THE FAMILY CODE

Art. 1- DEFINITION OF MARRIAGE

“Special contract of permanent union

between a man and a woman entered into
in accordance with Law for the
establishement of conjugal and family life.
It is the foundation of the family and an
inviolable social constitution whose
nature, consequences and incidents are
governed by law and not subject to
stipulation except that marriage
settlement may fix the property relations
during the marriage within the limits
provided by this code.”

>Case: Acebedo vs. Arquero, 399 SCRA 10

 Take note: that the 1987 Constitution

recognizes the importance and sanctity of
marriage in this wise “Marriage, as an
inviolable social institution is the
foundation of the family and shall be
protected by the State“ (Sec. 22, Art.
XV).

> Take note: that the contracting parties

should be a man and a woman, thus
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 making “gender” important as it involves
the legal capacity of the parties. This is
emphasized not only under this article but
also Articles 2 and 5 as well.

>Take note: Same sex between Filipinos

celebrated abroad is not valid in the
Philippines even if valid there.

>Take note:** “sex of a person is

determined at birth, visually done by the birth
attendant(the physician or midwife) by
examining the genitals of the infant and
such determination, if not attended by error,
is immutable and may not be changed by
reason of sex reassignment as there is no law
recognizing the same (Case: Silverio vs.
Republic, 537 SCRA 373[2007]). Simply
put, sex reassignment surgery does not
make a man into a woman. ( Silverio
case)

> ** Take note: that in the case of

Republic vs. Cagandahan, 565 SCRA
72[2008], the SC had the occassion to
discuss “intersexuality” – a term adopted by
medicine to apply to human beings who
cannot be classified as either male or
female because they have the biological
characteristics of a man and a woman.
However, in our jurisdiction, you can only be
either a MALE or a FEMALE. Thus, when a
person is biologically or naturally intersex, his

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gender would be that on what he beleives
he is, (either a male or female) when he
reaches the age of majority- i.e. when he
has good reason to think who he is. SC said
in this case that, “sexual development in
cases of intersex persons makes the
gender classification at birth inconclusive-
it is at maturity that the gender of such
persons are fixed”. **Thus, “when a
person suffers from a biological condition
known as “congenital adrenal
hyperlasia”[CAH], where biologically, nature
endowed such person with a mixed [neither
consistently and categorically female nor
consistently and categorically male]
composition, in the absence of law on the
matter, the Court will not dictate on such
person concerning a matter so innately private
as one’s sexuality and lifestyle preferences,
much less on whether or not to udergo
medical treatment to reverse the male
tendency due to CAH. ( also ruled in
Cagandahan case).

>Take note that under this article,

Marriage is regarded both:

1.) As a STATUS- it is the civil status of

one man and one woman united for
life for the following purposes:
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 a. reciprocal blessings of a
domestic home life
(companionship) ; and

b. for the birth, rearing and

education of children
(procreation)

> it creates a social status which the

State has an interest. Hence, you
cannot just choose to end your
marriage.

2.) As an ACT- it is an act by which a

man and a woman unite for life, with
the intent to discharge towards society
and one another those duties which
result from the relation of husband
and wife.

 Marriage Distinguished from Ordinary

Contract:

1. M- both a contract and a

social institution.
OC- merely a contract

2. M-generally, stipulations are

fixed by law- not by parties

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 (except: marriage settlement
provisions)
OC- stipulations are fixed by
parties.

3. M- the age requirement is 18

and above.
OC- generally, the age of
of majority (18 yrs. Old)

1. M- can be dissolved only

by death or annulment, not
mutual agreement.
OC- can be ended by mutual
agreement or by other legal
causes.

2. M- two parties only, a male

and a female;
OC- 2 or more parties.

> QUERRIES:

1. Can a company prohibit its

employees to marry each other?
NO, this is an invalid exercise of
management prerogative. Unless,
the company will show there is a
necessity of “No Spouse
Employment Policy”. (Case: Star
Paper Corp. Vs. Simbol, GR No.
164774, April 12, 2006).
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 2. What about a prohibition to marry
an employee of a competing
company, is this valid? YES,
relationship of employees of two
competing companies may
prejudice the interest of the
company. (Case: Duncan vs.
Glaxo, GR No. 162994, Sept. 17,
2004)

Art. 2- ESSENTIAL REQUISITES OF MARRIAGE

* No marriage shall be valid unless these

essential requisites are present:

1.)Legal capacity of the contracting

parties who must be a male
and a female (18 years and
above, ); and

2.)Consent freely given in the

presence of the solemnizing
officer.(consent of the contracting
parties, not their parents, if there
is vitiation of consent, the
marriage is voidable. The same
is true if the consent of their
parents is not obtained).

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> Take note: Legal capacity means-
parties must be of opposite sex, 18
years of age and over (this is also
the age of majority under RA
6809), and must have no legal
impediment to marry each other under
Arts. 37 (incestuous marriages) and 38
(against public policy), of the Family
Code. No same sex marriage-even if
one had sex change or transplant
(Silverio Ruling). The term “no legal
impediment”- refers to a situation
where there is no pre existing
marriage of either or both parties.
QUERY: If there is a prior existing
marriage by anyone of the parties but
it is VOID, can anyone of them just
get married. NO, there is a need to
declare the first marriage to be void
first, because parties could not decide
for themselves the invalidity of their
marriage. So long as the first marriage
is not declared void, the presumption
is, it is valid. Thus, if anyone of the
parties during the existence of their
marriage marry without the marriage
being declared void, assumed the risk
of being prosecuted for bigamy,
(Case: Weigel vs. Sempio Dy, 143
SCRA 499; Atienza vs. Brillantes, 60
SCAD 119).

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> Take note: If anyone or both of
the parties are below 18, and they
married each other, the marriage is
void, even if with the consent of
their parents. The same is true even
if the marriage is celebrated abroad
and valid there as such because the
law that determines the validity of
the marriage of a Filipino is his
national law. Remeber Art. 15 of the
Civil Code. QUERY: Will a subsequent
marriage validate their void marriage?
NO, because a void marriage cannot
be validated but there is nothing that
could prevent them from marrying
again. QUERY: What if in the
meantime, they begot children, what is
their status? ILLEGITIMATE, and they
cannot be elevated to the status of
legitimate children by the subsequent
marriage of their parents. The remedy if
they want to make their children
legitimate is to ADOPT them, for
even parents can adopt their illegimate
children, (Art. 185, Family Code).

> Take note: Proxy marriages not

allowed in the Philippines because
consent must be given before the
solemnizing officer. No force,
intimidation, fraud, undue influence

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 should be exerted to obtain consent
otherwise marriage is voidable under
Art. 45.

> **ON CONSENT: For consent to

be valid, it must be:

1.freely given and,

2. made in the presence of the
solemnizing officer.

Thus, a “freely given consent”

requires that the contracting parties
willingly and deliberately entered into the
marriage. In the (Case of Republic
vs. Albios, 707 SCRA 584[2013]), the
Supreme Court finds that consent was
not lacking and that in fact there was
real consent, even if the sole purpose of
the marriage between the Filipino and
the American is for the acquisition of
American citizenship because it was not
vitiated nor rendered defective by any of
the vices of consent. Moreover,
marriages entered into for other
purposes limited or otherwise, such as
convenience, companionship, money,
status and title provided that they
comply with all the legal requisites, are
valid.

 Take note: absence of any of the essential

requisites- Marriage is VOID AB INITIO;

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 while, defect in any of the essential
requisites- marriage is VOIDABLE.

Art. 3- FORMAL REQUISITES

*The formal requisites of marriage are:

1) Authority of the solemnizing

officer
2) Valid marriage license except in
the cases provided for in
Chapter 2 of this Title;
3) A marriage ceremony which takes
place with the appearance of the
contracting parties before the
solemnizing officer and their
personal declaration that they
take each other as husband and
wife in the presence of at least
two witnesses.

> can be proven by evidence aliunde or the

testimonies of those who were present

> Take note: Authority- refers to those

enumerated under Art. 7 of the Family Code. A
mayor however is authorized by the Local
Government Code. The authority of Justices,
(SC, CA, Sandiganbayan and CTA) to
solemnize marriage is all over the Philippines,
for judges- must be within their respective
territorial jurisdiction. If outside, VOID).
Take note: that if it is only a marriage

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ceremonious in character, ex. 25 th wedding
anniversary or golden wedding anniversary,
no need of compliance of the requisites of
marriage.

> Take note: Marriage license should be

existing at the time of the marriage. If not,
marriage is void (Case: Cosca vs. Judge
Palaypayon, 55 SCAD 759). Remember that
the issuance of marriage license is the only
indication of the State’s demonstration of its
involvement and participation in every
marriage. Query: What if in the marriage
contract there appears no marriage license
number, will this be tantamount to no
marriage license? No, it is only demonstrative
of the non recording of the marriage license
number, unless that there exist sufficient
evidence showing that there was no marriage
license issued, (Case: Geronimo vs. CA, 43
SCAD, 311) or, the absence of the marriage
license is apparent on the marriage contract,
as there is no entry to this effect whatsoever,
( Case: Alcantara vs. Alcantara, GR No.
167776, August 28, 2007). Take note: if
the marriage license came or issued after the
solemnization of the marriage, the marriage
is void, (Case: People vs. Lara, L-12588,
Feb. 15, 1955). Also, take note: A
solemnizing officer who signs a marriage
contract before the license is obtained and
then postdates the same, shall be
administratively liable and should be
admonished, no matter how plausible the
reason is (Case: Negre vs. Rivera, Adm.
Matter 343- MJ, June 22, 1976) and lastly,
take note also that even if the marriage
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license is illegally obtained, the marriage is
still VALID, under the presumption of
regular issuance or regular performance of
duty of the issuing officer.

>**Take note: That Section 15 of

Republic Act No. 10354 [the Responsible
Parenthood and Reproductive Health Act of
2012] imposes as an additional requirement for
the issuance a marriage license, a Certificate
of Compliance issued by the Local Family
Planning Office that the parties had received
instructions and information on responsible
parenthood and family planning. The Supreme
Court said, the imposition of this
requirement is a reasonable exercise of police
power by the State, (Case: Imbong vs.
Ochoa Jr., 721 SCRA 146[2014]).

> Exception where there is no need to

obtain marriage license:

1. if parties freely cohabited with each

other for a continuous period of 5
years, exclusively with each other
and without impediment to marry
each other (all that is needed is the
execution of Affidavit of
Cohabitation) or, what you call,
“ratification of marital
cohabitation” under Art. 34 of the
Family Code; Take note: the falsity
of an affidavit of marital
cohabitation like where the parties
did not actually live together for a
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 period of five(5) years renders the
marriage void ab initio [*Case:
Republic vs. Dayot, 550 SCRA
435 (2008)]. Further, the SC also
said that, the falsity of an Affidavit
of Cohabitation CANNOT be used
as a defense in a bigamy case.
Precisely, a party could not use
his/her illegal act to exonerate
himself/herself of criminal liability.
[*Case: Santiago vs. People, GR
No. 200233, July 15, 2015].

2. marriage in articulo mortis (under

Art. 27);

3. marriage in a remote place ( under

Art. 28); and

4. marriages between pagans or

Mohammedans who live in non
Christian provinces, and who marry
in accordance with their customs
(under Art. 33).

> QUERRIES:

1. Suppose in accordance with the

Mohammedan (Muslim) practice, a
Muslim who is already married gets
married to a 2nd wife, can he be held
guilty of bigamy. YES, the law does
not permit him to enter into a
bigamous or polygamous marriage since
this is punishable under the Revised
Penal Code, and there is no exception
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 in the case of Mohammedan or pagans,
(Case: People vs. Bitdu, 58 Phil.
817). Take note however, that
Muslims can marry up to 4x so long as
the other wives give their consent and
his resources allow him to do so.

2. Suppose according to pagan

practice, a girl less than 14 years of age
can get married to a pagan male, may
this marriage be recognized?. NO, said
marriage is void because a party is
below 18- age being an essential
requisite.

> Take note of the (Case of Ninal et. al vs.

Bayadog, Gr No. 133778, March 14, 2000)
where issues on marriage license, annulment
etc. where resolved).

> **Take note: Marriage ceremony- there

is no specific form of ceremony required.
What is required are: 1) personal appearance
of the parties before the solemnizing officer
and 2) their declaration that they take each
other as husband and wife in the presence of
two witnesses. This notwithstanding, the
Supreme Court held that, the requirements
should not be construed to mean that the
presence of at least two witnesses is mandatory
for a marriage ceremony to exist. (*Case:
Ronulo vs. People of the Philippines, 728
SCRA 675[2014]). What constitutes marriage
ceremony therefore is, the personal
appearance of the parties before a
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 solemnizing officer and in the presence of the
latter they personally declare that they take
each other as husband and wife. It can be
at the chamber of the judge or in the
courtroom or elsewhere (as per request of the
parties in a sworn statement to that effect).

Suggested case to read: Trinidad vs, CA,

289 SCRA 188; *Macua Vda. De Avenido vs.
Avenido, 714 SCRA 447

Art. 4- EFFECTS:

“ The absence of any of the

essential or formal requisites shall
render the marriage void ab initio,
except as stated in Art. 35(2) [those
solemnized by any person not legally
authorized to perform marriages unless such
marriages were contracted with either or
both of the parties believing in good faith
that the solemnizing officer had the legal
authority to do so) .
* this is called
PUTATIVE MARRIAGE or one which is
ordinarily void because of the lack of
authority of the solemnizing officer but
VALID because of the Good Faith of the
parties.

A defect in any of the essential

requisites shall render the marriage
voidable as provided for Under Art. 45

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

1.) ABSENCE of essential requisites:

*effect: Marriage is VOID

* this is a ground for DECLARATION

OF NULLITY OF MARRIAGE

* same effect if there is absence of

the formal requisite.

> take note: absence of marriage

ceremony renders the marriage void.
Thus, a marriage where the parties just
made to sign the marriage contract by
the solemnizing officer who was in a
hurry for another appointment is void,
(Case: Morigo vs. People, GR. No.
145226 Feb. 6, 2004).

2.) DEFECT- in any of the essential requisites.

>marriage is VOIDABLE

> presence of the vices of

consent (fraud, force,

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 intimidation, undue influence,
violence, mistake)

>ground for annulment of

Marriage.

3.) IRREGULARITY in the FORMAL Requisites:

>marriage is valid

Examples:

1. marriage solemnized in a place other

than the church
2. absence of two witnesses who are
of legal age or without the required
supporting papers
3. issuance of a license where neither
of the parties reside
4. absence of a marriage contract
5. issuance of a marriage license
even without the party showing
parental consent or advice when
required, or in the absence of
posting of notice or publication
6. failure to undergo marriage
counseling or payment of required
fee for marriage license.

> Take Note: WHO MAY ATTACK VALIDITY

OF MARRIAGE:

* For VOID marriage- anyone

-imprescriptible

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 For VOIDABLE marriage- only parties
to the marriage during their lifetime

Art. 5- Parties to a marriage

“ Any male or female of the age of

eighteen (18) years or upwards not
under any of the impediments mentioned
in Art. 37 (blood relationship/incestuous)
and 38 (against public policy), may
contract marriage.

> MALE and FEMALE; 18 years and

above;

>under the Civil Code-14&16 (but this

age is rather young)

> Take Note: marriage between first

cousins who are both Filipinos abroad is
void as this is against our public policy,
even if the marriage there is valid.

> Take note: Incestuous marriage is

void- whether the relationship between
the parties is legitimate or illegitimate.
As long as the relationship is in the
direct line, the marriage is void.

Art. 6- Ceremony in Marriage

“ No prescribed form or religious

rite for the solemnization of the
marriage is required. It shall be
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necessary, however for the contracting
parties to appear personally before the
solemnizing officer and declare in the
presence of not less than two witnesses
of legal age that they take each other as
husband and wife. This declaration shall
be contained in the marriage certificate
which shall be signed by the contracting
parties and their witnesses and attested
by the solemnizing officer.

In case of a marriage in articulo

mortis, when the party at the point of
death is unable to sign the marriage
certificate, it shall be sufficient for one
of the witnesses to the marriage to write
the name of the said party, which shall
be attested to by the solemnizing officer.

>appearance of parties before the

solemnizing officer is sufficient with their at
least two witnesses.

>PROXY Marriage:

* between Filipinos or mixed

a. if celebrated here- VOID

b. if celebrated abroad- VALID
under the principle of - LEX LOCI
CELEBRATIONIS. Reason: because
it is not one of those marriages
which are celebrated abroad
(provided for under Art. 26(1)
which is considered void). Inclusio
unius est exclusio alterius applies.
Besides the rule is, in case of
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 doubt, the presumption is in
favor of the validity of marriage.

*between foreigners

>not possible in the

Philippines but we consider
proxy marriages between
foreigners abroad as valid
here.

Art. 7- Solemnizing Officers

* Marriage may be solemnized by:

1.)Any incumbent member of the judiciary

within the court’s jurisdiction.

2.)Any priest, rabbi, imam, minister of any

church or religious sect duly authorized
by his church or religious sect registered
with the civil registrar general, acting
within the limits of the written authority
granted him by this church or religious
sect and provided that at least one of
the contracting parties belongs to the
solemnizing officer’s church or religious
sect;

3.) any ship captain or airplane chief in

cases mentioned in Art. 31 (Marriage in
articulo mortis, between passengers and
crew, while in transit)

4.) any military commander of a unit to

which a chaplain is assigned, in the

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absence of the latter, during a military
operation, likewise also in cases
mentioned in Art. 32 (marriage in Articulo
Mortis between persons within the zone of
military operation whether members of the
armed forces or civilians)

5.) any consul general, consul or vice

consul in the case provided for under Art.
10 (between both Filipino citizens abroad
only and that he could also act as the Local
Civil Registrar for the issuance of marriage
license He could not solemnize mixed
marriage).

>Take Note: mayors are excluded in

the Family Code but are authorized by
RA 7160, The Local Government
Code). But, only within his territorial
jurisdiction. Otherwise, the marriage is
void.

>Take note of the following:

1. a vice mayor or Sangguniang

Bayan member acting as Mayor
can solemnize marriage

2. a marriage solemnized by a
judge outside his jurisdiction
results only in “irregularity in
the formal requisite”, which
while it may not affect the
validity of marriage, it may
subject the officiating official
with administrative liability,

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 (Case: Navarro vs. Judge
Domagtoy, 72 SCAD 328)

3. ambassadors cannot solemnize

marriage anymore.

4. a Filipino consul vacationing in

the Philippines cannot
solemnize marriage here
because it is outside of the
area he holds office. The
marriage would be void for
lack of authority.

5. the nature of Putative Marriage

 A priest of the Roman Catholic Church, an

imam of the Muslims, a rabbi of the Jews or
a minister or pastor may solemnize
marriage provided the following requisites
are present:

1. must be authorized by his church/

religious sect

2. must act within the limits of the

written authority granted him

3. at least one of the contracting

parties belongs to the solemnizing
officer’s church or religious sect.

Art. 8- Venue of Marriages:

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

> Take note: the requirement of

venue is not mandatory but directory
in nature, hence violation of which
does not affect the validity of the
marriage but subjects the
solemnizing officer to an administrative
charge.

Art. 9- Marriage License (who can issue)

“A Marriage license shall be issued by

the Local Civil Registrar of the city or
the municipality where either of the
contracting party habitually resides
except in marriages where no license is
required in accordance with Chapter 2 of
this title”.

> This is a formal requisite, violation

of which does not affect the validity of
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 marriage. But, the parties responsible
for such irregularity can be held liable.

Art. 10.

“ Marriages between Filipino citizens

abroad may be solemnized by a consul-
general, consul or vice consul of the
Republic of the Philippines. The issuance
of the marriage license and the duties of
the local civil registrar and of the
solemnizing officer with regard to the
celebration of marriage shall be
performed by said consular official.”

>Only marriage between Filipinos may be

solemnized by consuls and vice
consuls.

Art. 11- Application for Marriage License should

be accompanied by:

Art. 12- birth certificate or Baptismal

Certificate of the parties.

>except when parties are accompanied

by their parents who would attest to
their age or they looked their age.

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Art. 13- if either of the parties has been
previously married, the death certificate of the
deceased spouse or the judicial decree of
absolute divorce, annulment of marriage or
declaration of nullity of marriage.

Art. 14- Parental Consent:

> for 18-21 yrs. old - Parental Consent,

otherwise marriage is voidable
Must be attached to the application of
marriage license

Art. 15- Parental Advice:

> for 21-25 yrs. old- Parental advice

>if none- Voidable
>if cannot be obtained- application &
Sworn Statement to that effect

Art. 16- Marriage counseling certificate

Art. 17- Duty of the Local Civil Registrar

> upon receipt of the application, the

LCR prepares a notice to be posted at
a bulletin board outside his Office for
ten (10) consecutive days. The
marriage license will be issued only
after the lapse of ten(10) days.

* mere formality only.

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Art. 18- where there is information of an
impediment

>The Local Civil Registrar will just take

down of the impediment but could not
refuse issuance of the marriage license
unless ordered by a Court not to do so.

Art. 19- Fees to be paid to the LCR

> P300.00 for the issuance of the

Marriage License. For indigents its
free.

Art. 20- Life of the Marriage License

“ The license shall be valid in any part of

the Philippines for a period of 120 days from
the date of issue, and shall be deemed
automatically cancelled at the expiration of
said period if the contracting parties have not
made use of it. The expiry date shall be
stamped in bold characters on the face of
every license issued.

>marriage solemnized using an expired

marriage license is void.

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Art. 21- Certificate of Legal Capacity to marry

“ When either or both of the

contracting parties are citizens of a
foreign country, it shall be necessary for
them before a marriage license can be
obtained, to submit a certificate of legal
capacity to contract marriage, issued by
their respective diplomatic or consular
officials.

Stateless persons or refugees from

other countries shall, in lieu of the
certificate of legal capacity herein
required, submit an affidavit stating the
circumstances showing such capacity to
contract marriage.

> required where one or both are

foreigners. The foreigner need not
present his birth certificate. Query:
What is the effect if marriage is
solemnized without the certificate, is the
marriage still valid. YES, because this is
not one of the essential requisites of
marriage.
> The Certificate is issued by the
foreigner’s diplomatic or consular
official and this ensures that the
foreigner is capacitated to marry. This
is so because the person’s capacity to
marry is governed by its national law.
Take note: Thus, even if a foreigner
is below 18, he can contract
marriage here in the Philippines if
his national law allows him to marry
at that age.
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 > take note: if both parties are foreigners,
and they want to marry here before their
consul assigned in the country, they can
marry even if they have no marriage license if
their law does not require so. The marriage
is VALID except:

1.) IMMORAL, BIGAMOUS and

POLYGAMOUS Marriages

2.) UNIVERSALLY CONSIDERED

INCESTUOUS marriages such as:

a.) between ascendants and

descendants of any degree
whether legitimate or
illegitimate

b.) collateral line between,

brothers and sisters of the
full or half blood whether the
relationship is legitimate
or illegitimate.

Art. 22- Marriage Certificate

“ The marriage certificate, in which the

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

1. the full name, sex and age of each

contracting party;
2. the citizenship, religion and habitual
residence;
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3. the date and precise time of the
celebration of the marriage;
4. that proper marriage license has
been issued according to law, except in
marriages provided for under Chapter
2 hereof;
5. that either or both of the contracting
parties have secured the parental
consent in appropriate cases.
6. that either or both of the contracting
parties have complied with the legal
requirement regarding parental
advice in appropriate cases; and
7. that the parties have entered into a
marriage settlement, if any, attaching
a copy thereof.

> the best evidence that a marriage

took place between the parties is the
marriage certificate. However, its
absence does not invalidate a marriage
because this is not a requisite for a
valid marriage. The rule is, parties
apparently living together in marriage
enjoy the presumption that they are in
fact marriage. (Case: in the matter of
Intestate Estate of Deceased Josefa
Delgado and Guillermo Rustia vs.
Heirs of Marciana Rustia vda. De
Damian, et.al., 480 SCRA 334). Thus,
he who alleges that parties are not in
fact marriage should prove it. And,
more importantly, it is up to the
person who is attacking the validity of
marriage to show satisfactory evidence
to rebut the presumption of validity.
The evidence to prove the
invalidity of marriage may even be
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 presented for the first time on
appeal. Such that, even if a party
failed to assert the absence of
marriage license in a nullity of
marriage case, because his ground is
psychological incapacity, the SC
declared the marriage void on the
ground of a marriage license, if the
evidence on record shows this fact.
(Case: Sy vs. Court of Appeals, GR
No. 127263, April 12, 2000).

Art. 23- Duty of the solemnizing officer.

1. to furnish either of the

contracting parties the original
of the marriage certificate;

2. to send the duplicate and

triplicate to the LCR not later
than 15 days after the marriage

3. to retain on its file the

quadruplicate copy of the
marriage certificate, original of
the marriage license and
affidavits of parties if any re:
Art. 8

Art. 24- Duty of the LCR:

1. to prepare required documents

30
 2. to administer oath Re: affidavits and
other documents relative to the
marriage

Art. 25- Duty of the LCR

1. to enter all applications for

marriage license in its registry
book.
2. to enter in said book date
marriage license was issued
and other matter in relation
thereto.

>Take note: Non compliance of

these duties does not invalidate
the marriage.

Art. 26- Lex Loci Celebraciones Rule in

Marriage:

“ All marriages solemnized outside of the

Philippines, in accordance with the laws
in force in the country where they were
solemnized, and valid there as such, shall
also be valid in this country, except
those prohibited under Articles 35(1),
(4), (5) and (6), 36, 37 and 38.”

Where a marriage between a

Filipino citizen and a foreigner is validly
celebrated and a divorce is thereafter
validly obtained abroad by the alien
spouse capacitating him or her to
31
remarry, the Filipino spouse shall
likewise have capacity to remarry under
Philippine law. (as amended by Executive
Order No. 227, July 17, 1987)

>One of the most controversial and

important articles in the Family Code.

>Take Note: Rule for Validity of

Marriage celebrated abroad:

> ( For: FILIPINOS)

General Rule: if valid where

celebrated, it is valid also here,
except: Art. 35:

>par. (1) - Parties are below 18

even with consent of parents and
guardians.
>par. (4) - bigamous/polygamous
Marriages.
>par. (5) - those contracted
through mistake of one contracting
parties as to the identity of the
others.
>par. (6) - those subsequent
marriage that are void under Art.
53 of the Family Code and thus
is, *where after judgment of
annulment or nullity of marriage,
no registration of:
a. judgment
b. decree of annulment
c. partition and distribution of
property as well as delivery of
presumptive legitimes.

32
 Art. 36 - refers to Psychological
incapacity

37 - Incestuous marriages

38 - void marriages by reason

of public policy.

(BETWEEN FILIPINO and ALIEN, mixed

marriage)

>covered by the 2nd par. of Art. 26

> Rule is: if validly celebrated and

divorce is thereafter obtained by the alien
spouse, capacitating him/ her to remarry
the Filipino spouse shall have capacity to
remarry. Take note: this is applicable
to former Filipino citizens. ** Take
note however that, only the Filipino
spouse can invoke the second
paragraph of Art. 26, an alien spouse
cannot (Case: Corpuz vs. Sto Tomas,
628 SCRA 266) but this
notwithstanding, an alien spouse is
allowed to file a petition for recognition
of foreign judgment on divorce in
Philippine courts (Case: Fujiki vs.
Marinay, 700 SCRA 69, [2013]).

