PERSONS AND FAMILY RELATIONS
COMPLETE REVIEWER
Background on the Philosophy of the Civil Code:
“The Philosophy of the Civil Code”
 Tasks of the investigator of the Philosophy of Law:
1. Trace the origin of law to its sources in human nature;
2. Connect the law with the society that evolved and the
circumstances of the time in which it originated;
3. Relate the importance of the law under the influence
of economic, social and other conditions;
4. Point out the basic elements of the law;
5. Distinguish law from ethics.
Our Civil Code was founded on the laws of Spain which was
based largely on Roman Law (Institutes of Justinian).
Corpus Juris Civilis- accumulation of old Roman Laws as
modified by early Christians.
 Ancient Roman Law was the combination of tribal
customs, royal edicts, and priestly commands.
 Ancient Romans fashioned their laws according to
their lifestyle, which at that time was greatly
influenced by religion.
Lex Jus- Command and Justice
 Relationship was not only between men but between
God and men. Crimes, at that time, were considered
a disturbance of this relation.
 Laws were designed to maintain and restore the peace
of the gods (pax decorum), peace between men and
peace between god and men.
Theory of Injury and Liability- Injuring one’s neighbor was
discouraged because such act would prompt gods to strike back
at the ‘evil doer thereby causing the imperil of the entire
community.
 It is only when law becomes distinguishable from religion
that its philosophy becomes discernible.
Philosophy of Private Roman Law
Bonus Pater Familias- Literally meaning “good father of the
family,” this was considered a standard by which one should
pattern his conduct.
- Roman law was typically, a law without ethics.
Law of Contracts and Bailments- Someone who broke his oath
is considered a danger to society and is in danger of mortal
peril.
-Roman laws of property were extremely individualistic.
-Romans only recognized two forms of association—societas
and corporation.
Two Principles to Moderate the Extreme Individualism of
Roman Law
Humanitas- Considers kindness, goodness, sympathy,
consideration for others.
 In contrast to pater familias where heads of the family
are allowed to kill his children and wife.
 Spanish Precedents of Philippine Law
Visigoths- Early settlers in Spain that were overrun by Moors
who converted the former into Christianity.
Moors- Promulgated non-barbaric laws
Alaric, Leader of the Goths- Promulgated Code of Alaric which
introduced barbaric tribal customs to Roman Law.
Fuerzo Juzgo- First great code of Spain combining Roman,
Germanic and Religious edicts.
Siete Partidas- Written by Fernando III and Alfonso X, it
contained laws based on Spanish Visigoths but patterned after
Institutes of Justinian.
 Contained 7 codes pertaining to different aspects of
law.
 First book contained natural laws, usages and custom
and administrative laws.
 Second book contained administrative laws.
 Third book contained court rules, land ownership and
possession laws and servitude laws.
 Fourth book contained laws on persons and family
relations.
 Fifth book contained laws on obligations and
contracts.
 Sixth book contains laws on succession, intestacy,
heirship and guardianship.
 Seventh book contained penal laws.
Medieval Philosophy and its Influence
St. Augustine- The state is a kingdom of the Impious
St. Thomas Aquinas- Wrote the Summa Theologica
 Lex Externa- laws based on divine reason which
governs the world.
 Lex Naturalis- Natural laws which are made known
through reason.
 Lex Humana- Positive laws which are man-made
applications of natural laws.
Penal Principles
 Justicia Generalis- obligation of restitution
 Justicia Particularis
o Justicia commutative- obligation of
restitution
o Justicia distribution- distributive justice
applying justice in geometric proportions.
Ordenamiento Alcala- spiritual aspects of contracts
Leyes de Toro- Written by the Spanish Cortes in 1502
Nueva Recopilacion- compilation of all Spanish Laws made in
1567
Novisisima Recopilacion- another compilation of Spanish Laws.
1805- Civil Code became a model
-Four-book compilation of the Civil Code was promulgated.
 Book One: Persons and Family Relations
 Book Two: Property, Ownership and Modification
 Book Three: Modes of Acquiring Ownership
 Book Four: Obligations and Contracts
American Influence on the Civil Code
 INDIVIDUALISM became a pervading theme during
the forging of the new Civil Code.
- Bill of Rights
- Seeking redress for grievances
Intersection of Modern Constitutional Developments and
Traditional Family Law
Constitutional Provisions
Article II, Section 12: The State recognizes the sanctity of
family life and shall protect and strengthen the family as a basic
autonomous social institution. It shall equally protect the life of
the mother and the life of the unborn from conception. The
natural and primary right and duty of parents in the rearing of
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the youth for civic efficiency and the development of moral
character shall receive support of the government.
Article II, Section 14: The State recognizes the role of women
in nation building and shall ensure the fundamental equality
before the law of women and men.
Article III, Section 1: No person shall be deprived of life, liberty
or property without due process of law, nor shall any person
be denied the equal protection of the laws.
Article XV, 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.
Article XV, Section 2: Marriage, as an inviolable social
institution, is the foundation of the family and shall be
protected by the state.
Griswold vs. Connecticut
Facts: Griswold was executive director of the Planned Parenthood League while
Buxton, his co-plaintiff was a licensed physician who served as director of the said
league. Both were convicted as accessories by virtue of a Connecticut birth
control law which bars them from giving information, instruction and medical
advice for contraception, to married persons. A married woman was examined in
the league’s headquarters along with her husband and was given a prescription for
contraception.
Held: The Connecticut Statute which forbids contraceptives abridges the right to
marital privacy without due process of the law. The state interest protected by
the statute, which is to prevent extra-marital relations is carried out is a manner
so sweeping as to penalize the inherent intimacies of couples who have the right
to plan their family.
Eisenstadt vs. Baird
Facts: William Baird was tried for exhibiting contraceptives while delivering a
lecture and for giving a young woman contraceptives. A Massachusetts law only
allows the sale of contraceptives with prescription from a physician or a
pharmacist for married couples.
Held: The statute violates the equal protection clause of the 14 th amendment in that
it discriminates between married and unmarried couples. The means by which the
State Interest is protected is not rationally adequate whether the interest be
prevention of pre-marital sex or health protection. For one thing, the measure does
not prevent extra-marital relations for another, not all contraceptives are
considered dangerous. Lastly, the discrimination makes it seem as though pre-
marital conception and sexually transmitted disease is punishment for pre-marital
sex. This punishment is then handed out without due process of the law.
Civil Personality
 Concepts and Classes of Persons
Person- any being that can be subject of legal relations.
Classes of Persons:
 Natural Persons- Human beings
 Juridical Persons- entities formed by the association
of men.
Personality- aptitude of becoming subject of, active or passive,
juridical relations
Status of Persons- Legal condition or class which one belongs
in society
- It is the legal or the juridical position of the individual
in society, or with regard to the rest of the community
- It is determined by a series of personal qualities,
which respectively carry with them certain rights and
obligations.
- A person’s status serves to determine the nature and
number of rights and obligations.
Kinds of Status
- Political or Civil, depending on whether he is
considered in the light of public law or private law.
- Rights and obligations in connection with suffrage
refer to Political status while those arising from family
relations refer to Civil status.
Civil Status
- Status as a member of society (i.e. resident or non-
resident)
- Status as a member of a family
- Status with respect to the person himself (i.e. age,
mental condition, sex)
- Profession cannot be considered status because the
qualities which create a status should be inherent in
the person himself.
Characteristics of Status- the status of a person is outside the
commerce of man hence:
- It is inalienable in that it cannot be transferred to
another;
- It is imprescriptible in that it cannot be imposed on a
person;
- It cannot be the subject of compromise;
- It cannot be renounced;
- It cannot be exercised by creditors
CC Article 37: Juridical Capacity is the fitness to be the subject
of legal relations. It is inherent in every natural person and is
lost only through death.
Capacity to act which is the power to do acts that have legal
effect, is acquired and may be lost.
Juridical Capacity- legal capacity
Capacity to Act- aptitude for the exercise of rights which is
conditional and variable, requiring intelligence and will.
CC Article 40: Birth determines personality.
The conceived shall be considered born for all purposes that
are favorable to it provided that it be born later.
Birth- removal of the fetus from the mother’s womb
Conceived Child- can be given inheritance by will or donations
CC Article 41: The fetus is considered born if it is alive at the
time it is completely delivered from the mother’s womb.
For premature birth of less than seven months, it is considered
born if it survives for at least 24 hours after its delivery.
Separation- cutting of the umbilical cord
Test of life- complete respiration or in the case of a deceased
child, the lungs should float in water.
Viability- the child’s ability to live which is presumed if it
survives separation from the mother
Geluz vs. Court of Appeals
Facts: Nita Villanueva has gone through abortion thrice. Oscar Lazo sued Geluz the
abortionist for pecuniary damages which was granted by the Court of Appeals and
then appealed by Geluz in the Supreme Court.
Held: An unborn child has no juridical capacity and as such, the parents cannot sue
for pecuniary damages on its behalf. The child not having been born, the parent’s
are not in the position to sue on its behalf because they cannot be considered
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parents if there is no child to speak of. Moral damages cannot be granted because
of the indifference of the father.
CC: Article 42: Civil personality is extinguished by death. The
effect of death upon the rights and obligations of the deceased
shall be determined by law, by contract or by will.
-For certain purposes, the personality is deemed to continue in
the estate of the deceased which has a legal personality
independent of the heirs.
People vs. Tirol
Facts: Ciriaco Baldesco and Bonifacio Tirol were among the fourteen who murdered
7 members of the family of Manibpol Kosain. They were convicted of 7 murders and
2 frustrated murders as Manibpol, the father and his daughter, Undang, survived.
In the course of the appeal, while awaiting the final sentence, Baldesco died in
prison.
Held: Baldesco’s civil and criminal liabilities are extinguished by his death however,
indemnities shall be paid for through his estate.
CC Article 43: If there is doubt between two or more persons
called to succeed each other, as to which of them died first, the
one who alleges the death of one prior to another shall have
the burden of proof.
If no proof is available then it shall be presumed that they died
at the same time.
Note: There is an issue of succession and not just survivorship.
-Rule 123, section 69, paragraph ii:
If two or more persons die in a calamity and it cannot
be shown who died first and there are no circumstances by
which it can be inferred, survivorship is presumed from the
probabilities resulting from the strength and age of sexes.
1. <15 years, the older is presumed to have survived
2. > 60 years, the younger is presumed to have survived
3. <15 and >60, the younger is presumed to have
survived
4. >15, <60 for both; male is presumed to have survived
if sexes are the same, then the older one.
5. <15 or > 60 and >15 ,<60, the younger is presumed
to have survived
Joaquin vs. Navarro
Facts: During the Liberation of Manila, Joaquin Navarro Sr., his wife Angela Joaquin,
his three daughters, Pilar, Conception and Natividad and Joaquin Navarro Jr
together with his wife Adela Conde and friend Francisco Lopez, sought refuge
inside German Club. The three daughters were instantly killed. Joaquin Sr., Joaquin
Jr., with his wife and friend, fled the place leaving Angela Joaquin in the German
Club. Immediately after leaving the place, as attested by Francisco Lopez, Joaquin
Jr. was shot in the head. Minutes later, German Club collapsed presumably killing
Angela Joaquin inside. Days later, Joaquin Sr. died in a confrontation.
The victims were survived by Ramon Joaquin, natural child of Angela Joaquin by
her first marriage and Antonio C. Navarro, and son of Joaquin Navarro by his first
marriage.
The Court of Appeals invoked the statutory provision on the presumption of
survivorship.
Held: The statutory provision cannot be invoked because there are evidences as
attested to by Francisco Lopez, from which it can be inferred that Angela Joaquin
survived Joaquin Navarro Jr. before having died herself.
CC Article 44: The following are juridical persons:
1. The State and its Political Subdivisions
2. Public corporations, institutions and entities which are
created by law
3. Private corporations, partnerships and associations to
which the law grants juridicalpersonality.
-Corporation is an artificial being created by law and as such,
enjoys certain rights and privileges that can be afforded to it.
CC Article 45: Juridical Persons such as the state and public
corporations are governed by laws recognizing them.
Private corporations are governed by laws of general
application on the subject.
-Corporations are governed by its charter and the Corporation
Law
-Private Partnerships are governed by its articles of association
and their contract.
CC Article 46: Juridical Persons may acquire and possess
property, incur obligations and liability or criminal actions in
conformity with laws and regulations of the organization.
- Juridical capacity is extinguished upon dissolution of
the corporation, association or partnership.
CC Article 47: Properties and assets of dissolved corporations
or other entities shall be disposed of in pursuance to the law or
the charter creating them. If nothing is specifically written,
then it shall be applied for the benefit of the region, province
or municipality which it derived principal benefits from.
 Capacity to Act and Restrictions Thereon
Presumption of Capacity
Standard Oil Co. vs. Arenas
Facts: Juan Codina Arenas, Francisco Lara del Pino (principals) and Alipio Lacso,
Vincente Sixto and Siy Ho (sureties) assumed obligations to pay jointly and
severally to Standard Oil Co. the sum of P3,305.76 three months from the execution
of the bond, with 1% interest per month.
Arenas and Lara del Pino failed to pay the bond and, as sureties, Vincente Sixto
along with Siy Ho and Alipio Lacso are compelled to pay the said amount. The court
declared Vincente Sixto in default for having failed to show up at the trial
concerning the said bond and was ordered to pay the defendants the amoun. Elisa
Torres de Villanueva appeared in court alleging that her husband, Sixto Villanueva,
had been declared permanentlyinsane by the Court of First Instance of Manila and
wishes for the exemption of the husband from paying the said bond as he is said to
be suffering from monomania of wealth.
Held: Burden of proof for insanity lies on the person who alleges it. There were no
evidence to prove insanity, save from the declaration of the Court of First
Instance. There were, in fact, a preponderance of evidence stating otherwise,
among these are the lack of restriction on the husband (the husband is not
habitually insane), the apparent sound mind of Villanueva during the execution of
the contract (he understood the nature of the bond), and he has made contracts
prior to that (the husband had not been insane prior to the execution of the bond).
Restrictions
CC Article 6: Rights may be waived unless it is contrary to law,
public order, public policy, morals or good customs or
prejudicial to a third person’s rights.
-Kinds of Rights:
1. Rights of Personality-rights which protect the human
personality.
2. Family Rights-rights of a person as a member of a family.
3. Patrimonial Rights- Rights referring to ownership, etc.
CC Article 38: Minority, imbecility, the state of being deaf
mute, prodigality and civil interdiction are mere restrictions on
capacity to act, and do not exempt the incapacitated person
from certain obligations.
Minority- by virtue of RA 6809, the age of majority has been
lowered to 18 from 21.
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Insanity or Imbecility- includes various forms of mental
diseases. Some may sometimes only be mentally deficient.
Deaf-mute- No longer to be presumed an idiot and is now
considered capable of entering into contracts if is shown to
have sufficient mental capacity.
Prodigality- characterized by excessive drinking, gambling,
idleness or debauchery
CC Article 39: The following circumstances limit a persons
capacity to act: Insanity, imbecility, being deaf-mute, civil
interdiction, prodigality, family relations, alienage, absence,
insolvency and trusteeship.
Capacity to act is not limited on account of religious belief or
political opinion.
A married woman, eighteen years of age are qualified for all
aspects of civil life except if specified otherwise.
Note: We always presume what is normal. Otherwise, our daily
lives will be greatly affected.
A. Minority
CC Article 1327: Unemancipated minors, insane or demented
persons and deaf-mutes incapable of writing, cannot give
consent to a contract.
CC Article 1390 (1): In cases where one of the parties is
incapable of giving consent to a contract, the contract becomes
voidable* or annullable even though there was no damage to
the contracting party.
CC Article 1403 (3): A contract where both parties are
incapable of giving consent is unenforceable** unless ratified.
*A voidable contract is one whose validity can be disputed in
court as opposed to
**an unenforceable contract which is valid or binding only
between the two parties but is likewise unenforceable in court.
CC Article 1397: Persons who are capable cannot allege the
incapacity of those with whom they contracted.
CC Article 1399: An incapacitated is not obliged to make
restitution except in so far as he has benefited from the
contract.
CC Article 1426: There is no right to demand a thing or price
from a minor who, because of lack of consent from the parent
or guardian, upon the annulment of the contract, returns the
thing or price he received.
CC Article 1427: When a minor pays according to a contract,
without the consent of his parent or guardian, the sum of
money delivered cannot be returned to the minor because the
other party is expected to have spent it in good faith.
 Effect on Contracts
Mercado vs. Espiritu-
Facts: The annulment of a deed of sale was sought on the ground that two of the
four parties in the deed were minors when the deed was executed. In the deed of
sale the minors stated they were of legal age when they made the manifestation
in front of the notary public and then signed it.
Held: Contracts signed by minors who allege they are of legal age and in fact,
appear to be so, is valid and binding. They are therefore estopped* from alleging
otherwise.
*barred from disputing the genuineness of the deed of sale, as
in the case of Mercado vs. Espiritu.
Bambalan vs. Maramba and Muerong
Facts: Isidro Bambalan was the heir of a piece of land owned by Vicente Lagera,
deceased. Bambalan was forced by Maramba and Muerong to whom the mother
owed P150, to sign a deed of sale as his mother will otherwise be put in prison.
Bambalan signed the contract and both Muerong and Maramba knew of his age as
they were the ones who procured the cedula necessary to certify the contract.
Held: Plaintiff’s age was known to the contracting parties as such, the contract is
not valid and the right of Bambalan as a minor can be enforced.
CC Article 1489: All persons authorized by the Code can enter
into a contract of sale. When necessaries* are sold and
delivered to a minor or a person without capacity, he must pay
a reasonable price therefore.
*Those which are indispensable for sustenance.
Braganza vs. Villa Abrille
Facts: Rosario Braganza and her sons, Guillermo and Rodolfo, signed a
promissory note indicating that they will pay a loan given by a certain
Fernando Villa Abrille. The loan amounted to P70,000 in Japanese currencies
and, according to the promissory note, Braganza will pay P10,000 in legal
currencies. The two sons were minors at the time the contract was signed.
Held: The contract, insofar as the minors were concerned was not valid.
However, they must make restitution insofar as they benefit. As such, they
not pay 2/3 of the amount stipulated in the contract but merely the amount
that was loaned to them which was P1,166.00 in legal currencies.
Shields vs. Gross
Facts: In 1975, when Brooke Shields was 10, a consent was given by her
mother on her behalf, indicating that the pictures taken by Gary Gross may
be used for whatever purposes. Plaintiff requested the court to prevent
defendant from using her pictures. Non-jury court prevented the defendant
from using the pictures for advertising or trade on the grounds that court
approval for a minor was necessary to validate the consent, as stated in
Section 3-105 of the General Obligations Law.
Held: By virtue of Section 50 and 51 of the Civil Rights Law, a person’s
pictures, name, etc., can be used if written consent is given. If the person
is a minor, his or her parents can give the consent. As such, the consent
was valid. Section 3-105 cannot be invoked as Shields did not fall under the
categories stipulated under the said statutory provision.
 Effect on Marriage of Minors
FC Article 5: Any male or female aged 18 and above, may
contract marriage.
FC Article 35: The following are void marriages from the
beginning:
1. Those contracted by any party below 18 years, even
with the consent of a parent or guardian
2. Those solemnized by a person not legally authorized
to perform a marriage unless the married couple
believed in good faith that the person was authorized
3. Those solemnized without a license
4. Those bigamous or polygamous
5. Those contracted through a mistaken identity
Moe vs. Dinkins
Facts: Maria Moe and Raul Roe alleged that the New York Domestic law 15.2 which
states that males between 16-18 and females between 14-18 must obtain parental
consent to be granted marriage, is unconstitutional. They stated that they have a
child born out of wedlock and they do not wish for their child to grow up with the
stigma of illegitimacy. Cristina Coe and Pedro Doe filed a motion to interfere as
they had a stake at the outcome of the trial. Cristina Coe’s mother, like Maria’s
also refused to give her consent to the wedding but unlike Maria, Cristina’s child
was yet to come.
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Held: The State’s interest as parens patriae (guardians of the country) in
protecting minor from making immature decisions is legitimate and the manner by
which this interest is protected is proportionate to the interest.
 Effects on Crime
RPC Article 12: The circumstances which exempt from
criminal liability are:
1. An imbecile or insane person (unless he acted during
a lucid interval),
2. A person under 9 years of age*,
3. A person over 9 years of age but under 15, unless it
can be proven that he acted in discernment, in which
case, he will be sent to an institution servicing such
children with criminal liabilities.
4. Any person who causes an injury while performing a
lawful act,
5. Any person who acts under a compulsion of irresistible
force.
RPC Article 18: Accomplices are those who cooperate in the
execution of an offense by previous or simultaneous acts.
RPC Article 68: When the offender is a minor under 18 years
of age, if he is—
1. Over 9 years and under 15 and it has been proven
that he acted with discernment then a discretionary
penalty shall be imposed which must always be lower
by two degrees than that which the law prescribes for
such crime.
2. Over 15 years and under 18 years of age, the penalty
being the next lower penalty prescribed by law for that
crime but always in the proper period.
B. INSANITY
 Effects on Contracts
CC Article 1327: (Page 5)
CC Article 1399: (Page 6)
CC Article 1328: Contracts entered into during a lucid interval
are valid while those entered into in a state of drunkenness is
voidable.
Carillo vs. Jaojoco and Jaojoco
Facts: Adriana Carillo executed a deed of sale to Justiniano Jaojoco. Nine days later,
Carillo was declared to be mentally incapacitated and then died still later. Miguela
Carillo appealed for the annulment of the said contract stating that Adriana Carillo
could not have executed the deed in a lucid state owing to the fact that the land of
over 300,000 hectares was sold for only P4,000.
Held: The contract is valid. Burden of proof of mental incapacity lies on the person
who alleges it. No such proof exists and prior to the confinement of the deceased
in Hospicio de San Lorenzo, she was able to manage her estate, which had been left
to her by her husband. Her doctor and the one who executed the notarial
instrument also noted that the deceased was responsive at the time they had been
with her.
 Effect on Crimes
RPC Article 12
US vs. Vaquilar
Facts: Evaristo Vaquilar killed his wife and daughter and as such, he was convicted
of parricide for which he appealed. Witnesses do not know of any prior
disagreement between the deceased and the defendant which may have caused a
sudden outrage. They witnessed however, that the defendant looked like a
madman, going after everyone in sight. His eyes were red and penetrating and he
had complained of stomach and head ache before the event occurred.
Held: An extremely angry man often acts like a madman. Although no prior
disagreement was witnessed, that is not sufficient as to say that the defendant
was in sane. Any person who allows his or her anger to go so far as to make them
reckless does not excuse him from criminal liability.
Dumaguin vs. AI Reynolds, EJ Harrison and Big Wedge Company
Facts: Paulo Dumaguin was admitted to Hospicio de San Felipe as he was suffering
from paranoia. His wife had filed for guardianship which was granted. Dumaguin
later acquired a job as a prospector who relocates mining claims to ANACONDA
group owned by AI Reynolds and EJ Harrison. Ten mining claims were located and
as prospector, the claims were filed under Dumaguin’s name in the Office of the
Mining Recorder, until a deed of transfer was executed. Dumaguin then asked the
court that the deed of transfer executed by him be considered null and void
because he did not possess the mental capacity to execute such transfers.
Held: A person under guardianship could still enter into a contract provided that he
or she was not in mental defect during the execution of the contract. Also, having
been employees of ANACONDA group, it was within the confines of their job to
execute such transfers. Nevertheless, if he did own the mining claims, it would
have been aptly named “deed of transfer.”
 Effect on Marriage
FC Article 45: A marriage may be annulled for any of these
causes:
1. If the party was over 18 and under 21 and the
marriage was solemnized without the consent of
parents or guardian, unless after reaching the age of
21 the couple has continued to cohabit,
2. Either party was of unsound mind unless the party has
come to reason and freely cohabit,
3. Consent by either party was obtained by fraud or
force,
4. Either party was physically incapable of
consummating the marriage and the incapacity is
incurable,
5. Either party was afflicted with STD which is incurable.
FC Article 47: The persons who can file for an action for
annulment are:
1. By the party whose parent or guardian did not give
consent, within 5 years after attaining the age of 21,
or by the parent or guardian before the minor reaches
21,
2. By the sane spouse who did not know of the other
person’s insanity or by the guardian of the insane or
by the insane spouse during a lucid interval.
3. By the injured party, within years of the discovery of
fraud or force,
4. For the injured party, in relation to STD and
Impotence, after 5 years of marriage.
C. State of Being Deaf-Mute
CC Article 1327: (Page 5)
CC Article 807: If the testator* is deaf or a deaf-mute, he
must be able to personally read the will or designate two
persons to read it and communicate with him in a practicable
manner.
*A person whose property is transmitted through a will.
CC Article 820: Any person of sound mind and legal age, not
blind, deaf or dumb and able to read and write, may be a
witness to the execution of a will.
People vs. Sasota
Facts: Fidel Sasota was found guilty of raping Rufina Barbuco, a deaf and dumb girl.
The crime was witnessed by Severa Barbuco, a seven-year old girl who testified
along with Rufina. The defendant alleged that neither Rufina nor Severa can testify
as one was deaf and dumb and the other too young.
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Held: The theory that deaf and dumb persons cannot testify as a competent
witness has been dispelled (People vs. de Leon) because it is not sufficient. For as
long as the requisite intelligence required to understand the nature of the oath can
be proven then a deaf-mute can testify. In relation to the seven year old, the court
has held that a child can testify as long as he or she can understand the nature of
the oath.
Director of Lands vs. Abelardo
Facts: Director of land claims that the failure of Fulgencia and Jose Dino to register
any claim to lots nos. 773 and 810 which was previously owned by their
grandmother, is due to their being deaf and dumb. As such, they were unable to act
within the prescriptive period within which they can register their claim.
Held: The state of being a deaf-mute is not considered an incapacity that will
prevent a person from running of a prescriptive period.
D. Prodigality
RC Article 92 (2): Persons suffering the penalty of civil
interdiction, hospitalized lepers, prodigals, deaf and dumb
who are unable to read and write, those of unsound mind and
other similar cases, cannot, without aid, take care of
themselves and manage their property.
Martinez vs. Martinez
Facts: Pedro Martinez appealed to the Supreme Court to declare his father,
Francisco Martinez, a prodigal. Pedro Martinez alleged that since his father’s
marriage to Anastacia Ilustre, his father’s second wife, the wide and her parents
have been given properties amounting to $200,000. He added that the
administration has also been turned over to his father’s wife. Defendant stated
that the son had, prior to the marriage, managed the estate by power of attorney
but it was revoked because the son has mismanaged and misappropriated the
property. The estate was said to have flourished since it was managed by
Francisco Martinez’ wife and one half has also been in the ownership of Pedro
Martinez, him being the sole heir of the first wife.
Held: Acts of prodigality must show a morbid state of mind and a disposition to
spend, waste and lessen the estate to such an extent as to expose the family to
poverty.
E. Civil Interdiction
RPC Article 34: Civil interdiction shall deprive the offender of
the rights of parental authority or guardianship, either as to
person or property.
RPC Article 11.2: Relatives that can be defended (without
criminal liability): spouses, ascendants, descendants,
legitimate, natural or adopted brothers and sisters, relatives by
affinity in the same degree or relatives by consanguinity of the
4th civil degree.
RPC Article 13.5: Acts which are committed in immediate
vindication of a grave offense to the one committing the felony
(are mitigating circumstances).
CC Article 54: Males 16 years upwards may contract marriage
while females 14 years upwards may contract marriage.
CC Article 123: A person under civil interdiction may contract
marriage provided that there is a court designated guardian
available to witness the said marriage.
F. Family Relations
FC Article 37: Marriages between ascendants and
descendants of any degree or between brothers or sisters full
or half-blood, are considered incestuous and void.
FC Article 87: Donations or grants given directly or indirectly
between spouses during marriage are void with the exception
of moderate gifts. The same is true for persons living together
as husband and wife.
- This is dictated by the principle of unity of personality
of spouses.
- Any person prejudiced by the donation or grant may
question its validity.
CC Article 1109: Prescription* does not run between husband
and wife even though there is a separation of property agreed
upon in the marriage settlements. The same is true between
parents and children that are still minors or those considered
insane and between guardian and ward.
CC Article 1490: Husband and wife cannot sell property to
one another when separation of property has been agreed upon
and there has been judicial separation.
G. Alienage
PC Article 12-
Section 2: All natural resources, with the exception of
agricultural lands, are owned by the state. As such,
exploration, development and utilization are under its full
control and supervision. The State may undertake such
activities directly, in co-production, joint venture or production
sharing with Filipino citizens or corporations or associations
where 60% of the capital is owned by Filipinos. The same is
true for agreements with foreign-owned corporations.
Only small-scale utilization of marine life is allowed.
Section 7: No private lands shall be transferred to individuals,
corporations or associations qualified to acquire land, except in
cases of hereditary succession.
Section 8: Natural-born citizens of the Philippines who has lost
citizenship maybe a transferee of private lands subject to
limitations provided by law.
Section 11: Franchise, certificate or any form of authorization
for operation of public utility may be granted to citizens of the
Philippines or corporations, associations or organizations where
at least 60% of the capital is owned by Filipinos. All executive
and managing officers of public utilities must be citizens of the
Philippines.
PC Article XIV-
Section 4: Educational institutions, apart from those owned by
religious groups or mission boards must be owned solely by
citizens of the Philippines or corporations or associations at
wherein 60% of the capital is owned by citizens. Congress may
legislate to increase Filipino equity participation.
No educational institution shall be established exclusively for
aliens. No group of aliens shall comprise more than one third.
These provisions do not apply to schools established for foreign
diplomatic personnel and their dependents.
Revenues, grants and endowments shall be exempt from
taxes.
PC Article XVI-
Section 11: Ownership and management of mass media shall
be limited to citizens of the Philippines or corporations,
cooperatives, associations wholly owned and managed by such
citizens.
Congress shall prohibit monopolies in commercial mass media
for the sake of public interest.
Filipino citizens or corporations and or associations wherein
seventy percent of capital is owned by citizens of the
Philippines shall be allowed to engage in the advertising
industry. All executive and managing officers must be citizens
of the Philippines.
H. Absence
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CC Article 390: An absentee shall be presumed dead for all
purposes, after an absence of seven years.
For purposes of succession, absentee shall be presumed dead
after 10 years or 5 years for those 75 and above.
CC Article 391: The following are presumed dead for all
purposes:
1. Person on board a lost sea vessel or aeroplane,
2. Person missing for 4 years after taking part in a war,
3. Person who after being in danger of death has not
been heard from for four years.
FC Article 124: Conjugal partnership property belongs to
spouses, jointly. In case of disagreement, the decision of the
husband shall prevail and the wife may appeal for remedy in
court within 5 years since the implementation of the contract.
Spouse may assume sole powers in case the other is
incapacitated.
Encumbrance or disposal of property shall be with the authority
of the court or with the written consent of the spouse.
A contract with the authorization of the spouse is binding.
I. Marriage
CC Article 2259: The capacity of a woman to enter into
contract is governed by the civil code even if the marriage
occurred prior to the enactment of the said code.
RC Rule 3, Section 4: A married woman cannot be sued alone
without joining her husband except:
1. When they are judicially separated,
2. If they have been separated for at least 1 year,
3. When there is a separation of property agreed upon in
marriage settlements,
4. If the administration of all the property has been
transferred to her,
5. When the litigation is between husband and wife,
6. When the suit involves her paraphernal property,
7. When the action is a civil liability arising from a
criminal liability,
8. If the litigation is based on the profession, occupation
or a business in which she is engaged,
Marriage
Nature of Marriage
-Procedure by which a man and a woman become
husband in wife, uniting for life.
-A status involving duties or responsibilities which are
no longer matter for private regulations but the concern of the
state.
-Civil or social institution which is the foundation of a
family and origin of domestic relations.
Purposes of Marriage
1. Reproduction
2. Education of the offspring
3. Mutual help
Immediate purpose: constitute a complete and perfect
community between two individuals of different sexes.
Remote purpose: preservation of human race.
FC 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.
Ordinary Contracts vs. Marriage Contracts:
- Ordinary contracts may be entered into by any
number of persons of whatever sex while marriage
can be entered into only by one man and one woman.
- In ordinary contracts the agreement of the parties
have the force of law between them while in marriage,
the law fixes the duties and rights of the parties.
- Ordinary contracts can be terminated by mutual
agreement of the parties while marriage cannot be so
terminated. Neither can it be terminated even though
one of the parties subsequently becomes incapable of
performing his part.
- Breach of ordinary contracts gives rise to an action for
damages while breach of the obligations of a husband
or a wife does not give rise to such an action..
- The State’s role is to protect the family as the foundation of
the nation.
PC Article XV-
*The states role is to protect the family as the foundation of
society.
Section 1: State recognizes the Filipino family as the foundation
of the nation.
Section 2: Marriage is an inviolable social institution.
Section 3: State shall defend-
1. The right of spouses to found a family in accordance
with their religion and the demands of responsible
parenthood.
2. The right of children to assistance, and special
protection.
3. The right of family to a family living wage income.
4. The right of families 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.
Breach of Promise
CC Article 19: Everyone must act with justice, give everyone
his due and observe honesty and good faith.
-The exercise of a right ends where the right disappears and it
disappears when it is abused, to the prejudice of others.
Good Faith- abstaining from taking advantage of others.
-A bride or groom who breaks an engagement without reason
causing moral and material injury to the other party is liable
for damages especially if the decision is made just before the
wedding and after a long engagement.
CC Article 20: Every person who willfully or negligently causes
damage to another shall be liable for indemnity.
7

