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PERSONS AND FAMILY RELATIONS  Spanish Precedents of Philippine Law

COMPLETE REVIEWER
Visigoths- Early settlers in Spain that were overrun by Moors
Background on the Philosophy of the Civil Code: who converted the former into Christianity.
Moors- Promulgated non-barbaric laws
“The Philosophy of the Civil Code” Alaric, Leader of the Goths- Promulgated Code of Alaric
 Tasks of the investigator of the Philosophy of Law: which introduced barbaric tribal customs to Roman Law.
1. Trace the origin of law to its sources in human Fuerzo Juzgo- First great code of Spain combining Roman,
nature; Germanic and Religious edicts.
2. Connect the law with the society that evolved and
the circumstances of the time in which it originated; Siete Partidas- Written by Fernando III and Alfonso X, it
3. Relate the importance of the law under the influence contained laws based on Spanish Visigoths but patterned after
of economic, social and other conditions; Institutes of Justinian.
4. Point out the basic elements of the law; • Contained 7 codes pertaining to different aspects of
5. Distinguish law from ethics. law.
• First book contained natural laws, usages and
Our Civil Code was founded on the laws of Spain which was custom and administrative laws.
based largely on Roman Law (Institutes of Justinian). • Second book contained administrative laws.
• Third book contained court rules, land ownership and
Corpus Juris Civilis- accumulation of old Roman Laws as possession laws and servitude laws.
modified by early Christians. • Fourth book contained laws on persons and family
relations.
• Ancient Roman Law was the combination of tribal • Fifth book contained laws on obligations and
contracts.
customs, royal edicts, and priestly commands.
• Sixth book contains laws on succession, intestacy,
• Ancient Romans fashioned their laws according to heirship and guardianship.
their lifestyle, which at that time was greatly • Seventh book contained penal laws.
influenced by religion.
Medieval Philosophy and its Influence
Lex Jus- Command and Justice St. Augustine- The state is a kingdom of the Impious

• Relationship was not only between men but between St. Thomas Aquinas- Wrote the Summa Theologica
God and men. Crimes, at that time, were considered • Lex Externa- laws based on divine reason which
a disturbance of this relation. governs the world.
• Laws were designed to maintain and restore the • Lex Naturalis- Natural laws which are made known
peace of the gods (pax decorum), peace between through reason.
men and peace between god and men.
• Lex Humana- Positive laws which are man-made
Theory of Injury and Liability- Injuring one’s neighbor was applications of natural laws.
discouraged because such act would prompt gods to strike
back at the ‘evil doer thereby causing the imperil of the entire Penal Principles
community. • Justicia Generalis- obligation of restitution
• Justicia Particularis
 It is only when law becomes distinguishable from religion o Justicia commutative- obligation of
that its philosophy becomes discernible.
restitution
Philosophy of Private Roman Law o Justicia distribution- distributive justice
applying justice in geometric proportions.
Bonus Pater Familias- Literally meaning “good father of the
family,” this was considered a standard by which one should Ordenamiento Alcala- spiritual aspects of contracts
pattern his conduct. Leyes de Toro- Written by the Spanish Cortes in 1502
Nueva Recopilacion- compilation of all Spanish Laws made in
- Roman law was typically, a law without ethics. 1567
Novisisima Recopilacion- another compilation of Spanish
Law of Contracts and Bailments- Someone who broke his oath Laws.
is considered a danger to society and is in danger of mortal
peril. 1805- Civil Code became a model
-Four-book compilation of the Civil Code was promulgated.
-Roman laws of property were extremely individualistic. • Book One: Persons and Family Relations
-Romans only recognized two forms of association—societas • Book Two: Property, Ownership and Modification
and corporation. • Book Three: Modes of Acquiring Ownership
• Book Four: Obligations and Contracts
Two Principles to Moderate the Extreme Individualism of
Roman Law American Influence on the Civil Code
• INDIVIDUALISM became a pervading theme during
Humanitas- Considers kindness, goodness, sympathy, the forging of the new Civil Code.
consideration for others. - Bill of Rights
• In contrast to pater familias where heads of the - Seeking redress for grievances
family are allowed to kill his children and wife.
Intersection of Modern Constitutional Developments and
Traditional Family Law
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protection. For one thing, the measure does not
Constitutional Provisions prevent extra-marital relations for another, not all
Article II, Section 12: The State recognizes the sanctity of
contraceptives are considered dangerous. Lastly,
family life and shall protect and strengthen the family as a the discrimination makes it seem as though pre-
basic autonomous social institution. It shall equally protect marital conception and sexually transmitted
the life of the mother and the life of the unborn from disease is punishment for pre-marital sex. This
conception. The natural and primary right and duty of parents punishment is then handed out without due
in the rearing of the youth for civic efficiency and the
process of the law.
development of moral character shall receive support of the
government.
Civil Personality
Article II, Section 14: The State recognizes the role of women
in nation building and shall ensure the fundamental equality  Concepts and Classes of Persons
before the law of women and men.
Person- any being that can be subject of legal relations.
Article III, Section 1: No person shall be deprived of life,
liberty or property without due process of law, nor shall any Classes of Persons:
person be denied the equal protection of the laws. • Natural Persons- Human beings
• Juridical Persons- entities formed by the association
Article XV, Section 1: The State recognizes the Filipino of men.
family as the foundation of the nation. Accordingly, it
shall strengthen its solidarity and actively promote its total Personality- aptitude of becoming subject of, active or
development. passive, juridical relations

Article XV, Section 2: Marriage, as an inviolable social Status of Persons- Legal condition or class which one belongs
institution, is the foundation of the family and shall be in society
protected by the state. - 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,
Griswold vs. Connecticut which respectively carry with them certain rights and
Facts: Griswold was executive director of the obligations.
Planned Parenthood League while Buxton, his co- - A person’s status serves to determine the nature and
plaintiff was a licensed physician who served as number of rights and obligations.
director of the said league. Both were convicted Kinds of Status
as accessories by virtue of a Connecticut birth
control law which bars them from giving
- Political or Civil, depending on whether he is
considered in the light of public law or private law.
information, instruction and medical advice for
contraception, to married persons. A married - Rights and obligations in connection with suffrage
refer to Political status while those arising from
woman was examined in the league’s family relations refer to Civil status.
headquarters along with her husband and was
given a prescription for contraception. Civil Status
Held: The Connecticut Statute which forbids - Status as a member of society (i.e. resident or non-
contraceptives abridges the right to marital resident)
- Status as a member of a family
privacy without due process of the law. The state - Status with respect to the person himself (i.e. age,
interest protected by the statute, which is to mental condition, sex)
prevent extra-marital relations is carried out is a - Profession cannot be considered status because the
manner so sweeping as to penalize the inherent qualities which create a status should be inherent in
intimacies of couples who have the right to plan the person himself.
their family. Characteristics of Status- the status of a person is outside the
commerce of man hence:
Eisenstadt vs. Baird - It is inalienable in that it cannot be transferred to
Facts: William Baird was tried for exhibiting another;
contraceptives while delivering a lecture and for - It is imprescriptible in that it cannot be imposed on a
person;
giving a young woman contraceptives. A
- It cannot be the subject of compromise;
Massachusetts law only allows the sale of - It cannot be renounced;
contraceptives with prescription from a physician - It cannot be exercised by creditors
or a pharmacist for married couples.
Held: The statute violates the equal protection
CC Article 37: Juridical Capacity is the fitness to be the
clause of the 14th amendment in that it
subject of legal relations. It is inherent in every natural
discriminates between married and unmarried person and is lost only through death.
couples. The means by which the State Interest is Capacity to act which is the power to do acts that have legal
protected is not rationally adequate whether the effect, is acquired and may be lost.
interest be prevention of pre-marital sex or health
Juridical Capacity- legal capacity
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Capacity to Act- aptitude for the exercise of rights which is Note: There is an issue of succession and not just
conditional and variable, requiring intelligence and will. survivorship.

CC Article 40: Birth determines personality. -Rule 123, section 69, paragraph ii:
The conceived shall be considered born for all purposes that If two or more persons die in a calamity and it
are favorable to it provided that it be born later. cannot be shown who died first and there are no
circumstances by which it can be inferred, survivorship is
Birth- removal of the fetus from the mother’s womb presumed from the probabilities resulting from the strength
Conceived Child- can be given inheritance by will or donations and age of sexes.
1. <15 years, the older is presumed to have survived
CC Article 41: The fetus is considered born if it is alive at the 2. > 60 years, the younger is presumed to have
time it is completely delivered from the mother’s womb. survived
For premature birth of less than seven months, it is 3. <15 and >60, the younger is presumed to have
considered born if it survives for at least 24 hours after its survived
delivery. 4. >15, <60 for both; male is presumed to have
survived if sexes are the same, then the older one.
Separation- cutting of the umbilical cord 5. <15 or > 60 and >15 ,<60, the younger is presumed
Test of life- complete respiration or in the case of a deceased to have survived
child, the lungs should float in water.
Viability- the child’s ability to live which is presumed if it Joaquin vs. Navarro
survives separation from the mother Facts: During the Liberation of Manila, Joaquin
Navarro Sr., his wife Angela Joaquin, his three
Geluz vs. Court of Appeals
daughters, Pilar, Conception and Natividad and
Facts: Nita Villanueva has gone through abortion
Joaquin Navarro Jr together with his wife Adela
thrice. Oscar Lazo sued Geluz the abortionist for
Conde and friend Francisco Lopez, sought refuge
pecuniary damages which was granted by the
inside German Club. The three daughters were
Court of Appeals and then appealed by Geluz in
instantly killed. Joaquin Sr., Joaquin Jr., with his
the Supreme Court.
wife and friend, fled the place leaving Angela
Joaquin in the German Club. Immediately after
Held: An unborn child has no juridical capacity
leaving the place, as attested by Francisco Lopez,
and as such, the parents cannot sue for pecuniary
Joaquin Jr. was shot in the head. Minutes later,
damages on its behalf. The child not having been
German Club collapsed presumably killing Angela
born, the parent’s are not in the position to sue
Joaquin inside. Days later, Joaquin Sr. died in a
on its behalf because they cannot be considered
confrontation.
parents if there is no child to speak of. Moral
The victims were survived by Ramon Joaquin,
damages cannot be granted because of the
natural child of Angela Joaquin by her first
indifference of the father.
marriage and Antonio C. Navarro, and son of
CC: Article 42: Civil personality is extinguished by death. Joaquin Navarro by his first marriage.
The effect of death upon the rights and obligations of the The Court of Appeals invoked the statutory
deceased shall be determined by law, by contract or by will. provision on the presumption of survivorship.
-For certain purposes, the personality is deemed to continue Held: The statutory provision cannot be invoked
in the estate of the deceased which has a legal personality
independent of the heirs.
because there are evidences as attested to by
Francisco Lopez, from which it can be inferred
that Angela Joaquin survived Joaquin Navarro Jr.
People vs. Tirol before having died herself.
Facts: Ciriaco Baldesco and Bonifacio Tirol were
among the fourteen who murdered 7 members of CC Article 44: The following are juridical persons:
1. The State and its Political Subdivisions
the family of Manibpol Kosain. They were 2. Public corporations, institutions and entities which
convicted of 7 murders and 2 frustrated murders are created by law
as Manibpol, the father and his daughter, 3. Private corporations, partnerships and associations
Undang, survived. In the course of the appeal, to which the law grants juridicalpersonality.
while awaiting the final sentence, Baldesco died
-Corporation is an artificial being created by law and as such,
in prison. enjoys certain rights and privileges that can be afforded to it.
Held: Baldesco’s civil and criminal liabilities are
extinguished by his death however, indemnities CC Article 45: Juridical Persons such as the state and public
shall be paid for through his estate. corporations are governed by laws recognizing them.
Private corporations are governed by laws of general
application on the subject.
CC Article 43: If there is doubt between two or more persons
called to succeed each other, as to which of them died first, -Corporations are governed by its charter and the Corporation
the one who alleges the death of one prior to another shall Law
have the burden of proof. -Private Partnerships are governed by its articles of
If no proof is available then it shall be presumed that they association and their contract.
died at the same time.

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CC Article 46: Juridical Persons may acquire and possess CC Article 38: Minority, imbecility, the state of being deaf
property, incur obligations and liability or criminal actions in mute, prodigality and civil interdiction are mere restrictions
conformity with laws and regulations of the organization. on capacity to act, and do not exempt the incapacitated
- Juridical capacity is extinguished upon dissolution of person from certain obligations.
the corporation, association or partnership.
Minority- by virtue of RA 6809, the age of majority has been
CC Article 47: Properties and assets of dissolved lowered to 18 from 21.
corporations or other entities shall be disposed of in Insanity or Imbecility- includes various forms of mental
pursuance to the law or the charter creating them. If nothing diseases. Some may sometimes only be mentally deficient.
is specifically written, then it shall be applied for the benefit of Deaf-mute- No longer to be presumed an idiot and is now
the region, province or municipality which it derived principal considered capable of entering into contracts if is shown to
benefits from. have sufficient mental capacity.
Prodigality- characterized by excessive drinking, gambling,
 Capacity to Act and Restrictions Thereon idleness or debauchery

Presumption of Capacity CC Article 39: The following circumstances limit a persons


capacity to act: Insanity, imbecility, being deaf-mute, civil
Standard Oil Co. vs. Arenas interdiction, prodigality, family relations, alienage, absence,
Facts: Juan Codina Arenas, Francisco Lara del insolvency and trusteeship.
Capacity to act is not limited on account of religious belief or
Pino (principals) and Alipio Lacso, Vincente political opinion.
Sixto and Siy Ho (sureties) assumed obligations A married woman, eighteen years of age are qualified for all
to pay jointly and severally to Standard Oil Co. aspects of civil life except if specified otherwise.
the sum of P3,305.76 three months from the
execution of the bond, with 1% interest per
Note: We always presume what is normal. Otherwise, our
month. daily lives will be greatly affected.
Arenas and Lara del Pino failed to pay the bond
and, as sureties, Vincente Sixto along with Siy Ho A. Minority
and Alipio Lacso are compelled to pay the said
amount. The court declared Vincente Sixto in CC Article 1327: Unemancipated minors, insane or
demented persons and deaf-mutes incapable of writing,
default for having failed to show up at the trial cannot give consent to a contract.
concerning the said bond and was ordered to pay
the defendants the amoun. Elisa Torres de CC Article 1390 (1): In cases where one of the parties is
Villanueva appeared in court alleging that her incapable of giving consent to a contract, the contract
husband, Sixto Villanueva, had been declared becomes voidable* or annullable even though there was no
damage to the contracting party.
permanentlyinsane by the Court of First Instance
of Manila and wishes for the exemption of the CC Article 1403 (3): A contract where both parties are
husband from paying the said bond as he is said incapable of giving consent is unenforceable** unless ratified.
to be suffering from monomania of wealth.
Held: Burden of proof for insanity lies on the *A voidable contract is one whose validity can be disputed in
court as opposed to
person who alleges it. There were no evidence to
**an unenforceable contract which is valid or binding only
prove insanity, save from the declaration of the between the two parties but is likewise unenforceable in
Court of First Instance. There were, in fact, a court.
preponderance of evidence stating otherwise,
among these are the lack of restriction on the CC Article 1397: Persons who are capable cannot allege the
incapacity of those with whom they contracted.
husband (the husband is not habitually
insane), the apparent sound mind of Villanueva CC Article 1399: An incapacitated is not obliged to make
during the execution of the contract (he restitution except in so far as he has benefited from the
understood the nature of the bond), and he contract.
has made contracts prior to that (the husband CC Article 1426: There is no right to demand a thing or price
had not been insane prior to the execution from a minor who, because of lack of consent from the parent
or guardian, upon the annulment of the contract, returns the
of the bond). thing or price he received.

Restrictions CC Article 1427: When a minor pays according to a contract,


without the consent of his parent or guardian, the sum of
CC Article 6: Rights may be waived unless it is contrary to money delivered cannot be returned to the minor because the
law, public order, public policy, morals or good customs or other party is expected to have spent it in good faith.
prejudicial to a third person’s rights.
 Effect on Contracts
-Kinds of Rights:
1. Rights of Personality-rights which protect the human
personality.
Mercado vs. Espiritu-
2. Family Rights-rights of a person as a member of a family. Facts: The annulment of a deed of sale was
3. Patrimonial Rights- Rights referring to ownership, etc. 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
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they were of legal age when they made the using the pictures for advertising or trade on
manifestation in front of the notary public and the grounds that court approval for a minor
then signed it. was necessary to validate the consent, as
Held: Contracts signed by minors who allege they stated in Section 3-105 of the General
are of legal age and in fact, appear to be so, is
Obligations Law.
valid and binding. They are therefore estopped*
from alleging otherwise. Held: By virtue of Section 50 and 51 of the
Civil Rights Law, a person’s pictures, name,
*barred from disputing the genuineness of the deed of sale, etc., can be used if written consent is given.
as in the case of Mercado vs. Espiritu. If the person is a minor, his or her parents
can give the consent. As such, the consent
Bambalan vs. Maramba and Muerong
Facts: Isidro Bambalan was the heir of a piece of
was valid. Section 3-105 cannot be invoked
land owned by Vicente Lagera, deceased. as Shields did not fall under the categories
Bambalan was forced by Maramba and Muerong stipulated under the said statutory provision.
to whom the mother owed P150, to sign a deed of
• Effect on Marriage of Minors
sale as his mother will otherwise be put in prison.
Bambalan signed the contract and both Muerong FC Article 5: Any male or female aged 18 and above, may
and Maramba knew of his age as they were the contract marriage.
ones who procured the cedula necessary to
certify the contract. FC Article 35: The following are void marriages from the
beginning:
Held: Plaintiff’s age was known to the contracting 1. Those contracted by any party below 18 years, even
parties as such, the contract is not valid and the with the consent of a parent or guardian
right of Bambalan as a minor can be enforced. 2. Those solemnized by a person not legally authorized
to perform a marriage unless the married couple
CC Article 1489: All persons authorized by the Code can believed in good faith that the person was authorized
enter into a contract of sale. When necessaries* are sold and 3. Those solemnized without a license
delivered to a minor or a person without capacity, he must 4. Those bigamous or polygamous
pay a reasonable price therefore. 5. Those contracted through a mistaken identity