> Take note: The Four Requisites for

Art. 26 to apply:

33
 1.) the marriage must between a
Filipino and a foreigner

2.) there must be valid foreign

divorce decree

3.) decree is obtained at the

instance of foreigner spouse

4.) the foreign spouse acquires

capacity to remarry by virtue of
divorce decree.

>QUERRY: Is it applicable if the

foreigner was once a Filipino Citizen?
YES, by implication- although the law is
silent. Reckoning period- citizenship at
the time divorce is obtained, (Case:
Republic v. Orbecido G.R. No.
154380- Oct. 5, 2005, wife is the one
who obtained divorce here)

> **Take note: IMPORTANT THINGS

TO KNOW ON ABSOLUTE DIVORCE
OBTAINED ABROAD:

 four(4) premises to consider:

a. divorce obtained abroad by

an alien married to a
Philippine national may be
recognized in the Philippines,
provided that the divorce
decree is valid according to
the national law of the

34
 foreigner (Case: Bayot vs.
CA, 570 SCRA 472)

b. reckoning point is not the

citizenship of the divorcing
parties at birth or at the time
of marriage, but their
citizenship at the time the
valid divorce is obtained and,

c.an absolute divorce secured

by a Filipino married to
another Filipino is contrary to
our concept of public policy
and morality and shall not be
recognized in this jurisdiction.

d.an absolute divorce obtained

by a Filipino spouse married
to a foreigner is VALID even if
it is the Filipino spouse who
filed the divorce. This is so
because, the divorce decree
makes the foreigner able to
remarry. [*Case: Republic vs.
Marelyn Manalo, April
2018]. This now solves the
absurd situation where a
Filipino is still married to a
foreigner who is no longer
married to him/her. This is
now the exception to the
exception to par. 2 of Art.
26].

35
>**Notes on recognition of a
foreign divorce judgment by the
Philippine Courts.

1. Philippine Courts do not take

judicial notice of foreign
judgments and laws, hence
our law on evidence requires
that both the divorce decree
and the national law of the
alien must be alleged and
proven like any other fact.
(*Case: Ando vs.
Department of Foreign
Affairs, G.R. No. 195432,
Aug. 27, 2014) Presentation
of the divorce decree is
insufficient, (Case: Garcia
vs. Recio, G.R. No.
138322,Oct. 2, 2001).

2. The recognition may be

made in an action instituted
specifically for said purpose or
in another action where the
party invokes the foreign
decree as an integral aspect
of his claim or defense. Thus,
it could be made in a special
proceeding for cancellation or
correction of entries in the
Civil Registry under Rule 108
of the Rules of Court.
(*Case: Corpuz vs. Sto.
Tomas, 628 SCRA 226).
Same ruling was adapted in
the case of *Fujiki vs.

36
 Marinay, 700 SCRA 69
[2013]).

3.Registration of the foreign

divorce decree in the civil
registry without the requisite
judicial recognition is patently
void and cannot produce any
legal effect. ( Corpuz case).

4.AM No. 02-11-10 SC [or

the rule on Declaration of
Absolute Nullity of Void
Marriages and Annulment of
Voidable Marriages] does not
apply in a petition to
recognition of foreign
judgment relating to the
status of a marriage where
one of the parties is a
foreign national. In short, the
petition does not require re
litigation ( Fujiki case).

>QUERRY- is there a need for judicial

declaration for Filipino spouse to remarry
– NONE (although divorce decree must
be proven in Philippine Court in an action
for Declaratory relief as in the Recio
case) - still debatable

> *CASE: (Van Dorn v. Romillo, G.R.

No. 68470, October 8, 1985, 139
SCRA 139) Ruling: a Filipino married to
37
a foreigner and the latter divorced her.
The Filipino came back here and then
engaged in business. Her foreigner
spouse could not take part in the profits/
properties of the Filipino spouse because
marriage is already severed.

> *CASE: (Quita v. Quita, 300 SCRA

406 Ruling: Foreign spouse could no
longer be an heir to the Filipino Spouse
once a divorce is obtained.

> *CASE: (Pilapil vs. Ibay Somera,

174 SCRA 653) Ruling: Filipina is
married to a German. The German
divorced her and then, the former filed
an adultery case against the Filipina.
The SC ruled, the German husband
has no more standing to file an
adultery case against his former
Filipino wife because he is already
considered divorced under his national
law .

> *CASE: (Llorente v. CA, 345 SCRA

592 take note that in this case both parties
are former Filipino citizens and were married
here ) Ruling: *Prior to the Orbecido
case, it was held that a divorce
obtained by Filipino against her
foreigner spouse is not valid here. But
if the Filipino spouse has already
acquired the citizenship of her husband
by virtue of their marriage and

38
thereafter obtained a divorce against
him, such divorce is valid here not
because of Art. 26 but because of our
adherence to the nationality principle in
so far as the status of a person is
concerned. Take Note: In this case, SC
recognized only the validity of the divorce
( even between Former Filipino citizens)
but it stopped there, saying that as far
as the share in the conjugal estate, status
of the children are concerned and the
intrinsic validity of will is concerned- still
the courts will determine ( Art 15 & 26
Civil Code).

> *CASE: (ROEHR v. Rodriguez 404

SCRA 495) Ruling: Although foreign
divorce is recognized in the Philippines,
its legal effect must still be determined by
our courts (ex: custody of children)
QUERY: Are our Courts bound to
recognize the effects of a foreign divorce
decree? NO – it is still our courts which
will determine its effects.

> *CASE: (Garcia Recio vs. Recio, G.

R. No. 138322, October 2, 2001)
Ruling: The divorce obtained by a
foreign spouse abroad does not ipso
facto entitle the Filipino spouse to
remarry. Before he/she can remarry,
he/she must prove in Court two things:
1) fact of divorce obtained by foreign
spouse and 2) the fact that said
spouse is capacitated by his national
law to remarry after the divorce. The

39
 action to be filed in Court is Declaratory
Relief.

> *CASE: (Bayot vs. CA, GR Nos.

155635/16379, November 7, 2008)
Ruling: The divorce obtained by a
former Filipino citizen is valid here and
so therefore, once this is established as
a fact, there is no need for said spouse
to file annulment of marriage on the
ground of psychological incapacity.
Hence, the dismissal of the petition for
annulment of marriage.

Other Suggested Cases to read: Catalan

vs. Catalan-Lee, 665 SCRA 487; Barnuevo vs.
Foster, 29 Phil. 606; Juliano Llave vs. Republic,
646 SCRA 637; *Iwasawa vs. Gangan, 705
SCRA 699

Art. 27- Marriage in articulo mortis

“ In case either or both of the

contracting parties are at the point of
death, the marriage may be solemnized
without the necessity of a marriage
license and shall remain valid even if the
ailing party subsequently survives.”

>marriage in articulo mortis is when one

of the parties is at the point of death.
No need to have a license and can be
solemnized by any of the authorized
solemnizing officers.
40
Art. 28- Marriage in a far and remote place

“ If the residence of either party is so

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

>this is allowed but the solemnizing

officer must execute an affidavit after
the celebration of marriage stating that
he solemnized a marriage at a far and
remote place and he ascertained the age,
and relationship of the parties and that
there is no legal impediment to marry.

> purpose: to legitimize the union of

people living in a far and remote place.

Art. 29- “ refers to the execution of an affidavit

by the solemnizing officer and its contents”

Art. 30- “refers to the sending of the Affidavit

to the LCR and the original copy of the Marriage
contract- which must be within 30 days from
the solemnization of the marriage.”

41
Art. 31- “ refers to the authority of ship captain
and airplane pilot to solemnize marriage in
articulo mortis not only while the ship is at sea
or the plane is in flight, and also during
stopovers or ports of call.

Art 32- “refers to the authority of the

commander of a military court or commissioned
officer to solemnize marriage in articulo mortis
during military operations.”

Art 33- “ marriages among Muslims or

among members of the ethnic cultural
communities may be performed without the
necessity of marriage license, provided they
are solemnized in accordance with their
customs, rights or practices.”

> applicable also to marriage among

members of the ethnic cultural
communities.

>Code of Muslim Personal Laws of

the Philippines dated February 4,
1977- is the governing law on persons
and family relation between Muslims.

> Take note: Under this law, marriage

license is not required for the validity of
Muslim’s marriages. But this has been
qualified by the Family Code by
imposing requirements:

42
 a. marriage must be in
accordance with their customs,
rites or practices

b. both parties must be

Muslims because of the word
“among”.

c. if it is a mixed marriage,
the requirement of marriage
license cannot be dispensed with.

Art. 34 – Ratification of Marital Cohabitation

“ No license shall be necessary for the

marriage of man & woman who have lived as
husband and wife for at least five (5) years
and without implement to marry each other.
The contracting parties shall state the
foregoing facts in an affidavit before any
person authorized by law to administer oaths.
The solemnizing officer shall also state under
oath that he ascertained the qualification of the
contracting parties and found no legal
impediment to the marriage.”

> Only an Affidavit of Cohabitation is

needed. Purpose of the law: to avoid
exposing the parties to humiliation,
shame and embarrassment that may
come with publication relative to the
issuance of marriage license.

>Two requisites must concur:

43
 c. the husband and the wife must
have live together for a
continuous period of five years
and exclusively with each
other

d. there must be no legal

impediment for them to marry
each other.

> Take note: There are different

views to this because of the ruling in
Manzano vs. Sanchez, Administrative
Matter No. MTJ 001329, March 8,
2001, to this effect, Under Art. 34 of
the Family Code, while these two
requisites must concur, they do not
qualify each other unlike under the
Civil Code, meaning- during the 5 year
cohabitation period, it is not necessary
that they have no legal impediment to
marry each other, it is enough that
they had no legal impediment at the
time they decide to marry each other.
Simply put, the absence or presence of
legal impediment should only be
considered at the time of the celebration
of marriage. [This is NOT plausible
otherwise, we will be sanctioning immorality
and encouraging parties to have common
law relationship and placing them on the
same footing with those who lived faithfully
with their spouse consistent with the ruling in
Ninal vs. Bayadog.] Take note though of
the Case of Republic vs. Dayot, 550
SCRA 435, wherein SC said, the 5-year
cohabitation period under Art. 76 of the

44
Civil Code (Art. 34 of the Family Code),
means, a five year period computed
back from the date of the
celebration of marriage and refers
to a period of legal union had it not
been for the absence of a marriage.
Be that as it may, take note that the
marriage contemplated in the Dayot
case took place before the effectivity of
Family Code and decided in the light of
Art. 76 of the Civil Code. Hence it is
not safe to say that the Manzano ruling
is abandoned by the ruling in the Dayot
case.

>** Take note: The judge who will

solemnize the marriage cannot
notarize the Affidavit of
Cohabitation, his only duty is to
solemnize the marriage and to
determine whether the parties
actually lived together as husband and
wife for a period of five(5) years prior
to the marriage without legal
impediment, (Case: Tupal vs. Rojo,
717 SCRA 236[2013]). If the five
year cohabitation requirement is not
met, the marriage is void for lack of
marriage license, (Case: Republic vs.
Dayot, 550 SCRA 435). ** Take note
further that: the falsity of the
Affidavit of Cohabitation cannot be
considered as a mere irregularity in the
formal requisite of marriage, ( Case:
De Castro vs. Assidao- de Castro,
545 SCRA 162 [2008]. And lastly,
take note that, the falsity of the
45
 Affidavit of Cohabitation cannot be used
as a defense in a Bigamy Case,
(Case: Santiago vs. People, G.R. No.
200233, July 15, 2015).

** THE COVERAGE OF A.M. No. 02-11-10-

SC [Rule on Declaration of Absolute Nullity
of Void Marriages and Annulment of
Voidable Marriages] which took effect on
March 15, 2003.

1.applies only to marriages covered by the

Family Code, which took effect on August 3,
1988.

2.Covers only proceedings that took place after

March 15, 2003. It does not cover the
following:

a.marriages celebrated during the

effectivity of the Civil Code

b. petitions for nullity of marriages filed

prior to March 15, 2003

 **WHO CAN FILE PETITION FOR

DECLARATION OF NULLITY and/or
ANNULMENT OF MARRIAGE

>under the Civil Code (i.e., prior to the

effectivity of the Family Code

*though the law is silent on who

is the proper party, the Supreme Court
in the case of Carlos vs. Sandoval
(574 SCRA 116[2008]) said that the
silence of the Civil Code cannot be
46
 construed to mean anyone can bring
the action- the better rule is, the
plaintiff must still be the party who
stands to be benefited by the suit for it
is basic that the action must be
prosecuted or defended in the name of
the real party in interest.

>**Under A.M. No. 02-11-10-SC

*only the husband or wife of the

subsisting marriage can file except if the
ground is bigamy, (Case: Juliano Llave
vs. Republic, 646 SCRA753[2010], same
ruling was reiterated in the case of Fujiki
vs. Marinay

**Lastly, take note that: in cases where A.M. No.

02-11-10 SC applies, the ruling allowing the
children of a former marriage can file petition for
declaration of nullity of marriage even after the
death of their father applies. Said ruling was laid
down in the cases of Ninal vs, Bayadog and was
confirmed in the case of Garcia- Quiason vs.
Belen, 702 SCRA 707 [2013]).

>**WHERE TO FILE

>In the Regional Trial Court where the

plaintiff resides. It will be tried by the
Family Court.

>Restriction: “the trial Court has no

jurisdiction to nullify marriages” in a
Special Proceeding for cancellation or
correction of entry under Rule 108 of
the Rules of Court. (Case: Braza vs.
47
 The City Civil Registrar Himamaylan
City, Negros Occidental, 607 SCRA
638 [2009]).

>** Take note however: of the ruling in the

case of Republic vs. Olaybar, 715 SCRA
605[2014]) where the Court allowed the
Petition for the Cancellation of Entry [ re:wife
portion] in the marriage contract of Melinda
Olaybar because here, the case is one of
identity theft, hence in reality, there was no
marriage that took place making correction of
entry (under Rule 108) applicable.

Art. 35- Void Ab Initio Marriage

(Articles 35, 36, 37 and 38)

“ The following marriages shall be void

from the beginning:

1) those contracted by any party

below 18 years of age even with the
consent of parents & 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.
48
4) those bigamous or polygamous
marriage not falling under Art. 41

5) those contracted through mistake

of one contracting party as to the
identity of the other; and

6) those subsequent marriages that

are void under Art. 53.

>Take note: the law requires

that the following should be
registered in the proper civil
registry or the registry of
property, because if they are not,
the marriage is void. Further, it
should be noted that even if
the marriage is celebrated
abroad and valid there as such
(between Filipinos), once this
is not complied with, the
marriage is void.

1. Judgment
2. Annulment decree
3. partition/ distribution of
property of spouses and
delivery of presumptive
legitime, (otherwise it does
affect 3rd person)

> Take note: Two kinds of

impediments in marriage:
49
 1. Diriment impediments- they
make the marriage void. Ex:
blood relationship, prior existing
marriage;

2. Prohibitive impediments-
they do not affect the validity of
marriage, but criminal prosecution
may follow. Ex: unfavorable
parental advice with the parties
not waiting for the needed three
months.

>Take note: Two kinds of defective

marriages:

1. Void- defective from the very

start. Those enumerated
under this Article are
defective because they fail to
comply with the essential
and formal requisites of
marriage under Art. 2 and 3
of the Family Code.

2. Voidable- valid until it is

annulled.

> DISTINCTIONS:

1. V- can never be ratified.

*This is the reason why an action

50
to declare a marriage void is
imprescriptible.

VD- can generally be ratified by

free cohabitation. *An action to
annul marriage prescribes.

2. V- always void.
VD- valid until it is annulled.

3. V- needs judicial declaration

that it is void for purposes of
remarriage
VD- needs judicial decision
annulling it.

4. V-can be attacked directly

or collaterally

>means that the nullity of a

void marriage can be raised even
after the death of the parties.
And, could be brought up by the
heirs.

>as a general rule, void marriage

can only be assailed by the
parties to the marriage as per
(AM No. 02-11-10 SC, Sec. 2 (a).

> collateral attack-means the

nullity of the marriage is not
the principal or main issue in a
case but it is necessary in the
resolution of the main issue.
Hence, the nullity of a marriage
can be brought up in a case of
SETTLEMENT OF ESTATE, (Case:
51
Domingo vs. CA, 226 DCRA
572) and in an action for
SUPPORT, HEIRSHIP, LEGITIMACY
or Illegitimacy, DISSOLUTION of
PROPERTY REGIME, CLAIM FOR
DEATH BENEFITS etc. (Case:
Ninal vs. Bayadog; de Castro
vs. de Castro, GR No. 160172,
Feb. 13, 2008).

> but, direct attack is necessary

for purposes of remarriage hence,
it is only the party seeking
remarriage who can file an action
for nullity of his marriage.

VD- there must always be a

direct proceeding; such marriage
could not be assailed collaterally.

5. V- there is no absolute
community of property.

VD- there is community

property.

6. V- the children are called

illegitimate children, except under
Art. 54

VD- * if conceived BEFORE

the annulment, the children
are legitimate.

* if conceived AFTER
Annulment they are
illegitimate.

52
> Take note: Once an action for
nullity of marriage on the ground of
psychological incapacity is DENIED, a
petitioner could not go to the Court
and file an action to declare his
marriage void on the ground of lack
of marriage license. He is already
barred by res judicata. The different
grounds for nullity of marriage did not
mean different causes of action, ( Case:
Mallion vs. Alcantara, GR No.
141528, October 31, 2006).

>Take note: A party could not invoke

good faith in saying that his marriage is
valid. Good faith in entering a marriage
is immaterial and it does not validate a
marriage. Hence, one could not say, I
believe that I was 18 when I got
married, therefore my marriage is valid”.
Only one instance where good faith of
the parties made their marriage valid,
i.e., when the parties believed that the
solemnizing officer is authorized when
in fact he is not, (Art. 35(2).

Other Suggested Cases to read:

Santos vs. Santos, 737 SCRA 637,
Republic vs. Cantor, 712 SCRA 1;
Republic vs. Granada, 672 SCRA
432

53
Art. 36. Void by reason of Psychological
Incapacity [ based from Canon 1095 par. 3]

“ A marriage contracted by any party,

who, at the time of the celebration, is
psychologically incapacitated to comply
with the essential marital obligations of
marriage, shall likewise be void even if
such incapacity becomes manifest only
after the solemnization. (as amended by
E.O. No. 227, July 17, 1987)

> Take note: the Family Code did not

give specific definition of what
psychological incapacity is. This is to
give leeway for the Courts to
appreciate the case on a “case to case”
basis. Jurisprudence and civilists
confined psychological incapacity to “the
most serious cases of personality
disorders clearly demonstrative of
an utter insensitivity or inability to
give meaning and significance to
the marriage”. Moreover, it refers to
no less than mental (not physical)
incapacity that causes a party to be
truly incognitive of the basic marital
covenants (as provided for under Art. 68-
71 as well as Art. 220, 221 and 225 of the
Family Code) that concomitantly must be
assumed and discharged by the parties
to a marriage. In short, it refers to the
inability of a party to the marriage to
comply with the essential marital
obligations because of psychological
reason- not insanity or mental
illness because an insane does not

54
know what he is doing while a
psychologically incapacitated person
knows or is aware of what he is doing
but simply, he cannot perform his
marital obligations because of
psychological reasons.

>Take note: Three essential

characters for Psychological
Incapacity to exist:

1. Juridical antecedent- it must

be existing at the time of
celebration of marriage. Rooted in
the history of the party, antedating
the marriage though made
manifest only during the marriage.

2. Gravity- must be serious.

Incapable of performing his
ordinary marital obligations.

3. Incurability- not curable; or

even if curable, it is beyond the
means of the party involved.
(Case: Santos vs. CA, G.R.
No. 112019 Jan. 4, 1995, 58
SCAD 17) [i.e. wife’s failure to
come home and communicate does
not constitute psychological
incapacity]

> In a more recent case, the SC said,

“for psychological incapacity to serve as
a ground to nullify the marriage, the
incapacity must consist of the
following: 1) true inability to commit

55
oneself to the essentials of marriage; 2)
this inability to commit oneself must
refer to the essential obligations of
marriage, the conjugal act, the
community of life and love, rendering
of mutual help, the procreation and
education of children ; and 3) the
inability must be tantamount to
psychological inability”, (Case: Yambao
vs. Republic and Yambao, GR No.
184063, January 24, 2011). In the
more recent [*case of Kalaw vs.
Fernandez, 745 SCRA 512, (2015), SC
relaxes once again the appreciation of
“psychological incapacity” by applying
the parameters set forth in the [*Case
of Ngo Te-vs. Yu Te, 579 SCRA 190,
Feb. 13, 2009].

> Take note: that even the

incapacitated person can file an action to
nullify his marriage. And one who is
declared psychologically incapacitated
can still marry again because
psychological incapacity is relative. The
pari delicto rule does not apply here,
(*Case: Halili vs. Halili and Republic,
GR No. 165424, June 9, 2009). [in
this case the RTC granted the petition but
was reversed by CA and CA’s decision was
affirmed by SC but upon MR, SC declared the
marriage void] In relation to this, take
note also of the (*Case: Velasco vs.
Velasco, GR No. 36075, February 16,
1995) where the SC nullified the
marriage when both parties are at

56
fault but the defendant’s (wife) fault is
graver.

> Take note: Expert testimonies of

psychiatrist or psychologist is not a
requirement or is not a condition sine
qua non in the determination of
psychological incapacity. The Court may
or may not consider said testimony and
may base its findings on the totality of
evidence presented, (*Case: Marcos
vs. Marcos, GR No. 136490, October
19, 2000). But, the SC also said, in a
more recent case that, expert testimonies
evaluating the behavioral pattern of the
person alleged to be psychologically
incapacitated are extremely helpful,
hence though not required, it is
nonetheless helpful to the Court,
(*Case: Matias vs. Dagdag, GR No.
109975, February 9, 2001).

> Take note: No need for a

Certification (stating his agreement or
opposition to the petition) from the OSG
before a case under Art. 36 be decided
by the Court. This requirement laid
down in the Molina doctrine ( how
psycho incapacity should be
appreciated), was already removed by
the New Rules on Marriage, (Case:
Rumbaua vs. Rumbaua, GR No.
166738, August 14, 2009). But,
prosecutors still participate for purposes
of determining whether collusion exists
between the parties and to determine
57
that the evidence presented by
petitioner are true and not fabricated.

>Take Note: of cases where SC

granted the petition under Art. 36

1. Chi Ming Tsoi vs. CA, 266

SCRA 325- where the SC ruled,
the refusal of the husband to
have sex with his wife even if he
is physically capable of doing so
is a manifestation of psychological
incapacity. The same ruling in
Tsoi vs. CA, 78 SCAD 57, where
SC said “ten months without sex is
enough evidence of serious
personality disorder for union
without sex is useless.”

2. Antonio vs. Reyes, GR No.

155800, March 10, 2006,
where SC ruled, wife’s defect of
being a congenital liar is a form of
psychological incapacity.

3. Te vs. Te, GR No. 161793,

February 13, 2009, where SC
declared the marriage of a wife
suffering from dependent
personality disorder while the
husband is suffering from
narcissistic and anti social
personality disorder.

58
 4. Socorro Reyes vs. Reyes, GR
No. 185286, August 18, 2010-
lack of personal examination and
interview of the respondent or
any person sought to be declared
as psychologically incapacitated do
not per se invalidate the
testimonies of the doctors. Neither
do their testimonies constitute
hearsay especially where there are
other sources of information such
as the child, siblings and in laws.

> Take note: of cases where the SC

found that psychological incapacity
does not exist.

1. Choa vs. Choa, GR No.

143376, Nov. 26, 2002- “mere
showing of irreconcilable
differences and conflicting
personalities in no wise constitute
psychological incapacity.”

2. Dedel vs. CA, GR No.

151867, January 29, 2004-
“disordered personality is not a
ground for declaring marriage
void. Sexual infidelity or
perversion and abandonment do
not constitute psychological
incapacity.

3. Siayngco vs. Siayngco, GR.

No. 158896, Oct. 27, 2004,-“an
unsatisfactory marriage is not a
59
void marriage. Whether or not
psychological incapacity exists
depends crucially on the facts of
the case.”

4. Republic vs. Hamano, GR No.

149498, May 20, 2004- “the
rule on psychological incapacity
applies even if the spouse is a
foreigner. The husband’s act of
abandonment is doubtlessly
irresponsible but it was not
proven to be due to some kind
of psychological illness.

5. Republic vs. CA and Molina,

GR No. 108763, February 13,
1997- “where SC laid down the
guidelines in determining
psychological incapacity. The
guidelines were relaxed in the
recent case of Ngo Te vs. Yu Te,
GR No. 161793, February 13,
2009.

6. Ting vs. Ting, GR No.

166562, March 31, 2009- No
case can be in “all fours” with
another case. Here there was
failure of the petitioner to prove
the defects of the party at the
time of celebration of marriage.

7. So vs. Valera, GR No.

150667, June 5, 2009,-
“psychologist’s testimony and
60
conclusion are not sufficiently in
depth comprehensive to warrant
the finding of psychological
incapacity. The facts were derived
solely from the testimony of the
petitioner whose bias cannot be
doubted.

8. Paz vs. Paz, GR No. 166579,

February 18, 2010- “being a
mama’s boy is not indicative of
psychological incapacity”.

9. Lim vs. Lim, GR No. 176464,

February 24, 2010, -the witness’
“global conclusion” was not
supported by psychological tests
properly administered by clinical
psychologist specially trained in
the test’ use and interpretation.

10. Ligeralde vs. Patalinghug,

GR No. 168796, April 15, 2010-
Sexual infidelity, emotional
immaturity and irresponsibility do
not constitute psychological
incapacity within the
contemplation of the law because
the psychologist failed to identify
the root cause thus was not
medically or clinically proven to be
incurable and permanent.

11. Toring vs. Toring, GR. No.

165321, August 3, 2010- failure
61
 to manage the family’s finances
resulting in the loss of the house
intended for the family does not
constitute psychological incapacity-
for it is still essential –although
from sources other than the
respondent’s spouse to prove the
root cause of the inability to
perform marital obligations.

12. Marable vs. Marable, GR

No. 178741, January 17, 2011,
where SC said, quarrels, financial
difficulties and womanizing are not
manifestation of psychological
incapacities. Same is true with,
sexual infidelity of the wife when
not shown to be existing before
the marriage, (Case: Ochosa vs.
Alano, GR No. 167459, January
26, 2011).

Art. 37- Incestuous Marriage, hence Void

“ Marriages between the following are

incestuous and void from the beginning,
whether the relationship between the
parties be legitimate or illegitimate:

1) between ascendants and

descendants of any degree; and
2) between brothers and sisters
whether of the full or half blood.

> this marriage is void because:

62
 1. it would tend to create
confusion of rights and duties
incident to family relations; 2) it
is abhorrent to the nature, not
only of civilized men but of
barbarous and semi-civilized
people and 3) such intermarriages
very often result in deficient and
degenerate offspring, which might
amount to the deterioration of
the race.

> refers to marriages between

closely related by blood in the
direct line whether legitimate or
illegitimate. Ex: parent-child;
grandfather-grand daughter and
between siblings, even if they
marry abroad and valid there
as such. Take note of Art. 15.

> Take note: marriages between

uncles and nieces and aunties and
nephews are not incestuous but
void because they are against
public policy.

