mother has contracted a The Court maintained that there are three types of
subsequent marriage.” domicile:

 Domicile of origin – the place of your birth

and is inherent to a person; also the place to
which you consider to return

 Domicile you have chosen – a place you

have chosen to be your domicile, upon
revocation of your domicile of origin. However,
this does not totally renounce your domicile
of origin since this is inherent.

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 Domicile of your husband – a place where FAMILY CODE OF THE
you transfer upon being married. In accordance PHILIPPINES
with Article 69 of the Family Code and Article
110 of the Civil Code, which states:
What is the intention for the
promulgation of this code?
Art. 69 – Family Code
It is to replace Book 1 (it has a total of 4
The husband and wife shall fix the family
books) of the Civil Code of the Philippines
domicile. In case of disagreement, the
(source: Wikipedia). However, since it only
court shall decide.
governs family relations, rights, duties and
obligations, some provisions of Book 1 of the
The court may exempt one spouse from living
Civil Code still takes into effect.
with the other if the latter should live abroad or
there are other valid and compelling reasons for
the exemption. However, such exemption shall
When is the effectivity date of the Family
not apply if the same is not compatible with the
Code of the Philippines?
solidarity of the family.
Article 257 – Family Code
Article 110 – Civil Code
“This Code shall take effect one year after the
completion of its publication in a newspaper of
The husband shall fix the residence of the
general circulation, as certified by the Executive
family. But the court may exempt the wife from
Secretary, Office of the President.
living with the husband if he should live abroad
unless in the service of the Republic.
Done in the City of Manila, this 6th day of July,
in the year of Our Lord, nineteen hundred and

Does this code expressly stated that it

has retroactive effect?


Article 256 – Family Code

“This Code shall have retroactive effect insofar

as it does not prejudice or impair vested
or acquired rights in accordance with the
Civil Code or other laws.”

See the cases of Aruego vs. Court of Appeals,

supra, and Bernabe vs. Alejo

What law shall apply that will govern

sale of properties?

It is the law effective during the time of

sale. In the case of Fuentes vs. Roca, it was held
that although the conjugal properties were
governed by the Civil Code on the time of
marriage, Family Code shall still be applied as to
the right of those persons concern about the sale
of such properties.

20 | M a r i a n o | © 2 0 1 5
MARRIAGES Under the law, is there a proper of
definition for marriage – not just a mere
Is there a “valid” presumption as to
marriage? Yes.

Yes. There is presumed to be marriage under the Article 1 – Family Code

provision below:
Marriage is a special contract of permanent
Rule 131, Section 3 – Rules on union between a man and a woman entered into
in accordance with law for the establishment of
Evidence conjugal and family life. It is the foundation of
the family and an inviolable social institution
xxx whose nature, consequences, and incidents are
governed by law and not subject to
(z) That persons acting as copartners have stipulation, except that marriage settlements
entered into a contract of co-partnership; may fix the property relations during the
marriage within the limits provided by this
(aa) That a man and woman deporting Code.
themselves as husband and wife have
entered into a lawful contract of
Article 15, Section – 1987
In the case of Mariategui vs. CA, although it is
alleged that the children of the 3rd marriage are Marriage, as an inviolable social institution, is
not entitled for the share in the estate of their the foundation of the family and shall be
father who died (undergone 3 marriages in protected by the State.
total), for having no marriage certificate on the
3rd. However, since the law “presumes” marriage
for two persons who deported themselves to be Article 52 – Family Code
husband and wife, entitlement to these children
shall be granted. Marriage is not a mere contract but an inviolable
social institution. Its nature, consequences and
incidents are governed by law and not subject to
Is this an absolute presumption? stipulation, except that the marriage settlements
may to a certain extent fix the property relations
No. From the title of the section itself, it can be during the marriage.
“disputed”. The general rule in evidence is, “he
who has alleged must prove”. Thus, if there’s
sufficient evidence rebutting the above Article 149 – Family Code
provision, such evidence shall prevail.
The family, being the foundation of the nation, is
a basic social institution which public policy
What is the property relation of persons cherishes and protects. Consequently, family
covered by this presumption? Is it Civil relations are governed by law and no custom,
Code or Family Code? practice or agreement destructive of the family
shall be recognized or given effect.
None of the above; the parties’ properties will
not be governed by either the Conjugal
Partnership of Gains (CC) or Absolute Article 220 – Family Code
Community of Property (FC). They will only be
co-partners with respect to their individual In case of doubt, all presumptions favor the
properties. solidarity of the family. Thus, every intendment
of law or facts leans toward the validity of
marriage, the indissolubility of the marriage
bonds, the legitimacy of children, the
community of property during marriage, the
authority of parents over their children, and the
validity of defense for any member of the family
in case of unlawful aggression.
21 | M a r i a n o | © 2 0 1 5
Are the above provisions solely binding Is there a valid defense for having a
to the husband and wife? stipulation with a married man and
cohabiting with him?
No. Being a social institution, interests of the
public shall also be considered. This is the Yes. In the case of Estrada vs. Escritor, a staff of
reason why it is inviolable and not subject to the Court was not immediately sanctioned
stipulation, except for property relations, though she cohabits with a married man because
stipulated before solemnizing the of a defense that her “religion” allowed her to
marriage or when stipulated during do so. She invoked her right of freedom of
marriage and in accordance with a due religion.
process prescribed by law. Any stipulation
changing the marital or property relationships
shall be considered void. EXCEPTION TO THE EXCEPTION

In the case of Mecaral vs. Velasquez, an accused

CASE 1 “not” invoking his right of religion, being a
In the case of Panganiban vs. Borromeo, the leader of a religious association, was disbarred
attorney who notarized a document which for having immoral acts and by contracting two
changes the relationship of the husband and wife marriages.
– allowing each party to commit concubinage or
adultery without opposition from either of them
was penalized (void). Such lawyer is not party What are the requisites of a valid
of the marriage but the mere fact that he allowed marriage?
these persons to change their relationship
during marriage, such act is not valid being
expressly provided for by law. There are two types of requisites:

 Essential Requisites
In the case of Selanova vs. Mendoza, a judge who Art. 2 – Family Code
rendered a decision allowing the extrajudicial
liquidation of conjugal properties (void) was No marriage shall be valid, unless these essential
penalized. Although this case involve properties requisites are present:
which can be stipulated as provided by Article 1
of the Family Code, such agreement is only valid, (1) Legal capacity of the contracting parties
if and only if, it was stipulated before who must be a male and a female; and
marriage or when it has undergone to a
due process required by law. (2) Consent freely given in the presence of
the solemnizing officer.

CASE 3 Note: “In the presence” means given

In the case of Lichauco-de Leon vs. CA, a personally
stipulation which the actual intention is to
dissolve the marital relationship of the parties  Formal Requisites
shall be considered void. Such stipulation can
be questioned by the mother-in-law who is a Article 3 – Family Code
party of the agreement.
The formal requisites of marriage are:

CASE 4 (1) Authority of the solemnizing officer;

In the case of Acebedo vs. Arquero, it was held
that a staff of a trial court shall be sanctioned by (2) A valid marriage license except in the
cohabiting with a married woman, although the cases provided for in Chapter 2 of this Title; and
contention is that, such woman had an
agreement with her husband that they allow (3) A marriage ceremony which takes place with
each other to cohabit with another man or the appearance of the contracting parties before
woman (void). It was even stated that being a the solemnizing officer and their personal
staff of the Court, such person shall have declaration that they take each other as husband
knowledge of what is prohibited for by the law. and wife in the presence of not less than two
witnesses of legal age.

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What’s the effect of the abovementioned clerical errors such as name (minor defects) can
requisites? be changed and not the gender because it is
only/ solely determined on the time of birth.
Article 4 – Family Code
Although the Constitution does not provide that
The absence of any of the essential or marriage is solely for man and woman, we still
formal requisites shall render the marriage have an existing law (Art. 1 of the Family Code)
void ab initio, except as stated in Article 35 that resolves the matter and shall be applied
until revoked or declared unconstitutional.
A defect in any of the essential requisites
shall not affect the validity of the
marriage but the party or parties responsible b. MARRIAGE LICENSE
for the irregularity shall be civilly, criminally and REQUIREMENT
administratively liable.

When the law says valid marriage

Article 35 – Family Code license? Should it only mean that it was
obtained prior to the celebration of
The following marriages shall be void from the marriage?
No. The law does not solely means that it was
(1) Those contracted by any party below eighteen needed to be obtained or presented prior to the
years of age even with the consent of parents or celebration of the marriage – although, this is
guardians; should be the case generally (with a valid
defense of Article 34 of the Family Code).
(2) Those solemnized by any person not legally
authorized to perform marriages unless such The law may also cover the due process in
marriages were contracted with either or both obtaining a marriage license. Thus, without
parties believing in good faith that the undergoing this process, the marriage will
solemnizing officer had the legal authority to do deemed to be void. See Articles 9 – 25 of the
so; Family Code of the Philippines.
(3) Those solemnized without license, except In the case of Escleo vs. Dorado, this process was
those covered the preceding Chapter; reiterated by the Court, and such process was
necessary in order to acquire valid license.
(4) Those bigamous or polygamous marriages Although this case involves an administrative
not failing under Article 41; action against a government employee, what is
clearly stated by the Court is the process (of
(5) Those contracted through mistake of one obtaining a license) that cannot be
contracting party as to the identity of the other; circumvented.

(6) Those subsequent marriages that are void Should the Civil Registry does not have
under Article 53 any record of the alleged marriage
license, is the marriage valid?
EXAMPLES OF ABSENCE/ TOTAL As a general rule, the marriage is void in this
ABSENCE – VOID AB INITIO case for the requirement of a marriage license is
absent. However, if the party alleging that there
is actually a marriage license have proven the
a. MAN & WOMAN REQUIREMENT same, the validity of the marriage may become

Can a transgender considered to be a In the case of Republic vs. Court of Appeals, it

female and be allowed to change his was held that the information coming from the
gender in civil registry with the end Civil Registry which states that the alleged
purpose of getting married to a man? marriage license is inexistent, the marriage shall
be likewise void. This information is considered
No. In the case Silverio vs. Republic, this is to be valid evidence and can be presented in the
prohibited for the Court reasoned out that only proper courts.
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Is there any instance that the law shall be penalized. Is the marriage void? No,
becomes “lenient” with the requirement it just so happen that there’s only a delay
of a valid marriage license and declares in providing it but does not necessarily lack the
the marriage as valid? requirement; thus, valid. The one punishable is
the solemnizing officer
Yes. This is in accordance with Article 34 of
the Family Code (Article 76 of the Civil Code)
which states that the marrying or the married b. AUTHORITY OF THE SOLEMNIZING
parties are exempted from the requirement of a OFFICER
marriage license; provided, they have already
lived together as husband and wife for at least 5 Can a judge solemnize a wedding even
years and without legal impediment. outside his jurisdiction?

Yes. There is no question on the authority of the

ILLUSTRATIVE CASES: Judge to solemnize marriage, as long as he belongs
to what’s provided in Article 7 of the Family Code.
CASE 1 However, there is a defect on the requisite because
In the cases of Ninal vs. Bayadog and Republic he is acting beyond his jurisdiction. Being a defect, it
vs. Dayot, the Court held that the marriages does not affect the validity of the marriage. Rather, it
contracted are void because they lack the can only be recognized as a “voidable” marriage.
requisite of a valid marriage license. This is
despite of their allegations that they shall be In the case of Navarro vs. Domagtoy, the Court held
exempted from obtaining such requisite sand that a judge acting outside his jurisdiction and
they are invoking Article 34 of the Family Code. solemnizes a marriage therein, the effect of the
However, based on the evidence presented, it marriage is valid – especially when the parties
was proven that they haven’t met the contracting the marriage believed on the authority of
“period” required in order to be exempted the solemnizing officer through “good faith”.
from obtaining marriage licenses.


In the case of Cosca vs. Palaypayon, although the
period required by law has been met, the parties For this topic, it shall be noted that this only covers
cannot invoke their right to be exempted from marriages between a Filipino and an Alien
obtaining a marriage license because of the (foreigner) and does not encompasses marriage
“legal impediment” issue; for which, one of between two aliens for the Philippines has no
the parties in this case is a minor upon entering jurisdiction over them.
into such relationship (pseudo husband and
wife), by counting backwards using the 5 year
minimum period. Article 26 – Family Code

All marriages solemnized outside the

EXAMPLES OF DEFECTS IN THE Philippines, in accordance with the laws in force in the
REQUISITES – VALID BUT VOIDABLE country where they were solemnized, and valid there as
such, shall also be valid in this country, except
those prohibited under Articles 35 (1), (4), (5) and (6),
a. MARRIAGE LICENSE 36, 37 and 38. (17a)

In the absence of marriage contract, is Where a marriage between a Filipino citizen and a
there considered to be as marriage? foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien
Yes. It is because marriage contract is not spouse capacitating him or her to remarry, the
an essential requisite for a valid Filipino spouse shall have capacity to remarry
marriage; what’s the requirement is marriage under Philippine law.
license (see Article 35 of Family Code).