*Those which are indispensable for sustenance. Moe vs. Dinkins


Facts: Maria Moe and Raul Roe alleged that the
New York Domestic law 15.2 which states that
Braganza vs. Villa Abrille males between 16-18 and females between 14-18
Facts: Rosario Braganza and her sons, must obtain parental consent to be granted
Guillermo and Rodolfo, signed a promissory marriage, is unconstitutional. They stated that
note indicating that they will pay a loan they have a child born out of wedlock and they do
given by a certain Fernando Villa Abrille. The not wish for their child to grow up with the stigma
loan amounted to P70,000 in Japanese of illegitimacy. Cristina Coe and Pedro Doe filed a
currencies and, according to the promissory motion to interfere as they had a stake at the
note, Braganza will pay P10,000 in legal outcome of the trial. Cristina Coe’s mother, like
currencies. The two sons were minors at the Maria’s also refused to give her consent to the
wedding but unlike Maria, Cristina’s child was yet
time the contract was signed.
to come.
Held: The contract, insofar as the minors Held: The State’s interest as parens patriae
were concerned was not valid. However, they (guardians of the country) in protecting minor
must make restitution insofar as they from making immature decisions is legitimate
benefit. As such, they not pay 2/3 of the and the manner by which this interest is
amount stipulated in the contract but merely protected is proportionate to the interest.
the amount that was loaned to them which
• Effects on Crime
was P1,166.00 in legal currencies.
RPC Article 12: The circumstances which exempt from
Shields vs. Gross criminal liability are:
1. An imbecile or insane person (unless he acted during
Facts: In 1975, when Brooke Shields was 10, a lucid interval),
a consent was given by her mother on her 2. A person under 9 years of age*,
behalf, indicating that the pictures taken by 3. A person over 9 years of age but under 15, unless it
Gary Gross may be used for whatever can be proven that he acted in discernment, in which
case, he will be sent to an institution servicing such
purposes. Plaintiff requested the court to children with criminal liabilities.
prevent defendant from using her pictures. 4. Any person who causes an injury while performing a
Non-jury court prevented the defendant from lawful act,

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5. Any person who acts under a compulsion of witnessed, that is not sufficient as to say that the
irresistible force. defendant was in sane. Any person who allows his
RPC Article 18: Accomplices are those who cooperate in the
or her anger to go so far as to make them
execution of an offense by previous or simultaneous acts. reckless does not excuse him from criminal
liability.
RPC Article 68: When the offender is a minor under 18 years
of age, if he is— Dumaguin vs. AI Reynolds, EJ Harrison and
1. Over 9 years and under 15 and it has been proven
that he acted with discernment then a discretionary
Big Wedge Company
penalty shall be imposed which must always be lower Facts: Paulo Dumaguin was admitted to Hospicio
by two degrees than that which the law prescribes de San Felipe as he was suffering from paranoia.
for such crime. His wife had filed for guardianship which was
2. Over 15 years and under 18 years of age, the granted. Dumaguin later acquired a job as a
penalty being the next lower penalty prescribed by
prospector who relocates mining claims to
law for that crime but always in the proper period.
ANACONDA group owned by AI Reynolds and EJ
B. INSANITY Harrison. Ten mining claims were located and as
prospector, the claims were filed under
• Effects on Contracts Dumaguin’s name in the Office of the Mining
Recorder, until a deed of transfer was executed.
CC Article 1327: (Page 5)
Dumaguin then asked the court that the deed of
CC Article 1399: (Page 6) transfer executed by him be considered null and
CC Article 1328: Contracts entered into during a lucid void because he did not possess the mental
interval are valid while those entered into in a state of capacity to execute such transfers.
drunkenness is voidable. Held: A person under guardianship could still
enter into a contract provided that he or she was
Carillo vs. Jaojoco and Jaojoco
not in mental defect during the execution of the
Facts: Adriana Carillo executed a deed of sale to
contract. Also, having been employees of
Justiniano Jaojoco. Nine days later, Carillo was
ANACONDA group, it was within the confines of
declared to be mentally incapacitated and then
their job to execute such transfers. Nevertheless,
died still later. Miguela Carillo appealed for the
if he did own the mining claims, it would have
annulment of the said contract stating that
been aptly named “deed of transfer.”
Adriana Carillo could not have executed the deed
in a lucid state owing to the fact that the land of • Effect on Marriage
over 300,000 hectares was sold for only P4,000.
Held: The contract is valid. Burden of proof of FC Article 45: A marriage may be annulled for any of these
mental incapacity lies on the person who alleges causes:
1. If the party was over 18 and under 21 and the
it. No such proof exists and prior to the
marriage was solemnized without the consent of
confinement of the deceased in Hospicio de San parents or guardian, unless after reaching the age of
Lorenzo, she was able to manage her estate, 21 the couple has continued to cohabit,
which had been left to her by her husband. Her 2. Either party was of unsound mind unless the party
doctor and the one who executed the notarial has come to reason and freely cohabit,
instrument also noted that the deceased was 3. Consent by either party was obtained by fraud or
force,
responsive at the time they had been with her. 4. Either party was physically incapable of
consummating the marriage and the incapacity is
• Effect on Crimes incurable,
5. Either party was afflicted with STD which is
RPC Article 12 incurable.

US vs. Vaquilar FC Article 47: The persons who can file for an action for
Facts: Evaristo Vaquilar killed his wife and annulment are:
daughter and as such, he was convicted of 1. By the party whose parent or guardian did not give
consent, within 5 years after attaining the age of 21,
parricide for which he appealed. Witnesses do not or by the parent or guardian before the minor
know of any prior disagreement between the reaches 21,
deceased and the defendant which may have 2. By the sane spouse who did not know of the other
caused a sudden outrage. They witnessed person’s insanity or by the guardian of the insane or
however, that the defendant looked like a by the insane spouse during a lucid interval.
3. By the injured party, within years of the discovery of
madman, going after everyone in sight. His eyes fraud or force,
were red and penetrating and he had complained 4. For the injured party, in relation to STD and
of stomach and head ache before the event Impotence, after 5 years of marriage.
occurred.
Held: An extremely angry man often acts like a C. State of Being Deaf-Mute
madman. Although no prior disagreement was CC Article 1327: (Page 5)

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said to have flourished since it was managed by
CC Article 807: If the testator* is deaf or a deaf-mute, he Francisco Martinez’ wife and one half has also
must be able to personally read the will or designate two
persons to read it and communicate with him in a practicable
been in the ownership of Pedro Martinez, him
manner. being the sole heir of the first wife.
*A person whose property is transmitted through a will. Held: Acts of prodigality must show a morbid
state of mind and a disposition to spend, waste
CC Article 820: Any person of sound mind and legal age, not and lessen the estate to such an extent as to
blind, deaf or dumb and able to read and write, may be a
witness to the execution of a will.
expose the family to poverty.

E. Civil Interdiction
People vs. Sasota
Facts: Fidel Sasota was found guilty of raping RPC Article 34: Civil interdiction shall deprive the offender of
Rufina Barbuco, a deaf and dumb girl. The crime the rights of parental authority or guardianship, either as to
was witnessed by Severa Barbuco, a seven-year person or property.
old girl who testified along with Rufina. The RPC Article 11.2: Relatives that can be defended (without
defendant alleged that neither Rufina nor Severa criminal liability): spouses, ascendants, descendants,
can testify as one was deaf and dumb and the legitimate, natural or adopted brothers and sisters, relatives
other too young. by affinity in the same degree or relatives by consanguinity of
Held: The theory that deaf and dumb persons the 4th civil degree.
cannot testify as a competent witness has been RPC Article 13.5: Acts which are committed in immediate
dispelled (People vs. de Leon) because it is not vindication of a grave offense to the one committing the
sufficient. For as long as the requisite intelligence felony (are mitigating circumstances).
required to understand the nature of the oath can
be proven then a deaf-mute can testify. In CC Article 54: Males 16 years upwards may contract
marriage while females 14 years upwards may contract
relation to the seven year old, the court has held marriage.
that a child can testify as long as he or she can
understand the nature of the oath. CC Article 123: A person under civil interdiction may
contract marriage provided that there is a court designated
Director of Lands vs. Abelardo guardian available to witness the said marriage.
Facts: Director of land claims that the failure of
F. Family Relations
Fulgencia and Jose Dino to register any claim to
lots nos. 773 and 810 which was previously FC Article 37: Marriages between ascendants and
owned by their grandmother, is due to their being descendants of any degree or between brothers or sisters full
deaf and dumb. As such, they were unable to act or half-blood, are considered incestuous and void.
within the prescriptive period within which they
FC Article 87: Donations or grants given directly or indirectly
can register their claim. between spouses during marriage are void with the exception
Held: The state of being a deaf-mute is not of moderate gifts. The same is true for persons living together
considered an incapacity that will prevent a as husband and wife.
person from running of a prescriptive period.
- This is dictated by the principle of unity of
D. Prodigality personality of spouses.
- Any person prejudiced by the donation or grant may
RC Article 92 (2): Persons suffering the penalty of civil question its validity.
interdiction, hospitalized lepers, prodigals, deaf and dumb
who are unable to read and write, those of unsound mind and CC Article 1109: Prescription* does not run between
other similar cases, cannot, without aid, take care of husband and wife even though there is a separation of
themselves and manage their property. 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.
Martinez vs. Martinez
CC Article 1490: Husband and wife cannot sell property to
Facts: Pedro Martinez appealed to the Supreme one another when separation of property has been agreed
Court to declare his father, Francisco Martinez, a upon and there has been judicial separation.
prodigal. Pedro Martinez alleged that since his
father’s marriage to Anastacia Ilustre, his father’s G. Alienage
second wife, the wide and her parents have been
PC Article 12-
given properties amounting to $200,000. He Section 2: All natural resources, with the exception of
added that the administration has also been agricultural lands, are owned by the state. As such,
turned over to his father’s wife. Defendant stated exploration, development and utilization are under its full
that the son had, prior to the marriage, managed control and supervision. The State may undertake such
the estate by power of attorney but it was activities directly, in co-production, joint venture or
production sharing with Filipino citizens or corporations or
revoked because the son has mismanaged and associations where 60% of the capital is owned by Filipinos.
misappropriated the property. The estate was

7
The same is true for agreements with foreign-owned RC Rule 3, Section 4: A married woman cannot be sued
corporations. alone without joining her husband except:
Only small-scale utilization of marine life is allowed. 1. When they are judicially separated,
Section 7: No private lands shall be transferred to individuals, 2. If they have been separated for at least 1 year,
corporations or associations qualified to acquire land, except 3. When there is a separation of property agreed upon
in cases of hereditary succession. in marriage settlements,
Section 8: Natural-born citizens of the Philippines who has 4. If the administration of all the property has been
lost citizenship maybe a transferee of private lands subject to transferred to her,
limitations provided by law. 5. When the litigation is between husband and wife,
Section 11: Franchise, certificate or any form of authorization 6. When the suit involves her paraphernal property,
for operation of public utility may be granted to citizens of the 7. When the action is a civil liability arising from a
Philippines or corporations, associations or organizations criminal liability,
where at least 60% of the capital is owned by Filipinos. All 8. If the litigation is based on the profession,
executive and managing officers of public utilities must be occupation or a business in which she is engaged,
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.
Marriage
Congress shall prohibit monopolies in commercial mass media
Nature of Marriage
for the sake of public interest.
-Procedure by which a man and a woman become
Filipino citizens or corporations and or associations wherein
husband in wife, uniting for life.
seventy percent of capital is owned by citizens of the
-A status involving duties or responsibilities which
Philippines shall be allowed to engage in the advertising
are no longer matter for private regulations but the concern
industry. All executive and managing officers must be citizens
of the state.
of the Philippines.
-Civil or social institution which is the foundation of a
family and origin of domestic relations.
H. Absence
Purposes of Marriage
CC Article 390: An absentee shall be presumed dead for all
1. Reproduction
purposes, after an absence of seven years.
2. Education of the offspring
For purposes of succession, absentee shall be presumed dead
3. Mutual help
after 10 years or 5 years for those 75 and above.
Immediate purpose: constitute a complete and perfect
CC Article 391: The following are presumed dead for all
community between two individuals of different sexes.
purposes:
Remote purpose: preservation of human race.
1. Person on board a lost sea vessel or aeroplane,
2. Person missing for 4 years after taking part in a war,
FC Article 1: Marriage is a special contract of permanent
3. Person who after being in danger of death has not
union between a man and a woman entered into in
been heard from for four years.
accordance with law for the establishment of conjugal and
family life. It is the foundation of the family and an inviolable
FC Article 124: Conjugal partnership property belongs to
social institution whose nature consequences and incidents
spouses, jointly. In case of disagreement, the decision of the
are governed by law and not subject to stipulation, except
husband shall prevail and the wife may appeal for remedy in
that marriage settlements may fix the property relations
court within 5 years since the implementation of the contract.
during the marriage within the limits provided by this code.
Spouse may assume sole powers in case the other is
incapacitated.
Ordinary Contracts vs. Marriage Contracts:
Encumbrance or disposal of property shall be with the
- Ordinary contracts may be entered into by any
authority of the court or with the written consent of the
number of persons of whatever sex while marriage
spouse.
can be entered into only by one man and one
A contract with the authorization of the spouse is binding.
woman.
- In ordinary contracts the agreement of the parties
I. Marriage
have the force of law between them while in
CC Article 2259: The capacity of a woman to enter into
marriage, the law fixes the duties and rights of the
contract is governed by the civil code even if the marriage
parties.
occurred prior to the enactment of the said code.

8
- Ordinary contracts can be terminated by mutual
agreement of the parties while marriage cannot be CC Article 2176- Whoever by act or omission causes
so terminated. Neither can it be terminated even damage to another, there being fault or negligence, is obliged
though one of the parties subsequently becomes to pay for the damage done. Such fault or negligence is
incapable of performing his part. considered a quasi-delict and is governed by law.
- Breach of ordinary contracts gives rise to an action
for damages while breach of the obligations of a Wassamer vs. Velez
husband or a wife does not give rise to such an Francisco Velez and Beatrice Wassmer decided to
action..
get married on Septemeber4, 1954. On Sept. 2,
- The State’s role is to protect the family as the foundation of Velez left a note saying that the said marriage
the nation. has to be postponed. The following day, another
note arrived saying the marriage was still going
PC Article XV- to push through. After that, plaintiff has never
*The states role is to protect the family as the foundation of
society.
heard from him.
Section 1: State recognizes the Filipino family as the When plaintiff filed for evidence before the clerk
foundation of the nation. of court, the defendant was held in default and as
Section 2: Marriage is an inviolable social institution. such, plaintiff was awarded P2,000 actual
Section 3: State shall defend- damages, P25,000 moral damages and P2,500 for
1. The right of spouses to found a family in accordance
attorney’s fees. Defendant filed a motion for relief
with their religion and the demands of responsible
parenthood. and court gave both parties enough time to settle
2. The right of children to assistance, and special outside of court. No such settlement happened
protection. and several times, the defendant asked for
3. The right of family to a family living wage income. extension.
4. The right of families to participate in the planning
Held: The manner by which the defendant left the
and implementation of policies and programs that
affect them. plaintiff, only a few days before the wedding, was
Section 4: The family has the duty to care for its elderly contrary to good customs. At that time, the
members. 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
Breach of Promise
is due in this case.
CC Article 19: Everyone must act with justice, give everyone
his due and observe honesty and good faith. Tanjanco vs. CA
Facts: Apolinario Tanjanco and Arceli Santos are
-The exercise of a right ends where the right disappears and both of adult age. Santos consented to have
it disappears when it is abused, to the prejudice of others.
Good Faith- abstaining from taking advantage of others.
sexual intercourse with Tanjanco with the
promise of marriage. After almost a year of such
-A bride or groom who breaks an engagement without reason relationship, Santos conceived of a child and due
causing moral and material injury to the other party is liable to humiliation she left her job at IBM Philippines
for damages especially if the decision is made just before the where she received P230/ month. Tanjanco, then
wedding and after a long engagement.
refused to marry Santos who was no longer able
CC Article 20: Every person who willfully or negligently to support herself and the child. She was then
causes damage to another shall be liable for indemnity. prompted to sue for moral damages and to
compel the defendant to support herself and the
-A person is required to act with prudence and diligence. child.
CC Article 21: Any person who willfully causes loss or injury
Held: Article 21 cannot be invoked in this case as
to another in a manner contrary to morals, good customs or it was already evident to the woman that
public policy is liable for damages. Tanjanco no longer had any intention of marrying
her even before she conceived of a child.
-Acts which are not unlawful but are likewise contrary to Seduction, an example given by the code
morals or good customs, public order or policy shall fall under
commission under Article 21 connotes deceit,
this provision. This article was created to provide adequate
legal remedy. enticement, and abuse of confidence. Such
features are not present in the case wherein
Willful Act- an act done with knowledge of the effect there where several instances of sexual
- Seduction, wherein a woman who was promised with intercourse for a period of almost one year.
marriage gives herself to a man but was later left by
the man qualifies as deceit and may be used as basis
for indemnity. De Jesus vs. Syquia
- So long as there is a wrongful act and a resulting Cesar Syquia had sexual relations with Antonia
injury, there should be civil liability. Loanco. Through a letter to a priest, he had made
it apparent that he wanted the child carried by
-The injury must be the proximate cause of an act.
Antonia to be recognized as his. In several other
-No person shall unjustly enrich himself at the expense of
another. letters, he referred to the child as “junior.” For a