Art. 38- Marriages against public policy

“ The following marriages shall be void from

the beginning for reasons of public policy:

63
1. between collateral blood relatives,
whether legitimate or illegitimate up to
the 4th civil degree; (first cousins)

2. between step parents & step children;

3. between parents-in –law and children

in law;

4. between the adopting parent & the

adopted child

5. between surviving spouse of the

adopting parents & the adopted child

6. between surviving spouse of the

adopted child & the adopter

7. between an adopted child and a

legitimate child of the adopter ;

8. between the adopted children of same

adopter

9. between parties where one, with the

intention to marry the other, killed that
other person’s spouse or his or her own
spouse. [from criminal motive to dispose
one’s spouse so the surviving spouse can
marry again]

> Take note: the nullity of

marriage under this relationship
hinges on the relationship of the
parties to the marriage. Against
public policy because public
policy frowns upon those who are
closely related by blood or artificial

64
relationship such as adoption
[where an artificial relationship
between adopter and adopted child is
created] from marrying each other.

> the enumeration is exclusive.

Hence, those not enumerated
therein are VALID marriages such
as:

1. between the adopted and

the parents of his adopter.
[because Adoption creates a
relationship between the
adopter and the child alone]

2. between adopted and

the illegitimate children of
his adopter.

3. between adopter and the

relatives of his adopted child

4. between the adopted

and the former spouse of
his adopter OR between the
adopter and the former
spouse of his adopted child.

5. between step brother and

step sister

>Take note: Marriage between

first cousins is no longer an
incestuous marriage but a
marriage against public policy.

> Take note: in the 9th instance,

the killing should be animated by
65
 the intention to marry another
person. No need of criminal
conviction. Mere preponderance of
evidence is sufficient.

Art. 39 – Prescriptive Period

“ The action or defense for the

declaration of absolute nullity of
marriage shall not prescribe. (amended by
EO 227 dated Juy 17, 1987 and further
amended by RA No. 8533 dated Feb. 23, 1989)

>No prescriptive period to declare

a void marriage void because a
void marriage produces no effect
at all. In fact, the judicial decree
merely confirms the nullity, non
existence or incipient invalidity of
the marriage.

> Take note: A subsequent

marriage of one of the spouses of
a prior void marriage is itself
void if contracted before the
prior marriage is declared void, (
Case: Wiegel vs. Sempio Diy,
143 SCRA 499).

> Take note: That before this

provision was amended by RA
No. 8533, when the ground for
declaration of nullity is
psychological incapacity, there is
a prescriptive period of ten (10)

66
 years if the marriage was
celebrated before the enactment
of the Family Code in Aug. 3,
1988, if after, no prescriptive
period was given. NOW, with RA
8533, there is no more
prescriptive period to declare
the marriage void on the
ground of psychological
incapacity even if the
marriage is solemnized before
Aug. 3, 1988.

> Take note also: NOW, only

the husband or the wife can file
an action to declare their marriage
void in view of Supreme Court
Resolution AM No. 02-11-12
SC, which took effect on March
15, 2003 and even the party
who is at fault may bring the
action to nullify his marriage
because the pari delicto rule will
not apply in nullity cases.
Therefore, the ruling in
[Cojuangco vs. Romillo, 167
SCRA 751], that a father can
file action to nullify the bigamous
marriage of his daughter to a
married man is no longer
controlling.

Art. 40- Void Subsequent Marriage

67
“The absolute nullity of a previous
marriage may be invoked for purposes of
remarriage on the basis solely of a final
judgment declaring such previous
marriage void.” [refers to final judgment not
to remarriage]

>** Take note: this rule [judicial

declaration of marriage as void first before
remarriage] is applicable only to
remarriages entered into AFTER the
effectivity of the Family Code, regardless of
the date of the first marriage, (Case:
Atienza vs. Brillantes, Jr., 243 SCRA
32[1995]). This rule DOES NOT apply to
marriages prior to the effectivity of the
Family Code [Case: Castillo vs. de Leon
Castillo, 789 SCRA 403] otherwise, it would
impair vested rights.

HISTORICAL BACKGROUND:

> The ruling of several cases relative to

this provision was like a pendulum. At one
time, the SC said, there is no need to declare
a marriage void in order to contract a second
marriage(Case: People vs. Mendoza and
People vs. Aragon decided in 1954 and
1957 respectively) and then on a later case,
SC said there is a need to declare a void
marriage void, ( People vs. Lipana, 33
SCRA 614). On a later case (Odayat vs.
Amante, 77 SCRA 338 decided in 1977), SC
went back to the ruling in the Mendoza and
Aragon case. Till, the popular Wiegel case
saying, there is a need for judicial declaration
68
of marriage. Unfortunately, the ruling in said
case was abandoned once more by the ruling in
the case of Yap vs. CA, 145 SCRA 229. And
this prompted the framers of the Family Code
to put to rest the issue. TODAY, the prevailing
doctrine is, if the marriage is void, the
only way that the party can marry again
is to have the first marriage declared
void, consistent to the ruling in the Wiegel
case.

> The meaning of Art. 40, was

explained thoroughly in the case
of Domingo vs. CA, GR No.
104818, Sept. 17, 1993), where
it made precise that a judicial
declaration of a void marriage is
necessary for remarriage. It
clarified also that the action is
not only necessary for
“remarriage”, it is also necessary
for other purposes such as,
liquidation, partition, distribution
and separation of property
between the spouses. The word
“solely” in the provision refers to
“final judgment “ and not for
“remarriage”.

> Take note: A person who

contracts a subsequent marriage
without his first marriage judicially
declared void is guilty of bigamy,
(Case: Carino vs. Carino, GR.
No. 132529, Feb. 2, 2001).
(Take note: also of the Bobis
69
vs. Bobis case, 336 SCRA 747,
lack of marriage license also )
Besides, in a more recent case,
the SC said “declaration of nullity
of marriage on the ground of
psychological incapacity under Art.
36, will not save the respondent
from the crime of bigamy if the
second marriage was contracted
before the declaration of nullity of
the first marriage, (Case: Myrna
Antone vs. Leo Beronilla, GR
No. 183824, December 8,
2010). ** Moreover, do not
forget the ruling in the case of
Go-Bangayan vs. Bangayan Jr.,
700 SCRA 702, where the
Supreme Court ruled that
Benjamin Bangayan Jr., did not
commit the crime of bigamy
because the parties to the
second marriage just signed a
purported marriage contract
without a marriage license.
However, in the more recent
case of Santiago vs. People,
G.R. No.200233, July 15, 2015,
the Supreme Court found Leonila
Santiago guilty of the crime of
Bigamy as an accomplice, even if
her subsequent marriage was
without a marriage license
because she and Nicanor Santos
when they contracted marriage
lied in their Affidavit of
Cohabitation that they live as
husband and wife for a period
of five(5) years when actually
70
they had known each other
for less than four(4) years.
The Supreme Court said, it “cannot
countenance petitioner’s illegal act
of feigning a marriage and, in the
same breath, adjudge her
innocent of the crime”.

> TAKE NOTE: of the distinctions

made by SC in the case of Morigo
vs. People, GR No. 145226, Feb.
6, 2004, [absence of marriage
ceremony] and the case of
Mercado vs. Tan, 337 SCRA
122, [absence of marriage license
was just adjudged as evidenciary in
nature]

Distinctions:

Morigo case: No bigamy was

committed because the SC found
that not all the elements of
bigamy are present i.e., no first
valid marriage,**(just the
signing of a marriage
contract) while in the Tan case,
the SC said, all the elements of
bigamy are present, **(no
marriage license therefore
void). In short, what could be
understood in those cases are, if
the ground for nullity is
“absence of ceremony”, then it
is as if no marriage took place or
no marriage at all, but if the

71
ground is “absence of marriage
license”, there is a marriage but
it is void.

> In sum and in view of Art. 40,

an action for declaration for
nullity of marriage is NOT a
prejudicial question in a
bigamy case unless the ground
is, any of the vices of consent,
because of the involuntariness
of one party to enter into the
first marriage.

>Take note: Distinction between

a “bigamous void” and
“bigamous voidable marriage”.

*in “bigamous void

marriage”, one spouse
marries again knowing fully
well that his/her own
wife/husband is still alive.
The good faith or bad faith
of the second wife/husband
is immaterial, i.e., from the
civil law aspect. While in
“bigamous voidable
marriage”, one spouse
marries again, thinking in
good faith that his/her
wife/husband is already
dead, when as a matter of
fact he/she is alive.

72
 > Take note: of bigamous marriage or the
existence of prior marriage:

>who may sue and when: by the returning

spouse- during his or her lifetime. OR, by
either party of the second marriage- during
the lifetime of the other.

Art 41. Declaration of Presumptive Death

“A marriage contracted by any person

during the subsistence of a previous marriage
shall be null and void, unless before the
celebration of the subsequent marriage,
the prior spouse had been absent for
four(4) consecutive years and the spouse
present had a well founded belief that
the absent spouse was already dead. In
case of disappearance where there is
danger of death under the
circumstances set forth under the
provisions of Art. 391 of the Civil Code,
an absence of only two(2) years shall be
sufficient.”

For purposes of contracting the

subsequent marriage under the preceding
paragraph, the spouse present must
institute a summary proceeding as provided
for in this Court for the declaration of
presumptive death of the absentee,
without prejudice to the reappearance of the
absent spouse”.

73
*Art. 391 - The following shall be presumed
dead for all purposes, including the division
of estate among heirs:

1. a person on board a vessel lost during

a sea voyage or an aeroplane which
is missing, who has not been heard
for four years (now two years in
the Family Code) since the loss of
the vessel or aeroplane.
2. a person in the armed forces who
has taken part in a war, and has
been missing for (4) years (now
two years in the FC) ;
3. a person who has been in danger of
death under other circumstances
and his existence has not been
known for four (4) years, ( now two
(2) years in the Family Code).

> Take note: effect of reappearance,

i.e., the subsequent marriage is
terminated (but) only upon the
execution of an Affidavit of
Reappearance of the reappearing
spouse to be registered with the
Office of the Local Civil Registrar
where the present and the
subsequent spouse reside. This is
what you call “bigamous but valid
marriage”. Bigamous because of the
subsistence of the first marriage but
valid because, of the judicial
declaration of presumptive death.

> Take note: concept of “well

founded belief that the absent
spouse is already dead.” “Well
founded belief” means, the exercise
of that degree of due diligence
74
required in searching a missing
spouse, (Case: Republic vs.
Nolasco, 220 SCRA 20, petition of a
seaman was denied because of his
failure to conduct a search for his missing
wife ). Same is true where only a
brgy. Captain was presented,
without even presenting his in –laws
who knew of the whereabouts of the
wife, or the persons whom he made
inquiries. (Case: Republic vs. CA,
GR No. 159614, December 9,
2005).

> Take note: the judicial

declaration of presumptive death is
mandatory only for purposes of
remarriage. The requirement of
“well founded belief” that the
absent spouse must have already
been dead will apply only if the
marriage took place after the
effectivity of the Family Code on
Aug. 3, 1988 and the
disappearance also took place
during such period. If the marriage
took place before the effectivity of
the Family Code and the
disappearance also happened
during said period, the applicable
law is the Civil Code. Under Art.
390 of the Civil Code, judicial
declaration of presumptive death
is NOT necessary for remarriage,
but only for the taking of necessary
precautions for the administration of
the estate of the absentee, (Case:

75
 Angelita Valdez vs. Republic, GR
No. 180863, Sept. 8, 2009). For
remarriage, what the Civil Code
requires only are: 1) the spouse has
been absent for seven(7) consecutive
years at the time of the second
marriage; and 2) the present spouse
does not know his/her former spouse
to be living such that said spouse is
reputed to be dead and he/she
believes him to be so at the time of
the celebration of the second
marriage.

> In the Case of Republic v.

Pulanco GR No. 94053 Mar 17,
1993, SC provided for the
REQUISITES for a spouse to be
declared presumed dead:

1. absentee spouse missing for four

(4) consecutive years or two (2)
consecutive years as the case
maybe.
2. present spouse rushes to marry

3. present spouse has a well founded

belief that the absentee is dead
and has exerted his best to search
with diligence the absentee spouse

4. present spouse initiates a summary

proceeding for the declaration of
presumptive death of the deceased.

>Take note: the decision of the RTC

declaring a spouse “presumptively dead” under

76
this Art. is not appeallable and immediately
executory because this falls under the
Summary Judicial Proceedings in the Family
Law, (Case: Republic vs. Bermudez-Lorino,
GR No. 160258, January 19, 2005) and
there is no reglementary period to perfect an
appeal consistent with Art. 247 of the Family
Code. If at all, an aggrieved party can file a
petition for Certiorari (for grave abuse of
discretion) with the Court of Appeals and the
decision of CA can be raised to the Supreme
Court on petition for review on certiorari under
Rule 45 of the Rules of Court, (Case:
Republic vs. Tango, GR No. 161062, July
31, 2009)

** Take note: the mere reappearance

of the absentee spouse does not
terminate the subsequent marriage,
(Case: SSS vs. Jarque Vda, de Bailon,
485 SCRA 376[2006]). The
reappearance of the presumptively dead
spouse will cause the termination of
the subsequent marriage when all the
conditions enumerated under Art. 42 of
the Family Code are present as
enunciated in the case of Santos vs.
Santos, 737 SCRA 637[2014]). These
requisites are:

1.the non existence of a

judgment annulling the previous
marriage or declaring it as void
ab initio.

2.recording of an Affidavit of
Reappearance, [stating the fact
and circumstances of
77
 reappearance with the Civil
Registry- where the parties of the
subsequent marriage reside.

3.due notice to the spouses of

the subsequent marriage of the
fact of reappearance and,

4. fact of reappearance must

either be undisputed or judicially
determined.

Art 42- “The subsequent marriage ( referring to

art. 41) is automatically terminated by the
recording of the affidavit of reappearance of the
absent spouse, unless there is a judgment
annulling the previous marriage or declaring it
void ab initio.”

>the operative act that terminates the

subsequent marriage is the recording
of the affidavit of reappearance
executed by the reappearing spouse
or any interested party such as their
children, parents of both spouses or
even by the subsequent spouse. No
recording, the subsequent marriage
remains valid and subsisting.

>Take note: Subsequent marriage is

valid if: (requisites)

1. 1st spouse must be absent for 4 years or 2

years as the case may be.

78
 2. present spouse must not know the
whereabouts of the 1st spouse.

3. well founded belief that the absent spouse

is already dead.

4. there must be summary action of

declaration of presumptive death

5. there must be final judgment declaring the

absent spouse “presumptively dead”.

**>Query: What is the remedy of a spouse who

was declared presumptively dead when in fact he/she
is not dead and there was fraud in declaring him/her
as such. ANSWER: to file an action to annul the
judgment declaring him/her as presumed dead. The
execution of an affidavit of reappearance is not
sufficient, (Santos vs. Santos case). Query:
Supposing the spouse in bad faith has contracted
a subsequent marriage, will he be liable for
bigamy. Answer: YES.

Art 43- effects of termination of subsequent

marriage

“ The termination of a subsequent

marriage referred to in the preceding
article shall produce the following effects:

1. the children of the subsequent

marriage conceived prior to its
termination shall be considered
legitimate and their custody and
support in case of dispute shall be

79
decided by the Court in a proper
proceedings.

2.the absolute community of

property or the conjugal partnership
as the case may be, shall be
dissolved and liquidated, but if
either spouse contracted such
marriage in bad faith, his or her
share of the net profits of the
community property shall be
forfeited in favor of :

a. common children

b. or if there are none, the

children of the guilty spouse by a
previous marriage or

c. if in default, given to the

innocent spouse

3. donations by reason of marriage

remain valid, except if the donee
contracted the marriage in bad faith,
such donations made to said donee
are revoked by operation of law.

4. the innocent spouse may revoke

the designation of the other spouse
who acted in BF as beneficiary in any
insurance policy, even if such
designation be stipulated as
irrevocable.

5. the spouse who contracted the 2nd

marriage in BF shall be disqualified
to inherit from the innocent spouse
by testate or intestate succession.
80
 > the right to dispute
reappearance is given to the 2nd
spouse.

> Take note: If both parties to

the subsequent marriage are in
Bad faith, the marriage shall be
void ab initio and all donations
propter nuptias and testamentary
dispositions made by one in favor
of the other will be revoked by
operation of law. And, since the
marriage is void, there will be no
dissolution and liquidation of the
conjugal partnership or absolute
community as the property
relations will be governed by the
rules on co-ownership under Art.
147 or 148 of the Family Code.

Art 44- self explanatory

“If both spouses of the subsequent

marriage acted in Bad faith , said marriage
shall be void ab initio, and all donations
given by reason of marriage and
testamentary depositions made by one in
favor of the other are revoked by operation
of law.

Art 45- Grounds for Annulment of Marriage (6)

(speaks of Voidable Marriages or those which are valid

81
until annulled). The GROUNDS are exclusive, i.e., only
those which are mentioned under Art. 45 and 46 of the
Family Code

“ A marriage may be annulled for any of

the following causes, existing at the time
of the marriage: (if not existing, they could
not be considered grounds)

1. That the party in whose behalf it is

sought to have the marriage annulled
was 18 yrs. of age or over but below 21,
and the marriage was solemnized w/o the
consent of

a. parents
b. guardian or
c. persons having substitute parental
authority over the party (in this order)

unless upon attaining the age of 21, such

party freely cohabited w/ the other and
both lived together as husband and
wife;

> refers to non age persons

> Who may sue and when:

a. before party becomes 21- her or his

parent
b. after reaching 18 or 20- the
partyconcerned - within 5 years
after reaching the age of 21

2. that either party was of unsound mind,

unless such party after coming to reason,

82
freely cohabited w/ the other as Husband
and Wife

> refers to unsoundness of mind

> who may sue and when: the spouse who
does not know of the other’s insanity or the
relatives or guardians of the insane- at
anytime before the death of either party

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 w/ the other as husband and
wife

> who may sue and when: the injured

party- within five(5) years after the
discovery of the fraud.
> if both are in pari delicto, none of them
can sue

4. that 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 & wife;

> who may sue and when: the injured

party- within five (5) years from the time
the force or intimidation ceased.

> Take note of the (case of Villanueva

vs. CA, GR. No. 132995, October 27,
2006)- where a security guard said, his
consent was vitiated because of fear that he
83
 might be harmed by NPA if he will not
marry a girl, is found by SC to be
unfounded.

5. that either party was physically

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

> refers to impotency or the inability to

copulate as distinguished from sterility-
which is the inability to procreate. It must
be existing already at the time of
marriage. If not, as when it happened only
after marriage, then it is not a ground.

>who may sue and when: the injured

party- within five(5)years after the
celebration of marriage

> Take note of the Doctrine of Triennial

Cohabitation- which says “if the wife
remains a virgin after living together with her
husband for THREE (3)YEARS, the
presumption is that the husband is impotent,
and he will overcome such presumption
(because the general rule is, potency is
presumed).

6. that either party was afflicted with

sexually transmissible disease found to be
serious and appears to be incurable.

>sexually transmissible disease found to be

serious and appears to be incurable ex:
AIDS, syphilis etc.

84
 > who may sue and when: the injured
party- within five (5) years after the
celebration of the marriage.

> Take note: drug addiction, habitual

alcoholism, homosexuality and lesbianism can
be a ground for annulment of marriage only
when it already existed at the time of
marriage and was concealed by the other
party. Otherwise, they are not.

Art. 46- what constitutes fraud

“ Any of the following circumstances

shall constitute fraud referred to in
number 3 of Art. 45:

1. Non disclosure of a previous

conviction by final judgment of the
other party of a crime involving
moral turpitude-(or crimes where
penalty imposed is more than 6 years of
imprisonment).

2. concealment by the wife of the

fact that at the time of the marriage,
she was pregnant by a man other
than her husband.

> could be appreciated as fraud

only when concealment of the
pregnancy is still very possible.
Not when it is very obvious or
apparent that the woman is
already pregnant (Case to case
basis as when a woman is
naturally plump then her

85
 pregnancy at four months could
still be concealed.)

3.concealment of a sexually
transmissible disease regardless of
its nature, existing at the time of the
marriage.

4. concealment of drug addiction,

habitual alcoholism, homosexuality
or lesbianism existing at the time of
marriage

No other misrepresentation or deceit as to

character, health, rank, fortune or chastity shall
constitute such fraud as will give grounds for
action for the annulment of marriage.”

>the manifestation of fraud contemplated

by law is exclusive- it does not include
misrepresentation as to character, health,
rank, fortune or chastity/

> pathological lying is now considered as

psychological incapacity, (Case: Antonio
v. Reyes Mar 10 2006)

>concealment of premarital sex w/

another is not included.

Art 47- period of prescription and who may file

> discussed already in Art. 45

86
 > take note that the suing parties are,
the parties or the in some cases their
parents, their guardians or others who
exercise substitute parental authority
over anyone of the parties. (in that
order): Prevalent period – 5 years

Art 48- Rules of Procedure in Annulment and

Nullity of Marriage

“ In all cases of annulment or

declaration of absolute nullity of
marriage, the Court shall order the
prosecuting attorney or fiscal assigned to
it to appear on behalf of the State to take
steps to prevent collusion between the
parties and to take care that evidence is
not fabricated or suppressed.

In the cases referred to in the preceding

paragraph, no judgment shall be based
upon a stipulation of facts or confession
of judgment.”

>Take note: that the present

procedural rules in annulment
and declaration of nullity of
marriage are governed by A.M.
No. 02-11-10-SC, the New
Rules on Marriage which
took effect on March 15, 2003.

87
> Full blown trial should be had.
Summons must be given to the
respondent who is required to file
his ANSWER within 15 days
from receipt of the complaint. If
he does not file any answer, the
Court will order the Public
Prosecutor to conduct an
investigation whether there exists
collusion between the parties. If
Answer id filed, set the case for
preliminary conference and pre
trial. Order of trial should be
followed. No default in these
cases. The Court could not
also render judgment based
on stipulation of facts and
confession of judgment.

> Participation of the State

through the Public Prosecutor.

1. to represent the State;

2. to conduct collusion
investigation
3. to participate during the
hearing in order to see to it
that evidence is not
fabricated or suppressed,
(Case: Republic vs. Iyoy,
GR No. 152577, Sept. 21,
2005) and the )Case of:
Corpus v. Ochoterena 453
SCRA 446)

88
 >Take note: partial voluntary
separation of property agreed
through a compromise agreement
during the pendency of the case
is valid. The participation of the
fiscal is not necessary here and
this in itself is not an indication of
collusion, (Case: Maquilan vs.
Maquilan, G.R. No. 155409,
June 8, 2007).

>During the pendency of the

case, the support of the spouses
and the custody and support of
the children shall be governed by:

a. agreement of the parties

b. in the absence of an
agreement, then from the
conjugal property or
absolute community.
Visitation rights should
also be given.
Provisional orders and
protection orders may be
issued by the Court,
with or without hearing.

Art 49- Outline on what the court should do

during the pendency of the action for annulment
and declaration of nullity.

“During the pendency of the action and

in the absence of adequate provisions in
a written agreement between the spouses,
the Court shall provide for the support
89
 of the spouses and the custody and
support of their common children. The
Court shall give paramount consideration
to the moral and material welfare of said
children and their choice of the parent
with whom they wish to remain as
provided for in Title IX. It shall also
provide for appropriate visitation rights
of the other parent.”

>Take Note of the following Rules

on custody of children:

1. below 7 yrs. old- children

cannot be separated from the
mother except If there is a
compelling reason to separate the
child from mother. (Art. 213 Family
Code) Take note: adultery is a
compelling reason.

2. if 7 yrs old and above- child

has the right to choose w/c of
his/her parents (not absolute)
because the court can disapprove
the choice.

> court can exercise its discretion taking

into consideration the best interest of the
child.

Art. 50. Decree of Annulment and Nullity of

Marriage:

90
“The effects provided for in paragraphs
(2), (3), (4) and (5) of Art. 43 and in Art.
44 shall also apply in proper cases to
marriages which are declared void ab
initio or annulled by final judgment
under Art. 40 and 45.

The final judgment in such cases

shall provide for the liquidation, partition
and distribution of the properties of the
spouses , the custody and support of the
common children, and the delivery of their
presumptive legitimes, unless such
matters has been adjudicated in previous
judicial proceedings.

All creditors of the spouses as well

as of the absolute community or the
conjugal partnership shall be notified of
the proceedings for liquidation.

In the partition, the conjugal

dwelling and the lot on which it is
situated, shall be adjudicated in
accordance with the provisions of Art. 102
and 129. [ provide for inventory of
properties and what are those left to be the
exclusive properties]

> Take note: Decree of annulment or

nullity of marriage is issued only after
the decision becomes final. It shall
provide for : liquidation, partition and
distribution of properties, support of
spouses, custody and support of children
and delivery of prospective legitime or
[ that part of the testator’s property which

91
could not be disposed of because the law
has reserve it for the compulsory heirs].

> Query: Does the obligation to give

support subsist when a marriage is
annulled. No, between the spouses
because it ceases already but the children
should be supported by them.

> The partition and distribution of the

properties and the delivery of
presumptive legitimes must be recorded
in the Office of the Local Registrar and
in the Register of Deeds otherwise, 1) it
will not bind 3rd persons and 2) the
subsequent marriage of the parties will
be void, consistent with Art. 53 of the
Family Code. Take note however
that the rules provided under art. 50
and 51 are applicable only in
marriages declared void under Art.
40 and 45. Rules on partition and
liquidation do not apply in
marriages declared void under Art.
36. Moreover, it should be noted that
“it is not necessary to liquidate the
properties of the spouses in the same
proceedings for declaration of nullity of
marriage”, (Case: Dino vs. Dino, GR
No. 178044, January 19, 2011).

>Instances where void marriage may

produce legitimate children and
these are the children conceived and
born under the following instances:

92
 1. before the annulment of
voidable marriage became
final;
2. before declaration of nullity of
marriage under Art. 36 became
final;
3. born of subsequent void
marriage under Art. 53.

> Query: Who pays for attorney’s fees

and other expenses in annulment cases :
It depends. If the action prospers, the
absolute community but if the marriage
is not annulled, whoever brought the
action.

> Query: Can damages be awarded in

these cases: Yes, but only in the
following cases:

1. if there is fraud, force and

intimidation.
2. where marriage is
annulled/declared void on the
ground of impotency, insanity,
3. in bigamous or polygamous
marriages or incestuous
marriages
4. if the solemnizing officer has
no authority and one party
knows about it but concealed
the same from the other party.

93
Art. 51.- “In said partition, the value of the
presumptive legitimes of all common children,
computed as of the date of the final judgment
shall be delivered in cash, property or sound
securities, unless the parties, by mutual
agreement judicially approved, had already
provided for such matters.”

> answers how presumptive legitime

be delivered to the children.

Art. 52- “the judgment of annulment or of

absolute nullity of 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
person.”

> import of registration

Art. 53- “Either of the former spouses may

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

Art. 54 - “Children conceived or born before

the judgment of annulment or absolute nullity
94
of the marriage under Art. 36 has become final
and executory, shall he considered legitimate.
Children conceived or born of subsequent
marriage under Art. 53 shall likewise be
legitimate.”

Other Suggested Cases to read: Castillo

vs. de Leon-Castillo, 789 SCRA 503; Domingo
vs. CA, 226 SCRA 572; Jarillo vs. People, 622
SCRA 24; Chan-Tan vs. Tan, 613 SCRA 592;
Lasanas vs. People, 727 SCRA 98

LEGAL SEPARATION

> TWO KINDS OF DIVORCES

1. Absolute divorce- (divorce a

vinculo matrimonii- here marriage
is dissolved.
2. Relative divorce- (divorce a
mensa et thoro – marriage is not
dissolved.