In the case of Harayo vs. Coliflores, the Court This article can be divided into two parts:
ruled that a judge who solemnized and signed at
least 3 marriage contracts but put them on hold a. Marriages solemnized outside the Philippines
until the marriage license was provided, b. Divorce obtained outside the Philippines
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Marriages solemnized outside the Philippines marriage being sought to be nullified. General Rule:
Only spouses of the marriage being sought to nullify
This provision only states that should the marriage of a can invoke such right.
Filipino and an alien abroad is valid, the same shall also
be valid in the Philippines – subject to certain exceptions
What is reckoning point in determining who
among the party can invoke the right given by
Divorce obtained outside the Philippines Article 26 (2)?

The Philippines does not recognize in its law, an absolute It is based on what is their citizenship upon
divorce. However, paragraph 2 of Article 26 is the only receiving the divorce decree and not on the time of
exception. celebration of marriage.

This provision states that a divorce is valid in the In the case of Republic vs. Obrecido , it was held that the
Philippines when it is likewise valid in the country where marriage of 2 Filipinos where one became a naturalized
the final judgment was obtained. alien afterwards falls under the provision of Article 26 of
the Family Code. Thus, a divorce obtained abroad can be
invoked in the search for nullity of marriage here in the
What is the reason for having this provision Philippines.
despite the fact that we don’t have any
provision for divorce?
What type of evidence is required in invoking
The law thought about the possible unfortunate situation the right provided by Article 26 (2)?
which the Filipino spouse may encounter should his/ her
alien spouse can already remarry due to the divorce In the case of Garcia vs. Recio, it was held that there
decree he/ she received from the country where he is a must be sufficient evidence to invoke such right.
resident. If the Philippines will not recognize such Evidence may comprise of (1) the final judgment or the
decree, it will cause injustice to the Filipino spouse. divorce decree itself, and (2) presentation of a valid
divorce law in the country where the divorce decree was
obtained. Provisional or conditional divorce decree will
Who can invoke this right in the Philippines? Or not suffice.
who should apply a petition for nullity of
marriage based on this ground?

GENERAL RULE: The Filipino spouse who

presumes to be the aggrieved party since we are the ones
who does not have a law on divorce.

In the case of Corpuz vs. Sto. Tomas, it was held that the
foreigner cannot invoke this right but only the Filipino
wife/ spouse. However, the decree itself that is being
presented by the foreigner can be a sufficient evidence to
nullify the marriage here in the Philippines.

EXCEPTION: If the Filipino spouse is the one who

initiated the filing of the divorce decree abroad.

The reason is that the presumption of being aggrieved

only applies to a situation wherein the foreigner
obtained a divorce decree abroad, and not the Filipino

In the case of Minoru Fujiki vs. Marinay et al, it was held

that since the Filipina is the one who initiated the
divorce abroad, she will not be entitled to the right to
invoke the 2nd paragraph of Article 26 for there is no
possible injustice be suffered by the Filipino spouse.
Also, this case is unique because the person who invoked
the right is not only a foreigner but also not a party of the

25 | M a r i a n o | © 2 0 1 5
(6) Those subsequent marriages that are void under

What does this topic talks about? Is it divorce? Bigamy (Article 35, 4)

No. For the main reason that generally, divorce is not What are its requisites?
recognized in the Philippine Jurisprudence, except in
cases involving Article 26 (2). This topic talks about void In the case of Mercado vs. Tan, it was mentioned
marriages, annulment, legal separation and other topics that bigamy has the following elements:
with the same scope.
a. That the offender has been legally married
b. That the marriage has not been dissolved or, in
What is the difference between Void Marriages case his or her spouse is absent, the absent
and Divorce? spouse could not yet be presumed dead
according to the Civil Code
Void marriages are ones of which the law declares it, c. That he contracts a second or subsequent
from the beginning, inexistent. In the eyes of the law, it’s marriage
as if it did not occur or even happened. On the other d. That the second or subsequent marriage has all
hand, divorce means that the law recognizes the the essential requisites for validity
existence of marriage but somewhere during its life,
courts rendered its validity based on the grounds
provided by law. (Note: Generally, divorce is not What is being dissolved in this case? Which
recognized in the Philippines; however, we recognize marriage?
void marriages, annulment and legal separation)
The second marriage: because the law recognizes
the validity of the first one and its inviolability.
What are the grounds for declaring a marriage
void/ void ab initio?
Should there be a judicial declaration of
1. ABSENCE OF ANY ESSENTIAL REQUISITES nullity of first marriage (under Article 40 of
OF MARRIAGE – ARTICLE 4, paragraph 1 of Family Code); can the crime of bigamy be
Family Code still committed?

2. CERTAIN CASES ENUMERATED IN Yes, especially if such declaration only occurs after
ARTICLE 35 OF THE FAMILY CODE: the crime of bigamy has been consummated. Thus,
judicial declaration shall be obtained before
The following marriages shall be void from the contracting the second or subsequent marriage, not
beginning: during the pendency of a bigamy case, in order to
avoid the case of bigamy.
(1) Those contracted by any party below
eighteen years of age even with the consent of
parents or guardians; What needs to be presented in proving the
validity of first marriage?
(2) Those solemnized by any person not legally
authorized to perform marriages unless such In the case of Tenebro vs. Court of Appeals, it was
marriages were contracted with either or both held that public documents such as marriage
parties believing in good faith that the solemnizing contracts or certification of the marriage license
officer had the legal authority to do so; from the Civil Registry can be used as valid evidence.

(3) Those solemnized without license, except

those covered the preceding Chapter; How about in proving the validity of second
(4) Those bigamous or polygamous marriages
not failing under Article 41; Aside from judicial declaration for nullity of a valid
marriage, other documents or evidence that proves
(5) Those contracted through mistake of one its inexistence may be used. In the case of Abbas vs.
contracting party as to the identity of the Abbas, it was held that a certification of the
other; and invalidity or inexistence of a marriage license

26 | M a r i a n o | © 2 0 1 5
(in this case, it was registered in the name of other a. The defect is grave
people) is a valid defense. b. The defect is incurable
c. Juridical antecedence or the defect shall be
present at the time of marriage or prior to it
Can the issue of prejudicial question be
invoked in a petition for declaration of
nullity of marriage and bigamy? What is an example of an essential marital
obligation and non-observance of such may
No. Prejudicial questions occurs when the outcome be a ground for psychological incapacity?
of a civil case determines the guilt of an accused in a
criminal case, thus, the latter is being superseded by In the case of Chi Ming Tsoi vs. Court of Appeals, it
the former. However, it shall be noted that was held that one’s prolonged refusal to engage in
prejudicial questions can only be invoked if sexual relationship with the other is a ground for
both cases involves the same set of facts in psychological incapacity especially if he/she is
order to properly determine the accused guilt. capable of doing so. It was further stated that
procreation is one of the marital obligations needed
In the case of Abunado vs. People, it was held that to be fulfilled by the parties.
the purpose of a petition for declaration of nullity of
marriage is against the first marriage while bigamy
involves a case against the second marriage. The Who can file a petition for declaration of
validity of the first marriage is an element of bigamy nullity of marriage?
but this does not follow that they have already the
same set of facts. Only the parties of the marriage that seeks to be
nullified can file the petition because they are the
“affected” parties.
Can bigamy be invoked by a person not a
party of the marriage seeks to be nullified?
Should the purpose of the party seeking
Generally, the one who invokes the case of bigamy is nullity of marriage intends to remarry
one of the parties of the marriage seeks to be again and such is the reason on filing the
nullified. Rationale: Because they are the parties petition, is a judicial declaration of nullity
who are more concern in the marriage that is being required?
assailed or attacked and may eventually be declared
void. YES. This is where Article 40 of the Family Code
most applicable. It was stated in such article that for
However, other parties are not precluded to file a the sole purpose of remarrying, judicial
bigamy case, such as the aggrieved or injured party declaration of nullity of the previous marriage is
in the first marriage (Juiliano-Llave vs. Republic). required.
This is true especially if the parties of the second
marriage do not want it be nullified.
What is the effect of remarrying without
judicial declaration of the first marriage?
This will definitely constitute bigamy and will
What is psychological incapacity? declare the second marriage null and void.

It is an incurable defect that is so grave, present at

the time of celebration of marriage but may manifest Should the purpose of the party is not to
only during the life of the marriage. This defect shall remarry, is a judicial declaration of nullity
render one of the parties or both, incapable of of marriage still required?
fulfilling the essential marital obligations provided
by law under Article 68 of the Family Code. No. One may file for the petition of declaration of
marriage but if not for the purpose to remarry such
“The husband and wife are obliged to live together, as custody of children, separation of properties, etc.,
observe mutual love, respect and fidelity, and render judicial declaration is not required. Article 40 of
mutual help and support.” the Family Code reads as follows:

“The absolute nullity of a previous marriage may be

In the case of Santos vs. Santos, these 3 elements invoked for purposes of remarriage on the basis
shall be present in invoking psychological incapacity:

27 | M a r i a n o | © 2 0 1 5
solely of a final judgment declaring such previous c. Juridical antecedence or the defect shall
marriage void.” be present at the time of marriage or prior to
Neither the abovementioned Article shall be
understood as a barrier for a person to file a  See Marcos vs. Marcos
petition for declaration of marriage if the  See Pesca vs. Pesca
purpose is not to remarry. In the case of
Domingo vs. Court of Appeals, the allegation of a
husband that the petition for declaration of marriage Republic vs. Molina (more specific)
shall not prosper because its purpose is not to
remarry as provided by Article 40 shall be devoid of a. The burden of proof to show the
merit since a person is not precluded from filing the declaration of nullity shall belong to the
said petition even the purpose is different. plaintiff

b. Psychological incapacity alleged in the

Certain points needed to be considered/ complaint shall be medically observed and
remembered: sufficiently proven by experts

c. The incapacity must be proven to be

What shall be included in the petition for existing at the time of celebration of
declaration of marriage? marriage – judicial antecedence

Article 36 of the Family Code did not provide for d. Such incapacity shall must also be shown
what shall be included but in the case of Santos and to be medically or clinically permanent
Molina, he court ruled that the following shall be – incurable
Question: Does the exam need to personally
Santos vs. Santos Case (general) be conducted to the respondent?

a. The defect is grave Answer: No. In the case of Pesca vs. Pesca, it
was held that although this is more reliable
 Mere irreconcilability is not a valid evidence, it need not be personally
ground for a petition for declaration conducted to the respondent and the expert
of marriage (Siayngco vs. Siayngco) may rely on the testimonies of the petitioner
if there are no other any available means to
 Mere emotional immaturity or prove the existence of psychological
irresponsibility is not a ground for incapacity.
psychological incapacity (Pesca vs.
Pesca) e. Such illness must be grave enough to
bring out the disability of the party to
 Mere abandonment, unless assume the essential obligations of marriage
presumption of death is properly – grave
invoked, is not a ground for
psychological incapacity (Republic f. Essential marital obligations as husband and
vs. Hamano) wife are embodied in Articles 68 to 71 of
Family Code; obligations between parents
 Mere difficulty is not tantamount to and children is embodied in Articles 220,
incapacity to perform the essential 221 and 225 of the same Code
marital obligations (Aspillaga vs.
Aspillaga) g. Interpretations given by the National
Matrimonial Tribunal of the Catholic Church
 Mere sexual infidelity, by itself, does shall be respected by our courts – because
not constitute psychological we only borrow Article 36 from the Canon
incapacity (Kalaw vs. Fernandez and Law
Ochosa vs. Alano)

h. No decision shall be handed down unless the

b. The defect is not curable Solicitor General (representing the State)
issues a certification.

28 | M a r i a n o | © 2 0 1 5
Overall, these requirements were fully satisfied in respondent spouse should be personally examined
the following cases; thus, the Court rendered the by a physician or psychologist.
marriage null and void ab initio.
While this requirement is not mandatory and even
 Lopez vs. Lopez, wherein a wife who had one of the basis of decision in Lucita Estrella
fond of lying was held to be psychologically Hernandez (teacher) vs. Court of Appeals, as it was
incapacitated by the Court. It also gave held that a testimony of an expert “may” help in
credence to the decision of a National proving psychological incapacity in relation to the
Appellate Matrimonial Tribunal declaring manifestations being alleged of the wife seeking for
the marriage null and void. the nullity of marriage.

 Azcueta vs. Republic, wherein a person’s However, it was held in Santos vs. Santos (1995) that
marriage to a person who was found to have one of the requirement to prove psychological
a Dependent Personality Disorder (always incapacity, it is not explicitly said that this
depend on the judgment or decisions of requirement is proven by an expert. Thus, in the case
other people – in this case, to the mother) of Republic vs. Molina (1997), this was clarified
was declared to be null and void as all the and reconciled. In one of the requisites or elements
elements in the Molina case was satisfied. of the petition for declaration of marriage, it was
said that to prove the “incurability” of a defect,
it must be clinically identified and
Are the requirements stated in the Molina sufficiently proven by an expert.
case fixed and needed to be applied in all
cases pertaining to petitions declaring the
marriage null and void? Certain decisions of the Supreme Court
focuses to the information about the absence
Generally, yes. But this was rebutted in the case of or insufficiency of tests conducted to the
Te vs. Te, where it was stated that while the respondent/ defendant, how should this be
requirements of the Molina case is helpful in solving addressed and reconciled with the decision
certain cases, it needed to be applied with flexibility in Marcos?
– that is, applied on a case-to-case basis.
In these cases, the Court invoked the concept of
“totality of evidence”. While it is true that the
Who can declare the sufficiency of Marcos case stated that the requirement to conduct a
information in the petition? test/s in the defendant is not mandatory, this may
still strengthen the petition. Thus, it is now settled in
In the case of Salita vs. Magtolis, it was held that it is the cases of Republic vs. San Jose and Paz vs. Paz
only the Courts can declare such sufficiency of the that an expert, even though did not obtain or
information in the petition and neither the parties conducted testimonies and tests to the respondent,
involved. he or she should not rely heavily in the testimony of
the petitioner. The expert shall also obtain other
information from other witnesses who know the
What is the effect of insufficiency of the defendant including his or her behavior.
information in the petition?