9
while the two partners lived under one roof with Held: Under the Michigan law invoked by the
Antonia’s mother, after the birth of the child. defendant, women have no general power to
Another child was conceived, upon which, Syquia enter into a contract except in separation of
left, never to be heard from again. At the properties. Also, private contracts between
christening of the child, Antonia named the child married individuals which are contrary to public
Ismael Loanco. policy are unenforceable by virtue of Sec. 587
Antonia then filed a suit against Syquia, to entitled “Bargain to Change Essential Obligations
recover P30,000 for damages for breach of of Marriage.” The court held that if contracts
promise to marry and to pay for her maintenance which are contrary to the essential obligations of
along with the two children. Trial court ordered marriage wee permitted, it would invite an
that the first child be recognized and for Syquia endless field of controversy and litigation and
to pay a monthly maintenance of P50. would destroy the element of flexibility needed in
Held: Supreme Court affirmed the judgment on making adjustments to the new conditions of
the grounds that the breach of promise was not marital life.
satisfactorily proven, owing to the fact that the
sexual relations continued even after the birth of  Challenges to the Traditional Marriage Models
the first child and even though there was still no “Looking Backward in Order to Look Forward”
marriage. In relation to the second child being By William H. Chafe
recognized, there was no proof to compel such -In the 1970’s, the status of women had already transformed
action. because of social and economic forces.
-After the “baby boom” of the 1950’s, there was a downturn
Marriage Models in the birthrate such that by 1970’s, the birthrate had reached
a level of zero population growth.
“Economics and the Public Purpose” -There was a trend in later marriages and of young women of
By John Kenneth Galbraith child bearing age joining the labor force.
-Industrialization eliminated the need for women to work. -Women also begun entering professions that have almost
-Rising standards of popular consumptions saw the need for exclusively been for men.
household managers—married women. -By 1970’s, the traditional norm of stay-at-home-mothers had
-The lady of the house is the chief menial to the household. already changed.
-Diversity and consumption increase made household Multiplier Effect- shifting values interacted with changing
management complex thereby requiring management skills. economic conditions to create a new pattern of family and
-Women were converted into “crypto servants” contributing ¼ work life.
of the Gross National Product by way of efficient
consumerism. The Changing Status of Women
Household- the disguise for the exercise of male authority
Neoclassical Consumer Equilibrium- the distribution of income Dunn vs. Palermo
to various uses so that satisfactions are roughly equal to the Facts: Rosary Palermo who is married to Denty
margin Cheatham has continued to use her maiden name
-Decisions depend on who earns a living. since her marriage. Because of a state-wide
-Women had only the power to implement decisions and not
make them.
compulsory registration law, Palermo lodged
-“The service of women to the economy is based on her sense information of her change of address listing her
of duty and capacity to affection.” name as Palermo. The registrar was prompted to
purge the name of Palermo from the registration
Graham vs. Graham list because Palermo refused to change her
Facts: On September 17, 1940, Sydney Graham name, citing Sec. 2-206 which states that
contracted with Margarethe Graham to the effect registration of a person shall be purged 90 days
that Margarethe shall pay Sydney the amount of after he changes his name or otherwise.
$300 per month until such time that the parties Palermo went to court seeking that the
no longer desire to continue with such an interpretation of the said rule be declared
arrangement. On July 11, 1933, the married erroneous or the statute be declared
couple divorced. The plaintiff then filed a suit unconstitutional, it being in violation of the 14th
against his former wife in order to claim the amendment due process and equal protection
remaining amount of money that he should be clause.
accorded by virtue of the contract. Plaintiff Held: The use of a husband’s name is customary
alleged the contract was done so that he can and as such, the common law does not compel
accompany his wife on her travels. women to use their husband’s name. In the past,
The total amount claimed until November 7, 1939 the husband’s name was used to indicate the
was $25,000 with 3% interest per annum. The marital status of a woman. A person has a
defendant on the other hand alleged that the common right to adopt any name he or she wants
contract was not within the powers of a married to be known with. The use of husband’s name
woman under a Michigan law and that the divorce was mainly for indicating marital status. It was
should have effected the termination of the said more by practice rather than by law.
contract.
10
 Private Contracts: When Valid, When Void? Held: Marriage, in many widely circulated
dictionaries, are defined as a “union between
In Re: Santiago man and woman,” and there is no authority to
Facts: This is an administrative case concerning the contrary.
Atty. Roque Santiago who executed a document The plaintiffs were not being prevented by the
wherein it was stipulated that Ernesto Baniquit statutory provision to marry. Rather, they were
and his wife Soledad Colores were from then on, being prevented by themselves.
separated, allowing either parties to marry again
without danger of becoming subject to any legal Goodridge vs. Department of Public health
action from either of the two parties. With this, Facts: In March and April of 2001, each of the
Baniquit got married to Trinidad Aurelio. plaintiff couples attempted to obtain the marriage
Santiago’s mistake, according to him, was due license from their respective city or town clerk’s
mainly to his idea that a seven-year separation office. After their requirements had been
will allow for such action. In finding out his completed, the clerk in each case refused to
mistake, he called on Baniquit who at that time, accept the notice of intention to marry or denied
was already married to someone else. a marriage license on the ground that
Held: The advice given and the document tended Massachusetts does not recognize same-sex
to subvert the vital foundation of the family. marriages. Plaintiffs filed a suit alleging that
Marriage, as stated in Article 1 of the Family exclusion of same-sex couples from access to
Code, is not subject to the stipulation. marriage license and civil marriage and its
benefits is in violation of Massachusetts law.
Selanova vs. Mendoza Held: Without the right to marry or the right to
Facts: Judge Alejandro Mendoza prepared and choose to marry, one is excluded from the full
ratified a document extrajudicially liquidating the range of human experience and denied full
conjugal partnership of Saturnino Selanova and protection of the laws for one’s commitment to
Avelina Ceriza. It was stipulated in the document lasting human relationships.
that the spouses should withdraw the adultery Held: Defense of procreation is not sufficient
and concubinage cases each had filed against because same-sex couples are still capable of
another. The defendant ratified the document procreation although their methods may not be
with the assurance that the spouses would ask traditional. Likewise, these couples are capable of
the Court of First Instance to approve the rearing children in such a setting, affirmed by the
agreement. According to the respondent, the Massachusetts law which allows adoption for
basis of the decision was Part 4 of Article 191 of same-sex couples. Same-sex couples should be
the Civil Code which stated that husband and wife afforded the same benefits as opposite-sex
may agree upon the dissolution of marriage couples by virtue of the Equal Protection and Due
subject to judicial approval. Process clause of the 14th amendment.
Held: Respondent’s action was void as it violated
Article 221 of the Civil Code which states that Baker vs. State
contracts and any extrajudicial agreements are Facts: Same-sex couples brought action against
void. the State, city and town seeking declaratory
Judicial sanction for annulment of marriage judgment that the refusal to issue them marriage
should have been secured before hand. licenses violated the common benefits clause of
the Vermont constitution. Plaintiffs claim that
 Requisites of Marriage
denial of marriage license was tantamount to
Essential Requisites of Marriage denial of legal benefits and protections of marital
relations.
FC Article 2: Essential Requisites of marriage are— Held: Government is established for the common
1. Legal capacity of contracting parties who must be
benefit of the people and community as a whole.
male or female.
2. Consent that is freely given in the presence of a The state interests in preventing the marriage of
solemnizing officer authorized by the state to same-sex couples which are: Procreation and
conduct such marriage. uniformity with other states, while valid, should
not be employed through a means that would
 Legal Capacity of Male and Female prevent same-sex couples from acquiring the
benefits inherent to married life.
Jones vs. Hallahan
Facts: Two women appealed the decision of the
Defense of Marriage Act- Defense of marriage as an
Circuit Court which held that both of them cannot institution, as upheld by 37 states in the United States
marry one another. Plaintiffs claim that the - 4 States have explicitly banned same-sex marriages.
decision abridges the Equal Protection clause and - Vermont and Massachusetts have come up with
Due Process clause of the fourteenth legislation that would allow same-sex couples to
amendment. enjoy the benefits that opposite-sex married couples
11
enjoy. In Vermont, it is done through a civil union, in
Massachusetts, same-sex marriage is now allowed. FC Article 3: Formal Requisites of Marriage—
1. Authority of the solemnizing officer,
 Consent Freely Given 2. Valid marriage license except in cases provided,
3. Marriage ceremony with the appearance of
FC Article 4: Marriage is rendered void in the absence of any contracting parties before a solemnizing officer,
of the essential requisites (stated in Article 2 of FC). If there 4. Two witnesses that are of legal age,
is any irregularity in the formal requisites, the validity shall 5. Declaration that they take each other as husband
not be affect validity but either or both parties are civilly, and wife.
criminally and administratively liable.
Authority of the Solemnizing Officer
FC Article 45: (page 8)
FC Article 7: Marriage may be solemnized by:
People vs. Felipe Santiago 1. Any incumbent member of the judiciary within the
Facts: Felipe Santiago raped Felicita Masilang, 18 court’s jurisdiction;
2. Any priest, rabbi, imam or minister of any church or
years old, a few paces from Manila North Road. religious sect duly authorized by his church or
After the deed was done, defendant brought the religious sect and registered with the civil registrar
girl to the house of Agaton Santiago, the general, acting within the limits of the written
defendant’s uncle, who later found a protestant authority granted him by his church or religious sect
minister who administered the marriage of and provided that at least one of the contracting
parties belongs to the solemnizing officer’s church or
Santiago to Masilang. After the marriage, the religious sect;
victim was given a few pesos and was told to 3. Any ship captain or airplane chief only in the cases
leave. mentioned in Article 31;
Held: The marriage is void first, because the 4. Any military commander of a unit to which a chaplain
victim did not have his father’s consent to marry is assigned, in the absence of the latter, during a
military operation, likewise only in cases mentioned
and second, because the victim was under duress
in Article 32;
and was thereby incapable of giving her consent 5. Any consul-general, consul or vice-consul in the case
freely. Also, Felipe Santiago did not really intend provided in Article 10.
to marry Felicita Masilang. He only did so to
escape criminal liability. As such, the marriage is - Without registration of the solemnizing officer with
the office of the Civil Registrar the marriage is void.
void because the consent of Santiago is not freely
The same is true if the solemnizing priest s not
given. The consent referred to here is not the authorized by his church.
consent of Felicita but that of Felipe who had no - A resulting irregularity that will not affect the validity
intention of marrying Felicita. of the marriage is one where there is mistake of fact
and not mistake of law.
- Ignorantia legis non excusat
Buccat vs. Mangonon de Buccat
FC Article 10: Marriages between Filipino citizens abroad
may be solemnized by a consul or vice-consul of the Republic
Eigenmann vs. Guerra of the Philippines. The issuance of the marriage license and
Facts: Petition was instituted by Eduardo the duties of the local civil registrar and of the solemnizing
Eigenmann to annul his marriage to Maryden officer with regard to the celebration of marriage shall be
Guerra on the grounds that he was a minor who performed by the consular official.
needed consent from his parents when he FC Article 31: A marriage in articulo mortis* between
married (16-20 years old) and such consent was passengers or crew members may also be solemnized by a
not given. He alleged that he was threatened and ship captain or by an airplane pilot not only while the ship is
coerced into the marriage and that the at sea or the plane is in flight but also during stopovers at
solemnizing officer who administered the ports of call.
*At the point of death
marriage license was not authorized thereby
rendering the said license void ab initio. FC Article 32: A military commander of a unit, who is a
Held: The marriage license confirmed that commissioned officer, shall likewise have authority to
plaintiff misrepresented himself to be of legal age solemnize marriages in articulo mortis between persons
there for he is subject to an estoppel preventing within the zone of military operation, whether members of the
armed forces or civilians.
himself to invoke minority. (this is as to the
needed consent and not the lack of minimum FC Article 4: The absence of any of the essential or formal
age) The said threat was not sufficient to hold requisites shall render the marriage void ab initio, except as
that he was coerced into consenting to the stated in article 35 a.
marriage because it was not really threatening. A defect in any of the essential requisites shall
render the marriage voidable as provided in article 45.
Lastly, marriages solemnized by a license An irregularity in the formal requisites shall not
obtained wrongfully, merely renders the marriage affect the validity of the marriage but the party or the parties
to be irregular and is not null, void or voidable. responsible for the irregularity shall be civilly, criminally or
administratively liable.
 Formal Requisites
- External to the parties FC Article 35 (2): The following marriages shall be void from
Formal Requisites of Marriage the beginning:

12
(2) Those solemnized by any person not legally authorized to husband and wife for at least five years and without any legal
perform marriages unless such marriages were contracted impediment to marry each other. The contracting parties shall
with either or both parties believing in god faith that the state the foregoing facts in an affidavit before any person
solemnizing officer had legal authority to do so. authorized by law to administer oaths. The solemnizing officer
shall also state under oath that he ascertained the
CC Article 3: Ignorance of the law excuses no one from qualifications of the contracting parties and found no legal
compliance therewith. impediment to the marriage.

Navarro vs. Domagtoy PD965: A decree requiring applicants for marriage licenses to
Facts: This is an administrative case filed by receive instructions on family planning and responsible
parenthood.
Rodolfo G. Navarro against Hernando C.
Domagtoy who allegedly solemnized the Republic of the Philippines vs. CA and
marriage between Gaspar A. Tagadan and Arlyn Castro
Borja despite knowledge that the groom was only Facts: Angelina M. Castro filed a petition for a
separated with his former wife who was already judicial declaration of nullity of her marriage to
absent for seven years. Also, the respondent Edwin F. Cardinas which was granted by the
judge also solemnized the marriage of Floriano Court of Appeals. Then petitioner Castro was
Sumaylo and Gemma del Rosario outside the separated after four months of marriage with
jurisdiction of the respondent. Cardinas. As such, Castro sought for the nullity of
Held: On the second marriage, there is a resulting her marriage before she left for the US. Plaintiff
irregularity because marriage may only be Republic of the Philippines challenged the
conducted elsewhere only if there is a written decision of the appellate court because Castro’s
request coming from both parties. In the case at claim that there was no marriage license was
hand, the request only came from one party. only supported by a “due search and inability to
Judges may only officiate weddings within their find” certification issued by the local civil
jurisdiction otherwise there will be an irregularity registrar of Pasig and Caustro’s own testimony.
with the formal requisites. Article 8 states that Held: No marriage shall be solemnized without a
marriages may be conducted elsewhere provided marriage license otherwise it will be rendered
that there is written request coming from both void ab initio. The certification of “due search and
parties to the marriage. inability to find” is sufficient to hold that no proof
of license exists and the testimony is sufficient
Aranes vs. Occiano because the marriage was a secret marriage and
Mercidita Aranes charged presiding judge under the circumstances it is understandable that
Salvador Occiano of gross ignorance of the law there can be no other witness.
for solemnizing her marriage with her husband
without a license and outside his jurisdiction. Moreno vs. Bernabe
Respondent judge claims that he agreed to Facts: Marilou Nama Moreno filed the complaint
solemnizing the marriage provided that the against Judge Jose C. Bernabe for grave
license will be delivered to him on the same day misconduct and gross ignorance of the law.
however, no such license ever came. No record of According to the complainant, respondent judge
the application for a marriage license because it solemnized her marriage with Marcelo Moreno,
was denied when the husband failed to present assured that the contract will be released after 10
the death certificate of his first wife. days. Respondent judge claims that the failure to
Held: Respondent judge is liable for failure to produce the contract was due to the failure of the
ascertain the existence of a marriage license. Local Registrar of Pasig to release the marriage
Presenting a marriage license after the license. He was assured, when he solemnized the
solemnization of the wedding does not, in any marriage, that the license was forthcoming as
way validate the marriage. Also, under BP 129, such, he agreed to conduct the ceremony but
the authority of the judges of inferior courts to reminded the plaintiff and her husband of the
solemnize marriage is confined to their territorial consequences of conducting the ceremony
jurisdiction. The authority of the judge to without a marriage license.
solemnize a marriage is derived from the Held: Marriage ceremonies, absent of a marriage
marriage license. license, are void ab initio.
 Marriage License
People vs. Borromeo
FC Article 9: A marriage license shall be issued by the local Facts: Defendant Elias Borromeo appealed his
registrar of the city or municipality where either contracting conviction of parricide and his sentence of
party habitually resides, except in marriages where no license reclusion perpetua. On July 3, 1981, defendant
is required in accordance with chapter 2 of this Title.
killed his wife, Susana Borromeo. He claimed that
FC Article 34: No marriage shall be necessary for the Susana Borromeo was not his wife because no
marriage of a man and a woman who have lived together as

