Marriage

Concept of Marriage

Governing Law:

As to solemnities of marriage the same is governed by the law of the country where the marriage
was celebrated. Hence, marriage celebrated in another country according to its laws is valid.is -
Lex Loci Celebracionis

1987 Constitution, Art. XV

Marriage, as an inviolable social institution, is the foundation of the family and

shall be protected by the State.

Provisions in the Constitution regarding Marriage and Family

SECTION 1. The State recognizes the Filipino family as the foundation of the
nation. Accordingly, it shall strengthen its solidarity and actively promote its total
development.
SECTION 2. Marriage, as an inviolable social institution, is the foundation of the
family and shall be protected by the State.
SECTION 3. The State shall defend:
(1) The right of spouses to found a family in accordance with their religious
convictions and the demands of responsible parenthood;
(2) The right of children to assistance, including proper care and nutrition, and
special protection from all forms of neglect, abuse, cruelty, exploitation, and other
conditions prejudicial to their development;
(3) The right of the family to a family living wage and income; and
(4) The right of families or family associations to participate in the planning
and implementation of policies and programs that affect them.
SECTION 4. The family has the duty to care for its elderly members but the
State may also do so through just programs of social security.

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R.A. 386, Civil Code of the Philippines, June 18, 1949 Art. 52

ARTICLE 52. Marriage is not a mere contract but an inviolable social institution. Its
nature, consequences and incidents are governed by law and not subject to stipulation,
except that the marriage settlements may to a certain extent fix the property relations
during the marriage. (n)

E.O. 209, Family Code of the Philippines, July 6, 1987, Art. 1

ARTICLE 1. Marriage is a special contract of permanent union between a man and a

woman entered into in accordance with law for the establishment of conjugal and family
life. It is the foundation of the family and an inviolable social institution whose nature,
consequences, and incidents are governed by law and not subject to stipulation, except
that marriage settlements may fix the property relations during the marriage within the
limits provided by this Code. (52a)

As a special contract, it is different from other contracts for the following reasons:

1. Marriage is between one man and one woman, while other contracts may be entered into by any
number of persons of the same or different sex.
2. Ordinary contracts may be terminated by mutual agreement, while marriage may not be
terminated it being a permanent union --- Gotia vs. Campos-Rueda, 35 Phil. 252 (1919); Republic
vs. Nolasco, 220 SCRA 20 29 (1993).

Marriage as a Social Institution is explained by the fact that it is the foundation of the family and an
inviolable social institution, as such:

1. Its nature, consequences, and incidents are governed by law, and not subject to stipulation, and
this differentiate marriage from ordinary contracts, where the parties are free to stipulate the
terms and conditions of their relations with the exception on Marriage Settlements where it may
fix the property relations during the marriage.

2. Because of the social importance of marriage, the law provides for presumption in favor of
marriage. The law presumes morality, and not immorality; marriage and not concubinage;
legitimacy, and not bastardy --- People vs. Borromeo, G.R. No. 61873, October 31, 1984. Thus,

a. Any doubt as to its validity is to be resolved in favor of its validity ---- Republic vs. Court
of Appeals, 335 Phil. 664 (1997); Paras vs. Paras, G.R. No. 147824, August 2, 2007.
b. Persons dwelling together in apparent matrimony are presumed, in the absence of
contrary evidence, to be in fact married. The reason is that such is the common order of
society and if the parties were not what they thus hold themselves out as being, they
would be living in constant violation of decency and law ---- Adong vs Cheong Seng Gee,
43 Phil. 43 (1922); Alavado vs. City Government of Tacloban, 139 SCRA 230 (1985);
Mariategui vs. CA, G.R. No. 57062, January 24, 1992.

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NCIP A.O. 1-98, IRR of R.A. No. 8371, June 9, 1998, Rule VI, Sec. 8 (indigenous Peoples Rights Act of
1997)

SECTION 8. Recognition of Customary Laws and Practices Governing Civil Relations.

— Marriage as an inviolable social institution shall be protected. Marriages performed in
accordance with customary laws, rites, traditions and practices shall be recognized as
valid. As proof of marriage, the testimony of authorized community elders or authorities
of traditional socio-political structures shall be recognized as evidence of marriage for
purposes of registration. Accordingly, the NCIP shall coordinate with the Office of the Civil
Registrar General (OCRG) to establish an appropriate procedure for the registration of
marriages performed under customary laws to include, among others, the following.

Applications:

Marriage is a special contract regulated and controlled by the state, not by the will of the
parties
a) It is something more than a mere contract. It is a new relation, the rights, duties, and
obligations of which rest not upon the agreement of the parties but upon the general law
which defines and prescribes those rights, duties, and obligations. Marriage is an institution,
in the maintenance of which in its purity the public is deeply interested. It is a relation for life
and the parties cannot terminate it at any shorter period by virtue of any contract they may
make. The reciprocal rights arising from this relation, so long as it continues, are such as the
law determines from time to time, and none other. When the legal existence of the parties is
merged into one by marriage, the new relation is regulated and controlled by the state or
government upon principles of public policy for the benefit of society as well as the parties.
---- Eloisa Goitia vs. Jose Campos Rueda, G.R. No. 11263, November 2, 1916

b) Marriage in this country is an institution in which the community is deeply interested. The
state has surrounded it with safeguards to maintain its purity, continuity and permanence.
The security and stability of the state are largely dependent upon it. It is the interest and duty
of each and every member of the community to prevent the bringing about of a condition
that would shake its foundation and ultimately lead to its destruction. The incidents of the
status are governed by law, not by will of the parties. The law specifically enumerates the
legal grounds that must be proved to exist by indubitable evidence, to annul a marriage. --
- Joel Jimenez vs. Remedios Cañizares, G.R. No. L-12790, Aug. 31, 1960

c) The special prescriptions on actions that can put the integrity of marriage to possible jeopardy
are impelled by no less than the State's interest in the marriage relation and its avowed
intention not to leave the matter within the exclusive domain and the vagaries of the parties
to alone dictate. --- Enrico L. Pacete vs. Glicerio V. Carriaga, Jr., G.R. No. L-53880, March 17,
1994

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Stipulations undermining marriage are contrary to law, morals and good customs

a) Between spouses

There is no question that the covenants contained in the said separation agreement are contrary to law,
morals and good customs. Those stipulations undermine the institutions of marriage and the family. ---
Leonardo S. Biton vs. Andres Momongan, G.R. No. L-2555, September 3, 1935

The spouses should not be allowed, by the simple expedient of agreeing that one of them leave the
conjugal abode and never to return again, to circumvent the policy of the laws on marriage. --- William H.
Brown vs. Juanita Yambao, G.R. No. L-10699, October 18, 1957 & Rep. of the Phils. vs. Gregorio Nolasco,
G.R. No. 94053, March 17, 1993

The Kasunduan had absolutely no force and effect on the validity of the marriage between complainant
and his wife. Article 1 of the Family Code provides that marriage is "an inviolable social institution whose
nature, consequences, and incidents are governed by law and not subject to stipulation." It is an
institution of public order or policy, governed by rules established by law which cannot be made
inoperative by the stipulation of the parties. --- Edwin A. Acebedo vs. Eddie P. Arquero, A.M. No. P-94-
1054, March 11, 2003

Conjugal arrangement between members of Jehovah’s Witnesses sect in light of "compelling state
interest" doctrine

In applying the "compelling state interest" test, the first inquiry is whether respondent's right to religious
freedom has been burdened. The second step is to ascertain respondent's sincerity in her religious belief.
---- Alejandro Estrada vs. Soledad S. Escritor, A.M. No. P-02-1651, August 4, 2003

Republic of the Phil. vs. Liberty D. Albios, G.R. No. 198780, October 16, 2013

On October 22, 2004, Fringer, an American citizen, and Albios were married before Judge Ofelia
I. Calo of the Metropolitan Trial Court, Branch 59, Mandaluyong City (MeTC), as evidenced by a
Certificate of Marriage with Register No. 2004-1588.
On December 6, 2006, Albios filed with the RTC a petition for declaration of nullity of her marriage
with Fringer. She alleged that immediately after their marriage, they separated and never lived
as husband and wife because they never really had any intention of entering into a married state
or complying with any of their essential marital obligations. She described their marriage as one
made in jest and, therefore, null and void ab initio.
Summons was served on Fringer but he did not file his answer. On September 13, 2007, Albios
filed a motion to set case for pre-trial and to admit her pre-trial brief. The RTC ordered the
Assistant Provincial Prosecutor to conduct an investigation and determine the existence of a
collusion. On October 2, 2007, the Assistant Prosecutor complied and reported that she could
not make a determination for failure of both parties to appear at the scheduled investigation.
At the pre-trial, only Albios, her counsel and the prosecutor appeared. Fringer did not attend the
hearing despite being duly notified of the schedule. After the pre-trial, hearing on the merits
ensued.
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Ruling of the Court

The resolution of this case hinges on this sole question of law: Is a marriage, contracted for the
sole purpose of acquiring American citizenship in consideration of $2,000.00, void ab initio on
the ground of lack of consent?

The Court resolves in the negative

The respondent's marriage is not at all analogous to a marriage in jest. Albios and Fringer had an
undeniable intention to be bound in order to create the very bond necessary to allow the
respondent to acquire American citizenship. Only a genuine consent to be married would allow
them to further their objective, considering that only a valid marriage can properly support an
application for citizenship. There was, thus, an apparent intention to enter into the actual
marriage status and to create a legal tie, albeit for a limited purpose. Genuine consent was,
therefore, clearly present.
The avowed purpose of marriage under Article 1 of the Family Code is for the couple to establish
a conjugal and family life. The possibility that the parties in a marriage might have no real
intention to establish a life together is, however, insufficient to nullify a marriage freely entered
into in accordance with law. The same Article 1 provides that the nature, consequences, and
incidents of marriage are governed by law and not subject to stipulation. A marriage may, thus,
only be declared void or voidable under the grounds provided by law. There is no law that
declares a marriage void if it is entered into for purposes other than what the Constitution or law
declares, such as the acquisition of foreign citizenship. Therefore, so long as all the essential and
formal requisites prescribed by law are present, and it is not void or voidable under the grounds
provided by law, it shall be declared valid.
Motives for entering into a marriage are varied and complex. The State does not and cannot
dictate on the kind of life that a couple chooses to lead. Any attempt to regulate their lifestyle
would go into the realm of their right to privacy and would raise serious constitutional questions.
The right to marital privacy allows married couples to structure their marriages in almost any way
they see fit, to live together or live apart, to have children or no children, to love one another or
not, and so on. Thus, marriages entered into for other purposes, limited or otherwise, such as
convenience, companionship, money, status, and title, provided that they comply with all the
legal requisites, are equally valid. Love, though the ideal consideration in a marriage contract, is
not the only valid cause for marriage. Other considerations, not precluded by law, may validly
support a marriage.

Although the Court views with disdain the respondent's attempt to utilize marriage for dishonest
purposes, It cannot declare the marriage void. Hence, though the respondent's marriage may be
considered a sham or fraudulent for the purposes of immigration, it is not void ab initio and
continues to be valid and subsisting.
Neither can their marriage be considered voidable on the ground of fraud under Article 45 (3) of
the Family Code. Only the circumstances listed under Article 46 of the same Code may constitute
fraud, namely, (1) non-disclosure of a previous conviction involving moral turpitude; (2)
concealment by the wife of a pregnancy by another man; (3) concealment of a sexually
transmitted disease; and (4) concealment of drug addiction, alcoholism, or homosexuality. No
other misrepresentation or deceit shall constitute fraud as a ground for an action to annul a
marriage. Entering into a marriage for the sole purpose of evading immigration laws does not
qualify under any of the listed circumstances. Furthermore, under Article 47 (3), the ground of

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fraud may only be brought by the injured or innocent party. In the present case, there is no
injured party because Albios and Fringer both conspired to enter into the sham marriage.
Albios has indeed made a mockery of the sacred institution of marriage. Allowing her marriage
with Fringer to be declared void would only further trivialize this inviolable institution. The Court
cannot declare such a marriage void in the event the parties fail to qualify for immigration
benefits, after they have availed of its benefits, or simply have no further use for it. These
unscrupulous individuals cannot be allowed to use the courts as instruments in their fraudulent
schemes. Albios already misused a judicial institution to enter into a marriage of convenience;
she should not be allowed to again abuse it to get herself out of an inconvenient situation.
No less than our Constitution declares that marriage, as an inviolable social institution, is the
foundation of the family and shall be protected by the State. It must, therefore, be safeguarded
from the whims and caprices of the contracting parties. This Court cannot leave the impression
that marriage may easily be entered into when it suits the needs of the parties, and just as easily
nullified when no longer needed.

b) Between employer and employee

The danger of just such a policy against marriage followed by petitioner PT&T is that it strikes at the very
essence, ideals and purpose of marriage as an inviolable social institution and, ultimately, of the family as
the foundation of the nation. Hence, while it is true that the parties to a contract may establish any
agreements, terms, and conditions that they may deem convenient, the same should not be contrary to
law, morals, good customs, public order, or public policy. Carried to its logical consequences, it may even
be said that petitioner's policy against legitimate marital bonds would encourage illicit or common-law
relations and subvert the sacrament of marriage. --- PT&T vs. NLRC and Grace de Guzman, G.R. No.
118978, May 23, 1997

Marriage demands respect and dignity.

Marriage is a sacred institution demanding respect and dignity. ---- Josefina Mortel vs. Anacleto F. Aspiras,
Adm. Case No. 145, December 28, 1956 & Lilian F. Villasanta vs. Hilarion M. Peralta, G.R. AC-UNAV, April
30, 1957 & Santa Pangan vs. Dionisio Ramos, A.C. No. 1053, August 31, 1981

A married person still enjoys the right to privacy of communication and correspondence

A person, by contracting marriage, does not shed his/her integrity or his right to privacy as an individual
and the constitutional protection [the privacy of communication and correspondence] is ever available to
him or to her. ---- Cecilia Zulueta vs. Court of Appeals, G.R. No. 107383, February 20, 1996

Persons living together as husband and wife are presumed to be married.

Persons living together in apparent matrimony are presumed, in the absence of any counter presumption
or evidence special to the case, to be in fact married. The reason is that such is the common order of
society, and if the parties were not what they thus hold themselves out as being, they would be living in
constant violation of decency and law. The presumption in favor of matrimony is one of the strongest

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known in law. The law presumes morality, and not immorality: marriage, and not concubinage, legitimacy,
and not bastardy. There is the presumption that persons living together as husband and wife are married
to each other. ---- People of the Phils. vs. Elias Borromeo, G.R. No. 61873, October 31, 1984

A man and a woman living as husband and wife are presumed to be married.

Courts look upon the presumption of marriage with great favor as it is founded on the following rationale:
"The basis of human society throughout the civilized world is that of marriage. Marriage in this jurisdiction
is not only a civil contract, but it is a new relation, an institution in the maintenance of which the public is
deeply interested. Consequently, every intendment of the law leans toward legalizing matrimony. Persons
dwelling together in apparent matrimony are presumed, in the absence of any counter-presumption or
evidence special to that case, to be in fact married. The reason is that such is the common order of society
and if the parties were not what they thus hold themselves out as being, they would be living in the
constant violation of decency and of law . . . ." --- Mora Adong vs. Cheong Seng Gee, G.R. No. L-18081,
March 3, 1922 & Matilde Alavado vs. City Government of Tacloban, G.R. No. L-49084, October 10, 1985 &
Maria del Rosario Mariategui vs. Court of Appeals, G.R. No. 57062, January 24, 1992

Marriage is not an adventure but a lifetime commitment.

This interest proceeds from the constitutional mandate that the State recognizes the sanctity of family
life and of affording protection to the family as a basic "autonomous social institution" Specifically, the
Constitution considers marriage as an "inviolable social institution," and is the foundation of family life
which shall be protected by the State. This is why the Family Code considers marriage as "a special contract
of permanent union" and case law considers it not just an adventure but a lifetime commitment." ----
Engrace Niñal vs. Norma Bayadog, G.R. No. 133778, March 14, 2000 & Leouel Santos vs. Court of Appeals,
G.R. No. 112019, January 4, 1995

Doubts in the validity of a marriage should be resolved in its favor

The Court is mindful of the policy of the 1987 Constitution to protect and strengthen the family as the
basic autonomous social institution and marriage as the foundation of the family. Thus, any doubt should
be resolved in favor of the validity of the marriage. ---- Rep. of the Phils. vs. Lolita Quintero-Hamano, G.R.
No. 149498, May 20, 2004

It remains settled that the State has a high stake in the preservation of marriage rooted in its recognition
of the sanctity of married life and its mission to protect and strengthen the family as a basic autonomous
social institution. Hence, any doubt should be resolved in favor of the existence and continuation of the
marriage and against its dissolution and nullity. Presumption is always in favor of the validity of marriage.
Semper praesumitur pro matrimonio. --- Veronica Cabacungan Alcazar vs. Rey C. Alcazar, G.R. No.
174451, October 13, 2009

Our family law is based on the policy that marriage is not a mere contract

Our constitution is committed to the policy of strengthening the family as a basic social institution. Our
family law is based on the policy that marriage is not a mere contract, but a social institution in which the

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State is vitally interested. The State can find no stronger anchor than on good, solid and happy families.
The break-up of families weakens our social and moral fabric; hence, their preservation is not the concern
of the family members alone. Whether or not a marriage should continue to exist or a family should stay
together must not depend on the whims and caprices of only one party, who claims that the other suffers
psychological imbalance, incapacitating such party to fulfill his or her marital duties and obligations. ----
Marietta B. Ancheta vs. Rodolfo S. Ancheta, G.R. No. 145370, March 4, 2004

Marriage is immutable.

The Family Code emphasizes the permanent nature of marriage, hailing it as the foundation of the family.
It is this inviolability which is central to our traditional and religious concepts of morality and provides the
very bedrock on which our society finds stability. Marriage is immutable and when both spouses give their
consent to enter it, their consent becomes irrevocable, unchanged even by their independent wills. ---
Florence Malcampo-Sin vs. Philipp T. Sin, G.R. No. 137590, March 26, 2001

Validity of Marriage can be attacked collaterally

Anent the first issue, the Court holds that the trial court had jurisdiction to determine the validity of the
marriage between petitioner and respondent. The validity of a void marriage may be collaterally
attacked. Thus, in Niñal v. Bayadog, we held:
However, other than for purposes of remarriage, no judicial action is necessary to
declare a marriage an absolute nullity. For other purposes, such as but not limited to
determination of heirship, legitimacy or illegitimacy of a child, settlement of estate,
dissolution of property regime, or a criminal case for that matter, the court may pass
upon the validity of marriage even in a suit not directly instituted to question the same
so long as it is essential to the determination of the case. This is without prejudice to
any issue that may arise in the case. When such need arises, a final judgment of
declaration of nullity is necessary even if the purpose is other than to remarry. The
clause "on the basis of a final judgment declaring such previous marriage void" in Article
40 of the Family Code connotes that such final judgment need not be obtained only for
purpose of remarriage.

Likewise, in Nicdao Cariño v. Yee Cariño, the Court ruled that it is clothed with sufficient authority to pass
upon the validity of two marriages despite the main case being a claim for death benefits. Reiterating
Niñal, we held that the Court may pass upon the validity of a marriage even in a suit not directly instituted
to question the validity of said marriage, so long as it is essential to the determination of the case.
However, evidence must be adduced, testimonial or documentary, to prove the existence of grounds
rendering such a marriage an absolute nullity.
Under the Family Code, the absence of any of the essential or formal requisites shall render the marriage
void ab initio, whereas a defect in any of the essential requisites shall render the marriage voidable. In the
instant case, it is clear from the evidence presented that petitioner and respondent did not have a
marriage license when they contracted their marriage. Instead, they presented an affidavit stating that
they had been living together for more than five years. ----- (De Castro v. Assidao-de Castro, G.R. No.
160172, [February 13, 2008], 568 PHIL 724-734)

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No divorce in the Philippines

The first marriage between Atty. Luna. and Eugenia, both Filipinos, was solemnized in the Philippines on
September 10, 1947. The law in force at the time of the solemnization was the Spanish Civil Code, which
adopted the nationality rule. The Civil Code continued to follow the nationality rule, to the effect that
Philippine laws relating to family rights and duties, or to the status, condition and legal capacity of persons
were binding upon citizens of the Philippines, although living abroad. Pursuant to the nationality rule,
Philippine laws governed this case by virtue of both Atty. Luna and Eugenia having remained Filipinos
until the death of Atty. Luna on July 12, 1997 terminated their marriage.
From the time of the celebration of the first marriage on September 10, 1947 until the present, absolute
divorce between Filipino spouses has not been recognized in the Philippines. The non-recognition of
absolute divorce between Filipinos has remained even under the Family Code, even if either or both of
the spouses are residing abroad. Indeed, the only two types of defective marital unions under our laws
have been the void and the voidable marriages. As such, the remedies against such defective marriages
have been limited to the declaration of nullity of the marriage and the annulment of the marriage. DHIcET
It is true that on January 12, 1976, the Court of First Instance (CFI) of Sto. Domingo in the Dominican
Republic issued the Divorce Decree dissolving the first marriage of Atty. Luna and Eugenia. Conformably
with the nationality rule, however, the divorce, even if voluntarily obtained abroad, did not dissolve the
marriage between Atty. Luna and Eugenia, which subsisted up to the time of his death on July 12, 1997.
This finding conforms to the Constitution, which characterizes marriage as an inviolable social institution,
and regards it as a special contract of permanent union between a man and a woman for the
establishment of a conjugal and family life. The non-recognition of absolute divorce in the Philippines is
a manifestation of the respect for the sanctity of the marital union especially among Filipino citizens. It
affirms that the extinguishment of a valid marriage must be grounded only upon the death of either
spouse, or upon a ground expressly provided by law. For as long as this public policy on marriage
between Filipinos exists, no divorce decree dissolving the marriage between them can ever be given
legal or judicial recognition and enforcement in this jurisdiction. --- (Lavadia v. Heirs of Luna, G.R. No.
171914, [July 23, 2014])

Alejandro Estrada vs. Soledad S. Escritor, A.M. No. P-02-1651, August 4, 2003

This case involved a court interpreter, Soledad S. Escritor, who admittedly, while still married to
another, cohabited since 1980 to Luciano Quilapio, Jr., who was himself married to another.
Escritor and Quilapio had a nineteen-year old son. The private complainant herein was not
personally related to Escritor nor did he personally know her. However, he wanted the Court to
declare as immoral the relationship of Escritor with Quilapio in consonance with the pertinent
provision of the Administrative Code. In her defense, Escritor contended that under the rules of
the Jehovah's Witnesses, a religious sect of which she is a member, the act of signing a
Declaration Pledging Faithfulness, is sufficient to legitimize a union which would otherwise be
classified as adulterous and bigamous. Escritor alleged that in compliance with the foregoing
rules, she and her partner signed the Declaration Pledging Faithfulness in 1991, and by virtue
of such act, they are for all purposes, regarded as husband and wife by the religious
denomination of which they are devout adherents. The majority opinion resolved the case
based on the issue of whether or not respondent's right to religious freedom should be carved
out as an exception from the prevailing jurisprudence on illicit relations for which government
employees are held administratively liable.
The Supreme Court resolved to remand this case to the Office of the Court Administrator. The
Solicitor General was ordered to intervene in the case where it will be given the opportunity (a)
to examine the sincerity and centrality of respondent's claim of religious belief and practice; (b)
to present evidence on the state's "compelling interest" to override respondent's religious belief
and practice: and (c) to show that the means the state adopts in pursuing its interest is the least

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restrictive to respondent's religious freedom. The Court also ordered the setting of the rehearing
of the case.
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Conjugal arrangement between members of Jehovah’s Witnesses sect in light of "compelling

state interest" doctrine

In applying the "compelling state interest" test, the first inquiry is whether respondent's right
to religious freedom has been burdened. The second step is to ascertain respondent's sincerity
in her religious belief.

In re: Rufillo D. Bucana, A.C. No. 1637, July 6, 1976

Respondent notarized an agreement executed by the spouses Gonzalo Baltazar and Luisa
Sorongon wherein it was agreed that in case either of them will remarry, the other party will
offer no objection and waives all civil and criminal actions, which agreement was entered into
for the purpose of following either of the parties to remarry without objection by the other. The
agreement being contrary to law, as it sanctioned an illicit and immoral act. respondent was
required by the Supreme Court to show cause within 10 days from notice why he should not be
the subject of disciplinary action.
While admitting that said agreement was immoral and against public policy, respondent
contended, among others, that the agreement was prepared by his clerk without his knowledge;
that he refused to notarize the same and instead placed it on his table; that a week later he
discovered he had notarized it inadvertently due to the great number of documents on his table.
In effect, respondent pleaded for clemency for his negligence.
Finding that respondent has not exercised the requisite care required by law in the exercise of
his duties as notary public, the Supreme Court adjudged him guilty of malpractice and suspended
him from the office of notary public for a period of six (6) months, with the admonition that a
commission of the same or a similar act in the future would be dealt with more severely.
Marriage is an inviolable social institution in the maintenance of which in its purity the public
is deeply interested, for it is the foundation of the family and of society, without which there
could be neither civilization nor progress.
CONTRACT THAT INDUCES BIGAMY NOT ONLY IMMORAL BUT ABETS COMMISSION OF CRIME.
— Where the contract, in substance, purports to formulate an agreement between the husband
and the wife to take unto himself a concubine and the wife to live in adulterous relations with
another man without opposition from either one, induces each party to commit bigamy, the
same is not only immoral but in effect abets the commission of a crime.

Albano vs. Gapusan, A.M. No. 1022-MJ, May 7, 1976

Complaint charged respondent municipal judge with (1) incompetence and ignorance of the law
for having prepared and notarized, five years before his appointment to the bench, a document
providing for the personal separation of husband and wife and the extra judicial liquidation of
their conjugal partnership and (2) having allegedly influenced a judge of the Court of First Instance
in deciding two criminal cases by taking advantage of his intimacy with said judge.
The Supreme Court censured the respondent as a member of the bar, but dismissed the second
charged for being speculative and unfair to the judge of the Court of First Instance. It rules that

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respondent's notarization of the void separation agreement does not warrant any disciplinary
action against him as a municipal judge especially considering that his appointment to the
judiciary was screened by the Commission on Appointments. It also ruled that whether the
fraternization resulted in an unjust verdict due to the sinister or corruptive influence of the
municipal judge cannot be shown by mere influence of conjecture but should be substantiated
by sold evidence.
"Marriage is not a mere contract but an inviolable social institution." The family is a basic social
institution which public policy cherishes and protects". Marriage and the family are the basis of
human society throughout the civilized world.
CONTRACTS FOR PERSONAL SEPARATION BETWEEN HUSBAND AND WIFE AND DISSOLUTION
OF CONJUGAL PARTNERSHIP, VOID. — To preserve the institutions of marriage and the family,
the law considers as void, "any contract for personal separation between husband and wife"
and "every extrajudicial agreement, during the marriage, for the dissolution of the conjugal
partnership." Before the new Civil Code, it was held that the extrajudicial dissolution of the
conjugal partnership without judicial sanction was void.
COVENANTS IN AGREEMENT IN INSTANT CASE, CONTRARY TO LAW, MORALS AND GOOD
CUSTOMS. — The covenants in an agreement between husband and wife providing for their
personal separation and extra-judicial liquidation of their conjugal partnership and stipulating
that if either of them should commit adultery and concubinage, as the case may be, then the
other are contrary to law, morals and good customs. These stipulations undermine the
institutions of marriage and the family.
|||

Jimenez vs. Cañizares, G.R. No. L-12790, August 31, 1960

MARRIAGE; ITS NATURE AND SANCTITY; SECURITY AND STABILITY OF STATE. — Marriage in
this country is an institution in which the community is deeply interested. The state has
surrounded it with safeguards to maintain its purity, continuity and permanence. The
security and stability of the state are largely dependent upon it. It is in the interest and duty
of each and every member of the community to prevent the bringing about of a condition
that would shake its foundation and ultimately lead to its destruction. The incidents of the
status are governed by law, not by will of the parties.
ANNULMENT; IMPOTENCY; LONE TESTIMONY OF HUSBAND; CASE AT BAR. — The law
specifically enumerates the legal grounds that must be proved to exist by indubitable evidence,
to annul a marriage. In the case at bar, the annulment of the marriage in question was decreed
upon the sole testimony of the husband who was expected to give testimony tending or aiming
at securing the annulment of his marriage he sought and seeks. Whether the wife is really
impotent cannot be deemed to have been satisfactorily established because from the
commencement of the proceedings until the entry of the decree she had abstained from taking
part therein.

WOMAN'S REFUSAL FOR PHYSICAL EXAMINATION; NOT SUPPRESSION OF EVIDENCE. —

Although the wife's refusal to be examined or failure to appear in court show indifference on
her part, yet from such attitude the presumption arising out of the suppression of evidence
could not arise or be inferred, because woman of this country are by nature coy, bashful and
shy and would not submit to a physical examination unless compelled to by competent
authority. This the court may do without doing violence to and infringing upon her
constitutional right. A physical examination in this case is not self-incrimination. She is not
charged with any offense. She is not being compelled to be a witness against herself. Impotency
being an abnormal condition should not be presumed.

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ANNULMENT; PRESUMPTION OF POTENCY; HUSBAND'S LONE TESTIMONY INSUFFICIENT. —
The presumption is in favor of potency. The lone testimony of the husband that his wife is
physically incapable of sexual intercourse is insufficient to tear asunder the ties that have
bound them together as husband and wife.

Contract to Marry:

General Rule: A promise or contract to marry is not enforceable by specific performance, as

consent to marriage is a personal act which must be purely voluntary.
Likewise, breach of promise or contract to marry is not actionable and does not give rise to
liability for moral damages --- Inson vs. Belzunce, 21 Phil. 342; Dalistan vs. Armas, 32 Phil. 648;
De Jesus vs. Syquia, 58 Phil. 866 (1933); Hermosisima vs. CA, 109 Phil. 629 (1960); Estopa vs.
Piansay, 109 Phil. 640 (1960); Galang vs. CA, G.R. No. L-17248, January29, 1962

Exception:

1. Damages may be recoverable based on torts or quasi-delict, if the breach is attended

by bad faith or abuse of rights. Note that in this case, the action is not based purely on
breach of the promise to marry.

a. When a man induced a woman to resign from her employment upon a promise
to marry her, causing her to lose income --- Garcia vs. Del Rosario, 33 Phil. 189.

b. When a man seduced a woman to have sex with him by promising marriage
which he had no intention to fulfill ---- Baksh vs. CA, G.R. No. 97336, February
19, 1993.

c. When the refusal to marry is attended by abuse of rights, such as when it is made
capriciously, just before a wedding, and after a long engagement --- l Tolentino
228-229, citing Gasperi.

2. Plaintiff may also recover property advanced by him upon the faith of such promise,
based on the principle of unjust enrichment (Article 22) --- Domalagan vs. Bolifer, 33
Phil. 471; De Jesus vs. Syquia, 58 Phil. 866 (1933).

Requisites of Marriage

1) Essential Requisites ---- E.O. 209, Family Code of the Philippines, July 6, 1987, Art. 2; Art. 4 &
Art. 5

ARTICLE 2. No marriage shall be valid, unless these essential requisites are

present:

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 (1) Legal capacity of the contracting parties who must be a
male and a female; and
(2) Consent freely given in the presence of the solemnizing
officer. (53a)

Legal Capacity refers to:

1) (SEX) Contracting parties must be man and woman:

The rule that the parties must be a man and a woman means that the parties’ sex
must be male or female at the time of one’s birth; hence, a man remains to be a
man despite successfully undergoing sex gender reassignment surgery --- Silverio
vs. Republic, G.R. No. 174689, October 22, 2007.

2) There must be no impediment to marry (Article 5 FC);

3) (AGE)Each party must be at least 18 years old (Article 5 FC).

Consent freely given in the presence of a solemnizing officer.

a. Consent Freely Given --- not vitiated by duress or fraud (Article 2[2], in relation to Article
45 and 46 of the Family Code

i. If consent is given, but is vitiated by duress or fraud, the marriage is voidable

(Article 45 and 46)
ii. There must be a real intent to enter into marriage. If consent is given by
mistake as to the nature and legal consequence of the ceremony (e.g. if a party
thought that the ceremony was merely in jest or play-acting), or as to the
identity of a party (e.g., if the man erroneously marries the twin sister of his
fiancée), there is no consent to speak of and the marriage is void (Article 35,
paragraph 5, F.C. --- l Tolentino 232.

b. In the presence of the solemnizing officer --- parties must personally appear before the
solemnizing officer.

ARTICLE 57. Marriage. — Subject to the provisions of the Civil Code, the child shall
have the prerogative of choosing his future spouse. Parents should not force or unduly
influence him to marry a person he has not freely chosen.

ARTICLE 3. The formal requisites of marriage are:

(1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases provided for
in Chapter 2 of this Title; and
(3) A marriage ceremony which takes place with the
appearance of the contracting parties before the
solemnizing officer and their personal declaration that

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 they take each other as husband and wife in the
presence of not less than two witnesses of legal age.
(53a, 55a)

Article 3 (1) Authority of the Solemnizing Officer

ARTICLE 7. Marriage may be solemnized by:

(1) Any incumbent member of the judiciary within the

court's jurisdiction;
(2) Any priest, rabbi, imam, or minister of any church or
religious sect duly authorized by his church or
religious sect and registered with the civil registrar
general, acting within the limits of the written
authority granted him by his church or religious sect
and provided that at least one of the contracting
parties belongs to the solemnizing officer's church or
religious sect;
(3) Any ship captain or airplane chief only in the cases
mentioned in Article 31; ---- ARTICLE 31--- A marriage in
articulo mortis between passengers or crew members may also
be solemnized by a ship captain or by an airplane pilot not only
while the ship is at sea or the plane is in flight, but also during
stopovers at ports of call. (74a)
(4) Any military commander of a unit to which a
chaplain is assigned, in the absence of the latter,
during a military operation, likewise only in the cases
mentioned in Article 32; ---- ARTICLE 32 --- A military
commander of a unit, who is a commissioned officer, shall
likewise have authority to solemnize marriages in articulo mortis
between persons within the zone of military operation, whether
members of the armed forces or civilians. (74a) --- That the
chaplain assigned to the military unit is absent also.
(5) Any consul-general, consul or vice-consul in the case
provided in Article 10. (56a) ---- ARTICLE 10. Marriages
between Filipino citizens abroad may be solemnized by a consul-
general, consul or vice-consul of the Republic of the Philippines.
The issuance of the marriage license and the duties of the local
civil registrar and of the solemnizing officer with regard to the
celebration of marriage shall be performed by said consular
official. (75a)

Problem:

Suppose a couple got married on September 1, 2013 at the Manila Hotel before the Philippine
Consul General to Hongkong, who was on vacation in Manila. The couple executed an affidavit
consenting to the celebration of the marriage at the Manila Hotel. Is the marriage valid?

Ans. No, unless the contracting parties in good faith believe that the solemnizing officer has
authority to solemnize the marriage. On the other hand, the marriage is not valid or void ab initio
under Article 35(2) for consuls and vice-consuls are not authorized to solemnize marriage in the
Philippines. They are authorized to solemnize marriage between Philippine citizens abroad in the
consular office of the foreign country to which they were assigned.

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Good faith and Christian motives cannot be made as an excuse to solemnize marriage without
license.

For solemnizing marriage without the required marriage license, respondent has dismally failed
to live up to his commitment to be the “embodiment of competence, integrity and independence”
and to his promise to be “faithful to the law.” He cannot hide behind his claim of good faith and
Christian motives which, at most, would serve only to mitigate his liability and could never justify
violation of the law. --- Marilou Nama Moreno vs. Jose C. Bernabe, Adm. Matter No. MTJ-94-963,
July 14, 1995

Solemnizing marriage out of human compassion may not amount to gross ignorance of the law.

The judge’s act of solemnizing a marriage without the requisite marriage license is contrary to law
and subjects him to administrative liability. His act may not amount to gross ignorance of the law
for he allegedly solemnized the marriage out of human compassion but nonetheless, he cannot
avoid liability for violating the law on marriage. --- Mercedita Mata Arañes vs. Judge Salvador M.
Occiano, A.M. No. MTJ-02-1390, April 11, 2002

Jurisdiction of priests, justices and judges.

A priest who is commissioned and allowed by his local ordinary to marry the faithful is authorized
to do so only within the area of the diocese or place allowed by his Bishop. An appellate court
Justice or a Justice of the Supreme Court has jurisdiction over the entire Philippines to solemnize
marriages, regardless of the venue, as long as the requisites of the law are complied with.
However, judges who are appointed to specific jurisdictions, may officiate in weddings only within
said areas and not beyond. Where a judge solemnizes a marriage outside his court's jurisdiction,
there is a resultant irregularity in the formal requisite laid down in Article 3 of the Family Code,
which while it may not affect the validity of the marriage, may subject the officiating person to
administrative liability. --- Rodolfo G. Navarro vs. Hernando C. Domagtoy, Adm. Matter No. MTJ-
96-1088, July 19, 1996

A judge is not authorized to solemnize marriages outside of his jurisdiction.

Considering that respondent Judge's jurisdiction covers the municipality of Sta. Margarita-
Tarangan-Pagsanjan, Samar only, he was not clothed with authority to solemnize a marriage in
the City of Calbayog. --- Zenaida S. Beso vs. Juan Daguman, A.M. No. MTJ-99-1211, January 28,
2000

Judge who solemnized marriage without marriage license acted in gross ignorance of the law.
Respondent judge should also be faulted for solemnizing a marriage without the requisite
marriage license. In People vs. Lara, we held that a marriage which preceded the issuance of the
marriage license is void, and that the subsequent issuance of such license cannot render valid or
even add an iota of validity to the marriage. Except in cases provided by law, it is the marriage
license that gives the solemnizing officer the authority to solemnize a marriage. Respondent judge
did not possess such authority when he solemnized the marriage of petitioner. In this respect,
respondent judge acted in gross ignorance of the law. --- Mercedita Mata Arañes vs. Judge
Salvador M. Occiano, A.M. No. MTJ-02-1390, April 11, 2002

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Illegal solemnization of marriage by a judge constitutes misconduct

The judge’s acts of solemnizing marriage without a license, failure to affix his signature in the
marriage contract and violation of requirements under Art. 23 of the Family Code, indicate that
he had not taken to heart, but actually trifled with, the law's concern for the institution of
marriage and the legal effects flowing from civil status. ---- Juvy N. Cosca vs. Hon. Lucio P.
Palaypayon, Jr., Adm. Matter No. MTJ-92-721, September 30, 1994

Article 3 (2) Valid license:

A marriage license is indispensable to the validity of marriage.

Since there is no question that the marriage of petitioner and the deceased does not fall within
the marriages exempt from the license requirement, a marriage license, therefore, was
indispensable to the validity of their marriage. The records reveal that the marriage contract bears
no marriage license number and as certified by the Local Civil Registrar, their office has no record
of such marriage license. This certification issued by the local civil registrar enjoys probative value,
he being the officer charged under the law to keep a record of all data relative to the issuance of
a marriage. The marriage between petitioner and the deceased, having been solemnized without
the necessary marriage license, and not being one of the marriages exempt from the marriage
license requirement, is undoubtedly void ab initio. --- Susan Nicdao Cariño vs. Susan Yee Cariño,
G.R. No. 132529, February 2, 2001

Requirement of a marriage license is the State’s demonstration of its involvement in every

marriage.

A valid marriage license is a requisite of marriage under Article 53 of the Civil Code, the absence
of which renders the marriage void ab initio pursuant to Article 80(3) in relation to Article 58. The

16 | P a g e
requirement and issuance of marriage license is the State's demonstration of its involvement and
participation in every marriage, in the maintenance of which the general public is interested. This
interest proceeds from the constitutional mandate that the State recognizes the sanctity of family
life and of affording protection to the family as a basic "autonomous social institution" Specifically,
the Constitution considers marriage as an "inviolable social institution," and is the foundation of
family life which shall be protected by the State. This is why the Family Code considers marriage
as "a special contract of permanent union" and case law considers it not just an adventure but a
lifetime commitment. --- Engrace Niñal vs. Norma Bayadog, G.R. No. 133778, March 14, 2000

Lack of marriage license number in marriage contract does not prove non-issuance of license.

The contention that there was no marriage license obtained by the spouses because the copies
of the marriage contract presented did not state the marriage license number, is flawed. At most,
the evidence adduced could only serve to prove the non-recording of the marriage license number
but certainly not the non-issuance of the license itself. ---- Ireneo G. Geronimo vs. CA and Antonio
Esman, G.R. No. 105540, July 5, 1993

A marriage license wrongfully obtained does not invalidate marriage

A marriage under a license is not invalidated by the fact that the license was wrongfully obtained.
This must be so, for the local civil registrar who issues the marriage license is not required to
inquire into the authority of the officer administering the oath, and neither is the person
solemnizing the marriage required to investigate as to whether or not a marriage license, which
appears to have been issued by a competent official, was legally obtained. What the law declares
as null and void are marriages solemnized without a marriage license. ---- Eduardo Eigenman vs.
Marydeen Guerra and Froilan Guerra, 61 O.G. (31) 4722

Absence of marriage certificate is merely an irregularity in complying with the formal

requirement for procuring a marriage license.

A duly authenticated and admitted certificate is prima facie evidence of legal capacity to marry
on the part of the alien applicant for a marriage license. The absence of the said certificate is
merely an irregularity in complying with the formal requirement for procuring a marriage
license. Under Article 4 of the Family Code, an irregularity will not affect the validity of a marriage
celebrated on the basis of a marriage license issued without that certificate. --- Grace J. Garcia vs.
Rederick A. Recio, G.R. No. 138322, October 2, 2001

Civil registrar’s certification of "due search and inability to find" a record showing that a
marriage license number has been issued, is adequate to prove its non-issuance.

The certification of the local civil registrar of due search and inability to find a record or entry to
the effect that a marriage license number was issued to the parties is adequate to prove its non-
issuance. The certification of "due search and inability to find" issued by the civil registrar enjoys
probative value, he being the officer charged under the law to keep a record of all data relative
to the issuance of a marriage license. Unaccompanied by any circumstance of suspicion and
pursuant to Section 29, Rule 132 of the Rules of Court, a certificate of "due search and inability to
find" sufficiently proved that his office did not issue marriage license no. 3196182 to the
contracting parties. --- Republic of the Phil. vs. Court of Appeals and Angelina M. Castro, G.R. No.
103047, September 2, 1994

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Marriages exceptional in character do not require a marriage license.

The argument that the marriage was void because the parties had no marriage license, is
misplaced because it has been established that Dr. Jacob and petitioner lived together as husband
and wife for at least five years. An affidavit to this effect was executed by Dr. Jacob and petitioner.
Clearly then, the marriage was exceptional in character and did not require a marriage license
under Article 76 of the Civil Code. The Civil Code governs this case, because the questioned
marriage and the assailed adoption took place prior the effectivity of the Family Code. --- Tomasa
vda. de Jacob vs. Court of Appeals, G.R. No. 135216, August 19, 1999

Rationale for not requiring a marriage license in marriages exceptional in character.

However there are several instances recognized by the Civil Code wherein a marriage license is
dispensed with, one of which is that provided in Article 76, referring to the marriage of a man and
a woman who have lived together and exclusively with each other as husband and wife for a
continuous and unbroken period of at least five years before the marriage. The rationale why no
license is required in such case is to avoid exposing the parties to humiliation, shame and
embarrassment concomitant with the scandalous cohabitation of persons outside a valid
marriage due to the publication of every applicant's name for a marriage license. The publicity
attending the marriage license may discourage such persons from legitimizing their status. To
preserve peace in the family, avoid the peeping and suspicious eye of public exposure and contain
the source of gossip arising from the publication of their names, the law deemed it wise to
preserve their privacy and exempt them from that requirement. --- Engrace Niñal vs. Norma
Bayadog, G.R. No. 133778, March 14, 2000

Issuance of marriage license after marriage ceremony gives rise to the conclusion that the
marriage was contracted without a license.

Petitioner did not expressly state in her petition before the trial court that there was incongruity
between the date of the actual celebration of their marriage and the date of the issuance of their
marriage license. From the documents she presented, the marriage license was issued on
September 17, 1974, almost one year after the ceremony took place on November 15, 1973. The
ineluctable conclusion is that the marriage was indeed contracted without a marriage license. ---
Filipina Y. Sy vs. Court of Appeals, G.R. No. 127263, April 12, 2000

Marriages of exceptional characters are as follows:

Under the Civil Code, marriages of exceptional character are covered by Chapter 2, Title III,
comprising Articles 72 to 79. To wit, these marriages are: (1) marriages in articulo mortis or at the
point of death during peace or war, (2) marriages in remote places, (2) consular marriages, (3)
ratification of marital cohabitation, (4) religious ratification of a civil marriage, (5) Mohammedan
or pagan marriages, and (6) mixed marriages. ---- Republic v. Dayot, G.R. No. 175581, 179474,
[March 28, 2008], 573 PHIL 553-576, to wit:

18 | P a g e
 Van Dorn vs. Romillo, Jr. (139 SCRA 139)

Re: Article 26, FC– After a divorce is granted between a Filipina and her American husband in the
United States, the American husband is bound and cannot sue to take over as administrator of their
conjugal properties in the Philippines (estoppel applies).

Pilapil vs. Ibay-Somera (174 SCRA 653)

Re: Article 26,FC– After a divorce was acquired by the German husband from a Filipino wife in
Germany, German husband cannot file a complaint for adultery against Filipino wife, for acts committed
by wife before divorce was granted. Complainant former husband must still be husband at time of filing
of complaint.

Dacasin vs. Dacasin (611 SCRA 657)

Re: Article 26,FC – “a foreign divorce decree is valid against the alien divorcee irrespective of who
obtained the divorce” (citing Pilapil vs. Ibay-Somera)

San Luis vs. San Luis (514 SCRA 294)

Re: Article 26, par. 2, FC. The case of Van Dorn vs. Romilio, Jr. (139 SCRA 139) dated 1985, which
is the basis of Article 26, FC – Divorce decree obtained by Merry Lee (American citizen) in U.S.A., absolutely
allowed Governor San Luis to remarry even if such divorce was granted before August 3, 1988 (effectivity
of the Family Code). However, proof of validity of divorce decree and the law allowing such divorce must
be established pursuant to Section 24 and 25 of Rule 132 of the Revised Rules of Court.

Republic vs. Iyoy (470 SCRA 508)

Re: Article 26, par. 2, FC – A divorce obtained abroad by a Filipino wife against her Filipino husband,
does not capacitate the Filipino husband to remarry in the Philippines, even if she, the Filipino wife,
subsequently acquired American citizenship after she obtained a divorce.

Republic vs. Obrecido III (472 SCRA 114)

Re: Article 26, par. 2, FC – In an obiter dictum, the Supreme Court ruled that Article 26, paragraph
2, FC is applicable to a marriage between two Filipino citizens where one later acquired alien citizenship
and thereafter obtained a divorce decree and remarried. (Nota Bene – however, the petition for
declaratory relief filed by respondent Obrecido was dismissed due to failure to prove divorce decree and
the foreign law on which it is based.)

19 | P a g e
 Marriages Exempt from the License Requirement

ARTICLE 27. In case either or both of the contracting parties are at the point of death, the
marriage may be solemnized without the necessity of a marriage license and shall remain valid
even if the ailing party subsequently survives. (72a)

ARTICLE 28. If the residence of either party is so located that there is no means of
transportation to enable such party to appear personally before the local civil registrar, the
marriage may be solemnized without the necessity of a marriage license. (72a)

ARTICLE 29. In the cases provided for in the two preceding articles, the solemnizing officer
shall state in an affidavit executed before the local civil registrar or any other person legally
authorized to administer oaths that the marriage was performed in articulo mortis or that the
residence of either party, specifying the barrio or barangay, is so located that there is no means
of transportation to enable such party to appear personally before the local civil registrar and
that the officer took the necessary steps to ascertain the ages and relationship of the
contracting parties and the absence of a legal impediment to the marriage. (72a)

ARTICLE 30. The original of the affidavit required in the last preceding article, together with
a legible copy of the marriage contract, shall be sent by the person solemnizing the marriage to
the local civil registrar of the municipality where it was performed within the period of thirty
days after the performance of the marriage. (73a)

ARTICLE 31. A marriage in articulo mortis between passengers or crew members may also
be solemnized by a ship captain or by an airplane pilot not only while the ship is at sea or the
plane is in flight, but also during stopovers at ports of call. (74a)

ARTICLE 32. A military commander of a unit, who is a commissioned officer, shall likewise
have authority to solemnize marriages in articulo mortis between persons within the zone of
military operation, whether members of the armed forces or civilians. (74a)

ARTICLE 33. Marriages among Muslims or among members of the ethnic cultural
communities may be performed validly without the necessity of a marriage license, provided
that they are solemnized in accordance with their customs, rites or practices. (78a)

Provision governing marriages between non-Christians does not apply to marriage between a
Protestant and a Catholic.

Article 78 of the Civil Code, the governing law at that time, provided that marriages between
Mohammedans or pagans who live in the non-Christian provinces may be performed in
accordance with their customs, rites or practices. Therefore, the marriage between complainant
and respondent cannot be validated because the records show that the former is a Protestant
while the latter is a Catholic. --- Estrellita J. Tamano vs. Rodolfo A. Ortiz, G.R. No. 126603, June 29,
1998

Shari’a courts do not have original and exclusive jurisdiction over marriages celebrated under both
civil and Muslim laws.

The shari'a courts are not vested with original and exclusive jurisdiction when it comes to
marriages celebrated under both civil and Muslim laws. Consequently, the Regional Trial Courts
are not divested of their general original jurisdiction under Sec. 19, par. (6) of BP Blg. 129 ---
Estrellita J. Tamano vs. Rodolfo A. Ortiz, G.R. No. 126603, June 29, 1998

20 | P a g e
Wives in marriages celebrated subsequent to a valid marriage are not precluded from proving
that property acquired during their cohabitation with their Muslim husband, is their exclusive
property

Co-ownership provided in Article 144 of the Civil Code requires that the man and woman living
together as husband and wife without the benefit of marriage or under a void marriage must not
in any way be incapacitated to marry. Therefore, the co-ownership contemplated in this provision
cannot apply to Hadji Abdula's marriages celebrated subsequent to a valid and legally existing
marriage, since from the point of view of the Civil Code Hadji Abdula is not capacitated to marry.
However, the wives in such marriages are not precluded from proving that property acquired
during their cohabitation with Hadji Abdula is their exclusive property, respectively. Absent such
proof, however, the presumption is that property acquired during the subsistence of a valid
marriage — and in the Civil Code, there can only be one validly-existing marriage at any given time
— is conjugal property of such subsisting marriage. ---- Neng "Kagui Kadiguia" Malang vs. Corocoy
Moson, G.R. No. 119064, August 22, 2000

Family Code determines fitness of a mother, who is no longer a Muslim, to take custody of her
children.

The standard in the determination of sufficiency of proof is not restricted to Muslim laws. The
Family Code shall be taken into consideration in deciding whether a non-Muslim woman is worthy
to have custody of her children. What determines her capacity is the standard laid down by the
Family Code now that she is not a Muslim. Indeed, what determines the fitness of any parent is
the ability to see to the physical, educational, social and moral welfare of the children, and the
ability to give them a healthy environment as well as physical and financial support taking into
consideration the respective resources and social and moral situations of the parents. --- Sabrina
Artadi Bondagjy vs. Fouzi Ali Bondagjy, G.R. No. 140817, December 7, 2001

If both parties are Muslims, there is a presumption that the Muslim Code or Muslim law is
complied with. If together with it or in addition to it, the marriage is likewise solemnized in
accordance with the Civil Code of the Philippines, in a so-called combined Muslim-Civil marriage
rites whichever comes first is the validating rite and the second rite is merely ceremonial one. But,
in this case, as long as both parties are Muslims, this Muslim Code will apply. In effect, two
situations will arise, in the application of this Muslim Code or Muslim law, that is, when both
parties are Muslims and when the male party is a Muslim and the marriage is solemnized in
accordance with Muslim Code or Muslim law. A third situation occur[s] when the Civil Code of the
Philippines will govern the marriage and divorce of the parties, if the male party is a Muslim and
the marriage is solemnized in accordance with the Civil Code. ---- Marietta D. Zamoranos vs.
People of the Phil., et al., G.R. Nos. 193902, 193908 & 194075, June 1, 2011, citing Justice Rasul
and Dr. Ghazali's Commentaries and Jurisprudence on the Muslim Code of the Philippines

One of the effects of irrevocable talaq, as well as other kinds of divorce, refers to severance of
matrimonial bond, entitling one to remarry. --- Marietta D. Zamoranos vs. People of the Phil., et
al., G.R. Nos. 193902, 193908 & 194075, June 1, 2011

ARTICLE 34. No license shall be necessary for the marriage of a man and a woman who have
lived together as husband and wife for at least five years and without any legal impediment to
marry each other. The contracting parties shall state the foregoing facts in an affidavit before
any person authorized by law to administer oaths. The solemnizing officer shall also state under
oath that he ascertained the qualifications of the contracting parties and found no legal
impediment to the marriage. (76a)

Rationale for dispensing with marriage license.

21 | P a g e
There are several instances recognized by the Civil Code wherein a marriage license is dispensed
with, one of which is that provided in Article 76, referring to the marriage of a man and a woman
who have lived together and exclusively with each other as husband and wife for a continuous
and unbroken period of at least five years before the marriage. The rationale why no license is
required in such case is to avoid exposing the parties to humiliation, shame and embarrassment
concomitant with the scandalous cohabitation of persons outside a valid marriage due to the
publication of every applicant's name for a marriage license. The publicity attending the marriage
license may discourage such persons from legitimizing their status. To preserve peace in the
family, avoid the peeping and suspicious eye of public exposure and contain the source of gossip
arising from the publication of their names, the law deemed it wise to preserve their privacy and
exempt them from that requirement. --- Engrace Niñal vs. Norma Bayadog, G.R. No. 133778,
March 14, 2000

Requisites for application of legal ratification of marital cohabitation.

For this provision on legal ratification of marital cohabitation to apply, the following requisites
must concur:
1. The man and woman must have been living together as husband and wife for at least five
years before the marriage;
2. The parties must have no legal impediment to marry each other;
3. The fact of absence of legal impediment between the parties must be present at the time
of marriage;
4. The parties must execute an affidavit stating that they have lived together for at least five
years [and are without legal impediment to marry each other]; and
5. The solemnizing officer must execute a sworn statement that he had ascertained the
qualifications of the parties and that he had found no legal impediment to their marriage.
Herminia Borja-Manzano vs. Judge Roque R Sanchez, A.M. No. MTJ-00-1329, March 8, 2001
Marriages of exceptional character such as those made under Article 34 are, doubtless, the
exceptions to the rule on the indispensability of the formal requisite of a marriage license. Under
the rules of statutory construction, exceptions as a general rule should be strictly but reasonably
construed. The affidavits of cohabitation should not be issued and accepted pro forma particularly
in view of the settled rulings of the Court on this matter. The five-year period of cohabitation
should be one of a perfect union valid under the law but rendered imperfect only by the absence
of the marriage contract. The parties should have been capacitated to marry each other during
the entire period and not only at the time of the marriage. --- OCA vs. Anatalio S. Necessario, et
al., A.M. No. MTJ-07-1691, April 2, 2013

The 5-year cohabitation period must be exclusive and continuous.

The five-year common-law cohabitation period should be computed on the basis of a cohabitation
as "husband and wife" where the only missing factor is the special contract of marriage to validate
the union. It should be a period of legal union had it not been for the absence of the marriage.
This 5-year period, counted back from the date of celebration of marriage, should be the years
immediately before the day of the marriage and it should be a period of cohabitation
characterized by exclusivity — meaning no third party was involved at any time within the 5 years
and continuity — that is, unbroken. Otherwise, if that continuous 5-year cohabitation is computed
without any distinction as to whether the parties were capacitated to marry each other during
the entire five years, then the law would be sanctioning immorality and encouraging parties to
have common-law relationships and placing them on the same footing with those who lived
faithfully with their spouse. --- Engrace Niñal vs. Norma Bayadog, G.R. No. 133778, March 14, 2000

22 | P a g e
If the contracting parties have cohabited as husband and wife for at least five years and have no
legal impediment to marry, they are exempt from the marriage license requirement. Instead, the
parties must present an affidavit of cohabitation sworn to before any person authorized by law
to administer oaths. The judge, as solemnizing officer, must personally examine the affidavit of
cohabitation as to the parties having lived together as husband and wife for at least five years and
the absence of any legal impediment to marry each other. The judge must also execute a sworn
statement that he personally ascertained the parties' qualifications to marry and found no legal
impediment to the marriage. --- Tupal v. Rojo, A.M. No. MTJ-14-1842, February 24, 2014

Based on law and the Guidelines on the Solemnization of Marriage by the Members of the
Judiciary, the person who notarizes the contracting parties' affidavit of cohabitation cannot be
the judge who will solemnize the parties' marriage. As a solemnizing officer, the judge's only duty
involving the affidavit of cohabitation is to examine whether the parties have indeed lived
together for at least five years without legal impediment to marry. The Guidelines does not state
that the judge can notarize the parties' affidavit of cohabitation. --- Tupal v. Rojo, A.M. No. MTJ-
14-1842, February 24, 2014

Thus, affidavits of cohabitation are documents not connected with the judge's official function
and duty to solemnize marriages. Notarizing affidavits of cohabitation is inconsistent with the
duty to examine the parties' requirements for marriage. If the solemnizing officer notarized the
affidavit of cohabitation, he cannot objectively examine and review the affidavit's statements
before performing the marriage ceremony. Should there be any irregularity or false statements
in the affidavit of cohabitation he notarized, he cannot be expected to admit that he solemnized
the marriage despite the irregularity or false allegation. --- Tupal v. Rojo, A.M. No. MTJ-14-1842,
February 24, 2014

Thus, judges cannot notarize the affidavits of cohabitation of the parties whose marriage they will
solemnize. Affidavits of cohabitation are documents not connected with their official function and
duty to solemnize marriages. --- Tupal v. Rojo, A.M. No. MTJ-14-1842, February 24, 2014

Parties cannot invoke failure to comply with requisites of marriage as ground to nullify the
same.

Marriage being a special relationship must be respected as such and its requirements must be
strictly observed. The presumption that a man and a woman deporting themselves as husband
and wife is based on the approximation of the requirements of the law. The parties should not be
afforded any excuse to not comply with every single requirement and later use the same missing
element as a pre-conceived escape ground to nullify their marriage. There should be no
exemption from securing a marriage license unless the circumstances clearly fall within the ambit
of the exception. It should be noted that a license is required in order to notify the public that two
persons are about to be united in matrimony and that anyone who is aware or has knowledge of
any impediment to the union of the two shall make it known to the local civil registrar. --- Engrace
Niñal vs. Norma Bayadog, G.R. No. 133778, March 14, 2000
Cohabitation with another person for at least five years does not sever the tie of a subsisting
previous marriage

Just like separation, free and voluntary cohabitation with another person for at least five years
does not severe the tie of a subsisting previous marriage. Marital cohabitation for a long period
of time between two individuals who are legally capacitated to marry each other is merely a
ground for exemption from marriage license. It could not serve as a justification for a judge to

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solemnize a subsequent marriage vitiated by the impediment of a prior existing marriage. ---
Herminia Borja-Manzano vs. Judge Roque R Sanchez, A.M. No. MTJ-00-1329, March 8, 2001

Purpose of Provision

The law dispenses with the marriage license requirement for a man and a woman who have lived
together and exclusively with each other as husband and wife for a continuous and unbroken
period of at least five years before the marriage. The aim of this provision is to avoid exposing the
parties to humiliation, shame and embarrassment concomitant with the scandalous cohabitation
of persons outside a valid marriage due to the publication of every applicant's name for a marriage
license. ---- Reinel Anthony B. De Castro vs. Annabelle Assidao-De Castro, G.R. No. 160172,
February 13, 2008 & Engrace Niñal vs. Norma Bayadog, G.R. No. 133778, March 14, 2000

Use of same marriage license in church wedding ratified and fortified the earlier civil ceremony.

The couple had complied with all the essential and formal requisites for a valid marriage, including
the requirement of a valid license in the first of the two ceremonies. That this license was used
legally in the celebration of the civil ceremony does not detract from the ceremonial use thereof
in the church wedding of the same parties to the marriage, for the latter rites served not only to
ratify but also to fortify the first. --- Ofelia P. Ty vs. Court of Appeals and Edgardo M. Reyes, G.R.
No. 127406, November 27, 2000

It is the marriage license that gives the solemnizing officer the authority to solemnize a
marriage.

It has been held that a marriage which preceded the issuance of the marriage license is void, and
that the subsequent issuance of such license cannot render valid or even add an iota of validity to
the marriage. Except in cases provided by law, it is the marriage license that gives the solemnizing
officer the authority to solemnize a marriage. Respondent judge did not possess such authority
when he solemnized the marriage of petitioner. --- Mercedita Mata Arañes vs. Judge Salvador M.
Occiano, A.M. No. MTJ-02-1390, April 11, 2002

The Court does not accept the arguments of the respondent judges that the ascertainment of the
validity of the marriage license is beyond the scope of the duty of a solemnizing officer especially
when there are glaring pieces of evidence that point to the contrary. As correctly observed by the
OCA, the presumption of regularity accorded to a marriage license disappears the moment the
marriage documents do not appear regular on its face. --- OCA vs. Anatalio S. Necessario, et al.,
A.M. No. MTJ-07-1691, April 2, 2013

Valid Marriage License can be used in any part of the Philippines for a period of 120 days from
the date of issuance thereof (Article 20 FC).

Problem:

On May 1, 1975, Facundo married Petra, by whom he had a son Sotero. Petra died on July 1,
1996, while Facundo died on January 1, 2002. Before his demise, Facundo had married, on July
1, 2000, Querica. Having lived together as husband and wife since July 1, 1990, Facundo and

24 | P a g e
Querica did not secure a marriage license but executed the requisite affidavit for the purpose. To
ensure that his inheritance rights are not adversely affected by his father’s second marriage,
Sotero now brings a suit to seek a declaration of the nullity of the marriage of Facundo and
Querica, grounded on the absence of a valid marriage license in view continuously with Facundo
for five years before their marriage and that Sotero has no legal personality to seek a declaration
of nullity of the marriage since Facundo is now deceased. Is the marriage of Facundo and Querica
valid, despite the absence of a marriage license?

Ans. The marriage between Facundo and Querica is void for want of a marriage license. The
marriage without a marriage license under exceptional circumstances cannot find application in
the present case because the cohabitation for a period of five years or more must be done with
both parties having no legal impediment to marry each other. In the present case, Facundo and
Querica started to cohabit even before the death of Facundo’s wife, thus, disqualifying them from
availing of the exemption.

No valid marriage license when the declaration of cohabitation is false

Therefore, the falsity of the affidavit dated 24 November 1986, executed by Jose and Felisa to
exempt them from the requirement of a marriage license, is beyond question.
We cannot accept the insistence of the Republic that the falsity of the statements in the parties'
affidavit will not affect the validity of marriage, since all the essential and formal requisites were
complied with. The argument deserves scant merit. Patently, it cannot be denied that the
marriage between Jose and Felisa was celebrated without the formal requisite of a marriage
license. Neither did Jose and Felisa meet the explicit legal requirement in Article 76, that they
should have lived together as husband and wife for at least five years, so as to be excepted from
the requirement of a marriage license. AIDTHC
Anent petitioners' reliance on the presumption of marriage, this Court holds that the same finds
no applicability to the case at bar. Essentially, when we speak of a presumption of marriage, it
is with reference to the prima facie presumption that a man and a woman deporting themselves
as husband and wife have entered into a lawful contract of marriage. Restated more explicitly,
persons dwelling together in apparent matrimony are presumed, in the absence of any counter-
presumption or evidence special to the case, to be in fact married. The present case does not
involve an apparent marriage to which the presumption still needs to be applied. There is no
question that Jose and Felisa actually entered into a contract of marriage on 24 November 1986,
hence, compelling Jose to institute a Complaint for Annulment and/or Declaration of Nullity of
Marriage, which spawned the instant consolidated Petitions.
In the same vein, the declaration of the Civil Code that every intendment of law or fact leans
towards the validity of marriage will not salvage the parties' marriage, and extricate them from
the effect of a violation of the law. The marriage of Jose and Felisa was entered into without
the requisite marriage license or compliance with the stringent requirements of a marriage
under exceptional circumstance. The solemnization of a marriage without prior license is a clear
violation of the law and would lead or could be used, at least, for the perpetration of fraud
against innocent and unwary parties, which was one of the evils that the law sought to prevent
by making a prior license a prerequisite for a valid marriage. The protection of marriage as a
sacred institution requires not just the defense of a true and genuine union but the exposure of
an invalid one as well. To permit a false affidavit to take the place of a marriage license is to
allow an abject circumvention of the law. If this Court is to protect the fabric of the institution
of marriage, we must be wary of deceptive schemes that violate the legal measures set forth in
our laws.
Similarly, we are not impressed by the ratiocination of the Republic that as a marriage under a
license is not invalidated by the fact that the license was wrongfully obtained, so must a
marriage not be invalidated by a fabricated statement that the parties have cohabited for at

25 | P a g e
 least five years as required by law. The contrast is flagrant. The former is with reference to an
irregularity of the marriage license, and not to the absence of one. Here, there is no marriage
license at all. Furthermore, the falsity of the allegation in the sworn affidavit relating to the
period of Jose and Felisa's cohabitation, which would have qualified their marriage as an
exception to the requirement for a marriage license, cannot be a mere irregularity, for it refers
to a quintessential fact that the law precisely required to be deposed and attested to by the
parties under oath. If the essential matter in the sworn affidavit is a lie, then it is but a mere
scrap of paper, without force and effect. Hence, it is as if there was no affidavit at all. ----
(Republic v. Dayot, G.R. No. 175581, 179474, [March 28, 2008], 573 PHIL 553-576)

Even perpetrator of the fraud can ask for relief in false declaration under exceptional marriage
for the rule on equity finds no room for application where there is law

In its second assignment of error, the Republic puts forth the argument that based on equity, Jose
should be denied relief because he perpetrated the fabrication, and cannot thereby profit from
his wrongdoing. This is a misplaced invocation. It must be stated that equity finds no room for
application where there is a law. There is a law on the ratification of marital cohabitation, which
is set in precise terms under Article 76 of the Civil Code. Nonetheless, the authorities are
consistent that the declaration of nullity of the parties' marriage is without prejudice to their
criminal liability. ---- (Republic v. Dayot, G.R. No. 175581, 179474, [March 28, 2008], 573 PHIL 553-
576)

Nullity of marriage is imprescriptible

The Republic further avers in its third assignment of error that Jose is deemed estopped from
assailing the legality of his marriage for lack of a marriage license. It is claimed that Jose and Felisa
had lived together from 1986 to 1990, notwithstanding Jose's subsequent marriage to Rufina
Pascual on 31 August 1990, and that it took Jose seven years before he sought the declaration of
nullity; hence, estoppel had set in.
This is erroneous. An action for nullity of marriage is imprescriptible. Jose and Felisa's marriage
was celebrated sans a marriage license. No other conclusion can be reached except that it is void
ab initio. In this case, the right to impugn a void marriage does not prescribe, and may be raised
any time. ---- (Republic v. Dayot, G.R. No. 175581, 179474, [March 28, 2008], 573 PHIL 553-576)

Five years of continuous cohabitation uninterrupted

Lastly, to settle all doubts, jurisprudence has laid down the rule that the five-year common-law
cohabitation period under Article 76 means a five-year period computed back from the date of
celebration of marriage, and refers to a period of legal union had it not been for the absence of a
marriage. It covers the years immediately preceding the day of the marriage, characterized by
exclusivity — meaning no third party was involved at any time within the five years — and
continuity that is unbroken. ---- (Republic v. Dayot, G.R. No. 175581, 179474, [March 28, 2008],
573 PHIL 553-576)

Enrico vs. Heirs of Medinaceli , et. al (534 SCRA 418)

Re: Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages
(A.M. No. 02-11-10-SC) effective 15 March 2003. For marriages entered into during the effectivity

26 | P a g e
of the Family Code, only husband or wife may file an action to assail the validity thereof. Hence, a separate
petition for declaration of nullity or annulment cannot be filed by the heirs of the deceased spouse.
However, the heirs can still question the validity of such marriage not in a separate proceeding for
declaration of nullity but in the settlement of the estate of the deceased.

Carlos vs. Sandoval (574 SCRA 116)

Re: A.M. No. 02-11-10 SC effective 15 March 2003 – The subject A.M. of the Supreme Court does
not cover cases already commenced before March 15, 2003, although the marriage involved is within the
coverage of the Family Code. This covers marriages under the Family Code and is prospective in nature. A
petition for declaration of absolute nullity of marriage may be filed solely and exclusively by the spouses
only. However, compulsory or intestate heirs can still question the validity of the marriage of the spouses,
not in the proceedings for declaration of nullity but upon the death of a spouse in a proceeding for the
settlement of the estate of the deceased spouse filed in the regular courts.

Art. 3 (3) - Marriage ceremony

A. Form: No prescribed form or religious rite for the solemnization of the marriage is required (Article
6, FC)

B. Requirements. It is necessary that ---

a. That the parties appear personally before the solemnizing officer (Article 6).
b. The parties declare that they take each other as husband and wife (Article 6).
c. The declaration be in the presence of at least two witnesses of legal age (Article 6).

Because of these requirements, the following is not allowed:

1. “Common law marriage” – when the parties simply live together as husband and wife
without the celebration of marriage --- Enriquez vs. Enriquez, 8 Phil. 565 (1907)
2. “Marriage by proxy” – when the parties do not personally appear before the solemnizing
officer but are merely represented by other persons.
3. “Secret marriage”

Exchange of vows is presumed to have been made based on testimonies that a wedding took place.

An exchange of vows can be presumed to have been made from the testimonies of the witnesses who
state that a wedding took place, since the very purpose for having a wedding is to exchange vows of
marital commitment. It would indeed be unusual to have a wedding without an exchange of vows and
quite unnatural for people not to notice its absence. The law favors the validity of marriage, because the
State is interested in the preservation of the family and the sanctity of the family is a matter of
constitutional concern. --- Leoncia Balogbog and Gaudioso Balogbog vs. Court of Appeals, G.R. No. 83598,
March 7, 1997

While the petitioner may view this merely as a "blessing," the presence of the requirements of the law
constitutive of a marriage ceremony qualified this "blessing" into a "marriage ceremony" as contemplated
by Article 3 (3) of the Family Code and Article 352 of the RPC, as amended. --- Ronulo v. People, G.R. No.
182438, July 2, 2014

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Under Article 3 (3) of the Family Code, one of the essential requisites of marriage is the presence of a valid
marriage certificate. In the present case, the petitioner admitted that he knew that the couple had no
marriage license, yet he conducted the "blessing" of their relationship.

Undoubtedly, the petitioner conducted the marriage ceremony despite knowledge that the essential and
formal requirements of marriage set by law were lacking. The marriage ceremony, therefore, was illegal.
The petitioner's knowledge of the absence of these requirements negates his defense of good faith. ---
Ronulo v. People, G.R. No. 182438, July 2, 2014

[T]he lack of a marriage certificate negates his criminal liability in the present case. For purposes of
determining if a marriage ceremony has been conducted, a marriage certificate is not included in the
requirements provided by Article 3 (3) of the Family Code, as discussed above. ---- Ronulo v. People, G.R.
No. 182438, July 2, 2014

ARTICLE 4. The absence of any of the essential or formal requisites shall render
the marriage void ab initio, except as stated in Article 35 (2).

ARTICLE 35. The following marriages shall be void from the beginning:
(2) Those solemnized by any person not legally authorized to
perform marriages unless such marriages were contracted with either
or both parties believing in good faith that the solemnizing officer had
the legal authority to do so;

A defect in any of the essential requisites shall render the marriage voidable as
provided in Article 45.

ARTICLE 45. A marriage may be annulled for any of the following

causes, 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 but below twenty-one, and
the marriage was solemnized without the consent of the parents,
guardian or person having substitute parental 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
husband and wife;

(2) That either party was of unsound mind, unless such party,
after coming to reason, freely cohabited with the other as husband
and wife;

(3) That the consent of either party was obtained by fraud, unless
such party afterwards, with full knowledge of the facts constituting
the fraud, freely cohabited with the other as husband and wife;

(4) That the consent of either party was obtained by force,

intimidation or undue influence, unless the same having disappeared
or ceased, such party thereafter freely cohabited with the other as
husband and wife;

(5) That either party was physically incapable of consummating

the marriage with the other, and such incapacity continues and
appears to be incurable; or

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 (6) That either party was afflicted with a sexually-transmissible
disease found to be serious and appears to be incurable. (85a)

An irregularity in the formal requisites shall not affect the validity of the marriage
but the party or parties responsible for the irregularity shall be civilly, criminally and
administratively liable. (n)

Problem:

On Valentine’s Day, 1996, Elias and Fely, both single and 25 years old went to the city hall
where they sought out a fixer to help them obtain a quickie marriage. For a fee, the fixer
produced an ante-dated marriage license for them, issued by the Civil Registrar of a small
remote municipality. He then brought them to a licensed minister in a restaurant behind
the city hall, and the latter solemnized their marriage right there and then.

a) Is their marriage valid, void or voidable? Explain.

b) Would your answer be the same if it should turn out that the marriage license was
spurious? Explain.

Ans.

a) The marriage is valid. Although the marriage license was irregularly secured but the
same is just a formal requirement and its defect will not affect the validity of the
marriage for as provided under the last paragraph of Article 4 of the Family Code, an
irregularity in the formal requisites shall not affect the validity of the marriage
but the party or parties responsible for the irregularity shall be civilly, criminally and
administratively liable.

b) The answer will be different for this time the marriage is void under Article 4 of the
Family Code. A spurious marriage license is in reality an absence of a marriage license,
thus, an absence of a formal requisite, which the law ordained to be void ab initio.

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ARTICLE 5. Any male or female of the age of eighteen years or upwards not
under any of the impediments mentioned in Articles 37 and 38, may
contract marriage. (54a)

P.D. 603, Child and Youth Welfare Code, December 10, 1974, Art. 57

ARTICLE 6. No prescribed form or religious rite for the solemnization of the

marriage is required. It shall be necessary, however, for the
contracting parties to appear personally before the solemnizing
officer and declare in the presence of not less than two witnesses of
legal age that they take each other as husband and wife. This
declaration shall be contained in the marriage certificate which shall
be signed by the contracting parties and their witnesses and attested
by the solemnizing officer.
In case of a marriage in articulo mortis, when the party at the point
of death is unable to sign the marriage certificate, it shall be
sufficient for one of the witnesses to the marriage to write the name
of said party, which fact shall be attested by the solemnizing officer.
(55a)

Marriage Certificate contains the contracting parties’ declaration that they take each
other as husband and wife. It is signed by the parties and their witnesses and attested by
the solemnizing officer.

1. The solemnizing officer must: (a) give the original marriage certificate to the
parties; (b) send the duplicate and triplicate to the local civil registrar of the
place where the marriage was solemnized; and (3) retain the quadruplicate
(Article 23, FC)

2. A marriage certificate is the best proof of marriage --- Kim Tanhu vs. Remolete,
66 SCRA 425. But it is merely an evidence of marriage – De Loria vs. Felix, 550
OG 8118 and not a requisite. Thus, the validity of the marriage is not affected
by:

1. The failure of the parties to sign the marriage certificate --- De Loria vs.
Felix, 550 OG 8118;
2. The failure of the solemnizing officer to transmit copies of the marriage
certificate --- Pugeda vs. Trias, 4 SCRA 49;
3. The absence of the marriage certificate in the public records ---
Mariatequi vs. CA, 205 SCRA 337.

3. Thus, other competent evidence may be presented to prove marriage ---

Pugeda vs. Trias, 4 SCRA 49; Balogbog vs. CA, 269 SCRA 259 (1997); Vda DE
Jacob vs. CA, 312 SCRA 772 (1999), e.g. testimony of the spouses or witnesses;
birth or baptismal certificates of children; wills or other documents;
photographs.

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 4. And that there is a prima facie presumption that a man and a woman deporting
themselves as husband and wife have entered into a legal contract of marriage
--- Rules of Court, Rule 131, Sec. 3 (aa). Vda. De Jacob vs. CA, 312 SCRA 772
(1999). This presumption may be rebutted only by cogent proof to the contrary
--- Alavado vs. City Government, 139 SCRA 230.

ARTICLE 22. The marriage certificate, in which the parties shall

declare that they take each other as husband and
wife, shall also state:

(1) The full name, sex and age of each contracting

party;

(2) Their citizenship, religion and habitual residence;

(3) The date and precise time of the celebration of the

marriage;

(4) That the proper marriage license has been issued

according to law, except in marriages provided for
in Chapter 2 of this Title;

(5) That either or both of the contracting parties have

secured the parental consent in appropriate cases;

(6) That either or both of the contracting parties have

complied with the legal requirement regarding
parental advice in appropriate cases; and

(7) That the parties have entered into marriage

settlements, if any, attaching a copy thereof. (67a)

Further applications:

Marriage certificate is prima facie evidence that all legal formalities have been complied with.

The marriage certificate attesting that a marriage ceremony was performed by a minister gives rise to the
presumption that all legal formalities required by law had been complied with and fulfilled. If the minister
was not authorized to perform such marriage ceremony it was incumbent upon the defendants to show
such lack of authority on the part of the minister. --- Eulogia Bigornia de Cardenas vs. Leoncio Cardenas,
G.R. No. L-8218, December 15, 1955

Marriage certificate is best evidence of marriage.

The best evidence is the marriage certificate itself absent any showing that it was lost or destroyed. ---
People of the Phils. vs. Antonio Evangelista, G.R. No. 132044, October 5, 2001

Certified copy of marriage contract is the best evidence of its contents.

31 | P a g e
The certified copy of the marriage contract, issued by a public officer in custody thereof, was admissible
as the best evidence of its contents. The marriage contract plainly indicating that a marriage was
celebrated should be accorded the full faith and credence given to public documents. This should be
given greater credence than documents testifying merely as to absence of any record of the marriage,
especially considering that there is absolutely no requirement in the law that a marriage contract needs
to be submitted to the civil registrar as a condition precedent for the validity of a marriage. The mere fact
that no record of a marriage exists does not invalidate the marriage, provided all requisites for its validity
are present. --- Veronico Tenebro vs. Court of Appeals, G.R. No. 150758, February 18, 2004

Marriage certificate proves only the administration of the sacrament, not the veracity of statements
therein on kinsfolk and/or citizenship.

While baptismal and marriage certificates may be considered documents, they are evidence only to prove
the administration of the sacraments on the dates therein specified which in this case were the baptism
and marriage, respectively, of Leoncio Chan — but not the veracity of the statements or declarations
made therein with respect to his kinsfolk and/or citizenship." --- Norberto Paa vs. Quintin Chan, G.R. No.
L-25945, Oct. 31, 1967

Marriage certificate constitutes prima facie proof of its contents.

Being a public document, the marriage certificate constitutes prima facie proof of its contents. The
trustworthiness of public documents and the value given to the entries made therein could be grounded
on 1) the sense of official duty in the preparation of the statement made, 2) the penalty which is usually
affixed to a breach of that duty, 3) the routine and disinterested origin of most such statements, and 4)
the publicity of record which makes more likely the prior exposure of such errors as might have occurred.
--- Maria Jeanette C. Tecson vs. COMELEC, G.R. No. 161434, March 3, 2004

Marriage certificate is not indispensable to establish the fact of marriage.

A marriage certificate is not indispensable to establish the fact of marriage in order to charge a wife of
parricide because the presumption that two persons are married subsists by reason of the fact that they
had been living together for about thirteen years as evidenced by the birth of their eldest child and that
they had other children thereafter. --- People of the Philippines vs. Nemesio Talingdan, G.R. No. L-32126,
July 6, 1978

Absence of marriage certificate is merely an irregularity in complying with the formal requirement for
procuring a marriage license.

A duly authenticated and admitted certificate is prima facie evidence of legal capacity to marry on the
part of the alien applicant for a marriage license. The absence of the said certificate is merely an
irregularity in complying with the formal requirement for procuring a marriage license . Under
Article 4 of the Family Code, an irregularity will not affect the validity of a marriage celebrated on the basis
of a marriage license issued without that certificate. --- Grace J. Garcia vs. Rederick A. Recio, G.R. No.
138322, October 2, 2001

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Failure to sign marriage contract does not render the marriage a nullity.

Bearing in mind that the "essential requisites for marriage are the legal capacity of the contracting parties
and their consent", the latter being manifested by the declaration of "the parties" "in the presence of the
person solemnizing the marriage and of two witnesses of legal age that they take each other as husband
and wife" — which in this case actually occurred, We think the signing of the marriage contract or
certificate was required by the statute simply for the purpose of evidencing the act. No statutory
provision or court ruling has been cited making it an essential requisite — not the formal requirement
of evidentiary value, which we believe it is. The fact of marriage is one thing; the proof by which it may
be established is quite another. Signing of the marriage contract is a formal requirement of evidentiary
value, the omission of which does not render the marriage a nullity. --- Arsenio and Ricarda de Loria vs.
Felipe Apelan Felix, G.R. No. L-9005, June 20, 1958

Mere private act of signing a marriage contract does not constitute a valid marriage.

The mere private act of signing a marriage contract (no marriage ceremony at all was performed by a
duly authorized solemnizing officer), bears no semblance to a valid marriage and thus, needs no
judicial declaration of nullity. Such act alone, without more, cannot be deemed to constitute an
ostensibly valid marriage for which the husband might be held liable for bigamy unless he first secures a
judicial declaration of nullity before he contracts a subsequent marriage. ---- Lucio Morigo vs. People of
the Phils., G.R. No. 145226, February 6, 2004

Failure to present marriage contract is not proof that no marriage took place.

Although a marriage contract is considered primary evidence of marriage, the failure to present it is not
a proof that no marriage took place. Other evidence may be presented to prove marriage. --- Leoncia
Balogbog and Gaudioso Balogbog vs. CA, G.R. No. 83598, March 7, 1997

Failure of solemnizing officer to send copy of marriage certificate to municipal secretary does not
invalidate marriage.

The mere fact that the parish priest who married the plaintiff's natural father and mother, while the latter
was in articulo mortis, failed to send a copy of the marriage certificate to the municipal secretary, does
not invalidate said marriage, since it does not appear that in the celebration thereof all requisites for its
validity were not present, the forwarding of a copy of the marriage certificate not being one of the
requisites." --- Angelita Jones vs. Felix Hortiguela, G.R. No. 43701, March 6, 1937

Truth or falsehood of the declaration of one's religion in the marriage certificate is not an essential
requirement for marriage.

Although the truth or falsehood of the declaration of one's religion in the marriage certificate is not an
essential requirement for marriage, such omissions are sufficient proofs of [one's] liability for bigamy. -
--Atilano O. Nollora, Jr. vs. People of the Phil., G.R. No. 191425, September 7, 2011

While a marriage certificate is considered the primary evidence of a marital union, it is not regarded as
the sole and exclusive evidence of marriage. Jurisprudence teaches that the fact of marriage may be
proven by relevant evidence other than the marriage certificate. Hence, even a person's birth certificate
may be recognized as competent evidence of the marriage between his parents. --- Vda. de Avenido v.

