This is a condensed, personalized version of the book with personal notes, insights, o Consent on obligations of marriage is not taken

o Consent on obligations of marriage is not taken from concurring minds; it is the

opinions, questions, ruminations and conclusions. – KG created law itself
o Preserving marriage is essential for public welfare
Reminders from Ma’am Ampy:
1. Don’t write at the back. CASE (Bove v. Pinciotti)
2. Talk like a lawyer; a marriage is not “invalid,” it is “void”. On the special nature of the contract of marriage
Facts: Petitioner filed for annulment of his marriage, on the ground that he never
THE FAMILY CODE OF THE PHILIPPINES intended to marry the respondent, & only did so to give a name to the child in her womb,
which however was never born; thus, petitioner argues, there was a failure in the
• Executive Order No. 209 consideration of the marriage contract.
• Date of effectivity: August 3, 1988 Held: DENIED. Marriage is not at most a civil contract but is at least a civil contract.
• Additional amendments: Regular laws on obligations & contracts do not govern it. It is a status and a kind of fealty
o RA No. 6809: amended Title X of the Family Code dealing with emancipation to the State.
and age of majority
§ Effectivity: December 8, 1989 CASE (Phil. Telegraph & Telephone Co. v. NLRC)
o RA No. 10572: amended Art. 73 & 111 On the illegality of discriminatory policies with regard to married individuals that have no
§ Effectivity: June 8, 20131 sound basis
Facts: A company policy disqualified from work any woman worker who contracts
TITLE I – MARRIAGE marriage.
Held: VOID for violating equal protection clause & going against State policy on marriage.
Chapter I: REQUISITES OF MARRIAGE Marriage cannot be the source of interdiction nor discrimination in the workplace.

Art. 1. Marriage is a special contract of permanent union between a man & a woman Marriage and the Revised Penal Code
entered into in accordance with the law for the establishment of conjugal and family life. • Art. 349: The penalty of prision mayor shall be imposed upon any person who shall
It is the foundation of the family & an inviolable social institution whose nature, contract a second or subsequent marriage
consequences and incidents are governed by law & not subject to stipulation, except o Before the former marriage has been legally dissolved or
that marriage settlements may fix the property relations during the marriage within the o Before the absent spouse has been declared presumptively dead by means of
limits provided by this Code. a judgment rendered in the proper proceedings.
• Art. 350: The penalty of prision correccional in its medium and maximum periods
Breakdown of Provision shall be imposed upon any person who
• Marriage is… o Shall have not been complied with [the requisites of the law for marriage]
o A special contract of permanent union o [Contracts] marriage in disregard of a legal impediment
o Between a man & a woman If either of the contracting parties shall obtain the consent of the other by means of
o Entered into in accordance with the law violence, intimidation or fraud, he shall be punished by the maximum period of the
o For the establishment of conjugal & family life. penalty provided in the next preceding paragraph.
o The foundation of family
o An inviolable social institution Marriage and the Marriage Law of 1929
o Nature, consequences & incidents are governed by law and not subject to • Only provisions which have not been repealed by any law, including the Family Code:
stipulation, except marriage settlements, which may fix property relations o Criminal penalties for erring persons who are authorized to solemnize a
during the marriage marriage

Nature and Importance of Marriage Mail-Order Bride

• Marriage is a sacred obligation & a civil contract regulated by law • RA No. 6955, Section 2 (June 13, 1990)
• Distinctions between marriage and a mere contract: • Criminal offense for any natural or juridical entity who directly or indirectly:
o Other contracts may be modified, enlarged, restricted or released; not so with o Established a business for matching Filipino women with foreign nationals, by
marriage personal introduction or mail-order basis
o Advertised, published, distributed any materials that promote such businesses
§ Any manager of a publication which allows or consents to the acts above
                                                                                                                are also liable
1 Based on its approval date, May 24, 2013 and following the 15-day effecitivity rule as written in

the Act itself. Trafficking in Women

  Katrina Monica C. Gaw | Block C 2018| 1
• RA No. 9208: The Anti-Trafficking in Persons Act of 2003 o Men and women are entitled to equal rights before and during marriage, and
• The following acts are illegal: after its dissolution
o Introducing or matching any person or, as provided in RA No. 6955, any Filipino • The International Covenant on Economic, Social & Cultural Rights (same as UDHR)
woman to a foreign national for the purpose of acquiring, buying, offering, • International Covenant on Civil & Political Rights (same as UDHR)
selling or trading him/her to engage in prostitution, pornography, sexual
relations, involuntary servitude, debt bondage or slavery for money, profit, or Constitutional Protection
material, economic or other consideration • The State recognizes the sanctity of family life and shall protect & strengthen the
o To offer or contract real or simulated marriage for the same reasons as above. family as a basic social institution (Section 12, Art. II)
• Art. 15 of the Constitution exclusively deal with family.
Marriage between Rapist and Raped Victim • A couple also has the right to privacy which is protected against all undue &
• A subsequent valid marriage of the offender & offended party in the crime of rape unwarranted government intrusion
extinguishes the criminal action or penalty imposed for rape. o Absolute freedom of communication between the spouses – privileged
• In marital rape: subsequent forgiveness by the wife shall extinguish criminal action communication
or penalty, unless the marriage is void ab initio (Art. 266-C of RPC, as amended by • HOWEVER, these do not imply that the legislature cannot enact a law for divorce
RA No. 8353). o Law is dependent on what legislature sees fit, but will be subject to the
limitations provided in the Constitution
CASE (People v. Edgar Jumawan - April 21, 2014) • Marriage does not shed an individual’s right to privacy2
Right to sexual intercourse cannot be enforced in court; marital rape is a criminal o Neither the husband nor wife may testify for or against the other without the
offense consent of the affected spouse while the marriage subsists
Facts: A wife files a case against her husband for forcing her to have sex and for boxing
her when she refused. Her husband claims that it is his right to have sex with her CASE (Star Paper Corp. v. Simbol)
because they are married, and that she did consent to sex with him when she followed Companies must show vital link between policies and effect on business operations for
him to their room. policies on civil rights to be valid
Held: Marital rape was AFFIRMED in this case; there is no distinction between marital Facts: A company provided that, in case 2 of their employees marry, one of them must
and non-marital rape; both occur when the offended party does not consent to the resign.
sexual act. The husband cannot force sex through intimidation; his only proper remedy, if Held: The policy is ILLEGAL as it failed to prove that a marriage between 2 of its
he so wishes, is to seek a declaration of nullity, if he can prove psychological incapacity. employees could be detrimental to the operations of business.

Marriage as a status CASE (Duncan v. Glaxo)

• Marriage is a social status between the contracting parties in which not only they Right of companies to prevent conflict of interest between their employees and those of
but the State as well are interested competitor firms
• When a status is assigned by law to members of any particular class of persons Facts: A company issued an employment contract requiring employees to disclose to
which affects their general position with regard to the rest of the community, no management any of their existing or future relationships by consanguinity or affinity with
one belonging to the said class can vary the rights and obligations incident to the co-employees or employees of competing drug companies & requiring such employee to
status resign should management find that there may be a possible conflict of interest.
Held: Contract is VALID and does not go against the equal protection clause. The
CASE (Anonymous v. Anonymous) stipulation is reasonable, since such a relationship might allow competitor firms to gain
Privately imposed conditions that would alter the marriage status are not recognized by access on the company’s secrets and procedures. Also, there is no absolute prohibition
the State against relationships.
Facts: The spouses agreed that their civil marriage would not be considered valid and
binding until after they had their religious marriage ceremony. Later, they sought on an CASE (Zulueta v. Court of Appeals)
annulment of their marriage based on said stipulation. Personal constitutional rights of a spouse remain even after he is married, and are
Held: The agreement is INVALID; the State and its laws govern marital status, & the honored by the courts in proceedings
parties to a marriage cannot tinker with it according to their own notions of what is Facts: A woman ransacks the office of her husband to get evidence of his infidelity for a
proper. legal separation case, forcibly taking documents and letters of the husband addressed
to the paramour. Her husband demanded the documents back, and the wife refused.
Marriage in International Law
• The Universal Declaration of Human Rights (UDHR)
o Men and women of full age, without any limitation due to race, nationality or                                                                                                                
religion, have the right to marry & found a family 2 The Bill of Rights in the Constitution is addressed against the State, and can be invoked to protect

o Marriage shall be entered with free and full consent of the intending parties a party in a marriage from his spouse.
  Katrina Monica C. Gaw | Block C 2018| 2
Held: The documents forcibly taken by the wife are inadmissible as evidence in court; to o Art. 107 in relation to Art. 88: Future spouses cannot stipulate in their marriage
admit them would be a violation of the husband’s right to privacy. settlement that the commencement of their property regime shall be at anytime
other than at the precise moment that the marriage was celebrated
Legislative Control of Marriage o Art. 77: Any modification of the marriage settlement shall be in writing, signed
• Legislature defines all legal aspects of marriage and prescribes the strategies to by the parties & executed before the celebration of the marriage.
protect it o Art. 78: Any modification after the marriage must be approved by courts & must
• Three parties to a marriage: two willing spouses, and an approving State be made only in the instances provided for in Art. 76.
• Aspects of marriage governed by State:
o Manner in which marriage is constituted Law Governing Validity of Marriage
o Manner in which marriage ends • The validity of a marriage is tested by the law in force at the time the marriage was
• Aspect which the State does not control: property relations contracted
o The spouses must decide on property regime before marriage • The nature of a marriage already celebrated cannot be changed by a subsequent
o This cannot be decided after marriage without court intervention amendment in the law
• It is a generally accepted doctrine that the legislature may impose restrictions upon o EXCEPTION: Psychological Incapacity (Art. 36)
marital relations as laws on propriety and social order demand, as long as such § Art. 39 initially gave this ground a prescriptive period of 10 years after the
regulations are not prohibitory (State v. Walker) effectivity of the Family Code to file for declaration of nullity, for marriages
• Legislature cannot contravene Constitution contracted prior its effectivity
o Equal protection clause cannot be violated by forbidding marriages on the basis § Amended by RA No. 8533, which deleted the prescriptive period
of race or political inclinations • For the status of a marriage to change, there must be an express validation or
• Marriage can be made to limit one’s capacity to act or acquire property invalidation provision in the new law
o Art. 823 of Civil Code: If a person attests to the execution of a last will & o Void marriages can never be ratified
testament, to whose spouse a devise or legacy is given by such will, such o While Art. 256 of the Family Code states that the law is retroactive insofar as it
devise or legacy shall, so far only as concerns such spouse, be void, unless does not prejudice or impair vested or acquired rights in accordance with the
there are 3 other competent witnesses to such will Civil Code and other laws, the clause is general and does not expressly validate
§ The fact of marriage of the witness in a will to the devisee shall render a previously void marriage under the Civil Code
void the gratuitous disposition of a real property in favor of the devisee-
spouse or a personal property in favor of the legatee-spouse, unless there CHANGES IN NULLITY AND ANNULMENT OF MARRIAGES
are 3 other witnesses Civil Code (Aug. 30 1950) Family Code (Aug. 3 1988)
§ In other words, when a witness who claims that a will & testament was Marriage between stepbrother and Marriage between stepbrother and
created which benefits the witness’ spouse with property, the donation stepsister is void stepsister is not prohibited (Art. 38)
will be rendered void unless there are 3 other witnesses.
o Art. 874 of Civil Code: An absolute condition not to contract a first or
subsequent marriage made in a last will & testament on an instituted voluntary Marrying ages were 16 years old for Marrying age is 18 for both the male &
heir shall be considered as not written unless such condition has been imposed males & 14 years old for females the female (Art. 5)
on the widow or widower by the deceased spouse, or the latter’s ascendants or
descendants. The authority of the solemnizing officer A marriage that is not void when either or
was absolute, & good faith of the parties both of the contracting parties believed in
SCENARIO in said authority is irrelevant good faith that the solemnizing officer
Q: If a husband states in his will that he does not allow his widowed wife to marry after had the authority to solemnize their
his death, can the wife still marry? marriage
A: Yes. Any subsequent marriage contracted by the widow is still valid, but her legacy in Those living together as husband & wife Those living together as husband & wife
the will is rendered ineffective by her contravention of her deceased husband’s wishes. could marry without a marriage license if could marry without a marriage license if
they suffered from no legal impediment to they lived together for a 5-year period &
Property Relations their marriage for the entire 5-year period suffered no legal impediment at the time
• Except for property relations fixed via marriage settlement prior to marriage, the of the marriage
nature, consequence and incidents of marriage are governed by law and are not
subject to stipulations.
• Marriage settlements must be within limits of Family Code.

  Katrina Monica C. Gaw | Block C 2018| 3

 There is no stipulation in the Civil Code a A subsequent marriage is void if the Art. 5. Any male or female of the age of 18 years or upwards not under any of the
void subsequent marriage due to failure former spouses fail to liquidate their impediments mentioned in Art. 37 & 38 may contract marriage.
to liquidate properties of a previous property after the finality of a nullity
marriage decree (Art. 40, 52, 43) Art. 6. No prescribed form or religious rite for the solemnization of the marriage is
required. It shall be necessary, however, for the contracting parties to appear personally
before the solemnizing officer and declare in the presence of not less than 2 witnesses
Mistake in identity was an instance of Mistake in identity makes a marriage void of legal age that they take each other as husband and wife. This declaration shall be
fraud that made the marriage annullable ab initio (Art. 35) contained in the marriage certificate which shall be signed by the contracting parties and
their witnesses & attested by the solemnizing officer.
In case of a marriage in articulo mortis, when the party at the point of death is unable to
Default property regime is the conjugal Default property regime is absolute sign the marriage certificate, it shall be sufficient for one of the witnesses to the
property of gains community of property marriage to write the name of said party, which fact shall be attested by the solemnizing
officer.

Legal Capacity
• Refers to age; both parties must be 18 years old and above
CASE (Gomez v. Lipana) • If any party is below 18, the marriage is void even if the parents of the underage
Validity of a marriage is governed by the laws effective at the time of the celebration of party consented
the marriage
Facts: The SC was confronted with the issue of W/N a 2nd marriage is void and could be Contracting Parties Must Be of Different Sex
the subject of a collateral attack. • From a human rights perspective, the sex of a contracting party should be
Held: Though the law in effect at the time was the Civil Code of 1950, the Court used the considered at the time of the marriage
Marriage Law of 1929 to determine the validity of the 2nd marriage, which was the law in • Established Philippine jurisprudence: your sex at birth is your sex forever, unless
force at the time the marriage was celebrated, in 1935. you have a condition3

Three Ways of Terminating Marriage in the Eyes of the Law CASE (Silverio v. Republic)
1) Judicial Declaration of Nullity of Marriage (Art. 35) Sex is determined by visually looking at the genitals of a baby at the time of birth
2) Judicial Declaration of Annulment (Art. 45) Facts: Petitioner had a biological sex change from male to female through sex
3) Affidavit of Reappearance of the absent spouse (Art. 42) reassignment surgery. He sought the amendment of his name in his birth certificate to
reflect the change, as he wished to be married to his partner.
Art. 2. No marriage shall be valid, unless these essential requisites are present: Held: DENIED. The law does not legally recognize sex reassignment; the sex of an
1) Legal capacity of the contracting parties who must be a male and a female; & individual upon his birth is immutable.
2) Consent freely given in the presence of the solemnizing officer
CASE (Republic v. Cagandahan)
Art. 3. The formal requisites of the marriage are: Where an individual has a condition giving him both male & female characteristics, SC
1) Authority of the solemnizing officer lets individual decide his sex
2) A valid marriage license except in the cases provided for in Chapter 2 of this Facts: A woman had Congenital Adrenal Hyperplasia (CAR), which gives him both male
Title; & and female characteristics & organs, & it was expertly shown that she secreted both
3) A marriage ceremony which takes place with the appearance of the contracting male and female hormones. She wished to be considered male.
parties before the solemnizing officer & their personal declaration that they Held: GRANTED. Since individual is biologically intersex, she must be given the right to
take each other as husband & wife in the presence of not less than 2 decide which sex she would prefer to be; in this case, male, especially since she has
witnesses of legal age. reached the age of majority.

Art. 4. The absence of any of the essential or formal requisites shall render the marriage Consent
void ab initio, except as stated in Art. 35(2). • Must be freely given
A defect in any of the essential requisites shall render the marriage voidable as provided o Capability of intelligently understanding the nature & consequences of the act
in Art. 45. o Consent may be implied
An irregularity in the formal requisites shall not affect the validity of the marriage but the
party or parties responsible for the irregularity shall be civilly, criminally and
administratively liable.                                                                                                                
3 In the Philippines, amending of name in the birth certificate is a privilege, and not a right. There

must be valid justification.

  Katrina Monica C. Gaw | Block C 2018| 4
 • Must be made in the presence of a solemnizing officer A: VALID. As long as the marketplace is in the jurisdiction of the judge, he still has the
• PD 603, Art. 57: Parents should not force or unduly influence their child to marry a authority to solemnize a marriage.
person he has not freely chosen
• Total absence of consent makes a marriage void ab initio SCENARIO
• Consent in marriage obtained through fraud, intimidation or undue influence Q: X is getting married. X’s solemnizing officer is her uncle, who is a priest. X & her
makes such marriage merely annullable or voidable (vitiated consent) husband, Y, know that her uncle’s license is expired. But her uncle thought it was already
• Proxy marriages are not allowed in the Philippines, as there is no personal renewed and assured them of this fact. The marriage was celebrated. Months later, the
declaration in front of a solemnizing officer; however, proxy marriages celebrated uncle admits that his license wasn’t renewed after all.
abroad, when valid in said country is valid, as there is still a ceremony A: Though Art. 35(2) seems to provide an exemption to the rule on the authority of the
solemnizing officer, such an exemption requires good faith, which in turn requires due
SCENARIO diligence. Thus, the marriage is void, because there was no due diligence in making sure
Q: A woman has a solemnizing officer before her, and signs the marriage contract in his the license was not expired on the part of the spouses. It was the priest who acted in
presence. She did not, however, declare verbally that she consented to the marriage. Is good faith, not X & Y.
her declaration valid?
A: Her declaration is presumed, and need not be vocal. There is no specifically Valid Marriage License
prescribed rite, so long as there is a semblance of a declaration. • A valid marriage license must be issued by the local civil registrar of the place where
the marriage application was filed
Authority of the Solemnizing Officer • License has a lifetime of 120 days from the date of issue and is effective in any part
• The absence or presence of the authority of the solemnizing officer is what is of the Philippines
important o The date of issue is the date of the signing of the marriage license by the local
• Local Government Code (which took effect on January 1, 1992): Mayor of a city or civil registrar & is stamped in bold
municipality can solemnize a marriage o Not effective for marriages solemnized abroad
o Automatically canceled at the expiration of 120-day period if parties do not use
• Authority of the officer or clergyman will be presumed, in the absence of any
it
showing to the contrary.
• Most requirements for the license are merely directory; their non-observance results
• Solemnizing officer is not duty bound to investigate W/N a marriage license has
only in irregularity which will not make the marriage void or annullable:
been duly & regularly issued by the local civil registrar.
o When the marriage license is issued in a place where the contracting parties do
o All the officer needs to know is that the license was issued by a competent
not reside
official, who is presumed to have ascertained the validity of the marriage prior
o When one of the contracting parties lies about their age to avoid getting
to the issuance of the license
parental consent, marriage is still valid until annulled (Art. 45); or, when the
o A marriage can be solemnized without a license in situations provided in Art.
party forges the consent of the mother
29 in relation to Art. 27 and 28, as well as Art. 34
o When one of the parties did not disclose a previous marriage in the license
• Criminal penalties are imposable against persons who solemnize a marriage
o When one of the parties misrepresents his residence
without authority.
o When one of the parties falsely swears that he is not under guardianship
o Marriage Law of 1929, Sec. 38, as amended by the Civil Registry Law: Any
o BUT where parties conceal that they are of the same sex, or under 18, the
priest or minister solemnizing marriage without being authorized by the Civil
marriage is void
Registrar General, or who, upon solemnizing marriage, refuses to exhibit this
authorization in force when called upon to do so by the parties or the parents,
Marriage Ceremony
grandparents, guardians or persons having charge shall be imprisoned.
• State only recognizes ceremonial marriages, solemnized by authorized persons
o Marriage Law of 1929, Sec. 43: Any person who is not authorized to
solemnize marriage but who publicly advertises himself as such shall be • Two witnesses: if they say there was the exchange of vows, then their statement is
imprisoned. considered valid
o Any priest convicted of moral turpitude or violation of the Marriage Law is • Contracting parties may use any ceremony of their whim, or based on their religious
disqualified from solemnizing marriage for 6 mos.-6 yrs. beliefs
o Judges need not register; their position grants them the power to solemnize • The agreement, not the form in which it is couched, is what constitutes a contract
o The failure of the solemnizing officer to ask the parties whether they take each
SCENARIO other as husband and wife cannot be considered as a fatal omission. It is
Q: It’s raining. The judge of Mandaluyong who is to solemnize the marriage of A & B says, sufficient that they signed the contract declaring each other as husband and
“Let’s just meet in the marketplace in the city for your marriage.” Will the marriage be wife
valid? o It is also sufficient when a man and woman appear before a justice and sign a
statement setting forth that they had agreed to marry, and asked the justice to

  Katrina Monica C. Gaw | Block C 2018| 5

 solemnize the marriage, and thereafter another document was signed by them o Failure of the contracting parties to present original birth certificates or
and 2 witnesses baptismal certificate to the local civil registrar who likewise failed to ask for
• NOTE: Marriage certificate itself is not an essential or formal requisite of marriage. the same
Thus, the absence of it does not make a marriage void or annullable. o Failure of the contracting parties between the ages of 18-21 to exhibit
• The best evidence for the presumption of marriage is the marriage certificate. Oral consent of parents or persons having legal charge of them to local civil
testimony of witnesses, family & certificates of baptized children can only serve as registrar
proofs. o Failure of the parties between ages 21-25 to exhibit advice of parents to the
local civil registrar
Witnesses in a Marriage Ceremony o Failure to undergo marriage counseling
• The absence of one or both witnesses is merely a defect in the formal requisite and o Failure of local civil registrar to post required notices
does not invalidate the marriage. o Issuance of a marriage license despite absence of publication or prior to
• The parties responsible for the lack of witnesses will be made civilly, completion of 10-day publication period
administratively and criminally liable. o Failure of contracting parties to pay prescribed fees for marriage license
• The most important part: the ceremony in front of the solemnizing officer with o Failure of the person solemnizing the marriage to send copies of the marriage
authority (who represents the State) and the declaration of the two contracting certificate to the local civil registrar
parties that they are husband and wife. o Failure of the local civil registrar to enter the applications for marriage
licenses filed with him in the registry book in the order in which they are
• Every intendment of the law leans toward legalizing matrimony, as it is the basis of
received
human society throughout the civilized world.
• Exchange of vows is the vital part of the ceremony that witnesses testify about.
CASE (McClurg v. Terry) – U.S. Case
Marriage made in jest is void; mere words without true consent makes marriage void
Common Law Marriages not recognized in the Philippines
Facts: Two 19 year-olds joke about getting married in front of their young friends, one of
• Philippines requires the ceremonial and solemnization aspect of marriage who was a justice of the peace. They actually go through with the ceremony, as is
• Common law marriage: non-ceremonial or informal marriage by agreement tradition. The justice, thinking the marriage was serious, sent the certificate of marriage
o Entered into by man and woman with capacity to marry to the proper registry. Is the marriage valid?
o No compliance to statutory formalities as those pertaining to marriage Held: INVALID. The intention of the parties to marry must be clearly shown. In the
licenses absence of such, the ceremony is not considered valid and no marriage exists.
o Consummation and cohabitation
o Reputation in such a way that the public will recognize the marital status CASE (Cosca v. Palaypayon)
• The terms “spouse” & “husband & wife” refer only to solemnized marriages Judge must ask to see license before the marrying the two parties; the absence of a
marriage license, if not in exemptions, makes the marriage void.
Absence, Irregularities, Defect in Requisites Facts: A judge solemnized 2 marriages without having been shown valid marriage
• Generally, if there is an absence of essential or formal requisites of marriage, said licenses and required the licenses after the marriage ceremony only. One of them
marriage is null and void. married without a license; the other had one but did not show it.
• Marriage by proxy in the Philippines is void. Held: The parties that simply failed to bring their license on the wedding date are validly
• Exceptions: married; the parties that did not have a marriage license are in a void marriage. The
o No marriage license but listed in Chapter 2, Title I of the Family Code judge, in both cases, is liable for his negligence. A judge is tasked with ascertaining the
o Art. 35(2) – When solemnizing officer has no authority, but either party validity of the marriage before actually solemnizing it.
believed in good faith that he had it
• Defects in essential requisites makes the marriage voidable Breach of Promise to Marry
• Irregularities in formal requisites do not affect validity of the marriage, except when • Mere breach of a promise to marry is not an actionable wrong.
contracting parties are 18-21 years old with no consent from parents (which makes • But the damages incurred by the injured party are actionable if they can be proven,
the marriage annullable). in accordance with Art. 21 of the Civil Code.
• The following are irregularities that do not affect the validity of a marriage:
o Absence of two witnesses of legal age during ceremony CASE (Wassmer v. Velez)
o Marriage solemnized in a place other than publicly in the chambers of the The injured party in the breach of a promise to marry can claim damages if she proves
judge or in open court, in church, chapel, or temple, or in the office of the that the offender’s actions are contrary to good customs.
consul-general, consul or vice-consul Facts: The bride was abandoned by her would-be groom days before the wedding,
o Issuance of a marriage license in city or municipality not the residence of supposedly because his mother did not wish for him to marry. As a result, the woman
either of the contracting parties had to deal with sending away the guests, canceling the wedding preparations which
o Unsworn application for a marriage license were already spent and dealing with her emotional grief. Is she entitled to damages?

  Katrina Monica C. Gaw | Block C 2018| 6

Held: YES. She can claim damages under Art. 21 of the Civil Code, which specifies that
those who willfully injure others in ways that are contrary to good custom shall indemnify SCENARIO
the injured party. Q: X & Y are Catholics. A Protestant priest dresses in Catholic priest garments & insists
he is Catholic. X & Y are presumed to have good faith. Is the marriage valid?
Art. 7. Marriage may be solemnized by:
1) Any incumbent member of the judiciary within the court’s jurisdiction; A: Yes, but only because there is good faith. In the absence of good faith, the solemnizing
2) Any priest, rabbi, imam, or minister of any church or religious sect duly officer had no authority to solemnize their marriage.
authorized by his church or religious sect & registered with the civil registrar
general, acting within the limits of the written authority granted him by his Ship Captain or Airplane Chief
church or religious sect & provided that at least 1 of the contracting parties • Requisites for authority of the solemnizing officer:
belongs to the solemnizing officer’s church or religious sect; 1. The marriage must be in articulo mortis (at least one of the other parties is at
3) Any ship captain or airplane chief only in cases mentioned in Art. 31; the point of death)
4) Any military commander of a unit to which a chaplain is assigned, in the 2. The marriage must be between passengers or crew members
absence of the latter, during a military operation, likewise only in the cases 3. Generally, the ship must be at sea or the plane must be in flight, or during
mentioned in Art. 32; stopovers at ports of call (as the voyage is not yet deemed terminated)
5) Any consul-general, consul or vice-consul in the case provided in Art. 10 • Assistant pilots do not have the authority to solemnize a marriage, even if the pilot
dies & the assistant assumes command of the plane
Authorized Solemnizers of Marriage
• The solemnizing officer represents the State, & thus should be limited to persons Military Commander
duly authorized by the State • Requisites for authority of the solemnizing officer:
• If any of the listed solemnizing officers fail to comply with any of the requisites 1. He or she must be a commander of a unit
mandated by law for them to validly solemnize a marriage, such a marriage is § Unit – a battalion under the present table of organization & not a mere
generally void on the ground of absence of a formal requisite, which is the authority company
of the solemnizing officer. 2. He or she must be a commissioned officer
• Always: UNLESS either of the parties believed in good faith that the solemnizing § His rank must begin from a second lieutenant, ensign & above
officer had the authority to conduct the marriage (Art. 35[2]) 3. A chaplain must be assigned to such unit
4. Said chaplain must be absent at the time of marriage
Judges § If the chaplain is present, he should be the one to solemnize the
• Judges can solemnize a marriage only within their courts’ jurisdiction & not beyond marriage, a power granted to him which proceeds from Art. 7(2). If he
it; such would be void unless it falls under the exception in Art. 35(2) does not have the qualifications listed therein, he is deemed absent as
• Judges must be incumbent, & not retired he cannot solemnize a marriage
• CTA, Sandiganbayan, Court of Appeals & SC – national in scope o In other words, he must be of the same religion as the at least one of
• After solemnizing a marriage, it is highly irregular for a judge to collect fees for the the parties who will be acquiring marriage, he must have the written
ceremony; he cheapens his noble office when he does so. authority of his religious sect, he must be registered with the civil
registrar general
Priest, Rabbi, Imam or Minister of any Church or Religious Sect 5. The marriage must be in articulo mortis
• Priest – one especially consecrated to the service of the divinity & the medium 6. The contracting parties, whether members of the armed forces or civilians,
through whom worship is to be offered to the one being worshipped must be within the zone of the military operation
§ “Within the zone of military operation” – presumes widespread military
• Authority of the priest extends only so far as his church members (e.g. a Catholic
activity over an area & does not refer to a simulated exercise because it
priest can only marry a couple if at least 1 of them is Catholic)
requires the absence of civilian authorities
• The following essential requisites give these officers authority:
§ Includes maneuvers, police actions, declared & undeclared war, civil
1. Must act within the limits of the written authority granted to him or her by the
war, rebellion, etc. as the law may provide
church or religious sect
7. Generally, the ship must be at sea or the plane must be in flight, or during
§ This may impose a limitation on where he can solemnize a marriage
stopovers at ports of call (as the voyage is not yet deemed terminated)
§ Priests are only allowed to solemnize marriages within the area of the
• A commander may solemnize a marriage even though the contracting parties do
diocese or the place allowed by his Bishop
not belong to his unit
2. Must be registered with the civil registrar general
3. Must be duly authorized by his or her church or religious sect
Consul-General, Consul or Vice Consul (Art. 9, Vienna Convention of 1963)
4. At least one of the parties contracting the marriage should be a member of
his or her church or religious sect • Does not include ambassadors; ambassadors are appointed, whereas consul-
generals, consuls & vice consuls are career officers
  Katrina Monica C. Gaw | Block C 2018| 7
 • Does not include consul agents 3. When BOTH parties request a solemnizing officer in writing, in which case the
• They can solemnize a marriage abroad only when both contracting parties are marriage may be solemnized at a place designated by them in a sworn
Filipinos statement to that effect
o Also perform the duties of the local civil registrar, such as issuance of
marriage license Art. 9. A marriage license shall be issued by the local civil registrar of the city or
• Solemnities established by Philippine laws shall be observed in their execution (Art. municipality where either of the contracting party habitually resides, except in marriages
17, Civil Code) where no license is required in accordance with Chapter 2 of this Title.
o Contracting parties shall appear personally before the CG, C or VC’s office
abroad & declare in the presence of at least 2 witnesses of legal age that Place of Issue
they take each other as husband & wife • Marriage license from the local civil registry in the city or municipality where either
o Declaration will be in the marriage certificate signed by the contracting of them resides
parties & their witnesses & attested by the solemnizing officer • But not getting a marriage license where either of them resides is merely an
o If contracting parties want their marriage in a place other than the CG, C or irregularity which will not render the marriage null & void on that basis alone
VC’s office, they shall request the said official in writing
• A marriage between a Filipino & a foreigner abroad solemnized by a Philippine Art. 10. Marriages between Filipino citizens abroad may be solemnized by a consul-
consul is void, unless the host country recognizes the marriage as valid, in which general, consul or vice-consul of the Republic of the Philippines. The issuance of the
case, such marriage shall be considered valid in the Philippines marriage license & the duties of the local civil registrar & of the solemnizing officer with
• Marriages solemnized by C, VC or CG in the territory of the Philippines is void regard to the celebration of marriage shall be performed by said consular official.

Mayor Art. 11. Where a marriage license is required, each of the contracting parties shall file
• Local Government Code took effect on January 1, 1992, allowing a mayor to separately a sworn application for such license with the proper local civil registrar which
solemnize a marriage within his jurisdiction shall specify the following:
• When the marry is temporarily incapacitated to perform his duties for physical or 1) Full name of contracting parties
legal reasons such as, but not limited to, leave of absence, travel abroad, & 2) Place of birth
suspension from office, the vice mayor or the highest ranking sangguniang bayan 3) Age & date of birth
member shall automatically exercise the powers & duties of the local chief 4) Civil status
executive concerned, INCLUDING the authority to solemnize marriages 5) If previously married, how, when & where the previous marriage was dissolved
or annulled
Good Faith of Parties 6) Present residence & citizenship
7) Degree of relationship of the contracting parties
• 35(2) – If the marriage was solemnized by a person not legally authorized to
8) Full name, residence & citizenship of the father
solemnize a marriage & either of the contracting parties believed in good faith that
9) Full name, residence & citizenship of the mother
such solemnizing officer had such authority, then the marriage shall be considered
10) Full name, residence & citizenship of the guardian or person having charge, in
as valid.
case the contracting parties has neither father nor mother & is under the age
of 21 years.
Art. 8. The marriage shall be solemnized publicly in the chambers of the judge or in open
The applicants, their parents or guardians shall not be required to exhibit their residence
court, in the church, chapel or temple, or in the office of the consul-general, consul or
certificate in any formality in connection with the securing of the marriage license.
vice-consul as the case may be, & 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
Purpose of the documentary requirements
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 • The local civil register is tasked with making sure the documentary proof is
statement ot that effect. accomplished & his job is to secure publicity & to require a record to be made
of the marriage contracted
Venue • Competent evidence of marriage, to discourage deception & seduction, &
• Directory in nature; its non-observance will not invalidate a marriage, but can prevent illicit intercourse under the guise of matrimony
subject the person who caused the violation to civil, criminal or administrative • Evidence of the statues & legitimacy of the offspring of the marriage
liability
• Exceptions to the rule: Marriage Application
1. Marriage contracted in articulo mortis • Can be obtained by anybody
2. When both parties are in a remote place • Once it is signed & sworn to by the parties & thereafter filed, local civil registrar has
no choice but to accept the application & process the same

  Katrina Monica C. Gaw | Block C 2018| 8

 • If the local civil registrar has knowledge of some legal impediment, he or she • There is no emancipation by marriage under the Family Code; emancipation is
cannot discontinue the processing of the application. He must only note down the attained if the child reaches the age of 18 year as of RA 6809 (Dec. 13 1989).
impediments in the application & thereafter issue the license unless stopped by • Previously, age of majority was 21 years old
the court (Art. 18, FC) • Marrying age & age of majority is now 18 years old
• “Not having been emancipated by previous marriage” is now repealed
Art. 12. The local civil registrar, upon receiving such application, shall require the
presentation of the original birth certificates or, in default thereof, the baptismal Parental Consent
certificates of the contracting parties or copies of such document duly attested by the • Two parties where one part is at least 18 years old but above & below 21 years of
persons having custody of the original. These certificates are certified copies of the age require the consent of the persons having legal charge of them in the following
documents required by this article need not be sworn to & shall be exempt from the order:
documentary stamp tax. The signature & official title of the person issuing the certificate o Father
shall be sufficient proof of its authenticity. o Mother
If either of the contracting parties is unable to produce his birth or baptismal certificate o Surviving parent
or a certified copy of either because of the destruction or loss of the original, or if it is o Guardian or persons having legal charge of them
shown by an affidavit of such party or of any other person that such birth or baptismal • Non-compliance with the parental consent makes a marriage valid until it is
certificate has not yet been received through the same has been required of the person annulled (Art. 45, FC)
having custody thereof at least 15 days prior to the date of the application, such party o The statutes which forbid the issuance of the license without consent are only
may furnish in lieu thereof his current residence certificate or an instrument drawn up & directory, in the absence of a statute declaring such a marriage void
sworn to before the local civil registrar concerned or any public official authorized to o Persons above 18 can legally & validly marry
administer oaths. Such instrument shall contain the sworn declaration of two witnesses
• If any of the contracting parties is below 18, the marriage is void regardless of
of legal age, setting forth the full name, residence & citizenship of such contracting
consent
party & of his or her parents, if known, & the place & date of birth of such party. The
• For foreigners, one must obtain an Certificate of Legal Capacity from his embassy
nearest of the kin of the contracting parties shall be preferred as witnesses, or, in their
to be able to validly marry in the Philippines. But the U.S. Embassy does not
default, persons of good reputation in the province of the locality.
execute Certificates of Legal Capacity; the Embassy will just issue an affidavit,
The presentation of the birth or baptismal certificate shall not be required if the parents
which some cities do not accept (Makati, Q.C.)
of the contracting parties appear personally before the local civil registrar concerned &
swear to the correctness of the lawful age of said parties, as stated in the application, • If it is obvious you are old just by looking at you, the marriage is valid.
or when the local civil registrar shall, by merely looking at the applicants upon their
personally appearing before him, be convinced that either or both of them have the SCENARIO
required age. Q: What if X was 17.5 years old when all the documents & requisites were prepared, but
X got married to Y at the age of 18? Is the marriage between X & Y valid?
Art. 13. In case either of the contracting parties has been previously married, the
applicant shall be required to furnish, instead of the birth or baptismal certificate A: Yes, the marriage is valid. In terms of legal capacity, the marriage is valid, as X had
required in the last preceding article, the death certificate of the deceased spouse or already been 18 when the marriage was contracted. The license, however, was
the judicial decree of annulment or declaration of nullity of his or her previous marriage. defectively issued. But issuance is deemed to be a mere irregularity. The local civil
In case the death certificate cannot be secured, the party shall make an affidavit setting registrar who issued the license could be held liable depending on the circumstances.
forth the circumstance & his or her actual status & the name & date of death of the
deceased spouse. Q: What if father disagrees to the marriage, but the mother agrees? Can the local civil
registrar suspend the license?
Art. 14. In case either or both of the contracting parties, not having been emancipated
by a previous marriage, are between the ages of 18 & 21, they shall, in addition to the A: No. The local civil registrar cannot withhold the license even if it is defective, unless he
requirements in the preceding articles, exhibit to the local civil registrar, the consent to goes to court & gets an injunction through the court; OR if the applicant is a foreigner
their marriage of their father, mother, surviving parent or guardian, or persons having with no documents from the embassy.
legal charge of them in the order mentioned. Such consent shall be manifested in
writing by the interested party who personally appears before the proper local civil Q: X is a local civil registrar who one day forgot to bring his glasses to work. A couple
registrar, or in the form of an affidavit made in the presence of 2 witnesses & attested came before him without birth or baptismal certificates, but through his blurred eyes they
before any official authorized by law to administer oaths. The personal manifestation looked about 50. He approved their license without recording defects. It turns out, both
shall be recorded in both applications for marriage license, & the affidavit, if one is of the contracting parties were actually just 20 years old, but they already got married
executed instead, shall be attached to said application. after the registrar issued their license. Is their marriage valid?

No Emancipation by Marriage A: Yes, the marriage is valid, as they are both within the age of legal capacity.