13
marriage contract was executed during their or temple, or in the office of the consul-general, consul or
marriage. vice-consul, as the case may be, and not elsewhere, except in
cases of marriages contracted on the point of death or in
Held: Defendant testified that he was indeed, remote places in accordance with Article 29 of this Code, or
married to Susana Borromeo. Nevertheless, had where both of the parties request the solemnizing officer in
there been an actual absence of a marriage writing in which case, the marriage may be solemnized at a
contract, persons living together in apparent house or place designated by them in a sworn statement to
matrimony are presumed to be married unless that effect.
- Whatever venue is chosen, it must be within the jurisdiction
evidence is presented to show otherwise. “Such is of the solemnizing officer.
the common order of society. If parties were not
what they hold themselves to be, they will be FC Article 28: If the residence of either party is so located
living in constant violation of the law.” 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
Seguisabal vs. Cabrera
marriage license.
Facts: Andon Seguisabal charged Judge Jose - Applicable when one of the parties is handicapped
Cabrera of gross misconduct and grave ignorance
of the law for solemnizing the marriage of Jaime FC Article 29: The solemnizing officer shall state in an
Sayson and Marlyn Jagonoy without the requisite affidavit the executed before the local civil registrar or any
other person legally authorized to administer oaths that the
marriage license. The respondent was also said to
marriage was performed in articulo mortis or that the
have failed to transmit a copy of the marriage residence of either party, specifying the barrio or barangay, is
contract he signed to the Office of the Civil so located that there is no means of transportation to enable
Registrar of Toledo City within the required 15 such party to appear personally before the local civil registrar
days. The Respondent judge contended that he and that officer took the necessary steps to ascertain the
ages and relationship of the contracting parties and the
agreed to solemnize the marriage of the two
absence of legal impediment to marriage.
parties with the agreement that the marriage
license will be given in the afternoon, which the FC Article22: The marriage certificate shall state:
couple failed to do. Years later when Marlyn 1. Full name, sec and age;
Jagonoy returned asking for the marriage contract 2. Citizenship, religion and habitual residence;
so that she can claim the pension of her 3. the date and precise time of the celebration;
4. That the proper marriage license has been issued
deceased husband, respondent judge issued a according to law;
marriage contract despite of the knowledge that 5. That either or both of the contracting parties have
there is still no marriage license as the deceased secured the parental consent (if it applies);
and his widow failed to attend a family planning 6. That either or both of the contracting parties have
session. complied with the legal requirement regarding
parental advice (where it applies);
Held: Cabrera was expected to follow the dictates 7. That the parties have entered into a marriage
of his profession. His decision to commit an act settlement, if any, attaching a copy thereof.
outside the boundaries of the law cannot be
justified by good faith. Marriages solemnized FC Article 23: It is the duty of the solemnizing officer to
without a marriage license is void ab initio. 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
 Ceremony
local civil registrar of the place where the marriage was
solemnized. Proper receipts shall be issued by the local civil
FC Article 6: No prescribed form or religious rite for the
registrar to the solemnizing officer transmitting the copies of
solemnization of the marriage is required. It shall be
the marriage certificate. The solemnizing officer shall retain in
necessary however, for the contracting parties to appear
his file the quadruplicate copy of the marriage certificate, the
personally before the solemnizing officer and declare in the
original of the marriage license, and the affidavit of the
presence of not less than two witnesses of legal age that they
contracting party regarding the solemnization of the marriage
take each other as husband and wife. This declaration shall be
in another place.
contained in the marriage certificate which shall be signed by
the contracting parties and their witnesses and attested by
FC Article 24: It shall be the duty of the local civil registrar
the solemnizing officer.
to prepare the documents required and to administer oaths to
In case of marriage in articulo mortis, when the
all interested parties without any charge in both cases. The
party at the point of death is unable to sign the marriage
documents and affidavits filed in connection with applications
certificate, it shall be sufficient for one of the witnesses to the
for marriage licenses shall be exempt from documentary
marriage to write the name of said party, which fat shall be
stamp tax.
attested by the solemnizing officer.
 Requisites of a Marriage Ceremony
Requisites of Marriage Ceremony:
- For both parties to appear personally before the
solemnizing officer; Martinez vs. Tan
- That there is presence of not less than two witnesses Facts: Rosalia Martinez and Angel Tan signed a
of legal age; petition directed to the Justice of Peace stating
- That both party take each other as husband and wife therein their agreement to contract marriage. The
FC Article 8: The marriage shall be solemnized publicly in the
document was signed by the defendant and
chambers of the judge or in open court, in the church, chapel plaintiff and the Justice of Peace and two
14
witnesses namely Zacharias Esmero and Pacita
Ballori. A certificate of marriage was likewise 3. That in cases of cohabitation by a man and a woman who
are not capacitated to marry each other and who have
signed by the Justice and the witnesses attesting acquire properly through their actual joint contribution of
that a marriage did ensue. Plaintiff alleged that money, property or industry, such contributions and their
she did not attend the ceremony and that she corresponding shares including joint deposits of money and
only signed it. Rosario Bayot attested that on the evidences of credit are equal.
day of the marriage, the plaintiff never left her
company. Pacita Ballori attested otherwise. Apart
Trinidad vs. CA, Trinidad and Trinidad
from that, several letters from the plaintiff for the
Facts: Arturio Trinidad, was the son of Inocentes
defendant prove that plaintiff indeed intended to
Trinidad and nephew of Lourdes and Felix
marry the defendant.
Trinidad. The three siblings, Inocentes, Lourdes
Held: The documents signed were sufficient to
and Felix, inherited a piece of land from their
prove that what took place before the Justice of
father, Patricio Trinidad. Defendants claimed that
Peace was legal and the ceremony amounted to a
the land in question has been in their possession
wedding.
since the death of their father and that Inocentes
died in 1941 and not in 1944 as alleged by
Melecio Madridejo vs. Gonzalo de Leon
Arturio. They also contend that Inocentes never
Facts: Eulogio de Leon and Flaviana Perez had
fathered a child nor was he ever married. Arturio
one child—Domingo de Leon. In the year 1915,
on the other hand alleged that his father was
Eulogio died leaving Flaviana with Domingo.
married to Felicidad Molato, his mother. Several
Flaviana later lived with Pedro Madridejo and bore
witnesses living within the neighborhood testified
a child—Melecio. On June 8, 1920, Flaviana,
to the marriage and the birth of Arturio and that
knowing that she will die soon, married Pedro.
Arturio contrary to the claims of Lourdes and Felix
She died the following day. Melecio Madridejo
had lived in their house for some time. Relevant
claimed that he is the next of kin of Domingo de
public documents valuable as evidence were
Leon who died as well. Defendant claimed that
destroyed during the war.
the wedding of Pedro and Flaviana was not valid
Held: Marriage may be proven by relevant
because the solemnizing officer failed to send a
evidences such as: testimony of a witness to the
copy of the marriage certificate to the Municipal
matrimony, public and open cohabitation, birth
Secretary. Also, Melecio Madridejo was allegedly
and baptismal certificate signed by the couple or
not a legitimate child.
a mention of the marriage in other public
Held: Forwarding of the marriage certificate is not
documents. Two witnesses attested that the
an essential requisite of the marriage. Failure to
couple cohabited and that Arturio was their son.
do so does not invalidate the marriage. For a
As proof of filiation with Felix and Lourdes, two
subsequent marriage to effectively legitimate a
family pictures were shown where Arturio was in
child born out of wedlock, the child must be
the company of Lourdes and Felix and the
acknowledged by the parents in some public
witnesses likewise attested that Arturio had lived
document or be in the uninterrupted possession
with his aunt and uncle. The preponderance of
of the status of a natural child. In the case at
evidence supported the claims of Arturio.
hand, Melecio Madridejo was not legitimated. No
public document to that effect exists and he was
Vda. De Jacob vs. CA and Pilapil
not able to prove that he has been in an
Facts: Plaintiff claimed to be the surviving spouse
uninterrupted status of the natural child.
of Dr. Alfredo E. Jacob and appointed special
 Presumption of Marriage administratix for his estates by virtue of a
reconstructed marriage contract recognized by
CC Article 220: In case of doubt, all presumptions favor the their solemnizing officer who admitted that he
solidarity of the family. Thus, every intendment of law or facts lost the marriage contract earlier on. The court of
leans toward the validity of marriage, the indissolubility of the
marriage bonds, the legitimacy of children, the community of
appeals ruled against the plaintiff on the grounds
property during marriage, the authority of parents over their that no copy of the contract was sent and no
children, and the validity of defense for any member of the record of the marriage existed and that Dr.
family in case of unlawful aggression. Alfredo signed the contract with his thumbmark
RC Section 3 Rule 131: That persons acting as copartners and not with his own name. Lastly, court of
have entered into a contract of copartneship;
appeals stated that the reconstructed marriage
1. That a man and woman deporting themselves as husband contract was signed by Benjamin Molina and not
and wife have entered into a lawful contract of marriage; by Jose Centera who the plaintiff said allegedly
lost the marriage contract.
2. That property acquired by a man and a woman who is Held: Dr. Alfredo and Plaintiff Tomasa had lived
capacitated to marry each other and who live exclusively with
together for over five years and the deceased
each other as husband and wife without the benefit of
marriage or under void marriage, has been obtained by their signed an affidavit to that effect. According to
joint efforts, work or industry. Article 76 of the Civil Code, no marriage license
15
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 Void Marriages
of loss of marriage certificate before the reconstructed
certificate may be admitted 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 defect in any of the essential requisites shall render the
marriage voidable as provided in Article 45.
An irregularity in the formal requisites of shall not affect the
validity of the marriage but the party or parties responsible
for the irregularity shall be civilly, criminally and
administratively liable.

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.

16
Psychological incapacity vs. Vice of consent Held: Psychological incapacity should refer to a
- a person may fully agree but may not understand mental and not physical incapacity. It is confined
the obligations of marriage.
- Psychological incapacity is not a vice of consent but
to the most serious personality disorders clearly
there is a lack of legal capacity, an essential requisite demonstrative of an utter insensitivity or inability
of marriage. to give meaning and significance to the marriage.
It is not enough that the parties failed to meet
Psychological Incapacity vs. Insanity their responsibilities. It is essential that they must
- Insanity has varying degree;
- Insanity is curable
be shown as incapable of doing so.
- There are lucid intervals in insanity
Molina Guidelines in Applying Article 36
- Insanity is a ground for annulment in other countries
1. The burden of proof to show the nullity of the
marriage belongs to the plaintiff. Any doubt should
Note: Psychological incapacity was not defined using
be resolved in favor of the existence and
examples to avoid ejusdem generis (exclusive enumeration)
continuation of the marriage and against its
which might limit the applicability of the provision. It is
dissolution and nullity.
therefore judged according to the facts of the case.
2. The root cause of the psychological incapacity must
be (a) medically or clinically identified, (b) alleged in
- Psychological incapacity should exist at the time of
the complaint, (c) sufficiently proven by the experts
the marriage.
and (d) clearly explained in the decision. The person
- Psychological incapacity is restricted to disorders
alleged to be incapacitated must be psychologically ill
demonstrative of the utter sensitivity or inability to
to the extent that the person could not have known
give meaning and significance to the marriage.
the obligations he was assuming or knowing them
could not have given a valid assumption thereof.
Examples of psychological incapacity:
3. The incapacity must be proven to be existing at the
1. Homosexuality;
time of the celebration of the marriage. The evidence
2. Satryiasis or Nymphomania;
must show that the illness was existing when the
3. Epilepsy with permanently recurring maladaptive
parties exchanged vows.
manifestationsl
4. Such incapacity must also be shown to be medically
4. Extremely low intelligencel
or clinically permanent or incurable. Such incurability
5. Habitual Alcoholism;
may be absolute or relative only in regard to the
6. Criminality
other spouse. Such incapacity must also be relevant
to the assumption of marriage obligations.
Manifestations of psychological incapacity:
5. Such illness must be grave enough to bring about
- Refusal of wife to dwell with the husband after
the disability of the party to assume the essential
marriage;
obligations of marriage. The illness must be shown
- Affliction which makes common life unbearable;
as downright inability or incapacity.
- Sociopathic anomalies on husband’s part
6. The essential marital obligations are:
Santos vs. Bedia-Santos a. The husband and wife are obligated to live
Facts: Louel Santos who was married to Julia together, observe mutual love, respect and
Bedia-Santos wishes to annul his marriage based fidelity, and render mutual help and support
on Article 36 of the Family Code. Respondent has, (FC Article 68).
for the last seven years since filing for the b. The husband and wife shall fix the family
domicile. In case of disagreement, the court
annulment, resided in the United States and has shall decide. The court may exempt one
contacted the petitioner only twice. spouse from living with the other if the
Held: Psychological incapacity refers to the latter should live abroad or there are other
mental, not physical incapacity. It must be valid and compelling reasons for the
characterized by gravity, juridical exemption. However, such exemption shall
not apply if the same is not compatible with
antecedence and incurability for it to be the solidarity of the family (FC Article 69).
considered a psychological incapacity. c. The spouses are jointly responsible for the
Psychological incapacity is not a vice of consent. support of the family. The expenses for such
A person may have given his or her consent support and other conjugal obligations shall
freely without understanding the obligations of be paid from the community property and in
the absence thereof, from the income or
the contract. Without consent, a marriage is void fruits of their separate properties. In case of
ab initio. Without the ability to understand the insufficiency or absence of said income or
nature of the contract, the marriage is merely fruits, such obligations shall be satisfied
voidable. from their separate properties (FC Article
70).
d. The management of the household shall be
Republic of the Philippines vs. Molina
the right and duty of both spouses. The
Facts: Respondent alleged that her husband expenses for such management shall be
Reynaldo Molina was psychologically paid in accordance with the provisions of
incapacitated because he showed signs of Article 70 (FC Article 71).
immaturity, irresponsibility and dependence. She
7. Interpretations given by the National Appellate
also averred that her husband was never honest.
Matrimonial Tribunal of the Catholic Church in the
The Court of Appeals and Regional Trial Court Philippines, while not controlling or decisive, should
upheld that the marriage was indeed, void. be given great respect by our courts.

17
Respondent alleged that since their marriage in
Apiag vs. Cantero May 22, 1988 until March 15, 1989, the couple
Facts: Maria Apiag filed an administrative case has not consummated their marriage. Defendant
against her husband, respondent judge, contended that it was the wife’s fault that their
Esmeraldo G. Cantero. The Court of Appeals marriage was not consummated. A physician
decided that the respondent acted in grave examined both plaintiff and defendant and
misconduct. The plaintiff and respondent were attested that neither of them had any physical
married and petitioner bore 2 children by that problem. Defendant alleged that the wife was
marriage. After the second child was born, afraid to consummate the marriage and afraid
respondent judge left for no reason. Plaintiffs, that she would have to return the jewelry given to
through their counsel asked respondent for her.
support and for the children to be declared legal Held: Whether or not it was the husband who
heirs. Complainants subsequently learned that refused to consummate the marriage is
respondent has contracted another marriage with immaterial. The fact still stands that it has not
whom he had 5 children. Respondent been consummated. There may be physical and
misrepresented himself in his declaration of not psychological reasons as to why the marriage
assets and liabilities by putting the name of the should not be annulled but the evidence to that
second wife on the said statement. He contended effect was not presented. Catholic marriage
that the first marriage was void ab initio because tribunals attribute the causes to psychological
he and his first wife never cohabited and he was incapacity than stubborn refusal. The natural
forced into the marriage. He added that he and order between spouses is sexual intimacy.
the petitioners have settled amicably and he has
agreed to give the children ¼ of his retirement Antonio vs. Reyes
benefits. Facts: Petitioner filed a petition for the
Held: While he did not act in grave misconduct, declaration of his marriage to respondent as null
he acted in impropriety when he failed and and void on the grounds of psychological
refused to attend to the needs of his children. incapacity as manifested by several instances of
Although it is undisputed that the judge did not lying and concealment of an illegitimate child by
obtain a judicial declaration of nullity of his first Respondent Ivonne Reyes. Petitioner alleged that
marriage, pursuant to the jurisprudence respondent fabricated stories which bordered on
prevailing at the time of the second marriage, it the ridiculous.
has been established that no such declaration Held: Marriage was void by virtue of the Molina
was necessary. guidelines, fulfilled by the Petitioner.

Choa vs. Choa


Facts: Respondent Alfonso Choa filed a complaint FC Article 37: Marriages between the following are
incestuous and void from the beginning, whether the
for the annulment of his marriage to petitioner relationship between the parties is legitimate or illegitimate.
Leni Choa on the grounds of psychological 1. Between ascendants and descendants of any degree
incapacity. Petitioner filed a demurrer of evidence and
(an objection or exception by one of the parties in 2. Between brothers and sisters, whether of full or half
an action at law to the effect that the evidence blood.
which the adversary produced is insufficient in FC Article 38: The following marriages shall be void from the
point of law to make out a case and sustain the beginning for reasons of public policy:
issue). The demurrer of evidence was dismissed 1. Between collateral blood relatives, whether
by the appellate court which upheld that the legitimate or illegitimate, up to the fourth civil
claims of Alfonso Choa—that her wife had filed degree;
2. Between step-parents and step-children;
several lawsuits against him indicating
3. Between parents-in-law and children-in-law;
psychological incapacity and that his wife was 4. Between the adopting parent and the adopted child;
immature, carefree and had no intentions of 5. Between the surviving spouse of the adopting parent
procreative sexuality—as sufficient evidence. and the adopted child;
Held: Psychological incapacity must be 6. Between the surviving spouse of the adopted child
and the adopter;
characterized by gravity, juridical antecedence
7. Between an adopted child and a legitimate child of
and incurability. The testimony of the expert the adopter;
doctor and the respondent only showed that the 8. Between adopted children of the same adopter; and
two cannot get along with each other. 9. Between parties where one, with the intention to
marry the other, killed that other person’s spouse or
his or her own spouse.
Tsoi vs. CA
Facts: Respondent Gina Lao Tsoi filed for FC Article 39: The action or defense for the declaration of
annulment of her marriage to petitioner Chi Ming absolute nullity of a marriage shall not prescribe. However, in
Tsoi on the ground of psychological incapacity. the case of marriages celebrated before the effectivity of this

18
code and falling under Article 36, such action or defense shall Lema, states that his marriage to Lema was void
prescribe in ten years after this code shall have taken effect. ab initio. No judicial decree was necessary to
FC Article 40: The absolute nullity of a previous marriage
establish its invalidity.
may be invoked for purposes of remarriage on the basis solely
of a final judgment declaring such previous marriage void. Tolentino vs. Paras
- Final judgment is needed to avoid confusion because one of Facts: Serafia Tolentino was the wife of the
the parties may contract another marriage which would be deceased, Amado Tolentino. Petitioner requested
bigamous and therefore void during the pendency of the trial
for the other marriage.
the correction of an entry on the death certificate
of the deceased which states that the name of his
FC Article 41: A marriage contracted by any person during surviving spouse was Maria Clemente. Amado
the subsistence of a previous marriage shall be null and void, Tolentino married his second wife, Maria
unless before the celebration of the subsequent marriage, the Clemente while his first marriage was still in
prior spouse had been absent for four* consecutive years and
effect. When the deceased was charged with
the spouse present had a well-founded belief that the absent
spouse was already dead. In case of disappearance where bigamy, he pleaded guilty and served the
there is danger of death under the circumstances set forth in corresponding sentene. The petition was
the provisions of Article 391 of the Civil Code, an absence of dismissed by Hon. Edgardo Paras on grounds that
only two years shall be sufficient. the issue was a marital relationship, and that the
For the purpose of contracting the subsequent marriage under
court has no jurisdiction.
the preceding paragraph, the spouse present must institute a
summary proceeding as provided in this Code for the Held: The petition was meritorious. The court had
declaration of presumptive death of the absentee, without jurisdiction because the wife was, initially,
prejudice to the effect of reappearance of the absent spouse. seeking a judicial declaration that she was the
lawful spouse of the deceased. The plea of guilt
FC Article 44: If both spouses of the subsequent marriage of the deceased effectively established that the
acted in bad faith, said marriage shall be void ab initio and all
donations by reason of marriage and testamentary second marriage was in fact, void ab initio and
dispositions made by one in favor of the other are revoked by that the petitioner was the lawful spouse.
operation of law.
Wiegel vs. Sempio-Diy
RA 8533 Lilia Wiegel appealed for the reversal of the
CC Article 390: After an absence of seven years, it being
decision of respondent judge, Sempio-Diy
unknown whether or not the absentee still lives, he shall be because, in the petition for the declaration of
presumed dead for all purposes, except for those of nullity of marriage filed by Karl Heinz Wiegel
succession. The absentee shall not be presumed dead for the against petitioner, respondent judge ruled against
purposes of opening his succession till after an absence of ten the presentation of evidence. When petitioner
years. If he disappeared after the age of seventy-five years,
an absence of five years shall be sufficient in order that his
was married to the plaintiff, she had a previous
succession may be open. existing marriage. Petitioner claimed that the first
marriage was void ab initio because she was
CC Article 391: The following shall be presumed dead for all forced into marrying her first husband.
purposes, including the division of the estate among the Held: There was no need to present evidence
heirs;
1. A person on board a vessel lost during sea voyage,
because if there had been, in fact, intimidation
or an airplane which is missing, who has not been during the first marriage, the said marriage would
heard of for four years since the loss of the vessel or have been rendered voidable and not void. Had
airplane; the marriage been void, a judicial declaration
2. A person in the armed forces who has taken part in would still be necessary.
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 Terre vs. Terre
known for four years. Facts: Petitioner charged Atty Jordan Terre with
gross immoral conduct for contracting a second
People vs. Mendoza marriage while he has a subsisting marriage. The
Facts: Appellant was married to Jovita de Asis on petitioner alleged that while she was still in her
August 5, 1936. On May 14, 1941, appellant previous marriage with her first cousin, she was
married Olga Lema. On February 2, 1943, the first courted by defendant and was advised that she
wife of appellant died. On August 19, 1949, was free to contract a second marriage because
appellant married one Carmencita Panlilio. her first marriage was void. Petitioner took the
Appellant was then charged with bigamy but he advise and married herein respondent but, after a
contended that his marriage to Olga Lema was few years, the respondent took off. Later the
void ab initio and therefore non-existent. In that petitioner found out that respondent had
light, he claimed, that his marriage to Carmencita contracted another marriage.
was not bigamous. Held: A judicial declaration is necessary to
Held: The marriage law in effect at the time the determine whether a person is legally free to
appellant contracted with his second wife, Olga contract a second marriage. Without such