It is generally a ground for dismissal of the petition Composed by judges and not experts in the
that is, declaring the marriage valid and subsisting. field of psychology, how can the Court
declare the insufficiency of evidence or
In the case of Suazo vs. Suazo, it was held that a report presented by the psychologists?
petition wherein only the generality of information
was declared or stated, declares such petition In old cases, the Court did not admit this fact.
insufficient although it includes an expert opinion However, it was settled in the case of Kalaw vs.
(which is also general). Hernandez that the Court cannot invalidate the
opinion of an expert since they are not competent to
such field, thus, it requires them to respect the
Is expert opinion required as evidence in report or evidence presented before them.
proving psychological incapacity?

In the case of Marcos vs. Marcos, it was made clear

that there is no requirement that the defendant/

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How should one decide on cases involving Is judicial declaration always required?
psychological incapacity if the decisions of the
Supreme Court seem to be inconsistent? No. As stated in Article 40 of the Family Code, it is only
required when one intends to “remarry”.
The answer is somehow procedural.
Article 40 of the Family Code
1. Bear in mind that Article 36 did not define or
enumerated what are examples of psychological “The absolute nullity of a previous marriage may be
incapacity invoked for purposes of remarriage on the basis
2. Apply the requirements of Molina case solely of a final judgment declaring such previous
3. Reliance on expert’s testimony (Kalaw vs. marriage void.”
4. Respondent be tested or other witnesses rather
than the sole testimony of petitioner (totality of Why there’s a requirement like this when one
evidence) intends to remarry?
5. When the case reached the Supreme Court,
heavy reliance on the evidence of the Trial The reason is that, in the Civil Code, there is no such
Court is deemed proper in arriving at a proper provision; the result, a lot of people are contracting
decision (Kalaw vs. Hernandez) second or subsequent marriages with only an
assumption that their first/ prior marriage is void. This
was reiterated in the case of Montanes vs. Cipriano.

Is Article 40 a mandatory requirement?

Yes. In the cases of Donato vs. Luna & Terre vs. Terre,
the Court held that parties to the marriage should not be
permitted to judge for themselves its nullity (prior
marriage), for the same must be submitted to the
judgment of the competent courts.

Note: Article 40 shall not be confused with Article 41.

Judicial declaration is applicable when the other spouse
of the prior marriage is still alive, while Article 41 applies
when such other spouse is presumed to be dead. It was a
settled rule that a widow can enter a subsequent
marriage having no legal impediments.

What type of marriages needed to be judicially

declared null and void?

Any type of marriage, including a bigamous marriage

that was entered upon by a person, as long as he
intends to remarry (assuming this was not declared,
challenged, or assailed as void – a judgment of it being
void is already given or judicial declaration requirement
is already satisfied).

Note: Although this topic was included after the

discussion of void marriages, it shall be kept in mind that
this is requirement (Article 40) also applies to
voidable marriages for the same reason why this was
needed in void marriages.

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What is the effect of entering to subsequent What is the risk of invoking the rules/ provision
marriage without having judicial declaration of of presumptive death?
nullity of prior marriage?
The reappearance of the absent spouse or the
It is void. In the case of Donato vs. Luna, the Court held spouse declared to be dead.
that anyone who contracts another marriage before the
judicial declaration of nullity of the previous marriage Effect: Subsequent marriage entered upon is declared
assumes the risk of being prosecuted for bigamy (one of bigamous; thus, void. The first marriage is declared to be
the void marriages enumerated above). valid and subsisting again, EXCEPT when the present
spouse (of the first marriage) is already dead at the time
of reappearance of the absent wife.
(Exception to Art. 40)
Is mere reappearance sufficient?
Can a person enter to a subsequent contract of
marriage even without judicial declaration of While it is true, that the reappearance may declare the
nullity? subsequent marriage entered upon void, this is not
sufficient. There is a requirement of securing an affidavit
Yes. When the other spouse is actually dead; stated of reappearance.
differently, the other spouse is considered to be a widow.
This rule was embodied in Article 42 of the Family Code.
Can death of another spouse be presumed?
In the case of SSS vs. Teresita Jarque, it was held that
Yes. The provision of Article 41 applies. mere reappearance is not sufficient and without an
affidavit of reappearance as required by law, the
In the case of Republic vs. Nolasco, the following presumption of death is still valid. Using the words of
elements are needed to be present in order to apply Atty. Canlas, in the eyes of the law, the absent spouse
Article 41: that is reappearing, is still a ghost if the formalities
required by law has not yet been made.
1. That the absent spouse has been missing for four
consecutive years, or two consecutive years if the
disappearance occurred where there is danger of
death under the circumstances laid down in
Article 391 of Civil Code

2. That the present spouse wishes to remarry

3. That the present spouse has a well-founded

belief that the absentee is dead

4. That the present spouse files a summary

proceeding for the declaration of presumptive

Requirement No. 4 is the reconciling requisite between

Article 40 and 41. While there is no required judicial
declaration, a summary proceeding is still needed before
one can remarry.

What is the definition of well-grounded belief?

The law did not actually make any specific definition for
this term. However, as observed in the cases of Republic
vs. Nolasco and Republic vs. Granada, the Court held
that the burden of proof its existence is on the present
spouse – that his/ her belief must be a result of proper
and honest to goodness inquiries and efforts to
ascertain the whereabouts of the absent spouse and
whether the absent spouse is still alive or is already dead.

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VOIDABLE MARRIAGES (6) That either party was afflicted with a sexually-
transmissible disease found to be serious and
Article 45 of the Family Code appears to be incurable.

What is the effect of voidable marriages? What types of fraud does the 3rd paragraph of
Article 45 means?
They are valid, until annulled.
The answer can be seen in Article 46 of the same Code,
Difference with void & voidable marriages: and is limited to the ones enumerated.

 Void marriages – no marriage to talk about Article 46 of Family Code

because void ab initio
Any of the following circumstances shall constitute fraud
 Voidable or annullable marriages – valid referred to in Number 3 of the preceding Article:
but for some cause existing at the time of the
celebration of marriage ceremony, marriage is (1) Non-disclosure of a previous conviction by
terminated. In other words, upon the celebration final judgment of the other party of a crime involving
of marriage, there is actually a valid marriage to moral turpitude;
talk about and will continue to be subsisting
until annulled (2) Concealment by the wife of the fact that at the
time of the marriage, she was pregnant by a man
other than her husband;
What are the grounds for annulment?
(3) Concealment of sexually transmissible
They are the only ones enumerated in Article 45 of disease, regardless of its nature, existing at the time of
Family Code the marriage; or

A marriage may be annulled for any of the following (4) Concealment of drug addiction, habitual
causes, existing at the time of the marriage: alcoholism or homosexuality or lesbianism
existing at the time of the marriage.
(1) That the party in whose behalf it is sought to have the
marriage annulled was eighteen years of age or over No other misrepresentation or deceit as to character,
but below twenty-one, and the marriage was health, rank, fortune or chastity shall constitute such
solemnized without the consent of the parents, fraud as will give grounds for action for the annulment of
guardian or person having substitute parental marriage.
authority over the party, in that order, unless after
attaining the age of twenty-one, such party freely
cohabited with the other and both lived together as No. 2
husband and wife;
In the case of Buccat vs. Buccat, the Court held that a
(2) That either party was of unsound mind, unless person who seeks for annulment claiming that his wife
such party after coming to reason, freely cohabited with defraud him on the grounds that she concealed her
the other as husband and wife; pregnancy with a man other than her husband cannot be
believed especially that on the time of celebration of
(3) That the consent of either party was obtained marriage, such pregnancy is already in the advance stage
by fraud, unless such party afterwards, with full (7 months) and it is impossible for the husband not to
knowledge of the facts constituting the fraud, freely notice it.
cohabited with the other as husband and wife;
Exception to Buccat Case:
(4) That the consent of either party was obtained
by force, intimidation or undue influence, unless In the case of Aquino vs. Delizo, it was stated that the
the same having disappeared or ceased, such party decision in Buccat cannot be applied in all cases. Here,
thereafter freely cohabited with the other as husband the petition for annulment was granted because at the
and wife; time of marriage, the pregnancy is only 4 months and
due to the physique of the woman that is “naturally
(5) That either party was physically incapable of plump” or “somehow big/ fat, pregnancy cannot be
consummating the marriage with the other, and easily noticed by the husband and may constitute fraud
such incapacity continues and appears to be incurable; in obtaining the consent to enter in a contract of
or marriage.

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What are legal separation and its difference
In the case of Almelor vs. Almelor, it was held that the from divorce and annulment?
one vitiates the consent or constitutes fraud to obtain
consent is the concealment of homosexuality and not Legal separation decree involves nothing more than
homosexuality per se. thus, a person who was a bed-and-board separation and it does not dissolve
homosexual at the onset of marriage but the same was the marriage. This may be no in accordance with Article
not deliberately hidden to his wife, does not constitute a 68 of the Family Code, that’s why the Code only provides
ground for an annulment of marriage. certain grounds.

Difference with void, voidable marriages &

Going back to Article 45, what is the difference marriages with decree of legal separation:
of the 5th paragraph to Article 36 or the
provision for psychological incapacity that can  Void marriages – no marriage to talk about
be a ground to declare the marriage as void ab because void ab initio
 Voidable or annullable marriages – valid
In the case of Alcazar vs. Alcazar, it was held that the 5th but for some cause existing at the time of the
paragraph of 45 refers to lack of power to celebration of marriage ceremony, marriage is
copulate; it is the incapacity to consummate and terminated. In other words, upon the celebration
denotes the permanent inability on the part of the of marriage, there is actually a valid marriage to
spouses or either of them to perform the complete act of talk about and will continue to be subsisting
sexual intercourse. until annulled

On the other hand, psychological incapacity in Article 36  Legal Separation – marriage is valid and
refers (held in Santos vs. Court of Appeals) to no less subsisting but the husband and the wife can live
than a mental (not physical) incapacity that causes separately by virtue of a court order
a party to be truly incognitive of the basic marital
What are the grounds for legal separation?
Thus, to reconcile the same, let us use the case of Chi
Ming Tsoi. The marriage in this case was declared void Article 55 of the Family Code
ab initio invoking the grounds of psychological
incapacity because either one of the parties constantly A petition for legal separation may be filed on any of the
refuses to copulate or do the sexual act. Why this is the following grounds:
ground used?
(1) Repeated physical violence or grossly abusive
Because they are capable of doing the act but only conduct directed against the petitioner, a common
refuses to do so – thus their actions constitute a mental child, or a child of the petitioner;
defect existing at the time of marriage; while in Article
45 (5) it pertains to a physical defect that is (2) Physical violence or moral pressure to
incurable that disable either one of the spouses to compel the petitioner to change religious or
copulate. political affiliation;

(3) Attempt of respondent to corrupt or induce the

Can impotency be a ground? petitioner, a common child, or a child of the petitioner,
to engage in prostitution, or connivance in such
In the case of Jimenez vs. Canizares, the Court held that corruption or inducement;
yes it can be a ground. However, invoking such
allegation cannot be presumed and must be supported (4) Final judgment sentencing the respondent to
by sufficient evidence. A woman whose genital is so imprisonment of more than six years, even if
small and seems to be impenetrable and this accusation pardoned;
are solely based from the testimony of the husband
cannot be given merit. (5) Drug addiction or habitual alcoholism of the

(6) Lesbianism or homosexuality of the


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(7) Contracting by the respondent of a Can the legal concept of pari delicto be invoked
subsequent bigamous marriage, whether in the in criminal cases such as adultery?
Philippines or abroad;
No. In the case of Arroyo vs. Court of Appeals, it was
(8) Sexual infidelity or perversion; held that a civil law concept cannot be used as a defense
in criminal cases for they are not within the same
(9) Attempt by the respondent against the life of province.
the petitioner; or

(10) Abandonment of petitioner by respondent RIGHTS AND OBLIGATIONS OF SPOUSES

without justifiable cause for more than one year.

For purposes of this Article, the term "child" Can the obligations of spouses stated in Article
shall include a child by nature or by adoption. 68 compellable by a legal mandate?