  Katrina Monica C. Gaw | Block C 2018| 9

Art. 15. Any contracting party between the ages of 21 & 25 shall be obliged to ask their Art. 18. In case of any impediment known to the local civil registrar or brought to his
parents or guardian for advice upon the intended marriage. If they do not obtain such attention, he shall note down the particulars thereof & his findings thereon in the
advice, of it be unfavorable, the marriage license shall not be issued till after 3 months application for a marriage license, but shall nonetheless issue said license after the
following the completion of the publication of the application therefor. A sworn statement completion of the period of publication, unless ordered otherwise by a competent court
by the contracting parties to the effect that such advice has been sought, together with at his own instance or that of any interested party. No filing fee shall be charged for the
the written advice given, if any, shall be attached to the application for marriage license. petition nor a corresponding bond required for the issuance of the order.
Should the parents or guardian refuse to give any advice, the fact shall be stated in the
sworn statement. Art. 19. The local civil registrar shall require the payment of the fees prescribed by law or
regulations before the issuance of the marriage license. No other sum shall be collected
Art. 16. In cases where parental consent or parental advice is needed, the party or in the nature of a fee or a tax of any kind for the issuance of said license. It shall,
parties concerned shall, in addition to the preceding articles, attach a certificate issued however, be issued free of charge to indigent parties, that is, those who have no visible
by a priest, imam or minister authorized to solemnize marriage under Art. 7 of this Code means of income or whose income is insufficient for their subsistence, a fact established
or a marriage counselor duly accredited by the proper government agency to the effect by their affidavit, or by their oath before the local civil registrar.
that the contracting parties have undergone marriage counseling. Failure to attach said
certificate of marriage counseling shall suspend the issuance of the marriage license for Investigative power of LCR & Court Intervention
a period of 3 months from the completion of the publication of the application. Issuance • LCR cannot withhold the license; he can only note down the particulars of the
of the marriage license within the prohibited period shall subject the issuing officer to impediments & his findings in the application for a marriage license
administrative sanctions but shall not affect the validity of the marriage. • LCR is duty-bound to issue license after the payment of necessary fees, unless the
Should only one of the contracting parties need parental consent or parental advice, the parties are indigent, after the completion of the period of publication or the 3-
other party must be present at the counseling referred to in the preceding paragraph. month period for those who did not get parental advice or marriage counseling
• Purpose of Art. 18 is to “eliminate any opportunity for extortion.”
Parental Advice • Only court intervention can empower the LCR to refuse to issue said license. This
• Absence of parental advice does not affect marriage; it does not even qualify as a can be brought by himself or interested parties.
ground for annulment o “Interested parties” – contracting parties’ parents, brothers, sisters, existing
spouse, if any, & those who will be prejudiced by the marriage
Art. 17. The local civil registrar shall prepare a notice which shall contain the full names o If, despite the court injunction, the LCR issues the license, the marriage
& residences of the applicants for a marriage license & other data given in the solemnized through that license will still be valid. But the party responsible for
applications. The notice shall be posted for 10 consecutive days on a bulletin board the irregularity shall be held civilly, criminally & administratively liable.
outside the office of the local civil registrar located in a conspicuous place within the
building & accessible to the general public. This notice shall request all persons having Criminal Liability of LCR
knowledge og any impediment to the marriage to advise the local civil registrar thereof. • Marriage Law of 1929 has laws regarding the liability of the LCR, which were never
The marriage license shall be issued after the completion of the period of publication. repealed
o Influencing parties in religious respects – Any LCR who tries to directly or
Duty of the Local Civil Registrar indirectly influence the contracting party to marry or refrain from marrying in
• The marriage license shall be issued after the completion of the period of any church, sect, or religious or before a civil authority shall be guilty of a
publication. misdemeanor & may be imprisoned
• If parties are 21-25 years of age & do not obtain the advice of their parents, or if o Illegal issuance or refusal of license – Any LCR who issues a license
such advice is unfavorable, the local civil registrar shall not issue the license till unlawfully or maliciously refuses to issue a license to a person entitled
after 3 months following the completion of the publication therefor thereto or fails to issue the same within 24 hours after the time when,
o If the marriage license is somehow issued within the 3-month period according to law, it was proper to issue the same, shall be punished & may be
& the couple get married, their marriage is valid & not annullable. imprisoned & fined
• If there is no consent for those 18-21 years of age, there is no 3-month period of
withholding; the license is automatically released Art. 20. The license shall be valid in any part of the Philippines for a period of 120 days
• If the couple is not able to obtain parental consent (for 18-21 years old) or parental from the date of issue, & shall be deemed automatically cancelled at the expiration of
advice (for 21-25 years old), the failure of the parties to attach their certificate for said period if the contracting parties have not made use of it. The expiry date shall be
marriage counseling will suspend the issuance of the license for a period of 3 stamped in bold characters at the face of every license issued.
months from the completion of the publication of the application.
o Issuance of the marriage license within the prohibited period will Marriage License & Date of Issue
make the issuing officer administratively liable, but it shall affect the • License is valid only within the Philippines & not abroad
validity of the marriage. • The date of the signing of the LCR is the date of issue
  Katrina Monica C. Gaw | Block C 2018| 10
 • From the date of issue, it should be claimed by the parties shall be issued by the LCR to the solemnizing officer transmitting copies of the marriage
• If it is not claimed & therefore not used within 120 days, it shall automatically certificate. The solemnizing officer shall retain in his file the quadruplicate copy of the
become ineffective marriage certificate, the original of the marriage license &, in proper cases, the affidavit
of the contracting party regarding the solemnization of the marriage in a place other than
Art. 21. When either or both of the parties are citizens of a foreign country, it shall be those mentioned in Art. 8.
necessary for them before a marriage license be obtained, to submit a certificate of legal
capacity to contract marriage, issued by their respective diplomatic or consular officials. Presumption of Marriage
Stateless persons or refugees from other countries shall, in lieu of the certificate of legal • A lawful contract of marriage is the presumption, unless it is contradicted &
capacity, submit an affidavit stating the circumstances showing such capacity to contract overcome by satisfactory evidence
marriage. • Every intendment leans towards legalizing matrimony
• One of the strongest in law, especially when the legitimacy of the children is
Certificate or Affidavit of Legal Capacity involved
• Citizens of any foreign country may contract marriage in the Philippines, but they • Persons dwelling together in apparent matrimony are presumed, in the
must secure a marriage license locally absence of any counter-presumption or evidence special to the case, to be in
• To get a license, they must submit a certificate of legal capacity – the Philippines fact married
adheres to the national law of the contracting parties with respect to their legal • ONCE the celebration of marriage is shown, the contract of marriage, the
capacity to contract marriage capacity of the parties, & everything necessary to the validity of the marriage
o If a 16-year-old is allowed to marry in U.S., then the American can also validly will be presumed
marry in the Philippines. o Credible testimony witness that the wedding took place gives rise to
o Without the certificate of legal capacity, the local civil registrar will not issue the presumption that exchange of vows took place
the marriage license o SEMPTER PRESUMITUR PRO MATRIMONIO: Always presume marriage
• Certificate of legal capacity is a necessary requisite for foreigners, & is the only o It is also the presumption that any former marriage by either
exception to the rule (aside from court intervention) that the LCR cannot withhold a contracting party has been legally dissolved, in the absence of proof
license of the contrary
• If a license is issued without a certificate of legal capacity, the marriage celebrated
on the basis of such license will still be considered valid Proof of Evidence
• If the foreigner is stateless or is a refugee, they shall be required to file an affidavit • Marriage may be proved by evidence of any kind
stating the circumstances showing such capacity to contract marriage in lieu of the • Best: Certificate of Marriage
certificate of legal capacity o Mere Photostat copy is a worthless piece of paper
• If two citizens of a foreign country desire to have their marriage solemnized by their § UNLESS such copy emanated from the Office of the LCR & is
country’s consul-general officially assigned in the Philippines, they can get married duly certified by the LCR as an authentic copy of the records
before said officer without procuring a marriage license in the Philippines if their in his office (admissible as evidence)
country’s laws allow the same. Such marriage will be recognized in the Philippines. § If Photostat copy is presented without objection by opposing
party, copies are deemed sufficient proof
Art. 22. The marriage certificate, in which the parties shall declare that they take each o Failure to present this is not fatal in a case where marriage is in
other as husband & wife, shall also state: dispute; there is still presumption of marriage
1) The full name, age and sex of each contracting party; § When there was a war & the documents were burned
2) Their citizenship, religion & habitual residence; § Marriage is still presumed if it can be shown that husband &
3) The date & precise time of the celebration of marriage; wife lived together for many years & had many children
4) That the proper marriage license has been issued according to law, except in • Official records of marriage are seen as more credible than even the testimony
marriages provided for in Chapter 2 of this Title; of the parties themselves, in terms of establishing facts like dates
5) That either or both of the contracting parties have secured the parental consent • ALSO admissible as proof:
in appropriate cases; o Baptismal certificates
6) That the parties have entered into a marriage settlement, if any, attaching a o Public & open cohabitation
copy thereof. § BUT mere cohabitation is not direct proof of marriage; it
must be proved by the proper documents or by oral
Art. 23. It shall be the duty of the person solemnizing the marriage to furnish either of testimony
the contracting parties the original of the marriage certificate referred to in Art. 6 & to § Cohabit: to live together, to have the same habitation, so
send the duplicate & triplicate copies of certificate not later than 15 days after the that where one lives & dwells, there does the other live &
marriage, to the LCR of the place where the marriage was solemnized. Proper receipt dwell with him

  Katrina Monica C. Gaw | Block C 2018| 11

 § More than mere living together: it must be an association, o SC has admitted to evidence a marriage contract contesting the
consciously & openly, as husband & wife validity of the marriage even when this was provided belatedly by one
o Birth certificates of the parties
o Juridical decisions • There MUST be a valid marriage license before a marriage takes place, minus
o Solemn statement in the will of a deceased the exceptions in Chapter 2 of this Title
o Parol evidence o Obtaining a license in a place which is not the residence of any of the
o Family bible parties is an indication that it may be spurious, & requires further
§ In which the names of the spouses have been entered as investigation
married o Official certification from the Office of the LCR where the marriage
o Testimony by the parties or the witnesses to the marriage, or by the license has been issued that, after earnest effort to locate & verify the
person who solemnized the marriage existence of the marriage license (based on marriage certificate), no
§ Witness & testimony must be credible & competent record has been found, or is issued to another couple, or is
§ To be sufficient, should disclose not only the performance of fabricated, is a convincing evidence to destroy the validity of the
the ceremony by someone, but that all circumstances marriage on account of no marriage license
attending it were such as to constitute a valid marriage § If the Office of the LCR admits it did not exert full force in
• NOT admissible: locating the license due to workload, SC did not allow the
o Transfer Certificates of Title nullity of the marriage
o Residence Certificates • Uninterrupted marital life for 40 years, should not be discredited after the
o Passports death of the husband through an alleged prior Chinese marriage, save upon
o Documents of a similar nature proof so clear, strong & unequivocal
§ Especially true when there is certification from the LCR • But if a man & woman live separately for many year (like the last 35 years of
concerned that the alleged marriage is not registered, or their lives), presumption of marriage through cohabitation may be offset
certification from the supposed solemnizing officer that he
did not solemnize the marriage CASE (Sarmiento v. Court of Appeals)
o A Certificate of Marriage made many years after the marriage, Multiple evidence of invalidity of marriage can outweigh the validity, especially when it
especially when there are no official records includes proof from official records
• Any officer, priest or minister who fails to deliver to either of the contracting Facts: One side a birth certificate indicating the legitimacy of the child of the parties. The
parties the original Certificate of Marriage or to forward the other copy to the other, however, showed a transfer certificate of title indicating that the man was a
authorities within the fixed period shall be punished with imprisonment for not widower at such time, & a record of marriage of the LCR which did not reflect the
more than 1 month or a fine by not more than 300 pesos, or both, at the marriage.
discretion of the court Held: The marriage was INVALID. Even if birth certificate is admissible as evidence, the
pieces of evidence disproving the marriage also have probative value & outweigh the
CASE (Vda. De La Rosa v. Heirs of Mariciana Rustia Vda. De Damian) proof of validity.
Absence of a record of the contested marriage does not necessarily prove that a
marriage does not exist, if extensive proof that the marriage was valid exists Declaratory Relief
Facts: The petitioner contests the validity of a marriage, on the basis that there was no • Parties can ask for declaratory relief regarding their capacity to marry, given
official record of the marriage. their circumstances, if they are unsure that they can legally be married
Held: The marriage was VALID. The following were used by respondents to prove the • Declaratory relief – brought by any person interested under a deed, will,
existence of marriage, all of which the Supreme Court collectively took as prima facie contract or other written instrument or whose rights are affected by a statute,
evidence: executive order, regulation, ordinance or other governmental regulation for the
• Certificate of Identity, passports purpose of determining any question of construction or validity arising
• Declaration under oath of one of the contracting parties therefrom, & for declaration of his or her rights or duties thereunder, provided
• That one of the petitioners witnessed the proposal & knew they both lived that the action is brought before any violation or breach
together as husband & wife
• Baptismal certificate administered by priest who baptized the child – seen by Art. 24. It shall be the duty of the LCR to prepare the documents required by this Title, &
court as CONCLUSIVE PROOF to administer the oaths to all interested parties without any charge in both cases. The
documents & affidavits filed in connection with applications for marriage licenses shall
Proof to Attack Validity of Marriage be exempt from documentary stamp tax.
• Evidence must be strong, distinct & satisfactory
o Not just a Certificate of Title Art 25. The LCR concerned shall enter all applications for marriage licenses filed with
him in a registry book strictly in the order in which the same are received. He shall record
  Katrina Monica C. Gaw | Block C 2018| 12
in said book the names of the applicants, the date which the marriage license was • Each state has the right to declare what marriages it recognizes, regardless of
issued & such other data as may be necessary. the validity of said marriage abroad
• Valid marriages abroad, if said country permits it:
Effect of Duty of LCR o Proxy marriages
• LCR is the specific government official charged with the preparation & keeping o Marriages without valid licenses
of all official documents in connection with marriage o Solemnized by a professor of law
• Any certification issued by him is given high probative value • If a marriage is to be solemnized inside the Philippine consulate abroad, it
must observe the forms & solemnities established by Philippine laws
Marriage Register
• LCR keeps a register of all persons married in its locality Exceptions
• Name & address of each of the contracting parties, age, place & date of the • If either party is below 18 & both are Filipinos
solemnization, the names & addresses of the witnesses, the full name, address o If one is a foreigner, the rules of his country regarding his legal
& relationship with the contracting party of the person who gave their consent, capacity should be followed, & if the marriage is seen as valid by his
& the full name, title & address of the person who solemnized the marriage country, the marriage can be celebrated, as long as the Filipino is 18
(Civil Registry Law) • Mistake of identity (whether the foreigner or the Filipino)
• If a spouse who contracts the marriage abroad is able to annul or declare void
Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in his first marriage but fails to record the judicial decree with the LCR, to partition
force in the country where they are solemnized, & valid there as such, shall also be valid & distribute their properties & deliver the presumptive legitime of their children
in this country, except those prohibited under Art. 35(1), (4), (5), (6), 36, 37 & 38. (Art. 40, 52 & 53)
Where a marriage between a Filipino citizen & a foreigner is validly celebrated & a • A marriage by a Filipino to a psychologically incapacitated person, or if said
divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her Filipino is psychologically incapacitated
to remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine • Same sex marriages
law. • Common-law marriages obtained abroad by Filipinos (though this is not listed in
Art. 26), due to absence of solemnization
Provisions Mentioned in Article
• Incestuous marriages & those against public policy (Art. 37 & 38)
• Art. 35(1) – That either of the parties is below 18 years old, even with consent o Courts can look at the statutes of foreign countries to check if a
of the parents marriage is not valid there
• Art. 35(4) – Bigamous or polygamous marriages, even if contracted abroad • Bigamous & polygamous marriages
• Art. 35(5) – Mistake in identity of one of the contracting parties o Bigamy – a second marriage contracted by a person who has a valid
• Art. 35 (6) – Void subsequent marriages under Art. 53 first marriage which has not been legally dissolved OR before the
• Art. 36 – Psychological incapacity absentee spouse has been declared presumptively dead by means of
• Art. 37 – Incestuous marriages a judgment rendered in the proper proceeding
• Art. 38 – Marriages against public policy § Art. 41, FC - a bigamous marriage may be recognized if one
of the spouses has been absent for 4 consecutive years, or
Validity Provision 2 in cases where there is danger of death, & the spouse has
• Lex loci celebrationis – law of place where [the marriage] is celebrated a well-founded belief that the absent spouse was already
o Validity of marriage in terms of preliminaries, manner & mode of its dead; person gets judicial declaration of presumptive death
celebration is to be determined in reference to the law of the place & can validly marry again, but without prejudice to the
where it is celebrated. reappearance of the absentee spouse
o A bona fide attempt on the part of the parties to effect a legal o Polygamy – An act or state of a person who, knowing that he has 2 or
marriage shall have every assumption favoring its validity more wives, or that she has 2 or more husbands, marries another
o A marriage void where it is celebrated is also void everywhere
§ If it would have been valid in the Philippines, but not where Proof of Foreign Marriage
it is celebrated, the marriage is still void • Foreign law must be proven as a question of fact
o If foreign law is not pleaded or proved, the laws of such state, in
A Matter of International Comity absence of proof of the contrary, will be presumed by the court to be
• Legal effect given to marriages solemnized abroad is due to comity the same as the laws of its own state
• BUT no state is bound by comity to give effects in its courts to laws which are o In the absence of proof by a Chinese woman alleging marriage to a
repugnant to its own laws & policies Filipino that their marriage was solemnized in China by a village

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 leader, but said woman failed to show proof of the marriage laws of Facts: The petitioner wants to obtain a judicial declaration of nullity so that she can once
China, SC presumed its own laws & invalidated the marriage again contest the property ownership of the property from their former marriage. She is a
o Prior to 1991 - burden of proof: one who asserts validity of marriage dual citizen, & is recognized as a Filipino citizen, but she chose before, during & shortly
celebrated abroad after her divorce to allow her American citizenship to govern her marital relationship, as
o After 1991 - burden of proof: one who asserts invalidity of marriage evidence by the Civil Decree she filed to obtain the divorce. Furthermore, her property
celebrated abroad relations with her husband had been adjudged.
• Proof of the celebration of the marriage pursuant thereto by convincing Held: The divorce was VALID. The wife can no longer attempt to re-fix the property
evidence relations of her former marriage, even if she is now a Filipino citizen. After a divorce, the
o Upon proof of marriage in another jurisdiction, it is presumed that ex-husband can no longer be subject to a husband’s obligation under law. The ex-wife
such marriage was performed in accordance of the law of that lacks a cause of action to be able to file for a JDNOM.
jurisdiction Cause of Action defined: an act or omission of one party in violation of a legal right of
another
Absolute Divorce
• Two Filipinos, even living abroad, cannot obtain divorce Void & Voidable Marriages
o A Filipina woman who get a divorce from her Filipino husband in the • If a marriage is null & void abroad, it is null & void here too
U.S. technically committed adultery when she dated other men, as the o In such a case, a civil action in the Philippines can be filed to nullify
Philippines does not recognize divorce (Art. 15 & 17, CC) the marriage from abroad
• Foreign marital law & divorce decree must be duly proven & cannot be taken
judicial notice of (Nationality Rule) CHAPTER 2: MARRIAGES EXEMPT FROM LICENSE REQUIREMENT
• But a Filipino who has become a citizen of a foreign country which allows
divorce can validly contract it Art. 27. In case either or both of the contracting parties are at the point of death, the
o For purposes of Art. 26, citizenship is relevant at the time of the marriage may be solemnized without necessity of a marriage license & shall remain valid
divorce & not at the time of marriage even if the ailing party subsequently survives.
o If the Filipino returns to the Philippines & becomes a citizen of the
Philippines again, divorce will still be valid, & Filipino can validly Art. 28. If the residence of either party is located so that there is no means of
remarry transportation to enable such party to appear personally before the LCR, the marriage
• If the Filipino contracts a divorce with a foreigner, the divorce will be recognized may be solemnized without necessity of a marriage license.
on the part of the foreigner, but not on the part of the Filipino
o A foreigner-spouse cannot claim that he still has interest in the Art. 29. In the cases provided for in the 2 preceding articles, the solemnizing officer shall
property of a Filipino acquired after said divorce state in an affidavit executed before the local civil registrar or any other person legally
o A foreigner-spouse cannot file a criminal case for adultery if Filipino- authorized to administer oaths that the marriage was performed in articulo mortis or that
ex-spouse has sex with another person the residence of either party, specifying the barrio or barangay, is so located & that the
officer took the necessary steps to ascertain the ages & relationship of the contracting
Proving Foreign Divorce parties & the absence of a legal impediment to the marriage.
• Foreign divorce decree duly authenticated by the foreign court issuing said
decree is sufficient evidence of a divorce obtained Art. 30. The original of the affidavit required in the last preceding article, together with a
o A foreign judgment merely constitutes prima facie evidence of the legible copy of the marriage contract, shall be sent by the person solemnizing the
justness of the claim of a party & is subject to proof of the contrary marriage to the LCR of the municipality where it was performed within 30 days after the
performance of the marriage.
• Reckoning point is the citizenship of a person at the time the divorce was
obtained
Art. 31. A marriage in articulo mortis between passengers or crew members may also be
• Valid foreign decree of a divorce shall be given res judicata4 effect
solemnized by a ship captain or an airplane pilot not only while the sip is at sea or the
plane is at flight, but also during stopovers at ports of call.
CASE (Bayot v. Court of Appeals)
Filipino with a dual citizenship can validly obtain a divorce abroad as a citizen of said
Art. 32. A military commander of a unit, who is a commissioned officer, shall likewise
country & can no longer filed a case to declare the marriage void; proof of preferred
have the authority to solemnize marriages in articulo mortis between persons within the
citizenship can be seen by the evidence of the citizenship used when filling up official
zone of military operations, whether members of the armed forces or civilians.
documents
Art. 33. Marriages among Muslims or among members of the ethnic cultural
communities may be performed validly without the necessity of a marriage license,
                                                                                                                provided they are solemnized in accordance with their customs, rites or practices.
4 A matter already judged
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Art. 34. No license shall be necessary for the marriage of a man & a woman who have Cohabitation for 5 Years
lived together as husband & wife for at least 5 years & without any legal impediment to • Two conditions must be fulfilled:
marry each other. The contracting parties shall state the foregoing facts in an affidavit 1) They must live as such for at least 5 years characterized by exclusivity &
before any person authorized by law to administer oaths. The solemnizing officer shall continuity that is unbroken
also state under oath that he ascertained the qualifications of the contracting parties & 2) They must be without any legal impediment to marry each other (at the
found no legal impediment to the marriage. time of the actual marriage celebration)
• Both conditions must concur, but do not need to qualify each other.
Exemption from Marriage License o They need not be without legal impediment through the entire 5
• Art. 28, 31, 32, 33 & 34 list situations where the contracting parties do not years.
need to obtain a marriage license before being validly married. • In the 1950 Civil Code, the following conditions must be present for a common-
o Anchored on necessity & practicality law marriage to be validly solemnized without a license:
• Various ethnic groups must comply with all other essential & formal requisites 1) They must live as husband & wife for 5 years
under Art. 2 & 3 of the Family Code 2) They must have been unmarried for the entire 5 years
o EXCEPTION: Muslims, who are governed by the Code of Muslim 3) They must both be of legal age
Personal Laws of the Philippines (February 4, 1977) *In other words, there must be no legal impediment to marry for the entire 5-
§ No license need be procured by the contracting parties year period
• Under the present Family Code, a spouse living-in with his paramour can avail
Solemnizing Officers under Art. 7 & Mayor of this exception & marry his paramour without a marriage license after the
• All those authorized to solemnize a marriage under Art. 7 & the mayor are death of his legal spouse without waiting for 5 years
empowered to act as solemnizing officers even without a valid marriage license • Contracting parties shall state the fact of their cohabitation for at least 5 years
if either or both of the contracting parties are at the point of death & the absence of any legal impediment to marry in an affidavit before any
• All officers must still comply with rules on jurisdiction & other requisites person authorized by law to administer oaths
o Solemnizing officer should also state under oath that he ascertained
Military Commander the qualifications of the parties & found no legal impediment to the
• Officer must be a commissioned officer marriage
o Rank should start from 2nd lieutenant, ensign & above o Failure of S.O. to investigate shall not invalidate the marriage
• A commander of a unit o Where a judge solemnized a marriage involving a party who was only
o At least a battalion of an army whose strength is laid down by 18 years of age without a marriage license on the basis of an affidavit
regulations where the parties indicated that they already lived together as
• In articulo mortis husband & wife for 6 years, SC held the judge acted improperly;
• In the absence of a chaplain (unless neither of the contracting parties are in nevertheless, SC didn’t state that the marriage was void as, at the
the same sect as the chaplain) time of the marriage ceremony, the parties had no legal impediment
• Within the zone of military operation & during such military operation to marry
• Civilians or members of the armed forces • IF there is no cohabitation for 5 years, marriage is invalid for absence of a valid
marriage license, when the affidavit was falsified. The absence of the license
Muslim & ethnic groups cannot be considered a mere irregularity becomes the 5-year period is the
• In the Civil Code, as long as the marriages of ethnic groups, pagans & Muslims substantial requirement of the law to be exempted from obtaining a marriage
were performed in accordance with their customs, rites & practices, such license.
marriages were considered valid. Directory Requirements
o Formal requisites need not be complied with, including authority of o Art. 29 & 30 are merely directory in character & absence will not render
the solemnizing officers marriage void or annullable.
o Privilege that was good for 20 years from the time the Civil Code took o Priests, ministers & officers who, having solemnized a marriage in articulo
effect mortis or any other marriage of an exceptional character, shall fail to comply
with the provisions of Chapter 2, Title I of the Family Code shall be punished by
• RA 6766: The Organic Act for the Cordillera Autonomous Region (CAR)
imprisonment or fines or both.
o Marriages solemnized between or among members of the indigenous
tribal group or cultural community in accordance with the indigenous
CHAPTER 3: VOID & VOIDABLE MARRIAGES
customary laws of the place shall be valid, & the dissolution thereof in
accordance with these laws shall be recognized
Art. 35. The following marriages shall be void from the beginning:
• All other ethnic groups are subject to the laws of the Family Code

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 1) Those contracted by any party below 18 years of age even with the consent of assail assail
the parents or guardians; Legitimacy of Children Generally, children conceived Children are legitimate
2) Those solemnized by any person not legally authorize to perform marriages & born inside a void
unless such marriages were contracted with either or both parties believing in marriage are illegitimate
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 Except:
Chapter; Art. 54 – in relation to
4) Those bigamous & polygamous marriages not falling under Art. 41; psychological incapacity, Art.
5) Those contracted through mistake of one contracting party as to the identity of 53 (failure to record judicial
the other; & declaration, partition &
6) Those subsequent marriages that are void under Art. 53. distribute)

Void Marriages *NOTE: If a person in a void

• Not valid from inception marriage fails to get a
• Art. 35, 36, 37, 38, 40, 41, 44 & 53 in relation to Art. 52 of the Family Code JDNOM & remarries, the
enumerate marriages which are void child is illegitimate (Art. 40)5
• Only marriages declared void by legislature can be treated as such Property Regime Co-ownership (Art. 147/148) Conjugal partnership of gains
• Grounds for a void marriage may co-exist in one case (or absolute community)
o A petition for declaration of nullity, without any other incidental Except:
prayers like support, deals with only 1 cause of action, which is the Art. 40 – marriages that are
invalidity of the marriage from the beginning void due to failure to obtain a
o There can be multiple grounds, but only 1 cause of action JDNOM for the 1st marriage
o SC in Mallion v. Alcantara: A petitioner cannot first file 1 ground & of one of the spouses
then subsequently file another; a case for nullity involves only 1 cause
of action, so all the grounds must be listed in that 1 cause; not having *BUT NOTE: If only Art. 40 is
invoked the other ground in the 1st place, the petitioner is considered complied with, without Art.
to have impliedly admitted the validity of the celebration of the 52, regime is co-ownership6
marriage, thereby waiving said defect
*Sta. Maria thinks this case is wrong for valuing procedural over • If a contracting party states under oath in his application that he is 21 years of
substantive law age when he is actually 16, & the marriage was solemnized when he was a
minor, the marriage is still void & can still be judicially declared void.
Void & Voidable Marriages • If the parties state that they have been cohabiting for 5 years already when
they have only cohabited for 2, the marriage is void.
Void Marriages Voidable Marriages
Status of the Marriage Considered as having never Valid until otherwise declared Bad Faith or Good Faith in Void Marriages
taken place & cannot be the by court • Generally, good faith or bad faith is immaterial in void marriages
source of rights o A person who marries her long-lost brother without knowing he was
Ratification No ratification Generally ratifiable by free her long-lost brother still entered a void marriage
cohabitation or prescription o Same applies if person marries without a marriage license
Type of Attack that is Can be assailed collaterally, Cannot be assailed • Exceptions, when the party:
allowed but not directly by any other collaterally, only in a direct 1) Has a well-founded belief that his or her spouse is dead
person other than the proceeding 2) Procures a juridical declaration of presumptive death
spouses
Prescriptive Period For direct proceeding - only Only during the lifetime of the
during the lifetime of the parties                                                                                                                
5 If a man marries a 2nd woman after failing to obtain a JDNOM for his 1st marriage, his children with
parties
the woman will be illegitimate. But if he obtained a JDNOM, & merely failed to record the JDNOM &
distribute & partition his properties, his children with the 2nd woman are legitimate.
For collateral attack – no 6 If a spouse fails to get a JDNOM for his 1st marriage & remarries another woman, his property
prescription regime will still be ACP/CPG when he dissolves his marriage with 2nd woman. But if the same spouse
Who can Assail Any interested parties can Only parties of marriage can obtains a JDNOM, but fails to record it, distribute & partition, the regime of his marriage with the 2nd
woman will be co-ownership.  
  Katrina Monica C. Gaw | Block C 2018| 16
 3) At the time the subsequent marriage ceremony, is in good faith together
with subsequent spouse CASE (De Castro v. Assidao-De Castro)
*In the last 2 cases, the good faith of even one of the contracting parties shall In cases of child support, the validity or voidness of a marriage can be collaterally
make the marriage valid. attacked.
• There is no injured party in a void marriage, unlike in an annullable marriage or Facts: Petitioner filed a complaint for support against her husband to compel the latter to
those with legal separation. support their child. The husband interposed an affirmative degree claiming he &
petitioner were not married. Did the husband need to file a separate case to declare his
CASE (Chi Ming Tsoi v. Court of Appeals) marriage void?
That the party who is accused of being psychologically incapacitated is the one who files Held: NO. In a case of child support, there is no need to file a separate case for the
the case is immaterial; good faith or bad faith does not serve to change the status of a JDNOM.
void marriage.
Facts: Chi Ming Tsoi has a 3-inch penis & his wife believes he is incapable of sex or that • 3 cases when a direct attack (not a collateral attack) on the nullity of a
he might be gay, as he has refused to sleep with her for a number of months already. Chi marriage must be first undertaken
Ming Tsoi, on the other hand, says it is his wife that is psychologically incapacitated, & 1) The absolute nullity of a previous marriage may be invoked for
that he is willing to make the marriage work. purposes of remarriage on the basis solely of a final judgment
Held: Marriage is VOID. The refusal to have sex points towards a psychological issue, & declaring such marriage void (Art. 40)
at this point, it is immaterial whether or not the wife or the husband is the reason why 2) For other purposes, such as but not limited to heirship,
this is the case; the bottom line is, this marriage ain’t working. legitimacy or illegitimacy of a child, settlement, etc., the court
may pass upon the validity of a marriage even in a suit not
Bad Faith Affecting Property Distribution directly related to it; but this is without prejudice to any issue that
• In the disposition of properties in a void marriage, good faith & bad faith of one may arise in the case, making the JDNOM necessary (Niñal v.
of the parties at the time of marriage is material (Art. 147, 148 of CC) Bayadog)
• GENERAL RULE in void marriages: property regime is co-ownership 3) Revocation of a donation propter nuptias given to one or both of
o When one of the parties is in bad faith, the share of said party in the the parties on the ground that the marriage is void; a JDNOM
co-ownership shall be forfeited in favor of their common children must first be obtained by the parties. (Art. 50 in relation to Art.
§ In case of default or of waiver by any or all of the common 43(3) & Art. 86(1))
children or their descendants, share shall belong to the *The existence of a valid JDNOM will give the donor the cause of
innocent party action to revoke the donation (Art. 86(1)) or to consider the
§ Shall take place upon the termination of cohabitation donation revoked by operation of law (Art. 50 in relation to Art.
o Applies to all marriages except to a subsequent void marriage due to 43(#)), as the case may be.
the failure of a party to get a prior JDNOM of the previous void
marriage pursuant to Art. 40 of the Family Code. Below 18 Years of Age
§ ACP or CPG • Subsequent parental consent cannot ratify such a void marriage
§ The party that contracted under bad faith will also be forfeit
his share pursuant to Art. 43 (2). Non-Authority of Solemnizer
• The Philippines exclusively recognizes ceremonial marriages
Collateral & Direct Attack • If a person is not enumerated in Art. 7 of FC or by LGC, he has no authority to
• Generally, a void marriage can be collaterally attacked – nullity of marriage can solemnize a marriage
be asserted even if it is not the main or principal issue of a case
o No previous JDNOM is required by law with respect to any other Good Faith Marriage
matter where the issue of the voidness of a marriage is pertinent or • Good faith belief of either or both of the contracting parties in the authority of
material, either directly or indirectly the solemnizing officer can still make the marriage valid
• Direct attack – the JDNOM is the principal issue o “Putative marriage” – applied to a matrimonial union which has been
• Inheritance case: any proof can be showing that makes a child illegitimate due solemnized in due form & good faith on the part of one or both of the
to the void marriage of decedent with their mother parties but which by reason of some legal infirmity, is either void or
o JDNOM is not needed to prove that marriage is void (in other words, it voidable. The essential requisite is the belief that it is valid.
does not need to be shown that either one of the spouses filed a civil • NO OTHER essential or formal requisite can be “cured” by good faith
case precisely & mainly for the purpose of judicially declaring the • Good faith is a question of fact which must be determined by the trial court, but
marriage void). good faith is always presumed until the contrary is proven
o Evidence other than a judicial decision declaring said marriage void o But good faith requires the exercise of due diligence, & this means a
can be presented to show nullity of marriage certain awareness of the questions of law
  Katrina Monica C. Gaw | Block C 2018| 17
 o Person in good faith cannot close his ears to information or his eyes
to suspicious circumstances; must not act blindly or without Mistake in Identity
reasonable precautions • One of the parties marries the twin of the other, believing that such twin is his
• Question of fact – Parties go before a person stated by law as qualified to or her lover
solemnize a marriage but in fact is not because of non-fulfillment of a o The contracting party ABSOLUTELY did not intend to marry the other,
requirement by law (such as procurement of a solemnizer’s license) then the as the same is not the person he actually knew before the marriage
good faith of the parties in believing in the officer’s authority is material. • Does not include mistake in the name, character of the person, his or her
o When a man dresses up as a priest, pretending to have the authority attributes, his or her age, religion, social standing, pedigree, pecuniary means,
to solemnize a marriage temperaments, acquirements, condition of live or previous habits
o Excusable mistake of fact o DOES NOT APPLY when a man is led to believe that he is marrying a
• Question of law – If the contracting parties go before a person not specifically virtuous woman, when in fact she had previously led an immoral life
mentioned by law as having any authority to solemnize a marriage, then good
faith or bad faith is immaterial because they cannot be excused for being Void Under Art. 53
ignorant of the persons authorized by law to solemnize marriage • For persons whose marriages have been annulled or declared null & void to be
o Ignorantia legis non excusat (Art. 3, CC) able to validly marry again, they must:
o The authority of the solemnizing officer (priest) to contract said o Register JDNOM or JDAOM in the local civil registry where marriage
marriage was solemnized
• When a woman’s belief in the validity of the authority of the solemnizing officer o Undertake the liquidation, partition & distribution of their properties,
stems from a question of fact (he acts more like the judge than the judge IF ANY
himself) rather than a question of law (not knowing which solemnizing officer o ONLY in the proper cases, the delivery of the children’s presumptive
has authority), her belief is considered in good faith. legitimes
o From Family Code Senate Committee Discussions – many people • Non-compliance with these requirements will make the subsequent marriage
these days are good at pretending they have the authority to void
solemnize marriages
Art. 36. A marriage contracted by any party who, at the time of the celebration, was
No Marriage License psychologically incapacitated to comply with the essential marital obligations of
• Marriage license is a formal requisite, with exceptions provided in Art. 27, 28, marriage, shall likewise be void even if such incapacity becomes manifest only after its
29, 30, 31, 32, 33 & 34 of the FC. solemnization

Bigamous & Polygamous Marriages Psychological Incapacity

• Exceptions: • Determination is on a case-to-case basis, according to the facts of the case
o Code of Muslim Personal Laws • Not to be equated with insanity or total mental inability to function in all
o Art. 41 (Presumptive Death) aspects of human life
• A validly married man or a woman are prohibited from contracting another • Restricted to psychological incapacity “to comply with all the marital
bond of union as long as the consort is alive obligations.”
o Example: A subsequent marriage contracted by a wife during the life o Malady or mental disposition must seriously & effectively prevent
of a former husband is illegal & void from the beginning them from having a functional & normal marital life clearly conducive
o Example: A subsequent marriage contracted in HK by a husband who to bringing up a healthy personal inter-marital relationship within the
had secured a void Nevada divorce is bigamous & void family which is necessary for its growth
• If the 1st marriage is void, there is no bigamy when the man or woman o Afflicting party even BEFORE celebration of marriage
contracts a 2nd marriage, according to Sta. Maria – 1st marriage must be valid • Senseless, protracted, constant refusal to comply with all the essential marital
for bigamy to exist obligations by one or both of the parties although he, she or they are physically
o SC ruled in Nicdao Cariño v. Cariño, however, that a marriage under capable of performing such obligations
Art. 40 would in fact be bigamous (to be clear: the first marriage is • Some examples from jurisprudence:
void, and without getting a JDNOM, one of the spouses enters into a o While a person may be truly efficient & mentally capable in his
second VALID marriage). professional life, he can still be considered completely irresponsible
• BUT when the 1st marriage is void, & one of the parties contracts a 2nd vis-à-vis his married life if he spends the whole day working & not
marriage, the 2nd marriage is likewise void if the parties did not obtain a minding his or her family
JDNOM & recorded with the LCR before any subsequent marriage (Art. 40, 52,
53)

  Katrina Monica C. Gaw | Block C 2018| 18

 o Despite him saying that he truly loves his wife & kids, he is so • Total breakdown of family life is a good indicator, but separation &
absolutely indifferent with respect to his or her duties as a father & abandonment alone are not conclusive proof of psychological incapacity
husband • Mere isolated idiosyncracies are not enough; so mere refusal or neglect to
• Capacity is limited to his failure or disregard to comply with essential marital comply is not enough too—it must be downright incapacity to perform
obligations, although physically capable of doing so o There must be gross irresponsibility & utter disregard
o Not mere stubborn refusal; attributable to psychological issues • Should NOT be attributed to pure physical illness
• NOT related to insanity or lack of consent, but with obligations attendant to the • Psychological evidence (expert testimony) is not necessarily conclusive, but can
marriage be considered decisive evidence if it is thorough & specific to the case of the
• CANNOT be cured by cohabitation, considering that ratification does not apply incapacitated spouse
to void marriages; even the bearing of children does not necessarily cure o Personality disorders suffered by both parties is included
psychological incapacity o BUT a person need not be declared psychologically incapacitated by a
• There is such a thing as SELECTIVE IMPOTENCY—when a person may be physician, as courts can consider totality of evidence
psychologically impotent with one person, but not with another; this can be o Expert testimony must be thorough & in-depth assessment
considered psychological incapacity • Some accepted disorders of psychological incapacity:
• A defect in the understanding of the consequences of marriage o Dependent personality disorder
o Psychological incapacity is incurable o Anti-social & narcissistic personality disorder – with lack of loyalty to
o But a person who is psychologically incapacitated is not barred from persons or sense of moral values
marrying again o Hyperesthesia – no real freedom of sexual choice
• Decisions of church tribunals are not binding on civil courts but have o Schizophrenia
persuasive effect, since the provision is taken from Canon Law o Nymphomaniacs
• Mere difficulty of assuming moral obligations does not constitute incapacity. o Inadequate personality disorder
There must be a true psychological disorder or issue.
• In a sense, it is incurable Expert Testimony
• Does not cover all forms of psychoses • Extremely helpful
• Children born in marriages under psychological incapacity are LEGITIMATE (Art. • Personal medical or psychological examination is not a requirement for the
54) declaration of psychological incapacity, & the presence of expert testimony
does not also immediately mean the decree will be granted
CASE (Santos v. Court of Appeals) • Decision must be based on totality of evidence
Absence for a long period of time does not necessarily prove psychological incapacity. o Thus, sometimes, when the report from the psychiatrist seems faulty
Facts: Wife goes abroad to work in the U.S. & does not contact her husband at all; only or too general, it is not considered by the courts
calls him up 7 months later to say she is coming home, but she never does. She only o But sometimes, when the psychiatrist does not personally examine
begins to reply when he files for JDNOM due to psychological incapacity, for her failure to the incapacitated person but is able to get the pertinent data, the
communicate with him for over 5 years. testimony is admitted as evidence
Held: NO psychological incapacity; there is no showing that the wife fails to understand • In one case, the husband was going to introduce the confidential psychiatric
the obligations & consequences of marriage. evaluation report made by a psychiatrist with respect to his wife
o Court admitted this as evidence even if it was supposed to be
Proving Psychological Incapacity confidential, as it was the husband, not the psychiatrist, who would
• Can only be proven by indicators & external manifestations of the person be making the testimony
claimed to be psychologically incapacitated
• It is important to see if the spouse observes their duties as required in Art. 68 Lifted from Canon Law
of the Family Code • Decisions of church tribunals are also considered persuasive, but not
• Procreation is considered an essential obligation – constant non-fulfillment of necessarily conclusive
this obligation will finally destroy the integrity or wholeness of the marriage • Example: Woman who submits herself to sex because she is obliged to do so;
• Art. 220, 221 & 225 of FC – duties of parents in relation to their children; this is indicative of a psychological problem
failure to do this is a good indicator of psychological incapacity • Fr. Dacanay – psychological incapacity as the inability to posit the object of
• Example: fear of a wife, who is afraid of children, to engage in sexual relations consent, rather than the inability to posit consent
is an indicator of psychological incapacity (senseless & protracted refusal) o They understand marriage, however they find it difficult to deliver the
• Example: unreasonable attachment of spouse to his friends, so much so that object of their consent
his devotion to his family is subordinated to said attachment
Jurisprudential Guidelines