-A person is required to act with prudence and diligence.
CC Article 21: Any person who willfully causes loss or injury
to another in a manner contrary to morals, good customs or
public policy is liable for damages.
-Acts which are not unlawful but are likewise contrary to morals
or good customs, public order or policy shall fall under this
provision. This article was created to provide adequate legal
remedy.
Willful Act- an act done with knowledge of the effect
- Seduction, wherein a woman who was promised with
marriage gives herself to a man but was later left by
the man qualifies as deceit and may be used as basis
for indemnity.
- So long as there is a wrongful act and a resulting
injury, there should be civil liability.
-The injury must be the proximate cause of an act.
-No person shall unjustly enrich himself at the expense of
another.
CC Article 2176- Whoever by act or omission causes damage
to another, there being fault or negligence, is obliged to pay
for the damage done. Such fault or negligence is considered a
quasi-delict and is governed by law.
Wassamer vs. Velez
Francisco Velez and Beatrice Wassmer decided to get married on Septemeber4,
1954. On Sept. 2, Velez left a note saying that the said marriage has to be postponed.
The following day, another note arrived saying the marriage was still going to push
through. After that, plaintiff has never heard from him.
When plaintiff filed for evidence before the clerk of court, the defendant was held
in default and as such, plaintiff was awarded P2,000 actual damages, P25,000
moral damages and P2,500 for attorney’s fees. Defendant filed a motion for relief
and court gave both parties enough time to settle outside of court. No such
settlement happened and several times, the defendant asked for extension.
Held: The manner by which the defendant left the plaintiff, only a few days before
the wedding, was contrary to good customs. At that time, the wedding has been
aptly prepared and the visitors had been notified and so, that the plaintiff was
affected is no longer in question. Civil indemnity is due in this case.
Tanjanco vs. CA
Facts: Apolinario Tanjanco and Arceli Santos are both of adult age. Santos
consented to have sexual intercourse with Tanjanco with the promise of marriage.
After almost a year of such relationship, Santos conceived of a child and due to
humiliation she left her job at IBM Philippines where she received P230/ month.
Tanjanco, then refused to marry Santos who was no longer able to support herself
and the child. She was then prompted to sue for moral damages and to compel the
defendant to support herself and the child.
Held: Article 21 cannot be invoked in this case as it was already evident to the
woman that Tanjanco no longer had any intention of marrying her even before she
conceived of a child. Seduction, an example given by the code commission under
Article 21 connotes deceit, enticement, and abuse of confidence. Such features are
not present in the case wherein there where several instances of sexual
intercourse for a period of almost one year.
De Jesus vs. Syquia
Cesar Syquia had sexual relations with Antonia Loanco. Through a letter to a priest,
he had made it apparent that he wanted the child carried by Antonia to be
recognized as his. In several other letters, he referred to the child as “junior.” For
a while the two partners lived under one roof with Antonia’s mother, after the
birth of the child. Another child was conceived, upon which, Syquia left, never to
be heard from again. At the christening of the child, Antonia named the child Ismael
Loanco.
Antonia then filed a suit against Syquia, to recover P30,000 for damages for breach
of promise to marry and to pay for her maintenance along with the two children.
Trial court ordered that the first child be recognized and for Syquia to pay a
monthly maintenance of P50.
Held: Supreme Court affirmed the judgment on the grounds that the breach of
promise was not satisfactorily proven, owing to the fact that the sexual relations
continued even after the birth of the first child and even though there was still no
marriage. In relation to the second child being recognized, there was no proof to
compel such action.
Marriage Models
“Economics and the Public Purpose”
By John Kenneth Galbraith
-Industrialization eliminated the need for women to work.
-Rising standards of popular consumptions saw the need for
household managers—married women.
-The lady of the house is the chief menial to the household.
-Diversity and consumption increase made household
management complex thereby requiring management skills.
-Women were converted into “crypto servants” contributing ¼
of the Gross National Product by way of efficient consumerism.
Household- the disguise for the exercise of male authority
Neoclassical Consumer Equilibrium- the distribution of income
to various uses so that satisfactions are roughly equal to the
margin
-Decisions depend on who earns a living.
-Women had only the power to implement decisions and not
make them.
-“The service of women to the economy is based on her sense
of duty and capacity to affection.”
Graham vs. Graham
Facts: On September 17, 1940, Sydney Graham contracted with Margarethe
Graham to the effect that Margarethe shall pay Sydney the amount of $300 per
month until such time that the parties no longer desire to continue with such an
arrangement. On July 11, 1933, the married couple divorced. The plaintiff then filed
a suit against his former wife in order to claim the remaining amount of money
that he should be accorded by virtue of the contract. Plaintiff alleged the contract
was done so that he can accompany his wife on her travels.
The total amount claimed until November 7, 1939 was $25,000 with 3% interest per
annum. The defendant on the other hand alleged that the contract was not within
the powers of a married woman under a Michigan law and that the divorce should
have effected the termination of the said contract.
Held: Under the Michigan law invoked by the defendant, women have no general
power to enter into a contract except in separation of properties. Also, private
contracts between married individuals which are contrary to public policy are
unenforceable by virtue of Sec. 587 entitled “Bargain to Change Essential
Obligations of Marriage.” The court held that if contracts which are contrary to
the essential obligations of marriage wee permitted, it would invite an endless field
of controversy and litigation and would destroy the element of flexibility needed
in making adjustments to the new conditions of marital life.
 Challenges to the Traditional Marriage Models
“Looking Backward in Order to Look Forward”
By William H. Chafe
-In the 1970’s, the status of women had already transformed
because of social and economic forces.
-After the “baby boom” of the 1950’s, there was a downturn in
the birthrate such that by 1970’s, the birthrate had reached a
level of zero population growth.
-There was a trend in later marriages and of young women of
child bearing age joining the labor force.
-Women also begun entering professions that have almost
exclusively been for men.
-By 1970’s, the traditional norm of stay-at-home-mothers had
already changed.
8
Multiplier Effect- shifting values interacted with changing
economic conditions to create a new pattern of family and work
life.
The Changing Status of Women
Dunn vs. Palermo
Facts: Rosary Palermo who is married to Denty Cheatham has continued to use her
maiden name since her marriage. Because of a state-wide compulsory registration
law, Palermo lodged information of her change of address listing her name as
Palermo. The registrar was prompted to purge the name of Palermo from the
registration list because Palermo refused to change her name, citing Sec. 2-206
which states that registration of a person shall be purged 90 days after he
changes his name or otherwise.
Palermo went to court seeking that the interpretation of the said rule be declared
erroneous or the statute be declared unconstitutional, it being in violation of the
14th amendment due process and equal protection clause.
Held: The use of a husband’s name is customary and as such, the common law does
not compel women to use their husband’s name. In the past, the husband’s name
was used to indicate the marital status of a woman. A person has a common right
to adopt any name he or she wants to be known with. The use of husband’s name
was mainly for indicating marital status. It was more by practice rather than by
law.
 Private Contracts: When Valid, When Void?
In Re: Santiago
Facts: This is an administrative case concerning Atty. Roque Santiago who
executed a document wherein it was stipulated that Ernesto Baniquit and his wife
Soledad Colores were from then on, separated, allowing either parties to marry
again without danger of becoming subject to any legal action from either of the
two parties. With this, Baniquit got married to Trinidad Aurelio.
Santiago’s mistake, according to him, was due mainly to his idea that a seven-year
separation will allow for such action. In finding out his mistake, he called on Baniquit
who at that time, was already married to someone else.
Held: The advice given and the document tended to subvert the vital foundation of
the family. Marriage, as stated in Article 1 of the Family Code, is not subject to the
stipulation.
Selanova vs. Mendoza
Facts: Judge Alejandro Mendoza prepared and ratified a document extrajudicially
liquidating the conjugal partnership of Saturnino Selanova and Avelina Ceriza. It
was stipulated in the document that the spouses should withdraw the adultery
and concubinage cases each had filed against another. The defendant ratified the
document with the assurance that the spouses would ask the Court of First
Instance to approve the agreement. According to the respondent, the basis of the
decision was Part 4 of Article 191 of the Civil Code which stated that husband and
wife may agree upon the dissolution of marriage subject to judicial approval.
Held: Respondent’s action was void as it violated Article 221 of the Civil Code which
states that contracts and any extrajudicial agreements are void.
Judicial sanction for annulment of marriage should have been secured before hand.
 Requisites of Marriage
Essential Requisites of Marriage
FC Article 2: Essential Requisites of marriage are—
1. Legal capacity of contracting parties who must be
male or female.
2. Consent that is freely given in the presence of a
solemnizing officer authorized by the state to conduct
such marriage.
 Legal Capacity of Male and Female
Jones vs. Hallahan
Facts: Two women appealed the decision of the Circuit Court which held that both
of them cannot marry one another. Plaintiffs claim that the decision abridges the
Equal Protection clause and Due Process clause of the fourteenth amendment.
Held: Marriage, in many widely circulated dictionaries, are defined as a “union
between man and woman,” and there is no authority to the contrary.
The plaintiffs were not being prevented by the statutory provision to marry.
Rather, they were being prevented by themselves.
Goodridge vs. Department of Public health
Facts: In March and April of 2001, each of the plaintiff couples attempted to obtain
the marriage license from their respective city or town clerk’s office. After their
requirements had been completed, the clerk in each case refused to accept the
notice of intention to marry or denied a marriage license on the ground that
Massachusetts does not recognize same-sex marriages. Plaintiffs filed a suit
alleging that exclusion of same-sex couples from access to marriage license and
civil marriage and its benefits is in violation of Massachusetts law.
Held: Without the right to marry or the right to choose to marry, one is excluded
from the full range of human experience and denied full protection of the laws for
one’s commitment to lasting human relationships.
Held: Defense of procreation is not sufficient because same-sex couples are still
capable of procreation although their methods may not be traditional. Likewise,
these couples are capable of rearing children in such a setting, affirmed by the
Massachusetts law which allows adoption for same-sex couples. Same-sex couples
should be afforded the same benefits as opposite-sex couples by virtue of the Equal
Protection and Due Process clause of the 14th amendment.
Baker vs. State
Facts: Same-sex couples brought action against the State, city and town seeking
declaratory judgment that the refusal to issue them marriage licenses violated
the common benefits clause of the Vermont constitution. Plaintiffs claim that denial
of marriage license was tantamount to denial of legal benefits and protections of
marital relations.
Held: Government is established for the common benefit of the people and
community as a whole. The state interests in preventing the marriage of same-sex
couples which are: Procreation and uniformity with other states, while valid,
should not be employed through a means that would prevent same-sex couples
from acquiring the benefits inherent to married life.
Defense of Marriage Act- Defense of marriage as an institution,
as upheld by 37 states in the United States
- 4 States have explicitly banned same-sex marriages.
- Vermont and Massachusetts have come up with
legislation that would allow same-sex couples to enjoy
the benefits that opposite-sex married couples enjoy.
In Vermont, it is done through a civil union, in
Massachusetts, same-sex marriage is now allowed.
 Consent Freely Given
FC Article 4: Marriage is rendered void in the absence of any
of the essential requisites (stated in Article 2 of FC). If there is
any irregularity in the formal requisites, the validity shall not
be affect validity but either or both parties are civilly, criminally
and administratively liable.
FC Article 45: (page 8)
People vs. Felipe Santiago
Facts: Felipe Santiago raped Felicita Masilang, 18 years old, a few paces from Manila
North Road. After the deed was done, defendant brought the girl to the house of
Agaton Santiago, the defendant’s uncle, who later found a protestant minister who
administered the marriage of Santiago to Masilang. After the marriage, the victim
was given a few pesos and was told to leave.
Held: The marriage is void first, because the victim did not have his father’s consent
to marry and second, because the victim was under duress and was thereby
incapable of giving her consent freely. Also, Felipe Santiago did not really intend to
marry Felicita Masilang. He only did so to escape criminal liability. As such, the
9
marriage is void because the consent of Santiago is not freely given. The consent
referred to here is not the consent of Felicita but that of Felipe who had no
intention of marrying Felicita.
Buccat vs. Mangonon de Buccat
Eigenmann vs. Guerra
Facts: Petition was instituted by Eduardo Eigenmann to annul his marriage to
Maryden Guerra on the grounds that he was a minor who needed consent from his
parents when he married (16-20 years old) and such consent was not given. He
alleged that he was threatened and coerced into the marriage and that the
solemnizing officer who administered the marriage license was not authorized
thereby rendering the said license void ab initio.
Held: The marriage license confirmed that plaintiff misrepresented himself to be of
legal age there for he is subject to an estoppel preventing himself to invoke
minority. (this is as to the needed consent and not the lack of minimum age) The
said threat was not sufficient to hold that he was coerced into consenting to the
marriage because it was not really threatening. Lastly, marriages solemnized by
a license obtained wrongfully, merely renders the marriage to be irregular and is
not null, void or voidable.
 Formal Requisites
- External to the parties
Formal Requisites of Marriage
FC Article 3: Formal Requisites of Marriage—
1. Authority of the solemnizing officer,
2. Valid marriage license except in cases provided,
3. Marriage ceremony with the appearance of
contracting parties before a solemnizing officer,
4. Two witnesses that are of legal age,
5. Declaration that they take each other as husband and
wife.
Authority of the Solemnizing Officer
FC 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;
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 cases mentioned in
Article 32;
5. Any consul-general, consul or vice-consul in the case
provided in Article 10.
- Without registration of the solemnizing officer with the
office of the Civil Registrar the marriage is void. The
same is true if the solemnizing priest s not authorized
by his church.
- A resulting irregularity that will not affect the validity
of the marriage is one where there is mistake of fact
and not mistake of law.
- Ignorantia legis non excusat
FC Article 10: Marriages between Filipino citizens abroad may
be solemnized by a 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 the
consular official.
FC 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.
*At the point of death
FC 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.
FC 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 a.
A defect in any of the essential requisites shall render
the marriage voidable as provided in article 45.
An irregularity in the formal requisites shall not affect
the validity of the marriage but the party or the parties
responsible for the irregularity shall be civilly, criminally or
administratively liable.
FC Article 35 (2): 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 god faith that the solemnizing
officer had legal authority to do so.
CC Article 3: Ignorance of the law excuses no one from
compliance therewith.
Navarro vs. Domagtoy
Facts: This is an administrative case filed by Rodolfo G. Navarro against Hernando
C. Domagtoy who allegedly solemnized the marriage between Gaspar A. Tagadan
and Arlyn Borja despite knowledge that the groom was only separated with his
former wife who was already absent for seven years. Also, the respondent judge
also solemnized the marriage of Floriano Sumaylo and Gemma del Rosario outside
the jurisdiction of the respondent.
Held: On the second marriage, there is a resulting irregularity because marriage
may only be conducted elsewhere only if there is a written request coming from
both parties. In the case at hand, the request only came from one party. Judges
may only officiate weddings within their jurisdiction otherwise there will be an
irregularity with the formal requisites. Article 8 states that marriages may be
conducted elsewhere provided that there is written request coming from both
parties to the marriage.
Aranes vs. Occiano
Mercidita Aranes charged presiding judge Salvador Occiano of gross ignorance of
the law for solemnizing her marriage with her husband without a license and
outside his jurisdiction. Respondent judge claims that he agreed to solemnizing the
marriage provided that the license will be delivered to him on the same day
however, no such license ever came. No record of the application for a marriage
license because it was denied when the husband failed to present the death
certificate of his first wife.
Held: Respondent judge is liable for failure to ascertain the existence of a marriage
license. Presenting a marriage license after the solemnization of the wedding does
not, in any way validate the marriage. Also, under BP 129, the authority of the
judges of inferior courts to solemnize marriage is confined to their territorial
jurisdiction. The authority of the judge to solemnize a marriage is derived from the
marriage license.
 Marriage License
FC Article 9: A marriage license shall be issued by the local
registrar of the city or municipality where either contracting
10
party habitually resides, except in marriages where no license
is required in accordance with chapter 2 of this Title.
FC Article 34: No marriage 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.
PD965: A decree requiring applicants for marriage licenses to
receive instructions on family planning and responsible
parenthood.
Republic of the Philippines vs. CA and Castro
Facts: Angelina M. Castro filed a petition for a judicial declaration of nullity of her
marriage to Edwin F. Cardinas which was granted by the Court of Appeals. Then
petitioner Castro was separated after four months of marriage with Cardinas. As
such, Castro sought for the nullity of her marriage before she left for the US.
Plaintiff Republic of the Philippines challenged the decision of the appellate court
because Castro’s claim that there was no marriage license was only supported by
a “due search and inability to find” certification issued by the local civil registrar
of Pasig and Caustro’s own testimony.
Held: No marriage shall be solemnized without a marriage license otherwise it will
be rendered void ab initio. The certification of “due search and inability to find” is
sufficient to hold that no proof of license exists and the testimony is sufficient
because the marriage was a secret marriage and under the circumstances it is
understandable that there can be no other witness.
Moreno vs. Bernabe
Facts: Marilou Nama Moreno filed the complaint against Judge Jose C. Bernabe for
grave misconduct and gross ignorance of the law. According to the complainant,
respondent judge solemnized her marriage with Marcelo Moreno, assured that the
contract will be released after 10 days. Respondent judge claims that the failure
to produce the contract was due to the failure of the Local Registrar of Pasig to
release the marriage license. He was assured, when he solemnized the marriage,
that the license was forthcoming as such, he agreed to conduct the ceremony but
reminded the plaintiff and her husband of the consequences of conducting the
ceremony without a marriage license.
Held: Marriage ceremonies, absent of a marriage license, are void ab initio.
People vs. Borromeo
Facts: Defendant Elias Borromeo appealed his conviction of parricide and his
sentence of reclusion perpetua. On July 3, 1981, defendant killed his wife, Susana
Borromeo. He claimed that Susana Borromeo was not his wife because no marriage
contract was executed during their marriage.
Held: Defendant testified that he was indeed, married to Susana Borromeo.
Nevertheless, had there been an actual absence of a marriage contract, persons
living together in apparent matrimony are presumed to be married unless evidence
is presented to show otherwise. “Such is the common order of society. If parties
were not what they hold themselves to be, they will be living in constant violation
of the law.”
Seguisabal vs. Cabrera
Facts: Andon Seguisabal charged Judge Jose Cabrera of gross misconduct and
grave ignorance of the law for solemnizing the marriage of Jaime Sayson and
Marlyn Jagonoy without the requisite marriage license. The respondent was also
said to have failed to transmit a copy of the marriage contract he signed to the
Office of the Civil Registrar of Toledo City within the required 15 days. The
Respondent judge contended that he agreed to solemnize the marriage of the two
parties with the agreement that the marriage license will be given in the
afternoon, which the couple failed to do. Years later when Marlyn Jagonoy
returned asking for the marriage contract so that she can claim the pension of
her deceased husband, respondent judge issued a marriage contract despite of the
knowledge that there is still no marriage license as the deceased and his widow
failed to attend a family planning session.
Held: Cabrera was expected to follow the dictates of his profession. His decision
to commit an act outside the boundaries of the law cannot be justified by good faith.
Marriages solemnized without a marriage license is void ab initio.
 Ceremony
FC 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 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 fat shall be attested by the
solemnizing officer.
Requisites of Marriage Ceremony:
- For both parties to appear personally before the
solemnizing officer;
- That there is presence of not less than two witnesses
of legal age;
- That both party take each other as husband and wife
FC 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 on 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.
- Whatever venue is chosen, it must be within the jurisdiction
of the solemnizing officer.
FC 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.
- Applicable when one of the parties is handicapped
FC Article 29: The solemnizing officer shall state in an affidavit
the 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 officer
took the necessary steps to ascertain the ages and relationship
of the contracting parties and the absence of legal impediment
to marriage.
FC Article22: The marriage certificate shall state:
1. Full name, sec and age;
2. Citizenship, religion and habitual residence;
3. the date and precise time of the celebration;
4. That the proper marriage license has been issued
according to law;
5. That either or both of the contracting parties have
secured the parental consent (if it applies);
6. That either or both of the contracting parties have
complied with the legal requirement regarding
parental advice (where it applies);
7. That the parties have entered into a marriage
settlement, if any, attaching a copy thereof.
11