BRIEF HISTORY OF DIVORCE AND LEGAL

SEPARATION IN THE PHILIPPINES:

1. Under the Siete Partidas- this is our law until

Mar. 11, 1917 when Act No. 2710 (the Old
Divorce ) was enacted. It merely provided for
Legal Separation.

95
2. Under Act 2710- recognized only two grounds
for absolute divorce and impliedly ruled out
relative divorce, and these are: a) adultery on the
part of the wife and b.) concubinage on the part
of the husband. In both instances there should be
criminal conviction.

> Take note: Under this law, the rule is:

1) if granted validly before Aug.30, 1950
(effectivity of the Civil Code)- it is still valid
until today. 2) if pending merely on Aug. 30,
1950, the same would continue until final
judgment, even if the final judgment was
rendered after Aug. 30, 1950.

3. During the Japanese occupation- Executive Order

141 broadened the grounds for absolute divorce.
This law was effective until Oct. 23, 1944- when
the Commonwealth government was established.
During the commonwealth government, EO 141
was repealed and Act. No. 2710 was revived.

> Take note of the Rule: 1) if absolute

divorce is granted validly before Oct. 23,
1944, it continues to be valid. 2) if merely
pending on Oct.23, 1944, the action would
not be allowed to continue except if the
ground is adultery on the part of the wife and
concubinage on the part of the husband.

4. The Old Divorce Law (Act 2710) was in turn

repealed by the New Civil Code.

5. VALIDITY OF ABSOLUTE DIVORCE obtained

by Filipinos before the New Civil Code, (Aug. 30,
1950)

RULES:

96
 1. if obtained in the Philippines- valid
provided the courts had proper
jurisdiction.
2. if obtained abroad:

1. VALID-provided that the foreign

court has jurisdiction over the parties
and over the subject matter and the
grounds are adultery on the part of
the wife and concubinage on the part
of the husband.

2. VOID- if either or both of the

conditions are absent.

6. ABSOLUTE DIVORCE TODAY (without prejudice to

Muslim Divorce Law)

RULES: If the action is brought in a

FOREIGN COURT:

1. between Filipinos- it will not be

recognized in the Phil. even if
allowed by said foreign court on
whatever grounds. (Take note of our
conflict rules, Arts. 15 and 17)

2. between foreigners- the foreign

decree will be recognized here if
these two conditions concur 1.) the
foreign court has jurisdiction to grant
absolute divorce and 2) said divorce
is recognized as valid by the personal
law of the parties involved.

97
Art 55- Grounds for Legal Separation : (10)

“ A petition for legal separation may be

filed on any of the following grounds:

1. repeated physical violence,

grossly abusive conduct directed against
the petitioner, a common child or child of
the petitioner.

2. Physical violence or moral

pressure to compel the petitioner to
change religious or political affiliation

3. attempt of respondent to corrupt

or induce the petitioner, a common child,
or a child of the petitioner to engage in
prostitution, or connivance in such
corruption or inducement;

4. Final judgment sentencing the

respondent to imprisonment of more than
6 years even pardoned;

5. drug addiction or habitual

alcoholism;

> can be a ground only if they

occur during the marriage. If not,
then it could not be a ground. If
concealed, then it is fraudulent.

6. lesbianism or homosexuality of
the respondent.

> must occur during marriage. If

known prior thereto, it is not a
ground. If it is concealed, it is a
98
 ground for annulment of marriage as
this constitutes fraud and this could
also be a ground for declaration of
nullity of marriage under Art. 36 of
the FC, if existing before the
marriage – anchored on psychological
incapacity which is both grave and
incurable.

7. contracting by the respondent of

a subsequent bigamous marriage whether
in the Philippines or abroad;

8. sexual infidelity or perversion

(adultery and concubinage under the
Civil Code)

*criminal conviction of adultery or

concubinage is not required for legal
separation and this could be proven
by mere preponderance of evidence,
(Case: Gandionco vs. Hon.
Penanranda et.al. GR No. L-
72984, Nov. 27, 1987). Take
note: other acts of sexual infidelity
short of adultery or concubinage are
enough so long as said act
constitute a clear betrayal of the
trust of one spouse. A single act of
sexual intercourse with another
woman is already a ground for legal
separation.

9. attempt by the respondent

against the life of petitioner

> criminal conviction is not required

but it should be seen to it that said
attempt is not justified by self
99
 defense or that the spouse attacked
was caught in flagrante delicto
having carnal knowledge with
another man or woman.

10. abandonment of petitioner by

respondent without justifiable cause for
more than one year

> legal separation is otherwise

known as relative divorce.
Marriage is not dissolved and
there is nothing more than a
separation from board and bed
(a mensa et thoro).
> grounds are exclusive and need
not exist prior to the marriage
as they usually occur after the
marriage.
> child here means child w/c are
by nature and by adoption

> Take Note: Distinctions

between Annulment and Legal
Separation:

1. AN- the marriage is

defective at the very
beginning.

LS- there was at the

beginning NO DEFECT in the
marriage.

2. AN- the causes must

already be existing at the time
of marriage.

100
 LS- causes arise AFTER the
marriage celebration.
3. AN- there are 7 grounds
LS- there are 10 grounds

4. AN-it dissolves the marital

bond. Parties are free to marry
again

LS- the marriage remains

5. AN- from the viewpoint of

Private International Law, the
grounds are generally those
given by the law where it was
celebrated (lex loci
celebrationis).

LS- the grounds are those

provided by the National
Law of the parties.

> Query: If a wife filed a case for

legal separation against her husband on
the ground of concubinage, can she
during the pendency of the case, file
likewise a criminal case for
concubinage? Ans. YES. Query: What
will happen to the legal separation
case? Ans. It will be SUSPENDED until
there is judgment on the concubinage
case . Reason: Her cause of action in
the legal separation case arises from
the crime charged, which is bigamy.
Take note: This is different in the case
of a PREJUDICIAL QUESTION- because
in the latter, the civil action should be
resolved first, before the criminal action
101
 is resolved. In short, in suspension of
action, the CRIMINAL CASE should be
resolved first, while in the case of
Prejudicial question, the CIVIL CASE is
resolved first. Thus, inorder not to be
confused, the general rule is, “where
both a criminal and civil case
arising from the same facts are filed
in court, the CRIMINAL case will
always take precedence.” The
exceptions are: 1.) the civil case is an
independent civil action under Art. 32,
33, 34 and 2177 of the Civil Code and
2.) where there exists a prejudicial
action in the civil case.

Art. 56- Defenses in legal separation

“The petition for legal separation shall be

denied on any of the following grounds:

1. when the aggrieved party has

condoned the offense or act complained
of.

> condonation-is the act of forgiving

and is given after the fact.

> Take note: having sexual

intercourse with one’s spouse after he
gave a ground for legal separation is
condonation, (Case: Bugayong V
Ginez (100 Phil. 616)

2. When the aggrieved party has

consented to the commission of the
offense or act constituting the grounds
for legal separation;
102
 > consent is given before the
commission of the act that gives rise
to the ground for legal separation.

3. where there is connivance (corrupt

consenting) between the parties in the
commission of the ground for legal
separation;

> there is connivance when the

spouse participated in the downfall of
the other, like providing actively the
opportunity for the wrong doing
directly or indirectly.

4. where both parties have given

ground for legal separation (in pari
delicto). This is also called
recrimination.

> there is recrimination when both

parties are at fault or have given
ground for legal separation.

5. where there is collusion between

the parties to obtain the decree of legal
separation or;

> collusion- refers to the

arrangement between the spouses
to obtain a decree of legal separation
by secret maneuvers or pretensions
to make it appear that a valid
ground appears even if there is
none.

6. where the action is barred by

prescription. ( action prescribes in 5
yrs. after the occurrence of the cause)
103
 > prescription- refers to the loss or
extinction of the right to file an
action due to the lapse of time fixed
by the law.

> Take note: if prescription is

apparent from the allegations in the
complaint, the Court can motu propio
dismiss the case. The same is true
when prescription becomes manifest
during the trial, even when not raised
as a defense, (Case: Brown vs.
Yambao, 102 Phil 968)

> Take note: death of a party abates

an action for legal separation, this is so-
because this is purely a personal action
(separation from board & bed) Case:
Lapuz Sy vs. Eufemio 43 S 177).

Art. 57 – Prescriptive period.

“ An action for legal separation shall

be filed within five (5) years from the
occurrence of the cause.”

Art. 58 – “An action for legal separation shall in

no case be tried before six months shall have
elapsed since the filing of the petition”

104
 > this is what you a call the “six month
cooling off period. And, it is a
mandatory requirement, non compliance
of which renders the decision infirm,
(Case: Pacete vs. Carriaga, 231
SCRA 321). Take note though that
what is prevented from being heard is
the merits of the case. During the
cooling off period, the Court can hear
other incidents to the marriage such as
custody of children, support pendente
lite of the children and alimony.

> this is to allow parties to

reflect or contemplate their
positions, reflect and allow
themselves to heal.

> Rule: if within this period, the

parties reconcile- petition will be
dismissed. Even after a decree of
legal separation or judgment is
made, parties can reconcile and
the court can set aside the said
decree.

Art 59- What the Court should do

“No legal separation may be decreed

unless the court has taken steps towards
the reconciliation of spouses and is fully
satisfied, despite such efforts, that
reconciliation is highly improbable.”

105
 > to preserve the marriage

Art. 60 –

“ No decree of legal separation shall

be based upon a stipulation of facts or
a confession of judgment.”

In any case, the Court shall order the

prosecuting attorney or fiscal assigned to
it to take steps to prevent collusion
between the parties and to take care
that the evidence is not fabricated or
suppressed.”

> Take Note: But, if there are other evidence

apart from the confession of judgment, legal
separation decree may be issued. (Case: de
Ocampo vs. Serafina Florenciano GR No.
K13553 Feb. 25, 1960

>speaks of the two task of the

prosecutors.

> Summons and a copy of the

Complaint shall be furnished to the
defendant, who is directed to file his/her
Answer within fifteen days from receipt
thereof. If he/she does not answer,
no declaration of default, (Case:
Macias vs. Judge Ochotorena, July
30, 204). Instead, the Court should
direct the public prosecutor to conduct
whether collusion exists between the
106
 parties and submit a report to the
Court regarding this matter. The fiscal
whether or not the defendant appears
should take part in the trial.

Art. 61 –

“After the filing of the petition for legal

separation the spouse shall be entitled to
live separately from each other.

The Court, in the absence of a written

agreement between the spouses, shall
designate either of them or a 3rd person to
administer the absolute community or
conjugal partnership property. The
administration appointed by the Court
shall have the same powers & duties of a
guardian under the Rules of Court.”

Art. 62 – this is in connection w/ Art 49

”During the pendency of an action for legal

separation, the provisions of Art. 49
(support of the spouse and the children),
shall likewise apply to the support of the
spouses and the custody and support of
their common children”.

Art 63- effects of legal separation

107
“ The decree of legal separation shall
have the following effects:

1. The spouses shall be entitled to

live separately from each other,
but the marriage bond shall not
be severed;

2. The absolute community or the

conjugal partnership shall be
dissolved and liquidated but the
offending spouse shall have no
right to any share of the net
profits earned by the absolute
community or conjugal
partnership which shall be
forfeited in accordance with the
provisions of Art. 43(2); i.e., [in
favor of the common children or if
there be none, the children of the
guilty spouse by a previous
marriage or in default of children,
the innocent spouse]

3. The custody of the minor

children shall be awarded to the
innocent spouse subject to the
provisions of Art. 213 of this
Code; [ parental authority shall
be exercised by the parent
designated by the Court –taking
into account relevant
consideration, especially the
choice of the child over 7 years
of age, unless the parent chosen
is unfit. No child under 7 years
of age shall be separated from
the mother unless the Court

108
 finds compelling reason to order
otherwise.

4. The offending spouse shall be

disqualified to inherit by
intestate succession. Moreover
provisions in favor of the
offending spouse in the will of
the innocent spouse shall be
revoked.

>Take note: that each of the

spouses can still be charged of
bigamy/ adultery/concubinage if
said acts are committed.

> Take note: the revocation of

donation or designation of the
offending spouse as a beneficiary
in the insurance policy is
VOLUNTARY [ in annulment of
marriage, the institution of the guilty
spouse as an heir in a Will is revoked
by operation of law] the donation is
on the part of the innocent
spouse. If he/she does not, then
be it. The revocation should be
recorded in the Office of the
Register of Deeds of the place
where the properties are located
and that, the revocation of
offending spouse as the
beneficiary in the insurance
policy must be upon a WRITTEN
NOTIFICATION to the insured.

109
 The action for revocation
prescribes after five years
from the time the Decree of
Legal Separation becomes final.

Art. 64 – Other effects of legal separation

“ After the finality of the decree of

legal separation, the innocent spouse
may revoke the donations made by
him/her to the offending spouse as well as
the designation of the latter as the
beneficiary in any insurance policy even if
much designation is stipulated as
irrevocable. The revocation of the
donations shall be recorded in the
registries of property in the place where
the properties are located. Alienations,
liens and encumbrances registered in
GOOD FAITH before the recording of the
complaint for revocation in the registries
of property shall be respected. The
revocation of or change in the
designation of the insurance beneficiary
shall take upon written notification
thereof to the insured.

The action to revoke the donation

under this Article must be brought within
five years from the time the decree of
legal separation has become final.”

110
 *already explained in the preceeding
article

Art 65 – Effects of Reconciliation

“If the spouses should reconcile, a

corresponding joint manifestation under
oath duly signed by them shall be filed
with the Court in the same proceedings
for legal separation.

> Anytime the spouses can reconcile

Art 66- Consequences:

“The reconciliation referred to in the

preceding article shall have the following
consequences:

1. The legal separation proceedings

if still pending shall be terminated in
whatever stage

2. The final decree shall be set aside

but the separation of property and
any forfeiture of the share of the
guilty spouse already effected shall
subsist, unless the spouses agree to
revive their former property
regime.” [ Take note however of the
provision found in the New Rules on
Marriage (SC En Banc Resolution No. 02-11-
10-SC i.e., Sec. 23(e) and Sec. 24 thereof,

111
which took effect on March 15, 2003) which
allows the spouses to adopt another
property regime of property relations
different from that which they have prior to
the filing of the Petition for Legal 0Family
Code. No provision of the Family Code
sanctions the use of another property
regime after reconciliation. It is opined
that the New Rules cannot amend the
Family Code because the latter is a
substantive law while the former is a
procedural law- consistent with the Rules
on Statutory Construction. Besides, to allow
the parties to enter into another property
regime after reconciliation will run in conflict
with Articles 88 and 107 of the Family
Code providing- that the regime of
absolute community and the conjugal
partnership of gains shall commence only
at the precise moment of the celebration of
the marriage- any stipulation, express or
implied is void).

> the Decree of Legal Separation can be

set aside even after the preparation of
the ground to appeal or even if the
decision has become final and
executory. Reason: marriage bond is
not severed. Joint manifestation of
Reconciliation is the only thing needed.
Take note: The court order containing
the reconciliation of the parties shall be
recorded with the proper Office of the
Local Civil Pegistrar.

> Take note: that the parties may

AGREE to REVIVE the property regime
that binds them prior to the legal
112
 separation. The said agreement which
must be under oath should contain the
following: 1) properties to be contributed
anew to the restored regime 2) those
properties retained by them as their
separate properties and 3) the names of
their respective creditors, their
addresses and the amounts owing to
each. A motion to Revive the Former
Property Regime should be filed with the
Court for its approval. The Court Order
(after hearing) approving the Motion
should be recorded with the Office of
the Register of Deeds where the
properties are located. Creditors who
are not named in the Agreement shall
not be prejudiced.

Art. 67 – “ The agreement to revive the former

property regime ( if they prefer) must be
executed under oath and shall specify:

a. the properties to be contributed anew to

the restored regime;

b. properties to be retained as separate

properties of each spouse; and

c. the names of all creditors / addresses

and amounts owing to each.

xxx xxx xxx

> succeeding paragraph is

explained above.
113
ESSENTIAL MARITAL OBLIGATIONS

Art. 68- Rights and Obligations of the Husband

and the Wife

“ The husband and the wife are obliged

to live together, observe mutual love,
respect and fidelity and render mutual
help and support.”

>Take note: failure to comply with

these obligations due to psychological
causes could be considered as a ground
in declaring one’s marriage a nullity
under Art. 36 of the Family Code, thus if
a spouse could not maintain his
obligation of fidelity because he/she is a
nymphomaniac or satyriasis, then
his/her marriage could be nullified.
(Case: Chi Ming Tso vs. CA, 266
SCRA 324)

> these basic obligations were also

expounded in the case of (Santos vs.
CA).

> Take note: of the acts which are

highly personal and voluntary on the
part of the spouses. Example: to cohabit
and render conjugal rights to each other,
wife’s duty to give her husband domestic
assistance and conjugal companionship
114
 which they could not be compelled to
do. Thus, a husband cannot by
mandatory injunction compel his wife to
return to the conjugal dwelling. (Case:
Arroyo vs. Arroyo, 42 Phil. 54). His
remedy is to refuse to support her or
file an action for damages against her
under Art. 19, 20 and 21 of the Civil
Code. (Case: Tenchavez vs. Escano,
15 SCRA 355). A husband likewise
cannot compel his wife to have sexual
intercourse with him during the
pendency of a legal separation case ,
much more after a decree is issued,
otherwise he could be sued for Rape
unless his act is condoned.

Art 69 – “The Husband and Wife shall fix the

family domicile. In case of disagreement, the
court decides.”

>Domicile- permanent place of abode.

> The court may exempt one spouse

from living with the other in the following
cases:

a. one spouse shall live abroad

b.there are other valid compelling

reasons for the exemption. ( case
to case basis)

115
 * the exemption shall not apply if
the same is not compatible with
family solidarity.

Art 70 – “ The spouses are jointly responsible

the support of the family. The expenses for
such support and other conjugal obligations
shall be paid from the community property
and, in the absence thereof, from the income
or fruits of their separate properties. In case
of insufficiency or absence of said income or
fruits, such obligation shall be satisfied from
their separate properties.”

* self explanatory

Art 71 – “The management of household shall

be the right and duty of both spouse. The
expenses for such management shall be paid
in accordance with the provisions of Art. 70.”

* self explanatory

Art 72 – “When one of the spouses neglects his

or her duties to the conjugal union or
commits acts which tend to bring danger,
dishonor or injury to the other or to the family,
the aggrieved party may apply to the Court
for relief.”

> based on the spouse’ duty to protect

the family from danger or harm.

116
 > The Court may grant the aggrieved
party reliefs- such as injunction, legal
separation or PROTECTION ORDER.

Art 73 – This is amended by RA 10572, May 24,

2013.

“Either spouse may exercise any

legitimate profession, occupation, business
or activity without the consent of the
other. The latter may object only on valid,
serious and moral grounds.

In case of disagreement, the Court shall

decide whether or not:

1. the objection is proper

2. benefit has accrued to the family[out
of such profession, occupation, business or
activity, the resulting obligation shall be
chargeable either to the absolute
community/conjugal partnership of gains or
the separate property of the spouse who
did not obtain consent of the other
depending on when the benefit has
accrued.] prior to the objection or
thereafter. If the benefit accrued prior
to the objection, the resulting
obligation shall be enforced against
the separate property of the spouse
who has not obtained consent.

The foregoing provisions shall not

prejudice the rights of creditors who
acted in good faith.”

117
>**this article has been amended by
R.A. 10572, approved on May 24,
2013.

> this is a departure from Art. 117 of

the Civil Code where only the husband
has the right to object.

> Where will the accrued benefits go

and which shall be liable.

 before objection. – the

absolute community because
all benefits will go to it. **
And, the liability if any, is
chargeable to the absolute
community or conjugal
partnership. Note, that this
is the amendment
introduced by R.A. No.
10572 in 2013. Before the
amendment, the liability is
chargeable to the separate
property of the spouse who
did not obtain the consent
of the other.

 after objection – the separate

property of the spouse because
he / she acted without consent.
** The liability shall be
chargeable to the separate
property of the spouse who did
not obtain the consent of the
other. This is an exception to
the general rule that the
absolute community/conjugal
118
 partnership of gains shall be
liable for obligations which
redounded to the benefit of the
family.

> Query: If the wife engages in

business, what property will be liable.

 if the husband gave his

consent- ** the community
property will be liable.

If there was no consent- only
the separate properties of the
wife will be liable.

>** Query: Is the husband’s consent

necessary when: a) wife becomes an
incorporator of a corporation, b).
transfers her share to another person
and c) exercises her voting rights as an
incorporator.

 With the advent of the

Family Code- NO. But, since
money is involve to become
an incorporator and she will be
using conjugal funds, then
the husband should give his
consent. If she uses her
separate property, NO. Thus,
it goes without saying that if a
wife is an incorporator of a
corporation, her ACTS must
be with the consent of the
husband, because of the

119
 premise that she is using
conjugal fund- and this is true
even if shares are originally in
her own name while still
single because they become
part of the community
property when she got
married sans marriage
settlement.

Art 74. Marriage Settlement:

“ The property relations between husband

and wife shall be governed in the
following order:

1). by marriage settlement executed

before the marriage

2). by the provisions of the Civil Code

3). by local customs

> Marriage Settlement- agreement

entered into by the parties about to
be married for the purpose of fixing
the terms and conditions of their
property relation during the marriage.
Also known as, PRENUPTIAL AGREEMENT.
It must be in writing, signed by the
parties and entered before the
celebration of the marriage. As a
contract, it is governed by the rules on
contract and in order to bind third
persons, it must be registered with the
Office of the Local Civil Registrar and
the Register of Deeds. Modifications/
120
changes/amendments on the Marriage
Settlement must be made before the
marriage. After the marriage, no
changes shall be allowed except in the
following cases:

1) those provided for under Art.

66 and 67- revival of property
relation by legally separated
spouses once they reconciled;
and

2) Art. 128, 135 and 136 of the

Family Code referring to judicial
separation of property either
upon a valid cause or voluntary
agreement of the parties.

>**Query: Can the property relation of

spouses without marriage settlement
under the Civil Code (i.e., conjugal
partnership of gains) be changed to
absolute community of property with the
effectivity of the Family Code. ANSWER:
No, even if there is no impairment of
vested rights. Let it be noted that the
Supreme Court did not agree with the
ruling of the RTC and the Court of
Appeals on automatic conversion. (Case:
Pana vs. Heirs of Jose Juanite, Sr.
687 SCRA 414 [2012]).

> Parties can agree on the

following Property Regimes:

1. Absolute Community of
Property;
121
 2. Conjugal Partnership of
Gains; and
3. Complete Separation of
Property

* parties may also enter a

modified regime or a combination
of any or all of the above so
long as the stipulations are not
contrary to law, morals, public
policy and custom.

* if no marriage settlement, the

provision of the Family Code
applies stating- absolute
community of property.

Art. 75 – “The future spouses in the marriage

settlement, agree upon the regime of absolute
community, conjugal partnership of gains ,
complete separation of property or any other
regime. In the absence of marriage
settlement, or the regime agreed upon is void,
the system of absolute community of property
as established in the Code shall govern.

 Absolute Community Regime- provides

that all properties owned by the spouses
BEFORE the marriage and those that they
may acquire during the marriage including
the fruits thereof, shall form part of the
absolute community, regardless of how
these properties were acquired except if
they were excluded in the Marriage
Settlement or by the Family Code.
122
 Exceptions:

1. those acquired during the marriage

by gratuitous title, including the
fruits and income thereof.
2. those for personal and exclusive use
of either spouse except jewelry;
3. those acquired before the marriage
by either spouse who has legitimate
descendant by a former marriage; and
4. those that are expressly excluded
in the marriage settlement.

 Conjugal Partnership of Gains- only

those acquired DURING the marriage
through the efforts and industry of either
or both spouses as well as the income or
fruits of their exclusive properties shall
accrue to the conjugal partnership.

 Complete Separation of Property-

provides that all properties present and
future are exclusively owned by the spouse
concerned.

Art 76 – “In order that any modification in the

marriage settlement may be valid, it must be
made before the celebration of the marriage
subject to Art. 67, 68, 128, 135 and 136 of the
Family Code.”

* already discussed above

123
Art. 77 – “The marriage settlement and any
modification thereof shall be in writing, signed
by the parties and executed before the
celebration of the marriage. They shall not
prejudice third persons unless they are
registered in the local civil registry where the
marriage contract is recorded as well as in
the proper registries of property.”

*already discussed above.

Art. 78 – “ A minor who according to law may

contract marriage may also execute his/her
marriage settlements but they shall be valid
only if the persons designated in Art.14 to give
consent to the marriage are made parties to the
agreement subject to the provisions of Title
IX of the Code.”

 To date this is no longer applicable because

this article is already repealed by R.A.
6809, which lowered the age of majority
from 21 years old to 18.

124
Art. 79 –“ The validity of any marriage
settlement executed by a person upon
whom a sentence of civil interdiction has
been pronounced or who is subject to any
other disability, it shall be indispensable for
the guardian appointed by a competent
court to be made a party thereof.”

>guardian appointed must also sign the

marriage settlement in order to be valid.
Reason:. Because a convict of these
crimes cannot execute a document
intervivos.

Query: What is civil interdiction- this is

an accessory penalty to a crime which
carries a penalty of reclusion temporal
and reclusion perpetua.

Art. 80 – “in the absence of contrary stipulation

in a Marriage Settlement, the property relations
of the spouses shall be governed by Philippine
Laws regardless of the place of celebration of
marriage and their residence.

This rule shall not apply:

1. Where both spouses are aliens;

2. with respect to extrinsic validity of

contracts affecting property not situated in
the Philippines and executed in the
country where the property is located;
and

125
 3. with respect to extrinsic validity of
contract entered into the Philippines but
affecting property situated in a foreign
country whose laws regime different
formalities for its extrinsic validity

* this article recognizes the

nationality theory

Art 81- Effect of Non Celebration of marriage

“ Everything stipulated in the settlements

or contracts referred to in the preceding
articles in consideration of a future marriage,
including donations between the prospective
spouses made therein, shall be rendered void if
the marriage does not take place. However,
stipulations that do not depend upon the
celebration of marriage shall be valid.”

 Example: recognition of a natural child

DONATION by REASON of MARRIAGE

Art. 82. “ Donation by reason of marriage are

those made before its celebration, in
consideration of the same, and in favor of one
or both of the future spouses”. [other than
mutual promise to marry].

>REQUISITES:

126
 a. must be made before the
celebration of the marriage
b. must be made in
consideration of the same.
c. must be made in favor of one
or both of the future spouses.

 all these requisites should

concur otherwise it could not
be considered donation
propter nuptias.

 the donation can be incorporated in the

marriage settlement or in a separate
document. Take note: however of the
limitation when made in the marriage
settlement where the spouses agree on
another property regime other than
absolute community: it must not be
more than 1/5 of the present property.
Reason: to avoid possibility of duress or
undue influence. But if done in a separate
paper, the limitation will not apply.

Art 83. “These donations are governed by the

rules on ordinary donations established in Title
III of Book III of the Civil Code, insofar as
they are not modified by the following
articles.”