  Katrina Monica C. Gaw | Block C 2018| 19

 • (Republic v. CA & Molina) Guidelines for invoking & proving psychological 9) Between parents where one, with the intention to marry the other, killed that
incapacity: other person’s spouse or his or her own spouse
1) The burden of proof to show nullity of marriage belongs to the one who
claims the psychological incapacity; any doubt should be resolved in favor Breakdown
of marriage • Mimicking parents & children
2) Root cause must be: a. Between step-parents & step-children
a. Clinically or medically identified b. Between parents-in-law & children-in-law
b. Alleged in the complaint c. Between adopting parent & adopted child
c. Sufficiently proven by experts • Mimicking siblinghood
d. Clearly explained in the decision a. Between the adopted children of the same adopter
e. Must be psychological, but manifestation may be physical b. Between the legitimate child of the adopter & the adopted child
3) Existing at the time of the celebration of the marriage • Surviving Spouses
4) Must be shown to be medically or clinically incurable – may be relative a. Between the surviving spouse of the adopting parents & the adopted
only in regard to the other spouse child
5) Such illness must be grave enough to bring about inability to assume the b. Between the surviving spouse of the adopted child & the adopter
essential obligations of marriage • Relatives & Plain Murder
6) The essential obligations must be those embraced by Art. 68-71 of the a. Between collateral blood relatives, whether legitimate or illegitimate,
Family Code up to the 4th civil degree
7) Interpretations given by National Appellate Matrimonial Tribunal of the b. Between parties where one, with the intention of marrying the other,
Catholic Church of the Philippines should be given great respect by our killed that other person’s spouse or his or her own spouse
courts
• Despite Molina, each case of psychological incapacity must be treated Reasons for Prohibition of Void Marriages
differently • Marriages in Art. 38 will not serve the fundamental objective of nurturing a
stable family unit that can effectively be the foundation of society
Damages • Enumeration in Art. 38 is exclusive
• No damages allowed at all in psychological incapacity; non-cognizance of one’s o A guardian & ward can marry each other
essential marital obligation at the time of the marriage ceremony negates bad o Step-siblings can marry each other
faith, which is an essential element in awarding moral damages in contracting o A principal & her agent can marry each other
the marriage
Collateral Blood Relatives by Consanguinity
Art. 37. Marriages between the following are incestuous & void from the beginning, • Relationship by consanguinity is not capable of dissolution
whether the relationship between the parties is legitimate or illegitimate: o If a common ancestor like a grandfather dies, the relationship is still
1) Between ascendants & descendants of any degree; & not severed
2) Between brothers & sisters, whether full or half-blood • In determining if two persons are relatives up to the 4th civil degree, they have
to consider their nearest & most immediate common ascendant
Reasons for Prohibition o People you can’t marry:
• Immoral § Your first cousin
• Recessive abnormality (biological) § Your uncle or aunt
• Social & psychological issues § You great aunt or uncle
§ Your niece or nephew
Art. 38. The following marriages shall be void from the beginning for reasons of public § Anybody in the ascending or descending line (Art. 37)
policy: o People you can marry:
1) Between collateral blood relatives, whether legitimate or illegitimate, up to the § The daughter or son of your cousin
4th civil degree
2) Between step-parents & step-children Collateral Half-blood relatives by Consanguinity
3) Between parents-in-law & children-in-law • Law does not provide that marriages between collateral blood relatives by the
4) Between the adopting parents & the adopted child half-blood are prohibited
5) Between the surviving spouse of the adopting parents & the adopted child • Can you marry your half-blood niece or nephew, or half-blood uncle or aunt?
6) Between the surviving spouse of the adopted child & the adopter o Audrey v. Audrey – No. It can be implied from the nature of the
7) Between an adopted child & a legitimate child of the adopter relationship.
8) Between adopted children of the same adopter
  Katrina Monica C. Gaw | Block C 2018| 20
 o In Re Simms Estate – Yes. If legislature intended to do so, they o View 1: Relationships by affinity persist only when there are children.
should’ve said so. Otherwise, these relationships are terminated. This is usually applies
§ THIS appears to be the proper view; all doubts must be in cases of jury disqualification & incest.
construed in favor of marriage. o View 2: Relationships by affinity continue even after the death of the
spouse. This usually applies in cases meant to benefit step-laws & in-
Relationships by Affinity laws.
• Affinity is a connection formed by marriage, but is also a fictive relationship o SC holds that View 2 is more aligned with the spirit of Art. 332 of RPC
created by law § View 2 also strengthens the institution of the family. Art.
• Step-brothers & step-sisters are allowed to get married 332 is meant to avoid family scandal
• When a marriage is annulled or nullified, the relationship by affinity between § View 2 holds for all intents & purposes favorable to the
step-parents & step-children & parents-in-law & children-in-law is terminated strengthening of the bond of family
o They can THUS validly marry each other § In case of doubt, the Court must favor the innocence of the
• When a marriage is terminated by death, the relationship by affinity continues accused
(refer to case below) § SC states that the same applies to Art. 11[2] of RPC, Art.
13[5]
CASE (Carungcong v. People, Sato) o HOWEVER, Sato was not charged with simple swindling, theft or
Upon the death of one spouse, relations by affinity do not terminate regardless of the malicious mischief—he is charged with the complex crime of estafa
existence of issues for all intents & purposes favorable to them through falsification of public documents, based on the facts as
fleshed out by the SC, & is thus not covered by Art. 332 of RPC. Sato
Facts: Art. 332 of the RPC states that no criminal (only civil) liability shall be result from is criminally liable.
the commission of the crime of swindling, theft or malicious mischief when committed or
cause mutually by (1) spouses, ascendants, descendants or relatives by affinity in the Adoptive Relationship
same line, (2) the widowed spouse with respect to the property which belonged to the • Limited to one of parent & child
deceased spouse before the same shall have passed into the possession of another (3) • Adopter cannot marry:
brothers & sisters & brothers-in-law & sisters-in-law, if living together. Carungcong is the o The adopted child
manager of the properties of her late mother Manolita Carungcong-Gonzales. o The surviving spouse of the adopted child
Carungcong discovered that her brother-in-law, William Sato, had committed estafa • Adopted child cannot marry:
against Manolita while she was still alive, having her sign papers that he said were just o The surviving spouse of the adopting parent
for the payment of her taxes, which turned out to papers that turned over 4 Tagaytay lots § If the marriage is nullified or annulled, adopted child &
to Sato. Manolita was blind at the time, & thus believed Sato. Sato never turned over the former spouse can marry; same with adopter & former
proceeds to Manolita, even after she died, & even after the demands of Manolita’s spouse of adopted child
estate. Sato claims that he is entitled to the protection provided in Art. 332 of the RPC as o The legitimate child of the adopting parent
he swindled his mother-in-law, who is a relative by affinity in the same line. Carungcong, o Another adopted child of the same adopting parent
on the other hand, argues that the death of her sister, Sato’s wife, before the death of o The adopting parent
Manolita, severed mother-son relationship by affinity. She also cites the commentary of • Technically speaking, the adopted child can validly marry anybody else,
Justice Luis B. Reyes in his book on criminal law that the rationale of Article 332 of the including an illegitimate child of the adopter & the parents & other relatives by
Revised Penal Code exempting the persons mentioned therein from criminal liability is consanguinity or affinity of the adopter
that the law recognizes the presumed co-ownership of the property between the offender • Adopter can validly marry real parents of the adopted child, the illegitimate,
and the offended party. Here, the properties subject of the estafa case were owned by legitimate or adopted child of the adopted child, etc.
Manolita whose daughter, Sato’s wife, died on January 28, 1991. Hence, Sato’s wife
never became a co-owner because, under the law, her right to the three parcels of land Intentional Killing of Spouse
could have arisen only after her mother’s death. Since Sato’s wife predeceased her • Guilty party must be animated by an intention to marry another person
mother, Manolita, no such right came about and the mantle of protection provided to • Example: if a wife kills her husband because he is a philanderer & thereafter
Sato by the relationship no longer existed. marries her lawyer who defended her case, their marriage is valid
Held: SC granted the petition in favor of Carungcong. • Example: If a woman runs over her husband in anger, & has a lover on the side,
• It has been previously held that parents-in-laws, stepparents & adopted but didn’t kill the husband in order to marry her lover, the lover & the wife can
children are included in the exemptions listed in Art. 332 of RPC. validly marry one another
• Affinity is a relationship gained by marriage; it is a fictive kinship created by • Only preponderance of evidence is required; no need for criminal conviction
law. There are 2 views in jurisprudence in reference to what happens to • Evil intention need not be shared by the other spouse
relationships by affinity when marriage is terminated by death:

  Katrina Monica C. Gaw | Block C 2018| 21

Art. 39. The action or defense for the declaration of absolute nullity of a marriage shall o If a JDNOM were obtained & not registered with the LCR & the
not prescribe. liquidation, partition & distribution of the properties, if any, were not
also recorded in the proper registry of property in accordance with Art.
Prescriptive Period 52 & 53, any subsequent marriage is likewise void.
• JDNOM does NOT dissolve a marriage; such marriage is invalid from the o FULL compliance with Art. 52 & 53 is necessary.
beginning, & thus cannot be dissolved
• JDNOM merely declares the voidness of the marriage Historical Background of the need for JDNOM
• Supreme Court en banc resolution in A.M. No. 02-11-10 (March 15, 2003): • This chart demonstrates the historical background of the need for a JDNOM in
ONLY the husband & wife can file a case for JDNOM &, if filed, the case will be order to have a valid subsequent marriage
closed or terminated if during its pendency, either the husband or wife should • Which case doctrine applies depends on when the 2nd marriage was celebrated
die. • In annulment, a judgment must always be procured; otherwise, the marriage
o Heirs can no longer directly assail the marriage of their step-parent continues to be valid until terminated
with their parent • JDNOM is not only for purposes of remarriage, but it is MANDATORY for those
• All void marriages under the Family Code do not prescribe. who want to marry a 2nd time
o The ONLY ACCEPTABLE PROOF for purpose of remarriage (Domingo v.
Parties Court of Appeals)
• The doctrine that the court should not grant relief to the wrongdoer (doctrine of
clean hands) does not apply to JDNOM Case/Code Date JDNOM required?
• Even the wrongdoer can nullify the marriage Civil Code August 30 1955 No
o But the wrongdoer may be held liable for damages under Art. 19, 20, People v. Mendoza September 28 1954 No
21 of the CC Gomez v. Lipana June 30 1970 Yes
• PRIOR to March 15, 2003 – any interested party can directly file a case for a Odayat v. Amante June 2 1977 No
JDNOM of two spouses, including the father or stepchildren of the spouses. Wiegel v. Sempio Diy August 19 1986 Yes
o Previously, a father could file a case for JDNOM for his daughter’s Yap v. Court of Appeals October 28 1986 No
bigamous marriage with another man. Family Code August 3 1988 Yes
o Also, legitimate heirs can file a suit against their stepmother for
declaration of nullity of her marriage with their deceased father to Art. 40 & Bigamy
protect their successional rights • Law distinctly separates the provisions of a subsequent void marriage
o However, a void marriage can still be collaterally attacked by any contracted while a previous void marriage is still subsisting (Art. 40, 52, 53)
interested party when the determination is necessary to give rise to from the provisions on void bigamous marriages (Art. 35(4) & Art. 41)
certain rights or to negate certain rights • If a person, without a JDN for his 1st marriage, marries another, the marriage is
void, but Sta. Maria believes that it is NOT bigamous; the person merely failed
CASE (Perez v. Court of Appeals) to comply with the formal requisites of law
A 2nd wife cannot file to intervene in JDNOM case of the 1st marriage of her husband o Art. 40 does not call such a marriage bigamous
with his 1st wife o Bigamy involves 2 valid marriages – a valid one with the 1st spouse, &
Facts: The 2nd wife filed to intervene in the JDNOM case of her husband & his 1st wife. another with the 2nd.
Her husband got divorced abroad, prior to marrying her. o In a bigamous void marriage, the 1st marriage is valid, while the one
Held: SC denied the petition, as the divorce obtained abroad is not valid, & SC does not in Art. 40 is void
recognize the 2nd marriage of her husband to her.
CASE (Nicdao Cariño v. Cariño)
Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of SC has held that a 2nd void marriage obtained by a spouse who has already been in a
remarriage on the basis solely of a final judgment declaring such previous marriage void. void 1st marriage is bigamous, because the 1st marriage is presumed to be valid as there
was no JDNOM, contrary to the opinion of Sta. Maria.
Judicial Declaration of Nullity Facts: A man previously married his 1st wife, but it was void because the marriage was
• If a marriage between 2 contracting parties is void ab initio, anyone of them solemnized without a marriage license. Subsequently, & without getting a JDNOM, he
cannot contract a subsequent valid marriage without a previous JDN of the marries his 2nd wife.
previous void marriage. Held: SC held that the marriage of the man to his 2nd wife was bigamous, as his 1st
o The 2nd marriage will also become void ab initio if there is no JDNOM, marriage is assumed valid by law, because he was unable to obtain a JDNOM for the 1st
in accordance with Art. 40, 52 & 53. marriage.

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For Sta. Maria, this decision blurs the line between Art. 40 & 41; thus, he holds that, • A person who marries another, knowing that the latter is already married & that
despite the SC decision, the difference between the 2 must be maintained. his marriage is valid & subsisting, can be prosecuted for bigamy
• Even an annullable marriage can be subject to a case of bigamy
Art. 40 and Bigamy
• Bigamy – committed by any person who shall contract a 2nd marriage or a Exception
subsequent marriage before • A “bigamous” marriage can be valid if the present spouse obtains a JDPD via a
o 1st marriage has been legally dissolved, or summary proceeding in a court (the only instance when the law creates a valid
o The first spouse has been declared presumptively dead by means of a bigamous marriage)
judgment in the proper proceeding • Requisites:
• 1st marriage is valid or at least annullable o Spouse has been absent for 4 consecutive years & present spouse
• 2nd marriage would also be valid, had it not been bigamous has a well-founded belief that absent spouse is dead
• But in Mercado v. Mercado, SC has held that criminal bigamy is committed by o Spouse is in a circumstance where he is in danger of death; the
anyone who contracts a 2nd marriage without 1st obtaining a JDN of his 1st period shall be shortened, in this case, to 2 consecutive years. These
marriage. circumstances (Art. 391, CC) are:
o When Art. 40 is not complied with, the subsequent marriage is § Absent spouse was on a vessel & the same was lost during
criminally bigamous. a sea voyage & he had not been heard of for 2 years since
o Dissent of Justice Vitug: Criminal law on bigamy contemplates an the loss7
existing 1st marriage, or at least an annullable one; in fact, a void § Absent spouse was on an airplane & spouse was not heard
marriage is supposed to be a defense in bigamy; JDN is not necessary of for 2 years since the loss of the plane
• People v. Cobar (Sta. Maria likes this better) details 4 requisites for bigamy: § When the absent spouse was in the armed forces & has
1) Offender has been legally married taken part in the war & has been missing for 2 years
2) The marriage has not been legally dissolved or in case his or her § When the absent spouse has been in danger of death under
spouse is absent, the absent spouse could not yet be presumed other circumstances
dead • JDPD is only prima facie, & can be overthrown by evidence or reappearance of
3) Offender contracts a 2nd or subsequent marriage spouse
4) The 2nd or subsequent marriage has all the essential requisites for
validity Termination of the Subsequent Marriage
*A marriage contracted against provisions of laws is punishable under • Automatic termination of the subsequent marriage can be obtained by the
Art. 350 of RPC recording of the affidavit of reappearance of the absent spouse in the civil
registry of the resident of the parties of the subsequent marriage pursuant to
Art. 41. A marriage contracted by any person during the subsistence of a previous Art. 42.
marriage shall be null & void, unless before the celebration of the subsequent marriage, o EXCEPT when 1st marriage is declared void ab initio
the prior spouse has been absent for 4 consecutive years & the spouse present has a • Extra-judicial termination of marriage
well-founded belief that the absent spouse is already dead. In case of disappearance • In case reappearance is disputed (when filed by an interested party), the same
where there is danger of death under the circumstances set forth in the provisions of Art. shall be subject to judicial determination
391 of the Civil Code, an absence of only 2 years shall be sufficient. • If the spouse reappears after the marriage & no one files an affidavit or sworn
For purposes of contracting a subsequent marriage under the preceding paragraph, the statement, there will technically be 2 valid marriages, thus a valid “bigamous
spouse present must institute a summary proceeding as provided for in this Code for the marriage”
declaration of presumptive death of the absentee, without prejudice to the effect of o If the marriage between the subsequent spouse & the present spouse
reappearance of the absent spouse. is void, then there is no valid bigamous marriage
Art. 42. The subsequent marriage referred to in the preceding Art. shall be automatically Liquidation of the Properties of First Marriage
terminated by the recording of the affidavit of reappearance of the absent spouse, • After issuance of JDPD, the properties of the 1st marriage should be married
unless there is a judgment annulling the previous marriage or declaring it void ab initio. using the provisions of Art. 103 & 130 of FC if the marriage to be liquidated is
A sworn statement of the fact & circumstances of reappearance shall be recorded in the in itself valid.
civil registry of the residence of the parties to the subsequent marriage at the instance of
• If there is no liquidation (but there is a JDPD), the subsequent marriage is valid,
any interested person, with due notice to the spouses of the subsequent marriage &
but complete separation of property will apply.8
Without prejudice to the fact of reappearance being judicially determined in case such
fact is disputed.                                                                                                                
7 This implies that, if the vessel is found, but the spouse is not in the vessel, the period is once
Bigamous Marriage again reset because the ship has been found.
  Katrina Monica C. Gaw | Block C 2018| 23
 • If there is liquidation, they can agree to any type of settlement, or the default This can still be contested in a judicial proceeding
o
ACP. § If it is proven that the reappearance is false, there will be no
• If the marriage is void, the rules of co-ownership will apply. automatic termination & marriage will subsist
• In terms of the succession of the absentee spouse (Art. 391, CC): • If the present spouse does not file an affidavit, or no one files a sworn
o Spouse must be absent for 10 years before he is presumed dead for statement, the subsequent marriage will still be valid
purposes of opening his succession o AND the State will protect the 2nd marriage over the 1st
o If he disappeared after the age of 75, an absence of 5 years shall be o BUT if there is a filing, State will protect the 1st over the 2nd
sufficient in order that his succession may be opened o LOTS of confusion if there is no filing:
o If he disappeared under circumstances with high risk of death, 4 § Reappearing spouse cannot marry anyone else
years shall be enough • Can be charged with bigamy if he marries
o If he turns out to be alive, he shall be entitled to the balance of his someone else
estate after payment of all his debts. The balance may be recovered • Also, sexual infidelity
by motion in the same proceeding § He would have to nullify or annul her 1st marriage
§ In conclusion: just file it
Well-Founded Belief of Death
• In the Civil Code, there was no need for JDPD; also, there is now a stricter Art. 41 and Bigamy
standard of “well-founded belief” in the death of the spouse, versus the • Bigamy – committed by any person who shall contract a 2nd marriage or a
previous “general belief” subsequent marriage before
• “Well-founded belief” depends on the circumstances o 1st marriage has been legally dissolved, or
o A seaman was said to have failed to conduct a thorough enough o Before the first spouse has been declared presumptively dead by
search for his missing wife with such diligence as to give rise to a well- means of a judgment in the proper proceeding
founded belief of her death (he searched for her but in the wrong
places) Art. 43. The termination of the subsequent marriage referred to in the preceding Article
shall produce the following effects:9
JDPD 1) The children of the subsequent marriage conceived prior to its termination
• As a general rule, no JDPD is required as such presumption arises from law shall be considered legitimate & their custody & support in case of dispute
o Art. 390 & 391, CC – After an absence of 7 years, it being unknown shall be decided by the court in a proper proceeding;
whether or not the absentee still lives, he shall be presumed dead for 2) The absolute community of property or conjugal partnership, as the case may
all purposes except for succession; period is shortened to 4 years if be, shall be dissolved & liquidated, but if either spouse contracted said
there is risk of death marriage in bad faith, his or her share of the net profits of the community
o Art. 41 – JDPD is mandatory for REMARRIAGE only property or conjugal partnership property shall be forfeited in favor of the
§ JDPD is best evidence of “well-founded belief” common children or, if there are none, the children of the guilty spouse by a
§ Immunizes present spouse from charges of bigamy, adultery previous marriage or in default of children, the innocent spouse;
or concubinage 3) Donations by reason of marriage shall remain valid, except if the donee
contracted the marriage in bad faith, such donations made to said donee are
Sworn Statement of Reappearance revoked by operation of law;
• The absentee spouse can easily terminate the new marriage by filing her 4) The innocent spouse may revoke the designation of the other spouse who
affidavit of reappearance & recording the same with due notice to the spouses acted in bad faith as a beneficiary in any insurance policy, even if such
of the subsequent marriage designation be stipulated as irrevocable; &
o Automatic termination by the recording of the affidavit in the civil 5) The spouse who contracted the subsequent marriage in bad faith shall be
registry of the residence of the parties to the subsequent marriage disqualified to inherit from the innocent spouse by testate or intestate
o Without filing, the subsequent marriage shall not be terminated succession.
§ Sta. Maria thinks this should be void functus officio if the
reappearance is authentic Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage
• Any interested party may also file a sworn statement of reappearance shall be void ab initio & all donations by reasons of marriage & testamentary dispositions
o Parents, children, present spouse & even the subsequent spouse; made by one in favor of the other are revoked by operation of law.
parents & children of subsequent spouse, too
o Termination shall also be automatic Bad faith
                                                                                                               
                                                                                                                                                                                                                                                                  9 Applies generally to void marriages under Art. 40 & 41, annullable marriages (Art. 45), legal
8 Similar to a marriage contracted after the death of the 1st spouse. separation (Art. 55)
  Katrina Monica C. Gaw | Block C 2018| 24
 • In terms of Art. 41 & 42 – The spouse in bad faith is one who sees the • Art. 41 – If only one of the parties is in bad faith & Art. 42 does not occur,
absentee spouse alive before the marriage is celebrated & does not tell the marriage is still valid.
other spouse • Art. 44 – If both parties in the subsequent marriage are in bad faith, the
o If both spouses knew that the absentee spouse was alive, they are marriage is void.
both in bad faith as contemplated in Art. 44. • If the present spouse were able to personally know that the absent spouse was
• In terms of Art. 45 & 55 – In annulment & legal separation, whoever caused in fact alive prior to the issuance of any JDPD, such spouse should not be
the separation or invalidity of the marriage, despite not being in “bad faith”, is issued the JDPD
considered the guilty spouse & all the provisions here apply to him • Good faith must be present up to the time of the celebration of the subsequent
marriage
Status of Children
• Children conceived during the subsequent marriage in Art. 41 & before Art. 45. A marriage may be annulled for any of the following causes, existing at the time
termination due to reappearance of absentee spouse in Art. 42 are considered of the marriage:
legitimate, as they are conceived in a valid bigamous marriage 1) That the party in whose behalf it is sought to have the marriage annulled was
o If only one is in bad faith, the children are legitimate 18 years old or over but below 21, & the marriage was solemnized without the
o EXCEPT when both spouses act in bad faith, as the marriage will be consent of the parents, guardian or person having substitute parental authority
void ab initio over the party, in that order, unless after attaining the age of 21, such party
freely cohabited with the other & both have lived together as husband & wife;
Effect of Termination of the Property Regime 2) That either party was of unsound mind, unless such party, after coming to
• Effect of termination under Art. 42 is that the property regime (ACP or CPG) will reason, freely cohabited with the other as husband & wife;
be dissolved & liquidated 3) That the consent of either party was obtained by fraud, unless such party
• After the payment of all debts & obligations, the spouses shall divide the afterwards, with full knowledge of the facts constituting the fraud, freely
property equally or in accordance with the share stipulated in the valid cohabited with the other as husband & wife;
marriage settlement, unless there is a voluntary waiver of share by either 4) That the consent of either party was obtained by force, intimidation or undue
spouse upon the judicial separation of property influence, unless the same having disappeared or ceased, such party
• If either of the spouses acted in bad faith, the guilty spouse shall not get his thereafter freely cohabited with the other as husband & wife;
share in the net profits of the property regime 5) That either party was physically incapable of consummating the marriage with
o Will go to the common children, or the other, & such incapacity continues & appears to be incurable;
o Children of the guilty spouse by a previous marriage, or 6) That either party was afflicted with a sexually transmissible disease found to be
o The innocent spouse serious & appears to be incurable.
• Net profits = increase in value between market value of the property at the
time of the celebration of the marriage & the market value at its dissolution Art. 46. Any of the following circumstances shall constitute the fraud referred to in No. 3
of the preceding Article:
Donations by Reason of Marriage 1) Non-disclosure of a previous conviction by final judgment of the other party of a
• Generally, when both spouses are in good faith, donations are valid crime involving moral turpitude;
• When the donor acted in bad faith, the donation is valid 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;
• If the donee acted in bad faith, the donation is revoked by operation of law
3) Concealment of a sexually transmissible disease, regardless of its nature,
• If both spouses act in bad faith in relation to Art. 42 & 44, donations made to
existing at the time of the marriage; or
each other are revoked by operation of law, & the marriage is void ab initio
4) Concealment of drug addiction, habitual alcoholism, or homosexuality or
o Testamentary dispositions made by one in favor of the other are also
lesbianism existing at the time of marriage.
revoked by operation of law
No other misrepresentation or deceit as to character, health, rank, fortune or chastity
• Art. 739, CC: A donation made between persons who are guilty of adultery or shall constitute such fraud as will give grounds for action for the annulment of marriage.
concubinage is void
Public Policy Consideration
Designation as Beneficiary in an Insurance Policy
• Strict in granting annulment of marriage
• Spouse who contracted the subsequent marriage in bad faith is disqualified to o Clear & undeniable proofs are necessary
inherit from the innocence spouse by testate & intestate succession
• When a marriage is void, the contracting parties likewise cannot inherit by Exclusivity of Grounds for Annulment
intestate succession because no legal relation binds them • Annullable or voidable marriages are valid until they are terminated
• Must exist at the time of marriage
Marriage Contracted in Bad Faith

  Katrina Monica C. Gaw | Block C 2018| 25

 • Grounds are only those specified by law • Concealment of Pregnancy as Fraud
o Mere non-cohabitation is not grounds for annulment of marriage o Wife only & not husband – concealment must have been done in bad
faith
No Parental Consent o If a woman is diagnosed as completely barren & thereafter marries
• 18-21 years old – not yet possessing the degree of maturity to be able to her fiancé believing that she was not pregnant, the marriage cannot
comprehend marital obligations thoroughly; thus, the need for consent later be annulled even if it turned out that her previous diagnosis was
o Marriage without consent is annullable at the instance completely wrong & she was pregnant with another man’s child at the
§ Of the party whose parent, guardian or person with time of the marriage
substitute parental authority did not give his or her consent o If the woman does not state she is pregnant, but it is obvious, the
& man cannot claim to not know of her pregnancy
§ Of the parents, guardian or person having substitute o BUT just because a woman has been a pregnant already for 4
parental authority over the party, in that order months, it does not mean that the man cannot claim he didn’t know
she was pregnant, as he could have associated the growth in
Unsound Mind plumpness as her gaining weight
• There must be a derangement of the mind to prevent the party from § 5th month is when the enlargement of the belly becomes
comprehending the nature of the contract & from giving free & intelligent obvious
consent o If a man knows his wife is unchaste, & she assures him that the child
• Must relate specifically to the contract of marriage in order to affect it; if the is his, but in fact, it isn’t, he may still not be allowed to get an
mental illness does not affect the understanding of the marriage contract, such annulment because he should’ve known
cannot be used as a basis for annulment o If a woman pretends to be pregnant with the child of a man to force
o Dullness of mind or weakness of intellect does not annul marriage him to marry her, marry cannot be annulled (there was no pregnancy
• Question of defect in consent; capability of understanding the contract to conceal)
• If symptoms of insanity only show up 2 years later & there’s no proof it • Concealment of STD, regardless of nature, is fraud
happened before, the marriage is valid o Fraud, gravity & nature is irrelevant when there is concealment of the
• Burden of Proof STD at the time of the marriage
o Rests upon him who alleges insanity o Consummation is not required
o If, however, a previous state of insanity is proved, burden of proof • Concealment of drug addiction & habitual alcoholism
shifts to him who asserts that the act was done while the person was o Habitual alcoholism – that the person, by frequent indulgence, may
sane (person who claims lucid interval must prove it) be said to have a fixed & irresistible habit of drunkenness, whereby
he has lost the power or will to control his appetite for intoxicating
Fraud liquor, & he drinks whenever the temptation is presented
• Concealment & non-disclosure of certain circumstances material to the § One does not have to drink all the time
marriage § Not necessary that he is incapacitated to work
§ Fixed habit of frequently drinking
• No fraud when there is no concealment
o If, for example, one is aware that his spouse is a homosexual even • Concealment of Homosexuality
prior to the marriage, even if the homosexual spouse never o Ground is not homosexuality, but its concealment
confessed, it cannot be said that there was fraud § Element of bad faith must be duly proven
o Non-disclosure of a husband’s pre-marital relationship with another § Not intrinsically abhorrent; it is a sexual orientation or
woman is not listed in Art. 46, & thus does not constitute as one of preference
the instances of fraud contemplated in the Family Code o Subject to ratification
• Previous Conviction as Fraud • Vitiated Consent
o Crime involving moral turpitude (homicide) – inherent vileness or o Consent must be freely given
depravity in private & social duties which a man owes to his fellow o Can be physical or moral
men & society o Compelling a party with a fear of an imminent & grave evil upon his
o Moral turpitude – anything contrary to justice, honesty or good morals person or property, descendants or ascendants
o Final conviction is a requisite o Age, sex & condition of the party shall be considered
o The innocent spouse’s investigation of the fraudulent spouse’s o Has to be unlawful force, unlike when a person threatens to file a
criminal record prior to the marriage is not required criminal or disbarment case against someone, which is lawful
§ The burden is on the convicted party to reveal his criminal UNLESS the charge is false
record o Vitiated consent must be proven by preponderance of evidence which
may include actuations of the parties previous to the marriage
  Katrina Monica C. Gaw | Block C 2018| 26
 § Not valid ground if both issued affidavits stating they lived 1) Art. 45(1): the contracting party (18-21, no consent) cannot file the suit
together for 5 years as husband & wife if, after attaining the age of 21, he freely cohabited with the other as
§ More than a year passed before the spouse came up with husband & wife; but in between 18-21, even if he freely cohabits with
the story he other, this will not constitute ratification
§ Not valid if a man is just trying to escape a bigamy case 2) Art. 45(2): the contracting party comes to reason & still freely cohabited
o There is also criminal liability under RPC with the other as husband & wife. Only the insane spouse can ratify by
• Incapacity to consummate (technically, impotency) free cohabitation. Sane spouse cannot ratify if he knew at the time the
o Permanent inability on the part of one of the spouses to perform the marriage was celebrated that the other party was insane. But if he
complete act of sexual intercourse found out after, subsequent free cohabitation will not constitute
o All types of non-consummation, even psychological, which leads to ratification & he can still file for annulment;
physical inability 3) Art. 45(3): If the injured party, with full knowledge of the facts of the
o Excessive sensibility of wife, such that the pain sex inflicts stops her fraud, freely cohabits with the other, there is ratification;
from wanting to have sex, can be considered as incapacity 4) Art. 45(4): If the injured party, after the disappearance or cessation of
§ Also, incurable nervous disorder which renders sex the force, intimidation or undue influence, freely cohabited with the
impossible other
§ Mere epilepsy is not enough *If the ground relied upon is incurable physical incapacity to consummate
o Not equal to the mere refusal of one party, without being physically the marriage or affliction of incurable STD, both existing at the time of the
incapable ceremony, mere free cohabitation will not ratify the annullable marriage
§ IF a man can attain erection BUT is psychologically inhibited o Even if these are known to the parties prior to the marriage, the same
in engaging in sex despite his erection, this situation will not can still be used to file for annulment, as it is not based on defective
fall under impotency consent but on incurable disease or impotency
o Must exist at the time of the marriage ceremony o BUT if the aggrieved parties do not bring suit within 5 years of the
§ If a wife becomes paralyzed after the marriage & can’t have marriage ceremony, they are barred forever from annulling the
sex anymore, this cannot be used marriage
o It must be continuous & incurable
§ Where a hymen was just too thick, annulment wasn’t Art. 47. The action for annulment of marriage must be filed by the following persons &
allowed because it is considered curable by surgery within the periods indicated herein:
o Burden of proof 1) For cases mentioned in No. 1 of Art. 45, by the party whose parent or guardian
§ An adult male is considered to have normal powers of did not give his or her consent, within 5 years after attaining the age of 21; or
virility; whoever alleges incapacity must prove it by the parent or guardian or person having legal charge of the minor, at any
§ Preponderance of evidence time before such party reached the age of 21;
§ Impotence need not be universal – condition may exist only 2) For causes mentioned in No. 2 of Art. 45, by the sane spouse who had no
as to present spouse & not to others knowledge of the other’s insanity; by any relative, guardian or person having
§ Triennial cohabitation – if a wife remains a virgin for at least legal charge of the insane, at any time before the death of either party; or by
3 years from the time the spouses started cohabiting, the the insane spouse during a lucid interval or after regaining sanity;
husband must show he is not impotent during the said 3) For causes mentioned in No. 3 of Art. 45, by the injured party, within 5 years
period & there is now a presumption of impotence from the time of discovery of the fraud;
o Sterility is not impotency; inability to bear children is immaterial 4) For causes mentioned in No. 4 of Art. 45, by the injured party, within 5 years
from the time the force, intimidation or undue influence disappeared or
STDs ceased;
• If STD is not concealed, party wanting annulment must prove that the STD is 5) For causes mentioned in Art. 5 & 6 of Art. 45, by the injured party, within 5
serious & incurable years after the marriage.
o If concealed, it need not be serious & incurable
• Example, syphilis which has killed the child of the spouses & infected the other Nature of Annulment Case
spouse • Jurisdiction is based on the nationality of those involved, not where the
• If the disease was obtained AFTER the marriage, it cannot be a ground for marriage was celebrated
annulment, but can be used as evidence of sexual infidelity • A Filipino who got married in Korea to a Korean woman can get his divorce
annulled in the Philippines
Ratification of Annullable Marriages
• Ratification is made if the "injured” party freely cohabits with the guilty party in Grounds, Parties, Prescriptive Period
the proper situations as provided by law:
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 • Prescriptive period – period in which case can still be filed in court; after the • Procedure follows SC en banc resolution from March 15 2003
lapse, the case can no longer be filed • Defendant has 15 days from the receipt of the summons to file an answer, but
• All ratifiable except for #5; this means that annulment will not prosper if it can even if he doesn’t, he cannot be declared to be in default – court will order
be shown that the parties freely cohabited as husband & wife at any time fiscal to appear on behalf of the State and STILL order the full-blown hearing
within the periods o If the judgment is erroneous because of defendant’s neglect, decree
will still take effect
Ground Party to File the Suit Prescription Period • Prosecuting attorney investigates existence of collusion between the 2 & to
1. No parental consent a. Parent or guardian a. While “no-consent” check if evidence is not fabricated
having legal charge of “no- party has yet to reach • Annulment suit cannot be terminated by way of compromise agreement – no
consent” party 21 years of age suspension of the case can be made for discussion of compromise
• Full-blown hearing is needed; no summary proceedings
b. “No-consent” party b. Within 5 years after • Material facts must always be proved
attaining the age of 21
(also, from 18-21) Role of Fiscal & Solicitor General
2. Unsound mind a. Sane spouse who a. At any time before • Fiscal or prosecuting attorney represents the State
discovered insanity after the death of either o He must actively participate
marriage party o Task is to check for indicators of collusion between the parties
o If the case were strongly opposed, it is clear that there is a no-holds-
b. Relative or Guardian barred contest
having legal charge of b. At any time before o He must defend the validity or expose an invalid marriage
insane spouse the death of either o Otherwise, case can be remanded for further proceeding
party • OSG can be required to submit a memorandum
c. Insane spouse • Agreements on separation of property agreed on by the parties via compromise
agreement is valid
c. During lucid interval o Not an indicator of collusion
or after regaining sanity
3. Fraud Injured party Anytime within 5 years Collusion
after discovery of the • Where, for purposes of getting an annulment or nullity decree, the parties come
fact of fraud
up with an agreement making it appear that the marriage is defective due to
4. Vitiated Consent Injured party Anytime within 5 years the existence of any of the grounds for annulment or nullity as provided by law
after the force, undue & agree to represent such false or non-existent cause of action before the court
influence or with the objective of facilitating the issuance of the decree
intimidation has ceased o Commission of an offense with the consent of the other party can be
5. Incapacity to Injured party Within 5 years after the considered as collusion
Consummate/STD marriage o Corrupt agreements & connivance
o Failure to file an answer is not necessarily collusion
Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the court • No collusion if the allegations are true
shall order the prosecuting attorney or fiscal assigned to appear on behalf of the State to
• The confession of the commission of the offense does not equate to collusion
take steps to prevent collusion between the parties & to take care that evidence is not
• A judge who does not investigate collusion can be held administratively liable
fabricated or suppressed.
In all cases referred to in the preceding paragraph, no judgment shall be based on a
Stipulation of Facts or Confession of Judgment
stipulation of facts or confession of judgment.
• Stipulation of facts – admission of both parties in court agreeing to the
Art. 49. During the pendency of the action & in the absence of adequate provisions in a existence of the act constitution the ground for JDNOM or JDAOM
written agreement between the spouses, the court shall provide for the support of the • Confession of judgment – admission in court by the respondent or defendant
spouses & the custody & support of their common children. The Court shall give admitting fault as invoked by the plaintiff to sever the marriage ties
paramount consideration to the moral & material welfare of said children & their choice • BUT if these are sufficiently supported by evidence, they may warrant the
of the parent with who they wish to remain as provided in Title IX. It shall also provide for declaration, but only through proper proceeding
appropriate visitation rights of the other parent.
Support of Spouses & Custody of Children
Procedure
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 • During the pendency of the suit, support of the spouses & custody of the • Must state the factual & legal basis for its dispositive conclusion
children shall be governed by whatever agreement the parties have made with • Court cannot grant relief which is not based on an allegation in the petition
respect to the same unless opposing party does not contest
• Support is from CPG or ACP • Judgment is void if the decision is not in conformity with the allegations in a
• If agreement is inadequate, court can make the necessary provisions pleading; but if it not set aside through a Motion for Reconsideration, it will be
• If in a nullity, the court gives support to a spouse who is found to not be entitled effective still
to support because their marriage is void, the court shall order the recipient to • Finding of psychological incapacity shall be binding upon the SC absent of clear
return to the person who furnished the support the amounts already paid, with & manifest errors
legal interest • Liquidation, partition & distribution of the properties shall be provided for in the
• Support given during the pendency of the annulment of a marriage need not be said judgment unless there is a settlement
reimbursed o Separate civil action need not be filed
• Court will consider best interest of the children • In so far as void marriages are concerned, par. (2), (3), (4) & (5) of Art. 43 only
o Children below 7 go to mother (Art. 213, FC) apply to void subsequent marriages that occur as a result of non-observance of
o Other kids can choose, unless the parent they choose is unfit Art. 40 – liquidation is ACP or CPG.
o Appropriate visitation rights o All other void marriages are governed by co-ownership
• Visitation Rights o Includes delivery of presumptive legitime
o Even if custody goes to one parent, the other parent still has the right • Conjugal dwelling & lot goes to the spouse with custody of majority of the
to visit common children
o If there is a compelling reason, parent can be deprived o Not applicable to other void marriages; in void marriage, dwelling
§ Visitation rights can be reinstated if deprivation is too harsh shall be co-owned equally
or grounds are no longer present o In case of liquidation, it can be sold & the proceeds can be divided
o In a case where the mother wanted to take away the father’s right to equally between the co-owners
visit their kids because the father was immoral & had a paramour, the • All creditors shall be notified; if one party waives his rights, the creditor of said
court denied her request because the father has an inherent & party can seek the rescission of the waiver to the extent of the amount
natural right to rear his child & a few hours with the kids would not so necessary to pay the debt
gravely affect the children’s morality.
Entry of JDNOM or JDAOM
Art. 50. The effects provided for in paragraphs 2, 3, 4 & 5 of Art. 43 & in Art. 44 shall • Final upon the expiration of 15 days from receipt of the parties of the decision
also apply in the proper cases to marriages which are declared void ab initio or annulled o Best evidence of nullity or annulment
by final judgment under Art. 40 & 45. • Upon finality, Entry of Judgment shall be issued
The final judgment in such cases shall provide for the liquidation, partition & distribution • Then, Decree of Absolute NOM or AOM
of the properties of the spouses, the custody & support of the common children, & the o Issued only AFTER the registration of Entry of Judgment in the proper
delivery of their presumptive legitimes, unless such matters had been adjudicated in LCRs & of the approved partition & distribution of properties of the
previous judicial proceedings. spouses in the proper registry of deeds & delivery of presumptive
All creditors of the spouses as well as of the ACP or CPG shall be notified of the legitime
proceedings of the liquidation.
In the partition, the conjugal dwelling & lot on which it is situated shall be adjudicated in Presumptive Legitime
accordance with Art. 102 & 129. • Legitime – part of testator’s property which he cannot dispose of because the
law has reserved it for certain heirs (Compulsory heirs)
Art. 51. In said partition, the value of the presumptive legitimes of all common children,
• Protect the legitime of the children against future subsequent marriages
computed as of the date of the final judgment of the trial court, shall be delivered in
• Presumptive legitime is not actual legitime
cash, property or sound securities, unless the parties, by mutual agreement judicially
o Actual legitime Is that which is present AT THE TIME OF DEATH
approved, had already provided for such matters.
o The basis of the presumption is that the properties of the persons
The children or their guardian, or the trustee of their property, may ask for the
involved at the time of this particular situation arises would be the
enforcement of the judgment.
same as when he does (which is not a fact)
The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the
o Computed as of date of final judgment of the trial court
ultimate successional rights of the children accruing upon the death of either or both of
o Approval of mutual agreement of spouses shall be summary in nature
the parents; but the value of the properties already received under the decree of
o (Valdes v. RTC) In VOID MARRIAGES, the delivery of the presumptive
annulment or JDNOM shall be considered as advances in their legitimes.
legitime is GENERALLY NOT REQUIRED, except in Art. 40, 52, 53
(declaration of nullity of a SUBSEQUENT MARRIAGE due to no JDNOM
JDAOM or JDNOM
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 of 1st void marriage) – opposed to Nicdao-Cariño v. Cariño, which • Generally, children conceived & born outside a valid marriage or inside a void
required co-ownership under an Art. 40 void marriage. marriage are illegitimate, except those in Art. 54 of FC
§ Generally, Art. 147 & 148 apply, NOT Art. 50, 51 & 52. o EXCEPTIONS in Art. 54 for legitimacy of children:
o In ANNULLED MARRIAGES, the delivery of presumptive legitimes is a § Children born in Art. 36 – psychological incapacity marriages
MUST. • If, after 2 days after receipt of JDNOM, couple has
o Children & their guardians & trusties have the legal standing to seek sex & conceives a child, child is legitimate
enforcement of the judgment (delivery of presumptive legitimes) – via § Children born in Art. 52/53 – No recording, distribution &
summary court proceeding partition or delivery of presumptive legitime
• Children conceived or born inside an annullable marriage are legitimate
Art. 52. The judgment of annulment or ANOM, the partition & distribution of the • Those conceived & born before the marriage ceremony are illegitimate in Art.
properties of the spouses & the delivery of the children’s presumptive legitimes shall be 56 referring to Art. 36 if the parents get JDNOM.
recorded in the appropriate civil registry & registries of property; otherwise, the same o Without JDNOM, parents marrying would legitimize the children; but
shall not affect 3rd persons. since there is now a JDNOM, children conceived & born before the
marriage are now illegitimate
Art. 53. Either of the former spouses may marry again after complying with the
requirements of the immediately preceding Article; otherwise, the subsequent marriage SC en banc (March 15, 2003)
shall be void. • Spousal support may be given by the court:
o To either spouse for the amount of time it deems necessary; to be
Art. 54. Children conceived or born before the judgment of annulment or ANOM under taken out of ACP or CPG
Art. 36 has become final & executory, shall be considered legitimate. Children conceived o Court may consider if the spouse’s custody of the child makes it
or born of the subsequent marriage under Art. 53 shall likewise be considered difficult for him to seek outside employment (toddler)
legitimate. § Time necessary for spouse to seek outside employment &
training
Liquidation & Partition of Properties § Duration of the marriage
• JDNOM – liquidation in accordance with rules of co-ownership § Age & health of spouses; ability to give support
o EXCEPT in Art. 40, 52, 53 – CPG or ACP (Valdez v. RTC) § Contribution of each spouses to the marriage (including
• JDAOM – ACG or ACP or pre-nuptial agreement (latter would remove need for working at home as housewife, childcare, education)
liquidation & partition) § Comparative financial resources
• Custody may be awarded to (order of preference):
Recording in the Civil Registry & Registry of Property o Parents jointly
• Art. 52 is NECESSARY TO BIND 3RD PERSONS for annulled marriages & Art. 40, o Either parent
52 & 53 & to contract a subsequent valid marriage (Art. 53) o Surviving grandparent
• Non-compliance with the liquidation & partition requirement may lead to non- o Eldest sibling over 21 years of age
issuance of JDOM/JDAOM o Child’s actual custodian
• Observance or non-observance of the requirements of liquidation, partition, o Any other person deemed by the court suitable
distribution & delivery of presumptive legitimes is crucially material in • Hold departure order – no child of the parties shall be brought out of the
determining the validity of a subsequent marriage ONLY if the previous country without prior order from court
marriage has been judicially declared nullified or annulled by law. (Art. 53) • Court may issue Order of Protection
o If 1st marriage is terminated by death or JDPD, there is no need to do
Art. 52/53; non-compliance does not lead to a void marriage, but TITLE II – LEGAL SEPARATION
makes the property regime of the subsequent valid marriage
COMPLETE SEPARATION OF PROPERTY Art. 55. A petition for legal separation may be filed on any of the following grounds:
1) Repeated physical violence or grossly abusive conduct directed against the
Appropriate Civil Registry & Registries of Property petitioner, a common child, or a child of the petitioner;
• LCR of the city or municipality where the court issued the decision for the 2) Physical violence or moral pressure to compel the petitioner to change religious
judicial decree AND the LCR where the marriage was solemnized or political affiliation;
o Duty of successful petitioner to send copy to LCRs 3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a
o If this has not been done, to send a copy of the decree to the civil child of the petitioner, to engage in prostitution or connivance in such
registry of the city or municipality where the court is functioning corruption or inducement;