FC Article 23: It is the duty of the solemnizing officer to
furnish either of the contracting parties the original of the
marriage certificate and to send the duplicate and triplicate
copies not later that 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 the 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 the affidavit of the contracting party
regarding the solemnization of the marriage in another place.
FC Article 24: It shall be the duty of the local civil registrar to
prepare the documents required 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.
 Requisites of a Marriage Ceremony
Martinez vs. Tan
Facts: Rosalia Martinez and Angel Tan signed a petition directed to the Justice of
Peace stating therein their agreement to contract marriage. The document was
signed by the defendant and plaintiff and the Justice of Peace and two witnesses
namely Zacharias Esmero and Pacita Ballori. A certificate of marriage was
likewise signed by the Justice and the witnesses attesting that a marriage did
ensue. Plaintiff alleged that she did not attend the ceremony and that she only
signed it. Rosario Bayot attested that on the day of the marriage, the plaintiff
never left her company. Pacita Ballori attested otherwise. Apart from that,
several letters from the plaintiff for the defendant prove that plaintiff indeed
intended to marry the defendant.
Held: The documents signed were sufficient to prove that what took place before
the Justice of Peace was legal and the ceremony amounted to a wedding.
Melecio Madridejo vs. Gonzalo de Leon
Facts: Eulogio de Leon and Flaviana Perez had one child—Domingo de Leon. In the year
1915, Eulogio died leaving Flaviana with Domingo. Flaviana later lived with Pedro
Madridejo and bore a child—Melecio. On June 8, 1920, Flaviana, knowing that she will
die soon, married Pedro. She died the following day. Melecio Madridejo claimed that
he is the next of kin of Domingo de Leon who died as well. Defendant claimed that
the wedding of Pedro and Flaviana was not valid because the solemnizing officer
failed to send a copy of the marriage certificate to the Municipal Secretary. Also,
Melecio Madridejo was allegedly not a legitimate child.
Held: Forwarding of the marriage certificate is not an essential requisite of the
marriage. Failure to do so does not invalidate the marriage. For a subsequent
marriage to effectively legitimate a child born out of wedlock, the child must be
acknowledged by the parents in some public document or be in the uninterrupted
possession of the status of a natural child. In the case at hand, Melecio Madridejo
was not legitimated. No public document to that effect exists and he was not able
to prove that he has been in an uninterrupted status of the natural child.
 Presumption of Marriage
CC Article 220: In case of doubt, all presumptions favor the
solidarity of the family. Thus, every intendment of law or facts
leans toward the validity of marriage, the indissolubility of the
marriage bonds, the legitimacy of children, the community of
property during marriage, the authority of parents over their
children, and the validity of defense for any member of the
family in case of unlawful aggression.
RC Section 3 Rule 131: That persons acting as copartners
have entered into a contract of copartneship;
1. That a man and woman deporting themselves as husband
and wife have entered into a lawful contract of marriage;
2. That property acquired by a man and a woman who is
capacitated to marry each other and who live exclusively with
each other as husband and wife without the benefit of marriage
or under void marriage, has been obtained by their joint
efforts, work or industry.
3. That in cases of cohabitation by a man and a woman who
are not capacitated to marry each other and who have acquire
properly through their actual joint contribution of money,
property or industry, such contributions and their
corresponding shares including joint deposits of money and
evidences of credit are equal.
Trinidad vs. CA, Trinidad and Trinidad
Facts: Arturio Trinidad, was the son of Inocentes Trinidad and nephew of Lourdes
and Felix Trinidad. The three siblings, Inocentes, Lourdes and Felix, inherited a piece
of land from their father, Patricio Trinidad. Defendants claimed that the land in
question has been in their possession since the death of their father and that
Inocentes died in 1941 and not in 1944 as alleged by Arturio. They also contend that
Inocentes never fathered a child nor was he ever married. Arturio on the other
hand alleged that his father was married to Felicidad Molato, his mother. Several
witnesses living within the neighborhood testified to the marriage and the birth of
Arturio and that Arturio contrary to the claims of Lourdes and Felix had lived in
their house for some time. Relevant public documents valuable as evidence were
destroyed during the war.
Held: Marriage may be proven by relevant evidences such as: testimony of a
witness to the matrimony, public and open cohabitation, birth and baptismal
certificate signed by the couple or a mention of the marriage in other public
documents. Two witnesses attested that the couple cohabited and that Arturio
was their son. As proof of filiation with Felix and Lourdes, two family pictures
were shown where Arturio was in the company of Lourdes and Felix and the
witnesses likewise attested that Arturio had lived with his aunt and uncle. The
preponderance of evidence supported the claims of Arturio.
Vda. De Jacob vs. CA and Pilapil
Facts: Plaintiff claimed to be the surviving spouse of Dr. Alfredo E. Jacob and
appointed special administratix for his estates by virtue of a reconstructed
marriage contract recognized by their solemnizing officer who admitted that he
lost the marriage contract earlier on. The court of appeals ruled against the
plaintiff on the grounds that no copy of the contract was sent and no record of the
marriage existed and that Dr. Alfredo signed the contract with his thumbmark and
not with his own name. Lastly, court of appeals stated that the reconstructed
marriage contract was signed by Benjamin Molina and not by Jose Centera who
the plaintiff said allegedly lost the marriage contract.
Held: Dr. Alfredo and Plaintiff Tomasa had lived together for over five years and
the deceased signed an affidavit to that effect. According to Article 76 of the Civil
Code, no marriage license shall be necessary when a man and a woman who have
reached the age of majority have lived together as husband and wife for at least
five years. Also, failure to send a copy of the marriage certificate for record
purposes does not invalidate the marriage. It was not the petitioner’s duty to
ensure that the copy reached the civil registrar’s office. Secondary evidence
proved that there was a ceremony. The solemnizing officer and Adela Pilapil
attested to that effect. Also the name of the couple was recorded in the Book of
marriages.
- In the absence of a marriage contract, there should be proof
of due execution which can be given by witnesses and proof of
loss of marriage certificate before the reconstructed certificate
may be admitted
12
 FC 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;
4. Those bigamous or polygamous marriages not falling
under Article 41;
5. Those contracted through mistake of one contracting
party as to the identity of the other;
6. Those subsequent marriages that are void under
Article 53.