> if made to one spouse – it belongs to

his exclusive prop. Except if the donor
provides that it shall form part of the
absolute community. ( Art 92 Family
Code)

127
 >if it consists of a real property, it
must be in a public instrument and as
in the case of donation, ACCEPTANCE is
a requisite to be valid.

Art 84. “If the future spouse agree upon a

regime other than the absolute community of
property, they could not donate to each other
in their marriage settlements more than 1/5 of
their present property. Any excess shall be
considered void”.

Donation of future property shall be

governed by the provisions on testamentary
succession and the formalities of will.

> Take note: if they adopt absolute

community : there is NO limit or to the
extent of donation by future spouses
( before marriage) but if another
property regime is agreed upon in the
marriage settlement, take note of the
limitation.

> Future property- anything which the

donor could not dispose of at the time
he makes the donation.

Art 85. “Donations by reason of marriage of

property subject to encumbrance shall be
valid. In case of foreclosure of the
encumbrance and the property is sold for less
than the total amount of the obligation
secured, the donee shall not be liable for the
128
deficiency. If the property is sold for more
than the total amount of the obligation, the
donee shall be entitled to the excess.”

> ex: mortgage

Art 86. Grounds for Revocation:

“ A donation by reason of marriage may

be revoked by the donor in the following
cases:

a. if the marriage is not celebrated or

judicially declared void ab initio except
donations made in the Marriage
settlement which shall be governed by Art
81; [donation propter nuptias]

b. when the marriage takes place without

consent of parents or guardian as required
by law;.

c. when marriage is annulled and the

donee acted in bad faith;

d. upon legal separation, donee being the

guilty spouse;

e. if it is with resolutory condition and the

condition is complied with;

f. when the donee has committed an act of

ingratitude as specified by the provisions

129
of the Civil Code on donations in
general.

>Query: if the marriage is not

celebrated, will the donation be
automatically revoked. NO, it is merely
revocable, meaning, if there is no
action to revoke, it remains subsisting.
Query: what if the marriage is void.
Still, it is merely revocable, i.e., the
marriage should be declared VOID
first and then an action to revoke
should be filed. Take note however
that in marriages under Articles
(40), (bigamous), (42)
(subsequent marriage where the
first spouse was declared
presumed dead and (44) (both
spouse are in bad faith in
contracting a second marriage
where the first spouse is not
dead), the revocation of donation
is by operation of law.

>When to file action for revocation: (

no mention in the Family Code thus the
provisions of the Civil Code are applicable).

Rule:

1. if donation is in writing must be

brought w/in 10 years ( art 1144
CC)
2. if made orally- 6 years from
time of donation (usually personal
properties)

130
 3. in legal separation – where
innocent spouse gave donation
prior to marriage – 5 years from
finality of decision

Art 87. “ Every donation or grant of gratuitous

advantage, direct or indirect, between the
spouses during the marriage shall be void,
except moderate gifts which the spouses may
give each other on the occasion of any family
rejoicing. The prohibition shall apply to
persons living together as husband and wife
without a valid marriage.”

>moderate- depends on the financial

status of the couple.

> Reasons for the prohibition:

a. to protect creditors
b. to prevent undue influence on
the weaker spouse
c. to avoid violation of the rule
on modification of the marriage
settlement during the pendency
of marriage.

> Applicable cases:

Case: Matabuena v. Cervantes ( 38

SCRA 284)- *prohibition applies to
common law relationship
131
 Case: Agapay v. CA ( GR No. 116668,
July 28 1997, 85 SCAD 145) * if H
donates to his other woman (VOID)
and the latter derives benefit from the
property, such benefit and the
property will revert to the 1st marriage.

> Query: Who can question the

donation:

a. stranger – NO
b. State or the BIR. YES, or only
those who will be prejudiced.

> Take note: if the spouse is made

beneficiary in life insurance – this not
donation. CASE: Gercio v. Sunlife
Assurances Co. of Canada (48 Phil.
53). Take note: the article is not
applicable if the donation is made
several moments before the marriage
for this is no doubt donation propter
nuptias, (Case: Garcia vs. Sangil, 53,
Phil. 968).

SYSTEM OF ABSOLUTE COMMUNITY

Art. 88. “ The absolute community of property

between spouses shall commence the precise
moment that the marriage is celebrated. Any
stipulation, express or implied, for the
132
commencement of the community regime at
any other time shall be void.”

> self explanatory.

> in the Civil Code the prevailing
property regime is conjugal partnership
of gains. In the Family Code, the
default regime is Absolute Community
of Property.
> the rule on co-ownership is applied in
"common law relationship” where there
is no marriage that took place or the
union is void.

Art 89. “ No waiver of rights, interest, shares

and effects of the absolute community of
property during the marriage can be made
except in case of judicial separation of property.

When the waiver takes place upon

judicial separation of property, or after the
marriage has been dissolved or annulled, the
same shall appear in a public document and
shall be recorded as provided for in Article
77. The creditors of the spouse who made
such waiver may petition the Court to rescind
the waiver to the extent of the amount
sufficient to cover the amount of their
credits.”

>Take note: [*Case: Hapitan vs. Spouses

Lagradilla, 780 SCRA 288], a husband
cannot enter into an amicable settlement
with another party recognizing the validity
of a sale of an absolute property previously
133
 declared void, because by doing so, he is in
fact waiving his right to the property subject of
the sale which is prohibited by law (Article 124
FC).

Art 90. “ The provisions on co-ownership shall

apply to absolute community of property
between the spouses in all matters not
provided under this Chapter.

> Property regime in case of common law

relationship: CO- OWNERSHIP

> Distinction in the distribution:

*if spouses have no legal

impediment to marry each other
50-50 sharing irrespective whether
there is actual contribution or not.
(Case: Agapay v. CA , GR no.
122 749, July 31, 1996)
* if the partners have legal
impediment to marry each other or
where the marriage is void, the law
in (50%-50%) ownership does not
apply because of the impediment
hence the rule is : division is in
accordance with actual contribution
(Case: Uy v. CA GR No. 102726,
May 27, 1994, 51 SCAD 428)

WHAT CONSTITUTES COMMUNITY PROPERTY

134
Art 91. “ Unless otherwise provided in this
Chapter or in the marriage settlements, the
community property shall consist of all the
property owned by the spouses at the time of
the celebration of marriage or acquired
thereafter.

>what consist community property:

1. consist of all the properties owned by

the spouses at the time of the celebration
of marriage and;

2. all properties acquired by the spouses

after the celebration of the marriage

Unless:

a. contrary agreement is embodied in the

Marriage Settlement and;

b. those provided under by Art. 92

[ EXCLUDED from community
property]

1. property acquired during the

marriage by gratuitous title by
either spouses and the fruits as
well as the income thereof, if
any, unless it is expressly
provided by the donor, testator or
grantor that they shall form part
of the community property; [ the
wish of the giver must be respected]

135
 2. property for the personal and
exclusive use of either spouse;
however, jewelry shall form part
of the community property;
[ because of the inherently high
value of jewelry]

3. property acquired before the

marriage by either spouse who has
legitimate descendants by a former
marriage and the fruits as well
as the income, if any, of such
property. [ to protect the
legitimes of children of a
previous marriage, hence should
be LEGITIMATE children].

> Take note: that even in absolute

community regime, there are properties
which the spouses separately own.

>Query: What about if a spouse sold

his exclusive property during the
marriage, how do you characterize the
proceeds? EXCLUSIVE PROPERTY.
Query: what if he uses the proceeds
to buy another property during the
marriage? The property forms part of
the COMMUNITY PROPERTY because
it was bought during the marriage.
Reason: no provision on the chapter on
absolute community similar to Art. 109
(4) re: conjugal partnership.

Art. 92. already discussed above

136
Art 93 – “Property acquired during the
marriage are presumed to belong to the
community property, unless it is proved that it
is one of those excluded therefrom.” [ see Art.
92]

>Take note: evidence should be shown

that the property was acquired during
the marriage.

>Cases:

1.Orient Savings Bank vs.

Suzuki, 740 SCRA 345, under
our laws, if the property is in the
name of one of the spouses, with
description that he or she is
“married to” the other spouse,
the same is merely descriptive of
the civil status of the registered
owner.

2.Dela Pena vs. Avila, 665 Scra

553, in conjugal partnership,
when the property is registered in
the name of only one spouse and
there is no indication when the
property is acquired, it indicates
that the property belongs to the
registered owner.

3.Lim vs. Equitable PCI Bank,

713 SCRA 555, when there is no
indication when the property is
137
 acquired, the presumption in favor
of conjugal partnership cannot
prevail when the title is in the
name of only one spouse and the
rights of third parties are
involved.

4.Mathews vs. Taylor, GR No.

164584, June 22, 2009, the
presumption of conjugality does
not apply even if the property
was acquired during the
marriage with respect to private
lands if one of the spouses is an
alien.

CHARGES UPON AND OBLIGATIONS OF THE

ABSOLUTE COMMUNITY

Art 94. “The absolute community of property

shall be liable for:

1. the support of the spouses, their

common children and legitimate children
of either spouse; however, the support of
the illegitimate children shall be governed
by the provision of this Code on support.
( Art 197 Family Code);

2. all debts and obligations contracted

during the marriage by the designated
administrator-spouse for the benefit of
the community, or by both spouses, or by
one spouse with the consent of the other.

138
3. debts and obligations contracted by
other spouse without the consent of the
other to the extent that the family may
have been benefited.

4. all taxes, liens, repairs, expenses

including major or minor repairs, upon
the community property;

5. all taxes and expenses for mere

preservation made upon the separate
property of either spouse used by the
family;

6. expenses to enable either spouse to

commence or complete a professional or
vocational course, or other activities for
self-improvement;

7. Ante nuptial debts of either spouse in so

far as they redounded to the benefit of the
family;

8. the value of what is donated or

promised by both spouses in favor of their
common legitimate children for the
exclusive purpose of commencing or
completing a professional or vocational
course or other activity for self
improvement;

9. Antenuptial debts of either spouse

other than those falling under par. (h) of
this Article, the support of illegitimate
children of either spouses and liabilities
incurred by either spouse by reason of a
crime or a quasi-delict, in case of
absence or insufficiency of the exclusive
139
 property of the debtor-spouse, the
payment of which shall be deducted from
the share of the debtor-spouse upon
liquidation

10. expenses of litigation between

spouses unless the suit is found to be
groundless.

If the community property is insufficient,

to cover the foregoing liabilities, except those
falling under par. (9), the spouse shall be
solidarily liable for the unpaid balance with
their separate properties.”

>Take note: There are three personal

obligations of a spouse which the
absolute community may be compelled
to pay on the condition that: 1)
insufficiency of property or money on
his part and 2) payment is considered
as advance to his share from the
absolute community. And these are: a)
ante nuptial debt which did not
redound to the benefit of the family b)
support of illegitimate children and c)
civil liability for a crime committed.

Art. 95. “Whatever may be lost during the

marriage in any game of chance, betting,
sweepstakes or any other kind of gambling,
whether permitted or prohibited by law, shall
be borne by the loser and shall not be charged to
the community but any winnings shall form part
of the community property.”
140
 >self explanatory

OWNERSHIP, ADMINISTRATION, ENJOYMENT

and DIPOSITION OF THE COMMUNITY
PROPERTY

Art 96. “ The administration and enjoyment of

the community property shall belong to both
spouses jointly. In case of disagreement, the
husband’s decision shall prevail, subject to
recourse to the Court by the wife for a
proper remedy, which may be availed of
within five years from the date of the contract
implementing such decision.

In the event that one spouse is

incapacitated or otherwise unable to participate in
the administration of common properties, the other
spouse may assume sole powers of administration.
These powers do not include the powers of
disposition or encumbrance without authority
of the Court or the written consent of the
other spouse. In the absence of such authority
or consent, the disposition or encumbrance shall be
void. However the transaction shall be considered
as a continuing offer on the part of the
consenting spouse and the third person, and may
be perfected as a binding contract upon the
acceptance by the other spouse or authorization by
the Court before the offer is withdrawn by either
or both offerors. “

141
 > the 2nd par. applies only in case of
incapacity or unavailability of one spouse
and it should be emphasized that the power
to administer does not include the power to
dispose or encumber where 1) consent of the
other spouse or 2) authorization by the
Court is necessary.

> Causes of incapacity, could either be

a) spouse is absent; b) spouse has
abandoned the other and c) spouses
are separated in fact. ACTION to be
taken: The other spouse shall file a
summary proceeding for
appointment as sole administrator
under Art. 153 of the Family Code. BUT,
if the inability or incapacity is due to
a) comatose b) victim of stoke and
the like rendering the other spouse
incompetent, the ACTION is, to file a
petition for JUDICIAL
GUARDIANSHIP under Art. 93 of the
Rules of Court. (Case: Uy vs. CA, GR
No. 109557, November 29, 2000).

>Take note: if the wife sold a

common property without the consent
of the husband, the sale is VOID but, it
could be RATIFIED by either the
other spouse subsequently giving his
consent or by Court’s authorization.
Reason: because the sale can be
considered as a CONTINUING OFFER
between the consenting spouse and
the buyer and may be perfected by the
142
acceptance of the other spouse or
authorization by the Court BEFORE the
offer is withdrawn by either or both
offerors.

> Query: Can the husband annul the

sale? YES and the action does not
prescribe in view of the nullity of the
contract. The only problem is “what if
the buyer is in Good Faith”. The
husband could no longer annul the sale
and his remedy would be to let his
wife account for the proceeds of the
sale. This is especially true where
the property is by nature conjugal
but registered in the name of one
spouse only. (Case: PNB vs. CA,
153 SCRA 435). Take note:
however that under the Civil Code,
(Art. 173 thereof) the sale of
common property by a husband
without the wife’s consent is merely
VOIDABLE and could be annulled
within ten (10) years, otherwise it
prescribes. Take note also that,
under the Civil Code - wife’s consent is
required only if the conjugal property
is acquired before its effectivity (Aug.
30, 1950), if acquired after its
effectivity, wife’s consent is not
required. (Case: Villaranda vs.
Villaranda, GR No. 153447, Feb. 23,
2004). Under the Family Code, the
rule is that which is enunciated above.

143
 > Take note: The case of Nicolas vs.
CA, 154 SCRA 635 saying, mere
awareness of the other spouse of such
sole is not consent (it must be in writing)
which was adopted in the case of
Tinitigan vs. Tinitigan, 100 SCRA
619.

Art 97. “Either spouse may dispose by will

his/her interest in the community property.”

> RATIONALE :

1. this is in exercise of an act of

ownership

2. need not be consented by the other

spouse because the disposition takes
effect after death of the testator

3. what is disposed here is the spouse

interest on the property, not the property
itself

Art 98. “Neither spouse may donate any

community property without the consent of the
other. However either spouse may, without the
consent of the other, make moderate donations
from the community property for charity or on
occasion of family rejoicing or family distress”.

> because the other spouse may be

prejudiced by the generosity of the
144
 other, which might lead to the diminution
of the common property.

DISSOLUTION OF THE ABSOLUTE COMMUNITY

REGIME

Art 99. “The absolute community terminates:

1. upon death of either spouse;

2. when there is a decree of legal

separation;

3. when the marriage is annulled or

declared void; or

4. in case of judicial separation of property

under Articles 134 to 138

Example:

1. where there is a an agreement of

complete separation of property in the
marriage settlement. (Art. 134)
2. any of the grounds under Art. 135
exist like, where one is convicted of a
crime which carries a penalty for civil
interdiction.

Art. 100. “The Separation in fact between

husband and wife shall not affect the regime
of absolute community except that:

145
1. the spouse who leaves the conjugal
home or refuses to live therein without
just cause, shall not have the right to
supported;

2. when consent of one spouse to any

transaction of the other is required by
law, judicial authorization shall be
obtained in a summary proceeding;

3. In the absence of sufficient community

property, the separate property of both
of the spouses shall be solidarity liable
for the support of the family. The
spouse present shall, upon summary
proceeding be given judicial authority to
administer or encumber any specific
separate property of the other spouse
and use the fruits or the proceeds
thereof to satisfy the latter’s share.

> abandonment- implies a departure by

one spouse with the avowed intent not
to return, followed by a prolonged
absence without just cause. A spouse
is presumed to have abandoned
the family home if she left the
same for a period of three (3)
months and did not give any
information of her whereabouts
thus giving the impression that he
is not returning anymore. [take
note, of the difference in the period of
absence when invoking abandonment as
a ground for legal separation- which is
one(1) year.

146
Art. 101-“ If a spouse without just cause
abandons the other or fails to comply with
his/her obligations to the family, the aggrieved
spouse may petition the court for
receivership, for judicial separation of property
or for authority to be the sole administrator
of the absolute community, subject to such
precautionary conditions as the Court may
impose.

The obligations to the family mentioned

in the preceding paragraph refer to marital,
parental or property relations.

A spouse is deemed to have abandoned

the other when he or she has left the conjugal
dwelling without intention of returning. The
spouse who has left the conjugal dwelling for
a period of three months or has failed within
the same period to give any information as
to his or her whereabouts shall be prima facie
presumed to have no intention of returning to
the conjugal dwelling.”

>Remedies available to the present

or aggrieved spouse:

1. file an action for

receivership;

2. file an action for judicial

separation property; and

147
 3. seek appointment as sole
administrator of the
community property.

> When is there abandonment:

*when spouse left the conjugal

dwelling without intention of returning
and when he/she no longer complies
with his/her marital, parental & property
relations with the family.

> When can a spouse presumed to

have abandoned the family:

1. he/she left the conjugal dwelling

for a period of 3 months or;

2. when he/she failed with in 3

months to give any information as
to his/her whereabouts

> Take note: (Case: Partosa-Jo CA

216 SCRA 692) where the Supreme
Court said, *abandonment is defined as
not limited to departure of one spouse
from the conjugal dwelling with no
intention to return but it encompasses
the act of rejecting or preventing the
other spouse of returning to the conjugal
dwelling

148
LIQUIDATION OF THE ABSOLUTE COMMUNITY,
ASSETS AND LIABILITIES:

Art. 102. “ Upon the dissolution of the

absolute community regime, the following
procedure shall apply:

1. an inventory shall be prepared, listing

separately all the properties of the absolute
community and the exclusive properties of the
spouse.

2. The . debts and obligations of the

absolute community shall be paid out of its
assets. In case of insufficiency of said assets,
the spouses shall be solidarily liable for the
unpaid balance with their separate properties
in accordance with the provisions of the
second par. of Art. 94.

3. Whatever remains of the exclusive

properties of the spouses shall thereafter
delivered to them.

4. The net remainder of the properties of

the absolute community shall constitute its net
assets, which shall be divided equally between
husband and wife, unless a different proportion
or division was agreed upon in the marriage
settlements or unless there has been a
voluntary waiver of such share as provided in
this Code. For purposes of computing the net
profits subject to forfeiture in accordance with
Art. 43, No.(2) and 63 No. (2), the said profits
shall be the increase in value between the
149
market value of the community property at
the time of the celebration of the marriage
and the market value at the time of its
dissolution.

5. The presumptive legitimes of the

common children shall be delivered upon
partition, in accordance with Art. 51;

6. Unless otherwise agreed upon by the

parties in the partition of the properties, the
conjugal dwelling and the lot on which it is
situated shall be adjudicated to the spouse with
whom majority of the common children choose
to remain. Children below the age of seven (7)
years are deemed to have chosen the mother,
unless the Court has decided otherwise. In
case there is no such majority, the court shall
decide, taking into consideration the best
interest of the said children.

> NET PROFITS- refer to the increase

in the value of the community
property at the time of the celebration
of the marriage and dissolution.

Art. 103. “ Upon the termination of the

marriage by death, the community property
shall be liquidated in the same proceeding for
the settlement of the estate of the deceased.

If no judicial settlement proceeding is

instituted, the surviving spouse shall liquidate
the community property either judicially or
extra-judicially within one (1) year from the
150
death of the deceased spouse. If upon the
lapse of the said period, no liquidation is made,
any disposition or encumbrance involving the
community property of the terminated
marriage shall be void.

Should the surviving spouse contract a

second marriage without compliance with the
foregoing requirements, a mandatory regime
of complete separation of property shall
govern the property relations of the
subsequent marriage. “

>take note: of the importance of

liquidation. And this should be done in
the same proceedings for the settlement
of estate which could be done judicially
or extra judicially- to be done within one
year from death of the deceased
spouse. Any disposition of property
without complying to this requirement
is void.
(the Book of Justice Paras,
mentioning the 6-month period is
without basis)

> Take note: ( Case : Ledesma vs.

Intestate Estate of Cipriano Pedrosa,
219 SCRA 808, where SC said,
distribution of properties may be in
accordance with the rules on intestate
succession.

> Take note: upon the death of the

deceased spouse, the community
property will be co-owned by the
151
 surviving spouse and the children,
hence sale should not be made by
the former without the consent of the
latter.

> If no settlement of Estate is done and

the surviving spouse remarries, the
subsequent marriage shall be governed
by mandatory regime of COMPLETE
SEPARATION OF PROPERTY. [ this is
an exception to the rule that where no
property regime is agreed in the marriage
settlement, absolute community should
govern the family relation]

Reasons:

1. to avoid confusion of the properties

of the first marriage and second
marriage.

2. to prevent prejudice to compulsory

heirs of the first marriage.

3. to prevent fraud to creditors.

Art. 104. APPLICABLE ONLY TO MARRIAGES

BEFORE THE EFFECTIVITY OF THE FAMILY CODE.
“ Whenever the liquidation of the
community properties of two or more
marriages contracted by the same person
before the effectivity of this Code is carried
out simultaneously, the respective capital,
fruits and income of each community shall be
determined upon such proof as may be

152
considered according to the rules on evidence.
In case of doubt as to which community the
existing properties belong, the same shall be
divided between the different communities in
proportion to the capital and duration of each.”

> applicable only to those marriages

contracted before the Family Code
because under the latter, a void
marriage must be declared void first
before remarriage.

>Nonetheless, if confronted with such

a situation, all that is done is gather all
the properties and determine by
PROOF/ Evidence when were (either 1st or
2nd marriage) then allocate. In case of
doubt, get proportion of :

1. capital, and
2. duration of each marriage.

CONJUGAL PARTNERSHIP OF GAINS:

Art 105. “ In case the future spouse agree in

the marriage settlements that the regime of
conjugal partnership of gains shall govern their
property relations during marriage, the
153
provision of this Chapter shall be
supplementary application.”

> this is possible only where there

is marriage settlement. And, it also
commence at the precise moment of
the celebration of marriage. No other
period could be a subject of
stipulation in the marriage settlement.

>-this provision is also applicable to

conjugal partnership of gains already
established under the Civil Code without
prejudice to vested rights already
acquired.

> CONJUGAL PARTNERSHIP OF

GAINS- formed when husband and
wife place in a common fund the fruits
of their separate property and the
income from their work or industry, the
same to be divided between them
equally (generally) upon the dissolution
of the marriage or the partnership.
Or, upon the dissolution of the
marriage, the net gain shall be divided
equally between the spouses unless
otherwise agreed upon in the marriage
settlement.
> Also known as : “ganantial regime” and
“relative community of property”.

> Duration:

a. until the dissolution of the

marriage like death or
annulment;
154
 b. until dissolution of the
partnership, like legal separation
or judicial separation of property.

> Take note: During the marriage,

what husband and wife have over
the conjugal partnership is an INCHOATE
RIGHT or a MERE EXPECTANCY because,
it might be that during the liquidation,
there is no conjugal property to
divide. But, if the cause of dissolution
is death of one spouse, then this
inchoate right turns into ACTUAL,
because of the ½ share of a surviving
spouse. Besides, becoming a co-owner
with the children if any.

> DISTINCTIONS between

CONJUGAL [CP] Partnership and the
ordinary PARTNERSIP [OP]:

1. CP- no juridical personality

OP- with juridical personality

2. CP- regulated by law

OP- regulated by agreement
between the parties and only
subsidiarily by law

3. CP- generally managed by the

husband.
OP- management depends
upon the agreement of the
parties

155
 4. CP- purpose is not profit
OP- purpose is profit

5. CP- only have few grounds

for dissolution
OP- there are so many ways
to dissolve it.

Art. 106. Definition of Conjugal Partnership

of Gains

“ Under the regime of conjugal

partnership gains, the husband and the wife
place in a common fund the proceeds,
products, fruits and income from their
separate properties and those acquired by
either or both spouses through their efforts,
or by chance, and, upon dissolution of the
marriage or of the partnership, the net gains
or benefits obtained by either or both
spouses shall be divided equally between them
unless otherwise agreed upon in the marriage
settlement.”

> Properties Covered:

1. the proceeds, products, fruits

and income from the separate
properties of the spouses; and

2. those acquired by either or

both spouses through their
EFFORTS or BY CHANCE.

156
Art 107. “The rule provided for under Articles
88 & 89 shall apply also to Conjugal
Partnership of Gains.”

> what are these rules:

a. starts at the precise moment of

marriage, any stipulation to the
contrary is void. (Art. 88)

b. no waiver of rights, interest

shares, effects etc, unless there is
judicial separation of property and
that waiver must be in writing,
(Art. 89).

Art 108. “The conjugal partnership shall be

governed by the rules on the contract of
Partnership in all that is not in conflict with
what is expressly determined in this Chapter
or by the spouses in their marriage
settlements.

> Take note: that in partnership,

partners are liable pro rata for the
satisfaction of partnership’s
indebtedness. While under conjugal
partnership, “if the conjugal
partnership is insufficient to cover the
liabilities, the spouses shall be
solidarily liable for the unpaid balance
with their separate properties” as
157
provided for under Art. 121, last
paragraph).

> Take note: however of the ruling in

the case of: the case of (Jessie V.
Pisuena vs. Heirs of Petra Unatig et
al, GR NO, 132803 Aug 31, 1999 III
SCAD 540) where SC said “even if the
property is presumed conjugal
during the marriage, if it could be
over turned by contrary evidence,
the rule is, paraphernal/exclusive
in character.

> Take note of the Cases of:

(Mendoza vs Reyes, 124 SCRA 154)
and Carita de Reyes vs. Reyes de
Ilano 73 Phil. 620) where the SC said
“it is sufficient to prove that the property
is acquired during the marriage inorder
that the same may be deemed conjugal.”
Also consider the case of (Estonia
vs. CA SCRA 627) where SC also
said, “presumption under the law that all
properties of the marriage belong to the
conjugal partnership applies only when
there is proof that they are acquired
during the marriage.”

>Take note of the following rulings:

1. In conjugal partnership, when

the property is registered in
the name of only one spouse,
and there is no showing as to
158
 when it is acquired, this is
an indication that the
property belongs exclusively to
the said spouse[ Case: de la
Pena vs. Avila, 665 SCRA
553(2012].

2. It should be noted however,

that when the property is
registered in the name of
only one spouse does not
negate the possibility of it
being conjugal or community
property, when there is proof
that indeed it is conjugal or
community property[ Case:
Orient savings Bank vs.
Suzuki, 740 SCRA 345].

Art. 109: “ The following shall be the

exclusive property of each spouse;

1. that which is brought to the marriage

as his or her own (unless brought to the
marriage as part of the absolute
community);

2. that which each acquires during the

marriage by gratuitous title;

3. that which is acquired by right of

redemption by barter or by exchange
with property belonging to only one of
the spouses; and

159
4. that which is a purchased with exclusive
money of the wife or of the
husband.”