Status of Children
  Katrina Monica C. Gaw | Block C 2018| 30
 4) Final judgment sentencing the respondent to imprisonment of more than 6 • Imprisonment is to a 3rd person
years, even if pardoned; • Judgment must be final (cannot be filed while still on appeal)
5) Drug addiction or habitual alcoholism or respondent;
6) Lesbianism or homosexuality of the respondent; Drug Addiction, Habitual Alcoholism, Homosexuality or Lesbianism
7) Contracting by the respondent of a subsequent bigamous marriage, whether in • In annulment there are instances of fraud which must exist at the time of the
the PH or abroad; ceremony; here, there is no fraud & it can occur after the marriage
8) Sexual infidelity or perversion;
9) Attempt by the respondent against the life of the petitioner; Bigamy
10) Abandonment of petitioner by respondent without justifiable cause for more • Illegally contracting a 2nd marriage
than 1 year. o Despite knowing one has a valid 1st marriage
For purposes of this Article, the term “child” shall include a child by nature or by o Despite not having gotten a JDPD for the missing 1st spouse
adoption. • If the bigamous marriage was committed abroad, the guilty party cannot be
criminally prosecuted for bigamy in the PH as our penal statutes are territorial
Legal Separation in nature
• Does not affect marital status, just “bed & board” separation • May be the cause of a bigamous marriage whether or not it is solemnized here
• Terminable at the will of the parties by merely filing a manifestation in court or abroad
• Separation (generally) due to some cause arising after the marriage (v.
annulment/nullity) Sexual Infidelity or Perversion
o “Relative divorce” • Adultery, concubinage & other acts that fall short
o May exist at the time of marriage o Clear betrayals of the trust of his or her spouse
• Divorce – dissolution of marriage for some cause arising after the marriage o Single act of sexual intercourse with another person
o Not allowed in the Philippines o Civil Code required concubinage
• Grounds are exclusive • Filipino who obtains divorce abroad & remarries again is bigamous (Tenchavez
v. Escano)
Repeated Physical Violence or Grossly Abusive Conduct • Perversion – 3rd person or the spouse
• Does not apply if spouse inflicts physical violence upon his or her own child o Bestiality
with another person o Even oral sex if the other spouse refuses
o BUT this may be a cause to suspend or terminate the parental o BUT condonation would be tantamount to consent
authority of the respondent
• Physical violence – infliction of bodily harm Attempt on Life
o Inflicted with bad faith & violence • Criminal attempt to kill spouse
o Frequency, not severity (requires repetition) • Proceed from an evil design & NOT a justifiable cause
• Grossly abusive conduct – no exact definition; case-to-case basis o Catching the other spouse having sex with another person is
o Example: Singular but serious act of “squeezing of neck, pulling of considered a justifiable cause
hair & the like without intent to kill” • No previous criminal conviction is required; preponderance of evidence only
o Indifference or aversion coupled with neglect o Wife & kids can (by choice) disinherit the guilty spouse
§ Could also be a ground for Art. 36
Unjustified Abandonment
Compulsion by Violence to Change Religious or Political Affiliation • Desertion must be willful – design to forsake the other spouse intentionally
• One instance is enough o Cease living with the other spouse
• Families should learn to live with each other’s political ideas o Abnegation of all duties of the marriage
• Mere severance of relations is NOT enough
Corruption or Inducement to Engage in Prostitution o If the spouse neither neglects the management of the conjugal
• Refers to prostitution ONLY partnership nor ceases to give support to the other spouse, it is NOT
• A mere “attempt” is enough counted
• Here, law also does not include the child of the other spouse with another o It must be an ABSOLUTE cessation
person § If the spouse still gives support to the other & to the kids &
gives small contributions, there is no abandonment
Final Judgment with Imprisonment For More Than 6 Years • There must be no justifiable cause for the abandonment
• Pardon refers to executive clemency or the like o If spouse beats up other spouse, it is justifiable, so no LS

  Katrina Monica C. Gaw | Block C 2018| 31

 o If spouse forces wife to leave with his home unless she gets rid of the • Agreement to live separately & that they will not object to the other’s sexual
children by a former marriage, it is abandonment infidelity has been declared void but, though void, is an expression of consent
• If both parties willingly concur to separation, that is not considered a willful • Can be deduced by acts of spouse
desertion o Where husband, knowing his wife lived with her paramour, did
• Time in which spouse is insane cannot be included in the count of 1 year nothing to interfere & assert his rights & instead he left for Hawaii
o If a spouse becomes insane after deserting his spouse but before the where he remained for 7 years, totally abandoning his wife & children
1-year period has passed, then the period in which he is insane can’t § He cannot file a case of adultery against her
be counted
o Must be WILLFUL & INTENTIONAL Connivance
• NOT consent when husband reasonably endeavors to get wife to stay to no • Denotes direction, influence, personal exertion or other action with knowledge
avail, & he rendered her some assistance when he could not prevent her to & belief that such action would produce certain results & which results are
leave (can be grounds for legal separation) produced
• One is deemed to have abandoned the other when he has left the conjugal • One is not legally injured if he consented to the act complained of or was willing
dwelling without intent of returning that it should occur – doctrine of unclean hand
o A spouse who left the conjugal dwelling for a period of 3 months or • Where a husband employs agents to induce his wife into participating in illicit
has failed within the same period to give any information on his or he sexual activities, that is active connivance
whereabouts shall be prima facie presumed to have no intention of
returning to the conjugal dwelling Recrimination or Equal Guilt
• Doctrine of Clean Hands
Art. 56. The petition for legal separation shall be denied on any of the following grounds: • Pari delicto – when 2 parties have acted in bad faith, it is considered as them
1) Where the aggrieved party has condoned the offense or act complained of; having acted in good faith
2) Where the aggrieved party consented to the commission of the offense or act • (Ong v. Ong) A husband beats his wife up & wants the dismissal of their LS
complained of; case, claiming that she abandoned him. SC ruled that his abuse was a justified
3) Where there is connivance between the parties in the commission of an cause for her abandonment, thus LS possible because no equal guilt was
offense or act constituting the ground for legal separation; involved.
4) Where both parties have given ground for legal separation;
5) Where there is collusion between the parties to obtain the decree of legal Collusion
separation; or • Collusion is a corrupt agreement
6) Where the action is barred by prescription o An agreement between H & W looking to procure LS
§ Agreement for one of them to commit, or appear to commit
Art. 57. An action for legal separation shall be filed within 5 years from the time of the an act that will lead to LS
occurrence of the cause. § Agreement to suppress or fabricate evidence
§ May be implied
Condonation
• Connivance is a corrupt accepting
• Act of forgiving the offense after its commission
• In one case, it was ruled that there could not have been collusion, even if the
o Implies condition of future good behavior
wife admitted she “liked also” to get the LS, because she confessed to adultery
• Subsequent offense of spouse nullifies the condonation & revives the initial to the fiscal, which could have gotten her imprisoned
offense
o Even if there’s only a presumption, & no real proof, of adultery or Prescription
some other offense
• Must be filed within 5 years from THE OCCURRENCE OF THE CAUSE
• Failure of the husband to look for adulterous wife after she left the conjugal o NOT discovery
home is not condonation o If husband discovers wife had sex 6 years ago with another man, he
• Act of giving money to erring wife & the fact that no action was taken against can no longer file
her are sufficient to establish condonation • Civil Code – prescriptive period is 1 year from the discovery of the cause, but
o May be express or implied & requires no sex not later than 5 years from the occurrence of the cause
Consent Art. 58. An action for legal separation shall in no case be tried before 6 months shall
• When either of the spouses agreed to or did not object, despite full knowledge, have elapsed since the filing of the petition.
to the act giving rise to the ground for LS

  Katrina Monica C. Gaw | Block C 2018| 32

Art. 59. No legal separation may be decreed unless the court has taken steps toward the • If no agreement between spouses, court can leave this to 1 of the spouses or a
reconciliation of the spouses & is fully satisfied, despite such efforts, that reconciliation 3rd party
is highly improbable. • Court’s designation may be implied when one of the spouses abandons the
wife for many years to manage the property by herself
Art. 60. No decree of legal separation shall be based upon a stipulation of facts or a
confession of judgment. Death Terminates LS Case
In any case, the court shall order the prosecuting attorney or fiscal assigned to it to take • Death of one of the spouses extinguishes LS case, including the property,
steps to avoid collusion between the parties & to take care that evidence is not separation & maintenance disputes
fabricated or suppressed. • LS is purely personal
• Even property splitting is merely the result of the LS decree, so without the LS
Art. 61. After the filing of the petition for LS, the spouses shall be entitled to live decree, the other issues cannot be faced
separately from one another.
The court, in the absence of a written agreement between the spouses, shall designate Art. 63. The decree of LS shall have the following effects:
either of them or a 3rd person to administer the absolute community or conjugal 1) The spouses shall be entitled to live separately from each other, but the
partnership of property. The administrator appointed by the court shall have the same marriage bond shall not be severed;
powers & duties as those of a guardian under the Rules of Court. 2) The ACP or CPG shall be dissolved & liquidated but the offending spouse shall
have no right to any share of the net profits earned by the ACP or CPG, which
Art. 62. During the pendency of the action for legal separation, the provisions of Art. 49 shall be forfeited in accordance with Art. 43 (2).
shall likewise apply to the support of the spouses & the custody & support of the 3) The custody of the minor children shall be awarded to the innocent spouse,
common children. subject to the provisions of Art. 213 of this Code; &
4) The offending spouse shall be disqualified from inheriting from the innocent
Procedure spouse by intestate succession. Moreover, provisions in favor of the offending
• SC en banc Resolution A.M. No. 01-11-01-SC spouse in the will of the innocent spouse shall be revoked by operation of law.
• Defendant shall be required to answer within 15 days from receipt of summons
o If no reply, fiscal must investigate for collusion Effects of decree of LS
o No defaulting • After the lapse of the period to appeal the decision to a higher court, decree +
• Fiscal must actively participate property division becomes final
o But when there is a no-holds-barred opposition, Art. 48 & 60 need not • Even if the couple lives apart, one can still be criminally charged for adultery,
apply concubinage or bigamy
• No hearing on merits of LS will be set by the courts for 6 months • Following Art. 43(2), profit does not go to the erring spouse; it goes to their
o Time for contemplation & possible reconciliation (cooling-off period) common children, the children of the guilty spouse or the innocent spouse
§ If the offense is violence against the woman or child (Anti- • Children go to innocent spouse
VAWC), 6-month period can be dispensed with o But court can assign kids to a 3rd person
o Failure to observe 6-month period is a ground for setting aside LS o Choices of kids over 7 years of age shall be considered, unless
o 6-month period is for merits of LS case; in that period, child support, chosen parent is unfit
alimony, spousal support can be heard in court o Kids below 7 usually go to mom
§ Motion to dismiss may be filed
§ Injunction may be filed to stop administrator spouse from Intestate & Testate Disqualification
spending all of the property
• Erring spouse is disqualified from intestate succession of innocent spouse
• Court must take steps toward RECONCILIATION
• Provisions in a will made by innocent spouse will also be revoked by operation
• Proof by preponderance of evidence of law
o Material facts must always be proved
• Art. 921(4), CC: Spouse can disinherit other spouse even when there is no final
o Criminal & civil suits may proceed simultaneously
decree for LS yet
• Cannot be based on stipulation of facts & confession of judgment
• Art. 922, CC: Reconciliation between the spouses renders the disinheritance
o BUT does not stop person from confessing in court, there just must be
from the will ineffectual
supporting evidence
• If LS is not granted, the court cannot force the couple to live with one another Art. 64. After the finality of the decree of legal separation, the innocent spouse may
revoke the donations made by him or by her in favor of the offending spouse, as well as
Management of Properties During Suit the designation of the latter as a beneficiary in any insurance policy, even if such
designation be stipulated as irrevocable. The revocation of the donations shall be

  Katrina Monica C. Gaw | Block C 2018| 33

recorded in the registries of property in the places where the properties are located. The recording of the order in the registries of property shall not prejudice any creditor not
Alienations, liens & encumbrances registered in good faith before the recording of the listed or notified, unless the debtor-spouse has sufficient separate properties to satisfy
complaint for revocation in the registries of property shall be respected. The revocation the creditor’s claim.
of or change in the designation of the insurance beneficiary shall take effect upon
written notification thereof to the insured. Effect of reconciliation
The action to revoke the donation under this Article must be brought within 5 years from • Couple will file a Joint Manifestation of Reconciliation in court
the time the decree of LS has become final. o Pending LS will be terminated
o If issued, decree will be set aside
Donations & Beneficiary in Insurance *Must be recorded in the proper civil registries
• Donations are acts of gratuity & liberality, so the innocent party has the option o Separation of properties shall still subsist
to revoke the donation or designation § Parties can enter into an agreement approved by the court
• Beneficiary – considered revoked after written notification thereof to the to return to their old property regime
insured (aka the guilty spouse) § Agreement will contain a list of which properties will remain
• Donations – revocation must be filed within 5 years from final LS decree separate & which will be included in the revived property
o If it is a void donation (Art. 87 – donations during marriage), action regime
shall never prescribe § Creditors must be furnished with the motion seeking for
• Recording must be of the revocation & the recording of the liens, approval of the agreement (court can protect their interests)
encumbrances, etc. § No prejudice to unlisted creditors also, unless debtor-
o If the same thing is sold to different vendees, whoever first takes spouse’s separate property is enough to pay the debt
possession in good faith owns it if it is movable property
o For immovable property, ownership shall belong to the person in good Revival & Adoption
faith who first registered in the Registry of Property • Reconciled spouses can revive their original property regime
o If there is no inscription, ownership should go to the one who first got • SC en banc resolution in March 15, 2003 allows not only the revival of the
the possession, or the person with the oldest title previous property regime, but the adoption of another regime different from
• The Code Committee intended notice to be given to the insurer, not the that which they had prior to the filing of the petition
insured, but final printing was “insured” • Resolution leads to 3 divergent views
o Check if this has been repealed o Art. 66 & 67 are the substantive-law-provisions of the FC dealing with
property regime upon reconciliation. They are restrictive & refer only
Art. 65. If the spouses should reconcile, a corresponding joint manifestation under oath to revival. Furthermore, Art. 87 states that any stipulation as to the
duly signed by them shall be filed with the court in the same proceeding for LS. property regime cannot commence at anytime other than at the
precise moment that the marriage is celebrated is void. SC en banc is
Art. 66. The reconciliation referred to in the preceding article shall have the following undue extension of substantive law. Thus, only revival is allowed.
consequences: o Though Art. 66(2) refers to revival only, it does not expressly prohibit
1) The LS proceedings, if still pending, shall be terminated in whatever stage; & change of property regime. However, the new rule cannot allow a
2) The final decree of LS shall be set aside, but the separation of property & any change from ACP to CPG & vice versa as there is a substantive rule in
forfeiture of the share of the guilty spouse already effected shall subsist, unless Art. 88 in relation to Art. 107 that these two property regimes can only
the spouses agree to revive their former property regime. commence at the precise moment that the marriage is celebrated.
The court’s order containing the foregoing shall be recorded in the proper civil registries. The change of property regime can be anything other than ACP or
CPG.
Art. 67. The agreement to revive the former property regime referred to in the preceding o 3rd view is that, provided there is court approval, the property regime
article shall be executed under oath & shall specify: can be changed. This, however, does not consider provisions of FC.
1) The properties contributed anew to the restored regime;
2) Those to be retained as separate properties of each spouse; & Inheritance
3) The names of all their known creditors, their addresses & the amounts owing to • Any disinheritance is rendered ineffectual by reconciliation
each. • But there is nothing in FC regarding revoked provisions of a will
The agreement of revival & the motion for its approval shall be filed within the court in • Thus, the spouses have the option to return the provisions in the will
the same proceeding for LS, with copies of both furnished to the creditors named
therein. After due hearing, the court shall, in its order, take measures to protect the Recording of the Order of Revival
interests of creditors & such order shall be recorded in the proper registries of property. • If revival is not recorded, creditors will not be prejudiced

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 • If revival is recorded, & if the creditors are listed, then the creditors will be • Generally, H & W cannot sue one another for damages for mere breach of
prejudiced marital obligation, as the property is shared
• Example: A & B decide to reconcile after their decree of LS. • BUT if… (1) a spouse in bad faith refuses to comply with the above obligations
o If A & B do not act on reviving their previous property regime, nothing & (2) their regime is separation of property, he may be held liable under Art. 19,
will happen to the creditors. 20 & 21 of CC (THE ABUSE OF RIGHT DOCTRINE).
o If A & B decide to revive their properties, they will file a motion for that o Desertion & securing an invalid divorce entitles the other spouse to
purpose & notify the creditors. recover damages & attorney’s fees
§ If A & B decide to put their separate properties in the o Any person who likewise deprives a spouse of the consortium or
conjugal fund, an order will be issued to that effect, but the service of the other spouse can be held liable for damages, but this
court may make reservations for the creditors must be FULLY PROVEN
• Court can set aside some of the properties of the
debtor-spouse for paying the future creditors Rape & Marriage
• If no properties are set aside for the listed • Rape – committed by a man who shall have carnal knowledge of a woman
creditors who were notified but did not file their through force, threat or intimidation; when woman is deprived of reason or
claims to protect their interests, they will be unconscious; by means of fraudulent machinations or grave abuse of authority;
prejudiced by the recording of the order in the oral sex or anal sex by force; etc.
registry of property • In Philippines, H can be held liable for rape of W. However, if W forgives him, it
o If, long before the revival, A was ordered to pay X, the creditor of A, & shall extinguish criminal action or penalty, UNLESS the marriage was void ab
X could only execute on the house of A for the satisfaction of the initio.
judgment debt… • Implied consent rationale – prior to RPC, there was disagreement W/N a
§ X will be prejudiced if he is listed as a creditor in the registry husband can actually rape his wife; when the H & W are married, a wife
& was sent a copy of the motion but did nothing to protect consents to sex with her husband which she cannot retract
his rights. He can no longer execute on the house of A, as A • Now, that a husband can rape his wife is a universal & absolute rule
& B are the co-owners.
§ X will not be prejudiced if he files an opposition or claim in Art. 69. The husband & wife shall fix the family domicile. In case of disagreement, the
the court proceeding which heard the motion for revival so court shall decide.
that the court can make provisions for his interest. The court may exempt one spouse from living with the other if the latter should live
§ If X was not listed as a creditor or not notified of the abroad or there are other valid & compelling reasons for the exemption. However, such
proceedings, X can still foreclose on the house exemption shall not apply if the same is not compatible with the solidarity of the family.
• BUT if there are still separate properties of A which
are not included in the revived property regime & Domicile
which are enough to satisfy X’s claims, X will be • For civil rights & obligations, the domicile of natural persons is the place of
prejudiced even if he is not listed. their habitual residence (Art. 50, CC)
• He will not be able to execute on the house or any • Spouses can have many residences, but only 1 domicile
other assets in the property regime of A & B. o Permanent residence
o With intention of always returning even if they have left it for some
TITLE III – RIGHTS & OBLIGATIONS BETWEEN HUSBAND & WIFE time
• Minor always follows the domicile of his or her parents
Art. 68. The husband & wife are obliged to live together, observe mutual love, respect & • Summary proceeding in accordance with Art. 253, in case of disagreement
fidelity & render mutual help & support. • Examples of valid reasons for living separately:
o Work in a far place
Duties & Obligations
• When people are “forced” to stay together, they learn to soften by mutual Art. 70. The spouses are jointly responsible for the support of the family. The expenses
accommodation that yoke which they cannot shake off for such support & other conjugal obligations shall be paid from the community property
• Procreation is an essential marital obligation &, in the absence thereof, from the income or fruits of their separate properties.
• No compulsion can be forced by courts (living together, observe mutual love &
fidelity) Art. 71. The management of the household shall be the right & duty of both spouses. The
o EXCEPT SUPPORT expenses for such management shall be paid in accordance with the provisions of Art.
70.
Damages

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Art. 72. When one of the spouses neglects his or her duties to the conjugal union or • BUT when a spouse makes an isolated transaction, such as being a guarantor for a
commits acts which tend to bring danger, dishonor & injury to the other or to the family, 3rd person’s debt, it is not considered to redound to the benefit of the family, and
the aggrieved party may apply to the court for relief. does not hold community property liable
o Unless proofs exist which show the direct benefit accrued by the family
Expenses for Support & Household Management • Disagreement regarding a profession, business or activity must be anchored only
• Spouses are jointly liable for support on VALID, SERIOUS, MORAL GROUNDS to be valid.
o Even during proceedings of annulment or nullity, the ACP or CPG is o If there is a disagreement, the court shall decide
what provides support for the spouses & their children § If court finds it objectionable, profession can be validly
o Parents & those with parental authority shall have the duty to support stopped
their un-emancipated kids or wards o H cannot object to W being a lawyer
• If the ACP or CPG are insufficient to cover the liabilities the spouses have, the o But W can object to husband running an escort service or prostitution
spouses shall be solidarily liable for the unpaid balance with their separate ring (not necessarily illegal; as long as it is valid, serious & moral)
properties
o This is true even in separate properties if the family has liabilities to CASE (Go v. Court of Appeals)
creditors for family expenses A single transaction made by one spouse cannot be held against community property
Facts: A wife entered into a video contract with the aggrieved party, an isolated activity of
Management & Relief the wife, which was not related to her regular business or profession. Can her husband
• Even if the family house is separately owned by 1 of the parties, the other be held solidarily liable for the debt she incurs?
spouse still has the right & duty to manage the household Held: NO. Since the contract is only for one time and is not related to the wife’s
• Neglect of duty can lead to relief in courts legitimate profession, business or activity, said contract did not redound to the benefit of
o Nullity, annulment, legal separation the family, and thus cannot be charged against community property.
o Petitioning court for receivership
o Judicial separation of property Separate Property Liability
o Authority to be sole administrator of the ACP or CPG subject to • In case of disagreement, the court can also decide whether or not benefit has
conditions as the courts may impose accrued to the family
• GENERAL RULE: Debts & obligations, regardless of the time they were incurred
Art. 73. Either spouse may exercise any legitimate profession, occupation, business or whether before or after the marriage ceremony, but redounding to the benefit
activity without the consent of the other. The latter may object only on valid, serious and of the family, shall be chargeable to the CPG/ACP & not to the separate
moral grounds. property of the spouse who incurred the obligation.
In case of disagreement, the court shall decide whether or not: o Same with obligations incurred, including family businesses, from
1) The objection is proper. legitimate professions & activities that redound to the benefit of the
2) Benefit has accrued to the family prior to the objection or thereafter. If the family
benefit accrued after10 to the objection, the resulting obligation shall be • EXCEPTIONS:
enforced against the separate property of the spouse who did not first attain o When the profession is seriously invalid or immoral, & the spouse has
consent. already objected
The foregoing provisions shall not prejudice the rights of creditors who acted in good o For the rules to apply, other spouse must have no knowledge of the
faith. immoral profession. If he knew already, it would be implied consent &
ACP/CPG will be liable.
Legitimate Profession § OLD RULE
• The spouses need no prior consent of the other to engage in any legitimate • BEFORE the innocent spouse knew of the
profession, occupation, business or activity. objection & voiced his dissent – obligation is
• The husband violates RA 9262 (Anti-VAWC) when he compels his wife to desist enforced to the separate property
from pursuing a profession, or otherwise controlling or restricting her movement, • AFTER the innocent spouse finds out & objection is
and can be punished by law voiced – obligation is enforced to the ACP/CPG
• Generally, the spouse’s exercise of a legitimate profession, occupation, business or • Example: X uses money borrowed from a friend to
activity is considered to have redounded to the benefit of the family, making the buy an airplane ticket so she can practice
conjugal partnership or absolute community liable prostitution in Japan. Her creditor-friend knew
                                                                                                                about her profession. Y, her husband, used the
10 Codal says prior to, but a recent law has reversed this. Now, after a spouse objects to the money she earned in Japan to buy food, without
profession of his spouse on valid, serious, moral grounds, the spouse who continues to practice knowing of the profession X undertook to earn the
said profession is separately liable for any obligations.
  Katrina Monica C. Gaw | Block C 2018| 36
 money. In this case, only X’s separate property will
be liable to her creditor-friend. Art. 77. The marriage settlements & any modification thereof shall be in writing, signed
• If X’s creditor-friend did not know the profession by the parties & executed before the celebration of marriage. They shall not prejudice 3rd
was illegal, the friend will not be prejudiced & can persons unless they are registered in the LCR where the marriage contract is recorded as
validly seek payment of debt from Y. well as in the proper registries of property.
• After Y finds out & objects, any obligation incurred
by X will be charged to ACP/CPG, because Y made Property Relations & Pre-Nuptial Agreements
use of the immoral money. • NON-NEGOTIABLES:
§ NEW RULE o Marriage settlement must be signed before the marriage
• BEFORE the innocent spouse knew of the o Marriage settlement must be in writing
objection & voiced his dissent – obligation is § Oral settlement is void & not ratifiable by any claim of partial
enforced to the ACP/CPG execution or absent of objection
• AFTER the innocent spouse finds out & objection is • When is the property regime of your marriage not your choice?
voiced – obligation is enforced to the separate o Art. 43 – When a present spouse marries a subsequent spouse after
property of the erring spouse obtaining a JPDP for absentee spouse but fails to perform the
• NO estoppel even if husband uses the immoral liquidation, distribution, partition & delivery, the property regime of
money, because estoppel cannot sanction the subsequent marriage will automatically become complete
immorality separation of property
• NOW: • RULES in marriages:
o Given the same scenario as above, X’s o H & W can’t sell property to each other, except when there is a
creditor-friend would have been able to separation or property in their settlement of a JSOP (judicial
seek payment of the debt owed by X from separation of property)
Y even before Y found out about the o No right of accretion in cases of donation made to several persons is
profession. not applicable to a donation jointly made to H & W; between H & W,
o When Y finds out & objects to X’s there will be right of accretion, unless donor expressly provides the
profession, the knowledgeable creditor- contrary.
friend can no longer go to Y to seek • Spouses may agree on anything allowed by law, even if partition is not equal
payment of debt, because Y has o May refer to present or future property or both
objected. o May be total or partial (e.g. a property not agreed upon as separate
• When creditor is in good faith & does not know shall automatically be absolute community)
about the immoral profession, he can seek o BUT parties cannot stipulate:
payment from the ACP/CPG too. If creditor is in § That the CPG/ACP will start at any time before or after the
bad faith, it depends when the spouse objected. marriage is celebrated because such agreement is void
§ EITHER WAY, spouse can interpose an authentic objection under Art. 88 & 107.
later on § No substantial donations to each other during their
marriage under Art. 87.
Art. 74. The property relations between husband & wife shall be governed in the § JDPD/1st marriage terminated by death – subsequent
following order: marriages can only be complete separation of property if
1) By marriage settlement executed before the marriage; there is no liquidation
2) By the provisions of this Code; § Parties cannot vary marital personal rights & duties that
3) By local custom arise on marriage by operation of law.
§ Agreement cannot divest the children of the parties of legal
Art. 75. The future spouses may, in the marriage settlements, agree upon the regime of rights.
absolute community, conjugal partnership of gains, complete separation of property, or • No marriage settlement = ACP
any other regime. In the absence of a marriage settlement, or when the regime agreed • There can also be a Mixed-Up Property Regime combining multiple types.
upon is void, the system of absolute community of property as established in this Code
shall govern. Prejudice to 3rd Parties
• Settlement & modifications must be recorded in LCR (of marriage contract) &
Art. 76. In order that any modification in the marriage settlements may be valid, tit must registries of property
be made before the celebration of marriage, subject to the provisions of Art. 66, 67,
128, 135 & 136.
  Katrina Monica C. Gaw | Block C 2018| 37
 • Example: A & B, prior to their marriage, execute a valid marriage settlement. of singlehood, sells the property to an innocent purchaser for value &
Two of three properties of B in Q.C., San Juan & Makati, shall be excluded from there are no other indicators for said purchaser to be suspicious,
the settlement. Only the Makati one will be included. transaction can’t be annulled.
o Had there been no agreement, A & B would own everything as ACP
o Prior to marriage, B borrowed money from Y. B used the loan Fairness in Marriage Settlement
personally, & it did not benefit the family of A & B. When debt became • In weighing fairness of provisions, case-to-case basis weighing all important
due, B defaulted. After obtaining a favorable court judgment, can Y, factors
3rd party creditor, execute on the Makati property now co-owned by A • If settlement is unfair, it can still be upheld if it is shown that the disadvantaged
& B? spouse signed it understanding that her rights were waived
§ IF marriage settlement is properly registered, NO. Property is • Spouses must sign freely, intelligently & voluntarily
now part of ACP, even if before it was owned separately by • Burden of proof of invalidity is on the spouse who alleges it
B, especially since there is still the property in Q.C. & San o If a presumption of concealment arises, burden shifts & it is incumbent
Juan. The Makati property can only be made liable for upon the other party to prove validity
COMMUNITY DEBTS now.
§ IF marriage settlement is NOT registered, Y can execute on Modifications
the community property in Makati. Then, B has to pay the • General rule: must be made before the celebration of the marriage, in writing &
community property for the payment of his obligation to Y; signed by the parties
can be made at the time of liquidation of ACP, wherein the • Modifications made after marriage NEED judicial approval & should only refer
cost of the debt will be deducted from B’s share. This is true to instances provided in Art. 66, 67, 128, 135 & 136 of FC:
EVEN IF B had other properties that could be used to pay o A revival of former property regime between reconciling spouses
the debt. o In case of abandonment or failure to comply with marital obligations
§ IF B’s debt to Y redounded to the benefit of the family, ACP o Aggrieved spouse can appeal to court & get a judicial separation of
is DEFINITELY liable. property
• If there is no marriage settlement, ACP automatically governs & there is nothing o Spouses can do a voluntary & verified petition to modify their property
to register. The effects on the 3rd party creditor X with a mortgaged property for regime into a separate community
a debt owed by B, who subsequently marries A, are as follows: o Otherwise, modification is not valid.
o IF the mortgage is registered, X will not be prejudiced, as B will be § CANNOT be effected by mere execution of contract or
bound to said mortgage. agreement between the two parties
o IF the mortgage is NOT registered, B shall not be bound by the § EVEN if it’s related to debts
mortgage, but he will lose his right to make use of the period (Art.
1198, CC: The debtor shall lose every right to make use of a period Local Customs
when, by his own actions, he has impaired the security given after its • Custom – a rule of conduct formed by repetition of acts uniformly observed as
establishment, unless he immediately gives new ones equally a social rule, legally binding & obligatory
satisfactory)
• A custom must be proved as fact, according to rules of evidence (CC)
§ B can ask A to make use of the collateral already
• IF parties stipulate in their settlement only that they do not want ACP, then
established.
local custom will apply
§ B can also give equally satisfactory securities.
§ In case A says no to both, X can file an action to collect the • IF marriage settlement says NO to ACP & local custom without stating a
amount of indebtedness. property regime, the provision will be void. ACP will then apply anyway.
• If X, despite judgment in his favor, cannot satisfy
Art. 78. A minor who according to law may contract marriage may also execute his or her
the debt because B no longer has exclusive
marriage settlements, but they shall be valid only if the persons designated in Art. 14 to
property, X can obtain payment under 94(9).
give consent to the marriage are made parties to the agreement, subject to the
• If X proves that B has no more separate property,
provisions of Title IX of this Code.
he can use ACP to pay, & B’s debt will simply be
deducted from share of ACP if ACP is liquidated
Art. 79. For the validity of any marriage settlement executed by a person upon whom a
• If debt redounded to the benefit of the family, X sentence of civil interdiction has been pronounced or who is subject to any other
can execute immediately on the mortgaged disability, it shall be indispensible that a guardian appointed by a competent court be
property. made a party thereto.
o If property is registered in the proper registry & has the corresponding
valid TCT, a 3rd party can rely on the annotations. If a married man Consent by those Designated by Law
caused the description “single” & through continuous representation
  Katrina Monica C. Gaw | Block C 2018| 38
 • Applicability of Art. 78 is now in doubt as legal age & marrying age is now 18 o EXCEPTION: stipulations that do not depend upon the celebration of
(Dec. 18, 1989, RA 6809) the marriage shall be valid
• An 18 year old, at present, can execute a marriage settlement without consent. § Support of common child (whether legitimate or illegitimate)
• Civil interdiction (Art. 34, RPC) – deprives offender during his time of sentence of the contracting parties who decide not to get married
of the rights of parental authority, guardianship, marital authority, of the right to
manage his property & the right to dispose of such property by any act. CHAPTER 2: DONATIONS 11 BY REASON OF MARRIAGE
o Reclusio temporal & perpetua lead to civil interdiction for life, even if
pardoned as to the principal penalty, unless the same shall have Art. 82. Donations by reason of marriage are those which are made before its
been expressly remitted celebration, in consideration of the same, & in favor of one or both of the future spouses.
o Art. 40, RPC: Death sentence, when not executed, leads to civil
interdiction for 30 years. 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
Art. 80. In the absence of contrary stipulation in a marriage settlement, the property Articles.
relations of the spouses shall be governed by Philippine laws, regardless of the place of
celebration of the marriage & their residence. This rule shall not apply: Art. 84. If the future spouses agree upon a regime other than the ACP, they cannot
1) Where both spouses are aliens; donate to each other in their marriage settlements more than 1/5 of their present
2) With respect to the extrinsic validity of contracts affecting property not situated property. Any excess shall be considered void.
in the Philippines & executed in the country where the property is located; & Donations of future property shall be governed by the provisions on testamentary
3) With respect to extrinsic validity of contracts entered into in the Philippines but succession & the formalities of wills.
affecting property situated in a foreign country whose laws require different
formalities for its extrinsic validity. Donation Propter Nuptias
• Need not be in the marriage settlement
Notes • Without onerous condition, as marriage is the motive for the donation
• Art. 80 (2) – lot is abroad & instrument is executed where lot is located • Remain subject to reduction for inofficiousness upon the donor’s death, If they
• Art. 80 (3) – lot is abroad but the instrument is executed in the Philippines should infringe on the legitime of a forced heir
• MUST be made
Rules Governing Property Relations 1) Prior to the celebration of the marriage
• If parties are Filipinos, their property relations will be governed by Philippine 2) In consideration of the same
laws in the absence of any agreement to the contrary 3) In favor of one of the contracting parties or both
• Art. 16, CC – Real & personal property will always be subject to the law of the • IF the donation has stipulations, like:
country where it is situated o Marriage has to be childless
• Property which is abroad will not be governed by Philippine laws o One of the spouses has to die before the donation operates
o Donation was in favor not of the wife but of the parents who raised
Art. 81. Everything stipulated in the settlements or contracts referred to in the preceding her
articles in consideration of a future marriage, including donations between the o CANNOT be regarded as one made in consideration of marriage
prospective spouses made therein, shall be rendered void if the marriage does not take • NOT donations by reason of marriage:
place. However, stipulations that do not depend upon the celebration of the marriage are 1) Made in favor of the spouses after the celebration of marriage
valid. 2) Executed in favor of the future spouses but not in consideration of
marriage
Notes 3) Granted to persons other than the spouses even though they may be
• BASIC RULE: Donation propter nuptias within marriage settlements shall be founded on the marriage
rendered void if marriage does not happen.
o Void marriages have no prescriptive periods. Donation of Present Property
o INCLUDES a scenario where the in-laws also put their donations to • MOVABLE PROPERTY donations:
the couple in the marriage settlement. 1) May be oral or written
a. If oral, document representing the thing or the thing itself must be
Efficacy of the Marriage Settlement delivered simultaneously
• Consideration of the marriage settlement is the marriage itself.
• If marriage does not take place, the marriage settlement is generally rendered
void.                                                                                                                
11 Donations are unilateral acts & are effective when accepted
  Katrina Monica C. Gaw | Block C 2018| 39
 b. If the value of the thing is more than 5,000 pesos, the donation & § PROVIDED:
acceptance shall be in writing. Otherwise, donation shall be void. • He reserves sufficient means to support himself &
2) Donee must accept the donation personally or through an authorized all relatives who, by law, are entitled to support
person with a special power for the purpose, or with a general or from the donor
sufficient power § NO PERSON MAY GIVE OR RECEIVE, BY WAY OF DONATION,
a. Acceptance during lifetime of donor & donee MORE THAN HE MAY GIVE OR RECEIVE BY WILL.
• IMMOVABLE PROPERTY donations: • If A gave a donation PN to Z in the amount of
1) Must be made in a public document 60,000 pesos, but his entire estate is 100,000
a. Specify the property to be donated pesos, A’s only son, G, is prejudiced as it extends
b. The value of the charges which the donee must satisfy on his compulsory legitime
2) Acceptance may be made in the same deed of donation or in a separate o Only son gets ½ of A’s estate supposedly
public document (50,000 pesos)
a. Must take effect during lifetime of donor o The other 50,000 pesos is the free
b. If acceptance is in a separate instrument, donor should be notified in portion A can give to anyone. This is the
an authentic form; this step shall be noted in both instruments only amount he can give to Z.
o Donation given by A to Z is inofficious; Z
SCENARIO should give back 10,000 he got from A
Q: X is the proud of future son-in-law Y for finishing law school. X thus awards Y with a • It can be argued that not applying the 1/5 rule
car. Y, however, breaks up with X’s daughter, W. Can X revoke the donation? messes with the spirit of the law (Art. 87)
o Donation is an act of pure liberality & is
A: If it is a donation by reason of marriage, & Y refuses to return the car, X has 8 years to not negotiated
file a case from the time he makes the demand & Y refuses. o Donations are not part of the property
settlement
• Donation propter nuptias of future property o 1/5 rule applies in a settlement because
o Shall be governed by provisions on testamentary succession & there are negotiations; but when it’s
formalities of a will outside of the settlement, it’s just an act
o Document containing future donation may be handwritten of liberality
§ MUST be entirely handwritten, dated & signed by donor
o If not handwritten, it must be subscribed at the end thereof by the Art. 85. Donations by reason of marriage of property subject to encumbrances shall be
donor himself or the donor’s name written by some other person in valid. In case of foreclosure of the encumbrance & the property is sold for less than the
his presence, & by his express direction, & attested & subscribed by 3 total amount of the obligation secured, the donee shall not be liable for the deficiency. If
or more credible witnesses in the presence of the donor & of one the property is sold for more than the total amount of said obligation, the donee shall be
another. entitled to the excess.
§ Every will must be acknowledged before a notary public by
the donor & the witnesses. Notes
• Ordinarily, when you buy a property with an annotation, you take over the
Donation between future spouses burden of those annotations.
• If ACP = donation PN is useless • But in Art. 85, as donation is gratuitous, donee will not be held liable for any
• Requisites for valid donation PN: liens recorded, & is entitled to any excess
1) Valid marriage settlement
2) Marriage settlement stipulates a property regime that is not ACP Donation with Encumbrance
3) Donation contained in the settlement is not more than 1/5 of the present • Donee’s rights are subject to encumbrance
property of the donor • Donee cannot seek reimbursement from the donor for the donation that was
4) Donation must be accepted by would-be spouse foreclosed; at most, donee is entitled to any excess that wasn’t used to pay the
5) Must comply with requisites in Title III Book III of CC encumbrance
• If it is not in the marriage settlement (non-execution by couple)
o Making a donation is useless, as marriage will be governed by ACP Art. 86. A donation by reason of marriage may be revoked by the donor in the following
• If it is not in the settlement (but there is a settlement) cases:
o The not more than 1/5 rule will not apply 1) If the marriage is not celebrated or judicially declared void ab initio except the
o More freedom to give more, as Title III of Book III of CC will dictate donations made in the marriage settlements, which shall be governed by Art.
§ Donation may comprehend all present party of the donor 81;
  Katrina Monica C. Gaw | Block C 2018| 40
 2) When the marriage takes place without the consent of the parents or guardian, a. Donations are revoked by operation of law according to Art. 44
as required by law; 3) In all other cases where marriage is declared void not in Art. 40, 52, 53 or
3) When the marriage is annulled, & the donee acted in bad faith; 41 – OPTION OF DONOR
4) Upon legal separation, the donee being the guilty spouse; a. GENERALLY, donations made in good faith marriages cannot be
5) If it is with a resolutory condition & the condition is complied with; revoked, UNLESS said marriage is void.
6) When the donee has committed an act of ingratitude as specified by provisions b. Art. 86 (1) will apply; donor has option.
of the Civil Code on donations in general. i. Good faith or bad faith of donee is irrelevant.
ii. Donor has option to revoke or not to revoke after JDN,
General Rule for a prescription period of 5 years.
• In all cases except in the case of void marriages, if the donee is NOT in bad 4) Bigamy – 2nd spouse generally has option to revoke donation to bad faith
faith, the donation CANNOT be revoked bigamous spouse unless they were already living together/adulterous
• “Void donations” & “donations revoked by operation of law” are the same a. Donations of 2nd spouse to bigamous spouse may or may not be
revoked by 2nd spouse.
Marriage Not Celebrated b. Any donation given by bigamous spouse to 2nd spouse is void IF
• When the marriage is not celebrated, donor has the option to revoke or the two of them are guilty of adultery or concubinage at the time
maintain the donation (if not in marriage settlement) of donation.
o Note that some donations are revoked by law, & not by choice c. Void also if bigamous spouse & 2nd spouse were already living
• Prescriptive period: 5 years from the time the right of action accrues together without a valid marriage (Art. 87)
o If the marriage is not celebrated, right of action accrues from the i. IF marriage between ‘bigamous’ spouse & 1st spouse is
moment the marriage is not solemnized on the fixed date void & no JDN was obtained by ‘bigamous’ spouse, &
• If the donation is in the marriage settlement, period does not prescribe. therefore, donations by 2nd spouse will be revoked by
operation of law upon the finality of JDN, revoked by
• If the donation is not by reason of marriage, donation is still valid.
operation of law (Art. 40)
1. However, donation between 2nd spouse &
Marriage judicially declared void
bigamous spouse will be void if it were made
• There MUST be a judicial declaration that the marriage is void before donation
at the time they lived together without a valid
can be revoked by the donor
marriage
• Generally, good faith or bad faith is immaterial when the marriage is judicially 5) Good faith of both parties
declared void a. Donor after JDN is given the option to revoke the donation or not
• BUT there are 5 scenarios that can arise, depending on the reason why the (Art. 86 (1))
marriage is void: b. Marriage between X & Y where X does Art. 40 but not Art. 52 in
1) Art. 40, 52 & 53 – A subsequent marriage is void because there was no good faith, any donation between the two may be revoked by the
JDNOM for the 1st marriage – REVOKED for bad faith spouse other if both made the marriage in good faith.
a. Art. 86 (1) would prevail if based on statutory construction, as it c. Prescription of 5 years from JDN.
was written later on in the Code
b. Sta. Maria view: Revoked by operation of law IF the donee- No Consent of Parents or Guardian
spouse contracted the marriage in bad faith (spirit of the law) • Donation may be revoked by the donor; donor can be a 3rd person
i. Example: A’s first marriage is void, but he gets no JDN. • Has 5 years from the time of the knowledge that the needed consent was not
A marries B. A knew all along that he needed a JDN for
obtained by the parties
his 1st marriage. Before the wedding, B gave A a
o Consent can be given by the parents after the marriage, but cannot
donation proper nuptias. Upon finality of JDN between
be ear
A & C, the donation shall be revoked by operation of
o The knowledge of non-consent can come on or after the marriage
law pursuant to Art. 50, which provides that Art. 43 (3)
• If he or she knew of the non-consent before the marriage, donor may not
shall also apply in proper cases where marriages are
revoke because parent can still give their consent anytime before the marriage
declared void under Art. 40.
ceremony takes place
c. If the donee does not want to return the donated property, the
donor should file an action to recover the thing donated & his • If marriage does not take place, Art. 86(1) or Art. 81 will apply in the proper
right of action starts from the finality of the JDN. cases
i. If it is movable property, prescription period is 8 years.
ii. If it is immovable, prescription period is 30 years. Annulled Marriage & Donee Acted in Bad Faith
2) Bad faith on the part of both parties in Art. 41 – REVOKED • Art. 50 in relation to Art. 43(3) makes the donation revoked by operation of law
if donee acted in bad faith
  Katrina Monica C. Gaw | Block C 2018| 41
 Generally, if there is good faith in an annulled marriage, donation
o • Period: Must be done within 1 year from the time the donor had knowledge of
CANNOT be revoked the ingratitude & it was possible for him to bring suit; alienations shall subsist
• Conflict between Art. 50 in relation to 43(3) & Art. 86(3)
o 86(3) is later, so statutory construction says apply this Void Donations
o But 43 (3) is more in harmony with the general tenure of the provision • Art. 739, CC: Donations made by those guilty of adultery or concubinage shall
on annulment (bad faith spouse must not be allowed to benefit) be void
o Giving the innocent spouse the option to revoke may lead to o Example: husband transfers property to 2nd wife at the time of
difficulties because guilty spouse can bargain with innocent spouse & marriage with 1st wife
attempt to change the innocent spouse’s mind o Guilt is to be proven by preponderance of evidence
§ Also not a good deterrent for those who marry to get rich
§ Art. 86(3) would mean that that there is a prescription Art. 87. Every donation or grant of gratuitous advantage, direct or indirect, between the
period of 5 years from the finality of the annulment decree spouses during the marriage shall be void, except moderate gifts which the spouses may
§ BUT if it is revoked by operation of law, no need to file an give to each other on the occasion of any family rejoicing. The prohibition shall also apply
action to revoke the donation – refusal to return will lead to to persons living together as husband & wife without a valid marriage.
7 year-30 year rule
§ ALSO there are instances when there is no “bad faith” Reasons
spouse even if there is an injured party (e.g. STD) – donation • Undue & improper pressure & influence
remains effective & cannot be revoked by law • For the donation to fall under Art. 87, it must be shown that the donation was
made AT A TIME WHEN THEY WERE STILL LIVING TOGETHER as husband & wife
Legal Separation without the benefit of marriage
• Prescription: 5 years from the JD of LS (decree is necessary) • Also invalid if it is obvious one of them connived to make it appear like a sale
• If the ground is sexual infidelity or concubinage, a donation made between when it was actually a donation
persons who are guilty of adultery or concubinage at the time of the donation • Indirect donations are also not allowed; donations of a spouse:
shall be void 1) To a stepchild who has no compulsory heir &/or legal heirs, such as his or
her children, other than the other spouse at the time of the donation;
Resolutory Condition 2) To a stepchild who has no compulsory heir &/or legal heirs, such as his or
• Resolutory condition & condition is complied with, donation may or may not be her children, other than the other spouse at the time of the donation;
revoked 3) To a common adopted child who has no other compulsory heir/s;
• Resolutory condition – happening of a future & uncertain event 4) To the parents of the other spouse;
o Example: Father donates car to guy & says car is donated & will be 5) To the other spouse’s adopted child who has no compulsory heirs or in
revoked if guy & wife leave Philippines. If guy & wife leaves, it’s cases when at the time of the donation, the only surviving relative of the
father’s choice. adopted is the other child
• Period: 5 years from happening of resolutory condition (if 3rd party) • Anytime the donation may redound back to the spouse, it’s considered indirect
• Period: No prescription if the donation is between H & W o VALIDITY OF A DONATION is determined AT THE TIME IT WAS GIVEN
Acts of Ingratitude o If the donation to a stepchild was given when the stepchild had no
• Art. 765 of CC: children, but then later there was, donation is still void
1) If the donee should commit some offense against the person, honor or o EXCEPTION: donation by both spouses in favor of their common
property of donor, or his wife, children under his parental authority (kids legitimate children for the exclusive purpose of commencing or
under 18) completing a professional or vocational course or other activity of self-
2) If the donee imputes (libel12) to the donor any criminal offense, or any act improvement as valid; chargeable to ACP or CPG
involving moral turpitude, even though it can be proven, unless the crime
or act is committed against the donee himself, his wife or kids Persons who can charge validity of transfer
3) If he unduly refuses him support when the donee is legally or morally • CANNOT be challenged by those who had absolutely no relation to the parties
bound to give support to the donor to the transfer at the time it occurred & had no rights or interests inchoate,
o Scenario: Your ninang loses everything in a storm; she once donated present, remote or otherwise, in the property in question
something to you. After she loses everything, she asks if she can
receive support from you. You say no. In this situation, your ninang CHAPTER 3: SYSTEM OF ABSOLUTE COMMUNITY
can revoke the donation she once gave to you.
Section 1. GENERAL PROVISIONS
                                                                                                               