19
declaration, the subsequently existing marriage is only sought for purposes of remarrying and no
sustained. such intention has been expressed.
Held: Although it is stated in the Family Code that
Atienza vs. Brillantes judicial declaration is needed for purposes of
Facts: Complainant charged respondent Judge remarrying, it does not expressly state that it is
Fransisco Brillantes with gross immoral conduct exclusive for that purpose alone. The Family Code
after having found said respondent sleeping in his provides that among the effects of the judicial
own bed, apparently cohabiting with his wife. declaration is the immediate separation of
Complainant left his wife and kids. Complainant property.
alleged that the said judge was, at that time,
married to one Zenaida Ongkiko with whom he
 Effects of Nullity
had 5 children. Respondent denied the allegation
saying that his marriage with Ongkiko was void FC Article 50: The effects provided for by paragraphs 2, 3, 4,
ab initio because it was solemnized without a and 5 of Article 43 and Article 44 shall also apply in the
marriage license. Respondent likewise argued proper cases to marriages which are declared void ab initio or
that Article 40 of the family code was not in effect annulled by final judgment under Article 40 and 45.
The final judgment in such cases shall provide for the
when his first marriage took place.
liquidation, partition and distribution of the properties of the
Held: Judicial declaration of nullity of a previous spouses and the custody and support of the common children,
marriage is needed for purposes of remarriage. and the delivery of the presumptive legitimes, unless such
The Family Code can be applied retroactively so matters had been adjudicated in previous judicial
long as vested rights will not be impaired by its proceedings.
All creditors of the spouses as well as of the absolute
application.
community or the conjugal partnership shall be notified for
the proceedings for liquidation.
Borja-Manzano vs. Sanchez In the partition, the conjugal dwelling and the log on which it
Facts: Complainant avers that she is the lawful is situated shall be adjudicated in accordance with the
wife of the late David Manzano. Her husband provisions of Articles 102 and 129.
contracted another marriage while the first one
FC Article 51: In said partition, the value of the presumptive
was still in effect, solemnized by herein legitimes of all common children, computed as of the date of
respondent judge. Respondent contends that he final judgment of the trial court, shall be delivered in cash,
did not know that the two were only legally property or sound securities, unless the parties, by mutual
separated and that all he knew was the two had agreement judicially approved, had already provided for such
been cohabiting for seven years. He cited Article matters.
The children or their guardian or the trustee of their property
34 which states that no license shall be necessary may ask for the enforcement of the judgment.
for the marriage of a man and a woman who have The delivery of the presumptive legitimes herein prescribed
lived together as husband and wife for at least 5 shall in no way prejudice the ultimate successional rights of
years. the children accruing upon the death of either or both of the
Held: The requisite of Article 34 is that there is no parents but the value of the properties already received under
the decree of annulment or absolute nullity shall be
legal impediment between the parties. The said considered as advances on their legitimes.
article is merely a ground for exemption for
marriage license. The judge knew of the FC Article 52: The judgment of annulment or of absolute
subsisting marriage as it was stated in the nullity of the marriage, the partition and distribution of the
marriage certificate and in the affidavit signed by properties of the spouses, and the delivery of the children’s
presumptive legitimes shall be recoded in the appropriate civil
the parties. registry and registries of property; otherwise, the same shall
not affect the third persons.
Domingo vs. Court of Appeals
Facts: Delia Soledad Domingo sought the judicial FC Article 53: Either of the former spouses may marry again
declaration of nullity of marriage and separation after compliance with the requirements of the immediately
of property against petitioner Roberto Domingo preceding Article; otherwise, the subsequent marriage shall
be null and void.
on the grounds that the petitioner had a valid and
existing marriage with one Emerlinda dela Paz. FC Article 54: Children conceived or born before the
The first wife sued petitioner for bigamy. judgment of annulment or absolute nullity of the marriage
Respondent claimed that the petitioner has been under Article 36 has become final and executory shall be
dependent on her and since she left to work in consicered legitimate. Children conceived or born of the
subsequent marriage under Article 53 shall likewise be
Saudi, she has amassed some P350,000 worth of legitimate.
properties which were under the possession and
administration of herein petitioner until Ninal vs. Bayadog
respondent found out about the first marriage. Facts: Petitioners request the annulment of the
Petitioner alleged that there was no cause for marriage of their father to Norma Bayadog. On
action because the marriage was void ab initio September 26, 1974, Pepito married Teodulfa.
and judicial declaration of nullity of marriage is Teodulfa died on April 24, 2985 and, on

20
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, Voidable Marriages
such cohabitation, and the marriage, was not
within the capacity of the deceased. The children  Grounds for Annulment
FC Article 45: A marriage may be annulled for any of the
do not have standing to cause action but,
following causes, existing at the time of the marriage:
because the marriage was null and void, it is 1. That the party in whose behalf it is sought to have
likewise non-existent. marriage annulled was eighteen years of age or over
but below twenty-one, and the marriage was
- For marriages of exceptional character, there should be no solemnized without the consent of the parents,
legal impediment on the part of either party. The one guardian or person having substitute parental
contracting a marriage should have legal capacity to do so. 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.
21
their marriage. He alleged that the defendant was
For physical incapacity, impotence or sexually not of sound mind at the time they contracted
transmitted disease to be a ground for annulment the
following must concur:
marriage. According to the guardian of the
1. That it exists at the time of the celebration of the defendant, Tenorio only suffered ailment after
marriage; giving birth to her 4th child.
2. That it continues to the time when the case for Held: The couple cohabited for seven years and
annulment is being tried; plaintiff admitted that there had been lucid
3. That it appears to be incurable,
4. That the other contracting party is aware of it.
intervals therefore, the marriage cannot be
- In impotence, the person cannot have sex. In sterility, the annulled. Insanity has to be a permanent
person cannot procreate. condition. If at the time of the celebration of the
- Impotence is not a ground for declaration of nullity because marriage there was nothing wrong with the
the injured spouse may accept the impotence of his or her mental health of the other spouse, marriage
spouse.
cannot be annulled.
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 Aquino vs. Delizo
moral turpitude; Facts: Petitioner requests the annulment of her
2. Concealment by the wife of the fact that at the time marriage on the ground of fraud, claiming that his
of the marriage, she was pregnant by a man other
wife was 4 months pregnant at the time that they
than her husband;
3. Concealment of sexually transmissible disease, were married and the child was that of another
regardless of its nature, existing at the time of the man. The appellate court dismissed the petition
marriage; on the grounds that it was unbelievable that the
4. Concealment of drug addiction, habitual alcoholism petitioner was unable to tell if his wife was
or homosexuality or lesbianism existing at the time pregnant.
of the marriage.
No other misrepresentation or deceit as to character, health, Held: Petition must be granted because
rank, fortune or chastity shall constitute such fraud as will pregnancy is hardly noticeable at five months and
give grounds for action for the annulment of marriage. the wife was plump.
-A marriage cannot be annulled simply on the ground that the Anaya vs. Palaroan
wife concealed the fact that she had been lewd and corrupt
and had an illegitimate child prior to the marriage.
Facts: Defendant Fernando filed an action for
annulment on grounds that his consent to the
marriage was obtained through force and
FC Article 48: In all cases of annulment or declaration of intimidation. The complaint was dismissed.
absolute nullity of marriage, the court shall order the Herein petitioner then sought the annulment of
prosecution attorney or fiscal assigned to it to appear on
behalf of the State to take steps to prevent collusion between
her marriage to Fernando on the grounds of
the parties and to take care that evidence is not fabricated or fraud, saying that her husband concealed the fact
suppressed. that he had marital relations with another woman
prior to the marriage.
RPC Article 344: The crimes of adultery and concubinage Held: Concealment of premarital relations was
shall not be prosecuted except upon a complaint filed by the
offended spouse.
not among the kinds of fraud stated in the Civil
The offended party cannot institute criminal prosecution Code (Family Code). The pertinent provision is not
without including both the guilty parties, if they are both subject to interpretation as it was also expressly
alive, nor in any case, if he shall have consented or pardoned stated that “no other misrepresentation or deceit
the offenders. shall constitute fraud.”
Force- Physical injury, violence, irresistible intimidation or
threat Ruiz vs. Atienzs
Undue influence- a person who takes improper use of his Acts: Plaintiff requests the annulment of her
power marriage on the ground that his consent was
given under duress. His wife, whom he had
- The person who can ratify is the injured party;
premarital relations, bore a child. When the child
- The injured party can file for annulment within five
years was born, the father of his wife allegedly
- If the injured party freely cohabited after the approached him with a knife and in the company
cessation of the ground for annulment (except in of a lawyer. The lawyer threatened his entrance
impotence and sexually transmitted diseases), he is to the bar.
estopped from annulling the marriage.
Held: Petition cannot be granted because the
RATIFICATION cures the defect of the marriage and it
retroacts to the day of the marriage or the day of giving petitioner had several chances of escape before
consent. the marriage and because his wife bore his own
child. Where a man marries under threat of or
Katipunan vs. Tenorio constrain from lawful prosecution for seduction or
Facts: Plaintiff Marcos Katipunan brought action bastardy, he cannot avoid marriage on the
against Rita Tenorio seeking the annulment of ground of duress. Proof of bodily harm must be

22
sufficiently shown. Threat to obstruct admission - Void marriages are deemed never to have taken
to the bar does not constitute duress. Only if the place at all but the children born of that marriage
who are called natural children by legal fiction have
threat is so grave that the person is not acting in the same status, rights and obligations as
his own freewill that a marriage becomes void. acknowledged children.
- Voidable marriages are considered valid and
RELUCTANCE vs. VITIATION produces all it civil effects until it is set aside by final
- In reluctance, the person consents to the marriage judgment of a competent court in an action for
but gives it anyway. annulment. The annulment fo the marriage dissolves
- In vitiation, there is an actual, external force the special contract but the effects of the marriage
will not be wiped out completely. Children born of
Jimenez vs. Canizares voidable marriages shall be considered legitimate.
Facts: Petitioner filed an action to annul his - To annul means to reduce to nothing. Null and void
marriage to respondent on the ground that the means something does not exist from the beginning.
orifice of the vagina of his wife was too small to
allow penetration. For that reason, petitioner has  Marriage when one spouse is absent
left the conjugal abode. The defendant failed to
CC Article 83: A marriage subsequently contracted by any
comply with the order of medical examination person during the lifetime of the first spouse of such person
and so, the lower court granted the annulment. with any person other than such first spouse shall be illegal
Held: Presumption will always be in favor of and void from its performance unless:
potency. It is understandable that a woman would 1. The first marriage was annulled or dissolved;
refuse to subject herself to physical examination. 2. The first spouse had been absent for seven
consecutive years at the time of the second marriage
The testimony of one party is not sufficient to without the spouse present having news of the
annul the marriage because to do so will open the absentee being alive, or if the absentee though he
court to cases of collusion between the spouses has been absent for less than seven years, is
for the annulment of their marriage. 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
Sarao vs. Guevara presumed dead according to articles 390 and 391.
Facts: On the day of the marriage of the plaintiff The marriage so contracted shall be valid in any of
and the defendant, the marriage was not the three cases until declared null and void by a
consummated because the defendant complained competent court.
of pains. The defendant was operated on and her
CC Article 85: A marriage may be annulled for any of the
uterus and ovaries were surgically removed. The following causes, existing at the time of the marriage:
removal rendered the defendant incapable of (2) In a subsequent marriage under article 83, number 2,
procreation as such, plaintiff wants his marriage that the former husband or wife is believed to be dead was in
with the respondent annulled. fact living and the marriage with such former husband or wife
Held: Impotency is not inability to procreate but was then still in force.
inability to copulate. Inability to copulate cannot
Jones vs. Hortiguela
be a ground for annulment and a temporary or
Facts: Petitioner requests that she be declared
occasional incapacity cannot be used as a ground
the sole heir of the intestate estate of Marciana
to nullify a marriage.
Escano, her mother. Prior to the motion, at the
time when petitioner was still a minor,
People vs. Santiago
respondent was awarded a fixed rate of P10,000
for the administration of the estate of the
Suntay vs. Cojuangc-Suntay
deceased. Petitioner alleged that when her
Facts: Petitioner opposed the petition filed by
mother remarried in May 1927, the judicial
respondent for the issuance of letters of
declaration of the absence of her father was not
administration (of the estate of her paternal
yet effective. As such, the marriage of the
grandmother) in her favor on the grounds that he
deceased and the respondent was null and void.
was the surviving spouse of the deceased, and
Held: Petition denied. Absence of one spouse
that the petitioner and the deceased have been
shall be counted from the last day of
alienated from the family of the respondent. He
communication or from the reception of the last
likewise alleged that respondent was not a
news regarding the absent spouse. In this case,
legitimate child because the marriage of her
the first spouse was absent for 9 years.
parents, Emilio Aguinaldo Suntan (son of
petitioner) and Isabenl Cojuangco-Suntay was  Effects of pending action or decree
declared null and void because Emilio was found FC Article 49: During the pendency of the action and in the
to be schizophrenic at the time of his marriage. absence of adequate provisions in a written agreement
Held: A child born out of a voidable marriage between the spouses, the Court shall provide for the support
before the decree of annulment is considered a of the spouses and the custody and support of their common
legitimate child. children. The Court shall give paramount consideration to the
moral and material welfare of said children and their choice of
parent with whom they wish to remain as provided for in Title
23
IX. It shall also provide for appropriate visitation rights for the filed against the motion for declaration of nullity
other parent. filed by private respondent. Private respondent
FC Article 50: The effects provided for by paragraphs (2),
alleged that the marriage of the Petitioner to her
(3), (4), (5) of the Article 43 and by Article 44 shall also apply husband must be declared null and void on the
in the proper cases to marriages which are declared void ab ground of bigamy. At the time of the marriage of
initio or annulled by final judgment under Articles 40 and 45. petitioner and her deceased husband, private
The final judgment in such cases shall provide for the respondent was still also married with him.
liquidation, partition and distribution of the properties of the
spouses, the custody and support of the common children and
Petitioner contended that the Regional Trial Court
the delivery of their presumptive legitimes unless such had no jurisdiction because both the petitioner
matters had been adjudicated in previous judicial and the deceased were Muslims.
proceedings. Held: Under the Judiciary Reorganization Act of
All creditors of the spouses as well as of the absolute 1980, Regional Trial Courts have jurisdiction over
community or the conjugal partnership shall be notified of the
all actions involving the contract of marriage and
proceedings for liquidation.
In the partition, the conjugal dwelling and the lot on which it marital relations. In this case, both the petitioner
is situated shall be adjudicated in accordance with Articles and the deceased were married through a civil
102 and 129. wedding and whether or not they were likewise
married in a Muslim wedding, shari’a courts are
FC Article 51: In said partition, the value of the presumptive
still not vested with original and exclusive
legitimes of all common children, computed as of the date of
the final judgment of the trial court shall be delivered in cash, jurisdiction over marriages married under civil
property or sound securities, unless the parties, by mutual and Muslim laws.
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 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.

 Jurisdiction

Estrellita J. Tamano vs. Hon. Rodolfo Ortiz


Facts: Petitioner assailed the decision of a lower
court which rejected the motion to dismiss she