33 | P a g e
Avenido, G.R. No. 173540, January 22, 2014, citing Añonuevo v. Intestate Estate of Rodolfo G. Jalandoni,
G.R. No. 178221, December 1, 2010

It should be stressed that the due execution and the loss of the marriage contract, both
constituting the conditio sine qua non for the introduction of secondary evidence of its contents,
were shown by the very evidence they have disregarded. They have thus confused the evidence to
show due execution and loss as "secondary" evidence of the marriage. In Hernaez v. Mcgrath, the Court
clarified this misconception thus:

. . . [T]he court below was entirely mistaken in holding that parol evidence of the
execution of the instrument was barred. The court confounded the execution and the
contents of the document. It is the contents, . . . which may not be prove[n] by secondary
evidence when the instrument itself is accessible. Proofs of the execution are not
dependent on the existence or non-existence of the document, and, as a matter of fact,
such proofs of the contents: due execution, besides the loss, has to be shown as
foundation for the introduction of secondary evidence of the contents.

xxx xxx xxx

Evidence of the execution of a document is, in the last analysis, necessarily collateral or primary. It
generally consists of parol testimony or extrinsic papers. Even when the document is actually produced,
its authencity is not necessarily, if at all, determined from its face or recital of its contents but by parol
evidence. At the most, failure to produce the document, when available, to establish its execution may
effect the weight of the evidence presented but not the admissibility of such evidence.

Vda. de Avenido v. Avenido, G.R. No. 173540, January 22, 2014, citing Vda. de Jacob v. Court of Appeals,
371 Phil. 693 (1999)

ARTICLE 23. It shall be the duty of the person solemnizing the marriage to furnish
either of the contracting parties the original of the marriage certificate referred
to in Article 6 and to send the duplicate and triplicate copies of the certificate not
later than fifteen days after the marriage, to the local civil registrar of the place
where the marriage was solemnized. Proper receipts shall be issued by the local
civil registrar to the solemnizing officer transmitting copies of the marriage
certificate. The solemnizing officer shall retain in his file the quadruplicate copy
of the marriage certificate, the original of the marriage license and, in proper
cases, the affidavit of the contracting party regarding the solemnization of the
marriage in place other than those mentioned in Article 8. (68a)

A judge must ensure that the marriage is properly documented.

From the nature of marriage, aside from the mandate that a judge should exercise extra care in the
exercise of his authority and the performance of his duties in its solemnization, he is likewise commanded
to observe extra precautions to ensure that the event is properly documented in accordance with Article
23 of the Family Code. A judge is charged with exercising extra care in ensuring that the records of the
cases and official documents in his custody are intact. There is no justification for missing records save
fortuitous events. --- Zenaida S. Beso vs. Juan Daguman, A.M. No. MTJ-99-1211, January 28, 2000

34 | P a g e
Failure of solemnizing officer to send copy of marriage certificate to municipal secretary does not
invalidate marriage.

a) The mere fact that the parish priest who married the plaintiff's natural father and mother, while
the latter was in articulo mortis, failed to send a copy of the marriage certificate to the municipal
secretary, does not invalidate said marriage, since it does not appear that in the celebration thereof all
requisites for its validity were not present, the forwarding of a copy of the marriage certificate not being
one of the requisites." --- Angelita Jones vs. Felix Hortiguela, G.R. No. 43701, March 6, 1937

b) The law, imposing on the priest the duty to furnish to the parties copies of such marriage
certificate and punishing him for its omission implies his obligation to see that such "certificate" is
executed accordingly. Hence, it would not be fair to visit upon the wedded couple in the form of
annulment, the priest’s omission, if any, which apparently had been caused by the prevailing disorder
during the liberation of Manila and its environs.

Arsenio de Loria and Ricarda de Loria vs. Felipe Apelan Felix, G.R. No. L-9005, June 20, 1958

It is the marriage license that gives the solemnizing officer the authority to solemnize a marriage.

It has been held that a marriage which preceded the issuance of the marriage license is void, and that the
subsequent issuance of such license cannot render valid or even add an iota of validity to the marriage.
Except in cases provided by law, it is the marriage license that gives the solemnizing officer the authority
to solemnize a marriage. Respondent judge did not possess such authority when he solemnized the
marriage of petitioner.

Mercedita Mata Arañes vs. Judge Salvador M. Occiano, A.M. No. MTJ-02-1390, April 11, 2002

Venue of Marriage

ARTICLE 8. The marriage shall be solemnized publicly in the chambers of the

judge or in open court, in the church, chapel or temple, or in the
office of the consul-general, consul or vice-consul, as the case may
be, and not elsewhere, except in cases of marriages contracted at the
point of death or in remote places in accordance with Article 29 of
this Code, or where both of the parties request the solemnizing
officer in writing in which case the marriage may be solemnized at a
house or place designated by them in a sworn statement to that
effect. (57a)

Non-compliance with Article 8 of the Family Code will not invalidate marriage.

Article 8 of the Family Code, which is a directory provision, refers only to the venue of the marriage
ceremony and does not alter or qualify the authority of the solemnizing officer. Non-compliance will not
invalidate the marriage. --- Rodolfo G. Navarro vs. Hernando C. Domagtoy, Adm. Matter No. MTJ-96-1088,
July 19, 1996

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Instances when marriage can be held outside the judge's chambers or courtroom.

A marriage can be held outside the judge's chambers or courtroom only in the following instances:

1. at the point of death;

2. in remote places in accordance with Article 29, or

3. upon the request of both parties in writing in a sworn statement to this effect. ---- Zenaida
S. Beso vs. Juan Daguman, A.M. No. MTJ-99-1211, January 28, 2000

Issuance of Marriage License

ARTICLE 9. A marriage license shall be issued by the local civil registrar of the
city or municipality where either contracting party habitually resides, except in
marriages where no license is required in accordance with Chapter 2 of this Title.
(58a)

1. Place of Issuance --- A marriage license is issued by the local civil registrar of the city or
municipality where either contracting party habitually resides. Thus,

a. Issuance in a place other than the habitual residence of either party is a mere
irregularity which does not invalidate the marriage --- Alcantara vs. Alcantar, G.R.
No. 167746, August 28, 2007.

b. In marriages between Filipino citizens abroad, the marriage license is issued by a

consular official of the Philippines (Article 10, FC).

2. Application --- Each of the contracting parties shall file separately a sworn application for
a marriage license with the proper local civil registrar, stating specified personal
information.

ARTICLE 11. Where a marriage license is required, each of the

contracting parties shall file separately a sworn application for such
license with the proper local civil registrar which shall specify the
following:

(1) Full name of the contracting party;

(2) Place of birth;

(3) Age and date of birth;

(4) Civil status;

(5) If previously married, how, when and where the previous

marriage was dissolved or annulled;

(6) Present residence and citizenship;

(7) Degree of relationship of the contracting parties;

36 | P a g e
 (8) Full name, residence and citizenship of the father;

(9) Full name, residence and citizenship of the mother; and

(10) Full name, residence and citizenship of the guardian or person

having charge, in case the contracting party has neither father nor
mother and is under the age of twenty-one years.

The applicants, their parents or guardians shall not be required to

exhibit their residence certificates in any formality in connection with
the securing of the marriage license. (59a)

3. Verification of Age --- Upon receipt of the application, the local civil registrar shall require
the presentation of the original birth certificates or, in default thereof, the baptismal
certificates of the applicants, or duly certified copies thereof (Article 12, FC).

a. If the birth certificate or baptismal certificate or duly certified copy thereof is not
available, the applicant may present in lieu thereof his or her:
i. Current residence certificate; or
ii. A sworn declaration of two witnesses of legal age, stating the full name,
residence, and citizenship of the applicant and his/her parents name, and
the place and date of birth of the applicant.

b. The presentation of birth or baptismal certificate shall not be required if:

i. The parents of the applicants appear personally before the civil registrar
and swear to the correctness of the lawful age of said parties, as stated in
the application, or
ii. The local civil registrar shall, by merely looking at the applicant upon their
personally appearing before him, be convinced that either or both of them
have the required age.

ARTICLE 12. The local civil registrar, upon receiving such application,
shall require the presentation of the original birth certificates or, in
default thereof, the baptismal certificates of the contracting parties or
copies of such documents duly attested by the persons having custody
of the originals. These certificates or certified copies of the documents
required by this Article need not be sworn to and shall be exempt from
the documentary stamp tax. The signature and official title of the
person issuing the certificate shall be sufficient proof of its authenticity.

If either of the contracting parties is unable to produce his birth or

baptismal certificate or a certified copy of either because of the
destruction or loss of the original, or if it is shown by an affidavit of such
party or of any other person that such birth or baptismal certificate has
not yet been received though the same has been required of the person
having custody thereof at least fifteen days prior to the date of the
application, such party may furnish in lieu thereof his current residence
certificate or an instrument drawn up and sworn to before the local civil
registrar concerned or any public official authorized to administer
oaths. Such instrument shall contain the sworn declaration of two
witnesses of lawful age, setting forth the full name, residence and
citizenship of such contracting party and of his or her parents, if known,
and the place and date of birth of such party. The nearest of kin of the

37 | P a g e
 contracting parties shall be preferred as witnesses, or, in their default,
persons of good reputation in the province or the locality.

The presentation of the birth or baptismal certificate shall not be

required if the parents of the contracting parties appear personally
before the local civil registrar concerned and swear to the correctness
of the lawful age of said parties, as stated in the application, or when
the local civil registrar shall, by merely looking at the applicants upon
their personally appearing before him, be convinced that either or both
of them have the required age. (60a)

4. Verification of Status --- In case either of the contracting parties has been previously
married, the applicant shall be required to furnish (instead of the birth or baptismal
certificate) the following:
a. The death certificate of the deceased spouse (in default thereof, the applicant
shall make an affidavit setting forth his or her civil status and the date and place
of death of his spouses), or
b. Judicial decree of annulment, declaration of nullity of marriage, or absolute
divorce.

ARTICLE 13. In case either of the contracting parties has been

previously married, the applicant shall be required to furnish, instead of
the birth or baptismal certificate required in the last preceding article,
the death certificate of the deceased spouse or the judicial decree of
the absolute divorce, or the judicial decree of annulment or declaration
of nullity of his or her previous marriage. In case the death certificate
cannot be secured, the party shall make an affidavit setting forth his
circumstance and his or her actual civil status and the name and date of
death of the deceased spouse. (61a)

5. Legal capacity of the foreigners --- when either or both contracting parties are citizens of
a foreign country, they must submit a certificate of legal capacity to contract marriage,
issued by their respective diplomatic or consular officials. Stateless persons or refugees
shall, in lieu of a certificate of legal capacity, submit an affidavit stating the circumstances
showing their capacity to contract marriage (Article 21, FC)
ARTICLE 21. When either or both of the contracting
parties are citizens of a foreign country, it shall be
necessary for them before a marriage license can be
obtained, to submit a certificate of legal capacity to
contract marriage, issued by their respective diplomatic or
consular officials.
Stateless persons or refugees from other countries shall,
in lieu of the certificate of legal capacity herein required,
submit an affidavit stating the circumstances showing
such capacity to contract marriage. (66a)

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 Certificate of legal capacity is prima facie evidence of alien's legal capacity to
marry.

A duly authenticated and admitted certificate is prima facie evidence of the legal
capacity of an alien applicant for a marriage license. --- Grace J. Garcia vs.
Rederick A. Recio, G.R. No. 138322, October 2, 2001

[A] divorce obtained abroad by an alien may be recognized in our jurisdiction,

provided the decree is valid according to the national law of the foreigner. The
presentation solely of the divorce decree is insufficient; both the divorce decree
and the governing personal law of the alien spouse who obtained the divorce
must be proven. Because our courts do not take judicial notice of foreign laws
and judgment, our law on evidence requires that both the divorce decree and
the national law of the alien must be alleged and proven and like any other fact.
--- Ando v. DFA, G.R. No. 195432, August 27, 2014, citing Garcia v. Recio, G.R. No.
138322, October 02, 2001

Even if we apply the doctrine of processual presumption [Processual

presumption means that where a foreign law is not pleaded or, even if pleaded,
is not proved, the presumption is that foreign law is the same as ours.] . . . the
recognition of divorce is entirely a different matter because, to begin with,
divorce is not recognized between Filipino citizens in the Philippines. Absent a
valid recognition of the divorce decree, it follows that the parties are still legally
married in the Philippines. ---- Noveras v. Noveras, G.R. No. 188289, August 20,
2014

Divorce under the Code of Muslim Personal Laws of the Philippines (P.D. No.
1083) is recognized and binding and severs marriage ties.

6. Parental Consent or Advice --- If applicable, the party must present proof of parental
consent or advice, of marriage counselling.

a. Parental Consent. If a contracting is between 18 to 21 years old, he or she shall

present the consent of his or her father, mother, surviving parent or guardian, or
person having legal charge of him or her, in the said order.

ARTICLE 14. In case either or both of the contracting parties,

not having been emancipated by a previous marriage, are
between the ages of eighteen and twenty-one, they shall, in
addition to the requirements of the preceding articles, exhibit
to the local civil registrar, the consent to their marriage of their
father, mother, surviving parent or guardian, or persons having
legal charge of them, in the order mentioned. Such consent shall
be manifested in writing by the interested party, who
personally appears before the proper local civil registrar, or in
the form of an affidavit made in the presence of two witnesses
and attested before any official authorized by law to administer
oaths. The personal manifestation shall be recorded in both

39 | P a g e
 applications for marriage license, and the affidavit, if one is
executed instead, shall be attached to said applications. (61a)

However, parental consent is not necessary where the party below 21 years old had
already been emancipated by a previous marriage.
Thus, without a parental consent, marriage license should not be issued. If should a
marriage license be issued without parental consent, and the marriage pushes through,
the lack of parent consent would render the marriage VOIDABLE under Article 45[1] of
the Family Code.

b. Parental Advice. If a contracting party is between 21 to 25 years old, he or she

shall ask his or her parents or guardian for advice upon the intended marriage.

ARTICLE 15. Any contracting party between the age of twenty-

one and twenty-five shall be obliged to ask their parents or
guardian for advice upon the intended marriage. If they do not
obtain such advice, or if it be unfavorable, the marriage license
shall not be issued till after three months following the
completion of the publication of the application therefor. A
sworn statement by the contracting parties to the effect that
such advice has been sought, together with the written advice
given, if any, shall be attached to the application for marriage
license. Should the parents or guardian refuse to give any
advice, this fact shall be stated in the sworn statement. (62a)

If such advice is not obtained or is unfavorable, the marriage license shall not be
issued until after three months following the completion of the publication of the
application.
Therefore, noncompliance or lack of the necessary parental advice is a mere
irregularity which would not affect the validity of the marriage.

c. Marriage Counselling. In cases where parental consent or advice is needed (e.g.

at least one of the parties is between 18 to 25 years old), the parties shall undergo
marriage counselling and present a certificate to that effect, issued by a priest,
imam or minister authorized to solemnize marriage, or a government-accredited
marriage counsellor.

ARTICLE 16. In the cases where parental consent or parental

advice is needed, the party or parties concerned shall, in
addition to the requirements of the preceding articles, attach a
certificate issued by a priest, imam or minister authorized to
solemnize marriage under Article 7 of this Code or a marriage
counsellor duly accredited by the proper government agency to
the effect that the contracting parties have undergone
marriage counselling. Failure to attach said certificate of
marriage counselling shall suspend the issuance of the marriage

40 | P a g e
 license for a period of three months from the completion of the
publication of the application.

If the certificate is not submitted, the issuance of the marriage license shall be
suspended for a period of 3 months from the completion of the publication of the
application.
However, noncompliance or lack of the necessary marriage counselling is a mere
irregularity which would not affect the validity of the marriage.

7. Publication. The local civil registrar shall prepare a notice which shall contain the full
names and residences of the applicants and other data given in the applications. The
notice shall be posted for 10 consecutive days outside the office of the Civil Registrar. The
notice shall request all persons having any knowledge of any impediment to the marriage
to advise the local civil registrar thereof.

ARTICLE 17. The local civil registrar shall prepare a notice

which shall contain the full names and residences of the
applicants for a marriage license and other data given in the
applications. The notice shall be posted for ten consecutive
days on a bulletin board outside the office of the local civil
registrar located in a conspicuous place within the building and
accessible to the general public. This notice shall request all
persons having knowledge of any impediment to the marriage
to advise the local civil registrar thereof. The marriage license
shall be issued after the completion of the period of publication.
(63a)

However, noncompliance is a mere irregularity which will not affect the validity of the
marriage --- Alcantara vs. Alcantara, G.R. No. 167746, August 28, 2007.

8. Impediments. In case the local civil registrar knows or is advised of any impediment to
the marriage:

ARTICLE 18. In case of any impediment known to the local

civil registrar or brought to his attention, he shall note down the
particulars thereof and his findings thereon in the application
for a marriage license, but shall nonetheless issue said license
after the completion of the period of publication, unless
ordered otherwise by a competent court at his own instance or
that of any interested party. No filing fee shall be charged for
the petition nor a bond required for the issuance of the order.
(64a)

a. He shall note down the particulars thereof and his findings thereon in the
application, and

41 | P a g e
 b. He shall nonetheless issue the license after the period of the publication, unless
order otherwise by a competent count at his own instance or that of any
interested party --- Note that the civil registrar may be placed in an unusual
position where he applies with the court to issue a restraining order against
himself.

9. Fees. The local civil registrar shall require the payment of the fees prescribed by law or
regulations before the issuance of the marriage license, but no other fee or tax shall be
collected. Indigent parties are exempt.

ARTICLE 19. The local civil registrar shall require the

payment of the fees prescribed by law or regulations before the
issuance of the marriage license. No other sum shall be
collected in the nature of a fee or tax of any kind for the
issuance of said license. It shall, however, be issued free of
charge to indigent parties, that is, those who have no visible
means of income or whose income is insufficient for their
subsistence, a fact established by their affidavit or by their oath
before the local civil registrar. (65a)

10. Issuance. The marriage license shall be issued after the completion of the period of
publication, which in this case is the ten day posting period.

ARTICLE 17. The local civil registrar shall prepare a notice

which shall contain the full names and residences of the
applicants for a marriage license and other data given in the
applications. The notice shall be posted for ten consecutive
days on a bulletin board outside the office of the local civil
registrar located in a conspicuous place within the building and
accessible to the general public. This notice shall request all
persons having knowledge of any impediment to the marriage
to advise the local civil registrar thereof. The marriage license
shall be issued after the completion of the period of publication.
(63a)

11. Validity. The issued license shall be valid for a period of 120 days from the date of its
issuance and can be used in any part of the Philippines. The nonuse within this period
shall render the license automatically cancelled at the expiration of the said 120 day
period. Thus, the marriage license becomes legally non-existent.

ARTICLE 20. The license shall be valid in any part of the

Philippines for a period of one hundred twenty days from the
date of issue, and shall be deemed automatically cancelled at
the expiration of said period if the contracting parties have not

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 made use of it. The expiry date shall be stamped in bold
characters on the face of every license issued. (65a) Should
only one of the contracting parties need parental consent or
parental advice, counselling referred to in the preceding
paragraph. (n)

Marriage based on an expired marriage license is void --- People vs. Edeza (CA) 59 O.G.
562.

ARTICLE 24. It shall be the duty of the local civil registrar to prepare the
documents required by this Title, and to administer oaths to all interested parties
without any charge in both cases. The documents and affidavits filed in
connection with applications for marriage licenses shall be exempt from
documentary stamp tax. (n)

ARTICLE 25. The local civil registrar concerned shall enter all applications
for marriage licenses filed with him in a registry book strictly in the order in which
the same are received. He shall record in said book the names of the applicants,
the date on which the marriage license was issued, and such other data as may
be necessary. (n)

Marriages with Foreign Elements

There are two types of Marriages with Foreign Elements and they are:

I. Marriages Abroad
II. Mixed Marriages

Marriages Abroad:

A. General Rule: The family code provides that all marriages outside of the Philippines, in
accordance with the laws in force in the country where they were solemnize (lex loci
celebrationis), and valid there as such, shall also be valid in the Philippines.

Note that the validity referred to in Article 26, FC, is merely extrinsic validity, i.e.
compliance with the formal requisites. Extrinsic validity is governed by the law of the
place of celebration (refer to Article 17, 1st paragraph of the Civil Code)

ARTICLE 26. All marriages solemnized outside the Philippines in accordance

with the laws in force in the country where they were solemnized, and valid there

43 | P a g e
as such, shall also be valid in this country, except those prohibited under Articles
35 (1), (4), (5) and (6), 36, 37 and 38. (71a)
Where a marriage between a Filipino citizen and a foreigner is validly celebrated
and a divorce is thereafter validly obtained abroad by the alien spouse
capacitating him or her to remarry, the Filipino spouse shall have capacity to
remarry under Philippine law.

The Following are the exceptions:

1. Marriages where a contracting party is under 18 years old (Article 35[1], FC). If the party
under 18 years of age is a foreigner, and he is capacitated to marry under his national law,
the marriage may be recognized as valid here, since the national law governs the status
Condition and capacity of persons (Art. 15, CC).

2. Bigamous or polygamous marriages (Article 35(4), FC). This does not apply to Muslim
males who are allowed by Islamic Law to marry up to four wives under certain conditions
(Muslim Code (PD 1983).

3. Marriages contracted through mistake of one contracting party as to the identity of the
other (Article 35(5), FC).

4. Remarriage without prior compliance with the requirement of delivery of presumptive

legitime (Article 35(6), FC). Thus, if a party who fails to comply is a foreigner, and there is
no such requirement under his national law, the marriage may be recognized as valid
here, since national law governs the status, condition and capacity of persons.

5. Marriages where a contracting party suffers from psychological incapacity (Article 36, FC).

6. Incestuous marriages (Article 37, FC).

7. Marriages which are void by reason of public policy (Article 38, FC).

Note that the exceptions referred to in Article 26, FC, pertains to intrinsic validity, which means
compliance with the essential requisites. Intrinsic validity is governed by the personal law of the
contracting parties --- Coquia and Pangalangan, and not by the law of the place of celebration.
“Personal law” is the set of laws governing the status, condition and capacity of persons. Under
Philippines law, personal law is determined by nationality (lex nationali) although in other
jurisdiction, personal law is determined by domicile. Thus, Philippines law governs the status,
condition and capacity of Philippine nationals, even those living abroad (Article 15, CC).

Mixed Marriages:

General Rule: Where marriages between a Filipino citizen and a foreigner is validly celebrated,
and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to
remarry, the Filipino spouse shall have capacity to remarry under Philippine law (Article 26, FC).

44 | P a g e
Reason: The legislative intent behind this rule is to avoid the absurd situation where the Filipino
spouse remains married to the alien spouse who, after obtaining a divorce, is no longer married
to the Filipino spouses --- Republic vs. Orbecido III, 427 SCRA 114 (2005). Marriage, being a
mutual and shared commitment between two parties, cannot possibly be productive of any good
to the society where one is considered released from the marital bond while the other remains
bound to it --- San Luis vs. San Luis, G.R. NO. 133743, February 6, 2007. Besides, the Filipino
spouse should not be discriminated against his own country.
The rule traces its origin to the 1985 case of Van Dorn vs. Romillo, Jr, G.R. No. L-68470, October
8, 1985, 139 SCRA 139 (before the Family Code) involving a marriage between a Filipino citizen
and a foreigner. The Supreme Court held therein that a divorce decree validly obtained by the
alien spouse is valid in the Philippines, and consequently, the Filipino spouse is capacitated to
remarry under Philippine law. Thus, the same rule (as that in Article 26, second paragraph, FC)
applies, by jurisprudence, even to mixed marriages celebrated and dissolved by divorce prior to
the Family Code --- San Luis vs. San Luis.

Requisites: The following requisites must concur for Article 26, second paragraph of the FC to
be applicable:
1. Valid marriage between a Filipino citizen and a foreigner:

a. The reckoning point of the citizenship of the parties is not the time of celebration
of marriage, but rather the time when the divorce is obtained --- Republic vs.
Orbecido III.

b. Thus, Article 26 applies to a marriage celebrated between two Filipinos, where

one of them is subsequently naturalized as a foreign citizen.

2. Valid divorce obtained by the alien spouse capacitating him or her to remarry:

a. The following must be proven: (a) the fact of divorce; (b) the relevant foreign law
on divorce; (c) the conformity of the divorce to the said foreign law --- Republic vs.
Orbecido III.

b. The “alien spouse” includes a person who was a Filipino at the time of marriage,
but later acquired foreign citizenship. However, naturalization (i) must be proven,
and (ii) must be before the divorce --- Republic vs. Iyoy, 470 SCRA 508 (2005).

c. If it is the Filipino spouse who secure the divorce, Article 26 is not applicable ---
Jorge R. Coquia, Annotation: Pleading and Proving Foreign Law and Judgments,
366 SCRA 457, 462 (2001).

Effect: If the foregoing requisites are present, the Filipino spouse will also be capacitated to
remarry under Philippine Law.

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Cases:

In Republic v. Orbecido III, we spelled out the twin elements for the applicability of the second paragraph
of Art. 26, thus:

1. There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and

2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry.

The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage,
but their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the
latter to remarry. --- Maria Rebecca Makapugay Bayot vs. Court of Appeals, et al., G.R. Nos. 155635 &
163979, November 7, 2008 & Republic of the Phil. vs. Cipriano Orbecido III, G.R. No. 154380, October 5,
2005

The intent of Paragraph 2 of Article 26 is to avoid the absurd situation where the Filipino spouse remains
married to the alien spouse who, after obtaining a divorce, is no longer married to the Filipino spouse. ---
Edgar San Luis vs. Felicidad San Luis, G.R. Nos. 133743 & 134029, February 6, 2007 & Republic of the Phil.
vs. Cipriano Orbecido III, G.R. No. 154380, October 5, 2005 & Alice Reyes Van Dorn vs. Manuel V. Romillo,
Jr., et al., G.R. No. L-68470, October 8, 1985

Through the second paragraph of Article 26 of the Family Code, EO 227 effectively incorporated into the
law this Court's holding in Van Dorn v. Romillo, Jr. and Pilapil v. Ibay-Somera. In both cases, the Court
refused to acknowledge the alien spouse's assertion of marital rights after a foreign court's divorce decree
between the alien and the Filipino. The Court, thus, recognized that the foreign divorce had already
severed the marital bond between the spouses. The legislative intent is for the benefit of the Filipino
spouse, by clarifying his or her marital status, settling the doubts created by the divorce decree.
Essentially, the second paragraph of Article 26 of the Family Code provided the Filipino spouse a
substantive right to have his or her marriage to the alien spouse considered as dissolved, capacitating him
or her to remarry. --- Gerbert R. Corpuz vs. Daisylyn Tirol Sto. Tomas, et al., G.R. No. 186571, August 11,
2010

Without the second paragraph of Article 26 of the Family Code, the judicial recognition of the foreign
decree of divorce, whether in a proceeding instituted precisely for that purpose or as a related issue in
another proceeding, would be of no significance to the Filipino spouse since our laws do not recognize
divorce as a mode of severing the marital bond; Article 17 of the Civil Code provides that the policy against
absolute divorces cannot be subverted by judgments promulgated in a foreign country. The inclusion of
the second paragraph in Article 26 of the Family Code provides the direct exception to this rule and
serves as basis for recognizing the dissolution of the marriage between the Filipino spouse and his or
her alien spouse. --- Gerbert R. Corpuz vs. Daisylyn Tirol Sto. Tomas, et al., G.R. No. 186571, August 11,
2010

An action based on the second paragraph of Article 26 of the Family Code is not limited to the recognition
of the foreign divorce decree. If the court finds that the decree capacitated the alien spouse to remarry,
the courts can declare that the Filipino spouse is likewise capacitated to contract another marriage. No
court in this jurisdiction, however, can make a similar declaration for the alien spouse (other than that
already established by the decree), whose status and legal capacity are generally governed by his national
law. --- Gerbert R. Corpuz vs. Daisylyn Tirol Sto. Tomas, et al., G.R. No. 186571, August 11, 2010

Given the rationale and intent behind the enactment, and the purpose of the second paragraph of Article
26 of the Family Code, the RTC was correct in limiting the applicability of the provision for the benefit of
the Filipino spouse. In other words, only the Filipino spouse can invoke the second paragraph of Article 26
of the Family Code; the alien spouse can claim no right under this provision. --- Gerbert R. Corpuz vs.
Daisylyn Tirol Sto. Tomas, et al., G.R. No. 186571, August 11, 2010

46 | P a g e
47 | P a g e
 Validity of Marriage/s (VOID & VOIDABLE MARRIAGES)

VOID MARRIAGES
I. In General:

A. Validity of marriage in Relation to the Requisites: The validity of a marriage is

generally determined by the presence, absence, defect or irregularity in its
requisites, thus ---

a. A valid marriage requires the presence of all the essential and formal
requisites.

b. The absence of an essential or formal requisite renders the marriage void

ab initio (Article 4, FC).

c. A defect in an essential requisite render the marriage voidable (Article 4,

FC).

d. An irregularity in a formal requisite does not affect the validity of the

marriage but renders the party responsible for the irregularity liable civilly,
criminally and administratively (Article 4, FC).

II. Void and Voidable Marriages: The following are the distinction between void and
voidable marriages as explained by the Supreme Court in the case of Ninal vs.
Bayadog, 328 SCRA 122, 134 (2000), to wit:

a. As to Effect:

i. Void marriage --- considered to have never taken place and cannot be the
source of rights;

ii. Voidable marriage --- valid until annulled by court.

b. As to Ratification:

i. Void marriage --- can never be ratified;

ii. Voidable marriage --- can be ratified by free cohabitation or prescription.

c. As to Attack:

i. Void marriage --- can be attacked collaterally;

ii. Voidable marriage --- can be attacked only in a direct proceeding never
collaterally.

48 | P a g e
d. As to Prescription:

i. Void marriage --- action or defense for declaration of nullity never

prescribes (Article 39, FC)

ARTICLE 39. The action or defense for the declaration of

absolute nullity of a marriage shall not prescribe.

ii. Voidable marriage --- action for annulment prescribes.

e. As to it being attacked during lifetime or even after death:

i. Void marriage --- the action to attack void marriage or question void
marriage during the lifetime of the parties to the said marriage or even
after the death of a party;

ii. Voidable marriage --- can be assailed only during the lifetime of the parties
and not after the death of either spouse of said voidable marriage.

f. As to who can attack the legality of the marriage:

i. Void marriage may be attacked by any interested party;

ii. Voidable marriage may be attacked only by the parties to it.

Note that for marriages under the Family Code, only the aggrieved spouse may file
a petition for annulment of voidable marriages or declaration of absolute nullity
of void marriages --- Section 2(a) of A.M. No. 02-11-10-SC, Rule on Declaration of
Absolute Nullity of Void Marriages and Annulment of Voidable Marriages.
Compulsory or intestate heirs cannot file a petition for declaration of nullity prior
to the death of their predecessor, as their rights are merely inchoate at that time.
However, after the death of their predecessor, such heirs may question the
validity of the marriage in the proceeding for the settlement of the estate of the
deceased spouse ---- Enrico vs. Heirs of Medinaceli, G.R. No. 173614, September
28, 2007.

g. As to legal effect on properties:

i. Void marriage creates no legal effects, except as declared by law

concerning the properties (co-ownership or ownership through actual
joint contribution, Articles 148-149, FC) and legitimacy of children (Articles
50, 51, 53, 54, FC

49 | P a g e
 III. VOID MARRIAGE: IN GENERAL: Void marriages are those which are null and void from
the beginning (ab initio); they are considered never to have taken place. They may be
attacked by any interested party, at any time, in any proceeding (whether direct or
collateral). They are not subject to ratification or prescription.

The nullity of a marriage can always be attributed to the absence of at least one of
the essential and formal requisites. However, it is convenient to group them into five
categories, and they are:

1. Void marriages due to lack of requisite ---- under Article 35, FC

2. Void marriages due to psychological incapacity ---- under Article
36, FC
3. Incestuous marriages ---- under Article 37, FC
4. Marriages against public policy ---- under Article 38, FC
5. Bigamous marriages ---- under Article 41, FC

Fundamentally, the nullity in the last four groups of void marriage can also be
attributed to lack of a requisite --- known as legal capacity. In those cases, there is
some impediment (such as family relations or subsisting marriage) which affects the
capacity to marry.

A. VOID MARRIAGE DUE TO LACK OF REQUISITE:

The absence of an essential or formal requisite renders the marriage void ab initio
(Article 4, FC). Article 35 enumerates some of the marriages which are void for this
reason:

ARTICLE 35. The following marriages shall be void from the

beginning:

(1) Those contracted by any party below eighteen

years of age even with the consent of parents or
guardians;

(2) Those solemnized by any person not legally

authorized to perform marriages unless such
marriages were contracted with either or both
parties believing in good faith that the
solemnizing officer had the legal authority to do
so;

(3) Those solemnized without a license, except those

covered by the preceding Chapter; - with the
exception stated in Articles 27, 28, 33 and 34

ARTICLE 27. In case either or both of the

contracting parties are at the point of death, the

50 | P a g e
 marriage may be solemnized without the necessity of
a marriage license and shall remain valid even if the
ailing party subsequently survives. (72a)

ARTICLE 28. If the residence of either party is so

located that there is no means of transportation to
enable such party to appear personally before the
local civil registrar, the marriage may be solemnized
without the necessity of a marriage license. (72a)

ARTICLE 33. Marriages among Muslims or

among members of the ethnic cultural communities
may be performed validly without the necessity of a
marriage license, provided that they are solemnized
in accordance with their customs, rites or practices.
(78a)

ARTICLE 34. No license shall be necessary for the

marriage of a man and a woman who have lived
together as husband and wife for at least five years
and without any legal impediment to marry each
other. The contracting parties shall state the
foregoing facts in an affidavit before any person
authorized by law to administer oaths. The
solemnizing officer shall also state under oath that he
ascertained the qualifications of the contracting
parties and found no legal impediment to the
marriage. (76a)

(4) Those bigamous or polygamous marriages not

falling under Article 41;
ARTICLE 41. A marriage contracted by any
person during the subsistence of a previous marriage
shall be null and void, unless before the celebration
of the subsequent marriage, the prior spouse had
been absent for four consecutive years and the
spouse present had a well-founded belief that the
absent spouse was already dead. In case of
disappearance where there is danger of death under
the circumstances set forth in the provisions of Article
391 of the Civil Code, an absence of only two years
shall be sufficient.

For the purpose of contracting the subsequent

marriage under the preceding paragraph, the spouse
present must institute a summary proceeding as
provided in this Code for the declaration of
presumptive death of the absentee, without
prejudice to the effect of reappearance of the absent
spouse. (83a)

(5) Those contracted through mistake of one

contracting party as to the identity of the other;
and
a. This refers to mistake as to physical identity, i.e.
there was a substitution of another party for the party
who agreed to the marriage, without the knowledge

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 of the other contracting party --- Alicia Sempio-Diy,
Handbook on the Family Code (1997)

b. Mistake as to character, health, rank, fortune or

chastity of one of the parties does not affect the
validity of the marriage --- Article 46, last paragraph.

(6) Those subsequent marriages that are void under

Article 53.
Those subsequent marriages that are void under
Article 53 (i.e. subsequent marriages where there was
no compliance with the recording requirement of the
judgment of nullity or annulment; partition or
distribution of properties; and the delivery of
presumptive legitimes, to wit:

ARTICLE 52. The judgment of annulment or of

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

ARTICLE 53. Either of the former spouses may

marry again after complying with the requirements of
the immediately preceding Article; otherwise, the
subsequent marriage shall be null and void.

B. VOID MARRIAGE DUE TO PSYCHOLOGICAL INCAPACITY:

The Rule: A marriage contracted by any party who, at the time of the celebration,
was psychologically incapacitated to comply with the essential marital obligations
of marriage, shall be void --- Article 36, FC.

ARTICLE 36. A marriage contracted by any party who, at the

time of the celebration, was psychologically incapacitated to
comply with the essential marital obligations of marriage, shall
likewise be void even if such incapacity becomes manifest only
after its solemnization.

Marriage is entered into for the purpose of establishing conjugal and family life.
This purpose cannot be accomplished if one of the parties is psychologically
incapacitated to comply with the marital obligations.

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Republic vs. Molina (268 SCRA 198)

Re: Article 36, FC – The essential marital obligations must be those embraced by Article 68 – 71 of
the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in
regards to parents and children. The Supreme court set the following guidelines and application of Article
36, FC:

a. The burden of proof to show the nullity of the marriage belongs to the plaintiff.

b. The root cause of the psychological incapacity must be: (1) medically or clinically identified;
(2) alleged in the complaint. (3) sufficiently proven by experts and (4) clearly explained in the
decision.

c. The incapacity must be proven to be existing at ‘the time of the celebration’ of the marriage.

d. Such incapacity must also be shown to be medically or clinically permanent or incurable.

e. Such illness must be grave enough to bring about the disability of the party to assume the
essential obligations of marriage.

f. The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family
Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code
in regard to parents and their children.

g. Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church
in the Philippines, while not controlling or decisive, should be given great respect by our courts.

h. The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear
as counsel for the state. ♦No decision shall be handed down unless the Solicitor General issues
a certification, which will be quoted in the decision, briefly stating therein his reasons for his
agreement or opposition, as the case may be, to the petition.

♦(Note: These Molina guidelines were subsequently modified by the Supreme Court in A.M. No.
02-11-10 – New Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of
Voidable Marriages effective March 15, 2003, more particularly on paragraph nos.( b) (3)
regarding expert testimony and (h)on requirement of certification of the Solicitor General.

Definition: Psychological incapacity is the downright incapacity or inability to take

cognizance of and to assume the basic marital obligations --- Rep. vs. Molina, 268
SCRA 198 (1997). It refers to the most serious cases of personality disorders
clearly demonstrative of an utter insensitivity or inability to give meaning or
significance to the marriage --- Santos vs. CA, 240 SCRA 20, 24 (1995).

Psychological incapacity refers to a mental, not physical, incapacity.

Correlated with existing precepts in our law on marriage, "psychological incapacity"

should refer to no less than a mental (not physical) incapacity that causes a party to be
truly incognitive of the basic marital covenants that concomitantly must be assumed and
discharged by the parties to the marriage which include their mutual obligations to live
together, observe love, respect and fidelity and render help and support. There is hardly

53 | P a g e
any doubt that the intendment of the law has been to confine the meaning of
"psychological incapacity" to the most serious cases of personality disorders clearly
demonstrative of an utter insensitivity or inability to give meaning and significance to the
marriage. This psychological condition must exist at the time the marriage is celebrated.
The law does not evidently envision, upon the other hand, an inability of the spouse to
have sexual relations with the other. This conclusion is implicit under Article 54 of the
Family Code which considers children conceived prior to the judicial declaration of nullity
of the void marriage to be "legitimate." --- Leouel Santos vs. Court of Appeals, G.R. No.
112019, January 4, 1995

We have time and again held that psychological incapacity should refer to no less than
a mental, not physical, incapacity that causes a party to be truly incognitive of the basic
marital covenants that must concomitantly be assumed and discharged by the parties
to the marriage that, as so expressed by Article 68 of the Family Code, include their
mutual obligations to live together, to observe love, respect and fidelity, and to render
help and support. We have also held that the intendment of the law has been to confine
the meaning of psychological incapacity to the most serious cases of personality disorders
clearly demonstrative of an utter insensitivity or inability to give meaning and significance
to the marriage. To qualify as psychological incapacity as a ground for nullification of
marriage, a person's psychological affliction must be grave and serious as to indicate an
utter incapacity to comprehend and comply with the essential objects of marriage,
including the rights and obligations between husband and wife. The affliction must be
shown to exist at the time of marriage, and must be incurable. ---- Arabelle J. Mendoza
vs. Republic of the Phil., et al., G.R. No. 157649, November 12, 2012

"Psychological incapacity," as a ground to nullify a marriage under Article 36 of the Family

Code, should refer to no less than a mental — not merely physical — incapacity that
causes a party to be truly incognitive of the basic marital covenants that concomitantly
must be assumed and discharged by the parties to the marriage which, as so expressed
in Article 68 of the Family Code, among others, include their mutual obligations to live
together, observe love, respect and fidelity and render help and support. There is hardly
any doubt that the intendment of the law has been to confine the meaning of
"psychological incapacity" to the most serious cases of personality disorders clearly
demonstrative of an utter insensitivity or inability to give meaning and significance to
the marriage. --- Republic v. De Gracia, G.R. No. 171557, February 12, 2014

Examples:

Senseless and protracted refusal of a spouse to fulfill marital obligation of procreation

is equivalent to psychological incapacity.

Evidently, one of the essential marital obligations under the Family Code is "to procreate
children based on the universal principle that procreation of children through sexual
cooperation is the basic end of marriage." Constant non-fulfillment of this obligation will
finally destroy the integrity or wholeness of the marriage. Thus, the senseless and
protracted refusal of one of the parties to fulfill the above marital obligation is equivalent
to psychological incapacity. --- Chi Ming Tsoi vs. Court of Appeals, G.R. No. 119190,
January 16, 1997

54 | P a g e
An inveterate pathological liar is unable to commit to the basic tenets of relationship
between spouses.

Respondent is evidently unable to comply with the essential marital obligations as

embraced by Articles 68 to 71 of the Family Code. Article 68, in particular, enjoins the
spouses to live together, observe mutual love, respect and fidelity, and render mutual
help and support. [I]t is difficult to see how an inveterate pathological liar would be able
to commit to the basic tenets of relationship between spouses based on love, trust and
respect. --- Leonilo Antonio vs. Marie Ivonne F. Reyes, G.R. No. 155800, March 10, 2006

Dependent personality disorder makes the marriage void due to psychological

incapacity

In three recent cases --- Te vs. Yu-Te, G.R. NO. 161793, February 13, 2009; Azcueta vs.
Republic, G.R. No. 180668, May 26, 2009; Halili vs. Santos-Halili, G.R. No. 165424, June 9,
2009, the Supreme Court held that marriage with a man suffering form “dependent
personality disorder” is void due to psychological incapacity. This disorder is
characterized by a pattern of dependent and submissive behavior. The patient lacks self-
esteem or self-confidence; is plague by self-doubt; unable to make his own decisions,
dependent on and dominated by other people (such as his parents); insecure, weak and
gullible; has no sense of his identity as a person; has no goals and clear direction in life.

Misrepresentations point to one's own inadequacy to cope with marital obligations,

kindred to psychological incapacity (PATHOLOGICAL LIAR).

Article 45(3) of the Family Code which states that a marriage may be annulled if the
consent of either party was obtained by fraud, and Article 46 which enumerates the
circumstances constituting fraud under the previous article, clarifies that "no other
misrepresentation or deceit as to character, health, rank, fortune or chastity shall
constitute such fraud as will give grounds for action for the annulment of marriage." It
would be improper to draw linkages between misrepresentations made by respondent
and the misrepresentations under Articles 45 (3) and 46. The fraud under Article 45(3)
vitiates the consent of the spouse who is lied to, and does not allude to vitiated consent
of the lying spouse. In this case, the misrepresentations of respondent point to her own
inadequacy to cope with her marital obligations, kindred to psychological incapacity
under Article 36. --- Leonilo Antonio vs. Marie Ivonne F. Reyes, G.R. No. 155800, March
10, 2006.

Article 36 must be read with Articles 35, 37, 38, 41, 45 or 55 to determine the import of
"psychological incapacity."

[I]n determining the import of "psychological incapacity" under Article 36, it must be read
in conjunction with, although to be taken as distinct from Articles 35, 37, 38, and 41 that
would likewise, but for different reasons, render the marriage void ab initio, or Article 45
that would make the marriage merely voidable, or Article 55 that could justify a petition
for legal separation. Care must be observed so that these various circumstances are not
applied so indiscriminately as if the law were indifferent on the matter. Article 36 should
not to be confused with a divorce law that cuts the marital bond at the time the causes
therefor manifest themselves. Neither it is to be equated with legal separation, in which
the grounds need not be rooted in psychological incapacity but on physical violence,

55 | P a g e
moral pressure, moral corruption, civil interdiction, drug addiction, habitual alcoholism,
sexual infidelity, abandonment and the like.

The mere showing of "irreconcilable differences" and "conflicting personalities" does not
constitute psychological incapacity. Nor does failure of the parties to meet their
responsibilities and duties as married persons.
It is essential that the parties to a marriage must be shown to be insensitive to or
incapable of meeting their duties and responsibilities due to some psychological (not
physical) illness, which insensitivity or incapacity should have been existing at the time of
the celebration of the marriage even if it becomes manifest only after its solemnization.
In fine, for psychological incapacity to render a marriage void ab initio, it must be
characterized by: DIETHS
(a) Gravity — It must be grave and serious such that the party would
be incapable of carrying out the ordinary duties required in a marriage;
(b) Juridical Antecedence — It must be rooted in the history of the party
antedating the marriage, although the overt manifestations may emerge
only after the marriage; and
(c) Incurability — It must be incurable, or even if it were
otherwise, the cure would be beyond the means of the party involved.

CHARACTERISTICS OF PSYCHOLOGICAL INCAPACITY:

In fine, for psychological incapacity to render a marriage void ab initio, it must be

characterized by: DIETHS
(a) Gravity — It must be grave and serious such that the party would
be incapable of carrying out the ordinary duties required in a
marriage;

Case references:
Serious psychological illness afflicting a party even before the celebration of the
marriage.

The term "psychological incapacity" to be a ground for the nullity of marriage

under Article 36 of the Family Code, refers to a serious psychological illness
afflicting a party even before the celebration of the marriage. It is a malady so
grave and so permanent as to deprive one of the awareness of the duties and
responsibilities of the matrimonial bond one is about to assume. As all people
may have certain quirks and idiosyncrasies, or isolated characteristics associated
with certain personality disorders, there is hardly any doubt that the intendment
of the law has been to confine the meaning of "psychological incapacity" to the
most serious cases of personality disorders clearly demonstrative of an utter
insensitivity or inability to give meaning and significance to the marriage. It is
for this reason that the Court relies heavily on psychological experts for its
understanding of the human personality. However, the root cause must be
identified as a psychological illness and its incapacitating nature must be fully
explained[.] --- Ma. Armida Perez-Ferraris v. Brix Ferraris, G.R. No. 162368, July
17, 2006 & Republic of the Phil. vs. Laila Tanyag-San Jose, et al., G.R. No. 168328,
February 28, 2007

56 | P a g e
Article 36 contemplates downright incapacity or inability to take cognizance of
and assume the basic marital obligations, not a mere refusal, neglect or
difficulty, much less, ill will, on the part of the errant spouse. As this Court
repeatedly declares, Article 36 of the Family Code is not to be confused with a
divorce law that cuts the marital bond at the time the causes thereof manifest
themselves. It refers to a serious psychological illness afflicting a party even
before the celebration of the marriage. It is a malady so grave and so permanent
as to deprive one of awareness of the duties and responsibilities of the
matrimonial bond one is about to assume. These marital obligations are those
provided under Articles 68 to 71, 220, 221 and 225 of the Family Code. Neither
should Article 36 be equated with legal separation, in which the grounds need
not be rooted in psychological incapacity but on physical violence, moral
pressure, moral corruption, civil interdiction, drug addiction, sexual infidelity, and
abandonment, and the like. At best the evidence presented by petitioner refers
only to grounds for legal separation, not for declaring a marriage void. --- Rosa
Yap Paras vs. Justo J. Paras, G.R. No. 147824, August 2, 2007

Psychological incapacity, in order to be a ground for the nullity of marriage under

Article 36 of the Family Code, refers to a serious psychological illness afflicting a
party even before the celebration of marriage. It is a malady that is so grave
and permanent as to deprive one of awareness of the duties and responsibilities
of the matrimonial bond one is about to assume. As all people may have certain
quirks and idiosyncrasies, or isolated traits associated with certain personality
disorders, there is hardly any doubt that the intention of the law has been to
confine the meaning of psychological incapacity to the most serious cases of
personality disorders clearly demonstrative of an utter insensitivity or inability to
give meaning and significance to the marriage. --- Nilda V. Navales vs. Reynaldo
Navales, G.R. No. 167523, June 27, 2008

Indeed, to be declared clinically or medically incurable is one thing; to refuse or

be reluctant to perform one's duties is another. To hark back to what has been
earlier discussed, psychological incapacity refers only to the most serious cases
of personality disorders clearly demonstrative of an utter insensitivity or inability
to give meaning and significance to the marriage. --- Republic v. De Gracia, G.R.
No. 171557, February 12, 2014

(b) Juridical Antecedence — It must be rooted in the history of the

party antedating the marriage, although the overt manifestations
may emerge only after the marriage; and
The psychological condition must have existed on or before
the marriage is celebrated. Thus, Good and Harmonious
relationship during the early part of the marriage weakens
the assertion of psychological defects existing at the time of
the celebration of the marriage --- Perez-Ferraris vs.
Ferraris, G.R. No. 162368, July 17, 2006, 495 SCRA 396.

The case:

57 | P a g e
 Dr. Gerong found that Martini's "personality disorders"
including his being a "mama's boy" are "serious, grave,
existing already during the adolescent period and
incurable" and concluded that Martini "appeared" to be
dependent upon his family and unable "to establish a
domicile for his family and to support his family".
The doctor's findings and conclusion were derived from
his interview of Lynnette and her sister and Lynnette's
deposition. From Lynnette's deposition, however, it is
gathered that Martini's failure to establish a common life
with her stems from his refusal, not incapacity, to do so.
It is downright incapacity, not refusal or neglect or
difficulty, much less ill will, which renders a marriage
void on the ground of psychological incapacity. In
another vein, how the doctor arrived at the conclusion,
after interviewing Lynnette and considering her
deposition, that any such personality disorders of Martini
have been existing since Martini's adolescent years has
not been explained. It bears recalling that Martini and
Lynnette became pen pals in 1995 and contracted
marriage in 1997 when Martini was already 32 years old,
far removed from adolescent years.
Dr. Gerong's citing of Martini's appointment of his
mother as a beneficiary and his representing himself as
single in his Seafarer Information Sheet, without more,
as indications of Martini's dependence on his family
amounting to his incapacity to fulfill his duties as a
married man does not logically follow, especially given
that the Seafarer's Information Sheet is not even dated
and, therefore, there is no certainty that it was prepared
after Martini contracted marriage.
While the examination by a physician of a person in
order to declare him/her psychological incapacitated is
not required, the root cause thereof must be "medically
or clinically identified". There must thus be evidence to
adequately establish the same. There is none such in the
case at bar, however. --- Ma. Armida Perez-Ferraris vs.
Brix Ferraris, G.R. No. 162368, July 17, 2006 & Republic
of the Phil. vs. Lynnette Cabantug-Baguio, G.R. No.
171042, June 30, 2008

Psychological incapacity refers to a serious

psychological illness afflicting a party even before the
marriage.

The psychological incapacity must exist at the time of the

celebration of the marriage. The burden of proving the
nullity of marriage is on the petitioner. --- Renne Enrique
Bier vs. Ma. Lourdes A. Bier, G.R. No. 173294, February
27, 2008

(c) Incurability — It must be incurable, or even if it were otherwise, the

cure would be beyond the means of the party involved.

58 | P a g e
 The provision on psychological incapacity should be interpreted on a
case-to-case basis.

The Civil Code Revision Committee did not give any examples of psychological
incapacity for fear that the giving of examples would limit the applicability of the
provision under the principle of ejusdem generis. Rather, the Committee would
like the judge to interpret the provision on a case-to-case basis, guided by
experience, the findings of experts and researchers in psychological disciplines,
and by decisions of church tribunals which, although not binding on the civil
courts, may be given persuasive effect since the provision was taken from Canon
Law. --- Joselita Salita vs. Hon. Delilah Magtolis, G.R. No. 106429, June 13, 1994

Guidelines No. 1 in interpretation and application of Art. 36 of the Family Code.

The following guidelines in the interpretation and application of Art. 36 of the Family
Code are handed down for the guidance of the bench and the bar:

(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff.
Any doubt should be resolved in favor of the existence and continuation of the
marriage and against its dissolution and nullity. This is rooted in the fact that both
our Constitution and our laws cherish the validity of marriage and unity of the
family. Thus, our Constitution devotes an entire Article on the Family, recognizing
it "as the foundation of the nation." It decrees marriage as legally "inviolable,"
thereby protecting it from dissolution at the whim of the parties. Both the family
and marriage are to be "protected" by the state.

The Family Code echoes this constitutional edict on marriage and the family and
emphasizes their permanence, inviolability and solidarity.

(2) The root cause of the psychological incapacity must be (a) medically or clinically
identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d)
clearly explained in the decision. Article 36 of the Family Code requires that the
incapacity must be psychological — not physical, although its manifestations
and/or symptoms may be physical. The evidence must convince the court that
the parties, or one of them, was mentally or psychically ill to such an extent that
the person could not have known the obligations he was assuming, or knowing
them, could not have given valid assumption thereof. Although no example of
such incapacity need be given here so as not to limit the application of the
provision under the principle of ejusdem generis, nevertheless such root cause
must be identified as a psychological illness and its incapacitating nature fully
explained. Expert evidence may be given by qualified psychiatrists and clinical
psychologists.

(3) The incapacity must be proven to be existing at "the time of the celebration" of
the marriage. The evidence must show that the illness was existing when the
parties exchanged their "I do's." The manifestation of the illness need not be
perceivable at such time, but the illness itself must have attached at such
moment, or prior thereto.

(4) Such incapacity must also be shown to be medically or clinically permanent or

incurable. Such incurability may be absolute or even relative only in regard to the
other spouse, not necessarily absolutely against every one of the same sex.

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 Furthermore, such incapacity must be relevant to the assumption of marriage
obligations, not necessarily to those not related to marriage, like the exercise of
a profession or employment in a job. Hence, a pediatrician may be effective in
diagnosing illnesses of children and prescribing medicine to cure them but may
not be psychologically capacitated to procreate, bear and raise his/her own
children as an essential obligation of marriage.

(5) Such illness must be grave enough to bring about the disability of the party to
assume the essential obligations of marriage. Thus, "mild characterological
peculiarities, mood changes, occasional emotional outbursts" cannot be accepted
as root causes. The illness must be shown as downright incapacity or inability, not
a refusal, neglect or difficulty, much less ill will. In other words, there is a natal or
supervening disabling factor in the person, an adverse integral element in the
personality structure that effectively incapacitates the person from really
accepting and thereby complying with the obligations essential to marriage.

(6) The essential marital obligations must be those embraced by Articles 68 up to 71

of the Family Code as regards the husband and wife as well as Articles 220, 221
and 225 of the same Code in regard to parents and their children. Such non-
complied marital obligation(s) must also be stated in the petition, proven by
evidence and included in the text of the decision. The same are as to Husband
and Wife:

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

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

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

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

ARTICLE 71. The management of the household shall be the right

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

As to the children:

ARTICLE 220. The parents and those exercising parental

authority shall have with respect to their unemancipated
children or wards the following rights and duties:

(1) To keep them in their company, to support, educate and

instruct them by right precept and good example, and to provide
for their upbringing in keeping with their means; cd

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(2) To give them love and affection, advice and counsel,
companionship and understanding;

(3) To provide them with moral and spiritual guidance,

inculcate in them honesty, integrity, self-discipline, self-reliance,
industry and thrift, stimulate their interest in civic affairs, and
inspire in them compliance with the duties of citizenship;

(4) To enhance, protect, preserve and maintain their

physical and mental health at all times;

(5) To furnish them with good and wholesome educational

materials, supervise their activities, recreation and association
with others, protect them from bad company, and prevent them
from acquiring habits detrimental to their health, studies and
morals;

(6) To represent them in all matters affecting their interests;

(7) To demand from them respect and obedience;

(8) To impose discipline on them as may be required under

the circumstances; and

(9) To perform such other duties as are imposed by law upon

parents and guardians. (316a)

ARTICLE 221. Parents and other persons exercising parental

authority shall be civilly liable for the injuries and damages
caused by the acts or omissions of their unemancipated children
living in their company and under their parental authority subject
to the appropriate defenses provided by law. (2180 (2) a and (4)
a)

ARTICLE 225. The father and the mother shall jointly exercise
legal guardianship over the property of their unemancipated
common child without the necessity of a court appointment. In
case of disagreement, the father's decision shall prevail, unless
there is a judicial order to the contrary.

Where the market value of the property or the annual income of

the child exceeds P50,000, the parent concerned shall be
required to furnish a bond in such amount as the court may
determine, but not less than ten per centum (10%) of the value
of the property or annual income, to guarantee the performance
of the obligations prescribed for general guardians.

A verified petition for approval of the bond shall be filed in the

proper court of the place where the child resides, or, if the child
resides in a foreign country, in the proper court of the place
where the property or any part thereof is situated.

The petition shall be docketed as a summary special proceeding

in which all incidents and issues regarding the performance of the
obligations referred to in the second paragraph of this Article
shall be heard and resolved.

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 The ordinary rules on guardianship shall be merely suppletory
except when the child is under substitute parental authority, or
the guardian is a stranger, or a parent has remarried, in which
case the ordinary rules on guardianship shall apply. (320a)

(7) Interpretations given by the National Appellate Matrimonial Tribunal of the

Catholic Church in the Philippines, while not controlling or decisive, should be given great
respect by our courts. It is clear that Article 36 was taken by the Family Code Revision
Committee from Canon 1095 of the New Code of Canon Law, which became effective in
1983 and which provides:

"The following are incapable of contracting marriage: Those who are

unable to assume the essential obligations of marriage due to causes of
psychological nature."

Since the purpose of including such provision in our Family Code is to harmonize our civil
laws with the religious faith of our people, it stands to reason that to achieve such
harmonization, great persuasive weight should be given to decisions of such appellate
tribunal. Ideally — subject to our law on evidence — what is decreed as canonically
invalid should also be decreed civilly void.

This is one instance where, in view of the evident source and purpose of the Family Code
provision, contemporaneous religious interpretation is to be given persuasive effect.
Here, the State and the Church — while remaining independent, separate and apart from
each other — shall walk together in synodal cadence towards the same goal of protecting
and cherishing marriage and the family as the inviolable base of the nation.

(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor
General to appear as counsel for the state. No decision shall be handed down unless the
Solicitor General issues a certification, which will be quoted in the decision, briefly
stating therein his reasons for his agreement or opposition, as the case may be, to the
petition. The Solicitor General, along with the prosecuting attorney, shall submit to the
court such certification within fifteen (15) days from the date the case is deemed
submitted for resolution of the court. The Solicitor General shall discharge the equivalent
function of the defensor vinculi contemplated under Canon 1095. --- Republic of the
Phil. vs. Court of Appeals and Roridel Olaviano Molina, G.R. No. 108763, February 13,
1997 & Republic of the Phil. vs. Crasus L. Iyoy, G.R. No. 152577, September 21, 2005 &
Veronica Cabacungan Alcazar vs. Rey C. Alcazar, G.R. No. 174451, October 13, 2009

Guideline No. 2 requires testimony of psychiatrist or medical doctor to prove

psychological incapacity.
The wife failed to comply with guideline No. 2 which requires that the root cause of
psychological incapacity must be medically or clinically identified and sufficiently proven
by experts, since no psychiatrist or medical doctor testified as to the alleged psychological
incapacity of her husband. --- Republic of the Phil. vs. Erlinda Matias Dagdag, G.R. No.
109975, February 9, 2001

Exception:

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Examination by physician or psychologist is not a prerequisite for declaration of
psychological incapacity.

Psychological incapacity, as a ground for declaring the nullity of a marriage, may be

established by the totality of evidence presented. There is no requirement, however, that
the respondent should be examined by a physician or a psychologist as a condition sine
qua non for such declaration. ---- Brenda B. Marcos vs. Wilson G. Marcos, G.R. No. 136490,
October 19, 2000

The case ruling:

Article 36 of the Family Code is not to be confused with a divorce law that cuts the
marital bond at the time the causes therefor manifest themselves. It refers to a
serious psychological illness afflicting a party even before the celebration of the
marriage. It is a malady so grave and so permanent as to deprive one of
awareness of the duties and responsibilities of the matrimonial bond one is
about to assume.

The guidelines incorporate the three basic requirements earlier mandated by the
Court in Santos v. Court of Appeals: "psychological incapacity must be
characterized by (a) gravity (b) juridical antecedence, and (c) incurability." The
foregoing guidelines do not require that a physician examine the person to be
declared psychologically incapacitated. In fact, the root cause may be
"medically or clinically identified." What is important is the presence of evidence
that can adequately establish the party's psychological condition. For indeed, if
the totality of evidence presented is enough to sustain a finding of psychological
incapacity, then actual medical examination of the person concerned need not
be resorted to. --- B. Marcos vs. Wilson G. Marcos, G.R. No. 136490, October 19,
2000

[E]ven if the expert opinions of psychologists are not conditions sine qua non in
the granting of petitions for declaration of nullity of marriage, the actual medical
examination of [the husband] was to be dispensed with only if the totality of
evidence presented was enough to support a finding of his psychological
incapacity. This did not mean that the presentation of any form of medical or
psychological evidence to show the psychological incapacity would have
automatically ensured the granting of the petition for declaration of nullity of
marriage. What was essential, we should emphasize herein, was the "presence of
evidence that can adequately establish the party's psychological condition," as
the Court said in Marcos. But where, like here, the parties had the full opportunity
to present the professional and expert opinions of psychiatrists tracing the root
cause, gravity and incurability of the alleged psychological incapacity, then the
opinions should be presented and be weighed by the trial courts in order to
determine and decide whether or not to declare the nullity of the marriages. It
bears repeating that the trial courts, as in all the other cases they try, must always
base their judgments not solely on the expert opinions presented by the parties
but on the totality of evidence adduced in the course of their proceedings. ---
Arabelle J. Mendoza vs. Republic of the Phil., et al., G.R. No. 157649, November
12, 2012

An expert witness would have strengthened the claim of psychological

incapacity.

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 [I]n order that the allegation of psychological incapacity may not be considered a
mere fabrication, evidence other than [the wife's] lone testimony should have
been adduced. While an actual medical, psychiatric or psychological examination
is not a conditio sine qua non to a finding of psychological incapacity, an expert
witness would have strengthened [the wife's] claim of [the husband's] alleged
psychological incapacity. [Her] omission to present one is fatal to her position.
There can be no conclusion of psychological incapacity where there is absolutely
no showing that the "defects" were already present at the inception of the
marriage or that they are incurable. --- Republic of the Phil. vs. Norma Cuison-
Melgar, et al., G.R. No. 139676, March 31, 2006

These are not valid causes to support psychological incapacity:

Habitual alcoholism, sexual infidelity or perversion, and abandonment do not by

themselves constitute psychological incapacity.

Habitual alcoholism, sexual infidelity or perversion, and abandonment do not by

themselves constitute grounds for finding that he is suffering from a psychological
incapacity within the contemplation of the Family Code. It must be shown that these acts
are manifestations of a disordered personality which make private respondent
completely unable to discharge the essential obligations of the marital state, and not
merely due to private respondent’s youth and self-conscious feeling of being handsome.
--- Lucita Estrella Hernandez vs. Court of Appeals, G.R. No. 126010, December 8, 1999

"Irreconcilable differences" and "conflicting personalities" do not constitute

psychological incapacity.

This case is of a husband who is constantly embarrassed by his wife's outbursts and
overbearing ways, who finds his wife's obsession with cleanliness and the tight reign on
his wallet "irritants" and who is wounded by her lack of support and respect for his person
and his position as a Judge. However, these inadequacies do not amount to psychological
incapacity to comply with the essential marital obligations. The totality of the evidence
shows simple case of a married couple drifting apart, becoming strangers to each other,
with the husband consequently falling out of love and wanting a way out. An
unsatisfactory marriage, however, is not a null and void marriage. Mere showing of
"irreconcilable differences" and "conflicting personalities" in no wise constitutes
psychological incapacity. --- Juanita Carating-Siayngco vs. Manuel Siayngco, G.R. No.
158896, October 27, 2004

Sexual infidelity, per se, does not constitute psychological incapacity.

The only essential marital obligation which the husband was not able to fulfill, if any, is
the obligation of fidelity. Sexual infidelity, per se, however, does not constitute
psychological incapacity within the contemplation of the Family Code. It must be shown
that his unfaithfulness is a manifestation of a disordered personality which makes him
completely unable to discharge the essential obligations of the marital state and not
merely due to his ardent wish to have a child of his own flesh and blood. --- Juanita
Carating-Siayngco vs. Manuel Siayngco, G.R. No. 158896, October 27, 2004

Factual Antecedents:

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Sexual infidelity and abandonment of the conjugal dwelling, even if true, do not
necessarily constitute psychological incapacity; these are simply grounds for legal
separation. To constitute psychological incapacity, it must be shown that the
unfaithfulness and abandonment are manifestations of a disordered personality that
completely prevented the erring spouse from discharging the essential marital
obligations.

On August 25, 1979, Cesar married Lolita and the union bore two children, Maricar and
Manny. To support his family, Cesar went to work in Saudi Arabia on May 15, 1984. On
June 12, 1986, Cesar, while still in Saudi Arabia, learned that Lolita had been having an
illicit affair with Alvin Perez. Sometime in 1991, Lolita allegedly left the conjugal home
with her children and lived with Alvin. Since then, Cesar and Lolita had been separated.
On June 16, 1995, Cesar filed with the RTC a petition against Lolita for the declaration of
the nullity of his marriage based on Lolita's psychological incapacity.
Lolita denied that she had an affair with Alvin; she contended that Alvin used to be an
associate in her promotions business. She insisted that she is not psychologically
incapacitated and that she left their home because of irreconcilable differences with her
mother-in-law.
At the trial, Cesar affirmed his allegations of Lolita's infidelity and subsequent
abandonment of the family home. He testified that he continued to provide financial
support for Lolita and their children even after he learned of her illicit affair with Alvin.
Cesar presented the psychological evaluation report on Lolita prepared by Dr. Fareda
Fatima Flores of the National Center for Mental Health. Dr. Flores found that Lolita was
"not suffering from any form of major psychiatric illness[,]" but had been "unable to
provide the expectations expected of her for a good and lasting marital relationship"; her
"transferring from one job to the other depicts some interpersonal problems with co-
workers as well as her impatience in attaining her ambitions"; and "her refusal to go with
her husband abroad signifies her reluctance to work out a good marital and family
relationship."

Court’s Ruling:

In this case, Cesar's testimony failed to prove Lolita's alleged psychological incapacity.
Cesar testified on the dates when he learned of Lolita's alleged affair and her subsequent
abandonment of their home, as well as his continued financial support to her and their
children even after he learned of the affair, but he merely mentioned in passing Lolita's
alleged affair with Alvin and her abandonment of the conjugal dwelling.
In any event, sexual infidelity and abandonment of the conjugal dwelling, even if true,
do not necessarily constitute psychological incapacity; these are simply grounds for
legal separation. To constitute psychological incapacity, it must be shown that the
unfaithfulness and abandonment are manifestations of a disordered personality that
completely prevented the erring spouse from discharging the essential marital
obligations. No evidence on record exists to support Cesar's allegation that Lolita's
infidelity and abandonment were manifestations of any psychological illness.
Cesar mistakenly relied on Dr. Flores' psychological evaluation report on Lolita to prove
her alleged psychological incapacity. The psychological evaluation, in fact, established
that Lolita did not suffer from any major psychiatric illness. Dr. Flores' observation on
Lolita's interpersonal problems with co-workers, to our mind, does not suffice as
a consideration for the conclusion that she was — at the time of her marriage —
psychologically incapacitated to enter into a marital union with Cesar . Aside from
the time element involved, a wife's psychological fitness as a spouse cannot simply be
equated with her professional/work relationship; workplace obligations and
responsibilities are poles apart from their marital counterparts. While both spring from

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human relationship, their relatedness and relevance to one another should be fully
established for them to be compared or to serve as measures of comparison with one
another. To be sure, the evaluation report Dr. Flores prepared and submitted cannot
serve this purpose. Dr. Flores' further belief that Lolita's refusal to go with Cesar abroad
signified a reluctance to work out a good marital relationship is a mere generalization
unsupported by facts and is, in fact, a rash conclusion that this Court cannot support. ---
Republic of the Phil. vs. Cesar Encelan, G.R. No. 170022, January 9, 2013

Sexual infidelity is not sufficient proof of psychological incapacity.

Sexual infidelity, by itself, is not sufficient proof that petitioner is suffering from
psychological incapacity. It must be shown that the acts of unfaithfulness are
manifestations of a disordered personality which make petitioner completely unable to
discharge the essential obligations of marriage. --- Jaime F. Villalon vs. Ma. Corazon N.
Villalon, G.R. No. 167206, November 18, 2005

Sexual infidelity, per se, however, does not constitute psychological incapacity within the
contemplation of the Family Code. Again, petitioner must be able to establish that
respondent's unfaithfulness is a manifestation of a disordered personality, which makes
him completely unable to discharge the essential obligations of the marital state. ---
Veronica Cabacungan Alcazar vs. Rey C. Alcazar, G.R. No. 174451, October 13, 2009

Emotional immaturity and irresponsibility cannot be equated with psychological

incapacity.

Emotional immaturity and irresponsibility cannot be equated with psychological

incapacity. Marriage is an inviolable social institution and the foundation of the family
that the State cherishes and protects. While the Supreme Court commiserates with the
wife in her unhappy marital relationship with her husband, totally terminating that
relationship, however, may not necessarily be the fitting denouement to it. In these cases,
the law has not quite given up, neither should the Court. --- Lorna Guillen Pesca vs. Zosimo
A. Pesca, G.R. No. 136921, April 17, 2001

The medical report failed to show that [the husband's] actions indicated a psychological
affliction of such a grave or serious nature that it was medically or clinically rooted. His
alleged immaturity, deceitfulness and lack of remorse for his dishonesty and lack of
affection did not necessarily constitute psychological incapacity. His inability to share or
to take responsibility or to feel remorse over his misbehavior or to share his earnings with
family members, albeit indicative of immaturity, was not necessarily a medically rooted
psychological affliction that was incurable. Emotional immaturity and irresponsibility did
not equate with psychological incapacity. Nor were his supposed sexual infidelity and
criminal offenses manifestations of psychological incapacity. If at all, they would
constitute a ground only for an action for legal separation under Article 55 of the Family
Code. --- Arabelle J. Mendoza vs. Republic of the Phil., et al., G.R. No. 157649, November
12, 2012

To be tired and give up on one's situation and on one's spouse are not signs of
psychological illness.

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To be tired and give up on one's situation and on one's spouse are not necessarily signs
of psychological illness; neither can falling out of love be so labeled. When these happen,
the remedy for some is to cut the marital knot to allow the parties to go their separate
ways. This simple remedy, however, is not available to us under our laws. Ours is a limited
remedy that addresses only a very specific situation — a relationship where no marriage
could have validly been concluded because the parties; or where one of them, by reason
of a grave and incurable psychological illness existing when the marriage was celebrated,
did not appreciate the obligations of marital life and, thus, could not have validly entered
into a marriage. --- Renato Reyes So v. Valera, G.R. No. 150677, 5 June 2009 & Veronica
Cabacungan Alcazar vs. Rey C. Alcazar, G.R. No. 174451, October 13, 2009

Wife's lack of attention to children, immaturity and lack of "intention of procreative

sexuality" do not constitute psychological incapacity.

Even if taken as true, the husband's testimony basically complains about three aspects of
the wife's personality; namely, her alleged (1) lack of attention to their children, (2)
immaturity and (3) lack of an "intention of procreative sexuality." None of these three,
singly or collectively, constitutes "psychological incapacity." --- Leni O. Choa vs. Alfonso
C. Choa, G.R. No. 143376, November 26, 2002

Immaturity, sexual promiscuity and abandonment do not by themselves constitute

psychological incapacity.

The wife’s sexual infidelity or perversion and abandonment do not by themselves

constitute psychological incapacity within the contemplation of the Family Code. Neither
could her emotional immaturity and irresponsibility be equated with psychological
incapacity. It must be shown that these acts are manifestations of a disordered
personality which make respondent completely unable to discharge the essential
obligations of the marital state, not merely due to her youth, immaturity or sexual
promiscuity. At best, the circumstances relied upon by petitioner are grounds for legal
separation. --- David B. Dedel vs. Court of Appeals, G.R. No. 151867, January 29, 2004

[The wife’s] immaturity alone did not constitute psychological incapacity. To rule that
such immaturity amounted to psychological incapacity, it must be shown that the
immature acts were manifestations of a disordered personality that made the spouse
completely unable to discharge the essential obligations of the marital state, which
inability was merely due to her youth or immaturity. --- Republic of the Phil. vs. CA (Ninth
Division), et al., G.R. No. 159594, November 12, 2012

Psychological defect cannot be presumed from the mere fact of abandonment.

The husband’s act of abandonment was doubtlessly irresponsible but it was never alleged
nor proven to be due to some kind of psychological illness. This could have been done
through an expert witness. Psychological defect cannot be presumed from the mere fact
that he abandoned his family immediately after the celebration of the marriage. As ruled
in Molina, it is not enough to prove that a spouse failed to meet his responsibility and
duty as a married person; it is essential that he must be shown to be incapable of doing
so due to some psychological, not physical, illness. There was no proof of a natal or
supervening disabling factor in the person, an adverse integral element in the personality
structure that effectively incapacitates a person from accepting and complying with the

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obligations essential to marriage. ---- Republic of the Phil. vs. Lolita Quintero-Hamano,
G.R. No. 149498, May 20, 2004

[A]bandonment [of the conjugal home to live with another man] was not one of the
grounds for the nullity of marriage under the Family Code. It did not also constitute
psychological incapacity, it being instead a ground for legal separation under Article 55
(10) of the Family Code. On the other hand, [the wife’s] sexual infidelity was not a valid
ground for the nullity of marriage under Article 36 of the Family Code, considering that
there should be a showing that such marital infidelity was a manifestation of a
disordered personality that made her completely unable to discharge the essential
obligations of marriage. --- Republic of the Phil. vs. CA (Ninth Division), et al., G.R. No.
159594, November 12, 2012

Disagreements on money matters is not a ground to declare a marriage null and void.

While disagreements on money matters would, no doubt, affect the other aspects of
one's marriage as to make the wedlock unsatisfactory, this is not a ground to declare a
marriage null and void. In fact, the Court takes judicial notice of the fact that
disagreements regarding money matters is a common, and even normal, occurrence
between husbands and wives. --- Rodolfo A. Aspillaga vs. Aurora A. Aspillaga, G.R. No.
170925, October 26, 2009

"Psychological incapacity" is not meant to comprehend all possible cases of psychoses.

"Psychological incapacity" under Article 36 of the Family Code is not meant to

comprehend all possible cases of psychoses. It should refer, rather, to no less than a
mental (not physical) incapacity that causes a party to be truly incognitive of the basic
marital covenants that concomitantly must be assumed and discharged by the parties to
the marriage. Psychological incapacity must be characterized by (a) gravity, (b) juridical
antecedence, and (c) incurability. --- Veronica Cabacungan Alcazar vs. Rey C. Alcazar, G.R.
No. 174451, October 13, 2009

Psychological conditions that hamper performance of marital obligations do not mean

that the husband and wife suffer from psychological incapacity.

We cannot see how their personality disorder would render the husband and wife
unaware of the essential marital obligations or to be incognitive of the basic marital
covenants that concomitantly must be assumed and discharged by the parties to a
marriage. The fact that these psychological conditions will hamper their performance of
their marital obligations does not mean that they suffer from psychological incapacity as
contemplated under Article 36 of the Family Code. Mere difficulty is not synonymous to
incapacity. --- Rodolfo A. Aspillaga vs. Aurora A. Aspillaga, G.R. No. 170925, October 26,
2009

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 Art. 36 does not contemplate mere refusal, neglect, difficulty or ill will on the part of the
errant spouse.

The remedy for a marriage that has failed and appears to be without hope of
reconciliation, is not always to have it declared void ab initio on the ground of
psychological incapacity. We stress that Article 36 of the Family Code contemplates
downright incapacity or inability to assume and fulfill the basic marital obligations, not a
mere refusal, neglect or difficulty, much less, ill will, on the part of the errant spouse. It is
not to be confused with a divorce law that cuts the marital bond at the time the grounds
for divorce manifest themselves. The State, fortunately or unfortunately, has not seen it
fit to decree that divorce should be available in this country. Neither should an Article 36
declaration of nullity be equated with legal separation, in which the grounds need not be
rooted in psychological incapacity but on physical violence, moral pressure, moral
corruption, civil interdiction, drug addiction, sexual infidelity, abandonment, and the like.
Unless the evidence presented clearly reveals a situation where the parties or one of
them, by reason of a grave and incurable psychological illness existing at the time the
marriage was celebrated, was incapacitated to fulfill the obligations of marital life (and
thus could not then have validly entered into a marriage), then we are compelled to
uphold the indissolubility of the marital tie. ---Enrique A. Agraviador vs. Erlinda Amparo-
Agraviador, et al., G.R. No. 170729, December 8, 2010

Mismanagement of family finances does not constitute psychological incapacity.

Irresponsibility in managing the family's finances does not rise to the level of a
psychological incapacity required under Article 36 of the Family Code. At most, the wife's
mismanagement of the family's finances merely constituted difficulty, refusal or neglect,
during the marriage, in the handling of funds intended for the family's financial support.
--- Ricardo P. Toring vs. Teresita M. Toring, et al., G.R. No. 165321, August 3, 2010

Things need or need not be pleaded in the petition:

Petition need not allege root cause of psychological incapacity.

Procedural rules apply to actions pending and unresolved at the time of their passage.
The obvious effect of the new Rules providing that "expert opinion need not be alleged"
in the petition is that there is also no need to allege the root cause of the psychological
incapacity. Only experts in the fields of neurological and behavioral sciences are
competent to determine the root cause of psychological incapacity. Since the new Rules
do not require the petition to allege expert opinion on the psychological incapacity, it
follows that there is also no need to allege in the petition the root cause of the
psychological incapacity.

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 Diana M. Barcelona vs. Court of Appeals, G.R. No. 130087, September 24, 2003

Petition alleging physical manifestations indicative of psychological incapacity complies

with the requirement of the new Rules.

Science continues to explore, examine and explain how our brains work, respond to and
control the human body. Scientists still do not understand everything there is to know
about the root causes of psychological disorders. The root causes of many psychological
disorders are still unknown to science even as their outward, physical manifestations are
evident. Hence, what the new Rules require the petition to allege are the physical
manifestations indicative of psychological incapacity. --- Diana M. Barcelona vs. Court
of Appeals, G.R. No. 130087, September 24, 2003

Article 36 is not to be equated with legal separation and divorce

Neither is Article 36 to be equated with legal separation, in which the grounds need not be
rooted in psychological incapacity but on physical violence, moral pressure, moral corruption,
civil interdiction, drug addiction, habitual alcoholism, sexual infidelity, abandonment and the
like. --- Brenda B. Marcos vs. Wilson G. Marcos, G.R. No. 136490, October 19, 2000 & Republic of
the Phil. vs. Lynnette Cabantug-Baguio, G.R. No. 171042, June 30, 2008

Article 36 should not be confused with a divorce law that cuts the marital bond at the time the
causes therefor manifest themselves, nor with legal separation in which the grounds need not
be rooted in psychological incapacity but on physical violence, moral pressure, moral corruption,
civil interdiction, drug addiction, habitual alcoholism, sexual infidelity, abandonment, and the
like. --- Republic of the Phil. vs. Lynnette Cabantug-Baguio, G.R. No. 171042, June 30, 2008

Norms for determining psychological incapacity should apply to any person regardless of
nationality.

In proving psychological incapacity, we find no distinction between an alien spouse and a Filipino
spouse. We cannot be lenient in the application of the rules merely because the spouse alleged
to be psychologically incapacitated happens to be a foreign national. The medical and clinical rules
to determine psychological incapacity were formulated on the basis of studies of human behavior
in general. Hence, the norms used for determining psychological incapacity should apply to any
person regardless of nationality. --- Republic of the Phil. vs. Lolita Quintero-Hamano, G.R. No.
149498, May 20, 2004.

Psychological incapacity justifies judicial declaration freeing the parties from consequences
stemming from the marriage.

The inviolability of marriage depends on whether the marriage exists and is valid. If it is void ab
initio, the "permanence" of the union becomes irrelevant, and the Court can step in to declare it
so. Article 36 of the Family Code is the justification. Where it applies and is duly proven, a judicial
declaration can free the parties from the rights, obligations, burdens and consequences stemming
from their marriage. ----Florence Malcampo-Sin vs. Philipp T. Sin, G.R. No. 137590, March 26,
2001

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 Manifestations of psychological incapacity

The husband's pattern of behavior manifests an inability, nay, a psychological incapacity to

perform the essential marital obligations as shown by his: (1) sporadic financial support; (2)
extra-marital affairs; (3) substance abuse; (4) failed business attempts; (5) unpaid money
obligations; (6) inability to keep a job that is not connected with the family businesses; and (7)
criminal charges of estafa.