12 In such a case, that the libelous statement is true is not a defense
  Katrina Monica C. Gaw | Block C 2018| 42
Art. 88. The absolute community of property between spouses shall commence at the § Muller v. Muller – A Filipina & her husband bought Antipolo
precise moment the marriage is celebrated. Any stipulation, express or implied, for the property. When they separated, the husband sought
commencement of the community regime at any other time shall be void. reimbursement. SC did not allow the reimbursement, as the
husband had no right to make claims on the land.
Absolute Community of Property (ACP) § Frenzel v. Catito – Similar to cases above; Australian
• All properties owned by the contracting parties before the marriage ceremony & executed deeds of sale under the name of his common-law
those which they may acquire thereafter shall comprise the absolute Filipina girlfriend; when they broke up & the Australian sued
community of property regime her, SC said that: One who loses his money or property by
o Spouses become co-owners of all the properties in the ACP knowingly engaging in an illegal contract may not maintain
o No waiver of rights, interests, shares & effects of the ACP can be an action for his losses.
made except upon judicial separation of property § Cheesman v. IAC – A Filipina & her husband acquired a
• In a partial separation of property regime, the property not agreed upon as parcel of land under the Filipina’s name. The Filipina sold
separate shall pertain to the absolute community (Art. 144, FC) the parcel of land to a 3rd person without her husband’s
• Only those discussed in the marriage settlement to be separate & those knowledge. However, SC gave him no right to nullify the sale
enumerated in Art. 92 are excluded from the ACP
• Traditional oneness of the Filipino family is reflected in ACP Commencement
o Even the Civil Code Commission thought so, but at the time they had • ACP commences at the precise moment of the celebration of marriage
decided that CPG was more revolutionary as a concept • Any stipulation, express or implied, that it begins at any other time shall be void
o A provision that states that the CPG shall govern the property
Alien Married to Filipino relationship until after the 5th anniversary of the couple, when it will
• In ACP & CPG, an alien married to a Filipino cannot have any interest in the automatically convert to ACP, is void
community or partnership property o No automatic change is allowed even later in the marriage without
o Matthews v. Taylor – A Filipino wife need not obtain consent from her the court’s intervention
foreigner spouse before leasing a space they own, because the alien
spouse is not considered as the owner of the property; otherwise, Art. 89. No waiver of rights, interests, shares & effects of the ACP during the marriage
allowing the alien to have a claim would be allowing him to can be made except in case of judicial separation of property.
circumvent the laws on aliens not being allowed to acquire land in PH. When the waiver takes place upon a judicial separation of property, or after the marriage
In the end, the Filipina wife is seen by the law as the sole owner of the has been dissolved or annulled, the same shall appear in a public instrument & shall be
property. recorded as provided in Art. 77. The creditors of the spouse who made such waiver may
§ Aliens are disqualified by the Constitution from acquiring petition the court to rescind the waiver to the extent of the amount sufficient to cover the
private or public lands. amount of their credits.
§ Only Filipinos or corporations which are 60%-owned by
Filipinos. Art. 90. The provisions on co-ownership shall apply to the ACP between the spouses in all
§ Art. XIII Sec. 1 of the Constitution: “Natural resources, with matters not provided for in this Chapter.
the exception of public agricultural land, shall not be
alienated,” & their alienation is limited to Filipino citizens Section 2. WHAT CONSTITUTES COMMUNITY PROPERTY
§ In case Filipinos give their agricultural lands to aliens, Sec.
5: Save in cases of hereditary succession, no private Art. 91. Unless otherwise provided in this Chapter or in the marriage settlements, the
agricultural land will be transferred or assigned except to community property shall consist of all the property owned by the spouses at the time of
individuals, corporations or associations qualified to acquire the celebration of the marriage or acquired thereafter.
or hold lands of the public domain in the Philippines.
§ Foreigners are only allowed to own Philippine land under Art. 92. The following shall be excluded from the community property:
constitutionally-recognized exceptions 1) Property acquired during the marriage by gratuitous title by either spouse, &
• This is to be construed strictly; they cannot buy the fruits as well as the income thereof, if any, unless it is expressly provided by
lands that are not strictly agricultural, either the donor, testator or grantor that they shall form part of their community
§ Ting Ho v. Teng Gui – A Chinese citizen acquired a parcel of property;
land, together with the improvements thereon. Upon his 2) Property for personal & exclusive use of either spouse. However, jewelry shall
death, his heirs claimed that the properties are part of the form part of the community property;
estate of their deceased father. However, SC ruled that the 3) Property acquired before the marriage by either spouse who has legitimate
land & improvements are excluded as the father was a descendants by a former marriage, & the fruits as well as the income, if any, of
foreigner, & thus ever became the owner of the land. such property.

  Katrina Monica C. Gaw | Block C 2018| 43

Art. 93. Property acquired during the marriage is presumed to belong to the community, • 3rd – Personal & Exclusive Use – Property for personal & exclusive use of either
unless it is proved that it is one of those excluded therefrom. of the spouses, either those brought inside the marriage or bought during the
marriage
Special Type of Co-Ownership o Excludes jewelry, which must involve a substantial amount
• ACP is a special type of co-ownership; that’s why laws on co-ownership can also o Property in this exclusion must be interpreted in terms of value (cost)
apply to ACP. o If a spouse has an expensive car worth 1M & which is for his
• Spouses can individually use things owned in common so long as each does so “personal & exclusive use,” this is considered as part of the ACP if it
in accordance with the purpose for which it was intended & as long as it does can be shown that the spouses are not even very rich to simply be
not injure the interest of the co-ownership or prevent the co-owner from using it able to afford such an expensive car
according to their rights (Art. 486, CC) • 4th – Property from a Previous Marriage – property + fruits & income of said
• Any one of the co-owners may bring an action for ejectment (Art. 487, CC) property of either spouse when they still have legitimate descendants from a
• UNLIKE AN ORDINARY CO-OWNERSHIP former marriage
o No waiver of rights, interests, shares & effects of the ACP during the o Descendants are not just children, but include grandchildren, great-
marriage can be made except in case of judicial separation of grandchildren & all other descendants, who must all be legitimate
property o If a previous marriage is void, & the kids from those marriage become
o Like in CPG, the interest of the parties in the property is merely illegitimate, & thereafter one of the parties marries again, the
inchoate or an expectancy prior to liquidation properties acquired by said party upon liquidation of the previous
• When a waiver takes place upon judicial separation of property, or after a marriage belong to the ACP of the subsequent marriage
marriage has been dissolved or annulled, the same shall appear in a public o If a previous marriage is annulled or declared void under Art. 36 or
instrument & shall be recorded as provided in Art. 77. Art. 52 & 53, the children born or conceived under such marriage is
• “Upon judicial separation” in par. 2 of Art. 89 – covers the time period during & legitimate, the property acquired by the spouse with children from a
after judicial separation previous marriage will not belong to the ACP; it shall belong to the
o Creditors of the spouse who made such waiver may petition the court spouse with the legitimate children or to the children as presumptive
to rescind the waiver to the extent of the amount sufficient to cover legitime
the amount of their credits o If marriage is terminated by death & there is no liquidation, the
§ Spouses A & B had their ACP worth P1M dissolved in subsequent marriage is governed by complete separation of property
accordance with law. Upon judicial separation of property, B in accordance with Art. 103
is entitled to get 500K as her share. B is indebted to X in the § If there was liquidation, the property regime is ACP or what
amount of 100K. If B decides to waive her entire share in is in the marriage settlement; but if the surviving spouse has
favor of A, X has the right to seek rescission of the waiver legitimate descendants, the properties owned by the
amounting to 100K (take from the 500K) to protect X’s surviving spouse acquired before the subsequent marriage
interest. shall remain separate even if ACP governs the subsequent
o If the waiver takes place without a judicial separation of property marriage
decree, such waiver shall be void – it will be contrary to law & public
policy (Art. 6, CC & Art. 89, FC) Nature of Acquired Property Using Separate Properties
• Art. 109(4), FC: one of the exclusive properties of the spouses in relation to the
Exclusions CPG is that which is purchased with the exclusive money of the wife or husband
• Four excluded properties from ACP—Art. 91 is at the discretion of the parties, & o This is not so for ACP; there is no provision on ACP regarding exclusive
Art. 92 are statutory exclusions (& are thus mandatory) properties. Thus, it can be the assumed intention of the code
• 1st - Marriage Settlement – anything that the spouses exclude from the commission to make the husband & wife truly a single community
community property in their marriage settlements • If a marriage settlement provides that the 1M won by the husband in the
• 2nd – Gratuitous Title – must be a valid gratuitous acquisition during the sweepstake prior to the marriage shall remain separate during the marriage,
marriage, & includes the fruits & incomes of the subject matter as well the stipulation is valid.
o CANNOT be donations made by a spouse to the other spouse o If, using the said amount, the husband subsequently buys a house
involving substantial amount of separation properties which, in the which is used as a family home, the house cannot be considered his
marriage settlement, has been agreed upon as not included in the separate property but a part of the ACP.
community property (Art. 87) § Two reasons:
o HOWEVER, the donor, testator or grantor may provide that the • The absence of a counterpart provision to Art.
property, fruits & income will form part of the community property 109(4) for ACP

  Katrina Monica C. Gaw | Block C 2018| 44

 • Art. 93, FC: Property acquired during the marriage 4) All taxes, liens, charges & expenses, including major or minor repairs, upon the
is presumed to belong to the community unless it community property;
is provide that that it is one excluded therefrom. 5) All taxes & expenses for mere preservation during marriage upon the separate
• Art. 91, FC: Unless otherwise provided in this property of either spouse used by the family;
chapter or in the marriage settlement, the 6) Expenses to enable either spouse to commence or complete a professional or
community property shall consist of all the vocational course, or other activity for self-improvement;
properties owned by the spouses at the time of the 7) Antenuptial debts of either spouse insofar as they have redounded to the
celebration of the marriage or acquired thereafter benefit of the family;
• Does not fall in any of the exceptions 8) The value of what is donated or promised by both spouses in favor of their
§ The law does not provide that property purchased with the common legitimate children for the exclusive purpose of commencing or
exclusive money of the wife or husband shall be excluded contemplating a professional or vocational course or other activity for self-
from the community property, UNLIKE in CPG improvement;
• Same conclusion as above if house was donated to the husband & the 9) Antenuptial debts of either spouse other than those falling under paragraph (7)
husband, after becoming owner of the house, sells the property to a 3rd person. of this Art., the support of illegitimate children of either spouse, & liabilities
o The money obtained through the sale is part of the ACP. incurred by either spouse by reason of a crime or quasi-delict, in case of
o Same result will be reached when money is obtained from the sale of absence or insufficiency of the exclusive property of the debtor-spouse, the
personal & exclusive properties under Art. 92(2). payment of which shall be considered as advances deducted from the share of
• When items in Art. 92(3) are sold during the marriage, the money obtained the debtor-spouse upon liquidation of the community; &
from such will also be part of the ACP of the subsequent marriage. 10) Expenses of litigation between the spouses unless the suit is found to be
groundless.
• When a property is exchanged or bartered for another property, the result
If the community property is insufficient to cover the foregoing liabilities, except
would be the same, unless the property received will qualify as a property used
those falling under paragraph (9), the spouses shall be solidarily liable for the
for personal & exclusive use of the recipient spouse
unpaid balance with their separate properties.
o Unlike 109(3) for CPG
• All of this may seem revolutionary for some, but serve to strengthen the idea of
Support
complete unity between husband & wife through ACP
• The most sacred & important of all obligations imposed by law; imposed
• Other point of view – object bought using separate property, proceeds obtained
with overwhelming reality
from the sale of separate property, or items received by way of exchange or
• Others may sometimes fail, but this one should never fail unless with a
barter of the separate properties excluded in Art. 91 & 92 will not necessarily
valid cause
make said object part of the ACP. Otherwise, it would be easy to circumvent or
negate the purpose of stipulations in a settlement • Comprises everything indispensible for sustenance, dwelling, clothing,
o This view does not seem to have any support in the Family Code itself medical attendance, education & transportation, in keeping with the
financial capacity of the family
• For properties in Art. 92 to be considered separate, it must be maintained as
such • Education includes schooling & training for some profession, trade or
o If a spouse sells property involved in the exclusions, that is his own vocation, even beyond the age of majority
prerogative, but if he does so, he parts with the “property” • Transportation includes expenses in going to & from school & work
§ Proceeds or objects received are not anymore protected as • Illegitimate children – governed by provisions of Support in FC
exclusive properties o Taken from separate property of parent-spouse
§ FC favors ACP rather than separation of property o In case of absence or insufficiency of the exclusive property of
the parent of the illegitimate children, the ACP shall pay the
Section 3. CHARGES UPON & OBLIGATIONS OF THE ABSOLUTE COMMUNITY support, but said support is considered an advance to be
deducted from the share of the parent concerned upon
Art. 94. The absolute community of property shall be liable for: liquidation of the ACP.
1) The support of the spouses, their common children & legitimate children of
either spouse; however, the support of illegitimate children shall be governed Debts & Obligations
by the provisions of this Code on Support; • If the administration of the property is delegated to one of the spouses & he or
2) All debts & obligations contracted during the marriage by the designated she, as the administrator during marriage, contracted a debt or obligation for
administrator-spouse for the benefit of the community, or by both spouses, or the benefit of the community, the ACP shall be liable for the same
by one spouse with the consent of the other; o Consent of the other spouse – not needed
3) Debts & obligations contracted by either spouses without the consent of the o HOWEVER, there must be proof that it redounded to the benefit of the
other to the extent that the family may have been benefited; family

  Katrina Monica C. Gaw | Block C 2018| 45

 • Even when NOT for the benefit of the family, the ACP is liable for the debts of § A donation by one spouse to a common child who has no
one spouse who obtains the consent of the other spouse before incurring said descendants or compulsory heir other than his parents is an
debt or obligation indirect donation to the other spouse
o Consent may be express or implied
o CASE: Marmont Resort World Enterprises v. Guiang – The case deals Liabilities by Reason of a Crime or Quasi-Delict
with the issue of W/N the husband consented to a debt. The wife • ACP will not pay for obligations arising from crimes or quasi-delicts of a spouse
contracted a debt alone, but her husband signed the contract as a • In case spouse’s property is insufficient, ACP shall pay as an advance, which
witness. He thus impliedly consented to the debt & the ACP (& in will later be deducted from the share of the debtor spouse upon liquidation
effect, he himself) is liable for the debt o Art. 100, RPC: One who is criminally liable for a felony is also civilly
• If a debt was contracted during marriage, even when NOT for the benefit of the liable
family & WITHOUT consent of the other spouse, the ACP is liable to the extent o Art. 2176, CC: Whoever by act or omission causes damage to
that the family may have been benefited another, there being fault or negligence, is obliged to pay for the
o If the debt does not redound to the benefit of the family, the separate damage done; if there is no pre-existing contractual obligation
property of the debtor-spouse is liable between the parties, such fault or negligence is called quasi-delict
• If a debt was contracted prior to the marriage, ACP is liable if the debt § Art. 2189, CC: A proprietor of a building is responsible for
redounded to the benefit of the family the damages resulting from its total or partial collapse if it is
o Separate property is liable if it does not redounded to the benefit of due to lack of necessary repairs
the family § Art. 2193, CC: Head of a family who lives in a building is
o If the exclusive property of the debtor-spouse is insufficient, ACP will responsible for damages caused by things thrown or falling
pay the debt, but the payment will be considered as an advance to be from the same
deduced from the share of the debtor-spouse upon liquidation of the § Art. 2187, CC: Manufacturers or processors of foodstuffs,
community drinks, toilet articles or similar goods shall be liable for
• Losses due to family business or exercise of profession by any of the spouses – death or injuries to customers caused by any noxious or
charged to ACP harmful substances used
o Any personal undertaking by a spouse, such as making himself a § Art. 2176 also applies to acts or omissions of those persons
surety or guarantor to an obligation of another person, is NOT for whom one is responsible
considered to be for the benefit of the family • Damages caused by employees while doing things
they were employed to do
Taxes, Liens, Charges, Repairs § Quasi-delicts are covered by Art. 2177-2194 of CC (Ch. 2,
• ACP will be charged for the ff. in relation to the community property: Titlte XVII, CC)
o Taxes & liens
o Charges & expenses Expenses of Litigation
o Major & minor repairs • ACP is charged when:
• Consent of other spouse is not needed o The suit is between the husband & wife
o The suit is not groundless
Taxes, Expenses for Preservation of Separate Property § Ex.: When it is obvious that the other spouse will be
• ACP is also accountable for the expenses incurred to preserve the separate acquitted because of prescription, the case is groundless
property of any of the spouses, on the premise that such separate property has § Thus, just because the other spouse loses the case because
been used or is being used by the family during the marriage there is no proof beyond reasonable doubt, the case is not
necessarily groundless
Expenses or Donation for Self-Improvement Activities • ACP is also charged for suits that are not between the husband & wife, as long
• Expenses for education or training of either spouse – chargeable to ACP as the suit benefits the family
• Value of what is donated or promised by BOTH spouses in favor of their • CASE: Seva v. Nolan – A wife was criminally sued by her husband for adultery;
common legitimate child for the exclusive purpose of commencing or she spent attorney’s fees to defend herself. She was later acquitted. SC ruled
completing a professional or vocational course or other activity for self- that the legal fees she spent during the litigation were chargeable to the ACP
improvement is chargeable to ACP was “as necessary as a claim for support, inasmuch as the right to a good
o If only 1 of the spouses donate, this may fall under the prohibition name & reputation are vital & deserving of protection as the right to existence
under Art. 87, making void any direct or indirect donation between the which is… the meaning of the right to support.
spouses • CASE: Recto v. Harden – A wife made a contract with her lawyer that she would
pay 20% of the value of her share in the CPG she has with her husband when it
is liquidated. SC ruled that this contract did not bind the CPG, as the wife
  Katrina Monica C. Gaw | Block C 2018| 46
 merely bound HERSELF/assumed a personal obligation to pay, by way of curtailed by the court; non-insolvent spouse becomes the sole administrator of
contingent fees. The 20%-amount is merely the BASIS of the computation, but the ACP/CPG. The court can also appoint a 3rd person, other than the assignee,
the lawyer does not actually get her share in the CPG. as administrator

Solidary Liability of the Spouses Art. 95. Whatever may be lost during the marriage in any game of chance, betting,
• Solidary obligations – where several creditors or debtors or both concur, & sweepstakes, or any other kind of gambling, whether permitted or prohibited by law,
where each creditor has the right to demand & each debtor is bound to shall be borne by the loser & shall not be charged to the community, but any winnings
perform, in its entirety, the prestation constituting the object of the obligation therefrom shall form part of the community property.
o If 2 debtors solidary owe a creditor an amount of money, the creditor
may demand payment from both or he may choose to ask payment Games & Losses in Games of Chance
from anyone of the debtors • Games of chance may unnecessarily deplete the ACP/CPG
o Creditor can ask for the full amount of the obligation, not only the part o Includes the lotto, even if the lotto is legal
constituting the share of each of the debtors owe • Losses incurred are borne by the loser
o Even if a creditor runs after the wife’s entire property, the wife can seek • Winnings form part of the community property
payment from the husband, as the liability between H & W is solidary • Provision necessarily connotes that the spouses parted with some valuable
• Spouses are SOLIDARILY liable with their separate properties if the community consideration hoping that some valuable return will be gained
property is insufficient to cover ACP liabilities; this cannot include: o If a stranger gives one of the spouses a sweepstake ticket without
o Ante-nuptial debts not redounding to the benefit of the family consideration, & said spouse won prize money, the winning will be
o Support of illegitimate kids of either spouse considered separate property in accordance with Art. 92(1) of FC,
o Liabilities incurred by the spouse by reason of a crime or quasi-delict unless the donor expressly provides that it shall form part of the
community property
Insolvency of Spouses § While it was only the ticket that was given for free, the
• In an insolvency proceeding, an assignee is appointed winning prize is considered “income” derived from the ticket
o Represents the insolvent & creditors, whether voluntary or involuntary (NIRC) – property acquired by gratuitous title, as well as the
o Takes all the properties of the insolvent & obtains title thereto & fruits & income thereof, are excluded from ACP
converts the estate, real or personal, into money to settle the debts of
the debtor SEC. 4. OWNERSHIP, ADMINISTRATION, ENJOYMENT & DISPOSITION OF THE
• As long as ACP exists, its property cannot be among the assets to be taken COMMUNITY PROPERTY
possession of by the assignee for the payment of an insolvent debtor’s
obligations, except insofar as the latter has redounded to the benefit of the Art. 96. The administration & enjoyment of the community property shall belong to both
family (Art. 2238, CC) spouses jointly. In case of disagreement, the husband’s decision shall prevail, subject to
• Differences between CC & FC in relation to ACP: recourse to the court by the wife for a proper remedy, which must be availed of within 5
o Art. 206, CC: the ownership, administration, possession & enjoyment years from the date of the contract implementing such decision.
of the common property belong to both spouses jointly & in case of In the event that one spouse is incapacitated or otherwise unable to participate in the
disagreement, the courts shall settle the difficulty administration of the common properties, the other spouse may assume sole powers of
§ 2nd sentence of Art. 2388, CC: If it is the husband who is administration. These powers do not include the powers of disposition & encumbrance
insolvent, the administration of the CPG or ACP may, by which must have the authority of the court or written consent of the other spouse. In the
order of the court, be transferred to the wife or to a 3rd absence of such authority or consent, the disposition or encumbrance shall be void.
person other than the assignee However, the transaction shall be construed as a continuing offer on the part of the
• Prevents the husband, who usually acts as the consenting spouse & the 3rd person, & may be perfected as a binding contract upon the
actual administrator, from dissipating the assets of acceptance by the other spouse or authorization of the court before the offer is withdraw
the ACP which may be held liable for the insolvent- by either or both offerors.
husband’s debts
o Art. 96, FC: Administration jointly belongs to both the husband & wife, Joint Administration & Enjoyment
with the husband’s decision will prevail in case of disagreement, but • In ACP, spouses are co-owners of the properties they introduced into the
the wife can seek annulment of the contract marriage & acquired after the marriage ceremony, except those listed in the
§ 2nd sentence of Art. 2388, CC still applies under FC, esp. settlement & excluded under Art. 92.
because there is an explicit provisional statement that the • Administration may be validly delegated to only one spouse in the marriage
husband’s decision will prevail in the meantime settlement
• If both H & W maintain joint administration & 1 of them becomes insolvent, the • Joint management or administration does not require the H & W to always act
right of the insolvent spouse to jointly administer the ACP/CPG may be together
  Katrina Monica C. Gaw | Block C 2018| 47
 o Each spouse may validly exercise full power of management alone, § Going to court does not necessarily mean a desire to change
subject to intervention of the court in the proper cases the administrator, but merely to settle the particular
o Thus: though the general rule is that all parties to a suit have to sign a disagreement
certification against forum shopping, the signature of the H or W § Proceeding will be summary in nature (Art. 253, FC)
alone is substantial compliance with the requirement if the case o For example, if there is a disagreement regarding alteration of a
involves the community property of the spouses, even if both parties common property & the husband objects, the wife can go to court
are petitioners to the case o If wife pushes through with alteration without husband’s consent, he
§ Each spouse is reasonably presumed to have knowledge of can also go to court
the filing or non-filing of the other spouse • Par. 1 of Art. 96 includes the power to dispose, encumber & alienate (broad
• Each spouse may act individually without the consent of the other in case of treatment) & includes these powers in the general power of management &
repairs to the property administration
• Rules of co-ownership that apply to ACP: o Thus, same concept of husband’s decision prevailing & wife going to
o Repairs for preservation may be made by the will of 1 of the co- court applies when the husband decides to sell a lot jointly owned
owners, but if practicable, he should first notify his co-owner of such against the wife’s wishes
repairs • Par. 2 of Art. 96 DOES NOT include the power to dispose, encumber & alienate
o Art. 489, CC: Expenses to improve or embellish the thing shall be (limited by law)
decided by the co-owners the thing shall be decided by the co-owners
o Art. 491, CC: None of the spouses can make alterations on a thing Effect of Alienation & Encumbrance
owned in common w/o the consent of the other, even if benefits from • ACP – the merger into a single ownership of the separate properties of the H &
all result therefrom W acquired before & during marriage
§ Art. 94(2), FC: If the alteration redounds to the benefit of the • Any disposition by one spouse of community properties in ACP, completely
family, ACP will be liable for the expenses incurred, w/c without the knowledge & consent of the other spouse, is null & void.
implies that the alteration is valid o Prior to FC, such a contract would be voidable only
o NOTE: Rules of co-ownership apply only in a suppletory character o No prescriptive period as such contract is null & void
§ In cases of conflict between co-ownership provisions & FC • HOWEVER, there are cases when a 3rd party purchaser is protected by law
provisions, FC will prevail o Example: If a TCT for a piece of real estate states that the person
o Example: H & W are governed by ACP. named therein is single, when he is in fact married & governed by
§ If H repairs the roof of the house to prevent leaking, he can ACP, the sale of the said property by the registered owner to the 3rd
do so without the consent of W. person (an innocent purchaser-for-value) who in good faith relies on
§ If H decides to alter the appearance of the roof to make it the official annotation, CANNOT be voided
more beautiful, he must get the consent of W. § Purchaser-for-value in good faith could also sell the property
• If H proceeds with the alteration w/o W’s consent, to another w/o obtaining consent from anyone, unless the
only H is liable for expenses incurred, unless W buyer has been informed previously that the seller is in fact
ratifies it married
• If W does not ratify it, W can demand that the § Remedy of the aggrieved spouse: compel the erring spouse
altered roof be removed & the original roofing to account for the proceeds of the sale
returned at the expense of H § BUT if the 3rd party purchaser acts in bad faith, the contract
• HOWEVER, if the alteration redounds to the benefit can be voided
of the family, like if it prevents the roof from • Wife’s right to nullify covers the entire contract & not just her share of the
completely decaying, the alteration, even without property
W’s consent, would be valid & the ACP will be • Husband can also seek relief if wife’s decision was implemented
liable for debts incurred because of the alteration o He can file an injunction suit to stop the implementation of the
o If ordinary rules of co-ownership applied, contract for having been entered into by the wife also in his name
the alteration would have been invalid without authority (contract becomes unenforceable)
even if it redounded to the benefit of the o Or file to nullify it on the grounds that it is against law & public policy
family
• In case of disagreement, husband’s decision prevails Effect of Incapacity of one of the Spouses on Administration
o Wife can go to court for recourse within 5 years from the date of the • The other spouse may assume sole power of administration if one spouse is
contract implementing such decision incapacitated

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 o Appointment of a spouse as sole administrator shall be in a summary inofficious or if they infringe on the legitime or successional rights of another
proceeding (Art. 253, FC) if it involves a situation where the other compulsory heir (Art. 760-773, CC)
spouse is absent or separated in fact or has abandoned the other or o HOWEVER, even with the consent of the other spouse, the donor-
the consent is withheld spouse cannot make a substantial donation, whether direct or
• If the subject spouse is an “incompetent” who is in a comatose, a victim of indirect, to the consenting spouse during the marriage (Art. 87, FC)
stroke, cerebrovascular accident,, without motor or mental faculties, or other • By way of exception, either spouse may, without the consent of the other, make
such issues, the proper remedy is a JUDICIAL GUARDIANSHIP proceeding (Rule moderate gifts from the community property for charity or on occasions of
93, 1964 Revised Rules of Court); NOT a summary proceeding under the FC family rejoicing or distress
o In any event, should the administrator spouse decide to sell real o Moderation – depends on the financial situation of the spouses &
property, he must observe the procedure for the sale of the ward’s ACP
estate required of judicial guardians (Rule 95, 1964 RRC) o Ex. Husband can make occasional gifts of moderate value without
o As the administrator spouse in this case, he must perform the duties consent of the wife
of a guardian • Donations made by both spouses in favor of their common legitimate children
• Spouse who assumes administration cannot dispose or encumber property w/o for the exclusive purpose or commencing or completing a professional or
judicial approval or written consent of the incapacitated spouse vocational course or other activity for self-improvement are valid & chargeable
o Any contract or disposition, encumbrance or alienation shall be void to ACP
• Offer between 3rd party & administrator spouse becomes continuing offer if
contract is void SECTION 5. DISSOLUTION OF THE ABSOLUTE COMMUNITY REGIME
o Perfection of contract is obtained only through judicial authorization
or the written consent of the incapacitated spouse – only time Art. 99. The absolute community terminates:
contract will be effective 1) Upon the death of the other spouse
2) When there is a decree of legal separation
Art. 97. Either spouse may dispose by will of his or her interest in the community 3) When the marriage is annulled or declared void
property. 4) In case of judicial separation of property during the marriage under Art.
134 to 138.
Disposition by Will
• Will – an act whereby a person is permitted, with the formalities provided by Dissolution of the Community Property
law, to control to a certain degree the disposition of his estate to take effect • Termination of ACP does not necessarily mean termination of marriage
after his death (Art. 738, CC) o BUT the termination of the marriage simultaneously results in the
• Legitime – that part of the testator’s property which cannot be disposed of; the dissolution of the ACP
law has reserved it for COMPULSORY heirs (Art. 886, CC) • After dissolution comes liquidation & partition
• A spouse can validly dispose of his specific separate properties in a will, as long
as it does not infringe on the legitime of compulsory heirs Death of Either Spouse
o HOWEVER, as ACP is a co-ownership, the spouse can only dispose of • Civil personality is extinguished by death (Art. 42, CC)
his interest in the ACP & not a specific property belonging to the ACP o Effect of death on the rights & obligations of the deceased is
• A disposition made in a will in an interest in the community property cannot be determined by law, by contract & by will
considered a waiver of such interest in the ACP (w/c is illegal, under Art. 89, • Art. 103, FC: Upon termination of the marriage by death, the community
FC) property shall be liquidated in the same proceeding for the settlement of the
estate of the deceased
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 Legal Separation Decree (JDLS)
donations from the community property for charity or on occasions of family rejoicing or • One effect of the JDLS – dissolution & liquidation of ACP/CPG
family distress. o Offending spouse shall have no right to any share of the net profits
earned by the ACP/CPG, w/c shall be forfeited in accordance w/ the
Reason for Prohibiting Donations provisions of Art. 63(2) in relation to Art. 43(2)
• Prohibition against a gift or donation of the community property without the • Upon reconciliation, they may agree to revive the property regime (Art. 67, FC)
consent of the other is for the protection of the latter’s share from the
prodigality of a reckless or faithless spouse Annulment Decree (JDAOM)
• Donations by both spouses or with consent of the other spouse are generally • Art, 50, 2nd par.: Final judgment in JDAOM shall provide for:
valid – subject to revocation/reduction should such donations turn out to be o The liquidation, partition & distribution of the properties

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 o The custody & support of the common children 1) Spouse of the petitioner has been sentenced to a penalty
o The delivery of presumptive legitime w/c carries w/ it civil interdiction;
• ACP will be dissolved & liquidated; but if either spouse acts in bad faith, his 2) Spouse of the petitioner has been judicially declared an
share in the net profits of the ACP shall be forfeited in favor of the common absentee;
children, or of there be none, the children of the guilty spouse by a previous 3) Loss of parental authority of the spouse of the petitioner has
marriage, or in default of children, the innocent spouse (Art. 43 par. 2 in been declared by the court;13
relation to Art. 50) 4) Spouse of the petitioner has abandoned the latter or failed
to comply with his obligations to the family as provided in
Nullity Decree Art. 101;
• Generally, there is no ACP in a void marriage – property regime is under either 5) Spouse granted the power of administration in the marriage
Art. 147 or 148 settlement has abused that power;
o Art. 147 – when the man & woman are capacitated to marry live 6) At the time of the petition, the spouses have been
exclusively w/ each other w/o the benefit of marriage or under a void separated in fact for at least 1 year & reconciliation is highly
marriage improbable.
§ Liquidated in accordance with co-ownership under the Civil
Code (NOT under Art. 102, FC dealing with ACP) Liquidation After Affidavit of Reappearance
§ When only 1 of the spouses is in good faith, the share of the § When a reappearing spouse or an interested person under Art. 41 files an
party in bad faith in the co-ownership is forfeited in favor of affidavit of reappearance to terminate the 2nd marriage
their common children & descendants, each vacant share o Art. 43: Termination of 2nd marriage leads to dissolution of ACP/CPG
shall belong to the respective surviving descendants § If either spouse contracts a 2nd marriage in bad faith, his
• In the absence of descendants, share will belong share of the net profits of the ACP/CPG will be forfeited in
to innocent party favor of their common children, the children of the guilty
o Art. 148 – when a void marriage does not fall under Art. 147 spouse by a previous marriage or if there be none, the
§ Liquidated using rules of co-ownership also innocent spouse
§ Forfeiture process described in Art. 147 shall apply also,
even if both parties are in bad faith Art. 100.14 The separation in fact between husband & wife shall not affect the regime of
• EXCEPTION: Art. 40 – in case a party fails to get a JDNOM before entering into a ACP except that:
2nd marriage, the 2nd marriage also becomes void 1) The spouse who leaves the conjugal home or refuses to live therein, without
o Art. 50 - In such a case, Art. 43 par. (2), (3), (4) & (5) shall apply just cause, shall not have the right to be supported;15
§ Art. 43 (2) – dissolution of ACP & forfeiture procedure in 2) When the consent of one spouse to any transaction of the other is required by
case either spouse acts in bad faith law, judicial authorization shall be obtained in a summary proceeding;
§ Thus, in cases involving Art. 40, it is the ACP/CPG that is 3) In the absence of sufficient community property, the separate property of both
dissolved – in Valdes v. RTC, this is explained as an spouses shall be solidarily liable for the support of the family. The spouse
acknowledgment of the fact that void marriages are present shall, upon proper petition in a summary proceeding, be given judicial
inexistent from the beginning & a JDNOM is technically not authority to administer or encumber any specific separate property of the other
necessary, though the law now provides for it as a requisite spouse & use the fruits or proceeds thereof to satisfy the latter’s share.
o HOWEVER, in Nicdao Cariño v. Cariño, SC ruled that a VALID 2nd
marriage celebrated without a JDNOM for the 1st marriage is Effect of Separation in Fact
bigamous & the property regime will be co-ownership • Generally, ACP is not affected
o ACP will still be liable for all the obligations incurred by either spouse
Judicial Separation of Property (JSOP) for the benefit of the family
§ May be voluntary or involuntary o Liable for all charges provided in Art. 94
o Voluntary – parties can file their agreement for separation of property o Separate property of each spouse is still liable when ACP is
in court to obtain necessary court approval (Art. 136) insufficient for expenses incurred for the benefit of the family
§ Can only happen with cause • EXCEPTIONS to general rule are in Art. 100
§ After approval, parties can file for a revival; once revived,
however, no voluntary SOP may be granted thereafter (Art.
141[7])                                                                                                                
o Involuntary – must be for a sufficient cause & must have court
13 For (1), (2) & (3), judicial decree is all that is needed
14 Art. 100 v. Art. 101 – Art. 100 is not really abandonment; it is just the refusal of one spouse to
approval (listed in Art. 135, FC) live in the same place as the other
15 Only one that is solely addressed to the leaving spouse