24
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
LEGAL SEPARATION sexual practices which may be offensive to the
feelings or sense of decency of either husband
 Grounds or wife. There must also be an element of
coercion exercised by the defendant to make
FC Article 55: A petition for legal separation may be filed on the plaintiff submit to the act.
any of the following grounds:
1. Repeated physical violence or grossly abusive - There is abandonment when one spouse
conduct directed against the petitioner, a common leaves the other without intent to return.
child, or a child of the petitioner;
2. Physical violence or moral pressure to compel the - Attempt on the life must imply that there is
petitioner to change religious or political affiliation; intent to kill
3. Attempt of respondent to corrupt or induce
petitioner, a common child, or a child of the - Under Article 101 of the Family Code, “the
petitioner to engage in prostitution, or connivance in spouse who has left the conjugal dwelling for
such corruption or inducement; a period of three months or has failed within
4. Final judgment sentencing the respondent to the same period to give any information as to
imprisonment of more than six years, even if his or her whereabouts, shall be prima facie
pardoned; presumed to have no intention of returning to
5. Drug addiction or habitual alcoholism of the the conjugal dwelling.”
respondent;
6. Lesbianism or homosexuality of the respondent; CC Article 97: A petition for legal separation may be filed:
7. Contracting of respondent of a subsequent bigamous 1. For adultery on the part of the wife and for
marriage, whether in the Philippines or abroad; concubinage on the part of the husband as defined in
8. Sexual infidelity or perversion; the Penal Code; or
9. Attempt of the respondent on the life of the 2. An attempt by one spouse against the life of the
petitioner; other.
10. Abandonment of petitioner by respondent without
justifiable cause for more than one year. Adultery- The act of a wife having sexual intercourse with any
For purposes of this Article, the term “child” shall include other man not her husband will constitute adultery.
a child by nature or by adoption.
Concubinage- The act of the husband having sexual
Violence- must be of a serious degree but does not have intercourse with his wife shall constitute concubinage if:
to amount to an attempt against the life of the defendant 1. He maintains a mistress in the conjugal dwelling;
- The violence must be repeated, to the extent 2. there is sexual intercourse with the other woman
that common life with defendant becomes under scandalous circumstances;
extremely difficult for the plaintiff. 3. the husband cohabits with another woman other
than his wife in any other place.
- Physical violence or moral pressure to compel
the plaintiff to change religious or political Cohabit- to dwell or live together in the same house as
affiliation need not be repeated. There must husband and wife.
be some element of coercion present, whether
physical or moral. Legal Separation vs. Separation of Property
- In legal separation, there is a suspension of
- The guilt for the corruption or inducement to the common marital life, both as to person
prostitution must be on only one spouse. and property.
- In separation of property, only the property
- The crime for which a spouse may have been relation is affected and the spouses may
convicted may have no bearing at all on the continue living together.
relationship of the husband and wife. - Separation of property can be effected by
agreement of the spouses, subject to judicial
- If drug addiction, habitual alcoholism, approval; but a decree of legal separation
lesbianism or homosexuality existed at the cannot be rendered upon agreement of the
time of marriage but were unknown to the parties.
other party, they would constitute a ground
25
Gandionco vs. Penaranda
Legal Separation vs. Separation of Spouses Facts: Respondent judge Hon. Senen C.
- Legal separation can be effected only by
decree of the court; but the spouses may be
Penaranda ordered petitioner to pay for the
separated in fact without any judgment of the support of private respondent Teresita Gandionco
court. and his child. Private respondent filed a complaint
for legal separation against petitioner on the
People vs. Zapata and Bondoc ground of concubinage. Private respondent
Facts: Petitioner husband Andres Bondoc filed a likewise requested for support and payment of
complaint of adultery against his wife, Guadalupe damages. Petitioner Froilan Gandionco claims
Zapata and her paramour, Dalmacio Bondoc. The that the civil action for legal separation and the
two respondents cohabited and had repeated application for support should be suspended
sexual intercourse from 1946 to March 1947. The because of the pending criminal case for
defendant wife entered a plea of guilty and was concubinage filed against him. His contention was
sentenced to suffer four months in prison. based on Article 111 Section 3 of the 1985 Rules
Respondent Dalmacio Bondoc on the other hand, on Criminal Procedure which states that a
claimed that he did not know that Guadalupe pending civil action instituted for civil liabilities
Zapata was married. On September 1948, should be suspended until the criminal action
petitioner once again filed a complaint of adultery arising from the same offense is over.
for acts committed from March 1947 to Held: The court held that a civil action for legal
September 1948. Defendant then filed a motion separation may proceed ahead of or
to quash on the ground that they will be twice put simultaneously with a criminal action for
in jeopardy. The motion was granted by the lower concubinage because the said civil action is not
court on the ground that adulterous acts must be one to “enforce civil liability” but rather to obtain
considered as a continuing offense. the right to live separately. Petitioner’s argument
Held: The court held that adultery as a crime of that conviction for concubinage must be secured
result and not of tendency, is consummated at before an action on legal separation can prosper
the moment of carnal union. Continuous crimes lacks merit because unlike in criminal procedures,
exist if there is a plurality of acts performed proof of concubinage in a civil procedure is based
separately during a period of rime, unity of penal on preponderance of evidence and not proof
provisions violated and unity of criminal intent or beyond reasonable doubt.
purpose. In short, continuous crimes are aimed at
committing a single offense. In adultery, each US vs. McMann
instance of sexual intercourse is a separate Facts: Defendant Robert McMann and one McKay
crime. Also, the court held that there is no legal were employed at the Quartermaster’s
provision which bars the filing of as many Department of the Army. While at the place of a
complaints for adultery as there were adulterous certain Moro, Amay Pindolonan asking for
acts committed. matches to light a cigarette, McMann suddenly
fired at McKay. McKay was struck in the back of
Munoz vs. Del Barrio the head and killed instantly. Amay Pindolonan
Facts: Felicidad Munoz and Jose del Barrio tried to run but McMann also shot him. Defendant
quarreled frequently and on those occasions, claimed that he had no intention to shoot McKay
petitioner complained that the husband as they were good friends and that the shooting
maltreated her. In 1947, they separated but on was merely an accident. The defendant also
December 1950 and September 1951, the claimed that he was drunk at the time of the
husband once again maltreated petitioner, incident.
prompting her to institute an action for legal Held: To convict a man of the offense being a
separation on the ground of attempt to life. common drunkard it is necessary to show that he
Petitioner requested that she be given custody of is a habitual drunkard to the point that he has a
her children, that whatever will remain of the fixed habit of drunkenness.
conjugal property be divided, and the conjugal
partnership be dissolved. Lapus Sy vs. Sy Uy
Held: The Supreme Court affirmed the decision of Facts:A case for legal separation was filed by
the lower court. It held that the alleged Carmel Lapuz Sy against Eufemio Sy Uy on the
maltreatment cannot constitute an attempt to life ground of abandonment. She prayed for the
because such has to be characterized by intent to issuance of a decree of legal separation and that
kill which was not sufficiently proven especially her partner be deprived of their conjugal
since the respondent only used his bare hands. partnership profits. Petitioner also claimed that
Intent to kill, the court said, must be established respondent was cohabiting with a certain Go
with clear and convincing evidence. Hiok. Respondent then filed a counter-dlaim for
the declaration of nullity ab initio of his marriage

26
with petitioner on the ground that he had a 6. Where the action is barred by prescription.
subsisting marriage with Go Hiok. During the
- Condonation is the forgiveness of a marital
course of the trial, petitioner died and her father, offense constituting a ground for legal
Macario Lapuz, moved to substitute. Eufemio separation, and bars the right to legal
moved to dismiss the substitution because the separation. It may be expressed, in the sense
death of the petitioner should, as he alleged, that it is in writing or implied as inferred from
abate the action for legal separation. the action of the injured party.
- Where a party has clear and convincing
Held: The death of one of the parties to the action knowledge of the offense and then
abates the action itself because action for legal deliberately and willfully cohabits or has
separation is purely personal hence, when one of sexual intercourse with the offender, he or she
the parties is dead, there is no longer a need for thereby impliedly pardoned the offender’s act.
the decree. Conjugal property are likewise not - Consent is agreement or conformity in
advance of the commission of the act which
assignable or transmissible therefore, it doesn
would be a ground for legal separation.
not warrant a continuation of the action through - Connivance implies agreement, express or
substitution. implied, by both spouses.
- A husband who actively connives in the
Dela Cruz vs. Dela Cruz adultery of his wife by procuring her to be
lured into the commission of the act will very
Facts: Estrella dela Cruz filed a complaint against
generally be presumed to have consented to
her husband alleging that the latter has the adultery and will be denied legal
abandoned their family and has not slept or separation on that ground.
visited the conjugal dwelling since 1955; that - A husband must not actively participate in
defendant was mismanaging their conjugal preparations for the suspected misconduct by
providing opportunity for the wrongdoing.
partnership properties and as such has abused
- Collusion is the agreement between husband
his powers of administration and that defendant and wife for one of them to commit or to
had a concubine named Nenita Hernandez. appear to commit or presented in court as
Petitioner then asked for the separation of their having committed, a matrimonial offense, or
property, a monthly support of P2,500 during the to suppress evidence of a valid defense, for
pendency of the action and payment of P20,000 the purpose of enabling the other to obtain
legal separation.
in attorney’s fees.
Defendant contended that he did not abandon his People vs. Sensano and Ramos
family and has not failed to give them a monthly Facts: After the birth of the first child of
allowance of around P1,500. He stated that he is complainant Mariano Ventura and respondent
merely separated from his wife because he Ursula Sensano, complainant left for Cagayan de
cannot concentrate on their business but he Oro. Complainant did not write, call or send
never failed to visit his family. Petitioner allegedly anything in form of support for three years.
played mahjong often while respondent Respondent then cohabited with Marcelo Ramos
consistently applied his industry so that their with the belief that her husband will not return
business will grow. again. Complainant returned and filed a
Held: The court held that abandonment must be complaint of adultery against respondents. The
real abandonment and not mere separation. It court held in favor of the plaintiff but opined that
must not only be physical estrangement. the plaintiff treated his family with cruelty in
“Abandon” in ordinary sense means to forsake abandoning them. After sentence, accused wife
completely with intent never again to resume or left her paramour and begged for the forgiveness
claim one’s rights or interests. There must of plaintiff but she was turned away. She then
therefore be absolute cessation of marital went back to Marcelo Ramos. Plaintiff then left for
relations, duties and rights with the intention of Hawaii and upon his return after seven years, he
perpetual separation. once again filed a charge of adultery.
Held: The court held that under Article 34 of the
 Defenses
RPC, the offended party cannot file a complaint of
FC Article 56: The petition for legal separation shall be adultery if he consented to it. The court was of
denied on any of the following grounds: the belief that complainants action of turning
1. Where the aggrieved party has condoned the offense away the defendant constituted a consent and as
or act complained of;
such he estopped from filing a case.
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 -Constructive Abandonment- The injured party
commission of the offense or act constituting the leaves the wife or the spouse refuses the re-entry
ground for legal separation; of the offending spouse.
4. Where both parties have given ground for legal
separation;
5. Where there is collusion between the parties to De Ocampo vs. Florenciano
obtain the decree of legal separation; or
27
Facts: Petitioner Jose de Ocampo filed a relations with one Carlos Feld at the time when
complaint of adultery against his wife but was petitioner was interred by the Japanese invaders.
denied by the Court of First Instance. Through He discovered the said relation when in 1945, his
several testimonies, it was found that in March wife begot a child. A document was executed for
1951, defendant maintained illicit relations with the liquidation of their conjugal partnership
one Jose Arcalas. After plaintiff found out, property and as such, complainant wants
defendant was sent to Manila to study wherein confirmation of liquidation, custody of children
she had several illicit relations with other men. and the disqualification of defendant from
On June 1955, plaintiff found his wife in the act of succession. In the cross examination of petitioner
sexual intercourse with one Nelson Orzame. it was found that he was also cohabiting with
Plaintiff then and there told his wife of his another woman and had a child with that woman.
intention of filing for legal separation. The Court Held: The court held that the misconduct of
of Appeals held that the time for filing a charge of petitioner barred him from obtaining legal
adultery on the first case had prescribed. Also, on separation and in this case, the misconduct and
the second case, CA held that they cannot render failure of the wife to institute action against
a decree of separation on the ground of petitioner’s misconduct constituted circumstantial
confession of judgment. evidence of collusion.
Held: The court held that the “confession of
judgment”--which happens when a defendant Willan vs. Willan
confesses in court the right of plaintiff to his Facts: Husband appeals the decision by court to
demand, did not occur because such confession deny his petition for the dissolution of his
happened outside of court. Had there been a marriage on the ground that he condoned the
confession of judgment, the decree should still be cruelty of his wife. Petitioner alleged that his wife
granted since there was a preponderance of repeatedly assaulted him, was habitually
evidence as provided by the plaintiff. If the court offensive and frequently demanded to have
will not allow separation despite of the evidence, sexual intercourse with him. Respondent
any defendant who opposes separation will allegedly resorted to violence and pestering,
merely confess in court. forcing complainant to agree to sexual
intercourse. Solicitors have allegedly written the
Sargent vs. Sargent wife regarding the matter but to no avail. The
Facts: Petitioner Donald Sargent charged his wife, night before leaving the conjugal dwelling,
respondent Frances L. Sargent with adultery petitioner and respondent once again had sexual
alleging that defendant wife had illicit relations intercourse.
with Charles Simmons, a black man and the Held: The court held in favor of the defendant as
couple’s driver. Petitioner alleged that defendant they found it impossible that a man may have
wife contracted gonorrhea from the illicit sexual relations and not condone the said
relations. Petitioner then hired detectives to relations. Unwillingness, the court said, is not the
prove the said illicit relations, and said detectives same as involuntariness.
testified along with other servants, all of whom
were employed by petitioner. The detectives in Bugayong vs. Ginez
one instance shut the door of the room of Facts: After their marriage, petitioner Benjamin
respondent wife while respondent Charles Bugayong and Defendant Leonila Ginez agreed
Simmons was inside to make it appear as though that defendant would stay with petitioner’s
they were having illicit relations. sisters while petitioner worked in the United
Held: The court held in favor of the defendant. States as a serviceman. For some time,
The detectives surveilled Mrs. Sargent for over defendant lived with petitioner’s sisters but she
seven weeks but no solid evidence of the alleged eventually left to live with her mother and then
adultery was procured. Mr. Sargent also appeared moved to Dagupan to study. Petitioner received
to have connived with the detectives to show that letters from his sister-in-law that defendant was
his wife was indeed having sexual relations. having adulterous relations and petitioner alleged
Where the husband employs detectives to get that defendant herself wrote him that she was
evidence of his wife’s adultery, but the adultery is kissed by another man. When petitioner returned,
brought about by the detective himself, legal they lived together for two nights and one day.
separation can be denied on the ground of On the second day, when petitioner asked the
connivance. defendant if there was any truth to the
allegations of adultery, defendant did not answer
Brown vs. Yambao but instead, left. The petition was dismissed by
Facts: William H. Brown filed an action to obtain the lower court on the ground that petitioner had
legal separation against his wife, Juanita Yambao. condoned the said illicit relations of his wife.
He found out that his wife has adulterous

28
Held: The petitioner, having slept with the plaintiff once again heard rumors of the alleged
defendant for two nights, has condoned the misconduct of her husband. It was only upon
adulterous relations. Any cohabitation with the hearing reports that Lily Ann Alcala had given
guilty party, after the commission of the offense, birth did plaintiff sent Mrs. Felicisima Antioquo to
and with knowledge or belief is considered investigate. The latter confirmed on October 1963
conclusive evidence of condonation. that a child had been born by Alcala, bearing the
surname of defendant. Plaintiff, through her
Matubis vs. Praxedes father and sister-in-law, tried to convince the
Facts: Soccoro Matubis filed a complaint for legal defendant to come back but defendant told her
separation alleging that Zoilo Praxedes had that he can no longer leave Lily Ann. The lower
abandoned her and was guilty of concubinage. court held that the word “cognizant” does not
According to her testimony, barely a year after connote the date when proof was sufficient
their marriage, plaintiff and defendant agreed to because the time indicated by the code would
live separately after failing to agree on where have been rendered meaningless as all one would
they should live as husband and wife. They need to do is fix the date.
entered into an agreement which stipulated the Held: The court held that plaintiff had reason not
conditions and provisions for their de facto to file an action because she had hoped that
separation. In 1955, defendant began cohabiting defendant would return. The only time that
with another woman and had another child by defendant therefore that plaintiff became
her. cognizant of the alleged infidelity of the
Held: The time for instituting action has defendant was when the husband stated that he
prescribed. The stipulations in the agreement was living with, and no longer be leaving, Lily Ann
which stated that both spouses relinquished their Alcala.
rights as husband and wife, and was free to get
any mate and live with him or her as husband Somosa Ramos vs. Vamenta Jr. and
and wife, constituted consent and condonation. Clemente Ramos
Facts: Petitioner Lucy Somosa Ramos filed a civil
 When to File/ Try Actions case for legal separation against Clemente
FC Article 57: An action for legal separation shall be filed
Ramos on the ground of concubinage and
within five years from the time of the occurrence of the attempt to life. She also sought the issuance of a
cause. writ of preliminary mandatory injunction for the
return of her paraphernal and exclusive property
FC Article 58: An action for legal separation shall in no case then in the administration of the defendant. An
be tried before six months shall have elapsed since the filing
opposition to the hearing of the motion was filed
of the petition.
- If the ground for legal separation is violence against women, based on Article 103 of the Civil Code which
there should be no effort to compromise. states that an action for legal separation shall not
be tried before six months had elapsed since the
FC Article 59: No legal separation may be decreed unless the filing of the petition. Respondent judge held in
Court has taken steps towards the reconciliation of the
favor of the defendant who claimed that any
spouses and is fully satisfied, despite such effort, that
reconciliation is highly improbable. prospect for reconciliation will be lost if the
motion was tried.
FC Article 60: No decree of legal separation shall be based Held: The court held that Art. 103 of the Civil
upon a stipulation of facts or a confession of judgment. In any Code is not an absolute bar to the hearing of a
case, the Court shall order the prosecuting attorney or fiscal
motion for preliminary injunction prior to the
assigned to take steps to prevent collusion between the
parties and to take care that the evidence is not fabricated or expiration of the six-month period. Art. 104 states
suppressed. that the court may appoint another person to
manage the property should it deem it proper.
Contreras vs. Macaraig The six-month bar should not have the effect of
Facts: Elena Contreras appealed the decision of overriding the provisions such as determination
the Juvenile and Domestic Relations court of of the custody of the children, alimony and
Manila which dismissed her complaint of adultery support pendent lite.
against Cesar J. Macaraig on the ground that the
time for filing an action has prescribed. In 1961,  Effects of Filing a Petition
defendant met Lily Ann Alacala and had started
FC Article 61: After the filing of the petition for legal
to come home late and be away often. In separation, the spouses shall be entitled to live separately
September 1962, Avelino Lubos, the family from each other.
driver, told Elena that her husband was living The court, in the absence of a written agreement
with Alcala. When defendant came home in between the spouses, shall designate either of them or a third
October, plaintiff did not verify the report so that person to administer the absolute community or conjugal
partnership property. The administrator appointed by the
defendant will not get angry. In April 1963,

29
court shall have the same powers and duties as those of of domicile. Also, petitioner’s claim that he had a
guardian under the Rules of Court. right to alienate responded lacked merit. Court
FC Article 62: During the pendency of the action for legal
held that when the harmonious relationship
separation, the provisions of Article 49 shall likewise apply to between husband and wife ceases, it is but right
the support of the spouse and the custody and support of the that the husband’s powers of administration be
common children. curtailed in light of the pendency of the action for
separation.
- The spouses can live separately from each
other;
- The administration of the common property, Reyes vs. Ines-Luciano and Reyes
whether in absolute community or conjugal Facts: Celia Ilustre Reyes filed a complaint for
partnership gains, shall be given by the court legals separation against her husband, Manuel J.
to either of the spouses or to a third person, C. Reyes on the ground that the latter had
as is best for the interest of the community;
attempted to kill the plaintiff. Plaintiff and herein
- The court shall provide for the support
between the spouses and the custody and respondent asked for support pendent elite for
support of the common children; her and her three children which was granted by
- When the consent of one spouse to any the lower court and respondent judge awarded
transaction of the other is required by law, plaintiff with P5,000 in monthly support.
judicial authorization shall be necessary unless
Petitioner opposed the ruling of the lower court
such spouse voluntarily gives consent.
on the ground that his wife committed adultery.
Alimony “pendent elite”- During the pendency of the suit for Held: The court held that while adultery is a good
legal separation, it is the duty of the court to grant alimony to defense, it should be established by competent
the wife and to make provisions for the support of the evidence. In the case at hand, petitioner did not
children not in the possession of the father. present evidence to that effect. Also, the plaintiff-
- An action for legal separation is based on the
assumption that there is a valid, subsisting respondent was not asking for mere support but
marriage thus, if defendant contends that the for her share of the conjugal property or alimony.
marriage is not valid, alimony “pendente elite” Complainant has also proven the grounds of legal
shal be denied. separation through competent evidence.
Property relations of unmarried couples is that of
Custody of the children may be determined by:
1. Agreement of the spouses which shall not be
co-ownership based on actual contribution and
disturbed unless prejudicial to the children; not the presumed half and half as it is in conjugal
2. Court order which shall be based on the sound partnership.
discretion of the judge, taking into account the
welfare of the children. Pendente Lite: Pending Litigation