Facts of the case:

Petitioner Maria Socorro Camacho-Reyes met respondent Ramon Reyes at the University of the
Philippines (UP), Diliman, in 1972 when they were both nineteen (19) years old. They were simply
classmates then in one university subject when respondent cross-enrolled from the UP Los Baños
campus. The casual acquaintanceship quickly developed into a boyfriend-girlfriend relationship.
Petitioner was initially attracted to respondent who she thought was free spirited and bright,
although he did not follow conventions and traditions. Since both resided in Mandaluyong City,
they saw each other every day and drove home together from the university.
Easily impressed, petitioner enjoyed respondent's style of courtship which included dining out,
unlike other couples their age who were restricted by a university student's budget. At that time,
respondent held a job in the family business, the Aristocrat Restaurant. Petitioner's good
impression of the respondent was not diminished by the latter's habit of cutting classes, not even
by her discovery that respondent was taking marijuana.
Not surprisingly, only petitioner finished university studies, obtaining a degree in AB Sociology
from the UP. By 1974, respondent had dropped out of school on his third year, and just continued
to work for the Aristocrat Restaurant.
On December 5, 1976, the year following petitioner's graduation and her father's death,
petitioner and respondent got married. At that time, petitioner was already five (5) months
pregnant and employed at the Population Center Foundation.
Thereafter, the newlyweds lived with the respondent's family in Mandaluyong City. All living
expenses were shouldered by respondent's parents, and the couple's respective salaries were
spent solely for their personal needs. Initially, respondent gave petitioner a monthly allowance
of P1,500.00 from his salary.
When their first child was born on March 22, 1977, financial difficulties started. Rearing a child
entailed expenses. A year into their marriage, the monthly allowance of P1,500.00 from
respondent stopped. Further, respondent no longer handed his salary to petitioner. When
petitioner mustered enough courage to ask the respondent about this, the latter told her that
he had resigned due to slow advancement within the family business. Respondent's game plan
was to venture into trading seafood in the province, supplying hotels and restaurants, including
the Aristocrat Restaurant. However, this new business took respondent away from his young
family for days on end without any communication. Petitioner simply endured the set up, hoping
that the situation will change.
To prod respondent into assuming more responsibility, petitioner suggested that they live
separately from her in-laws. However, the new living arrangement engendered further financial
difficulty. While petitioner struggled to make ends meet as the single-income earner of the
household, respondent's business floundered. Thereafter, another attempt at business, a
fishpond in Mindoro, was similarly unsuccessful. Respondent gave money to petitioner
sporadically. Compounding the family's financial woes and further straining the parties'
relationship was the indifferent attitude of respondent towards his family. That his business took

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him away from his family did not seem to bother respondent; he did not exert any effort to remain
in touch with them while he was away in Mindoro.
After two (2) years of struggling, the spouses transferred residence and, this time, moved in with
petitioner's mother. But the new set up did not end their marital difficulties. In fact, the parties
became more estranged. Petitioner continued to carry the burden of supporting a family not just
financially, but in most aspects as well.
In 1985, petitioner, who had previously suffered a miscarriage, gave birth to their third son. At
that time, respondent was in Mindoro and he did not even inquire on the health of either the
petitioner or the newborn. A week later, respondent arrived in Manila, acting nonchalantly while
playing with the baby, with nary an attempt to find out how the hospital bills were settled.
In 1989, due to financial reverses, respondent's fishpond business stopped operations. Although
without any means to support his family, respondent refused to go back to work for the family
business. Respondent came up with another business venture, engaging in scrap paper and carton
trading. As with all of respondent's business ventures, this did not succeed and added to the trail
of debt which now hounded not only respondent, but petitioner as well. Not surprisingly, the
relationship of the parties deteriorated.
Sometime in 1996, petitioner confirmed that respondent was having an extra-marital affair. She
overheard respondent talking to his girlfriend, a former secretary, over the phone inquiring if the
latter liked respondent's gift to her. Petitioner soon realized that respondent was not only unable
to provide financially for their family, but he was, more importantly, remiss in his obligation to
remain faithful to her and their family.
One of the last episodes that sealed the fate of the parties' marriage was a surgical operation on
petitioner for the removal of a cyst. Although his wife was about to be operated on, respondent
remained unconcerned and unattentive; and simply read the newspaper, and played dumb when
petitioner requested that he accompany her as she was wheeled into the operating room. After
the operation, petitioner felt that she had had enough of respondent's lack of concern, and asked
her mother to order respondent to leave the recovery room.
Still, petitioner made a string of "final" attempts to salvage what was left of their marriage.
Petitioner approached respondent's siblings and asked them to intervene, confessing that she
was near the end of her rope. Yet, even respondent's siblings waved the white flag on respondent.
Adolfo Reyes, respondent's elder brother, and his spouse, Peregrina, members of a marriage
encounter group, invited and sponsored the parties to join the group. The elder couple scheduled
counseling sessions with petitioner and respondent, but these did not improve the parties'
relationship as respondent remained uncooperative.
In 1997, Adolfo brought respondent to Dr. Natividad A. Dayan for a psychological assessment to
"determine benchmarks of current psychological functioning." As with all other attempts to help
him, respondent resisted and did not continue with the clinical psychologist's recommendation
to undergo psychotherapy.
At about this time, petitioner, with the knowledge of respondent's siblings, told respondent to
move out of their house. Respondent acquiesced to give space to petitioner.
With the de facto separation, the relationship still did not improve. Neither did respondent's
relationship with his children.
Finally, in 2001, petitioner filed (before the RTC) a petition for the declaration of nullity of her
marriage with the respondent, alleging the latter's psychological incapacity to fulfill the essential
marital obligations under Article 36 of the Family Code.
Traversing the petition, respondent denied petitioner's allegations that he was psychologically
incapacitated. Respondent maintained that he was not remiss in performing his obligations to his
family — both as a spouse to petitioner and father to their children.

Ruling of the Court:

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The lack of personal examination and interview of the respondent, or any other person diagnosed
with personality disorder, does not per se invalidate the testimonies of the doctors. Neither do
their findings automatically constitute hearsay that would result in their exclusion as evidence.
For one, marriage, by its very definition, necessarily involves only two persons. The totality of the
behavior of one spouse during the cohabitation and marriage is generally and genuinely
witnessed mainly by the other. In this case, the experts testified on their individual assessment of
the present state of the parties' marriage from the perception of one of the parties, herein
petitioner. Certainly, petitioner, during their marriage, had occasion to interact with, and
experience, respondent's pattern of behavior which she could then validly relay to the clinical
psychologists and the psychiatrist.
For another, the clinical psychologists' and psychiatrist's assessment were not based solely on the
narration or personal interview of the petitioner. Other informants such as respondent's own son,
siblings and in-laws, and sister-in-law (sister of petitioner), testified on their own observations of
respondent's behavior and interactions with them, spanning the period of time they knew him.
These were also used as the basis of the doctors' assessments.
The recent case of Lim v. Sta. Cruz-Lim, citing The Diagnostic and Statistical Manual of Mental
Disorders, Fourth Edition (DSM IV), instructs us on the general diagnostic criteria for personality
disorders:
A. An enduring pattern of inner experience and behavior that deviates markedly
from the expectations of the individual's culture. This pattern is manifested in two
(2) or more of the following areas:
(1) cognition (i.e., ways of perceiving and interpreting self, other people, and
events)
(2) affectivity (i.e., the range, intensity, liability, and appropriateness of
emotional response)
(3) interpersonal functioning
(4) impulse control
B. The enduring pattern is inflexible and pervasive across a broad range of
personal and social situations. D
C. The enduring pattern leads to clinically significant distress or impairment in
social, occupational or other important areas of functioning.
D. The pattern is stable and of long duration, and its onset can be traced back at
least to adolescence or early adulthood.
E. The enduring pattern is not better accounted for as a manifestation or a
consequence of another mental disorder.
F. The enduring pattern is not due to the direct physiological effects of a
substance (i.e., a drug of abuse, a medication) or a general medical condition
(e.g., head trauma).
Specifically, the DSM IV outlines the diagnostic criteria for Antisocial Personality Disorder:
A. There is a pervasive pattern of disregard for and violation of the rights of others
occurring since age 15 years, as indicated by three (or more) of the following:
(1) failure to conform to social norms with respect to lawful behaviors as
indicated by repeatedly performing acts that are grounds for arrest
(2) deceitfulness, as indicated by repeated lying, use of aliases, or conning
others for personal profit or pleasure
(3) impulsivity or failure to plan ahead

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 (4) irritability and aggressiveness, as indicated by repeated physical fights
or assaults
(5) reckless disregard for safety of self or others
(6) consistent irresponsibility, as indicated by repeated failure to sustain
consistent work behavior or honor financial obligations
(7) lack of remorse as indicated by being indifferent to or rationalizing
having hurt, mistreated, or stolen from another
B. The individual is at least 18 years.
C. There is evidence of conduct disorder with onset before age 15 years.
D. The occurrence of antisocial behavior is not exclusively during the course of
schizophrenia or a manic episode.

Within their acknowledged field of expertise, doctors can diagnose the

psychological makeup of a person based on a number of factors culled from
various sources. A person afflicted with a personality disorder will not
necessarily have personal knowledge thereof. In this case, considering that a
personality disorder is manifested in a pattern of behavior, self-diagnosis by the respondent
consisting only in his bare denial of the doctors' separate diagnoses, does not necessarily evoke
credence and cannot trump the clinical findings of experts. --- Ma. Socorro Camacho-Reyes vs.
Ramon Reyes-Reyes, G.R. No. 185286, August 18, 2010

The party who is psychologically incapacitated can file the petition under Article 36 of
the Family Code.

Petitioner Lester Benjamin S. Halili filed a petition to declare his marriage to respondent Chona
M. Santos-Halili null and void on the basis of his psychological incapacity to perform the essential
obligations of marriage in the Regional Trial Court (RTC), Pasig City, Branch 158.
He alleged that he wed respondent in civil rites thinking that it was a "joke". After the ceremonies,
they never lived together as husband and wife, but maintained the relationship. However, they
started fighting constantly a year later, at which point petitioner decided to stop seeing
respondent and started dating other women. Immediately thereafter, he received prank calls
telling him to stop dating other women as he was already a married man. It was only upon making
an inquiry that he found out that the marriage was not "fake". --- Halili vs. Halili, G.R. No. 165424,
June 9, 2009.

The Court a quo can lawfully defer the reception of evidence on matters of
custody, support and property relations after it renders decision granting the
petition.

And the trial judge's decision was not without basis. Judge Reyes-Carpio finds support in
the Court En Banc Resolution in A.M. No. 02-11-10-SC or the Rule on Declaration of
Absolute Nullity of Void Marriages and Annulment of Voidable Marriages. Particularly,
Secs. 19 and 21 of the Rule clearly allow the reception of evidence on custody, support,
and property relations after the trial court renders a decision granting the petition, or
upon entry of judgment granting the petition:
Section 19.Decision. — (1) If the court renders a decision granting the petition, it shall
declare therein that the decree of absolute nullity or decree of annulment shall be issued

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 by the court only after compliance with Articles 50 and 51 of the Family Code as
implemented under the Rule on Liquidation, Partition and Distribution of
Properties. ---- ||| (Yu v. Reyes-Carpio, G.R. No. 189207, [June 15, 2011],
667 PHIL 474-488)

RELATIVITY. Psychological incapacity need not be absolute; it may be relative

only to a particular spouse --- Republic Vs. Molina. Thus, a person declared to be
psychologically incapacitated may still remarry. But the decree of nullity is
supposed to serve as a warning to the public --- Te vs. Yu-Te.

C. VOID MARRIAGES FOR BEING INCESTUOUS (Article 37, FC)

ARTICLE 37. Marriages between the following are incestuous and void from
the beginning, whether the relationship between the parties be legitimate or
illegitimate:
(1) Between ascendants and descendants of any degree; and
(2) Between brothers and sisters, whether of the full or half blood. (81a)

D. VOID MARRIAGES FOR REASONS OF PUBLIC POLICY (Article 38, FC)

ARTICLE 38. The following marriages shall be void from the beginning for reasons of
public policy:
(1) Between collateral blood relatives, whether legitimate or illegitimate, up to the
fourth civil degree;
(2) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
(4) Between the adopting parent and the adopted child;
(5) Between the surviving spouse of the adopting parent and the adopted child;
(6) Between the surviving spouse of the adopted child and the adopter;
(7) Between an adopted child and a legitimate child of the adopter;
(8) Between adopted children of the same adopter; and
(9) Between parties where one, with the intention to marry the other, killed that
other person's spouse or his or her own spouse. (82a)

a. The provision does not require that the victim’s widow/widower conspired
with the killer.
b. The provision does not require criminal conviction of the killer.
c. The provision does require that the killing be “with the intention to marry”
the victim’s spouse; if the killing be by accident or for some other purpose,
the provision does not apply.

The following marriages are no longer made void under the Family Code:

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 1) Between Brother-in-law and Sister-in-law
2) Between Step-brother and Step-sister
3) Between Guardian and ward
4) Between the Adopted child and illegitimate child of the adopter.
5) Between Adopted child of the husband and adopted child of the wife;
6) Parties convicted of adultery or concubinage

E. BIGAMOUS MARRIAGES

General Rule: A marriage contracted by any person during the subsistence of a previous
marriage shall be null and void (Article 41, FC)

ARTICLE 41. A marriage contracted by any person during the

subsistence of a previous marriage shall be null and void, unless before
the celebration of the subsequent marriage, the prior spouse had been
absent for four consecutive years and the spouse present had a well-
founded belief that the absent spouse was already dead. In case of
disappearance where there is danger of death under the circumstances
set forth in the provisions of Article 391 of the Civil Code, an absence of
only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the

preceding paragraph, the spouse present must institute a summary
proceeding as provided in this Code for the declaration of presumptive
death of the absentee, without prejudice to the effect of reappearance
of the absent spouse. (83a)

Need for Judicial Declaration of Nullity. Even if the previous marriage is null and void, its absolute
nullity may be invoked for purposes of remarriage on the basis solely of a final judgment declaring
such previous marriage void (Article 40, FC).

ARTICLE 40. The absolute nullity of a previous marriage may be

invoked for purposes of remarriage on the basis solely of a final
judgment declaring such previous marriage void. (n)

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In other words, a previously married person can only remarry if there is final judgment that the
previous marriage was void.
a. Even if the first marriage is void, if there is no judicial declaration of its nullity, the
subsequent marriage will be considered bigamous and void --- Wiegel vs. Sempio-Diy,
143 SCRA 499 (1986); Carino vs. Carino, 351 SCRA 127 (2001)

Case of Wiegel:

A voidable marriage is deemed valid until set aside by final judgment.

A voidable marriage is considered valid and produces all its civil effects, until it is set
aside by final judgment of a competent court in an action for annulment. Juridically, the
annulment of a marriage dissolves the special contract as if it had never been entered
into but the law makes express provisions to prevent the effects of the marriage from
being totally wiped out. --- Federico C. Suntay vs. Isabel Cojuangco-Suntay, G.R. No.
132524, December 29, 1998 & Arthur Te vs. Court of Appeals, G.R. No. 126746, November
29, 2000 & Salvador S. Abunado vs. People of the Phils., G.R. No. 159218, March 30, 2004
& Engrace Niñal vs. Norma Bayadog, G.R. No. 133778, March 14, 2000 &Mercado vs. Tan,
G.R. No. 137110, August 1, 2000 & Bobis vs. Bobis, G.R. No. 138509, July 31, 2000 &
Wiegel vs. Sempio-Diy, G.R. No. L-53703, August 19, 1986

The spouse who remarries without such prior judicial declaration can be procesuted for
bigamy --- Marvella-Bobis vs. Bobis, 336 SCRA 747 (2000), citing Landicho vs. Relova, 22
SCRA 731 (1968)

Case of Bobis:

No matter how obvious the absence of an element, intervention of courts must be

resorted to.

Article 40 of the Family Code requires a prior judicial declaration of nullity of a previous
marriage before a party may remarry. The clear implication of this is that it is not for the
parties to determine the validity or invalidity of the marriage. Whether or not the first
marriage was void for lack of a license is a matter of defense because there is still no
judicial declaration of its nullity at the time the second marriage was contracted. No
matter how obvious, manifest or patent the absence of an element is, the intervention of
the courts must always be resorted to. That is why Article 40 of the Family Code requires
a "final judgment," which only the courts can render. --- Imelda Marbella-Bobis vs. Isagani
D. Bobis, G.R. No. 138509, July 31, 2000

Legality of marriage is a matter of law and every person is presumed to know the law.

Ignorance of the existence of Article 40 of the Family Code cannot even be successfully
invoked as an excuse. The contracting of a marriage knowing that the requirements of

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 the law have not been complied with or that the marriage is in disregard of a legal
impediment is an act penalized by the Revised Penal Code. The legality of a marriage is a
matter of law and every person is presumed to know the law. --- Imelda Marbella-Bobis
vs. Isagani D. Bobis, G.R. No. 138509, July 31, 2000

Case of Relova:

Only competent courts, not parties themselves, are authorized to judge nullity of
marriage.

Parties to a marriage should not be permitted to judge for themselves its nullity, only
competent courts having such authority. Prior to such declaration of nullity, the validity
of the first marriage is beyond question. A party who contracts a second marriage then
assumes the risk of being prosecuted for bigamy. --- Rolando Landicho vs. Hon. Lorenzo
Relova, G.R. No. L-22579, Feb. 23, 1968

Parties to marriage are not permitted to judge for themselves its nullity.

Parties to the marriage should not be permitted to judge for themselves its nullity, for the
same must be submitted to the judgment of the competent courts and only when the
nullity of the marriage is so declared can it be held as void, and so long as there is no such
declaration the presumption is that the marriage exists for all intents and purposes.
Therefore, he who cohabits with a woman not his wife before the judicial declaration of
nullity of the marriage assumes the risk of being prosecuted for concubinage. ---
Meynardo L. Beltran vs. People of the Phils., G.R. No. 137567, June 20, 2000

Parties to the marriage should not be permitted to judge for themselves its nullity, for the
same must be submitted to the judgment of competent courts and only when the nullity
of the marriage is so declared can it be held as void, and so long as there is no such
declaration the presumption is that the marriage exists. Therefore, he who contracts a
second marriage before the judicial declaration of nullity of the first marriage assumes
the risk of being prosecuted for bigamy. --- Merlinda Cipriano Montañez vs. Lourdes
Tajolosa Cipriano, G.R. No. 181089, October 22, 2012

b. Article 40 applies where the second marriage was contracted after the effectivity of the
Family Code (even if the first marriage was contracted before such effectivity of the FC).

Article 40 applies to remarriages after effectivity of Family Code

regardless of the date of first marriage.

Article 40 is applicable to remarriages entered into after the effectivity of

the Family Code on August 3, 1988 regardless of the date of the first
marriage. Besides, under Article 256 of the Family Code, said Article is
given "retroactive effect insofar as it does not prejudice or impair vested
or acquired rights in accordance with the Civil Code or other laws." This
is particularly true with Article 40, which is a rule of procedure. --- Lupo
Almodiel Atienza vs. Judge Francisco F. Brillantes, Jr., Adm. Matter No.

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 MTJ-92706, March 29, 1995 & Maria Apiag vs. Esmeraldo G. Cantero,
Adm. Matter No. MTJ-95-1070, February 12, 1997

Retroactive application of Article 40 of the Family Code

[A]rticle 40, which is a rule of procedure, should be applied retroactively

because Article 256 of the Family Code itself provides that said "Code
shall have retroactive effect insofar as it does not prejudice or impair
vested or acquired rights." . . . The fact that procedural statutes may
somehow affect the litigants' rights may not preclude their retroactive
application to pending actions. The retroactive application of procedural
laws is not violative of any right of a person who may feel that he is
adversely affected. The reason is that as a general rule, no vested right
may attach to, nor arise from, procedural laws. --- Merlinda Cipriano
Montañez vs. Lourdes Tajolosa Cipriano, G.R. No. 181089, October 22,
2012 citing Jarillo vs. People, G.R. No. 164435, June 29, 2010

c. The Judicial declaration of nullity of the first marriage is a condition precedent only for
purpose of remarriage --- Domingo vs. Court of Appeals, 226 SCRA 572 (1993).

Declaration of absolute nullity of marriage is necessary for purp oses of

remarriage.

The Family Code settled once and for all the conflicting jurisprudence on
whether or not a judicial declaration of a void marriage is necessary for
purposes of remarriage. A declaration of absolute nullity of marriage is
now explicitly required either as a cause of action or a ground for
defense. Where the absolute nullity of a previous marriage is sought to
be invoked for purposes of contracting a second marriage, the sole basis
acceptable in law for said projected marriage to be free from legal
infirmity is a final judgment declaring the previous marriage void. ---
Roberto Domingo vs. Court of Appeals and Delia Soledad Avera, G.R. No.
104818, September 17, 1993

No judicial declaration of absolute nullity is necessary for purposes other than

remarriage.

Other than for purposes of remarriage, no judicial action is necessary to

declare a marriage an absolute nullity. For other purposes, such as but
not limited to determination of heirship, legitimacy or illegitimacy of a
child, settlement of estate, dissolution of property regime, or a criminal
case for that matter, the court may pass upon the validity of marriage
even in a suit not directly instituted to question the same so long as it is
essential to the determination of the case. This is without prejudice to
any issue that may arise in the case. When such need arises, a final
judgment of declaration of nullity is necessary even if the purpose is other

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 than to remarry. The clause "on the basis of a final judgment declaring
such previous marriage void" in Article 40 of the Family Code connotes
that such final judgment need not be obtained only for purpose of
remarriage. --- Engrace Niñal vs. Norma Bayadog, G.R. No. 133778, March
14, 2000

The requirement of securing a judicial declaration of nullity of marriage prior to

contracting a subsequent marriage is found in Article 40 of the Family Code . . .
The reason for the provision was aptly discussed in Teves v. People:

Any person who contracts a second marriage without first having a

judicial declaration of the nullity of his or her first marriage, albeit on its
face void and inexistent for lack of a marriage license, is guilty of bigamy
as defined and penalized by Article 349 of the Revised Penal Code.

. . . The Family Code has settled once and for all the
conflicting jurisprudence on the matter. A declaration of
the absolute nullity of a marriage is now explicitly
required either as a cause of action or a ground for
defense. Where the absolute nullity of a previous
marriage is sought to be invoked for purposes of
contracting a second marriage, the sole basis acceptable
in law for said projected marriage to be free from legal
infirmity is a final judgment declaring the previous
marriage void.

The Family Law Revision Committee and the Civil Code Revision
Committee which drafted what is now the Family Code of the Philippines
took the position that parties to a marriage should not be allowed to
assume that their marriage is void even if such be the fact but must first
secure a judicial declaration of the nullity of their marriage before they
can be allowed to marry again.

In fact, the requirement for a declaration of absolute nullity of a

marriage is also for the protection of the spouse who, believing that his
or her marriage is illegal and void, marries again. With the judicial
declaration of the nullity of his or her marriage, the person who marries
again cannot be charged with bigamy.

In numerous cases, this Court has consistently held that a judicial

declaration of nullity is required before a valid subsequent marriage can
be contracted; or else, what transpires is a bigamous marriage,
reprehensible and immoral.

If petitioner's contention would be allowed, a person who commits

bigamy can simply evade prosecution by immediately filing a petition for
the declaration of nullity of his earlier marriage and hope that a
favorable decision is rendered therein before anyone institutes a
complaint against him. We note that in petitioner's case the complaint
was filed before the first marriage was declared a nullity. It was only the
filing of the Information that was overtaken by the declaration of nullity
of his first marriage. Following petitioner's argument, even assuming
that a complaint has been instituted, such as in this case, the offender
can still escape liability provided that a decision nullifying his earlier

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 marriage precedes the filing of the Information in court. Such cannot be
allowed. To do so would make the crime of bigamy dependent upon the
ability or inability of the Office of the Public Prosecutor to immediately
act on complaints and eventually file Informations in court. Plainly,
petitioner's strained reading of the law is against its simple letter. ----
Lasanas v. People, G.R. No. 159031, June 23, 2014, citing Teves v. People,
G.R. No. 188775, August 24, 2011

However, no judicial decree of nullity is needed when marriage took place and
all children were born before Wiegel vs. Sempio-Diy and before effectivity of
Family Code.

A marriage though void still needs a judicial declaration of such fact

before any party thereto can marry again; otherwise, the second
marriage will also be void. This was expressly provided under Article 40
of the Family Code. However, if the marriage took place and all the
children were born before the promulgation of Wiegel vs. Sempio-Diy
(August 19, 1986) and before the effectivity of the Family Code, the
doctrine in Odayat vs. Amante (June 2, 1977), that no judicial decree is
necessary to establish the invalidity of void marriages, applies. --- Maria
Apiag vs. Esmeraldo G. Cantero, Adm. Matter No. MTJ-95-1070, February
12, 1997

For other purposes, no judicial action is necessary to declare a marriage an absolute

nullity (i.e. direct attack is not necessary) such as in the following cases:

a. Determination of heirship
b. Determination of legitimacy or illegitimacy of a child
c. Settlement of estate
d. Dissolution of property regime
e. Criminal case

For these other purposes, the court may pass upon the validity of the marriage even in a
suit not directly instituted to question the validity of said marriage, so long as it is essential
to the determination of the case --- Carino vs. Carino, 351 SCRA 127, 138

d. Although judicial declaration of nullity is required only for purpose of remarriage, it does
not mean that such judicial declaration can only be sought in that connection. A person
has the option to ask for such judicial declaration even for other purposes, e.g., a spouse
who wants a separation of properties based on the nullity of marriage --- Domingo vs.
Court of Appeals, 226 SCRA 572 (1993).

Domingo vs. CA (226 SCRA 572)

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 Re: Article 40, FC – Petition for declaration of nullity of marriage
for being bigamous may be filed by aggrieved spouse even if the purpose
is not to remarry. The law (Article 40) did not say: “The absolute nullity
of a previous marriage may be invoked solely for purposes of
remarriages”. Thus, marriage may be declared void for the purpose of
liquidation, partition, distribution and separation of property between
erstwhile spouses.

Exception to the rule that marriage during the subsistence of a previous marriage is void is
that in case the spouse of the previous marriage had been absent and is presumptively dead.

A second marriage is bigamous while the first subsists. However,

a
bigamous subsequent marriage may be considered valid
when the following are present:

1) The prior spouse had been absent for four consecutive years;
2) The spouse present has a well-founded belief that the absent
spouse was already dead;
3) There must be a summary proceeding for the declaration of
presumptive death of the absent spouse; and
4) There is a court declaration of presumptive death of the absent
spouse. --Santos v. Santos, G.R. No. 187061, October 8, 2014

A subsequent marriage contracted in bad faith, even if it was contracted

after a court declaration of presumptive death, lacks the requirement
of a well-founded belief that the spouse is already dead. The first
marriage will not be considered as validly terminated. Marriages
contracted prior to the valid termination of a subsisting marriage are
generally considered bigamous and void. Only a subsequent marriage
contracted in good faith is protected by law. Therefore, the party who
contracted the subsequent marriage in bad faith is also not immune from
an action to declare his subsequent marriage void for being bigamous.
The prohibition against marriage during the subsistence of another
marriage still applies. ---- Santos v. Santos, G.R. No. 187061, October 8,
2014

If . . . [the husband] was in bad faith when he filed his petition to declare
her presumptively dead and when he contracted the subsequent
marriage, such marriage would be considered void for being bigamous
under Article 35 (4) of the Family Code. This is because the circumstances
lack the element of "well-founded belief" under Article 41 of the Family
Code, which is essential for the exception to the rule against bigamous
marriages to apply. --- Santos v. Santos, G.R. No. 187061, October 8, 2014

Conditions before a subsequent bigamous marriage may be deemed valid.

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 Under the 1988 Family Code, in order that a subsequent bigamous marriage may
exceptionally be considered valid, the following conditions must concur; viz.: (a) The prior
spouse of the contracting party must have been absent for four consecutive years, or
two years where there is danger of death under the circumstances stated in Article 391
of the Civil Code at the time of disappearance; (b) the spouse present has a well-founded
belief that the absent spouse is already dead; and (c) there is, unlike the old rule, a
judicial declaration of presumptive death of the absentee for which purpose the spouse
present can institute a summary proceeding in court to ask for that declaration. The last
condition is consistent and in consonance with the requirement of judicial intervention in
subsequent marriages as so provided in Article 41, in relation to Article 40, of the Family
Code. --- Antonia Armas vs. Marietta Calisterio, G.R. No. 136467, April 6, 2000

Belief of the present spouse must be the result of proper and honest-to-goodness
inquiries and efforts.
The belief of the present spouse must be the 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. Whether or not the spouse present acted
on a well-founded belief of death of the absent spouse depends upon the inquiries to be
drawn from a great many circumstances occurring before and after the disappearance
of the absent spouse and the nature and extent of the inquiries made by present spouse.
--- Republic of the Phil. vs. Court of Appeals, et al., G.R. No. 159614, December 9, 2005

I. The spouse present must institute a summary proceeding for the declaration
of presumptive death of the absentee spouse, without prejudice to the effect
of reappearance of the absent spouse (Article 41). The requirement for
judicial declaration of presumptive death supersedes previous jurisprudence
to the contrary.

Declaration of presumptive death is necessary for validity of subsequent marriage.

Even if the spouse present has a well-founded belief that the absent spouse was already
dead, a summary proceeding for the declaration of presumptive death is necessary in
order to contract a subsequent marriage, a mandatory requirement which has been
precisely incorporated into the Family Code to discourage subsequent marriages where
it is not proven that the previous marriage has been dissolved or a missing spouse is
factually or presumptively dead, in accordance with pertinent provisions of law. ---
Rodolfo G. Navarro vs. Hernando C. Domagtoy, Adm. Matter No. MTJ-96-1088, July 19,
1996 & Republic of the Phil. vs. Robert P. Narceda, G.R. No. 182760, April 10, 2013

Judicial declaration of absence is not necessary when prescribed period of absence is

met.

A judicial declaration of absence of the absentee spouse is not necessary as long as the
prescribed period of absence is met. It is equally noteworthy that the marriage in these
exceptional cases are, by the explicit mandate of Article 83 of the Civil Code, to be deemed
valid "until declared null and void by a competent court." --- Antonia Armas vs. Marietta
Calisterio, G.R. No. 136467, April 6, 2000

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A judgment of the presumptive death of the absent spouse is required for the benefit of
the spouse present and of the State.

The requirement for a judgment of the presumptive death of the absent spouse is for the
benefit of the spouse present, as protection from the pains and the consequences of a
second marriage, precisely because he/she could be charged and convicted of bigamy if
the defense of good faith based on mere testimony is found incredible. The requirement
of judicial declaration is also for the benefit of the State. Under Article II, Section 12 of the
Constitution, the "State shall protect and strengthen the family as a basic autonomous
social institution." Marriage is a social institution of the highest importance. Public policy,
good morals and the interest of society require that the marital relation should be
surrounded with every safeguard and its severance only in the manner prescribed and
the causes specified by law. The laws regulating civil marriages are necessary to serve the
interest, safety, good order, comfort or general welfare of the community and the parties
can waive nothing essential to the validity of the proceedings. A civil marriage anchors an
ordered society by encouraging stable relationships over transient ones; it enhances the
welfare of the community. --- Eduardo P. Manuel vs. People of the Phil., G.R. No. 165842,
November 29, 2005

Only with a declaration by a competent court of the presumptive death of an absent

spouse can marriage be treated as so dissolved as to permit second marriages.

The consequences of an invalid marriage to the parties, to innocent parties and to society,
are so serious that the law may well take means calculated to ensure the procurement of
the most positive evidence of death of the first spouse or of the presumptive death of the
absent spouse after the lapse of the period provided for under the law. One such means
is the requirement of the declaration by a competent court of the presumptive death of
an absent spouse as proof that the present spouse contracts a subsequent marriage on a
well-grounded belief of the death of the first spouse. Indeed, "men readily believe what
they wish to be true," is a maxim of the old jurists. To sustain a second marriage and to
vacate a first because one of the parties believed the other to be dead would make the
existence of the marital relation determinable, not by certain extrinsic facts, easily
capable of forensic ascertainment and proof, but by the subjective condition of
individuals. Only with such proof can marriage be treated as so dissolved as to permit
second marriages. --- Eduardo P. Manuel vs. People of the Phil., G.R. No. 165842,
November 29, 2005

[A] petition for declaration of presumptive death of an absent spouse for the purpose of
contracting a subsequent marriage under Article 41 of the Family Code is a summary
proceeding "as provided for" under the Family Code. . . . Taken together, Articles 41, 238,
247 and 253 of the Family Code provide that since a petition for declaration of
presumptive death is a summary proceeding, the judgment of the court therein shall be
immediately final and executory. . . . In sum, under Article 41 of the Family Code, the
losing party in a summary proceeding for the declaration of presumptive death may file
a petition for certiorari with the CA on the ground that, in rendering judgment thereon,
the trial court committed grave abuse of discretion amounting to lack of jurisdiction.
From the decision of the CA, the aggrieved party may elevate the matter to this Court via
a petition for review on certiorari under Rule 45 of the Rules of Court. --- Republic of the
Phil. vs. Yolanda Cadacio Granada, G.R. No. 187512, June 13, 2012

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 The Family Code provides that it is the proof of absence of a spouse for four consecutive
years, coupled with a well-founded belief by the present spouse that the absent spouse
is already dead, that constitutes a justification for a second marriage during the
subsistence of another marriage. --- Santos v. Santos, G.R. No. 187061, October 8, 2014

II. The Judicial declaration of presumptive death is necessary to avoid a charge of Bigamy
for without such judicial declaration, the second marriage is bigamous even if
contracted in good faith --- Manuel vs. People, 476 SCRA 461 (2005)

Among legal consequences of void marriages is incurring criminal liability for bigamy.

Although the judicial declaration of the nullity of a marriage on the ground of psychological
incapacity retroacts to the date of the celebration of the marriage insofar as the vinculum
between the spouses is concerned, it is significant to note that said marriage is not without
legal effects. Among these effects is that children conceived or born before the judgment of
absolute nullity of the marriage shall be considered legitimate. There is therefore a
recognition written into the law itself that such a marriage, although void ab initio, may still
produce legal consequences. Among these legal consequences is incurring criminal liability
for bigamy. To hold otherwise would render the State's penal laws on bigamy completely
nugatory, and allow individuals to deliberately ensure that each marital contract be flawed in
some manner, and to thus escape the consequences of contracting multiple marriages, while
beguiling throngs of hapless women with the promise of futurity and commitment. ---
Veronico Tenebro vs. Court of Appeals, G.R. No. 150758, February 18, 2004

Manuel vs. People (476 SCRA 461)

Re: Article 41, FC – Bigamy is committed if second marriage is contracted before

absent first spouse was judicially declared presumptively dead pursuant to Article 41, FC in
relation to Article 349, Revised Penal Code.

Without a judicial declaration of nullity of void marriage, one may be convicted of bigamy.

A judicial declaration of nullity of a void marriage is now necessary before one can contract a
second marriage. Absent that declaration, one may be charged with, and convicted of,
bigamy. --- Vincent Paul G. Mercado vs. Consuelo Tan, G.R. No. 137110, August 1, 2000

This Court has consistently held that a judicial declaration of nullity is required before a valid
subsequent marriage can be contracted; or else, what transpires is a bigamous marriage,
which is void from the beginning as provided in Article 35 (4) of the Family Code of the
Philippines.

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There is no question that the documentary evidence submitted by petitioner are all public
documents. As provided in the Civil Code:
ART. 410.The books making up the civil register and all documents
relating thereto shall be considered public documents and shall be prima
facie evidence of the facts therein contained.

As public documents, they are admissible in evidence even without further proof of their
due execution and genuineness. Thus, the RTC erred when it disregarded said documents on
the sole ground that the petitioner did not present the records custodian of the NSO who
issued them to testify on their authenticity and due execution since proof of authenticity
and due execution was not anymore necessary. Moreover, not only are said documents
admissible, they deserve to be given evidentiary weight because they constitute prima facie
evidence of the facts stated therein. And in the instant case, the facts stated therein remain
unrebutted since neither the private respondent nor the public prosecutor presented
evidence to the contrary.

This Court has consistently held that a judicial declaration of nullity is required before a valid
subsequent marriage can be contracted; or else, what transpires is a bigamous marriage,
which is void from the beginning as provided in Article 35 (4) of the Family Code of the
Philippines. And this is what transpired in the instant case.
As correctly pointed out by the OSG, the documentary exhibits taken together concretely
establish the nullity of the marriage of petitioner to private respondent on the ground that
their marriage is bigamous. The exhibits directly prove the following facts: (1) that private
respondent married Arambulo on June 20, 1994 in the City of Manila; (2) that private
respondent contracted a second marriage this time with petitioner on November 28, 2002 in
Pasay City; (3) that there was no judicial declaration of nullity of the marriage of private
respondent with Arambulo at the time she married petitioner; (3) that Arambulo died on July
14, 2009 and that it was only on said date that private respondent's marriage with Arambulo
was deemed to have been dissolved; and (4) that the second marriage of private respondent
to petitioner is bigamous, hence null and void, since the first marriage was still valid and
subsisting when the second marriage was contracted. --- Iwasawa v. Gangan, G.R. No. 204169,
September 11, 2013
[R]espondent's clear intent is to obtain a judicial declaration of nullity of his first marriage and
thereafter to invoke that very same judgment to prevent his prosecution for bigamy. He
cannot have his cake and eat it too. Otherwise, all that an adventurous bigamist has to do is
disregard Article 40 of the Family Code, contract a subsequent marriage and escape a bigamy
charge by simply claiming that the first marriage is void and that the subsequent marriage is
equally void for lack of a prior judicial declaration of nullity of the first. A party may even enter
into a marriage aware of the absence of a requisite — usually the marriage license — and
thereafter contract a subsequent marriage without obtaining a declaration of nullity of the
first on the assumption that the first marriage is void. Such scenario would render nugatory
the provision on bigamy. --- Merlinda Cipriano Montañez vs. Lourdes Tajolosa Cipriano, G.R.
No. 181089, October 22, 2012 citing Jarillo vs. People, G.R. No. 164435, June 29, 2010

When crime of bigamy had been consummated, declaration of nullity of second marriage
on ground of psychological incapacity is of no moment.

A declaration of the nullity of the second marriage on the ground of psychological incapacity
is of absolutely no moment insofar as the State's penal laws are concerned. Article 349 of the
Revised Penal Code penalizes the mere act of contracting a second or a subsequent marriage
during the subsistence of a valid marriage. Thus, as soon as the second marriage was
celebrated during the subsistence of the valid first marriage, the crime of bigamy had already

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been consummated. There is no cogent reason for distinguishing between a subsequent
marriage that is null and void purely because it is a second or subsequent marriage, and a
subsequent marriage that is null and void on the ground of psychological incapacity, at least
insofar as criminal liability for bigamy is concerned. The State's penal laws protecting the
institution of marriage are in recognition of the sacrosanct character of this special contract
between spouses, and punish an individual's deliberate disregard of the permanent character
of the special bond between spouses. --- Veronico Tenebro vs. Court of Appeals, G.R. No.
150758, February 18, 2004

Outcome of annulment case had no bearing upon the criminal case for bigamy.

The outcome of the civil case for annulment of petitioner's marriage to private respondent
had no bearing upon the determination of petitioner's innocence or guilt in the criminal case
for bigamy, because all that is required for the charge of bigamy to prosper is that the first
marriage be subsisting at the time the second marriage is contracted. Under the law, a
marriage, even one which is void or voidable, shall be deemed valid until declared otherwise
in a judicial proceeding. --- Arthur Te vs. Court of Appeals, G.R. No. 126746, November 29,
2000

Subsequent judicial declaration of the nullity of first marriage is immaterial if bigamy had
been consummated.

Under the law, a marriage, even one which is void or voidable, shall be deemed valid until
declared otherwise in a judicial proceeding. Thus, even if the husband eventually obtained a
declaration that his first marriage was void ab initio, the point is, both the first and the second
marriage were subsisting before the first marriage was annulled. The subsequent judicial
declaration of the nullity of the first marriage was immaterial because prior to the declaration
of nullity, the crime had already been consummated. Moreover, the husband’s assertion
would only delay the prosecution of bigamy cases considering that an accused could simply
file a petition to declare his previous marriage void and invoke the pendency of that action as
a prejudicial question in the criminal case. The outcome of the civil case for annulment of
petitioner’s marriage to his first wife had no bearing upon the determination of his innocence
or guilt in the criminal case for bigamy, because all that is required for the charge of bigamy
to prosper is that the first marriage be subsisting at the time the second marriage is
contracted. --- Salvador S. Abunado vs. People of the Phils., G.R. No. 159218, March 30, 2004

NO PREJUDICIAL QUESTION TO CONCUBINAGE & BIGAMY

Pendency of case for declaration of nullity is not a prejudicial question to concubinage case.

The pendency of the case for declaration of nullity of petitioner's marriage is not a prejudicial
question to the concubinage case. For a civil case to be considered prejudicial to a criminal
action as to cause the suspension of the latter pending the final determination of the civil
case, it must appear not only that the said civil case involves the same facts upon which the
criminal prosecution would be based, but also that in the resolution of the issue or issues
raised in the aforesaid civil action, the guilt or innocence of the accused would necessarily be
determined. --- Meynardo L. Beltran vs. People of the Phils., G.R. No. 137567, June 20, 2000.

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 Pendency of annulment case does not give rise to a prejudicial question.

Parties to a marriage should not be permitted to judge for themselves its nullity, for this must
be submitted to the judgment of competent courts and only when the nullity of a marriage is
so declared can it be held as void, and so long as there is no such declaration the presumption
of marriage exists. The pendency of the civil case for annulment did not give rise to a
prejudicial question which warranted the suspension of the proceedings in the criminal case
for bigamy since at the time of the alleged commission of the crime, the marriage was, under
the law, still valid and subsisting. --- Arthur Te vs. Court of Appeals, G.R. No. 126746,
November 29, 2000

Remarriage of abandoned spouse, not of deserting spouse, is contemplated under Art. 83

(a) of Civil Code.

The first exception (when the absent spouse has not been heard from for seven consecutive
years and the present spouse has no news that he/she is alive) under Art. 83 of the Civil Code
on illegality of subsequent marriages, refers to the subsequent marriage of the abandoned
spouse and not the remarriage of the deserting spouse, after the period of seven years has
lapsed. --- Nenita Bienvenido vs. Court of Appeals, G.R. No. 111717, October 24, 1994

Declaration of nullity of previous marriage does not validate second marriage.

It does not follow that since the marriage of petitioner and the deceased is declared void ab initio, the
"death benefits" would now be awarded to respondent Susan Yee. To reiterate, under Article 40 of the
Family Code, for purposes of remarriage, there must first be a prior judicial declaration of the nullity of a
previous marriage, though void, before a party can enter into a second marriage, otherwise, the second
marriage would also be void. Accordingly, the declaration in the instant case of nullity of the previous
marriage of the deceased and petitioner Susan Nicdao does not validate the second marriage of the
deceased with respondent Susan Yee. The fact remains that their marriage was solemnized without first
obtaining a judicial decree declaring the marriage of petitioner Susan Nicdao and the deceased void.
Hence, the marriage of respondent Susan Yee and the deceased is, likewise, void ab initio. --- Susan Nicdao
Cariño vs. Susan Yee Cariño, G.R. No. 132529, February 2, 2001

No judicial declaration of nullity is needed when parties merely signed a marriage contract on their own.

The mere private act of signing a marriage contract, without a marriage ceremony performed by a duly
authorized solemnizing officer, bears no semblance to a valid marriage. Thus, it needs no judicial
declaration of nullity. Such act alone, without more, cannot be deemed to constitute an ostensibly valid
marriage for which petitioner might be held liable for bigamy unless he first secures a judicial declaration
of nullity before he contracts a subsequent marriage. --- Lucio C. Morigo vs. People of the Phils., G.R. No.
145226, February 6, 2004

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 TERMINATION OF THE SUBSEQUENT MARRIAGE

The subsequent marriage shall be automatically terminated by the recording of the

affidavit of reappearance of the absent spouse (Article 42, FC).

However, the subsequent marriage will not be terminated if there is also a judgment
annulling the previous marriage or declaring it void ab initio (Article 42, FC).

ARTICLE 42. The subsequent marriage referred to in the preceding

Article shall be automatically terminated by the recording of the
affidavit of reappearance of the absent spouse, unless there is a
judgment annulling the previous marriage or declaring it void ab initio.

A sworn statement of the fact and circumstances of reappearance shall

be recorded in the civil registry of the residence of the parties to the
subsequent marriage at the instance of any interested person, with due
notice to the spouses of the subsequent marriage and without prejudice
to the fact of reappearance being judicially determined in case such fact
is disputed. (n)

Note that the Affidavit of Reappearance may be filed by any interested person, and that
the termination of the subsequent marriage is not necessary --- SSS vs. Bailon, G.R. No. `65545,
March 24, 2006, wherein it is provided that under the Civil Code, the subsequent marriage is
terminated by final judgment of annulment in a case instituted by the absent spouse who
reappears or by either of the spouses in the subsequent marriage.

If the absentee reappears, but no step is taken to terminate the subsequent marriage
(either by affidavit of reappearance or by court action), such reappearance, even if made known
to the spouses in the subsequent marriage, will not terminate such marriage. The presumption
that the absentee is dead continues, in spite of his or her reappearance, and by fiction of law, he
or she is still regarded as an absentee, until the subsequent marriage is terminated as provided
by law.

If the subsequent marriage is terminated due to the death of either spouse of he

subsequent marriage (i.e. before it was annulled by affidavit of reappearance or court action), its
validity can no longer be questioned.

EFFECT OF TERMINATION OF THE SUBSEQUENT MARRIAGE

A. The children of the subsequent marriage conceived prior to its termination shall be
considered legitimate (Article 43, par. 1, FC)

B. The absolute community of property or the conjugal partnership shall be dissolved and
liquidated (Article 43, par. 2, FC)

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 But if either spouse contracted said marriage in bad faith, his or her share of the net profits
shall be forfeited in favor of ---

a. The common children or

b. If there are none, the children of the guilty spouse by a previous marriage or
c. In default of children, the innocent spouse

C. Donations by reasons of marriage shall remain valid (Article 43, par. 3, FC)

- But if the donee contracted the marriage in bad faith, such donations made to said
donee are revoked by operation of law (Article 43, par. 3, FC)

D. The innocent spouse may revoke the designation of the other spouse who acted in bad faith
as beneficiary in any insurance policy, even if the designation is irrevocable (Article 43, par.
4, FC)

E. The spouse who contracted the subsequent marriage in bad faith shall be disqualified to
inherit from the innocent spouse by testate and intestate succession (Article 43, par. 5, FC)

ARTICLE 43. The termination of the subsequent marriage referred to in the

preceding Article shall produce the following effects:

(1) The children of the subsequent marriage conceived prior to its termination shall
be considered legitimate, and their custody and support in case of dispute shall be
decided by the court in a proper proceeding;

(2) The absolute community of property or the conjugal partnership, as the case
may be, shall be dissolved and liquidated, but if either spouse contracted said marriage
in bad faith, his or her share of the net profits of the community property or conjugal
partnership property shall be forfeited in favor of the common children or, if there are
none, the children of the guilty spouse by a previous marriage or in default of children,
the innocent spouse;

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

(4) The innocent spouse may revoke the designation of the other spouse who acted
in bad faith as a beneficiary in any insurance policy, even if such designation be
stipulated as irrevocable; and

(5) The spouse who contracted the subsequent marriage in bad faith shall be
disqualified to inherit from the innocent spouse by testate and intestate succession. (n)

F. However, if both parties are in bad faith, the following shall be the effect:

i. The marriage shall be void ab initio under Article 44, FC, thus:

- The effects on the personal and property relations of the spouses as well as their
children will be those of void marriages
- All donations by reason of marriage and testamentary disposition made by one in
favor of the other are revoked by operation of law (Article 44, FC)

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

Summary of Articles 40, 41 and 44:

The following are VOID second marriage:

(1) Marriage without judicial declaration of nullity of previous void marriage (Article 40);
(2) Marriage without judicial declaration of presumptive death of absent spouse (Article 41);
(3) Marriage where the spouse was presumed dead, and both the present spouse and would be
spouse were in bad faith in contracting marriage (Article 44).

The Family Code is silent as to who can file a petition to declare the nullity of a marriage. A petition for
declaration of absolute nullity of void marriage may be filed solely by the husband or wife;

Exceptions.

Only the party who can demonstrate a "proper interest" can file an action to declare the absolute nullity
of a marriage.

The Family Code is silent as to who can file a petition to declare the nullity of a marriage.

Article 47 of the Family Code cannot be applied even by analogy to petitions for declaration of nullity of
marriage. The second ground for annulment of marriage relied upon by the trial court, which allows "the
sane spouse" to file an annulment suit "at any time before the death of either party" is inapplicable. Article
47 pertains to the grounds, periods and persons who can file an annulment suit, not a suit for declaration
of nullity of marriage. The Code is silent as to who can file a petition to declare the nullity of a marriage. -
--- Engrace Niñal vs. Norma Bayadog, G.R. No. 133778, March 14, 2000

A petition for declaration of absolute nullity of void marriage may be filed solely by the husband or wife;

Exceptions.

Section 2, paragraph (a), of A.M. No. 02-11-10-SC (Rule on Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable Marriages) explicitly provides the limitation that a petition for
declaration of absolute nullity of void marriage may be filed solely by the husband or wife. Such limitation
demarcates a line to distinguish between marriages covered by the Family Code and those solemnized
under the regime of the Civil Code. Specifically, A.M. No. 02-11-10-SC extends only to marriages covered
by the Family Code, which took effect on August 3, 1988, but, being a procedural rule that is prospective
in application, is confined only to proceedings commenced after March 15, 2003. The following actions
for declaration of absolute nullity of a marriage are excepted from the limitation, to wit:

1. Those commenced before March 15, 2003, the effectivity date of A.M. No. 02-11-10-SC; and

2. Those filed vis-à-vis marriages celebrated during the effectivity of the Civil Code and, those
celebrated under the regime of the Family Code prior to March 15, 2003. ---- Isidro Ablaza vs.

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 Republic of the Phil., G.R. No. 158298, August 11, 2010, citing Carlos v. Sandoval, G.R. No.
179922, December 16, 2008

The Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages (A.M.
No. 02-11-10-SC) does not apply in a petition to recognize a foreign judgment relating to the status of a
marriage where one of the parties is a citizen of a foreign country. Moreover, in Juliano-Llave v. Republic
(G.R. No. 169766, March 30, 2011), this Court held that the rule in A.M. No. 02-11-10-SC that only the
husband or wife can file a declaration of nullity or annulment of marriage "does not apply if the reason
behind the petition is bigamy. . . .

To hold that A.M. No. 02-11-10-SC applies to a petition for recognition of foreign judgment would mean
that the trial court and the parties should follow its provisions, including the form and contents of the
petition, the service of summons, the investigation of the public prosecutor, the setting of pre-trial, the
trial and the judgment of the trial court. This is absurd because it will litigate the case anew. It will defeat
the purpose of recognizing foreign judgments, which is "to limit repetitive litigation on claims and issues."
--- Minoru Fujiki vs. Maria Paz Galela Marinay, et al., G.R. No. 196049, June 26, 2013

Only the party who can demonstrate a "proper interest" can file an action to declare the absolute nullity
of a marriage.

The old and new Civil Codes contain no provision on who can file a petition to declare the nullity of a
marriage, and when. It is clarified, however, that the absence of a provision in the old and new Civil Codes
cannot be construed as giving a license to just any person to bring an action to declare the absolute nullity
of a marriage. The plaintiff must still be the party who stands to be benefited by the suit, or the party
entitled to the avails of the suit, for it is basic in procedural law that every action must be prosecuted
and defended in the name of the real party in interest. Thus, only the party who can demonstrate a
"proper interest" can file the action. The omission to implead the wife and daughter was not immediately
fatal to the present action, however, considering that Section 11, Rule 3, Rules of Court, states that neither
misjoinder nor non-joinder of parties is a ground for the dismissal of an action. The petitioner can still
amend his initiatory pleading in order to implead her, for under the same rule, such amendment to
implead an indispensable party may be made "on motion of any party or on (the trial court's) own initiative
at any stage of the action and on such terms as are just." --- Isidro Ablaza vs. Republic of the Phil., G.R.
No. 158298, August 11, 2010, citing Carlos v. Sandoval, G.R. No. 179922, December 16, 2008

Although the wife's refusal to be examined or failure to appear in court show indifference on her part,
yet from such attitude the presumption arising out of the suppression of evidence could not arise or be
inferred, because women of this country are by nature coy, bashful and shy and would not submit to a
physical examination unless compelled to by competent authority. This the court may do, without doing
violence to and infringing upon her constitutional right. A physical examination in this case is not self-
incrimination. She is not charged with any offense. She is not being compelled to be a witness against
herself. Impotency being an abnormal condition should not be presumed. The presumption is in favor of
potency. The lone testimony of the husband that his wife is physically incapable of sexual intercourse is
insufficient to tear asunder the ties that have bound them together as husband and wife. --- Joel Jimenez
vs. Remedios Cañizares, G.R. No. L-12790, August 31, 1960

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 VOIDABLE MARRIAGES

ARTICLE 45. A marriage may be annulled for any of the following

causes, 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 but below twenty-one, and
the marriage was solemnized without the consent of the parents,
guardian or person having substitute parental 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 husband and
wife;

(2) That either party was of unsound mind, unless such party, after
coming to reason, freely cohabited with the other as husband and wife;

(3) That the consent of either party was obtained by fraud, unless
such party afterwards, with full knowledge of the facts constituting the
fraud, freely cohabited with the other as husband and wife;

(4) That the consent of either party was obtained by force,

intimidation or undue influence, unless the same having disappeared or
ceased, such party thereafter freely cohabited with the other as
husband and wife;

(5) That either party was physically incapable of consummating the

marriage with the other, and such incapacity continues and appears to
be incurable; or

(6) That either party was afflicted with a sexually-transmissible

disease found to be serious and appears to be incurable. (85a)

A. In General: Voidable marriages are those which may be annulled, but are considered valid
until they are annulled. They may be ratified. Their validity may be attacked only in a
direct action, and only by the parties to the marriage. The action must be brought within
a certain prescriptive period.

To render a marriage, voidable, the ground for annulment must have existed at the time
of marriage (Article 45, FC)

Distinguish Annulment from legal separation

1. Annulment – ground existed at the time of marriage.

Legal Separation – ground arose after the celebration of the marriage.

2. Annulment – terminates the marital bond, so that the parties can remarry again.
Legal Separation – does not terminate the marital bond, parties remain married to
each other but allowed to stay in separate beds.

3. Annulment – cannot be set aside.

Legal Separation – may be terminated by the reconciliation of the parties.

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 Distinction between "annul" and "null and void".

The terms "annul" and "null and void" have different legal connotations and
implications. Annul means to reduce to nothing; annihilate; obliterate; to make
void or of no effect; to nullify; to abolish; to do away with, whereas null and void
is something that does not exist from the beginning. A marriage that is annulled
presupposes that it subsists but later ceases to have legal effect when it is
terminated through a court action. But in nullifying a marriage, the court simply
declares a status or condition which already exists from the very beginning. ---
Federico C. Suntay vs. Isabel Cojuangco-Suntay, G.R. No. 132524, December 29,
1998

Annulment of marriage cannot destroy its juridical consequences.

The annulment of the marriage by the court abolishes the legal character of the
society formed by the putative spouses, but it cannot destroy the juridical
consequences which the marital union produced during its continuance. --- Sy Joc
Lieng vs. Petronila Encarnacion, G.R. No. 4718, March 19, 1910
A voidable marriage cannot be assailed collaterally.

[A] voidable marriage cannot be assailed collaterally except in a direct proceeding.

Consequently, such marriages can be assailed only during the lifetime of the
parties and not after the death of either, in which case the parties and their
offspring will be left as if the marriage had been perfectly valid. Upon the death of
either, the marriage cannot be impeached, and is made good ab initio. --- SSS vs.
Teresita Jarque Vda. de Bailon, G.R. No. 165545, March 24, 2006

A voidable marriage can be assailed only by its parties.

Only the parties to a voidable marriage can assail it---- Engrace Niñal vs. Norma
Bayadog, G.R. No. 133778, March 14, 2000

B. Grounds for Annulment: The following are the grounds for annulment. Note that these
grounds generally vitiate the consent of the party entitled to seek annulment. Note also
that these grounds must have existed at the time of the marriage (not after).

a. Lack of Parental Consent. The party in whose behalf annulment is sought was
above 18 years old but below 21 years old, and the marriage was solemnized
without parental consent (Article 45[1], FC).

i. May be ratified if such party, after attaining the age of 21, freely cohabited
with the other and both lived together as husband and wife (Article 45[1],
FC)

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

have the marriage annulled was eighteen years of age

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 or over but below twenty-one, and the marriage was
solemnized without the consent of the parents,
guardian or person having substitute parental 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 husband and wife;

ii. The parents who did not give their consent cannot ratify the marriage by
giving their consent after the marriage --- according to Sempio-Diy.

b. Insanity. Either party was of unsound mind (Article 45[2], FC)

i. May be ratified if the insane party, after coming to reason, freely

cohabited with the other as husband and wife (Article 45[2], FC)

(2) That either party was of unsound mind, unless

such party, after coming to reason, freely cohabited
with the other as husband and wife;

- The same party cannot ratify, based on the

assumption that he or she knew of the insanity , and
is estopped to raise it – Tolentino 291. However, if
the sane party did not know of the insanity, he or
she may ask for annulment as long as he or she and
the insane party are alive, under Article 47(2) FC

Article 47 (2) For causes mentioned in number 2 of

Article 45, by the sane spouse who had no knowledge of
the other's insanity; by any relative, guardian or person
having legal charge of the insane, at any time before
the death of either party; or by the insane spouse
during a lucid interval or after regaining sanity;

ii. Insanity as a ground for annulment is a vice of consent. Psychological

incapacity as a ground of nullity is not a vice consent; it is lack of capacity.

iii. Mere mental weakness, if it does not deprive the party of capacity to
understand the consequences of marriage, is not a ground for annulment
– Tolentino 291.

iv. Intoxication and somnambulism, if they amount to lack of mental ability to

give consent, may be considered insanity.

Other forms of psychoses merely render marriage contract voidable.

The other forms of psychoses, if existing at the inception of marriage, like the state of a
party being of unsound mind or concealment of drug addiction, habitual alcoholism,
homosexuality or lesbianism, merely renders the marriage contract voidable pursuant

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 to Article 46, Family Code. ---- Leouel Santos vs. Court of Appeals, G.R. No. 112019,
January 4, 1995

c. Fraud. The consent of either party was obtained by fraud (Article 45(3), FC)

i. May be ratified if the defrauded party afterwards, with full knowledge of

the facts constituting the fraud, freely cohabited with the other as husband
and wife (Article 45[3], FC)

(3) That the consent of either party was obtained by fraud,

unless such party afterwards, with full knowledge of the facts
constituting the fraud, freely cohabited with the other as
husband and wife;

ii. There is fraud when, through insidious words or machinations of one of

the contracting parties, the other party is induced to enter into the
marriage which, without them, he would not have agreed to (Article 1338,
CC)

1. Not all kinds of fraud are considered grounds for annulment. Fraud
for purposes of annulment of marriage, is limited to the following
instances (Article 46, FC)

ARTICLE 46. Any of the following circumstances

shall constitute fraud referred to in number 3 of the
preceding Article:

(1) Non-disclosure of a previous conviction by final

judgment of the other party of a crime involving moral
turpitude;

(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;

(3) Concealment of a sexually-transmissible disease,

regardless of its nature, existing at the time of the
marriage; or

(4) Concealment of drug addiction, habitual alcoholism,

homosexuality or lesbianism existing at the time of the
marriage.

No other misrepresentation or deceit as to character,

health, rank, fortune or chastity shall constitute such fraud
as will give grounds for action for the annulment of
marriage. (86a)

2. Non-disclosure of a previous conviction by final judgment of the

other party of a crime involving moral turpitude --- penalty for the
conviction is immaterial.

3. Concealment by wife of the fact that at the time of the marriage,

she was pregnant by a man other than her husband, to wit:

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Concealment by the wife of the fact that at the time of the
marriage, she was pregnant (4 months) by a man other than her
husband constitutes fraud and is ground for annulment of
marriage.

The wife was alleged to be only more than four months pregnant
at the time of her marriage. According to medical authorities, even
on the 5th month of pregnancy, the enlargement of a woman's
abdomen is still below the umbilicus, that is to say, the
enlargement is limited to the lower part of the abdomen so that it
is hardly noticeable and may, if noticed, be attributed only to fat
formation on the lower part of the abdomen. It is only on the 6th
month of pregnancy that the enlargement of the woman's
abdomen reaches a height above the umbilicus, making the
roundness of the abdomen more general and apparent. If, as
claimed by husband, the wife is "naturally plump", he could hardly
be expected to know, merely by looking, whether or not she was
pregnant at the time of their marriage, more so because she must
have attempted to conceal the true state of affairs. --- Fernando
Aquino vs. Conchita Delizo, G.R. No. L-15853, July 27, 1960

a. Where the pregnancy was already at an advance stage

at the time of marriage, there’s no fraud as the wife’s
condition should have been obvious to the husband ---
Buccat vs. Mangonon, 72 Phil. 19 (1941), to wit:

There is no fraud when the wife was already in the 7th

month of pregnancy at the time of marriage.
In an action for the annulment of marriage on the ground
of fraud, the husband's claim that he did not even
suspect the pregnancy of the defendant was held to be
unbelievable, it having been proven that the latter was
already in an advanced stage of pregnancy (7th month)
at the time of their marriage. --- Godofredo Buccat vs.
Luida Mangonon de Buccat, G.R. No. 47101, April 25,
1941

b. If the wife was pregnant by her husband, there is no

ground for annulment, even if the latter did not know it
at the time of marriage.

c. If the wife was formerly a prostitute, or promiscuous, or

had borne a child by another man before the marriage,
there is still no ground for annulment. The husband
should have investigated her wife’s background ---
Sempio-Diy, 76-77

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 Non-disclosure of premarital relationship is not one of
grounds for annulment.

Non-disclosure of a husband's pre-marital relationship

with another woman is not one of the enumerated
circumstances that would constitute a ground for
annulment; and it is further excluded by the last
paragraph of the article, providing that "no other
misrepresentation or deceit as to . . . chastity" shall give
ground for an action to annul a marriage. While a woman
may detest such non-disclosure of premarital lewdness
or feel having been thereby cheated into giving her
consent to the marriage, nevertheless the law does not
assuage her grief after her consent was solemnly given,
for upon marriage she entered into an institution in
which society, and not herself alone, is interested. ---
Aurora A. Anaya vs. Fernando O. Palaroan, G.R. No. L-
27930, November 26, 1970

4. Concealment of sexually transmissible disease (STD), regardless of

its nature, existing at the time of the marriage; or

a) The STC need not be serious or incurable;

as long it was concealed, it is a ground for
annulment as fraud.

b) On the other hand, if the STD was serious

and incurable even if it was not concealed,
it is an independent ground fro annulment
under Article 45(6), FC

(6) That either party was afflicted with a

sexually-transmissible disease found to
be serious and appears to be incurable.
(85a)

5. Concealment of drug addiction, habitual alcoholism or

homosexuality or lesbianism existing at the time of the marriage.

- If there is not concealment of the foregoing causes, the

marriage cannot be annulled. However, they may be
considered grounds for legal separation --- Almelor vs. RTC of
Las Pinas City, G.R. No. 179620, August 26, 2008.

Concealment of homosexuality is the proper ground to annul

a marriage, not homosexuality per se.

The law is clear — a marriage may be annulled when the

consent of either party was obtained by fraud, such as
concealment of homosexuality ---- (Almelor v. Regional Trial
Court of Las Piñas City, G.R. No. 179620, [August 26, 2008], 585
PHIL 439-461)

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d. Duress. The consent of either party was obtained by force, intimidation or undue
influence (Article 45[4], FC)

A. May be ratified if the aggrieved party freely cohabited with the other as
husband and wife, after the duress has disappeared (Article 45[4], FC)

(4) That the consent of either party was obtained by force, intimidation or
undue influence, unless the same having disappeared or ceased, such party
thereafter freely cohabited with the other as husband and wife;

B. Force – there is violence when in order to wrest consent, serious or irresistible

force is employed (Article 1335, CC)

C. Intimidation – when one of the contracting parties is compelled to give his

consent by a reasonable and well-grounded fear of an imminent and grave evil
upon his person or property, or upon the person or property of his descendant
or ascendant (Article 1335, CC)

i. To determine the degree of intimidation, the age, sex, and condition of

the person shall be borne in mind (Article 1335, CC)

ii. The threat to enforce one’s claim through competent authority, if one’s
claim is just and legal, does not vitiate consent (Article 1335, CC)

- Thus, a threat to file a case for immorality against a bar candidate if

he does not marry a girl he had sex with, does not vitiate consent –
Ruiz vs. Atienza, CA, 40 O.G. 1903

D. Undue influence – when a person takes improper advantage of his power over
the will of another depriving the latter of a reasonable power of choice (Article
1337, CC)

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 i. The following circumstances shall be considered: the confidential, family,
spiritual and other relations between the parties, or the fact that the
person alleged to have been unduly influenced was suffering from
mental weakness, or was ignorant or in financial distress (Article 1337)

ii. This refers to a situation where a contracting party was compelled by

“reverential fear, i.e. fear of causing distress, disappointment or anger
on the part of one whom a person has been condition to revere, respect,
or obey out of a special debt of gratitude, like his parents, grandparents,
godparents, employer, etc. --- Sempio-Diy 69-70”

E. Duress (force, intimidation or undue influence), as a ground for annulment,

may be caused by either one of the contracting parties, or a third party (Article
1336)

F. The duress must be of such a nature as to prevent the victim from acting as
free agent --- Tolentino 291.

e. Impotence. Either party was physically incapable of consummating the marriage

with the other and such incapacity continues and appears to be incurable (Article
45[5], FC)

i. Cannot be ratified.
ii. Sterility is different from impotence, and is not a ground for annulment.
iii. The impotence must be continuing – it must have existed at the time of
marriage and continues to exist at the time the action for annulment is
filed.
iv. The impotence must be incurable – if it can be cured by proper treatment
or surgery, it cannot be a ground for annulment.
v. The impotence must be unknown to the party suing for annulment at the
time of the marriage --- thus, if the impotent party was already very old at
the time of the marriage, the other party may be estopped from asking for
annulment.
vi. The impotence must not be mutual --- the impotence plaintiff could not
have expected to copulate with an impotent defendant. Only the potent
party, as the aggrieved one, has the right to sue for annulment.
vii. The impotence may be relative only, i.e. a party is incapable of copulating
with his or her spouse, but not necessarily with other persons.
viii. Potency is presumed, and the party alleging impotence has the burden of
proving it. The court may order the defendant to submit to physical
examination to test potency --- Jimenez vs. Canizares, G.R. L-12790, August
30, 1960.

Article 45 (5) of the Family Code refers to lack of power to copulate.

Article 45 (5) of the Family Code refers to lack of power to copulate.

Incapacity to consummate denotes the permanent inability on the part
of the spouses to perform the complete act of sexual intercourse. Non-

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 consummation of a marriage may be on the part of the husband or of the
wife and may be caused by a physical or structural defect in the anatomy
of one of the parties or it may be due to chronic illness and inhibitions or
fears arising in whole or in part from psychophysical conditions. It may be
caused by psychogenic causes, where such mental block or disturbance
has the result of making the spouse physically incapable of performing the
marriage act. ---- Veronica Cabacungan Alcazar vs. Rey C. Alcazar, G.R. No.
174451, October 13, 2009

f. Sexually-Transmissible Disease. Either party was afflicted with a sexually-

transmissible disease found to be serious and appears to be incurable (Article
45[6], FC)

(6) That either party was afflicted with a sexually-transmissible

disease found to be serious and appears to be incurable. (85a)

a. Cannot be ratified.
b. The STD must be both serious and incurable, e.g. AIDS.
c. The STD must be unknown to the party suing for the annulment,
otherwise, he or she would be estopped from raising it.
d. Serious and incurable STD need not be concealed for it be ground for
annulment (couple with fraud in the form of a concealed STD).

C. RATIFICATION.

1. In general, a voiable marriage may be ratified by continued

voluntary cohabitation after the cause for annulment has ceased to
exist.

2. There is no specific period within which the cohabitation must

continue to constitute ratification. Of course, it need not last for
the whole period of prescription. It must be long enough to give
rise to the reasonable inference that the aggrieved party prefers to
continue with the marriage --- Tolentino 295.

3. Once ratified, a voidable marriage becomes valid and can no longer

be annulled, even if the aggrieved party subsequently changes his
or her mind.

4. Exceptions: The following are not subject to ratifications:

a. Impotence for by definition it must be continuing and

incurable, so that the cause for annulment will never cease
to exist.

b. STD – by definition it must be incurable, so that the cause

for annulment will never cease to exist.

c. Sane person who married an insane person without

knowing it at the time of marriage, if the insanity was

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 known to the sane person, the latter is estopped from
seeking annulment.

Free cohabitation or prescription ratifies a voidable marriage.

A voidable marriage can be generally ratified or confirmed by free

cohabitation or prescription. --- Engrace Niñal vs. Norma Bayadog, G.R.
No. 133778, March 14, 2000

D. STANDING TO SUE AND PRESCRIPTIVE PERIOD

ARTICLE 47. The action for annulment of marriage must be filed by

the following persons and within the periods indicated herein:

(1) For causes mentioned in number 1 of Article 45, by the party

whose parent or guardian did not give his or her consent, within five
years after attaining the age of twenty-one; or by the parent or guardian
or person having legal charge of the minor, at any time before such
party reaches the age of twenty-one;

(2) For causes mentioned in number 2 of Article 45, by the sane

spouse who had no knowledge of the other's insanity; by any relative,
guardian or person having legal charge of the insane, at any time before
the death of either party; or by the insane spouse during a lucid interval
or after regaining sanity;

(3) For causes mentioned in number 3 of Article 45, by the injured

party, within five years after the discovery of the fraud;

(4) For causes mentioned in number 4 of Article 45, by the injured

party, within five years from the time the force, intimidation or undue
influence disappeared or ceased;

(5) For causes mentioned in number 5 and 6 of Article 45, by the

injured party, within five years after the marriage. (87a)

1. Lack of Parental Consent (Article 47[1], FC)

a. Who may sue –

a. The party under 21 years of age whose parent or guardian did not give
consent, or
b. The parent or guardian who did not give consent.

b. Prescriptive period –
a. In case of the party under 21, within 5 years after attaining the age of 21,
or
b. In case of the parent or guardian, at any time before the contracting
party has reached the age of 21.

2. Insanity (Article 47[2], FC)

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 a. Who may sue –
i. The sane person, who had no knowledge of the other’s insanity; or
ii. Any relative or guardian or person having legal charge of the insane;
or
iii. The insane spouse during a lucid interval or after regaining sanity.

b. Prescriptive period -- Before the death of either party.

3. Fraud (Article 47[3], FC)

a. Who may sue – the injured party

b. Prescriptive period --- within 5 years after the discovery of the fraud.

4. Duress (Article 47[4], FC)

a. Who may sue – the injured party

b. Prescriptive period --- within 5 years after the time the force, intimidation
or undue influence disappeared or ceased.

5. Impotence (Article 47[5], FC)

a. Who may sue – the injured party

b. Prescriptive period --- within 5 years after marriage.

6. Sexually-Transmissible Disease (Article 47[5], FC)

a. Who may sue – the injured party

b. Prescriptive period --- within 5 years after the marriage.

A voidable marriage may be assailed only in a direct proceeding.

Doctrinally, a void marriage may be subjected to collateral attack, while a voidable one may be
assailed only in a direct proceeding. --- Tomasa vda. de Jacob vs. Court of Appeals, G.R. No.
135216, August 19, 1999 & Engrace Niñal vs. Norma Bayadog, G.R. No. 133778, March 14, 2000

A voidable marriage can be assailed only during lifetime of the parties.

Voidable marriages can be assailed only during the lifetime of the parties and not after death
of either, in which case the parties and their offspring will be left as if the marriage had been
perfectly valid. --- Engrace Niñal vs. Norma Bayadog, G.R. No. 133778, March 14, 2000.

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A voidable marriage is not a defense in a charge of bigamy.

In contrast to a voidable marriage which legally exists until judicially annulled (and, therefore, not a
defense in a bigamy charge if the second marriage were contracted prior to the decree of annulment),
the complete nullity, however, of a previously contracted marriage, being void ab initio and legally
inexistent, can outrightly be a defense in an indictment for bigamy. --- Veronico Tenebro vs. Court of
Appeals, G.R. No. 150758, February 18, 2004

PROCEDURE IN CASES FOR DECLARATION OF NULLITY OR ANNULMENT

A. Trial and Evidence (Article 48, FC)

ARTICLE 48. In all cases of annulment or declaration of

absolute nullity of marriage, the court shall order the
prosecuting attorney or fiscal assigned to it to appear on behalf
of the State to take steps to prevent collusion between the
parties and to take care that evidence is not fabricated or
suppressed.

In the cases referred to in the preceding paragraph, no

judgment shall be based upon a stipulation of facts or
confession of judgment. (88a)

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1. The court shall order the prosecuting attorney to appear on behalf of the
state –
i. To prevent collusion between the parties and
ii. To take care that evidence is not fabricated or suppressed.

The State is mandated to actively intervene in the procedure

for declaration of nullity of marriage.

A declaration of nullity of marriage under Article 36 of the

Family Code requires the application of procedural and
substantive guidelines. While compliance with these
requirements mostly devolves upon the wife, the State is
likewise mandated to actively intervene in the procedure.
Should there be non-compliance by the State with its statutory
duty, there is a need to remand the case to the lower court for
proper trial. --- Florence Malcampo-Sin vs. Philipp T. Sin, G.R.
No. 137590, March 26, 2001

The Solicitor General's intervention in the proceedings for

annulment or declaration of nullity of marriages ensures that
the interest of the State is represented.

That Article 48 does not expressly mention the Solicitor

General does not bar him or his Office from intervening in
proceedings for annulment or declaration of nullity of
marriages. . . The intent of Article 48 of the Family Code of the
Philippines is to ensure that the interest of the State is
represented and protected in proceedings for annulment and
declaration of nullity of marriages by preventing collusion
between the parties, or the fabrication or suppression of
evidence; and, bearing in mind that the Solicitor General is the
principal law officer and legal defender of the land, then his
intervention in such proceedings could only serve and
contribute to the realization of such intent, rather than thwart
it. ---- Republic of the Phil. vs. Crasus L. Iyoy, G.R. No. 152577,
September 21, 2005

Non-intervention of prosecuting attorney is not fatal where

husband vehemently opposed annulment proceedings.

The husband's vehement opposition to the annulment

proceedings negates the conclusion that collusion existed
between the parties. Thus, the non-intervention of a
prosecuting attorney to assure lack of collusion between the
contending parties is not fatal to the validity of the proceedings
in the trial court. ---- Emilio Tuason vs. Court of Appeals, G.R.
No. 116607, April 10, 1996

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In a petition for declaration of nullity of marriage, the Solicitor
General shall issue a certification before a decision is handed
down.

The trial court must order the prosecuting attorney or fiscal and
the Solicitor General to appear as counsel for the state. No
decision shall be handed down unless the Solicitor General
issues a certification, which will be quoted in the decision,
briefly stating therein his reasons for his agreement or
opposition, as the case may be, to the petition. The Solicitor
General, along with the prosecuting attorney, shall submit to
the court such certification within fifteen (15) days from the
date the case is deemed submitted for resolution of the court.
The Solicitor General shall discharge the equivalent function of
the defensor vinculi contemplated under Canon 1095. ----
Republic of the Phils. vs. Court of Appeals and Roridel Olaviano
Molina, G.R. No. 108763, February 13, 1997

Lack of participation of the State was not cured by the lower

court's dismissal of the petition.

While the fiscal filed with the trial court a manifestation stating
that he found no collusion between the parties, he did not
actively participate therein. Other than entering his appearance
at certain hearings of the case, nothing more was heard from
him. Neither did the presiding Judge take any step to encourage
the fiscal to contribute to the proceedings. It can be argued that
since the lower court dismissed the petition, the evil sought to
be prevented (i.e., dissolution of the marriage) did not come
about, hence, the lack of participation of the State was cured.
Not so. The task of protecting marriage as an inviolable social
institution requires vigilant and zealous participation and not
mere pro-forma compliance. The protection of marriage as a
sacred institution requires not just the defense of a true and
genuine union but the exposure of an invalid one as well. ---
Florence Malcampo-Sin vs. Philipp T. Sin, G.R. No. 137590,
March 26, 2001

Failure of the RTC to require the appearance of the Public

Prosecutor or Solicitor General in proceedings for annulment
and declaration of nullity of marriages does not nullify the
Compromise Agreement.

The purpose of the active participation of the Public Prosecutor

or the Solicitor General is to ensure that the interest of the State
is represented and protected in proceedings for annulment and
declaration of nullity of marriages by preventing collusion
between the parties, or the fabrication or suppression of
evidence. While the appearances of the Solicitor General and/or
the Public Prosecutor are mandatory, the failure of the RTC to

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 require their appearance does not per se nullify the
Compromise Agreement. ---- Virgilio Maquilan vs. Dita
Maquilan, G.R. No. 155409, June 8, 2007

2. No judgment shall be based upon a stipulation of facts or confession of

judgment.

3. The foregoing safeguards apply even if the defending party appears and
participates in the proceedings.

B. Support Pendente Leti (Article 49, FC)

ARTICLE 49. During the pendency of the action and in the absence of
adequate provisions in a written agreement between the spouses, the
court shall provide for the support of the spouses and the custody and
support of their common children. The court shall give paramount
consideration to the moral and material welfare of said children and
their choice of the parent with whom they wish to remain as provided
for in Title IX. It shall also provide for appropriate visitation rights of the
other parent. (n)

1. The support of the spouses; and

2. The custody and support of their common children.

a. The court shall give paramount consideration to the moral and material
welfare of said children and their choice of the parent with whom they wish
to remain.
b. Children below 7 years old shall not be separated from their mother, unless
the court finds compelling reasons to order otherwise. (Article 213, FC)

3. The appropriate visitation rights of the other parent.

C. Final Judgment

ARTICLE 50. The effects provided for in paragraphs (2), (3), (4) and (5)
of Article 43 and in Article 44 shall also apply in proper cases to
marriages which are declared void ab initio or annulled by final
judgment under Articles 40 [ bigamous marriage ] and 45 [voidable
marriage].

The final judgment in such cases shall provide for the liquidation,
partition and distribution of the properties of the spouses, the custody
and support of the common children, and the delivery of their
presumptive legitimes, unless such matters had been adjudicated in
previous judicial proceedings.

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

In the partition, the conjugal dwelling and the lot on which it is situated,
shall be adjudicated in accordance with the provisions of Articles 102
and 129.

ARTICLE 43. The termination of the subsequent marriage

referred to in the preceding Article shall produce the following
effects:

(2) The absolute community of property or the conjugal

partnership, as the case may be, shall be dissolved and
liquidated, but if either spouse contracted said marriage in bad
faith, his or her share of the net profits of the community
property or conjugal partnership property shall be forfeited in
favor of the common children or, if there are none, the
children of the guilty spouse by a previous marriage or in
default of children, the innocent spouse;

(3) Donations by reason of marriage shall remain valid,

except that if the donee contracted the marriage in bad faith,
such donations made to said donee are revoked by operation
of law;

(4) The innocent spouse may revoke the designation of

the other spouse who acted in bad faith as a beneficiary in any
insurance policy, even if such designation be stipulated as
irrevocable; and

(5) The spouse who contracted the subsequent marriage

in bad faith shall be disqualified to inherit from the innocent
spouse by testate and intestate succession. (n)

ARTICLE 44. If both spouses of the subsequent marriage

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

1. The final judgment shall provide for: (a) the liquidation, partition and distribution
of the properties of the spouses, (b) the custody and support of the common
children, and (c) the delivery of their presumptive legitimes, unless such matters
had been adjudicated in previous judicial proceedings. (Article 50, FC)

2. All creditors of the spouses as well as of the absolute community of property or

the conjugal partnership shall be notified of the proceedings for liquidation
(Article 50, FC)

3. The judgment, the partition and distribution of the properties, and the delivery of
the children’s presumptive legitime shall be recorded in the appropriate civil
registry and registries of property (Article 52, FC)

ARTICLE 52. The judgment of annulment or of

absolute nullity of the marriage, the partition and
distribution of the properties of the spouses, and the
delivery of the children's presumptive legitimes shall be

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 recorded in the appropriate civil registry and registries
of property; otherwise, the same shall not affect third
persons. (n)

a. If not recorded, the same shall not affect 3rd persons. Non-compliance will
also render the subsequent marriage by the former spouse null and void
(Article 53, FC)

ARTICLE 53. Either of the former spouses may marry

again after complying with the requirements of the
immediately preceding Article; otherwise, the
subsequent marriage shall be null and void.

Problem:

Maria is married to Perdo. On March of 2011, Pedro was able to secure a

declaration of annulment in the marriage between the parties but the judgment
failed to include an order distributing the presumptive legitime of the children in
the said marriage.
Pedro met Anna and married Anna of July of 2012 after the decree annulling his
marriage to Maria became final and executory. However, the partition and
distribution of the properties of the spouses including the delivery of the
children’s presumptive legitime has not been complied yet, and neither entered
in the appropriate registry of properties civil registry and registry of property.

Question: What is the status of the marriage between Pedro and Anna?

Ans. The marriage between Pedro and Anna is null and void pursuant to Article 53
of the Family Code because Pedro failed to first settle the partition and
distribution of the properties of the previous marriage, and also has not
distributed the presumptive legitime of the children in the first marriage as
mandated under Article 52 of the same code.

D. Partition (Article 50 taken in relation to Articles 102 & 129, FC)

The conjugal dwelling and lot shall be adjudicated to the spouse with whom majority
of the common children choose to remain (unless otherwise agreed upon by the
parties).

1. Children below 7 years old are deemed to have chosen the mother, unless the
court has decided otherwise.

2. In case there is no such majority, the court shall decide, taking into consideration
the best interests of said children.

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 E. Delivery of Presumptive Legitime (Article 51, FC)

ARTICLE 51. In said partition, the value of the presumptive

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

The children or their guardian, or the trustee of their property,

may ask for the enforcement of the judgment.

The delivery of the presumptive legitimes herein prescribed

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

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

2. The delivery of the presumptive legitime shall in no way prejudice the ultimate
successional rights of the children accruing upon the death of either or both of the
parents.

a. The value of the properties received shall be considered as advances on

their legitime.

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

Note that Article 50 and 51 are only applicable if in the declared void marriage, one
or both of the parties to the said marriage are suffering legal impediment to
marry the other, e.g. bigamous marriage. Otherwise, if both parties are
capacitated to marry each other, then Article 147 or 148 of the Family Code will
apply, such as the case below:

Case application:

Property Distribution/Liquidation for Decree of nullity and Annulment:

Petitioner assails the ruling of the trial court ordering that a decree of absolute nullity of marriage shall
only be issued after liquidation, partition, and distribution of the parties' properties under Article 147 of
the Family Code. Petitioner argues that Section 19 (1) of the Rule on Declaration of Absolute Nullity of
Null Marriages and Annulment of Voidable Marriages (the Rule) does not apply to Article 147 of the Family
Code.

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We agree with petitioner.
The Court has ruled in Valdes v. RTC, Branch 102, Quezon City that in a void marriage, regardless of its
cause, the property relations of the parties during the period of cohabitation is governed either by Article
147 or Article 148 of the Family Code. Article 147 of the Family Code applies to union of parties who are
legally capacitated and not barred by any impediment to contract marriage, but whose marriage is
nonetheless void, such as petitioner and respondent in the case before the Court.
Article 147 of the Family Code provides:
Article 147. When a man and a woman who are capacitated to marry each other, live exclusively with
each other as husband and wife without the benefit of marriage or under a void marriage, their wages
and salaries shall be owned by them in equal shares and the property acquired by both of them through
their work or industry shall be governed by the rules on co-ownership.

In the absence of proof to the contrary, properties acquired while they lived together shall be presumed
to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares.
For purposes of this Article, a party who did not participate in the acquisition by the other party of any
property shall be deemed to have contributed jointly in the acquisition thereof if the former's efforts
consisted in the care and maintenance of the family and of the household.

Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during
cohabitation and owned in common, without the consent of the other, until after the termination of their
cohabitation.

When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the
co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any
or all of the common children or their descendants, each vacant share shall belong to the respective
surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In
all cases, the forfeiture shall take place upon termination of the cohabitation.

For Article 147 of the Family Code to apply, the following elements must be present:
1. The man and the woman must be capacitated to marry each other;
2. They live exclusively with each other as husband and wife; and
3. Their union is without the benefit of marriage, or their marriage is void.
All these elements are present in this case and there is no question that Article 147 of the Family Code
applies to the property relations between petitioner and respondent.
We agree with petitioner that the trial court erred in ordering that a decree of absolute nullity of marriage
shall be issued only after liquidation, partition and distribution of the parties' properties under Article 147
of the Family Code. The ruling has no basis because Section 19 (1) of the Rule does not apply to cases
governed under Articles 147 and 148 of the Family Code. Section 19 (1) of the Rule provides:

Sec. 19. Decision. — (1) If the court renders a decision granting the petition, it shall declare therein that the
decree of absolute nullity or decree of annulment shall be issued by the court only after compliance with
Articles 50 and 51 of the Family Code as implemented under the Rule on Liquidation, Partition and
Distribution of Properties.