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No Support encumber any specific property of the other spouse & use the income or fruits
• Spouse who leaves the conjugal home without just cause will not be entitled to thereof to satisfy the latter’s share
support16 • ONLY the present spouse is given standing by law to file the petition
o Fault must always be PROVEN o Authority granted is limited to enabling the present spouse to satisfy
o Mere fact of leaving, which cannot be presumed as culpable, when the other spouse’s share in the obligations used to support the family
there is no evidence of any fault or guilt on the part of the one who w/c should be totally paid by the ACP (had the ACP not been
separates, does not constitute a reason for annulling the right to insufficient)
support • Example: The children were able to pay their school fees because the family
• If spouse leaves for a valid cause, he shall still be supported by ACP borrowed money from a creditor. If the debt to the creditor cannot be satisfied
o ACP can be held liable for the support of the leaving spouse & for by the ACP, said creditor can go against the separate properties of the present
expenses to enable the spouse to commence or complete a spouse & the spouse who left the conjugal home
professional or vocational course, or other activity for self- o If they are separated de facto, the creditor can go against the
improvement property of both at the same time or against one of them only
o ACP is liable still for all debts & obligations incurred by the separating o If the creditor decides to go for the present spouse’s property only,
spouse that redounds to the benefit of the family the present spouse should pay the total amount to the creditor
• If spouse who left is proven to be at fault or he left without just cause, the o The present spouse can then seek reimbursement from the separate
erring spouse cannot be supported by the ACP even if he is a co-owner of the property of the spouse who left the home with respect to his share in
same the obligation
o Drastic penalty for disrupting the unity of the family o If the creditor was paid P 1,000 & the payment was obtained from the
o BUT ACP may still be held liable for expenses incurred which are for separate property of the present spouse, the present spouse can
the benefit of the family (esp. those enumerated in Art. 94) seek reimbursement of P 500 from the absent spouse by filing a
summary judicial proceeding for him to be able to administer the
Court Authorization separate properties of the absent spouse & to use the fruits &
• When the consent of the other spouse is required by law, judicial authorization proceeds thereof to pay for the reimbursement of the P 500 due to
shall be obtained in a summary manner (Art. 239-248, FC) him
• Any of the spouses, whether or not he was the one who left the home & even • The administrator can also administer or encumber the property for such a
w/o valid cause for having left, can seek judicial relief purpose
• Example: Husband left home in bad faith & w/o valid cause. However, he • Likewise, if the present spouse does not want to pay the total obligation from
needs money to have funds to pay for the school matriculation fees of a his or her property alone, he can file the said summary proceeding prior to
common child for the latter’s education, & the only way to get money is to sell payment so he would have already gotten enough fruits from the property of
the car that belongs to the ACP. In this case, the husband can seek for judicial the absent spouse to complete the payment
authorization if the innocent spouse refuses to give her consent to the sale, or
if the consent cannot be obtained Art. 101. If a spouse without just cause abandons the other or fails to comply with his or
her obligations to the family, the aggrieved spouse may petition the court for
Solidary Liability & Administration of Separate Property receivership, for JSOP or for authority to be the sole administrator of the ACP, subject to
• Art. 100(3) reiterates Art. 94 – in the absence of sufficient community property, such precautionary conditions as the court may impose.
separate property of both spouses shall be solidarily liable The obligations to the family mentioned in the preceding paragraph refer to marital,
• Art. 70 – spouses are jointly responsible for the support of the family, & the parental & property relations.
expenses of the same shall be paid from: A spouse is deemed to have abandoned the other when he or she has left the conjugal
o The community property, &, dwelling without intention of returning. The spouse who has left the conjugal dwelling for
o In the absence thereof, from the income or fruits of the separate a period of 3 months or has failed within the same period to give any information on his
properties or her whereabouts shall be prima facie presumed to have no intention of returning to
o In case of insufficiency or absence of the above, the separate the conjugal dwelling.
property of the spouses can also be used
• To enforce the above, judicial authority through summary proceedings can be Abandonment
obtained by the spouse present, which will allow him to administer or • A departure by one spouse with avowed intent never to return, followed by
prolonged absence without just cause, & without providing in the least for the
family although able to do so
                                                                                                                • Absolute cessation of marital relations, duties & rights with intention of
16 Support is to be understood as it is defined in the Family Code; thus, anything necessary for

sustenance & living, including food, clothing, transportation, etc. will be withheld in this situation perpetual separation
from the spouse who left.  
  Katrina Monica C. Gaw | Block C 2018| 51
 • Example: The husband denies admission of the wife to their conjugal dwelling 2) The debts & obligations of the absolute community shall be paid out of its
when she returns from a trip, & refusal by the husband to give his wife financial assets. In case of insufficiency of said assets, the spouses shall be solidarily
support. The physical separation of the parties & the refusal of the husband to liable for the unpaid balance with their separate properties in accordance with
support his wife is sufficient to constitute abandonment as a group for JSOP the provisions of the 2nd par. of Art. 94;
• Physical, moral & financial desertion – courts are careful in appreciating the 3) Whatever remains of the exclusive property of the spouses shall thereafter be
evidence on W/N abandonment really exists on the part of one of the spouses delivered to each of them;
o A judgment declaring JSOP when there is no true abandonment may 4) The net remainder of the properties of the absolute community shall constitute
forever shut the door to reconciliation its assets, which shall be divided equally between the husband & the wife,
• Three things abandoned spouse may petition for: unless a different proportion or division was agreed upon in the marriage
1) JSOP settlement, or unless there has been a voluntary waiver of such share as
2) Receivership provided in this Code. For purposes of computing the net profits subject to
3) Sole administration of ACP/CPG forfeiture in accordance with Art. 43 (2) & 63 (2), the said profits shall be the
• Art. 101 & 128 provide a presumption – if the spouse leaves the conjugal increase in value between the market value of the community property at the
home for 3 months or has failed within the same period to give info on his or time of the celebration of the marriage & the market value at the time of its
her whereabouts, there is a presumption that said spouse has no intention to dissolution;
return to the conjugal dwelling 5) The presumptive legitimes of the common children shall be delivered upon
partition, in accordance with Art. 51;
Failure to Comply with Family Obligations 6) Unless otherwise agreed upon by the parties, in the partition of the properties,
• Reliefs in Art. 101 apply ONLY IF one of the spouses fail to comply with his the conjugal dwelling & the lot on which it is situated shall be adjudicated to
marital obligations to the family (marital, parental, property relationship) the spouse with whom the majority of the children choose to remain. Children
below the age of 7 are deemed to have chosen the mother, unless the court
• Example: if a designated spouse abuses his administration, any of the reliefs
has decided otherwise. In case there is no such majority, the court shall decide,
provided in Art. 101 can be availed of
taking into consideration the best interests of the child.
o BUT mere refusal or failure of the administrator of the property to
inform the other spouse of the progress of the family business does
Liquidation Procedure
not constitute abuse
§ Not enough that the husband performs acts prejudicial to • Dissolution of the ACP occurs upon the happening of events listed in Art. 99
the wife • Generally, Art. 102 details the manner by which ACP shall be settled after or
§ Not sufficient that he performs acts injurious to the during dissolution
partnership if it is just the result of insufficient or negligent o In a voluntary JSOP, the liquidation may instead be governed by the
administration agreement of the parties, so long as the court approved the same
o Abuse – willful & utter disregard of the interest of the partnership,
evidenced by repetition of deliberate acts &/or omissions prejudicial Step 1: Inventory
to the latter • All properties or assets at the time of the dissolution must be inventoried,
• BUT TAKE NOTE: Art. 101 & 128 use the words “fails to comply” – if the itemized & valued; includes:
negligence or inefficiency is not isolated, but so gross & constantly done o The ACP property
without any effort or only with a token effort to improve, reliefs in Art. 101 & o The separate properties of the spouses
128 may be availed of by the aggrieved spouse • It is an error to determine the amount to be divided by adding up the profits
o IF it is shown that this failure to comply is the result of psychological which were made each year by the community’s continuance & saying that the
incapacity to perform the marital obligations, w/c existed at the time result thereof is that amount
of the marriage, the marriage can be considered void under Art. 36 • In the appraisal of the properties, it is the market value or, in default thereof,
• If the abandonment without just cause is for more than 1 year, another remedy the assessed value at the time of liquidation that must be taken into account
is filling legal separation under Art. 55(10). o NOT the purchase value
• The process of liquidation may take some time; if the proceedings take a long
SEC. 6. LIQUIDATION OF THE ACP ASSETS & LIABILITIES time & the values suffer some alterations, there is nothing to prevent a new
valuation when the last stage is reached (i.e. the actual division or partition) so
Art. 102. Upon dissolution of the absolute community regime, the ff. procedure shall long as ALL the properties are newly appraised in reference to the same period
apply: of time
1) An inventory shall be prepared, listing separately all the properties of the o There is no law or doctrine that a prior appraisal is conclusive upon
absolute community & the exclusive properties of each spouse; the parties & the courts

Step 2: Payment of Debts

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 • After inventory, all debts of ACP must be paid Computation: Increase in MV of the community property at the time of
o
o Includes obligations in Art. 94 the celebration of marriage & MV at the time of its dissolution
o HOWEVER, under Art. 94 (9), payments made by the ACP due to the • In case marriage is void & falls under Art. 147/148 & only 1 of the parties is in
insufficiency of the separate property of the debtor spouse for the ff. good faith, share of bad faith spouse17 shall be forfeited in favor of their
are to be considered advances to be deducted from the share of the common children
debtor-spouse upon liquidation of the ACP: o In case of default of, or waiver by any or all of the common children or
1) Ante-nuptial debts which have not redounded to the benefit of their descendants, each vacant share shall belong to the respective
the family surviving descendants; in the absence of descendants, the innocent
2) The support of illegitimate of the debtor-spouse party
3) Liabilities incurred by debtor spouse by reason of crime or quasi- o In all cases, forfeiture takes place upon the termination of the
delict cohabitation
• In case of the insufficiency of the ACP, the spouses are solidarily liable for the • In void marriages under Art. 40, 52 & 53, the forfeiture rule in case of
unpaid balance with their separate properties dissolution of ACP (not the rules on void marriages) shall apply

Step 3: Delivery of Exclusive Properties Delivery of Presumptive Legitime

• After payment of the debts of the ACP (including debts paid for by the exclusive • Delivered only after the finality of the JDAOM (Art. 45) or of the nullity of a
properties of the spouses), the next step is to deliver whatever remains of the subsequent void marriage under Art. 40, 52, 53, as stated in Art. 51.
EXCLUSIVE PROPERTIES of the spouses to each of them; refers to: • Delivery of presumptive legitime NEED NOT BE MADE in case of a JDNOM other
o Properties stipulated in the marriage settlement as separate (Art. 91) than a subsequent void marriage due to non-observance of Art. 40.
o Three exclusions referred to in Art. 92: • The children or their guardian, or the trustee of their property may ask for the
1) Property acquired during the marriage by gratuitous title by either enforcement of the judgment in accordance with the last par. of Art. 51.
spouse, & the fruits & income thereof, unless it is expressly o Made via a summary judicial proceeding under Art. 253.
provided by the donor, testator or grantor that they shall form • Value of presumptive legitime – computed as of the date of final judgment
part of the ACP o Shall be delivered in cash, property or sound securities, unless the
2) Property for personal & exclusive use of either spouse, excluding parties, by mutual agreement judicially approved, had already
jewelry provided for such matters (Art. 51)
3) Property acquired before the marriage by either spouse who has
legitimate descendants from a former marriage, & the fruits & Art. 103. Upon the termination of the marriage by death, the community property shall
income of said property 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
Step 4: Partition of Net Assets community property either judicially or extra-judicially within 1 year from the death of the
• Equal division of the net assets deceased spouse. If upon the lapse of said period, no liquidation is made, any
o Net assets = net remainder of the community property after disposition or encumbrance involving the community property of the terminated
undertaking the 1st 3 steps marriage shall be void.
o Interest of the parties is limited to these net assets Should the surviving spouse contract a subsequent marriage without compliance with
• Unless a liquidation has been made, it is IMPOSSIBLE to say W/N there will be the foregoing requirements, a mandatory regime of complete separation of property shall
a net remainder to be divided between the properties govern the property relations of the subsequent marriage.
• Equal sharing shall not apply if a different proportion is agreed upon in the
marriage settlement UNLESS there is a voluntary waiver of such share as Void Sales under Art. 103
provided in the FC (but waiver must be valid) • A sale of community property is void automatically if:
o If waiver is made during subsistence of ACP, such waiver is invalid or 1. It is sold without the liquidation of the community property after 1 year
ineffective (Art. 89, FC) following the death of one of the spouses
o Valid waivers only occur upon JSOP or after the marriage has been 2. It is sold with liquidation of the community property, but while the
dissolved or annulled liquidation process is not yet complete
§ Must be contained in a public instrument (Art. 89, par. 2)
• In case of JDAOM & JSOP, ACP shall be dissolved & liquidated Liquidation Upon Death
o If either spouse acts in bad faith, his share in the net profits of the
conjugal property shall be forfeited in favor of the common children,                                                                                                                
the children of the guilty spouse by a previous marriage, or the 17 Note the difference: generally, when a marriage is declared void & a party is in bad faith, said
innocent spouse party’s entire share in the co-ownership is forfeited, whereas in JDAOM/JSOP & Art. 40, only the
share in the profits is forfeited
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 • Sec. 2, Rule 73 of the Rules of Court: when a marriage is dissolved by the the general interest of the community, & possess, in addition, full
death of the H/W, the community property shall be inventoried, administered & ownership of the share, w/c they may alienate, convey or mortgage,
liquidated, & the debts thereof paid, in the estate or intestate proceedings of w/c share will not be certain until the community ceases
the deceased spouse • As co-owner, the spouse or heirs can undertake any act of dominion over their
o If both spouses have died, the conjugal partnership shall be interest, but not over a specific concrete property
liquidated in the testate or intestate proceedings of either o Art. 493, CC: Each co-owner shall have the full ownership of his part &
• If the decedent spouse left no will & no debts, & the heirs are all of age or the the fruits & benefits pertaining thereto, & he may therefore alienate,
minors are represented by their judicial legal or legal representatives, duly assign or mortgage it, although the effect of the alienation or
authorized for the purpose, parties may, without securing letters of mortgage shall be limited to the portion allotted to him in the division
administration from the court, divide the estate among themselves as they see upon the termination of the co-ownership
fit by means of a public instrument filed in the office of the register of deeds • Prior to liquidation & partition, the interest of an heir in the estate of the
o Should they disagree, they may do so in an ordinary action for deceased person may be attached for purposes of execution, even if the estate
partition is in the process of settlement before the courts
o If there is only 1 heir, he may adjudicate to himself the entire estate o Rule 57, 1997 Rules of Civil Procedure: one of the properties that can
by means of an affidavit filed in the office of the registrar of deeds be attached for purposes of execution is the “interest of the party
• If upon the lapse of the 1-year period from the death of one of the spouses, no against whom attachment is issued in property belonging to the
liquidation is made, any disposition or encumbrance involving the community estate of the decedent, whether as heir, legatee or devisee by serving
property of the terminated marriage shall be void the executor or administrator or other personal representative of the
o Reason: upon death of a spouse, only the interest to the property & decedent with a copy of the writ & notice that said interest is
not any physical & definite property is vested on the heirs attached.”
§ If there are creditors, the interest will only best after the o The right of participation in the estate & the lands thereof may be
payment of the debts of the decedent attached & sold even if the value of the heir’s share is indeterminable
§ It is only after liquidation & partition when specific before the final liquidation of the estate
properties are definitely & physically determined that a sale o HOWEVER, the attachment is subject to the administration of the
of such allotted property can be made estate – administrator retains control over all the properties & will still
§ Hence, although after the death of the decedent, the heirs have the power to sell them, if necessary, for the payment of the
can sell, waive or alienate their INTEREST in the inherited debts of the deceased
property, they cannot sell a specific property as the same • It is only AFTER LIQUIDATION that definable property can be claimed &
can only be determined after liquidation & partition adjudged to them from the remainder of their properties after satisfaction of
ALL the obligations which the community properties must pay
Nature of Interest of Heirs Prior to Liquidation o Specific, concrete properties CANNOT BE DONATED by any co-heir
• Art. 103 & 130 are similar (ACP & CPG); explanation here is valid for both prior to liquidation & partition
• While the spouses have an interest in the ACP/CPG, the spouses cannot claim • CASE: Anderson v. Perkins – The administrator of the deceased spouse sought
any definite property at the time when the ACP/CPG is still in existence to sell certain properties allegedly owned by the deceased spouse. SC issued
• Upon the death of one spouse, the right of the heirs vest an order stopping the sale, because the widow claims that the properties are
o The right of succession of a person are transmitted from the moment either part of the CPG or completely owned by herself, & at the time the sale
of death was made, no proceedings had yet been taken or started to segregate the
o Thus, if the deceased is survived by a spouse & compulsory heirs (like alleged exclusive property from the mass of the estate left by the deceased. SC
the legitimate children), the ACP/CPG (w/c was dissolved by the said that the issue of ownership must first be resolved through liquidation or an
death of the spouse) evolves into a co-ownership between the agreement reached between the widow & the administrator as to which
surviving spouse & the kids properties she would not mind being sold to preserve their value. At this point,
o Example: If the surviving wife & three of her kids divide a property, the sale is premature.
she gets ½ of the property & her kids get a share as well, so that:
§ Wife gets 5/8 = ½ + 1/8 Claim Against the Estate
§ Children get 1/8 each • Upon the death of any of the spouses, the community property is
o Each co-owner owns the whole, & over it he exercises rights of dissolved/terminated
dominion, but at the same time he is the owner of a share o No complaint for the collection of indebtedness chargeable to the
§ Until the division is effected, such share cannot be community property may be brought against the surviving spouse
concretely determined unless the surviving spouse has committed himself to be solidarily
o Heirs may enjoy & dispose of the common property w/o any limitation liable for the claim against the community property
other than that they should not, in the exercise of their right, prejudice
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 o If the claim is brought against the surviving spouse who did not = P15,000 P7,500 for the 2nd marriage
commit himself to solidary liability & a judgment is rendered directing Scenario 2: If the durations are not Solution
the surviving spouse to pay the obligation, the judgment is VOID equal but the actual assets in each -Heirs of 1st marriage get a share of 2/5
o All debts chargeable to community property which has already been particular marriage is unknown (2 out of 5 years) of the P15,000 =
dissolved must be claimed & paid in the settlement of estate -1st marriage lasted for 2 years; 2nd P6,000
proceedings of the deceased spouse marriage lasted for 3 years -Heirs of 2nd marriage get a share of 3/5
• Reason: upon the death of one spouse, powers of administration of the -FMV of inventoried assets at the time (3 out of 5 years) of the P15,000 =
surviving spouse ceases & is passed on to the administrator appointed by the of liquidation = P15,000 P9,000
court having jurisdiction over the settlement of the estate
o Surviving spouse is not even a de facto administrator Scenario 3: If the durations are Solution
o Conveyances made by him of any property prior to the liquidation of equal, they cancel each other out & the -Heirs of 1st marriage get a share of 1/3
the mass of the community property is VOID prorating will be based on the amount (P1,000 out of P3,000) of P15,000 =
of the known assets in each particular P5,000
Mandatory Complete Separation of Property marriage -Heirs of 2nd marriage get a share of 2/3
• Art. 103 & 130’s last paragraphs are identical -FMV of inventoried assets = P15,000 (P2,000 out of P3,000) of 15,000 =
o Apply when 1st marriage is terminated by one spouse’s death & not -Value of the 1st marriage’s assets = P10,000
due to JDNOM/JDAOM P1,000
o If the surviving spouse validly marries again w/o liquidation of the -Value of the 2nd marriage’s assets =
properties of the previous marriage, the subsequent marriage will be P2,000
governed by complete separation of property automatically Scenario 4: Durations of each Solution
§ Only exception to the rule that, if there is no stipulation in a marriage are different & the assets of -Heirs of 1st marriage get 2/5 (2 out of 5
settlement, ACP governs the marriage each marriage are equal & known years) of P15,000 = P6,000
• Intended to prevent confusion of the properties of the 1st & 2nd marriage -FMV of inventoried assets = P15,000 -Heirs of 2nd marriage get 3/5 (3 out of 5
• If prior to the 2nd marriage & w/o liquidation of the assets of the 1st marriage, -Each marriage has an identical P5,000 years) = P9,000
the parties execute a settlement, the settlement is void for being against the worth of assets each
law -Duration of 1st marriage is 2 years NOTE: Same effect as Scenario 2
-Duration of 2nd marriage is 3 years
Art. 104. Whenever the liquidation of the community properties of 2 or more marriages Scenario 5: Durations of each Solution
contracted by the same person prior to the effectivity of the Family Code is carried out marriage are different, the amount of -(Duration of marriage x Assets of
simultaneously, the respective capital, fruits & income of each community shall be assets of each marriage are known, & marriage), & then prorate this amount
determined upon such proof as may be considered according to the rules of evidence. In the amount of the assets to be -Heirs of 1st marriage =
case of doubt as to which community the existing properties belong, the same shall be inventoried at the time of the (2 years x P1,000)/(5 years + P3,000) =
divided between & among the different communities in proportion to the capital & liquidation has been ascertained 2/8 of P15,000 = P3,750
duration of each. -Duration of 1st marriage is 2 years, -Heirs of 2nd marriage =
with assets of P1,000 (3 years x P2,000)/(5 years + P3,000) =
Simultaneous Liquidation -Duration of 2nd marriage is 3 years, 6/8 = P11,250
• Refers to at least 2 marriages contracted prior to August 3, 1988 with assets of P2,000
• Involves a situation where the community properties of each marriage are to be
liquidated simultaneously CHAPTER 4: CONJUGAL PARTNERSHIP OF GAINS
• Determination of the inventoried properties, including their fruits & income,
depends upon the proofs presented by the contending claimants in accordance SEC. 1. GENERAL PROVISIONS
w/ the rules of evidence
• In case of doubt, the properties will be divided between or among the different Art. 105. In case the future spouses agree in the marriage settlements that the regime of
communities in proportion to the CAPITAL & DURATION of each CPG shall govern their property relations during marriage, the provisions of this Chapter
• 5 foreseeable scenarios (assuming there are 2 marriages): shall be of suppletory application.
The provisions of this Chapter shall also apply to CPG already established between the
spouses before the effectivity of this Code without prejudice to the vested rights already
Scenario 1: 2 marriages are equal in Solution
acquired in accordance with the Civil Code or other laws as provided in Art. 256.
duration & assets of each marriage are -Equal duration = divide P15,000 equally
unknown between the heirs of each marriage
Art. 106. Under the regime of CPG, the husband & wife place in a common fund the
-Fair market value at time of liquidation -P7,500 for the heirs of the 1st marriage &
proceeds, products, fruits & income from their separate properties & those acquired by
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either or both spouses through their efforts or by chance, & upon dissolution of the o Art. 1807, CC: Every partner must account to the partnership for any
marriage or of the partnership, the net gains or benefits obtained by both spouses shall benefit, & hold as trustee for it any profits derived by him w/o the
be divided equally between them, unless otherwise agreed in the marriage settlements. consent of the other partner from any transaction connected with the
formation, conduct, liquidation of the partnership or from any use by
Conjugal Partnership of Gains him or her of its property
• Spouses place in a common fund the: o Art. 1818, CC: Without the consent of the other partner, a partner
1) Fruits of their separate properties cannot assign the partnership property in trust for creditors or on the
2) Income from their separate work or industry assignee’s promise to pay the debts of the partnership, confess a
• Fruits of paraphernal properties (separate properties of one of the spouses) judgment, enter into a compromise concerning a partnership claim or
form part of the assets of the CPG & are subject to the payment of the debts & liability, submit a partnership claim or liability to arbitration &
expenses of the spouses, but not to the payment of the personal obligation of renounce a claim of the partnership. No act of a partner in
the other spouse, unless it be proved that such obligations were productive of contravention of a restriction on authority shall bind the partnership
some benefit to the family to persons having knowledge of the restriction.
• “Effort” – an activity or undertaking w/c may or may not be rewarded o Art. 1822, CC: Where, by any wrongful act or omission of any partner
• “Chance” – activities like gambling or betting acting in the ordinary course of the business of the partnership or
• No unilateral declaration by one spouse can change the character of a CPG with authority of his co-partner, loss or injury is caused to any person,
o CPG is determined by law & not by the will of one of the spouses not being a partner in the partnership, or any penalty is incurred, the
partnership shall be liable therefor to the same extent as the partner
• Proof of acquisition of the property during the marriage suffices to render the
so acting or omitting to act.
statutory presumption of conjugality
• Dissolution of marriage – the net gains or benefits obtained shall be divided
CASE (Carandang v. Heirs of Quirino A. De Guzman)
equally between the spouses, unless they stipulated otherwise in their
On the application of rules of partnership on CPG
settlement
Facts: The right of one spouse to bring an action was assailed on the ground that the
other spouse should have also been made a party to the action.
Art. 107. The rules provided in Art. 88 & 89 shall also apply to CPG.
Held: Art. 1811, CC states: “A partner is a co-owner with the other partners of specific
partnership property.” As the spouses are both co-owners of their conjugal properties,
When CPG Commences (Art. 88)
each spouse may separately bring an action for the recovery thereof. Pursuant to Art.
• At the precise moment the marriage ceremony is celebrated 487, CC, any one of the co-owners may bring an action, any kind of action, for the
• What is considered is the hour & not the date of the marriage recovery of the co-owned properties. Thus, only one of the co-owners, namely, the co-
owner who filed the suit for recovery, is an indispensible party thereto. The other co-
Prohibition of Waiver (Art. 89) owners are not indispensible parties, as complete relief can be accorded in the suit even
o No waiver of rights, interests, shares & effects of the CPG can be made during without their participation. The suit cannot be dismissed because the other spouse was
the marriage except upon JSOP not made a party to the action.
o To avoid undue pressure & influence upon the weaker spouse
SECTION 2. EXCLUSIVE PROPERTY OF EACH SPOUSE
Art. 108. The CPG 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. Art. 109. The ff. shall be the exclusive property of each spouse:
1) That which is brought to the marriage as his or her own;
Special Type of Partnership 2) That which each acquires during the marriage by gratuitous title;
• ACP = rules of co-ownership apply in a suppletory manner 3) That which is acquired by right of redemption, by barter or by exchange with
• CPG = governed by rules on the contract of partnership in all that are not in property belonging to only one of the spouses; &
conflict with what is expressly determined in this Chapter or by the spouses in 4) That which is purchased with exclusive money of the wife or of the husband.
their settlements
• In case of conflicts between CC & FC regarding CPG, the FC prevails Properties Brought Into the Marriage
• Some rules on partnership that could also apply in CPG: • CPG – all properties brought into the marriage by the parties belong to each of
o Art. 1799, CC: Any stipulation w/c excludes the partners from any them exclusively
share of the profits & losses of the partnership is void o CPG does not produce the merger of the properties of each spouse
o Art. 1811, CC: A partner is a co-owner w/ his other partner of specific • Spouses can exercise all rights of dominion over their own exclusive properties
partnership property o Said properties cannot be encumbered, alienated nor disposed of by
the other spouse without the consent of the owner-spouse

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 o Nature of the property as separate shall remain unless the contrary is spouses shall be solidarily liable for the unpaid balance with their
provided by positive & convincing evidence separate properties (Art. 121[2])
• CASE (Del Mundo v. CA) - There must be positive & convincing evidence that an
exclusive property is actually a part of the CPG; the admission or Property Acquired by Gratuitous Title
acknowledgment of one person that the money used to purchase a property • Anything received by each spouse from any source by way of an act of liberality
came from the other spouse serves as evidence against the party making the of the giver belongs exclusively to the spouse-recipient & not to the CPG
admission or his heirs o Includes moderate gifts given by one spouse to another during family
o Facts: A man sold to Isidra a lot while Isidra was still single, sometime occasions
in 1920. Years later, when Isidra was already married, a deed of sale o Honorariums as appreciation for services rendered are also
was executed by Isidra for the sale, already verbally made, in 1920. considered voluntary donations
Now, the heirs of Agripino, Isidra’s husband, claim that the property in o Property acquired by way of succession (lucrative titles) – whether or
the deed of sale is part of the CPG of the spouses. not acquired before or after marriage
o Held: The property belongs exclusively to Isidra, absent any clear & • Fruits & income of the property acquired by gratuitous title are considered part
positive evidence that the property actually belongs to the CPG. This of the CPG
is made clearer by the fact that Agripino had signed in the deed of o As opposed to ACP – fruits & income of gratuitous property are
sale that Isidra had purchased the property using her own money & considered exclusive property (Art. 92[1])
that it was hers. This declaration is of the highest evidentiary value. At Redemption, Barter & Exchange
this point, Agripino is in estoppel to deny his declaration. Also, where • Redemption – the right of a debtor whose real property has been foreclosed
a husband is made a party to an act of purchase of immovable upon & sold to reclaim said property if they are able to come up with the money
property made in the name of his wife, which recited that the to repay the amount of the debt
purchase was made with the paraphernal property, neither he nor his o Property shall belong to the spouse who has the right to redeem,
heirs can be permitted to go behind the deed & contest the wife’s regardless of W/N he uses personal funds
title; furthermore, any declaration to the contrary made by the wife, or o When conjugal funds are used to effect the redemption, the spouse
that of her child, cannot anymore change the character of the making the redemption through the fund shall be held liable to the
property in question. CPG for reimbursement of the amount used to redeem his exclusive
• If the property is asserted as separate property & a title has been issued under property
the name of the one asserting it, & acts have been undertaken clearly § CPG shall have a lien for the amount paid by it
indicating that the property is separately owned without prompt opposition o If there is no right of redemption belonging to either of the spouses,
from the adverse party who knew of the acts of dominion, the latter party whoever buys something using his own funds shall exclusively own
cannot belatedly claim the conjugal nature of the property what was purchased
• If one of the spouses, previous to the marriage, purchases a property, but it is • Right of redemption is not the same as the right of a successor-in-interest in
only during the marriage the owner-spouse registers the property but together cases of execution of judgment
with the other spouse as co-owner, said property is STILL the exclusive property o CASE: Rosete v. Provincial Sheriff of Zambales – When 4 parcels of
of the spouse who bought it by his exclusive funds prior to the marriage land owned by the CPG were executed upon & sold to answer for the
o The registration during the marriage only creates a TRUST indemnity due to the heirs of a murder victim & 2 parcels of land were
o The property must be restored to the real owner-spouse upon redeemed by the convict’s wife using money given to her by her father
liquidation & the sheriff had executed in her favor the corresponding deed of
• If the title under consideration is a free patent which is only granted to repurchase, it was held that the 2 parcels of land the wife redeemed
occupants for their continued occupation & cultivation, SC has held that, had cannot be the subject of another execution to satisfy the balance of
the land been acquired by the joint efforts of the spouses, the patent should the indemnity, because the wife did not acquire the property on
have so indicated; but the patent grants it to the wife only behalf of her husband, but by right of redemption as successor-in-
o It is presumed that the husband is not a co-owner & that the wife interest; the property thus became the exclusive property of the wife
acquired it when she was still single & cannot be the property of the judgment debtor anymore
o It is considered the wife’s exclusive property • In the absence of proof that the right of redemption pertained to any of the
• Exclusive properties brought into the marriage are principally used to: spouses, the property involved, or the rights arising therefrom, must be
o Pay personal debts not redounding to the benefit of the family, presumed to form part of the CPG
contracted by the owner-spouse before the marriage • Property acquired by exchange made by exchange made by one of the spouse
o Pay fines & indemnities imposed upon him using his exclusive property shall remain separate property of said spouse
o Support of the illegitimate children of the owner-spouse • Barter – limited to goods
o In the event that the assets of the CPG are insufficient to pay the
obligations of the partnership upon the liquidation of the same, the
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 If the separate property of a spouse is used as part of the purchase
o Art. 112. The alienation of any exclusive property of a spouse administered by the other
price of a new property in addition to the conjugal funds spent for said automatically terminates the administration over such property & the proceeds of the
purchase, property is considered conjugal. alienation shall be turned over to the owner-spouse.
o CASE: Abella de Diaz v. Erlander S. Galinger, Inc. – The wife had an
automobile prior to her marriage with her husband. The spouses then Applicability
traded in the old car for a new car, adding some money from the • Art. 111 used to say that only the spouse of legal age could take control of the
conjugal funds as part of the purchase price of the new car. The new property, but such is rendered superfluous since the age of emancipation & the
car is considered conjugal, & not the separate property of the wife. marrying age is now 18
• Provision on barter, exchange & redemption has no counterpart in ACP
Termination of Administration
Property Purchased with the Exclusive Money of Either Spouse • Art. 127 – In cases where the spouses are separated in fact, the spouse
• Belongs to the spouse who purchased it present shall, upon petition in a summary proceeding, be given authority to
• HOWEVER, when property is purchased using the exclusive money of one administer or encumber any specific property of the other spouse & use the
spouse but the title is taken in the spouses’ joint names, the circumstances will fruits or proceeds to satisfy the latter’s share, in the event that the spouses are
determine W/N it shall result in a gift from the spouse whose money was spent, held solidarily liable for a CPG obligation
or a trust in favor of such spouse o Judicial authority given to the present spouse to administer the
• Also no counterpart provision in ACP property serves as a limitation to Art. 112
§ Owner-spouse, who is a party to the summary proceeding,
Art. 110. The spouses retain the ownership, possession, administration & enjoyment of cannot revoke the judicially approved administration of the
their exclusive properties. present spouse over his specific property by the mere
Either spouse may, during the marriage, transfer the administration of his or her expediency of alienating said property
exclusive property to the other by means of a public instrument, which shall be recorded § Even if the administrator-spouse or the court approves of a
in the registry of property in the place where the property is located. sale made by the owner-spouse of said property, the admin-
spouse or court can ask or order that a portion of the
Administration of Exclusive Properties proceeds there be made the payment of the owner-spouse’s
• Administration includes: share in the solidary liability
o Entering into contracts regarding the use of the property
o Engaging in litigation Art. 113. Property donated or left by will to the spouses, jointly & with designation of
o Collection of fruits, profits & income arising from the separate determinate shares, shall pertain to the donee-spouse as his or her own exclusive
property property, & in the absence of designation, share & share alike19, without prejudice to the
• Owner-spouse may transfer administration to other spouse right of accretion when proper.
o Despite transfer, owner-spouse may still donate, encumber or
otherwise alienate the property Art. 114. If the donations are onerous, the amount of the charges shall be borne by the
• Owner-spouse may also transfer administration to a stranger, even w/o exclusive property of the donee-spouse, whenever they have been advanced by the CPG.
consent of the other spouse
Property Donated or Left by Will to Spouses
• CASE: Naguit v. CA – The exclusive property of the wife was sold by the sheriff
for the satisfaction of a court decision finding her husband liable for a personal • A donor or testator may donate or provide in a will that a certain property will
obligation. The wife filed a separate action to annul the sale, which was jointly belong to the spouses
permitted by SC, as the wife’s exclusive property was wrongfully levied upon. In o The donor may likewise designate the respective share of each
such a case, the wife is deemed “a stranger to the action wherein the writ of spouse, &, in the absence thereof, share & share alike
execution was issued & is therefore justified in bringing an independent action • Property of donation will be considered separate property of the spouses
to vindicate her right of ownership.”
Accretion in Case of Donation
Art. 111. Either may mortgage, encumber, alienate or otherwise dispose of his spouse18 • Accretion – incorporation or addition of property to another property
or her exclusive property, without the consent of the other spouse, & appear alone in • General rule in joint donation – one could not accept independently of his co-
court to litigate with regard to the same. donee, for there is no right of accretion unless expressly provided EXCEPT when
the joint donation is made in favor of husband & wife

                                                                                                               
                                                                                                                19 Refers to the equal division of a benefit from an estate; in this case, split equally between the
18 As amended by RA6908 spouses
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 o Donor can provide that there is no right of accretion between even Nature of Pensions, Annuities, Gratuities
husband & wife if he so desires (Art. 753, CC) • Whether these are separate depend upon how they were obtained & the
• Example: A valid donation is given to the husband & wife jointly, where the circumstances of the case
donor provided that ¼ of the property will go to the wife & ¾ will belong to the • Generally, a gratuity is an act of pure liberality, acquired by lucrative title
husband • CASE: Mendoza v. Dizon – Any amount given by the government because of
o Each of them shall own the portions given to them previous work as provincial auditor is a gratuity & is separate property
o If the wife does not accept her part of the donation, accretion will set • HOWEVER, an annuity is NOT a gratuity if the recipient is entitled to it as a
in favor of her husband & he will own all of the property donated as matter of right
his separate property o Example: Law states that teachers, principals & supervisors whose
o BUT if the donor provides in that there will be no right of accretion, positions are not clerical or casual & who, at the time of their
the husband will only get the ¾ granted to him in the donation retirement, have rendered 25 years of government service, shall be
o If there is no designation of shares, the same rules will apply entitled to a retirement on annuity
• HOWEVER, if the designation of donations is not of determinate shares but of § If a teacher complies with all the above requisites, such
determinate properties, like a house or a car, accretion will not apply government teacher is entitled as a matter of right to said
annuity; it is, thus, not a gratuity
Accretion in Case of Property Left by Will o Given the example above, annuities are part of the CPG
• If the property is left by will & for accretion to apply, the husband & wife should • Pensions – compensation for services previously rendered for which full &
be called to the same inheritance, or to the same portion thereof, pro indiviso adequate compensation was not received at the time of the rendition of the
(not divided) & that one of the spouses thus called (1) dies before the testator, service
or (2) renounces the inheritance, or (3) be incapacitated to receive it (Art. o It is pay withheld to induce long continued & faithful service
1016, CC) o Public benefit accrues in 2 ways:
• The words “one-half each” or “in equal shares” or any other w/c, though § Encouraging competent employees to remain in the service
designation an aliquot part, do not identify it by such description as shall make § Retiring from the service those who have become
each heir the exclusive owner of the determinate property, shall not exclude incapacitated from performing the duties as well as they
the right of accretion (Art. 1017, CC) might be performed by younger men
o Such words will not mean that the inheritance is not pro indiviso o Pensions are NOT considered gratuities or donations
• Example: If the husband & wife were validly given a property in a will which o When there is no liberality on the part of the government, & the award
states that ¼ belongs to the wife & ¾ to the husband, they shall own their is composed of mere accumulated savings or deductions earned
respective shares separately during marriage, this would be a pension & thus is part of CPG
o Designation of this proportionate sharing does not make the • Insurance
properties specific; inheritance is still pro indiviso o CASE: Martinez v. Moran – A husband took out an endowment life
o If the husband dies before the testator, or renounces the inheritance insurance policy on his life payable as directed by will & the premiums
or is incapacitated to receive it, the wife will get the share of her thereon were paid by communal funds. In his will, he made the
husband by right of accretion proceeds payable to his own estate. SC ruled that the proceeds were
o BUT if testator gives to the husband & wife school buildings which he community estate, ½ of which belong to the wife.
owns, providing that the one in Manila is the husband’s & the one in o CASE: In re Stan’s Estate – A testator, after marriage, took out an
Cebu is the wife’s, the right of accretion will not apply, as the insurance policy on which he paid the premiums of his salary
inheritance is NOT pro indiviso (remember that income & fruits made during marriage are part of the
CPG). The insurance money was held as community property, ½ of
Payment Using Conjugal Funds which the wife was entitled to as survivor.
• If conjugal funds are used to pay for debts attached to an onerous donation, o CASE: BPI v. Posadas – This case occurred prior to the Family Code.
the donee-spouse will reimburse the CPG but the property remains his The life insurance taken out by the decease spouse was made
exclusive property payable to the estate of the deceased. However, SC ruled that the
o Donated property is the separate property of the debtor-spouse proceeds of said insurance would still be considered conjugal
• Taxes & expenses for mere preservation of the separate property of either property if the life insurance policy is paid out of conjugal funds.
spouse during the marriage is chargeable to the CPG (Art. 121[5]) § HOWEVER, If the policy were partly paid by conjugal funds &
party by separate funds, the proceeds are owned by the CPG
Art. 115. Retirement benefits, pensions, annuities, gratuities, usufructs & similar & the separate property in proportion to the amount of
benefits shall be governed by the rules on gratuitous or onerous acquisitions as may be contribution
proper in each case. § BUT, under the FC, for a property to become the separate
property of one of the spouses, it must be EXCLUSIVELY
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 paid out from the separate funds of said spouse (Art. • Registration of the property is also not proof of acquisition, because the
109[4]) property could have been acquired while the owner was single, & registered
§ If the BPI case were decided under the FC, the proceeds when he was already married
would be considered conjugal, but the spouse who paid • Example of when the conjugal presumption has been rebutted
partly using his separate property will be reimbursed by the o CASE: Laperal v. Katigbak – SC ruled that the conjugal presumption
CPG had been rebutted even if the property was acquired during the
o CASE: Berciles v. GSIS – Retirement premiums are conjugal, if there is marriage because: (1) the deed was in the name of the wife, (2) at the
no proof that the premiums were paid from the exclusive funds of the time of its purchase, the husband admittedly could not afford to buy
deceased spouse the land with his salary, (3) the wife believably stated that the
o HOWEVER, if a beneficiary is named in the life insurance policy, the purchase price was furnished by her mother & (5) it was established
proceeds of the same are to be paid to said beneficiary that it was a practice of the wife’s parents to provide their children
o CASE: Vda. De Consanguera v. GSIS – GSIS retirement was held to be with money to purchase realties for investment
primarily intended for the benefit of the employee in his old age. If the • When the property is registered in the names of both spouses, the presumption
employee reaches the age of retirement, he gets the retirement that it is conjugal arises
benefits even to the exclusion of the beneficiary named in his o HOWEVER it can still be shown that it actually belongs to one spouse,
application for retirement insurance. even if both their names appear in the title
§ The beneficiary listed can only claim the proceeds of the o The placing of both names is like the placing of trust by the owner-
retirement if the employee dies before retirement spouse to his other spouse as a trustee
§ If the employee fails to state a beneficiary, the benefits will o THUS, it is but fair that on liquidation if the partnership, the trust
accrue to his estate & will be given to his legal heirs in should be recognized & enforced, so that the real ownership of the
accordance with the law (same as with life insurance in property may be established
general) § Principle: A trustee who takes a Torrens title in his name
cannot repudiate the trust by relying on the registration –
SEC. 3. CONJUGAL PARTNERSHIP PROPERTY one of the well-known limitations upon the finality of a
decree
Art. 116. All property acquired during the marriage, whether the acquisition appears to § In other words, if the spouse who is not the owner-spouse
have been made, contracted or registered in the name of one or both spouses, is survives the owner-spouse, he must justly designate as
presumed to be conjugal unless the contrary is provided. exclusive the property of the owner-spouse, even if the title
contains both their names, as the same was merely held in
When Presumption is Applicable trust by the non-owner spouse.
• GENENERALLY, when the property is proven to have been acquired during the • For so long as the property is acquired during the marriage, presumption of
marriage, it is presumed to be conjugal property regardless of whose name is conjugal property applies even if they live separately
on the title o Evidence must be clear to overcome presumption
o Presumption must be overturned by clear, convincing evidence to the o Controlling factor: the source of the money utilized in the purchase
contrary • CASE: Belcodero v. CA – The husband brought the property in installments &
o Register of deeds containing the name of just one person is not thereafter left his family to bigamously marry another woman. When the
enough if it is proven that the purchase was made during the property was acquired, he registered it under the name of the other woman. SC
marriage held that the property is part of the CPG of the 1st marriage, as the presumption
• CASE: Jocson v. CA – The party who invokes this presumption must first prove that it was paid exclusively from husband’s own property was not convincingly
that the property in controversy was acquired during the marriage rebutted.
o PROOF of acquisition during the coverture is a condition sine qua non • CASE: Plata v. Yatco – The conveyance of the property of the wife to a 3rd
for the operation of the presumption in favor of conjugal ownership person & its reconvenyance to her several months afterward DOES NOT
o If there is no showing as the WHEN the property in question was TRANSFORM said property into a conjugal property, in the absence of proof
acquired, the fact that the title is in the wife’s name only is that the money in the reconvenyance came from conjugal funds.
DETERMINATIVE • Presumption of conjugality attaches when a property is proven to have been
• It has also been held that an inscription in a TCT that says, “X married to Y” is acquired during marriage even if the property is registered under the name of
merely descriptive of civil status & does not necessarily prove that the property one or both of the spouses
was acquired by the party prior to marriage; thus it is not proof that the o Proofs like tax declarations in the name of one of the spouses
property is conjugal obtained during marriage is not evidence of acquisition & hence is not
sufficient to give rise to the presumption that the property is conjugal