Dela Vina vs. Villa Real  Effects of Decree


Facts: Respondent Narcisa Geopano filed a
complaint against Diego delaVina alleging that he Banez vs. Banez
committed acts of adultery with one Ana Calog. Facts: On Sept. 23, 1996, Aida P. Banez was
Respondent likewise alleged that she had been legally separated from Gabriel Banez on the
rejected from their conjugal home and had no ground of the latter’s sexual infidelity. Included in
means of support. She requested for the decree the decision is the dissolution of their conjugal
of divorce, partition of conjugal property and property relations, division of their net conjugal
alimony. After filing the complaint, respondent assets, forfeiture of respondent’s share in favor of
also found that petitioner was trying to alienate the common children and the urgent ex parte
the conjugal property to the prejudice of the motion to modify the decision and oblige
plaintiff. Thus, plaintiff asked that a preliminary petitioner to pay as attorney’s fees 5% of the
injunction be issued against defendant. The lower total value of respondent’s ideal share. On the
court ruled in favor of plaintiff-respondent as motion for execution, respondent Gabriel
such, herein petitioner contended that the court opposed. Trial court denied Aida’s motion for
had no jurisdiction over the case because the moral and exemplary damages and litigation fees
domicile residence of the wife was not Iloilo and but granted the motion for execution. Petitioner
that as administrator of the conjugal property, he was thereby ordered to post a P1.5 M bond which
had a right to alienate his wife. she did. The Court of Appeals set aside the writ
Held: The court held that a wife may acquire for execution.
another and separate domicile from that of her Held: The court denied the motion of execution n
husband when the theoretical unity of husband the ground that execution pending appeal is
and wife is dissolved or if husband has given allowed when superior circumstances demanding
cause for divorce or where there is separation of urgency outweigh the damages that may result
the parties by agreement or a permanent from the issuance of the writ. Otherwise, the writ
separation due to desertion or cruel treatment or will be a tool for oppression and inequity. Such
where there has been a forfeiture of the benefit urgency is not manifested by the case at bar.
30
Legal separation is not one where multiple La Rue vs. La Rue
appeals are allowed. The issues involved in the Facts: Upon the divorce of Walter F. La Rue from
case are of the same marital relationship Betty J. La Rue in March 1980, the trial court held
between the parties. In this case, dissolution is a that the wife, having been a homemaker, was not
mere incident of legal separation. As such, no entitled to her claim to the equitable distribution
separate action may be taken. of marital assets. Petitioner Betty La Rue worked
in the early part of their marriage until Mr. La
FC Article 63: The decree of legal separation shall have the Rue, herein respondent, convinced her to stop
following effects: working and become a homemaker. The couple
1. The spouses shall be entitled to live separately from
each other, but the marriage bonds shall not be
had two children. The divorce only awarded Mrs.
severed; La Rue with alimony and allowance for
2. The absolute community or the conjugal partnership healthcare. Their home which was once under the
shall be dissolved and liquidated but the offending name of Mrs. La Rue was transferred under Mr. La
spouse shall have no right to any share of the net Rue prior to the decree of divorce.
profits earned by the absolute community or the
Held: Where the spouse has foregone career
conjugal partnership which shall be forfeited in
accordance with the provisions of Article 43(2); opportunities at the behest of the primary wage
3. The custody of the minor children shall be awarded earning spouse, and throughout the long
to the innocent spouse, subject to the provisions of marriage has remained in the home to rear
Article 213 of this code; and children and provide suitable environment for the
4. The offending spouse shall be disqualified from
family, the homemaker spouse shall have an
inheriting from the innocent spouse by intestate
succession. Moreover, provisions in favor of the equitable interest in real property acquired by the
offending spouse made in the will of the innocent wage earning spouse during their marriage.
spouse shall be revoked by operation of law.
Doctrine of Equitable Distribution
- The obligation of mutual fidelity remains. The only - Permits a spouse who has made material economic
sanction in case of adultery or concubinage shall be contributions toward the acquisition of property
penal. which is titled in the name or under the control of
- After the decree, the obligation of mutual support the other spouse, to claim an equitable interest in
between the spouses ceases; however the court may such property in proceeding to seek a divorce.
order that the guilty spouse shall give support to the - The concept of homemaker services is not to be
innocent spouse. measured by some mechanical formula but instead
- A parent shall still have a right to access his child rests on showing that the homemaker has
under court regulation, unless he forfeited the contributed to the economic well-being of the family
privilege or if it would injuriously affect the child. unit.
- The guilty spouse shall not be entitled to the
legitime. Custody
- A decree of separation which does not include an
order of division of properties is not an incomplete • Determining the Best Interest of the Child:
judgment. The rules on dissolution and liquidation of
property regime shall be applied when the decree of 1. Gender and Tender Years Presumption: When
legal separation becomes final. dealing with children of tender years, the natural
mother is presumed in absence of evidence to the
FC Article 64: After the finality of the decree of legal contrary, to be the proper person vested with
separation, the innocent spouse may revoke the donations custody of such children.
made by him or by her in favor of the offending spouse, as
well as the designation of the latter as beneficiary in any PD 603 Article XVII: …In case of separation of his parents,
insurance policy, even if such designation be stipulated as no child under five years of age shall be separated from his
irrevocable. The revocation of the donations shall be recorded mother unless the court finds compelling reasons to do so.
in the registries of property in the places where the properties
are located. Alienations, liens and encumbrances registered in Ex Parte Devine
good faith before the recording of the complaint for
Facts: Petitioner Christopher P. Devine and
revocation in the registries of property shall be respected. The
revocation of or change in the designation of the insurance respondent Alice Beth Clark Devine were
beneficiary shall take effect upon written notification thereof separated on March 29, 1979. The couple had
to the insured. two children considered to be of tender years
The action to revoke the donation under this Article must be based on the Tender Years Presumption. Both
brought within five years from the time the decree of legal
Mrs. Devine and Mr. Devine were found to be fit
separation has become final.
to care for the children but on account of the
- The donations subsist if action is not taken before Tender Years Presumption, custody was awarded
the death of the spouse. to respondent. Petitioner contended that the
Tender Years Presumption deprived him of the
PD 612 (Insurance Code) Sec. 11: The insured shall have constitutionally mandated right of equal
the right to change the beneficiary he designated in the
policy, unless he has expressly waived this right in said policy. protection of the law.
Held: Petition is granted. Case remanded to the
Dissolution and Liquidation of ACP or CPG lower court.

31
In common law, the Tender Years Presumption Guillerma Layug. Teresita claimed that she did
was in favor of the husband who was the master not immediately follow her children because she
of the family. While Alabama recognize the was afraid that Reynaldo has filed a case of
factual presumption that mothers are inherently bigamy against her. In December 1992,
suitable to care for and nurture young children, respondent filed a writ for habeas corpus. The
the presumption is weakening in other states. trial court dismissed the petition but the decision
With this presumption, it becomes the father’s was reversed by the CA.
burden to prove that the mother is unfit to care Held: The presumption that children under seven
for their common child. The constitutionality of years of age can best be taken care of by the
this presumption, the court held, may not be mother is rebuttable. The task of appointing
lawfully mandated solely on the basis of sex. custody cannot be solely based on the child alone
but several other considerations. The seven year
Cervantes vs. Fajardo age is not based on the date petition was filed
Fact: This is a petition for a writ of habeas corpus but the date decision is rendered. As such, the
of minor Angeline Anne C. Cervantes filed by preference of the children should be taken into
Nelson L. Cervantes and Zenaida C. Cervantes consideration in deciding the matter of their
against Gina Carreon Fajardo and Conrado custody.
Fajardo. After the birth of Angeline Anne,
respondents offered the child for adoption to Celis vs. Cafuir
Zenaida, Gina’s sister, and Nelson, her brother-in- Facts: Respondents Soledad Cafuir and her
law. The petitioners have taken care of the child husband Jose Simeon appealed the decision of
since she was two weeks old and an Affidavit of the lower court granting the writ of habeas
Consent to Adoption was executed. On Aug. 20, corpus to Ileana Celis and ordering the delivery of
1987, the petition for adoption was granted and the child to petitioner. Petitioner, after giving
the child’s surname was changed to Fajardo. She birth to Joel (John) Cafuir turned over custody to
was, from that decision, freed from parental Soledad, fearing the extreme displeasure and
authority and legal obligation of her natural anger of her father. Soledad provided for all the
parents. On April 1987, petitioners received a needs and comforts of the child, including a nurse
letter from respondents demanding P150,000 for hired to care for the child. After marrying Agustin
the return of their adopted child who was taken C. Rivera, petitioner filed the suit for habeas
by respondent Gina Carreon. corpus. Respondents argued that petitioner
Held: The court reaffirmed the decision of the executed documents to the effect that she has
lower court. The provision that no mother shall be renounced the custody of her children. The first
separated from a child under five years of age stated that the child was “entrusted” to
will not apply where the court finds compelling respondents while the second stated that Soledad
reasons to rule otherwise. Because the adoptive is the “real guardian” of the child and no one may
parents are legally married and the respondent’s adopt the child except for Soledad.
relationship with her husband is that of common Held: The document cannot be taken to imply
law and that respondent has given birth to a child that petitioner has renounced the custody of her
by another man, the court held that it will be in child. The child was, as the first document stated,
the child’s best interest to stay with her adoptive merely “entrusted” and such arrangement was
parents. not permanent. Having been emancipated from
her father, Ileana was in the position to care for
Espiritu v. Court of Appeals her child and as such, has a right to do so.
Facts: Petitioner Reynaldo Espiritu and
respondent Teresita Masauding met in 1976. In FC Article 210: Parental authority and responsibility may not
be renounced or transferred except in the cases authorized by
1977, respondent left for Los Angeles, California law.
to work as a nurse. In 1984, National Steel
Corporation sent petitioner to Pittsburgh
Pennsylvania as a liason officer and from then on, 2. Parental unfitness:
petitioner and respondent maintained a common
law relationship. On August 16, 1986, their first Feldman vs. Feldman
child was born. The couple was married in Facts: In a habeas corpus proceeding, the lower
October 1987 in the Philippines. After that, they court transferred from the mother to the
had another child who was born in 1988. While in unmarried father the custody of their two infant
the US, respondent left her children with children who previously had continuously resided
Petitioner to continue working in California while with the mother. The couple was divorced in July
the latter was in Pittsburgh. Petitioner returned to 1970 on the ground of cruel and inhuman
the Philippines but upon being sent to Pittsburgh treatment on the part of the husband who was
decided to leave his children with his sister involved in extramarital relations prior to the

32
dissolution of their marriage. The wife on the immediately construed as abandonment. His
other hand, had a relationship to another man effort to keep custody of the child is a sign that
subsequent to the decree of divorce. Petitioner he is willing to rectify his mistakes.
Philip Feldman alleged that he observed a copy of
Screw Magazine (which possesses dubious • Role of the Child’s Preference
redeeming social values) and that he found FC Article 49: …The court shall give paramount consideration
letters (some with explicit photographs attached) to the moral and material welfare of said children and their
which were responses to an advertisement for choice of the parent with whom they wish to remain as
another couples or groups for “fun and games,” provided for in Title IX.
in the house of respondent Mady Feldman.
FC Article 213: In case of separation of the parents, parental
Respondent wife alleged that the advertisement
authority shall be exercised by the parent designated by the
was done for fun and that the evidence showed court. The court shall take into account all relevant
that her private sex life in no way affected the considerations, especially the choice of the child over seven
children and that the children were provided for. years of age, unless the parent is unfit.
Held: Court held that amorality, immorality, No child shall be separated from the mother unless the court
finds compelling reasons to order otherwise.
sexual deviation and aberrant sexual practices do
not, on its face, constitute unfitness for custody. David v. CA
The trial court’s ruling that parents who Facts: Petitioner Daisie T. David worked as
participate in a culture of “free sex” were unfit to secretary of private respondent Ramon R. Villar
care for children was a dangerous conclusion. who was then married and had a family. They had
Also, the right of women to engage in private intimate relations which produced three children,
sexual activities which do not affect her Christopher, Christine and Cathy. Private
relationship with her children is protected by her respondent’s wife was aware of the existence of
right to privacy. If courts recognized the rights of the illegitimate children. Christopher was taken
unmarried men to engage in extramarital by respondent on a trip to Boracay. Upon their
relations, there is no reason to impose stricter return, respondent refused to return the child
standards on women. The evidence of the prompting petitioner to file for a write of habeas
obscene materials was likewise out of reach of corpus. The trial court granted the petition but
the children. As such, they are not, on its face, the Court of Appeals reversed the decision on the
detrimental to the children’s welfare. ground that the trial court had no jurisdiction over
the case as the children were borne out of
Santos Sr. vs. Court of Appeals adulterous relations. Temporary custody was
Facts: Court of appeals granted custody of 6 year awarded to respondent until such time that the
old Leouel Santos Jr., son f petitioner Leouel issue on custody and support was determined in
Santos Sr. and Julia Bedia-Santos to the latter’s a proper case. Petitioner contended that the writ
parents, Leopoldo and Ofelia Bedia. Leouel of habeas corpus applied to all cases of illegal
Santos Sr. is an army lieutenant while Julia Bedia confinement or detention or by which the rightful
was a nurse working in the US. Since release from custody og any person is withheld.
the hospital, Leouel Jr. had been in the custody of Held: Article 213 of the FC states that custody of
respondents. Julia has reportedly sent financial a child under six will be given to the mother
support while Leouel Santos had done no such unless the court deems it proper to rule
thing. On Sept. 2, 1990, Leouel took his son from otherwise. Absent any showing that petitioner is
respondents prompting respondents to file a unfit (although admittedly, she is not as well-off
Petition for Care, Custody and Control of Minor as respondent), custody shall be given to her. As
ward Leouel Santos Jr. Petitioner argued that the child is over the presumed tender years,
private respondents have failed to show that custody must still remain with the mother as the
petitioner was an unfit and unsuitable father and child has categorically expressed preference to
as such, Article 214 of the Family Code cannot be live with his mother.
applied. Private respondents contended that they
can provide a comfortable life to the child and Pizarro vs. Vasquez
that petitioner, being a soldier, will not be able to Facts: This suit for obtaining support from
care for the child. defendant was instituted by Maria Pizarro and her
Held: Custody granted to petitioner. When a minor children, Gloria, Julita and Lorenzo. Plaintiff
parent entrusts the child to another, what is given and defendant separated on the ground that the
is merely temporary custody and not a perpetual latter committed acts of infidelity and cruelty.
renunciation of parental authority. A waiver of Defendant denied the claim and alleged that
parental authority can only be executed in cases there is no contract of separation and that Maria
of adoption, guardianship and surrender to Pizarro committed acts of adultery. The evidence
children’s home or an orphan institution. of said adulterous relations was the birth of
Petitioner’s previous inattention cannot be Lorenzo 11 months after the couple separated.
33
Petitioner explained that they had sexual grandparents for the requisite six months. Upon
intercourse sometime in November 1933 during learning the action for adoption, petitioner filed
the town fiesta in the belief that defendant had for a writ of habeas corpus which was granted by
changed. the lower court.
Held: Claims of plaintiff that defendant had kept a Held: While the tender years presumption in favor
mistress and had maltreated her were not of the mother is no longer in effect, custody
contradicted. Also, absent any evidence that should still be granted to appellant on the basis
plaintiff indeed committed adultery and that she has been the primary caretaker of the
considering the prima facie presumption of child in question. Logically, the primary caretaker
innocence, plaintiff should be given support by parent is not in superior financial position as
the defendant. such, the material welfare of the child depends on
the award of support. Court therefore held that
Laxamana vs. Laxamana the presumption is in favor of the primary
Facts: Petitioner Reymond Laxamana was a caretaker parent if he or she meets the minimum
graduate of Bachelor of Laws while respondent objective standard for being a parent. The
Ma. Lourdes Laxamana held a degree in Banking presumption shall only apply to children of tender
and Finance. Upon marriage, respondent quit her years. Custody was granted to Gwendolyn McCoy.
job and became a full time housewife while Court held that manipulation of the welfare
petitioner managed buy and sell, fishpond and system to provide for the child’s healthcare shall
restaurant businesses. The couple had three not be construed as an attempt to abandon the
children. In October 1991, petitioner was confined child.
in Estrellas Home Care Clinic for being a drug
dependent. He was again confined in 1996 for • Other Effects
rehab. In 1997, petitioner was declared drug free CC Article 372: When legal separation has been granted, the
but respondent alleged otherwise stating that wife shall continue using her name and surname employed
petitioner has become irritable since his return before the legal separation.
and had even maltreated her at one point.
Respondent abandoned petitioner in June 1999 - This is so because her married status is not affected
by the separation.
taking the children with her. Petitioner filed a writ
- After legal separation, the marriage bonds are not
for habeas corpus for visitation rights which the severed.
court granted. The parties were ordered to
undergo psychological evaluation which they CC Article 370: A married woman may use:
passed except for the psychologist’s opinion that (1) Her maiden first name and surname and add her
husband's surname, or
petitioner, in his belief, was not completely drug
(2) Her maiden first name and her husband's
free. surname or
Held: Case was remanded. It is the duty of the (3) Her husband's full name, but prefixing a word
court to hold a trial notwithstanding the indicating that she is his wife, such as "Mrs."
agreement of the parties to submit the case for
resolution on the basis of a psychiatric report.
While petitioner had a history of drug Matute vs. Macadalo
dependence, records were inadequate to show Facts: Petitioner Rosario Matute and private
his moral, financial and social well-being. There is respondent Armando Medel were legally
therefore no proof that he is unfit to care for his separated on the ground of adultery committed
children. The court also failed to consider the by petitioner with her brother-in-law. Custody of
preference the choice of the children who were the four minor children was thereby awarded to
then 14 and 15 years old. Armando. With permission from private
respondent, petitioner brought her children to
• Presumption of Primary Care Taker Manila to attend her father’s wake. Thereafter,
she filed a civil suit, praying for custody of her
Garska vs. McCoy children whom she alleged has expressed
Facts: Appelant Gwendolyn McCoy was pregnant preference to stay with her. Three of the said
with her first child, Jonathan Conway, at 15 years children were no longer of “tender years.”
old. During pregnancy, Michael Garska, herein Armando moved to have Rosario charged with
petitioner, did not give any support. When the contempt of court for disobeying the court’s
child was born, petitioner sent food and diapers. decision to grant custody to Armando but the
The baby developed a chronic respiratory court did not accede owing to the fact that
infection and to be able to use the United Mine Armando consented. However, the court did not
Worker’s medical insurance of her grandfather, grant custody to petitioner. Petitioner argued that
appellant agreed to the adoption of Jonathan by the act of adultery she was charged with does not
her grandparents. The petition was dismissed on constitute moral depravity. Armando was found
the ground that the child had not lived with the
34
to be living with a different woman and such restored however, parties are still allowed to stipulate
relations were likewise adulterous. what would be brought into the revived property regime.
Held: Alleged errors by respondent were merely - Reconciliation must be a voluntary mutual
errors of judgment and not errors of jurisdiction. agreement to live together as husband and wife.
Filing of manifestation is only needed to terminate
Laperal vs. Republic of the Philippines the case in court and for purposes of future property
Facts: Elisea Laperal has been legally separated relations of the spouses.
- If the reconciliation takes place after the decree of
from her husband Enrique Santamaria. During legal separation has been handed down by the court,
their marriage, petitioner used the latter’s the decree is set aside, and all the orders in that
surname. She prayed that she be allowed to use decree will have no effect, except as to the property
her maiden name considering that she and her relations of the spouses. The community of property
husband had not lived together for a long time. or conjugal partnership of gains is not automatically
revived.
Petition was opposed b y the City Attorney of
- After the spouses have reconciled, a new action for
Bagiuo but in a motion for reconsideration, the legal separation can be based only on the
petition was granted on the basis that the use of subsequent or other causes, but not on the causes
the married name will give rise to confusion in already pardoned.
finances and the eventual liquidation of the
 Divorces
conjugal assets.
Held: The language of the statute is mandatory Foreign Divorces
and a woman shall continue using her married The Nationality Principle
name because her married status is unaffected CC Article 15: Laws relating to family rights and duties,
by her legal separation. The fact of legal or to the status, condition and legal capacity of persons
separation alone is not a sufficient ground to are binding upon citizens of the Philippines even though
living abroad.
justify a change of name.
FC Article 26: All marriages solemnized outside the
 Reconciliation Philippines in accordance with the laws in force in the
country where they were solemnized, and valid there as
FC Article 65: If the spouses reconcile, a corresponding joint such, shall also be valid in this country, except in those
manifestation under oath duly signed by them shall be filed prohibited under Articles 35 (1), (4), (5), and (6), 36, 37
with the court in the same proceeding for legal separation. and 38.
Where a marriage between a Filipino citizen and a
FC Article 66: The reconciliation referred to in the preceding foreigner is validly celebrated and a divorce is thereafter
article shall have the following consequences: validly obtained abroad by the alien spouse capacitating
1. The legal separation proceedings, if still pending, him or her to remarry, the Filipino spouse shall have the
shall thereby be terminated at whatever stage; and capacity to remarry under Philippine laws.
2. The final decree of legal separation shall be set aside
but the separation of property and any forfeiture of - General rule is a marriage valid where it was
the share of the guilty spouse already effected shall celebrated is valid everywhere.
subsist, unless the spouses agree to revive their - Exceptions to the general rule:
former property regime. o Marriages which are contrary to the law of
The court’s order containing the foregoing shall be recorded in nature and good morals as generally
the proper civil registries. recognized in Christian countries (ex.
polygamous and incestuous marriages).
FC Article 67: The agreement to revive the former property o Marriages which the local law-making power
regime referred to in the preceding Article shall be executed
has declared shall not be allowed any
under oath and shall specify:
validity.
1. The properties to be contributed anew to the
- Foreign marriages under Articles 35 (those
restored regime;
contracted below 18, those polygamous and
2. Those to be retained as separate properties of each
bigamous, those contracted through mistake in
spouse; and
identity and those void under Article 53), 36
3. The names of all their known creditors, their
(Psychological incapacity), 37 (Incestuous Marriages)
addresses and the amounts owing to each.
and 38 (Marriages void by reason of public policy).
The agreement of revival and the motion for its approval
- Laws on legal capacity to marry are binding to
shall be filed with the court in the same proceeding for
Filipinos in all countries.
legal separation, with copies of both furnished to the
- While the forms of entering into the contract of
creditors named therein. After due hearing, the court
marriage are to be regulated by the law where it is
shall, in its order, take measures to protect the interest
celebrated, the essentials of the contract depend
of creditors and such order shall be recorded in the
upon the law of the domicile for the parties.
proper registries of properties.
The recording of the order in the registries of property
FC Article 26 vs. CC Article 15
shall not prejudice any creditor not listed or not notified
- Article 26 corrects the riduculous situation wherein a
unless the debtor-spouse has sufficient separate
Filipino who married a foreigner remains married
properties to satisfy.
inspite of a divorce decree issued in a different
country.
- The word ‘revive’ implies that the conjugal property
- Article 26 is more restrictive in that it requires that
regime prior to the decree of legal separation would be
the divorce be secured by the foreign spouse and