> Two kinds of separate property

of each spouses:

a. Property by direct acquisition

(described in par. 1 and 2) or
those which are originally
exclusive

b. property by substitution
(described in par. 3 and 4)

>Take note of the following:

1. in the case of redemption using

conjugal funds, the matter to be
considered is, “who has the right to
redeem” and not the source of the
money because this is immaterial, the
rule is, “the property is still exclusive
but the spouse who was the property
should reimburse the conjugal
partnership”, (Case: Santos vs.
Bartolome, 44 Phil 76). Moreover, in
case the husband redeems the
paraphernal property of his deceased
wife using his own money, the rule is,
“husband does not become the
exclusive owner of the property, instead,
the property shall belong to the heirs
i.e, the husband and the children,”
(Case: Alvarez vs. Espiritu, L-18833,
August 14, 1965). Take note also
160
that; exclusive properties of spouses
which were mortgaged before the
marriage but redeemed only during
the marriage, remains exclusive even if
the money used to redeem comes
from the conjugal fund- this is without
prejudice however to reimbursement
of the money used by the owner
thereof who will be considered as
DEBTOR of the conjugal partnership
hence, if he/she does not pay, then the
same shall be considered as his/her
advance from the conjugal partnership.

2. if property is acquired by donation or

gratuitous title, the property acquired is
still exclusive.

3. if property is acquired by exchange/

barter using the exclusive property of
the spouse, the rule is “ the property
is still exclusive.” (Case: Lim vs.
Garcia, 7 Phil 320)

4. awards for damages re: in an

accident, if the husband/wife is awarded
with hospitalization expenses, medical
assistance and/or loss of income, these
are conjugal properties but moral
damages are exclusive.

5. monetary benefits given gratuitously

by the government because of a persons’
work gratuity, are exclusive. Same is
true with retirement benefits if given
gratuitously. In short, the determining
point here is, “the nature of the
benefit or how it was acquired”,
161
i.e., if acquired gratuitously then
EXCLUSIVE but if it is acquired
onerously, then it is CONJUGAL.

6. if property was purchased partly

using exclusive property and partly
conjugal fund, the rule is, “‘the property
is partly conjugal and partly exclusive.
”

7. if an exclusive property is exchanged

with another, the latter property is still
exclusive but if for example, the NEW
PROPERTY (that which is exchanged) is
traded in, and there is a need for
additional money to get the property
traded in, the NEW PROPERTY becomes
conjugal without prejudice to the trade
in value of the old property.
Example: a car exclusively owned was
traded in to get a new car of higher
value. (Case: Abella de Diaz vs.
Erlanger and Galinger, 59 Phil. 326)

8. the description or reference to

marriage ( ex. in the name of X- wife of
Y), this is merely descriptive of the
marital status of X, hence a property
acquired by X is exclusive unless
shown that conjugal fund was used to
acquire the property. ( Cases:
Gonzales v. Miller, 69 Phil 340 ) and
(Case of Magallon vs. Mantejo, 146
SCRA 282).

9. property acquired by lucrative title is

exclusive.
162
 10. if a suit involves the exclusive
property of a spouse, only the latter
will litigate without including the other
spouse and any decision on the case
will not bind the other spouse.

11. if a Filipino who is married to a

foreigner buys real property during their
marriage, the foreigner could not have
any interest on the property as the
same could not be considered
conjugal. To rule otherwise would be
circumventing the prohibition on aliens
acquiring property in the Philippines
( Case: Matthews vs. Taylor, GR No.
164584, June 22, 2009).

OWNERSHIP, ENJOYMENT, and

ADMINISTRATION OF EXCLUSIVE PROPERTY

Art 110– “ The spouses retain the ownership,

possession, administration and enjoyment of
their exclusive properties.

Either spouse may, during marriage

transfer the administration of his/her exclusive
property to the other by means of a public
instrument, which shall be recorded in the
registry of property where the property is
located.”

>Take note: that if administration of

the property is transferred to the other
spouse by the owner-spouse, the latter
163
 is not precluded from disposing his/her
property without the consent of the
administrator-spouse. If this is done,
what the other spouse means only is,
he/she is terminating the
administration.

Art. 111 – Amended by Sec. 2 of R.A. No. 10572

and it now reads as follows:

“Either spouse may mortgage, encumber,

alienate or otherwise dispose of his or her
exclusive property.”

> Take note: This article speaks of

Conveyance which could be done by
either spouse regarding their separate
properties. – which is an act of
ownership. And, this is applicable even if
the property is under administration
because administration is different
from ownership. Take note: that the
amended article does not mention
anymore of “without the consent of
the other spouse”.

Art. 112 –“ The alienation of any exclusive

property of a spouse administered by the
other automatically terminates the
administration over such property and the
proceeds shall be turned over to the owner-
spouse.”

> self explanatory

164
Art 113 – “Property donated or left by will to
the spouses jointly and with designation of
determinate shares, shall pertain to the donee-
spouse as his or her own exclusive property and
in the absence of designation, share and share
alike without prejudice to the right of
accretion.”

>Take note: this is an exception to Art.

753 of the New Civil Code. Reason:
because there is no right of accretion in
case a donation is made to several
persons jointly as a rule.

> Accretion - occurs when a beneficiary

of the person who died gets more of the
estate than he/she was meant to because
another beneficiary or heir dies or rejects
the gift.

Art. 114.- “ If the donations are onerous, the

amount of the charges shall be borne by the
exclusive property of the donee-spouse,
whenever they have been advanced by the
conjugal partnership of gains.”

Art. 115 – “Retirement benefits, pensions,

annuities, usufructs and similar benefits shall
be governed by the rules on gratuitous or
onerous acquisitions as may be proper in each
case.”

165
* discussed earlier. As a recap,

> Retirement benefits ( Exclusive) –

payment or services provided after
reaching the age of retirement or upon
withdrawal from one’s position occupation
and are separate and distinct from
salaries received. Retirement benefits
do not become conjugal property but
should belong to the beneficiary
designated by the deceased member,
( Case: Sarmiento v. IAC GR no.
75409, august 17 1987).

>Pension ( exclusive) – amount given

regularly to an official or employee by the
government out of liberality and as an
expression of its appreciation for past
services. (underline refers to gratuity,
defined as a reward for past services , a
bounty, a tip). Take note: when pension
is not given as a gratuity ( ex. from a
fund or organization as the case maybe),
the same is conjugal)

>Salary ( exclusive ) – an amount paid

during the time when the officer or
employee entitled thereto is still in
service.

>annuity – given after payment of an

annual pension or income during the life
of one or more determinate persons in
consideration of a capital consisting of
money or other property whose

166
ownership is transferred to him at once
with the burden of the income.
Example: A gives B a building with a
condition that B gives her an income of
Php. 100.00 a day as long as A lives.
Here, the ownership of building is
transferred at once.

> Take note: If a buiding is exclusive

property, the annuity of Php. 100.00 is
also exclusive.

> To simplify, a distinction has to be

made “whether the property is exclusive
or conjugal.” If exclusive, then annuity
is exclusive, if conjugal, then annuity is
conjugal.

> Usufructs – right to use and to the

fruits. *if the usufruct is acquired by
gratuitous title, it is exclusive but the
fruits are conjugal.

> Life Insurance Benefits. The rule

is:

a. if the beneficiary is somebody

other than the insured or his
estate, the beneficiary is the owner
of the insurance benefit,
regardless of whether or not the
premiums were taken from
exclusive or conjugal fund.
167
 b. if the beneficiary is the insured’s
estate, and the premiums are paid
by conjugal fund then the proceeds
would become conjugal.

> Benefits from the Social Security

System: (SSS benefits) As a rule:
“benefits under the SSS is to be given to
the beneficiary as a rule. The heirs will
be the ones to receive only if:

a. the beneficiary is the estate

b. no beneficiary is designated
c. if the designation is void

> Take note: even a non relative

or third person may become
beneficiary.

CONJUGAL PARTNERSHIP PROPERTY

Art.116- “ All property acquired during the

marriage, whether the acquisition appears to
have been made, contracted or registered in
the name of one or both spouses, is presumed
to be conjugal unless the contrary is proved.”

> Take note: the above provision

applies even the spouses are living
separately, (Case: Wong vs. IAC, 200
SCRA 292), hence, for the presumption
to apply, the acquisition of the
168
 property should be proven to have
taken place during the marriage,
(Case: Jocson vs. CA, 170 SCRA
333).

 **Take note: however of the ruling in the

case of (Mathews vs. Taylor, G.R. No.
164584, June 22, 2009) where the
Supreme Court said” in conjugal
partnership, even if the property was
acquired during the marriage, the
presumption in favor of conjugality cannot
be applied with respect to private lands if
one of the spouses is an alien for this will
be in violation of Sec. 7, Art. XII of the
1987 Constitution, which prohibits aliens
from acquiring private lands in the
Philippines”.

Art. 117. The following are conjugal

partnership properties:

1. those acquired by onerous title during

marriage at the expense of the common
fund, whether the acquisition be for the
partnership or for only one of the spouses;

2. those obtained from the labor,

industry, work or profession of either or
both of the spouses;

3. the fruits, natural, industrial or civil

due or received during the marriage from
the common property, as well as the net
fruits from the exclusive property of each
spouse;
169
4. the share of either spouse in the
hidden treasure which the law awards to
the finder or owner of the property
where the treasure is found;

5. those acquired through occupation

such as fishing and hunting;

6. livestock existing upon the dissolution

of the partnership in excess of the
number of each kind brought to the
marriage by either spouse; and

7. those which are acquired by chance,

such as winnings from gambling or
betting. However, losses therefrom shall
be borne exclusively by the loser-spouse.

> Take note: property acquired

during the marriage with conjugal funds
pertain to the conjugal partnership
regardless of the form in which the
title is then or thereafter taken. (Case:
Flores and Flores vs. Flores , 48
Phil. 288)

> Take note: all properties acquired

by either spouse during the marriage
are presumed conjugal even if declared
in the name of one spouse only. And
this presumption holds true even if
the spouses are living separately.
(Case: Wong vs. IAC, 200 SCRA
792)

170
 > Take note: Special Rule for
Insurance: If the beneficiary is a
person OTHER THAN the insured or his
estate, the irrevocable beneficiary has
a vested right to the insurance
indemnity except, when the insured
reserved the right to change the
beneficiary . This is true regardless of
whether the premiums were paid from
the insured’s separate property or from
conjugal funds. (Case: del Val vs. del
Val, 29 Phil. 534)

Art. 118- Property brought on installments paid

partly from exclusive funds from either or both
spouses and partly from conjugal funds belong to
the buyer or buyers if full ownership was
vested before the marriage and to the
conjugal partnership if such ownership was
vested during the marriage. In either case, any
amount advanced by the partnership or by either
or both spouses shall be reimbursed by the owner
or owners upon liquidation of ownership.

>Take note: Rule when improvement

is introduced by the conjugal
partnership on the land belonging to
either spouse:

* either conjugal or exclusive

Verily, a) when the cost of

improvement is more than the value of
171
 the land at the time of the improvement-
the entire property shall belong to the
conjugal partnership subject of course
to reimbursement upon liquidation of the
conjugal partnership.

b.) but if, the land is more valuable

than the improvement, then the land
and the improvement shall belong to
the owner-spouse subject again to
reimbursement upon liquidation. Thus,
ownership is transferred only upon
liquidation of the conjugal partnership.
(Case: Francisco Munoz Jr. vs.
Ramirez, GR No. 156125, August
25, 2010)

Art. 119- Whenever an amount or credit

payable within a period of time belongs to
one of the spouses , the sums which may be
collected during the marriage in partial
payments or by installments on the principal
shall be exclusive property of the spouse.
However, interests falling due during the
marriage on the principal shall belong to the
conjugal partnership.

> Take note: installments paid by

creditor during marriage- owned by the
owner-spouse. But, interest on the
installments collected shall belong to
the conjugal partnership. Reason:
interests are fruits.

172
Art. 120- The ownership of improvements
whether for utility or adornment, made on the
separate property of the spouses at the
expense of the partnership or through the
acts or efforts of either or both of the
spouses shall pertain to the conjugal
partnership or to the original owner- spouse,
subject to the following rules:

When the cost of improvement made by

the conjugal partnership and any resulting
increase in the value of the property are more
than the value of the property at the time of
the improvement, the entire property of one of
the spouses shall belong to the conjugal
partnership subject to the reimbursement of
the value of the property of the owner-
spouse at the time of the improvement;
otherwise said property shall be retained in
ownership by the owner spouse, likewise
subject to reimbursement of the cost of the
improvement.

In either case, the ownership of the

entire property shall be vested upon the
reimbursement, which shall be made at the
time of liquidation of the conjugal
partnership.

> explained in Art. 118

CHARGE UPON and OBLIGATIONS OF THE

CONJUGAL PARTNERSHIP

173
Art. 121- The conjugal partnership shall be
liable for:

1. the support of the spouses, their

common children and legitimate children
of either spouse; however, the support of
the illegitimate children shall be governed
by the provision of this Code on support.
( Art 197 Family Code);

2. all debts and obligations contracted

during the marriage by the designated
administrator-spouse for the benefit of
the conjugal partnership of gains, or by
both spouses, or by one spouse with the
consent of the other.

3. debts and obligations contracted by

other spouse without the consent of the
other to the extent that the family may
have been benefited.

4. all taxes, liens, repairs, expenses

including major or minor repairs, upon
the conjugal partnership of property;

5. all taxes and expenses for mere

preservation made upon the separate
property of either spouse;

6. expenses to enable either spouse to

commence or complete a professional or
vocational course, or other activity for
self-improvement;

174
 7. Ante nuptial debts of either spouse in so
far as they redounded to the benefit of the
family;

8. the value of what is donated or

promised by both spouses in favor of their
common legitimate children for the
exclusive purpose of commencing or
completing a professional or vocational
course or other activity for self
improvement;

9. expenses litigation between spouses

unless the suit is found to be groundless.

If the conjugal partnership is insufficient,

to cover the foregoing liabilities, the spouses
shall be solidarily liable for the unpaid balance
with their separate properties.”

>* Take note: same as Art. 194 or the

obligation of the absolute community except
that Par. 9 (refers to the three personal
obligations of the spouses i.e., antenuptial
debts which did not redound to the benefit
of the family, support of illegitimate
children and, civil liabilities arising from
crime committed) is not reproduced because
it is treated by Art. 122 separately. Personal
debts or obligations are tackled under Art.
123.

> Take note of the following cases:

175
* Ayala Investment and Development
Corp. vs. CA, GR No. 118305, Feb. 12,
1998- a surety agreement or an
accommodation contract entered into by a
husband in favor of his employer could not
be said to be within the “context of
obligation for the benefit of the family”.

* Spouses Buado vs. CA and Nicol, GR

No. 145222, April 24, 2009- personal
debts contracted by the husband and the
wife before or during the marriage shall not
be charged to the conjugal partnership
except in so far as they redounded to the
benefit of the family.

* Johnson and Johnson Phil. Inc. vs. CA

and Alejo Vinluan, GR No. 102692,
Sept. 23, 1996, “debts without marital
consent are not chargeable to the conjugal
partnership except when they redounded to
the benefit of the family”.

**Buado vs. CA, 586 SCRA 397, where it

was ruled “ that the conjugal partnership was
not liable for the obligation of the wife
arising from criminal liability because there
was no showing that the responsibilities
enumerated in Art. 121of the Family Code
have been covered out of the partnership
assets.” Simply put, the payment of the
responsibilities covered by Art. 121 is a
condition sine qua non before the
partnership assets will be used to pay
criminal indemnities. Same ruling was
adapted in the cases of Dewara vs,
Lamela, 647 SCRA 483[2011]) and Pana
vs. Heirs of Jose Juanite, Sr., 687 SCRA
414[2012].

176
Art. 122- The payment of personal debts
contracted by the husband or the wife
before or during the marriage shall not be
charged to the conjugal partnership except in
so far as they redounded to the benefit of the
family.

Neither shall the fines and pecuniary

indemnities imposed upon them be charged to
the partnership.

However, the payment of personal debts

contracted by either spouse before the
marriage, that of fines and indemnities
imposed upon them, as well as the support of
illegitimate children of either spouse, may be
enforced against the partnership assets after
the responsibilities enumerated in the preceding
article have been covered , if the spouse who
is bound should have no exclusive property or
if it should be insufficient; but at the time of the
liquidation of the partnership, such spouse
shall be charged for what has been paid for
the purposes above mentioned.

> explained in the preceding

article.

>Case: Dewara vs. Lamela, 647

SCRA 483, Art. 122 allows the
payment of criminal indemnities even
prior to liquidation of the conjugal
partnership, so long as the liabilities
covered by Art. 121 have been covered.

177
Art. 123- Whatever may be lost during the
marriage in any game of chance or in betting,
sweepstakes, or any other kind of gambling
whether permitted or prohibited by law, shall
be borne by the loser and shall not be
charged to the conjugal partnership but any
winnings therefrom shall form part of the
conjugal partnership property.

> self explanatory

Art. 124 - The administration and enjoyment of

the conjugal partnership shall belong to both
spouses jointly. In case of disagreement, the
husband’s decision shall prevail, subject to
recourse to the Court by the wife for a
proper remedy, which may be availed of
within five years from the date of the contract
implementing such decision.

In the event that one spouse is

incapacitated or otherwise unable to
participate in the administration of conjugal
properties, the other spouse may assume sole
powers of administration. These powers do not
include the powers of disposition or
encumbrance without authority of the Court
or the written consent of the other spouse. In
the absence of such authority or consent, the
disposition or encumbrance shall be void.
However the transaction shall be considered
as a continuing offer on the part of the
consenting spouse and the third person, and
may be perfected as a binding contract upon
the acceptance by the other spouse or

178
authorization by the Court before the offer is
withdrawn by either or both offerors.”

> same as Art. 96. The only difference

is, the latter refers to absolute
community while the former refers to
conjugal partnership of property.

> Take note of the following cases:

1. Spouses Ravina vs. Villa

Abrille, et.al., GR No. 160708, October
16, 2009[604 SCRA 120]- if the husband,
without the knowledge and consent of
the wife, sells conjugal property, the
sale is void. If the sale is with the
knowledge but without the approval of
the wife, thereby resulting in
disagreement, such sale is annullable at
the instance of the wife within five (5) years
from the date of the contract implementing
the decision of the husband- to institute
the case.

2. Fuentes vs. Roca, GR No.

178902, April 21, 2010- If the sale
without the consent of the wife was made
[after the effectivity of the Family Code] ,
the sale is VOID, even if the spouses were
married before the Family Code. But, if
the sale is [before the effectivity of
the Family Code], it is only VOIDABLE.
The spouse can question the sale within a
period of TEN (10) years, otherwise the
action prescribes.

3.**The cases of Bautista vs. Silva,

502 SCRA 334 [2006] and Aggabao vs.
Parulan, G.R. No. 165803, Sept. 1, 2010,
179
 where the Supreme Court laid down the
two kinds of requisite diligence [to
determine good faith] to be observed by
buyers of conjugal property: a) the diligence
in verifying the validity of the title covering
the property and b) the diligence in
inquiring into the authority of the
transacting spouse to sell the conjugal
property in behalf of the other spouse, i.e.,
whether or not the husband/wife obtain the
consent of the other.

Art. 125. “Neither spouse may donate any

conjugal partnership property without the
consent of the other. However either spouse
may, without the consent of the other, make
moderate donations from the community
property for charity or on occasion of family
rejoicing or family distress”.

> self explanatory

DISSOLUTION OF CONJUGAL PARTNERSHIP

REGIME

Art. 126 – The conjugal partnership terminates:

1. upon death of either spouse;

(will result to co-ownership of the conjugal
partnership property between the surviving
spouse and children)

2. when there is a decree of legal separation;

3. when marriage is annulled declared void; or

180
 4. in case of judicial separation of property
during marriage under Articles 134-138.
( separation of property of spouses &
administration of property by one spouse during
the marriage)

(Note: same as Art. 99, just a change

in the property regime)

> self explanatory

Art 127. The separation in fact between

husband and wife shall not affect the regime
of conjugal partnership, except that:

1. the spouse who leaves the conjugal

home or refuses to live therein,
without just cause, shall not have the
right to be supported;

2. when the consent of one spouse to

any transaction of the other is
required by law, judicial authorization
shall be obtained in a summary
proceeding;

3. in the absence of sufficient conjugal

partnership property, the separate
property of both spouses shall be
solidarily liable for the support of the
family. The spouse present shall,
upon petition in a summary
proceeding, be given judicial authority
to administer or encumber any
181
 specific separate property of the other
spouse and use the fruits or proceeds
thereof to satisfy the latter’s share.

> effects of separation in fact

between the spouse.

Art. 128- If a spouse without just cause

abandons the other or fails to comply with
his or her obligation to the family, the
aggrieved spouse may petition the Court for
receivership, judicial separation of property, or
for authority to be the sole administrator of
the conjugal partnership property, subject to
the precautionary conditions as the Court may
impose.

The obligations to the family mentioned

in the preceding paragraph refer to marital,
parental or property relations.

The spouse is deemed to have

abandoned the other when he or she has left
the conjugal dwelling without the intention of
returning. The spouse who left the conjugal
dwelling for a period of three months or has
failed within said period to give any
information as to his or her whereabouts shall
be presumed to have no intention of returning
in the family dwelling.

> talks of the concept of

abandonment
> remedies of the present spouse
182
LIQUIDATION OF THE CONJUGAL
PARTNERSHIP ASSETS AND LIABILITIES

Art. 129. “ Upon the dissolution of the conjugal

partnership regime, the following procedure
shall apply: [ almost same with Art. 102]

1. an inventory shall be prepared, listing

separately all the properties of the conjugal
partnership and the exclusive properties of
the spouse.

2. amounts advanced by the conjugal

partnership in payment of personal debts and
obligations of either spouse shall be credited
to the conjugal partnership as an asset thereof.

3. Each spouse shall be reimbursed for

the use of his or her exclusive funds in the
acquisition of property or for the value of his
or her exclusive property, the ownership of
which has been vested by law in the conjugal
partnership.

4. The . debts and obligations of the

conjugal partnership shall be paid out of the
conjugal assets. In case of insufficiency of
said assets, the spouses shall be solidarily liable
for the unpaid balance with their separate
properties in accordance with the provisions of
paragraph (2) of f Art. 121.

183
 5. Whatever remains of the exclusive
properties of the spouses shall thereafter
delivered to each of them.

6. Unless the owner has been

indemnified from whatever source, the loss or
deterioration of movables used for the benefit
of the family, belonging to either spouse, even
due to fortuitous event, shall be paid to said
spouse from the conjugal funds, if any.

7. The net remainder of the conjugal

partnership properties shall constitute the
profits, which shall be divided equally between
husband and wife, unless a different proportion
or division was agreed upon in the marriage
settlements or unless there has been a
voluntary waiver of such share as provided in
this Code.

8. The presumptive legitimes of the

common children shall be delivered upon
partition, in accordance with Art. 51;

9. In the partition of the properties, the

conjugal dwelling and the lot on which it is
situated shall be adjudicated to the spouse with
whom majority of the common children choose
to remain. Children below the age of seven (7)
years are deemed to have chosen the mother,
unless the Court has decided otherwise. In
case there is no such majority, the court shall
decide, taking into consideration the best
interest of the said children.

Art. 130 - “ Upon the termination of the

marriage by death, the conjugal partnership
184
property shall be liquidated in the same
proceeding for the settlement of the estate of
the deceased. [same with Art. 103, differs only
on the property regime].

If no judicial settlement proceeding is

instituted, the surviving spouse shall liquidate
the community property either judicially or
extra-judicially within one (1) year from the
death of the deceased spouse. If upon the lapse
of the said period, no liquidation is made, any
disposition or encumbrance involving the
community property of the terminated
marriage shall be void.

Should the surviving spouse contract a

subsequent marriage without compliance with
the foregoing requirements, a mandatory
regime of complete separation of property shall
govern the property relations of the subsequent
marriage. “

>**Take note: of the case of the Heirs of

Patricio Go, Sr. and Marta Barola vs.
Servacio, 657 SCRA 10, where the Supreme
Court ruled that “the disposition by sale of a
portion of the conjugal property by the
surviving spouse without the prior liquidation
mandated by Art. 130 of the Family Court is
not necessarily void if said portion has not
yet been allocated by judicial or extrajudicial
partition to another heir of the deceased
spouse”. [please note that in this case, the sale was
made prior to the Family Code]

Art. 131- “ Whenever the liquidation of the

conjugal partnership property of two or more
185
marriages contracted by the same person
before the effectivity of this Code is carried out
simultaneously, the respective capital, fruits
and income of each community shall be
determined upon such proof as may be
considered according to the rules on evidence.
In case of doubt as to which partnership the
existing properties belong, the same shall be
divided between the different communities in
proportion to the capital and duration of each.”
[same as Art. 104]

Art. 132- The Rules of Court in the

administration of estates of deceased persons
shall be observed in the appraisal and sale of
property of the conjugal partnership, and other
matters which are not expressly determined in
this Chapter.

Art. 133- From the common mass of property

support shall be given to the surviving spouse
and to the children during the liquidation of
the inventoried property and until what
belongs to then is delivered ; but from this
shall be deducted that amount received for
support which exceeds the fruits or rents
pertaining to them.

186
SEPARATION OF PROPERTY OF THE SPOUSES
AND ADMINISTRATION OF COMMON PROPERTY
BY ONE SPOUSE DURING THE MARRIAGE

Art. 134- In the absence of an express

declaration in the marriage settlement, the
separation of property between spouses during
the marriage shall not take place except by
judicial order. Such judicial separation of
property may either be voluntary or for
sufficient cause.

> Take note: applies also even if the

property regime between the spouses
is other than complete separation of
property.

Art. 135- Any of the following shall be

considered sufficient cause for judicial
separation of property.

1. that the spouse of the petitioner has

been sentenced to a penalty which
carries with it civil interdiction.

2. that the spouse of the petitioner has

been judicially declared an absentee;

3. that the loss of parental authority of

the spouse of the petitioner has been
declared by the Court;

187
 4. that the spouse of the petitioner has
abandoned the latter or failed to comply
with his or her obligations to the family
as provided for in Art. 101;

5. that the spouse granted the power of

administration in the marriage settlement
has abused that power;

6. that at the time of the petition, the

spouses has been separated in fact for
at least one year and reconciliation is
highly improbable;

In cases provided for in Numbers

(1), (2) and (3), the presentation of the
final judgment against the guilty or
absent spouse shall be enough basis for
the grant of the decree of judicial
separation of property.

> Take note: these grounds are

exclusive.

Art. 136- The spouses may jointly file a

verified petition with the Court for the
voluntary dissolution of the absolute
community or the conjugal partnership of
gains, and for the separation of their common
properties.

All creditors of the absolute community

or the conjugal partnership of gains, as well as
the personal creditors of the spouse, shall be
listed in the petition and notified of the filing
188
thereof. The Court shall take measures to
protect the creditors and other persons with
pecuniary interest.

> Take note: the petition must be

verified.

Art. 137- Once the separation of property has

been decreed, the absolute community or the
conjugal partnership of gains shall be
liquidated in conformity with this Code.

During the pendency of the proceedings

for separation of property, the absolute
community or the conjugal partnership shall
pay for the support of the spouses and their
children.

> self explanatory

Art. 138 - After the dissolution of the

absolute community or the conjugal
partnership, the provisions on complete
separation of property apply.

> self explanatory

Art. 139 - The petition for separation of

property and the final judgment granting the
same shall be recorded in the proper local civil
registries of property.
189
 > What are to be recorded:

1. the petition for separation of

property

2. the final judgment granting the

same.