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Art. 117. The following are conjugal partnership properties: catching anything; thus, the work is not always commensurate with
1) Those acquired by onerous title during the marriage at the expense of the the result
common fund, whether the acquisition be for the partnership, or for only one of
the spouses; Fruits & Earnings from Properties
2) Those obtained from the labor, industry, work or profession of either or both of • Fruits of the common property are part of CPG
the spouses; • ALSO, net fruits of exclusive property belong to CPG
3) The fruits, natural, industrial or civil, due or received during the marriage from o Net fruits = (Gross fruits - expenses of administration of said separate
the common property, as well as the net fruits from the exclusive property of property)
each spouse;
4) The share of either spouse on the hidden treasure which the law awards to the Hidden Treasure
finder or the owner of the property where the treasure is found; • Share of either spouse in the hidden treasure w/c the law awards to the finder
5) Those acquired through occupation such as fishing or hunting; or owner of the property where the treasure is found is part of CPG
6) Livestock existing upon the dissolution of the partnership in excess of the • Hidden treasure – artifacts or objects w/c have undergone transformation from
number of each kind brought to the marriage by either spouse; their original raw state (e.g. earrings, necklaces, bracelets)
7) Those which are acquired by chance, such as winning from gambling or betting. o Art. 439, CC: Any hidden & unknown deposit of money, jewelry, or
However, such losses therefrom shall be borne exclusively by the loser-spouse. other precious objects, the lawful ownership of w/c does not appear
• Gold nuggets, precious stones in their raw state, oil & the like are NOT
General Rule treasures
• Generally, everything the spouses acquires during the marriage is CPG, unless o Art. 519, CC – “mining claims & rights & other matters concerning
it is an advance to either spouse or it was bought with the exclusive property of minerals & mineral lands are governed by special laws”
either spouse
Livestock
When does Ownership Vest? • Livestock that is part of CPG = (The number of each kind brought into the
• Upon dissolution marriage – Those existing of said kind upon dissolution of the partnership)
• When the thing/property is fully paid for • If, at the start of the marriage, there are 40 cows, and as a result of marriage,
there are 60 cows, 20 cows will be part of the CPG
Acquisition by Onerous Title from Common Fund
• Whatever is acquired with money of the CPG belongs thereto & forms part Chance
thereof • Income acquired by chance is part of CPG
o This is true even if the acquisition be for the partnership or for only • Losses from gambling or betting shall be borne exclusively by the loser-spouse
one of the spouses o Spouse who engaged in the activity parted with a valuable
o Follows the logic that whatever is acquired exclusively using separate consideration
property of one of the spouses belongs to said spouse
• BUT where a third person gives a spouse a ticket for free, & the ticket won
• Damages granted by the courts in favor of any of the spouses arising from a P1M, such winning will be considered income &, therefore, shall belong to the
contract solely financed by the CPG & breached by a 3rd party belongs to the CPG
CPG
• NIRC defines the “gross income” of a person as including prizes & winnings
• Damages arising from illegal detention of the exclusive property of any of the derived from whatever source
spouses shall pertain to the CPG IF such detention deprived the partnership of
the use & earnings of the same Art. 118. Property bought on installments paid partly from exclusive funds of either or
• HOWEVER, where damages are awarded to one of the spouses as a result of both spouse & partly from conjugal funds belongs to the buyer or buyers if full ownership
physical injuries inflicted by a 3rd party, the damages belong exclusively to the was vested before the marriage & to the conjugal partnership if such ownership was
injured spouse vested during the marriage. In either case, any amount advanced by the partnership or
o Where the wife was permanently deformed in a car accident due to by either or both spouses shall be reimbursed by the owner or owners upon liquidation o
the negligence of the driver, the damages belong exclusively to her the partnership.
Property Acquired through Industry, Labor & Profession & Through Occupation Installment Purchases
• Difference between Art. 117(2) & (5) • Situation: an installment was initiated prior to the marriage & ended during the
o Art. 117(2) – Industry or work assures sure earnings marriage, & paid partly by exclusive funds of one spouse & partly by the CPG
o Art. 117(5) – Occupations, like fishing or hunting, involve an element • Ownership – determined by the time when the title is vested
of chance since one can be in the sea or forest for a long time without

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 o If the title vested before the marriage ceremony – belongs to the
spouse who bought it exclusively, subject to reimbursement to the Payment of Credit in Favor of Spouse
CPG by the owner-spouse • Where one spouse has a credit payable in installments or, in any case, a credit
§ Belongs to properties exempted under Art. 109(1) which will be fully paid during the marriage – all payments made on the
o If the title vested after the marriage ceremony/during the marriage – principal during the marriage belongs exclusively to the spouse who owns the
belongs to the CPG, subject to reimbursement by CPG to the spouse credit
who paid partially • Interest on the principal falling due during marriage – belongs to the CPG
• Example: The Friar Lands Act No. 1120 states that the title to the land passes o Interest is considered a fruit derived from a particular property, & is
to the purchaser the moment the 1st installment is paid & a certificate of sale is included under Art. 117(3)
issued. Thus, if the wife bought a parcel of friar land & paid the 1st installment o When counting the interest w/c belongs to the CPG, consider only the
prior to the marriage, the land is her exclusive property even if funds from the PAYMENTS made DURING marriage to determine the capital &
CPG were used to pay for the land too, because the title was vested upon interest of said payments
payment of the 1st installment
• CASE: Javellanos v. CA – A contract to sell or conditional sale of a parcel of land Art. 120. The ownership of improvements, whether for utility or adornment, made on the
by installment stated that the ownership to said property would best only upon separate property of the spouses at the expense of the partnership or through the acts
the payment of the last installment. A man began paying for the parcel of land or efforts of either or both spouses shall pertain to the conjugal partnership, or to the
in his 1st marriage using partly the CPG of the 1st marriage & partly his own original owner-spouse, subject to the ff. rules:
money, but the last installment was paid using funds from the 2nd marriage. SC When the cost of improvement made by the conjugal partnership & any resulting
ruled that the parcel of land belonged to the CPG of the 2nd marriage, though increase in value are more than the value of the property at the time of the
reimbursements should be given to the 1st marriage. improvement, the entire property of one of the spouses shall belong to the conjugal
• Law does not provide for a situation where the property was bought during the partnership, subject to reimbursement of the value of the property of the owner-spouse
marriage & the purchase was partly funded by the exclusive money of either or at the time of improvement; otherwise, said property shall be retained in ownership by
both of the spouses & partly by the CPG; there are 2 views to this: the owner-spouse, likewise subject to reimbursement of the cost of the improvement.
o View 1 – CASE: Javellana v. CA – when a property acquired during In either case, the ownership of the entire property shall be vested upon reimbursement,
marriage is partly paid by exclusive funds of a spouse & partly by the which shall be made at the time of the liquidation of the conjugal partnership.
CPG, the property belongs to both the partly-paying spouse & the CPG,
in proportion to the contributions of each Source of Funds for Improvements
o View 2 – Sta. Maria – Properties bought partly by exclusive funds of • When the value of the improvement & any resulting increase in value is
either or both spouses & partly by the CPG during marriage should BIGGER than the value of the separate property at the time of the improvement
belong to the CPG, subject to reimbursement to the partly-paying o The entire property of one of the spouses shall belong to the CPG
spouse o BUT ownership shall vest only upon reimbursement at the time of the
§ Supported by Art. 109(4), which provides that property liquidation of the CPG
purchased w/ the exclusive property of one spouse is § Proof of the source of the funds & the values at the time of
separate property; hence if it is bought partly through CPG & construction are needed to determine the character of the
partly exclusively by one spouse, it cannot be said to belong improvements
“exclusively” to the partly-paying spouse; therefore, the • CASE: Ferrer v. Ferrer – A husband, prior to his death, sold his lot; there was
property bought is to be considered conjugal improvement made on said lot that was paid out of the conjugal funds. Later,
when the husband had already died, the wife sought reimbursement of her half
• Reimbursement Upon Liquidation of Partnership of the sale from the buyer of the property, using Art. 120 to support her claim.
o Reimbursement for the partial payment will occur only upon SC ruled, however, that Art. 120 does not give a cause of action on the part of
liquidation of the CPG a surviving spouse to claim from subsequent buyers of the property of the
§ Reasoning: there can be no absolute sharing until after deceased husband. Art. 120 only allows claims from the husband if the
liquidation husband is still the owner of the lot upon liquidation
o It is only upon liquidation of the partnership that the share of each
spouse will be known Usufructuary
• When an owner allows persons to reside in property he owns without paying
Art. 119. Whenever an amount or credit payment within a period of time belongs to one rent
of the spouses, the sums which may be collected during the marriage in partial o CPG gets usufructuary rights over properties in Art. 120 even when
payments or by installments on the principal shall be the exclusive property of the the CPG is not yet the owner of said lot & improvements
spouse. However, interests falling during the marriage on the principal shall belong to
the conjugal partnership.
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 • Prior to reimbursement at the time of liquidation, the CPG may use both the 4) All taxes, liens, charges & expenses, including major or minor repairs upon the
land & the improvement [owned by the spouses separately], but it does so not conjugal partnership property;
as the owner, but as the usufruct 5) All taxes & expenses for mere preservation made during the marriage upon the
o The ownership of the land remains the same until the value of the separate property of either spouse;
land is paid, & this payment can only be demanded upon the 6) Expenses to enable either spouse to commence or complete a profession,
liquidation of the partnership vocational or other activity for self-improvement;
• Prior to liquidation, the owner-spouse still owns her separate property &, 7) Antenuptial debts of either spouse insofar as they redounded to the benefit of
therefore, the same cannot be levied upon to satisfy conjugal debts the family;
o UNLESS the conjugal funds are insufficient to pay the debts, in w/c 8) The value of what is donated or promised by both spouses in favor of their
case the separate property can be held solidarily liable common legitimate children for the sole purpose of commencing or completing
• In Art. 120, ownership of the land is retained by the original owner until said a professional or vocational course or other activity for self-improvement; &
owner is paid/reimbursed the value of the lot; the mere construction of a 9) Expenses of litigation between the spouses unless the suit is found to be
building over the land using common funds does not automatically convey the groundless.
ownership of the owner’s land to the CPG. If the CPG is insufficient to cover the foregoing liabilities, the spouses shall be solidarily
o The erection of a building is simply an exercise of the right of usufruct liable for the unpaid balance with their separate properties.
pertaining to the CPG over the wife’s land
o Thus, the CPG will not pay rent – if it did, the CPG would essentially Charges & Obligations
just be paying itself • Liabilities in the CPG enumerated in Art. 121 are largely the same as those
o If the building were leased to a 3rd person, instead of the building enumerated In Art. 94 for APC
being erected, the rent would go into the CPG o Support of illegitimate children + payment of fines & indemnities
• If no reimbursement is made upon liquidation, the ownership will be retained arising from crimes & quasi-delicts are incorporated in Art. 122
by the owner-spouse, subject to reimbursement of the cost of improvement o Explanations are the same as Art. 94
• If the property of the owner-spouse is worth more than the improvement, the • Liabilities shall be chargeable only when CPG benefits from the same
entire improvement will belong to the owner-spouse, subject to reimbursement • Burden of proof that a debt was contracted for the benefit of the CPG lies with
at the time of liquidation in favor of the CPG the creditor
o Burden of proof to show the benefit to the CPG falls on the person
Computation claiming that the transaction redounded to the benefit of the family
• Worth of building (improvement) – P50,000 o Benefit must be a direct result of the obligation
• Worth of land – P100,000 o Cannot be a by-product or spin-off of the obligation or loan itself
• Total worth of building & lot – P150,000 • Indirect benefits that might accrue to a husband who signs a surety or
• The value of the house & lot increased due to the improvement by P30,000 guarantee for his employer-corporation (instead of on behalf of his family) does
not constitute a liability that redounds to the benefit of the family
• Worth after increase in value – P180,000
o Even if this supposedly prolongs his employment or increases the
• Cost of the building + the increase in worth = P80,000
value of the shares of stock of some members of the family in the
• Cost of land (P100,000) > Cost of the building + increase in worth (P80,000) corporation
o Thus, the property belongs to the owner-spouse o Creditors in such an instance cannot go against the CPG of the
o This is a case of ordinary accession husband to satisfy the surety agreement
o At the time of liquidation, the owner-spouse must reimburse the worth • Example: Bare allegations of a creditor, without adducing evidence, that a loan
of the building (P50,000) to the CPG
to finance housing obtained by one of the spouses redounds to the benefit of
the family cannot claim from the conjugal assets
SEC. 4. CHARGES UPON & OBLIGATIONS OF THE CONJUGAL PARTNERSHIP
• CASE: Cobb-Perez v. Lantin – Debts incurred for a commercial enterprise for
gain or in the exercise of the industry or profession by the husband, as thhe
Art. 121. The conjugal partnership shall be liable for:
administrator of the CPG property & which contributes to the family, cannot be
1) The support of the spouses, their common children, & the legitimate children of
deemed to be his exclusive debts
either spouse; however, the support of illegitimate children shall be governed
o CPG is liable for family business debts or for the exercise of
by the provisions of this Code on Support;
profession of one or both of the spouses
2) All debts & obligations contracted during the marriage by the designated
administrator-spouse for the benefit of the CPG, or by both spouses or by one • A husband acting as guarantor or surety for another in an indemnity agreement
of them with the consent of the other; does not act for the benefit of the CPG, as the benefit is clearly intended for the
3) Debts & obligations contracted by either spouse without the consent of the 3rd party
other to the extent that the family may have been benefited;

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 • CASE: Ayala Investment & Dev’t Co v. CA – SC tackled the instances when the the whole amount, similar to that of a solidary liability, but the amount is
debts incurred by one spouse alone are considered to benefit the CPG chargeable against their CPG.
1) If the husband himself is the principal obligor in the contract, as when
he directly received the money or services used in or for his business Solidary Obligation
or profession o If CPG is insufficient to cover debts in Art. 121, creditors may demand payment
o The contract falls within the term “obligations for the benefit from either or any of the spouses w/ their respective separate properties
of the CPG” o The spouse who makes the payment may claim from his spouse only
o Benefit of the family must be apparent at the time of the the share w/c corresponds to him, with interest for the payment
signing of the contract already due
o It must be shown from the very nature of the contract of o If the payment is made before the debt is due, no interest in the
loans or services, the family stands to benefit from the loan intervening period may be demanded
or services rendered • The separate properties of the H & W may also be solidarily liable if both of them
o Failure of business or profession or lack of success is expressly made themselves liable in a solidary manner in any obligation
immaterial contracted by them for the benefit of the ACP/CPG
o Family business obligations – considered to redound to the
benefit of the family Insolvency of Spouses
2) If the husband acted as the surety or the guarantor & the money or • So long as CPG subsists, its property cannot be among the assets taken
services are given to another person or entity possession of by the assignee to satisfy the debts of an insolvent debtor, except
o The contract cannot, by itself, be categorized as falling in insofar as the debts redounded to the benefit of the family (Art. 2238, CC)
obligations for the benefit of the CPG • Procedure for insolvency proceedings
o Principal benefit is to debtor, not to family o An assignee is appointed, who represents the creditors & the insolvent,
o Proof must be presented to establish benefit redounding to CPG whether voluntary or involuntary
o Mere signing as surety or guarantor does not make said person o Assignee takes all the properties of the insolvent & obtains title thereto
automatically engaged in the profession of said suretyship or o He speedily converts the estate, real & personal, into money to settle the
guaranty, such that any loss arising from the same is chargeable debts
to CPG • Civil Code: husband is the administrator of the CPG
§ HOWEVER, if both spouses sign the agreement, the CPG is o 2nd sentence of Art. 2388, CC: If the husband is insolvent, the
liable administration of the CPG/ACP may be transferred to the wife or to a 3rd
person other than the assignee
Obligation of Husband & Wife • Family Code: husband & wife jointly administer; 2nd sentence of Art. 2388 still
• CPG is liable for all obligations contracted by the husband & wife applies
o Even debts made without consent of one of the spouses for the benefit of o The non-insolvent wife can be made the sole administrator of the ACP/CPG
the family is counted
o When a wife signs as a mere witness in a contract, it is already a sign of Art. 122. The payment of personal debts contracted by the husband or the wife before or
implied consent to a contract of sale executed by her husband during the marriage shall not be charged to the conjugal partnership except insofar as
• If a creditor has a claim against H & W of P1,000, CPG shall be liable if: they have redounded to the benefit of the family.
o Both H & W contracted it Neither shall the fines & indemnities imposed upon them be charged to the partnership.
o Only one of them contracted, but it benefited their family However, the payment of the personal debts contracted by either spouse before the
• In enforcing the claim against H & W, it is NOT correct for the creditor to consider marriage, that of fines & indemnities imposed upon them, as well as the support of
them jointly liable illegitimate children of either spouse, may be enforced against the partnership assets
o He cannot claim P500 from the separate property of H & P500 from the after the responsibilities enumerated in the preceding Art. have been covered, if the
separate property of W spouse who is bound should have no exclusive property or it should be insufficient; but
o He cannot consider both H & W strictly solidarily liable such that he at the time of the liquidation of the partnership, such spouse shall be charged for what
collects the entire indebtedness from the separate property of either H/W has been paid for the purposes above-mentioned.
o Creditor MUST enforce the liability on the CPG, not on the separate
properties of H & W individually Debts, Fines, Pecuniary Indemnities Incurred Before or During Marriage
§ Separate properties of H & W can only be held liable if the CPG is • Any debts that redound to the benefit of the family are charged to CPG
insufficient to pay off the indebtedness o Includes medical & hospital expenses of the spouses
• CASE: Carandong v. Heirs of Quirino A. De Guzman – When a claim is made • For 3rd par. of Art. 122 to apply, it must be shown that:
against spouses, they are being impleaded in their capacity as representatives of o The debts listed in Art. 121 are COVERED
the CPG & NOT as independent debtors. Hence, either of them may be sued for
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 o The debtor-spouse has insufficient or no exclusive properties to pay o Husband’s share – P50,000
the debt involved o Wife’s share – P50,000
o The one who invokes this prevision (the creditor) must establish that o Amount advanced for personal debt of husband – P10,000
the requisites for its applicability are obtaining o (Husband’s share – amount advanced) = P40,000
• Fines & pecuniary indemnities imposed upon either spouse may be charged o The P10,000 will go to the partnership assets, which shall be divided
against the CPG even before the liquidation of the partnership again between the spouses
o Payment must comply with Art. 122, but should not be applied with so o Caguioa states that considering the personal debts as partnership
much rigidity as to negate the claims of aggrieved creditors assets will not change the computation
o SC – Art. 122’s wording shows that it is meant to be applied even • Take note of Art. 129
before the liquidation of the CPG o After the inventory, amounts advanced by the CPG in payment of
§ However, when it comes to civil fines that come with personal debts & obligations of either spouse shall be credited to the
criminal convictions, proofs required should not be of the CPG as an asset thereof
most exacting kind. Ordinary credibility shall suffice. o Only then can the net remainder be determined
o Despite these steps, the result will basically be the same; the only
Difference from the ACP Rules difference would be the procedure (Justice Caguioa)
• CPG – liable for the personal debts, fines & indemnities of either spouse only
o AFTER payment of all obligations in Art. 121 & Art. 123. Whatever may be lost during the marriage in any game of chance, or in betting,
o When the separate property of the debtor is insufficient or inexistent sweepstakes or any other kind of gambling whether permitted or prohibited by law, shall
o In CPG, there is no duty to make advance payments for the crimes or be borne by the loser & shall not be charged to the CPG but any winnings therefrom shall
quasi-delict of a spouse form part of the CPG.
o THUS, a spouse can make a 3rd party claim against the execution of
his separate property by a creditor of the debtor-spouse to protect his Game of Chance
separate property, particularly when a debt is NOT chargeable on the • CPG must not be put to useless risk through highly speculative activities of any
CPG kind, even those that are legal
• ACP – such liabilities may be charged against the community only • Winnings – go to CPG (considered as income of the separate property/CPG)
o In case the separate property of the spouse is insufficient • Losses – charged to separate property of risking spouse
o Reason: In ACP, spouses may have less or no separate property
o In ACP, liabilities incurred by a spouse by reason of a crime or quasi- SEC. 5. ADMINISTRATION OF THE CONJUGAL PARTNERSHIP PROPERTY
delict are chargeable to the ACP in the absence or insufficiency of
exclusive property of the erring spouse Art. 124. The administration & enjoyment of the conjugal partnership shall belong to
both spouses jointly. In case of disagreement, the husband’s decision shall prevail,
Personal Obligations of Spouses During the Marriage subject to recourse to the court by the wife for a proper remedy, which must be availed
• Personal obligations which do not redound to the benefit of the family or do not of within 5 years from the date of the contract implementing such decision.
have the consent of the other spouse shall be borne solely by the debtor- In the event that one spouse is incapacitated or is otherwise unable to participate in the
spouse & his separate property administration of the conjugal properties, the other spouse may assume sole power of
• Where a spouse incurs an obligation for his sole benefit, it cannot be charged administration. These powers do not include the powers of disposition or encumbrance
to the CPG which must have the authority of the court or the written consent of the other spouse. In
o For example, if a husband leaves the conjugal home & his family, & the absence of such authority or consent, any disposition or encumbrance shall be void.
incurs an obligation at that time, he cannot claim that said obligation However, the transaction shall be construed as a continuing offer on the part of the
redounded to the benefit of the family consenting spouse & the 3rd person, & may be perfected as a binding contract upon
• Personal obligations incurred DURING marriage that do not redound to the acceptance by the other spouse or authorization by the court before the offer is withdraw
benefit of the family are not given by law the same advance-reimbursement by either or both offerors.
mechanism in Art. 122
o Art. 122 only discusses personal obligations contracted by either Art. 125. Neither spouse may donate any conjugal partnership property without the
spouse BEFORE the marriage that do not redound to the benefit of consent of the other. However, either spouse may, without the consent of the other
the family spouse, make moderate donations for charity or on the occasions of a family rejoicing or
o CPG thus has no duty to make a payment in advance for the liability family in distress.
of the debtor-spouse which shall be reimbursed or paid at the time of
the liquidation Identity of Provisions
Computation • Art. 124 & 125 are exactly the same as Art. 96 & 98 for ACP
• Justice Caguioa computation:
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 • If the marriage settlement states that CPG will govern a marriage, but that the o Also, when the husband’s consent is needed to participate in the
sharing will not be equal upon liquidation, such unequal sharing will not affect administration, sell or encumber, but he is incapacitated because he
the joint administration of the spouses during the marriage on equal footing, is absent, or he & the wife are separated in fact, or he has
unless the contrary is also provided in the settlement (also true with ACP) abandoned the other, or consent is withheld
• Conjugal properties belong equally to H & W • Judicial Guardianship Proceeding (Rule 93, 1964 Revised Rules of Court)
o Any alienation made by H w/o consent of W prejudices her insofar as o When the spouse is not merely incapacitated, but is INCOMPETENT
it includes a part or the whole of the W’s share & is, to that extent, § Comatose, suffering a stroke, w/o motor or mental faculties
invalid § In such a case, the proper remedy is the appointment of a
o However, during the marriage, the interest of each spouse is merely judicial guardian of the person, estate or both of the
inchoate – cannot be determined in definite & concrete specifications incompetent
until & after the liquidation of the same § Even if the wife becomes the sole administrator, she still
§ In cases of disposition of property by H over the objection of must also exercise the powers & duties of a guardian
W, W is given the right to file a case to nullify or annul, as § If a spouse desires to sell real property as such
the case may be, the entire contract as a whole administrator of the CPG, he must observe the Rules for the
§ If H, w/o knowledge & consent of W, sells or encumbers a sale of the ward’s estate required of judicial guardians
conjugal property, such sale is VOID • non-compliance will render any sale VOID
§ If the sale is w/ knowledge but w/o consent, such sale is § If the other spouse is an incompetent, the administrator
ANNULLABLE at the instance of the W spouse cannot obtain permission from the court to sell CPG
• W is given 5 years from the date of the contract property through a summary proceeding; such sale would be
implementing the decision of the husband to VOID
institute the case
§ In case it is an act of administration w/ knowledge but w/o SEC. 6. DISSOLUTION OF THE CPG
the consent of the wife, the contract is merely RESCISSIBLE,
at the instance of the W Art. 126. The conjugal partnership terminates:
• W is given 5 years from the implementation of the 1) Upon the death of either spouse;
contract 2) When there is a decree of legal separation;
• When the buyers know that they bought CPG property & bought it from the 3) When the marriage is annulled or is declared void; or
husband w/o the wife’s consent, the sale is totally void 4) In case of judicial separation of property during the marriage under Art. 134 &
o However, the purchase price has to be returned to the buyers w/ 138.
interest (principle of unjust enrichment)
• If one spouse is incapacitated or unable to participate in the administration of Termination of the CPG
the CPG, same rule as ACP applies • Art. 126 = same as Art. 99 for ACP
o Any alienation or encumbrance by the capacitated spouse of any • Rules of partnership apply only in a suppletory character
ACP/CPG w/o consent of the incapacitated spouse or w/o court • Upon death – reasons for believing ACP/CPG will terminate:
approval is VOID 1) When the marriage is dissolved, the cause that brought about the
o If the “contract” is later approved by the court or by the spouse, there community ceases, for the principles of an ordinary partnership are not
is no retroactive effect – contract thereby perfected is an entirely applicable to this community, w/c is governed by special rules
NEW transaction 2) In the absence of reasons that induced the legislator to establish it, the
o CASE: Spouses Antonio v. CA – A husband sold ½ of his CPG property provisions of law governing the subject should cease to have any effect for
to a 3rd party while his wife was busy working in Manila, w/o her the community of property is admissible & proper insofar as it conforms to
consent. SC declared the sale void. Also, a subsequent but unity of life, w/c terminates upon the death of either partner
questionable “amicable settlement” (w/c was really the wife signing 3) The partnership is created by law & has no object; it is unsafe to extend it
that she would no longer trespass on the property, rather than her on the pretext of tacit consent
agreeing to the sale) • Rules of partnership do not apply upon the dissolution of the CPG
o Whatever is acquired by the surviving spouse on the dissolution of the
Nature of Proceedings partnership by death or presumption of death, or for other reasons,
• Summary procedure (Title XI, FC) – apply to par. 1 of Art. 124 whether the acquisition was made by his labor, or industry, or
o Annulment of the husband’s decision in the administration & whether by onerous or lucrative title, it forms part of his capital
enjoyment of the CPG in case the husband’s decision conflicts with already
the wife’s

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 § Heirs or estate of his spouse can no longer claim a share of Art. 129. Upon the dissolution of the conjugal partnership regime, the ff. procedure shall
the property of the other spouse after the dissolution of the apply:
CPG 1) An inventory shall be prepared, listing separately all the properties of the CPG &
the exclusive properties of each spouse;
Art. 127. The separation in fact between the husband & wife shall not affect the regime 2) Amounts advanced by the CPG in payment of personal debts & obligations of
of conjugal partnership, except that: either spouse shall be credited to the conjugal partnership as an asset;
1) The spouse who leaves the conjugal home or refuses to live therein, without 3) Each spouse shall be reimbursed for the use of his or her exclusive funds in the
just cause, shall not have the right to be supported; acquisition of property or for the value of his or her exclusive property, the
2) When the consent of one spouse to any transaction of the other is required by ownership of which has been vested by law in the CPG;
law, judicial authorization shall be obtained in a summary proceeding; 4) The debts & obligations of the conjugal partnership shall be paid out of the
3) In the absence of sufficient conjugal partnership property, the separate conjugal assets. In case of insufficiency in said assets, the spouses shall be
property of both spouses shall be solidarily liable for the support of the family. solidarily liable for the unpaid balance with their separate properties, in
The spouse present shall, upon petition in a summary proceeding, be given accordance with the provisions of Art. 121, par. 2;
judicial authority to administer or encumber any specific separate property of 5) Whatever remains of the exclusive properties of the spouses shall thereafter be
the other spouse & use the fruits & income thereof to satisfy the latter’s share. delivered to each of them;
6) Unless the owner had been indemnified from whatever source, the loss or
Effect of Separation deterioration of movables used for the benefit of the family, belonging to either
• Art. 127 – same as Art. 100 for ACP spouse, even due to fortuitous event, shall be paid to said spouse from the
• Art. 127 (2) - When the consent of one spouse is required by law, judicial conjugal funds, if any;
authorization shall be obtained in a summary proceeding 7) The net remainder of the conjugal partnership properties shall constitute the
o Immaterial W/N the party is guilty; the one who unjustifiably profits, which shall be divided equally between the husband & wife, unless a
separates himself may avail of this remedy provided by law different proportion or division was agreed upon in the marriage settlements or
• Art. 127 (3) – Any debt incurred for the support of the family is a liability to the unless there has been voluntary waiver or forfeiture of such share as provided
CPG in this Code;
o Even the guilty spouse who left the home without justifiable reasons 8) The presumptive legitimes of the common children shall be delivered upon
can charge the CPG for debts incurred for the benefit of the family partition in accordance with Art. 51;
o Separation in fact does not justify the non liability of the community 9) In the partition of the properties, the conjugal dwelling & the lot on which it is
property situated shall, unless otherwise agreed upon by the parties, be adjudicated to
the spouse with whom the majority of the common children choose to remain.
Art. 128. If a spouse without just cause abandons the other or fails to comply with his or Children below the age of 7 are deemed to have chosen the mother, unless the
her obligations to the family, the aggrieved spouse may petition the court for court has decided otherwise. In case there is no such majority, the court shall
receivership, for judicial separation of property or for authority to be the sole decide, taking into consideration the best interest of the children.
administrator of the conjugal partnership property, subject to such precautionary
conditions as the court may impose. Liquidation of Partnership
The obligations to the family mentioned in the preceding paragraph refer to marital, • 3 ways to liquidate a CPG:
parental or property relations. 1) Extrajudicial settlement
A spouse is deemed to have abandoned the other when he or she has left the conjugal 2) Ordinary action of partition
dwelling without intention of returning. The spouse who has left the conjugal dwelling for 3) Intestate or testate proceedings
a period of 3 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 Step 1: Inventory
to the conjugal dwelling. • All properties or assets at the time of the dissolution must be inventoried,
itemized & valued; includes:
Abandonment o The CPG property
• Art. 128 is exactly the same as Art. 101 for ACP; same explanations also apply o The separate properties of the spouses
• Gives the aggrieved spouse, who is the co-owner of the properties, the right to • Art. 132, Rules of Court on the administration of the estate of deceased
bring an action to protect his interest & his rights EVEN BEFORE the liquidation persons shall be observed in the appraisal & sale of property of the CPG
or dissolution of the CPG/ACP • It is an error to determine the amount to be divided by adding up the profits
which were made each year by the community’s continuance & saying that the
SEC. 7. LIQUIDATION OF THE CONJUGAL PARTNERSHIP ASSETS & result thereof is that amount
LIABILITIES • In the appraisal of the properties, it is the market value or, in default thereof,
the assessed value at the time of liquidation that must be taken into account
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 o NOT the purchase value • Exclusive properties owned by either of the spouses should be returned
• The process of liquidation may take some time; if the proceedings take a long
time & the values suffer some alterations, there is nothing to prevent a new Step 6: Division of Net Remainder
valuation when the last stage is reached (i.e. the actual division or partition) so • Net remainder = the profits of the CPG property
long as ALL the properties are newly appraised in reference to the same period o Until a liquidation has been made, it is impossible to say Q/N there
of time will be a net remainder to divide between the parties
o There is no law or doctrine that a prior appraisal is conclusive upon • Sharing = equal, unless a different proportion is agreed upon in the marriage
the parties & the courts settlement OR a voluntary, valid waiver of such share
o A valid waiver can only be made upon a JSOP or after the marriage
Step 2: Credits in Favor of Partnership has been dissolved or annulled; must also be contained in a public
• Any amount advanced during the marriage by the CPG in favor of any of the instrument
spouses shall be credited to the CPG as an asset • How bad faith affects share of the bad faith spouse
o Examples: support of illegitimate child of either spouse, personal o Annulment & void under Art. 40 – forfeits his share in the net profits
debts contracted before the marriage w/c did not redound to the of the CPG in favor of the common children, the children of the guilty
benefit of the family, payment of fines or pecuniary indemnities for spouse by a previous marriage, or the innocent spouse
w/c the spouse was made liable & w/c did not redound to the benefit § Net profits = (MV of the community property at the time of
of the family, are all considered as assets (Art. 122) dissolution – MV at the time of celebration)
• Property bought by installments under Art. 118, where conjugal funds & o Legal Separation –forfeits his share in the net profits
separate funds were both used & where the property was owned separately by o Void marriage, Art. 147/148 & only 1 party is in good faith – share of
either of the spouses the bad faith spouse shall be forfeited in favor of their common
o The amount of conjugal funds used to complete the purchase is also children.
an asset to the CPG § In case of default of or waiver by any or all of the common
• Advances made by the CPG involving charges relative to onerous donations children or their descendants, each vacant share shall
made in favor of a particular spouse (Art. 114) belong to the respective surviving descendants
§ In the absence of descendants, the share will belong to the
Step 3: Reimbursement in Favor of Partnership innocent party
• If separate funds of any of the spouses are used to buy conjugal property, the § Forfeiture takes place upon termination of cohabitation
amount shall be reimbursed to the spouse
• CPG should also reimburse the spouse for the value of exclusive properties, the Step 7: Delivery of the Presumptive Legitime
ownership of w/c is vested by law in the CPG (ex. Art. 120) • Delivery of presumptive legitime can be done only after a final judgment
• CASE: In re Padilla – A building separately owned by the wife was torn down to • Computation of value of presumptive legitime & who can ask for delivery are
make way for the construction of a new building, which was owned by the CPG. under Art. 51 of FC
SC ruled that the CPG should pay the spouse for the value of the torn building • According to Art. 51, delivery is needed only in cases of:
at the time of liquidating, as the tearing down benefited the partnership 1) JD of annulment of marriage under Art. 45
o This is true even if the building torn down supposedly no longer has 2) JD of nullity of marriage falling under Art. 40
any value; its value comes with the fact that the new building was • Not delivered in cases of:
made because the old building was torn down 1) JD of legal separation
2) JD of nullity of marriage not under Art. 40, 52, 53
Step 4: Payment of Debts & Obligations of Partnership • Delivery shall also be provided for in the final judgment
• Debts & obligations of CPG (like those in Art. 121) should be paid o Children, their guardians or the trustee of their property may ask for
• Remember that under Art. 129, the reimbursement of the spouses for the enforcement of the judgment (Art. 51, last par.)
advances they made in favor of the CPG or for the value of their separate • Value of presumptive legitime of all the children is computed as of the date of
property which, by law, vested to the CPG, must be paid first before the the final judgment of the trial court, & shall be delivered in cash, property or
payment of the debts in Art. 121 sound securities, unless the parties, by mutual agreement judicially approved,
• Construction of tombstones or mausoleums & other funeral expenses are have already provided for such matters (Art. 51)
chargeable to CPG if deceased is one of the spouses (Art. 310, CC)
• In case of insufficiency of said assets, spouses shall be solidarily liable for the Conjugal Dwelling
unpaid balance with their separate properties • Unless otherwise agreed upon by the parties, in the partition of properties, the
conjugal dwelling & lot is adjudicated to the spouse with whom the majority of
Step 5: Delivery of Separate Properties the children choose to reside

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 • Children under the age of 7 are automatically presumed to have chosen their o CASE: Dael v. IAC – If 1st marriage lasted 14 years & the 2nd lasted
mother, unless the court decides otherwise 15, the share of the heirs of the 1st marriage in the inventory listed is
• If there is no majority, the court shall decide, taking into consideration the best 14/29, while those in the 2nd get 15/29. Excluded are any properties
interests of the children that definitely belong to the estate of the deceased spouse, as
inheritance from his parents (in other words, any exclusive property of
Art. 130. Upon the termination of the marriage by death, the conjugal partnership either spouse is excluded)
property shall be liquidated in the same proceeding for the settlement of the estate of • If there are 2 or more conjugal partnership properties of 2 marriages w/c have
the deceased. not yet been liquidated, the subsequent partnership cannot be liquidated w/o
If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the liquidating the prior one
conjugal partnership property either judicially or extra-judicially within 1 year from the o The reason is that the heirs of the 1st marriage could be prejudiced by
death of the deceased spouse. If upon the lapse of the 1-year period no liquidation is the dissolution of the CPG of the the 2nd marriage w/o the 1st,
made, any disposition or encumbrance involving the conjugal partnership property of the because the division, in case of doubt, should be based on the capital
terminated marriage shall be void. & duration—thus the children of the 1st marriage should also be
Should the surviving spouse contract a subsequent marriage without compliance with notified of the proceedings
the foregoing requirements, a mandatory regime of complete separation of property shall
govern the property relations of the subsequent marriage. Art. 132. The Rules of Court on the administration of estate of deceased persons shall
be observed in the appraisal & sale of property of the conjugal partnership, & other
Identity of Provisions matters which are not expressly determined in this Chapter.
• Art. 130 – Same as Art. 103 of ACP; explanations apply
• CASE: Estonia v. CA – When the TCT states the owner as married to someone Art. 133. From the common mass of property support shall be given to the surviving
but there is no proof that the property was acquired during the marriage, the spouse & to the children during the liquidation of the inventoried property & until what
property shall be considered as owned by the person stated in the certificate belongs to them is delivered; but from this shall be deducted the amount received for
despite a description that he is married to someone. It shall not be conjugal support which exceeds the fruits or rents pertaining to them.
o Statement that the owner is married in a TCT does not give rise to the
presumption of conjugality Advancement
• In case of the death of the owner, this exclusive property shall be co-owned by • Once a spouse dies, the surviving spouse & the children become co-heirs of the
the surviving spouse & his heirs estate left by the deceased
o Creditors of the surviving spouse can only attach the share or interest o They are allowed, during liquidation, to get certain amounts to
of the surviving spouse to the co-ownership & not the whole estate of support themselves, as they technically own it
the dead (that would prejudice other heirs) o Amount must at least be equivalent to the fruits or rent arising from
the share w/c they will eventually obtain after liquidation
Art. 131. Whenever the liquidation of the conjugal partnership properties of 2 or more § If what they get exceeds the fruits of their share, the excess
marriages contracted by the same person prior to the effectivity of this Code is carried shall be taken from the part of the property w/c has been
out simultaneously, the respective capital, fruits & income of each partnership shall be given to them as their separate property after liquidation
determined upon such proof as may be considered according to the rules of evidence. In o Advance of the common mass shall be paid:
case of doubt as to which partnership the existing properties belong, the same shall be 1) First, by the fruits of their respective shares
divided between & among the different partnerships in proportion to the capital & 2) If what they got exceeded the fruits of their share, the excess
duration of each. shall be taken from the part of the property w/c has been given
to them as their separate property after liquidation
Simultaneous Liquidation of CPG Constituted Prior to FC • Allowances for support to the children & the spouse of the deceased pending
• Basically the same application as that of Art. 104 liquidation are subject to collation & deductible from their share of the
• Refers to at least 2 marriages contracted prior to August 3, 1988 inheritance insofar as they exceed what they are entitled to as fruits or income
• Involves a situation where the community properties of each marriage are to be • ONLY the surviving spouse & the children are entitled to get the allowance for
liquidated simultaneously support In Art. 133
• Determination of the inventoried properties, including their fruits & income, o Other heirs, like grand children, are not included
depends upon the proofs presented by the contending claimants in accordance o Even if the children are already of age, gainfully employed or married,
w/ the rules of evidence they may still enjoy these rights
• In case of doubt, the properties will be divided between or among the different • SC has held that the expense of the maintenance & support of a widow at the
communities in proportion to the CAPITAL & DURATION of each time when the CPG had not yet been liquidated was property borne by the
administrator of the deceased husband, but the expenditure was in the nature

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 of mere advancement, to be deducted from the share pertaining to the heirs of 5) That the spouse granted the power of administration in the marriage
the widow insofar as it exceeds what they are entitled to as fruits or income settlements has abused that power;
o There must be a showing of the source from which the funds used for 6) That at the time of petition, the spouses have been separated in fact for at
the maintenance & support of the widow were derived least 1 year & reconciliation is highly improbable.
o If the amount is derived from the net income of her share, such In the cases provided in numbers (1), (2) & (3), the presentation of the final judgment
amount should not be charged against her share against the guilty or absent spouse shall be enough basis for the grant of the decree of
JSOP.
CHAPTER 5. SEPARATION OF PROPERTY OF THE SPOUSE &
ADMINISTRATION OF COMMON PROPERTY BY ONE SPOUSE DURING THE Civil Interdiction
MARRIAGE • Accessory penalty – deprives the offender, during the time of his sentence, of:
o The rights of parental authority
Art. 134. In the absence of an express declaration in the marriage settlements, the o Guardianship, either as to the person or property of any ward
separation of property between spouses during the marriage shall not take place except o Marital authority
by judicial order. Such judicial separation of property may either be voluntary or for o Right to manage his property
sufficient cause. o Right to dispose of such property by any act or conveyance inter vivos
• Final decision of the court rendered against the erring spouse embodying the
Judicial Separation of Property (JSOP) penalty of civil interdiction is enough for the court to approve JSOP
• If the husband & wife do not execute a valid marriage settlement before their
marriage, they cannot, after the marriage, alter their property regime to a Declaration of Absence
complete separation of property without judicial approval • Following rules of Art. 384 of the Civil Code, JD of absence is granted when:
o The same even if separation is by agreement of the parties (Art. 136) o 2 years have elapsed w/o any news about the absentee or since
or for sufficient cause (Art. 135) receipt of last news
• In most cases, JSOP is sought because the spouses have already separated o 5 years in case the absentee has left a person in charge of the
o In granting a JSOP, Court does not thereby accord recognition to de administration of his property
facto separation of the spouses • Art. 385, CC - Those who may file for JD of absence:
o It is for the dousing of the momentary seething of emotions o Spouse present
o Heirs instituted in a will who present an authentic copy of the same
Notes from Class o The relatives who may succeed by the law of intestacy
• When there is a JSOP, the marriage subsists o Those who may have over the property some right subordinated to the
o Separation of property becomes a property regime condition of his death
• Having a JSOP is different form having complete separation of property as your • JD of Absence shall not take effect until 6 months after its publication in a
property regime newspaper of general circulation (Art. 386, CC)
• Instances when COMPLETE separation of property (CSOP) is the regime: • Final decision is enough for the court to approve JSOP
1) When it is specified in the marriage settlement
2) When a spouse dies & the other remarries without first liquidating the Loss of Parental Authority
properties from the former marriage, the 2nd marriage is governed by • Loss of such authority over:
CSOP o The common child, whether legitimate or illegitimate, of the petitioner
3) When there is a JDPD & the other remarries without first liquidating the & the spouse of the petitioner
properties from the former marriage, the 2nd marriage is governed by o The child, whether legitimate or illegitimate, of the petitioner with
CSOP another person
4) When the spouses obtain a legal separation double-check • One of the liabilities of the ACP/CPG = support of the common children & the
legitimate children of either spouse (Art. 94[1) & 121[1])
Art. 135. Any of the ff. shall be considered sufficient cause for JSOP: • Subject to reimbursement, liabilities also include support of the illegitimate
1) That the spouse of the petitioner has been sentenced to a penalty which children, granted certain conditions (Art. 94[9] & 122)
carries with it civil interdiction; • Exposure of ACP/CPG may extend to children who may not even be related to
2) That the spouse of the petitioner has been judicially declared an absentee; one of the spouses
3) That the loss of parental authority of the spouse of the petitioner has been o In the event that loss of parental authority has been judicially decreed
decreed by the court; against a spouse
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 in Art. 101; Abandonment & Failure to Comply with the Obligations to the Family