The pertinent provisions of the Family Code cited in Section 19 (1) of the Rule are:
Article 50. The effects provided for in paragraphs (2), (3), (4) and (5) of Article 43 and in Article 44 shall also
apply in proper cases to marriages which are declared void ab initio or annulled by final judgment under
Articles 40 and 45.

The final judgment in such cases shall provide for the liquidation, partition and distribution of the
properties of the spouses, the custody and support of the common children, and the delivery of their
presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings.

All creditors of the spouses as well as of the absolute community of the conjugal partnership shall be
notified of the proceedings for liquidation.

In the partition, the conjugal dwelling and the lot on which it is situated, shall be adjudicated in accordance
with the provisions of Articles 102 and 129.

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

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

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

It is clear from Article 50 of the Family Code that Section 19 (1) of the Rule applies only to
marriages which are declared void ab initio or annulled by final judgment under Articles 40 and
45 of the Family Code. In short, Article 50 of the Family Code does not apply to marriages which are
declared void ab initio under Article 36 of the Family Code, which should be declared void without
waiting for the liquidation of the properties of the parties.

Article 40 of the Family Code contemplates a situation where a second or

bigamous marriage was contracted. Under Article 40, "[t]he absolute nullity of a
previous marriage may be invoked for purposes of remarriage on the basis solely
of a final judgment declaring such previous marriage void." Thus we ruled:
. . . where the absolute nullity of a previous marriage is sought to be invoked for purposes of contracting a
second marriage, the sole basis acceptable in law, for said projected marriage to be free from legal
infirmity, is a final judgment declaring a previous marriage void.

Article 45 of the Family Code, on the other hand, refers to voidable marriages,
meaning, marriages which are valid until they are set aside by final judgment of
a competent court in an action for annulment. In both instances under Articles 40 and 45,
the marriages are governed either by absolute community of property or conjugal partnership of gains
unless the parties agree to a complete separation of property in a marriage settlement entered into before
the marriage. Since the property relations of the parties is governed by absolute community of property
or conjugal partnership of gains, there is a need to liquidate, partition and distribute the properties before
a decree of annulment could be issued. That is not the case for annulment of marriage under Article 36 of
the Family Code because the marriage is governed by the ordinary rules on co-ownership.
In this case, petitioner's marriage to respondent was declared void under Article 36 of the Family Code
and not under Article 40 or 45. Thus, what governs the liquidation of properties owned
in common by petitioner and respondent are the rules on co-ownership. In Valdes,
the Court ruled that the property relations of parties in a void marriage during
the period of cohabitation is governed either by Article 147 or Article 148 of the
Family Code. The rules on co-ownership apply and the properties of the spouses should be liquidated
in accordance with the Civil Code provisions on co-ownership. Under Article 496 of the Civil Code,
"[p]artition may be made by agreement between the parties or by judicial proceedings. . . . ." It is not
necessary to liquidate the properties of the spouses in the same proceeding for declaration of nullity of
marriage. -- (Diño v. Diño, G.R. No. 178044, [January 19, 2011])

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 EFFECT OF DECLARATION OF NULLITY OR ANNULMENT TO PROPERTIES

A. Effect on property relations

1. Voidable Marriages and Void Marriages under Article 40.

The following effects shall apply to: (i) marriages which are declared void ab initio under
Article 40, FC, i.e., subsequent marriages entered into before the declaration of nullity of
the first marriage; and (ii) voidable marriages annulled by final judgment, under Article
45, FC.

a. The absolute community of property or conjugal partnership shall be dissolved and

liquidated, but
i. If either spouse contracted said marriage in bad faith, his or her share
of the net profits shall be forfeited in favor of—
1. The common children or,
2. If there are no common children, the children of the guilty
spouse by a previous marriage or
3. In default of children, the innocent spouse;

Conjugal partnership governs property relationship in a voidable

marriage.

The property regime governing voidable marriages is generally conjugal

partnership and the children --- Engrace Niñal vs. Norma Bayadog, G.R.
No. 133778, March 14, 2000

b. Donation by reason of marriage shall remain valid, but

i. If the donee contract the marriage in bad faith, such donations made
to said donee are revoked by operation of law;

c. The innocent spouse may revoke the designation of the other spouse who acted in
bad faith as beneficiary in any insurance policy, even if such designation is made
irrevocable;

d. The guilty spouse shall be disqualified to inherit from the innocent spouse by testate
or intestate succession.

e. If both spouses acted in bad faith, all donation by reason of marriage and
testamentary disposition made by one in favor of the other are revoked by operation
of law (Article 44, FC).

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2. Void Marriages. The foregoing rules are not applicable to marriages declared null and
void for other reasons (i.e., not under Article 40, FC), as there would be no absolute
community or conjugal partnership to speak of in those cases. The rules in Articles 147
and 148 of the FC (“Property Regimes of Unions Without Marriage”) would apply. Under
said provisions, the property regime of unions without marriage is governed by co-
ownership, but there are differences between unions where the parties are capacitated
to marry each other and unions where the parties are not.

CHAPTER 7

Property Regime of Unions Without Marriage

ARTICLE 147. When a man and a woman who are capacitated to

marry each other, live exclusively with each other as husband and wife
without the benefit of marriage or under a void marriage, their wages
and salaries shall be owned by them in equal shares and the property
acquired by both of them through their work or industry shall be
governed by the rules on co-ownership.

In the absence of proof to the contrary, properties acquired while they

lived together shall be presumed to have been obtained by their joint
efforts, work or industry, and shall be owned by them in equal shares.
For purposes of this Article, a party who did not participate in the
acquisition by the other party of any property shall be deemed to have
contributed jointly in the acquisition thereof if the former's efforts
consisted in the care and maintenance of the family and of the
household.

Neither party can encumber or dispose by acts inter vivos of his or her
share in the property acquired during cohabitation and owned in
common, without the consent of the other, until after the termination
of their cohabitation.

When only one of the parties to a void marriage is in good faith, the
share of the party in bad faith in the co-ownership shall be forfeited in
favor of their common children. In case of default of or waiver by any
or all of the common children or their descendants, each vacant share
shall belong to the respective surviving descendants. In the absence of
descendants, such share shall belong to the innocent party. In all cases,
the forfeiture shall take place upon termination of the cohabitation.
(144a)

Requisites for co-ownership under Article 147

For Article 147 to operate, the man and the woman: (1) must be capacitated to marry
each other; (2) live exclusively with each other as husband and wife; and (3) their union
is without the benefit of marriage or their marriage is void. Articles 50 and 51 of the
Family Code relate only to voidable marriages and exceptionally to void marriages under
Article 40 of the Family Code. --- Elna Mercado-Fehr vs. Bruno Fehr, G.R. No. 152716,
October 23, 2003

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When no legal impediment to marry exists between common-law spouses, co-
ownership applies.

This peculiar kind of co-ownership applies when a man and a woman, suffering no legal
impediment to marry each other, so exclusively live together as husband and wife under
a void marriage or without the benefit of marriage. The term "capacitated" refers to the
legal capacity of a party to contract marriage, i.e., any "male or female of the age of
eighteen years or upwards not under any of the impediments mentioned in Articles
37 and 38 of the Family Code.--- Antonio A.S. Valdes vs. RTC, Branch 102, QC, G.R. No.
122749, July 31, 1996

When a legal impediment to marry exists, only actual contributions shall be owned in
common.

When the common-law spouses suffer from a legal impediment to marry or when they
do not live exclusively with each other (as husband and wife), only the property acquired
by both of them through their actual joint contribution of money, property or industry
shall be owned in common and in proportion to their respective contributions. --- Antonio
A.S. Valdes vs. RTC, Branch 102, QC, G.R. No. 122749, July 31, 1996

Art. 147 or 148 govern property relations of parties in a void marriage.

In a void marriage, regardless of the cause thereof, the property relations of the parties
during the period of cohabitation is governed by the provisions of Article 147 or Article
148, such as the case may be, of the Family Code. Article 147 is a remake of Article 144 of
the Civil Code as interpreted and so applied in previous cases. --- Antonio A.S. Valdes vs.
RTC, Branch 102, QC, G.R. No. 122749, July 31, 1996

Article 147 of the Family Code applies to the union of parties who are legally capacitated
and not barred by any impediment to contract marriage, but whose marriage is
nonetheless declared void under Article 36 of the Family Code. . . . Under this property
regime, property acquired during the marriage is prima facie presumed to have been
obtained through the couple's joint efforts and governed by the rules on co-ownership. --
- Salas, Jr. v. Aguila, G.R. No. 202370, September 23, 2013

A constructive trust is deemed created when property is titled in the name of common-
law wife during subsistence of a pre-existing marriage.

Property acquired by a man while living with a common-law wife during the subsistence
of his marriage is conjugal property, even when the property was titled in the name of
the common-law wife. In such cases, a constructive trust is deemed to have been created
by operation of Article 1456 of the Civil Code over the property which lawfully pertains to
the conjugal partnership of the subsisting marriage. It was at the time that the
adjudication of ownership was made following the husband's demise (not when he
merely allowed the property to be titled in his paramour's name) that a constructive trust
was deemed to have been created. --- Josephine B. Belcodero vs. Court of Appeals, G.R.
No. 89667, October 20, 1993

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Paramour named in certificate of title is not deemed owner where lawful heirs stand to
be deprived.

The paramour cannot be deemed owner to half of the property just because its title was
registered in her name and that of the husband because the heirs of the lawful pre-
existing marriage stand to be deprived. A certificate of title under the Torrens system is
aimed to protect dominion, and should certainly not be turned into an instrument for
deprivation of ownership. ---- Marino Adriano vs. Court of Appeals, G.R. No. 124118,
March 27, 2000

Even if it is only the man who works, the property acquired during the man-and-wife
relationship belongs to the two of them through a fifty-fifty sharing.

The formation of an informal civil partnership between a man and wife not legally married
and their corresponding right to an equal share in properties acquired through their joint
efforts and industry during cohabitation was recognized through decisions of the
Supreme Court. With the enactment of the new Civil Code, Article 144 codified the law
established through judicial precedents but with the modification that the property
governed by the rules on co-ownership may be acquired by either or both of them
through their work or industry. Even if it is only the man who works, the property
acquired during the man-and-wife relationship belongs through a fifty-fifty sharing to
the two of them. This provision recognizes that it would be unjust and abnormal if a
woman who is a wife in all aspects of the relationship except for the requirement of a
valid marriage must abandon her home and children, neglect her traditional household
duties, and go out to earn a living or engage in business before the rules on co-ownership
would apply. --- Margaret Maxey vs. Court of Appeals, G.R. No. L-45870, May 11, 1984

Common-law wife must show that she really contributed to the acquisition of the
property during cohabitation.

The creation of the civil relationship envisaged in Article 144 is circumscribed by

conditions, the existence of which must first be shown before rights provided thereunder
may be deemed to accrue. One such condition is that there must be a clear showing that
the common-law wife had, during cohabitation, really contributed to the acquisition of
the property involved. --- Teresita C. Yaptinchay vs. Hon. Guillermo E. Torres, G.R. No. L-
26462, June 9, 1969

A woman’s “real contribution” refers to her contribution to the family’s material and
spiritual goods.

"Real contribution" to the acquisition of property must include not only the earnings of
a woman from a profession, occupation, or business but also her contribution to the
family's material and spiritual goods through caring for the children, administering the
household, husbanding scarce resources, freeing her husband from household tasks,
and otherwise performing the traditional duties of a housewife. ----Margaret Maxey vs.
Court of Appeals, G.R. No. L-45870, May 11, 1984

The woman traditionally holds the family purse even if she does not contribute to filling
that purse with funds.

The provisions of the Civil Code are premised on the traditional and existing, the normal
and customary gender roles of Filipino men and women. No matter how large the income
of a working wife compared to that of her husband, the major, if not the full responsibility
of running the household remains with the woman. She is the administrator of the

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household. Even if the couple was not legally married, such fact does not change the
nature of their respective roles. It is the woman who traditionally holds the family purse
even if she does not contribute to filling that purse with funds. --- Margaret Maxey vs.
Court of Appeals, G.R. No. L-45870, May 11, 1984

There must be evidence that the woman actually contributed to the acquisition of
property.

Although in cases of common-law relations where an impediment to marry

exists, equity would dictate that property acquired by the man and woman through their
joint endeavor should be allocated to each of them in proportion to their respective
efforts, there must be evidence that the woman actually contributed to the acquisition of
the property in question. Marino Adriano vs. Court of Appeals, G.R. No. 124118, March
27, 2000

Common-law couple with legal impediment to marry, own proportionately the property
acquired by them in common.

When a common-law couple have a legal impediment to marriage , only the

property acquired by them — through their actual joint contribution of money, property
or industry — shall be owned by them in common and in proportion to their respective
contributions. --- Milagros Joaquino vs. Lourdes Reyes, G.R. No. 154645, July 13, 2004

Wives in marriages celebrated subsequent to a valid marriage are not precluded from
proving that property acquired during their cohabitation with their Muslim husband, is
their exclusive property, respectively.

Co-ownership provided in Article 144 of the Civil Code requires that the man and woman
living together as husband and wife without the benefit of marriage or under a void
marriage must not in any way be incapacitated to marry. Therefore, the co-ownership
contemplated in this provision cannot apply to Hadji Abdula's marriages celebrated
subsequent to a valid and legally existing marriage, since from the point of view of the
Civil Code Hadji Abdula is not capacitated to marry. However, the wives in such marriages
are not precluded from proving that property acquired during their cohabitation with
Hadji Abdula is their exclusive property, respectively. Absent such proof, however, the
presumption is that property acquired during the subsistence of a valid marriage — and
in the Civil Code, there can only be one validly-existing marriage at any given time — is
conjugal property of such subsisting marriage. --- Neng "Kagui Kadiguia" Malang vs.
Corocoy Moson, G.R. No. 119064, August 22, 2000

Although Article 129 provides for the procedure in case of dissolution of the conjugal
partnership regime, Article 147 specifically covers the effects of void marriages on the
spouses' property relations. --- Barrido v. Nonato, G.R. No. 176492, October 20, 2014

This particular kind of co-ownership applies when a man and a woman, suffering no illegal
impediment to marry each other, exclusively live together as husband and wife under a
void marriage or without the benefit of marriage. It is clear, therefore, that for Article 147
to operate, the man and the woman: (1) must be capacitated to marry each other; (2) live
exclusively with each other as husband and wife; and (3) their union is without the benefit

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of marriage or their marriage is void. . . . The term "capacitated" in the first paragraph of
the provision pertains to the legal capacity of a party to contract marriage. --- Barrido v.
Nonato, G.R. No. 176492, October 20, 2014

Under this property regime, property acquired by both spouses through their work and
industry shall be governed by the rules on equal co-ownership. Any property acquired
during the union is prima facie presumed to have been obtained through their joint
efforts. A party who did not participate in the acquisition of the property shall be
considered as having contributed to the same jointly if said party's efforts consisted in the
care and maintenance of the family household. Efforts in the care and maintenance of
the family and household are regarded as contributions to the acquisition of common
property by one who has no salary or income or work or industry. --- Barrido v. Nonato,
G.R. No. 176492, October 20, 2014

The rules which are set up to govern the liquidation of either the absolute community or
the conjugal partnership of gains, the property regimes recognized for valid and voidable
marriages, are irrelevant to the liquidation of the co-ownership that exists between
common-law spouses or spouses of void marriages. --- Barrido v. Nonato, G.R. No.
176492, October 20, 2014

Valdez vs. Regional Trial Court (260 SCRA 221)

Re: Articles 36 and 147 (co-ownership), Article 147, FC (co-ownership) is applicable

to marriages declared void under Article 36 (psychological incapacity) not Articles 50, 51
and 52, in relation to Articles 102 (liquidation of absolute community assets and liabilities)
and 109 (liquidation of conjugal partnership assets and liabilities) of the Family Code.
Thus, a marriage declared void on the ground of the mutual psychological incapacity (Art.
36) of the parties to comply with their essential marital obligations, the law on co-
ownership under Article 147, FC, governs the property relations between the parties.
Article 50 of the Family Code, applying paragraphs (2), (3), (4) and (5) of Article 43, on the
procedure of liquidation of properties of the spouses, relates only, by its explicit terms, to
voidable marriages (Article 45) and void marriage under Article 40, i.e., the second
marriage being considered void if entered into before the final judicial declaration of a
previous marriage as void.

ARTICLE 148. In cases of cohabitation not falling under the preceding

Article, only the properties acquired by both of the parties through their
actual joint contribution of money, property, or industry shall be owned
by them in common in proportion to their respective contributions. In
the absence of proof to the contrary, their contributions and
corresponding shares are presumed to be equal. The same rule and
presumption shall apply to joint deposits of money and evidences of
credit.

If one of the parties is validly married to another, his or her share in the
co-ownership shall accrue to the absolute community or conjugal
partnership existing in such valid marriage. If the party who acted in bad
faith is not validly married to another, his or her share shall be forfeited
in the manner provided in the last paragraph of the preceding Article.

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 The foregoing rules on forfeiture shall likewise apply even if both
parties are in bad faith. (144a)

Cohabitation means more than sexual intercourse.

The term "cohabitation" or "living together as husband and wife" means not only residing
under one roof, but also having repeated sexual intercourse. Cohabitation, of course,
means more than sexual intercourse, especially when one of the parties is already old
and may no longer be interested in sex. At the very least, cohabitation is the public
assumption by a man and a woman of the marital relation, and dwelling together as man
and wife, thereby holding themselves out to the public as such. Secret meetings or nights
clandestinely spent together, even if often repeated, do not constitute such kind of
this Court has
cohabitation; they are merely meretricious. In this jurisdiction,
considered as sufficient proof of common-law relationship the
stipulations between the parties, a conviction of concubinage, or the
existence of illegitimate children. --- Cirila Arcaba vs. Erlinda Tabancura vda. de
Batocael, G.R. No. 146683, November 22, 2001

Art. 148 applies to cohabitation amounting to adultery or concubinage.

The Family Code has filled the hiatus in Article 144 of the Civil Code by expressly regulating
in its Article 148 the property relations of couples living in a state of adultery or
concubinage. --- Guillerma Tumlos vs. Mario Fernandez, G.R. No. 137650, April 12, 2000

Administration of property during cohabitation does not amount to contribution in its

acquisition.

Nothing in Article 148 of the Family Code provides that the administration of the property
amounts to a contribution in its acquisition. --- Guillerma Tumlos vs. Mario Fernandez,
G.R. No. 137650, April 12, 2000

Co-ownership exists even if the couple are not capacitated to marry each other.

It was error for the trial court to rule that, because the parties in this case were not
capacitated to marry each other at the time that they were alleged to have been living
together, they could not have owned properties in common. The Family Code, in addition
to providing that a co-ownership exists between a man and a woman who live together
as husband and wife without the benefit of marriage, likewise provides that, if the parties
are incapacitated to marry each other, properties acquired by them through their joint
contribution of money, property or industry shall be owned by them in common in
proportion to their contributions which, in the absence of proof to the contrary, is
presumed to be equal. There is thus co-ownership even though the couple are not
capacitated to marry each other. ---- Eustaquio Mallilin vs. Ma. Elvira Castillo, G.R. No.
136803, June 16, 2000

Article 148 of the Family Code refers to the property regime of bigamous marriages,
adulterous relationships, relationships in a state of concubinage, relationships where
both man and woman are married to other persons and to multiple alliances of the same

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married man. --- Susan Nicdao Cariño vs. Susan Yee Cariño, G.R. No. 132529, February 2,
2001

However, a foreigner cannot recover real properties purchased in the name of his
Filipina partner.

Even if it is assumed gratia arguendi that the respondent and the petitioner were
capacitated to marry, the petitioner, a German citizen, is still disqualified to own the
properties in tandem with the respondent. The sale of parcels of land in favor of a
foreigner is illegal per se. The transactions are void ab initio because they were entered
into in violation of the Constitution. Thus, to allow the petitioner to recover the properties
or the money used in the purchase of the parcels of land would be subversive of public
policy. ---- Alfred Fritz Frenzel vs. Ederlina P. Catito, G.R. No. 143958, July 11, 2003

Wages and contributions in the form of care of the home and children are excluded in
this regime.

In this property regime, the properties acquired by the parties through their actual joint
contribution shall belong to the co-ownership. Wages and salaries earned by each party
belong to him or her exclusively. Then too, contributions in the form of care of the home,
children and household, or spiritual or moral inspiration, are excluded in this regime. ----
Susan Nicdao Cariño vs. Susan Yee Cariño, G.R. No. 132529, February 2, 2001

No co-ownership exists if actual contribution of a party is not proved.

a) Actual contribution is required by this provision, in contrast to Article 147

which states that efforts in the care and maintenance of the family and household are
regarded as contributions to the acquisition of common property by one who has no
salary or income or work or industry. If the actual contribution of the party is not proved,
there will be no co-ownership and no presumption of equal shares. --- Erlinda A. Agapay
vs. Carlina V. Palang, G.R. No. 116668, July 28, 1997

b) A reading of Article 148 readily shows that there must be proof of "actual joint
contribution" by both the live-in partners before the property becomes co-owned by
The presumption of equality of
them in proportion to their contribution.
contribution arises only in the absence of proof of their
proportionate contributions, subject to the condition that actual
joint contribution is proven first. Simply put, proof of actual contribution by
both parties is required, otherwise there is no co-ownership and no presumption of
equal sharing. --- Procopio Villanueva vs. Court of Appeals, G.R. No. 143286, April 14,
2004

Co-ownership is up to the extent of the proven actual contribution of money, property

or industry.

a) The regime of limited co-ownership of property governing the union of parties

who are not legally capacitated to marry each other, but who nonetheless live together
as husband and wife, applies to properties acquired during said cohabitation in
proportion to their respective contributions. Co-ownership will only be up to the extent
of the proven actual contribution of money, property or industry. Absent proof of the

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extent thereof, their contributions and corresponding shares shall be presumed to be
equal. --- Jacinto Saguid vs. Court of Appeals, G.R. No. 150611, June 10, 2003

b) When a common-law couple have a legal impediment to marriage, only the

property acquired by them — through their actual joint contribution of money, property
or industry — shall be owned by them in common and in proportion to their respective
contributions. --- Milagros Joaquino vs. Lourdes Reyes, G.R. No. 154645, July 13, 2004

Art. 148 governs even if cohabitation or acquisition of property occurred before

effectivity of Family Code.

Although the adulterous cohabitation of the parties commenced in 1987, which is before
the date of the effectivity of the Family Code on August 3, 1998, Article 148 thereof
applies because this provision was intended precisely to fill up the hiatus in Article 144 of
the Civil Code. Before Article 148 of the Family Code was enacted, there was no provision
governing property relations of couples living in a state of adultery or concubinage.
Hence, even if the cohabitation or the acquisition of the property occurred before the
Family Code took effect, Article 148 governs. --- Jacinto Saguid vs. Court of Appeals, G.R.
No. 150611, June 10, 2003 & Lupo Atienza vs. Yolanda de Castro, G.R. No. 169698,
November 29, 2006

Cohabitation, no matter how long, does not sever the tie of a subsisting previous
marriage.

The cohabitation of a spouse with another person, even for a long period, does not sever
the tie of a subsisting previous marriage; otherwise, the law would be giving a stamp of
approval to an act that is both illegal and immoral.. Hence, all property acquired from the
date of the previous marriage, until the date of the other spouse’s death, are still
presumed conjugal. --- Procopio Villanueva vs. Court of Appeals, G.R. No. 143286, April
14, 2004

Paramour is deemed to hold property in trust for the legal spouse and compulsory heirs.

The registration of the property in paramour's name was clearly designed to deprive the
husband's legal spouse and compulsory heirs of ownership. By operation of law, the
paramour is deemed to hold the property in trust for them. Therefore, she cannot rely on
the registration in repudiation of the trust, for this case is a well-known exception to the
principle of conclusiveness of a certificate of title. ---- Milagros Joaquino vs. Lourdes
Reyes, G.R. No. 154645, July 13, 2004

Agapay vs. Palang (276 SCRA 340)

Re: Article 148, FC – Where a woman (22 years old) cohabited with a married man
(63 years old and a U.S. Gov’t pensioner) and the woman fails to prove that she
contributed money to purchase the rice land, the property is not under co-ownership but
should revert to the conjugal partnership of the deceased and his lawful wife. On the other
hand, the status of the child Kristopher, as the illegitimate child of the deceased should be
ventilated in the proper probate court or in a special proceedings instituted for that
purpose and cannot be adjudicated in the instant ordinary civil action for recovery of
ownership and possession..

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Atienza vs. De Castro (508 SCRA 593)

Re: Article 148, FC – This article is applicable to bigamous marriages, adulterous

relationships, relationships in a state of concubinage, relationships where both man and
woman are married to other persons, and multiple alliances of the same married man.
Only the properties acquired by both of the parties through their actual joint contribution
of money, property or industry shall be owned by them in common in proportion to their
respective contributions. Proof of actual contribution is required. Although the adulterous
cohabitation of the parties commenced in 1983, before the effectivity of the Family Code
on 3 August 1988, Article 148, FC applies because this provision was intended precisely to
fill up the hiatus in Article 144 of the Civil Code.

Francisco vs. Masters Iron Works (451 SCRA 507)

In a bigamous marriage, a parcel of land acquired by the “wife” who was only 23
years of age, not gainfully employed, belonged to “husband” who was gainfully employed,
absence of proof that “wife” contributed to acquisition of property. Article 148 was given
retroactive effect pursuant to Article 258, FC.

Problem:

For five years since 1989, Tony, a bank Vice President, and Susan, an entertainer, lived
together as husband and wife without the benefit of marriage although they were
capacitated to marry each other. Since Tony’s salary was more than enough for their
needs, Susan stopped working and merely “kept house”. During that period, Tony was
able to buy a lot and house in a plush subdivision. However, after five years, Tony and
Susan decided to separate.

Who will be entitled to the house and lot?

Would it make any difference if Tony could not marry Susan because he previously
married to Alice from whom he is legally separated?

Ans:

Tony and Susan are entitled to the house and lot with each of them getting equal shares.
Since they are common-law-spouses without impediment to marry, their property
relations is governed by the laws on co-ownership. In addition, under Article 147 of the
FC, when a man and a woman who are capacitated to marry each other lived exclusively
with each other as husband and wife, the property acquired during their cohabitation are
presumed to have been obtained by their joint efforts, work or industry and shall be
owned by them in equal shares. The equal share is maintained even if the efforts of one
of them consisted merely in his or her care and maintenance of the family and the
household.

Yes it would make a difference. Only properties that were acquired by both of them
through their actual joint contribution of money, property or industry shall be owned by
them in common in proportion to their respective contribution pursuant to Article 148 of

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 the FC. Since Susan did not contribute to the acquisition of the house and lot, she has no
share in the property.

Metrobank vs. Pascual (547 SCRA 246)

Re: Articles 50, 51, 52, FC – After declaration of nullity or annulment of marriage, but before
liquidation of properties, the conjugal properties are under co-ownership; hence mortgage on property by
former wife without consent of the former husband is valid, but only insofar as share of former wife.

B. Effect on Capacity to Remarry: Either of the former spouses may marry again after the
following requirements are complied with (Article 53 in relation to Article 52, FC) already
discussed earlier.

C. Effect on Legitimacy of Children:

1. General Rule: Children conceived or born outside a valid marriage are illegitimate (Article
165, FC)

ARTICLE 165. Children conceived and born outside a valid marriage

are illegitimate, unless otherwise provided in this Code. (n)

2. Exceptions: The following are legitimate ----

a. Children conceived or born before finality of the judgment of annulment (Article 54,
FC).
ARTICLE 54. Children conceived or born before the judgment of
annulment or absolute nullity of the marriage under Article 36 has
become final and executory, shall be considered legitimate. Children
conceived or born of the subsequent marriage under Article 53 shall
likewise be legitimate.

Problem:
A married B. After living together for three (3) years A filed a petition to declare
as null and void her marriage with B on the ground of psychological incapacity. At
the time of the filing of the complaint, A did not realized that he was already
pregnant with B’s child. On July 4, 2014, A gave birth to a baby girl, whose
paternity B is not denying to be his own.
Question: What is the status of A and B’s child if the court will rule to grant the
decree of nullity on the ground of psychological incapacity?

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 Ans.
The Baby girl is considered a legitimate child of A and B notwithstanding the fact
that her parents’ marriage be declared void ab initio subsequently. As provided
under Article 54, children conceived or born before the judgment of annulment or
absolute nullity of marriage under Article 36 has become final and executory shall
be considered a legitimate child.

b. Children conceived or born before finality of the judgment of absolute nullity of the
marriage under Article 36 (psychological incapacity) (Article 54, FC)

c. Children conceived or born of the subsequent marriages under Article 53 (void for
failure to comply with requirements of delivery of presumptive legitimes, etc.)
Article 54, FC)

ARTICLE 54. Children conceived or born before the judgment of

annulment or absolute nullity of the marriage under Article 36 has
become final and executory, shall be considered legitimate. Children
conceived or born of the subsequent marriage under Article 53 shall
likewise be legitimate.

d. Children of marriage under Article 41-42 (i.e. a subsequent marriage after the spouse
in a previous marriage is declared presumptively dead) who were conceived before
its termination by the reappearance of the presumptively dead spouse (Article 43,
paragraph 1, FC)

NOTE

Lawyer's act of advertising himself as “Annulment of Marriage Specialist” erodes sanctity of

marriage

In advertising himself as a self-styled "Annulment of Marriage Specialist," he erodes and

undermines not only the stability but also the sanctity of an institution still considered sacrosanct
despite the contemporary climate of permissiveness in our society. Indeed, in assuring
prospective clients that an annulment may be obtained in four to six months from the time of
the filing of the case, he in fact encourages people, who might have otherwise been disinclined
and would have refrained from dissolving their marriage bonds, to do so. --- Ismael G. Khan vs.
Rizalino T. Simbillo, A.C. No. 5299, August 19, 2003

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 Legal Separation

I. In General.

A. Divorce, In General: Divorce means the legal dissolution of a lawful union for a cause
arising after marriage --- Garcia vs. Recio, 366 SCRA 437, 452 (2001). But divorces are
of different types--- Garcia vs. Recio, 366 SCRA 437, 452 (2001). The two basic types
are:

a. Absolute Divorce or a vinculo matrimonii --- terminates the marriage;

b. Limited or Relative Divorce or a mensa et thoro --- merely suspends the marriage
and leaves the bond in full force. Legal Separation under Philippine law falls under
this category.

B. Concept of Legal Separation: Legal Separation is the suspension of the common

marital life, both as to the person and property --- l Tolentino 313, by judicial decree,
on any of the grounds recognized by law.

1. Distinguished from Separation of Property ---

a. Legal separation affects both person and property, while separation of

property affects property relations only.

b. Legal separation cannot be decreed based on the agreement of the parties

(Article 60), while separation of property may be effected by agreement of the
parties subject to judicial approval (Article 134).

2. Distinguished from Separation De Facto ----

a. Legal separation is decreed by court, while separation de facto is actual

separation without any court decree;

b. Legal separation dissolved the property relations of the party and removes the
guilty party’s capacity to inherit from the innocent party. Separation de facto
has no effect on property relations and capacity to succeed.

3. Distinguished from Annulment of Marriage ---

a. In legal separation, the marriage is not defective as the grounds arise only after
the marriage. In annulment, the marriage is defective from the inception, as
the grounds existed prior to or at the time of marriage.

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 b. The parties may not remarry after a decree of legal separation, unlike in
annulment of marriage, where they can remarry.

C. Recognition of Divorce

1. Divorce between Filipinos, even if obtained abroad, is not recognized in the

Philippines --- Tenchaves vs. Escano, 15 SCRA 355 (1965). Philippine personal
laws govern Filipinos, even those abroad (Article 15 NCC).

2. Divorce between, aliens, obtained abroad, may be recognized in the Philippines,

provided it is consistent with their respective national laws – Van Dorn vs. Romillo
Jr., 139 SCRA 139 (1985).

3. Divorce between an alien and a Filipino, obtained abroad by the alien spouses,
may be recognized in the Philippines under Article 26 of the Family Code with the
following guiding rules:

a. Thus, if the alien spouse is capacitated to remarry under the said divorce,
the Filipino spouses is likewise capacitated to remarry (Article 26, FC);

b. While Philippine courts may recognize foreign divorce in this situation, the
legal effect thereof, e.g. on custody, care and support of children, must still
be determined by Philippine courts ---- Roehr vs. Rodriguez, 404 SCRA 495,
502 (2003) citing Llorente vs. Court of Apeals, 345 SCRA 592, 602 (2000).

II. Ground for Legal Separation

A. TIME: The grounds for legal separation must have arisen or existed after the marriage
(unlike grounds for annulment of marriage).

B. GROUNDS: A petition for legal separation may be filed on any of the following
grounds:

ARTICLE 55. A petition for legal separation may be filed on any of

the following grounds:

(1) Repeated physical violence or grossly abusive conduct directed

against the petitioner, a common child, or a child of the
petitioner;

(2) Physical violence or moral pressure to compel the petitioner to

change religious or political affiliation;

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 (3) Attempt of respondent to corrupt or induce the petitioner, a
common child, or a child of the petitioner, to engage in
prostitution, or connivance in such corruption or inducement;

(4) Final judgment sentencing the respondent to imprisonment of

more than six years, even if pardoned;

(5) Drug addiction or habitual alcoholism of the respondent;

(6) Lesbianism or homosexuality of the respondent;

(7) Contracting by the respondent of a subsequent bigamous

marriage, whether in the Philippines or abroad;

(8) Sexual infidelity or perversion;

(9) Attempt by the respondent against the life of the petitioner; or

(10) Abandonment of petitioner by respondent without justifiable

cause for more than one year.

For purposes of this Article the term "child" shall include a child by
nature or by adoption. (97a)

1. Repeated physical violence or grossly abusive conduct directed against the

petitioner, a common child, or a child of the petitioner:

a. The physical violence must be repeated.

b. Grossly abusive conduct may include maltreatment and hurling insults and
invectives --- Ong Eng Kiam vs. Ong, G.R. No. 153206, October 23, 2006.

2. Physical violence or moral pressure to compel the petitioner to change religious or

political affiliation:

a. The violence or pressure need not be repeated; a single incident is enough.

b. The must be a coercion (physical or moral) by the respondent against petitioner.

3. Attempt of respondent to corrupt or induce the petitioner, a common child, or a child

of the petitioner, to engage in prostitution, or connivance in such corruption or
inducement:

4. Final judgment sentencing the respondent to imprisonment of more than six years,
even if pardoned:

a. The nature of the crime is not material, but since the penalty should be
imprisonment for more than 6 years, it is relatively serious and non-
probationable;

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 b. A subsequent executive pardon is not material.

5. Drug addiction or habitual alcoholism of the respondent:

Drug addiction, habitual alcoholism, lesbianism or homosexuality as

grounds for legal separation.

If drug addiction, habitual alcholism, lesbianism or homosexuality should

occur only during the marriage, they become mere grounds for legal
separation under Article 55 of the Family Code. These provisions of the
Code, however, do not necessarily preclude the possibility of these
various circumstances being themselves, depending on the degree and
severity of the disorder, indicia of psychological incapacity. -- Leouel
Santos vs. CA and Julia Rosario Bedia-Santos, G.R. No. 112019, January 4,
1995

6. Lesbianism or homosexuality of the respondent:

• If the drug addiction, habitual alcoholism, lesbianism or homosexuality was

existing at the time of marriage and was concealed, it may amount to fraud which
is a ground for annulment of marriage.

7. Contracting by the respondent of a subsequent bigamous marriage, whether in the

Philippines or abroad;

8. Sexual infidelity or perversion:

a. Sexual infidelity is sexual intercourse by married person with another person who
is not his or her spouse. The family code has removed the distinction in the Civil
Code between concubinage for men and adultery for women to avoid double
standard.

Conviction for concubinage need not be first secured before action for legal separation
can prosper.

A decree of legal separation, on the ground of concubinage, may be issued upon proof by
preponderance of evidence in the action for legal separation.No criminal proceeding or
conviction is necessary. --- Froilan C. Gandionco vs. Hon. Senen C. Peñaranda, G.R. No.
79284, November 27, 1987

Decree of legal separation on the ground of concubinage may be issued upon proof by
preponderance of evidence.

A decree of legal separation, on the ground of concubinage, may be issued upon proof by
preponderance of evidence in the action for legal separation. No criminal proceeding or
conviction is necessary. To this end, the doctrine in Francisco vs. Tayao has been modified,

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 as that case was decided under Act. No. 2710, when absolute divorce was then allowed
and had for its grounds the same grounds for legal separation under the New Civil Code,
with the requirement, under such former law, that the guilt of defendant spouses had to
be established by final judgment in a criminal action. That requirement has not been
reproduced or adopted by the framers of the present Civil Code, and the omission has been
uniformly accepted as a modification of the stringent rule in Francisco v. Tayao. --- Froilan
C. Gandionco vs. Hon. Senen C. Peñaranda, G.R. No. 79284, November 27, 1987

b. Sexual perversion entails coercion of the spouse in engaging in unusual or

abnormal sexual practices.

9. Attempt by the respondent against the life of the petitioner:

a. There must be an intent to kill, i.e., either attempted or frustrated homicide,

although prior conviction is not necessary --- I Tolentino 323, citing Veloira vs.
Veloira, CA 56 O.G. 7055. Sempio-Diy 94.

b. Attempt must be wrongful. If it is legally justifiable (e.g. in self-defense of a child

--- Revised Penal Code Article 11, or if made by a person who has caught his or her
spouse having sexual intercourse with another person --- Article 247 of the
Revised Penal Code, then it cannot be considered ground for legal separation.

10. Abandonment of petitioner by respondent without justifiable cause for more than
one year.

a. Abandonment is leaving the conjugal dwelling without intent to

return (Article 101, FC);

b. Lack of intent to return may be presumed if the spouse has left for
a period of 3 months, or has failed within the same period to give
any information as to his or her whereabouts (Article 101, FC)

c. If the spouse left because of the other spouse’s abusive conduct,

there is justifiable cause and such act of leaving cannot be
considered as a ground for annulment --- Ong Eng Kiam v. Ong,
G.R. No. 153206, October 23, 2006.
Meaning of 'abandon".

The word "abandon", in its ordinary sense, means to forsake entirely; to

forsake or renounce utterly. The dictionaries trace this word to the root
idea of "putting under a ban." The emphasis is on the finality and the
publicity with which some thing or body is thus put in the control of
another, and hence the meaning of giving up absolutely, with intent
never again to resume or claim one's rights or interests. When referring
to desertion of a wife by a husband, the word has been defined as "the
act of a husband in voluntarily leaving his wife with intention to
forsake her entirely, never to return to her, and never to resume
his marital duties towards her, or to claim his marital rights; such

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neglect as either leaves the wife destitute of the common
necessaries of life, or would leave her destitute but for the charity
of others." --- Estrella de la Cruz vs. Severino de la Cruz, G.R. No. L-
19565, January 30, 1968

Meaning of "abandonment".

a) Abandonment implies a departure by one spouse with the

avowed intent never to return, followed by prolonged absence without
just cause, and without in the meantime providing in the least for one's
family although able to do so. There must be absolute cessation of
marital relations, duties and rights, with the intention of perpetual
separation. This idea is clearly expressed in the provision, which states
that "a spouse is deemed to have abandoned the other when he or she
has left the conjugal dwelling without any intention of returning." ---
Prima Partosa-Jo vs. Court of Appeals and Ho Hang, G.R. No. 82606,
December 18, 1992

b) The word "abandonment," when referring to the act of one

consort of leaving the other, is "the act of the husband or the wife who
leaves his or her consort willfully, and with an intention of causing
perpetual separation." Thus, to constitute abandonment of the wife by
the husband, there must be absolute cessation of marital relations and
duties and rights, with the intention of perpetual separation. --- Estrella
de la Cruz vs. Severino de la Cruz, G.R. No. L-19565, January 30, 1968

Physical separation of parties and husband's refusal to give support

sufficed to constitute abandonment.

The physical separation of the parties, coupled with the refusal by the
husband to give support to the wife, sufficed to constitute
abandonment as a ground for the judicial separation of their conjugal
property. --- Prima Partosa-Jo vs. Court of Appeals and Ho Hang, G.R. No.
82606, December 18, 1992

Physical separation, without financial and moral desertion, is not

abandonment.

To entitle the wife to any of the extraordinary remedies as a result of

abandonment, the abandonment must not only be physical
estrangement but also amount to financial and moral desertion.
Although an all-embracing definition of the term "abandonment" is yet
to be spelled out in explicit words, its meaning can be determined from
the context of the law well as from its ordinary usage. The concept of
abandonment may be established in relation to the alternative
remedies granted to the wife when she has been abandoned by the
husband, namely, receivership, administration by her, or separation of
property, all of which are designed to protect the conjugal assets from
waste and dissipation rendered imminent by the husband's continued
absence from the conjugal abode, and to assure the wife of a ready and
steady source of support. Therefore, physical separation alone is not the
full meaning of the term "abandonment", if the husband, despite his

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 voluntary departure from the society of his spouse, neither neglects the
management of the conjugal partnership nor ceases to give support to
his wife. --- Estrella de la Cruz vs. Severino de la Cruz, G.R. No. L-19565,
January 30, 1968

Other related matters:

Petition for legal separation is independent from the counterclaim to declare nullity of same marriage.

The petition for legal separation and the counterclaim to declare the nullity of the same marriage can
stand independent and separate adjudication. They are not inseparable nor was the action for legal
separation converted into one for a declaration of nullity by the counterclaim, for legal separation
presupposes a valid marriage, while the petition for nullity has a voidable marriage as a precondition.

The first real issue in this case is: Does the death of the plaintiff before final decree, in an action for legal
separation, abate the action? If it does, will abatement also apply if the action involves property rights?
An action for legal separation which involves nothing more than the bed-and-board separation of the
spouses (there being no absolute divorce in this jurisdiction) is purely personal. The Civil Code of the
Philippines recognizes this in its Article 100, by allowing only the innocent spouse (and no one else) to
claim legal separation; and in its Article 108, by providing that the spouses can, by their reconciliation,
stop or abate the proceedings and even rescind a decree of legal separation already rendered. Being
personal in character, it follows that the death of one party to the action causes the death of the action
itself — actio personalis moritur cum persona.
". . . When one of the spouses is dead, there is no need for divorce, because the
marriage is dissolved. The heirs cannot even continue the suit, if the death of the spouse
takes place during the course of the suit (Article 244, Section 3). The action is absolutely
dead (Cass., July 27, 1871, D. 71. 1. 81; Cass. req., May 8, 1933, D. D. 1933, 332."
"Marriage is a personal relation or status, created under the sanction of law, and
an action for divorce is a proceeding brought for the purpose of effecting a dissolution of
that relation. The action is one of a personal nature. In the absence of a statute to the
contrary, the death of one of the parties to such action abates the action, for the reason
that death has settled the question of separation beyond all controversy and deprived
the court of jurisdiction, both over the persons of the parties to the action and of the
subject-matter of the action itself. For this reason the courts are almost unanimous in
holding that the death of either party to a divorce proceeding, before final decree, abates
the action. 1 Corpus Juris, 208; Wren v. Moss, 2 Gilman, 72; Danforth v. Danforth, 111 III.
236; Matter of Grandall, 196 N.Y. 127, 89 N.E. 578; 134 Am St. Rep. 830; 17 Ann. Cas. 874;
Wilcon v. Wilson, 73 Mich, 620, 41 N.W. 817; Strickland v. Strickland, 80 Ark. 452, 97 S.
W. 659; McCurley v. McCurley, 60 Md. 185. 45 Am. Rep. 717; Begbie v. Begbie, 128 Cal.
155, 60 Pac. 667, 49 L.R.A. 141."

The same rule is true of causes of action and suits for separation and maintenance (Johnson vs. Bates,
Ark. 101 SW 412; 1 Corpus Juris 208). --- Carmen Lapuz Sy vs. Eufemio S. Eufemio, G.R. No. L-30977,
January 31, 1972

Action for legal separation is abated by death of the plaintiff even if property rights are involved.

A further reason why an action for legal separation is abated by the death of the plaintiff, even if property
rights are involved, is that these rights are mere effects of a decree of separation, their source being the
decree itself; without the decree such rights do not come into existence, so that before the finality of a
decree, these claims are merely rights in expectation. If death supervenes during the pendency of the
action, no decree can be forthcoming, death producing a more radical and definitive separation; and the

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expected consequential rights and claims would necessarily remain unborn. --- Carmen Lapuz Sy vs.
Eufemio S. Eufemio, G.R. No. L-30977, January 31, 1972

Dissolution and liquidation of property regime are necessary consequences of the final decree of legal
separation.

Article 106 of the Civil Code mandates the dissolution and liquidation of the property regime of the
spouses upon finality of the decree of legal separation. Such dissolution and liquidation are necessary
consequences of the final decree. This legal effect of the decree of legal separation ipso facto or
automatically follows, as an inevitable incident of, the judgment decreeing legal separation — for the
purpose of determining the share of each spouse in the conjugal assets. The clear mandate of this
provision is that the decision of the trial court decreeing the legal separation between the spouses had
long become final and executory and the division of the conjugal property in a "supplemental decision"
is a mere incident of the decree of legal separation. --- Antonio Macadangdang vs. Court of Appeals, G.R.
No. L-38287, October 23, 1981

Allegation that earnest efforts towards a compromise had been made is deemed unnecessary as
notice of dismissal rendered the legal separation case moot and academic.

Notice of dismissal of complaint rendered the legal separation case moot and academic and that it is not
necessary to resolve the controversial issue of whether in an action by the husband for legal separation
against the wife, it should be alleged that earnest efforts towards a compromise had been made, as
supposedly required in Article 222 of the Civil Code and Section 1 (j), Rule 16 of the Rules of Court. Because
of that notice of dismissal, the wife obtained the relief which she had sought by means of her motion to
dismiss. --- Consuelo Madrigal-Vasquez vs. Judge Corazon J. Agrava, G.R. No. L-32219, February 25, 1982

The RTC, designated as Family Court, has the exclusive original jurisdiction over cases relating to marital
status and property relations of couples.

Republic Act (R.A.) No. 8369 confers upon an RTC, designated as the Family Court of a city, the exclusive
original jurisdiction to hear and decide, among others, complaints or petitions relating to marital status
and property relations of the husband and wife or those living together. The Rule on Legal Separation
provides that "the petition [for legal separation] shall be filed in the Family Court of the province or city
where the petitioner or the respondent has been residing for at least six months prior to the date of filing
or in the case of a non-resident respondent, where he may be found in the Philippines, at the election of
the petitioner." --- Brigido B. Quiao vs. Rita C. Quiao, et al., G.R. No. 176556, July 4, 2012

Earnest efforts towards a compromise need not be looked into when the complaint for legal separation
has been withdrawn.

The husband’s filing of notice of withdrawal of his complaint for legal separation rendered the case moot
and academic. Thus, it is not necessary to resolve the controversial issue of whether in an action by the
husband for legal separation against the wife, it should be alleged that earnest efforts towards a
compromise had been made. ---- Consuelo Madrigal-Vasquez vs. Judge Corazon J. Agrava, G.R. No. L-
32219, February 25, 1982

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III. Defenses

The petition for legal separation shall be denied on any of the following grounds:

ARTICLE 56. The petition for legal separation shall be denied on any
of the following grounds:

(1) Where the aggrieved party has condoned the offense or act
complained of;

(2) Where the aggrieved party has consented to the commission of

the offense or act complained of;

(3) Where there is connivance between the parties in the commission

of the offense or act constituting the ground for legal separation;

(4) Where both parties have given ground for legal separation;

(5) Where there is collusion between the parties to obtain the decree
of legal separation; or

(6) Where the action is barred by prescription. (100a)

What are the defenses against legal separation?

1) aggrieved party has condoned the offense or act complained of:

Condonation. Where the aggrieved party has condoned the offense or act complained
of, meaning:

a. Condonation is the forgiveness of the offense; it may be express or implied, e.g., from
continued cohabitation or sexual intercourse with the guilty spouses dispite
knowledge of the offense, to wit:

Condonation is the forgiveness of a marital offense constituting a ground for

legal separation or, the conditional forgiveness or remission, by a husband or wife
of a matrimonial offense which the latter has committed. --- Benjamin Bugayong
vs. Leonila Ginez, G.R. No. L-10033, December 28, 1956

A single voluntary marital intercourse is sufficient to constitute condonation.

Any cohabitation with the guilty party, after the commission of the offense, and
with the knowledge or belief on the part of the injured party of its commission,
will amount to conclusive evidence of condonation; but this presumption may be
rebutted by evidence. Single voluntary act of marital intercourse between the
parties ordinarily is sufficient to constitute condonation, and where the parties
live in the same house, it is presumed that they live on terms of matrimonial
cohabitation. --- Benjamin Bugayong vs. Leonila Ginez, G.R. No. L-10033,
December 28, 1956

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 When condonation of wife’s offense does not entitle her to a divorce. The wife
can defeat the husband's suit for a divorce by proof that he has pardoned her, but
the effect of such condonation of the wife's offense is not to entitle her to a
divorce from her husband by reason of adultery committed by him,
notwithstanding her own condoned act of adultery. --- Agueda Benedicto vs.
Esteban de la Rama, G.R. No. 1056, December 8, 1903

But there is no condonation if the cohabitation or sexual intercourse was merely to

save the marriage or maintain family harmony or to attempt reconciliation according
to Sempio-Diy 96.

There is no condonation where the husband failed to file a criminal case of adultery
against her erring wife, to wit: Failure of husband to file case for adultery is not proof
of his consent. The mere fact that the injured husband allowed seven months to pass
without instituting criminal proceedings against his wife and her paramour is not
sufficient proof of his consent. ---- Francisco Gali vs. Faustino Sahagun, G.R. No. 1229,
August 19, 1903 & Adriano Mortiga vs. Vicente Serra and Maria Obleno, G.R. No. 2045,
September 20, 1905

b. If the offender repeats the offense forgiven, a new ground for legal separation arises.

c. Each sexual intercourse by the spouse with another person is a separate act of sexual
infidelity ---People vs. Zapata, G.R. No. L-3047, May 16, 1951; Ocampo vs. Florenciano,
G.R. NO. L-13553, February 23, 1960, 107 Phil. 35. Condonation of one act does not
necessarily mean condonation of others.

d. In a case where the wife left her husband after the latter discovered her adultery, the
husband failure to actively search for his wife and take her home does not constitute
condonation or consent to the adultery. It was not his duty to search for her. It was
her duty to return, to wit:

Husband's failure to search for his wife does not constitute condonation. The
husband's failure actively to search for his wife and take her home after the latter had
left him does not constitute condonation or consent to her adulterous relations. She
"left" him after having sinned and after he had discovered her dates with other men.
Consequently, it was not his duty to search for her to bring her home. Hers was the
obligation to return. --- Jose de Ocampo vs. Serafina Florenciano, G.R. No. L-13553,
February 23, 1960;

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2) aggrieved party has consented to the commission of the offense or act complained of:

Consent. Where the aggrieved party has consented to the commission of the offense or
act complained of:

a. Consent is conformity in advance by a spouse to the offense of the other spouse.

Example: Agreement between spouses that they are free to live with other partners
--- Matubis vs. Praxedes, 109 Phil. 789 (1960).

b. Consent is made before the offense; condonation is made after the offense.

c. If a person lures his or her spouse to commit the offense (e.g. sexual infidelity) or
actively creates opportunities for his or her spouse to fall into the offense, he or she
is deemed to have consented to it --- I Tolentino 326, citing American cases.

d. However, a person is not obliged to actively prevent his or her spouse from
committing the offense. Thus, a person who merely “entraps” or secretly foolows and
observes his or her spouse committing infidelity is not deemed t have consented to it
--- I Tolentino 326, citing American cases.

3) there is connivance between the parties in the commission of the offense or act
constituting the ground for legal separation:

Connivance. Where there is connivance between the parties in the commission of the
offense or act constituting the ground for legal separation.

a. Connivance is agreement, express or implied, by both spouses to the ground for legal
separation.

b. Consent is unilateral; connivance is bilateral.

4) both parties have given ground for legal separation:

Recrimination --- where both parties have given ground for legal separation,

a. It does not matter who first committed the offense.

b. It does not matter who is more guilty of the offense.
c. It does not matter if one of the spouses had been pardoned by the other --- Benedicto
v. De La Rama, 3 Phil. 34 (1903)
d. The ground committed by one may be different from the ground committed by the
other.
e. This is based on the principle that a person must come to court with clean hands.

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5) there is collusion between the parties to obtain the decree of legal separation;

Collusion, defined.
a) Collusion in divorce or legal separation means the agreement between husband
and wife for one of them to commit, or to appear to commit, or to be represented in
court as having committed, a matrimonial offense, or to suppress evidence of a valid
defense, for the purpose of enabling the other to obtain a divorce. This agreement, if not
express, may be implied from the acts of the parties. It is a ground for denying the divorce.
There would be collusion if the parties had arranged to make it appear that a matrimonial
offense had been committed although it was not, or if the parties had connived to bring
about a legal separation even in the absence of grounds therefor. --- Jose de Ocampo vs.
Serafina Florenciano, G.R. No. L-13553, February 23, 1960

b) Collusion in matrimonial cases is "the act of married persons in procuring a

divorce by mutual consent, whether by preconcerted commission by one of a
matrimonial offense, or by failure, in pursuance of agreement to defend divorce
proceedings" --- William H. Brown vs. Juanita Yambao, G.R. No. L-10699, October 18, 1957
c) Collusion is an agreement by the spouses to obtain legal separation by: (a) committing
a ground for legal separation; (b) making it appear that a ground has been committed; or
(c) suppressing evidence of a valid defense --- Ocampo vs. Florenciano, G.R. No. L-13553,
February 23, 1960, 107 Phil. 35.

Rationale for state intervention in uncontested proceedings for legal separation or

annulment of marriage.
a) The policy calling for the intervention of the state attorneys in case of uncontested
proceedings for legal separation (and of annulment of marriages), is to emphasize that
marriage is more than a mere contract; that it is a social institution in which the state is
vitally interested, so that its continuation or interruption can not be made to depend
upon the parties themselves .It is consonant with this policy that the inquiry by the Fiscal
should be allowed to focus upon any relevant matter that may indicate whether the
proceedings for separation or annulment are fully justified or not. --- William H. Brown vs.
Juanita Yambao, G.R. No. L-10699, October 18, 1957

b) The prohibition expressed in the laws and rules is predicated on the fact that the
institutions of marriage and of the family are sacred and therefore are as much the
concern of the State as of the spouses; because the State and the public have vital interest
in the maintenance and preservation of these social institutions against desecration by
collusion between the parties or by fabricated evidence. The prohibition against annulling
a marriage based on the stipulation of facts or by confession of judgment or by non-
appearance of the defendant stresses the fact that marriage is more than a mere contract
between the parties; and for this reason, when the defendant fails to appear, the law
enjoins the court to direct the prosecuting officer to intervene for the State in order to
preserve the integrity and sanctity of the marital bonds. --- Romulo Tolentino vs. Helen
Villanueva, G.R. No. L-23264, March 15, 1974

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 6) the action is barred by prescription.

Prescription. Where the action is barred by prescription, i.e., filed more than 5 years from
occurrence of the cause (Article 57, FC).

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

IV. Procedural Matters:

A. Prescription: The petition for legal separation must be filed within 5 years from the
time of the occurrence of the cause.

1. The prescriptive period is reckoned from the occurrence of the cause, not from
knowledge thereof. The law does not encourage legal separation.

2. In case of repeated sexual intercourse by respondent with another person,

prescription is counted from the last act of sexual intercourse, since each act is a
separate ground for legal separation

When is the right time to file the action for legal separation?

Ans. It should be filed within five years from the time of the occurrence of the
cause.

Problem:
If a man commits several acts of sexual infidelity, particularly in 2002, 2003, 2004,
2005, the prescriptive period to file for legal separation runs from 2002. State if
this is true or false.
Ans:
False. Each sexual infidelity is a cause of legal separation. Hence, the five-year
prescriptive period for filing legal separation runs every time there is sexual
infidelity. Thus, four separate prescriptive periods commenced from 2002 to
2005. The prescriptive period for the last act of sexual infidelity prescribed on
2010.

3. Even if prescription is not set up as defense, the court may take cognizance thereof
and dismiss the action on this ground, since public policy is involved. The policy
of the law is that no decree of legal separation should be issued if there is a legal
obstacle appearing on record ---- Brown vs. Yambao, 102 Phil. 168

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B. Cooling-Off Period: An action for legal separation shall in no case be tried before 6
months shall have elapsed since the filing of the petition (Article 58, FC), to wit:

ARTICLE 58. An action for legal separation shall in no case be tried

before six months shall have elapsed since the filing of the petition.
(103)

In all cases of legal separation, the parties are required to undergo a six months
COOLING PERIOD from the time of the filing of the case before the case will be tried
so as the afford the parties to reconcile with each other.

C. Effort Towards Reconciliation: No legal separation may be decreed unless the court
has taken steps toward the reconciliation of the spouses and is fully satisfied that,
despite such efforts, reconciliation is highly improbable, to wit:

ARTICLE 59. No legal separation may be decreed unless the court

has taken steps toward the reconciliation of the spouses and is fully
satisfied, despite such efforts, that reconciliation is highly improbable.
(n)

Even after the lapse of the Cooling Off period, the court must exert effort to reconcile
the parties.

D. Evidence:

1. No decree of legal separation shall be based upon stipulation of facts or a

confession of judgment, to wit:

ARTICLE 60. No decree of legal separation shall be based

upon a stipulation of facts or a confession of judgment.

In any case, the court shall order the prosecuting attorney or

fiscal assigned to it to take steps to prevent collusion between
the parties and to take care that the evidence is not fabricated
or suppressed. (101a)

No stipulation of facts, compromise or confession of judgment shall be allowed in

all cases of legal separation. The parties are mandatorily required to adduce
evidence to prove their basis in asking for legal separation.
However, even if the respondent admitted the allegations in the petition, the
decree of legal separation may still be upheld as valid if it is based on evidence
independent of such admission --- Ocampo vs. Florenciano, G.R. No. L-13553,
February 23, 1960, 107 Phil. 35.

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 2. The court shall order the prosecuting attorney to take step to prevent collusion
between the parties and to take care that the evidence is not fabricated or
suppressed (Article 60, FC).

E. Provisional Remedies: These provisional remedies may take effect even during the 6
months cooling-off-period --- Araneta vs. Concepcion, G.R. No. L-9667, July 31, 1956,
52 OG 5165:

1. Provisional Separation. After the filing of the petition for legal separation, the
spouses shall be entitled to live separately from each other, to wit:

ARTICLE 61. After the filing of the petition for legal

separation, the spouses shall be entitled to live separately from
each other.

The court, in the absence of a written agreement between the

spouses, shall designate either of them or a third person to
administer the absolute community or conjugal partnership
property. The administrator appointed by the court shall have
the same powers and duties as those of a guardian under the
Rules of Court. (104a)

At this stage, the spouses has no right to sexual intercourse with the other.

2. Administration. The court, in the absence of a written agreement between the

spouses, shall designate either of them or a 3rd person to administer the absolute
community of property or conjugal partnership.

The power given under this provision is limited to acts of administration only. The
designated administrator cannot alienate or encumber the community or conjugal
property without the consent of both spouses or approval of the court.

3. Support Pendente Lite:

ARTICLE 62. During the pendency of the action for legal

separation, the provisions of Article 49 shall likewise apply to
the support of the spouses and the custody and support of the
common children. (105a)

During the pendency of the action and in the absence of adequate written
agreement between the spouses, the court shall provide for the support of the
spouses and the custody and support of their common children,

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 a. The order granting support may be enforced either by a writ of
execution or by contempt citation --- Rule 61, Section 5 of the Rules
of Court.

b. A judgment granting support never becomes final; it may be

adjusted or modified according to the circumstances and the
spouse’s financial capability --- Lopez vs. CA, G.R. No. 148510, July
21, 2004.

The court shall give paramount consideration to the moral and material welfare
of said children and their choice of the parent with whom they wish to remain.
- Children below the age of 7 years old are deemed to have chosen the
mother, unless the court has decided otherwise.

The court shall provide for appropriate visitation rights of the other parent.

Sample Problem:

What are the rights and duties arising/accruing after the filing of the Petition for
legal separation?
Ans.:
1) the spouses shall be entitled to live separately from each other;
2) the parties can agree to designate either of them or a 3rd person to administer the
absolute community property or conjugal partnership property. If then cannot
agree and reduce the same in writing, then the court can appoint the
administrator.
3) During the pendency of the action for legal separation, the provisions of Article 49
shall likewise apply to the support of the spouses and the custody and support of
the common children.

F. Effect of Death of Either Party: An action for legal separation is purely personal
between the spouses. The death of one party during the pendency of the action cause
the death of the action itself, which must therefore be dismissed. Even if the action
involves property rights, they are merely the effects of a decree of legal separation
and cannot survive the death of a party which occurs prior to a final decree --- Lapuz
Sy vs. Eufemio, 43 SCRA 177 (1972).

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V. Effects of Legal Separation:

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

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

(2) The absolute community or the conjugal partnership shall be

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

(3) The custody of the minor children shall be awarded to the innocent
spouse, subject to the provisions of Article 213 of this Code; and

(4) The offending spouse shall be disqualified from inheriting from the
innocent spouse by intestate succession. Moreover, provisions in
favor of the offending spouse made in the will of the innocent
spouse shall be revoked by operation of law. (106a)

The Decree of legal separation shall have the following effects:

1. Marriage Bonds. The spouses shall be entitled to live separately from each other, but the
marriage bonds shall not be severed (Article 63, FC)

a. The obligation of mutual fidelity remains. The spouse who marries another or has
sexual relations with another may be charge with bigamy, concubinage or adultery.

b. The wife shall continue using her name and surname employed before legal
separation (Article 372, NCC). She is not allowed to revert to her maiden name ---
Laperal vs. Republic, 6 SCRA 357 (1962).

2. Property Regime. The absolute community or conjugal partnership shall be dissolved

and liquidated but the offending spouse shall have no right to any share of the net
profits, which shall be forfeited in favor of:

a. The common children or,

b. If there are no common children, the children of the offending spouse by a previous
marriage or
c. In default of children, the innocent spouse (Article 63, in relation to Article 43 all of
the FC)

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3. Custody. The custody of the minor children shall be awarded to the innocent spouse
(Article 63, FC)

• However, in awarding custody, the court shall take into account all
relevant considerations, especially the choice of the child over 7 years of
age, unless the parent chosen is unfit (Article 213)

4. Succession.

a. Intestate/Compulsory Succession --- The offending spouse shall be

disqualified from inheriting from the innocent spouse by intestate
succession (Article 63, FC)

▪ The disqualification extends to the legitime.

b. Testamentary Succession ---

i. In wills of the innocent spouse made before the decree

of legal separation --- provisions in favor of the
offending spouse shall be revoked by operation of law
(Article 63, FC)

ii. In wills of the innocent spouse made after the decree of

legal separation ---- offending spouse may inherit.

5. Support. After the final judgment of legal separation, the obligation of mutual support
between the spouses ceases (Article 198, FC).

- However, the court may order the guilty spouse shall give support to
the innocent one, specifying the terms of such order (Article 198, FC).

- Note that such post-decree support is not applicable to declaration of

nullity or annulment.

6. Donations and Insurance. After the finality of the decree of legal separation, the innocent
spouse may revoke the following (Article 64, FC):

ARTICLE 64. After the finality of the decree of legal separation, the
innocent spouse may revoke the donations made by him or by her in
favor of the offending spouse, as well as the designation of the latter as
a beneficiary in any insurance policy, even if such designation be
stipulated as irrevocable. The revocation of the donations shall be
recorded in the registries of property in the places where the properties
are located. Alienations, liens and encumbrances registered in good
faith before the recording of the complaint for revocation in the

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 registries of property shall be respected. The revocation of or change in
the designation of the insurance beneficiary shall take effect upon
written notification thereof to the insured.

The action to revoke the donation under this Article must be brought
within five years from the time the decree of legal separation has
become final. (107a)

a. Donations he or she made in favor of the offending spouse.

i. The revocation is done by filing an action to revoke the donation, which must be
brought within 5 years from the time the decree of legal separation become
final.

ii. The revocation shall be recorded in the registries of property in the place where
the properties are located.

iii. Alienations, liens and encumbrances registered in good faith before the
recording of the complaint for revocation shall be respected.

b. Designation of the offending spouse as beneficiary in any insurance policy, even if such
designation be stipulated as irrevocable.

i. The revocation of or change in the designation of the insurance beneficiary shall

take effect upon written notification thereof to the insured.

ii. There is no prescriptive period.

Summary of the effects of the decree of legal separation:

1) shall be entitled to live separately from each other, but the marriage bonds shall
not be severed;
2) absolute community or the conjugal partnership shall be dissolved and liquidated
but the offending spouse shall have no right to any share of the net profits earned
by the absolute community or the conjugal partnership, which shall be forfeited
in favor of the children, if none, then to the children of the offending spouse by a
previous marriage, and in default of the children then to the innocent spouse;
3) custody of the minor children shall be awarded to the innocent spouse, subject to
the provisions of Article 213 of this Code;
4) offending spouse shall be disqualified from inheriting from the innocent spouse
by intestate succession, provisions in favor of the offending spouse made in the
will of the innocent spouse shall be revoked by operation of law;
5) the innocent spouse may revoke the donations made by him or by her in favor of
the offending spouse, provided that the donation is revoked within a period of 5
years from the finality of the decree of legal separation;

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 6) revoke the designation of the erring spouse as a beneficiary in any insurance
policy, even if such designation be stipulated as irrevocable.

Applying Article 63(2)

[S]ince it was already established by the trial court that the spouses have no separate properties, there
is nothing to return to any of them. The listed properties . . . are considered part of the conjugal
partnership. Thus, ordinarily, what remains in the . . . listed properties should be divided equally
between the spouses and/or their respective heirs. However, since the trial court found the petitioner
the guilty party, his share from the net profits of the conjugal partnership is forfeited in favor of the
common children, pursuant to Article 63 (2) of the Family Code. Again, lest we be confused, like in the
absolute community regime, nothing will be returned to the guilty party in the conjugal partnership
regime, because there is no separate property which may be accounted for in the guilty party's favor.

On October 26, 2000, herein respondent Rita C. Quiao (Rita) filed a complaint for legal separation against
herein petitioner Brigido B. Quiao (Brigido). 3 Subsequently, the RTC rendered a Decision 4 dated October
10, 2005, the dispositive portion of which provides:
WHEREFORE, viewed from the foregoing considerations, judgment is hereby rendered declaring
the legal separation of plaintiff Rita C. Quiao and defendant-respondent Brigido B. Quiao
pursuant to Article 55.
As such, the herein parties shall be entitled to live separately from each other, but the marriage
bond shall not be severed.
Except for Letecia C. Quiao who is of legal age, the three minor children, namely, Kitchie, Lotis
and Petchie, all surnamed Quiao shall remain under the custody of the plaintiff who is the
innocent spouse.
Further, except for the personal and real properties already foreclosed by the RCBC, all the
remaining properties, namely:
1.coffee mill in Balongagan, Las Nieves, Agusan del Norte;
2.coffee mill in Durian, Las Nieves, Agusan del Norte;
3.corn mill in Casiklan, Las Nieves, Agusan del Norte;
4.coffee mill in Esperanza, Agusan del Sur;
5.a parcel of land with an area of 1,200 square meters located in Tungao, Butuan City;
6.a parcel of agricultural land with an area of 5 hectares located in Manila de Bugabos, Butuan
City;
7.a parcel of land with an area of 84 square meters located in Tungao, Butuan City;
8.Bashier Bon Factory located in Tungao, Butuan City;
shall be divided equally between herein [respondents] and [petitioner] subject to the respective
legitimes of the children and the payment of the unpaid conjugal liabilities of [P]45,740.00.
[Petitioner's] share, however, of the net profits earned by the conjugal partnership is forfeited
in favor of the common children.
He is further ordered to reimburse [respondents] the sum of [P]19,000.00 as attorney's fees and
litigation expenses of [P]5,000.00[.]
|||

The petitioner claims that the court a quo is wrong when it applied Article 129 of the Family Code, instead
of Article 102. He confusingly argues that Article 102 applies because there is no other provision under the
Family Code which defines net profits earned subject of forfeiture as a result of legal separation.

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Offhand, the trial court's Decision dated October 10, 2005 held that Article 129 (7) of the Family Code
applies in this case. We agree with the trial court's holding.
First, let us determine what governs the couple's property relation. From the record, we can deduce
that the petitioner and the respondent tied the marital knot on January 6, 1977. Since at the time of
the exchange of marital vows, the operative law was the Civil Code of the Philippines (R.A. No. 386) and
since they did not agree on a marriage settlement, the property relations between the petitioner and
the respondent is the system of relative community or conjugal partnership of gains. xxxx xxxx
|||

Thus, from the foregoing facts and law, it is clear that what governs the property relations of the
petitioner and of the respondent is conjugal partnership of gains. And under this property relation, "the
husband and the wife place in a common fund the fruits of their separate property and the income from
their work or industry." The husband and wife also own in common all the property of the conjugal
partnership of gains.
Second, since at the time of the dissolution of the petitioner and the respondent's marriage
the operative law is already the Family Code, the same applies in the instant case and the
applicable law in so far as the liquidation of the conjugal partnership assets and liabilities is
concerned is Article 129 of the Family Code in relation to Article 63 (2) of the Family Code. The
latter provision is applicable because according to Article 256 of the Family Code "[t]his 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 law."
Now, the petitioner asks: Was his vested right over half of the common properties of the conjugal
partnership violated when the trial court forfeited them in favor of his children pursuant to Articles 63 (2)
and 129 of the Family Code?
|||

We respond in the negative.

Indeed, the petitioner claims that his vested rights have been impaired, arguing: "As earlier adverted to,
the petitioner acquired vested rights over half of the conjugal properties, the same being owned in
common by the spouses. If the provisions of the Family Code are to be given retroactive application to the
point of authorizing the forfeiture of the petitioner's share in the net remainder of the conjugal
partnership properties, the same impairs his rights acquired prior to the effectivity of the Family Code."
In other words, the petitioner is saying that since the property relations between the spouses is governed
by the regime of Conjugal Partnership of Gains under the Civil Code, the petitioner acquired vested rights
over half of the properties of the Conjugal Partnership of Gains, pursuant to Article 143 of the Civil Code,
which provides: "All property of the conjugal partnership of gains is owned in common by the husband
and wife." Thus, since he is one of the owners of the properties covered by the conjugal partnership of
gains, he has a vested right over half of the said properties, even after the promulgation of the Family
Code; and he insisted that no provision under the Family Code may deprive him of this vested right by
virtue of Article 256 of the Family Code which prohibits retroactive application of the Family Code when
it will prejudice a person's vested right.
However, the petitioner's claim of vested right is not one which is written on stone. In Go, Jr. v. Court of
Appeals, we define and explained "vested right" in the following manner:
A vested right is one whose existence, effectivity and extent do not depend upon events foreign
to the will of the holder, or to the exercise of which no obstacle exists, and which is immediate
and perfect in itself and not dependent upon a contingency. The term "vested right" expresses
the concept of present fixed interest which, in right reason and natural justice, should be
protected against arbitrary State action, or an innately just and imperative right which
enlightened free society, sensitive to inherent and irrefragable individual rights, cannot deny.
To be vested, a right must have become a title — legal or equitable — to the present or future
enjoyment of property. (Citations omitted)
|||

In our en banc Resolution dated October 18, 2005 for ABAKADA Guro Party List Officer Samson S.
Alcantara, et al. v. The Hon. Executive Secretary Eduardo R. Ermita, we also explained:
The concept of "vested right" is a consequence of the constitutional guaranty of due process
that expresses a present fixed interest which in right reason and natural justice is protected
against arbitrary state action; it includes not only legal or equitable title to the enforcement of

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 a demand but also exemptions from new obligations created after the right has become vested.
Rights are considered vested when the right to enjoyment is a present interest, absolute,
unconditional, and perfect or fixed and irrefutable. (Emphasis and underscoring supplied)

From the foregoing, it is clear that while one may not be deprived of his "vested right," he may lose the
same if there is due process and such deprivation is founded in law and jurisprudence.
In the present case, the petitioner was accorded his right to due process. First, he was well-aware that the
respondent prayed in her complaint that all of the conjugal properties be awarded to her. In fact, in his
Answer, the petitioner prayed that the trial court divide the community assets between the petitioner
and the respondent as circumstances and evidence warrant after the accounting and inventory of all the
community properties of the parties. Second, when the Decision dated October 10, 2005 was
promulgated, the petitioner never questioned the trial court's ruling forfeiting what the trial court termed
as "net profits," pursuant to Article 129 (7) of the Family Code. Thus, the petitioner cannot claim being
deprived of his right to due process.
Furthermore, we take note that the alleged deprivation of the petitioner's "vested right" is one founded,
not only in the provisions of the Family Code, but in Article 176 of the Civil Code. This provision is like
Articles 63 and 129 of the Family Code on the forfeiture of the guilty spouse's share in the conjugal
partnership profits. The said provision says:
Art. 176.In case of legal separation, the guilty spouse shall forfeit his or her share of the conjugal
partnership profits, which shall be awarded to the children of both, and the children of the guilty
spouse had by a prior marriage. However, if the conjugal partnership property came mostly or
entirely from the work or industry, or from the wages and salaries, or from the fruits of the
separate property of the guilty spouse, this forfeiture shall not apply.
In case there are no children, the innocent spouse shall be entitled to all the net profits.

From the foregoing, the petitioner's claim of a vested right has no basis considering that even under Article
176 of the Civil Code, his share of the conjugal partnership profits may be forfeited if he is the guilty party
in a legal separation case. Thus, after trial and after the petitioner was given the chance to present his
evidence, the petitioner's vested right claim may in fact be set aside under the Civil Code since the trial
court found him the guilty party.
More, in Abalos v. Dr. Macatangay, Jr., we reiterated our long-standing ruling that:
[P]rior to the liquidation of the conjugal partnership, the interest of each spouse in the conjugal
assets is inchoate, a mere expectancy, which constitutes neither a legal nor an equitable estate,
and does not ripen into title until it appears that there are assets in the community as a result
of the liquidation and settlement. The interest of each spouse is limited to the net remainder or
"remanente liquido" (haber ganancial) resulting from the liquidation of the affairs of the
partnership after its dissolution. Thus, the right of the husband or wife to one-half of the conjugal
assets does not vest until the dissolution and liquidation of the conjugal partnership, or after
dissolution of the marriage, when it is finally determined that, after settlement of conjugal
obligations, there are net assets left which can be divided between the spouses or their
respective heirs. (Citations omitted)

Finally, as earlier discussed, the trial court has already decided in its Decision dated October 10, 2005 that
the applicable law in this case is Article 129 (7) of the Family Code. The petitioner did not file a motion for
reconsideration nor a notice of appeal. Thus, the petitioner is now precluded from questioning the trial
court's decision since it has become final and executory. The doctrine of immutability and unalterability
of a final judgment prevents us from disturbing the Decision dated October 10, 2005 because final and
executory decisions can no longer be reviewed nor reversed by this Court. ES
From the above discussions, Article 129 of the Family Code clearly applies to the present case since the
parties' property relation is governed by the system of relative community or conjugal partnership of gains
and since the trial court's Decision has attained finality and immutability.
The net profits of the conjugal partnership
of gains are all the fruits of the separate
properties of the spouses and the products
of their labor and industry.
The petitioner inquiries from us the meaning of "net profits" earned by the conjugal partnership for
purposes of effecting the forfeiture authorized under Article 63 of the Family Code. He insists that since

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there is no other provision under the Family Code, which defines "net profits" earned subject of forfeiture
as a result of legal separation, then Article 102 of the Family Code applies.
What does Article 102 of the Family Code say? Is the computation of "net profits" earned in the conjugal
partnership of gains the same with the computation of "net profits" earned in the absolute community?
Now, we clarify.
First and foremost, we must distinguish between the applicable law as to the property relations between
the parties and the applicable law as to the definition of "net profits." As earlier discussed, Article 129 of
the Family Code applies as to the property relations of the parties. In other words, the computation and
the succession of events will follow the provisions under Article 129 of the said Code. Moreover, as to the
definition of "net profits," we cannot but refer to Article 102 (4) of the Family Code, since it expressly
provides that for purposes of computing the net profits subject to forfeiture under Article 43, No. (2) and
Article 63, No. (2), Article 102 (4) applies. In this provision, net profits "shall be the increase in value
between the market value of the community property at the time of the celebration of the marriage and
the market value at the time of its dissolution." Thus, without any iota of doubt, Article 102 (4) applies to
both the dissolution of the absolute community regime under Article 102 of the Family Code, and to the
dissolution of the conjugal partnership regime under Article 129 of the Family Code. Where lies the
difference? As earlier shown, the difference lies in the processes used under the dissolution of the
absolute community regime under Article 102 of the Family Code, and in the processes used under the
dissolution of the conjugal partnership regime under Article 129 of the Family Code.
Let us now discuss the difference in the processes between the absolute community regime and the
conjugal partnership regime.
On Absolute Community Regime:
When a couple enters into a regime of absolute community, the husband and the wife becomes joint
owners of all the properties of the marriage. Whatever property each spouse brings into the marriage,
and those acquired during the marriage (except those excluded under Article 92 of the Family Code) form
the common mass of the couple's properties. And when the couple's marriage or community is dissolved,
that common mass is divided between the spouses, or their respective heirs, equally or in the proportion
the parties have established, irrespective of the value each one may have originally owned.
Under Article 102 of the Family Code, upon dissolution of marriage, an inventory is prepared, listing
separately all the properties of the absolute community and the exclusive properties of each; then the
debts and obligations of the absolute community are paid out of the absolute community's assets and if
the community's properties are insufficient, the separate properties of each of the couple will be solidarily
liable for the unpaid balance. Whatever is left of the separate properties will be delivered to each of them.
The net remainder of the absolute community is its net assets, which shall be divided between the
husband and the wife; and for purposes of computing the net profits subject to forfeiture, said profits
shall be the increase in value between the market value of the community property at the time of the
celebration of the marriage and the market value at the time of its dissolution. S
Applying Article 102 of the Family Code, the "net profits" requires that we first find the market value of
the properties at the time of the community's dissolution. From the totality of the market value of all the
properties, we subtract the debts and obligations of the absolute community and this result to the net
assets or net remainder of the properties of the absolute community, from which we deduct the market
value of the properties at the time of marriage, which then results to the net profits.
Granting without admitting that Article 102 applies to the instant case, let us see what will happen if we
apply Article 102:
(a)According to the trial court's finding of facts, both husband and wife have no separate properties, thus,
the remaining properties in the list above are all part of the absolute community. And its market value at
the time of the dissolution of the absolute community constitutes the "market value at dissolution."
(b)Thus, when the petitioner and the respondent finally were legally separated, all the properties which
remained will be liable for the debts and obligations of the community. Such debts and obligations will be
subtracted from the "market value at dissolution."
(c)What remains after the debts and obligations have been paid from the total assets of the absolute
community constitutes the net remainder or net asset. And from such net asset/remainder of the

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petitioner and respondent's remaining properties, the market value at the time of marriage will be
subtracted and the resulting totality constitutes the "net profits."
(d)Since both husband and wife have no separate properties, and nothing would be returned to each of
them, what will be divided equally between them is simply the "net profits." However, in the Decision
dated October 10, 2005, the trial court forfeited the half-share of the petitioner in favor of his children.
Thus, if we use Article 102 in the instant case (which should not be the case), nothing is left to the
petitioner since both parties entered into their marriage without bringing with them any property.
On Conjugal Partnership Regime:
Before we go into our disquisition on the Conjugal Partnership Regime, we make it clear that Article 102
(4) of the Family Code applies in the instant case for purposes only of defining "net profit."As earlier
explained, the definition of "net profits" in Article 102 (4) of the Family Code applies to both the absolute
community regime and conjugal partnership regime as provided for under Article 63, No. (2) of the Family
Code, relative to the provisions on Legal Separation.
Now, when a couple enters into a regime of conjugal partnership of gains under Article 142 of the Civil
Code, "the husband and the wife place in common fund the fruits of their separate property and income
from their work or industry, and divide equally, upon the dissolution of the marriage or of the partnership,
the net gains or benefits obtained indiscriminately by either spouse during the marriage." From the
foregoing provision, each of the couple has his and her own property and debts. The law does not intend
to effect a mixture or merger of those debts or properties between the spouses. Rather, it establishes a
complete separation of capitals. EAICTS
Considering that the couple's marriage has been dissolved under the Family Code, Article 129 of the same
Code applies in the liquidation of the couple's properties in the event that the conjugal partnership of
gains is dissolved, to wit:
Art. 129.Upon the dissolution of the conjugal partnership regime, the following procedure shall
apply:
(1)An inventory shall be prepared, listing separately all the properties of the conjugal partnership
and the exclusive properties of each spouse.
(2)Amounts advanced by the conjugal partnership in payment of personal debts and obligations
of either spouse shall be credited to the conjugal partnership as an asset thereof.
(3)Each spouse shall be reimbursed for the use of his or her exclusive funds in the acquisition of
property or for the value of his or her exclusive property, the ownership of which has been
vested by law in the conjugal partnership.
(4)The debts and obligations of the conjugal partnership shall be paid out of the conjugal assets.
In case of insufficiency of said assets, the spouses shall be solidarily liable for the unpaid balance
with their separate properties, in accordance with the provisions of paragraph (2) of Article 121.
(5)Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to
each of them.
(6)Unless the owner had been indemnified from whatever source, the loss or deterioration of
movables used for the benefit of the family, belonging to either spouse, even due to fortuitous
event, shall be paid to said spouse from the conjugal funds, if any.
(7)The net remainder of the conjugal partnership properties shall constitute the profits, which
shall be divided equally between husband and wife, unless a different proportion or division was
agreed upon in the marriage settlements or unless there has been a voluntary waiver or
forfeiture of such share as provided in this Code.
(8)The presumptive legitimes of the common children shall be delivered upon the partition in
accordance with Article 51.
(9)In the partition of the properties, the conjugal dwelling and the lot on which it is situated
shall, unless otherwise agreed upon by the parties, be adjudicated to the spouse with whom the
majority of the common children choose to remain. Children below the age of seven years are
deemed to have chosen the mother, unless the court has decided otherwise. In case there is no
such majority, the court shall decide, taking into consideration the best interests of said children.

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In the normal course of events, the following are the steps in the liquidation of the properties of the
spouses:
(a)An inventory of all the actual properties shall be made, separately listing the couple's conjugal
properties and their separate properties. In the instant case, the trial court found that the couple has no
separate properties when they married. Rather, the trial court identified the following conjugal
properties, to wit:
1.coffee mill in Balongagan, Las Nieves, Agusan del Norte;
2.coffee mill in Durian, Las Nieves, Agusan del Norte;
3.corn mill in Casiklan, Las Nieves, Agusan del Norte;
4.coffee mill in Esperanza, Agusan del Sur;
5.a parcel of land with an area of 1,200 square meters located in Tungao, Butuan City;
6.a parcel of agricultural land with an area of 5 hectares located in Manila de Bugabos, Butuan
City;
7.a parcel of land with an area of 84 square meters located in Tungao, Butuan City;
8.Bashier Bon Factory located in Tungao, Butuan City.