- In ordinary contracts (1) the child will not be

emancipated from parental authority. In marriage, the
child will be emancipated.
- If it is a mistake of fact, the marriage is valid. If it is
a mistake of law, the marriage is void.
- Paragraph 5 refers to physical mistake in identity.
Other fraudulent misrepresentation would not apply.

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 solemnization.
-Psychological incapacity to comply is different from inability to
understand because the latter is a vice of consent, without
which, an essential requisite of marriage is lacking.

Reasons for adopting psychological incapacity as a ground for

declaration of nullity:
- Substitute for divorce
- Solution of church-annulled marriages
- To give remedy to the parties imprisoned by marriage.

Psychological incapacity vs. Vice of consent

- a person may fully agree but may not understand the
obligations of marriage.
- Psychological incapacity is not a vice of consent but
there is a lack of legal capacity, an essential requisite
of marriage.

Psychological Incapacity vs. Insanity

- Insanity has varying degree;
- Insanity is curable
- There are lucid intervals in insanity
- Insanity is a ground for annulment in other countries

Note: Psychological incapacity was not defined using examples

to avoid ejusdem generis (exclusive enumeration) which might
limit the applicability of the provision. It is therefore judged
according to the facts of the case.

- Psychological incapacity should exist at the time of the

Void Marriages marriage.
- Psychological incapacity is restricted to disorders
FC Article 4: The absence of any of the essential or formal demonstrative of the utter sensitivity or inability to
requisites shall render the marriage void ab initio, except as give meaning and significance to the marriage.
stated in Article 35.
A defect in any of the essential requisites shall render the Examples of psychological incapacity:
marriage voidable as provided in Article 45. 1. Homosexuality;
An irregularity in the formal requisites of shall not affect the 2. Satryiasis or Nymphomania;
validity of the marriage but the party or parties responsible for 3. Epilepsy with permanently recurring maladaptive
the irregularity shall be civilly, criminally and administratively manifestationsl
liable. 4. Extremely low intelligencel
5. Habitual Alcoholism;

13
 6. Criminality
Manifestations of psychological incapacity:
- Refusal of wife to dwell with the husband after
marriage;
- Affliction which makes common life unbearable;
- Sociopathic anomalies on husband’s part
Santos vs. Bedia-Santos
Facts: Louel Santos who was married to Julia Bedia-Santos wishes to annul his
marriage based on Article 36 of the Family Code. Respondent has, for the last seven
years since filing for the annulment, resided in the United States and has contacted
the petitioner only twice.
Held: Psychological incapacity refers to the mental, not physical incapacity. It must
be characterized by gravity, juridical antecedence and incurability for it to be
considered a psychological incapacity. Psychological incapacity is not a vice of
consent. A person may have given his or her consent freely without understanding
the obligations of the contract. Without consent, a marriage is void ab initio.
Without the ability to understand the nature of the contract, the marriage is
merely voidable.
Republic of the Philippines vs. Molina
Facts: Respondent alleged that her husband Reynaldo Molina was psychologically
incapacitated because he showed signs of immaturity, irresponsibility and
dependence. She also averred that her husband was never honest. The Court of
Appeals and Regional Trial Court upheld that the marriage was indeed, void.
Held: Psychological incapacity should refer to a mental and not physical incapacity.
It is confined to the most serious personality disorders clearly demonstrative of
an utter insensitivity or inability to give meaning and significance to the marriage.
It is not enough that the parties failed to meet their responsibilities. It is essential
that they must be shown as incapable of doing so.
Molina Guidelines in Applying Article 36
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.
2. The root cause of the psychological incapacity must
be (a) medically or clinically identified, (b) alleged in
the complaint, (c) sufficiently proven by the experts
and (d) clearly explained in the decision. The person
alleged to be incapacitated must be psychologically ill
to the extent that the person could not have known
the obligations he was assuming or knowing them
could not have given a valid assumption thereof.
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 vows.
4. Such incapacity must also be shown to be medically
or clinically permanent or incurable. Such incurability
may be absolute or relative only in regard to the other
spouse. Such incapacity must also be relevant to the
assumption of marriage obligations.
5. Such illness must be grave enough to bring about the
disability of the party to assume the essential
obligations of marriage. The illness must be shown as
downright inability or incapacity.
6. The essential marital obligations are:
a. The husband and wife are obligated to live
together, observe mutual love, respect and
fidelity, and render mutual help and support
(FC Article 68).
b. 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 (FC Article 69).
c. 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 (FC Article 70).
d. 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 (FC Article 71).
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.
Apiag vs. Cantero
Facts: Maria Apiag filed an administrative case against her husband, respondent
judge, Esmeraldo G. Cantero. The Court of Appeals decided that the respondent
acted in grave misconduct. The plaintiff and respondent were married and
petitioner bore 2 children by that marriage. After the second child was born,
respondent judge left for no reason. Plaintiffs, through their counsel asked
respondent for support and for the children to be declared legal heirs.
Complainants subsequently learned that respondent has contracted another
marriage with whom he had 5 children. Respondent misrepresented himself in his
declaration of assets and liabilities by putting the name of the second wife on the
said statement. He contended that the first marriage was void ab initio because he
and his first wife never cohabited and he was forced into the marriage. He added
that he and the petitioners have settled amicably and he has agreed to give the
children ¼ of his retirement benefits.
Held: While he did not act in grave misconduct, he acted in impropriety when he
failed and refused to attend to the needs of his children. Although it is undisputed
that the judge did not obtain a judicial declaration of nullity of his first marriage,
pursuant to the jurisprudence prevailing at the time of the second marriage, it has
been established that no such declaration was necessary.
Choa vs. Choa
Facts: Respondent Alfonso Choa filed a complaint for the annulment of his marriage
to petitioner Leni Choa on the grounds of psychological incapacity. Petitioner filed
a demurrer of evidence (an objection or exception by one of the parties in an action
at law to the effect that the evidence which the adversary produced is insufficient
in point of law to make out a case and sustain the issue). The demurrer of evidence
was dismissed by the appellate court which upheld that the claims of Alfonso
Choa—that her wife had filed several lawsuits against him indicating psychological
incapacity and that his wife was immature, carefree and had no intentions of
procreative sexuality—as sufficient evidence.
Held: Psychological incapacity must be characterized by gravity, juridical
antecedence and incurability. The testimony of the expert doctor and the
respondent only showed that the two cannot get along with each other.
Tsoi vs. CA
Facts: Respondent Gina Lao Tsoi filed for annulment of her marriage to petitioner
Chi Ming Tsoi on the ground of psychological incapacity. Respondent alleged that
since their marriage in May 22, 1988 until March 15, 1989, the couple has not
consummated their marriage. Defendant contended that it was the wife’s fault
that their marriage was not consummated. A physician examined both plaintiff and
defendant and attested that neither of them had any physical problem. Defendant
alleged that the wife was afraid to consummate the marriage and afraid that she
would have to return the jewelry given to her.
Held: Whether or not it was the husband who refused to consummate the marriage
is immaterial. The fact still stands that it has not been consummated. There may
be physical and not psychological reasons as to why the marriage should not be
14
annulled but the evidence to that effect was not presented. Catholic marriage
tribunals attribute the causes to psychological incapacity than stubborn refusal.
The natural order between spouses is sexual intimacy.
Antonio vs. Reyes
Facts: Petitioner filed a petition for the declaration of his marriage to respondent
as null and void on the grounds of psychological incapacity as manifested by several
instances of lying and concealment of an illegitimate child by Respondent Ivonne
Reyes. Petitioner alleged that respondent fabricated stories which bordered on
the ridiculous.
Held: Marriage was void by virtue of the Molina guidelines, fulfilled by the
Petitioner.
FC Article 37: Marriages between the following are incestuous
and void from the beginning, whether the relationship between
the parties is legitimate or illegitimate.
1. Between ascendants and descendants of any degree
and
2. Between brothers and sisters, whether of full or half
blood.
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.
FC Article 39: The action or defense for the declaration of
absolute nullity of a marriage shall not prescribe. However, in
the case of marriages celebrated before the effectivity of this
code and falling under Article 36, such action or defense shall
prescribe in ten years after this code shall have taken effect.
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.
- Final judgment is needed to avoid confusion because one of
the parties may contract another marriage which would be
bigamous and therefore void during the pendency of the trial
for the other marriage.
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.
FC 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.
RA 8533
CC Article 390: After an absence of seven years, it being
unknown whether or not the absentee still lives, he shall be
presumed dead for all purposes, except for those of succession.
The absentee shall not be presumed dead for the purposes of
opening his succession till after an absence of ten years. If he
disappeared after the age of seventy-five years, an absence of
five years shall be sufficient in order that his succession may
be open.
CC Article 391: The following shall be presumed dead for all
purposes, including the division of the estate among the heirs;
1. A person on board a vessel lost during sea voyage, or
an airplane which is missing, who has not been heard
of for four years since the loss of the vessel or
airplane;
2. A person in the armed forces who has taken part in
war, and has been missing for four years;
3. A person who has been in danger of death under other
circumstances and his existence has not been known
for four years.
People vs. Mendoza
Facts: Appellant was married to Jovita de Asis on August 5, 1936. On May 14, 1941,
appellant married Olga Lema. On February 2, 1943, the first wife of appellant died.
On August 19, 1949, appellant married one Carmencita Panlilio. Appellant was then
charged with bigamy but he contended that his marriage to Olga Lema was void ab
initio and therefore non-existent. In that light, he claimed, that his marriage to
Carmencita was not bigamous.
Held: The marriage law in effect at the time the appellant contracted with his
second wife, Olga Lema, states that his marriage to Lema was void ab initio. No
judicial decree was necessary to establish its invalidity.
Tolentino vs. Paras
Facts: Serafia Tolentino was the wife of the deceased, Amado Tolentino. Petitioner
requested the correction of an entry on the death certificate of the deceased
which states that the name of his surviving spouse was Maria Clemente. Amado
Tolentino married his second wife, Maria Clemente while his first marriage was
still in effect. When the deceased was charged with bigamy, he pleaded guilty and
served the corresponding sentene. The petition was dismissed by Hon. Edgardo
Paras on grounds that the issue was a marital relationship, and that the court has
no jurisdiction.
Held: The petition was meritorious. The court had jurisdiction because the wife
was, initially, seeking a judicial declaration that she was the lawful spouse of the
deceased. The plea of guilt of the deceased effectively established that the second
marriage was in fact, void ab initio and that the petitioner was the lawful spouse.
Wiegel vs. Sempio-Diy
Lilia Wiegel appealed for the reversal of the decision of respondent judge, Sempio-
Diy because, in the petition for the declaration of nullity of marriage filed by Karl
Heinz Wiegel against petitioner, respondent judge ruled against the presentation
of evidence. When petitioner was married to the plaintiff, she had a previous
existing marriage. Petitioner claimed that the first marriage was void ab initio
because she was forced into marrying her first husband.
Held: There was no need to present evidence because if there had been, in fact,
intimidation during the first marriage, the said marriage would have been rendered
voidable and not void. Had the marriage been void, a judicial declaration would still
be necessary.
Terre vs. Terre
Facts: Petitioner charged Atty Jordan Terre with gross immoral conduct for
contracting a second marriage while he has a subsisting marriage. The petitioner
alleged that while she was still in her previous marriage with her first cousin, she
15
was courted by defendant and was advised that she was free to contract a second
marriage because her first marriage was void. Petitioner took the advise and
married herein respondent but, after a few years, the respondent took off. Later
the petitioner found out that respondent had contracted another marriage.
Held: A judicial declaration is necessary to determine whether a person is legally
free to contract a second marriage. Without such declaration, the subsequently
existing marriage is sustained.
Atienza vs. Brillantes
Facts: Complainant charged respondent Judge Fransisco Brillantes with gross
immoral conduct after having found said respondent sleeping in his own bed,
apparently cohabiting with his wife. Complainant left his wife and kids. Complainant
alleged that the said judge was, at that time, married to one Zenaida Ongkiko with
whom he had 5 children. Respondent denied the allegation saying that his marriage
with Ongkiko was void ab initio because it was solemnized without a marriage
license. Respondent likewise argued that Article 40 of the family code was not in
effect when his first marriage took place.
Held: Judicial declaration of nullity of a previous marriage is needed for purposes
of remarriage. The Family Code can be applied retroactively so long as vested
rights will not be impaired by its application.
Borja-Manzano vs. Sanchez
Facts: Complainant avers that she is the lawful wife of the late David Manzano. Her
husband contracted another marriage while the first one was still in effect,
solemnized by herein respondent judge. Respondent contends that he did not know
that the two were only legally separated and that all he knew was the two had
been cohabiting for seven years. He cited Article 34 which states that 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 5 years.
Held: The requisite of Article 34 is that there is no legal impediment between the
parties. The said article is merely a ground for exemption for marriage license. The
judge knew of the subsisting marriage as it was stated in the marriage certificate
and in the affidavit signed by the parties.
Domingo vs. Court of Appeals
Facts: Delia Soledad Domingo sought the judicial declaration of nullity of marriage
and separation of property against petitioner Roberto Domingo on the grounds that
the petitioner had a valid and existing marriage with one Emerlinda dela Paz. The
first wife sued petitioner for bigamy. Respondent claimed that the petitioner has
been dependent on her and since she left to work in Saudi, she has amassed some
P350,000 worth of properties which were under the possession and
administration of herein petitioner until respondent found out about the first
marriage. Petitioner alleged that there was no cause for action because the
marriage was void ab initio and judicial declaration of nullity of marriage is only
sought for purposes of remarrying and no such intention has been expressed.
Held: Although it is stated in the Family Code that judicial declaration is needed for
purposes of remarrying, it does not expressly state that it is exclusive for that
purpose alone. The Family Code provides that among the effects of the judicial
declaration is the immediate separation of property.
 Effects of Nullity
FC Article 50: The effects provided for by paragraphs 2, 3, 4,
and 5 of Article 43 and Article 44 shall also apply in the proper
cases to marriages which are declared void ab initio or annulled
by final judgment under Article 40 and 45.
The final judgment in such cases shall provide for the
liquidation, partition and distribution of the properties of the
spouses and the custody and support of the common children,
and the delivery of the presumptive legitimes, unless such
matters had been adjudicated in previous judicial proceedings.
All creditors of the spouses as well as of the absolute
community or the conjugal partnership shall be notified for the
proceedings for liquidation.
In the partition, the conjugal dwelling and the log on which it
is situated shall be adjudicated in accordance with the
provisions of Articles 102 and 129.
FC Article 51: In said partition, the value of the presumptive
legitimes of all common children, computed as of the date of
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 legitimes.
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 recoded in the appropriate civil
registry and registries of property; otherwise, the same shall
not affect the third persons.
FC Article 53: Either of the former spouses may marry again
after compliance with the requirements of the immediately
preceding Article; otherwise, the subsequent marriage shall be
null and void.
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 consicered
legitimate. Children conceived or born of the subsequent
marriage under Article 53 shall likewise be legitimate.
Ninal vs. Bayadog
Facts: Petitioners request the annulment of the marriage of their father to Norma
Bayadog. On September 26, 1974, Pepito married Teodulfa. Teodulfa died on April 24,
2985 and, on December 11, 1986, Pepito married Norma Bayadog. The marriage was
contracted without a license. Instead, the couple signed an affidavit stating that
they had been cohabiting as husband and wife for 5 years. The code in effect during
the time of the marriage was the Civil Code. According to Article 76 of the said
code, marriage between a man and a woman who have been living together for
more than 5 years no longer requires a marriage license. Pepito died in February
of 1997.
Held: Marriage of Pepito Ninal Sr. and Norma Bayadog is null and void. It is evident
that only 20 months elapsed between the time of the death of the first wife and
the marriage with the second wife. Had the two been cohabiting for five years,
such cohabitation, and the marriage, was not within the capacity of the deceased.
The children do not have standing to cause action but, because the marriage was
null and void, it is likewise non-existent.
- For marriages of exceptional character, there should be no
legal impediment on the part of either party. The one
contracting a marriage should have legal capacity to do so.
16