35
that Filipinos naturalized as citizens of other hearing to establish the citizenship. Quita has
countries are exmept from the application of the law. apparently testified that she has been a US
citizen since 1954.
Van Dorn vs. Romillo
Facts: Petitioner Alicia Reyes Van Dorn is a citizen
Llorente vs. Court of Appeals
of the Philippines while private respondent
Facts: Lorenzo Llorente was an enlisted
Richard Upton is a citizen of the US. The couple
serviceman of the US Navy from 1927 to 1957. In
was married in Hong Kong and had two children.
1937, he and Paula were married. Before the war,
They lived together in the Philippines until their
Lorenzo Llorente went to the United States
divorce in 1982. They were divorced in Nevada.
leaving Paula in the Philippines. In 1943, Lorenzo
After the divorce, petitioner married Theodore
acquired US Citizenship. Upon his return after the
Van Dorn. Private respondent filed a suit
war, he discovered that his wife was pregnant
claiming that the Galleon shop, petitioner’s
and was cohabiting with his brother Ceferino. She
business is conjugal property. Petitioner’s motion
later gave birth to a son by the adulterous
to dismiss was not granted by respondent judge,
relation. Lorenzo refused to forgive Paula and the
Hon. Manuel V. Romillo Jr. According to petitioner,
couple drew an agreement which stated that
respondent is estopped from claiming the alleged
family allowances would be suspended, marital
conjugal property because of the representation
union will be dissolved and a separate agreement
he made in the divorce proceedings that they had
on the conjugal property was to be made. The
no community of property.
agreement was duly signed and notarized. In
Held: There is no question as to the validity of
1951, Lorenzo filed for a divorce and which was
that Nevada divorce or divorce in any state in the
decreed one year later. Upon his return he
United States. The decree is binding on private
married Alicia who had no knowledge of his prior
respondent as an American Citizen. Aliens may
marriage. In 1981, a will was executed to the
obtain divorces abroad, which may be recognized
effect that all his property will be given to Alicia
in the Philippines provided that they are valid
and his kids by her. In 1983, Lorenzo petitioned
according to their national law. As such,
for Alicia to be the administrator of their conjugal
respondent is no longer the legal husband of
property which was denied as he was still alive.
herein petitioner.
Lorenzo died on June 1985 and a few months
after his death, Paula filed a petition for letters of
Quita vs. CA and Dandan
administration as the surviving spouse of
Facts: Fe Quita married Arturo Padian in the
Lorenzo. The lower court held that Lorenzo’s
Philippines in 1941. The couple agreed to live
marriage with Alicia was void and that Paula
separately until 1950 when petitioner sued Arturo
should get 1/3 of the properties.
for divorce. After the decree of divorce Fe
Held: Divorce obtained in a foreign country is
married a certain Felix Tupaz whom she divorced
recognized in this jurisdiction. Lorenzo was no
and then a certain Wernimont. Arturo died in
longer a Filipino Citizen when he obtained
1972 without a will. Lino Javier Inciong filed a
divorce.
petition for the right to administer the estate of
Arturo. Blandina Dandan, claiming to be the
Garcia a.k.a. Recio vs. Recio
surviving spouse of Arturo, along with her six
Facts: Rederick Recio, a Filipino, was married to
children filed their opposition to Javier, praying
an Australian, Editha Samson, in Malabon on
that the administration of the estate be granted
1987. The couple lived together as husband and
instead to their lawyer. In 1987, petitioner moved
wife in Australia but on 1989 they divorced. In
for immediate declaration of the heirs of
1992, Recio became an Australian citizen. He
respondent and distribution of his estate. The
married Grace Garcia two years later and in their
Dandan family did not appear in court. Arturo’s
marriage license, he declared that he was a
brother, Ruperto and Fe Quita were declared the
Filipino. A year after their marriage, Garcia and
only heirs of Arturo. The trial court held that a
Recio started living separately and their assets
foreign divorce sought by Filipinos after the
were divided in 1996. Grace filed a petition for
effectivity of the Civil Code is not recognized in
nullity on the ground of bigamy alleging that she
this jurisdiction. As such, Blandina was not a
learned of Recio’s prior marriage to Samson only
legitimate spouse. As proof of filiation of the
in November of 1997. Recio argued that he
children was presented, partial reconsideration
revealed his prior marriage in 1993. In 1998, a
was granted by the court in favor of Arturo’s
divorce from Garcia was secured as such,
illegitimate children.
respondent moved to dismiss petition of Garcia
Held: The mere fact that petitioner declared
on the ground that there was no longer a cause of
Arturo was Filipino and thus remained legally
action.
married to her in spite of the divorce implies that
Held: The Case was remanded to the trial court
Quita was no longer a Filipino citizen at that time.
for the purpose of obtaining evidence to show
As such, the trial court should have conducted a
36
respondent’s legal capacity to marry. The best during her non-menstrual period (tuhr) within which he has
evidence of divorce is the decision itself as totally abstained from carnal relation with her. Any number of
repudiation made during one tuhr shall constitute only one
authenticated by the consular officer. Proof of the repudiation and shall become irrevocable after the expiration
existence of provision on divorce and the alleged of the prescribed 'idda.
divorce decree are likewise necessary to show
capacity to remarry. It was found that no decree (2) A husband who repudiates his wife, either for the first or
of absolute divorce has been given but divorce in second time, shall have the right to take her back (ruju)
within the prescribed 'idda by resumption of cohabitation
the sense of legal separation. without need of a new contract of marriage. Should he fail to
- There is no judicial cognizance of foreign laws do so, the repudiation shall become irrevocable (Talaq bain
there is therefore an additional requirement now, sugra).
to show the effects of the divorce decree.
Art. 47. Divorce by Ila. — Where a husband makes a vow to
abstain from any carnal relations (ila) with his wife and keeps
Intrinsic vs. Extrinsic
such ila for a period of not less than four months, she may be
- In intrinsic there is absence of the granted a decree of divorce by the court after due notice and
essential requisites (Article 15 applies). hearing.
- In extrinsic, lex law psy celebrationis or Art. 48. Divorce by zihar. — Where the husband has
valid in the country, valid everywhere. injuriously assimilated (zihar) his wife to any of his relatives
- Extrinsic pertains to the formalities or within the prohibited degrees of marriage, they shall mutually
formal requisites which ay be dictated by refrain from having carnal relation until he shall have
the country decreeing the divorce (Article performed the prescribed expiation. The wife may ask the
court to require her husband to perform the expiation or to
26 applies). pronounce the a regular talaq should he fail or refuse to do
- The same is true for rules of succession. so, without prejudice to her right of seeking other appropriate
remedies.

Muslim Divorces 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
Yasin vs. Shari’a District Court parties shall have performed the prescribed acts of
Facts: Hatima Yasin, a Muslim Filipino of legal imprecation (li'an).
age, was married to Hadji Idris Yasin until their
divorce in May 13, 1984. After their divorce, Hadji Art. 50. Divorce by khul'. — The wife may, after having
offered to return or renounce her dower or to pay any other
Idris Yasin contracted another marriage and as lawful consideration for her release (khul') from the marriage
sch, petitioner asked that she be allowed to bond, petition the court for divorce. The court shall, in
resume use of her maiden name and surname, meritorious cases and after fixing the consideration, issue the
Hatima Centi y Saul. The Shari’a court stated that corresponding decree.
she did not file the petition in sufficient form and
Art. 51. Divorce by tafwid. — If the husband has delegated
substance provided for in Rule 103 of the Rules of (tafwid) to the wife the right to effect a talaq at the time of
Court. Petitioner filed a motion for the celebration of the marriage or thereafter, she may
reconsideration stating that the petition she filed repudiate the marriage and the repudiation would have the
is not covered by the rules of court but is merely same effect as if it were pronounced by the husband himself.
a petition to resume the use of her maiden name
Art. 52. Divorce by faskh. — The court may, upon petition of
and surname after the dissolution of her marriage
the wife, decree a divorce by faskh on any of the following
by divorce. grounds :
Held: The true and real name of a person is that
given to him and entered into the civil register. (a) Neglect or failure of the husband to provide support for
While it is true that under Article 376 of the Civil the family for at least six consecutive months;
Code, no person can change his name or
(b) Conviction of the husband by final judgment sentencing
surname without judicial authority, nonetheless, him to imprisonment for at least one year; .chan robles
the only name that may be changed is the true virtual law library
and official name. Petitioner is not seeking to
change her registered name but for her to be (c) Failure of the husband to perform for six months without
allowed to resume the use of it. The procedures reasonable cause his marital obligation in accordance with
this code;
for change of name under the Rules of Court shall
not be applied to judicial confirmation of the right (d) Impotency of the husband;
of a divorced woman to resume her maiden name
and surname. (e) Insanity or affliction of the husband with an incurable
disease which would make the continuance of the marriage
relationship injurious to the family;
Code of Muslim Personal Laws
(f)Unusual cruelty of the husband as defined under the next
Art. 46. Divorce by talaq. — (1) A divorce by talaq may be
succeeding article; or
effected by the husband in a single repudiation of his wife

37
(g) Any other cause recognized under Muslim law for the (2) Should the husband die while the wife is observing 'idda
dissolution of marriage by faskh either at the instance of the for divorce, another 'idda for death shall be observed in
wife or the proper wali..chan robles virtual law library accordance with paragraph 1(a).
.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 FC Article 100: The separation in fact between husband and
the court upon petition of the wife if the husband: wife shall not affect the regime of absolute community except
that:
(a) Habitually assaults her or makes her life miserable by 1. The spouse who leaves the conjugal home or refuses
cruel conduct even if this does not result in physical injury; to live therein, without just cause, shall not have the
right to be supported;
(b) Associates with persons of ill-repute or leads an infamous 2. When the consent of one spouse to any transaction
life or attempts to force the wife to live an immoral life; of the other is required by law, judicial authorization
shall be obtained in a summary proceeding;
(c) Compels her to dispose of her exclusive property or 3. In the absence of sufficient community property, the
prevents her from exercising her legal rights over it; separate property of both spouses shall be solidarily
liable for the support of the family. The spouse
(d) Obstructs her in the observance of her religious practices; present shall, upon proper petition in a summary
or proceeding, be given judicial authority to administer
or encumber any specific separate property of the
(e) Does not treat her justly and equitably as enjoined by other spouse and use the fruits of proceeds thereof
Islamic law. to satisfy the latter’s share.

Art. 54. Effects of irrevocable talaq or faskh. — A talaq or - Separation of fact refers to the actual definite
faskh, as soon as it becomes irrevocable, shall have the separation of the persons of husband and wife,
following effects: thereby terminating cohabitation or common life
under the same roof without judicial order. There is
(a) The marriage bond shall be severed and the spouses may no separation of fact if business affairs only require
contract another marriage in accordance with this Code; that they occupy separate residences but their
relations continue to be intimate and friendly.
(b) The spouses shall lose their mutual rights of inheritance; - The spouse who leaves the conjugal home without
justification loses the right to be supported by the
(c) The custody of children shall be determined in accordance other spouse but his obligation to support the latter
with Article 78 of this code; is not extinguished.
- Judicial authorization is necessary when the consent
(d)The wife shall be entitled to recover from the husband her of one spouse is necessary for a transaction but
whole dower in case the talaq has been affected after the cannot be obtained.
consummation of the marriage, or one-half thereof if effected
before its consummation; .chan robles virtual law library FC Article 127: The separation in fact between the husband
and wife shall not affect the regime of conjugal partnership,
(e) The husband shall not be discharged from his obligation to except that:
give support in accordance with Article 67; and 1. The spouse who leaves the conjugal home or refuses
to live therein, without just cause, shall not have the
(f) The conjugal partnership, if stipulated in the marriage right to be supported;
settlements, shall be dissolved and liquidated. 2. When the consent of one spouse to any transaction
of the other is required by law, judicial authorization
Art. 55.Effects of other kinds of divorce. — The provisions of shall be obtained in a summary proceeding;
the article immediately preceding shall apply to the 3. In the absence of sufficient conjugal partnership
dissolution, of marriage by ila, zihar, li'an and khul', subject property, the separate property of both spouses shall
to the effects of compliance with the requirements of the be solidarily liable for the support of the family. The
Islamic law relative to such divorces. spouse present shall upon petition in summary
proceeding, be given judicial authority to administer
Section 2. 'Idda. — or encumber any specific separate property of the
other spouse and use the fruits or proceeds thereof
Art. 56. 'Idda defined. — 'Idda is the period of waiting to satisfy the latter’s share.
prescribed for a woman whose marriage has been dissolved
by death or by divorce the completion of which shall enable FC Article 239: When a husband and wife are separated in
her to contract a new marriage. fact, or one has abandoned the other and one of them seeks
judicial authorization for a transaction where the consent of
Art. 57. Period. — (1) Every wife shall be obliged to observe the other spouse is required by law but such consent is
'idda as follows: withheld or cannot be obtained, a verified petition may be
filed in court alleging the foregoing facts. The petition shall
(a) In case of dissolution of marriage by death, four months attach the proposed deed, if any, embodying the transaction
and ten days counted from the death of her husband; and, if none, shall describe in detail the said transaction and
state the reason why the required consent thereto cannot be
(b) In case of termination of marriage by divorce, for three secured. In any case, the final deed duly executed by the
monthly courses; or parties shall be submitted and approved by the court.

(c) In case of a pregnant women, for a period extending until FC Article 242: Upon the filing of the petition, the court shall
her delivery. 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

38
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.

Perez vs. Court of Appeals


Facts: Rey Perez, a doctor of medicine practicing
in Cebu and his wife, Nerissa a registered nurse
and herein petitioner were married in December
1986. Their marriage produced one child born in
July 1992. Petitioner began working in the US on
October 1988 and became a resident alien in
1992. She was able to construct a 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, he had only a tourist visa and was
unemployed in the US. The family went back to
Cebu in 1993 but after a few weeks, Nerissa went
back to the US because the husband preferred to
stay behind to take care of his sick mother.
Nerissa filed a petition for a writ of habeas corpus
asking respondent Rey Perez to surrender
custody of their son to her. Lower court granted
the custody to the mother based on Article 213 of
the Family Code. CA reversed the decision and
granted the custody to the father instead.
Held: Article 213 of the FC provides that “in case
of separation of parents, no child under 7 years of
age shall be separated from the mother unless…”
Since the code did not qualify the word
separation to mean “legal separation” couples
separated in fact are still covered by its terms.
The provision likewise mandates that the child
under seven years of age shall be in the custody
of the mother absent any 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 works
as a nurse. The Court however held that such a
supposition is unfounded especially as there are
means by which the mother could take care of
the child despite the demands of her profession.

39