(b)Ordinarily, the benefit received by a spouse from the conjugal partnership during the marriage is
returned in equal amount to the assets of the conjugal partnership; and if the community is enriched at
the expense of the separate properties of either spouse, a restitution of the value of such properties to
their respective owners shall be made.
(c)Subsequently, the couple's conjugal partnership shall pay the debts of the conjugal partnership; while
the debts and obligation of each of the spouses shall be paid from their respective separate properties.
But if the conjugal partnership is not sufficient to pay all its debts and obligations, the spouses with their
separate properties shall be solidarily liable.
(d)Now, what remains of the separate or exclusive properties of the husband and of the wife shall be
returned to each of them. In the instant case, since it was already established by the trial court that the
spouses have no separate properties, there is nothing to return to any of them. The listed properties
above are considered part of the conjugal partnership. Thus, ordinarily, what remains in the above-listed
properties should be divided equally between the spouses and/or their respective heirs. However, since
the trial court found the petitioner the guilty party, his share from the net profits of the conjugal
partnership is forfeited in favor of the common children, pursuant to Article 63 (2) of the Family Code.
Again, lest we be confused, like in the absolute community regime, nothing will be returned to the guilty
party in the conjugal partnership regime, because there is no separate property which may be accounted
for in the guilty party's favor.
In the discussions above, we have seen that in both instances, the petitioner is not entitled to any property
at all. Thus, we cannot but uphold the Decision dated October 10, 2005 of the trial court. However, we
must clarify, as we already did above, the Order dated January 8, 2007.--- Brigido B. Quiao vs. Rita C.
Quiao, et al., G.R. No. 176556, July 4, 2012 citing Abalos vs. Macatangay, Jr., 482 Phil. 877-894 (2004)

Properties. The absolute community of property or the conjugal partnership, as

the case may be, shall be dissolved and liquidated, but the GUILTY SPOUSE shall
have no share in the net profits of the community property or conjugal partnership
of property. The guilty spouse’s share shall be forfeited in favor of:
1) the common children, or
2) if there are none, the children of the guilty spouse by a previous marriage,
or
3) in default of children, the innocent spouse.

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 a) Forfeiture. The rule on forfeiture also applies to annulment of voidable
marriage and declaration of nullity of the void marriage as well as
termination of a subsequent marriage (in case of reappearance of a spouse
who was declared presumptively dead) --- Article 43[2] in relation to Arts. 50
and 63[2], FC; Quiao vs. Quiao, 675 SCRA 642 (2012); Pana vs. Heirs of Jose
Juanites, Sr., 687 SCRA 414 (2012).

VI. Reconciliation:

A. In General. Reconciliation is the agreement by the spouses to live together again

and resume conjugal life.

How Effected. If the spouses reconcile, a joint manifestation of reconciliation under

oath duly signed by the spouses shall be filed with the court in the same proceeding
for legal separation (Article 65, FC), to wit:

ARTICLE 65. If the spouses should reconcile, the corresponding joint

manifestation under oath duly signed by them shall be filed with the
court in the same proceeding for legal separation. (n)

In fact court approval is not required.

B. Effects of Reconciliation (Article 66, FC)

ARTICLE 66. The reconciliation referred to in the preceding

Article shall have the following consequences:

(1) The legal separation proceedings, if still pending, shall

thereby be terminated in whatever stage; and

(2) The final decree of legal separation shall be set aside, but
the separation of property and any forfeiture of the share
of the guilty spouse already effected shall subsist, unless
the spouses agree to revive their former property regime.

The court order containing the foregoing shall be recorded in

the proper civil registries. (108a)

Effect of Reconciliation:
1) if still pending, shall thereby be terminated in whatever stage;

2) final decree of legal separation shall be set aside, but the separation of
property and any forfeiture of the share of the guilty spouse already effected
shall subsist, unless the spouses agree to revive their former property regime.

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 If the spouses agree to revive their former property regime, the following shall
be observed/agreed/specified to by the spouses, to wit:

ARTICLE 67. The agreement to revive the former property

regime referred to in the preceding Article shall be executed
under oath and shall specify:

(1) The properties to be contributed anew to the restored

regime;

(2) Those to be retained as separate properties of each spouse;

and

(3) The names of all their known creditors, their addresses and
the amounts owing to each.

The agreement of revival and the motion for its approval shall
be filed with the court in the same proceeding for legal
separation, with copies of both furnished to the creditors
named therein. After due hearing, the court shall, in its order,
take measures to protect the interest of creditors and such
order shall be recorded in the proper registries of property.

The recording of the order in the registries of property shall not

prejudice any creditor not listed or not notified, unless the
debtor-spouse has sufficient separate properties to satisfy the
creditor's claim. (195a, 108a)

Problem:

If a man commits several acts of sexual infidelity, particularly in 2002, 2003, 2004, 2005, the
prescriptive period to file for legal separation runs from 2002. State if this is true or false.

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A: False. Each sexual infidelity is a cause for legal separation. Hence, the five-year prescriptive
period for filing legal separation runs every time there is sexual infidelity. Thus, four separate
prescriptive periods commenced from 2002 to 2005. The prescriptive period for the last act of
sexual infidelity in 2005 prescribed in 2011.

TITLE III
Rights and Obligations between Husband and Wife

I. Basic Obligation

The husband and wife are obliged to (Article 68, FC):

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

Essential Marital Obligations:

1) Obliged to live together;
2) Observed mutual love, respect and fidelity;
3) Render mutual help and support;
4) Jointly fixe the family domicile;
5) Be jointly responsible for the support of the family;
6) Jointly manage the household.

A. Live Together:

1. The husband and wife shall fix the family domicile. In case of disagreement, the court
shall decide (Article 69, FC), to wit:

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

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

Duty to live together can only be fulfilled if the husband and wife are physically together --
-- The duty to live together can only be fulfilled if the husband and wife are physically together.
This takes into account the situations where the couple has many residences. If the husband
has to stay in or transfer to any one of their residences, the wife should necessarily be with
him in order that they may "live together." --- Imelda Romualdez-Marcos vs. COMELEC, G.R.
No. 119976, September 18, 1995

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 Procreation is one of the essential marital obligations.

One of the essential marital obligations under the Family Code is "To procreate children based
on the universal principle that procreation of children through sexual cooperation is the
basic end of marriage." Constant non-fulfillment of this obligation will finally destroy the
integrity or wholeness of the marriage. While the law provides that the husband and the wife
are obliged to live together, observe mutual love respect and fidelity the sanction therefor is
actually the "spontaneous, mutual affection between husband and wife and not any legal
mandate of court order" Love is useless unless it is shared with another. Indeed, no man is an
island, the cruelest act of a partner in marriage is to say "I could not have cared less." This is
so because an ungiven self is an unfulfilled self. The egoist has nothing but himself. In the
natural order, it is sexual intimacy which brings spouses wholeness and oneness. Sexual
intimacy is a gift and a participation in the mystery of creation. It is a function which enlivens
the hope of procreation and ensures the continuation of family relations. --- Chi Ming Tsoi vs.
CA and Gina Lao-Tsoi, G.R. No. 119190, January 16, 1997

2. The court may exempt one spouse from living with the other if the latter should live
abroad or there are other valid and compelling reasons (Article 69, FC).

- However, such exemption shall not apply if the same is not compatible
with the solidarity of the family.

3. A wife may justifiably refuse to live with her husband and sue for separate
maintenance if he maltreats her and cohabitation thereby becomes unbearable ---
Goitia vs. Campos Rueda, 35 Phil. 252 (1916)

It is true that the Family Code, obligates the spouses to love one another but this rule
sanctions affection and sexual intimacy, as expressions of love, that are both spontaneous
and mutual and not the kind which is unilaterally exacted by force or coercion.

Further, the delicate and reverent nature of sexual intimacy between a husband and wife
excludes cruelty and coercion. Sexual intimacy brings spouses wholeness and oneness. It is a
gift and a participation in the mystery of creation. It is a deep sense of spiritual communion.
It is a function which enlivens the hope of procreation and ensures the continuation of family
relations. It is an expressive interest in each other's feelings at a time it is needed by the other
and it can go a long way in deepening marital relationship. When it is egoistically utilized to
despoil marital union in order to advance a felonious urge for coitus by force, violence or
intimidation, the Court will step in to protect its lofty purpose, vindicate justice and protect
our laws and State policies. Besides, a husband who feels aggrieved by his indifferent or
uninterested wife's absolute refusal to engage in sexual intimacy may legally seek the
court's intervention to declare her psychologically incapacitated to fulfill an essential
marital obligation. But he cannot and should not demand sexual intimacy from her
coercively or violently. --- People v. Jumawan, G.R. No. 187495, April 21, 2014

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 Wife may acquire residence separate from her husband if the latter has given cause for
divorce.

If the wife can acquire a separate residence when her husband consents or acquiesces, there
is no reason why the law will not allow her to do so when the husband unlawfully ejects her
from the conjugal home in order that he may freely indulge in his illicit relations with another
woman. Under no other circumstance could a wife be more justified in establishing a
separate residence from that of her husband. For her to continue living with him, even if he
had permitted it, would have been a condonation of his flagrant breach of fidelity and
marital duty. Furthermore, in this case no longer was there an "identity of persons and of
interest between the husband and the wife." It is clear, therefore, that a married woman may
acquire a residence or domicile separate from that of her husband, during the existence of
the marriage, where the husband has given cause for divorce. --- Diego de la Viña vs. Antonio
Villareal, G.R. No. 13982, July 31, 1920

4. The courts cannot force a person to live or cohabit with his spouse, as cohabitation is
a purely personal obligation --- Arroyo vs. Vasquez, 42 Phil. 54 (1921). However, they
may impose material sanctions on such person, such as holding him or her liable for
support and damages. Also, abandonment without justifiable cause for more than
one year is a ground for legal separation.

Right of parties to cohabitation is sanctioned by mutual affection, not court order.

It would be unrealistic for the courts to compel or urge married couples to live together when
they are speaking of impossibility of cohabitation. For while marriage entitles both parties to
cohabitation or consortium, the sanction therefor is the spontaneous, mutual affection
between husband and wife and not any legal mandate or court order. This is due to the
inherent characteristic and nature of marriage in this jurisdiction. --- Lourdes Ramirez-
Cuaderno vs. Angel Cuaderno, G.R. No. L-20043, November 28, 1964

Courts cannot compel the restitution of the purely personal right of consortium

It is not within the province of the courts of this country to attempt to compel one of the
spouses to cohabit with, and render conjugal rights to, the other. Of course where the
property-rights of one of the pair are invaded, an action for restitution of such rights can be
maintained. But the Court disinclined to sanction the doctrine that an order, enforceable by
process of contempt, may be entered to compel the restitution of the purely personal right
of consortium. At best such an order can be effective for no other purpose than to compel
the spouses to live under the same roof. --- Mariano B. Arroyo vs. Dolores C. Vazquez de
Arroyo, G.R. No. 17014, August 11, 1921 & Alfonso Lacson vs. Carmen San Jose-Lacson and
the CA, G.R. No. L-23482, August 30, 1968

The wife is not entitled to support if she establishes her residence apart from the husband.

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 Although the husband and the wife are obliged to live together, observe mutual respect and
fidelity and render mutual help and assistance and that the wife is entitled to be supported,
our laws contain no provision compelling the wife to live with her husband where even
without legal justification she establishes her residence apart from that provided for by the
former. In such event, there is no plausible reason why she should be allowed any support
from the husband. --- Pilar Atilano vs. Chua Ching Beng, G.R. No. L-11086, March 29, 1958

5. It is possible for a husband to be held criminally liable for raping his own wife ----
Article 266 (c) of the Revised Penal Code as amended by R.A. No. 8353). In such a
case, the subsequent forgiveness by the wife as the offended party shall extinguish
the criminal action or the penalty.

Marital Rape

It is true that the Family Code obligates the spouses to love one another but this rule sanctions
affection and sexual intimacy as expressions of love that are both spontaneous and mutual
and not the kind which is unilaterally exacted by force or coercion.

Further, the delicate and reverent nature of sexual intimacy between a husband and wife
excludes cruelty and coercion. Sexual intimacy brings spouses wholeness and oneness. It is a
gift and a participation in the mystery of creation. It is a deep sense of spiritual communion.
It is a function which enlivens the hope of procreation and ensures the continuation of family
relations. It is an expressive interest in each other's feelings at a time it is needed by the other
and it can go a long way in deepening marital relationship. When it is egoistically utilized to
despoil marital union in order to advance a felonious urge for coitus by force, violence or
intimidation, the Court will step in to protect its lofty purpose, vindicate justice and protect
our laws and State policies. Besides, a husband who feels aggrieved by his indifferent or
uninterested wife's absolute refusal to engage in sexual intimacy may legally seek the court's
intervention to declare her psychologically incapacitated to fulfill an essential marital
obligation. But he cannot and should not demand sexual intimacy from her coercively or
violently.

Moreover, to treat marital rape cases differently from non-marital rape cases in terms of the
elements that constitute the crime and in the rules for their proof, infringes on the equal
protection clause. The Constitutional right to equal protection of the laws ordains that similar
subjects should not be treated differently, so as to give undue favor to some and unjustly
discriminate against others; no person or class of persons shall be denied the same protection
of laws, which is enjoyed, by other persons or other classes in like circumstances. ---- People
v. Jumawan, G.R. No. 187495, April 21, 2014

Husbands are once again reminded that marriage is not a license to forcibly rape their
wives. A husband does not own his wife's body by reason of marriage. By marrying, she does
not divest herself of the human right to an exclusive autonomy over her own body and thus,
she can lawfully opt to give or withhold her consent to marital coitus. A husband aggrieved
by his wife's unremitting refusal to engage in sexual intercourse cannot resort to felonious
force or coercion to make her yield. He can seek succor before the Family Courts that can
determine whether her refusal constitutes psychological incapacity justifying an annulment
of the marriage. --- People v. Jumawan, G.R. No. 187495, April 21, 2014

Sexual intimacy is an integral part of marriage because it is the spiritual and biological
communion that achieves the marital purpose of procreation. It entails mutual love and self-

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 giving and as such it contemplates only mutual sexual cooperation and never sexual coercion
or imposition. --- People v. Jumawan, G.R. No. 187495, April 21, 2014

B. Observe Mutual Love, Respect and Fidelity

C. Render Mutual Help and Support.

1. As expressly provided under Article 70, FC, the spouses are jointly responsible for the
support of the family, to wit:

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

Expenses for Support and for Household Management. The expenses for such support
and other conjugal obligations shall be paid from the community property and, in the
absence thereof, from the income or fruits of their separate properties. In case of
insufficiency or absence of said income or fruits, such obligations shall be satisfied form
the separate properties.

Preference in the application of obligation to the married couples’ properties:

First, obligation to support the family shall be paid from community property;
Second, if there is not enough community property, then from the income or fruits of the
spouse separate properties;
Third, if in case the fruits or income are not sufficient, then from their separate properties.

2. Likewise, the spouses are jointly responsible for the management of the household as
well as the expenses (Article 71, FC), to wit:
ARTICLE 71. The management of the household shall be the right
and duty of both spouses. The expenses for such management
shall be paid in accordance with the provisions of Article 70.
(115a)

3. The expenses for such support and other conjugal obligations (including household
expenses) shall be paid as follows:

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 a. From the community property;
b. In the absence of community property, from the income or fruits of the separate
properties of the spouses;
c. If there is no sufficient income or fruits, from the separate properties (Article 70
and 71, FC)

4. The obligation of mutual help and support is reinforced by other legal provisions, such
as --- I Tolentino 343:

a. Legitimacy of defense of spouse as justifying circumstance (RPC Article 11).

b. Increase of penalty in a crime by one spouse against the other (RPC Article
246).
c. Incapacity of one spouse to testify against the other (Rules of Court, Rule 123,
Section 26)
d. Right of one spouse to object to adoption by the other (Article 185, 188 of the
FC); and
e. Prohibition of donation between spouses (Article 87, FC)

II. Exercise of Profession:

A. Right to Practice: Either spouse may exercise any legitimate profession, occupation,
business or activity without the consent of the other (Article 73, FC), to wit:

ARTICLE 72. When one of the spouses neglects his or her

duties to the conjugal union or commits acts which tend to
bring danger, dishonor or injury to the other or to the
family, the aggrieved party may apply to the court for
relief. (116a)

Exercise of Profession. Either spouse may exercise any legitimate profession,

occupation, business or activity without the consent of the other. The latter may
object only on valid, serious, and moral grounds.

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

(1)The objection is proper, and

(2)Benefit has accrued to the family prior to the objection or thereafter. If the benefit
accrued prior to the objection, the resulting obligation shall be enforced against the
community property. If the benefit accrued thereafter, such obligation shall be
enforced against the separate property of the spouse who has not obtained consent.

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

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 ARTICLE 73. Either spouse may exercise any legitimate
profession, occupation, business or activity without the consent of the
other. The latter may object only on valid, serious, and moral grounds.

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

(1) The objection is proper, and

(2) Benefit has accrued to the family prior to the objection or

thereafter. If the benefit accrued prior to the objection, the resulting
obligation shall be enforced against the community property. If the
benefit accrued thereafter, such obligation shall be enforced against
the separate property of the spouse who has not obtained consent.

The foregoing provisions shall not prejudice the rights of creditors

who acted in good faith.

Wife who enters into contract is solely liable for damages awarded.

Under Article 117 of the Civil Code (now Article 73 of the Family Code), the wife may exercise any
profession, occupation or engage in business without the consent of the husband. Thus, since it
was only the wife who entered into the contract, she is solely liable for the damages awarded,
pursuant to the principle that contracts produce effect only as between the parties who execute
them. --- Nancy Go, et al. vs. Court of Appeals, G.R. No. 114791, May 29, 1997

Under R.A. No. 9262, the provision of spousal and child support specifically address one form
of violence committed against women — economic abuse.

D. "Economic abuse" refers to acts that make or attempt to make a woman financially
dependent which includes, but is not limited to the following:

1. Withdrawal of financial support or preventing the victim from engaging in any legitimate
profession, occupation, business or activity, except in cases wherein the other spouse/partner
objects on valid, serious and moral grounds as defined in Article 73 of the Family Code; . . . ---
Republic v. Yahon, G.R. No. 201043, June 16, 2014

TITLE IV
Property Relations Between Husband and Wife
CHAPTER 1
General Provisions
ARTICLE 74. The property relations between husband and wife shall be governed
in the following order:
(1) By marriage settlements executed before the marriage;
(2) By the provisions of this Code; and
(3) By the local custom. (118)

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The Four Types of Property Regime:
1) Regime of Absolute Community Property;
2) Complete Conjugal Partnership of Gain;
3) Complete Separation of Property;
4) Mixed Property Regime as may be agreed upon by the spouses in the Marriage Settlement

ARTICLE 75. The future spouses may, in the marriage settlements,

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

Governing Property Regime under the FC

1) Prenuptial Agreements;
2) Separation of property judicial decreed in an appropriate proceeding;
3) In the absence of the above, ABSOLUTE COMMUNITY OF PROPERT Regime.

Art. 74 - Property relations between husband and wife

As a general rule, any modification in the marriage settlements must be made before the celebration of
marriage. An exception to this rule is allowed provided that the modification is judicially approved and
refers only to the instances provided in Articles 66, 67, 128, 135 and 136 of the Family Code. ---- Noveras
v. Noveras, G.R. No. 188289, August 20, 2014

ARTICLE 76. In order that any modification in the marriage

settlements may be valid, it must be made before the celebration
of the marriage, subject to the provisions of Articles 66, 67, 128,
135 and 136. (121)

Art. 76 - Modifications in the marriage settlement

The Family Code itself provides in Article 76 that marriage settlements cannot be modified except prior
to marriage. . . . Post-marriage modification of such settlements can take place only where: (a) the
absolute community or conjugal partnership was dissolved and liquidated upon a decree of
legal separation; (b) the spouses who were legally separated reconciled and agreed to revive
their former property regime; (c) judicial separation of property had been had on the ground
that a spouse abandons the other without just cause or fails to comply with his obligations to
the family; (d) there was judicial separation of property under Article 135; (e) the spouses jointly
filed a petition for the voluntary dissolution of their absolute community or conjugal
partnership of gains.

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The sole issue presented in this case is whether or not the CA erred in holding that the conjugal properties
of spouses Efren and Melecia can be levied and executed upon for the satisfaction of Melecia's civil liability
in the murder case.

Ruling of the Court

To determine whether the obligation of the wife arising from her criminal liability is chargeable against
the properties of the marriage, the Court has first to identify the spouses' property relations.
Efren claims that his marriage with Melecia falls under the regime of conjugal partnership of gains, given
that they were married prior to the enactment of the Family Code and that they did not execute any
prenuptial agreement. Although the heirs of the deceased victims do not dispute that it was the Civil Code,
not the Family Code, which governed the marriage, they insist that it was the system of absolute
community of property that applied to Efren and Melecia. The reasoning goes: TADCSE
Admittedly, the spouses were married before the effectivity of the Family Code. But that fact
does not prevent the application of [A]rt. 94, last paragraph, of the Family Code because their
property regime is precisely governed by the law on absolute community. This finds support in
Art. 256 of the Family Code which states:
"This code shall have retroactive effect in so far as it does not prejudice or impair vested
or acquired rights in accordance with the Civil Code or other laws."
None of the spouses is dead. Therefore, no vested rights have been acquired by each over the
properties of the community. Hence, the liabilities imposed on the accused-spouse may properly
be charged against the community as heretofore discussed.

The RTC applied the same reasoning as above. 16 Efren and Melecia's property relation was admittedly
conjugal under the Civil Code but, since the transitory provision of the Family Code gave its provisions
retroactive effect if no vested or acquired rights are impaired, that property relation between the couple
was changed when the Family Code took effect in 1988. The latter code now prescribes in Article 75
absolute community of property for all marriages unless the parties entered into a prenuptial agreement.
As it happens, Efren and Melecia had no prenuptial agreement. The CA agreed with this position.
Both the RTC and the CA are in error on this point. While it is true that the personal stakes of each spouse
in their conjugal assets are inchoate or unclear prior to the liquidation of the conjugal partnership of gains
and, therefore, none of them can be said to have acquired vested rights in specific assets, it is evident
that Article 256 of the Family Code does not intend to reach back and automatically convert into
absolute community of property relation all conjugal partnerships of gains that existed before 1988
excepting only those with prenuptial agreements. CETIDH
The Family Code itself provides in Article 76 that marriage settlements cannot be modified except prior
to marriage.
Art. 76. In order that any modification in the marriage settlements may be valid, it must be
made before the celebration of the marriage, subject to the provisions of Articles 66, 67, 128,
135 and 136.

Clearly, therefore, the conjugal partnership of gains that governed the marriage between Efren and
Melecia who were married prior to 1988 cannot be modified except before the celebration of that
marriage.

the absolute
Post-marriage modification of such settlements can take place only where : (a)
community or conjugal partnership was dissolved and liquidated upon a decree
of legal separation; (b) the spouses who were legally separated reconciled and
agreed to revive their former property regime; (c) judicial separation of property
had been had on the ground that a spouse abandons the other without just cause
or fails to comply with his obligations to the family ; (d) there was judicial
separation of property under Article 135; (e) the spouses jointly filed a petition for

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the voluntary dissolution of their absolute community or conjugal partnership of
gains. None of these circumstances exists in the case of Efren and Melecia.
What is more, under the conjugal partnership of gains established by Article 142 of the Civil Code, the
husband and the wife place only the fruits of their separate property and incomes from their work or
industry in the common fund. Thus:
Art. 142. By means of the conjugal partnership of gains the husband and wife place in a common
fund the fruits of their separate property and the income from their work or industry, and divide
equally, upon the dissolution of the marriage or of the partnership, the net gains or benefits
obtained indiscriminately by either spouse during the marriage.

This means that they continue under such property regime to enjoy rights of
ownership over their separate properties. Consequently, to automatically change
the marriage settlements of couples who got married under the Civil Code into
absolute community of property in 1988 when the Family Code took effect would
be to impair their acquired or vested rights to such separate properties. I--- Efren
Pana vs. Heirs of Jose Juanite, Sr., et al., G.R. No. 164201, December 10, 2012

Marriage Settlement (Ante-nuptial agreement). It is the agreement entered into

by the future spouses fixing the property regime that should govern during the
existence of marriage.

Requisite of a valid Marriage Settlement:

1. It must be entered into before the celebration of marriage;

2. It must be in writing;
3. It must be signed by the parties;

ARTICLE 77. The marriage settlements and any modification

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

4. To affect third persons, it should be registered in the civil registry and registry of property;
and
5. It must fix terms and conditions of their property relations.

Additional signatories to a pre-nuptial agreements are the following:

1) Parents, if the spouse/s is/are 18 years to 21 years old (Article 78 of FC)

ARTICLE 78. A minor who according to law may contract marriage

may also enter into marriage settlements, but they shall be valid

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 only if the persons designated in Article 14 to give consent to the
marriage are made parties to the agreement, subject to the
provisions of Title IX of this Code. (120a)

2) Guardian, if the future spouse is suffering from civil interdiction or is disabled (Article 79
of FC).

ARTICLE 79. For the validity of any marriage settlements

executed by a person upon whom a sentence of civil
interdiction has been pronounced or who is subject to any
other disability, it shall be indispensable for the guardian
appointed by a competent court to be made a party
thereto. (123a)

Condition sine qua non for the validity and effectivity of a Marriage settlement:

Under Article 81 of the Family Code, the provision of the marriage settlement is void if the
marriage does not take place. Exception is those stipulation that do not depend upon the
celebration of the marriage, thus, the agreement shall remain in force.

ARTICLE 81. Everything stipulated in the settlements or contracts

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

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When Philippine Laws on property regime will not apply:

1) Where both spouses are alien, even if they are married in or reside in the Philippines;
2) As to the extrinsic validity of contracts affecting property NOT situated in the Philippines
and executed in the country where the property is located; and
3) As to the extrinsic validity of contracts entered into the Philippines but affecting property
situated in foreign country whose laws requires different formalities for its extrinsic
validity.

ARTICLE 80. In the absence of a contrary stipulation in the

marriage settlements, the property relations of the spouses shall
be governed by Philippine laws, regardless of the place of the
celebration of the marriage and their residence.

This rule shall not apply:

(1) Where both spouses are aliens;
(2) With respect to the extrinsic validity of contracts affecting
property not situated in the Philippines and executed in the
country where the property is located; and
(3) With respect to the extrinsic validity of contracts entered
into the Philippines but affecting property situated in a foreign
country whose laws require different formalities for their
extrinsic validity. (124a)

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 CHAPTER 2

Donations by Reason of Marriage

What are the requirements for a valid Donation Propter Nuptias?

ARTICLE 82. Donations by reason of marriage are those which are

(1) made before its celebration, (2) in consideration of the same,
and (3) in favor of one or both of the future spouses. (126)

ARTICLE 83. These donations are governed by the rules on

ordinary donations established in Title III of Book III of the Civil
Code, insofar as they are not modified by the following articles.
(127a) ---- Thus, must comply with the formalities of Donations.

What are the limits of Donation Propter Nuptias?

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

Can Mortgaged properties be donated under donation propter nuptias? What is the effect if he
same is foreclosed?

ARTICLE 85. Donations by reason of marriage of property subject

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

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What are the grounds for the revocation of donation propter nuptias?

ARTICLE 86. A donation by reason of marriage may be revoked by

the donor in the following cases:
(1) If the marriage is not celebrated or judicially declared void
ab initio except donations made in the marriage
settlements, which shall be governed by Article 81;
(2) When the marriage takes place without the consent of the
parents or guardian as required by law;
(3) When the marriage is annulled, and the donee acted in
bad faith;

(4) Upon legal separation, the donee being the guilty spouse;
(5) If it is with a resolutory condition and the condition is
complied with;
(6) When the donee has committed an act of ingratitude as
specified by the provisions of the Civil Code on donations
in general. (132a)

Can husband and wife make donation to each other during the subsistence of their marriage?

ARTICLE 87. 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 may give each
other on the occasion of any family rejoicing. The prohibition shall
also apply to persons living together as husband and wife without
a valid marriage. (133a)

Prohibition against donations between spouses likewise applies to donations between persons living
together in illicit relations.

The purchase and subsequent registration of the realty in the paramour's name was tantamount to a
donation by the husband to her. Such donation was void, because it was "made between persons
who were guilty of adultery or concubinage at the time of the donation." The prohibition
against donations between spouses must likewise apply to donations between persons living
together in illicit relations; otherwise, the latter would be better situated than the former. --- Milagros
Joaquino vs. Lourdes Reyes, G.R. No. 154645, July 13, 2004 & Erlinda A. Agapay vs. Carlina V. Palang, G.R.
No. 116668, July 28, 1997 & Cirila Arcaba vs. Erlinda Tabancura vda. de Batocael, G.R. No. 146683,
November 22, 2001

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The reason of the law prohibiting donation between spouses are the following:

1. To prevent the weaker spouse from being influenced by the stronger

spouse;
2. To protect creditors;
3. To prevent an indirect modification of the marriage settlement during
the marriage, which is not allowed under Article 76 of the FC.

Said prohibition covers even “indirect” donation, which would include a donation
b the spouses to his or her stepchild or of other person of whom the other spouse
is presumptive heir. This would be a circumvention of the prohibition under Article
134 of the Civil Code.

However, the prohibition only applies to donation inter vivos but not in donation
mortis causa, which are governed by the rules and law on testamentary succession.

This donation can be contested as to its validity by the donor, his heirs, or any
person prejudiced by the donation.

Ordinary Donations Donation Propter Nuptias

No limit except that donor must respect the
legitimes and must reserve enough for
support
Cannot include future property
If made by the future spouses to each other,
they cannot exceed 1/5 of the donor’s
present property
May include future property. Such donations
of future property shall be governed by the
provision on testamentary succession and
the formalities of wills (Article 84 FC)

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The cause for revocation are (1) appearance
of children; (2) non-compliance with
conditions; (3) ingratitude
The cause for revocation are as stated in
Article 86 of the FC, namely: (1) non-
celebration or declaration of nullity of
marriage; (2) lack of parental consent; (3)
annulment of marriage, with the donee in
bad faith; (4) legal separation, with the
donee as the guilty party; (5) fulfillment of
resolutory condition; (6) ingratitude. Note
that appearance of children is not a cause for
revocation.

The following Donations are revoked by operation of law and therefore do not
need court action:

1. When a subsequent marriage is contracted by one whose spouse has

been declared presumptively dead, if the donee had contracted marriage
in bad faith (Article 43[43], FC);

2. When the marriage is declared void ab initio or annulled, and the donee
is the guilty party (Article 50 in relation to Article 43[3] and Article 44, FC);
Note that the first instances apply when the donor is the innocent
spouse. If the donor is a 3rd party, an action for revocation would be
needed.

3. When the donation is made in the marriage settlement, and the

marriage does not take place (Article 81, in relation to Article 86[1], FC).

4. If the donation is subject to suspensive condition and the condition does

not take place.

Note: In the foregoing cases, assuming the property is not returned

despite the revocation, the donor may still have to file an action to
recover the property, but the prescriptive period would be longer (Article
1140 & 1141.

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Prescriptive Period for Action for Revocation of Donation (summary):

a. In case of legal separation, where the donee is the guilty spouse ---
within 5 years from the finality of the decree of legal separation (Article
64, FC);

b. If the marriage is not celebrated or is declared void ab initio --- 10 years

if written (Article 1144[1], NCC) but 6 years if oral (Article 1145[1], NCC);

c. If marriage takes place without the required parental consent --- 4 years,
being an injury not founded upon contract (Article 1146[1], NCC);

d. If the resolutory condition is not complied with --- 10 years if written

(Article 1144[1], NCC) but 6 years if oral (Article 1145[1], NCC);

e. If marriage is annulled --- 4 years, being an injury not founded upon

contract (Article 1146[1], NCC);

f. If the donee committed an act of ingratitude --- 1 year from the donor’s
knowledge of the fact (Article 769, NCC)

Problems:
1. On the occasion of Digna’s marriage to George, her father gave her a donation propter
nuptias of a car. Subsequently, the marriage was annulled because of the psychological
immaturity of George. May Digna’s father revoke the donation and get back the car?
Explain.

B. No, Digna’s father may not revoke the donation. Article 86, paragraph 3 provides that
a donation by reason of marriage can be annulled when the marriage is annulled, and
the donee acted in bad faith. In the present case, it does not appear that the donee
acted in bad faith.

2. H donated a parcel of land to W, his common-law wife. Later, they married, but soon afterwards
H died, survived only by a sister, S and W. S sued to recover the property donated, but W resisted.
Decide with reason (1977 Bar Exams).

A. S can recover only ½ of the property donated that pertains to H. Article 87 of the Family Code
provides that every donation or grant of gratuitous advantage, direct or indirect, between the
spouses during the marriage shall be void, except moderate gift which the spouses may give
each other on the occasion of the family rejoicing. The prohibition shall also apply to persons
living together as husband and wife without a valid marriage. In the present case, H made a
donation to W during their common law relationship. Hence, the prohibition against donation
applies to them.

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 CHAPTER 3
System of Absolute Community
SECTION 1
General Provisions

NATURE

Default Regime where the husband and wife are joint owners of all the properties of the marriage
both present and future properties and to be divided equally or in the proportion agreed upon,
irrespective of the value each one may have originally owned. (Art. 91 FC)
The default property regime of the spouse after August 3, 1988 is Absolute Community of
Property (ACP for brevity), which shall take effect at the precise moment that the marriage is
celebrated. Any stipulation, express or implied, for the commencement of the community
regime at any other time shall be void.

COMMENCEMENT

ACP shall commence at the precise moment that the marriage is celebrated. Any stipulation
express or implied, for the commencement of the regime at any other time shall be void (Article
88, FC)

ARTICLE 88. The absolute community of property between

spouses shall commence at the precise moment that the marriage
is celebrated. Any stipulation, express or implied, for the
commencement of the community regime at any other time shall
be void. (145a)

ADVANTAGES & DISADVANTAGES

ACP is simpler than Conjugal Partnership of Gain (CPG for brevity). It is also more in accordance
with the ideals of solidarity and common family life. However, it is generally less favorable to the
wealthier spouse who brings more property into the marriage.
The regime cannot be changed and the spouses cannot wavier their right during the marriage
under this regime of absolute community of property, except, if there is a judicial separation.

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WAIVER

No waiver of rights, shares and effects of the ACP during the marriage can be made (Article 89,
FC) and this is to protect a spouse from undue influence.
- Exception:
In case of judicial separation of property under Article 89 FC

- Form. The waiver (either during the marriage upon judicial separation of property, or after
dissolution or annulment of marriage) shall appear in a public instrument and shall be
recorded in the local civil registry where the marriage is recorded as well as in the proper
registries of property (Article 89 FC in relation to Article 77 FC)

- Remedy of creditors. The creditors of the spouse who made such waiver may petition the
court to rescind the waiver to the extent sufficient to cover the amount of their credits
(Article 89 FC in relation to Article 1052 NCC).

ARTICLE 89. No waiver of rights, interests, shares and effects of

the absolute community of property during the marriage can be
made except in case of judicial separation of property.

When the waiver takes place upon a judicial separation of

property, or after the marriage has been dissolved or annulled,
the same shall appear in a public instrument and shall be recorded
as provided in Article 77. The creditors of the spouse who made
such waiver may petition the court to rescind the waiver to the
extent of the amount sufficient to cover the amount of their
credits. (146a)

Thus, the New Civil Code provisions on co-ownership shall have suppletory application in all
matters not provided in this Chapter in Absolute Community Property Regime.

OWNERSHIP

Special Co-ownership with the law on Co-ownership of the NCC having suppletory application.
However, the following are the distinction between ACP Co-ownership and Ordinary Co-
ownership:

a. ACP involves only 2 parties (husband and wife) while Ordinary Co-ownership may
involve any number of co-owners.
b. In ACP, a spouse’s interest is not alienable inter vivos while in Ordinary Co-ownership,
a co-owner’s interest is freely alienable.
c. In ACP, a spouse generally cannot demand partition without cause. In Ordinary Co-
ownership, a co-owner may demand partition at will.

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 ARTICLE 90. The provisions on co-ownership shall apply to the
absolute community of property between the spouses in all
matters not provided for in this Chapter. (n)

When a couple enters into a regime of absolute community, the husband and the wife becomes joint
owners of all the properties of the marriage. Whatever property each spouse brings into the
marriage, and those acquired during the marriage (except those excluded under Article 92 of
the Family Code) form the common mass of the couple's properties. And when the couple's
marriage or community is dissolved, that common mass is divided between the spouses, or their
respective heirs, equally or in the proportion the parties have established, irrespective of the
value each one may have originally owned. ---- Brigido B. Quiao vs. Rita C. Quiao, et al., G.R. No.
176556, July 4, 2012 citing Abalos v. Macatangay, Jr., 482 Phil. 877-894 (2004)

And the interest of either spouse in the community property cannot be conveyed during the
marriage (inter vivos) but may be conveyed by will (testate succession), to wit:

ARTICLE 97. Either spouse may dispose by will of his or her

interest in the community property. (n)

SECTION 2
What Constitutes Community Property

COMPOSITION

ACP shall consists of ALL the property owned by the spouses at the time of the celebration of the
marriage (present) or acquired thereafter (future property) Article 91 FC.

Presumption:
Property acquired during the marriage is presumed to belong to the ACP, unless it is proved that
it is one of those exclude therefrom under Article 93 FC, and for this presumption to apply, it
must be proven that the property in question was acquired during the marriage such that it
cannot be rebutted by the mere fact that the deed of sale or the certificate of title is in the name
of one of the spouses only (Article 116 FC)

ARTICLE 91. Unless otherwise provided in this Chapter or in the

marriage settlements, the community property shall consist of all
the property owned by the spouses at the time of the celebration
of the marriage or acquired thereafter. (199a)

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EXCLUSION

Properties acquired during the marriage by gratuitous title (gifts or inheritance) by either spouse,
and the fruits and income thereof unless the donor, testator or grantor expressly provides that
they shall form part of the community property (Article 92 FC)

Property for personal and exclusive use of either spouse except jewelry (Article 92 FC)

Property acquired before the marriage by either spouse who has legitimate descendants by a
former marriage, and the fruits and income thereof. The purpose of the rule is to protect the
rights of the legitimate descendants of the first marriage, who may be prejudiced should the
properties of the first marriage be merged with the properties of the second marriage.

The reserved property will not necessarily be inherited by the children of the first marriage; they
may be disposed of by the owner-spouse in his or her lifetime.

Property excluded by the marriage settlements (Article 91 FC)

ARTICLE 92. The following shall be excluded from the community

property:
(1) Property acquired during the marriage by gratuitous title by
either spouse, and the fruits as well as the income thereof, if
any, unless it is expressly provided by the donor, testator or
grantor that they shall form part of the community property;
(2) Property for personal and exclusive use of either spouse;
however, jewelry shall form part of the community property;
(3) Property acquired before the marriage by either spouse who
has legitimate descendants by a former marriage, and the
fruits as well as the income, if any, of such property. (201a)

When a couple enters into a regime of absolute community, the husband and the wife becomes joint
owners of all the properties of the marriage. Whatever property each spouse brings into the
marriage, and those acquired during the marriage (except those excluded under Article 92 of
the Family Code) form the common mass of the couple's properties. And when the couple's
marriage or community is dissolved, that common mass is divided between the
spouses, or their respective heirs, equally or in the proportion the parties have
established, irrespective of the value each one may have originally owned . ----
Brigido B. Quiao vs. Rita C. Quiao, et al., G.R. No. 176556, July 4, 2012 citing Abalos v. Macatangay, Jr., 482
Phil. 877-894 (2004)

And that properties acquired during the marriage is (disputably) presumed to belong to the
community regime, unless it is proved that it is one of those excluded therefrom, to wit:

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 ARTICLE 93. Property acquired during the marriage is presumed
to belong to the community, unless it is proved that it is one of
those excluded therefrom. (160a)

SECTION 3
Charges Upon and Obligations of the Absolute Community

ARTICLE 94. The absolute community of property shall be liable for:

(1) The support of the spouses, their common children, and legitimate children
of either spouse; however, the support of illegitimate children shall be governed
by the provisions of this Code on Support;
(2) All debts and obligations contracted during the marriage by the designated
administrator-spouse for the benefit of the community, or by both spouses, or by
one spouse with the consent of the other;
(3) Debts and obligations contracted by either spouse without the consent of
the other to the extent that the family may have been benefited;
(4) All taxes, liens, charges and expenses, including major or minor repairs,
upon the community property;
(5) All taxes and expenses for mere preservation made during marriage upon
the separate property of either spouse used by the family;
(6) Expenses to enable either spouse to commence or complete a professional
or vocational course, or other activity for self-improvement;
(7) Antenuptial debts of either spouse insofar as they have redounded to the
benefit of the family;
(8) The value of what is donated or promised by both spouses in favor of their
common legitimate children for the exclusive purpose of commencing or
completing a professional or vocational course or other activity for self-
improvement;
(9) Antenuptial debts of either spouse other than those falling under
paragraph (7) of this Article, the support of illegitimate children of either spouse,
and liabilities incurred by either spouse by reason of a crime or a quasi-delict, in
case of absence or insufficiency of the exclusive property of the debtor-spouse,
the payment of which shall be considered as advances to be deducted from the
share of the debtor-spouse upon liquidation of the community; and

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(10) Expenses of litigation between the spouses unless the suit is found to be
groundless.
If the community property is insufficient to cover the foregoing liabilities, except
those falling under paragraph (9), the spouses shall be solidarily liable for the
unpaid balance with their separate properties. (161a, 162a, 163a, 202a-205a)

Primarily anchored as the last issue is the erroneous theory of divisibility of petitioners' obligation and
their joint liability therefor. The Court needs to dwell on it lengthily.
Given the solidary liability of petitioners to satisfy the judgment award, respondent sheriff cannot really
be faulted for levying upon and then selling at public auction the property of petitioner Sunga-Chan to
answer for the whole obligation of petitioners. The fact that the levied parcel of land is a conjugal
or community property, as the case may be, of spouses Norberto and Sunga-Chan does not per
se vitiate the levy and the consequent sale of the property. Verily, said property is not among
those exempted from execution under Section 13, Rule 39 of the Rules of Court.
And it cannot be overemphasized that the TRO issued by the Court on May 31, 2005 came after the auction
sale in question.
Parenthetically, the records show that spouses Sunga-Chan and Norberto were married on February 4,
1992, or after the effectivity of the Family Code on August 3, 1988. Withal, their absolute community
property may be held liable for the obligations contracted by either spouse. Specifically, Art. 94
of said Code pertinently provides:
Art. 94. The absolute community of property shall be liable for:
(1) . . .
(2) All debts and obligations contracted during the marriage by the designated administrator-
spouse for the benefit of the community, or by both spouses, or by one spouse with the consent
of the other.
(3) Debts and obligations contracted by either spouse without the consent of the other to the
extent that the family may have been benefited. (Emphasis ours).

Absent any indication otherwise, the use and appropriation by petitioner Sunga-Chan of the
assets of Shellite even after the business was discontinued on May 30, 1992 may reasonably
be considered to have been used for her and her husband's benefit.
It may be stressed at this juncture that Chua's legitimate claim against petitioners, as readjusted in this
disposition, amounts to only PhP5,529,392.52, whereas Sunga-Chan's auctioned property which Chua
acquired, as the highest bidder, fetched a price of PhP8 million. In net effect, Chua owes petitioner Sunga-
Chan the amount of PhP2,470,607.48, representing the excess of the purchase price over his legitimate
claims. ATDHSC
Following the auction, the corresponding certificate of sale dated January 15, 2004 was annotated on TCT
No. 208782. On January 21, 2005, Chua moved for the issuance of a final deed of sale (1) to order the
Registry of Deeds of Manila to cancel TCT No. 208782; (2) to issue a new TCT in his name; and (3) for the
RTC to issue a writ of possession in his favor. And as earlier stated, the RTC granted Chua's motion, albeit
the Court restrained the enforcement of the RTC's package of orders via a TRO issued on May 31, 2005. -
--- Lilibeth Sunga-Chan, et al. vs. Court of Appeals, et al., G.R. No. 164401, June 25, 2008

Problem:

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 1. Which of the following are chargeable to or from part of the community property: (a)
educational expenses of the spouse, (b) debts that already exists during the marriage,
(c) lotto winning and (d) horse race bet.

A. (a) The education expenses shall be chargeable to the community property because
Article 94 (6) provides that expenses to enable either spouse to commence or
continue a professional or vocational course is chargeable to the community property.

(b) Antenuptial debts are chargeable insofar as the redounded to the benefit of the
family as provided under Article 94 (7).

(c) Lotto winnings belongs to the community properties pursuant to Article 95 that
provides that any winnings in any game of chance or gambling shall form part of the
community property, to wit:

ARTICLE 95. Whatever may be lost during the marriage in

any game of chance, betting, sweepstakes, or any other
kind of gambling, whether permitted or prohibited by law,
shall be borne by the loser and shall not be charged to the
community but any winnings therefrom shall form part
of the community property. (164a)

(d) The amount used for horse race bet shall be borne by the loser – the spouse
who made the bet – and is not chargeable to the community property pursuant to
Article 95 of the Family Code.

SECTION 4
Ownership, Administration, Enjoyment and Disposition of the
Community Property

The spouses shall have JOINT ADMINISTRATION of the community properties including
disposition and encumbrance subject to the following rules:
1) In case of disagreement, husband’s decision shall prevail.
2) In case one spouse is incapacitated or unable to participate in the administration of the
community properties, other spouse may assume sole powers.
3) Any donation is void if without the written consent of the other spouse.

ARTICLE 96. The administration and enjoyment of the

community property shall belong to both spouses jointly. In case
of disagreement, the husband's decision shall prevail, subject to
recourse to the court by the wife for proper remedy, which must
be availed of within five years from the date of the contract
implementing such decision.

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 In the event that one spouse is incapacitated or otherwise unable
to participate in the administration of the common properties,
the other spouse may assume sole powers of administration.
These powers do not include the power of disposition or
encumbrance which must have the authority of the court or the
written consent of the other spouse. In the absence of such
authority or consent, the dis- may be perfceteed as a binding
contract upon the acceptance by the other spouse or
authorization by the court before the offer is withdrawn by either
or both offerors. (206a)

Except that either spouse may, without the consent of the other, make moderate
donations from the community property for charity or on occasions of family rejoicing or
family distress.

ARTICLE 98. Neither spouse may donate any community

property without the consent of the other. However, either
spouse may, without the consent of the other, make moderate
donations from the community property for charity or on
occasions of family rejoicing or family distress. (n)

Husband's management of conjugal property is a mere privilege given him by law.

The husband's management of the conjugal estate is not a natural right like his right to do as he pleases
with his private affairs. It is a mere privilege or preference given him by law on the assumption
that he is better able to handle the administration. It results that when his supposed superiority
over the woman in this regard; when indeed, as in this case, his ability as manager totally
disappears, the raison d' etre of the privilege vanishes, and it is only just and proper that his co-
partner should take control. --- Robert C. Peyer vs. Felix Martinez, G.R. No. L-3500, January 12, 1951

Article 124 of the Family Code which applies to conjugal partnership property, is a reproduction of Article
96 of the Family Code which applies to community property. Both Article 96 and Article 127 of the
Family Code provide that the powers do not include disposition or encumbrance without the
written consent of the other spouse. Any disposition or encumbrance without the written
consent shall be void. However, both provisions also state that "the transaction shall be
construed as a continuing offer on the part of the consenting spouse and the third person, and
may be perfected as a binding contract upon the acceptance by the other spouse . . . before the
offer is withdrawn by either or both offerors." . . . The execution of the SPA is the acceptance
by the other spouse that perfected the continuing offer as a binding contract between the
parties, making the Deed of Real Estate Mortgage a valid contract. --- Arturo Sarte Flores vs. Sps.
Enrico, Jr. and Edna Lindo, G.R. No. 183984, April 13, 2011

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Jader-Manalo vs. Camaisa (374 SCRA 498)

Re: Articles 96 and 124, 2nd paragraph, FC – Contract to Sell of conjugal properties signed by the
husband without written consent of wife is not valid, even if wife actually participated in the negotiations.
The court authority under Article 124 is only resorted to in cases where the spouse who does not give
consent is incapacitated.

SECTION 5
Dissolution of Absolute Community Regime

The four grounds for the dissolution of the absolute community of properties are?
1) Death of either spouses;
2) Legal separation;
3) Annulment or declaration of nullity of marriage; and
4) Judicial Separation of Property

ARTICLE 99. The absolute community terminates:

(1) Upon the death of either spouse;
(2) When there is a decree of legal separation;
(3) When the marriage is annulled or declared void; or
(4) In case of judicial separation of property during the
marriage under Articles 134 to 138. (175a)

The grant of the judicial separation of the absolute community property automatically dissolves
the absolute community regime, as stated in the 4th paragraph of Article 99 of the Family Code. . . ---
- Noveras v. Noveras, G.R. No. 188289, August 20, 2014

Note that separation in fact is not a ground for dissolution. Abandonment by one spouse is not
a ground for dissolution. However, the spouse who abandoned will not be entitled to support
and the aggrieved spouse may file any of the following: (1) petition for receivership, (2) judicial
separation, (3) petition for authority to be the sole administrator.

ARTICLE 101. If a spouse without just cause abandons the other

or fails to comply with his or her obligations to the family, the
aggrieved spouse may petition the court for receivership, for
judicial separation of property or for authority to be the sole
administrator of the absolute community, subject to such
precautionary conditions as the court may impose.
The obligations to the family mentioned in the preceding
paragraph refer to marital, parental or property relations.

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And, there is abandonment if the spouse leaves without intent to return. This intent of absence
is presumed if the spouse does not return for three months.

A spouse is deemed to have abandoned the other when he or she

has left the conjugal dwelling without any intention of returning.
The spouse who has left the conjugal dwelling for a period of
three months or has failed within the same period to give any
information as to his or her whereabouts shall be prima facie
presumed to have no intention of returning to the conjugal
dwelling. (178a)

However, separation of fact between husband and wife (meaning separation with judicial
approval) will not affect the regime of absolute community, to wit:

ARTICLE 100. The separation in fact between husband and wife

shall not affect the regime of absolute community except that:
(1) The spouse who leaves the conjugal home or refuses to live
therein, without just cause, shall not have the right to be
supported;
(2) When the consent of one spouse to any transaction of the
other is required by law, judicial authorization shall be
obtained in a summary proceeding;
(3) In the absence of sufficient community property, the
separate property of both spouses shall be solidarily liable
for the support of the family. The spouse present shall, upon
proper petition in a summary proceeding, be given judicial
authority to administer or encumber any specific separate
property of the other spouse and use the fruits or proceeds
thereof to satisfy the latter's share. (178a)

Except, when (1) The spouse who leaves the conjugal home or refuses to live therein, without
just cause, shall not have the right to be supported; (2) When the consent of one spouse to any
transaction of the other is required by law, judicial authorization shall be obtained in a summary
proceeding; (3) In the absence of sufficient community property, the separate property of both
spouses shall be solidarily liable for the support of the family. The spouse present shall, upon
proper petition in a summary proceeding, be given judicial authority to administer or encumber
any specific separate property of the other spouse and use the fruits or proceeds

SECTION 6
Liquidation of the Absolute Community Assets and Liabilities

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The following procedures are to be followed or observed in liquidating the Absolute Community
Assets and Liabilities, to wit:
1) An inventory shall be prepared, listing separately all the properties of the absolute
community and the exclusive properties of each spouse;
2) The debts and obligation of the absolute community shall be paid out of its assets. In case
of insufficiency of said assets, the spouses shall be solidarily liable for the unpaid balance
with their separate properties in accordance with Article 94 of the FC;
3) Whatever remains of the exclusive properties of the spouses shall thereafter be delivered
to each of them;
4) The net remainder of the properties of the absolute community shall constitute its net
assets, which shall be divided equally between husband and wife, unless a different
proportion or division was agreed upon in the marriage settlements, or unless there has
been a voluntary waiver of such share as provided in this Code. For purposes of computing
the net profits subject to forfeiture in accordance with Articles 43, No. (2) and 63, No. (2),
the said profits shall be the increase in value between the market value of the community
property at the time of the celebration of the marriage and the market value at the time
of its dissolution.
5) The presumptive legitimes of the common children shall be delivered upon partition, in
accordance with Article 51.
6) Unless otherwise agreed upon by the parties, in the partition of the properties, the
conjugal dwelling and the lot on which it is situated shall be adjudicated to the spouse
with whom the majority of the common children choose to remain. Children below the
age of seven years are deemed to have chosen the mother, unless the court has decided
otherwise. In case there in no such majority, the court shall decide, taking into
consideration the best interests of said children. (n)

ARTICLE 102. Upon dissolution of the absolute community

regime, the following procedure shall apply:
(1) An inventory shall be prepared, listing separately all the
properties of the absolute community and the exclusive
properties of each spouse.
(2) The debts and obligations of the absolute community shall
be paid out of its assets. In case of insufficiency of said
assets, the spouses shall be solidarily liable for the unpaid
balance with their separate properties in accordance with
the provisions of the second paragraph of Article 94.
(3) Whatever remains of the exclusive properties of the spouses
shall thereafter be delivered to each of them.
(4) The net remainder of the properties of the absolute
community shall constitute its net assets, which shall be
divided equally between husband and wife, unless a
different proportion or division was agreed upon in the
marriage settlements, or unless there has been a voluntary
waiver of such share as provided in this Code. For purposes
of computing the net profits subject to forfeiture in
accordance with Articles 43, No. (2) and 63, No. (2), the said
profits shall be the increase in value between the market

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 value of the community property at the time of the
celebration of the marriage and the market value at the time
of its dissolution.
(5) The presumptive legitimes of the common children shall be
delivered upon partition, in accordance with Article 51.
(6) Unless otherwise agreed upon by the parties, in the
partition of the properties, the conjugal dwelling and the lot
on which it is situated shall be adjudicated to the spouse
with whom the majority of the common children choose to
remain. Children below the age of seven years are deemed
to have chosen the mother, unless the court has decided
otherwise. In case there in no such majority, the court shall
decide, taking into consideration the best interests of said
children. (n)

Article 129 of the Family Code applies as to the property relations of the parties. In other words, the
computation and the succession of events will follow the provisions under Article 129 of the said Code.
Moreover, as to the definition of "net profits," we cannot but refer to Article 102 (4) of the Family Code,
since it expressly provides that for purposes of computing the net profits subject to forfeiture under
Article 43, No. (2) and Article 63, No. (2), Article 102 (4) applies. In this provision, net profits "shall be the
increase in value between the market value of the community property at the time of the celebration of
the marriage and the market value at the time of its dissolution." Thus, without any iota of doubt,
Article 102 (4) applies to both the dissolution of the absolute community regime under Article
102 of the Family Code, and to the dissolution of the conjugal partnership regime under Article
129 of the Family Code. Where lies the difference? . . . [T]he difference lies in the processes
used under the dissolution of the absolute community regime under Article 102
of the Family Code, and in the processes used under the dissolution of the conjugal
partnership regime under Article 129 of the Family Code. --- Brigido B. Quiao vs. Rita C.
Quiao, et al., G.R. No. 176556, July 4, 2012 citing Abalos vs. Macatangay, Jr., 482 Phil. 877-894 (2004)

Under Article 102 of the Family Code, upon dissolution of marriage, an inventory is prepared, listing
separately all the properties of the absolute community and the exclusive properties of each; then the
debts and obligations of the absolute community are paid out of the absolute community's assets and if
the community's properties are insufficient, the separate properties of each of the couple will be solidarily
liable for the unpaid balance. Whatever is left of the separate properties will be delivered to each of them.
The net remainder of the absolute community is its net assets, which shall be divided between the
husband and the wife; and for purposes of computing the net profits subject to forfeiture, said profits
shall be the increase in value between the market value of the community property at the time of the
celebration of the marriage and the market value at the time of its dissolution.

Applying Article 102 of the Family Code, the "net profits" requires that we first find the market value of
the properties at the time of the community's dissolution. From the totality of the market value of all the
properties, we subtract the debts and obligations of the absolute community and this result to the net
assets or net remainder of the properties of the absolute community, from which we deduct the market
value of the properties at the time of marriage, which then results to the net profits. --- Brigido B. Quiao
vs. Rita C. Quiao, et al., G.R. No. 176556, July 4, 2012 citing Abalos vs. Macatangay, Jr., 482 Phil. 877-894
(2004)

Art. 102 (4) - Dissolution of the absolute community regime: Computation of net profits

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 [A]mong the effects of the decree of legal separation is that the conjugal partnership is dissolved and
liquidated and the offending spouse would have no right to any share of the net profits earned by the
conjugal partnership. It is only [the father]'s share in the net profits which is forfeited in favor of [the
child]. Article 102 (4) of the Family Code provides that "[f]or purposes of computing the net profits subject
to forfeiture in accordance with Article 43, No. (2) and 63, No. (2), the said profits shall be the increase in
value between the market value of the community property at the time of the celebration of the marriage
and the market value at the time of its dissolution." Clearly, what is forfeited in favor of [the child]is not
[the father]'s share in the conjugal partnership property but merely in the net profits of the conjugal
partnership property. --- Mario Siochi vs. Alfredo Gozon, et al., G.R. Nos. 169900 & 169977, March 18,
2010

Article 130 is to be read in consonance with Article 105 of the Family Code. . . . It is clear that conjugal
partnership of gains established before and after the effectivity of the Family Code are governed by the
rules found in Chapter 4 (Conjugal Partnership of Gains) of Title IV (Property Relations Between Husband
and Wife) of the Family Code. Hence, any disposition of the conjugal property after the dissolution of the
conjugal partnership must be made only after the liquidation; otherwise, the disposition is void. --- Heirs
of Sps. Protacio, Sr. and Marta Go vs. Ester L. Servacio, et al., G.R. No. 157537, September 7, 2011

When is the liquidation of the community property done?

ARTICLE 103. Upon the termination of the marriage by death,

the community property shall be liquidated in the same
proceeding for the settlement of the estate of the deceased.

If no judicial settlement proceeding is instituted, the surviving

spouse shall liquidate the community property either judicially or
extra-judicially within one year from the death of the deceased
spouse. If upon the lapse of the said period, no liquidation is
made, any disposition or encumbrance involving the community
property of the terminated marriage shall be void.
Should the surviving spouse contract a subsequent marriage
without compliance with the foregoing requirements, a
mandatory regime of complete separation of property shall
govern the property relations of the subsequent marriage. (n)

What rule is to be followed in liquidating the community properties of two or more marriage
contracted by one and the same person before the effectivity of the family code?

ARTICLE 104. Whenever the liquidation of the community

properties of two or more marriages contracted by the same
person before the effectivity of this Code is carried out
simultaneously, the respective capital, fruits and income of each
community shall be determined upon such proof as may be
considered according to the rules of evidence. In case of doubt as
to which community the existing properties belong, the same
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 shall be divided between or among the different communities in
proportion to the capital and duration of each. (189a)

CHAPTER 4
Conjugal Partnership of Gains
SECTION 1
General Provisions

NATURE

Conjugal Partnership of Gains shall be used only as default regime if the marriage was solemnized
before August 3, 1988. However, this regime after August 3, 1988 shall be applicable when the
regime is stipulated under the prenuptial agreement as the regime of property to be used by the
spouses.

ADVANTAGES & DISADVANTAGES

CPG is more complicated than the ACP and less consistent with the ideals of solidarity and
common family life. However, it is generally protective of the wealthier spouse who has more
property upon entering into the marriage.

By marriage settlement, the husband and wife place in common fund: (a) the proceeds, products,
fruits and income from their separate properties; (b) those acquired by either or both spouses
through their efforts; and (c) those acquired by either or both spouses by chance. Upon
dissolution of the marriage or the partnership, the net gains or benefits obtained by either or
both spouses shall be divided equally between them, unless otherwise agreed in the marriage
settlement (Article 106 FC)

ARTICLE 105. In case the future spouses agree in the marriage

settlements that the regime of conjugal partnership of gains shall
govern their property relations during marriage, the provisions in
this Chapter shall be of supplementary application.
The provisions of this Chapter shall also apply to conjugal
partnerships of gains already established between spouses before
the effectivity of this Code, without prejudice to vested rights
already acquired in accordance with the Civil Code or other laws,
as provided in Article 255. (n)

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Article 130 is to be read in consonance with Article 105 of the Family Code. . . . It is clear that
conjugal partnership of gains established before and after the effectivity of the Family Code are
governed by the rules found in Chapter 4 (Conjugal Partnership of Gains) of Title IV (Property
Relations Between Husband and Wife) of the Family Code. Hence, any disposition of the conjugal
property after the dissolution of the conjugal partnership must be made only after the
liquidation; otherwise, the disposition is void.-----Heirs of Sps. Protacio, Sr. and Marta Go vs. Ester
L. Servacio, et al., G.R. No. 157537, September 7, 2011

Nature of Conjugal Partnership of Gain is that it is a regime where the husband and wife place in
common fund the proceeds, products, fruits and income from their separate properties and
those acquired by either or both spouses through their efforts or by chance, and, upon
dissolution of the marriage or of the partnership, the net gains or benefits obtained by either or
both spouses shall be divided equally between them, unless otherwise agreed in the marriage
settlements.

ARTICLE 106. Under the regime of conjugal partnership of gains,

the husband and wife place in a common fund the proceeds,
products, fruits and income from their separate properties and
those acquired by either or both spouses through their efforts or
by chance, and, upon dissolution of the marriage or of the
partnership, the net gains or benefits obtained by either or both
spouses shall be divided equally between them, unless otherwise
agreed in the marriage settlements. (142a)

COMMENCEMENT

When the Conjugal Partnership of Gain shall commence?

CPG shall commence at the precise moment that the marriage is celebrated. Any stipulation
express or implied, for the commencement of the regime at any other time shall be void (Article
107 in relation to 88 FC. It shall commence just like that of the regime of Absolute Community
of Property, to wit:

ARTICLE 107. The rules provided in Articles 88 and 89 shall also

apply to the conjugal partnership of gains. (n)

ARTICLE 88. The absolute community of property between spouses shall commence at
the precise moment that the marriage is celebrated. Any stipulation, express or implied,
for the commencement of the community regime at any other time shall be void. (145a)

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WAIVER

No waiver of rights, shares and effects of the CPG during the marriage can be made (Article 107
FC in relation to 89 FC) and this is to protect a spouse from undue influence.

- Exception: In case of judicial separation of property under Article 107 FC in relation to Article
89 FC

- Form. The waiver (either during the marriage upon judicial separation of property, or after
dissolution or annulment of marriage) shall appear in a public instrument and shall be
recorded in the local civil registry where the marriage is recorded as well as in the proper
registries of property (Article 107 FC in relation to Article 89 FC)

Remedy of creditors. The creditors of the spouse who made such waiver may petition the court
to rescind the waiver to the extent sufficient to cover the amount of their credits (Article 107 FC
in relation to Article 89 FC and Article 1052 NCC).

ARTICLE 89. No waiver of rights, interests, shares and effects of the absolute community
of property during the marriage can be made except in case of judicial separation of
property.

When the waiver takes place upon a judicial separation of property, or after the marriage
has been dissolved or annulled, the same shall appear in a public instrument and shall be
recorded as provided in Article 77. The creditors of the spouse who made such waiver
may petition the court to rescind the waiver to the extent of the amount sufficient to
cover the amount of their credits. (146a)

OWNERSHIP

What rule shall govern the conjugal partnership of gain?

CPG shall be governed by the rules on partnership in all that is not in conflict with the provision
of the Family Code or the marriage settlement (Article 108 of FC)

Spouses are not co-owners of the conjugal assets. During the existence of the marriage, each of
the spouses has a mere expectancy or inchoate right to the CPG property, which does not vest
or ripen into title until the dissolution of the CPG and there are assets left after its liquidation and
settlement. Thus, a creditor of the husband cannot attach or levy on one-half of his joint bank
account with his wife --- Quintos de Ansaldo vs. Sheriff of Manila, 64 Phil. 115.

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Thus, husband and wife are liable for conjugal obligations with their separate properties if the
conjugal assets are insufficient (PNB vs. Quintos, 46 Phil. 370). But such liability of the spouses is
solidary (Article 121, FC), unlike in ordinary partnership where such liability is pro rate (Article
1816 NCC)

The following are the distinction between CPG and ordinary partnership:

a. CPG has no juridical personality while Partnership has separate juridical personality.
b. CPG involves only 2 parties (husband and wife) but Partnership may involve any number
of partners.
c. CPG commences a the precise moment the marriage is celebrated while Partnership
commences at any time agreed upon by the partners.
d. CPG is generally regulated by law while Partnership is generally regulated by agreement.
e. CPG is not particularly for profit while Partnership is for profit.
f. IN CPG profits are generally divided equally between the spouses but in Partnership,
profits are usually divided according to contribution or stipulation in the sharing of P & L.
g. In CPG there can be no division of profits until after dissolution while in Partnership, there
can be division of profits yearly and without the need for dissolution.

It shall be governed by the rules on contract of partnership in all that is not in conflict with what
is expressly determined under the Chapter on Conjugal Partnership of Gain under the Family
Code, to wit:

ARTICLE 108. The conjugal partnership shall be governed by the

rules on the contract of partnership in all that is not in conflict
with what is expressly determined in this Chapter or by the
spouses in their marriage settlements. (147a)

SECTION 2
Exclusive Property of Each Spouse

COMPOSITION

What are the exclusive properties under the Conjugal partnership of Gain?

ARTICLE 109. The following shall be the exclusive property of

each spouse:
(1) That which is brought to the marriage as his or her own;

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a. If the property brought into the marriage is encumbered or
mortgaged, it remains to be exclusive even if the CPG pays off
the mortgage credit. CPG has merely the right of
reimbursement from the owner spouses.

b. Property alienated by a spouse before the marriage but

reacquired during the marriage because of annulment or
rescission of the contract or because of revocation of donation
– exclusive (Santos vs. Bartolome, 44 Phil. 76 (1922).

(2) That which each acquires during the marriage by gratuitous

title;

a. Where the property is donated or left by will to the spouses,

jointly and with designation of determinate shares, such
designated share shall pertain to the donee-spouses as his or
her own exclusive property (Article 113 FC)

- In the absence of designation, spouses shall share

equally, without prejudice to the right of accretion
when proper (Article 113 FC)

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

jointly and with designation of determinate shares, shall pertain
to the donee-spouse as his or her own exclusive property, and in
the absence of designation, share and share alike, without
prejudice to the right of accretion when proper. (150a)

b. If the donation are onerous, the charges shall be borne by the

exclusive property of the donee spouse, whenever they have
been advanced by the CPG (Article 114 FC)

c. Retirement benefits, pensions, annuities, gratuities, usufructs

and similar benefits shall be governed by the rules on
gratuitous or onerous acquisitions as may be proper in each
case (Article 114 FC)

- If the benefits are given out of pure liberality, they are

exclusive. If the benefits represents a return on the sum
deducted from salaries of the spouse, they are conjugal
(Bowers v. Roxas, 69 Phil. 626 (1940)

ARTICLE 114. If the donations are onerous, the amount of the

charges shall be borne by the exclusive property of the donee-
spouse, whenever they have been advanced by the conjugal
partnership of gains. (151a)

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d. Moral damages (for injured fellings, etc.) awarded to a spouse
are exclusive (Luis vs. Manila Railroad Company, 62 Phil 56
(1935)

(3) That which is acquired by right of redemption, by barter or

by exchange with property belonging to only one of the
spouses; and

a. The property redeemed will be the exclusive property of the

spouse who owned the right of redemption. If CPG paid the
redemption price, CPG’s right is limited to reimbursement only
(Santos vs. Bartolome, 44 Phil. 76 (1922).

b. Properties owned by a spouse (as exclusive property) in co-

ownership with others, if said spouse acquire the shares of his
or her co-owners by right of redemption, the acquired share is
exclusive. If acquired by purchase, it depends on the source of
the funds.

c. Increase in value of exclusive property – if increase is due to

investment by CPG or through efforts of the spouse, the
increase is conjugal. If the increase is “unearned” (due to time
or general increase in value of real property), it remains
exclusive.

d. If exclusive property is burned or destroyed, the insurance

proceeds, if any are also exclusive. If exclusive property is
expropriated, the indemnity or compensation is also exclusive.

(4) That which is purchased with exclusive money of the wife

or of the husband. (148a)

a. It is immaterial who made the purchase, or in whose name the

purchased property was registered, or who possessed the
property (Consunji vs. Tison, 15 Phil. 81)

ARTICLE 115. Retirement benefits, pensions, annuities,

gratuities, usufructs and similar benefits shall be governed by the
rules on gratuitous or onerous acquisitions as may be proper in
each case. (n)

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Character of paraphernal property cannot be changed by subsequent declarations.

Where the husband has been a party to an act of purchase of immovable property in the name of his wife
which recited that the purchase was made with paraphernal funds, and that the property was to be and
remain paraphernal property, neither he nor his heirs can be permitted to go behind the deed and contest
the wife's title to the property by claiming that it is conjugal. Since the property is the paraphernal
property of the wife, the same having been acquired by her prior to her marriage and having been
purchased with her exclusive or private funds, any declaration to the contrary made by her, as well as that
of her child, cannot prevail nor change the character of the property in question. --- Pacifico C. del Mundo
vs. Court of Appeals, G.R. No. L-25788, April 30, 1980

Paraphernal property of the wife may not be attached or levied upon for the obligation of her husband.

The levy by the sheriff on property by virtue of a writ of execution may be considered as made under
authority of the court only when the property levied upon unquestionably belongs to the judgment
debtor. If he should attach any property other than those of said debtor, he acts beyond the limits of his
authority. Stated otherwise, the court issuing a writ of execution is supposed to enforce its authority only
over properties of the judgment debtor, and should a third party appear to claim the property levied upon
by the sheriff, the procedure laid down by the rules is that such claim should be the subject of a separate
and independent action. A money judgment is enforceable only against property unquestionably
belonging to the judgment debtor. One man's goods shall not be sold for another man's debts. ---- Sps.
Julian and Rosa Sy vs. Hon. Jaime D. Discaya, G.R. No. 86301, January 23, 1990 & Novernia P. Naguit vs.
Court of Appeals, G.R. No. 137675, December 5, 2000

Cadastral court's finding prevails over presumption that properties acquired during marriage are
conjugal.
Properties acquired during the marriage are presumed to be conjugal. However, this prima facie
presumption cannot prevail over the cadastral court's specific finding, reached in adversarial
proceedings, that the property was inherited by the wife from her mother. ---- Jessie V. Pisueña vs. Heirs
of Petra Unating and Aquilino Villar, G.R. No. 132803, August 31, 1999

Property acquired by the spouses during the marriage is presumed to belong to the conjugal partnership
of gains, regardless of in whose name the same is registered.
As a general rule, all property acquired by the spouses, regardless of in whose name the same is
registered, during the marriage is presumed to belong to the conjugal partnership of gains, unless it is
proved that it pertains exclusively to the husband or to the wife. The fact that the grant was solely in the
name of the wife did not make the property paraphernal property. What was material was the time the
fishpond lease right was acquired by the grantee, and that was during the lawful existence of the marriage.
--- Olimpia Diancin vs. Court of Appeals, G.R. No. 119991, November 20, 2000

The phrase “married to” is merely descriptive of wife’s civil status and not
construed to mean that her husband is also a registered owner.
Title is registered in the name of the wife alone because the phrase "married to Rogelio Ruiz" is merely
descriptive of her civil status and should not be construed to mean that her husband is also a registered
owner. Furthermore, registration of the property in the name of "Corazon G. Ruiz, of legal age, married
to Rogelio Ruiz" is not proof that such property was acquired during the marriage, and thus, is presumed
to be conjugal. The property could have been acquired by the wife while she was still single, and registered
only after her marriage. Acquisition of title and registration thereof are two different acts. ---- Corazon
G. Ruiz vs. Court of Appeals and Consuelo Torres, G.R. No. 146942, April 22, 2003

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Property whose title is in the name of the wife alone is paraphernal.

Proof of acquisition during the marriage is a condition sine qua non for the operation of the presumption
in favor of conjugal ownership. On the basis alone of the certificate of title, it cannot be presumed that
said property was acquired during the marriage and that it is conjugal property. Since there is no showing
as to when the property in question was acquired, the fact that the title is in the name of the wife alone
is determinative of its nature as paraphernal, i.e., belonging exclusively to said spouse. --- Corazon G.
Ruiz vs. Court of Appeals and Consuelo Torres, G.R. No. 146942, April 22, 2003

Paraphernal property cannot be attached by reason of a debt contracted by the husband.

An estate partaking of the nature of paraphernal property belonging to the wife can not be attached by
reason of a debt contracted by the husband, at the request of a creditor of the latter, nor sold and
adjudged to him there being no legal reason whereby the wife should be bound to make any payment
or loan to the said creditor; therefore, the proceedings by virtue of which the woman who owned the
estate was deprived of the property for the payment of a debt for which she was in no way responsible,
are entirely null and void. --- Marcela Alvaran vs. Bernardo Marquez, G.R. No. 4465, September 10, 1908

Husband cannot lawfully dispose of wife's paraphernal property.

Whatever may have been agreed in a conciliatory action between a third person and the husband of the
lawful owner of a property can not deprive the latter, as a wife, of her interest in said property to which
such third person pretends to have acquired certain rights without the intervention of the wife and
without her consent to such action; the husband could not lawfully dispose of said estate which is
paraphernal property, nor could he assign the same to a third person to the prejudice of his wife who was
the owner. --- Ildefonsa Vargas vs. Agatona Egamino, G.R. No. 2994, November 18, 1908

Offspring of animals which are paraphernal property are considered community property.

The marriage having lasted for more than thirty years, and some of the carabaos being the offspring of
others which were purchased during the marriage, such animals are not paraphernal property of the
widow for even such offspring is considered as community property nor were they the private property
of the deceased husband. --- Narciso Marigsa vs. Ildefonsa Macabuntoc, G.R. No. L-4883, September 27,
1910

Increase in value of paraphernal property due to nature and time is not partnership property.

The sum representing the difference between the original assessed value of the paraphernal property and
before the improvements thereon and the assessed value of the same with the improvements thereon,
at the time of the dissolution of the conjugal partnership, cannot be considered partnership property
because such improvements were not due to industry and labor of the surviving spouse. Furthermore,
the land as well as the coconut trees are, by nature and time, susceptible to increase in value: the land,
through the development of the town, of commerce and of industry; the coconut groves, through the
growth of the coconut trees from the time they are planted until they bear, and also through the
development of commerce and of the coconut oil industry. This increase in value due to nature and time
is not considered partnership property under the law on the ground that it is neither produced with
funds from the conjugal partnership nor with the work or industry of any of the spouse. --- Sinforoso
Ona vs. Serapia De Gala, G.R. No. 37756, November 28, 1933

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Husband is not authorized to alienate property belonging exclusively to his wife.

If the property acquired during the marriage with money belonging exclusively to the wife is considered
as her own, it is unquestionable that it does not belong to the class of community property. Therefore the
husband is not authorized to alienate, encumber, or make contracts in regard thereto, without the
knowledge and consent of its lawful owner, and a sale or conveyance thereof by the husband, who is not
its owner, is null and void. --- Asuncion Gefes vs. Silvestre Salvio, G.R. No. 11387, February 7, 1917

Damages awarded for personal injury suffered by one of the spouses is exclusive property. Damages
awarded for personal injury suffered by the wife is considered paraphernal property. --- Aleko E. Lilius vs.
Manila Railroad Company, G.R. No. 42551, September 4, 1935

Being an exclusive properties, the spouse owning said exclusive property has the following rights:

As to administration:

ARTICLE 110. The spouses retain the ownership, possession,

administration and enjoyment of their exclusive properties.
Either spouse may, during the marriage, transfer the
administration of his or her exclusive property to the other by
means of a public instrument, which shall be recorded in the
registry of property of the place where the property is located.
(137a, 168a, 169a)

As to alienation, lien or encumbrances and its effect to the grant of

administration to the other spouse not the owner:

ARTICLE 111. Either spouse may mortgage, encumber, alienate

or otherwise dispose of his or her exclusive property.

ARTICLE 112. The alienation of any exclusive property of a

spouse administered by the other automatically terminates the
administration over such property and the proceeds of the
alienation shall be turned over to the owner-spouse. (n)

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 SECTION 3

Conjugal Partnership Property

ARTICLE 116. All property acquired during the marriage, whether the acquisition
appears to have been made, contracted or registered in the name of one or both
spouses, is presumed to be conjugal unless the contrary is proved. (160a)

All property of the marriage is presumed conjugal.

All property of the marriage is presumed to be conjugal. However, for this presumption to apply, the
party who invokes it must first prove that the property was acquired during the marriage. Proof of
acquisition during the coverture is a condition sine qua non to the operation of the presumption in favor
of the conjugal partnership. Thus, the time when the property was acquired is material. --- Evangeline
D. Imani vs. Metrobank, G.R. No. 187023, November 17, 2010

Property whose title is in the name of the wife alone is paraphernal.

[O]n the basis alone of the certificate of title, it cannot be presumed that said property was acquired
during the marriage and that it is conjugal property. Since there is no showing as to when the property in
question was acquired, the fact that the title is in the name of the wife alone is determinative of its
nature as paraphernal, i.e., belonging exclusively to said spouse. The only import of the title is that
Corazon is the owner of said property, the same having been registered in her name alone, and that she
is married to Rogelio Ruiz. --- Corazon G. Ruiz vs. Court of Appeals, et al., G.R. No. 146942, April 22, 2003

A phrase in the title descriptive of the civil status of one spouse should not be construed to mean that
the other spouse is also a registered owner.

The property subject of the mortgage is registered in the name of "Corazon G. Ruiz, of legal age, married
to Rogelio Ruiz, Filipinos." Thus, title is registered in the name of Corazon alone because the phrase
"married to Rogelio Ruiz" is merely descriptive of the civil status of Corazon and should not be construed
to mean that her husband is also a registered owner. Furthermore, registration of the property in the
name of "Corazon G. Ruiz, of legal age, married to Rogelio Ruiz" is not proof that such property was
acquired during the marriage, and thus, is presumed to be conjugal. The property could have been
acquired by Corazon while she was still single, and registered only after her marriage to Rogelio Ruiz.
Acquisition of title and registration thereof are two different acts. ---- Corazon G. Ruiz vs. Court of Appeals,
et al., G.R. No. 146942, April 22, 2003

The statement in the title that the property is "registered in accordance with the provisions of Section 103
of the Property Registration Decree in the name of JOSE B. TAN, of legal age, married to Eliza Go Tan"
does not prove or indicate that the property is conjugal. --- Metropolitan Bank and Trust Company, et al.
vs. Sps. Jose B. Tan, et al., G.R. No. 163712, November 30, 2006

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Constructive trust is deemed created when conjugal property is titled in the name of common-
law wife.

Property acquired by a man while living with a common-law wife during the subsistence of his marriage
is conjugal property, even when the property was titled in the name of the common-law wife. In such
cases, a constructive trust is deemed to have been created by operation of Article 1456 of the Civil Code
over the property which lawfully pertains to the conjugal partnership of the subsisting marriage. It was at
the time that the adjudication of ownership was made following the husband's demise (not when he
merely allowed the property to be titled in his paramour's name) that a constructive trust was deemed to
have been created. --- Josephine B. Belcodero vs. Court of Appeals, G.R. No. 89667, October 20, 1993 &
Marino Adriano vs. Court of Appeals, G.R. No. 124118, March 27, 2000

Proof of acquisition during the marriage is a condition sine qua non for the operation of the presumption
in favor of conjugal ownership.

Before [the presumption under Article 116 of the Family Code that properties acquired during the
marriage are presumed to be conjugal] can apply, it must first be established that the property was in fact
acquired during the marriage. In other words, proof of acquisition during the marriage is a condition sine
qua non for the operation of the presumption in favor of conjugal ownership. ---- Corazon G. Ruiz vs.
Court of Appeals, et al., G.R. No. 146942, April 22, 2003

Alienation or encumbrance of conjugal property without wife's consent before effectivity of Family Code
is voidable.

Without the wife's consent, the husband's alienation or encumbrance of conjugal property prior to the
effectivity of the Family Code is not void, but merely voidable. ---- Vicente G. Villaranda vs. Sps. Honorio
and Ana Maria Y. Villaranda, G.R. No. 153447, February 23, 2004

Survivorship pension of spouse who contracted marriage to a GSIS member within 3 years before the
latter's retirement or death is no longer automatically forfeited.

The present GSIS law (R.A. No. 8291) does not presume that marriages contracted within three years
before retirement or death of a member are sham marriages contracted to avail of survivorship benefits.
It does not automatically forfeit the survivorship pension of the surviving spouse who contracted marriage
to a GSIS member within three years before the member's retirement or death. The law acknowledges
that whether the surviving spouse contracted the marriage mainly to receive survivorship benefits is a
matter of evidence. The law no longer prescribes a sweeping classification that unduly prejudices the
legitimate surviving spouse and defeats the purpose for which Congress enacted the social legislation. ---
GSIS vs. Milagros O. Montesclaros, G.R. No. 146494, July 14, 2004

Consent of both spouses needed in the sale of conjugal property.

Since the property was undoubtedly part of the conjugal partnership, the sale to [petitioner] required the
consent of both spouses. Article 165 of the Civil Code expressly provides that "the husband is the
administrator of the conjugal partnership". Likewise, Article 172 of the Civil Code ordains that "(t)he wife
cannot bind the conjugal partnership without the husband's consent, except in cases provided by law". --
- Titan Construction Corp. vs. Manuel A. David, Sr., et al., G.R. No. 169548, March 15, 2010

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All property of the marriage is presumed to belong to the conjugal partnership, unless it be proved that
it pertains exclusively to the husband or to the wife. Registration in the name of the husband or the wife
alone does not destroy this presumption. The separation-in-fact between the husband and the wife
without judicial approval shall not affect the conjugal partnership. The lot retains its conjugal nature.
Moreover, the presumption of conjugal ownership applies even when the manner in which the property
was acquired does not appear. The use of the conjugal funds is not an essential requirement for the
presumption to arise. --- Elenita M. Dewara vs. Sps. Ronnie and Gina Lamela, et al., G.R. No. 179010, April
11, 2011

Metrobank vs. Tan (509 SCRA 383)

Re: Articles 116, FC – Presumption that properties acquired during marriage are conjugal (Art. 116,
FC) does not apply where title registered under P.D. 1529 is in the name of “Jose Tan married to Eliza Tan”,
citing Ruiz vs. CA (401 SCRA 410), thus: the phrase “married to Rogelio Ruiz” is merely descriptive of status
of Corazon and is not proof that such property was acquired during marriage. The property could have
been acquired by Corazon while she was still single and registered only after her marriage to Rogelio Ruiz.
Acquisition of title and registration thereof are two different acts.