Voidable Marriages
 Grounds for Annulment
FC 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
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;
6. That either party was afflicted with a sexually-
transmitted disease found to be serious and appears
to be incurable.
Annulment and Legal Separation:
- Annulment is caused by some circumstance existing
at the time of the marriage while legal separation
arises after the celebration of the marriage;
- Annulment of marriage terminates the marital bond
between the parties while legal separation does not;
- Annulment of marriage once final, cannot be set aside
so as to restore the marital relation while legal
separation may be terminated and marital relations
resumed by the reconciliation of the parties.
The presumption of the law is generally in favor of sanity
and he who alleges the insanity of another has the burden
of proving it. Once general insanity is proved to exist, it is
presumed to continue; and if a recovery or a lucid interval
is alleged, the burden to prove such is on the person
making it.
A marriage may be annulled where one of the parties was
so intoxicated he or she had no mental capacity to give
valid assent.
For physical incapacity, impotence or sexually transmitted
disease to be a ground for annulment the following must
concur:
1. That it exists at the time of the celebration of the
marriage;
2. That it continues to the time when the case for
annulment is being tried;
3. That it appears to be incurable,
4. That the other contracting party is aware of it.
- In impotence, the person cannot have sex. In sterility, the
person cannot procreate.
- Impotence is not a ground for declaration of nullity because
the injured spouse may accept the impotence of his or her
spouse.
FC Article 46: The following shall constitute fraud:
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 sexually transmissible disease,
regardless of its nature, existing at the time of the
marriage;
4. Concealment of drug addiction, habitual alcoholism or
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.
-A marriage cannot be annulled simply on the ground that the
wife concealed the fact that she had been lewd and corrupt and
had an illegitimate child prior to the marriage.
FC Article 48: In all cases of annulment or declaration of
absolute nullity of marriage, the court shall order the
prosecution attorney or fiscal assigned to it to appear on behalf
of the State to take steps to prevent collusion between the
17
parties and to take care that evidence is not fabricated or
suppressed.
RPC Article 344: The crimes of adultery and concubinage shall
not be prosecuted except upon a complaint filed by the
offended spouse.
The offended party cannot institute criminal prosecution
without including both the guilty parties, if they are both alive,
nor in any case, if he shall have consented or pardoned the
offenders.
Force- Physical injury, violence, irresistible intimidation or
threat
Undue influence- a person who takes improper use of his power
- The person who can ratify is the injured party;
- The injured party can file for annulment within five
years
- If the injured party freely cohabited after the
cessation of the ground for annulment (except in
impotence and sexually transmitted diseases), he is
estopped from annulling the marriage.
RATIFICATION cures the defect of the marriage and it
retroacts to the day of the marriage or the day of giving
consent.
Katipunan vs. Tenorio
Facts: Plaintiff Marcos Katipunan brought action against Rita Tenorio seeking the
annulment of their marriage. He alleged that the defendant was not of sound mind
at the time they contracted marriage. According to the guardian of the defendant,
Tenorio only suffered ailment after giving birth to her 4 th child.
Held: The couple cohabited for seven years and plaintiff admitted that there had
been lucid intervals therefore, the marriage cannot be annulled. Insanity has to be
a permanent condition. If at the time of the celebration of the marriage there was
nothing wrong with the mental health of the other spouse, marriage cannot be
annulled.
Aquino vs. Delizo
Facts: Petitioner requests the annulment of her marriage on the ground of fraud,
claiming that his wife was 4 months pregnant at the time that they were married
and the child was that of another man. The appellate court dismissed the petition
on the grounds that it was unbelievable that the petitioner was unable to tell if his
wife was pregnant.
Held: Petition must be granted because pregnancy is hardly noticeable at five
months and the wife was plump.
Anaya vs. Palaroan
Facts: Defendant Fernando filed an action for annulment on grounds that his
consent to the marriage was obtained through force and intimidation. The
complaint was dismissed. Herein petitioner then sought the annulment of her
marriage to Fernando on the grounds of fraud, saying that her husband concealed
the fact that he had marital relations with another woman prior to the marriage.
Held: Concealment of premarital relations was not among the kinds of fraud stated
in the Civil Code (Family Code). The pertinent provision is not subject to
interpretation as it was also expressly stated that “no other misrepresentation
or deceit shall constitute fraud.”
Ruiz vs. Atienzs
Acts: Plaintiff requests the annulment of her marriage on the ground that his
consent was given under duress. His wife, whom he had premarital relations, bore
a child. When the child was born, the father of his wife allegedly approached him
with a knife and in the company of a lawyer. The lawyer threatened his entrance
to the bar.
Held: Petition cannot be granted because the petitioner had several chances of
escape before the marriage and because his wife bore his own child. Where a man
marries under threat of or constrain from lawful prosecution for seduction or
bastardy, he cannot avoid marriage on the ground of duress. Proof of bodily harm
must be sufficiently shown. Threat to obstruct admission to the bar does not
constitute duress. Only if the threat is so grave that the person is not acting in his
own freewill that a marriage becomes void.
RELUCTANCE vs. VITIATION
- In reluctance, the person consents to the marriage but
gives it anyway.
- In vitiation, there is an actual, external force
Jimenez vs. Canizares
Facts: Petitioner filed an action to annul his marriage to respondent on the ground
that the orifice of the vagina of his wife was too small to allow penetration. For
that reason, petitioner has left the conjugal abode. The defendant failed to comply
with the order of medical examination and so, the lower court granted the
annulment.
Held: Presumption will always be in favor of potency. It is understandable that a
woman would refuse to subject herself to physical examination. The testimony of
one party is not sufficient to annul the marriage because to do so will open the
court to cases of collusion between the spouses for the annulment of their
marriage.
Sarao vs. Guevara
Facts: On the day of the marriage of the plaintiff and the defendant, the marriage
was not consummated because the defendant complained of pains. The defendant
was operated on and her uterus and ovaries were surgically removed. The removal
rendered the defendant incapable of procreation as such, plaintiff wants his
marriage with the respondent annulled.
Held: Impotency is not inability to procreate but inability to copulate. Inability to
copulate cannot be a ground for annulment and a temporary or occasional
incapacity cannot be used as a ground to nullify a marriage.
People vs. Santiago
Suntay vs. Cojuangc-Suntay
Facts: Petitioner opposed the petition filed by respondent for the issuance of
letters of administration (of the estate of her paternal grandmother) in her favor
on the grounds that he was the surviving spouse of the deceased, and that the
petitioner and the deceased have been alienated from the family of the respondent.
He likewise alleged that respondent was not a legitimate child because the
marriage of her parents, Emilio Aguinaldo Suntan (son of petitioner) and Isabenl
Cojuangco-Suntay was declared null and void because Emilio was found to be
schizophrenic at the time of his marriage.
Held: A child born out of a voidable marriage before the decree of annulment is
considered a legitimate child.
- Void marriages are deemed never to have taken place
at all but the children born of that marriage who are
called natural children by legal fiction have the same
status, rights and obligations as acknowledged
children.
- Voidable marriages are considered valid and produces
all it civil effects until it is set aside by final judgment
of a competent court in an action for annulment. The
annulment fo the marriage dissolves the special
contract but the effects of the marriage will not be
wiped out completely. Children born of voidable
marriages shall be considered legitimate.
- To annul means to reduce to nothing. Null and void
means something does not exist from the beginning.
 Marriage when one spouse is absent
CC Article 83: A marriage subsequently contracted by any
person during the lifetime of the first spouse of such person
with any person other than such first spouse shall be illegal and
void from its performance unless:
1. The first marriage was annulled or dissolved;
2. The first spouse had been absent for seven
consecutive years at the time of the second marriage
without the spouse present having news of the
18
 absentee being alive, or if the absentee though he has
been absent for less than seven years, is generally
considered as dead and believed to be so by the
spouse present at the time of contracting such
subsequent marriage, or if the absentee is presumed
dead according to articles 390 and 391. The marriage
so contracted shall be valid in any of the three cases
until declared null and void by a competent court.
CC Article 85: A marriage may be annulled for any of the
following causes, existing at the time of the marriage:
(2) In a subsequent marriage under article 83, number 2, that
the former husband or wife is believed to be dead was in fact
living and the marriage with such former husband or wife was
then still in force.
Jones vs. Hortiguela
Facts: Petitioner requests that she be declared the sole heir of the intestate
estate of Marciana Escano, her mother. Prior to the motion, at the time when
petitioner was still a minor, respondent was awarded a fixed rate of P10,000 for
the administration of the estate of the deceased. Petitioner alleged that when her
mother remarried in May 1927, the judicial declaration of the absence of her father
was not yet effective. As such, the marriage of the deceased and the respondent
was null and void.
Held: Petition denied. Absence of one spouse shall be counted from the last day of
communication or from the reception of the last news regarding the absent
spouse. In this case, the first spouse was absent for 9 years.
 Effects of pending action or decree
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 recorded in the appropriate civil
registry and registries of property; otherwise, the same shall
not affect third persons.
FC Article 53: Either of the former spouses may marry again
after compliance with the requirements. Subsequent marriage
shall be null and void.
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.
CC Article 371: In case of annulment of marriage, and the
wife is the guilty party, she shall resume her maiden name and
surname. If she is the innocent spouse, she may resume her
maiden name and surname. However, she may continue
employing her former husband’s surname, unless:
1. The court decrees otherwise;
2. She or the former husband is married again to another
person.
CC Article 369: Children conceived before the decree
annulling a voidable marriage shall principally use the surname
of the father.

FC Article 49: During the pendency of the action and in the  Jurisdiction
absence of adequate provisions in a written agreement
between the spouses, the Court shall provide for the support Estrellita J. Tamano vs. Hon. Rodolfo Ortiz
of the spouses and the custody and support of their common Facts: Petitioner assailed the decision of a lower court which rejected the motion
children. The Court shall give paramount consideration to the to dismiss she filed against the motion for declaration of nullity filed by private
moral and material welfare of said children and their choice of respondent. Private respondent alleged that the marriage of the Petitioner to her
parent with whom they wish to remain as provided for in Title husband must be declared null and void on the ground of bigamy. At the time of the
IX. It shall also provide for appropriate visitation rights for the marriage of petitioner and her deceased husband, private respondent was still also
other parent.
married with him. Petitioner contended that the Regional Trial Court had no
FC Article 50: The effects provided for by paragraphs (2), (3),
jurisdiction because both the petitioner and the deceased were Muslims.
(4), (5) of the Article 43 and by Article 44 shall also apply in Held: Under the Judiciary Reorganization Act of 1980, Regional Trial Courts have
the proper cases to marriages which are declared void ab initio jurisdiction over all actions involving the contract of marriage and marital
or annulled by final judgment under Articles 40 and 45. relations. In this case, both the petitioner and the deceased were married through
The final judgment in such cases shall provide for the a civil wedding and whether or not they were likewise married in a Muslim
liquidation, partition and distribution of the properties of the wedding, shari’a courts are still not vested with original and exclusive jurisdiction
spouses, the custody and support of the common children and over marriages married under civil and Muslim laws.
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 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 Articles 102
and 129.

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 legitimes.