No. In the case of Ilusorio vs. Bildner, the Court held

that while it is true that there are essential marital
Should there be a divorce decree obtained obligations that spouses shall comply, they cannot be
abroad by an alien spouse and the same was compelled to do these. Such obligations shall be done by
properly invoked by the Filipino spouse here in both of them in a mutual and spontaneous
the Philippines, can an action for legal manner.
separation be invoked as stated in Paragraph 7
of Article 55?
Not anymore. Once a divorce decree was obtained
abroad in relation to Article 26 (2) of the Family Code, What shall govern the spouses as to their
and the proper formalities were enunciated, there is no property relations?
need to file a legal separation for there is no more
marriage existing; thus, no parties needed to be
separated. During the subsistence of marriage:

This principle is not applicable in the case of Tenchavez It should be the effective law at the time of marriage.
vs. Escano, et al. because on the time that a divorce
decree was obtained by one of the party, both of them
were still Filipino citizens; thus, not covered Article 26 During the disposition of properties:
(2). Remember that the reckoning point of the
citizenship (being a foreigner) requirement is from the It should be the law at the time of disposition.
moment of obtaining the divorce decree.

In addition, since the marriage is not declared to be Can property relations be subjected to
nulled/ divorced, subsequent marriage of one party is stipulations?
considered to be bigamous under the Philippine laws.
Thus, the Filipino spouse can properly invoke his right Yes. This will not be in violation of the inviolability of the
for legal separation. contract of marriage. However, this stipulation shall be
reduced in writing and executed before the
See page 25 for the discussion of this reckoning point solemnization of marriage, and shall not prejudice
the rights of third persons, unless, such stipulation is
registered or recorded in the local civil registrar. See
Is there a need for the appearance of a Article 77.
prosecuting attorney representing the State
before the trial?

Yes. In the case of Tuason vs. Court of Appeals, it was

held that in all cases for annulment, declaration of
nullity of marriage and legal separation, the prosecuting
attorney or fiscal is ordered to appear on behalf of the
State for the purpose of preventing any collusion
between the parties and to take care that their evidence
is not fabricated or suppressed. This is also in
accordance with Article 60 of the Family Code.

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Marriage Settlements
 Neither parties can go to Court only stating that
These are agreements or stipulations changing the they want to change their property relations
property regimes (Art. 75 of FC) executed before or without a valid and lawful ground
during marriage.

Rules: Are donations between spouses (already

married) valid under the law?
MR’s executed before marriage (ante-nuptial
agreements) NO, in general because under the default regime of
absolute community of properties, since the properties
 There’s no need to go to Courts for these were communal or common for both spouses, donations
settlements be valid (Toda vs. Court of Appeals) made one party in favor of his/her spouse, is deemed to
be a donation made to him.
 Consent of the parties is needed and the
instrument must be reduced in writing and duly ^ Should the property regime governing them is either
signed by both of them conjugal or complete separation of properties; the same
general rule shall apply. Why? Because as a matter of
 Ante-nuptial agreements includes what property public policy, and even provided by law in Art. 68 of the
regime will govern the parties during marriage – FC, that the spouses shall render love, fidelity and
absolute community (no more stipulation support to each other. Donations are not a form of
needed if married during the effectivity of the support but these are given out of generosity of a person
FC), conjugal partnership of gains, or complete to another. In marriage, the same shall not apply
separation of properties (Art. 75 of Family Code) because the public views the spouses to give support to
each other out of love but not of generosity.
Property regimes will be discussed in page 36
onwards of this reviewer.
Is the above rule absolute?
 Should there be no marriage settlement
executed before marriage or when the agreed No, because as a general rule, there will be an exception.
regime is void, the default property regime, Moderate gifts given during family rejoicing is a valid
which is the absolute community of property, form of donation. What is moderate? This is actually a
shall govern (Art. 75 of Family Code) matter of judgment.

 Such marriage settlements may only be modified

before the solemnization of marriage, otherwise, Can donation be made before marriage?
modifications made during marriage are void
Yes, absolutely. A person can donate his property to any
person he wants it to be donated.
MR’s executed after or during marriage

 No contract be executed changing the property Can donation be made in consideration of

regime of the parties during marriage – void marriage?

^ Rationale: There’s a default property regime Such donation is otherwise known as donation propter
that shall govern the parties, and allowing them nuptias. These are still donation made before marriage,
to change or modify the same at any moment thus valid.
they want will circumvent the law requiring the
execution of ante-nuptial agreements Are these donations in violation of public policy, as it
appears to be as a bribe for the other party to enter into
 Should the parties want to change their property marriage?
relations, they may do so, only if with valid
cause. Under the law, legal separation is a No. Because just like any other donation, these are
valid ground to modify the property relations of revocable. Just take note that what are generally
the parties during marriage. (See also Art. 135) prohibited are donations during marriage. In donation
propter nuptias, there is more reason to revoke it when
 Regardless of the validity of the ground for the the marriage did not prosper. (Art. 86 of FC)
modification of the property relations, Court
intervention or approval is required/ judicial
order. (Article 134, FC)

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TYPES OF PROPERTY REGIMES DURING Rules to remember under this regime:
 Properties acquired before marriage
Before we discuss the property regimes during
marriage, it shall be borne in mind that there is also a - There is no need to classify whether
property regime available even with no marriage. exclusive or paraphernal since they will
eventually become community properties
Will this be possible? How can there be parties after marriage
be govern by property regime if there is no
marriage between them?  Properties acquired after marriage

Yes it is possible, in cases of “common law spouses” - There is a presumption under Article 93
or those parties cohabiting with each other as husband that properties acquired during marriage are
and wife without the benefit of a valid marriage. presumed to form part of the community
However, it shall be kept in mind that parties cohabiting properties; unless, these properties were
with each other shall have no legal impediments amongst those enumerated below
for the rules on co-ownership are applied.
(Joaquino vs. Reyes)
What are excluded in the common properties of
Also, this is true in case of void marriages or those in the the spouses?
eyes of the law, “did not exist”, wherein the parties were
able to acquire properties during that period. (Valdez vs. The reference will be Art. 92 of FC which excludes the
RTC) following from the community or common properties:

 Property acquired during marriage by

What property regime shall govern them? gratuitous title and the fruits and income
thereof; unless the donor of those properties
The rule on co-ownership – recognizes that all expressly states that they will form part of the
properties acquired during the period of cohabitation community property
equally belong to them as a result of their work or
industry. (Article 147 & 148 of FC)  Property of personal and exclusive use of
either spouse. However, jewelry shall form part
Note: This will be discussed more in page 40 of this of the community property
 Property acquired before marriage by
either spouse who has legitimate
First Regime – Absolute Community of Property descendants by a former marriage, as well
as the fruits of those property

How property relations between spouses are Note: Exclusive properties under this regime are
described under this regime? limited to the above enumerated. This is embodied in
Article 93. Administration to them belongs to the
Under this regime, all properties brought into marriage owner-spouse.
(and even those acquired during marriage) are the
common properties of the spouses and/or the family.
Properties acquired during marriage using
^ It is as if, a spouse says to the other spouse that what exclusive money/ properties
he owns belong to him/her (to that other spouse) and
the same goes around for the latter. Under this regime, they still form part of the
community properties and this is because of the
Note: Under the FC, this is the default property limits stated in Article 93 of the Family Code.
regime. But this will not be the case if the parties want
to be governed by other property regime by virtue of
ante-nuptial agreements. Who can administer community properties?

Both spouses (Article 96); however, such power does

include the power to alienate or disposition of such
properties without the written consent of the other
spouse (Articles 96 & 98).

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Are there instances where a spouse can solely Rules to remember under this regime:
administer such properties?
 Properties acquired before marriage
Yes, if the other spouse is incapacitated to do so. This
can also be granted by the courts to the present spouse if - There is a need to classify them as exclusive
the other spouse abandons and did not intended to come or paraphernal properties because as a
back; for purposes of a petition to courts under this general rule, under this regime, they are
ground, abandonment shall be for three months. treated as separate properties of the spouse
who owns them

How about the debts incurred during marriage;  Properties acquired after marriage
are they also common to the spouses?
- There is a presumption under Article 116
Generally, YES because by default, spouses own the that properties acquired during marriage are
same set properties and any spouse can incur liability in presumed to form part of the conjugal
managing those properties for its improvement or for properties, unless the contrary is provided.
benefits to be redounded in favor of the family.

Note: Should the debts are exclusive and paraphernal What are excluded in the conjugal properties of
and did not benefit the family; the classification of such the spouses?
debt will also be exclusive and chargeable only to
exclusive properties. However, exclusive properties shall The reference will be Art. 109 of FC which excludes the
be subject for the payment of community properties’ following from the conjugal properties:
liabilities if after the exhaustion of their exhaustion
(community properties), there are still remaining  Those properties brought into marriage by
liabilities. either spouse as his or her own

 Those properties acquired during marriage by

When is the commencement of absolute gratuitous title
community regime?
 Those properties which are acquired by right
This will be at the precise moment that the of redemption, by barter or by exchange
marriage is celebrated. (Article 88 of FC) with properties belonging to only one of the
^ Can this be changed by a stipulation at any time during
marriage? No, such stipulation will be void. (Art. 88, FC)  Those properties which are purchased using
exclusive money

Second Regime – Conjugal Partnership of Gains Properties acquired during marriage using
exclusive money/ properties
Note: Under the Family Code, this regime can only be
invoked by virtue of an ante-nuptial agreement. As noted in Article 109 of FC, such properties were also
classified as exclusive properties of the purchasing
How property relations between spouses are spouse. However, to reconcile this with Article 116, it
described under this regime? shall be noted that there are actually two requirements
provided by law to classify them as exclusive properties:
Under this regime, spouses maintain their exclusive or
paraphernal properties which were brought into 1. Purchased using exclusive money
marriage; but use those properties to establish a fund
(become conjugal funds or properties) which the family 2. Solely contracted and acquired by the
will use on their needs. purchasing spouse in his/ her exclusive
personality (deed of sale); registration date is
^ It is as if a spouse says that what belongs to him/her not a proper reference to determine exclusivity,
only belongs to him. unless there is no other way to determine the
date of acquisition (Metrobank vs. Jose Tan)

^ If on the deed of sale, the names of both the

spouses are present, such properties are
deemed to be conjugal properties

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Who can administer conjugal properties? compelled to the owner-spouse since he/ she has the
exclusive right to administer it.
Both spouses (Article 124); however, such power does
include the power to alienate or disposition of such ^ Sir Canlas did not agree on the first part of the decision
properties without the written consent of the other of the Court on this case on the grounds that the since
spouse (Articles 124 & 125). there was a presumption that all properties acquired
during marriage are deemed to be conjugal; and such
property was not reacquired under a right of redemption
Are there instances where a spouse can solely (applicable if foreclosed). Nonetheless, he agreed with
administer such properties? the second part.

Yes, if the other spouse is incapacitated to do so. This

can also be granted by the courts to the present spouse if What will happen if there’s an improvement on
the other spouse abandons and did not intended to come exclusive properties during marriage?
back; for purposes of a petition to courts under this
ground, abandonment shall be for three months. Should the improvements were also paid using exclusive
properties or money, its classification as exclusive will be
What constitutes conjugal partnerships based
on the above rules? However, if the improvements were paid using conjugal
properties, it will lose its exclusivity and automatically
CASE 1 converted into conjugal property, subject to
In the case of Mendoza vs. Reyes, it was held that a reimbursement payable to the owner-spouse based on
property that was acquired during marriage and was the price of the property before such improvements.
obtained through a loan contracted by both
parties (conjugal fund was used) forms part of conjugal CASE 1
properties; and thus, cannot be alienated without the In the case of Embrado vs. CA, it was held that an
consent of the other spouse. exclusive land of a wife (exclusivity was evidenced by a
document of sale) where the spouses built their home
CASE 2 using conjugal funds, is automatically classified as
In the case of Belcodero vs. CA, it was held that a person conjugal. (Article 158 of Civil Code)
who abandoned his first family and contracted another
marriage where during that period, such person acquired ^ In the above case, since the property was converted as
some properties; these properties were deemed to be a conjugal property, a spouse cannot alienate the same
conjugal properties with the first family. without the consent of the other spouse.

^ In the above case, should the properties were proven to CASE 2

be acquired using exclusive money of the purchasing In the case of Calimlim vs. Fortun, it was held that an
spouse and was solely acquired by him; they will be exclusive land inherited by a person where the conjugal
classified as exclusive. house of the family by the first marriage is constructed,
is automatically classified as conjugal. A sale between the
CASE 3 person who owns the lot (by inheritance) and his
In the case of Veloso vs. Martinez, it was held that concubine is void on the grounds that: there is no
jewelries brought into marriage are exclusive properties consent of the other spouse for the sale – since the land
of the spouse who owns them. Thus, cannot be attached was converted to conjugal property and the sale is
as a security for a personal liability of the other spouse. contrary to morals and public policy.

Note: This is not to be confused with the provision in the ^ In the above case, the concept is just the same in the
regime of Absolute Community that jewelries are case of Embrado vs. CA; but the Court used Article 120
always common properties; this is not applicable in the of the Family Code as a legal basis of its decision.
regime of Conjugal Partnership of Gains.

EXCEPTION – Acquired during marriage How about the debts incurred during marriage;
are they chargeable to conjugal properties?
In the case of Plata vs. Yatco, it was held that a property
which was reacquired during marriage (exclusive before It depends whether they are exclusive or
marriage) did not change the exclusive or paraphernal conjugal debts. Such debts are exclusive if they are
characteristic of that property. Thus, a judgment for contracted without the consent of the other spouse and
ejection for both spouses on the said property cannot be did not benefit the family; otherwise, it is conjugal debts.