What are included under the conjugal partnership properties?

Those acquired by onerous title during the marriage at the expense of the common fund,
whether the acquisition be for the partnership, or for only one of the spouses:

a. Property purchased with conjugal funds during the marriage is considered conjugal
property. Only the origin of the money invested or used in acquiring the property is
looked into (Rivera vs. Batallones (CA)

In the absence of proof, it is presumed that the funds used were conjugal (Zulueta vs. Pan-
American World Airways, G.R. No. L-28589, January 8, 1973.

b. Property acquired partly with paraphernal (exclusive) funds of the wife and partly with
conjugal funds is held to belong to both patrimonies in common, in proportion to the
contributions of each to the total purchase price (Castillo vs. Pasco, G.R. No. L-16857, May
29, 1964)

c. In a life insurance policy with the insured person’s estate as beneficiary, the proceeds are
considered conjugal if the premiums were paid by the conjugal partnership. If the
premiums were paid partly with paraphernal and partly conjugal funds, the proceeds are
in like proportion paraphernal in part and conjugal in part (BPI vs. Posadas, 56 Phil. 215
(1931)

d. In loans secured by mortgage on the exclusive property of a spouse, the proceeds are
conjugal if the debt will be an obligation of the CPG (Castillo vs. Pasco, G.R. No. L-16857,
May 29, 1964) with the consent of both spouses, or will redound to the benefit of the
family.

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e. If exclusive property is converted to a totally different kind of property (e.g. nipa swamp
to fishpond) during the marriage, the converted property is conjugal, but the owner-
spouse has the right to be reimbursed for the value of the original property. Exception:
the converted property will remain exclusive if it can be proved that the expenses of
conversion were exclusively shouldered by the owner-spouse (Vitug vs. Montemayor, 91
Phil. 286)

f. Those obtained from the labor, industry, work or profession of either or both of the
spouses, ex. Salary, honoraria, professional fees, business income, bonus, commissions,
pensions or retirement pay.

HOWEVER, money received under the Social Security Act is not conjugal but goes to the
designated beneficiary (Tecson vs. SSS, 3 SCRA 735)

Provided further that Intellectual property such as copy right and patent belong
exclusively to the author or inventor, as such property are of a special type and derived
from the author or inventor’s genius or intellect. However, trademarks and goodwill are
simply considered accessories to business, so that they are owned by whoever owns the
business.

Provided further that all benefits or earnings derived from these intellectual property
during the marriage are conjugal.

g. The fruits (natural or industrial or civil) due or received during the marriage from the
common property, as well as the net fruits from the exclusive property of each spouse.
Net fruits shall mean the amount after deducting the indispensable expenses.

Provide also, that in case the exclusive property is unlawfully possessed or detained by
3rd party, damages recovered from the latter are conjugal, since the CPG would have
profited from the property had it not been unlawfully detained (Bismorte vs. Aldecoa, 17
Phil. 480)

h. Share of either spouses in the hidden treasure which the law awards to the finder or
owner of the property where the treasure is found.

i. Those acquired through occupation such as fishing or hunting.

j. Live stocks existing upon the dissolution of the partnership in excess of the number of
each kind brought to the marriage by either spouse; and

k. Those which are acquired by chance, such as winnings from gambling or betting, provided
however, losses from gambling or betting shall be born exclusively by the loser-spouse.

ARTICLE 117. The following are conjugal partnership properties:

(1) Those acquired by onerous title during the marriage at the
expense of the common fund, whether the acquisition be for
the partnership, or for only one of the spouses;
(2) Those obtained from the labor, industry, work or profession
of either or both of the spouses;

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 (3) The fruits, natural, industrial or civil, due or received during
the marriage from the common property, as well as the net
fruits from the exclusive property of each spouse;
(4) The share of either spouse in the hidden treasure which the
law awards to the finder or owner of the property where the
treasure is found;
(5) Those acquired through occupation such as fishing or
hunting;
(6) Livestock existing upon the dissolution of the partnership in
excess of the number of each kind brought to the marriage by
either spouse; and
(7) Those which are acquired by chance, such as winnings from
gambling or betting. However, losses therefrom shall be
borne exclusively by the loser-spouse. (153a, 154, 155, 159)

What if the property or properties is/are acquired on installment using partly conjugal properties
and partly community properties, who owns the property/ies acquired?

Ans. Property belongs to the buyer spouse if full ownership was vested before the marriage.
However, property belongs to the CPG if such ownership was vested during the marriage.

ARTICLE 118. Property bought on installments paid partly from

exclusive funds of either or both spouses and partly from conjugal
funds (1) belongs to the buyer or buyers if full ownership
was vested before the marriage and (2) to the conjugal
partnership if such ownership was vested during the
marriage. In either case, any amount advanced by the
partnership or by either or both spouses shall be reimbursed by
the owner or owners upon liquidation of the partnership. (n)

What about interest on credit payable within a period of time, who owns the same?

Ans. Whenever an amount or credit payable within a period of time belongs to one of the spouses
---
a. The partial payments or installments on the principal collected during the marriage shall
be exclusive property.
b. The interest falling due during the marriage shall belong to the CPG.

ARTICLE 119. Whenever an amount or credit payable within a

period of time belongs to one of the spouses, the sums which may

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 be collected during the marriage in partial payments or by
installments on the principal shall be the exclusive property of the
spouse. However, interests falling due during the marriage on the
principal shall belong to the conjugal partnership. (156a, 157a)

Who owns the improvements made at the expense of the spouse or by the partnership on the
exclusive property of the spouse?

Ans. The ownership of improvements, whether for utility or adornment, made on

the separate property of the spouses at the expense of the partnership or through
the acts or efforts of either or both spouses shall pertain to the conjugal
partnership, or to the original owner-spouse.

Will your answer be the same if the cost of the improvement as well as the resulting increase in
the value of said property are more than the value of the property at the time of improvement?

Ans. No. When the cost of the improvement made by the conjugal partnership and any
resulting increase in value are more than the value of the property at the time of the
improvement, the entire property of one of the spouses shall belong to the conjugal
partnership, subject to reimbursement of the value of the property of the owner-spouse
at the time of the improvement.
However, when the cost of the improvement made by the conjugal partnership and any
resulting increase in value is/are not more than the value of the property at the time of
the improvement, then said property shall be retained in ownership by the owner-spouse,
likewise subject to reimbursement of the cost of the improvement.

When is ownership vested to the owner as mandated by law above?

Ans. In either case, the ownership of the entire property shall be vested upon the
reimbursement, which shall be made at the time of the liquidation of the conjugal
partnership.

ARTICLE 120. The ownership of improvements, whether for utility

or adornment, made on the separate property of the spouses at
the expense of the partnership or through the acts or efforts of
either or both spouses shall pertain to the conjugal partnership,
or to the original owner-spouse, subject to the following rules:
When the cost of the improvement made by the conjugal
partnership and any resulting increase in value are more than the
value of the property at the time of the improvement, the entire
property of one of the spouses shall belong to the conjugal
partnership, subject to reimbursement of the value of the

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 property of the owner-spouse at the time of the improvement;
otherwise, said property shall be retained in ownership by the
owner-spouse, likewise subject to reimbursement of the cost of
the improvement.
In either case, the ownership of the entire property shall be
vested upon the reimbursement, which shall be made at the time
of the liquidation of the conjugal partnership. (158a)

Article 120 of the Family Code, which supersedes Article 158 of the Civil Code, provides the solution in
determining the ownership of the improvements that are made on the separate property of the spouses,
at the expense of the partnership or through the acts or efforts of either or both spouses. Under this
provision, when the cost of the improvement and any resulting increase in value are more than the value
of the property at the time of the improvement, the entire property of one of the spouses shall belong
to the conjugal partnership, subject to reimbursement of the value of the property of the owner-spouse
at the time of the improvement; otherwise, said property shall be retained in ownership by the owner-
spouse, likewise subject to reimbursement of the cost of the improvement. --- Francisco Muñoz, Jr. vs.
Erlinda Ramirez, et al., G.R. No. 156125, August 25, 2010

SECTION 4
Charges Upon and Obligations of the Conjugal Partnership

What are the charges allowable to the conjugal properties?

ARTICLE 121. The conjugal partnership shall be liable for:

(1) The support of the spouses, their common children, and the
legitimate children of either spouse; however, the support of
illegitimate children shall be governed by the provisions of
this Code on Support;
(2) All debts and obligations contracted during the marriage by
the designated administrator-spouse for the benefit of the
conjugal partnership of gains, or by both spouses or by one of
them with the consent of the other;
(3) Debts and obligations contracted by either spouse without
the consent of the other to the extent that the family may
have been benefited;

(4) All taxes, liens, charges and expenses, including major or

minor repairs upon the conjugal partnership property;
(5) All taxes and expenses for mere preservation made during the
marriage upon the separate property of either spouse;

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 (6) Expenses to enable either spouse to commence or complete a
professional, vocational, or other activity for self-
improvement;
(7) Antenuptial debts of either spouse insofar as they have
redounded to the benefit of the family;
(8) The value of what is donated or promised by both spouses in
favor of their common legitimate children for the exclusive
purpose of commencing or completing a professional or
vocational course or other activity for self-improvement; and
(9) Expenses of litigation between the spouses unless the suit is
found to be groundless.
If the conjugal partnership is insufficient to cover the foregoing
liabilities, the spouses shall be solidarily liable for the unpaid
balance with their separate properties. (161a)

Obligations contracted by husband on behalf of family business are presumed to redound to the benefit
of conjugal partnership

If the husband himself is the principal obligor in the contract, i.e., he directly received the money and
services to be used in or for his own business or his own profession, that contract falls within the term
". . . obligations for the benefit of the conjugal partnership." No actual benefit may be proved. It is enough
that the benefit to the family is apparent at the time of the signing of the contract. From the very nature
of the contract of loan or services, the family stands to benefit from the loan facility or services to be
rendered to the business or profession of the husband. It is immaterial, if in the end, his business or
profession fails or does not succeed. --- Ayala Investment & Devt. Corp. vs. Court of Appeals, G.R. No.
118305, February 12, 1998

Contract of surety or accommodation agreement entered into by husband requires proof to establish
benefit redounding to the conjugal partnership

If the money or services are given to another person or entity, and the husband acted only as a surety or
guarantor, that contract cannot, by itself, alone be categorized as falling within the context of
"obligations for the benefit of the conjugal partnership." The contract of loan or services is clearly for
the benefit of the principal debtor and not for the surety or his family. No presumption can be inferred
that, when a husband enters into a contract of surety or accommodation agreement, it is "for the benefit
of the conjugal partnership." Proof must be presented to establish benefit redounding to the conjugal
partnership. --- Ayala Investment & Devt. Corp. vs. Court of Appeals, G.R. No. 118305, February 12, 1998

That the shares of stocks of the petitioner-husband and his family would appreciate if the PBMCI could be
rehabilitated through the loans obtained and that the petitioner-husband's career would be enhanced
should PBMCI survive because of the infusion of fresh capital cannot be argued because these are not the
benefits contemplated by Article 161 of the New Civil Code. The benefits must be those directly resulting
from the loan. They cannot merely be a by-product or a spin-off of the loan itself. --- Alfredo Ching vs.
Court of Appeals, G.R. No. 124642, February 23, 2004

Property registered in the name of the wife is deemed paraphernal property in the absence of proof that
the same was acquired during the marriage

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The property subject of the mortgage is registered in the name of "Corazon G. Ruiz, of legal age, married
to Rogelio Ruiz, Filipinos." Thus, title is registered in the name of Corazon alone because the phrase
"married to Rogelio Ruiz" is merely descriptive of the civil status of Corazon and should not be construed
to mean that her husband is also a registered owner. Since there is no showing as to when the property
in question was acquired, the fact that the title is in the name of the wife alone is determinative of its
nature as paraphernal, i.e., belonging exclusively to said spouse. The only import of the title is that
Corazon is the owner of said property, the same having been registered in her name alone, and that she
is married to Rogelio Ruiz. --- Corazon G. Ruiz vs. Court of Appeals, G.R. No. 146942, April 22, 2003

Proof of acquisition during the marriage is a condition sine qua non for the operation of the presumption
in favor of conjugal ownership

Registration of the property in the name of "Corazon G. Ruiz, of legal age, married to Rogelio Ruiz" is not
proof that such property was acquired during the marriage, and thus, is presumed to be conjugal. The
property could have been acquired by Corazon while she was still single, and registered only after her
marriage to Rogelio Ruiz. Acquisition of title and registration thereof are two different acts. The
presumption under Article 116 of the Family Code that properties acquired during the marriage are
presumed to be conjugal cannot apply in the instant case. Before such presumption can apply, it must
first be established that the property was in fact acquired during the marriage. In other words, proof of
acquisition during the marriage is a condition sine qua non for the operation of the presumption in favor
of conjugal ownership. Thus, on the basis alone of the certificate of title, it cannot be presumed that said
property was acquired during the marriage and that it is conjugal property. --- Corazon G. Ruiz vs. Court
of Appeals, G.R. No. 146942, April 22, 2003

All property acquired by the spouses during the marriage, regardless in whose name the property is
registered, is presumed conjugal unless proved otherwise

Tax declarations are not sufficient proof to overcome the presumption under Article 116 of the Family
Code. All property acquired by the spouses during the marriage, regardless in whose name the property
is registered, is presumed conjugal unless proved otherwise. The presumption is not rebutted by the
mere fact that the certificate of title of the property or the tax declaration is in the name of one of the
spouses only. Article 116 of the Family Code expressly provides that the presumption remains even if the
property is "registered in the name of one or both of the spouses." Whether a property is conjugal or not
is determined by law and not by the will of one of the spouses. No unilateral declaration by one spouse
can change the character of conjugal property. --- Procopio Villanueva vs. Court of Appeals, G.R. No.
143286, April 14, 2004

Conjugal partnership bears the indebtedness and losses incurred by husband in the legitimate pursuit
of his career or profession

The husband is the administrator of the conjugal partnership and as long as he believes he is doing right
to his family, he should not be made to suffer and answer alone. So that, if he incurs an indebtedness in
the legitimate pursuit of his career or profession or suffers losses in a legitimate business, the conjugal
partnership must equally bear the indebtedness and the losses, unless he deliberately acted to the
prejudice of his family. --- G-Tractors, Inc. vs. Court of Appeals and Sps. Luis and Josefina Narciso, G.R.
No. 57402, February 28, 1985

Debts contracted by the husband for and in the exercise of the industry or profession by which he
contributes to the support of the family cannot be deemed to be his exclusive and private debts. --- Sps.
Joe and Estrella Ros vs. PNB-Laoag Branch, G.R. No. 170166, April 6, 2011

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The obligation was contracted by the husband in the purchase of leather used in his shoe manufacturing
business. It is well settled that the debts contracted by the husband for and in the exercise of the industry
or profession by which he contributes to the support of the family cannot be deemed to be his exclusive
and private debts. --- Mercedes Ruth Cobb-Perez and Damaso P. Perez vs. Hon. Gregorio Lantin, G.R. No.
L-22320, May 22, 1968

Property acquired with salaries of husband belong to conjugal partnership even if registered in
paramour's name

Though registered in the paramour's name, property acquired with the salaries and earnings of a husband
belongs to his conjugal partnership with the legal spouse. The registration of the property in petitioner's
name was clearly designed to deprive the legal spouse and compulsory heirs of ownership. By operation
of law, the paramour is deemed to hold the property in trust for them. Therefore, she cannot rely on the
registration in repudiation of the trust, for this case is a well-known exception to the principle of
conclusiveness of a certificate of title. --- Milagros Joaquino vs. Lourdes Reyes, G.R. No. 154645, July 13,
2004

Conjugal property is determined by law and not by will of one of the spouses.

Whether a property is conjugal or not is determined by law and not by the will of one of the spouses. No
unilateral declaration by one spouse can change the character of conjugal property. The clear intent of
the husband in placing his status as single is to exclude his wife from her lawful share in the conjugal
property. The law does not allow this. ---Procopio Villanueva vs. Court of Appeals, G.R. No. 143286, April
14, 2004

Without the wife's consent, the husband's alienation or encumbrance of conjugal property prior to the
effectivity of the Family Code is not void, but merely voidable.

According to Article 166 of the Civil Code, the husband cannot alienate or encumber any real property of
the conjugal partnership without the wife's consent. This provision, however, must be read in conjunction
with Article 173 of the same Code. The latter states that an action to annul an alienation or encumbrance
may be instituted by the wife during the marriage and within ten years from the transaction questioned.
Videlicet, the lack of consent on her part will not make the husband's alienation or encumbrance of real
property of the conjugal partnership void, but merely voidable. --- Vicente G. Villaranda vs. Sps. Honorio
and Ana Maria Villaranda, G.R. No. 153447, February 23, 2004

Obligations contracted by husband on behalf of the family business is presumed to redound to the
benefit of the conjugal partnership

If the husband himself is the principal obligor in the contract, i.e., he directly received the money and
services to be used in or for his own business or his own profession, that contract falls within the term ".
. . obligations for the benefit of the conjugal partnership." Here, no actual benefit may be proved. It is
enough that the benefit to the family is apparent at the signing of the contract. From the very nature of
the contract of loan or services, the family stands to benefit from the loan facility or services to be
rendered to the business or profession of the husband. It is immaterial, if in the end, his business or
profession fails or does not succeed. Simply stated, where the husband contracts obligations on behalf of
the family business, the law presumes, and rightly so, that such obligation will redound to the benefit of
the conjugal partnership. --- Sps. Joe and Estrella Ros vs. PNB-Laoag Branch, G.R. No. 170166, April 6, 2011,
citing Ayala Investment & Development Corp. v. Court of Appeals, G.R. No. 118305, February 12, 1998

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The civil indemnity that the decision in the murder case imposed on [the wife] may be enforced against
their conjugal assets after the responsibilities enumerated in Article 121 of the Family Code have been
covered. . . . Article 121 . . . allows payment of the criminal indemnities imposed on his wife . . . out of
the partnership assets even before these are liquidated. Indeed, it states that such indemnities "may be
enforced against the partnership assets after the responsibilities enumerated in the preceding article
have been covered." No prior liquidation of those assets is required. This is not altogether unfair since
Article 122 states that "at the time of liquidation of the partnership, such [offending] spouse shall be
charged for what has been paid for the purposes above-mentioned." ---- Efren Pana vs. Heirs of Jose
Juanite, Sr., et al., G.R. No. 164201, December 10, 2012

Security Bank & Trust Company vs. Mar Tierra Corp. et. al. (508 SCRA 419)

Re: Article 121 (3) (Obligations of conjugal partnership) – Where the husband contracts an
obligation on behalf of the family business, there is a legal presumption that such obligation redounds to
the benefit of the conjugal partnership, hence, such obligation is chargeable to the conjugal partnership
properties. However, if the money or services are given to another person or entity, the transaction is not
deemed for the conjugal partnership, such as when husband acted as surety for the company of which he
was Executive Vice President in a contract of loan (Ayala Investment & Dev. Corp vs. CA, 286 SCRA 272);
hence, such obligation is not chargeable to the conjugal partnership properties.

Can the debts contracted by the spouse before or during the marriage be charged to the conjugal
property?

ARTICLE 122. The payment of personal debts contracted by the

husband or the wife before or during the marriage shall not be
charged to the conjugal partnership except insofar as they
redounded to the benefit of the family.
Neither shall the fines and pecuniary indemnities imposed upon
them be charged to the partnership.
However, the payment of personal debts contracted by either
spouse before the marriage, that of fines and indemnities
imposed upon them, as well as the support of illegitimate children
of either spouse, may be enforced against the partnership assets
after the responsibilities enumerated in the preceding Article have
been covered, if the spouse who is bound should have no
exclusive property or if it should be insufficient; but at the time of
the liquidation of the partnership, such spouse shall be charged
for what has been paid for the purposes above-mentioned. (163a)

Can losses from gambling or gain of chance chargeable to the conjugal property? Are the winning
from this game of chance an exclusive property of the spouse who won the money from
gambling?

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 ARTICLE 123. Whatever may be lost during the marriage in any
game of chance, or in betting, sweepstakes, or any other kind of
gambling whether permitted or prohibited by law, shall be borne
by the loser and shall not be charged to the conjugal partnership
but any winnings therefrom shall form part of the conjugal
partnership property. (164a)

SECTION 5
Administration of the Conjugal Partnership Property

Who enjoys the administration and enjoyment of the conjugal partnership?

Ans. The administration and enjoyment of the conjugal partnership shall belong to
both spouses jointly.

What if there is a disagreement, who will prevail and what is the remedy of the other party, and
what is the prescriptive period to ask for relief?

Ans. In case of disagreement, the husband's decision shall prevail, subject to

recourse to the court by the wife for a proper remedy, which must be availed of
within five years from the date of the contract implementing such decision.

Who administer the property if one spouse is rendered incapacitated or otherwise unable to
participate in the administration of the conjugal partnership?

Ans. In the event that one spouse is incapacitated or otherwise unable to

participate in the administration of the conjugal properties, the other spouse may
assume sole powers of administration.

What does the power of administration contemplated under Article 124 encompass?

Ans. These powers do not include the powers of disposition or encumbrance which
must have the authority of the court or the written consent of the other spouse.

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What is the effect of a sale made by only one spouses without the consent of the other spouse?

Ans. In the absence of such authority or consent the disposition or encumbrance

shall be void. However, the transaction shall be construed as a continuing offer on
the part of the consenting spouse and the third person, and may be perfected as a
binding contract upon the acceptance by the other spouse or authorization by the
court before the offer is withdrawn by either or both offerors.

ARTICLE 124. The administration and enjoyment of the conjugal

partnership shall belong to both spouses jointly. In case of
disagreement, the husband's decision shall prevail, subject to
recourse to the court by the wife for a proper remedy, which must
be availed of within five years from the date of the contract
implementing such decision.
In the event that one spouse is incapacitated or otherwise unable
to participate in the administration of the conjugal properties, the
other spouse may assume sole powers of administration. These
powers do not include the powers of disposition or encumbrance
which must have the authority of the court or the written consent
of the other spouse. In the absence of such authority or consent
the disposition or encumbrance shall be void. However, the
transaction shall be construed as a continuing offer on the part of
the consenting spouse and the third person, and may be perfected
as a binding contract upon the acceptance by the other spouse or
authorization by the court before the offer is withdrawn by either
or both offerors. (165a)

Disposition of conjugal property by husband requires written consent of wife.

The law requires that the disposition of a conjugal property by the husband as administrator in
appropriate cases requires the written consent of the wife, otherwise, the disposition is void. For the
contracts to sell to be effective, the consent of both husband and wife must concur. Mere awareness of a
transaction by the wife is not consent. --- Thelma A. Jader-Manalo vs. Norma Fernandez C. Camaisa, G.R.
No. 147978, January 23, 2002

Court authorization is warranted if the spouse who does not give consent is incapacitated.

If the written consent of the other spouse cannot be obtained or is being withheld, the matter may be
brought to court which will give such authority if the same is warranted by the circumstances. However,
court authorization under Art. 124 is only resorted to in cases where the spouse who does not give
consent is incapacitated. --- Thelma A. Jader-Manalo vs. Norma Fernandez C. Camaisa, G.R. No. 147978,
January 23, 2002

Joint management or administration does not require that the husband and wife always act together

The administration of the conjugal property belongs to the husband and the wife jointly. However, unlike
an act of alienation or encumbrance where the consent of both spouses is required, joint management

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or administration does not require that the husband and wife always act together. Each spouse may
validly exercise full power of management alone, subject to the intervention of the court in proper cases
as provided under Article 124 of the Family Code. Hence, the husband alone could have filed a petition
for certiorari and prohibition to contest the writs of demolition issued against the conjugal property
without being joined by his wife. The signing of the certificate of non-forum shopping only by the husband
is not a fatal defect. A rigid application of the rules on forum shopping that would disauthorize a husband's
signing the certification in his behalf and that of his wife is too harsh and is clearly uncalled for. --- Sps.
Antonio and Alfreda Docena vs. Hon. Ricardo P. Lapesura, G.R. No. 140153, March 28, 2001

Rules on judicial guardianship proceedings, not summary judicial proceedings, apply where non-
consenting spouse is incapacitated or incompetent to give consent.

The rules on summary judicial proceedings under the Family Code govern the proceedings under Article
124 of the Family Code. The situation contemplated is one where the spouse is absent, or separated in
fact or has abandoned the other or consent is withheld or cannot be obtained. Such rules do not apply
to cases where the non-consenting spouse is incapacitated or incompetent to give consent. In such case,
the proper remedy is a judicial guardianship proceedings under Rule 93 of the 1964 Revised Rules of
Court. --- Jose Uy vs. Court of Appeals and Teodoro L. Jardeleza, G.R. No. 109557, November 29, 2000

Husband’s management of conjugal property is a mere privilege given him by law.

The husband's management of the conjugal estate is not a natural right like his right to do as he pleases
with his private affairs. It is a mere privilege or preference given him by law on the assumption that he is
better able to handle the administration. It results that when his supposed superiority over the woman in
this regard; when indeed, as in this case, his ability as manager totally disappears, the raison d' etre of the
privilege vanishes, and it is only just and proper that his co-partner should take control. --- Robert C. Peyer
vs. Felix Martinez, G.R. No. L-3500, January 12, 1951

Sale with assumption of mortgage executed by husband without wife's consent must be annulled in its
entirety.

In the annulment of sale with assumption of mortgages executed by the husband without the consent of
the wife, the alienation or encumbrance must be annulled in its entirety and not only insofar as the share
of the wife in the conjugal property is concerned. The rationale for the annulment of the whole transaction
is the same thus — the plain meaning attached to the plain language of the law is that the contract, in its
entirety, executed by the husband without the wife's consent, may be annulled by the wife. Had Congress
intended to limit such annulment in so far as the contract shall "prejudice" the wife, such limitation should
have been spelled out in the statute. It is not the legitimate concern of this Court to recast the law. ---
Tomasita Bucoy vs. Reynaldo Paulino, G.R. No. L-25775, April 26, 1968

Sale of conjugal property by husband without consent of his wife is voidable.

There is no ambiguity in the wording of the law. A sale of real property of the conjugal partnership made
by the husband without the consent of his wife is voidable. The action for annulment must be brought
during the marriage and within ten years from the questioned transaction by the wife. Where the law
speaks in clear and categorical language, there is no room for interpretation — there is room only for
application. --- Heirs of Christina Ayuste vs. Court of Appeals and Viena Malabonga, G.R. No. 118784,
September 2, 1999 & Heirs of Ignacia Aguilar-Reyes vs. Sps. Cipriano and Florentina Mijares, G.R. No.
143826, August 28, 2003

The sale of a conjugal property requires the consent of both the husband and wife. In applying Article
124 of the Family Code, this Court declared that the absence of the consent of one renders the entire

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sale null and void, including the portion of the conjugal property pertaining to the husband who
contracted the sale. --- Sps. Onesiforo and Rosario Alinas vs. Sps. Victor and Elena Alinas, G.R. No. 158040,
April 14, 2008 & Homeowners Savings & Loan Bank vs. Miguela C. Dailo, G.R. No. 153802, March 11, 2005
& Sps. Antonio and Luzviminda Guiang vs. Court of Appeals, G.R. No. 125172, June 26, 1998

Significantly, a sale or encumbrance of conjugal property concluded after the effectivity of the
Family Code on August 3, 1988, is governed by Article 124 of the same Code that now treats
such a disposition to be void if done (a) without the consent of both the husband and the
wife, or (b) in case of one spouse's inability, the authority of the court. --- Sps. Wilfredo and
Patrocinia Ravina vs. Mary Ann P. Villa Abrille, et al., G.R. No. 160708, October 16, 2009

In this case, [the husband] was the sole administrator of the property because [the wife], with whom [the
husband] was separated in fact, was unable to participate in the administration of the conjugal property.
However, as sole administrator of the property, [the husband] still cannot sell the property without the
written consent of [the wife] or the authority of the court. Without such consent or authority, the sale is
void. The absence of the consent of one of the spouse renders the entire sale void, including the portion
of the conjugal property pertaining to the spouse who contracted the sale. Even if the other spouse
actively participated in negotiating for the sale of the property, that other spouse's written consent to
the sale is still required by law for its validity. –--- Mario Siochi vs. Alfredo Gozon, et al., G.R. Nos. 169900
& 169977, March 18, 2010

[A]rticle 124 of the Family Code requires that any disposition or encumbrance of conjugal property must
have the written consent of the other spouse, otherwise, such disposition is void. --- Titan Construction
Corp. vs. Manuel A. David, Sr., et al., G.R. No. 169548, March 15, 2010

Article 124 of the Family Code which applies to conjugal partnership property, is a reproduction of Article
96 of the Family Code which applies to community property. Both Article 96 and Article 127 of the Family
Code provide that the powers do not include disposition or encumbrance without the written consent of
the other spouse. Any disposition or encumbrance without the written consent shall be void. However,
both provisions also state that "the transaction shall be construed as a continuing offer on the part of the
consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance
by the other spouse . . . before the offer is withdrawn by either or both offerors." . . . The execution of the
SPA is the acceptance by the other spouse that perfected the continuing offer as a binding contract
between the parties, making the Deed of Real Estate Mortgage a valid contract. --- Arturo Sarte Flores
vs. Sps. Enrico, Jr. and Edna Lindo, G.R. No. 183984, April 13, 2011

Guiang vs. CA (291 SCRA 372)

Re: Article 124, FC – The sale of conjugal property requires the written consent of both the husband
and wife. The absence of the consent of one renders the sale null and void, including the portion of the
conjugal property pertaining to the husband who contracted the sale.

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Alinas vs. Alinas (551 SCRA 154)

Re: Articles 124 FC – A sale by the husband of conjugal parcel of land, without consent of wife who
is separated from him is null and void in its entirety, including the share of the consenting husband.
However, under the salutary principle of non-enrichment at the expense of another, purchase price must
be reimbursed with interest at 6% per annum from filing of complaint and 12% per annum from finality of
decision until full payment.

Chessman vs. IAC (193 SCRA 93)

Re: Article 124, FC – Sale by Filipino wife of land without consent of American husband, which land
was purchased with conjugal funds by the spouses is valid. American has acquired no right or interest on
the land.

Can only one spouse make donation of the conjugal partnership property without the consent of
the other spouse?
Ans. No. Neither spouse may donate any conjugal partnership property without
the consent of the other. However, either spouse may, without the consent of the
other, make moderate donations from the conjugal partnership property for
charity or on occasions of family rejoicing or family distress.

ARTICLE 125. Neither spouse may donate any conjugal

partnership property without the consent of the other. However,
either spouse may, without the consent of the other, make
moderate donations from the conjugal partnership property for
charity or on occasions of family rejoicing or family distress.
(174a)

[Under] Article 125 of the Family Code, a conjugal property cannot be donated by one spouse without
the consent of the other spouse. --- Mario Siochi vs. Alfredo Gozon, et al., G.R. Nos. 169900 & 169977,
March 18, 2010

SECTION 6
Dissolution of Conjugal Partnership Regime

What are the grounds for dissolution of the Conjugal Partnership Regime?

ARTICLE 126. The conjugal partnership terminates:

(1) Upon the death of either spouse;

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 (2) When there is a decree of legal separation;
(3) When the marriage is annulled or declared void; or
(4) In case of judicial separation of property during the marriage
under Articles 134 to 138. (175a)

Will the separation of fact between the spouses affect the regime of conjugal partnership?

ARTICLE 127. The separation in fact between husband and wife

shall not affect the regime of conjugal partnership, except that:
(1) The spouse who leaves the conjugal home or refuses to live
therein, without just cause, shall not have the right to be
supported;
(2) When the consent of one spouse to any transaction of the
other is required by law, judicial authorization shall be
obtained in a summary proceeding;
(3) In the absence of sufficient conjugal partnership property,
the separate property of both spouses shall be solidarily
liable for the support of the family. The spouse present shall,
upon proper petition in a summary proceeding, be given
judicial authority to administer or encumber any specific
separate property of the other spouse and use the fruits or
proceeds thereof to satisfy the latter's share. (178a)

Article 124 of the Family Code which applies to conjugal partnership property, is a reproduction of Article
96 of the Family Code which applies to community property. Both Article 96 and Article 127 of the Family
Code provide that the powers do not include disposition or encumbrance without the written consent of
the other spouse. Any disposition or encumbrance without the written consent shall be void. However,
both provisions also state that "the transaction shall be construed as a continuing offer on the part of the
consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance
by the other spouse . . . before the offer is withdrawn by either or both offerors." . . . The execution of the
SPA is the acceptance by the other spouse that perfected the continuing offer as a binding contract
between the parties, making the Deed of Real Estate Mortgage a valid contract. --- Arturo Sarte Flores vs.
Sps. Enrico, Jr. and Edna Lindo, G.R. No. 183984, April 13, 2011

What are the relief or remedies available to a spouse who is abandoned by his or her spouse or
who spouse fails to comply with his or her obligations to the family?

B. The aggrieved spouse may:

a. Petition the court for receivership;

b. Petition the court for judicial separation of property;

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 c. Petition for authority to be the sole administrator of the conjugal partnership property,
subject to subject to such precautionary conditions as the court may impose.

C. When is a spouse deemed by law to have abandoned the other or the conjugal dwelling?

A. when he or she has left the conjugal dwelling without any intention of returning, and the
law also consider as prima facie presumed to have no intention of returning to the
conjugal dwelling when the spouse who has left the conjugal dwelling for a period of three
(3) months and has failed within the same period to give any information as to his or her
whereabouts.

ARTICLE 128. If a spouse without just cause abandons the other

or fails to comply with his or her obligations to the family, the
aggrieved spouse may petition the court for receivership, for
judicial separation of property, or for authority to be the sole
administrator of the conjugal partnership property, subject to
such precautionary conditions as the court may impose.
The obligations to the family mentioned in the preceding
paragraph refer to marital, parental or property relations.
A spouse is deemed to have abandoned the other when he or she
has left the conjugal dwelling without any intention of returning.
The spouse who has left the conjugal dwelling for a period of
three months or has failed within the same period to give any
information as to his or her whereabouts shall be prima facie
presumed to have no intention of returning to the conjugal
dwelling. (167a, 191a)

SECTION 7
Liquidation of the Conjugal Partnership Assets and Liabilities

What are the procedures to be followed upon the dissolution of the conjugal partnership regime?

First : An inventory shall be prepared by listing separately all the properties of the conjugal
partnership and the exclusive properties of each spouse.

Second: Amount advanced by the conjugal partnership in payment of the personal debts and
obligations of either spouse shall be credited to the conjugal partnership as an asset/s.

Third : Each spouse shall be reimbursed for the use of his or her exclusive funds in the acquisition
of property or for the value of his or her exclusive property, the ownership of which has
been vested by law in the conjugal partnership.

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Fourth: The debts and obligations of the conjugal partnership shall be paid out of the conjugal
assets. Provided that in case of insufficiency of said assets, the spouses shall be solidarily
liable for the unpaid balance with their separate properties, in accordance with paragraph
2 of Article 121.

Fifth : Whatever remains of the exclusive properties of the spouses shall thereafter be
delivered to each of the spouses.

Sixth : Unless the owner spouse has been indemnified from whatever source, the loss or
deterioration of movables used for the benefit of the family, belonging to either
spouse, even due to fortuitous event, shall be paid to said spouse from the
conjugal funds, if any

Seventh: The net remainder of the conjugal partnership properties shall constitute the
profits, which shall be divided equally between husband and wife, unless a
different proportion or division was agreed upon in the marriage settlements or
unless there has been a voluntary waiver or forfeiture of such share as provided
in this Code.

Eight : The presumptive legitimes of the common children shall be delivered upon
partition in accordance with Article 51.

Ninth : In the partition of the properties, the conjugal dwelling and the lot on which it is
situated shall, unless otherwise agreed upon by the parties, be adjudicated to the
spouse with whom the majority of the common children choose to remain.
Children below the age of seven years are deemed to have chosen the mother,
unless the court has decided otherwise. In case there is no such majority, the court
shall decide, taking into consideration the best interests of said children.

ARTICLE 129. Upon the dissolution of the conjugal partnership

regime, the following procedure shall apply:
(1) An inventory shall be prepared, listing separately all the
properties of the conjugal partnership and the exclusive
properties of each spouse.
(2) Amounts advanced by the conjugal partnership in payment of
personal debts and obligations of either spouse shall be
credited to the conjugal partnership as an asset thereof.
(3) Each spouse shall be reimbursed for the use of his or her
exclusive funds in the acquisition of property or for the value
of his or her exclusive property, the ownership of which has
been vested by law in the conjugal partnership.

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 (4) The debts and obligations of the conjugal partnership shall be
paid out of the conjugal assets. In case of insufficiency of said
assets, the spouses shall be solidarily liable for the unpaid
balance with their separate properties, in accordance with the
provisions of paragraph (2) of Article 121.

(5) Whatever remains of the exclusive properties of the spouses

shall thereafter be delivered to each of them.
(6) Unless the owner has been indemnified from whatever
source, the loss or deterioration of movables used for the
benefit of the family, belonging to either spouse, even due to
fortuitous event, shall be paid to said spouse from the
conjugal funds, if any.
(7) The net remainder of the conjugal partnership properties shall
constitute the profits, which shall be divided equally between
husband and wife, unless a different proportion or division
was agreed upon in the marriage settlements or unless there
has been a voluntary waiver or forfeiture of such share as
provided in this Code.
(8) The presumptive legitimes of the common children shall be
delivered upon partition in accordance with Article 51.
(9) In the partition of the properties, the conjugal dwelling and
the lot on which it is situated shall, unless otherwise agreed
upon by the parties, be adjudicated to the spouse with whom
the majority of the common children choose to remain.
Children below the age of seven years are deemed to have
chosen the mother, unless the court has decided otherwise. In
case there is no such majority, the court shall decide, taking
into consideration the best interests of said children. (181a,
182a, 183a, 184a, 185a)

[P]rior to the liquidation of the conjugal partnership, the interest of each spouse in the conjugal assets
is inchoate, a mere expectancy, which constitutes neither a legal nor an equitable estate, and does not
ripen into title until it appears that there are assets in the community as a result of the liquidation and
settlement. The interest of each spouse is limited to the net remainder or "remanente liquido"
(haber ganancial) resulting from the liquidation of the affairs of the partnership after its
dissolution. Thus, the right of the husband or wife to one-half of the conjugal assets does not vest until
the dissolution and liquidation of the conjugal partnership, or after dissolution of the marriage, when it is
finally determined that, after settlement of conjugal obligations, there are net assets left which can be
divided between the spouses or their respective heirs. --- Brigido B. Quiao vs. Rita C. Quiao, et al., G.R. No.
176556, July 4, 2012 citing Abalos vs. Macatangay, Jr., 482 Phil. 877-894 (2004)

Article 129 of the [Family] Code applies in the liquidation of the couple's properties in the event that the
conjugal partnership of gains is dissolved . . .

In the normal course of events, the following are the steps in the liquidation of the properties of the
spouses:

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(a) An inventory of all the actual properties shall be made, separately listing the couple's conjugal
properties and their separate properties. . . .

(b) Ordinarily, the benefit received by a spouse from the conjugal partnership during the marriage is
returned in equal amount to the assets of the conjugal partnership; and if the community is enriched at
the expense of the separate properties of either spouse, a restitution of the value of such properties to
their respective owners shall be made.

(c) Subsequently, the couple's conjugal partnership shall pay the debts of the conjugal partnership;
while the debts and obligation of each of the spouses shall be paid from their respective separate
properties. But if the conjugal partnership is not sufficient to pay all its debts and obligations, the spouses
with their separate properties shall be solidarily liable.

(d) Now, what remains of the separate or exclusive properties of the husband and of the wife shall
be returned to each of them. --- Brigido B. Quiao vs. Rita C. Quiao, et al., G.R. No. 176556, July 4, 2012
citing Abalos vs. Macatangay, Jr., 482 Phil. 877-894 (2004)

Although Article 129 provides for the procedure in case of dissolution of the conjugal partnership regime,
Article 147 (Property Regime of Unions Without Marriage where one party is in good faith) specifically
covers the effects of void marriages on the spouses' property relations. --- Barrido v. Nonato, G.R. No.
176492, October 20, 2014

What if the reason for the dissolution of the marriage is due to the death one of the spouse, what
is the procedure to be followed?

Ans. The conjugal partnership property shall be liquidated in the same proceeding
for the settlement of the estate of the deceased. This can be either judicial
settlement of the estate of extra-judicial settlement of the estate but the
same must be made within one year from the death of the deceased spouse.

What is the status of the disposition of any of the property of the deceased spouse done beyond
one year from the death of the spouse and still there was not settlement of the estate of said
deceased spouse?

Ans. If upon the lapse of the one (1) year period from the death of the deceased
spouses, and no liquidation is made, any disposition or encumbrance
involving the conjugal partnership property of the terminated marriage shall
be void.

What regime of property shall govern, if the surviving spouse remarry again without comply with
the full settlement of the property of the previous marriage with one spouse who died?

Ans. Should the surviving spouse contract a subsequent marriage without

complying with the foregoing requirements, a mandatory regime of complete

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 separation of property shall govern the property relations of the subsequent
marriage.

ARTICLE 130. Upon the termination of the marriage by death,

the conjugal partnership property shall be liquidated in the same
proceeding for the settlement of the estate of the deceased.
If no judicial settlement proceeding is instituted, the surviving
spouse shall liquidate the conjugal partnership property either
judicially or extra-judicially within one year from the death of the
deceased spouse. If upon the lapse of said period no liquidation is
made, any disposition or encumbrance involving the conjugal
partnership property of the terminated marriage shall be void.
Should the surviving spouse contract a subsequent marriage
without complying with the foregoing requirements, a
mandatory regime of complete separation of property shall
govern the property relations of the subsequent marriage. (n)

Article 130 is to be read in consonance with Article 105 of the Family Code. . . . It is clear that conjugal
partnership of gains established before and after the effectivity of the Family Code are governed by the
rules found in Chapter 4 (Conjugal Partnership of Gains) of Title IV (Property Relations Between Husband
and Wife) of the Family Code. Hence, any disposition of the conjugal property after the dissolution
of the conjugal partnership must be made only after the liquidation; otherwise, the disposition
is void. --- Heirs of Sps. Protacio, Sr. and Marta Go vs. Ester L. Servacio, et al., G.R. No. 157537, September
7, 2011

What if the situation involves the simultaneous liquidation of the conjugal partnership properties
of two or more marriages contracted by the same person but the same was before the effectivity
of the Family Code, how is it to be proceeded?

Ans. The respective capital, fruits and income of each partnership shall be
determined upon such proof as may be considered according to the rules of
evidence.
In case of doubt as to which partnership the existing properties belong, the
same shall be divided between and among the different partnerships in
proportion to the capital and duration of each.

ARTICLE 131. Whenever the liquidation of the conjugal

partnership properties of two or more marriages contracted by
the same person before the effectivity of this Code is carried out
simultaneously, the respective capital, fruits and income of each
partnership shall be determined upon such proof as may be
considered according to the rules of evidence. In case of doubt as
to which partnership the existing properties belong, the same

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 shall be divided between and among the different partnerships in
proportion to the capital and duration of each. (189a)

What rule is to be followed or observed in determining the appraisal and sale value of the
conjugal partnership property and other such matter not covered by this Chapter is dissolution?

Ans. The Rules of Court on the administration of estates of deceased persons shall
be observed in the appraisal and sale of property of the conjugal partnership,
and other matters which are not expressly determined in this Chapter

ARTICLE 132. The Rules of Court on the administration of estates

of deceased persons shall be observed in the appraisal and sale of
property of the conjugal partnership, and other matters which are
not expressly determined in this Chapter. (187a)

Where should the court source the support to be given to the surviving spouse and common
children while the conjugal partnership property is being liquidated?

Ans. It shall be taken from the common mass of the property but from this shall also be
deducted the amount received for support which exceed the fruits or rents
pertaining to them.

ARTICLE 133. From the common mass of property, support shall

be given to the surviving spouse and to the children during the
liquidation of the inventoried property and until what belongs to
them is delivered; but from this shall be deducted that amount
received for support which exceeds the fruits or rents pertaining
to them. (188a)

RULES COMMON TO ACP AND CPG

A. Charges and Obligations of the ACP/CPG: The charges upon and obligation of
the ACP and of the CPG are similar, except for a couple of differences which will
be pointed out below.
The obligation may be categorized into primary and secondary. Primary
obligations are those for which the ACP/CPG is directly liable. Secondary
obligations are actually personal obligation of either spouse, for which the
ACP/CPG may be held liable only in case the separate property of the debtor-

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spouse is insufficient. Payments of the ACP/CPG of such secondary obligations
are considered advances to the debtor-spouse.

1. Primary Obligations. The ACP/CPG shall be liable for the obligations or

expenses listed below. If the ACP/CPG is insufficient, the spouses shall be
solidarily liable for the unpaid balance with their separate properties (Article
94 & 121 of the FC)
a. Support of the spouses, their common children, and legitimate
children of either spouse (par. 1)
b. Debts ---
i. Contracted during the marriage

1. By the designated administrator-spouse for the benefit

of the ACP/CPG, or
2. By both spouses, or
3. By one spouse with the consent of the other (par. 2)

ii. Contracted during the marriage by either spouse without

the consent of the other to the extent that the family may
have been benefited (par 3)

iii. Contracted before the marriage (Antenuptial debts) by

either spouse insofar as they have redounded to the
benefit of the family (par. 7)

1. Benefit to the family must be proved only if the debt

was not consented to by both spouses. The creditor
has the burden of proving that the debt was for the
benefit of the family (Homeowner Saving & Loan Bank
vs. Dailo, G.R. No. 153802, March 11, 2005)

2. If a spouse contracts a debt as the principal obligor, i.e.,

as the direct recipient of the money and services to be
used in or for his or her own business or profession, the
debt is for the benefit of the family (Ayala Investment
and Development Corp. vs. Court of Appeals, 349 Phil.
942 (1998) : Security Bank vs. Mar Tierra Corp., G.R. No.
143382, November 29, 2006.

3. On the other hand, if a spouse merely acts as guarantor

or surety for another, he or she does not act for the
benefit of the family as the benefit is clearly intended
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 for a third party (Luzon Surety Co. vs. De Garcia, 30
SCRA 111 (1969)

c. Expenses for Self-Improvement

1. Expenses to enable either spouse to commence or complete a

professional or vocational course, or other activity for self-
improvement (par. 6)

2. Value of what is donated or promised by both spouses in favor

of their common legitimate children for the exclusive purpose
of commencing or completing a professional or vocational
course or other activity for self-improvement (par. 8)

d. Incidental Expenses

1. All taxes, liens, charges and expenses, including major or minor

repairs, upon the ACP/CPG property (par. 4)

a. ACP/CPG covers all repairs (major or minor) on

ACP/CPG properties.

2. All taxes and expenses for mere preservation made during the
marriage upon the separate property of either spouse (par. 5)

a. ACP/CPG covers only minor repairs (“for mere

preservation”) on exclusive properties.

b. There is a difference between ACP and CPG with

respect to this expense:

i. For the ACP to be liable, it is required that the

separate property be actually “used by the family”
(Article 94, par. 5 of the FC)

ii. This is not a requirement under the CPG regime

(Article 121, par. 5 of the FC), because the CPG is
necessarily the usufructuary of the separate
properties, unlike in the ACP regime.

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 3. Expenses of litigation between the spouses unless the suit is
found to be groundless (par. 9)

2. Secondary Obligations. The ACP/CPG shall be liable for the following

separate obligations of a spouse, but subject to the following qualifications:

a. The ACP/CPG is liable only in case of absence or insufficiency of the

exclusive property of the debtor-spouse (Article 94 & 122 of the FC)

b. For the CPG to be liable, it must also be proved that the foregoing
primary obligations of the CPG have been covered before the CPG
is to be liable for the secondary obligation (Article 122 FC)

i. This is not a requirement for the ACP. In ACP, there is no need

to prove that the primary obligations have been covered
before the ACP becomes liable for these secondary
obligations. This is because, in general, the spouses under the
ACP regime do not have substantial separate properties, as
the properties they owned before marriage become part of
the ACP during the marriage.

A. Antenuptial debts without benefit to the family --- These are debts of
either spouse before the marriage, which did not redound to the benefit
of the family.
B. Support of illegitimate children of either spouse.
C. Fines and indemnities imposed upon either spouse --- These are liabilities
incurred by either spouse by reason of a crime or quasi-delict

3. Gambling Losses. Gambling losses during the marriage (whether the game
is permitted or prohibited by law or not) shall be borne by the loser and shall
not be charged to the ACP/CPG, but any winnings therefrom shall form part
of the ACP/CPG (Article 95 & 123 of the FC).

B. OWNERSHIP, ADMINISTRATION, ENJOYMENT AND DISPOSITION OF THE

ACP/CPG PROPERTY

1. Joint Administration. The administration and enjoyment of the ACP/CPG

property shall belong to both spouses jointly (Art. 96 & 124 of the FC)

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 - In case of disagreement, the husband’s decision shall prevail, subject
to recourse to the court by the wife for proper remedy, which must
be availed of within 5 years from the date of the contract
implementing such decision (Articles 96 & 124 of the FC)

2. Sole Administration in Case of Incapacity. In the event that one spouse is

incapacitated or otherwise unable to participate in the administration of the
ACP/CPG conjugal properties, the other spouse may assume sole powers of
administration (Articles 96 & 124 of the FC).

3. Disposition or Encumbrance. The power of administration do not include

disposition or encumbrance, as the latter acts require the written consent of
the other spouse or the authority from the court (in case the other spouse
cannot give consent).

In the absence of such authority or consent, the disposition or encumbrance

shall be void (Article 96 & 124 FC)

a. However, the transaction shall be construed as a continuing offer on

the part of the consenting spouse and the third person, and may be
perfected as a binding contract upon the acceptance by the other
spouse or authorization by the court before the offer is withdrawn by
either or both offerors (Article 96 & 124 of the FC)

b. Note that the entire transaction is void, not only as to the share of the
non-consenting spouse. The nullity is based not on prejudice but on
lack of consent of an indispensable party to the contract (Bucoy vs.
Paulino, 131 Phil. 790 (1968): Aguilar-Reyes vs. Mijares, G.R. No.
143826, August 28, 2003: Homeowner Savings & Loan Bank vs. Dailo,
G.R. No. 153802, March 11, 2005: Villanueva vs Chiong, G.R. No.
159889, June 5, 2008.

c. With the nullity of the transaction, the property must be returned to

the ACP/CPG. The spouse who received the price must, in turn, return
the same (Villanueva vs Chiong, G.R. No. 159889, June 5, 2008).

d. Under the Civil Code, a disposition by one spouse without the consent
of the other spouse renders the transaction voidable (not void), which
can only be annulled within 10 years from the transaction. The said
rule continues to apply to transaction executed prior to the Family
Code (Aguilar-Reyes vs. Mijares, G.R. No. 143826, August 28, 2003:
Villanueva vs Chiong, G.R. No. 159889, June 5, 2008).

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 e. Marital consent is required in a lease of an ACP/CPG realty for a period
of more than one year, such a lease being considered a conveyance
and encumbrance (Roxas vs. CA, G.R. No. 92245, June 26, 1991).

4. Donation. Neither spouse may donate any community property without the
consent of the other (Articles 98 & 125 of the FC).

- Except moderate donations from the community property

for charity or on occasions of family rejoicing or family
distress (Articles 98 & 125 of the FC)

5. Disposition by Will. Either spouse may dispose by will (mortis causa) of his
or her interest in the community property (Article 97 FC). Consent of the
other spouse is not needed, because the disposition will take effect upon
death, when the ACP will have been dissolved.

C. DISSOLUTION OF ACP/CPG

1. The four grounds for the dissolution of the absolute community of properties
and conjugal partnership of gain are?

a) Death of either spouses;

b) Legal separation;
c) Annulment or declaration of nullity of marriage; and
d) Judicial Separation of Property (Articles 99 & 126 of the FC)

2. Effect of Separation in Fact Between Spouses: No effect on the ACP/CPG

except the following:

a. The spouse who leaves the conjugal home or refuses to live therein,
without just cause, shall not have the right to be supported, but the
obligation to give support by the spouse who leaves is not
extinguished (Article 100 FC).

b. When the consent of one spouse to any transaction of the other is

required by law, judicial authorization shall be obtained in a
summary proceeding (Article 100 & 127 of the FC).

c. In the absence of sufficient ACP/CPG property, the separate

property of both spouses shall be solidarily liable for the support of
the family. The spouse present shall, upon proper petition in a
summary proceeding, be given judicial authority to administer or
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 encumber any specific separate property of the other spouse and
use the fruits or proceeds (Article 100 & 127 of the FC).

3. Abandonment or Non-performance of Marital Obligations.

a. Remedy: The aggrieved spouse may file any of the following: (1)
petition for receivership, (2) judicial separation, (3) petition for
authority to be the sole administrator (Articles 101 & 128 of the FC)

b. The obligations mentioned refer to marital, parental or property

relations (Articles 101 & 128 of the FC).

c. Same definition of the word abandonment.

D. LIQUIDATION OF THE ACP/CPG ASSETS AND LIABILITIES

1. Pre-liquidation. Upon termination of the ACP/CPG, and pending its

liquidation, there is an implied co-ownership among the parties (the spouses
or their respective heirs, as the case may be) in the ACP/CPG assets. In this
pre-liquidation scenario, the rules of co-ownership apply. Each of the co-
owners may dispose of his share, but such disposition is limited only to his
undivided interest or pro indiviso share, and not to any specific property or
part of it (Dael vs. IAC, G.R. No. 68873, March 31, 1989, 171 SCRA 524, 532-
533: Metrobank vs. Pascual, G.R. No. 163744, February 29, 2008).

2. Liquidation Process. Upon dissolution of the ACP/CPG, the following

procedure shall apply (Article 102 & 129 of the FC):

First : An inventory shall be prepared by listing separately all the

properties of the conjugal partnership and the exclusive
properties of each spouse.

Second: Payment of ACP/CPG debts out of ACP/CPG assets.

a. If ACP/CPG assets are insufficient, spouses shall be
solidarily liable with their exclusive properties.
b. Whatever remains of the exclusive properties shall then
be delivered to each of the spouses.

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Third : Division of Net ACP Assets (net remainder of the properties
of the ACP) or of Net CPG Profits (net remainder of the
properties of the CPG.
a. Division shall be equal, unless

i. A different proportion or division was agreed upon in

the marriage settlements, or
ii. There has been a voluntary waiver of such share.

b. Forfeiture of net profits – In ACP, for purpose of

computing net profits subject to forfeiture under Article
43(2) and Article 63(2) of the FC, the said profits shall be
the increase in value between the MARKET VALUE of the
community property at the TIME OF CELEBRATION OF
THE MARRIAGE and the MARKET VALUE at the time of its
DISSOLUTION.

i. If the ACP has debts, deduct the debts first from the
market value of the ACP at the time of dissolution.
Thus, the net profits should be the increase in value
between the market value of the ACP at the time of
the celebration of the marriage and the net market
value of the ACP at the time of its dissolution.

c. Delivery of Presumptive Legitimes to the common

children.

d. Conjugal Dwelling --- Unless otherwise agreed upon by

the parties, the conjugal dwelling and lot shall be
adjudicated to the spouse with whom the majority of the
common children choose to remain.

i. Children below 7 years old are deemed to have chosen

the mother, unless the court has decided otherwise.
ii. In case there is no such majority, the court shall
decide, taking into consideration the best interest of
said children.

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3. Liquidation After Death of Either Spouse.

a. Through Settlement Proceedings. Upon termination of the marriage

by death of either spouse, the ACP/CPG shall be liquidated in the same
proceeding for the settlement of the estate of the deceased (Article
103 & 130 of the FC).

b. Without Settlement Proceedings. If no judicial settlement proceeding

is instituted, the surviving spouse shall liquidate the ACP/CPG either
judicially or extra-judicially within 1 year from the death of the
deceased spouse (Article 103 & 130 of the FC).

• If no liquidation is made, then ---

a. Any disposition or encumbrance of the community

property of the terminated marriage shall be void (Article
103 & 130 of the FC)

i. It seems that the nullity applies only to the

share of the heirs who did not consent to the
transaction (Dael vs. IAC, 68873, March 31,
1989, 171 SCRA 524, 532-533: Metrobank vs.
Pascual, G.R. No. 163744, February 29, 2008.

b. Should the surviving spouse contract a subsequent

marriage, a mandatory regime of complete separation of
property shall govern the property relations of the
subsequent marriage (Article 103 & 130 of the FC)

i. This rule is supposed to protect the heirs of the

first marriage. The surviving spouse who
remarries might be bringing or merging the
properties of the first marriage into the second
marriage.

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4. Simultaneous Liquidation. Rule on simultaneous liquidation of the
community properties of two or more marriages contracted by the same
person before the effectivity of the Family Code:

a. The respective capital, fruits and income of each community shall be

determined upon proof according to the rules of evidence.

b. In case of doubt, the property shall be divided between the different

communities in proportion to the capital and duration of each (Article
105 & 132 of the FC).

• Example: If one marriage lasted for 18 years and the second

for 46 hears, and the capital of either marriage or the
contribution of each spouse cannot be determined with
mathematical precision, the total mass of these properties
should be divided between the two communities in
proportion to the duration of each marriage, thus, 18:46
(Delizo vs. Delizo, 69 SCRA 216 (1976).

5. Support.

a. Pending liquidation and until delivery of their shares, the surviving

spouse and children shall receive support from the common mass of
property (Article 133, FC).

• Even children who are already adults, married or gainfully

employed may receive support or allowance (Santero vs.
Court of First Instance, 153 SCRA 728).

• If the estate is clearly insolvent, the surviving spouse and

children are not entitled to support. Such support is merely in
the nature of advance on their share in the estate; if the estate
is insolvent, no such share can be expected by the surviving
spouse and the children (Moore & Sons vs. Wagner, 52 Phil.
128).

b. Support in excess of the fruits or rents pertaining to them shall be

deducted from their shares (Article 133 FC).

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 CHAPTER 5
Separation of Property of the Spouses and Administration of Common
Property by One Spouse During the Marriage

ARTICLE 134. In the absence of an express declaration in the

marriage settlements, the separation of property between
spouses during the marriage shall not take place except by judicial
order. Such judicial separation of property may either be
voluntary or for sufficient cause. (190a)

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What are these sufficient cause or causes that could warrant the judicial separation
of the property of the spouses?

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225 | P a g e
 ARTICLE 135. Any of the following shall be considered sufficient
cause for judicial separation of property:
(1) That the spouse of the petitioner has been sentenced to a
penalty which carries with it civil interdiction;
(2) That the spouse of the petitioner has been judicially
declared an absentee;
(3) That loss of parental authority of the spouse of petitioner
has been decreed by the court;
(4) That the spouse of the petitioner has abandoned the latter
or failed to comply with his or her obligations to the family as
provided for in Article 101;
(5) That the spouse granted the power of administration in
the marriage settlements has abused that power; and
(6) That at the time of the petition, the spouses have been
separated in fact for at least one year and reconciliation is highly
improbable.
In the cases provided for in numbers (1), (2) and (3), the
presentation of the final judgment against the guilty or absent
spouse shall be enough basis for the grant of the decree of judicial
separation of property. (191a)

As a general rule, any modification in the marriage settlements must be made

before the celebration of marriage. An exception to this rule is allowed provided
that the modification is judicially approved and refers only to the instances
provided in Articles 66, 67, 128, 135 and 136 of the Family Code. --- Noveras v.
Noveras, G.R. No. 188289, August 20, 2014

Can the spouse cause the dissolution of their property regime during the existence
of the marriage?

Ans. Yes. Article 136 of the FC provides that spouses may jointly file a
verified petition with the court for the voluntary dissolution of the
absolute community or the conjugal partnership of gains, and for
the separation of their common properties.
Furthermore, the petition to be valid must list the name of the
creditors of the absolute community as well as the personal
creditors of the spouses.

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 ARTICLE 136. The spouses may jointly file a verified petition with
the court for the voluntary dissolution of the absolute community
or the conjugal partnership of gains, and for the separation of
their common properties.
All creditors of the absolute community or of the conjugal
partnership of gains, as well as the personal creditors of the
spouse, shall be listed in the petition and notified of the filing
thereof. The court shall take measures to protect the creditors
and other persons with pecuniary interest. (191a)

Problem:

Can the spouses jointly file a verified petition in court for the voluntary dissolution
of their absolute community or the conjugal partnership of gains, and for the
separation of their common properties?

Yes for the same is allowed under Article 136 of the FC, provided that their personal
creditors and all persons have pecuniary interest against the spouses shall be listed
in the petition and notified of the filing thereof.

ARTICLE 137. Once the separation of property has been decreed, the absolute
community or the conjugal partnership of gains shall be liquidated in conformity
with this Code.
During the pendency of the proceedings for separation of property, the absolute
community or the conjugal partnership shall pay for the support of the spouses
and their children. (192a)

ARTICLE 138. After dissolution of the absolute community or of the conjugal

partnership, the provisions on complete separation of property shall apply. (191a)

ARTICLE 139. The petition for separation of property and the final judgment
granting the same shall be recorded in the proper local civil registries and
registries of property. (193a)

ARTICLE 140. The separation of property shall not prejudice the rights previously
acquired by creditors. (194)

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Can the spouses after securing a decree separating their community property move
for the revival of their property regime?

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 Ans. Yes. Article 141 of the FC provides that the spouses may, in the same
proceedings where separation of property was decreed, file a motion in court for
a decree reviving the property regime that existed between them before the
separation of property in any of the following instances:
(1) When the civil interdiction terminates;
(2) When the absentee spouse reappears;
(3) When the court, being satisfied that the spouse granted the
power of administration in the marriage settlements will not again
abuse that power, authorizes the resumption of said
administration;
(4) When the spouse who has left the conjugal home without a
decree of legal separation resumes common life with the other;
(5) When parental authority is judicially restored to the spouse
previously deprived thereof;
(6) When the spouses who have been separated in fact for at
least one year, reconcile and resume common life; or
(7) When after voluntary dissolution of the absolute
community of property or conjugal partnership has been judicially
decreed upon the joint petition of the spouses, they agree to the
revival of the former property regime.
No voluntary separation of property may thereafter be granted.
The revival of the former property regime shall be governed by
Article 67.

Can a second or third or more petition for separation be granted after the revival
of the previously separated regime of property?

Ans. No more. As expressly provided under Article 141, once a

previously separated property is revived, no more voluntarily
separation of property may thereafter be granted.

Where should the petition for revival of separated property be filed?

Ans. No petition is required but a mere motion filed in the court where
the separation of property was decree was issued asking for a
decree reviving the property regime that existed between them
before the separation of property.

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 ARTICLE 141. The spouses may, in the same proceedings where
separation of property was decreed, file a motion in court for a
decree reviving the property regime that existed between them
before the separation of property in any of the following
instances:

(1) When the civil interdiction terminates;

(2) When the absentee spouse reappears;
(3) When the court, being satisfied that the spouse granted the
power of administration in the marriage settlements will not
again abuse that power, authorizes the resumption of said
administration;
(4) When the spouse who has left the conjugal home without a
decree of legal separation resumes common life with the
other;
(5) When parental authority is judicially restored to the spouse
previously deprived thereof;
(6) When the spouses who have been separated in fact for at
least one year, reconcile and resume common life; or
(7) When after voluntary dissolution of the absolute community
of property or conjugal partnership has been judicially
decreed upon the joint petition of the spouses, they agree to
the revival of the former property regime. No voluntary
separation of property may thereafter be granted.

The revival of the former property regime sh all be governed by

Article 67. (195a)

Can the court issue an order giving the administration of all classes of exclusive
property of either spouse to the other spouse?

Ans. Yes. Article 142 provides that the administration of all classes of
exclusive property of either spouse may be transferred by the
court to the other spouse under the following circumstance:
• When one spouse becomes the guardian of the
other.
• When one spouse is judicially declared an
absentee.
• When one spouse is sentenced to a penalty which
carries with it civil interdiction
• When one spouse becomes a fugitive from justice
or is in hiding as an accused in a criminal case.

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ARTICLE 142. The administration of all classes of exclusive property of
either spouse may be transferred by the court to the other spouse:
(1) When one spouse becomes the guardian of the other;

(2) When one spouse is judicially declared an absentee;

(3) When one spouse is sentenced to a penalty which carries with it
civil interdiction; or
(4) When one spouse becomes a fugitive from justice or is in hiding
as an accused in a criminal case.

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 If the other spouse is not qualified by reason of incompetence, conflict of
interest, or any other just cause, the court shall appoint a suitable person
to be the administrator. (n)

Can the court issue an order giving the administration of all classes of exclusive
property of either spouse to a person other than the remaining spouse?

Ans. Yes. Article 142 provides that the administration of all classes of
exclusive property of either spouse may place in the administration of a
suitable person to be the administrator when the remaining spouse is
not qualified by reason of:
• Incompetence
• Conflict of Interest
• Or any other just cause

CHAPTER 6
Regime of Separation of Property

Can a regime of complete separation of property be entered after the effectivity of

the Family Code, and if yes, what can it encompass as properties?

Ans. Yes. Article 143 of the FC provides that future spouses can agree
to have a regime of separation of property through a pre-nuptial
agreement or marriage settlement.
Furthermore, under Article 144 of the FC it is provided that
Separation of property may refer to present or future property or
both, and It may be total or partial.

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 ARTICLE 143. Should the future spouses agree in the marriage
settlements that their property relations during marriage shall be
governed by the regime of separation of property, the provisions
of this Chapter shall be suppletory. (212a)

What is the status of the spouses’ property that is not included in the marriage
settlement for complete separation of property?
Ans. Under Article 144 of the FC it is provided that the property not
agreed upon as separate shall pertain to the absolute community.

ARTICLE 144. Separation of property may refer to present or

future property or both. It may be total or partial. In the latter
case, the property not agreed upon as separate shall pertain to
the absolute community. (213a)

Voluntary separation of property is subject to the rights of creditors of the

conjugal partnership of gains.
Under Article 143 of the Family Code, separation of property may be effected
voluntarily or for sufficient cause, subject to judicial approval. . . However, the
Court must stress that this voluntary separation of property is subject to the rights
of all creditors of the conjugal partnership of gains and other persons with
pecuniary interest pursuant to Article 136 of the Family Code. --- Virgilio Maquilan
vs. Dita Maquilan, G.R. No. 155409, June 8, 2007

Does the spouses under the regime of separation of property enjoy full autonomy
in the use and disposition with respect to their respective exclusive properties?

Ans. Yes. Article 145 of the FC provides that each spouse shall own,
dispose of, possess, administer and enjoy his or her own separate
estate, without need of the consent of the other spouse. Thus, to
the said spouse shall belong all earnings from his or her profession,
business or industry ann all fruits, natural, industrial or civil, due
or received during the marriage from his or her separate property.

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 ARTICLE 145. Each spouse shall own, dispose of, possess,
administer and enjoy his or her own separate estate, without
need of the consent of the other. To each spouse shall belong all
earnings from his or her profession, business or industry and all
fruits, natural, industrial or civil, due or received during the
marriage from his or her separate property. (214a)

Under the regime of separation of property of the spouses, how are they to tackle
the matter of family expenses?

Ans. Both spouses shall bear the family expenses in proportion to their
income, or, incase of insufficiency or default thereof, to the current
market value of their separate properties. However, as to liability to
creditors for the family expense, the spouses are solidarily liable.

ARTICLE 146. Both spouses shall bear the family expenses in

proportion to their income, or, in case of insufficiency or default
thereof, to the current market value of their separate properties.
The liability of the spouses to creditors for family expenses shall,
however, be solidary. (215a)

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 TITLE V
The Family
CHAPTER 1
The Family as an Institution

ARTICLE 149. The family, being the foundation of the nation, is a basic social
institution which public policy cherishes and protects. Consequently, family
relations are governed by law and no custom, practice or agreement destructive
of the family shall be recognized or given effect. (216a, 218a)

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ARTICLE 150. Family 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 the full or half-blood. (217a)

ARTICLE 151. No suit between members of the same family shall prosper unless
it should appear from the verified complaint or petition that earnest efforts
toward a compromise have been made, but that the same have failed. If it is
shown that no such efforts were in fact made, the case must be dismissed.
This rule shall not apply to cases which may not be the subject of compromise
under the Civil Code. (222a)

When a stranger becomes a party to the suit, the law no longer requires earnest
efforts towards a compromise.
[O]nce a stranger becomes a party to a suit involving members of the same family,
the law no longer makes it a condition precedent that earnest efforts be made
towards a compromise before the action can prosper. --- Hiyas Savings and Loan
Bank, Inc. vs. Edmundo T. cuña, et al., G.R. No. 154132, August 31, 2006

Conditions precedent may be generally averred in the pleadings.

The attempt to compromise as well as its failure or inability to succeed is a
condition precedent to the filing of a suit between members of the same family.
Rule 8, Section 3 of the 1997 Rules of Civil Procedure provides that conditions
precedent may be generally averred in the pleadings. While it is true that the lead
sentence which reads "Earnest efforts towards have been made but the same
have failed" may be incomplete or even grammatically incorrect as there might
be a missing word or phrase, a lacking word like "compromise" could be supplied
by the rest of the paragraph. --- Sps. Manuel and Rosemarie Wee vs. Rosario D.
Galvez, G.R. No. 147394, August 11, 2004

A barangay certification complies with the condition precedent established in Art.

151.
Although the petition for habeas corpus failed to allege that compromise
proceedings were resorted to, the attachment of a Barangay Certification
effectively established that the parties tried to compromise but were unsuccessful
248 | P a g e
in their efforts. Evidently, the condition precedent under Article 151 of the Family
Code has been complied with. A dismissal under Section 1(j) of Rule 16 is warranted
only if there is a failure to comply with a condition precedent. Given that the alleged
defect is a mere failure to allege compliance with a condition precedent, the proper
solution is not an outright dismissal of the action, but an amendment under Section
1 of Rule 10 of the 1997 Rules of Civil Procedure. --- Edwin N. Tribiana vs. Lourdes
M. Tribiana, G.R. No. 137359, September 13, 2004

Trial court should order amendment of complaint if there is failure to comply with
condition precedent.
Failure of a party to comply with a condition precedent is not a jurisdictional defect.
Such defect does not place the controversy beyond the court’s power to resolve. If
a party fails to raise such defect in a motion to dismiss, such defect is deemed
waived. Such defect is curable by amendment as a matter of right without leave of
court, if made before the filing of a responsive pleading. A motion to dismiss is not
a responsive pleading. More importantly, an amendment alleging compliance with
a condition precedent is not a jurisdictional matter. Neither does it alter the cause
of action of a petition for habeas corpus. We have held that in cases where the
defect consists of the failure to state compliance with a condition precedent, the
trial court should order the amendment of the complaint. Courts should be liberal
in allowing amendments to pleadings to avoid multiplicity of suits and to present
the real controversies between the parties. --- Edwin N. Tribiana vs. Lourdes M.
Tribiana, G.R. No. 137359, September 13, 2004

Barangay conciliation is not required where there is deprivation of liberty.

The barangay conciliation requirement in Section 412 of the Local Government
Code does not apply to habeas corpus proceedings where a person is "deprived of
personal liberty." In such a case, Section 412 expressly authorizes the parties "to go
directly to court" without need of any conciliation proceedings. There is deprivation
of personal liberty warranting a petition for habeas corpus where the "rightful
custody of any person is withheld from the person entitled thereto." --- Edwin N.
Tribiana vs. Lourdes M. Tribiana, G.R. No. 137359, September 13, 2004

[A] failure to allege earnest but failed efforts at a compromise in a complaint among
members of the same family, is not a jurisdictional defect but merely a defect in
the statement of a cause of action. --- Heirs of Favis, Sr. v. Gonzales, G.R. No.
185922, January 15, 2014
Indeed, even if we go by the reason behind Article 151 of the Family Code, which
provision as then Article 222 of the New Civil Code was described as "having been

249 | P a g e
given more teeth" by Section 1 (j), Rule 16 of the Rule of Court --- That a condition
precedent for filing the claim has not been complied with, it is safe to say that the
purpose of making sure that there is no longer any possibility of a compromise,
has been served. As cited in commentaries on Article 151 of the Family Code —
This rule is introduced because it is difficult to imagine a sudden and more tragic
spectacle than a litigation between members of the same family. It is necessary
that every effort should be made towards a compromise before a litigation is
allowed to breed hate and passion in the family. It is known that a lawsuit
between close relatives generates deeper bitterness than between strangers. ---
Heirs of Favis, Sr. v. Gonzales, G.R. No. 185922, January 15, 2014

Problem:

Is the suit between and brother and a sister-in-law considered a suit between
members of a family?
Ans.
No it is not because to be considered as a suit between members of the family it
should be between husband and wife, between parents and children, among
ascendants and descendants and among brothers and sisters whether full or half
blook.

CHAPTER 2
The Family Home

ARTICLE 152. The family home, constituted jointly by the husband and the wife
or by an unmarried head of a family, is the dwelling house where they and their
family reside, and the land on which it is situated. (223a)

Provisions on "family home" remain effective regardless of couple's property

regime.
The provisions of the Family Code on the "family home," i.e., the provisions found
in Title V, Chapter 2, of the Family Code, remain in force and effect regardless of

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the property regime of the spouses. --- Antonio A.S. Valdes vs. RTC, Br. 102, Quezon
City, G.R. No. 122749, July 31, 1996

There is no more need to constitute a family home judicially or extrajudicially.

Under the Family Code, a family home is deemed constituted on a house and lot
from the time it is occupied as a family residence. There is no need to constitute
the same judicially or extrajudicially as required in the Civil Code. In the present
case, the residential house and lot of petitioner was not constituted as a family
home whether judicially or extrajudicially under the Civil Code. It became a family
home by operation of law only under Article 153 of the Family Code. It is deemed
constituted as a family home upon the effectivity of the Family Code on August 3,
1988 not August 4, one year after its publication in the Manila Chronicle on August
4, 1987 (1988 being a leap year) --- Jose Modequillo vs. Hon. Augusto V. Breva, G.R.
No. 86355, May 31, 1990

Two sets of rules are applicable for family homes to be exempted from execution.
For the family home to be exempt from execution, distinction must be made as to
what law applies based on when it was constituted and what requirements must
be complied with by the judgment debtor or his successors claiming such privilege.
Hence, two sets of rules are applicable.
If the family home was constructed before the effectivity of the Family Code or
before August 3, 1988, then it must have been constituted either judicially or
extra-judicially as provided under Articles 225, 229-231 and 233 of the Civil Code.
Judicial constitution of the family home requires the filing of a verified petition
before the courts and the registration of the court's order with the Registry of
Deeds of the area where the property is located. Meanwhile, extrajudicial
constitution is governed by Articles 240 to 242 of the Civil Code and involves the
execution of a public instrument which must also be registered with the Registry of
Property. Failure to comply with either one of these two modes of constitution will
bar a judgment debtor from availing of the privilege.
For family homes constructed after the effectivity of the Family Code on August 3,
1988, there is no need to constitute extrajudicially or judicially, and the
exemption is effective from the time it was constituted and lasts as long as any
of its beneficiaries under Art. 154 actually resides therein. Moreover, the family
home should belong to the absolute community or conjugal partnership, or if
exclusively by one spouse, its constitution must have been with consent of the
other, and its value must not exceed certain amounts depending upon the area
where it is located. Further, the debts incurred for which the exemption does not

251 | P a g e
apply as provided under Art. 155 for which the family home is made answerable
must have been incurred after August 3, 1988.
And in both cases, whether under the Civil Code or the Family Code, it is not
sufficient that the person claiming exemption merely alleges that such property is
a family home. This claim for exemption must be set up and proved. --- Juanita
Trinidad Ramos, et al. vs. Danilo Pangilinan, et al., G.R. No. 185920, July 20, 2010
The . . . rules on constitution of family homes, for purposes of exemption from
execution, could be summarized as follows:
First, family residences constructed before the effectivity of the Family Code or
before August 3, 1988 must be constituted as a family home either judicially or
extrajudicially in accordance with the provisions of the Civil Code in order to be
exempt from execution;
Second, family residences constructed after the effectivity of the Family Code on
August 3, 1988 are automatically deemed to be family homes and thus exempt
from execution from the time it was constituted and lasts as long as any of its
beneficiaries actually resides therein;
Third, family residences which were not judicially or extrajudicially constituted as
a family home prior to the effectivity of the Family Code, but were existing
thereafter, are considered as family homes by operation of law and are
prospectively entitled to the benefits accorded to a family home under the Family
Code. --- Sps. Ernesto and Araceli de Mesa vs. Sps. Claudio, Jr. and Ma. Rufina Acero,
et al., G.R. No. 185064, January 16, 2012

However, Article 152 of the Family Code has no retroactive effect

A family residence cannot be considered a family home from the time it was
occupied in 1969. Article 162 of the Family Code does not mean that Articles 152
and 153 of said Code have a retroactive effect such that all existing family
residences are deemed to have been constituted as family homes at the time of
their occupation prior to the effectivity of the Family Code and are exempt from
execution for the payment of obligations incurred before the effectivity of the
Family Code. Article 162 simply means that all existing family residences at the
time of the effectivity of the Family Code, are considered family homes and are
prospectively entitled to the benefits accorded to a family home under the Family
Code. Article 162 does not state that the provisions of Chapter 2, Title V have a
retroactive effect --- Jose Modequillo vs. Hon. Augusto V. Breva, G.R. No. 86355,
May 31, 1990 & Florante F. Manacop vs. Court of Appeals and E & L Mercantile,
Inc., G.R. No. 97898. August 11, 1997 & Pablito Taneo, Jr. vs. Court of Appeals and
Abdon Gilig, G.R. No. 108532, March 9, 1999

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When family home not exempt from execution of money judgment.
A family home is not exempt from execution of money judgment where the debt
or liability which was the basis of the judgment arose or was incurred, and the
money judgment arising therefrom, preceded the effectivity of the Family Code
on August 3, 1988. This case does not fall under the exemptions from execution
provided in the Family Code. --- Jose Modequillo vs. Hon. Augusto V. Breva, G.R.
No. 86355, May 31, 1990 &vFlorante F. Manacop vs. Court of Appeals & F.F. Cruz
& Co., Inc., G.R. No. 104875, November 13, 1992

"Actual" occupancy by owner or beneficiaries excludes maids and overseers.

The law explicitly provides that occupancy of the family home either by the owner
thereof or by "any of its beneficiaries" must be actual. That which is "actual" is
something real, or actually existing, as opposed to something merely possible, or
to something which is presumptive or constructible. Actual occupancy, however,
need not be by the owner of the house specifically. Rather, the property may be
occupied by the beneficiaries" enumerated by Article 154 of the Family Code. This
enumeration may include the in-laws where the family home is constituted jointly
by the husband and wife. But the law definitely excludes maids and overseers. They
are not the beneficiaries contemplated by the Code. --- Florante F. Manacop vs.
Court of Appeals and E & L Mercantile, Inc., G.R. No. 97898. August 11, 1997 &
Perla G. Patricio vs. Marcelino G. Dario III, et al., G.R. No. 170829, November 20,
2006

ARTICLE 153. The family home is deemed constituted on a house and lot from
the time it is occupied as a family residence. From the time of its constitution and
so long as any of its beneficiaries actually resides therein, the family home
continues to be such and is exempt from execution, forced sale or attachment
except as hereinafter provided and to the extent of the value allowed by law.
(223a)

Claim for exemption from execution or forced sale must be set up and proved to
the Sheriff before public auction sale.
While it is true that the family home is constituted on a house and lot from the time
it is occupied as a family residence and is exempt from execution or forced sale
under Article 153 of the Family Code, such claim for exemption should be set up
and proved to the Sheriff before the sale of the property at public auction. Failure

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to do so would estop the party from later claiming the exemption. --- Jose E.
Honrado vs. Court of Appeals, et al., G.R. No. 166333, November 25, 2005

Indeed, the family home is a sacred symbol of family love and is the repository of
cherished memories that last during one's lifetime. It is likewise without dispute
that the family home, from the time of its constitution and so long as any of its
beneficiaries actually resides therein, is generally exempt from execution, forced
sale or attachment. The family home is a real right, which is gratuitous,
inalienable and free from attachment. It cannot be seized by creditors except in
certain special cases. However, this right can be waived or be barred by laches by
the failure to set up and prove the status of the property as a family home at the
time of the levy or a reasonable time thereafter. --- Sps. Ernesto and Araceli de
Mesa vs. Sps. Claudio, Jr. and Ma. Rufina Acero, et al., G.R. No. 185064, January 16,
2012

ARTICLE 154. The beneficiaries of a family home are:

(1) The husband and wife, or an unmarried person who is the head of a family;
and
(2) Their parents, ascendants, descendants, brothers and sisters, whether the
relationship be legitimate or illegitimate, who are living in the family home and
who depend upon the head of the family for legal support. (226a)

Three requisites must concur to be a beneficiary of the family home.

To be a beneficiary of the family home, three requisites must concur: (1) they must
be among the relationships enumerated in Art. 154 of the Family Code; (2) they
live in the family home; and (3) they are dependent for legal support upon the
head of the family. --- Perla G. Patricio vs. Marcelino G. Dario III, et al., G.R. No.
170829, November 20, 2006

ARTICLE 155. The family home shall be exempt from execution, forced sale or
attachment except:
(1) For nonpayment of taxes;
(2) For debts incurred prior to the constitution of the family home;
(3) For debts secured by mortgages on the premises before or after such
constitution; and

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(4) For debts due to laborers, mechanics, architects, builders, materialmen and
others who have rendered service or furnished material for the construction of
the building. (243a)

Family home answers for debts incurred prior to its constitution.

Under Article 155 of the Family Code, the family home shall be exempt from
execution, forced sale, or attachment except for, among other things, debts
incurred prior to the constitution of the family home. In the case at bar, the house
and lot of was not constituted as a family home, whether judicially or
extrajudicially, at the time the debts were incurred. Under prevailing jurisprudence,
it is deemed constituted as such only upon the effectivity of the Family Code on 03
August 1988, thus, the debts were incurred before the constitution of the family
home. --- Mary Josephine Gomez, et al. vs. Roel Sta. Ines, et al., G.R. No. 132537,
October 14, 2005

Rules have been laid down relative to the levy on execution over the family home.
Kelley, Jr. v. Planters Products, Inc. lays down the rules relative to the levy on
execution over the family home, viz.:
No doubt, a family home is generally exempt from execution provided it was duly
constituted as such. There must be proof that the alleged family home was
constituted jointly by the husband and wife or by an unmarried head of a family. It
must be the house where they and their family actually reside and the lot on which
it is situated. The family home must be part of the properties of the absolute
community or the conjugal partnership, or of the exclusive properties of either
spouse with the latter's consent, or on the property of the unmarried head of the
family. The actual value of the family home shall not exceed, at the time of its
constitution, the amount of P300,000 in urban areas and P200,000 in rural areas.
Under the Family Code, there is no need to constitute the family home judicially or
extrajudicially. All family homes constructed after the effectivity of the Family Code
(August 3, 1988) are constituted as such by operation of law. All existing family
residences as of August 3, 1988 are considered family homes and are prospectively
entitled to the benefits accorded to a family home under the Family Code.
The exemption is effective from the time of the constitution of the family home as
such and lasts as long as any of its beneficiaries actually resides therein. Moreover,
the debts for which the family home is made answerable must have been incurred
after August 3, 1988. Otherwise (that is, if it was incurred prior to August 3, 1988),
the alleged family home must be shown to have been constituted either judicially
or extrajudicially pursuant to the Civil Code. --- Juanita Trinidad Ramos, et al. vs.