19

LEGAL SEPARATION
 Grounds
FC 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;
3. Attempt of respondent to corrupt or induce 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 of respondent of a subsequent bigamous
marriage, whether in the Philippines or abroad;
8. Sexual infidelity or perversion;
9. Attempt of the respondent on the life of the petitioner;
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.
Violence- must be of a serious degree but does not have
to amount to an attempt against the life of the defendant
- The violence must be repeated, to the extent
that common life with defendant becomes
extremely difficult for the plaintiff.
- Physical violence or moral pressure to compel
the plaintiff to change religious or political
affiliation need not be repeated. There must be
some element of coercion present, whether
physical or moral.
- The guilt for the corruption or inducement to
prostitution must be on only one spouse.
- The crime for which a spouse may have been
convicted may have no bearing at all on the
relationship of the husband and wife.
- If drug addiction, habitual alcoholism,
lesbianism or homosexuality existed at the
time of marriage but were unknown to the
other party, they would constitute a ground for
annulment of marriage as fraud. If they come
to exist after the celebration of the marriage,
they become grounds for legal separation.
- Every subsequent marriage, where there is a
subsisting prior marriage, should give the other
spouse the right to ask for legal separation.
This is so because the spouse who has
remarried has cohabited with another person.
- Under the Family Code, every act of sexual
infidelity by either husband or wife is a ground
for legal separation.
- Sexual perversion as a ground for legal
separation includes all unusual or abnormal
sexual practices which may be offensive to the
feelings or sense of decency of either husband
or wife. There must also be an element of
coercion exercised by the defendant to make
the plaintiff submit to the act.
- There is abandonment when one spouse leaves
the other without intent to return.
- Attempt on the life must imply that there is
intent to kill
- Under Article 101 of the Family Code, “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.”
CC Article 97: A petition for legal separation may be filed:
1. For adultery on the part of the wife and for
concubinage on the part of the husband as defined in
the Penal Code; or
2. An attempt by one spouse against the life of the other.
Adultery- The act of a wife having sexual intercourse with any
other man not her husband will constitute adultery.
Concubinage- The act of the husband having sexual intercourse
with his wife shall constitute concubinage if:
1. He maintains a mistress in the conjugal dwelling;
20
 2. there is sexual intercourse with the other woman
under scandalous circumstances;
3. the husband cohabits with another woman other than
his wife in any other place.
Cohabit- to dwell or live together in the same house as husband
and wife.
Legal Separation vs. Separation of Property
- In legal separation, there is a suspension of the
common marital life, both as to person and
property.
- In separation of property, only the property
relation is affected and the spouses may
continue living together.
- Separation of property can be effected by
agreement of the spouses, subject to judicial
approval; but a decree of legal separation
cannot be rendered upon agreement of the
parties.
Legal Separation vs. Separation of Spouses
- Legal separation can be effected only by decree
of the court; but the spouses may be separated
in fact without any judgment of the court.
People vs. Zapata and Bondoc
Facts: Petitioner husband Andres Bondoc filed a complaint of adultery against his
wife, Guadalupe Zapata and her paramour, Dalmacio Bondoc. The two respondents
cohabited and had repeated sexual intercourse from 1946 to March 1947. The
defendant wife entered a plea of guilty and was sentenced to suffer four months
in prison. Respondent Dalmacio Bondoc on the other hand, claimed that he did not
know that Guadalupe Zapata was married. On September 1948, petitioner once
again filed a complaint of adultery for acts committed from March 1947 to
September 1948. Defendant then filed a motion to quash on the ground that they
will be twice put in jeopardy. The motion was granted by the lower court on the
ground that adulterous acts must be considered as a continuing offense.
Held: The court held that adultery as a crime of result and not of tendency, is
consummated at the moment of carnal union. Continuous crimes exist if there is a
plurality of acts performed separately during a period of rime, unity of penal
provisions violated and unity of criminal intent or purpose. In short, continuous
crimes are aimed at committing a single offense. In adultery, each instance of
sexual intercourse is a separate crime. Also, the court held that there is no legal
provision which bars the filing of as many complaints for adultery as there were
adulterous acts committed.
Munoz vs. Del Barrio
Facts: Felicidad Munoz and Jose del Barrio quarreled frequently and on those
occasions, petitioner complained that the husband maltreated her. In 1947, they
separated but on December 1950 and September 1951, the husband once again
maltreated petitioner, prompting her to institute an action for legal separation on
the ground of attempt to life. Petitioner requested that she be given custody of
her children, that whatever will remain of the conjugal property be divided, and
the conjugal partnership be dissolved.
Held: The Supreme Court affirmed the decision of the lower court. It held that the
alleged maltreatment cannot constitute an attempt to life because such has to be
characterized by intent to kill which was not sufficiently proven especially since
the respondent only used his bare hands. Intent to kill, the court said, must be
established with clear and convincing evidence.
Gandionco vs. Penaranda
Facts: Respondent judge Hon. Senen C. Penaranda ordered petitioner to pay for the
support of private respondent Teresita Gandionco and his child. Private respondent
filed a complaint for legal separation against petitioner on the ground of
concubinage. Private respondent likewise requested for support and payment of
damages. Petitioner Froilan Gandionco claims that the civil action for legal
separation and the application for support should be suspended because of the
pending criminal case for concubinage filed against him. His contention was based
on Article 111 Section 3 of the 1985 Rules on Criminal Procedure which states that
a pending civil action instituted for civil liabilities should be suspended until the
criminal action arising from the same offense is over.
Held: The court held that a civil action for legal separation may proceed ahead of
or simultaneously with a criminal action for concubinage because the said civil
action is not one to “enforce civil liability” but rather to obtain the right to live
separately. Petitioner’s argument that conviction for concubinage must be
secured before an action on legal separation can prosper lacks merit because
unlike in criminal procedures, proof of concubinage in a civil procedure is based on
preponderance of evidence and not proof beyond reasonable doubt.
US vs. McMann
Facts: Defendant Robert McMann and one McKay were employed at the
Quartermaster’s Department of the Army. While at the place of a certain Moro,
Amay Pindolonan asking for matches to light a cigarette, McMann suddenly fired
at McKay. McKay was struck in the back of the head and killed instantly. Amay
Pindolonan tried to run but McMann also shot him. Defendant claimed that he had
no intention to shoot McKay as they were good friends and that the shooting was
merely an accident. The defendant also claimed that he was drunk at the time of
the incident.
Held: To convict a man of the offense being a common drunkard it is necessary to
show that he is a habitual drunkard to the point that he has a fixed habit of
drunkenness.
Lapus Sy vs. Sy Uy
Facts:A case for legal separation was filed by Carmel Lapuz Sy against Eufemio Sy
Uy on the ground of abandonment. She prayed for the issuance of a decree of legal
separation and that her partner be deprived of their conjugal partnership profits.
Petitioner also claimed that respondent was cohabiting with a certain Go Hiok.
Respondent then filed a counter-dlaim for the declaration of nullity ab initio of his
marriage with petitioner on the ground that he had a subsisting marriage with Go
Hiok. During the course of the trial, petitioner died and her father, Macario Lapuz,
moved to substitute. Eufemio moved to dismiss the substitution because the death
of the petitioner should, as he alleged, abate the action for legal separation.
Held: The death of one of the parties to the action abates the action itself because
action for legal separation is purely personal hence, when one of the parties is
dead, there is no longer a need for the decree. Conjugal property are likewise not
assignable or transmissible therefore, it doesn not warrant a continuation of the
action through substitution.
Dela Cruz vs. Dela Cruz
Facts: Estrella dela Cruz filed a complaint against her husband alleging that the
latter has abandoned their family and has not slept or visited the conjugal dwelling
since 1955; that defendant was mismanaging their conjugal partnership properties
and as such has abused his powers of administration and that defendant had a
concubine named Nenita Hernandez. Petitioner then asked for the separation of
their property, a monthly support of P2,500 during the pendency of the action and
payment of P20,000 in attorney’s fees.
Defendant contended that he did not abandon his family and has not failed to give
them a monthly allowance of around P1,500. He stated that he is merely separated
from his wife because he cannot concentrate on their business but he never failed
to visit his family. Petitioner allegedly played mahjong often while respondent
consistently applied his industry so that their business will grow.
Held: The court held that abandonment must be real abandonment and not mere
separation. It must not only be physical estrangement. “Abandon” in ordinary sense
means to forsake completely with intent never again to resume or claim one’s
rights or interests. There must therefore be absolute cessation of marital
relations, duties and rights with the intention of perpetual separation.
 Defenses
FC 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;
21
 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.
- Condonation is the forgiveness of a marital
offense constituting a ground for legal
separation, and bars the right to legal
separation. It may be expressed, in the sense
that it is in writing or implied as inferred from
the action of the injured party.
- Where a party has clear and convincing
knowledge of the offense and then deliberately
and willfully cohabits or has sexual intercourse
with the offender, he or she thereby impliedly
pardoned the offender’s act.
- Consent is agreement or conformity in advance
of the commission of the act which would be a
ground for legal separation.
- Connivance implies agreement, express or
implied, by both spouses.
- A husband who actively connives in the
adultery of his wife by procuring her to be lured
into the commission of the act will very
generally be presumed to have consented to
the adultery and will be denied legal separation
on that ground.
- A husband must not actively participate in
preparations for the suspected misconduct by
providing opportunity for the wrongdoing.
- Collusion is the agreement between husband
and wife for one of them to commit or to appear
to commit or presented 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 legal
separation.
People vs. Sensano and Ramos
Facts: After the birth of the first child of complainant Mariano Ventura and
respondent Ursula Sensano, complainant left for Cagayan de Oro. Complainant did
not write, call or send anything in form of support for three years. Respondent
then cohabited with Marcelo Ramos with the belief that her husband will not
return again. Complainant returned and filed a complaint of adultery against
respondents. The court held in favor of the plaintiff but opined that the plaintiff
treated his family with cruelty in abandoning them. After sentence, accused wife
left her paramour and begged for the forgiveness of plaintiff but she was turned
away. She then went back to Marcelo Ramos. Plaintiff then left for Hawaii and upon
his return after seven years, he once again filed a charge of adultery.
Held: The court held that under Article 34 of the RPC, the offended party cannot
file a complaint of adultery if he consented to it. The court was of the belief that
complainants action of turning away the defendant constituted a consent and as
such he estopped from filing a case.
-Constructive Abandonment- The injured party leaves the wife or the spouse
refuses the re-entry of the offending spouse.
De Ocampo vs. Florenciano
Facts: Petitioner Jose de Ocampo filed a complaint of adultery against his wife but
was denied by the Court of First Instance. Through several testimonies, it was
found that in March 1951, defendant maintained illicit relations with one Jose
Arcalas. After plaintiff found out, defendant was sent to Manila to study wherein
she had several illicit relations with other men. On June 1955, plaintiff found his
wife in the act of sexual intercourse with one Nelson Orzame. Plaintiff then and
there told his wife of his intention of filing for legal separation. The Court of
Appeals held that the time for filing a charge of adultery on the first case had
prescribed. Also, on the second case, CA held that they cannot render a decree of
separation on the ground of confession of judgment.
Held: The court held that the “confession of judgment”--which happens when a
defendant confesses in court the right of plaintiff to his demand, did not occur
because such confession happened outside of court. Had there been a confession of
judgment, the decree should still be granted since there was a preponderance of
evidence as provided by the plaintiff. If the court will not allow separation despite
of the evidence, any defendant who opposes separation will merely confess in
court.
Sargent vs. Sargent
Facts: Petitioner Donald Sargent charged his wife, respondent Frances L. Sargent
with adultery alleging that defendant wife had illicit relations with Charles
Simmons, a black man and the couple’s driver. Petitioner alleged that defendant
wife contracted gonorrhea from the illicit relations. Petitioner then hired
detectives to prove the said illicit relations, and said detectives testified along
with other servants, all of whom were employed by petitioner. The detectives in
one instance shut the door of the room of respondent wife while respondent
Charles Simmons was inside to make it appear as though they were having illicit
relations.
Held: The court held in favor of the defendant. The detectives surveilled Mrs.
Sargent for over seven weeks but no solid evidence of the alleged adultery was
procured. Mr. Sargent also appeared to have connived with the detectives to show
that his wife was indeed having sexual relations. Where the husband employs
detectives to get evidence of his wife’s adultery, but the adultery is brought about
by the detective himself, legal separation can be denied on the ground of
connivance.
Brown vs. Yambao
Facts: William H. Brown filed an action to obtain legal separation against his wife,
Juanita Yambao. He found out that his wife has adulterous relations with one
Carlos Feld at the time when petitioner was interred by the Japanese invaders. He
discovered the said relation when in 1945, his wife begot a child. A document was
executed for the liquidation of their conjugal partnership property and as such,
complainant wants confirmation of liquidation, custody of children and the
disqualification of defendant from succession. In the cross examination of
petitioner it was found that he was also cohabiting with another woman and had a
child with that woman.
Held: The court held that the misconduct of petitioner barred him from obtaining
legal separation and in this case, the misconduct and failure of the wife to institute
action against petitioner’s misconduct constituted circumstantial evidence of
collusion.
Willan vs. Willan
Facts: Husband appeals the decision by court to deny his petition for the dissolution
of his marriage on the ground that he condoned the cruelty of his wife. Petitioner
alleged that his wife repeatedly assaulted him, was habitually offensive and
frequently demanded to have sexual intercourse with him. Respondent allegedly
resorted to violence and pestering, forcing complainant to agree to sexual
intercourse. Solicitors have allegedly written the wife regarding the matter but
to no avail. The night before leaving the conjugal dwelling, petitioner and respondent
once again had sexual intercourse.
Held: The court held in favor of the defendant as they found it impossible that a man
may have sexual relations and not condone the said relations. Unwillingness, the
court said, is not the same as involuntariness.
Bugayong vs. Ginez
Facts: After their marriage, petitioner Benjamin Bugayong and Defendant Leonila
Ginez agreed that defendant would stay with petitioner’s sisters while petitioner
worked in the United States as a serviceman. For some time, defendant lived with
petitioner’s sisters but she eventually left to live with her mother and then moved
to Dagupan to study. Petitioner received letters from his sister-in-law that
defendant was having adulterous relations and petitioner alleged that defendant
herself wrote him that she was kissed by another man. When petitioner returned,
22
they lived together for two nights and one day. On the second day, when petitioner
asked the defendant if there was any truth to the allegations of adultery,
defendant did not answer but instead, left. The petition was dismissed by the lower
court on the ground that petitioner had condoned the said illicit relations of his
wife.
Held: The petitioner, having slept with the defendant for two nights, has condoned
the adulterous relations. Any cohabitation with the guilty party, after the
commission of the offense, and with knowledge or belief is considered conclusive
evidence of condonation.
Matubis vs. Praxedes
Facts: Soccoro Matubis filed a complaint for legal separation alleging that Zoilo
Praxedes had abandoned her and was guilty of concubinage. According to her
testimony, barely a year after their marriage, plaintiff and defendant agreed to
live separately after failing to agree on where they should live as husband and
wife. They entered into an agreement which stipulated the conditions and
provisions for their de facto separation. In 1955, defendant began cohabiting with
another woman and had another child by her.
Held: The time for instituting action has prescribed. The stipulations in the
agreement which stated that both spouses relinquished their rights as husband
and wife, and was free to get any mate and live with him or her as husband and
wife, constituted consent and condonation.
 When to File/ Try Actions
FC Article 57: An action for legal separation shall be filed
within five years from the time of the occurrence of the cause.
FC 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.
- If the ground for legal separation is violence against women,
there should be no effort to compromise.
FC Article 59: No legal separation may be decreed unless the
Court has taken steps towards the reconciliation of the spouses
and is fully satisfied, despite such effort, that reconciliation is
highly improbable.
FC 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 take steps to prevent collusion between the parties
and to take care that the evidence is not fabricated or
suppressed.
Contreras vs. Macaraig
Facts: Elena Contreras appealed the decision of the Juvenile and Domestic Relations
court of Manila which dismissed her complaint of adultery against Cesar J.
Macaraig on the ground that the time for filing an action has prescribed. In 1961,
defendant met Lily Ann Alacala and had started to come home late and be away
often. In September 1962, Avelino Lubos, the family driver, told Elena that her
husband was living with Alcala. When defendant came home in October, plaintiff did
not verify the report so that defendant will not get angry. In April 1963, plaintiff
once again heard rumors of the alleged misconduct of her husband. It was only upon
hearing reports that Lily Ann Alcala had given birth did plaintiff sent Mrs. Felicisima
Antioquo to investigate. The latter confirmed on October 1963 that a child had been
born by Alcala, bearing the surname of defendant. Plaintiff, through her father and
sister-in-law, tried to convince the defendant to come back but defendant told her
that he can no longer leave Lily Ann. The lower court held that the word “cognizant”
does not connote the date when proof was sufficient because the time indicated
by the code would have been rendered meaningless as all one would need to do is
fix the date.
Held: The court held that plaintiff had reason not to file an action because she had
hoped that defendant would return. The only time that defendant therefore that
plaintiff became cognizant of the alleged infidelity of the defendant was when the
husband stated that he was living with, and no longer be leaving, Lily Ann Alcala.
Somosa Ramos vs. Vamenta Jr. and Clemente Ramos
Facts: Petitioner Lucy Somosa Ramos filed a civil case for legal separation against
Clemente Ramos on the ground of concubinage and attempt to life. She also sought
the issuance of a writ of preliminary mandatory injunction for the return of her
paraphernal and exclusive property then in the administration of the defendant.
An opposition to the hearing of the motion was filed based on Article 103 of the Civil
Code which states that an action for legal separation shall not be tried before six
months had elapsed since the filing of the petition. Respondent judge held in favor
of the defendant who claimed that any prospect for reconciliation will be lost if
the motion was tried.
Held: The court held that Art. 103 of the Civil Code is not an absolute bar to the
hearing of a motion for preliminary injunction prior to the expiration of the six-
month period. Art. 104 states that the court may appoint another person to
manage the property should it deem it proper. The six-month bar should not have
the effect of overriding the provisions such as determination of the custody of the
children, alimony and support pendent lite.
 Effects of Filing a Petition
FC 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 guardian
under the Rules of Court.
FC Article 62: During the pendency of the action for legal
separation, the provisions of Article 49 shall likewise apply to
the support of the spouse and the custody and support of the
common children.