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^ Should the debts are conjugal but the conjugal funds reason is that; first, there is no proof that it will provide
or assets are insufficient as payment, spouses are benefit to the family because as a guarantor, he/ she will
solidarily liable with their separate or exclusive not get the proceeds for such debt or loan.
Secondly, even he/ she is the administrator of the
CASE 1 conjugal property, such spouse cannot take unwarranted
In the case of Ong vs. CA, it was alleged that a conjugal risks that will prejudice the stability of the conjugal
property cannot be held liable for a liability contracted property or family finances.
by a spouse in his/her own personal business; the Court
held that this is not true. For these reasons, such debt is only exclusive.
In this case, the property in questioned was declared as
exclusive (logically, a valid payment for a spouse
personal business’ liability); nevertheless, although it is Can the “redounded benefit to the family” be
declared as conjugal, it can still be held liable because presumed?
the liability was contracted for a personal business of a
spouse that actually supports their family. Having said No. The law did not state that such presumption is
this, it did actually redounded benefit to the family, thus, available. It shall be noted that the presumption it has
it is still proper that the property (assuming conjugal) be given is the one related to “properties acquired during
held liable for such liability. marriage”, which are deemed to be conjugal – and not
the debts acquired during marriage.
In the case of G-Tractors vs. CA, it was held that as long ^ Thus, the burden of proof that the family has benefited
as the liability of a spouse would normally produce profit from such debt/ personal loan belongs to the spouse who
that can be used to provide benefit to the family; even has acquired it personally.
though there is no actual profit or benefit from
the said liability, the conjugal properties can still be held
liable. What is the rule if the spouse who has personal
debts does not have exclusive properties?
Note: This case somehow reverses previous decisions of
the Courts where it requires actual benefit to be They will be chargeable to conjugal properties. However,
redounded to the family. under paragraph 3 of Article 122, personal debts are
only limited to (1) debts contracted before marriage,
^ However, although the Court said such decision, (2) fines and indemnities upon them, and (3) support of
nevertheless, it also stated that the debts have only the illegitimate children of either spouse.
accumulated because of the support given or provided to
his family. Having said this, it can be seen that there’s an In the case of People vs. Lagrimas, it was held that fines
actual benefit redounded to the family. imposed on the husband after being charged with the
crime of murder can be charged against conjugal
properties since he does not any exclusive properties to
What are the rules for personal loans obtained pay for such debts. However, as also pointed out in
by the spouse? Article 161 of CC (now Article 122 of FC), conjugal
properties can only be charged after the funds for the
GENERAL RULE: They are exclusive debts. Thus, maintenance of the family, including education of the
exclusive properties shall be the ones subject for children, has been firstly set up.

EXCEPTION: If it was proven that such loan has When is the commencement of conjugal
redounded benefits to the family, conjugal properties can partnership regime?
be held liable.
This will be at the precise moment that the
^ In the above case, what shall be exhausted first for marriage is celebrated; provided however, that a
payment are exclusive properties of the spouse marriage settlement has been provided. (Article
who obtained the personal loan. 105 of FC)

^ Can this be changed by a stipulation at any time during

CASE 1 marriage? No, such stipulation will be void. (Art. 107
In the case of Luzon Surety vs. De Garcia and Security with reference to Article 88 of FC)
Bank vs. Mar Tierra Corporation, it was held that a
spouse who acted as a guarantor or a surety cannot
make the conjugal properties liable for such debt. The

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Third Regime – Complete Separation of PROPERTY RELATIONS OF UNIONS WITHOUT
Properties MARRIAGE

Note: Under the Family Code, this regime can only be Note: I have separated this from the other regimes just
invoked by virtue of an ante-nuptial agreement. not to confuse or mix it up with what regimes shall
govern “valid marriages”.

This regime applies to spouses who agreed to have their

properties classify as exclusive/ paraphernal. Since the Generally, the rules that will be stated below apply to
spouses maintain the exclusivity as to ownership of their “common-law” spouses. Logically, since there is no
properties, they have the power to alienate them without marriage, each party’s properties are exclusive. However,
the consent of the other spouse. this is not absolute because there are still parties existing
that live together but without the benefit of a valid
However, under the Family Code, such exclusive marriage and during that cohabitation, be able to acquire
properties can be held liable for expenses classified as certain properties.
“family expenses”.
So the question is: What shall govern them? Can they opt
In the case of Yao vs. Perello, it was held that a liability to choose between the available regimes stated
of a husband under this regime was exclusive to him and governing valid marriages?
co-owned properties with the wife cannot be held liable
since the liability is not considered to be “family To answer the first question, it was stated that the rules
expenses” – the liability was taken for the personal on co-ownership shall govern the properties of such
business of the husband. parties; but to clarify this, what’s being governed by the
rules on co-ownership are properties acquired
during the cohabitation.

As to the second question, the answer is no. The reason

is that:

 Absolute community – commence, by default,

upon the celebration of marriage (Article 88 of
 Conjugal property of gains & complete
separation – this were only available by virtue of
an ante-nuptial agreement between the parties
and only commence upon the celebration of the
marriage (Article 107, in relation to Article 88 of

^ Based on the above rules, the abovementioned regimes

can only commence upon the celebration of marriage.
Nevertheless, it shall be noted that what the law pertain
as “marriage” for the application of these regimes, are
“valid marriages”.

Definition of terms:

Co-ownership means that the properties of the parties

are “deemed” to be acquired using their joint effort and
be as if treated conjugal; that is, alienation or
encumbrance cannot be made without the consent of
each other.

Equal sharing means that properties are divided

equally and each party’s share can be alienated or
encumber without the consent of the other.

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RULES: the other spouse but such alienation is limited to
his/her share.
Note: In both cases, if there is a proof that a party
acquired properties using his/ her exclusive funds or Illustrative Case
money, such property will also be classified as In the case of Francisco vs. MIWCC, it was held
exclusive. This rule is also available in the regime of that a spouse, who claims a property to be
conjugal property of gains. exclusive but the same was not proven, cannot
classify it as such.

 If there is no legal impediment – Article 147 In the above case, there was cohabitation but
shall apply. Under this rule, if parties cohabit there is legal impediment as it was actually
without legal impediment, there is a bigamous. Thus, the presumption of co-
presumption of co-ownership if the properties ownership will not arise; the other party can
are acquired during cohabitation. alienate or encumber or subject the property to a
liability without the consent of the other.
No legal impediment means that the parties who
lived together as husband and wife but without However, if the non-consenting party contests
the benefit of a valid marriage (but are capable the action of the other, he/she needs to prove
of); this include those who are of legal age, not that the property (at least in this case) is co-
previously married, or not psychologically owned by them.
incapacitated to enter into marriage.
Held: The Court rendered a decision that the
Illustrative Case alleged property can be subjected as payment for
In the case of Maxey vs. CA, it was held that a liability even though no consent was given by
parties cohabiting as husband and wife under the other party for the action of the other.
the benefit of a “military fashion” marriage are However, such payment is only limited to the
under the law, considered not to be married. share (50/50) of the party who has personally
Nonetheless, since they don’t have any legal incurred by him.
impediment to marry (it just so happen that the
law do not recognize their marriage), their The rationale of the Court is that, since the non-
properties acquired during cohabitation are co- consenting party did not prove that the property
owned by them. is at least co-owned by them (for consent be
needed) based on the requirements provided by
^ In the above case, the sale made by the law, such property is equally shared by the
husband after the death of his wife is co-owned parties.
by him and the estate of the deceased, thus,
consent of the estate, through the other heirs, is
needed to validate the sale. Does equal sharing of properties need to
be filed as a petition or complaint
separately in case of bigamous
 If there is legal impediment – Article 148 marriage?
shall apply. Under this rule, however, if parties
cohabit with legal impediment, there is no It cannot be argued that there will be no
presumption of co-ownership anymore. petition, because technically, there actually is.
What law requires is that there should be a clear But normally, what a person file is not a
showing that properties acquired during the separation of properties but a petition for
cohabitation is actually paid by joint declaration of absolute nullity of marriage on the
contribution for co-ownership to arise. ground of bigamy. Nevertheless, even a different
petition was filed (not related to properties), it
Unions with legal impediment includes a party has been accepted that as a consequence of the
who is not of legal age, one is an incapacitated said petition, the properties are automatically
party, including bigamous marriage, and other being affected.
void marriages.
^ It can be remembered that under Article 40 of
Should there be no actual proof, properties FC, a judicial declaration for absolute nullity of
acquired during the period of marriage is required if one’s purpose is to
cohabitation are deemed to be of equal remarry. However, the same petition does not
share or 50/50. In this case, the share of a preclude any party in filing it even though the
spouse can be alienated without the consent of intention is not remarrying but might include

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liquidation or partition of properties, as well as FAMILY RELATIONS & SUITS BETWEEN
custody of children. FAMILY MEMBERS

It was held in the case of Domingo vs. CA, it was

held that an ultimate prayer for separation of Who may constitute family members?
property will simply be one of the necessary
consequences of the judicial declaration of Article 150 of Family Code states that family
absolute nullity of marriage. relations include those:

1. Between husband and wife;

2. Between parents and children;

3. Among other ascendants and descendants; and

4. Among brothers and sisters, whether of full or


Note: However, under cases decided by the Supreme

Court, such requirement of conciliation of family
members does not cover relatives by affinity.
Nevertheless, they are considered as relatives under the
Revised Penal Code.

Can a case against a family member prosper

without conciliation or compromise?

General Rule: No. As stated in Article 151 of the FC,

should there be no proof that a compromise or
conciliation has been made before filing a case against a
family member, such complaint may be dismissed.

Exception: Under Article 2035 of the Civil Code, it was

stated that no compromise/ conciliation is valid upon
the following questions or grounds:

a. Civil status of the person

b. Validity of marriage or legal separation
c. Any ground for legal separation
d. Future support
e. Jurisdiction of courts
f. Future legitime

In the case of Versoza vs. Versoza, it was held that no

conciliation is needed between family members who
filed a complaint for support where it involves a case
where a husband abandoned his family and lived with
his concubine.

Should the proof of conciliation not included in

the complaint against a family member, will
this be fatal in the dismissal of the case?

What is needed is a proof that conciliation has been

made. Nonetheless, the non-inclusion of this proof in the
complaint is not fatal for its dismissal; this is because,

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the complaint can still be amended. (O’Layco vs. Cocho PATERNITY AND FILIATION
What is filiation?
^ It shall be noted, however, that an amendment to the
complaint can only be made within the Court that took Under the law, this is the tie that exists between
cognizance of the case. Should the case was appealed in a parents and their children. This is synonymous to
higher court, no amendment can be made. kinship or relationship.

This is related to the descent (hereditary right) of son or

What is the rule if the complaint pertains to daughter, with regard to his or her father, mother, and
family members but with the inclusion of their ancestors.

As it was held in the cases of Hontiveros vs. RTC of Iloilo What is paternity?
and Hiyas Savings vs. Judge Acuna, should there be
strangers as part of the complained persons, where a On the other hand, paternity refers to the legal and
family member is also a part, there need not be biological relationship between the father and the
conciliation or compromise; the case can proceed alleged child. This is the state of condition of a father.
without providing proof to such.
^ This is given only to the husband (in a valid marriage)
because he is the party that can be more prejudiced by
the action of the other spouse or the wife/ woman. The
FAMILY HOME reason is that, unlike a woman, he can’t just come home
one day bringing a child and saying that it was their child
What constitutes a family home? as the lie about it is obvious; on the other hand, a woman
can just say that she was impregnated by the husband or
Under the Family Code, this includes the house and lot man (even though not), without him noticing the truth.
of the husband and wife or of an unmarried head of the
family, which is the dwelling where they and their family Another reason is that under the Family Code, there is a
reside. (Article 152) presumption of legitimacy of a child born during
marriage; thus, the wife can easily use this presumption
and say that a child was legitimate and is their actual
However, the same is not the rule under the Civil Code. child even though the same is not the truth; she can
To be considered as family home in this law, the conceal it by just saying that the child was a product of
following requisites shall be present: their matrimony and love as a married couple, without
the husband easily noticing the truth. As a result, the
1. There is a petition whether judicial or extra- husband is given the right to impugn or assail the
judicial to declare it as family home legitimacy of such child.

2. Registration in the Civil Registry

How to determine the relationship or filiation
between parents and their children?

Can the family home be subjected to execution, Under Article 163 of the Family Code, filiation can be
forced sale or attachment? either by nature or adoption:

General Rule: No By Nature* Adoption**

Exception: Article 155 of Family Code; this include, (1) Children can either be:
non-payment of taxes, (2) debts incurred prior to
constitution of family home, (3) debts secured or
attached on the premises prior to constitution, (4) debts Legitimate Illegitimate***
due to laborers, mechanics, materialsmen and others
who have rendered service for the construction of the
family home. * By nature means that at least one, or both, of the
parties is the biological parent of the child.

** Adoption occurs when a person (or both in case of

married persons), is not the biological parent of the
adopted child.