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Danilo Pangilinan, et al., G.R. No. 185920, July 20, 2010, citing Kelley, Jr. v. Planters
Products, Inc., G.R. No. 172263, July 9, 2008
As a rule, the family home is exempt from execution, forced sale or attachment.
However, Article 155 (3) of the Family Code explicitly allows the forced sale of a
family home "for debts secured by mortgages on the premises before or after such
constitution." . . . While it is true that the family home is constituted on a house
and lot from the time it is occupied as a family residence and is exempt from
execution or forced sale under Article 153 of the Family Code, such claim for
exemption should be set up and proved to the Sheriff before the sale of the
property at public auction. Failure to do so would estop the party from later
claiming the exemption. --- Sps. Charlie and Ofelia Fortaleza vs. Sps. Raul and Rona
Lapitan, G.R. No. 178288, August 15, 2012 citing Honrado vs. Court of Appeals, 512
Phil. 657 (2005)

ARTICLE 156. The family home must be part of the properties of the absolute
community or the conjugal partnership, or of the exclusive properties of either
spouse with the latter's consent. It may also be constituted by an unmarried head
of a family on his or her own property.
Nevertheless, property that is the subject of a conditional sale on installments
where ownership is reserved by the vendor only to guarantee payment of the
purchase price may be constituted as a family home. (227a, 228a).

ARTICLE 157. The actual value of the family home shall not exceed, at the time
of its constitution, the amount of three hundred thousand pesos in urban areas,
and two hundred thousand pesos in rural areas, or such amounts as may
hereafter be fixed by law.
In any event, if the value of the currency changes after the adoption of this Code,
the value most favorable for the constitution of a family home shall be the basis
of evaluation.
For purposes of this Article, urban areas are deemed to include chartered cities
and municipalities whose annual income at least equals that legally required for
chartered cities. All others are deemed to be rural areas. (231a)

ARTICLE 158. The family home may be sold, alienated, donated, assigned or
encumbered by the owner or owners thereof with the written consent of the
person constituting the same, the latter's spouse, and a majority of the
beneficiaries of legal age. In case of conflict, the court shall decide. (235a)

256 | P a g e
ARTICLE 159. The family home shall continue despite the death of one or both
spouses or of the unmarried head of the family for a period of ten years or for as
long as there is a minor beneficiary, and the heirs cannot partition the same
unless the court finds compelling reasons therefor. This rule shall apply regardless
of whoever owns the property or constituted the family home. (238a)

Three requisites must concur before a minor becomes beneficiary of family home.
Three requisites must concur before a minor beneficiary is entitled to the benefits
of Art. 159: (1) the relationship enumerated in Art. 154 of the Family Code; (2) they
live in the family home, and (3) they are dependent for legal support upon the head
of the family. --- Perla G. Patricio vs. Marcelino G. Dario III, et al., G.R. No. 170829,
November 20, 2006

Purpose of provision
The purpose of Article 159 is to avert the disintegration of the family unit following
the death of its head. To this end, it preserves the family home as the physical
symbol of family love, security and unity by imposing the following restrictions on
its partition: first, that the heirs cannot extra-judicially partition it for a period of 10
years from the death of one or both spouses or of the unmarried head of the family,
or for a longer period, if there is still a minor beneficiary residing therein; and
second, that the heirs cannot judicially partition it during the aforesaid periods
unless the court finds compelling reasons therefor. No compelling reason has been
alleged by the parties; nor has the RTC found any compelling reason to order the
partition of the family home, either by physical segregation or assignment to any
of the heirs or through auction sale as suggested by the parties.
More importantly, Article 159 imposes the proscription against the immediate
partition of the family home regardless of its ownership. This signifies that even if
the family home has passed by succession to the co-ownership of the heirs, or has
been willed to any one of them, this fact alone cannot transform the family home
into an ordinary property, much less dispel the protection cast upon it by the law.
The rights of the individual co-owner or owner of the family home cannot subjugate
the rights granted under Article 159 to the beneficiaries of the family home. ---
Vilma G. Arriola, et al. vs. John Nabor C. Arriola, G.R. No. 177703, January 28, 2008

ARTICLE 160. When a creditor whose claims is not among those mentioned in
Article 155 obtains a judgment in his favor, and he has reasonable grounds to
believe that the family home is actually worth more than the maximum amount
fixed in Article 157, he may apply to the court which rendered the judgment for
an order directing the sale of the property under execution. The court shall so
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order if it finds that the actual value of the family home exceeds the maximum
amount allowed by law as of the time of its constitution. If the increased actual
value exceeds the maximum allowed in Article 157 and results from subsequent
voluntary improvements introduced by the person or persons constituting the
family home, by the owner or owners of the property, or by any of the
beneficiaries, the same rule and procedure shall apply.
At the execution sale, no bid below the value allowed for a family home shall be
considered. The proceeds shall be applied first to the amount mentioned in
Article 157, and then to the liabilities under the judgment and the costs. The
excess, if any, shall be delivered to the judgment debtor. (247a, 248a)

ARTICLE 161. For purposes of availing of the benefits of a family home as

provided for in this Chapter, a person may constitute, or be the beneficiary of,
only one family home. (n)
ARTICLE 162. The provisions in this Chapter shall also govern existing family
residences insofar as said provisions are applicable. (n)

TITLE VI
Paternity and Filiation
CHAPTER 1
Legitimate Children

ARTICLE 163. The filiation of children may be by nature or by adoption.

Natural filiation may be legitimate or illegitimate. (n)

ARTICLE 164. 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. (255a, 258a)

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259 | P a g e
260 | P a g e
Presumption of legitimacy may be refuted only by evidence of physical
impossibility of access between husband and wife during conception.
The presumption that the child is the legitimate son of the couple becomes
conclusive in the absence of proof that there was physical impossibility of access
between the spouses in the first 120 days of the 300 which preceded the birth of

261 | P a g e
the child. This presumption is actually quasi-conclusive and may be rebutted or
refuted by only one evidence — the physical impossibility of access between
husband and wife within the first 120 days of the 300 which preceded the birth of
the child. This presumption of legitimacy is based on the assumption that there is
sexual union in marriage, particularly during the period of conception. Hence, proof
of the physical impossibility of such sexual union prevents the application of the
presumption. ---- Antonio Macadangdang vs. Court of Appeals and Elizabeth
Mejias, G.R. No. L-49542, September 12, 1980

Children born in wedlock are presumed legitimate.

There is perhaps no presumption of the law more firmly established and founded
on sounder morality and more convincing reason than the presumption that
children born in wedlock are legitimate. This presumption indeed becomes
conclusive in the absence of proof that there is physical impossibility of access
between the spouses during the first 120 days of the 300 days which immediately
precedes the birth of the child due to (a) the physical incapacity of the husband to
have sexual intercourse with his wife; (b) the fact that the husband and wife are
living separately in such way that sexual intercourse is not possible; or (c) serious
illness of the husband, which absolutely prevents sexual intercourse. Quite
remarkably, upon the expiration of the periods set forth in Article 170, and in
proper cases Article 171, of the Family Code (which took effect on 03 August
1988), the action to impugn the legitimacy of the child would no longer be legally
feasible and the status conferred by the presumption becomes fixed and
unassailable. --- Jinkie Christie A. De Jesus, et al. vs. Estate of Decedent Juan
Gamboa Dizon, G.R. No. 142877, October 2, 2001

A legitimate child implies a valid marriage.

The term legitimate merely addresses the dependent child's status in relation to
his/her parents. In Angeles v. Maglaya, (G.R. No. 153798, 2 September 2005) we
have expounded on who is a legitimate child, viz.:

A legitimate child is a product of, and, therefore, implies a valid and lawful
marriage. Remove the element of lawful union and there is strictly no legitimate
filiation between parents and child. Article 164 of the Family Code cannot be more
emphatic on the matter: "Children conceived or born during the marriage of the
parents are legitimate". --- Continental Steel Mfg. Corp. vs. Allan S. Montaño, et al.,
G.R. No. 182836, October 13, 2009

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Benitez-Badua vs. CA (229 SCRA 468)

Re: Articles 164, 166, 170 and 171, FC – The aforementioned articles are not
applicable where the spouses in a Certificate of Live Birth claimed that petitioner
was their daughter, but the totality of the contrary evidence presented by private
respondents sufficiently rebutted the truth of the contents of the Certificate of Live
Birth.Thus, in a Special Proceeding for Settlement of Estate of the alleged father of
petitioner, the issue of whether the petitioner was the child of the deceased was
still resolved and not considered to have prescribed.

Articles 170 and 171 on prescription to impugn legitimacy of child were held
not to be applicable. In Cabatbat-Lim vs. IAC (166 SCRA 451): “Petitioners’
recourse to Article 263 of the Civil Code (now Article 170, FC, on prescription of
action to impugn legitimacy of child) is not well taken. This legal provision refers to
an action to impugn legitimacy. This is not an action to impugn legitimacy of a child
but an action of private respondents to claim their inheritance as legal heirs of their
childless deceased aunt. They do not claim that petitioner is an illegitimate child of
the deceased, but that she is not the decedent’s child at all. Being neither a legally
adopted child, nor an acknowledged natural child, petitioner is not a legal heir of
deceased.”

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ARTICLE 166. Legitimacy of a child may be impugned only on the following
grounds:
(1) That it was physically impossible for the husband to have sexual
intercourse with his wife within the first 120 days of the 300 days which
immediately preceded the birth of the child because of:
(a) the physical incapacity of the husband to have sexual intercourse with
his wife;
(b) the fact that the husband and wife were living separately in such a way
that sexual intercourse was not possible; or
(c) serious illness of the husband, which absolutely prevented sexual
intercourse;
(2) That it is proved that for biological or other scientific reasons, the child
could not have been that of the husband, except in the instance provided
in the second paragraph of Article 164; or
(3) That in case of children conceived through artificial insemination, the
written authorization or ratification of either parent was obtained
through mistake, fraud, violence, intimidation, or undue influence.
(255a)

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Sexual intercourse is presumed where personal access is not disproved.
The modern rule is that, in order to overthrow the presumption of legitimacy, it
must be shown beyond reasonable doubt that there was no access as could have
enabled the husband to be the father of the child. Sexual intercourse is to be
presumed where personal access is not disproved, unless such presumption is
rebutted by evidence to the contrary; where sexual intercourse is presumed or
proved, the husband must be taken be the father of the child. --- Antonio
Macadangdang vs. Court of Appeals and Elizabeth Mejias, G.R. No. L-49542,
September 12, 1980

There must be physical impossibility of access by the husband to the wife to defeat
the presumption of legitimacy.
To defeat the presumption of legitimacy, therefore, there must be physical
impossibility of access by the husband to the wife during the period of conception.
The law expressly refers to physical impossibility. Hence, a circumstance which
makes sexual relations improbable, cannot defeat the presumption of legitimacy;
but it may be proved as a circumstance to corroborate proof of physical

265 | P a g e
impossibility of access. --- Antonio Macadangdang vs. Court of Appeals and
Elizabeth Mejias, G.R. No. L-49542, September 12, 1980

Impotency is not synonymous with sterility

Impotency being an abnormal condition should not be presumed. The fact that the
deceased was able to produce a specimen of his semen by means of a rubber sac,
commonly called "condom" and a woman, shows conclusively that he was potent.
Impotency is not synonymous with sterility. Impotency is the physical inability to
have sexual intercourse; it is different from sterility. However, even considering
the evidence as to sterility, according to medical jurisprudence, a man may not
have spermatozoa at a certain time, but may have had it previously or may have
it subsequently to the examination. --- Probate of the will of the late Faustino Neri
San Jose, G.R. No. L-1967, May 28, 1951

Advanced tuberculosis does not prevent carnal intercourse.

Although the husband was already suffering from tuberculosis and his condition
then was so serious that he could hardly move and get up from his bed, his feet
were swollen and his voice hoarse, yet that is no evidence of impotency, nor does
it prevent carnal intercourse. There are cases where persons suffering from this
sickness can do the carnal act even in the most crucial stage because they are more
inclined to sexual intercourse. As an author has said, "the reputation of the
tuberculous towards eroticism (sexual propensity) is probably dependent more
upon confinement to bed than the consequences of the disease." --- Mariano Andal
vs. Eduvigis Macaraig, G.R. No. L-2474, May 30, 1951

Person who never became the husband of the child's mother never acquired any
right to impugn the child's legitimacy.
Impugning the legitimacy of a child is a strictly personal right of the husband or, in
exceptional cases, his heirs. Since the marriage of petitioner and private
respondent was void from the very beginning, he never became her husband and
thus never acquired any right to impugn the legitimacy of her child. -- Gerardo B.
Concepcion vs. Court of Appeals, et al., G.R. No. 123450, August 31, 2005

Presumption of legitimacy may be overthrown by proof that there was no access

that could have enabled the husband to father the child.
The presumption of legitimacy proceeds from the sexual union in marriage,
particularly during the period of conception. To overthrow this presumption on the

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basis of Article 166 (1)(b) of the Family Code, it must be shown beyond reasonable
doubt that there was no access that could have enabled the husband to father the
child. Sexual intercourse is to be presumed where personal access is not disproved,
unless such presumption is rebutted by evidence to the contrary. The presumption
is quasi-conclusive and may be refuted only by the evidence of physical
impossibility of coitus between husband and wife within the first 120 days of the
300 days which immediately preceded the birth of the child. To rebut the
presumption, the separation between the spouses must be such as to make
marital intimacy impossible. This may take place, for instance, when they reside
in different countries or provinces and they were never together during the period
of conception. Or, the husband was in prison during the period of conception,
unless it appears that sexual union took place through the violation of prison
regulations. ---- Gerardo B. Concepcion vs. Court of Appeals, et al., G.R. No.
123450, August 31, 2005

Presumption of legitimacy is grounded on the policy to protect the innocent

offspring from the odium of illegitimacy.
The presumption of legitimacy does not only flow out of a declaration in the statute
but is based on the broad principles of natural justice and the supposed virtue of
the mother. It is grounded on the policy to protect the innocent offspring from the
odium of illegitimacy. --- Camelo Cabatania vs. Court of Appeals, et al., G.R. No.
124814, October 21, 2004

In Herrera v. Alba, (499 Phil. 185, 191 (2005)) we stressed that there are four
significant procedural aspects of a traditional paternity action that parties have to
face: a prima facie case, affirmative defenses, presumption of legitimacy, and
physical resemblance between the putative father and the child. We explained
that a prima facie case exists if a woman declares — supported by corroborative
proof — that she had sexual relations with the putative father; at this point, the
burden of evidence shifts to the putative father. We explained further that the two
affirmative defenses available to the putative father are: (1) incapability of sexual
relations with the mother due to either physical absence or impotency, or (2) that
the mother had sexual relations with other men at the time of conception. ---
Charles Gotardo vs. Divina Buling, G.R. No. 165166, August 15, 2012

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ARTICLE 167. The child shall be considered legitimate although the mother may
have declared against its legitimacy or may have been sentenced as an
adulteress. (256a)

Reasons for presumption of legitimacy of child despite mother's declaration

against legitimacy.
The law which provides that the child is presumed legitimate although the mother
may have declared against its legitimacy or may have been sentenced as an
adulteress has been adopted for two solid reasons. First, in a fit of anger or to
arouse jealousy in the husband, the wife may have made this declaration. Second,
the article is established as a guaranty in favor of the children whose condition
should not be under the mercy of the passions of their parents. The husband
whose honor if offended, that is, being aware of his wife's adultery, may obtain
from the guilty spouse by means of coercion, a confession against the legitimacy of
the child which may really be only a confession of her guilt. Or the wife, out of
vengeance and spite, may declare the child as not her husband's although the
statement be false. But there is another reason which is more powerful, demanding
the exclusion of proof of confession or adultery, and it is, that at the moment of
conception, it cannot be determined when a woman cohabits during the same
period with two men, by whom the child was begotten, it being possible that it be
the husband himself. --- Antonio Macadangdang vs. Court of Appeals and Elizabeth
Mejias, G.R. No. L-49542, September 12, 1980

It is stressed that Felicidad's declaration against the legitimate status of Teofilo II is

the very act that is proscribed by Article 167 of the Family Code. The language of
the law is unmistakable. An assertion by the mother against the legitimacy of her
child cannot affect the legitimacy of a child born or conceived within a valid
marriage. ---- Juan De Dios Carlos vs. Felicidad Sandoval, et al., G.R. No. 179922,
December 16, 2008
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Concepcion vs. CA (468 SCRA 438)

Re: Article 167, FC – Marriage between petitioner and private respondent

was declared void for being bigamous, respondent having been previously married
to another man who is still living. The child, Jose Gerardo, born during the second
marriage was declared the legitimate child of private respondent and her first
legitimate husband, notwithstanding express acknowledgment of petitioner and
private respondent, the second husband, that Jose Gerardo is their son. This
declaration of private respondent is proscribed by Article 167, FC which provides
that the child shall be considered legitimate although the mother may have
declared against its legitimacy. For reasons of public decency and morality, a
married woman cannot say that she had no intercourse with her husband and that
her offspring is illegitimate.

ARTICLE 168. If the marriage is terminated and the mother contracted another
marriage within three hundred days after such termination of the former
marriage, these rules shall govern in the absence of proof to the contrary:
(1) A child born before one hundred eighty days after the solemnization of the
subsequent marriage is considered to have been conceived during the former
marriage, provided it be born within three hundred days after the termination of
the former marriage;
(2) A child born after one hundred eighty days following the celebration of the
subsequent marriage is considered to have been conceived during such marriage,
even though it be born within the three hundred days after the termination of
the former marriage. (259a)

ARTICLE 169. The legitimacy or illegitimacy of a child born after three hundred
days following the termination of the marriage shall be proved by whoever
alleges such legitimacy or illegitimacy. (261a)

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ARTICLE 170. The action to impugn the legitimacy of the child shall be brought
within one year from the knowledge of the birth or its recording in the civil
register, if the husband or, in a proper case, any of his heirs, should reside in the
city or municipality where the birth took place or was recorded.
If the husband or, in his default, all of his heirs do not reside at the place of birth
as defined in the first paragraph or where it was recorded, the period shall be two
years if they should reside in the Philippines; and three years if abroad. If the birth
of the child has been concealed from or was unknown to the husband or his heirs,
the period shall be counted from the discovery or knowledge of the birth of the
child or of the fact of registration of said birth, whichever is earlier. (263a)

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De Jesus vs. Estate of Decedent Juan Gamboa Dizon (366 SCRA 499)

Re: Articles 170 and 171, FC – Petitioners who having been born in lawful
wedlock of their parents, cannot, in a complaint for “Partition with Inventory and
Accounting”, demand, a share of the estate of another man not the husband of
their mother, as the illegitimate children of that other man, although there was a
notarized document of the deceased which acknowledged the petitioners as his
illegitimate children. Petitioners must first impugn their legitimate status of
their father before they can claim to be illegitimate children of another man.
Moreover, upon the expiration of the periods set forth in Article 170 (within one
year after knowledge of birth of child or its recording in the civil registry) and in
proper cases Article 171, FC, the action to impugn the legitimacy of the child would
no longer be feasible and the status conferred by the presumption becomes fixed
and unassailable.

ARTICLE 171. The heirs of the husband may impugn the filiation of the child
within the period prescribed in the preceding article only in the following cases:
(1) If the husband should die before the expiration of the period fixed for
bringing his action;
(2) If he should die after the filing of the complaint, without having desisted
therefrom; or
(3) If the child was born after the death of the husband. (262a)

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Art. 171 applies where a husband denies as his own, a child of his wife.
Articles 164, 166, 170 and 171 of the Family Code govern a situation where a
husband (or his heirs) denies as his own, a child of his wife. It is inapplicable to a
case which is not an action to impugn the legitimacy of a child, but an action to
claim inheritance as legal heirs of private respondents’ childless deceased aunt. ---
Marissa Benitez-Badua vs. Court of Appeals, G.R. No. 105625, January 24, 1994

Art. 171 applies only when the child is the undisputed offspring of the mother.
Article 171 of the Family Code applies only to instances in which the father impugns
the legitimacy of his wife's child. It, however, presupposes that the child was the
undisputed offspring of the mother. ---- Teofista Babiera vs. Presentacion B.
Catotal, G.R. No. 138493, June 15, 2000

Legitimacy of a child can be impugned only in a direct action.

It is settled that the legitimacy of the child can be impugned only in a direct action
brought for that purpose, by the proper parties and within the period limited by
law. ---- William Liyao, Jr. vs. Juanita Tanhoti-Liyao, G.R. No. 138961, March 7, 2002

There is no presumption of legitimacy in favor of children born out of husband's

cohabitation with another woman.
Once a valid marriage is established, it is deemed to continue until proof that it has
been legally ended is presented. Thus, the mere cohabitation of the husband with
another woman will not give rise to a presumption of legitimacy in favor of the
children born of the second union, until and unless there be convincing proof that
272 | P a g e
the first marriage had been lawfully terminated; and the second, lawfully entered
into. --- Voltaire Arbolario vs. Court of Appeals, G.R. No. 129163, April 22, 2003

Sexual intercourse is presumed where personal access is not disproved.

The modern rule is that, in order to overthrow the presumption of legitimacy, it
must be shown beyond reasonable doubt that there was no access as could have
enabled the husband to be the father of the child. Sexual intercourse is to be
presumed where personal access is not disproved, unless such presumption is
rebutted by evidence to the contrary; where sexual intercourse is presumed or
proved, the husband must be taken be the father of the child. --- Antonio
Macadangdang vs. Court of Appeals and Elizabeth Mejias, G.R. No. L-49542,
September 12, 1980

There must be physical impossibility of access by the husband to the wife to defeat
the presumption of legitimacy.
To defeat the presumption of legitimacy, therefore, there must be physical
impossibility of access by the husband to the wife during the period of conception.
The law expressly refers to physical impossibility. Hence, a circumstance which
makes sexual relations improbable, cannot defeat the presumption of legitimacy;
but it may be proved as a circumstance to corroborate proof of physical
impossibility of access. --- Antonio Macadangdang vs. Court of Appeals and
Elizabeth Mejias, G.R. No. L-49542, September 12, 1980

Only the husband can contest the legitimacy of a child born to his wife
Only the husband can contest the legitimacy of a child born to his wife. He is the
one directly confronted with the scandal and ridicule which the infidelity of his
wife produces; and he should decide whether to conceal that infidelity or expose
it, in view of the moral or economic interest involved. ---- Antonio Macadangdang
vs. Court of Appeals and Elizabeth Mejias, G.R. No. L-49542, September 12, 1980

The heirs of the husband may also repudiate the filiation of a child.
The right to repudiate or contest the legitimacy of a child born in wedlock belongs
only to the alleged father, who is the husband of the mother and can be exercised
only by him or his heirs, within a fixed time, and in certain cases, and only in a direct
suit brought for the purpose. --- Antonio Macadangdang vs. Court of Appeals and
Elizabeth Mejias, G.R. No. L-49542, September 12, 1980

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The husband’s heirs are allowed to contest a child’s legitimacy only in exceptional
cases.
Impugning the legitimacy of the child is a strictly personal right of the husband, or
in exceptional cases, his heirs for the simple reason that he is the one directly
confronted with the scandal and ridicule which the infidelity of his wife produces
and he should be the one to decide whether to conceal that infidelity or expose it
in view of the moral and economic interest involved. It is only in exceptional cases
that his heirs are allowed to contest such legitimacy. Outside of these cases, none
— even his heirs — can impugn legitimacy; that would amount to an insult to his
memory. --- William Liyao, Jr. vs. Juanita Tanhoti-Liyao, G.R. No. 138961, March 7,
2002

CHAPTER 2
Proof of Filiation

ARTICLE 172. The filiation of legitimate children is established by any of the

following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private
handwritten instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved
by:
(1) The open and continuous possession of the status of a legitimate child; or
(2) Any other means allowed by the Rules of Court and special laws. (265a,
266a, 267a)

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Unmistakable acts of recognition tending to prove filiation.
During his lifetime, the father acted in such a manner as to evince his intent to
recognize Ma. Theresa Alberto as his flesh and blood, first, by allowing her from
birth to use his family name; second, by giving her and her mother sums of money
by way of support and lastly, by openly introducing her to members of his family,
relatives and friends as his daughter. Supplementing such unmistakable acts of
recognition were those of his kin and gangmates manifesting open acceptance of
such relationship. Taken altogether, the claimed filiation would be hard to
disprove. --- Ma. Theresa R. Alberto vs. Court of Appeals, G.R. No. 86639, June 2,
1994

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Illegitimate filiation may be established in the same way and on the same
evidence as legitimate children.
Articles 276, 277, 278, 279 and 280 of the Civil Code of the Philippines were
repealed by the Family Code, which now allows the establishment of illegitimate
filiation in the same way and on the same evidence as legitimate children (Art. 175).
Of interest is that Article 172 of the Family Code adopts the rule in Article 283 of
the Civil Code of the Philippines, that filiation may be proven by "any evidence or
proof that the defendant is his father." --- Bienvenido Rodriguez vs. Court of
Appeals, G.R. No. 85723, June 19, 1995

Filiation may be proved by other means allowed under the Rules of Court and
special laws.
Although a baptismal certificate is indeed not a conclusive proof of filiation, it is
one of "the other means allowed under the Rules of Court and special laws" to
show pedigree. An illegitimate child is allowed to establish his claimed filiation by
'any other means allowed by the Rules of Court and special laws,' according to the
Civil Code, or 'by evidence of proof in his favor that the defendant is her father,'
according to the Family Code. Such evidence may consist of his baptismal
certificate, a judicial admission, a family Bible in which his name has been
entered, common reputation respecting his pedigree, admission by silence, the
testimony of witnesses, and other kinds of proof admissible under Rule 130 of the
Rules of Court. ---- Arturio Trinidad vs. Court of Appeals, G.R. No. 118904, April 20,
1998

Requisites to establish “open and continuous possession of the status of an

illegitimate child.”

a) To establish "the open and continuous possession of the status of an

illegitimate child," it is necessary to comply with certain jurisprudential
requirements. "Continuous" does not mean that the concession of status shall
continue forever but only that it shall not be of an intermittent character while it
continues. The possession of such status means that the father has treated the
child as his own, directly and not through others, spontaneously and without
concealment though without publicity (since the relation is illegitimate). There
must be a showing of the permanent intention of the supposed father to consider
the child as his own, by continuous and clear manifestation of paternal affection
and care. ----Casimiro Mendoza vs. Court of Appeals and Teopista Toring Tuñacao,
G.R. No. 86302, September 24, 1991

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b) To prove open and continuous possession of the status of an illegitimate
child, there must be evidence of the manifestation of the permanent intention of
the supposed father to consider the child as his, by continuous and clear
manifestations of parental affection and care, which cannot be attributed to pure
charity. Such acts must be of such a nature that they reveal not only the conviction
of paternity, but also the apparent desire to have and treat the child as such in all
relations in society and in life, not accidentally, but continuously. This standard of
proof is founded on the principle that an order for recognition and support may
create an unwholesome atmosphere or may be an irritant in the family or lives of
the parties, so that it must be issued only if paternity or filiation is established by
clear and convincing evidence. ---- Francisco L. Jison vs. Court of Appeals, G.R. No.
124853, February 24, 1998

An illegitimate child may establish filiation through act or declaration about

pedigree.
An illegitimate child is allowed to establish his claimed filiation by "any other means
allowed by the Rules of Court and special laws," according to the Civil Code, or "by
evidence or proof in his favor that the defendant is her father," according to the
Family Code. In light of Rule 130, Section 39 of the Rules of Court, the following
requisites have to be complied with before the act or declaration regarding
pedigree may be admitted in evidence:
1. The declarant is dead or unable to testify.
2. The pedigree must be in issue.
3. The declarant must be a relative of the person whose pedigree is in issue.
4. The declaration must be made before the controversy arose.
5. The relationship between the declarant and the person whose pedigree is in
question must be shown by evidence other than such declaration. --- Casimiro
Mendoza vs. Court of Appeals and Teopista Toring Tuñacao, G.R. No. 86302,
September 24, 1991

Evidence of filiation is admissible only if presented during alleged father's

lifetime.
Private respondent can no longer be allowed at this time to introduce evidence of
his open and continuous possession of the status of an illegitimate child or prove
his alleged filiation through any of the means allowed by the Rules of Court or
special laws. The simple reason is that the alleged father is already dead and can
no longer be heard on the claim of his alleged son's illegitimate filiation. ----
Dorotea Uyguangco vs. Court of Appeals, G.R. No. 76873, October 26, 1989
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Mere cohabitation of husband with another will not give rise to presumption of
legitimacy in favor of children born of the second union.
Paternity or filiation, or the lack of it, is a relationship that must be judicially
established. It stands to reason that children born within wedlock are legitimate.
Failure to prove the fact or presumption of marriage between parents cannot give
rise to a presumption of legitimacy in favor of the children. Once a valid marriage
is established, it is deemed to continue until proof that it has been legally ended is
presented. Thus, the mere cohabitation of the husband with another woman will
not give rise to a presumption of legitimacy in favor of the children born of the
second union, until and unless there be convincing proof that the first marriage had
been lawfully terminated; and the second, lawfully entered into. ---- Voltaire
Arbolario vs. Court of Appeals, G.R. No. 129163, April 22, 2003

Agustin vs. CA (460 SCRA 315)

DNA Testing to prove parentage is allowed and compulsory DNA testing is

not a violation of the constitutional right against self-incrimination.

Jao vs. CA (152 SCRA 359)

Blood group testing can establish conclusively that the man is not the father
of the child x x but it cannot show conclusively that a man is the father of a
particular child, but at least only a possibility that he is.

Tayag vs. CA (209 SCRA 665)

An action to compel recognition and a claim to inheritance may be joined in

one complaint filed by respondent against administratrix of the deceased alleged
father of respondent.

Courts should not hesitate to rule on admissibility of DNA evidence.

a) Parentage will still be resolved using conventional methods unless we adopt
the modern and scientific ways available. Fortunately, we have now the facility and
expertise in using DNA test for identification and parentage testing. The University

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of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis
Laboratory has now the capability to conduct DNA typing using short tandem
repeat (STR) analysis. The analysis is based on the fact that the DNA of a
child/person has two (2) copies, one copy from the mother and the other from the
father. The DNA from the mother, the alleged father and the child are analyzed to
establish parentage. Of course, being a novel scientific technique, the use of DNA
test as evidence is still open to challenge. Eventually, as the appropriate case
comes, courts should not hesitate to rule on the admissibility of DNA evidence. For
it was said, that courts should apply the results of science when completely
obtained in aid of situations presented, since to reject said result is to deny
progress." --- Edgardo and Bienvenida Tijing vs. Court of Appeals and Angelita
Diamante, G.R. No. 125901, March 8, 2001
b) In case proof of filiation or paternity would be unlikely to satisfactory
establish or would be difficult to obtain, DNA testing, which examines genetic codes
obtained from body cells of the illegitimate child and any physical residue of the
long dead parent could be resorted to. A positive match would clear up filiation or
paternity. --- Maria Jeanette C. Tecson vs. COMELEC, G.R. No. 161434, March 3,
2004

Proof of filiation to determine citizenship should be independent from proof for

civil law purposes.
The proof of filiation or paternity for purposes of determining citizenship status
should be deemed independent from and not inextricably tied up with that
prescribed for civil law purposes. The Civil Code or Family Code provisions on proof
of filiation or paternity, although good law, do not have preclusive effects on
matters alien to personal and family relations. --- Maria Jeanette C. Tecson vs.
COMELEC, G.R. No. 161434, March 3, 2004

Recognition of illegitimate children has been increasingly liberalized in favor of

child's greater interest and welfare.
The growing trend to liberalize the acknowledgment or recognition of illegitimate
children is an attempt to break away from the traditional idea of keeping well apart
legitimate and non-legitimate relationships within the family in favor of the greater
interest and welfare of the child. The provisions are intended to merely govern the
private and personal affairs of the family. There is little, if any, to indicate that the
legitimate or illegitimate civil status of the individual would also affect his political
rights or, in general, his relationship to the State. While, indeed, provisions on
"citizenship" could be found in the Civil Code, such provisions must be taken in the

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context of private relations, the domain of civil law. --- Maria Jeanette C. Tecson vs.
COMELEC, G.R. No. 161434, March 3, 2004

Filiation must be settled in special proceedings, not in an action for recovery of

property.
The filiation of the paramour's children must be settled in a probate or special
proceeding instituted for the purpose, not in an action for recovery of property.
Matters relating to the rights of filiation and heirship must be ventilated in the
proper probate court in a special proceeding instituted precisely for the purpose of
determining such rights. The status of an illegitimate child who claimed to be an
heir to a decedent's estate could not be adjudicated in an ordinary civil action
which, as in this case, was for the recovery of property. --- Milagros Joaquino vs.
Lourdes Reyes, G.R. No. 154645, July 13, 2004

A child cannot choose his own filiation.

The child himself cannot choose his own filiation. If the husband, presumed to be
the father does not impugn the legitimacy of the child, then the status of the child
is fixed, and the latter cannot choose to be the child of his mother's alleged
paramour. On the other hand, if the presumption of legitimacy is overthrown, the
child cannot elect the paternity of the husband who successfully defeated the
presumption. --- William Liyao, Jr. vs. Juanita Tanhoti-Liyao, G.R. No. 138961, March
7, 2002

Legitimate filiation of a child cannot depend on the declaration of the attending

physician, midwife or mother.
The legitimate filiation of a child is a matter fixed by law itself. It cannot be made
dependent on the declaration of the attending physician or midwife, or that of the
mother of the newborn child. For then, an unwed mother, with or without the
participation of a doctor or midwife, could veritably invest legitimate status to her
offspring through the simple expedient of writing the putative father's name in the
appropriate space in the birth certificate. --- Belen Sagad Angeles vs. Aleli "Corazon"
Angeles Maglaya, G.R. No. 153798, September 2, 2005

One can prove filiation, either legitimate or illegitimate, through the record of birth
appearing in the civil register or a final judgment, an admission of filiation in a public
document or a private handwritten instrument and signed by the parent
concerned, or the open and continuous possession of the status of a legitimate or
illegitimate child, or any other means allowed by the Rules of Court and special
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laws. We have held that such other proof of one's filiation may be a "baptismal
certificate, a judicial admission, a family bible in which [his] name has been entered,
common reputation respecting [his] pedigree, admission by silence, the
[testimonies] of witnesses, and other kinds of proof [admissible] under Rule 130 of
the Rules of Court." ---- Charles Gotardo vs. Divina Buling, G.R. No. 165166, August
15, 2012

ARTICLE 173. The action to claim legitimacy may be brought by the child during
his or her lifetime and shall be transmitted to the heirs should the child die during
minority or in a state of insanity. In these cases, the heirs shall have a period of
five years within which to institute the action.
The action already commenced by the child shall survive notwithstanding the
death of either or both of the parties. (268a)

When should a child bring a suit proving his legitimacy?

Ans. The child may brought the suit proving his legitimacy during his/her lifetime.

What happens if the child dies before the case he filed for legitimacy become final
and executory?
Ans. The suit will continue and transmitted to the child’s heirs should the child die
during minority or in a state of insanity. The suit will also continue or survive
notwithstanding the death of either or both of the parties.

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What happens if the child dies before he/she was able to institute the suit to prove
his/her legitimacy?
Ans. The heir shall have a period of five (5) years within which to institute the action
from the time of death of the child or from the time of insansity.

ARTICLE 174. Legitimate children shall have the right:

(1) To bear the surnames of the father and the mother, in conformity with the
provisions of the Civil Code on Surnames;
(2) To receive support from their parents, their ascendants, and in proper
cases, their brothers and sisters, in conformity with the provisions of this Code on
Support; and
(3) To be entitled to the legitime and other successional rights granted to them
by the Civil Code. (264a)

Children conceived before decree of annulment shall use surname of father.

Our laws do not authorize a legitimate child to use the surname of a person who is
not his father. Article 364 of the Civil Code specifically provides that legitimate
children shall principally use the surname of their father, and Article 369 of the
same Code provides that in case of annulment of a voidable marriage the children
conceived before the annulment shall principally use the surname of the father,
and considering by analogy the effect of a decree of divorce, it is correctly
concluded that the children who are conceived before such a decree should also
be understood as carrying the surname of the real father. ----Elaine A. Moore vs.
Republic of the Phils., G.R. No. L-18407, June 26, 1963

To discard father's surname is to create the impression that the children are
illegitimate.
To allow minor children, who are presumably legitimate, at their mother's behest,
to bear only their mother's surname (which they are entitled to use together with
their father's surname) and to discard altogether their father's surname, thus
removing the prima facie evidence of their paternal provenance or ancestry, is a
serious matter in which, ordinarily, the minors and their father should be
consulted. To allow the change of surname would cause confusion as to the minors'
parentage and might create the impression that the minors are illegitimate since
they would carry the maternal surname only. That would be inconsistent with their

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legitimate status as indicated in their birth records --- In re: Dionesio Divinagracia,
Jr. and Bombi Roberto Divinagracia, G.R. No. L-55538, March 15, 1982

Legitimate children may not adopt the surname of their mother's second
husband.
Our laws do not authorize legitimate children to adopt the surname of a person
who is not their father. To allow said minors to adopt the surname of their mother's
second husband, who is not their father, could result in confusion in their paternity.
It could also create the suspicion that said minors, who were born during the
coverture of their mother with her first husband, were in fact sired by her second
husband, thus bringing their legitimate status into discredit. --- In re: Dolores
Gemora Padilla vs. Republic of the Phils., G.R. No. L-28274, April 30, 1982

Child born out of lawful wedlock cannot bear surname of mother's second
husband.
If a child born out of a lawful wedlock be allowed to bear the surname of the second
husband of the mother, should the first husband die or be separated by a decree
of divorce, there may result a confusion as to his real paternity. In the long run the
change may redound to the prejudice of the child in the community. While the
purpose which may have animated petitioner, the minor's mother, is plausible and
may run along the feeling of cordiality and spiritual relationship that pervades
among the members of the family of her second husband, there is a legal barrier
which cannot at present be overlooked or brushed aside ---- Elaine A. Moore vs.
Republic of the Phils., G.R. No. L-18407, June 26, 1963

The child should be the one to apply for a change of surname.

The child should, and in the course of time must, know of his parentage. If, when
he fully appreciates the circumstances and is capable of selecting a name for
himself, he wants to use his mother's surname only and to avoid using his father's
surname, then he should be the one to apply for a change of surname --- In re:
Dionesio Divinagracia, Jr. and Bombi Roberto Divinagracia, G.R. No. L-55538, March
15, 1982

Change of surname discretionary on part of children when they reach adulthood.

The petition for change of name filed by the mother in behalf of her minor children
is premature. Indeed, the matter of change of their surname should better be left
to the judgment and discretion of the children themselves when they reach the age
of maturity. If in their adulthood they want to change their surname, then they
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themselves or any of them may take such appropriate action as the law may permit.
--- In re: Dolores Gemora Padilla vs. Republic of the Phils., G.R. No. L-28274, April
30, 1982

Article 174 (1)

Use of former husband’s name by a widow or divorcee is not obligatory.

When the marriage ties or vinculum no longer exists as in the case of death of the
husband or divorce as authorized by the Muslim Code, the widow or divorcee need
not seek judicial confirmation of the change in her civil status in order to revert to
her maiden name as the use of her former husband's name is optional and not
obligatory to her. Thus, a petition to resume the use of maiden name is a
superfluity and an unnecessary proceeding since the law requires her to do so as
her former husband is already married to another woman after obtaining a decree
of divorce from her in accordance with Muslim laws. --- Hatima C. Yasin vs. Shari’a
District Court, G.R. No. 94986, February 23, 1995

Use of former husband’s name by a divorcee is not a crime.

The use of a surname by a divorced wife for a purpose not criminal in nature is
certainly not a crime. The contention that every use of the husband’s surname
constitutes a new crime cannot be countenanced. The effect of divorce is more akin
to the death of the spouse where the deceased woman continues to be referred to
as the Mrs. of her husband even if the latter has remarried rather than to
annulment since in the latter case, it is as if there had been no marriage at all. ---
Constancia C. Tolentino vs. Court of Appeals and Consuelo David, G.R. No. L-41427,
June 10, 1988
Use of husband's surname, when not intended to mislead or deceive the public,
does not constitute material representation warranting cancellation of certificate
of candidacy.
Aside from the requirement of materiality, a false representation under Sec. 78 of
the Omnibus Election Code must be made with an intention to deceive the
electorate as to one’s qualifications for public office. The use of a surname, when
not intended to mislead or deceive the public as to one’s identity is not within the
scope of the provision. The material misrepresentation contemplated by said
provision refer to qualifications for elective office. This conclusion is strengthened
by the fact that the consequences imposed upon a candidate guilty of having made
a false representation in his certificate of candidacy are grave — to prevent the
candidate from running or, if elected, from serving, or to prosecute him for

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violation of the election laws. It could not have been the intention of the law to
deprive a person of such a basic and substantive political right to be voted for a
public office upon just any innocuous mistake. --- Victorino Salcedo II vs. Comelec,
G.R. No. 135886, August 16, 1999

Elements of usurpation of name under Art. 377 of Civil Code.

The usurpation of name under Article 377 of the Civil Code implies some injury to
the interests of the owner of the name. It consists in the possibility of confusion
of identity between the owner and the usurper, and exists when a person
designates himself by another name. The elements are as follows: (1) there is an
actual use of another’s name by the defendant; (2) the use is unauthorized; and (3)
the use of another’s name is to designate personality or identify a person. ---
Zenaida F. Dapar vs. Gloria Lozano Biascan, G.R. No. 141880, September 27, 2004
& Constancia C. Tolentino vs. Court of Appeals and Consuelo David, G.R. No. L-
41427, June 10, 1988

Woman cannot use the surname of a man to whom she has never been married.
It is not proper for a woman to continue representing herself as the wife of a man
in view of the non-existence of the former’s marriage with him and the latter’s
actual marriage to another. Article 370 of the Civil Code of the Philippines
authorizes a married woman to use the surname of her husband; impliedly, it also
excludes others from doing likewise. --- Elenita Ledesma Silva vs. Esther Peralta,
G.R. No. L-13114, November 25, 1960

Husband, not wife, should initiate change in spelling of his surname.

A married woman may use her husband's surname under Art. 370 of the Civil Code.
It is axiomatic that if she desires judicial authorization to change the spelling of his
surname, her husband should initiate the proceeding. --- In re: Milagros Llerena
Telmo vs. Republic of the Philippines, G.R. No. L-28549, September 23, 1976

Wife shall continue using her husband's surname even after decree of legal
separation.
The language of Article 372 of the New Civil Code is mandatory that the wife, even
after the legal separation has been decreed, shall continue using her name and

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surname employed before the legal separation. This is so because her married
status is unaffected by the separation, there being no severance of the vinculum.
It seems to be the policy of the law that the wife should continue to use the name
indicative of her unchanged status for the benefit of all concerned. --- Elisea
Laperal vs. Republic of the Philippines, G.R. No. L-18008, October 30, 1962

Woman who used the name of the man she is living with to claim benefits for
their son cannot be criminally liable.
It is not uncommon in Philippine society for a woman to represent herself as the
wife and use the name of the man she is living with despite the fact that the man
is married to another woman. The practice, to be sure, is not encouraged but
neither is it unduly frowned upon. A number of women can be identified who are
living with men prominent in political, business and social circles. The woman
publicly holds herself out as the man's wife and uses his family name blithely
ignoring the fact that he is not her husband. And yet none of the women has been
charged of violating the C.A. No. 142 because ours is not a bigoted but a tolerant
and understanding society. It is in the light of our cultural environment that the law
must be construed. --- Corazon Legamia y Rivera vs. IAC and People of the Phils.,
G.R. No. L-63817, August 28, 1984

Wife cannot appropriate the initials or nickname of her husband.

Bad faith or malice on the part of a candidate was evident when, in her certificate
of candidacy and campaign materials, she appropriated the initials or nickname of
her husband, the incumbent Representative of the district in question whom she
wanted to succeed in office. Article 370 of the Civil Code, which she invokes,
provides no relief. The article enumerates the names which a married woman may
use. One of them is "her husband's full name but prefixing a word indicating that
she is his wife, such as Mrs." If for expediency and convenience she would use the
initials of her husband, then her name, in initials would be "MRS. JTV." --- Ma.
Amelita C. Villarosa vs. HRET and Ricardo V. Quintos, G.R. No. 143351, September
14, 2000

CHAPTER 3
Illegitimate Children

ARTICLE 175. Illegitimate children may establish their illegitimate filiation in

the same way and on the same evidence as legitimate children.

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The action must be brought within the same period specified in Article 173,
except when the action is based on the second paragraph of Article 172, in
which case the action may be brought during the lifetime of the alleged parent.
(289a)

Judicial pronouncement is unnecessary if illegitimate child is voluntarily

recognized.
The illegitimate child having been voluntarily recognized by her father through the
record of birth, there was no need for any judicial pronouncement. There can be
no dispute then that the child enjoyed the open and continuous possession of the
status of an illegitimate child and that her action in defending her status is similar
to an "action to claim legitimacy" brought during her lifetime. --- Juan Castro vs.
Court of Appeals, G.R. Nos. L-50974-75, May 31, 1989

Change in entries in the record of birth is an audacious indirect attempt to

establish filiation.
A change in the entry from "Domingo Patawaran" to "Dominador P. Dizon", and the
alteration of the word "Unknown" after the column "Name of Father" to "Policarpio
Dizon", do not only partake of the nature of a change of name, but also principally
involve the issue of paternity and filiation. Obviously, the purpose in this proceeding
for correction of entries filed after about 65 years is an audacious indirect attempt
to establish filiation with the late putative father through the simple expedient of
changing the entries in the record of birth in the civil registry and his right to inherit.
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--- Republic of the Phils. vs. Hon. Fernando Bartolome, G.R. No. L-38109, September
6, 1985

Death of putative father bars illegitimate child from establishing filiation.

Under the Family Code, the illegitimate child is now also allowed to establish his
claimed filiation by "any other means allowed by the Rules of Court and special
laws," like his baptismal certificate, a judicial admission, a family Bible in which his
name has been entered, common reputation respecting his pedigree, admission by
silence, the testimonies of witnesses, and other kinds of proof admissible under
Rule 130 of the Rules of Court. However, claimant can no longer be allowed at this
time to introduce evidence of open and continuous possession of the status of an
illegitimate child or prove filiation through any of the means allowed by the Rules
of Court or special laws because the alleged father is already dead and can no
longer be heard on the claim of his alleged son's illegitimate filiation.
It must be added that the illegitimate child is now also allowed to establish his
claimed filiation by "any other means allowed by the Rules of Court and special
laws," like his baptismal certificate, a judicial admission, a family Bible in which his
name has been entered, common reputation respecting his pedigree, admission by
silence, the testimonies of witnesses, and other kinds of proof admissible under
Rule 130 of the Rules of Court.
The problem of the private respondent, however, is that, since he seeks to prove his
filiation under the second paragraph of Article 172 of the Family Code, his action is
now barred because of his alleged father's death in 1975. The second paragraph of
this Article 175 reads as follows:
The action must be brought within the same period specified in Article 173, except when the
action is based on the second paragraph of Article 172, in which case the action may be brought
during the lifetime of the alleged parent. (Emphasis supplied.)

It is clear that the private respondent can no longer be allowed at this time to
introduce evidence of his open and continuous possession of the status of an
illegitimate child or prove his alleged filiation through any of the means allowed by
the Rules of Court or special laws. The simple reason is that Apolinario Uyguangco
is already dead and can no longer be heard on the claim of his alleged son's
illegitimate filiation.--- Dorotea Uyguangco vs. Court of Appeals, G.R. No. 76873,
October 26, 1989

Lack or insufficiency of judicial approval is a defect available to the minor, not to

the recognizing parent.
The requirement of judicial approval imposed by Article 281 of the Civil Code is
clearly intended for the benefit of the minor. The lack of judicial approval cannot
impede the effectivity of the acknowledgment made. The judicial approval is for
the protection of the minor against any acknowledgment made to his prejudice.

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Therefore, the lack or insufficiency of such approval is NOT a defect available to the
recognizing parent but one which the minor may raise or waive. If after reaching
majority the minor consents to the acknowledgment, the lack of judicial approval
should make no difference. Implied consent to the acknowledgment may be shown
by such acts as keeping, even after reaching the age of majority, the
acknowledgment papers and the use of the parent's surname.
Recognition of natural children may be voluntary or compulsory. Voluntary
recognition, it has been said, "is an admission of the fact of paternity or maternity
by the presumed parent, expressed in the form prescribed by the Civil Code. Its
essence lies in the avowal of the parent that the child is his; the formality is added
to make the admission incontestable, in view of its consequences." The form is
prescribed by Article 278 of the Civil Code, earlier adverted to; it provides that a
voluntary recognition "shall be made in the record of birth, a will, a statement
before a court of record, or in any authentic writing." Compulsory recognition is
sometimes also called judicial recognition, to distinguish it from that which is a
purely voluntary act of the parent. It is recognition decreed by final judgment of a
competent court. It is governed by Articles 283 and 284, setting forth the cases in
which the father or mother, respectively, is obliged to recognize a natural child, and
Article 285, providing that generally, the action for recognition of natural children
may be brought only during the lifetime of the presumed parents. ---Ligaya
Gapusan-Chua vs. Court of Appeals and Prospero Parcon, G.R. No. 46746, March
15, 1990
Even if action for recognition/establishment of filiation is filed after death of
putative parent, status of illegitimate children may be confirmed.
The action for recognition (or to establish filiation) is timely filed — having been
instituted after the demise of the putative parent and before the attainment of the
age of majority of the children concerned — and the ground invoked therefor
having been satisfactorily proven. --- Jacoba T. Paterno vs. Beatriz Paterno, G.R. No.
63680, March 23, 1990
Note: That the provision of Article 175 is not retroactively applicable because it will
violated vested rights. Those cases filed before the effectivity of the family shall be
governed by the old code, which in this case is Article 285 wherein it provided the
following:
(1) If the father or mother died during the minority of the child, in which case
the latter may file the action before the expiration of four years from the
attainment of his majority;
(2) If after the death of the father or of the mother a document should appear
a document should appear of which nothing had been heard and In which
either or both parents recognize the child. In this case, the action must be
commenced within four years from the finding of the document.

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Whether an action for establishment of illegitimate filiation is filed under the Civil
Code or the Family Code, the result will be the same.
Under Article 283 (2) of the Civil Code, a father is obliged to recognize the child as
his natural child "when the child is in continuous possession of the status of a child
of the alleged father by the direct acts of the latter or that of his family." Under Art.
175 in relation to Article 172 of the Family Code, illegitimate filiation shall be proved
by "the open and continuous possession of the status of a legitimate child." Thus,
whether the case is decided under the Civil Code or the Family Code, the result will
be the same. --- Loth R. Ayco vs. Lourdes S. Fernandez, G.R. No. 84770, March 18,
1991

Whether the action may be brought during the lifetime of the child or of the
alleged parent depends on the basis of the action.
If the action is based on the record of birth of the child, a final judgment, or an
admission by the parent of the child's filiation in a public document or in a private
handwritten signed instrument, then the action may be brought during the lifetime
of the child. However, if the action is based on the open and continuous possession
by the child of the status of an illegitimate child, or on other evidence allowed by
the Rules of Court and special laws, the view has been expressed that the action
must be brought during the lifetime of the alleged parent.
Under the circumstances obtaining in the case at bar, we hold that the right of
action of the minor child has been vested by the filing of the complaint in court
under the regime of the Civil Code and prior to the effectivity of the Family Code.
We herein adopt our ruling in the recent case of Republic of the Philippines vs. Court
of Appeals, et al. where we held that the fact of filing of the petition already vested
in the petitioner her right to file it and to have the same proceed to final
adjudication in accordance with the law in force at the time, and such right can no
longer be prejudiced or impaired by the enactment of a new law.
Even assuming ex gratia argumenti that the provision of the Family Code in
question is procedural in nature, the rule that a statutory change in matters of
procedure may affect pending actions and proceedings, unless the language of the
act excludes them from its operation, is not so pervasive that it may be used to
validate or invalidate proceedings taken before it goes into effect, since procedure
must be governed by the law regulating it at the time the question of procedure
arises especially where vested rights may be prejudiced. Accordingly, Article 175 of
the Family Code finds no proper application to the instant case since it will
ineluctably affect adversely a right of private respondent and, consequentially, of
the minor child she represents, both of which have been vested with the filing of the
complaint in court. The trial court is, therefore, correct in applying the provisions of
Article 285 of the Civil Code and in holding that private respondent's cause of action

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has not yet prescribed. --- Corito Ocampo Tayag vs. Court of Appeals and Emilie
Dayrit Cuyugan, G.R. No. 95229, June 9, 1992

How “open and continuous possession of the status of an illegitimate child” is

proved.
To prove open and continuous possession of the status of an illegitimate child,
there must be evidence of the manifestation of the permanent intention of the
supposed father to consider the child as his, by continuous and clear
manifestations of parental affection and care, which cannot be attributed to pure
charity. Such acts must be of such a nature that they reveal not only the conviction
of paternity, but also the apparent desire to have and treat the child as such in all
relations in society and in life, not accidentally, but continuously. By "continuous"
is meant uninterrupted and consistent, but does not require any particular length
of time. The foregoing standard of proof required to establish one's filiation is
founded on the principle that an order for recognition and support may create an
unwholesome atmosphere or may be an irritant in the family or lives of the parties,
so that it must be issued only if paternity or filiation is established by clear and
convincing evidence. --- Francisco L. Jison vs. Court of Appeals and Monina Jison,
G.R. No. 124853. February 24, 1998

What constitutes “open and continuous possession of the status of an illegitimate

child”.
To establish "the open and continuous possession of the status of an illegitimate
child," it is necessary to comply with certain jurisprudential requirements.
"Continuous" does not mean that the concession of status shall continue forever but
only that it shall not be of an intermittent character while it continues. The
possession of such status means that the father has treated the child as his own,
directly and not through others, spontaneously and without concealment though
without publicity (since the relation is illegitimate). There must be a showing of
the permanent intention of the supposed father to consider the child as his own, by
continuous and clear manifestation of paternal affection and care. --- Casimiro
Mendoza vs. Court of Appeals and Teopista Toring Tuñacao, G.R. No. 86302,
September 24, 1991

“Authentic writing” for purposes of voluntary recognition, defined.

"Authentic writing," so as to be an authentic writing for purposes of voluntary
recognition, simply as being a genuine or indubitable writing of the father. The
term would include a public instrument (one duly acknowledged before a notary

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public or other competent official) or a private writing admitted by the father to
be his. --- Maria Jeanette C. Tecson vs. COMELEC, G.R. No. 161434, March 3, 2004

The acknowledgment or recognition of illegitimate children is increasingly

liberalized.
The growing trend to liberalize the acknowledgment or recognition of illegitimate
children is an attempt to break away from the traditional idea of keeping well apart
legitimate and non-legitimate relationships within the family in favor of the greater
interest and welfare of the child. The provisions are intended to merely govern the
private and personal affairs of the family. There is little, if any, to indicate that the
legitimate or illegitimate civil status of the individual would also affect his
political rights or, in general, his relationship to the State. While, indeed,
provisions on "citizenship" could be found in the Civil Code, such provisions must
be taken in the context or private relations, the domain of civil law --- Maria
Jeanette C. Tecson vs. COMELEC, G.R. No. 161434, March 3, 2004

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How filiation of illegitimate children is established.
The filiation of illegitimate children, like legitimate children, is established by (1)
the record of birth appearing in the civil register or a final judgment; or (2) an
admission of legitimate filiation in a public document or a private handwritten
instrument and signed by the parent concerned. In the absence thereof, filiation
shall be proved by (1) the open and continuous possession of the status of a
legitimate child; or (2) any other means allowed by the Rules of Court and special
laws. --- Jinkie Christie A. de Jesus vs. The Estate of Decedent Juan Gamboa Dizon,
G.R. No. 142877, October 2, 2001

When judicial action within the applicable statute of limitations is essential in

order to establish the child's acknowledgment.
The due recognition of an illegitimate child in a record of birth, a will, a statement
before a court of record, or in any authentic writing is, in itself, a consummated act
of acknowledgment of the child, and no further court action is required. In fact,
any authentic writing is treated not just a ground for compulsory recognition; it is

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in itself a voluntary recognition that does not require a separate action for judicial
approval. Where, instead, a claim for recognition is predicated on other evidence
merely tending to prove paternity, i.e., outside of a record of birth, a will, a
statement before a court of record or an authentic writing, judicial action within
the applicable statute of limitations is essential in order to establish the child's
acknowledgment. --- Jinkie Christie A. de Jesus vs. The Estate of Decedent Juan
Gamboa Dizon, G.R. No. 142877, October 2, 2001

Judicially approved compromise agreement by parents may constitute a

statement by which a child may be voluntarily acknowledged.
A compromise agreement entered into by parents acknowledging their five (5)
natural children and providing for their support approved by the court, constitutes
a statement before a court of record by which a child may be voluntarily
acknowledged. --- Yao Kee vs. Aida Sy-Gonzales, G.R. No. L-55960, November 24,
1988

A judicial order to compel a person to submit to DNA paternity testing does not
violate his right against self-incrimination.
The proposed DNA paternity testing does not violate his right against self-
incrimination because the right applies only to testimonial compulsion. ---Rosendo
Herrera vs. Rosendo Alba, et al., G.R. No. 148220, June 15, 2005

ARTICLE 176. Illegitimate children shall use the surname and shall be under the
parental authority of their mother, and shall be entitled to support in conformity
with this Code. However, illegitimate children may use the surname of their
father if their filiation has been expressly recognized by the father through the

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record of birth appearing in the civil register, or when an admission in a public
document or private handwritten instrument is made by the father. Provided, the
father has the right to institute an action before the regular courts to prove non-
filiation during his lifetime. The legitime of each illegitimate child shall consist of
one-half of the legitime of a legitimate child.

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Illegitimate children should bear the surname of their mother.
Thus, as illegitimate children, Emerson and Rafael should bear the surname of their
mother, Luzviminda Celestino. Resultingly, with the correction of the entries in
their birth certificates which deleted the entry in the date and place of marriage of
parents, the corresponding correction with respect to their surname should have
also been made and changed to Celestino, their mother's surname. --- Republic of
the Phils. vs. Gerson R. Abadilla, G.R. No. 133054, January 28, 1999

If alleged father did not intervene in the birth certificate, inscription of his name
therein is null and void.
It is settled that a certificate of live birth purportedly identifying the putative father
is not competent evidence as to the issue of paternity, when there is no showing
that the putative father had a hand in the preparation of said certificates, and the
Local Civil Registrar is devoid of authority to record the paternity of an illegitimate
child upon the information of a third person. Simply put, if the alleged father did
not intervene in the birth certificate, e. g., supplying the information himself, the
inscription of his name by the mother or doctor or registrar is null and void; the
mere certificate by the registrar without the signature of the father is not proof of
voluntary acknowledgment on the latter's part. --- Francisco L. Jison vs. Court of
Appeals and Monina Jison, G.R. No. 124853, February 24, 1998

Changing of surname to that of stepfather's will invite confusion as to child's

paternity.
The reason alleged by Andrew Barretto (because it is the surname of his step-
father) is not compelling enough to warrant the change of name prayed for. The
surname "Barretto" is his mother's surname. He is the illegitimate child of Lucy
Barretto. But he is not a natural child of Magin V. Velez. The circumstances of his
illegitimate filiation are not known. Magin V. Velez had children of his own before
he married the applicant's mother. Magin V. Velez and Lucy Barretto also have their
own children. To warrant the change of name sought will necessary invite
confusion as to paternity, to the prejudice of Magin V. Velez, the applicant's

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mother, as well as their common and separate offsprings. --- Republic of the Phils.
vs. Hon. Judge of Branch III of CFI-Cebu, G.R. No. L-35605, October 11, 1984

This provision [Art. 176 of the Family Code] was later amended on March 19, 2004
by RA 9255 which now reads:

Art. 176. — Illegitimate children shall use the surname and shall be under the
parental authority of their mother, and shall be entitled to support in conformity
with this Code. However, illegitimate children may use the surname of their father
if their filiation has been expressly recognized by their father through the record of
birth appearing in the civil register, or when an admission in a public document or
private handwritten instrument is made by the father. Provided, the father has the
right to institute an action before the regular courts to prove non-filiation during
his lifetime. The legitime of each illegitimate child shall consist of one-half of the
legitime of a legitimate child.
[T]he general rule is that an illegitimate child shall use the surname of his or her
mother. The exception provided by RA 9255 is, in case his or her filiation is expressly
recognized by the father through the record of birth appearing in the civil register
or when an admission in a public document or private handwritten instrument is
made by the father. In such a situation, the illegitimate child may use the surname
of the father.

Recognizing father of illegitimate children cannot demand that his surname be

used as surname of his illegitimate children for the choice of surname is given to
the illegitimate children.
Parental authority over minor children is lodged by Art. 176 on the mother; hence,
respondent's prayer has no legal mooring. Since parental authority is given to the
mother, then custody over the minor children also goes to the mother, unless she
is shown to be unfit.
The sole issue at hand is the right of a father to compel the use of his surname by
his illegitimate children upon his recognition of their filiation. Central to the core
issue is the application of Art. 176 of the Family Code, originally phrased as follows:
Illegitimate children shall use the surname and shall be under the
parental authority of their mother, and shall be entitled to support
in conformity with this Code. The legitime of each illegitimate child
shall consist of one-half of the legitime of a legitimate child. Except

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 for this modification, all other provisions in the Civil Code governing
successional rights shall remain in force.
This provision was later amended on March 19, 2004 by RA 9255 which now
reads:
Art. 176. — Illegitimate children shall use the surname and shall be
under the parental authority of their mother, and shall be entitled
to support in conformity with this Code. However, illegitimate
children may use the surname of their father if their filiation has
been expressly recognized by their father through the record of
birth appearing in the civil register, or when an admission in a
public document or private handwritten instrument is made by the
father. Provided, the father has the right to institute an action
before the regular courts to prove non-filiation during his lifetime.
The legitime of each illegitimate child shall consist of one-half of
the legitime of a legitimate child. (Emphasis supplied.)

From the foregoing provisions, it is clear that the general rule is that an illegitimate
child shall use the surname of his or her mother. The exception provided by RA
9255 is, in case his or her filiation is expressly recognized by the father through the
record of birth appearing in the civil register or when an admission in a public
document or private handwritten instrument is made by the father. In such a
situation, the illegitimate child may use the surname of the father.
In the case at bar, respondent filed a petition for judicial approval of recognition of
the filiation of the two children with the prayer for the correction or change of the
surname of the minors from Grande to Antonio when a public document
acknowledged before a notary public under Sec. 19, Rule 132 of the Rules of Court
is enough to establish the paternity of his children. But he wanted more: a judicial
conferment of parental authority, parental custody, and an official declaration of
his children's surname as Antonio. HTAEIS
Parental authority over minor children is lodged by Art. 176 on the mother; hence,
respondent's prayer has no legal mooring. Since parental authority is given to the
mother, then custody over the minor children also goes to the mother, unless she
is shown to be unfit.
Now comes the matter of the change of surname of the illegitimate children. Is
there a legal basis for the court a quo to order the change of the surname to that
of respondent?
Clearly, there is none. Otherwise, the order or ruling will contravene the explicit
and unequivocal provision of Art. 176 of the Family Code, as amended by RA 9255.
Art. 176 gives illegitimate children the right to decide if they want to use the
surname of their father or not. It is not the father (herein respondent) or the
mother (herein petitioner) who is granted by law the right to dictate the surname
of their illegitimate children.

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Nothing is more settled than that when the law is clear and free from ambiguity, it
must be taken to mean what it says and it must be given its literal meaning free
from any interpretation. Respondent's position that the court can order the minors
to use his surname, therefore, has no legal basis. --- Grande v. Antonio, G.R. No.
206248, February 18, 2014

CHAPTER 4
Legitimated Children

ARTICLE 177. Children conceived and born outside of wedlock of parents who, at
the time of the conception of the former, were not disqualified by any
impediment to marry each other, or were so disqualified only because either or
both of them were below eighteen (18) years of age, may be legitimated.

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Legitimation does not include children born of adulterous relations.
Legitimation is limited to natural children and cannot include those born of
adulterous relations. --- Ma. Blyth B. Abadilla vs. Jose C. Tabiliran, Jr., Adm. Matter
No. MTJ-92-716, October 25, 1995

Legitimation is a privilege available only to natural children.

Legitimation is not a "right" which is demandable by a child. It is a privilege,
available only to natural children proper, as defined under Art. 269. Although
natural children by legal fiction have the same rights as acknowledged natural
children, it is a quantum leap in the syllogism to conclude that, therefore, they
likewise have the right to be legitimated, which is not necessarily so, especially,
as in this case, when the legally existing marriage between the children's father
and his estranged first wife effectively barred a "subsequent marriage" between
their parents. --- Maria Rosario de Santos vs. Adoracion G. Angeles, G.R. No.
105619, December 12, 1995

To effect legitimation, the parents should be married to each other.

The parents should be married to each other in order to effect the legitimation of
their acknowledged natural children. And once legitimated, the child becomes

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legitimate child. Since the parents marry each other, the acknowledgment of the
natural children need no judicial approval. --- Alfonso Colorado vs. Court of
Appeals, G.R. No. L-39948, February 28, 1985

Legitimated child enjoys all rights and privileges associated with legitimacy.
The status of a marriage determines in large part the filiation of its resultant issue.
Thus, a child born within a valid marriage is legitimate, while one born outside of
wedlock is illegitimate. If, however, the latter's parents were, at the time of the
child's conception, not legally barred from marrying each other and subsequently
do so, the child's filiation improves as he becomes legitimized and the "legitimated"
child eventually enjoys all the privileges and rights associated with legitimacy. ---
Maria Rosario de Santos vs. Hon. Adoracion G. Angeles, G.R. No. 105619, December
12, 1995

ARTICLE 178. Legitimation shall take place by a subsequent valid marriage

between parents. The annulment of a voidable marriage shall not affect the
legitimation. (270a)

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Problem:
A had a relationship with B who were still minor at that time. During the said
relationship they begot a child C. After reaching the age of majority, A and B got
married. However, after living together for five years, A discovered that B is a
practicing homosexual, a circumstance that B hid to A and only discovered after the
marriage. The petition was granted.
Question:
What is the status of C, is the child legitimate, natural child or natural child by legal
fiction? Is the child’s status not affected by the fact that his parent’s marriage was
subsequently annulled by reason of fraud?
Ans.:
C is a legitimated child of A and B by reason of the subsequent marriage of the child.
The legitimation is made by operation of law. The subsequent annulment will not
affect the legitimation as expressly provided under Article 178.

ARTICLE 179. Legitimated children shall enjoy the same rights as legitimate
children. (272a)

ARTICLE 180. The effects of legitimation shall retroact to the time of the child's
birth. (273a)

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ARTICLE 181. The legitimation of children who died before the celebration of the
marriage shall benefit their descendants. (274)

ARTICLE 182. Legitimation may be impugned only by those who are prejudiced
in their rights, within five years from the time their cause of action accrues. (275a)

TITLE VII
Adoption

ARTICLE 183. A person of age and in possession of full civil capacity and legal
rights may adopt, provided he is in a position to support and care for his children,
legitimate or illegitimate, in keeping with the means of the family.
Only minors may be adopted, except in the cases when the adoption of a person
of majority age is allowed in this Title.
In addition, the adopter must be at least sixteen years older than the person to
be adopted, unless the adopter is the parent by nature of the adopted, or is the
spouse of the legitimate parent of the person to be adopted. (27a, EO 91 and PD
603)

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Who can be adopted?

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Adoption creates a status closely assimilated to legitimate paternity and filiation.
Adoption creates a status that is closely assimilated to legitimate paternity and
filiation with corresponding rights and duties that necessarily flow from adoption,
such as, but not necessarily confined to, the exercise of parental authority, use of
surname of the adopter by the adopted, as well as support and successional
rights. --- Republic of the Phils. vs. Court of Appeals and Sps. James Anthony and
Lenita Hughes, G.R. No. 100835, October 26, 1993

The issue of abandonment by the oppositor natural parent is a preliminary issue

that an adoption court must first confront.
The allegations of abandonment in the petition for adoption, even absent the
written consent of the father, sufficiently vested the lower court with jurisdiction
since abandonment of the child by his natural parents is one of the circumstances
under which our statutes and jurisprudence dispense with the requirement of
written consent to the adoption of their minor children. However, in cases where
the father opposes the adoption primarily because his consent thereto was not
sought, the matter of whether he had abandoned his child becomes a proper issue
for determination. The issue of abandonment by the oppositor natural parent is
a preliminary issue that an adoption court must first confront. Only upon failure
of the oppositor natural father to prove to the satisfaction of the court that he did
not abandon his child may the petition for adoption be considered on its merits. -
-- Herbert Cang vs. Court of Appeals and Sps. Ronald and Ma. Clara Clavano, G.R.
No. 105308, September 25, 1998

Adopted child has sole right to sever legal ties created by adoption.
R.A. No. 8552 (Domestic Adoption Act of 1998) affirmed the legitimate status of
the adopted child, not only in his new family but also in the society as well. The
new law withdrew the right of an adopter to rescind the adoption decree and
gave to the adopted child the sole right to sever the legal ties created by adoption.
It is still noteworthy, however, that an adopter, while barred from severing the legal
ties of adoption, can always for valid reasons cause the forfeiture of certain
benefits otherwise accruing to an undeserving child. --- Isabelita S. Lahom vs. Jose
Melvin Sibulo, G.R. No. 143989, July 14, 2003

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The interests and welfare of the child are of primary and paramount
consideration in determining whether or not to set aside a decree of adoption.
a) The welfare of a child is of paramount consideration in proceedings involving
its custody and the propriety of its adoption by another, and the courts to which
the application for adoption is made is charged with the duty of protecting the
child and its interests and, to bring those interests fully before it, it has authority
to make rules to accomplish that end. Ordinarily, the approval of the adoption
rests in the sound discretion of the court. This discretion should be exercised in
accordance with the best interests of the child, as long as the natural rights of the
parents over the child are not disregarded. --- Rep. of the Phils. vs. Court of Appeals
and Zenaida C. Bobiles, G.R. No. 92326, January 24, 1992
b) Adoption statutes, being humane and salutary, hold the interest and welfare
of the child to be of paramount consideration and are designed to provide homes,
parental care and education for unfortunate, needy or orphaned children and give
them the protection of society and family in the person of the adopter as well as
to allow childless couples or persons to experience the joys of parenthood and
give them legally a child in the person of the adopted for the manifestation of
their natural parental instincts. Every reasonable intendment should be sustained
to promote and fulfill these noble and compassionate objectives of the law. --- In
re: Frederick William Malkinson vs. Corazon Juliano Agrava, G.R. No. L-36309,
November 26, 1973
c) The philosophy behind adoption statutes is to promote the welfare of the
child. Accordingly, the modern trend is to encourage adoption and every
reasonable intendment should be sustained to promote that objective. --- Paulina
Santos vs. Gregoria Aranzanso, G.R. No. L-23828, February 28, 1966

Adoption laws should be construed so as to give all the chances for human life to
exist.
The rule of "dura lex sed lex" should be softened so as to apply the law with less
severity and with compassion and humane understanding, for adoption is more for
the benefit of unfortunate children, particularly those born out of wedlock — than
for those born with a silver spoon in their mouths. All efforts or acts designed to
provide homes, love, and care and education for unfortunate children should be
given the widest latitude of sympathy, encouragement and assistance. The law is
not, and should not be made an instrument to impede the achievement of a
salutary humane policy. As often as is legally and lawfully possible, their texts and
intendments should be construed so as to give all the chances for human life to
exist.
Sometime in May, 1967, a three-day old baby was given by a lawyer to petitioning
spouses for adoption. Later, the child was baptized, and the names of said spouses
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appeared in the baptismal records as the child's parents. The lawyer, on the other
hand, received the infant from its unwed mother who told the former to look for a
suitable couple who would adopt the child, and never reveal her (the mother's)
identify because she wanted to get married and did not want to destroy her future.
In the petition for adoption, the lawyer as the child's de facto guardian or loco
parentis gave the written consent required by law. The trial court dismissed the
petition on the ground that the consent given is improper and falls short of the
express requirement of Art. 340 of the Civil Code that the consent must be given
by the parents, guardian or person in charge in change of the to be adopted.
The Supreme Court reversed the trial court's dismissal order, holding that the
child's unidentified mother can be declared as having abandoned the child so that
there is no more legal need to require her written consent; and that the consent
given by the de facto guardian who exercised patria potestas over the abandoned
child was sufficient.
Appealed decision under review annulled, and the minor declared as the adopted
child and heir of petitioners. --- Robin Francis Radley Duncan and Maria Lucy
Christensen vs. CFI of Rizal, G.R. No. L-30576, February 10, 1976 & Slobodan
Bobanovic and Dianne Elizabeth Cunningham Bobanovic vs. Hon. Sylvia P. Montes,
G.R. No. 71370, July 7, 1986

Written consent of the natural parent is indispensable for the validity of the
decree of adoption.
Notwithstanding the amendments introduced by the Family Code to the Child and
Youth Welfare Code on adoption, the written consent of the natural parent to the
adoption has remained a requisite for its validity. --- Herbert Cang vs. Court of
Appeals and Sps. Ronald and Ma. Clara Clavano, G.R. No. 105308, September 25,
1998

However, written consent of natural parent can be dispensed with if said parent
has abandoned the child.
Nevertheless, the requirement of written consent can be dispensed with if the
parent has abandoned the child or that such parent is "insane or hopelessly
intemperate." The court may acquire jurisdiction over the case even without the
written consent of the parents or one of the parents provided that the petition for
adoption alleges facts sufficient to warrant exemption from compliance therewith.
This is in consonance with the liberality with which this Court treats the procedural
aspect of adoption. ---- Herbert Cang vs. Court of Appeals and Sps. Ronald and Ma.
Clara Clavano, G.R. No. 105308, September 25, 1998

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Deprivation of parental authority is one of the effects of an adoption decree.
Deprivation of parental authority is one of the effects of a decree of adoption. But
there cannot be a valid decree of adoption when the findings of the trial court on
the issue of the husband's abandonment of his family was based on a
misappreciation that was tantamount to non-appreciation, of facts on record. ----
Herbert Cang vs. Court of Appeals and Sps. Ronald and Ma. Clara Clavano, G.R. No.
105308, September 25, 1998

ARTICLE 184. The following persons may not adopt:

(1) The guardian with respect to the ward prior to the approval of the final
accounts rendered upon the termination of their guardianship relation;
(2) Any person who has been convicted of a crime involving moral turpitude;
(3) An alien, except;
(a) A former Filipino citizen who seeks to adopt a relative by consanguinity;
(b) One who seeks to adopt the legitimate child of his or her Filipino spouse; or
(c) One who is married to a Filipino citizen and seeks to adopt jointly with his
or her spouse a relative by consanguinity of the latter.
Aliens not included in the foregoing exceptions may adopt Filipino children in
accordance with the rules on inter-country adoption as may be provided by law.
(28a, EO 91 and PD 603)

ARTICLE 185. Husband and wife must jointly adopt, except in the following
cases:
(1) When one spouse seeks to adopt his own illegitimate child; or
(2) When one spouse seeks to adopt the legitimate child of the other. (29a, EO
91 and PD 603)

In Re: Petition for Adoption of Michelle P. Lim and Michael Jude P. Lim (588 SCRA
98)\\

Section 7, Article III of RA 8552 provides “Husband and wife shall jointly
adopt, except in the following cases:(i)if one spouse seeks to adopt the legitimate
son/daughter of the other; or (ii)if one spouse seeks to adopt his/her own

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illegitimate son/daughter: Provided, however, That the other spouse has signified
his/her consent thereto; or (iii)if the spouses are legally separated from each other.
In case husband and wife jointly adopt, or one spouse adopts the illegitimate
son/daughter of the other, joint parental authority shall be exercised by the
spouses. The use of the word "shall" in the above-quoted provision means that joint
adoption by the husband and the wife is mandatory.

ARTICLE 186. In case husband and wife jointly adopt or one spouse adopts
the legitimate child of the other, joint parental authority shall be exercised by the
spouses in accordance with this Code. (29a, EO 91 and PD 603)

ARTICLE 187. The following may not be adopted:

(1) A person of legal age, unless he or she is a child by nature of the adopter or
his or her spouse, or, prior to the adoption, said person had been consistently
considered and treated by the adopter as his or her own child during minority;
(2) An alien with whose government the Republic of the Philippines has no
diplomatic relations; and
(3) A person who has already been adopted unless such adoption has been
previously revoked or rescinded. (30a, EO 91 and PD 603)

ARTICLE 188. The written consent of the following to the adoption shall be
necessary:
(1) The person to be adopted, if ten years of age or over;
(2) The parents by nature of the child, the legal guardian, or the proper
government instrumentality;
(3) The legitimate and adopted children, ten years of age or over, of the
adopting parent or parents;
(4) The illegitimate children, ten years of age or over, of the adopting parent,
if living with said parent and the latter's spouse, if any; and
(5) The spouse, if any, of the person adopting or to be adopted. (31a, EO 91
and PD 603)

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Landingin vs. Republic (493 SCRA 415)

The written consent of the biological parents is indispensable for the validity
of a decree of adoption. Indeed, the natural right of a parent to his child requires
that his consent must be obtained before his parental rights and duties may be
terminated and re-established in adoptive parents.
When she filed her petition with the trial court, Rep. Act No. 8552 was
already in effect. Section 9 thereof provides that if the written consent of the
biological parents cannot be obtained, the written consent of the legal guardian of
the minors will suffice. If, as claimed by petitioner, that the biological mother of the
minors had indeed abandoned them, she should, thus have adduced the written
consent of their legal guardian.

In Re: Petition for Adoption of Michelle P. Lim and Michael Jude P. Lim (588 SCRA
98)

Section 7, Article III of RA 8552 provides “Husband and wife shall jointly
adopt, except in the following cases:(i)if one spouse seeks to adopt the legitimate
son/daughter of the other; or (ii)if one spouse seeks to adopt his/her own
illegitimate son/daughter: Provided, however, That the other spouse has signified
his/her consent thereto; or (iii)if the spouses are legally separated from each other.
In case husband and wife jointly adopt, or one spouse adopts the illegitimate
son/daughter of the other, joint parental authority shall be exercised by the
spouses. The use of the word "shall" in the above-quoted provision means that joint
adoption by the husband and the wife is mandatory.

ARTICLE 189. Adoption shall have the following effects:

(1) For civil purposes, the adopted shall be deemed to be a legitimate child of
the adopters and both shall acquire the reciprocal rights and obligations arising
from the relationship of parent and child, including the right of the adopted to
use the surname of the adopter;
(2) The parental authority of the parents by nature over the adopted shall
terminate and be vested in the adopters, except that if the adopter is the spouse
of the parent by nature of the adopted, parental authority over the adopted shall
be exercised jointly by both spouses; and

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(3) The adopted shall remain an intestate heir of his parents and other blood
relatives. (39(1)a, (2)a, (3)a, PD 603)

In The Matter of The Adoption of Stephanie Nathy Astorga Garcia (454 SCRA 541)

Stephanie's continued use of her mother's surname (Garcia) as her middle

name will maintain her maternal lineage. Article 189(3) of the Family Code and
Section 18, 24 Article V of RA 8552 (law on adoption) provide that the adoptee
remains an intestate heir of his/her biological parent. Hence, Stephanie can well
assert or claim her hereditary rights from her natural mother in the future. X x x
Since there is no law prohibiting an illegitimate child adopted by her natural father,
like Stephanie, to use, as middle name her mother's surname, we find no reason
why she should not be allowed to do so.

ARTICLE 190. Legal or intestate succession to the estate of the adopted shall
be governed by the following rules:
(1) Legitimate and illegitimate children and descendants and the surviving
spouse of the adopted shall inherit from the adopted, in accordance with the
ordinary rules of legal or intestate succession;
(2) When the parents, legitimate or illegitimate, or the legitimate ascendants
of the adopted concur with the adopters, they shall divide the entire estate, one-
half to be inherited by the parents or ascendants and the other half, by the
adopters;
(3) When the surviving spouse or the illegitimate children of the adopted
concur with the adopters, they shall divide the entire estate in equal shares, one-
half to be inherited by the spouse or the illegitimate children of the adopted and
the other half, by the adopters;
(4) When the adopters concur with the illegitimate children and the surviving
spouse of the adopted, they shall divide the entire estate in equal shares, one-
third to be inherited by the illegitimate children, one-third by the surviving
spouse, and one-third by the adopters;
(5) When only the adopters survive, they shall inherit the entire estate; and
(6) When only collateral blood relatives of the adopted survive, then the
ordinary rules of legal or intestate succession shall apply. (39(4)a, PD 603)

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Moreover, this ruling finds support on the fact that even though parental authority
is severed by virtue of adoption, the ties between the adoptee and the biological
parents are not entirely eliminated. To demonstrate, the biological parents, in
some instances, are able to inherit from the adopted, as can be gleaned from Art.
190 of the Family Code.
We are guided by the catena of cases and the state policies behind RA 8552 wherein
the paramount consideration is the best interest of the child, which We invoke to
justify this disposition. It is, after all, for the best interest of the child that someone
will remain charged for his welfare and upbringing should his or her adopter fail or
is rendered incapacitated to perform his duties as a parent at a time the adoptee is
still in his formative years, and, to Our mind, in the absence or, as in this case,
death of the adopter, no one else could reasonably be expected to perform the
role of a parent other than the adoptee's biological one. --- Bartolome v. SSS, G.R.
No. 192531, November 12, 2014

[E]ven though parental authority is severed by virtue of adoption, the ties between
the adoptee and the biological parents are not entirely eliminated. To demonstrate,
the biological parents, in some instances, are able to inherit from the adopted, as
can be gleaned from Art. 190 of the Family Code. . . --- Del Socorro v. Van Wilsem,
G.R. No. 193707, December 10, 2014

ARTICLE 191. If the adopted is a minor or otherwise incapacitated, the

adoption may be judicially rescinded upon petition of any person authorized by
the court or proper government instrumentality acting on his behalf, on the same
grounds prescribed for loss or suspension of parental authority. If the adopted is
at least eighteen years of age, he may petition for judicial rescission of the
adoption on the same grounds prescribed for disinheriting an ascendant. (40a, PD
603)

ARTICLE 192. The adopters may petition the court for the judicial rescission
of the adoption in any of the following cases:
(1) If the adopted has committed any act constituting a ground for
disinheriting a descendant; or
(2) When the adopted has abandoned the home of the adopters during
minority for at least one year, or, by some other acts, has definitely repudiated
the adoption. (41a, PD 603)

Lahom vs. Sibulo (406 SCRA 135)

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 Re: Republic Act 8552 which repealed Article 192, FC – R.A. 8552 (Domestic
Adoption Act) which took effect in 1998, repealed right of adopter to rescind decree
of adoption under Article 192 FC, without prejudice to right of adopter to disinherit
the adoptee for causes provided by law.