- The spouses can live separately from each
other;
- The administration of the common property,
whether in absolute community or conjugal
partnership gains, shall be given by the court
to either of the spouses or to a third person, as
is best for the interest of the community;
- The court shall provide for the support between
the spouses and the custody and support of the
common children;
- When the consent of one spouse to any
transaction of the other is required by law,
judicial authorization shall be necessary unless
such spouse voluntarily gives consent.
Alimony “pendent elite”- During the pendency of the suit for
legal separation, it is the duty of the court to grant alimony to
the wife and to make provisions for the support of the children
not in the possession of the father.
- An action for legal separation is based on the
assumption that there is a valid, subsisting
marriage thus, if defendant contends that the
marriage is not valid, alimony “pendente elite”
shal be denied.
Custody of the children may be determined by:
1. Agreement of the spouses which shall not be disturbed
unless prejudicial to the children;
2. Court order which shall be based on the sound
discretion of the judge, taking into account the welfare
of the children.
Dela Vina vs. Villa Real
Facts: Respondent Narcisa Geopano filed a complaint against Diego delaVina alleging
that he committed acts of adultery with one Ana Calog. Respondent likewise
alleged that she had been rejected from their conjugal home and had no means of
23
support. She requested for the decree of divorce, partition of conjugal property
and alimony. After filing the complaint, respondent also found that petitioner was
trying to alienate the conjugal property to the prejudice of the plaintiff. Thus,
plaintiff asked that a preliminary injunction be issued against defendant. The lower
court ruled in favor of plaintiff-respondent as such, herein petitioner contended
that the court had no jurisdiction over the case because the domicile residence of
the wife was not Iloilo and that as administrator of the conjugal property, he had
a right to alienate his wife.
Held: The court held that a wife may acquire another and separate domicile from
that of her husband when the theoretical unity of husband and wife is dissolved or
if husband has given cause for divorce or where there is separation of the parties
by agreement or a permanent separation due to desertion or cruel treatment or
where there has been a forfeiture of the benefit of domicile. Also, petitioner’s
claim that he had a right to alienate responded lacked merit. Court held that when
the harmonious relationship between husband and wife ceases, it is but right that
the husband’s powers of administration be curtailed in light of the pendency of the
action for separation.
Reyes vs. Ines-Luciano and Reyes
Facts: Celia Ilustre Reyes filed a complaint for legals separation against her
husband, Manuel J. C. Reyes on the ground that the latter had attempted to kill the
plaintiff. Plaintiff and herein respondent asked for support pendent elite for her
and her three children which was granted by the lower court and respondent judge
awarded plaintiff with P5,000 in monthly support. Petitioner opposed the ruling of
the lower court on the ground that his wife committed adultery.
Held: The court held that while adultery is a good defense, it should be established
by competent evidence. In the case at hand, petitioner did not present evidence to
that effect. Also, the plaintiff-respondent was not asking for mere support but for
her share of the conjugal property or alimony. Complainant has also proven the
grounds of legal separation through competent evidence.
Property relations of unmarried couples is that of co-ownership based on actual
contribution and not the presumed half and half as it is in conjugal partnership.
Pendente Lite: Pending Litigation
 Effects of Decree
Banez vs. Banez
Facts: On Sept. 23, 1996, Aida P. Banez was legally separated from Gabriel Banez on
the ground of the latter’s sexual infidelity. Included in the decision is the dissolution
of their conjugal property relations, division of their net conjugal assets,
forfeiture of respondent’s share in favor of the common children and the urgent
ex parte motion to modify the decision and oblige petitioner to pay as attorney’s
fees 5% of the total value of respondent’s ideal share. On the motion for execution,
respondent Gabriel opposed. Trial court denied Aida’s motion for moral and
exemplary damages and litigation fees but granted the motion for execution.
Petitioner was thereby ordered to post a P1.5 M bond which she did. The Court of
Appeals set aside the writ for execution.
Held: The court denied the motion of execution n the ground that execution pending
appeal is allowed when superior circumstances demanding urgency outweigh the
damages that may result from the issuance of the writ. Otherwise, the writ will
be a tool for oppression and inequity. Such urgency is not manifested by the case
at bar. Legal separation is not one where multiple appeals are allowed. The issues
involved in the case are of the same marital relationship between the parties. In
this case, dissolution is a mere incident of legal separation. As such, no separate
action may be taken.
FC 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.
- The obligation of mutual fidelity remains. The only
sanction in case of adultery or concubinage shall be
penal.
- After the decree, the obligation of mutual support
between the spouses ceases; however the court may
order that the guilty spouse shall give support to the
innocent spouse.
- A parent shall still have a right to access his child
under court regulation, unless he forfeited the
privilege or if it would injuriously affect the child.
- The guilty spouse shall not be entitled to the legitime.
- A decree of separation which does not include an order
of division of properties is not an incomplete
judgment. The rules on dissolution and liquidation of
property regime shall be applied when the decree of
legal separation becomes final.
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 beneficiary in any insurance
policy, even if such designation be stipulated as irrevocable.
The revocation of the donations shall be recorded in the
registries of property in the places where the properties are
located. Alienations, liens and encumbrances registered in
good faith before the recording of the complaint for revocation
in the registries of property shall be respected. The revocation
of or change in the designation of the insurance beneficiary
shall take effect upon written notification thereof to the
insured.
The action to revoke the donation under this Article must be
brought within five years from the time the decree of legal
separation has become final.
- The donations subsist if action is not taken before the
death of the spouse.
PD 612 (Insurance Code) Sec. 11: The insured shall have
the right to change the beneficiary he designated in the policy,
unless he has expressly waived this right in said policy.
Dissolution and Liquidation of ACP or CPG
La Rue vs. La Rue
Facts: Upon the divorce of Walter F. La Rue from Betty J. La Rue in March 1980, the
trial court held that the wife, having been a homemaker, was not entitled to her
claim to the equitable distribution of marital assets. Petitioner Betty La Rue
worked in the early part of their marriage until Mr. La Rue, herein respondent,
convinced her to stop working and become a homemaker. The couple had two
children. The divorce only awarded Mrs. La Rue with alimony and allowance for
healthcare. Their home which was once under the name of Mrs. La Rue was
transferred under Mr. La Rue prior to the decree of divorce.
Held: Where the spouse has foregone career opportunities at the behest of the
primary wage earning spouse, and throughout the long marriage has remained in
the home to rear children and provide suitable environment for the family, the
homemaker spouse shall have an equitable interest in real property acquired by
the wage earning spouse during their marriage.
Doctrine of Equitable Distribution
24
 - Permits a spouse who has made material economic
contributions toward the acquisition of property which
is titled in the name or under the control of the other
spouse, to claim an equitable interest in such property
in proceeding to seek a divorce.
- The concept of homemaker services is not to be
measured by some mechanical formula but instead
rests on showing that the homemaker has contributed
to the economic well-being of the family unit.
Custody
 Determining the Best Interest of the Child:
1. Gender and Tender Years Presumption: When dealing
with children of tender years, the natural mother is
presumed in absence of evidence to the contrary, to
be the proper person vested with custody of such
children.
PD 603 Article XVII: …In case of separation of his parents,
no child under five years of age shall be separated from his
mother unless the court finds compelling reasons to do so.
Ex Parte Devine
Facts: Petitioner Christopher P. Devine and respondent Alice Beth Clark Devine
were separated on March 29, 1979. The couple had two children considered to be
of tender years based on the Tender Years Presumption. Both Mrs. Devine and Mr.
Devine were found to be fit to care for the children but on account of the Tender
Years Presumption, custody was awarded to respondent. Petitioner contended
that the Tender Years Presumption deprived him of the constitutionally mandated
right of equal protection of the law.
Held: Petition is granted. Case remanded to the lower court.
In common law, the Tender Years Presumption was in favor of the husband who
was the master of the family. While Alabama recognize the factual presumption
that mothers are inherently suitable to care for and nurture young children, the
presumption is weakening in other states. With this presumption, it becomes the
father’s burden to prove that the mother is unfit to care for their common child.
The constitutionality of this presumption, the court held, may not be lawfully
mandated solely on the basis of sex.
Cervantes vs. Fajardo
Fact: This is a petition for a writ of habeas corpus of minor Angeline Anne C.
Cervantes filed by Nelson L. Cervantes and Zenaida C. Cervantes against Gina
Carreon Fajardo and Conrado Fajardo. After the birth of Angeline Anne,
respondents offered the child for adoption to Zenaida, Gina’s sister, and Nelson, her
brother-in-law. The petitioners have taken care of the child since she was two
weeks old and an Affidavit of Consent to Adoption was executed. On Aug. 20, 1987,
the petition for adoption was granted and the child’s surname was changed to
Fajardo. She was, from that decision, freed from parental authority and legal
obligation of her natural parents. On April 1987, petitioners received a letter from
respondents demanding P150,000 for the return of their adopted child who was
taken by respondent Gina Carreon.
Held: The court reaffirmed the decision of the lower court. The provision that no
mother shall be separated from a child under five years of age will not apply where
the court finds compelling reasons to rule otherwise. Because the adoptive
parents are legally married and the respondent’s relationship with her husband is
that of common law and that respondent has given birth to a child by another man,
the court held that it will be in the child’s best interest to stay with her adoptive
parents.
Espiritu v. Court of Appeals
Facts: Petitioner Reynaldo Espiritu and respondent Teresita Masauding met in 1976.
In 1977, respondent left for Los Angeles, California to work as a nurse. In 1984,
National Steel Corporation sent petitioner to Pittsburgh Pennsylvania as a liason
officer and from then on, petitioner and respondent maintained a common law
relationship. On August 16, 1986, their first child was born. The couple was married
in October 1987 in the Philippines. After that, they had another child who was born
in 1988. While in the US, respondent left her children with Petitioner to continue
working in California while the latter was in Pittsburgh. Petitioner returned to the
Philippines but upon being sent to Pittsburgh decided to leave his children with his
sister Guillerma Layug. Teresita claimed that she did not immediately follow her
children because she was afraid that Reynaldo has filed a case of bigamy against
her. In December 1992, respondent filed a writ for habeas corpus. The trial court
dismissed the petition but the decision was reversed by the CA.
Held: The presumption that children under seven years of age can best be taken
care of by the mother is rebuttable. The task of appointing custody cannot be
solely based on the child alone but several other considerations. The seven year
age is not based on the date petition was filed but the date decision is rendered. As
such, the preference of the children should be taken into consideration in deciding
the matter of their custody.
Celis vs. Cafuir
Facts: Respondents Soledad Cafuir and her husband Jose Simeon appealed the
decision of the lower court granting the writ of habeas corpus to Ileana Celis and
ordering the delivery of the child to petitioner. Petitioner, after giving birth to Joel
(John) Cafuir turned over custody to Soledad, fearing the extreme displeasure and
anger of her father. Soledad provided for all the needs and comforts of the child,
including a nurse hired to care for the child. After marrying Agustin C. Rivera,
petitioner filed the suit for habeas corpus. Respondents argued that petitioner
executed documents to the effect that she has renounced the custody of her
children. The first stated that the child was “entrusted” to respondents while the
second stated that Soledad is the “real guardian” of the child and no one may adopt
the child except for Soledad.
Held: The document cannot be taken to imply that petitioner has renounced the
custody of her child. The child was, as the first document stated, merely
“entrusted” and such arrangement was not permanent. Having been emancipated
from her father, Ileana was in the position to care for her child and as such, has a
right to do so.
FC Article 210: Parental authority and responsibility may not
be renounced or transferred except in the cases authorized by
law.
2. Parental unfitness:
Feldman vs. Feldman
Facts: In a habeas corpus proceeding, the lower court transferred from the
mother to the unmarried father the custody of their two infant children who
previously had continuously resided with the mother. The couple was divorced in
July 1970 on the ground of cruel and inhuman treatment on the part of the husband
who was involved in extramarital relations prior to the dissolution of their
marriage. The wife on the other hand, had a relationship to another man
subsequent to the decree of divorce. Petitioner Philip Feldman alleged that he
observed a copy of Screw Magazine (which possesses dubious redeeming social
values) and that he found letters (some with explicit photographs attached) which
were responses to an advertisement for another couples or groups for “fun and
games,” in the house of respondent Mady Feldman. Respondent wife alleged that
the advertisement was done for fun and that the evidence showed that her private
sex life in no way affected the children and that the children were provided for.
Held: Court held that amorality, immorality, sexual deviation and aberrant sexual
practices do not, on its face, constitute unfitness for custody. The trial court’s
ruling that parents who participate in a culture of “free sex” were unfit to care
for children was a dangerous conclusion. Also, the right of women to engage in
private sexual activities which do not affect her relationship with her children is
protected by her right to privacy. If courts recognized the rights of unmarried
men to engage in extramarital relations, there is no reason to impose stricter
standards on women. The evidence of the obscene materials was likewise out of
reach of the children. As such, they are not, on its face, detrimental to the
children’s welfare.
Santos Sr. vs. Court of Appeals
25
Facts: Court of appeals granted custody of 6 year old Leouel Santos Jr., son f
petitioner Leouel Santos Sr. and Julia Bedia-Santos to the latter’s parents, Leopoldo
and Ofelia Bedia. Leouel Santos Sr. is an army lieutenant while Julia Bedia was a
nurse working in the US. Since release from the hospital, Leouel Jr. had been in the
custody of respondents. Julia has reportedly sent financial support while Leouel
Santos had done no such thing. On Sept. 2, 1990, Leouel took his son from
respondents prompting respondents to file a Petition for Care, Custody and Control
of Minor ward Leouel Santos Jr. Petitioner argued that private respondents have
failed to show that petitioner was an unfit and unsuitable father and as such,
Article 214 of the Family Code cannot be applied. Private respondents contended
that they can provide a comfortable life to the child and that petitioner, being a
soldier, will not be able to care for the child.
Held: Custody granted to petitioner. When a parent entrusts the child to another,
what is given is merely temporary custody and not a perpetual renunciation of
parental authority. A waiver of parental authority can only be executed in cases
of adoption, guardianship and surrender to children’s home or an orphan institution.
Petitioner’s previous inattention cannot be immediately construed as
abandonment. His effort to keep custody of the child is a sign that he is willing to
rectify his mistakes.
 Role of the Child’s Preference
FC Article 49: …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.
FC 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 is unfit.
No child shall be separated from the mother unless the court
finds compelling reasons to order otherwise.
David v. CA
Facts: Petitioner Daisie T. David worked as secretary of private respondent Ramon
R. Villar who was then married and had a family. They had intimate relations which
produced three children, Christopher, Christine and Cathy. Private respondent’s
wife was aware of the existence of the illegitimate children. Christopher was
taken by respondent on a trip to Boracay. Upon their return, respondent refused
to return the child prompting petitioner to file for a write of habeas corpus. The
trial court granted the petition but the Court of Appeals reversed the decision on
the ground that the trial court had no jurisdiction over the case as the children
were borne out of adulterous relations. Temporary custody was awarded to
respondent until such time that the issue on custody and support was determined
in a proper case. Petitioner contended that the writ of habeas corpus applied to all
cases of illegal confinement or detention or by which the rightful custody og any
person is withheld.
Held: Article 213 of the FC states that custody of a child under six will be given to
the mother unless the court deems it proper to rule otherwise. Absent any
showing that petitioner is unfit (although admittedly, she is not as well-off as
respondent), custody shall be given to her. As the child is over the presumed tender
years, custody must still remain with the mother as the child has categorically
expressed preference to live with his mother.
Pizarro vs. Vasquez
Facts: This suit for obtaining support from defendant was instituted by Maria
Pizarro and her minor children, Gloria, Julita and Lorenzo. Plaintiff and defendant
separated on the ground that the latter committed acts of infidelity and cruelty.
Defendant denied the claim and alleged that there is no contract of separation and
that Maria Pizarro committed acts of adultery. The evidence of said adulterous
relations was the birth of Lorenzo 11 months after the couple separated. Petitioner
explained that they had sexual intercourse sometime in November 1933 during the
town fiesta in the belief that defendant had changed.
Held: Claims of plaintiff that defendant had kept a mistress and had maltreated her
were not contradicted. Also, absent any evidence that plaintiff indeed committed
adultery and considering the prima facie presumption of innocence, plaintiff should
be given support by the defendant.
Laxamana vs. Laxamana
Facts: Petitioner Reymond Laxamana was a graduate of Bachelor of Laws while
respondent Ma. Lourdes Laxamana held a degree in Banking and Finance. Upon
marriage, respondent quit her job and became a full time housewife while
petitioner managed buy and sell, fishpond and restaurant businesses. The couple
had three children. In October 1991, petitioner was confined in Estrellas Home Care
Clinic for being a drug dependent. He was again confined in 1996 for rehab. In 1997,
petitioner was declared drug free but respondent alleged otherwise stating that
petitioner has become irritable since his return and had even maltreated her at
one point. Respondent abandoned petitioner in June 1999 taking the children with
her. Petitioner filed a writ for habeas corpus for visitation rights which the court
granted. The parties were ordered to undergo psychological evaluation which they
passed except for the psychologist’s opinion that petitioner, in his belief, was not
completely drug free.
Held: Case was remanded. It is the duty of the court to hold a trial notwithstanding
the agreement of the parties to submit the case for resolution on the basis of a
psychiatric report. While petitioner had a history of drug dependence, records
were inadequate to show his moral, financial and social well-being. There is
therefore no proof that he is unfit to care for his children. The court also failed to
consider the preference the choice of the children who were then 14 and 15 years
old.
 Presumption of Primary Care Taker
Garska vs. McCoy
Facts: Appelant Gwendolyn McCoy was pregnant with her first child, Jonathan
Conway, at 15 years old. During pregnancy, Michael Garska, herein petitioner, did
not give any support. When the child was born, petitioner sent food and diapers.
The baby developed a chronic respiratory infection and to be able to use the United
Mine Worker’s medical insurance of her grandfather, appellant agreed to the
adoption of Jonathan by her grandparents. The petition was dismissed on the
ground that the child had not lived with the grandparents for the requisite six
months. Upon learning the action for adoption, petitioner filed for a writ of habeas
corpus which was granted by the lower court.
Held: While the tender years presumption in favor of the mother is no longer in
effect, custody should still be granted to appellant on the basis that she has been
the primary caretaker of the child in question. Logically, the primary caretaker
parent is not in superior financial position as such, the material welfare of the child
depends on the award of support. Court therefore held that the presumption is in
favor of the primary caretaker parent if he or she meets the minimum objective
standard for being a parent. The presumption shall only apply to children of tender