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*** The issue of illegitimacy can only be impugned by If A and B were validly married, but there are factors that
husband in a valid marriage. hinder them to bore a child (either physically
impossibility or because of some conditions) and still
able to conceive a child (AB) during their subsisting
Definition of terms: marriage, AB will still then be presumed as legitimate.

LEGITIMATE CHILD – under the Family Code, these ^ Nonetheless, since there is a marriage and sort of
are the ones who were actually born during a valid impossibility to bore a child during that period, A (the
marriage. There is even a presumption that these husband) has the right to impugn or assail the
children are legitimate, Article 164. legitimacy of AB.

^ This also includes those children born within

marriages covered by Article 36 (void ab initio – Example 3:
psychological incapacity) and Article 45 (voidable
marriages) of the Family Code. The basis’ are Article 54 C = father
of FC and voidable marriages are valid until annulled. D = mother
CD = child

ILLEGITIMATE CHILD – under the Family Code, these If C and D (both were single) were not validly married,
are the ones who were born out of wedlock, Article 165. but due to some intimacy were able conceive a child
(CD), such child will be considered as illegitimate since
^ In case that a child was born out of wedlock between a conceived out of wedlock.
man and woman, whether they have or does not have
legal impediment to marry, such child is considered to ^ However, the child can prove of his/ her right as an
be as illegitimate, except when they cohabited as illegitimate child (filiation) with the alleged parent,
husband and wife. either one or both of them.

This also covers children born within void marriages

under Article 45 of the Family Code. Example 4:

Example 1: A = father
B = mother
A = husband C = concubine of the father
B = wife AC = child
AB = child
If A and B were validly married, but A maintained a
If A and B were validly married and were able to concubine – that is C; as a result, AC was born out of the
conceive a child (AB) during their cohabitation, AB will sinful relationship.
then be considered as legitimate.
What is the status of the child? Will he/she be covered
CASE 1 by the presumption of legitimacy during marriage?
In the case of Perido vs. Perido, it was reiterated the
presumption of marriage when a man and a woman, As to the presumption, the answer is NO. This is because
without legal impediment, cohabited and lived together the presumption only applies for children born or
as husband and wife; thus, should a child was conceived conceived during marriage, in this case, that is with A
and born during the period of cohabitation, such child is and B. But this is not the case in here. The husband
considered to be as legitimate. cannot just bring AC home and say that it was their (A
and B) child, as the lie would be very much obvious.
^ The rationale is due to a mix of presumptions under
the law – the presumption of marriage under Rule 131 on Note: Since the presumption is not applicable, the right
the Rules on Evidence (recognized as valid unless to impugn belonging to the husband is not applicable in
rebutted) and presumption of legitimacy of a child under this case.
Article 164 of the Family Code.
^ Thus, AC would be considered as illegitimate child
of A since he/ she was born out of wedlock. The child,
Example 2: AC, would then be has the right to prove the same to A
that he/she is an illegitimate child of the latter (because
A = husband most likely, A or even his heirs, be denying AC) by
B = wife presenting sufficient evidence.
AB = child

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Further note: The issue whether the father recognizes What evidence needed to be presented to prove
the child as his own (illegitimate or even legitimate) can such recognition or filiation?
be brought up in this case. Evidence shall also be
presented showing that the alleged father actually The case of Gono-Javier vs. CA established the
recognizes the child. requirements as to evidence, provided by Article 278 of
Civil Code. These are:

CASE 1 1. Birth certificate; or

In the cases of Ilano vs. CA and Gaspay vs. CA, it was 2. A will (last will and testament); or
held that a child that was born out of wedlock to a 3. Statement before a court of record; or
married man and his concubine shall be considered as 4. Any authentic writing that proves such
illegitimate child of the father. The evidences presented recognition
were: (1) Birth certificate but this does not bear the
signature of the alleged father, (2) Continuous ^ In the above case, what was presented is a deed of sale,
possession of the surname of the alleged father, (3) thus the Court rendered that there is no filiation since
School documents duly signed by the father, and (4) the document is neither among the 4 enumerated above.
Financial supports given by the father that were proven
by a letter made by the alleged father to his concubine

^ The letter is the most important evidence as you will Should a child claim that he/ she was a legitimate child
see on the requirements set by the law, and these were and was conceived during a subsisting marriage, this fact
shown below. shall still be proven by enough evidence even though a
valid presumption under Article 164 of FC is existing;
CASE 2 especially, if such filiation/ relationship is being
In the case of Alberto vs. CA, it was held that a child that disputed.
was born out of wedlock is entitled to the estate of his
father as an illegitimate child. The evidences presented CASE 1
to prove the illegitimacy are: (1) Continuous possession In the case of Babiera vs. Catotal, it was held that a child
of the surname of the alleged father, (2) School that she was a legitimate child of her alleged married
documents that shows that the father acknowledges the parents but only presented a birth certificate bearing the
child, (3) Financial supports given by the father that name of the alleged parents but during trial, the
were proven by a letter made by the alleged father to his alleged mother denied that she bore a child
child, and (4) Acknowledgement made by the family when the petitioner was born. The record also
members of the deceased father during his wake. shows, in this case, that the child was actually a
biological daughter of another woman. Hence, it was
^ In this case, aside from the proof of support given by rendered that she is not related with the alleged married
the deceased father, the acknowledgement of the child parents.
made by the family members during his wake helped the
Court to arrive at such decision. CASE 2
In the case of Belan Sagad Angeles vs. Apeli Corazon, it
CASE 3 was held that a child claiming that she was a legitimate
In the case of People vs. Tumimpad, it was held that a child of a man married to her mother (but the marriage
child that was conceived because of a crime of rape shall documents were destroyed) and even presented a birth
be considered to be an illegitimate child of the certificate but does not have the signature of the
perpetuator. In this case, the proof of filiation is the alleged father, neither of the mother, was declared
blood test made to the child and the perpetuator of the not to be related with the alleged father.
crime and other evidences that will prove such filiation
such as the testimonies made before the Court. CASE 3
In the case of Benitez-Badua vs. CA, a child that
^ Can the rapist (proven) be compelled to recognize the presented a birth certificate but has no signature of
child as his own child? YES. In the case of People vs. the attending physician was declared not related with
Rafanan, the court held that under Article 278 of the the alleged parents. The reason is that, when the child
Civil Code, the perpetuator shall recognize the child and was allegedly born, the age of the alleged mother is
under Article 345 of the Revised Penal Code, give already critical to bore a child, thus, a need of an expert
support to the off-spring. is needed especially on the delivery of the child.

Exception to Case 3:
In the case that the crime of rape was not proved, no
recognition is required under the law. (Tan vs. Trocio)

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In the cases of Labagala vs. Santiago et al and Fernandez
vs. CA, it was held that a child that only presented birth
certificate and pictures during baptismal does not prove Who has the right to impugn legitimacy?
any filiation between him/ her and the alleged parents.
The reason is that birth certificate only shows that the It was already stated above that this action only belongs
ceremony has occurred but does not show filiation or to the husband in a valid marriage, challenging whether
relationship. or not the child of his wife was actually his. However, for
this to be effective the child shall be recognized
by the mother as her own; otherwise, the question
Whose surname shall be used by a legitimate will become more of a filiation rather than legitimacy.

Since they are legitimate by virtue of a valid marriage, Should the wife does not recognize the child, is
they shall bear the surname of their father. there still a presumption of legitimacy?

Can this be changed? This means that the mother/ wife do not claim that the
child actually came from her own womb. If this is the
General Rule: NO, as it will create confusion to the case, the action is not to impugn legitimacy rather, it is
public. (Moore vs. Republic) more of whether or not there’s filiation. There can be a
presumption at first but this will be rebutted since the
Exception: Should the children decide to change it upon mother herself declares the non-filiation of the child.
reaching the legal age due to some circumstances that
will affect them in a negative way, and with the CASE 1
consent of their father, the Court said that they can In the case of Lee vs. CA, it was held that a wife who
do so. (Naldoza vs. Republic) evidently did not bore the children in question but are
registered in the name of her as their mother through the
machinations of her husband, their legitimate children
Whose surname shall be used by an illegitimate can validly assail or cancel such registration not on the
child? ground of impugning legitimacy but rather assailing
their (children in question) filiation with their mother.
It is the surname of the mother as stated in Article 176
of the Family Code. ^ The action will not belong to the husband since this is
not an action impugning legitimacy.
However, it shall be noted that since they already use the
surname of their mother as theirs, they don’t have a CASE 2
middle name. In the case of Chua Keng Giap vs. IAC, it was held that
should a mother equivocally declare the child as not
But if the child was recognized by his/ her father and was her own child and this was affirmed by a final judgment
acknowledged as illegitimate, he may opt to use the of a court, the said child cannot question his/ her
surname of his/ her father. (In the matter of Adoption of legitimacy anymore since there is no legitimacy to talk
Stephanie Garcia) about. This answers the question of whether or not
there’s filiation rather than legitimacy.
^ The choice of what surname shall be used was given
solely to the child.
Should the mother deny the child as her own, is
there still a presumption of legitimacy?

First, let us discuss the difference. Denial means that

the mother who bore a child claims that the latter was
actually not a child of his husband, thus illegitimate. On
the other hand, non-recognition means that the
mother herself declare that she did not bore the child in
question as her own, thus no filiation.

In denial, the presumption of legitimacy would still arise

because of Article 167 of the FC. The reason is that since
the law only gives the right to impugn legitimacy to the
husband (or his heirs on certain circumstances); it
follows that the wife cannot assail such legitimacy.

46 | M a r i a n o | © 2 0 1 5
Note: Even the children cannot impugn their own b. Husband and wife were living separately
legitimacy. Although the law provides that under certain in such a way that sexual intercourse was
circumstances, they can impugn their mother’s child not possible – means that there can be no
(other than them) as heirs of their deceased or sexual access; take place when they reside
incapacitated father. in different countries or provinces and they
have never been together during the
It should be reiterated that under the law, there is a period of conception
presumption of legitimacy – a child conceived and born
during marriage are presumed to be legitimate of the ^ In the case of Macarandang vs. CA, it was
husband and wife. Such presumption can only be held that although the husband and wife
impugned by the husband or his heirs under certain actually separated because of an illicit affair
circumstances. of the wife other than her husband, the
Court declared the born child as legitimate.
In the case of De Jesus vs. Estate of Juan Gamboa, it was This is because of the fact that on the time of
held that the children (and even their mother) that were conception of the child, they are still living
born during the subsistence of a marriage are presumed together within the same roof. Living
to be legitimate and such legitimacy was even affirmed separately, under the law, means that the
by their birth certificates indicating that they were born couple is not possible to copulate or conceive
to the married spouses. Thus, even though they claim a child because of their physical distance
that a person (in this case, the deceased who left within them during that period.
considerable amount of properties) who declared them
as his illegitimate children, nonetheless, they cannot
impugn their legitimacy because the law did not gave c. Serious illness of the husband – means
this right to them. The presumption of legitimacy would that by nature, the possibility of having
remain. sexual intercourse is not present due to an
illness of the husband such as when he was
^ Also in the above case, the Court stated that the placed in a plaster cast because of an injury;
presumption of legitimacy is firm, unless rebutted by the this can also embody impotency of the
husband. husband

On what ground/s can the husband assail the

legitimacy of the child? 2. That it is proven that for biological or
scientific reasons, the child could not have
The Family Code provide for instances where the been that of the husband, except in the instance
husband can impugn the legitimacy of the child, and this provided in the second paragraph of Article 164
was embodied in Article 166. These are:
The qualifier stated by the provision means that
1. It was physically impossible for the husband to although in artificial insemination (Article 164),
have sexual intercourse with his wife within the even if the source of the sperm is that of a donor
first 120 days of the 300 days which and not by the husband, the child is still
immediately preceded the child because of: legitimate. However, this shall be ratified by the
spouses in writing.
Note: Under this Article of the Family Code, the
law sees the date of conception within the first Now, let’s discuss the meaning of biological or
120 days preceding the birth of the child. scientific reasons and their probative values.
Cases that will be used as examples are:
a. Physical incapacity of the husband to
have sexual intercourse with the wife –  Blood grouping test
means that the husband is impotent  DNA testing

^ In the case of Andal vs. Macaraig, it was

held that a husband who still live with the Blood grouping test
wife on a same roof at the time of the alleged
conception of the child, although having a In the case of Jao vs. CA, it was held that the
severe tuberculosis, the Court said that such results of blood grouping test is not conclusive
disease did not prove whether the husband evidence as to paternity, rather
cannot copulate during the period when they conclusive evidence as to non-paternity.
are still sharing a same bed. Thus, the This means that although the test showed
presumption of legitimacy would still arise. positive results, it cannot be said that there’s

47 | M a r i a n o | © 2 0 1 5
already paternity relying solely on such results. 1. Birth certificate
The Court even said that the positive results only
affirm other evidences that will prove paternity. For this to become valid evidence, this must be
On the other hand, should the result of the tests signed by the alleged parents/ or of the alleged
is negative it’s actually a conclusive evidence of parent in case of illegitimate children.
non-paternity according to the Court.
^ The exception to this was embodied in the case In the cases of Reyes vs. CA and Mendoza vs.
of Amurao vs. CA, where it was held that IAC, it was held that a child who claims to be an
although blood grouping test is only conclusive illegitimate child of a deceased but was not
as to non-paternity, should there be an recognized by the latter (evidenced by a birth
agreement between the parties that the father certificate not signed by the deceased) cannot be
(who also consented to it) may be compelled to declared of such status since the requirement of
recognize the child if the results are positive, the the law as to recognition invoking the evidence
latter shall be bound by it. of birth certificate was not satisfied. Thus, there
is even no filiation.