ARTICLE 193. If the adopted minor has not reached the age of majority at
the time of the judicial rescission of the adoption, the court in the same
proceeding shall reinstate the parental authority of the parents by nature, unless
the latter are disqualified or incapacitated, in which case the court shall appoint
a guardian over the person and property of the minor. If the adopted person is
physically or mentally handicapped, the court shall appoint in the same
proceeding a guardian over his person or property or both.
Judicial rescission of the adoption shall extinguish all reciprocal rights and
obligations between the adopters and the adopted arising from the relationship
of parent and child. The adopted shall likewise lose the right to use the surnames
of the adopters and shall resume his or her surname prior to the adoption.
The court shall accordingly order the amendment of the records in the proper
registries. (42a, PD 603)

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 TITLE VIII
Support

ARTICLE 194. Support comprises everything indispensable for sustenance,

dwelling, clothing, medical attendance, education and transportation, in keeping
with the financial capacity of the family.
The education of the person entitled to be supported referred to in the preceding
paragraph shall include his schooling or training for some profession, trade or
vocation, even beyond the age of majority. Transportation shall include expenses
in going to and from school, or to and from place of work. (290a)

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Characteristics of legal support.
Legal support has the following characteristics: (1) It is personal, based on family
ties which bind the obligor and the obligee; (2) It is intransmissible; (3) It cannot
be renounced; (4) It cannot be compromised; (5) It is free from attachment or
execution; (6) It is reciprocal; (7) It is variable in amount. --- Perla G. Patricio vs.
Marcelino G. Dario III, et al., G.R. No. 170829, November 20, 2006

Mere act of marriage creates an obligation on the part of husband to support his
wife.
The mere act of marriage creates an obligation on the part of the husband to
support his wife. This obligation is founded not so much on the express or implied

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terms of the contract of marriage as on the natural and legal duty of the husband;
an obligation, the enforcement of which is of such vital concern to the state itself
that the law will not permit him to terminate it by his own wrongful acts in driving
his wife to seek protection in the parental home. --- Eloisa Goitia y de la Camara vs.
Jose Campos Rueda, G.R. No. 11263, November 2, 1916

An unborn child has a right to support from its progenitors.

A conceived child, although as yet unborn, is given by law a provisional personality
of its own for all purposes favorable to it. The unborn child, therefore, has a right
to support from its progenitors, even if the said child is only "en ventre de sa mere;"
just as a conceived child, even if as yet unborn, may receive donations as
prescribed by law. --- Carmen Quimiguing vs. Felix Icao, G.R. No. L-26795, July 31,
1970

Rationale for entitling illegitimate children to support and successional rights.

Illegitimate children are entitled to support and successional rights because the
transgressions of social conventions committed by the parents should not be
visited upon them. They were born with a social handicap and the law should help
them to surmount the disadvantages facing them through the misdeeds of their
parents. --- Artemio G. Ilano vs. Court of Appeals, G.R. No. 104376, February 23,
1994

Right to support presupposes existence of a justifiable cause on the part of the

claimant spouse.
The right to separate support or maintenance, even from the conjugal partnership
property, presupposes the existence of a justifiable cause for the spouse claiming
such right to live separately. A petition in bad faith, such as that filed by one who
is himself or herself guilty of an act which constitutes a ground for legal separation
at the instance of the other spouse, cannot be considered as within the intendment
of the law granting separate support. --- Teodoro E. Lerma vs. Court of Appeals and
Concepcion Diaz, G.R. No. L-33352, December 20, 1974

Adultery on the part of the wife is a valid defense against an action for support
Adultery on the part of the wife is a valid defense against an action for support.
Consequently, as to the child, it is also a defense that it is the fruit of such
adulterous relations, for in that case, it would not be the child of the husband;
hence, would not be entitled to support as such. --- Feliciano Sanchez vs. Francisco

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Zulueta, G.R. No. 45616, May 16, 1939 & Maria Quintana vs. Gelasio Lerma, G.R.
No. 7426, February 5, 1913

The wife is not entitled to support if she establishes her residence apart from the
husband.
Although the husband and the wife are obliged to live together, observe mutual
respect and fidelity and render mutual help and assistance and that the wife is
entitled to be supported, our laws contain no provision compelling the wife to live
with her husband where even without legal justification she establishes her
residence apart from that provided for by the former. In such event, there is no
plausible reason why she should be allowed any support from the husband. ----
Pilar Atilano vs. Chua Ching Beng, G.R. No. L-11086, March 29, 1958

Husband's repeated illicit relations with women justify separate maintenance for
the wife.
In order to entitle a wife to maintain a separate home and to require separate
maintenance from her husband, it is not necessary that the husband should bring
a concubine into the marital domicile. Repeated illicit relations with women
outside of the marital establishment are enough. The law is not so unreasonable
as to require a wife to live in marital relations with a husband whose propensity
towards other women makes common habitation with him unbearable. --- Aurelia
Dadivas de Villanueva vs. Rafael Villanueva, G.R. No. 29959, December 3, 1929

A claim for future support cannot be subject of a valid compromise.

No valid compromise is possible on the issue of future support. Hence, a showing
of previous efforts to compromise required under Art. 222 of the Civil Code would
be superfluous. --- Cecilio Mendoza vs. Court of Appeals and Luisa de la Rosa
Mendoza, G.R. No. L-23102, April 24, 1967

Since filiation is beyond question, support follows as a matter of obligation; a

parent is obliged to support his child, whether legitimate or illegitimate. Support
consists of everything indispensable for sustenance, dwelling, clothing, medical
attendance, education and transportation, in keeping with the financial capacity of
the family. Thus, the amount of support is variable and, for this reason, no final
judgment on the amount of support is made as the amount shall be in proportion
to the resources or means of the giver and the necessities of the recipient. It may
be reduced or increased proportionately according to the reduction or increase of

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the necessities of the recipient and the resources or means of the person obliged
to support. --- Charles Gotardo vs. Divina Buling, G.R. No. 165166, August 15, 2012

ARTICLE 195. Subject to the provisions of the succeeding articles, the following
are obliged to support each other to the whole extent set forth in the preceding
article:
(1) The spouses;
(2) Legitimate ascendants and descendants;
(3) Parents and their legitimate children and the legitimate and illegitimate
children of the latter;
(4) Parents and their illegitimate children and the legitimate and illegitimate
children of the latter; and
(5) Legitimate brothers and sisters, whether of the full or half-blood. (291a)

[P]etitioner cannot rely on Article 195 of the [Family] Code in demanding support
from respondent, who is a foreign citizen, since Article 15 of the New Civil Code
stresses the principle of nationality. In other words, insofar as Philippine laws are
concerned, specifically the provisions of the Family Code on support, the same
only applies to Filipino citizens. By analogy, the same principle applies to foreigners
such that they are governed by their national law with respect to family rights and
duties. . . . This does not, however, mean that respondent is not obliged to support
petitioner's son altogether.
In international law, the party who wants to have a foreign law applied to a
dispute or case has the burden of proving the foreign law. . . . It is incumbent upon
respondent to plead and prove that the national law of the Netherlands does not
impose upon the parents the obligation to support their child (either before,
during or after the issuance of a divorce decree) . . . . In view of respondent's failure
to prove the national law of the Netherlands in his favor, the doctrine of processual
presumption shall govern. Under this doctrine, if the foreign law involved is not
properly pleaded and proved, our courts will presume that the foreign law is the
same as our local or domestic or internal law. Thus, since the law of the
Netherlands as regards the obligation to support has not been properly pleaded
and proved in the instant case, it is presumed to be the same with Philippine law,
which enforces the obligation of parents to support their children and penalizing
the non-compliance therewith. --- Del Socorro v. Van Wilsem, G.R. No. 193707,
December 10, 2014

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[Respondent]'s demand for support, being based on her claim of filiation to
petitioner as his illegitimate daughter, falls under Article 195 (4). As such, her
entitlement to support from petitioner is dependent on the determination of her
filiation. --- Ben-Hur Nepomuceno vs. Arhbencel Ann Lopez, G.R. No. 181258,
March 18, 2010

Filiation must be duly proved before illegitimate children are entitled to support.
To be entitled to legal support, petitioner must, in proper action, first establish
the filiation of the child, if the same is not admitted or acknowledged. Since
petitioner's demand for support for her son is based on her claim that he is
respondent's illegitimate child, the latter is not entitled to such support if he had
not acknowledged him, until petitioner shall have proved his relation to him. The
child's remedy is to file through her mother a judicial action against respondent for
compulsory recognition. If filiation is beyond question, support follows as matter
of obligation. In short, illegitimate children are entitled to support and successional
rights but their filiation must be duly proved. ---- Cherryl B. Dolina vs. Glenn D.
Vallecera, G.R. No. 182367, December 15, 2010

ARTICLE 196. Brothers and sisters not legitimately related, whether of the full or
half-blood, are likewise bound to support each other to the full extent set forth
in Article 194, except only when the need for support of the brother or sister,
being of age, is due to a cause imputable to the claimant's fault or negligence.
(291a)

ARTICLE 197. For the support of legitimate ascendants; descendants,

whether legitimate or illegitimate, and brothers and sisters, whether legitimately
or illegitimately related, only the separate property of the person obliged to give
support shall be answerable provided that in case the obligor has no separate
property, the absolute community or the conjugal partnership, if financially
capable, shall advance the support, which shall be deducted from the share of the
spouse obliged upon the liquidation of the absolute community or of the conjugal
partnership. (n)

ARTICLE 198. During the proceedings for legal separation or for annulment of
marriage, and for declaration of nullity of marriage, the spouses and their children
shall be supported from the properties of the absolute community or the conjugal
partnership. After final judgment granting the petition, the obligation of mutual
support between the spouses ceases. However, in case of legal separation, the

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court may order that the guilty spouse shall give support to the innocent one,
specifying the terms of such order. (292a)

ARTICLE 199. Whenever two or more persons are obliged to give support, the
liability shall devolve upon the following persons in the order herein provided:
(1) The spouse;
(2) The descendants in the nearest degree;
(3) The ascendants in the nearest degree; and
(4) The brothers and sisters. (294a)

Article 305 of the Civil Code, in relation to what is now Article 199 of the Family
Code, specifies the persons who have the right and duty to make funeral
arrangements for the deceased. --- Valino v. Adriano, G.R. No. 182894, April 22,
2014

From the aforecited provisions [Articles 305 and 308 of the Civil Code, Art. 199 of
the Family Code, Sec. 1103 of the Revised Administrative Code], it is undeniable
that the law simply confines the right and duty to make funeral arrangements to
the members of the family to the exclusion of one's common law partner.
[I]t is undeniable that the law simply confines the right and duty to make funeral
arrangements to the members of the family to the exclusion of one's common law
partner.
[I]t is clear that the law gives the right and duty to make funeral arrangements to
Rosario, she being the surviving legal wife of Atty. Adriano. The fact that she was
living separately from her husband and was in the United States when he died has
no controlling significance. To say that Rosario had, in effect, waived or renounced,
expressly or impliedly, her right and duty to make arrangements for the funeral of
her deceased husband is baseless. The right and duty to make funeral
arrangements, like any other right, will not be considered as having been waived
or renounced, except upon clear and satisfactory proof of conduct indicative of a
free and voluntary intent to that end. While there was disaffection between Atty.
Adriano and Rosario and their children when he was still alive, the Court also
recognizes that human compassion, more often than not, opens the door to mercy
and forgiveness once a family member joins his Creator.

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The right and duty to make funeral arrangements, like any other right, will not be
considered as having been waived or renounced, except upon clear and
satisfactory proof of conduct indicative of a free and voluntary intent to that end.
While there was disaffection between Atty. Adriano and Rosario and their children
when he was still alive, the Court also recognizes that human compassion, more
often than not, opens the door to mercy and forgiveness once a family member
joins his Creator.
Verily, in the same vein that the right and duty to make funeral arrangements will
not be considered as having been waived or renounced, the right to deprive a
legitimate spouse of her legal right to bury the remains of her deceased husband
should not be readily presumed to have been exercised, except upon clear and
satisfactory proof of conduct indicative of a free and voluntary intent of the
deceased to that end. Should there be any doubt as to the true intent of the
deceased, the law favors the legitimate family.

From its terms, it is apparent that Article 307 simply seeks to prescribe the "form
of the funeral rites" that should govern in the burial of the deceased. As thoroughly
explained earlier, the right and duty to make funeral arrangements reside in the
persons specified in Article 305 in relation to Article 199 of the Family Code. Even
if Article 307 were to be interpreted to include the place of burial among those on
which the wishes of the deceased shall be followed, Dr. Arturo M. Tolentino (Dr.
Tolentino), an eminent authority on civil law, commented that it is generally
recognized that any inferences as to the wishes of the deceased should be
established by some form of testamentary disposition. As Article 307 itself
provides, the wishes of the deceased must be expressly provided. It cannot be
inferred lightly . . .

[T]he wishes of the decedent with respect to his funeral are not absolute. As Dr.
Tolentino further wrote:

The dispositions or wishes of the deceased in relation to his funeral, must not be
contrary to law. They must not violate the legal and reglementary provisions
concerning funerals and the disposition of the remains, whether as regards the
time and manner of disposition, or the place of burial, or the ceremony to be
observed.
In this case, the wishes of the deceased with respect to his funeral are limited by
Article 305 of the Civil Code in relation to Article 199 of the Family Code, and
subject the same to those charged with the right and duty to make the proper
arrangements to bury the remains of their loved-one.

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It is generally recognized that the corpse of an individual is outside the commerce
of man. However, the law recognizes that a certain right of possession over the
corpse exists, for the purpose of a decent burial, and for the exclusion of the
intrusion by third persons who have no legitimate interest in it. This quasi-
property right, arising out of the duty of those obligated by law to bury their dead,
also authorizes them to take possession of the dead body for purposes of burial
to have it remain in its final resting place, or to even transfer it to a proper place
where the memory of the dead may receive the respect of the living. This is a
family right. There can be no doubt that persons having this right may recover the
corpse from third persons. --- Valino v. Adriano, G.R. No. 182894, April 22, 2014

ARTICLE 200. When the obligation to give support falls upon two or more
persons, the payment of the same shall be divided between them in proportion
to the resources of each.
However, in case of urgent need and by special circumstances, the judge may
order only one of them to furnish the support provisionally, without prejudice to
his right to claim from the other obligors the share due from them.
When two or more recipients at the same time claim support from one and the
same person legally obliged to give it, should the latter not have sufficient means
to satisfy all claims, the order established in the preceding article shall be
followed, unless the concurrent obligees should be the spouse and a child subject
to parental authority, in which case the child shall be preferred. (295a)

ARTICLE 201. The amount of support, in the cases referred to in Articles 195 and
196, shall be in proportion to the resources or means of the giver and to the
necessities of the recipient. (296a)

The capacity or resources of both parents and the child's monthly expenses must
be proved to justify award of support.
It is incumbent upon the trial court to base its award of support on the evidence
presented before it. The evidence must prove the capacity or resources of both
parents who are jointly obliged to support their children as provided for under
Article 195 of the Family Code; and the monthly expenses incurred for the
sustenance, dwelling, clothing, medical attendance, education and transportation
of the child. --- Jose Lam vs. Adriana Chua, G.R. No. 131286, March 18, 2004

The allowance for support is provisional.

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Judgment for support does not become final. The right to support is of such nature
that its allowance is essentially provisional; for during the entire period that a
needy party is entitled to support, his or her alimony may be modified or altered,
in accordance with his increased or decreased needs, and with the means of the
giver. It cannot be regarded as subject to final determination. --- Manuela Advincula
vs. Manuel Advincula, G.R. No. L-19065, January 31, 1964

Judgment for support is never final.

Under Article 195 (4) of the Family Code, a parent is obliged to support his
illegitimate child. The amount is variable. There is no final judgment thereof as it
shall be in proportion to the resources or means of the giver and the necessities of
the recipient. It may be reduced or increased proportionately according to the
reduction or increase of the necessities of the recipient and the resources or means
of the person obliged to support. Support comprises everything indispensable for
sustenance, dwelling, clothing, medical attendance, education and transportation,
in keeping with the financial capacity of the family. Under the premises, the award
of P5,000 monthly support to Laurence is reasonable, and not excessive nor
exorbitant. --- Dolores Montefalcon, et al. vs. Ronnie S. Vasquez, G.R. No. 165016,
June 17, 2008

A judgment for support is never final in the sense that not only can its amount be
subject to increase or decrease but its demandability may also be suspended or
re-enforced when appropriate circumstances exist. --- Bernarda S. Canonizado vs.
Judge Regina G. Ordonez Benitez, G.R. Nos. L-49315 and 60966, February 20, 1984

ARTICLE 202. Support in the cases referred to in the preceding article shall be
reduced or increased proportionately, according to the reduction or increase of
the necessities of the recipient and the resources or means of the person obliged
to furnish the same. (297a)

ARTICLE 203. The obligation to give support shall be demandable from the time
the person who has a right to receive the same needs it for maintenance, but it
shall not be paid except from the date of judicial or extrajudicial demand.
Support pendente lite may be claimed in accordance with the Rules of Court.
Payment shall be made within the first five days of each corresponding month.
When the recipient dies, his heirs shall not be obliged to return what he has
received in advance. (298a)

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Support pendente lite can be availed of in an action for legal separation.
Support pendente lite, as a remedy, can be availed of in an action for legal
separation, and granted at the discretion of the judge. If the amount of support
pendente lite ordered is found to be too onerous, a motion to modify or reduce the
same can always be filed. --- Froilan C. Gandionco vs. Hon. Senen C. Peñaranda,
G.R. No. 79284, November 27, 1987

Court order fixing the amount of support pendente lite is not final.
The order fixing the amount of support pendente lite is not final in character in
the sense that it can be the subject of modification, depending on the changing
conditions affecting the ability of the obligor to pay the amount fixed for support.
--- Buenaventura San Juan vs. Hon. Manuel E. Valenzuela, G.R. No. L-59906,
October 23, 1982

Complaint may be filed in court without passing the Lupon Tagapayapa where
the issues of support pendente lite and delivery of personal properties are
essentially involved.
A complaint may be filed directly in a competent court without passing the Lupon
Tagapayapa in actions coupled with provisional remedies such as support pendente
lite. The issues of support pendente lite and delivery of personal properties
belonging to the conjugal partnership, although not ‘coupled’ in the strict sense of
the word with the Petition for Dissolution of Conjugal Partnership, are essentially
involved in this petition because of the minority of the daughter, and because the
resolution or decision of this court on the pending petition would be incomplete
without a clear-cut disposition on the partition of the personal and real properties
of the conjugal partnership and consequent delivery thereof to the proper parties.
--- Mauro Blardony, Jr. vs. Hon. Jose L. Coscolluela, Jr., G.R. No. 70261, February 28,
1990

Provisional remedies are writs and processes available during the pendency of the
action which may be resorted to by a litigant to preserve and protect certain rights
and interests therein pending rendition, and for purposes of the ultimate effects,
of a final judgment in the case. They are provisional because they constitute
temporary measures availed of during the pendency of the action, and they are
ancillary because they are mere incidents in and are dependent upon the result of
the main action. The subject orders on the matter of support pendente lite are but
an incident to the main action for declaration of nullity of marriage. --- Ma.

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Carminia C. Calderon vs. Jose Antonio F. Roxas, et al., G.R. No. 185595, January 9,
2013

ARTICLE 204. The person obliged to give support shall have the option to fulfill
the obligation either by paying the allowance fixed, or by receiving and
maintaining in the family dwelling the person who has a right to receive support.
The latter alternative cannot be availed of in case there is a moral or legal
obstacle thereto. (299a)

ARTICLE 205. The right to receive support under this Title as well as any money
or property obtained as such support shall not be levied upon on attachment or
execution. (302a)

ARTICLE 206. When, without the knowledge of the person obliged to give
support, it is given by a stranger, the latter shall have a right to claim the same
from the former, unless it appears that he gave it without any intention of being
reimbursed. (2164a)

ARTICLE 207. When the person obliged to support another unjustly refuses or
fails to give support when urgently needed by the latter, any third person may
furnish support to the needy individual, with a right of reimbursement from the
person obliged to give support. This Article shall apply particularly when the
father or mother of a child under the age of majority unjustly refuses to support
or fails to give support to the child when urgently needed. (2166a)

A quasi-contract exists between the person obliged to give support and the third
person who furnished support.
[C]ontextually, the resulting juridical relationship between the [the person obliged
to give support] and [the third person who furnished support] is a quasi-contract,
an equitable principle enjoining one from unjustly enriching himself at the expense
of another. --- Edward V. Lacson vs. Maowee Daban Lacson et al., G.R. No. 150644,
August 28, 2006

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ARTICLE 208. In case of contractual support or that given by will, the excess in
amount beyond that required for legal support shall be subject to levy on
attachment or execution.
Furthermore, contractual support shall be subject to adjustment whenever
modification is necessary due to changes in circumstances manifestly beyond the
contemplation of the parties. (n)

TITLE IX
Parental Authority
CHAPTER 1
General Provisions
ARTICLE 209. Pursuant to the natural right and duty of parents over the
person and property of their unemancipated children, parental authority and
responsibility shall include the caring for and rearing of such children for civic
consciousness and efficiency and the development of their moral, mental and
physical character and well-being. (n)

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Definition of “parental authority”.
Parental authority or patria potestas in Roman Law is the juridical institution
whereby parents rightfully assume control and protection of their unemancipated
children to the extent required by the latter's needs. It is a mass of rights and
obligations which the law grants to parents for the purpose of the children's physical
preservation and development, as well as the cultivation of their intellect and the
education of their heart and senses. As regards parental authority, "there is no
power, but a task; no complex of rights, but a sum of duties; no sovereignty but a
sacred trust for the welfare of the minor." --- Leouel Santos, Sr. vs. Court of
Appeals, G.R. No. 113054, March 16, 1995

Joint parental authority is vested by law on the father and mother.

The law vests on the father and mother joint parental authority over the persons
of their common children. In case of absence or death of either parent, the parent
present shall continue exercising parental authority. Only in case of the parents'
death, absence or unsuitability may substitute parental authority be exercised by
the surviving grandparent. --- Leouel Santos, Sr. vs. Court of Appeals, G.R. No.
113054, March 16, 1995

As far as joint parental authority is concerned, there is no more distinction between

legitimate or adopted children and acknowledged illegitimate children.
The new Family Code erases any distinction between legitimate or adopted
children on one hand and acknowledged illegitimate children on the other, insofar
as joint parental authority is concerned. Article 211 of the Family Code merely
formalizes into statute the practice on parental authority. --- Christina Marie
Dempsey vs. RTC Branch LXXV, Olongapo City and Joel Dempsey, G.R. Nos. 77737-
38, August 15, 1988

Inability to provide material comfort is not sufficient to deprive a personal of

parental authority.
Indeed, it would be against the spirit of the law if financial consideration were to be
the paramount consideration in deciding whether to deprive a person of parental
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authority over his children. There should be a holistic approach to the matter, taking
into account the physical, emotional, psychological, mental, social and spiritual
needs of the child. The conclusion that the husband abandoned his family needs
more evidentiary support other than his inability to provide them the material
comfort that his admittedly affluent in-laws could provide. There should be proof
that he had so emotionally abandoned them that his children would not miss his
guidance and counsel if they were given to adopting parents. --- Herbert Cang vs.
Court of Appeals and Sps. Ronald and Ma. Clara Clavano, G.R. No. 105308,
September 25, 1998

A “bad” husband does not necessarily make a “bad” father.

The actuality that the father carried on an affair with a paramour cannot be taken
as sufficient basis for the conclusion that he was necessarily an unfit father.
Conventional wisdom and common human experience show that a "bad" husband
does not necessarily make a "bad" father. That a husband is not exactly an
upright man is not, strictly speaking, a sufficient ground to deprive him as a father
of his inherent right to parental authority over the children. --- Herbert Cang vs.
Court of Appeals and Sps. Ronald and Ma. Clara Clavano, G.R. No. 105308,
September 25, 1998

Parental authority may not be transferred or renounced.

Parental authority and responsibility are inalienable and may not be transferred or
renounced except in cases authorized by law. The right attached to parental
authority, being purely personal, the law allows a waiver of parental authority
only in cases of adoption, guardianship and surrender to a children's home or an
orphan institution. When a parent entrusts the custody of a minor to another,
such as a friend or godfather, even in a document, what is given is merely
temporary custody and it does not constitute a renunciation of parental
authority. Even if a definite renunciation is manifest, the law still disallows the
same. --- Leouel Santos, Sr. vs. Court of Appeals, G.R. No. 113054, March 16, 1995

Parental authority may be waived or be subject to a compromise.

The husband may not be deemed as having been completely deprived of parental
authority, notwithstanding the award of custody to his wife in the legal separation
case. To reiterate, that award was arrived at by the lower court on the basis of the
agreement of the spouses. While parental authority may be waived, as in law it
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may be subject to a compromise, there was no factual finding in the legal
separation case that the husband was such an irresponsible person that he should
be deprived of custody of his children or that there are grounds under the law that
could deprive him of parental authority. --- Herbert Cang vs. Court of Appeals and
Sps. Ronald and Ma. Clara Clavano, G.R. No. 105308, September 25, 1998

“Best interest” rule should not be implemented in derogation of the primary right
of the parents to exercise parental authority.
Underlying the policies and precepts in international conventions and the domestic
statutes with respect to children is the overriding principle that all actuations
should be in the best interests of the child. This is not, however, to be
implemented in derogation of the primary right of the parent or parents to
exercise parental authority over him. The rights of parents vis-a-vis that of their
children are not antithetical to each other, as in fact, they must be respected and
harmonized to the fullest extent possible. --- Herbert Cang vs. Court of Appeals and
Sps. Ronald and Ma. Clara Clavano, G.R. No. 105308, September 25, 1998

Equally deplorable is the debarment of parental consent in cases where the minor,
who will be undergoing a procedure, is already a parent or has had a miscarriage. .
. . There can be no other interpretation of this provision [Section 7 of the RH law]
except that when a minor is already a parent or has had a miscarriage, the parents
are excluded from the decision-making process of the minor with regard to family
planning. Even if she is not yet emancipated, the parental authority is already cut
off just because there is a need to tame population growth.

It is precisely in such situations when a minor parent needs the comfort, care,
advice, and guidance of her own parents. The State cannot replace her natural
mother and father when it comes to providing her needs and comfort. To say that
their consent is no longer relevant is clearly anti-family. It does not promote unity
in the family. It is an affront to the constitutional mandate to protect and
strengthen the family as an inviolable social institution. --- Spouses Imbong v.
Ochoa, Jr., G.R. Nos. 204819, 204934, etc., April 8, 2014

To insist on a rule that interferes with the right of parents to exercise parental
control over their minor child or the right of the spouses to mutually decide on
matters which very well affect the very purpose of marriage, that is, the
establishment of conjugal and family life, would result in the violation of one's
privacy with respect to his family. It would be dismissive of the unique and strongly-
held Filipino tradition of maintaining close family ties and violative of the
336 | P a g e
recognition that the State affords couples entering into the special contract of
marriage to as one unit in forming the foundation of the family and society. ---
Spouses Imbong v. Ochoa, Jr., G.R. Nos. 204819, 204934, etc., April 8, 2014

The State cannot, without a compelling state interest, take over the role of parents
in the care and custody of a minor child, whether or not the latter is already a
parent or has had a miscarriage. Only a compelling state interest can justify a state
substitution of their parental authority. --- Spouses Imbong v. Ochoa, Jr., G.R. Nos.
204819, 204934, etc., April 8, 2014

ARTICLE 210. Parental authority and responsibility may not be renounced or

transferred except in the cases authorized by law. (313a)
ARTICLE 211. The father and the mother shall jointly exercise parental authority
over the persons of their common children. In case of disagreement, the father's
decision shall prevail, unless there is a judicial order to the contrary.

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Children shall always observe respect and reverence toward their parents and are
obliged to obey them as long as the children are under parental authority. (17a,
PD 603)

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ARTICLE 212. In case of absence or death of either parent, the parent present
shall continue exercising parental authority. The remarriage of the surviving
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parent shall not affect the parental authority over the children, unless the court
appoints another person to be the guardian of the person or property of the
children. (17a, PD 603)

ARTICLE 213. In case of separation of the parents, parental authority shall

be exercised by the parent designated by the court. The court shall take into
account all relevant considerations, especially the choice of the child over seven
years of age, unless the parent chosen is unfit. (n)
No child under seven years of age shall be separated from the mother, unless the
court finds compelling reasons to order otherwise.

Article 213 does not disallow a father from seeing or visiting his child under seven
years of age.
Article 213 of the Family Code deals with the judicial adjudication of custody and
serves as a guideline for the proper award of custody by the court. [The mother]
can raise it as a counter argument for [the father's] petition for custody. But it is
not a basis for preventing the father to see his own child. Nothing in the said
provision disallows a father from seeing or visiting his child under seven years of
age. --- Marie Antonette Abigail C. Salientes, et al. vs. Loran S.D. Abanilla, et al.,
G.R. No. 162734, August 29, 2006

The "tender-age presumption" may be overcome only by compelling evidence of

the mother's unfitness.
The so-called "tender-age presumption" under Article 213 of the Family Code may
be overcome only by compelling evidence of the mother's unfitness. The mother is
declared unsuitable to have custody of her children in one or more of the following
instances: neglect, abandonment, unemployment, immorality, habitual
drunkenness, drug addiction, maltreatment of the child, insanity, or affliction
with a communicable disease. --- Agnes Gamboa-Hirsch vs. Court of Appeals, et al.,
G.R. No. 174485, July 11, 2007

The sole and foremost consideration in controversies regarding custody of minors

is the physical, education, social and moral welfare of the child.
In all cases involving the custody, care, education and property of children, the
latter's welfare is paramount. The foremost consideration is the moral, physical
and social welfare of the child concerned, taking into account the resources and
moral as well as social standing of the contending parents. Never has this Court

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deviated from this criterion. ---- In re: Angelie Anne C. Cervantes vs. Gina Carreon
Fajardo, G.R. No. 79955, Jan. 27, 1989

In custody cases, the foremost consideration is always the welfare and best
interest of the child.
It has long been settled that in custody cases, the foremost consideration is always
the welfare and best interest of the child. In fact, no less than an international
instrument, the Convention on the Rights of the Child provides: "In all actions
concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration." --- Nerissa Z. Perez vs. Court
of Appeals, G.R. No. 118870, March 29, 1996

In disputes concerning post-separation custody over a minor, the well-settled rule

is that no child under seven (7) years of age shall be separated from the mother,
unless the court finds compelling reasons to order otherwise. And if already over 7
years of age, the child's choice as to which of his parents he prefers to be under
custody shall be respected, unless the parent chosen proves to be unfit. Finally, in
Perez v. Court of Appeals [G.R. No. 118870, March 29, 1996], We held that in
custody cases, the foremost consideration is always the welfare and best interest
of the child, as reflected in no less than the U.N. Convention on the Rights of the
Child which provides that "[i]n all actions concerning children, whether undertaken
by public or private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child shall be a primary
consideration." --- Geoffrey Beckett vs. Olegario R. Sarmiento, Jr., A.M. No. RTJ-12-
2326, January 30, 2013

Right of parents to custody of minor children is a constitutional and natural right.

The right of parents to the custody of their minor children is one of the natural
rights incident to parenthood, a right supported by law and sound public policy.
The right is an inherent one, which is not created by the estate of decisions of the
courts, but derives from the nature of the parent relationship. --- Teresita Sagala-
Eslao vs. CA and Maria Paz Cordero-Ouye, G.R. No. 116773, January 16, 1997

Right of parents to custody of their children is but ancillary to the proper discharge
of parental duties.

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While our law recognizes the right of a parent to the custody of her child, courts
must not lose sight of the basic principle that "in all questions of the care, custody,
education and property of children, the latter's welfare shall be paramount", and
that for compelling reasons, even a child under seven may be ordered separated
from the mother. This is as it should be, for in the continual evolution of legal
institutions, the patria potestas has been transformed from the jus vitae ac necis
(right of life and death) of the Roman law, under which the offspring was virtually
a chattel of his parents, into a radically different institution, due to the influence of
Christian faith and doctrines. The obligational aspect is now supreme. As pointed
out by Puig Peña, now "there is no power, but a task; no complex of rights (of
parents) but a sum of duties; no sovereignty, but a sacred trust for the welfare of
the minor." As a result, the right of parents to the company and custody of their
children is but ancillary to the proper discharge of parental duties to provide the
children with adequate support, education, moral, intellectual and civic training
and development. --- Zenaida Medina vs. Dra. Venancia L. Makabali, G.R. No. L-
26953, March 28, 1969

Even if estranged, mother and father may be granted joint custody of common
children.
a) Parents have the natural right, as well as the moral and legal duty, to care for
their children, see to their upbringing and safeguard their best interest and welfare.
This authority and responsibility may not be unduly denied the parents; neither
may it be renounced by them. Even when the parents are estranged and their
affection for each other is lost, the attachment and feeling for their offspring
invariably remain unchanged. Neither the law nor the courts allow this affinity to
suffer absent, of course, any real, grave and imminent threat to the well-being of
the child. --- Carlitos E. Silva vs. CA and Suzanne T. Gonzales, G.R. No. 114742, July
17, 1997
b) The visitorial right of an illegitimate father over his children is sustained in
view of the constitutionally protected inherent and natural right of parents over
their children. Even when the parents are estranged and their affection for each
other is lost, their attachment to and feeling for their offspring remain unchanged.
Neither the law nor the courts allow this affinity to suffer, absent any real, grave or
imminent threat to the well-being of the child. --- Sabrina Artadi Bondagjy vs. Fouzi
Ali Bondagjy, G.R. No. 140817, December 7, 2001

If child is under seven years of age, law presumes that the mother is the best
custodian.

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In ascertaining the welfare and best interests of the child, courts are mandated by
the Family Code to take into account all relevant considerations. If a child is under
seven years of age, the law presumes that the mother is the best custodian. The
presumption is strong but it is not conclusive: It can be overcome by "compelling
reasons". --- Reynaldo Espiritu vs. CA, G.R. No. 115640, March 15, 1995

[U]pon separation of the spouses, the mother takes sole custody under the law if
the child is below seven years old and any agreement to the contrary is void. Thus,
the law suspends the joint custody regime for (1) children under seven of (2)
separated or divorced spouses. Simply put, for a child within this age bracket (and
for commonsensical reasons), the law decides for the separated or divorced
parents how best to take care of the child and that is to give custody to the
separated mother. Indeed, the separated parents cannot contract away the
provision in the Family Code on the maternal custody of children below seven years
anymore than they can privately agree that a mother who is unemployed, immoral,
habitually drunk, drug addict, insane or afflicted with a communicable disease will
have sole custody of a child under seven as these are reasons deemed compelling
to preclude the application of the exclusive maternal custody regime under the
second paragraph of Article 213. --- Herald Black Dacasin vs. Sharon Del Mundo
Dacasin, G.R. No. 168785, February 5, 2010

It will not do to argue that the second paragraph of Article 213 of the Family Code
applies only to judicial custodial agreements based on its text that "No child under
seven years of age shall be separated from the mother, unless the court finds
compelling reasons to order otherwise." To limit this provision's enforceability to
court-sanctioned agreements while placing private agreements beyond its reach is
to sanction a double standard in custody regulation of children under seven years
old of separated parents. This effectively empowers separated parents, by the
simple expedient of avoiding the courts, to subvert a legislative policy vesting to
the separated mother sole custody of her children under seven years of age "to
avoid a tragedy where a mother has seen her baby torn away from her." This
ignores the legislative basis that "[n]o man can sound the deep sorrows of a mother
who is deprived of her child of tender age."
Petitioner Herald Dacasin (petitioner), American, and respondent Sharon Del
Mundo Dacasin (respondent), Filipino, were married in Manila in April 1994. They
have one daughter, Stephanie, born on 21 September 1995. In June 1999,
respondent sought and obtained from the Circuit Court, 19th Judicial Circuit, Lake
County, Illinois (Illinois court) a divorce decree against petitioner. In its ruling, the
Illinois court dissolved the marriage of petitioner and respondent, awarded to
respondent sole custody of Stephanie and retained jurisdiction over the case for
enforcement purposes.

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On 28 January 2002, petitioner and respondent executed in Manila a contract
(Agreement) for the joint custody of Stephanie. The parties chose Philippine courts
as exclusive forum to adjudicate disputes arising from the Agreement. Respondent
undertook to obtain from the Illinois court an order "relinquishing" jurisdiction to
Philippine courts. HTDCAS
In 2004, petitioner sued respondent in the Regional Trial Court of Makati City,
Branch 60 (trial court) to enforce the Agreement. Petitioner alleged that in
violation of the Agreement, respondent exercised sole custody over Stephanie.
Respondent sought the dismissal of the complaint for, among others, lack of
jurisdiction because of the Illinois court's retention of jurisdiction to enforce the
divorce decree.
Issue:
The question is whether the trial court has jurisdiction to take cognizance of
petitioner's suit and enforce the Agreement on the joint custody of the parties'
child.

Ruling:
The foregoing notwithstanding, the trial court cannot enforce the Agreement which
is contrary to law.
In this jurisdiction, parties to a contract are free to stipulate the terms of agreement
subject to the minimum ban on stipulations contrary to law, morals, good customs,
public order, or public policy. Otherwise, the contract is denied legal existence,
deemed "inexistent and void from the beginning." For lack of relevant stipulation
in the Agreement, these and other ancillary Philippine substantive law serve as
default parameters to test the validity of the Agreement's joint child custody
stipulations.
At the time the parties executed the Agreement on 28 January 2002, two facts are
undisputed: (1) Stephanie was under seven years old (having been born on 21
September 1995); and (2) petitioner and respondent were no longer married
under the laws of the United States because of the divorce decree. The relevant
Philippine law on child custody for spouses separated in fact or in law (under the
second paragraph of Article 213 of the Family Code) is also undisputed: "no child
under seven years of age shall be separated from the mother . . . ." (This statutory
awarding of sole parental custody to the mother is mandatory, grounded on
sound policy consideration, subject only to a narrow exception not alleged to
obtain here. Clearly then, the Agreement's object to establish a post-divorce joint
custody regime between respondent and petitioner over their child under seven
years old contravenes Philippine law.
The Agreement is not only void ab initio for being contrary to law, it has also been
repudiated by the mother when she refused to allow joint custody by the father.
The Agreement would be valid if the spouses have not divorced or separated
because the law provides for joint parental authority when spouses live together.

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However, upon separation of the spouses, the mother takes sole custody under the
law if the child is below seven years old and any agreement to the contrary is void.
Thus, the law suspends the joint custody regime for (1) children under seven of (2)
separated or divorced spouses. Simply put, for a child within this age bracket (and
for commonsensical reasons), the law decides for the separated or divorced
parents how best to take care of the child and that is to give custody to the
separated mother. Indeed, the separated parents cannot contract away the
provision in the Family Code on the maternal custody of children below seven years
any more than they can privately agree that a mother who is unemployed, immoral,
habitually drunk, drug addict, insane or afflicted with a communicable disease will
have sole custody of a child under seven as these are reasons deemed compelling
to preclude the application of the exclusive maternal custody regime under the
second paragraph of Article 213.
It will not do to argue that the second paragraph of Article 213 of the Family Code
applies only to judicial custodial agreements based on its text that "No child under
seven years of age shall be separated from the mother, unless the court finds
compelling reasons to order otherwise." To limit this provision's enforceability to
court sanctioned agreements while placing private agreements beyond its reach is
to sanction a double standard in custody regulation of children under seven years
old of separated parents. This effectively empowers separated parents, by the
simple expedient of avoiding the courts, to subvert a legislative policy vesting to
the separated mother sole custody of her children under seven years of age "to
avoid a tragedy where a mother has seen her baby torn away from her." This
ignores the legislative basis that "[n]o man can sound the deep sorrows of a mother
who is deprived of her child of tender age."
It could very well be that Article 213's bias favoring one separated parent (mother)
over the other (father) encourages paternal neglect, presumes incapacity for joint
parental custody, robs the parents of custodial options, or hijacks decision-making
between the separated parents. However, these are objections which question the
law's wisdom not its validity or uniform enforceability. The forum to air and remedy
these grievances is the legislature, not this Court. At any rate, the rule's seeming
harshness or undesirability is tempered by ancillary agreements the separated
parents may wish to enter such as granting the father visitation and other
privileges. These arrangements are not inconsistent with the regime of sole
maternal custody under the second paragraph of Article 213 which merely grants
to the mother final authority on the care and custody of the minor under seven
years of age, in case of disagreements.
Further, the imposed custodial regime under the second paragraph of Article 213
is limited in duration, lasting only until the child's seventh year. From the eighth
year until the child's emancipation, the law gives the separated parents freedom,
subject to the usual contractual limitations, to agree on custody regimes they see
fit to adopt. Lastly, even supposing that petitioner and respondent are not barred
from entering into the Agreement for the joint custody of Stephanie, respondent
repudiated the Agreement by asserting sole custody over Stephanie.
Respondent's act effectively brought the parties back to ambit of the default
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custodial regime in the second paragraph of Article 213 of the Family Code vesting
on respondent sole custody of Stephanie.
Nor can petitioner rely on the divorce decree's alleged invalidity — not because the
Illinois court lacked jurisdiction or that the divorce decree violated Illinois law, but
because the divorce was obtained by his Filipino spouse — to support the
Agreement's enforceability. The argument that foreigners in this jurisdiction are
not bound by foreign divorce decrees is hardly novel. Van Dorn v. Romillo settled
the matter by holding that an alien spouse of a Filipino is bound by a divorce decree
obtained abroad. There, we dismissed the alien divorcee's Philippine suit for
accounting of alleged post-divorce conjugal property and rejected his submission
that the foreign divorce (obtained by the Filipino spouse) is not valid in this
jurisdiction in this wise:
There can be no question as to the validity of that Nevada divorce
in any of the States of the United States. The decree is binding on
private respondent as an American citizen. For instance, private
respondent cannot sue petitioner, as her husband, in any State of
the Union. What he is contending in this case is that the divorce is
not valid and binding in this jurisdiction, the same being contrary
to local law and public policy.
It is true that owing to the nationality principle embodied in Article
15 of the Civil Code, only Philippine nationals are covered by the
policy against absolute divorces the same being considered contrary
to our concept of public policy and morality. However, aliens may
obtain divorces abroad, which may be recognized in the
Philippines, provided they are valid according to their national law.
In this case, the divorce in Nevada released private respondent
from the marriage from the standards of American law, under
which divorce dissolves the marriage.
xxx xxx xxx
Thus, pursuant to his national law, private respondent is no longer
the husband of petitioner. He would have no standing to sue in the
case below as petitioner's husband entitled to exercise control over
conjugal assets. As he is bound by the Decision of his own country's
Court, which validly exercised jurisdiction over him, and whose
decision he does not repudiate, he is estopped by his own
representation before said Court from asserting his right over the
alleged conjugal property. (Emphasis supplied)
We reiterated Van Dorn in Pilapil v. Ibay-Somera to dismiss criminal complaints for
adultery filed by the alien divorcee (who obtained the foreign divorce decree)
against his former Filipino spouse because he no longer qualified as "offended
spouse" entitled to file the complaints under Philippine procedural rules. Thus, it
should be clear by now that a foreign divorce decree carries as much validity against

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the alien divorcee in this jurisdiction as it does in the jurisdiction of the alien's
nationality, irrespective of who obtained the divorce.

The Facts of the Case and Nature of Proceeding Justify Remand

Instead of ordering the dismissal of petitioner's suit, the logical end to its lack of
cause of action, we remand the case for the trial court to settle the question of
Stephanie's custody. Stephanie is now nearly 15 years old, thus removing the case
outside of the ambit of the mandatory maternal custody regime under Article 213
and bringing it within coverage of the default standard on child custody
proceedings — the best interest of the child. As the question of custody is already
before the trial court and the child's parents, by executing the Agreement, initially
showed inclination to share custody, it is in the interest of swift and efficient
rendition of justice to allow the parties to take advantage of the court's
jurisdiction, submit evidence on the custodial arrangement best serving
Stephanie's interest, and let the trial court render judgment. This disposition is
consistent with the settled doctrine that in child custody proceedings, equity may
be invoked to serve the child's best interest.
WHEREFORE, we REVERSE the Orders dated 1 March 2005 and 23 June 2005 of the
Regional Trial Court of Makati City, Branch 60. The case is REMANDED for further
proceedings consistent with this ruling. --- Herald Black Dacasin vs. Sharon Del
Mundo Dacasin, G.R. No. 168785, February 5, 2010

If child is over seven, his choice is paramount.

The mother and her children may not be enjoying a life of affluence that the father
promises if the child lives with him. It is enough, however, that she is earning a
decent living and is able to support her children according to her means. Even now
that the child is over seven years of age the mother's custody over him will have to
be upheld because the child categorically expressed preference to live with his
mother. --- Daisie T. David vs. CA and Ramon R. Villar, G.R. No. 111180, November
16, 1995

However, the court may find the chosen parent unfit.

If a child is over seven, the law allows him to make a choice. Once the choice has
been made, the burden lies on the court to investigate if the parent thus chosen
is unfit to assume parental authority and custodial responsibility. The child’s
choice is paramount but the court is not bound by that choice. In its discretion,
the court may find the chosen parent unfit and award custody to the other parent,
or even to a third party as it deems fit under the circumstances. --- Reynaldo
Espiritu vs. CA, G.R. No. 115640, March 15, 1995

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The right of the child to choose the parent he wishes to live with may be invoked
only if the parents are married to each other but are separated but not when they
are not married.
Section 6 of Rule 99 of the Rules of Court contemplates a situation in which the
parents of the minor are married to each other, but are separated either by virtue
of a decree of legal separation or because they are living separately de facto. ----
Joey D. Briones vs. Maricel P. Miguel, G.R. No. 156343, October 18, 2004

Moral dereliction is not a ground to deprive mother of custody of child below 7

years old.
The rationale for awarding the custody of children younger than seven years of age
to their mother was explained by the Code Commission: "The general rule is
recommended in order to avoid many a tragedy where a mother has seen her baby
torn away from her. No man can sound the deep sorrows of a mother who is
deprived of her child of tender age. The exception allowed by the rule has to be
for 'compelling reasons' for the good of the child; those cases must indeed be rare,
if the mother's heart is not to be unduly hurt. If she has erred, as in cases of
adultery, the penalty of imprisonment and the divorce decree (relative divorce) will
ordinarily be sufficient punishment for her. Moreover, moral dereliction will not
have any effect upon the baby who is as yet unable to understand her situation."--
-- Nerissa Z. Perez vs. Court of Appeals, G.R. No. 118870, March 29, 1996

Lesbianism is not a ground to deprive mother of custody pendente lite of her child
who is less than 7 years old.
In Espiritu v. CA, the Court took into account psychological and case study reports
on the child, whose feelings of insecurity and anxiety had been traced to strong
conflicts with the mother. To the psychologist the child revealed, among other
things, that the latter was disturbed upon seeing "her mother hugging and kissing
a 'bad' man who lived in their house and worked for her father." The Court held
that the "illicit or immoral activities of the mother had already caused the child
emotional disturbances, personality conflicts, and exposure to conflicting moral
values . . ."||

It is not enough for the husband to show merely that the wife was a lesbian. He
must also demonstrate that she carried on her purported relationship with a
person of the same sex in the presence of their son or under circumstances not
conducive to the child's proper moral development. ---- Joycelyn Pablo-Gualberto
vs. Crisanto Rafaelito Gualberto V, G.R. No. 154994, June 28, 2005

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The mother has sole parental authority over an illegitimate child.
An illegitimate child is under the sole parental authority of the mother. In the
exercise of that authority, she is entitled to keep the child in her company. The
Court will not deprive her of custody, absent any imperative cause showing her
unfitness to exercise such authority and care. --- Joey D. Briones vs. Maricel P.
Miguel, G.R. No. 156343, October 18, 2004

Recognition of an illegitimate child by the father is not a ground for awarding him
custody of said child.
Recognition of an illegitimate child by the father could be a ground for ordering the
latter to give support to, but not custody of, the child. The law explicitly confers to
the mother sole parental authority over an illegitimate child. It is only if she defaults
can the father assume custody and authority over the minor. ---Daisie T. David vs.
CA and Ramon R. Villar, G.R. No. 111180, November 16, 1995

Parental authority is inalienable and may not be transferred or renounced.

a) Parental authority and responsibility are inalienable and may not be
transferred or renounced except in cases authorized by law. The right attached to
parental authority, being purely personal, the law allows a waiver of parental
authority only in cases of adoption, guardianship and surrender to a children's
home or an orphan institution. When a parent entrusts the custody of a minor to
another, such as a friend or godfather, even in a document, what is given is merely
temporary custody and it does not constitute a renunciation of parental
authority. Even if a definite renunciation is manifest, the law still disallows the
same. ---- Leouel Santos, Sr. vs. CA, G.R. No. 113054, March 16, 1995
b) When the mother entrusted the custody of her minor child to the latter’s
paternal grandmother, what she gave to the latter was merely temporary custody
and it did not constitute abandonment or renunciation of parental authority. For
the right attached to parental authority, being purely personal, the law allows a
waiver of parental authority only in cases of adoption, guardianship and surrender
to a children's home or an orphan institution --- Teresita Sagala-Eslao vs. CA and
Maria Paz Cordero-Ouye, G.R. No. 116773, January 16, 1997

Custody of child may be awarded to the father to free her from her mother's
immoral influence.
It is in the best interest of the child to be freed from the obviously unwholesome,
not to say immoral, influence that the situation in which the mother has placed
herself, might create in the moral and social outlook of her daughter who is now in
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her formative and most impressionable stage in her life. The fact that the father
might have been tolerant about her stay with her mother in the past when she was
still too young to distinguish between right and wrong and have her own correct
impressions or notions about the unusual and peculiar relationship of her mother
with her own uncle-in-law, the husband of her sister's mother, is hardly of any
consequence now that she has reached a perilous stage in her life. In all
controversies regarding the custody of minors, the sole and foremost consideration
is the physical, education, social and moral welfare of the child concerned, taking
into account the respective resources and social and moral situations of the
contending parents. --- Miguel R. Unson III vs. Hon. Pedro C. Navarro and Edita N.
Araneta, G.R. No. L-52242, November 17, 1980

A parent’s love outweighs that of the grandparents’.

The law considers the natural love of a parent to outweigh that of the grandparents,
such that only when the parent present is shown to be unfit or unsuitable may the
grandparents exercise substitute parental authority. --- Leouel Santos, Sr. vs. CA,
G.R. No. 113054, March 16, 1995

Grounds for depriving a mother of custody and parental authority.

Only the most compelling of reasons, such as the mother's unfitness to exercise
sole parental authority, shall justify her deprivation of parental authority and the
award of custody to someone else. In the past, the following grounds have been
considered ample justification to deprive a mother of custody and parental
authority: neglect or abandonment, unemployment, immorality, habitual
drunkenness, drug addiction, maltreatment of the child, insanity, and affliction with
a communicable disease. --- Joey D. Briones vs. Maricel P. Miguel, G.R. No. 156343,
October 18, 2004 & Dinah B. Tonog vs. CA and Edgar V. Daguimol, G.R. No. 122906,
February 7, 2002

Adopting parents have the right to custody of the adopted child.

The minor has been legally adopted by petitioners with the full knowledge and
consent of respondents. A decree of adoption has the effect, among others, of
dissolving the authority vested in natural parents over the adopted child, except
where the adopting parent is the spouse of the natural parent of the adopted, in
which case, parental authority over the adopted shall be exercised jointly by both
spouses. The adopting parents have the right to the care and custody of the
adopted child and exercise parental authority and responsibility over him. --- In re:
Angelie Anne C. Cervantes vs. Gina Carreon Fajardo, G.R. No. 79955, Jan. 27, 1989

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Decisions on the custody of minor children are always open to adjustment.
Decisions even of the Supreme Court on the custody of minor children are always
open to adjustment as the circumstances relevant to the matter may demand in
the light of the inflexible criterion --- Miguel R. Unson III vs. Hon. Pedro C. Navarro
and Edita N. Araneta, G.R. No. L-52242, November 17, 1980

“Best interest” rule should not be implemented in derogation of the primary right
of the parents to exercise parental authority.
Underlying the policies and precepts in international conventions and the domestic
statutes with respect to children is the overriding principle that all actuations
should be in the best interests of the child. This is not, however, to be implemented
in derogation of the primary right of the parent or parents to exercise parental
authority over him. The rights of parents vis-a-vis that of their children are not
antithetical to each other, as in fact, they must be respected and harmonized to
the fullest extent possible. --- Herbert Cang vs. CA and Sps. Ronald and Ma. Clara
Clavano, G.R. No. 105308, September 25, 1998

Family Code determines fitness of a mother, who is no longer a Muslim, to take

custody of her children.
The standard in the determination of sufficiency of proof is not restricted to Muslim
laws. The Family Code shall be taken into consideration in deciding whether a non-
Muslim woman is worthy to have custody of her children. What determines her
capacity is the standard laid down by the Family Code now that she is not a
Muslim. Indeed, what determines the fitness of any parent is the ability to see to
the physical, educational, social and moral welfare of the children, and the ability
to give them a healthy environment as well as physical and financial support
taking into consideration the respective resources and social and moral situations
of the parents. ---- Sabrina Artadi Bondagjy vs. Fouzi Ali Bondagjy, G.R. No. 140817,
December 7, 2001
Father’s use of trickery to take his son away from in-laws is not a ground to
deprive him of custody.
The father’s employment of trickery in spiriting away his boy from his in-laws,
though unjustifiable, is not a ground to wrest custody from him.
Private respondents' demonstrated love and affection for the boy,
notwithstanding, the legitimate father is still preferred over the grandparents. The
latter's wealth is not a deciding factor, particularly because there is no proof that
at the present time, petitioner is in no position to support the boy. The fact that he
was unable to provide financial support for his minor son from birth up to over
three years when he took the boy from his in-laws without permission, should not
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be sufficient reason to strip him of his permanent right to the child's custody. While
petitioner's previous inattention is inexcusable and merits only the severest
criticism, it cannot be construed as abandonment. His appeal of the unfavorable
decision against him and his efforts to keep his only child in his custody may be
regarded as serious efforts to rectify his past misdeeds. To award him custody
would help enhance the bond between parent and son. It would also give the
father a chance to prove his love for his son and for the son to experience the
warmth and support which a father can give. His being a soldier is likewise no bar
to allowing him custody over the boy. So many men in uniform who are assigned
to different parts of the country in the service of the nation, are still the natural
guardians of their children. It is not just to deprive our soldiers of authority, care
and custody over their children merely because of the normal consequences of
their duties and assignments, such as temporary separation from their families.
Petitioner's employment of trickery in spiriting away his boy from his in-laws,
though unjustifiable, is likewise not a ground to wrest custody from him. Private
respondents' attachment to the young boy whom they have reared for the past
three years is understandable. Still and all, the law considers the natural love of a
parent to outweigh that of the grandparents, such that only when the parent
present is shown to be unfit or unsuitable may the grandparents exercise substitute
parental authority, a fact which has not been proven here. --- Leouel Santos, Sr. vs.
CA, G.R. No. 113054, March 16, 1995

The welfare of the child, not the suffering, pride, and other feelings of either
parent, is the paramount consideration.
The law or jurisprudence does not intend to downplay a father's sense of loss when
he is separated from his child: While the bonds between a mother and her small
child are special in nature, either parent, whether father or mother, is bound to
suffer agony and pain if deprived of custody. One cannot say that his or her
suffering is greater than that of the other parent. It is not so much the suffering,
pride, and other feelings of either parent but the welfare of the child which is the
paramount consideration. --- Dinah B. Tonog vs. CA and Edgar V. Daguimol, G.R.
No. 122906, February 7, 2002
Contending parents stand on equal footing in custody cases of minor children.
In controversies involving the care, custody and control of their minor children, the
contending parents stand on equal footing before the court who shall make the
selection according to the best interest of the child. The child if over seven years of
age may be permitted to choose which parent he/she prefers to live with, but the
court is not bound by such choice if the parent so chosen is unfit. In all cases, the
sole and foremost consideration is the physical, educational, social and moral
welfare of the child concerned, taking into account the respective resources as well
as social and moral situations of the opposing parents. ---- Reymond B. Laxamana
vs. Ma. Lourdes D. Laxamana, G.R. No. 144763, September 3, 2002

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Every child's rights should not be dependent solely on the whims and caprices of
his parents.
Legal provisions grant to every child rights which are not and should not be
dependent solely on the wishes, much less the whims and caprices, of his parents.
His welfare should not be subject to the parents' say-so or mutual agreement alone.
Where the parents are already separated in fact, the courts must step in to
determine in whose custody the child can better be assured the rights granted to
him by law. --- Alfonso Lacson vs. Carmen San Jose-Lacson and CA, G.R. No. L-
23482, August 30, 1968

ARTICLE 214. In case of death, absence or unsuitability of the parents, substitute

parental authority shall be exercised by the surviving grandparent. In case several
survive, the one designated by the court, taking into account the same
consideration mentioned in the preceding article, shall exercise the authority.
(19a, PD 603)

ARTICLE 215. No descendant shall be compelled, in a criminal case, to testify

against his parents and grandparents, except when such testimony is
indispensable in a crime against the descendant or by one parent against the
other. (315a)

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 CHAPTER 2
Substitute and Special Parental Authority

ARTICLE 216. In default of parents or a judicially appointed guardian, the

following persons shall exercise substitute parental authority over the child in the
order indicated:
(1) The surviving grandparent, as provided in Art. 214;
(2) The oldest brother or sister, over twenty-one years of age, unless unfit or
disqualified; and
(3) The child's actual custodian, over twenty-one years of age, unless unfit or
disqualified.
Whenever the appointment of a judicial guardian over the property of the child
becomes necessary, the same order of preference shall be observed. (349a, 351a,
354a)

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ARTICLE 217. In case of foundlings, abandoned, neglected or
abused children and other children similarly situated, parental
authority shall be entrusted in summary judicial proceedings to
heads of children's homes, orphanages and similar institutions
duly accredited by the proper government agency. (314a)

ARTICLE 218. The school, its administrators and teachers, or the

individual, entity or institution engaged in child care shall have

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 special parental authority and responsibility over the minor child
while under their supervision, instruction or custody.
Authority and responsibility shall apply to all authorized activities
whether inside or outside the premises of the school, entity or
institution. (349a)

ARTICLE 219. Those given the authority and responsibility under

the preceding Article shall be principally and solidarily liable for
damages caused by the acts or omissions of the unemancipated
minor. The parents, judicial guardians or the persons exercising
substitute parental authority over said minor shall be subsidiarily
liable.
The respective liabilities of those referred to in the preceding
paragraph shall not apply if it is proved that they exercised the
proper diligence required under the particular circumstances.

All other cases not covered by this and the preceding articles shall
be governed by the provisions of the Civil Code on quasi-delicts.
(n)

CHAPTER 3
Effect of Parental Authority Upon the Persons of the Children

ARTICLE 220. The parents and those exercising parental

authority shall have with respect to their unemancipated children
or wards the following rights and duties:
(1) To keep them in their company, to support, educate and
instruct them by right precept and good example, and to provide
for their upbringing in keeping with their means;
(2) To give them love and affection, advice and counsel,
companionship and understanding;
(3) To provide them with moral and spiritual guidance,
inculcate in them honesty, integrity, self-discipline, self-reliance,
industry and thrift, stimulate their interest in civic affairs, and
inspire in them compliance with the duties of citizenship;
(4) To enhance, protect, preserve and maintain their physical
and mental health at all times;
(5) To furnish them with good and wholesome educational
materials, supervise their activities, recreation and association
with others, protect them from bad company, and prevent them
from acquiring habits detrimental to their health, studies and
morals;

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 (6) To represent them in all matters affecting their interests;
(7) To demand from them respect and obedience;
(8) To impose discipline on them as may be required under
the circumstances; and
(9) To perform such other duties as are imposed by law upon
parents and guardians. (316a)

Right of parents to the custody of their children is but ancillary to the proper
discharge of parental duties.
In the continual evolution of legal institutions, the patria potestas has been
transformed from the jus vitae ac necis (right of life and death) of the Roman law,
under which the offspring was virtually a chattel of his parent, into a radically
different institution, due to the influence of Christian faith and doctrines. The
obligational aspect is now supreme. As pointed out by Puig Pena, now "there is no
power, but a task; no complex of rights (of parents) but a sum of duties; no
sovereignty, but a sacred trust for the welfare of the minor." As a result, the right
of parents to the company and custody of their children is but ancillary to the
proper discharge of parental duties to provide the children with adequate
support. education, moral, intellectual and civic training and development ----
Reynaldo Espiritu vs. CA, G.R. No. 115640, March 15, 1995 & Zenaida Medina vs.
Dra. Venancia L. Makabali, G.R. No. L-26953, March 28, 1969

Adoption creates a status closely assimilated to legitimate paternity and filiation

with corresponding rights and duties.
Adoption creates a status that is closely assimilated to legitimate paternity and
filiation with corresponding rights and duties that necessarily flow from adoption,
such as, but not necessarily confined to, the exercise of parental authority, use of
surname of the adopter by the adopted, as well as support and successional rights.
--- Republic of the Phil. vs. CA and Sps. James Anthony and Lenita Hughes, G.R. No.
100835, October 26, 1993

Right of parents to custody of minor children is an inherent one.

The right of parents to the custody of their minor children is one of the natural
rights incident to parenthood, a right supported by law and sound public policy.
The right is an inherent one, which is not created by the state or decisions of the
courts, but derives from the nature of the parental relationship. --- Teresita Sagala-
Eslao vs. CA and Maria Paz Cordero-Ouye, G.R. No. 116773, January 16, 1997

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Parents’ right to impose discipline on their children does not authorize them to
invade the latter's honor.
Although the Family Code recognizes the parents' rights and duties to "impose
discipline" on their unemancipated children; "supervise their activities, recreation
and association with others . . .; and prevent them from acquiring habits
detrimental to their . . . morals", it does not authorize them to force their offspring
to copulate with them under the mask of discipline, or invade their honor and
violate their dignity nor does it give them the license to ravish the product of their
marital union. --- People of the Phils. vs. David Silvano, G.R. No. 127356, June 29, 1999

ARTICLE 221. Parents and other persons exercising parental

authority shall be civilly liable for the injuries and damages
caused by the acts or omissions of their unemancipated children
living in their company and under their parental authority subject
to the appropriate defenses provided by law. (2180 (2)a and (4)a)

ARTICLE 222. The courts may appoint a guardian of the child's

property, or a guardian ad litem when the best interests of the
child so require. (317)

ARTICLE 223. The parents or, in their absence or incapacity, the

individual, entity or institution exercising parental authority, may
petition the proper court of the place where the child resides, for
an order providing for disciplinary measures over the child. The
child shall be entitled to the assistance of counsel, either of his
choice or appointed by the court, and a summary hearing shall be
conducted wherein the petitioner and the child shall be heard.
However, if in the same proceeding the court finds the petitioner
at fault, irrespective of the merits of the petition, or when the
circumstances so warrant, the court may also order the
deprivation or suspension of parental authority or adopt such
other measures as it may deem just and proper. (318a)

ARTICLE 224. The measures referred to in the preceding article

may include the commitment of the child for not more than thirty
days in entities or institutions engaged in child care or in
children's home duly accredited by the proper government
agency.
The parent exercising parental authority shall not interfere with
the care of the child whenever committed but shall provide for
his support. Upon proper petition or at its own instance, the court

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 may terminate the commitment of the child whenever just and
proper. (319a)

CHAPTER 4
Effect of Parental Authority Upon the Property of the Children

ARTICLE 225. The father and the mother shall jointly exercise
legal guardianship over the property of their unemancipated
common child without the necessity of a court appointment. In
case of disagreement, the father's decision shall prevail, unless
there is a judicial order to the contrary.
Where the market value of the property or the annual income of
the child exceeds P50,000, the parent concerned shall be required
to furnish a bond in such amount as the court may determine, but
not less than ten per centum (10%) of the value of the property
or annual income, to guarantee the performance of the
obligations prescribed for general guardians.
A verified petition for approval of the bond shall be filed in the
proper court of the place where the child resides, or, if the child
resides in a foreign country, in the proper court of the place where
the property or any part thereof is situated.
The petition shall be docketed as a summary special proceeding
in which all incidents and issues regarding the performance of the
obligations referred to in the second paragraph of this Article
shall be heard and resolved.

The ordinary rules on guardianship shall be merely suppletory

except when the child is under substitute parental authority, or
the guardian is a stranger, or a parent has remarried, in which
case the ordinary rules on guardianship shall apply. (320a)

ARTICLE 226. The property of the unemancipated child earned or

acquired with his work or industry or by onerous or gratuitous
title shall belong to the child in ownership and shall be devoted
exclusively to the latter's support and education, unless the title
or transfer provides otherwise.
The right of the parents over the fruits and income of the child's
property shall be limited primarily to the child's support and
secondarily to the collective daily needs of the family. (321a, 323a)
ARTICLE 227. If the parents entrust the management or
administration of any of their properties to an unemancipated
child, the net proceeds of such property shall belong to the
owner. The child shall be given a reasonable monthly allowance

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in an amount not less than that which the owner would have paid
if the administrator were a stranger, unless the owner grants the
entire proceeds to the child. In any case, the proceeds thus given
in whole or in part shall not be charged to the child's legitimate.
(322a)

CHAPTER 5
Suspension or Termination of Parental Authority

ARTICLE 228. Parental authority terminates permanently:

(1) Upon the death of the parents;
(2) Upon the death of the child; or
(3) Upon emancipation of the child. (327a)

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 ARTICLE 229. Unless subsequently revived by a final judgment,
parental authority also terminates:
(1) Upon adoption of the child;
(2) Upon appointment of a general guardian;
(3) Upon judicial declaration of abandonment of the child in a
case filed for the purpose;

(4) Upon final judgment of a competent court divesting the

party concerned of parental authority; or

(5) Upon judicial declaration of absence or incapacity of the

person exercising parental authority. (327a)

Abandonment, defined.
In its ordinary sense, the word "abandon" means to forsake entirely, to forsake or
renounce utterly. The dictionaries trace this word to the root idea of "putting under
a ban." The emphasis is on the finality and publicity with which a thing or body is
thus put in the control of another, hence, the meaning of giving up absolutely, with
intent never to resume or claim one's rights or interests. In reference to
abandonment of a child by his parent, the act of abandonment imports "any
conduct of the parent which evinces a settled purpose to forego all parental duties
and relinquish all parental claims to the child." It means "neglect or refusal to

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perform the natural and legal obligations of care and support which parents owe
their children."
Herbert Cang vs. CA and Sps. Ronald and Ma. Clara Clavano, G.R. No. 105308,
September 25, 1998

Physical absence, without financial and moral desertion, is not tantamount to

abandonment.
Physical estrangement alone, without financial and moral desertion, is not
tantamount to abandonment. While admittedly, the father was physically absent
as he was then in the United States, he was not remiss in his natural and legal
obligations of love, care and support for his children. His conduct did not manifest
a settled purpose to forego all parental duties and relinquish all parental claims
over his children as to constitute abandonment.--- Herbert Cang vs. CA and Sps.
Ronald and Ma. Clara Clavano, G.R. No. 105308, September 25, 1998

Inability to provide material comfort is not sufficient to deprive a personal of

parental authority.
Indeed, it would be against the spirit of the law if financial consideration were to
be the paramount consideration in deciding whether to deprive a person of
parental authority over his children. There should be a holistic approach to the
matter, taking into account the physical, emotional, psychological, mental, social
and spiritual needs of the child. The conclusion that the husband abandoned his
family needs more evidentiary support other than his inability to provide them the
material comfort that his admittedly affluent in-laws could provide. There should
be proof that he had so emotionally abandoned them that his children would not
miss his guidance and counsel if they were given to adopting parents.
Herbert Cang vs. CA and Sps. Ronald and Ma. Clara Clavano, G.R. No. 105308,
September 25, 1998

ARTICLE 230. Parental authority is suspended upon conviction of

the parent or the person exercising the same of a crime which
carries with it the penalty of civil interdiction. The authority is
automatically reinstated upon service of the penalty or upon
pardon or amnesty of the offender. (330a)

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ARTICLE 231. The court in an action filed for the purpose or in a
related case may also suspend parental authority if the parent or
the person exercising the same:

(1) Treats the child with excessive harshness or cruelty;

(2) Gives the child corrupting orders, counsel or example;
(3) Compels the child to beg; or
(4) Subjects the child or allows him to be subjected to acts of
lasciviousness.
The grounds enumerated above are deemed to include cases
which have resulted from culpable negligence of the parent or the
person exercising parental authority.
If the degree of seriousness so warrants, or the welfare of the
child so demands, the court shall deprive the guilty party of
parental authority or adopt such other measures as may be
proper under the circumstances.
The suspension or deprivation may be revoked and the parental
authority revived in a case filed for the purpose or in the same
proceeding if the court finds that the cause therefor has ceased
and will not be repeated. (332a)

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

ARTICLE 233. The person exercising substitute parental authority shall have
the same authority over the person of the child as the parents.
In no case shall the school administrator, teacher or individual engaged in child
care and exercising special parental authority, inflict corporal punishment upon
the child. (n)

TITLE X
Emancipation and Age of Majority

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ARTICLE 234. Emancipation takes place by the attainment of
majority. Unless otherwise provided, majority commences at the
age of eighteen years.

ARTICLE 235.

ARTICLE 236. Emancipation shall terminate parental authority

over the person and property of the child who shall then be
qualified and responsible for all acts of civil life, save the
exceptions established by existing laws in special cases.

Contracting marriage shall require parental consent until the age

of twenty-one.

Nothing in this Code shall be construed to derogate from the duty

or responsibility of parents and guardians for children and wards
below twenty-one years of age mentioned in the second and third
paragraphs of Article 2180 of the Civil Code.

TITLE XI
Summary Judicial Proceedings in the Family Law
CHAPTER 1

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 ARTICLE 238. Until modified by the Supreme Court, the
procedural rules in this Title shall apply in all cases provided for in
this Code requiring summary court proceedings. Such cases shall
be decided in an expeditious manner without regard to technical
rules. (n)

CHAPTER 2
Separation in Fact Between Husband and Wife

ARTICLE 239. When a husband and wife are separated in fact, or one has
abandoned the other and one of them seeks judicial authorization for a
transaction where the consent of the other spouse is required by law but such
consent is withheld or cannot be obtained, a verified petition may be filed in court
alleging the foregoing facts.
The petition shall attach the proposed deed, if any, embodying the transaction,
and, if none, shall describe in detail the said transaction and state the reason why
the required consent thereto cannot be secured. In any case, the final deed duly
executed by the parties shall be submitted to and approved by the court. (n)

ARTICLE 240. Claims for damages by either spouse, except costs of the
proceedings, may be litigated only in a separate action. (n)

ARTICLE 241. Jurisdiction over the petition shall, upon proof of notice to the
other spouse, be exercised by the proper court authorized to hear family cases, if
one exists, or in the regional trial court or its equivalent, sitting in the place where
either of the spouses resides. (n)

ARTICLE 242. Upon the filing of the petition, the court shall notify the other
spouse, whose consent to the transaction is required, of said petition, ordering
said spouse to show cause why the petition should not be granted, on or before
the date set in said notice for the initial conference. The notice shall be
accompanied by a copy of the petition and shall be served at the last known
address of the spouse concerned. (n)

ARTICLE 243. A preliminary conference shall be conducted by the judge

personally without the parties being assisted by counsel. After the initial
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conference, if the court deems it useful, the parties may be assisted by counsel at
the succeeding conferences and hearings. (n)

ARTICLE 244. In case of non-appearance of the spouse whose consent is

sought, the court shall inquire into the reasons for his or her failure to appear,
and shall require such appearance, if possible. (n)
ARTICLE 245. If, despite all efforts, the attendance of the non-consenting
spouse is not secured, the court may proceed ex parte and render judgment as
the facts and circumstances may warrant. In any case, the judge shall endeavor
to protect the interests of the non-appearing spouse. (n)

ARTICLE 246. If the petition is not resolved at the initial conference, said
petition shall be decided in a summary hearing on the basis of affidavits,
documentary evidence or oral testimonies at the sound discretion of the court. If
testimony is needed, the court shall specify the witnesses to be heard and the
subject-matter of their testimonies, directing the parties to present said
witnesses. (n)

ARTICLE 247. The judgment of the court shall be immediately final and
executory. (n)

No right to appeal is granted to any party, including the State, in judgments

rendered in summary judicial proceedings.
An appellate court acquires no jurisdiction to review a judgment which, by express
provision of law, is immediately final and executory. As had been ruled, the right to
appeal is not a natural right nor is it a part of due process, for it is merely a statutory
privilege. Since, by express mandate of Article 247 of the Family Code, all
judgments rendered in summary judicial proceedings in Family Law are
"immediately final and executory", the right to appeal was not granted to any of
the parties therein. The Republic of the Philippines, as oppositor in the petition
for declaration of presumptive death, should not be treated differently. It had no
right to appeal the RTC decision.
In Summary Judicial Proceedings under the Family Code, there is no reglementary
period within which to perfect an appeal, precisely because judgments rendered
thereunder, by express provision of Section 247, Family Code, supra, are
"immediately final and executory." It was erroneous, therefore, on the part of the
RTC to give due course to the Republic's appeal and order the transmittal of the
entire records of the case to the Court of Appeals. --- --- Republic of the Phil. vs.
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Gloria Bermudez-Lorino, G.R. No. 160258, January 19, 2005 & Republic of the Phil.
vs. Robert P. Narceda, G.R. No. 182760, April 10, 2013

ARTICLE 248. The petition for judicial authority to administer or encumber

specific separate property of the abandoning spouse and to use the fruits or
proceeds thereof for the support of the family shall also be governed by these
rules. (n)

CHAPTER 3
Incidents Involving Parental Authority

ARTICLE 249. Petitions filed under Articles 223, 225 and 235 of this Code
involving parental authority shall be verified. (n)

ARTICLE 250. Such petitions shall be filed in the proper court of the place
where the child resides. (n)

ARTICLE 251. Upon the filing of the petition, the court shall notify the
parents or, in their absence or incapacity, the individuals, entities or institutions
exercising parental authority over the child. (n)

ARTICLE 252. The rules in Chapter 2 hereof shall also govern summary
proceedings under this Chapter insofar as they are applicable. (n)

CHAPTER 4
Other Matters Subject to Summary Proceedings

ARTICLE 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise
govern summary proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217,
insofar as they are applicable. (n)

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 TITLE XII
Final Provisions
ARTICLE 254. Titles III, IV, V, VI, VII, VIII, IX, XI, and XV of Book 1 of Republic
Act No. 386, otherwise known as the Civil Code of the Philippines, as amended,
and Articles 17, 18, 19, 27, 28, 29, 30, 31, 39, 40, 41 and 42 of Presidential Decree
No. 603, otherwise known as the Child and Youth Welfare Code, as amended, and
all laws, decrees, executive orders, proclamations, rules and regulations, or parts
thereof, inconsistent herewith are hereby repealed. (n)

ARTICLE 255. If any provision of this Code is held invalid, all the other
provisions not affected thereby shall remain valid. (n)

ARTICLE 256. 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. (n)

Example of Retroactivity of the Family Code:

a. The Provision of the Family Code on the property regime governing bigamous
marriages or adulterous relationship (Article 148, FC) governs even if the
relationship started before the effectivity of the Family Code --- Atienza vs.
De Castro, G.R. No. 169698, November 29, 2006; Francisco vs. Master Iron
Works & Const. Co., G.R. No. 151967, February 16, 2005; Suguid vs. CA, G.R.
No. 150611, June 10, 2003; Tumlos vs. Sps. Fernande, G.R. No. 137650, April
12, 2000.

b. The liberalized provisions of the Family Code on proving legitimate filiation

may be applied retroactively --- Tecson vs. Comelec, 424 SCRA 277 (2004).

c. Under the Family Code, the illegitimate child is now also allowed to establish
his illegitimate filiation by “any other means allowed by the Rules of Court
and special laws.” This provision may be applied retroactively --- Uyguangco
vs. CA, G.R. NO. 76873, October 26, 1989; Jison vs. CA, G.R. No. 124853,
February 24, 1998.

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Example of Non-Retroactivity of the Family Code:

a. Under the Civil Code, an action to establish illegitimate filiation may be

brought during the lifetime of the parent, except when the child is a minor
at the time of the death of the parent. Under the Family Code such exception
has been removed (if the basis of the action is secondary evidence). Such
removal of exception, however, does apply to the prejudice of illegitimate
children born before the family code --- Bernabe vs. Alejo, G.R. No. 140500,
January 21, 2002; Aruego vs. CA, G.R. No. 112193, March 13, 1996; and
Tayag vs. CA., 209 SCRA 665 (1992).

b. Sale of conjugal asset by one spouse without the consent of the other spouse
would be voidable under the Civil Code but void under the Family Code. If
the sale took place before the Family Code, then it is considered merely
voidable, and is thus valid until attacked within the prescriptive period. It
cannot be considered void (which may be attacked any time under the Family
Code, as application of the latter will be prejudicial to vested rights ---
Villaranda vs. Villaranda, G.R. No. 153447, February 23, 2004l Ainza vs.
Spouses Padua, G.R. No. 165420, June 30, 2005.

While it is true that the personal stakes of each spouse in their conjugal assets are
inchoate or unclear prior to the liquidation of the conjugal partnership of gains and,
therefore, none of them can be said to have acquired vested rights in specific
assets, it is evident that Article 256 of the Family Code does not intend to reach
back and automatically convert into absolute community of property relation all
conjugal partnerships of gains that existed before 1988 excepting only those with
prenuptial agreements. --- Efren Pana vs. Heirs of Jose Juanite, Sr., et al., G.R. No.
164201, December 10, 2012

[T]he petitioner's claim of vested right [by virtue of Article 256 of the Family Code
which prohibits retroactive application of the Family Code when it will prejudice a
person's vested right] is not one which is written on stone. A vested right is one
whose existence, effectivity and extent do not depend upon events foreign to the
will of the holder, or to the exercise of which no obstacle exists, and which is
immediate and perfect in itself and not dependent upon a contingency. The term
"vested right" expresses the concept of present fixed interest which, in right
reason and natural justice, should be protected against arbitrary State action, or
an innately just and imperative right which enlightened free society, sensitive to
inherent and irrefragable individual rights, cannot deny. To be vested, a right
must have become a title — legal or equitable — to the present or future

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enjoyment of property. The concept of "vested right" is a consequence of the
constitutional guaranty of due process that expresses a present fixed interest
which in right reason and natural justice is protected against arbitrary state
action; it includes not only legal or equitable title to the enforcement of a demand
but also exemptions from new obligations created after the right has become
vested. Rights are considered vested when the right to enjoyment is a present
interest, absolute, unconditional, and perfect or fixed and irrefutable. --- Brigido
B. Quiao vs. Rita C. Quiao, et al., G.R. No. 176556, July 4, 2012 citing Go, Jr. v.
Court of Appeals, G.R. No. 172027, July 29, 2010

[W]hile one may not be deprived of his "vested right," he may lose the same if there
is due process and such deprivation is founded in law and jurisprudence. . . . [T]he
alleged deprivation of the petitioner's "vested right" is one founded, not only in the
provisions of the Family Code, but in Article 176 of the Civil Code. This provision is
like Articles 63 and 129 of the Family Code on the forfeiture of the guilty spouse's
share in the conjugal partnership profits. . . . [T]he petitioner's claim of a vested
right has no basis considering that even under Article 176 of the Civil Code, his share
of the conjugal partnership profits may be forfeited if he is the guilty party in a legal
separation case. Thus, after trial and after the petitioner was given the chance to
present his evidence, the petitioner's vested right claim may in fact be set aside
under the Civil Code since the trial court found him the guilty party. --- Brigido B.
Quiao vs. Rita C. Quiao, et al., G.R. No. 176556, July 4, 2012 citing ABAKADA Guro
Party List Officer Samson S. Alcantara, et al. vs. The Hon. Executive Secretary
Eduardo R. Ermita, G.R. No. 168056, October 18, 2005

Francisco vs. CA (299 SCRA 188)

Re: Article 105 (conjugal partnership) in relation to Article 256 (retroactive

application of the Family Code). Properties acquired by husband thru inheritance or
thru purchase during first marriage continue to be exclusive property of husband
who contracted second marriage before effectivity of the Family Code on August 3,
1988, pursuant to the vested rights acquired by husband under Article 256, FC. The
fact that title to land is “Eusebio Francisco married to Teresita Francisco” is merely
descriptive of civil status of Eusebio since land had been acquired prior to registration.

ARTICLE 257. This Code shall take effect one year after the completion of its
publication in a newspaper of general circulation, as certified by the Executive
Secretary, Office of the President.

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Publication shall likewise be made in the Official Gazette. (n)

DONE in the City of Manila, this 6th day of July, in the year of Our Lord, Nineteen
Hundred and Eighty-Seven.

Effectivity: August 3, 1988

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The correction or change of entry in the civil registry relative to clerical or
typographical errors can now be made through administrative proceedings and
without the need for judicial order.
The determination of a person's sex appearing in his birth certificate is a legal issue
and the court must look to the statutes. In this connection, Article 412 of the Civil
Code provides: No entry in the civil register shall be changed or corrected without
a judicial order. Together with Article 376 of the Civil Code, this provision was
amended by RA 9048 in so far as clerical or typographical errors are involved. The
correction or change of such matters can now be made through administrative
proceedings and without the need for a judicial order. In effect, RA 9048 removed
from the ambit of Rule 108 of the Rules of Court the correction of such errors. Rule
108 now applies only to substantial changes and corrections in entries in the civil
register. --- Rommel Jacinto Dantes Silverio vs. Republic of the Phil., G.R. No.
174689, October 19, 2007

The local civil registrar has primary, not exclusive, jurisdiction over such petitions
for correction of clerical errors and change of first name or nickname.
Indeed, there was no intent on the part of the lawmakers to remove the authority
of the trial courts to make judicial corrections of entries in the civil registry. It can
thus be concluded that the local civil registrar has primary, not exclusive,
jurisdiction over such petitions for correction of clerical errors and change of first
name or nickname, with R.A. No. 9048 prescribing the procedure that the
petitioner and local civil registrar should follow. --- Re: Final Report on the Judicial
Audit Conducted at the RTC, Br. 67, Paniqui, Tarlac, A.M. No. 06-7-414-RTC,
October 19, 2007

The Rules of Court provides for requirements before a judgment may be

annotated in the civil registry.
The Rules of Court supplements Article 412 of the Civil Code by specifically
providing for a special remedial proceeding by which entries in the civil registry may
be judicially cancelled or corrected. Rule 108 of the Rules of Court sets in detail the
jurisdictional and procedural requirements that must be complied with before a
judgment, authorizing the cancellation or correction, may be annotated in the civil
registry. It also requires, among others, that the verified petition must be filed
with the RTC of the province where the corresponding civil registry is located; that
the civil registrar and all persons who have or claim any interest must be made
parties to the proceedings; and that the time and place for hearing must be
published in a newspaper of general circulation. --- Gerbert R. Corpuz vs. Daisylyn
Tirol Sto. Tomas, et al., G.R. No. 186571, August 11, 2010

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