Art. 140 – The separation of property shall not

prejudice the rights previously acquired by
creditors.

> self explanatory

Art. 141- The spouses may, in the same

proceedings where separation of property was
decreed, file a motion in court for a decree
reviving the property regime that existed
between them before the separation of
property in any of the following instances:

1. when the civil interdiction terminates;

2. when the absentee spouse reappears;
3. when the court, being satisfied that
the spouse granted the power of
administration in the marriage settlement
will not again abuse that power,
authorizes the resumption of said
administration;
4. when the spouse who has left the
conjugal home without a decree of legal
separation resumes common life with
the other;

190
 5. when parental authority is judicially
restored to the spouse previously deprived
thereof;
6. when the spouses who have separated
in fact for at least one year, reconcile and
resume common life; or
7. when after voluntary dissolution of the
absolute community of property or
conjugal partnership has been judicially
decreed upon joint petition of the
spouses, they agree to the revival of the
former property regime. No voluntary
separation of property may thereafter be
granted.

The revival of the former property

regime shall be governed by Art. 67. [ i.e.,
should be registered]

>simply put: when any of the grounds

for judicial separation of property ceases
to exist.

Art. 142- The administration of all classes of

exclusive property of either spouse may be
transferred by the court to the other spouse:

1. when one spouse becomes the

guardian of the other;

2. when the spouse is judicially declared

an absentee;

191
 3. when one spouse is sentenced to a
penalty which carries with it civil
interdiction; or

4. when one spouse becomes a fugitive

from justice or is in hiding as an accused
in a criminal case.

If the other spouse is not qualified

by reason of incompetence, conflict of
interest, or any other just cause, the
court shall appoint a suitable person to be
the administrator.

>deals with administration by the

wife alone or by the husband
alone of the separate properties.

REGIME OF SEPARATION OF PROPERTY

Art. 143 – Should the future spouses agree in

the marriage settlements that their property
relation during marriage shall be governed by
the regime of separation of property, the
provisions of this Chapter shall be suppletory.

> Take note: this is based on distrust.

> System of Separation of property

defined- it is that matrimonial property
regime agreed upon in the marriage
192
 settlement by the future spouses
whereby each spouse shall own, dispose
of, possess, administer and enjoy his or
her own separate estate and earnings
without the consent of the other, with
each spouse proportionately bearing the
family expenses in accordance to their
earnings and profits.

> take note: once complete separation

of property is agreed in the marriage
settlement, this could not be converted
into conjugal partnership of gains
however the conjugal partnership of
gains can be converted into complete
separation of property during the
marriage, provided there is judicial
approval.

Art. 144- Separation of property may refer to

present or future property or both. It may be
total or partial. In the latter case, the
property not agreed upon as separate shall
pertain to the absolute community.

Art. 145 - Each spouse shall own, dispose of,

possess, administer and enjoy his or her own
separate estate, without need of the consent of
the other. To each spouse shall belong all
earnings from his or her profession, business or
industry and all fruits, natural, industrial or
civil, due or received during the marriage from
his or her separate property.

193
Art. 146- Both spouses shall bear the family
expenses in proportion to their income, or, in
case of insufficiency or default thereof, to the
current market value of their separate
properties.

The liability of the spouses to creditors

for family expenses shall, however, be solidary.

PROPERTY REGIME OF UNION WITHOUT

MARRIAGE

Art. 147- When a man and a woman who are

capacitated to marry each other, live
exclusively with each other as husband and
wife without the benefit of marriage or under a
void marriage, their wages and salaries shall be
owned by them in equal shares and the property
acquired by both of them through their work or
industry shall be governed by the rules on co-
ownership.

In the absence of proof to the contrary,

properties acquired while they lived together
shall be presumed to have been obtained by
their joint efforts, work or industry, and shall
be owned by them in equal shares. For
purposes of this article, a party who did not
participate in the acquisition by the other party
of any property shall be deemed to have
contributed jointly in the acquisition thereof if
the former’s efforts consisted in the care and
maintenance of the family and household.

194
 Neither party can encumber or dispose
by acts inter vivos of his or her share in the
property acquired during cohabitation and
owned in common, without the consent of the
other, until the termination of their
cohabitation.

When one of the parties to a void

marriage is in good faith, the share of the
party in bad faith in the co-ownership shall be
forfeited in favor of their common children. In
case of default of or waiver by any or all of the
common children or their descendants, each
vacant share shall belong to their respective
surviving descendants. In the absence of
descendants such share shall belong to the
innocent party. In all cases, the forfeiture
shall take place upon termination of the
cohabitation.

> Take note: of the requisites for this

article to apply:

1. both parties must be

capacitated to marry each other.
(talks about legal capacity, ex:
age and gender) NOT the
impediment as provided for under
Arts. 37 and 38 of the Family Code)

2. there is no marriage or the

marriage is void.

> presumption of equal

shares between the parties
and properties acquired
during their cohabitation

195
 shall be governed by the
rules on co-ownership.
(Case: Valdez vs. RTC- QC
(Br. 102) and Consuelo
Valdez, GR No. 122749,
July 31, 1996, 72 SCAD
967)

> not applicable in bigamous

marriage.

> when the spouses were married

before the effectivity of the
Family Code, the provisions of the
Civil Code apply. (Case: Castro
vs. Miat, 397 SCRA 271)

**> Take note: Sec. 19(1) of A.M. No.

02-11-10-SC does not apply to cases
governed under Articles 147 and 148.
(Case: Dino vs. Dino, 640 SCRA
178[2011]). This section states that:

Sec.19. Decision- (1) if the Court

renders a decision granting the petition,
it shall declare therein that the decree of
absolute nullity or decree of
annulment shall be issued by the
Court only after compliance with
Art. 50 and 51 of the Family Code as
implemented under the Rule on
Liquidation, Partition and Distribution of
Properties”.

Art. 148- In cases of cohabitation not falling

under the preceding article, only the
properties acquired by both of the parties
196
through their actual joint contribution of
money, property or industry shall be owned by
them in common in proportion to their
respective contributions. In the absence of proof
to the contrary, their contributions and
corresponding shares are presumed to be equal. The
same rule and presumption shall apply to joint
deposits of money and evidences of credit.

If one of the parties is validly married

to another, his or her share in the co-ownership
shall accrue to the absolute community or conjugal
partnership existing in such valid marriage. If the
party who acted in bad faith is not validly
married to another, his or her share shall be
forfeited in the manner provided in the last
paragraph of the preceding article.

The foregoing rule on forfeiture shall likewise

apply even if both parties are in bad faith.

> the rule is applicable in bigamous

marriage and in cases of incestuous
union, even if the marriage did not
take place.

>Case: Adriano vs. CA, 385 Phil 474,

the fact that the property in issue is in the
name of the parties to an adulterous
relationship is not sufficient proof of co-
ownership absent evidence of actual
contribution in the acquisition of said
property.

197
THE FAMILY

Art 149 – the family being the foundation of the

nation is a basic social institution w/c public
policy services and protects. Consequently,
family relation are governed by law and no
action, practices or argument destructive of the
family shall be recognized or given effect.
( consideration of Art. 216 – 218 of the CC)

 Take note: of the importance of the family

as emphasized under sec. 12, art II, 1987
constitution where it states the following:

1. recognizes the sanctity of family life

2. equally protect the life of the mother

and the unborn from conception.

3. support the primary right and duty of

parents in rearing the youth

Other provisions of the constitution

recognizing family life:

sec. 1 – recognizes the Filipino family as

of the foundation of the nation

sec. 2 – marriage as an inviolable social

institution, foundation of the family and
shall be protected by the state

sec. 3 – the state shall defend:

198
 1. right of spouse to form a family in
accordance of religious conviction
and demands of responsible
parenthood.

2. right of the children to assistance

including proper case and
retirement special protection for all
forms of neglect, abuse , cruelty
and other conditions prejudiced
their development ( reason for RA
7610)

3. right of the family to a family living

wage and income and;

4. the right of families or family

associations to participate in the
planning &implementation of
prospects affecting them.

5. sec. 4 – the family has the duty to

take care of its elderly members but
the state may also do so through
programs of social security (senior
citizens)

Art. 150 – family relations include those:

1. between husband and wife.

199
 2. between parents and children

3. among other ascendants and

descendants and

4. among brothers and sisters whether of

the full of half blood.

*does not include brother in law or sister in law

Art. 151 – no suit between members of the

same family shall prosper unless it would appear
from the verified compliant or petition that
earnest efforts towards a compromise have been
made, but that the same failed. If it is shown
that no such efforts were in fact made, the case
be dismissed.

*not applicable to cases which may not be

subjected to a compromise agreement

FAMILY HOME:

Art. 152 – the family home, constituted jointly

by the husband and the wife or by an
unmarried head of a family – is the dwelling
home where they and their family reside and the
land on which it is extended.

200
 >once it is resided – it becomes automatically a
family home – no more judicial constitution of family
home.

 it is exempt from executions, forced sale or

attachment as a general rule

Case : Valdez v. RTC of QC, et. al.

GR No. 122749 July 31, 1996

*concept of family home remains in force and

effect regardless of the property regime of the
spouses.

Not a family home when:

a. none of the family members reside therein as

it is merely used as bodega or store
b. even if they sleep there but do not use it as
their homes

Case: Manacop vs. CA, et al

GR No. 97898 august 11 1997

Take Note: In-laws (included in the

family home. Actual occupancy of the
family home either by the owner or by
any of the beneficiaries must be actual.

 Take note: If the increase in the value of

the family home is by reason of
involuntary improvement, [like the
conversion into a residential area or the
201
 establishment of roads] the one
establishing the family home should
not be punished by making his home
liable to creditors [Case: Eulogio vs. Bell
Sr., 762 SCRA 103]. It remains free
from attachment and forced sale.

 If the increase in the value is

VOLUNTARY [improvement ], thereby
exceeding the maximum amount, Art.
160 applies. To apply Art. 160, the
following requisites must be present:

1. There was an increase in its

actual value
2. The increase resulted from
voluntary improvements on the
property introduced by the
persons constituting the family
home, its owners or any of its
beneficiaries;
3. The increased value exceeded
the maximum allowed by law
under Art. 157.

Art. 154 – Beneficiaries of a family home

1. the husband and wife or an unmarried

person who is a head of a family and

2. their parents, ascendants, descendants,

brothers and sisters whether the
relationship be legitimate or illegitimate
who are living in the family home and who
depend upon the head of the family for
legal support.

202
Art. 155 – the family home shall be exempt
from execution, forced sale or attachment
except:

1. non payment of taxes

2. for debts insured prior to the

construction of the family home

3. for debts secured by mortgage on the

premises before or after such
construction and

4. for debts due to laborers, mechanics,

architects, builders, material men and
others who have rendered services or
furnished materials for the construction of
the building.

Art. 156 – the family home is a part of the

property of the absolute community or the
conjugal partnership. It can also be a part of the
exclusive property of the husband and wife.

Art. 157 – talks about the value of the family

home depending upon its location.

 does not exceed Php.300,000 in the urban

areas and Php 200,000 in rural areas at the
time of its construction.

203
Art. 158 – family home may be sold, alienated,
donated, assigned or encumbered by the owner
or owners thereof with the written consent of
the person constituting the same, the latter’s
spouse and a majority of the beneficiaries of
legal age. In case of conflict, the court decides.

Art. 159 – Lifetime of Family Home

 the family home should continue despite the

death of one or both of the spouses or of the
unmarried head of the family for a period
of 10 years for as long as there is a
minor beneficiary.

>no partition except there is a compelling

reason to justify the same.

Art. 160 – contemplates a situation where a

person has to claim against owners of a family
home but not falling under the cases where the
Family Home can be attached or levied and the
Family Home is more than 300,000 or 200,000
as the case may be:

 Take Note : *creditors can go against

the Family Home

Conditions:

1. there must be a suit for collection

2. apply to the court for a judgment
directing the sale of the Family Home
204
 3. Family home must exceed the maximum
amount provided by the law
4. proceeds must be distributed as follows:

a. maximum value of Family Home

b. credit
c. excess be given to Family Home
owners

Art. 161 – one person can only have one family

home

>the rest of his houses and lots could not

be considered as family home.

Art 162 – simply means:

 all existing family residences at

the time the Family Home was
constituted are prospectively
entitled to the benefits accorded
to a family home.

PATERNITY and FILIATION:

Definition: refers to the relationship between

the parent and the child.

> created either by nature or imitation of

nature ( ex: adoption)

205
 Paternity- civil status of the father with regard
to the child

Maternity- civil status of the mother with

regard to the child.

Legitimate Children

Art 163 – children may be by nature or by adoption

 Natural filiation may be legitimate or

illegitimate

Art 164 – refers to legitimate children or those

conceived and born during marriage

 even those born of marriages

which are absolute nullity so
long as they are born prior to
their declaration as such.

* final judgment is the reckoning

incident here.

Rules on Artificial Insemination

1. children are legitimate – regardless of

whose sperm he/she comes from or who the
donor is.

206
Requirements for valid insemination:

1. must be authorized by both husband and

wife. [this should be done before
insemination]

2. or must be ratified by the one who did not

or was not able to give his authority before
the insemination took place. [should be done
after insemination or before the birth of the
child]

3. authorization and ratification must be in a

written instrument signed by both parents
before the birth of the child.

4. the written instrument must be registered

with the civil registry together with the birth
certificate. Otherwise, the child is illegitimate

Take note of the following situations:

1. children born of marriages under Art. 54

(or before the marriage is annulled) are
LEGITIMATE.

2. children born of marriages under Art. 36

(or before the declaration of nullity of marriage
) are LEGITIMATE.

3. children born of marriages under Art. 53

( or subsequent marriages) - or where there is
failure to partition the property of previous
marriage are PRESUMED LEGITIMATE.
The same is true if there is failure to
record the decree of annulment or the

207
 decree of nullity of marriage. Reason: the
law is in favor of LEGITIMACY.

Art. 165 – refers to Illegitimate Children

> those conceived and born outside a valid

marriage

Take note: * all children born under marriages

that are void, except those marriages which
produce legitimate children ( under Art 36, 53,
54 and 55).

Take note: the following marriages produce

illegitimate children:

1) under Art 35. – marriages which are

void from the very beginning. [ even if not
declared as such]

2) under Art. 37 – incestuous marriages

3) under Art. 38 – void by reason of public

policy

Art. 166 – Grounds for impugning legitimacy

1. that it is physically impossible for the

Husband to have sexual intercourse with his
Wife within the first 120 days of the 300
days which immediately preceded the birth of
the child because:

a. of physical incapacity/ impotency

208
 b. the husband and wife are living
separately in such a way that sexual
intercourse is not possible

c. of serious illness of the husband which

absolutely prevented sexual intercourse.

2. if it is proved that for biological or scientific

reasons, the child could not have been that of
the husband except in the instance provided for
in the 2nd part of Art. 164.

3. in case of artificial insemination, the written

authorization or ratification of either parent was
obtained through fraud, mistake, violence,
intimidation and undue influence.

>the father can impugn but not the

mother even if she declared said child as
such or has been sentenced as
adulteress.

>** CASES RELATIVE TO THE ISSUE ON

PATERNITY:

1. De Aparicio v. Paraguya,
L299771, May 29, 1987 [syphilis is a
serious illness]

2. Jao v. CA, GR No. L 49162, July 28

1987, [blood grouping test may be
conclusive as to non paternity not
conclusive as to paternity.

209
 3.Agustin vs. Court of Appeals, 460
SCRA 315, where the Court ruled
that DNA testing is a valid means of
determining paternity.

4.** Estate of Rogelio Ong vs. Diaz,

G.R. No. 171713, December 17,
2007, where the Court ruled that the
death of the claimed father does not
ipso facto negate the application of DNA
testing for as long as there exists
appropriate biological samples of his
DNA.

5.**Lucas vs. Lucas, 650 SCRA

667[2011], where the Court ruled
that, to warrant the issuance of the DNA
testing order, there must be a show
cause hearing where the applicant
should show sufficient evidence to
establish a prima facie case or a
reasonable possibility of paternity or
good cause for the holding of the test.

Art. 167 – the child may be considered

legitimate although the mother may have
declared against its legitimacy or may have been
sentenced adulteress.

Art 168 –

General Rule: law prohibits a woman whose

marriage with a man has been terminated by
death from marrying within 300 days after
its termination to prevent doubtful paternity.

210
 Except: if the woman remarries within
300days, but prior to the marriage she has
already given birth to a child conceived prior to
the death of the husband.

But if this happens, the rules are:

1. child born before 6 months after

solemnization of the subsequent marriage
is considered to have been conceived
during the former marriage provided it be
born within 300 days after the
termination of the former marriage.

2. a child born after 100 days following

the celebration of the subsequent
marriage is considered to have been
conceived during such marriage even
though born within 300 days after the
termination of the former marriage.

Art. 169 – the legitimacy / illegitimacy of a child

born after 300 days following the termination of
the marriage shall be proven by whoever alleges
such legitimacy or illegitimacy

*Reason: legitimacy is presumed

Art. 170 – prescriptive period within which to

impugn the legitimacy of a child by the husband
or any of his heirs.

211
 Rules:

1. within one (1) year from knowledge of

the birth or its recording in the civil registry
if the husband or any of his heirs are
residing in the municipality where the birth
took place.

2. within two(2) years if the husband or

any of his heirs are not residing in the place
where the birth is recorded. [i.e. if they are
residing in the Philippines].

3. within three (3) years if the husband or

any of his heirs are living abroad.

Art. 171 – the heirs of the husband may impugn

the filiation of a child within the period (1, 2, 3
yrs)

Only in the following cases:

1. if the husband should die before the

expiration of the period fixed for bringing the
action

2. if husband should die after the filing of the

complaint without having desisted there from

3. if the child was born after the death of the

husband

Take note: only in these instances because

the right to contest legitimacy is transmissible

212
 to the heirs who are affected in so far their
legitime and successional rights are concerned.

Art. 172 – Proof of Filiation

1. record of birth appearing with the Office of

the Local Civil Registrar or in a final
judgment.

Take note: it must be signed by the

putative father to be admissible

*Case: Baluyot v. Baluyot, 186 SCRA

506 [unsigned birth certificate is not enough
to establish filiation].

>Take note however that in the case

Ilano v CA 48 SCAD 43 (1994), the
Supreme Court ruled that: [even if an
unsigned Birth Certificate is inadmissible in
evidence, if it is the father was the one who
supplied the data appearing therein, it can be
admissible in evidence]. Hence, a concrete
proof is needed. This ruling is sustained in
the case of Rodriguez v. CA et. al.,
245 SCAD 150 where the Supreme
Court further stated that [the Family Code
now allows the establishment of illegitimate
filiation in the way and with the same
evidence as legitimate children].

2. admission of legitimate filiation in a public

document or a private handwritten
instrument and signed by the concerned.

213
Take note: In the absence of numbers 1 and
2, legitimate filiation may be proven by:

a. open and continuous possession of the

status of legitimate child
b. any other means allowed by the Rules
of Court and Special Laws.

Examples:

a) Court order in an action to compel

recognition
b) authentic writing which may be public
or private (ex: will). Take note
however ; that private writing
must be in handwriting of the father
and must be signed by him.

>**Take note of the: case of Dela

Cruz vs. Gracia, 594 SCRA 648, where
the Supreme Court laid down the rules
with respect to the requirement of
affixing the signature of a parent in a
private handwritten instrument where the
admission of filiation of a legitimate or
illegitimate child is made:

1.where the private handwritten

instrument is the lone piece of
evidence submitted to prove
filiation, there should be strict
compliance with the requirement
that the same be signed by the
acknowledging parent; and

2.where the private handwritten

instrument is accompanied by
214
 other relevant and competent
evidence, it suffices that the claim
of filiation therein be shown to
have been made and handwritten
by the acknowledging parent as it
is merely corroborative of such
evidence. [ruled in the case of
Aguilar vs. Siasat, G.R. No.
200169, January 28, 2015].

>** Take note however, that in the

case of Salas vs. Matusalem, 705
SCRA 560[2013], the Court ruled
that, handwritten notes between the
parties showing their exchange of
affectionate words and romantic trysts
are not sufficient to establish filiation
because they were unsigned and
contain no statement/ admission of
paternity. Same ruling was adapted in the
case of Nepomuceno vs. Lopez, 616
SCRA 145[2010]. Take note further
that: if the Birth Certificate of the
child was registered AFTER the
death of the putative father, thru
“delayed registration”, the same is
not a competent proof of paternity
against the putative father because
he was not involved nor had a
hand in its preparation. [ Ara vs.
Pizarro, 2017 case ___________]

>Take note: Baptismal Certificate or

Photographs are NOT evidence of filiation
because there is no showing that the
father participated in its preparation.
215
>Take note of the following:

 filiation of illegitimate
children must be proven during
the lifetime of the father.

 Blood test not an evidence of

filiation. Thus, in criminal
prosecution for rape, its
evidenciary value is limited only to
the determination that anyone of
the accused might be the father.
[Case: People v. Tumimpad 235
SCRA 483 (1994)]

 Unusual closeness to a child is

not a convincing proof of filiation
[Case: Tan v. Trocio, 191 SCRA
764

 For voluntary recognition to be

equivalent to filiation in the Family
Code, it must be exposed and
expressed. [Case: Colorado v. CA
GR No. 39948, Feb. 28, 1985]

 open manifestation of the deeds

of a father is itself
acknowledgement that a child is
his son / daughter. [Case:
Reymond Pe Lim vs. CA, 80
SCAD 685 (1997)].

216
 * legitimacy of a child cannot be
questioned collaterally, it must be
by a direct attack [Case: Tison v.
CA et. al., 85 SCAD (1997
case). Absolutely, not in an
action for reconveyance of
property.

Degree of proof:

>open and continuous possession

of the status of illegitimacy
meaning: uninterrupted and
consistent but does not require a
particular length of time but it
must be complied w/ permanent
intention to consider the child as
his illegitimate child

Art. 173 – action to claim legitimacy may be

bought by the child during his or her lifetime and
shall be transmitted to the heirs should the child
die during minority or in the state of insanity. In
this case, the heirs have a period of five years
within which to constitute the action:

>Take note of the: condition and/or

requirement for this article to apply:

* it must be commenced by the child

prior to her death or that of his father.

Art. 174 – rights of legitimate children

217
 1. to bear the surnames of the father and the
mother;

2. to receive support from their parents,

ascendants and descendants, brothers and
sisters ;

3. to be entitled to legitime and other

successional rights;

Art 175 – period within which to establish

legitimacy

 within the child’s lifetime

 transmissible to his heirs ( must

be brought w/in 5 yrs from
death or becoming insane).
 Actions survives even after the
death of the child or of the
father.

 Period w/in w/c to establish

illegitimacy: [ during the lifetime of the
father ] Take note however of the case of
[Marquino et. al., v. IAC et. al., 52 SCAD
425] where the Supreme Court ruled that [an
action to establish filiation of an illegitimate
child, if the father died, survives the death of
the father.

 Take note of the following:

218
 > 1. if the action is brought
before the Family Code:

 compulsory recognition is
governed by Art. 284 of the
Civil Code thus, if the Father
or the Mother died during the
minority of the Child, the action
may be brought within four
(4) years from the child
becomes of age.

> 2. if the action is brought under

the Family Code

* must be brought during the

lifetime of the father

 may be brought during the

lifetime of the child but it could
be transmitted to his heirs

**Art. 176- illegitimate children shall use the

surname and shall be under the parental
authority of their mother, and shall be entitled
to support in conformity with this Code. The
legitime of each illegitimate child shall consist
of one – half of the legitime of a legitimate
child. [amended by R.A. 9255].

>**Take note: that R.A.9255 gives

illegitimate children the right to
decide if they want to use the
219
 surname of their father or not. The
choice is with the child and the latter
is not under compulsion to use the
surname of his illegitimate father even
if acknowledged or recognized. The
father could not insist. (Case: Grande
vs. Antonio, 716 SCRA 698 [2014].
Take note further that, the Supreme
Court declared as null and void the
provision of the Implementing Rules and
Regulation ( IRR) of RA 9255, Office of
the Local Civil Registrar Administrative
Order No. 1, Series of 2004 issued by
the NSO which makes it mandatory on
the part of illegitimate children to
use the surname of their father
upon recognition.

LEGITIMATED CHILDREN

Art. 177 – only children conceived and born

outside of wedlock of parents who at the time of
the conception of the former, were not
disqualified by any impediment to marry each
other may be legitimated.

Art. 178 – legitimation shall take place by a

subsequent valid marriage between parties.

-
 if marriage is void, NO legitimation will
take place.

220
  the annulment of a voidable marriage shall
not affect legitimation.

Art. 179 – legitimated children shall enjoy the

same rights as that of the legitimate children

Art. 180- the effects of legitimation shall retroact

to the time of child’s birth

Art. 181 – the legitimation of children who died

before the celebration of the marriage shall
benefit their descendants

 even if the child is already dead, if the

parents would get married, the marriage
could redound to the benefit of his children

Art. 182 – who can impugn legitimation

 only those who are prejudiced of their rights

> when

* within five (5) years from the time their

cause of action accrues.

ADOPTION

221
Defined: it is the judicial act that creates between
two persons certain relations, purely civil, of
paternity and filiation. Process of making a child
whether related or not to the adopter, possess in
general, the rights accorded to a legitimate child.

Nature: proceeding in rem, hence publication is

Needed.

Old concept: to benefit the adopter

> for them to experience the feelings of

parenthood.

Modern concept: for the benefit of children

to be adopted

Consideration: paramount or best interest of

the child

Hence: an adopted child becomes the child of the

adopters but not to become the relative of the
adopter’s relatives.

> Take note: the relationship

established by adoption is limited to the
adopting parents and does not extend to
their other relatives except as expressly
provided by law. Thus, the adopted child
cannot be considered as a relative of the
ascendants and collateral relatives of the
adopting parents nor of the legitimate
222
 children which they may have after
the adoption, except that: the law
imposes certain impediments to marriage
by reason of the adoption ( ex. Adopter
and adopter, adopted and legitimate child
of adopter, adopted or illegitimate child of
adopted), neither are the children of
the adopted considered as
descendants of the adopter. (Case:
Santos v. Republic 21 S 379 , Teotico
v. de Val 13 S 406).

Art 183 – qualifications of an adopter

a. must be of age ( at least 18 yrs old)

b. must be in possession of full civil capacity
and legal rights.
c. at least 16 yrs of age older than the adopter
unless the adopter is the parent by nature
of the adopted or is the spouse of the
legitimate parent of the person to be
adopted.

> Take note of the General

rule: only minors may be adopted.
However even if of age, he can be
adopted if the person sought to be
adopted is the child by nature of
the adopter or of his or her spouse
and prior to the adoption said
person has been consistently
considered and treated by the
adopter as his/her own child during
minority.

223
Art 184 – the following persons may not adopt.

1. the guardian with respect to the ward prior

to the approval of the final accounts
rendered upon the termination of their
guardianship relation ;

2. any person who has been convicted of a

crime involving moral turpitude; and

3. an alien

Except:

a. a former Filipino citizen who seeks to

adopt a relative by consanguinity;

b. one who seeks to adopt the

legitimate child of his/her Filipino
spouse ; and

c. one who is married to a Filipino citizen

and seeks to adopt jointly with his or her
spouse a relative by consanguinity of the
latter.