DNA Testing ^ However, should the father is the one who

actually gave necessary information when the
In the case of Herrera vs. Alba, it was held that birth certificate is being prepared, is deemed to
for the results of DNA testing be admissible as be the father of an illegitimate child of his. This
evidence it shall follow the guidelines or is true even though in the birth certificate, his
procedures laid down in the Vallejo case – one of signature was not affixed. (Castro vs. CA)
which is the manner of obtaining the samples,
etc. CASE 2
In the case of Estate of Locsin Sr. vs. Locsin Jr.,
^ If the results are 99.9%, there will arise a it was held that a birth certificate that came from
presumption of filiation but this can be assailed the local civil registry presented as evidence is of
or challenge with the procedures laid down in a lesser value compared to what has been
the Vallejo case (if not assailed, it proves produced by the Civil Registry General (or NSO).
filiation). Should the results are lower, the Thus, what came from NSO may be used as
presumption will not arise (conclusive evidence evidence but still formidable if one challenged or
of non-paternity). attacked the manner it was prepared.

3. That in the case of children conceived through 2. Final judgment

artificial insemination, the written authorization
or ratification of either parent was obtained This means that a final judgment declaring the
through mistake, fraud, violence, intimidation, legitimacy or illegitimacy of a child cannot be
or undue influence. questioned again in some future time. Being
final, this is already binding to the parties.

Under the Family Code, what can be presented The same principle was applied in the case of
as evidence as to proof of filiation? Ramos vs. Ramos wherein the children alleged
the illegitimacy of their natural brothers and
This seems to be a reiteration of what has been discussed sister who by a virtue of a previous judgment by
in page 45 of this reviewer. However, it shall be noted the courts, were already declared as illegitimate.
that what has been enumerated there was based on the Such judgment cannot be assailed anymore
Civil Code but nonetheless, included in the Family Code. being final.
This is embodied in Article 172 of the said code.

Note: The provision used the word “filiation” which is 3. An admission of legitimate filiation in a
applicable to both legitimate and illegitimate children. public document
Thus, the evidences can be presented by them
depending on their claims. For an admission be validly presented as
evidence, the document shall either be (1)
notarized by a notary public, or (2) issued by
Article 172 of the FC provides that filiation can be competent public officials by reason of their
established by any of the following: office.

48 | M a r i a n o | © 2 0 1 5
In the case of Lim vs. CA, it was held that  Directly treated the child as his own
consent to enter into a marriage prepared by the  Continuous and clear manifestation
alleged parent is not a valid admission because it of paternal affection and care
does not satisfy the requirement of law that it  The treatment was done
needs to be, either notarized or issued by public spontaneously and without
officials. Thus, such recognition is not sufficient concealment
to prove filiation.

b. Any other means allowed by the Rules of

4. Signed and handwritten private Court and special laws.
For this to be admissible as evidence, it must be In the case of Mendoza vs. CA, supra, the
prepared in authentic writing and signed by the Court did not decide on illegitimacy based
alleged parent. on the evidences stated in Nos. 1 – 5(a), but
using this type of evidence which is a “catch
In the case of Banas vs. Banas, it was held that all or general”. Illegitimacy was decreed in
school records cannot fall into this category as this case based on Rule 130, Section 39 of
admissible evidence. The reason is that such the Rules of Court which provides that a
documents were not personally being prepared declaration of a deceased or of a person who
by the alleged parent but of the school was unable to testify about his pedigree
administration; signature therein does not prove (relationship, family genealogy, birth,
filiation but may only prove guardianship. marriage, death, dates and places) before a
controversy has occurred.
^ Also in the above case, a letter that seems to
only show care or concern to the child cannot be CASE 2
adduced as evidence of recognition. In the case of Rodriguez vs. CA, it was held
that even the testimony of the mother of the
child as to who his/her father was can be
5. In the absence of the foregoing evidence used as evidence in Court proceedings.
(nos. 1 to 4), legitimate filiation shall be However, such testimony is not a conclusive
proved by: evidence of filiation. Thus, on its own, it
cannot prove any filiation but must be
Note: The two evidences below can also be supported with other evidence(s).
presented if all the other evidence, included in
nos. 1-4, failed.
Who can impugn illegitimacy?

a. Open and continuous possession of the It is normally the children claiming for recognition. But
status of a legitimate child this right is personal to him/ her.

What are the rights of illegitimate children?

In the case of Aznar vs. Garcia (In re: If they are recognized, they have the following rights:
Christensen), it was held that such evidence
cannot be applied if the father himself  Support from the father
denied the illegitimacy of the child on his
own last will and testament because of his  Choose whether or not to use the surname of
estranged relation with his common-law their father
wife, who is apparently, the mother of the
child. This is true even though the child  Inherit from the estate of the parent (1/2 of the
claims that she is using the surname of his share of legitimate children, if any)
alleged father.
^ However, under Article 992 of the Civil Code,
CASE 2 such children cannot inherit ab intestato from
In the case of Mendoza vs. CA, the Court the estate of their parent’s illegitimate family,
defined what “open and continuous even though they are recognized. Should they
possession of status means”. It was held that are included in the will (testato), they are still
this term or type of evidence means, the entitled, provided that such inheritance came
father: from the free portion of the estate. (Diaz vs. IAC)
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Is there any prescription in filing a petition to ILLEGITIMACY
impugn legitimacy or petition for recognition?
1. A child filing a petition for recognition
Yes. Please be guided by the following rules:
Under Article 285 of CC, the action for
recognition shall be brought during:
 During the lifetime of the presumed
1. Husband challenging legitimacy (or his parents, if not minor
heirs under certain circumstances)
 Within four years after attainment of
Article 170 of FC majority

 Within one year from the knowledge of the

birth or recording in the civil register and if
they reside in the city or municipality Can an illegitimate child become a legitimate
where the birth took place or was recorded child?

 Within two years from the knowledge of Yes. This is when their parents, without legal
the birth or recording in the civil register impediment to marry or disqualified only because either
and if they do not reside in the city or of them were below 18 years of age, subsequently
municipality where the birth took place or married to each other.
was recorded
See provisions under Articles 177 – 182 of the
 Within three years from the knowledge of Family Code.
the birth or recording in the civil register
and if they do not reside in the

Note: Under Article 171 of FC, the heirs can

substitute the husband or their father only in the
following cases:

a) The husband should die before the

expiration of the period fixed for bringing
his action

b) If he should die after the filing of the

complaint, without having desisted

c) If the child was born after the death of the


2. Legitimate children whose status was being

challenged by their father

Note: What they need to present as evidence

was already discussed above. See pages 45, 48
and 49 of this reviewer.

Under Article 173 of FC, it was stated that the

action to claim legitimacy shall be brought
within 5 years.

^ This can only be brought if there was a petition

challenging legitimacy. Otherwise, the
presumption of legitimacy stands.

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ADOPTION fourth (4th) degree of consanguinity or
affinity of the Filipino spouse; or

Republic Act No. 8552 shall govern the process of (c) The guardian with respect to the ward after
Adoption. Some provisions will be stated below: the termination of the guardianship and
clearance of his/her financial accountabilities.

ARTICLE III Husband and wife shall jointly adopt, except in the
ELIGIBILITY following cases:

Section 7. Who May Adopt. – The following may (i) if one spouse seeks to adopt the legitimate
adopt: son/daughter of the other; or

(a) Any Filipino citizen of legal age, in (ii) if one spouse seeks to adopt his/her own
possession of full civil capacity and legal rights, illegitimate son/daughter: Provided, However,
of good moral character, has not been convicted that the other spouse has signified his/her
of any crime involving moral turpitude, consent thereto; or
emotionally and psychologically capable of
caring for children, at least sixteen (16) years (iii) if the spouses are legally separated from
older than the adoptee, and who is in a position each other.
to support and care for his/her children in
keeping with the means of the family. The
requirement of sixteen (16) year difference In case husband and wife jointly adopt, or one spouse
between the age of the adopter and adoptee may adopts the illegitimate son/daughter of the other, joint
be waived when the adopter is the biological parental authority shall be exercised by the spouses.
parent of the adoptee, or is the spouse of the
adoptee's parent;

(b) Any alien possessing the same Section 8. Who May Be Adopted. – The following
qualifications as above stated for Filipino may be adopted:
nationals: Provided, That his/her country has
diplomatic relations with the Republic of the (a) Any person below eighteen (18) years of age
Philippines, that he/she has been living in the who has been administratively or judicially
Philippines for at least three (3) continuous declared available for adoption;
years prior to the filing of the application for
adoption and maintains such residence until the (b) The legitimate son/daughter of one spouse
adoption decree is entered, that he/she has been by the other spouse;
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 (c) An illegitimate son/daughter by a qualified
country, and that his/her government allows the adopter to improve his/her status to that of
adoptee to enter his/her country as his/her legitimacy;
adopted son/daughter: Provided, Further, That
the requirements on residency and certification (d) A person of legal age if, prior to the adoption,
of the alien's qualification to adopt in his/her said person has been consistently considered
country may be waived for the following: and treated by the adopter(s) as his/her own
child since minority;
(i) a former Filipino citizen who seeks to
adopt a relative within the fourth (4th) (e) A child whose adoption has been previously
degree of consanguinity or affinity; or rescinded; or

(ii) one who seeks to adopt the (f) A child whose biological or adoptive parent(s)
legitimate son/daughter of his/her has died: Provided, That no proceedings shall be
Filipino spouse; or initiated within six (6) months from the time of
death of said parent(s).
(iii) one who is married to a Filipino
citizen and seeks to adopt jointly with
his/her spouse a relative within the

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Section 9. Whose Consent is Necessary to the Who has the parental authority over the
Adoption. – After being properly counseled and adopted child?
informed of his/her right to give or withhold his/her
approval of the adoption, the written consent of the In the case of Cervantes vs. Fajardo, it was held that if
following to the adoption is hereby required: the child was properly adopted, the child becomes the
legitimate child of the adopters. Thus, parental authority
(a) The adoptee, if ten (10) years of age or over; belongs to them and not to the biological parents.

(b) The biological parent(s) of the child, if

Can the adoption be rescinded?
known, or the legal guardian, or the proper
government instrumentality which has legal
Yes; but under Section 19 of R.A 8552, such right is only
custody of the child;
given to the adoptee. (Lahom vs. Sibulo)
(c) The legitimate and adopted sons/daughters, Section 19. Grounds for Rescission of Adoption.
ten (10) years of age or over, of the adopter(s) – Upon petition of the adoptee, with the assistance of the
and adoptee, if any; Department if a minor or if over eighteen (18) years of
age but is incapacitated, as guardian/counsel, the
(d) The illegitimate sons/daughters, ten (10) adoption may be rescinded on any of the following
years of age or over, of the adopter if living with grounds committed by the adopter(s): (a) repeated
said adopter and the latter's spouse, if any; and physical and verbal maltreatment by the adopter(s)
despite having undergone counseling; (b) attempt on
(e) The spouse, if any, of the person adopting or the life of the adoptee; (c) sexual assault or violence; or
to be adopted. (d) abandonment and failure to comply with parental

Can a petition for adoption be immediately

filed? What can be the remedy for the adopting
parents if they can’t rescind the adoption?
No. It is because under R.A 8552, a Pre-counseling
Services is needed where a motion can be filed to the Although the law did not give the adoptive parents to
Court to appoint a social worker that will conduct a study cancel or rescind the adoption, they are validly given the
whether the adopter has the capacity to raise the child right to disinherit the adoptee on their estate, through
intended to be adopted. a will, if they think that the child does not deserve for
such. (Lahom vs. Sibulo, supra)
The report will then be attached to the petition for
adoption, if such report was provided for a favorable

What is needed to be presented to prove that

there’s a valid adoption?

This is normally needed when a child claims that he/ she

was the adopted child and be a legal heir (being
legitimate child by virtue of adoption) to the estate of
their adoptive parents.

In the case of Lazatin vs. Campos, it was held that a

Decree of Adoption issued by Court is needed to be
presented to prove adoption. This is an evidence that the
due process of adoption has been undergone.

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SUPPORT Can the decision for providing support be

Who is/ are entitled to support? YES. However, the appeal does not bar the person
claiming the support from actually claiming it. In other
According to Article 195 of the Family Code, the words, even the case for support is still pending in the
following are obliged to give support to each other: courts, proper parties can claim it.

 Spouses In the case of Gan vs. Reyes, the above principle was
used. The rationale is that when the support is delayed, it
 Legitimate ascendants and descendants may come to the point that the child does not need it
anymore as it will be too late. This will violate the very
 Parents and their legitimate children and, the concept of support – that is, for the interest and welfare
legitimate and illegitimate children of the latter of the child.