years. Custody was granted to Gwendolyn McCoy. Court held that manipulation of
the welfare system to provide for the child’s healthcare shall not be construed as
an attempt to abandon the child.
 Other Effects
CC Article 372: When legal separation has been granted, the
wife shall continue using her name and surname employed
before the legal separation.
- This is so because her married status is not affected
by the separation.
- After legal separation, the marriage bonds are not
severed.
CC Article 370: A married woman may use:
(1) Her maiden first name and surname and add her
husband's surname, or
(2) Her maiden first name and her husband's
surname or
(3) Her husband's full name, but prefixing a word
indicating that she is his wife, such as "Mrs."
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Matute vs. Macadalo
Facts: Petitioner Rosario Matute and private respondent Armando Medel were
legally separated on the ground of adultery committed by petitioner with her
brother-in-law. Custody of the four minor children was thereby awarded to
Armando. With permission from private respondent, petitioner brought her
children to Manila to attend her father’s wake. Thereafter, she filed a civil suit,
praying for custody of her children whom she alleged has expressed preference
to stay with her. Three of the said children were no longer of “tender years.”
Armando moved to have Rosario charged with contempt of court for disobeying
the court’s decision to grant custody to Armando but the court did not accede
owing to the fact that Armando consented. However, the court did not grant
custody to petitioner. Petitioner argued that the act of adultery she was charged
with does not constitute moral depravity. Armando was found to be living with a
different woman and such relations were likewise adulterous.
Held: Alleged errors by respondent were merely errors of judgment and not
errors of jurisdiction.
Laperal vs. Republic of the Philippines
Facts: Elisea Laperal has been legally separated from her husband Enrique
Santamaria. During their marriage, petitioner used the latter’s surname. She
prayed that she be allowed to use her maiden name considering that she and her
husband had not lived together for a long time. Petition was opposed b y the City
Attorney of Bagiuo but in a motion for reconsideration, the petition was granted
on the basis that the use of the married name will give rise to confusion in finances
and the eventual liquidation of the conjugal assets.
Held: The language of the statute is mandatory and a woman shall continue using
her married name because her married status is unaffected by her legal
separation. The fact of legal separation alone is not a sufficient ground to justify a
change of name.
 Reconciliation
FC Article 65: If the spouses reconcile, a corresponding joint
manifestation under oath duly signed by them shall be filed
with the court in the same proceeding for legal separation.
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 at whatever stage; and
2. The final decree of legal separation shall be set aside
but the separation of property and any forfeiture of
the share of the guilty spouse already effected shall
subsist, unless the spouses agree to revive their
former property regime.
The court’s order containing the foregoing shall be recorded in
the proper civil registries.
FC 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 properties.
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 word ‘revive’ implies that the conjugal property
regime prior to the decree of legal separation would be
restored however, parties are still allowed to stipulate
what would be brought into the revived property regime.
- Reconciliation must be a voluntary mutual agreement
to live together as husband and wife. Filing of
manifestation is only needed to terminate the case in
court and for purposes of future property relations of
the spouses.
- If the reconciliation takes place after the decree of
legal separation has been handed down by the court,
the decree is set aside, and all the orders in that
decree will have no effect, except as to the property
relations of the spouses. The community of property
or conjugal partnership of gains is not automatically
revived.
- After the spouses have reconciled, a new action for
legal separation can be based only on the subsequent
or other causes, but not on the causes already
pardoned.
 Divorces
Foreign Divorces
The Nationality Principle
CC Article 15: Laws relating to family rights and duties,
or to the status, condition and legal capacity of persons
are binding upon citizens of the Philippines even though
living abroad.
FC 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 as
such, shall also be valid in this country, except in those
prohibited under Articles 35 (1), (4), (5), and (6), 36, 37
and 38.
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 the
capacity to remarry under Philippine laws.
- General rule is a marriage valid where it was
celebrated is valid everywhere.
- Exceptions to the general rule:
o Marriages which are contrary to the law of
nature and good morals as generally
recognized in Christian countries (ex.
polygamous and incestuous marriages).
o Marriages which the local law-making power
has declared shall not be allowed any
validity.
- Foreign marriages under Articles 35 (those contracted
below 18, those polygamous and bigamous, those
contracted through mistake in identity and those void
under Article 53), 36 (Psychological incapacity), 37
(Incestuous Marriages) and 38 (Marriages void by
reason of public policy).
- Laws on legal capacity to marry are binding to Filipinos
in all countries.
- While the forms of entering into the contract of
marriage are to be regulated by the law where it is
celebrated, the essentials of the contract depend upon
the law of the domicile for the parties.
FC Article 26 vs. CC Article 15
- Article 26 corrects the riduculous situation wherein a
Filipino who married a foreigner remains married
inspite of a divorce decree issued in a different
country.
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 - Article 26 is more restrictive in that it requires that
the divorce be secured by the foreign spouse and that
Filipinos naturalized as citizens of other countries are
exmept from the application of the law.
Van Dorn vs. Romillo
Facts: Petitioner Alicia Reyes Van Dorn is a citizen of the Philippines while private
respondent Richard Upton is a citizen of the US. The couple was married in Hong
Kong and had two children. They lived together in the Philippines until their divorce
in 1982. They were divorced in Nevada. After the divorce, petitioner married
Theodore Van Dorn. Private respondent filed a suit claiming that the Galleon shop,
petitioner’s business is conjugal property. Petitioner’s motion to dismiss was not
granted by respondent judge, Hon. Manuel V. Romillo Jr. According to petitioner,
respondent is estopped from claiming the alleged conjugal property because of the
representation he made in the divorce proceedings that they had no community of
property.
Held: There is no question as to the validity of that Nevada divorce or divorce in
any state in the United States. The decree is binding on private respondent as an
American Citizen. Aliens may obtain divorces abroad, which may be recognized in
the Philippines provided that they are valid according to their national law. As such,
respondent is no longer the legal husband of herein petitioner.
Quita vs. CA and Dandan
Facts: Fe Quita married Arturo Padian in the Philippines in 1941. The couple agreed
to live separately until 1950 when petitioner sued Arturo for divorce. After the
decree of divorce Fe married a certain Felix Tupaz whom she divorced and then a
certain Wernimont. Arturo died in 1972 without a will. Lino Javier Inciong filed a
petition for the right to administer the estate of Arturo. Blandina Dandan, claiming
to be the surviving spouse of Arturo, along with her six children filed their
opposition to Javier, praying that the administration of the estate be granted
instead to their lawyer. In 1987, petitioner moved for immediate declaration of the
heirs of respondent and distribution of his estate. The Dandan family did not appear
in court. Arturo’s brother, Ruperto and Fe Quita were declared the only heirs of
Arturo. The trial court held that a foreign divorce sought by Filipinos after the
effectivity of the Civil Code is not recognized in this jurisdiction. As such, Blandina
was not a legitimate spouse. As proof of filiation of the children was presented,
partial reconsideration was granted by the court in favor of Arturo’s illegitimate
children.
Held: The mere fact that petitioner declared Arturo was Filipino and thus remained
legally married to her in spite of the divorce implies that Quita was no longer a
Filipino citizen at that time. As such, the trial court should have conducted a hearing
to establish the citizenship. Quita has apparently testified that she has been a US
citizen since 1954.
Llorente vs. Court of Appeals
Facts: Lorenzo Llorente was an enlisted serviceman of the US Navy from 1927 to
1957. In 1937, he and Paula were married. Before the war, Lorenzo Llorente went
to the United States leaving Paula in the Philippines. In 1943, Lorenzo acquired US
Citizenship. Upon his return after the war, he discovered that his wife was
pregnant and was cohabiting with his brother Ceferino. She later gave birth to a
son by the adulterous relation. Lorenzo refused to forgive Paula and the couple
drew an agreement which stated that family allowances would be suspended,
marital union will be dissolved and a separate agreement on the conjugal property
was to be made. The agreement was duly signed and notarized. In 1951, Lorenzo
filed for a divorce and which was decreed one year later. Upon his return he
married Alicia who had no knowledge of his prior marriage. In 1981, a will was
executed to the effect that all his property will be given to Alicia and his kids by
her. In 1983, Lorenzo petitioned for Alicia to be the administrator of their conjugal
property which was denied as he was still alive. Lorenzo died on June 1985 and a
few months after his death, Paula filed a petition for letters of administration as
the surviving spouse of Lorenzo. The lower court held that Lorenzo’s marriage
with Alicia was void and that Paula should get 1/3 of the properties.
Held: Divorce obtained in a foreign country is recognized in this jurisdiction. Lorenzo
was no longer a Filipino Citizen when he obtained divorce.
Garcia a.k.a. Recio vs. Recio
Facts: Rederick Recio, a Filipino, was married to an Australian, Editha Samson, in
Malabon on 1987. The couple lived together as husband and wife in Australia but on
1989 they divorced. In 1992, Recio became an Australian citizen. He married Grace
Garcia two years later and in their marriage license, he declared that he was a
Filipino. A year after their marriage, Garcia and Recio started living separately and
their assets were divided in 1996. Grace filed a petition for nullity on the ground of
bigamy alleging that she learned of Recio’s prior marriage to Samson only in
November of 1997. Recio argued that he revealed his prior marriage in 1993. In 1998,
a divorce from Garcia was secured as such, respondent moved to dismiss petition
of Garcia on the ground that there was no longer a cause of action.
Held: The Case was remanded to the trial court for the purpose of obtaining
evidence to show respondent’s legal capacity to marry. The best evidence of
divorce is the decision itself as authenticated by the consular officer. Proof of the
existence of provision on divorce and the alleged divorce decree are likewise
necessary to show capacity to remarry. It was found that no decree of absolute
divorce has been given but divorce in the sense of legal separation.
- There is no judicial cognizance of foreign laws there is therefore an additional
requirement now, to show the effects of the divorce decree.
Intrinsic vs. Extrinsic
- In intrinsic there is absence of the essential requisites (Article 15
applies).
- In extrinsic, lex law psy celebrationis or valid in the country, valid
everywhere.
- Extrinsic pertains to the formalities or formal requisites which ay be
dictated by the country decreeing the divorce (Article 26 applies).
- The same is true for rules of succession.
Muslim Divorces
Yasin vs. Shari’a District Court
Facts: Hatima Yasin, a Muslim Filipino of legal age, was married to Hadji Idris Yasin
until their divorce in May 13, 1984. After their divorce, Hadji Idris Yasin contracted
another marriage and as sch, petitioner asked that she be allowed to resume use
of her maiden name and surname, Hatima Centi y Saul. The Shari’a court stated that
she did not file the petition in sufficient form and substance provided for in Rule
103 of the Rules of Court. Petitioner filed a motion for reconsideration stating that
the petition she filed is not covered by the rules of court but is merely a petition
to resume the use of her maiden name and surname after the dissolution of her
marriage by divorce.
Held: The true and real name of a person is that given to him and entered into the
civil register. While it is true that under Article 376 of the Civil Code, no person
can change his name or surname without judicial authority, nonetheless, the only
name that may be changed is the true and official name. Petitioner is not seeking
to change her registered name but for her to be allowed to resume the use of it.
The procedures for change of name under the Rules of Court shall not be applied to
judicial confirmation of the right of a divorced woman to resume her maiden name
and surname.
Code of Muslim Personal Laws
Art. 46. Divorce by talaq. — (1) A divorce by talaq may be
effected by the husband in a single repudiation of his wife
during her non-menstrual period (tuhr) within which he has
totally abstained from carnal relation with her. Any number of
repudiation made during one tuhr shall constitute only one
repudiation and shall become irrevocable after the expiration
of the prescribed 'idda.
(2) A husband who repudiates his wife, either for the first or
second time, shall have the right to take her back (ruju) within
the prescribed 'idda by resumption of cohabitation without
need of a new contract of marriage. Should he fail to do so, the
repudiation shall become irrevocable (Talaq bain sugra).
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Art. 47. Divorce by Ila. — Where a husband makes a vow to
abstain from any carnal relations (ila) with his wife and keeps
such ila for a period of not less than four months, she may be
granted a decree of divorce by the court after due notice and
hearing.
Art. 48. Divorce by zihar. — Where the husband has injuriously
assimilated (zihar) his wife to any of his relatives within the
prohibited degrees of marriage, they shall mutually refrain
from having carnal relation until he shall have performed the
prescribed expiation. The wife may ask the court to require her
husband to perform the expiation or to pronounce the a regular
talaq should he fail or refuse to do so, without prejudice to her
right of seeking other appropriate remedies.
Art. 49. Divorce by li'an. — Where the husband accuses his
wife in court of adultery, a decree of perpetual divorce may be
granted by the court after due hearing and after the parties
shall have performed the prescribed acts of imprecation (li'an).
Art. 50. Divorce by khul'. — The wife may, after having offered
to return or renounce her dower or to pay any other lawful
consideration for her release (khul') from the marriage bond,
petition the court for divorce. The court shall, in meritorious
cases and after fixing the consideration, issue the
corresponding decree.
Art. 51. Divorce by tafwid. — If the husband has delegated
(tafwid) to the wife the right to effect a talaq at the time of the
celebration of the marriage or thereafter, she may repudiate
the marriage and the repudiation would have the same effect
as if it were pronounced by the husband himself.
Art. 52. Divorce by faskh. — The court may, upon petition of
the wife, decree a divorce by faskh on any of the following
grounds :
(a) Neglect or failure of the husband to provide support for the
family for at least six consecutive months;
(b) Conviction of the husband by final judgment sentencing him
to imprisonment for at least one year; .chan robles virtual law
library
(c) Failure of the husband to perform for six months without
reasonable cause his marital obligation in accordance with this
code;
(d) Impotency of the husband;
(e) Insanity or affliction of the husband with an incurable
disease which would make the continuance of the marriage
relationship injurious to the family;
(f)Unusual cruelty of the husband as defined under the next
succeeding article; or
(g) Any other cause recognized under Muslim law for the
dissolution of marriage by faskh either at the instance of the
wife or the proper wali..chan robles virtual law library
Art. 53. Faskh on the ground of unusual cruelty. — A decree
offaskh on the ground of unusual cruelty may be granted by
the court upon petition of the wife if the husband:
(a) Habitually assaults her or makes her life miserable by cruel
conduct even if this does not result in physical injury;
(b) Associates with persons of ill-repute or leads an infamous
life or attempts to force the wife to live an immoral life;
(c) Compels her to dispose of her exclusive property or
prevents her from exercising her legal rights over it;
(d) Obstructs her in the observance of her religious practices;
or
(e) Does not treat her justly and equitably as enjoined by
Islamic law.
Art. 54. Effects of irrevocable talaq or faskh. — A talaq or
faskh, as soon as it becomes irrevocable, shall have the
following effects:
(a) The marriage bond shall be severed and the spouses may
contract another marriage in accordance with this Code;
(b) The spouses shall lose their mutual rights of inheritance;
(c) The custody of children shall be determined in accordance
with Article 78 of this code;
(d)The wife shall be entitled to recover from the husband her
whole dower in case the talaq has been affected after the
consummation of the marriage, or one-half thereof if effected
before its consummation; .chan robles virtual law library
(e) The husband shall not be discharged from his obligation to
give support in accordance with Article 67; and
(f) The conjugal partnership, if stipulated in the marriage
settlements, shall be dissolved and liquidated.
Art. 55.Effects of other kinds of divorce. — The provisions of
the article immediately preceding shall apply to the dissolution,
of marriage by ila, zihar, li'an and khul', subject to the effects
of compliance with the requirements of the Islamic law relative
to such divorces.
Section 2. 'Idda. —
Art. 56. 'Idda defined. — 'Idda is the period of waiting
prescribed for a woman whose marriage has been dissolved by
death or by divorce the completion of which shall enable her to
contract a new marriage.
Art. 57. Period. — (1) Every wife shall be obliged to observe
'idda as follows:
(a) In case of dissolution of marriage by death, four months
and ten days counted from the death of her husband;
(b) In case of termination of marriage by divorce, for three
monthly courses; or
(c) In case of a pregnant women, for a period extending until
her delivery.
(2) Should the husband die while the wife is observing 'idda for
divorce, another 'idda for death shall be observed in
accordance with paragraph 1(a).
.chan robles virtual law library
FC 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;
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 3. In the absence of sufficient community property, the
separate property of both spouses shall be solidarily Perez vs. Court of Appeals
liable for the support of the family. The spouse present Facts: Rey Perez, a doctor of medicine practicing in Cebu and his wife, Nerissa a
shall, upon proper petition in a summary proceeding, registered nurse and herein petitioner were married in December 1986. Their
be given judicial authority to administer or encumber
marriage produced one child born in July 1992. Petitioner began working in the US
any specific separate property of the other spouse and
use the fruits of proceeds thereof to satisfy the latter’s
on October 1988 and became a resident alien in 1992. She was able to construct a
share. house in Mandaue using her earnings. Respondent stayed with her in the US twice
while she was pregnant and when she gave birth to Rey Perez II. Unlike his wife,
- Separation of fact refers to the actual definite he had only a tourist visa and was unemployed in the US. The family went back to
separation of the persons of husband and wife, Cebu in 1993 but after a few weeks, Nerissa went back to the US because the
thereby terminating cohabitation or common life husband preferred to stay behind to take care of his sick mother. Nerissa filed a
under the same roof without judicial order. There is petition for a writ of habeas corpus asking respondent Rey Perez to surrender
no separation of fact if business affairs only require custody of their son to her. Lower court granted the custody to the mother based
that they occupy separate residences but their on Article 213 of the Family Code. CA reversed the decision and granted the custody
relations continue to be intimate and friendly. to the father instead.
- The spouse who leaves the conjugal home without
justification loses the right to be supported by the
Held: Article 213 of the FC provides that “in case of separation of parents, no child
other spouse but his obligation to support the latter is under 7 years of age shall be separated from the mother unless…” Since the code
not extinguished. did not qualify the word separation to mean “legal separation” couples separated
- Judicial authorization is necessary when the consent in fact are still covered by its terms. The provision likewise mandates that the
of one spouse is necessary for a transaction but child under seven years of age shall be in the custody of the mother absent any
cannot be obtained. showing that the mother is unfit to care for the child. In the case herein, the
Petitioner alleged that the mother will not be able to take care of the child as she
FC Article 127: The separation in fact between the husband works as a nurse. The Court however held that such a supposition is unfounded
and wife shall not affect the regime of conjugal partnership, especially as there are means by which the mother could take care of the child
except that: despite the demands of her profession.
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 petition in 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.

FC 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 and approved by the court.

FC 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.

FC 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.

FC Article 247: The judgment of the court shall be

immediately final and executory.

30