> aliens not included in the

exception may adopt Filipino
children in accordance with the
rules on Inter Country Adoption
(RA 8043)

> Take note: Art 184 – must be read

together with Art. 185 because Art. 185
is applicable/ mandatory if one of the
adopters is an alien.

224
Art 185 – Husband and Wife must jointly adopt
except:

1. when one spouse seeks to adopt his own

illegitimate child and;

2. when one spouse seeks to adopt the

legitimate child of the other

>**this is mandatory because of the use

of the word must in the provision itself
and “the word shall in Sec. 7 of the
Domestic Adoption Act. (Case:
Petition for Adoption of Michelle P.
Lim and Michael Jude P. Lim, 588
SCRA 98[2009]).

>**Take note: An exception to the rule

that spouses must jointly adopt is
when one spouse seeks to adopt his
or her illegitimate child. The following
conditions must however be complied as
they are mandatory:

1.the adopting spouse must obtain

the consent of his/her spouse.
(Case:Castro vs. Gregorio, 738
SCRA 415[2014]); and

2.the other spouse and other

legitimate children must be
personally notified through
personal service of summons and it
is not enough that they are
deemed notified through

225
 constructive service, (Castro
case)

**Query: What is the effect if the

requirement on personal notice is not
complied. ANSWER: the Court does not
acquire jurisdiction over the proceedings
and the decision of the Court is null and
void.

Art 186 – provides that joint parental authority shall

be exercised by the spouses.

> Take note: case of the following cases:

1). Republic v. Hon Rodolfo Toledano

et al. 52 SCAD 124 (1994), where the
SC reversed the decision of the RTC
allowing the adoption of a minor (brother
of wife-petitioner Evelyn Clouse) SC said:
Art. 185 is all too clear and
categorical such that, there is no
room for interpretation only
application, notwithstanding the fact
that the alien spouse had given his
consent and testified in court.

2. Republic v. CA et. al. Jan 24, 1992,

GR No. 92326, where the SC allowed
the adoption even if the husband did not
join his wife because the petition was
filed prior to the effectivity of the Family
Code, on the ground that though laws
must not be given retroactive effect,
they must not be applied as to defeat
226
 procedural steps completed before its
enactment.

2. Sayson v. CA , 205 SCRA 24, where it is

ruled that, any challenge to the validity of
the adoption cannot be made collaterally, as
for example in an action for partition, but
it must be in a direct proceedings finally
addressing the issue.

RA No. 8043 – Inter Country Adoption Act of 1995

 this law was enacted by way of exception to

the rule that aliens cannot adopt in the
Philippines: ( this is an exception to the
exception)

> Basic policy:

* to provide every neglected and

abandoned child with a family that
will provide such child with love
and care as well as opportunities
for growth and development.

> Nature:

* it allows aliens to adopt a Filipino

child when the latter cannot be
adopted by a qualified Filipino
citizen or alien. Take note that:
it singles out neglected and
abandoned child as priorities.

227
> Concept of inter-country adoption

*it is a social legal process of

adopting a Filipino child by a
foreigner or a Filipino citizen
permanently residing abroad 1)
where the petition is filed, 2) the
supervised trial custody is
undertaken, and 3) the decree of
adoption is issued.

> child here means below 15

> Mechanics:

1. child must first be placed under

adoption in the Philippines before
he is placed for inter country
adoption.

2. only legally free child (or one)

who has been voluntarily or
involuntarily committed to the
DSWD in accordance with The
Child and Youth Welfare Code, PD
603), may be the subject of inter
country adoption.

> Who can adopt

* an alien or a Filipino citizen

permanently residing abroad
who is:

a. at least 27 yrs. of age and at

least 16 yrs. older than the

228
adoptee at the time of the
application unless the
adopter is the parent by
nature of the child to be
adopted or the spouse of
such parent

b. if married, husband and

wife must jointly file

c. has the capacity to act and

assume all rights and
responsibilities of parental
authority under his natural laws
and has undergone counseling
from accredited counselor in
his/her country.

d. not convicted of a crime

involving moral turpitude

e. eligible to adopt under his

own laws

f. can provide proper case,

support and give necessary
moral value and example to all
his children to include the
adopted.

g. agrees to uphold basic rights

of a child and under the
Convention on the rights of the
child

h. comes from a country with

whom the Philippines has
diplomatic relation

i. has in possession of all the

qualifications and none of the
disqualifications provided for
229
 under the law and other
applicable Philippine Laws

> where to file: EITHER

1. with the Philippine Regional

Trial Court which has jurisdiction
over the child or;

2. with Inter Country Adoption

Board through an intermediate
agency whether government or an
authorized accredited agency in the
country of the prospective adoptive
parents.

> family selection matching:

*no child shall be matched to a

foreign adoptive family unless
satisfactorily shown that a child
cannot be adopted locally.

> ** On the Requirement of a

Certification Declaring a Child
Legally Available for adoption
issued by the DSWD:

>**Things to remember:

1. the process of obtaining it is

entirely administrative in nature in
view of the amendment of Sec.8
of R.A. 9523,( An Act requiring
Certification of the DSWD to

230
 Declare a Child Legally
Available for Adoption), which
provides that the process may be
administrative or judicial.

2.applies only to surrendered,

abandoned, neglected and
dependent child, ( Sec. 4, IRR of
R.A. 9523).

3. no certification is needed in the

following cases which can be filed
directly in Court:

a. adoption of an
illegitimate child by any
of his/her biological
parent;
b. adoption of a child by
his/her step-parent
c. adoption of a child by a
relative within the 4th
degree of consanguinity
or affinity.

> Sec 7: who may adopt

a. filipino citizen (same as FC)

b. any alien possessing same
qualifications as that of a Filipino
national provided:

231
 1. that his country has
diplomatic relation with the
Philippines;

2. living in the Philippines for

at least three(3) years

3. continuous stay prior to the

filing of the application for
adoption

4. maintains residence until the

adoption decree is entered

5. that he has been certified by

his diplomatic or consular office
or any appropriate agency that
he has legal capacity to adopt
in his / her country

6. that his government allows

the adoptee to enter his/her
country of his/her adopted child

Provided further, that the

requirement on residency and
certification may be waived in the
following cases:

a. a former Filipino citizen who

seeks to adopt a relative w/in
the 4th degree of consanguinity
or affinity

b. one who seeks to adopt a

legitimate son/ daughter of
his/her Filipino spouse;

232
 c. one who is married in a
Filipino citizen and seeks to
adopt jointly w/ his/her spouse
a relative w/in 4th degree of
consanguinity or affinity of the
Filipino spouse.

> Husband and wife shall jointly

adopt except in the following
cases:

a. if one spouse seeks to

adopt the legitimate
daughter or son of the
other;

b. of one seeks to adopt

his/her own illegitimate child
provided that the other
spouse has signified his/her
consent. The consent of
the latter is mandatory,
[Case: Castro vs,
Gregorio, 738 SCRA
415(2014). The consent
of the other legitimate
children is also needed and
consent must not be
constructive. There is a
need that they be
personally notified through
personal service of
summons otherwise, the
Court does not acquire
jurisdiction over the case
and the proceedings if any
will be null and void.

233
 c. spouses are legally
separated from each other.

*Effect: joint parental authority

> Sec. 8 – who may be adopted ( RA 8552)

a. any person below 18 yrs who has been

administratively or judicially declared
available for adoption

b. the legitimate descendant/s of one

spouse by the other spouse

c. an illegitimate descendant/s by a
qualified adopter to improve his/her right.

d. any person of legal age who prior to

the adoption has been treated by the
adopters as their own during his/her
minority;

e. a child whose adoption has been

previously revoked;

f. a child whose biological or adoptive

parents has died provided no proceeding
shall be initiated within a month from the
time of death.

Sec. 9 – whose consent is necessary :

a. adoptee; if 10 yrs on over

b. biological parents, if none, guardians

or the custodian of the child
234
 c. the legitimate and adopted children or
descendant/s, ten (10) yrs of age or over
of the adopter/s

d. illegitimate children or descendant/s,

ten (10) yrs of age or over of the
adopter if living with the adopter and the
latter’s spouse if any;

e. the spouse, if any, of the adopter or

the adoptee

Art. 187 – the following may not be adopted:

a. a person of legal age unless (see prior

qualification)

b. an alien, whose government the Philippines

has no diplomatic relation;

c. a person who was already adopted unless

such adoption has been previously is revoked
or rescinded.

Art. 188 – who can give consent (written)

*same with Sec. 9 of RA 8552

Art. 189- effects of adoption

1. adopted shall become legitimate child of the

adopter w/ reciprocal rights and obligations
235
arising from the relationship of parent and
child;

 2. parental authority of natural parents shall

be terminated and shall be vested to
adopters except if the adopter is the spouse
of the parent by nature in which case,
joint parental authority will be exercised.
Take note however that: When the
adopter dies during the minority of the
adopted child, the parental authority is
restored to the natural parents, applying
by analogy the provisions of Sec. 20 of
the Domestic Adoption Act, [Case:
Bartolome vs. SSS, 740 SCRA
78(2014)].

3. the adopted shall remain an intestate heir of

his parents and other blood relatives.

>Take note: of the retroactive effect of

adoption [date the petition for adoption] was
filed i,e., the adopted shall enjoy the rights
and privileges of a legitimate child. No
retroactive effect however for the purpose of
attaching liability (derived from torts] to the
adopting parents for acts committed by the
child prior to the latter’s adoption.
Rationale: practically they do not have
actual or physical custody of the child or the
control and supervision over the child yet.
[Case: Tamargo vs. CA, 209 SCRA 518].

236
Art. 190 – Rules on legal or intestate succession
to the estate of the adopted

*legal or intestate succession shall be governed

by the following rules :

1. legitimate and illegitimate children and

descendants and the surviving spouse of the
adopted shall inherent from the adopters in
accordance with the ordinary rules

* adopter does not share

2. when the parents, legitimate and

illegitimate, or the legitimate ascendants of
the adopted concur with the adopters they
shall divide the entire estate, one half to be
inherited by the parents or ascendants
and one half by the adopters.

3. when surviving spouse or the illegitimate

children of the adopted concur w/ the adopters
they shall divide the entire estate, (1/2
sharing)

4. when the adopter concurs with the

illegitimate children and spouse of the
adopter – (1/3 each)

5. when only the adopters survive they shall

inherit the entire estate

6. when only the collateral relatives of the

adopted survive, then the ordinary rules of
legal or intestate succession shall apply

237
 > Take note: natural parents are heirs
of adopted and the adoptive parents are
likewise heir of adopted

> Take note: unlike the legitimate

children, an adopted shall not inherit
from the ascendants and other
collateral relatives of adopting
parents, (Case: Sayson v. Sayson,
205 SCRA 321. * there is also no right
of representation.

Art 191 – rescission of adoption

> by the adopted if of age already or

by any person authorized by the court or
any government instrumentality on his
behalf. (Take note: Rescission of
adoption under the new rules can be
brought only by the adopted)

Art. 192 – grounds for rescission by adopters

(NO LONGER APPLICABLE)

Art. 193 – Effects of Judicial Rescission

1. the rights and obligations between the

adopter and the adopted arising from the
adoptive relationship cease.

238
2. the adopted loses the right to use the
adopter’s surname and shall resume the
use of his/her surname prior to the
adoption.

3. parental authority shall be given back to

the parents by nature or if disqualified,
then to a court appointed guardian.

>**Query: What is the remedy if the adoption

is found to be obtained fraudulently:

Answer: Annulment of judgment.

Prescriptive Period: within four(4) years from
the discovery of extrinsic fraud. (Case: Castro
vs. Gregorio, 738 SCRA 415[2014]).

>Take note of the other matters in

adoption:

>When a child is placed under the

foster care [provision of planned
temporary substitute parental
care to a child by a foster
parent] of foster parents [pursuant
to the provisions of RA10165]
the latter shall have the rights,
duties and liabilities of persons
exercising substitute parental
authority. As regards the right to
discipline the children under their
foster care, they have the right of
a person exercising special
parental authority because the
law prohibits the infliction of
corporal punishment upon these
children otherwise, it might result in
239
 the revocation of the Foster Family
Care License and Termination of
Foster Placement Authority
pursuant to Sec. 8, RA 10165 and
Rule 8, Part III, IRR of RA No.
10165].

Art . 194 – SUPPORT

Definition: comprises everything indispensable

for sustenance, dwelling, clothing, medical
attendance, education and transportation
in keeping with the financial capacity of
the family.

> Take note: Education shall

include his schooling or training for some
profession, trade or vocation even beyond
the age of majority

> Take note: grand children not

included (Case: Estate of Hilario M.
Ruiz, et. al. v. CA 67 SCAD 20

Art. 195 – the following are obliged to support

each other:

a. spouses
b. legitimate ascendant and
descendant.

240
 c. parents and their legitimate
children or the legitimate and
illegitimate children of the latter
d. parents and their illegitimate
children and the legitimate and
illegitimate children of the latter
e. legitimate brothers and sisters
whether full or half blood.

Art. 196 – brothers and sisters not legitimately

related whether of the full or half blood are
likewise bound to support each other.

Except: only when the need for support of the

brother or sister being of age is due to a cause
imputable to the claimant’s fault or negligence

Art 197 – self explanatory

Art 198 – this is in conformity w/ art 149

> Where to get support during

proceedings for legal separation,
annulment of marriage and declaration of
nullity

> Take note: after finality of decision –

the mutual obligation to support each
other ceases

> Take note: in case of legal

separation , the court may order the

241
 guilty spouse to give support to the
innocent one.

Art 199 – order of liability in matters of support

1. the spouse
2. the descendant in the nearest degree
3. the ascendants in the nearest degree
4. the brothers and sisters

Art 200, 201, 202, 203, 204 – obligation of several

obligors (to give support) is JOINT and not
SOLIDARY.

>Take Note: before support is paid,

there must be judicial or extra judicial
demand

Art. 205 – the right to receive support is exempt

from attachment or levy

Articles 206, 207 – 3rd person may furnish support

to a person and has the right to reimbursement
unless the contrary is provided

PARENTAL AUTHORITY

Art 209 – concept parental authority

242
 > sum total of the rights of parents
over the person and property of
their children

Art 210 – parental authority and responsibility

may not be renounced or transferred except in
cases authorized by law like in adoption and
guardianship [if renounced it is void].

Art 211 – Joint parental authority of the husband and

wife. In case of disagreement the husband’s decision
prevail unless there is a judicial order to the contrary.

Art. 212 – In case of death of one spouse, the

surviving spouse exercises parental authority. If the
surviving spouse remarries, his/her parental
authority over the children remains unless the
court appoints another as guardian of the person and
property of the children.

Art. 213 – take note:

In case of legal separation of spouses, parental authority shall

be exercised by the parent designated by the court, taking into
account relevant considerations, especially, the choice of the
child over 7yrs of age unless the parent chosen is unfit.

 No child 7 yrs of age or below shall be

separated from the mother unless the
243
 mother is unfit or the court finds compelling
reasons to order otherwise. This is known
as the “tender age presumption”.
[Case: Gamboa –Hirsch vs. CA, GR No.
174485, July 11, 2007].

Example of compelling reasons:

* Insanity, prostitution, and

philandering.

 Take note: (Case: Luna v. IAC, June 18 ,

1985) *child’s best interest can overrule
procedural rules and even parental right.

 Case: Cervantes v. Fajardo, GR. No.

79955, Jan. 27, 1989 * common law
relationship of a mother with a married man
is a ground to separate the child.

 Case: Espiritu v. CA et. al., 242 S 362

Mar. 15 1995- * in matters of the custody
of a child, his best interest is to be uphold.

>** Case: Dacasin vs. Dacasin, 611 SCRA

657[2010], SC ruled that the statutory
awarding of sole parental custody to the mother
under the second paragraph of Art. 213 of the
Family Code is mandatory and any agreement
to the contrary is void. (this is called the
exclusive maternal custody regime).

Art. 214 – in case of death, absence or unsuitability

of the parents, substitute parental authority shall
be exercised by the surviving grand parents. In
244
case several survive, the one designated by the court,
taking into account all consideration – (ie. Best
interest of the child), shall exercise the authority.

Art. 215 – No descendant shall be compelled in a

criminal case to testify against his parents and grand
parents except when such testimony is indispensable
or by one parent against the other. [But if voluntary,
the child can].

> Take note: said privilege does not include or

extend to civil case.

>Cases on Parental Authority in case of

Legal Separation: Sy vs. CA, 541 SCRA 371;
Gamboa- Hirsch vs. CA, 527 SCRA 380

Art. 216 – who can exercise substitute parental

authority

1. surviving grand parent

2. the oldest brother or sister, over 21 yrs
of age, unless unfit or disqualified
3. the child’s actual custodian over 21 yrs
of age unless unfit or disqualified

> whenever the appointment of a judicial

guardian over the property of the child
becomes necessary, the same order of
preference shall be followed.

Art. 217 – in case of foundlings, abandoned,

neglected or abused children and other children

245
similarly situated, parental authority shall be
entrusted in summary judicial proceedings to
heads of children’s homes, orphanages and
similar institutions duly accredited by proper
government agency.

> Foundling – is an abandoned child whose

parents are unknown

> Abandoned child- one who has no parental

care or guardianship or whose parents or
guardians have deserted him for at least six
(6) months

Art 218 – special parental authority

> Who can exercise:

* the school, its administrators and teachers or

individual entity or institution engaged in child care
over minor under their supervision, instruction or
custody.

> Take note: applicable to all authorized

activities whether inside or outside school
premises.

Art. 219 – Solidary liabilities of those mentioned in

Art. 218; subsidiary liability of parents, judicial
guardians or those exercising substitute parental
authority.

> Defense: evidence of proper diligence

Art. 220 – rights and obligations of parents

246
Art. 221 – Civil liability of those persons exercising
parental authority over injuries and damages caused
by the omission of the unemancipated children living
under in their company and under their parental
authority.

> Take note: this is applicable even if a child

is over 18 but below 21 as provided for in RA
6809 in relation to Art. 2180 of the Civil
Code.

Art. 222 – appointment of guardian or guardian ad

litem when the best interest of the child requires.

 Guardian ad litem- one appointed by the

Court to prosecute or defend a case for
the minor child’s interest.

Art. 223 and 224 – self explanatory.

Art. 225 – Joint legal guardianship of the father

and mother over properties of their unemancipated
common children.

 Take note: no need for appointment by the

court but in case of disagreement, the
father’s decision prevails unless there is a
judicial order to the contrary.

 Requirement: to post a bond if the value

of the property is more than P50,000 at an
247
 amount determined by the court but not less
than 10% of the value of the property. But
if the value of the property or the
annual income of the child is less than
50,000, no bond is required. Go to the
court for the approval of the bond but if
another person petitions, the court
requires a bond irrespective of the value of
the property or annual income of the child.

Art. 226- refers to the property acquired by

the child either from his work or industry or
from onerous or gratuitous title.

 Query: Who owns it – the child

 How will it be used? – for the support
and education of the child unless provided
otherwise by title or the transferor.

Art. 227 – Rule when the child is the one

managing the properties of his parent.

> Take note: the child is entitled to a

reasonable compensation and is not
chargeable to its legitime.

Art. 228 – grounds of terminating parental

authority (patria potestas)

> Either:

a. permanent

1. death of parents
248
 2. death of the child
3. emancipation of the child

b. temporary (under Art. 229)

Art . 229. Temporary termination of parental

authority

1. adoption ( if recorded, while child is

still a minor)
2. appointment of general guardian
3. upon judicial declaration of
abandonment of the child
4. final judgment of a competent court
divesting parental authority
5. judicial declaration of absence or
incapacity of the person exercising
parental authority.

Art. 230, 231 – suspension of parental authority

>GROUNDS:

a. conviction of a crime involving moral

turpitude till after serving sentence or
pardon and; ( as provided under Art.
231)

Art. 231 –

1. excessive harshness in treating a child

2. giving the child corrupting orders, counsels
or examples;
3. compels the child to beg

249
 4. allows the child to be subjected to acts of
lasciviousness

Art. 232 – permanent deprivation of parental

authority when the child was allowed or
subjected to sexual abuse.

Art. 233 – same authority of those exercising

substitute parental authority.

Art. 234 – emancipation takes place only upon

reaching of the age of majority (18 yrs. old)

> Take note: marriage is no longer a ground

because of the imposing of age to marry – to
at least 18 years old.

Art. 235 – repealed

Art 236 – effect of emancipation

> terminates parental authority and the

child shall now manage his person and his
affairs but take note that PARENTAL
CONSENT is still needed till the age of 21
for purposes of marriage

Art 237 – repealed

SUMMARY PROCEEDINGS UNDER THE FAMILY

CODE:

250
Art. 239 – Separation in fact between Husband and
Wife:

Art. 240 – Judicial authorization for transactions

where spouses are separated in fact or in case of
abandonment.
> ex: claims for damages

Art. 241 – proof of notice to the other spouse is

needed in cases when petition is filed

Art. 242 - notice coming from the RTC re: petition

filed.

Art. 243 – If needed a preliminary conference

may be conducted by the judge (no counsel is
allowed)

Art. 244 – In case of non appearance of the

spouse whose consent is sought, the Court inquires
the reason and may require his/her appearance.

Art. 245 – if efforts are exhausted by the court but

proved futile, ex parte presentation of evidence
follows:

Art. 246 – if issue is not revealed during

preliminary conference, it must be resolved in
summary hearing.

- affidavit
251
 - oral testimonies
- documentary evidence

Art. 247 – judgment is final and executory

Art. 248 – PETITION FOR JUDICIAL

AUTHORITY to administer separate property of
abandoning spouse

Art. 249 – petition may or may not be verified. (

it can be verified at any stage of the proceeding)

Art. 250 – filed with the court where the child

resides or if abroad, the place where the property is
located

Art. 251 – notice to parties

CONTINUATION OF THE CIVIL CODE

FUNERALS:

Art. 305 and 306- Talk about funeral

arrangements which is both a duty and a right.
In case of descendants belonging to the same
degree or brother or sisters, the oldest shall be
preferred. In case of ascendants, the paternal
relatives shall have the better right.

252
 > Take note: Every funeral shall be in
keeping with the social position of the
deceased OR, in accordance with the expressed
wishes of the deceased. In the absence of
such wish, then the funeral rites will be in
accordance with his religious belief or
affiliation. (Art. 307)

 Take note: The law limits the right

and duty to make funeral arrangement to
the members of the family. The common
law wife does not have the right to make
funeral arrangements over the objection
of the legal wife, [Case: Valino vs.
Adriano, 723 SCRA 1(2014)] Therefore,
if a man wishes to be buried in a
mausoleum of the paramour’s family, said
wish shall not prevail over the right of his
legitimate family.

Art. 308- No human remains shall be retained,

interred or exhumed without the consent of the
persons mentioned in Art. 294 (now Art. 199 of the
Family Code. [spouse, ascendants, descendants, brothers
or sisters]

Art. 309- Any person who shows

disrespect to the dead or wrongfully
interferes with a funeral shall be liable to
the family of the deceased for damages,
material and moral.

USE OF SURNAMES
253
Art 362 to 367 ( repealed)

> take note: that even illegitimate

children can now use the surname of the
father so long as he is acknowledged.
(RA 9255).

Art 370 – family name to be used by a married

woman

1. her maiden first name, surname and add the

family name of her husband;

2. her maiden first name and her husband’s

surname

3. her husband’s full name prefixing the word

“mrs.”

> Take note: it is not mandatory

to use the Surname of the
husband

Art 371 – in case of annulment of marriage :

1. if wife is guilty – resume using her maiden

name and surname

2. if wife is innocent – resume her maiden

name and surname. However, she may choose
254
 to continue employing her husband’s surname
unless:

1. the court decrees otherwise

2. she and her former Husband marry
again

> Take note: no court order is needed to

resume / use of maiden name.

Art. 372- 375 – self explanation.

Art 376 – no one can change his name without

judicial authority

> substantial change

> Case: Republic v. Avila 122 S 48*

changing one’s name or surname is not a
matter of right but a matter of privilege
> Under RA 9048- clerical or
typographical errors in an entry or
change of FIRST NAME or SURNAME
may now be done through
administrative proceedings with the
LCR. In case of denial, Appeal may be
made with the CIVIL REGISTRAR
GENERAL which shall decide the appeal
in thirty (30) days from receipt of
appeal.

255
Art 377 to 378 – self explanatory.

Art 381 – 383 – self explanatory

Art 384 to 386 – talks of absence

Art 387 to 389 – self explanatory

Art. 390 – after the absence of 7 yrs, it being

unknown whether or not the absentee still lives, he
shall be presumed dead for all purposes except for
those succession

>The absentee shall not be presumed

dead for the purpose of opening his
succession till after an absence of
ten (10) years. If he disappears after
the age of 75yrs, 5 yrs shall be
sufficient in order that succession may
be opened.

Art 391 to 392 – self explanatory. Already

discussed

 Art. 390- ordinary absence * death is

presumed on the last day of the period.

 Art. 391- refers to qualified or extra

ordinary absence. * death is presumed on
the first day of the period

256
Art 393 to 395 – self explanatory. Already
discussed

CIVIL REGISTER

CORRECTION OF ENTRIES:

> Take note: only clerical errors may be

corrected.

> Take note: substantial alterations

affecting status and citizenship of a person
are not allowed.

>Correction of Birth Certificates [RA

9048 as amended by R.A. No. R.A. No.
10172] AN ACT FURTHER AUTHORIZING
THE CITY OR MUNICIPAL CIVIL REGISTRAR OR
THE CONSUL GENERAL TO CORRECT
CLERICAL OR TYPHOGRAPHICAL ERRORS
IN THE DAY AND MONTH IN THE DATE
OF BIRTH OR SEX OF A PERSON
APPEARING IN THE CIVIL REGISTER WITHOUT
NEED OF JUDICIAL ORDER. [which took
effect on Aug. 15, 2012]

> File a Petition for this purpose. In

case of denial, appeal may be made
with the CIVIL REGISTRAR GENERAL

257
 which shall decide the appeal in thirty
(30) days from receipt of appeal.

> Take note: only clerical errors may be

corrected.

> Take note: substantial alterations

affecting status and citizenship of a
person are not allowed. It has to be a
judicial process.

 Take note: In case the person has

migrated or not practical for a person by
reason of [transportation, time and
effort] to appear in person before the
LCR, petition may be filed with the LCR
of the place he is presently residing or
domiciled. Filipino citizens presently
residing or domiciled abroad may file the
petition with the nearest Philippine
Consulate. Take note further that all such
petitions may be availed only once.

> Take note also that: effective August

2012, petition for correction of
typographical errors on FIRST name may
be done directly with the National
Statistics Office. (RA No. 9048 as amended
by RA 10172) and its for free.

Take note of the following rulings:

258
*Correction of civil status and
citizenship could not be made in
summary proceedings. (Tan vs.
Republic, 102 SCRA 666)

* A certificate of live birth is not

conclusive evidence of birth, it is only
prima facie or disputable; this is so
because LCR merely receives the
information, it does not verify. (Case:
People vs. Vellor, 105 SCRA 797)

* Case: Republic v. Avila 122 S 48

changing one’s name or surname is not a
matter of right but a matter of privilege

* Case of Republic vs. Dr. Norma

Lugsanay-Uy, G.R. No. 198010,
August 12, 2013, where it is ruled
that in a petition for cancellation or
correction of an entry in the civil
register involving substantial and
controversial alterations, including those
of (citizenship, legitimacy of marriage), a
strict compliance with the
requirements of Rule 108 of the
Rules of Court is enjoined.

END OF LECTURE

259
260