 Parents and their illegitimate children and, the

legitimate and illegitimate children of the latter Can the amount provided by the lower courts be
reduced by the appellate courts?

Note: However, for the illegitimate children be entitled YES. But the expenses that can only be deducted by (1)
for support, he/ she needs to be recognized by the expenses paid during the pendency of the case, and (2)
parent such expenses are only those support enumerated in
Article 195 of the Family Code.

In the case of Lim vs. Lim, it was held that the Thus, in the case of Lua vs. Lua, a claim for deduction on
grandparents can be held secondarily liable for the expenses given as gift or out of liberality cannot be
support of his grandchildren. However, this does not deducted in the amount of support in arrears.
extend to either their son-in-law or daughter-in-law who
is the parent of their grandchildren.
Should the court made a judgment as to the
amount of support, is it fixed and constant?
What are the expenses are classified as
“support”? No because as provided in Article 201 and 202 of FC,
the amounts can be increased or decreased depending on
These are the basic needs or those indispensable for the necessities of the receiver and/ or the resources of
sustenance of the family or its members. Under Article the giver of such support. This was even illustrated in the
194 of the FC, the following comprise expenses: case of Lam vs. Chua

 Dwelling
When the need for support accrues or arises?
 Clothing
Article 203 of the FC provides that it is from the moment
the support becomes demandable and the person
 Medical attendance actually needs it for maintenance, except for judicial or
extrajudicial demand
 Education*
In the case of Lacson vs. Lacson, it was held that a letter
 Transportation** written for the person who needs to give support is an
example of extrajudicial demand and not necessarily
from the date that a judgment of the court was rendered.
* Includes schooling and training for some profession

** Includes expenses to and from school, or to and from

place of work

How can a person be entitled for support?

Persons enumerated above in Article 195 are

automatically entitled for support but to compel them to
do so requires final judgment of the courts.
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What type of property need to be given as voluntarily given it to the recognizing father. (Briones vs.
support? Miguel, et al)

It actually depends; if the expense is for the

sustenance of the family, either absolute community or Is there a rule stating that the child should stay
conjugal properties (depending on the property regime); with the mother up to a certain age?
but if the support is for ascendants, brothers & sisters, or
illegitimate children, exclusive property shall be used for YES. Under Article 213 (2) of FC, it was stated that a
the support. child under 7 years of age shall not be separated with the
mother. This was even illustrated in the case of
Hontiveros vs. IAC.
What if the exclusive property is insufficient in
case of a married person? Note: This is true whether legitimate or illegitimate
Under Article 197 of FC, the absolute community or
conjugal property can be held liable for support upon In the case of Tonog vs. CA, it was held that the mother
liquidation of such properties. who left the children to work abroad and suddenly came
back shall have parental authority over the child if the
latter is less than 7 years of age. However, such order or
judgment shall not be immediately executable because
this might cause emotional shock to the child who was
used to living with her father. Thus in this case, the
PARENTAL AUTHORITY Court granted temporary custody to the father until the
child is ready to be transferred to the mother.

What is parental authority?

Are the above rules absolute?
Under Article 209 of the FC, it is the natural rights of
the parent over their children and includes the NO because what is being protected is the welfare and
responsibility of caring and rearing the children. interest of the child. They are merely presumptions that
can be rebutted if the Court found compelling reasons to
do so, such as physical violence, prostitution,
Can parental authority voluntarily be waived abandonment, etc.
or renounced by the parents in favor of other
persons? CASE 1
In the case of Unson vs. Navarro, it was held that
NO because under the FC, such parental authority is although the mother should have the parental authority
personal to the parents; and can only be transferred in over a child because of the latter’s age; nevertheless, the
cases provided by law such as in substitute and special Court has given this to the father taking into
parental authority. consideration what moral values the child could get from
living with the mother who cohabited with her uncle
(brother of her father).
In case of legitimate children, who has the
parental authority over them? CASE 2
In the case of Luna vs. IAC, it was held that although
If they are the natural child of the spouses, parental there’s already a ruling that the biological parents shall
authority shall belong to the latter or their biological have custody, this can still be awarded to the
parents. grandparents if the child protests to such decision. In
this case, the child is contesting that she is being
If they are legally adopted, parental authority shall physically abused by her parents and threaten that she
belong to their adoptive parents and not to their will commit suicide or will ran away if compelled to stay
biological parents anymore. (In Re: Habeas Corpus of with them.
Angelie Cervantes)

In case of illegitimate children, who has the

parental authority over them?

Under Article 176 of the Family Code, parental authority

over the child shall be long to the mother unless she

54 | M a r i a n o | © 2 0 1 5
Should the child was abducted or taken from activity of the school (picnic); the teachers cannot also be
the custody of the legal parents or guardian by held liable because they have exercised diligence when
persons claiming to be the child’s legal they tried to revive a child by resuscitating him.
guardian, what action can be brought to
Courts? CASE 3
In the case of PSBA vs. CA, it was held that the school
Petition for a writ of habeas corpus & such writ is under can be held liable if the child was actually enrolled in
the concurrent jurisdiction of Family Courts, Court of that school and is in “attendance” of a class or in
Appeals and the Supreme Court; meaning, the action can compliance of academic requirement. Should this not be
be brought in any of these courts. (In Re: Thornton) the case, the school is not liable under special parental
authority but can be questioned for breach of contract
Such petition, if involves the issue of custody, does not when it was proven that property security was not
end when the child was actually presented in Court; but provided by the school to ensure safety of their students.
it extends up to the determination of who has the
rightful custody of the child. (Bagtas vs. Ruth Santos)

Substitute Parental Authority

As a rule, parental authority is personal to the parents of Who has the custody over the child?
the child but such rule is not absolute. This can be given
to the grandparents, oldest brothers and sisters, or Generally, it is the parent who has parental
actual guardian, provided that the parents of the child authority. If the parents are living together, they shall
are already dead or absent (abandonment or the like). have joint parental authority, and therefore, custody
over the child. Should they are separated or divorced,
judicial grant of custody and parental authority shall be
In the case of Leouel Santos vs. CA, it was held that given by the Court to one parent without depriving the
although the grandparents are more financially capable other of visitation rights.
to give support, parental authority over a child cannot be
given to them because one of the biological parents is
still alive. What can be the action if one parent is deprived
by the other?
Note: This can still be awarded “eventually” to the
grandparents if the Court found compelling reasons to A petition for habeas corpus may be filed. However,
do so. it shall be noted that this does not grant custody but only
lets the Court question one parent’s action of
deprivation. (Salientes vs. Abanilla)
Special Parental Authority

It shall be noted that this type of authority is only What if the child is less than 7 years old, who
temporary and is given to schools and its administrators shall have custody?
& teacher while the child is in their custody. The parents
of the child need not be dead or absent for them to have Under Article 213(2) of FC and Article 363 of the CC, it
this parental authority. shall be the mother that will have custody. However, it
shall be noted based on the previous discussions that
Under their custody, if the child has suffered injury, they this is only a presumption under the law and not
can be held liable if it can be proven that there is mandatory.
negligence on their part causing the injury or damage.
^ The same rule was reiterated in the case of Espiritu vs.
CASE 1 CA and the Court did not give the custody to the mother
In the case of St. Mary’s Academy vs. Capistranos, it was despite the age of the child because it has reiterated that
held that the school cannot be held liable if the the welfare and interest of the child is paramount
negligence on their part was not proven. In this case, the over his/her age. In this case, the immorality and
issue that the activity the child doing when he suffered violence of the mother became factors to support the
an injury is actually a school activity was not raised. decision of the Court.

In the case of St. Francis Academy vs. CA, it was held
that the school and its teachers cannot be held liable
when the activity is purely recreational and not even an

55 | M a r i a n o | © 2 0 1 5
CIVIL REGISTRY  Opposition – this can be filed by the civil register
or any person having interest, within 15 days
from notice of petition
What are being recorded in the civil register?
^ If all of the above rules were followed, the petition
Article 407 of the New Civil Code states that acts, cannot be classified as summary. The inclusion of such
events and juridical decrees concerning the civil status of procedures in the petition that they were followed is not
a person are recorded in the civil register’; to be more fatal on the dismissal of the case. (Republic vs. Valencia)
specific, Article 408 enumerates:

1. Births Should the petition is a change of name, what

2. Marriages specific rules needed to be followed?
3. Deaths
4. Legal separation In the case of Republic vs. Marcos, it was held that under
5. Annulments of marriage Rule 103 of the Rules of Court, the petitioner is
6. Judgments declaring marriages void from the actually the one whose name is sought to be changed. In
beginning addition, his/ her alias shall also be included in the
7. Legitimations petition and in the notice to be circulated in the
8. Adoptions newspaper of general publication.
9. Acknowledgement of natural children
10. Naturalization ^ Thus, it follows that aside from this type of petition, all
11. Loss or recovery of citizenship else can be filed by another person in behalf of the
12. Civil interdiction person whose information in the civil register sought to
13. Judicial determination of filiation be changed.
14. Voluntary emancipation of minor
15. Changes of name

Can information in the civil register be FUNERALS


Under Article 412 of the CC, no entry in a civil register In case of death, who shall have the right to
shall be changed or corrected without judicial order. bury the deceased?

The governing provisions of law are embodied in

What rules needed to be followed when Articles 305 – Article 310 of the New Civil Code.
information in the civil register are sought to be
changed? In the case of Valino vs. Adriano, it was held that
Article 305 of the CC shall be read in congruence with
It actually depends on the substantiality of the Article 199 of the FC. Thus, in this case, the legitimate
information being changed. If the information are wife and family shall have the right to bury or facilitate
merely clerical errors, summary proceedings will suffice the funeral of the deceased husband.
– that is, adjudged promptly without the need for
necessary formalities. ^ However, this can be awarded to the common law
spouse or wife who was with the deceased when he died
However, if the change was substantial, appropriate if: (1) the legitimate family revoked their right – but did
adverse proceeding will be need and this was governed not happen in this case or (2) if the deceased expressly
by Rule 108 of the Rules of Court. wished it in some testamentary disposition in
accordance with Article 307 of the CC.
Procedures under Rule 108

 Parties of the petition – the civil register and all

persons who have claim or interest SURNAMES
 Notice and publication – the Court shall cause Whose surname a person shall use?
reasonable notice and such order needed to be
published once in a week for three consecutive It depends whether the child is legitimate, illegitimate or
weeks in a newspaper of general publication in adopted.
the province

56 | M a r i a n o | © 2 0 1 5
Legitimate children grant of such petition does not change the other rights of
the adopted child and only affects his/ her name.
See discussion in page 46

Can a divorced woman continuously use the

Illegitimate children surname of her previous husband?

See discussion in page 46 Yes; in the case of Tolentino vs. CA, the Court held that
the Philippines does not have a divorce law, and thus, no
provision prohibits such usage of surname. What the law
Adopted children does not prohibit allows.

In accordance with Article 189 of the FC, adopted ^ It was even stated in Article 370 of the Civil Code that
children have the right to use the surname of their the wife cannot claim an exclusive right to use the
adoptive parents. However, it was held in the case of husband’s surname. She cannot be prevented from using
Johnston vs. Republic that the adopted child can only it; but neither can she restrain others from using it.
use the surname of the one who filed the petition for
adoption and not the latter husband’s surname if the
adoption was made individually. ANTI ALIAS LAW

What is an alias?
Can a person’s surname/ name be changed?
Under the law, it is a name or names used by a person or
Yes, under the law there were valid reasons a person may intended to be used by him and habitually used in
change his name, such as: business in addition to his real name.

 When the name is ridiculous, dishonorable, or

extremely difficult to write or pronounce Is the use of alias allowed?

 When the change results as a legal consequence Under the law – R.A. 6085, as amended by C.A. 142, a
such as in legitimation person is not allowed to use other name aside from what
is recorded in the record of birth but may be allowed
 When the change will avoid confusion upon obtaining judicial authority.

 Having been continuously used and been known ^ But this is only applicable in cases involving business
since childhood, even an illegitimate child using transactions or trade, as historically, this is the purpose
the surname of a legitimate family (Llaneta vs. of the enactment of such law.
Thus, in the case of Cesario vs. CA, it was held that a
 When the surname causes embarrassment and person, who used another person name (without having
there is no showing that the desired change of the intent to be habitually known by this name) in
name was for fraudulent purpose or that the obtaining a copy of a complaint against him, shall not be
change of name would prejudice public interest charged using the Anti-Alias Law.

^ In any case, the petition for the change of name must

be filed by the person whose name sought to be changed ABSENCE
(Republic vs. Marcos)

Can an adopted child opt to use the surname of 1. If related to management of properties,
his/ her biological parents upon filing a governing provisions will be Articles 381 –
petition? 392 of the Civil Code. This include the 7 years
period of presumption of death
Yes, this was held in the case Republic vs. CA. When the
Court granted the petition on the ground that the 2. If the presumption of death sought to be
continuous use of the adoptive parents’ surname will declared for the purpose of remarriage, Articles
cause ridicule or embarrassment, it stated that the 41 – 44 of the Family Code
change is valid provided that there’s consent of the
adoptive parents. However, it shall be noted that the ^ In any case, the burden of proof belongs to the person
claiming absence of the other. (Bienvenido vs. CA)
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