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 o Conclusive only upon the parties thereto, & not upon 3rd persons who
Abuse of Administration are not parties to it
• Settlement may grant sole administration to either spouse
• If such spouse abuses his powers of administration, JSOP may be availed of by Art. 137. Once the separation of property has been decreed, the ACP/CPG shall be
the aggrieved spouse liquidated in conformity with this Code.
• Abuse – willful & utter disregard of the interests of the partnership, evidenced During the pendency of the proceedings for separation of property, the ACP/CPG shall
by a repetition of deliberate acts &/or omissions prejudicial to the latter pay for the support of the spouses & their children.
o Not enough that the spouse granted power of admin. does acts
prejudicial to the other spouse Liquidation
o Not sufficient that he commits acts injurious to the ACP/CPG (may • Process laid down in Art. 102 & 129 will be observed
just be negligent) o BUT the delivery of presumptive legitime need not be complied with
§ Delivery only applies in annulled marriages & those null
Separation in Fact under Art. 40
• Spouses have been separated in fact for at least 1 year at the time of the • During the pendency of the proceedings for JSOP, ACP/CPG will pay for the
petition support of the spouses & their children
• Reconciliation is highly improbably • CASE: Maquilan v. Maquilan – a partial voluntary separation of property
agreement by parties, duly approved by the court prior to JDNOM, is valid
Art. 136. The spouses may jointly file a verified petition with the court for the voluntary
dissolution of the ACP/CPG, & for the separation of their common properties. Art. 138. After dissolution of the ACP/CPG, the provision on complete separation of
All creditors of the ACP/CPG, as well as the personal creditors of the spouse, shall be property shall apply.
listed in the petition & notified of the filing thereof. The court shall take measures to
protect the creditors & other persons with pecuniary interest. Dissolution
Voluntary Separation • In JSOP, whether voluntary or involuntary, mere filing of the petition to initiate
• Before separation, there must be court approval the proceeding will not automatically dissolve the ACP/CPG
o No court approval = VOID, even if parties agree already • It is the FINALITY of the decision of the court decreeing JSOP which dissolves
• There need not be any reason for the conversion as long as the parties agree the same
o BUT if the parties state a reason & it is against public policy, the court o Only from that time that the complete separation of property starts
must reject the agreement • THUS, as to properties each of the spouses acquire during the trial, it may still
• Petition may even embody the plan or scheme as to how the properties are to form part of the ACP/CPG
be separated, which will be granted by court if it’s not against public policy o But properties acquired AFTER the decree of JSOP, the same shall
• The agreement for the division of the ACP/CPG must be equal unless: belong exclusively to either of them independently of the ACP/CPG
1) A different proportion or division has been agreed upon in the marriage
settlement or Art. 139. The petition for separation of property & the final judgment granting the same
2) There has been a valid waiver of such share (Art. 102[4] & 129[7]) shall be recorded in the proper local civil registries & registries of property.
• A valid waiver may be made upon JSOP
• Agreement for voluntary JSOP – takes effect from the time of the judicial order Art. 140. The separation of property shall not prejudice the rights previously acquired by
o NOT from the signing of the agreement by the parties creditors.
• All the creditors of the ACP/CPG & the personal creditors of the spouses shall
Rights of Creditors
be listed in the petition & notified in the filing
o Court will take measures to protect creditors & those with pecuniary • Recording in the civil registry of the petition for separation of property & the
interests final judgment
o Aids creditors in determining which properties are conjugal or
• In case one of the spouses waives his interests, any creditor of the spouse who
exclusive
made the waiver can petition to rescind the waiver to the extent of the amount
sufficient to cover the amount of the credit (Art. 89 & 107) • Creditors may petition to rescind any waivers made by a spouse to the extent of
the amount sufficient to cover the amount of the credit
• CASE: De Ugalde v. De Yasi - If the judgment by way of compromise agreement
has become final & executory, the fact that the creditors were not notified will •
not invalidate such a judgment
o A judgment on a compromise agreement has all the force & effect of Art. 141. The spouses may, in the same proceedings where separation of property was
any other judgment 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 ff. instances:

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 1)When the civil interdiction terminates; Guardian
2)When the absentee spouse reappears; • When a spouse is appointed the guardian of his spouse, he may likewise be
3)When the court, being satisfied that the spouse granted the power of constituted as the administrator of the estate of the other spouse
administration in the marriage settlements will not again abuse that power, • Since spouse is already obliged to live with & take care of his spouse
authorizes the resumption of said administration;
4) When the spouse who has left the conjugal home without a decree of legal Absentee & Civil Interdiction
separation resumes common life with the other; • Same as in Art. 135 (1) & (2)
5) When the parental authority is judicially restored to the spouse previously
deprived thereof; Fugitive from Justice
6) When the spouses who have separated in fact for at least 1 year, reconcile & • One who having committed or being accused of a crime in one jurisdiction is
resume common life; absent for any reason from that jurisdiction
7) When after voluntary dissolution of the ACP/CPG has been judicially decreed • One who flees to avoid punishment
upon the joint petition of the spouses, they agree to the revival of the former
property regime. No voluntary separation of property may thereafter be Other Persons as Guardian
granted.
• Court shall appoint a suitable person to be the administrator of the exclusive
The revival of the former property regime shall be governed by Art. 67.
property of the absent spouse if other spouse is not qualified due to:
o Incompetence
Revival of Previous Property Regime
o Conflict of Interest
• Termination of causes under Art. 135 (involuntary JSOP) constitutes grounds to o Other just cause
be able to revive the previous property regime (not automatic)
o Clearly set out in Art. 141 (1) to (6) Separation in Fact
• Where the previous property regime is separated on the basis of voluntary • Under Art. 100(3) & 127(3), separation in fact of the spouses shall not affect
JSOP, the parties can revive the same upon petition in court the ACP/CPG
o HOWEVER, no voluntary JSOP may thereafter be granted o EXCEPT: In the absence of sufficient ACP/CPG, the separate property
• But if the basis for the initial JSOP is Art. 135 (involuntary), a JSOP may of both spouses shall be solidarily liable for the support of the family
thereafter be granted again • Spouse present shall, upon petition in a summary proceeding, be given judicial
authority to administer or encumber any specific separate property of the other
Judicial Proceeding for Revival spouse & use the fruits & proceeds thereof to satisfy the latter’s share
• To revive the previous property regime, spouses must file a motion in the same
court proceeding where JSOP was decreed to revive their pre-JSOP regime CHAPTER 6: REGIME OF SEPARATION OF PROPERTY
• Agreement to revive shall be executed under oath & shall specify:
1) The properties to be contributed anew in the restored regime Art. 143. Should the future spouses agree in the marriage settlements that their property
2) Those to be retained as separate properties of each spouse relations during marriage shall be governed by the regime of separation of property, the
3) The names of all their known creditors, address & the amounts owed to provisions of this Chapter shall be suppletory.
each
• Copies of the agreement of revival & the motion for its approval shall be Suppletory Character
furnished to the creditors • For regime of complete separation of property, the parties must execute a valid
o After due hearing, the court shall protect the interest of the creditors marriage settlement prior to the marriage stipulating such regime
o Such order shall be recorded in the proper registries of property • Marriage settlement shall principally govern the regime
Art. 142. The administration of all classes of exclusive property of either spouse may be Art. 144. Separation of property may refer to present or future property or both. It may be
transferred by the court to the other spouse: total or partial. In the latter case, the property not agreed upon as separate shall pertain
1) When one spouse becomes the guardian of the other; to the absolute community.
2) When one spouse is judicially declared an absentee;
3) When one spouse is sentenced to a penalty which carries with it civil Properties Included
interdiction; or • Parties can agree on the extent of their property regime
4) When one spouse becomes a fugitive from justice & is hiding as an accused in
• Can involve present or future property or both
a criminal case.
• May be total or partial
If the other spouse is not qualified by reason of incompetence, conflict of interest, or any
o If partial, the property not agreed upon as separate shall pertain to
other just cause, the court shall appoint a suitable person as administrator.
the absolute community

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 • NOT VALID to agree in the marriage settlement that the ACP/CPG shall govern • Absence of any requisites will remove the contracting parties will remove the
their marital property relations up to a certain time (ex. 10th wedding parties from the ambit of Art. 147
anniversary), & thereafter, the separation of property regime will govern. • Void marriages that do not fall under Art. 147:
o Tantamount to dissolving the ACP/CPG by virtue of a cause not o Those who live together below 18 years of age
provided by the law o Those under Art. 37 (incest) & 38 (against public policy)
o An already married person cannot remarry without the 1st marriage
Art. 145. Each spouse shall own, dispose of, possess, administer & enjoy his or her own having been previously terminated
separate estate, without need of the consent of the other. To each spouse shall belong o 2nd marriage celebrated while the 1st is validly subsisting is bigamous
all earnings from his or her profession, business or industry, & all fruits, natural, o SUMMARY: Art. 37, 38, 35(1) & (4)
industrial or civil, due or received during the marriage from his or her separate property. • Void marriages included in Art. 147:
o Art. 36 (psychological incapacity)
Art. 146. Both spouses shall bear the family expenses in proportion to their income, or, o Art. 44 (both marriage in bad faith in relation to Art. 41, which is
in case of insufficiency or default thereof, to the current market value of their separate about presumptive death)
properties. o Art. 53 (no liquidation & recording in the registry of JDNOM)
The liability of the spouses to creditors for family expenses shall, however, be solidary. o Void marriages where there is:
§ Absence of consent
CHAPTER 7: PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE § No authority of the solemnizing officer
§ No valid marriage license
Art. 147. When a man & a woman who are capacitated to marry each other, live § No marriage ceremony
exclusively with each other as husband & wife without the benefit of marriage or under a
void marriage, their wages & salaries shall be owned by them in equal shares & the Structure of the Property Relationship under Art. 147
property acquired by both of them through their work or industry shall be governed by the 1) Salaries & wages shall be owned by them in equal shares
rules on co-ownership. 2) Property acquired by either of the spouses exclusively by his/her own fund
In the absence of proof to the contrary, property acquired while they live together shall belongs to such party, provided that there is proof that it was acquired by
be presumed to have been obtained by their joint efforts, work or industry, & shall be exclusive funds
owned by them in equal shares. For purposes o this Article, a party who did not 3) Property acquired by both parties through their work or industry will be
participate in the acquisition by the other party of any property shall be deemed to have governed by the rules of co-ownership. Either spouse may alienate in favor of
contributed jointly to the acquisition thereof if the former’s efforts consisted in the care & the other his/her share in the property
maintenance of the family & of the household. 4) Property acquired while they live together shall be presumed to have been
Neither party can encumber or dispose by acts inter vivos of his or her share in the obtained by their joint efforts, work or industry & shall be owned by them in
property acquired during cohabitation & owned in common, without the consent of the equal shares.
other, until after the termination of their cohabitation. a. A party who did not participate in the acquisition by the other party of
When only one of the parties to a void marriage is in good faith, the share of the party in any property shall be deemed to have contributed jointly in the
bad faith in the co-ownership shall be forfeited in favor of their common children. In case acquisition thereof if the former’s efforts in the household consisted
of default of or waiver by any or all of the common children or their descendants, each in the care & maintenance of the family & the household
vacant share shall belong to the respective surviving descendants. In the absence of 5) The fruits of the couple’s separate property are NOT included in the co-
descendants, each share shall belong to the innocent party. In all cases, the forfeiture ownership
shall take place upon termination of the cohabition. 6) Property acquired by any of the parties after separation shall be exclusively
owned by the party who acquired it
Informal Civil Relationship 7) Neither party can encumber or dispose by acts inter vivos of his/her share in
• Though there is technically no marital relationship between persons living the property acquired during cohabitation & owned in common, without the
together as husband & wife without the benefit of marriage, there is still an consent of the other, until after the termination of their cohabitation.
informal civil relationship between them which entitles the parties to some a. HOWEVER, either spouse may alienate in favor of the other his/her
rights share in the property co-owned
• Art. 147 & 148 – special kind of co-ownership b. BUT no one can donate or waiver any interest in the co-ownership
o Co-ownership is a form of trust & every co-owner is a trustee for the that would constitute an indirect or direct grant off gratuitous
other advantage to the other, which is void pursuant to Art. 87
• Requisites for Art. 147 – the man & woman must: 8) When only one of the parties to a void marriage is in good faith, the share of
1) Be capacitated to marry each other the party in bad faith in the co-ownership shall be forfeited in favor their
2) Live exclusively with each other as husband & wife common children.
3) Be without the benefit of marriage or under a void marriage
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 a. In case of default of or waiver by any or all of the common children or The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith.
their descendants, each vacant share shall belong to the respective
surviving descendants. Property Regime under Art. 148
b. In the absence of descendants, such share shall belong to the • If any of the requirements under Art. 147 are absent, Art. 148 shall apply
innocent party. In all cases, the forfeiture shall take upon termination • The parties may be deemed co-owners of a property acquired during the
of the cohabitation. cohabitation only upon proof that each made an actual contribution to its
acquisition
Valdes v. RTC Ruling • Without proof of actual cohabitation, ownership under Art. 147/138 cannot
• In a void marriage, the property regimes are those provided in Art. 147/148 apply
• Liquidation of the co-ownership shall be in accordance with the provisions on • The fact that the other party administered the property is irrelevant to prove co-
co-ownership under the Civil Code, as long as these do not conflict with Art. ownership
147/148 • Relationships contemplated under Art. 148:
• Art. 50, 51, 52 in relation to Art. 102/129 of the FC will NOT apply in the 1) A man & woman living together as husband & wife, without benefit of
liquidation & partition marriage, but are not capacitated to marry
o Art. 50, 51, 52 – liquidation rules for JDNOM marriages 2) An adulterous relationship even if it occurred prior to the effectivity of FC
o Art. 102/129 – liquidation procedure for ACP/CPG 3) A bigamous or polygamous marriage
• Art. 102(6) & 129(9) which provide that the conjugal home goes to whichever 4) Incestuous void marriages under Art. 37
parent the majority of the kids choose to stay with will NOT apply 5) Void marriages under Art. 38 (against public policy)
• Difference between forfeiture of shares of bad faith spouses in void marriages:
o Art. 40 in relation to Art. 43(2) & Art. 50 – The spouse in bad faith Structure of Property Regime: Limited co-ownership
forfeits the net profits of the ACP/CPG, goes to: 1) The salaries & wages are separately owned by the parties & if any of the
§ Common children spouses is married, his salary is the property of the CPG/ACP of his legitimate
§ If none, children of the guilty spouse marriage
§ If none, innocent spouse 2) Property solely acquired by funds of any of the parties belongs to such party
o Art. 147/148 applies in any other void marriage 3) Only the properties acquired by both of the parties through their actual joint
§ Art. 147 – bad faith spouse forfeits all his shares, goes to: contribution of money, property or industry shall be owned by them in common
• Common children in proportion to their respective contributions
• In case of default, or if any or all of the children or 4) The respective shares of the parties over properties owned in common are
their descendants waive their shares, each vacant presumed to be equal
share shall belong to the respective surviving a. However, proofs may be shown to prove that their contribution &
descendants respective shares are not equal
• If none, goes to the innocent party b. Without proof of actual contribution by both parties, there can be no
§ Art. 148 presumption of co-ownership & equal sharing
• If one of the parties is validly married to another, 5) The rule & presumption mentioned above shall apply to join deposits of money
his share in the co-ownership will accrue to the & evidences of credit;
ACP/CPG existing in such marriage 6) If one of the parties is validly married to another, his or her share in the co-
• If the party in bad faith is not validly married to ownership shall accrue to the ACP/CPG in such valid marriage.
another, his or her share shall be provided in a. If the party who acted in bad faith is not validly married to another, his
accordance with Art. 147 or her share shall be forfeited in the manner provided in the last
paragraph of Article 147.
Art. 148. In cases of cohabitation not falling under the preceding Art., only the properties b. The foregoing rules on forfeiture shall likewise apply even if both
acquired by both of the parties through their actual joint contribution of money, property parties are in bad faith.
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 & Case Law
corresponding shares are presumed to be equal. The same rule & presumption shall • CASE: Manila Surety & Fidelity Co., Inc. v. Teodoro – Two Filipinos procured an
apply to joint deposits of money & evidences of credit. absolute divorce abroad. One of them subsequently contracted another
If one of the parties is validly married to another, his or her share in the co-ownership marriage in Hong Kong. The remarrying spouse tried to levy the properties of
shall accrue to the ACP/CPG existing in such valid marriage. If the party who acted in bad his “spouse” from the 2nd marriage.
faith is not validly married to another, his or her share shall be forfeited in the manner o SC held that any liability of the remarrying spouse cannot be levied on
provided in the last par. off the last preceding Art. the fruits of the separate property of his new “spouse,” considering
that the said fruits were acquired by the said “spouse” prior to the
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 solemnization of the 2nd bigamous marriage & therefore such fruits o “In an adulterous relationship, no co-ownership exists between the
did not belong to spouses in the 2nd bigamous marriage. parties. It is necessary for each of the partners to prove his or her
• CASE: Juaniza v. Jose – A woman who was living in a bigamous relationship actual joint contribution to the acquisition of property in order to lay
with a married was sought to be held liable for an accident involving a vehicle claim to any portion of it. Presumptions of co-ownership & equal
driven by the bigamous husband, & where the vehicle was registered under the contribution do not apply.”
name of the husband. o So what happens to the property acquired by the 3rd person, since the
o The woman was not held liable as co-owner of the vehicle, because Austrian who sold the property technically cannot own property in the
the vehicle must be considered the conjugal property of the bigamous Philippines?
husband & his legitimate spouse. § If land is invalidly transferred to an alien who subsequently
• CASE: Belcodero v. CA – A husband bought property in installment & thereafter becomes a Filipino or transfers it to a Filipino, the flaw in the
left his family to bigamously marry another woman. The husband, after original transaction is considered cured & the title of the
successfully paying in full, then had the property named under the 2nd woman transferee is rendered valid.
he married. § In this case, the Austrian had already subsequently become
o Civil Code ruling: SC held that the property belongs to the 1st naturalized as a Filipino citizen. Thus, the defect is cured
marriage, on the strength of the provision which states that “all and he can now own the property.
property of the marriage is presumed to belong to the CPG, unless it o Compare with Matthews v. Taylor
be proved that it pertains exclusively to the husband or wife.” The • CASE: Nicdao Cariño v. Cariño – A man entered into a 2nd marriage, which was
presumption was not convincingly rebutted. held void because the man did not obtain a JDNOM for his 1st marriage.
o Family Code ruling: if the said property was bought using the actual o SC held that the 2nd marriage was bigamous, even if the 1st marriage
joint contribution of money, property or industry by both parties in the was void, much to the chagrin of Sta. Maria.
bigamous relationship, the share of the bigamous husband will o SC applied the Art. 148 property regime to the 2nd marriage, though
accrue to the ACP/CPG of his legitimate marriage. Sta. Maria believes the correct application is under Art. 50—that the
• CASE: Agapay v. Palang – Miguel & Carlina were already married (but were de 2nd marriage will be governed by ACP/CPG, because a marriage under
facto separated) when Miguel bigamously marries Erlinda on July 1973. Miguel Art. 40 is an exceptional void marriage
sold some land on May 1973, in favor of himself & Erlinda.
o Importance of this case: stresses the difference in Art. 148 of “actual Forfeiture of Shares & Bad Faith
joint contribution of money, property or industry” shall be owned by • Art. 148 states that the rule on forfeiture of shares shall likewise apply even if
them in common” as opposed to Art. 147 which states that “efforts in both parties are in bad faith.
the care & maintenance of the family & household are regarded as • Situation: A woman marries her cousin, who is already married to another
contributions to the acquisition of common property by one who has woman. Later, she marries another man. If the woman & her cousin jointly
no salary or income or work or industry.” contribute to their co-ownership living together, with both the husband & the
o SC held that, in a bigamous marriage, Art. 148 applies especially bigamous-cousin-wife contributing their salaries, the co-ownership will be
when it was never shown that one of the spouses actually contributed liquidated as follows:
to the co-ownership. In this case, Erlinda was only 20 years old at the o The share of the spouse who is obviously in bad faith shall accrue to
time of the conveyance, & Miguel 64, so it was hardly likely that the ACP/CPG of his existing valid marriage.
Erlinda would possibly be able to contribute to buying the property, o The share of the bigamous-cousin-wife who is also in bad faith will be
even if she is now engaged in a buy-and-sell business. There is thus forfeited in favor of their common children. Since she has no children
no proof that the properties were purchased through actual joint or descendants. Supposedly, the share will go to the innocent spouse.
contribution; the property thus reverts back to the CPG of Carlina & However, since there is no innocent spouse, the share of the
Miguel. bigamous-cousin-wife is retained by her.
• CASE: Borromeo v. Descallar – A title to an immovable property was registered § In this regard & for purposes of the share of the bigamous-
under the name of a Filipina wife considering her Austrian-husband, who cousin-wife only, considering that both husband & wife are
acquired & fully financed the purchase during their cohabitation, was in bad faith, they will be considered as if they were both in
constitutionally prohibited from owning land in the Philippines. However, it was good faith & the wife’s share can go to her.
then discovered that the Filipina was already married to another man, prior to
her marriage with the Austrian. The Austrian then sold the property registered TITLE V. – THE FAMILY
under the name of the wife to a 3rd person.
o SC affirmed the sale of the property to a 3rd person even if the name CHAPTER 1: THE FAMILY AS AN INSTITUTION
is under the Filipina wife, as there was convincing evidence that the
property was financed solely by the Austrian. Art. 149. The family, being the foundation of the nation, is a basic social institution which
public policy cherishes & protects. Consequently, family relations governed are by law &
  Katrina Monica C. Gaw | Block C 2018| 75
no custom, practice or agreement destructive of the family shall be recognized or given o If one of the spouses files a suit as plaintiff, the defendants in the
effect. counterclaim against the ACP/CPG can file a motion to include as a
necessary party the spouse who has not been impleaded
Paramount Importance • Also, though as a general rule the certification for non-forum shopping must be
• Art. II, Sec. 12, 1987 Constitution – sanctity of family life; basic social signed by all petitioners in a case, the signature of only one o the spouses is
institution substantial compliance with this requirement, even if both parties are
• Art. XV, 1987 Constitution – dedicated exclusively to the family petitioners
o Each spouse may be reasonably presumed to have personal
Destructive Agreements knowledge of the filing/non-filing of the action
• No custom, practice or agreement destructive of the family shall be recognized
• If the husband & wife state in an agreement that, while their marriage subsists, Art. 150. Family relations include those:
the husband can have a concubine, the agreement is void 1) Between husband and wife;
o HOWEVER, such void agreement’s only legal significance is to invoke 2) Between parents and children;
it as evidence showing “consent” to the sexual infidelity of the 3) Among other ascendants and descendants; &
husband or wife in cases of legal separation 4) Among brothers and sisters, whether of the full or half-blood.
• It is also not valid if parties stipulate that: “in consideration for a peaceful
termination of relations between the undersigned & her lawful husband,” the Art. 151. No suit between members of the same family shall prosper unless it should
parties agreed to give properties to the wife & monthly support for the children, appear from the verified complaint or petition that earnest efforts toward a compromise
so that the wife would agree to a JSOP & amendment of divorce proceedings. have been made, but that the same have failed. If it is shown that no such efforts were
o The agreement is void for being contrary to Filipino morals & public in fact made, the case must be dismissed.
policy This rule shall not apply to cases which may not be the subject of compromise under the
o The consideration for the agreement was the termination of the Civil Code.
marriage by the parties which they cannot do on their own & without
legal basis Application
• Enumeration in Art. 150 should be construed strictly – any person not included
Parties in Court Case in the enumeration is not considered by law to be within the terms of “family
• Sec. 4, Rule 3 of the 1997 Rules of Civil Procedure: “The husband & wife shall relations”
sue or be sued jointly except as provided by law.” o Example: If the suit is between a brother-in-law & a sister-in-law,
o “Jointly” – they shall be sued together “earnest efforts to seek a compromise” is not necessary, because
o When spouses are sued for the enforcement of an obligation which their relationship is not within the ambit of “family relations” as
has redounded to the benefit of the family, they are being impleaded specified by law
in their capacity as representatives of the ACP/CPG, and NOT as o Collateral relatives who are not brothers & sisters are not included in
independent debtors, such that the concept of joint or solidary liability the term “family relations”
between them does not arise • HOWEVER, a suit filed by a woman against her sister & the latter’s husband will
o Spouses are also generally the joint administrators of their ACP/CPG not need earnest efforts to compromise, since one of the parties, the sister’s
• HOWEVER, while spouses should be sued together, even just one of the husband, is not considered within the “family relations” provided by law
spouses can sue others on behalf of the ACP/CPG (Carangdang v. Heirs of • Petition must be verified
Quirino A. De Guzman) o But if it is unverified, it should not be dismissed; the court should just
o The other spouse is not an indispensible party to such a case merely require the party to have it verified
o Reasoning: the rules on co-ownership (ACP)/partnership (CPG) apply
in a suppletory character Earnest Efforts to Compromise
• Art. 111, FC: Spouses may appear alone in court if what is involved in litigation • If family relations is in the definition in Art. 150, there must be earnest efforts
is his own separate & exclusive property to compromise; without this, the suit is DISMISSIBLE
• Joint management/administration does not require that the husband & wife o Failure to exert earnest efforts in these situations is a group for a
always act together motion to dismiss (Sec. 1[j], Rule 16 of the Rules of Court of PH)
o If a debtor to the ACP/CPG is to be sued, the husband or wife alone
may file the case if the suit relates to any act of administration or Exceptions
management • Earnest efforts to compromise is not required if a stranger not of the same
• However, it is advisable that both spouses sue together for community claims family is included in the suit, as the interest of such stranger may be different
from the interest of the members of the family
o “Stranger” – not listed in Art. 150
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 • Rule also doesn’t apply to cases which may not be compromised under the Civil o A boat on water cannot constitute a family home
Code (Art. 2035): • So long as the owners (husband & wife or unmarried head of a family) or their
1) The civil status of persons beneficiaries actually reside in the premises, it is a family home as
2) The validity of a marriage or legal separation contemplated by law
3) Any grounds for legal separation • Residing in a family home is a real right
4) Future support • Occupancy – must be actual, & not just constructive (presumptive)
5) Jurisdiction of courts o One cannot claim to have occupied the premises at the time his
6) Future legitime overseer, maid, houseboy or driver lived in the same place
• Earnest efforts rule also does not apply to special proceedings o Also not valid when a man claims he is merely staying temporarily in
o Petition for settlement of estate guardianship the U.S. & his wife lives in supposed family home whenever she is
o Custody of children here, if it is just the overseer who truly permanently resides in the
o Habeas corpus home
o Only civil actions are included o Must be actually existing or real, not merely possible
• Creditors must take necessary precautions to protect their interests before
Exemption from Criminal Liability in Crimes Against Property extending credit to the spouses or the head of the family owning a home
• Art. 332, RPC: No criminal, but only civil liability, shall result from the • There is NO NEED to constitute the family home judicially or extra-judicially
commission of the crime of theft, swindling or malicious mischief committed or (previously needed in the Family Code)
caused mutually by the following persons: o All residences used as a family home as deemed constituted by
1) Spouses, ascendants & descendants or relatives by affinity in the same operation of law as of August 3 1988
line o Example: A debtor who, prior to Aug. 3 1988, never constituted his
2) The widowed spouse with respect to the property which belonged to the house judicially or extra-judicially & whose debt matured PRIOR to
deceased spouse before the same shall have passed into the possession August 3 1988, CANNOT claim that his house can no longer be
of another, & answerable to satisfy a debt because the house is a family home & is
3) Brothers & sisters & brothers-in-law & sisters-in-law, if living together thus exempt from execution
• Not applicable to strangers who participated in the commission of the crime § If the debt matures prior to the effectivity of the FC, one
must constitute one’s family home judicially or extra-
Running of Prescriptive Period judicially, pursuant to CC
• Unless otherwise provided by FC & other laws, Art. 1109, CC applies: • The family home CANNOT be constituted by the wife or husband alone
o Prescription does not run between H W, even if there is separation of o Constitution must be done jointly by husband & wife
property agreed upon in a valid settlement or through JSOP o BUT a family home can also be constituted by an unmarried head of
o Prescription does not run between parents & children during the family by himself
minority or insanity of the latter, & between guardian & ward during o ALSO Occupancy of any of the beneficiaries can also constitute a
the continuance of guardianship home as a family home
§ Even if a married person is legally/de facto separated, a
CHAPTER 2: THE FAMILY HOME family home is still constituted if any of his beneficiaries
actually occupies the land & house of such married person
Art. 152. The family home, constituted jointly by the husband and the wife or by an with his consent & pursuant to FC requirements
unmarried head of a family, is the dwelling house where they & their family reside, and
the land on which it is situated. Exempt from Execution
• Exemption from execution, forced sale or attachment is provided by law
Art. 153. The family home is deemed constituted on a house & lot from the time it is o Effective from the time the constitution of the family home as such
occupied as a family residence. From the time of its constitution and so long as any of its o Lasts so long as any of the beneficiaries actually resides therein
beneficiaries actually resides therein, the family home continues to be such and is • Personal right – can be claimed only by the judgment debtor, & not by the
exempt from execution, forced sale or attachment except as hereinafter provided and to sheriff, & therefore must be claimed before the public auction
the extent of the value allowed by law. • Exemption is not absolute – exclusions are in Art. 155, which allows the whole
amount obtained from the sale of the family home to be taken by the creditor
Constitution • Art. 160 – a judgment creditor whose claim is not among those provided in Art.
• A family home is deemed constituted on a house & lot from the time it is 155 may apply for the family home’s execution IF he has reasonable grounds
actually occupied as a family residence to believe that it is worth more than the max amount fixed in Art. 157.
• Requirement of house & land as constitutive of a family home – stresses o Proceeds of any execution sale shall be applied:
permanence
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 § 1st – to the amount provided in Art. 157 Debts
§ 2nd – liabilities under the judgment & costs • A court judgment is not necessary to clothe a pre-existing debt with the
§ 3rd – excess goes to judgment debtor (family home owner) privileged character of being enforceable against the family home
• Why exemption is not absolute – so that debtors cannot thwart just claims of o When a case is filed questioning the validity of a debt under Art. 155
creditors for which the family home is being executed in acc. with law, such
• CASE: Josef v. Santos – The petitioner immediately claimed exemption from debt shall be considered as having arisen NOT from the time the
execution of a property, which he claimed was a family home, after the court issues a judgment affirming such existence, but from the time it
respondent filed a motion for execution. The lower court did not conduct an actually arose
investigation on W/N the property was indeed a family home. • “Debt” – “obligations” in general
o SC voided the writ of execution for respondent– a claim for exemption o Includes money judgments arising from tort
from execution of the family home must be validly proven before the o Whole value of the family home may be used to pay off obligations
sale of the property at public auction under Art. 155
o Respondent & the trial court ignored petitioner’s argument that the • CASE: Gomez v. Sta. Ines – A debt was incurred in 1977 before the effectivity
properties were exempt from execution of FC. The subject property had not, at the time, been constituted as a family
home under the provisions of the CC.
Art. 154. The beneficiaries of a family home are: o SC: Because a home which was not a family home prior to the
1) The husband & wife, or an unmarried person who is the head of a family; & effectivity of FC became one after the effectivity of FC by operation of
2) Their parents, ascendants, descendants, brothers & sisters, whether the law, the debt therefore can be raised as having been incurred before
relationship be legitimate or illegitimate, who are living in the family home & the constitution of the family home. Thus, it is subject to execution.
who depend upon the head of the family for legal support. o The judgment sustaining the liability of the debtor was not the
reckoning date for the existence of the debt; instead, it is the time
Beneficiaries when the debut was actually incurred in 1977
• Actual occupancy of beneficiaries constitutes a family home
o Must have the consent of either the husband or wife Art. 156. The family home must be part of the properties of the ACP/CPG, or of the
o Applies even if the owners do not actually reside therein exclusive properties of either spouse with the latter’s consent. It may also be constituted
• 3 Requisites for Beneficiaries: by an unmarried head of a family on his or her own property.
1) Must be among the relationships listed in Art. 154 Nevertheless, property that is the subject of a conditional sale on installment where
2) Must live in the family home ownership is reserved by the vendor only to guarantee payment of the purchase price
3) Must be dependent for legal support upon the head of the family may be constituted as a family home.
• CASE: Patricio v. Dario III – A grandson is not considered a beneficiary of a
family home owned by his grandfather even if he resides there, because he is Family Home
dependent on his father for support. • Constituted at a place where there is a fixed & permanent connection with the
• The beneficiaries are the ones who will most likely be affected by the persons constituting it
constitution of the family home & its disposition • Must be a part of the ACP/CPG or the exclusive properties of either spouse with
• Art. 158 – When an owner plans to sell a family home, he must first obtain the the latter’s consent
consent of a majority of the beneficiaries of legal age • May also be constituted by an unmarried head of family on his own property
• The enumeration in Art. 154 includes the in-laws where the family home is • Property that is the subject of a conditional sale on installment where
constituted jointly by the husband & wife ownership is reserved by the vendor only to guarantee payment of the
• Law definitely excludes maids & overseers purchase price may be constituted as a family home
• NOT a family home:
Art. 155. The family home shall be exempt from execution, forced sale or attachment o An apartment unit or a house that is being rented
except: o A house erected by a person on the property of another
1) For non-payment of taxes;
2) For debts incurred prior to the constitution of the family home; Art. 157. The actual value of the family home shall not exceed, at the time of its
3) For debts secured by mortgages on the premises before or after such constitution, the amount of P300,000 in urban areas, and P200,000 in rural areas, or
constitution; & such amounts as may hereafter be fixed by law.
4) For debts due to laborers, mechanics, architects, builders, materialmen & In any event, if the value of the currency changes after the adoption of this Code, the
others who have rendered service or furnished material for the construction of value most favorable for the constitution of a family home shall be the basis of the
the building. evaluation.

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For purposes of this article, urban areas are deemed to include chartered cities and • Cannot be sold, alienated, encumbered, donated or assigned without the
municipalities whose annual income at least equals that legally required for chartered written consent of the ff.:
cities. All others are deemed to be rural areas. 1) Person constituting the same
2) The spouse of the person constituting the same
Value of the Family Home 3) A majority of the beneficiaries of legal age
• Art. 153: The family home is constituted from the time it is actually occupied as • Thus, for the family home to be leased, the written consent of all the people
a family home mentioned must be obtained (a lease = an encumbrance)
o Actual occupancy is the operative act of the constitution
o The value at the of the constitution must be: Art. 159. The family home shall continue despite the death of one or both spouses or of
§ P300,000 in urban areas the unmarried head of the family for a period of 10 years or for as long as there is a
§ P200,000 in rural areas minor beneficiary, & the heirs cannot partition the same unless the court finds
§ Or such amount as may hereafter be fixed by law compelling reasons therefor. This rule shall apply regardless of whoever owns the
• If the home is MORE than the value fixed by law, it is NOT a family home property or constituted the family home.
o NOT exempt from forced sale, execution or attachment
• 2nd par, Art. 157: “In any case, if the value of the currency changes after the Limitation After Death
adoption of this Code, the value most favorable for the constitution of a family • Even upon the death of the person who constituted the family home, such
home shall be the basis of the evaluation family home shall continue as one for a period of 10 years, or longer, if there is
o If a house is worth P300,000 in an urban area but was not legally a minor beneficiary
instituted prior to the effectivity of FC, it will automatically become a • Heirs cannot partition the same unless the court finds compelling reasons
family home if it is still worth P300,000 on Aug. 3 1988 • CASE: Arriola v. Arriola – Even if a house & lot passes to the heirs upon the
o If the house were worth P400,000 prior to the effectivity of the FC & if death of their father, it cannot be immediately partitioned, at least not for 10
its value increased to P500,000 at the time or after the effectivity, it years, as it is a physical symbol of family love. In the case, the family patriarch
will not be considered a family home because the value of P400,000 died on March 10 2003. It cannot be partitioned for 10 years or longer, if there
at the time of its constitution is the basis of the evaluation (rather is still a minor residing there. It can thus only be partitioned in March 10 2013.
than the P500,000), as it is the more favorable assessment for the o If there is no compelling reason to immediately partition the lot, the
constitution of the family home court will not order it
o If a house in 1987 was worth P500,000, & the value decreased to § Reason for forced sale must be set up & proved to the
P300,000 at the time of the effectivity of the FC, it is the P300,000 Sheriff before the sale of the property at public auction
that will be considered o Proscription against partitioning exists regardless of its ownership
• Justification for limits: those who can afford more expensive homes need no § Even if the family home has passed by succession to the co-
protection; this is intended to protect the middle-class ownership of the heirs, the family home is not transformed
o Justification is a sweeping generalization that ignores some facts into an ordinary property
o Has become a regressive limitation inhibiting progressive middle- § Rights of the beneficiaries of the conjugal home cannot be
class growth subjugated

Increase in Value of Family Home Art. 160. When a creditor whose claim is not among those mentioned in Art. 155 obtains
• REMEMBER: The values in Art. 157 refer only to the value at the time of the a judgment in his favor, & he has reasonable grounds to believe that the family home is
constitution made after the effectivity of the FC actually worth more than the maximum amount fixed in Art. 157, he may apply to the
o If after the constitution, the value of the house increased due to court which rendered the judgment for an order directing the sale of the property under
improvements to an amount more than fixed by law at the time of the execution. The court shall so order if it finds that the actual value of the family home
constitution, the family home remains a family home exceeds the maximum amount allowed in Art. 157 & results from subsequent voluntary
improvements introduced by the person or persons constituting the family home, by the
Art. 158. The family home may be sold, alienated, donated, assigned or encumbered by owner or owners of the property, or by any of the beneficiaries, the same rule &
the owner or owners thereof with the written consent of the person constituting the procedure shall apply.
same, the latter’s spouse, and a majority of the beneficiaries of legal age. In case of At the execution sale, no bid below the value allowed for a family home shall be
conflict, the court shall decide. considered. The proceeds shall be applied 1st to the amount mentioned in Art. 157, &
then to the liabilities under the judgment & costs. The excess, if any, shall be delivered to
Disposition of Family Home the judgment debtor.
• Limitation to the right of disposition of the owners of a property where a family
home is situated Judgment Creditor

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 • Unlike in Art. 155, in Art. 160 there is a need for a court decision before a instrument executed & signed by them before the birth of the child. The instrument shall
judgment creditor can avail of the privilege be recorded in the civil registry together with the birth certificate of the child.
• Example: If a creditor obtains a judgment in his favor, directing the debtor to
pay him P500,000, & the debtor owns a family home which has a current Art. 165. Children conceived & born outside a valid marriage are illegitimate, unless
actual value of P1,000,000, such judgment creditor can execute on said family otherwise provided in this Code.
home.
o Bidders cannot bid an amount below P300,000 Policy of the FC
o If the house is sold for P700,000 only, the sheriff gives the debtor the • The policy of the FC: liberalize the rule on the investigation of the paternity of
amount of P300,000,then gives P400,000 to the creditor children, especially illegitimate children, without prejudice to the right of the
§ Immunity of P300,000 supposedly allows debtor to build a alleged parent to resist the claimed status with his own defenses.
new family home • Legitimacy cannot be negotiated; it is determined by law
• Judgment-claim & judgment creditor should not be among those in Art. 155 o A child cannot go to court and say “This man is not my father!” and
o If the judgment creditors are laborers & the judgment amount of have that statement have any legal effect
P500,000 represents the amount due them, P700,000 will be first • Adoption – created by law; child has all rights, obligations & duties of a natural
applied to them child
§ P500,000 will be given to the Art. 155 creditors
§ P200,000 goes to the judgment debtor Paternity & Filiation
§ If the house is sold for exactly P500,000, the creditor- • GENERAL RULE: the law will always recognize the husband as the father; if he
laborers get everything does nothing to impugn the child, the child is legitimate & his
• Paternity & filiation – relationship which exists between parents & children
Art. 161. For purposes of availing of the benefits of a family home as provided for in this o Paternity – whether one is the father or not
Chapter, a person may constitute, or be the beneficiary of, only one family home. o Filiation – legitimacy/illegitimacy
• Legitimacy/illegitimacy is fixed by law & cannot be left to the will of the parties
Art. 162. The provisions in this Chapter shall also govern family residences insofar as or the declaration of a physician or midwife
said provisions are applicable. • Filiation:
o By nature – legitimate if they are conceived or born during the valid
Application of Art. 162 marriage of the parents
• Art. 162 does not have a retroactive effect § Presumption of legitimacy can only arise upon convincing
o It does not mean that all existing family residences are deemed to proof that the parents of the child were legally married &
have been constituted as family homes at the time of the occupation that the child’s conception/birth occurred during the
of the family home prior to the effectivity of the FC & are exempt from subsistence of such marriage
execution for payments of obligations o By adoption
o Art. 162 simply means that all existing family residences at the time • CASE: Conception v. CA – A woman bigamously married another man. A child
of the effectivity o f the FC are considered family homes & are was born out of their bigamous union. Later on, the bigamous marriage
prospectively entitled to the benefits accorded to a family home between the woman & the man was declared void. What is the child’s filiation?
o SC: The child born in the 2nd voided union was in effect born of the
TITLE VI. – PATERNITY & FILIATION wife in the 1st subsisting marriage. Thus, in the eyes of the law, the
father of the child is the 1st husband of the wife.
CHAPTER 1: LEGITIMATE CHILDREN 20 o Additionally, in this case, the child wanted to acknowledge his real
father (the 2nd husband from the bigamous marriage); the court,
Art. 163. The filiation of children may be by nature or by adoption. Natural filiation may however, did not permit this. By legal fiction, the child’s father was the
be legitimate or illegitimate. 1st husband, & a child cannot file a case to acknowledge his real
father
Art. 164. Children conceived or born during the marriage of the parents are legitimate. o Child is the legitimate child of the 1st husband.
Children conceived as a result of artificial insemination of the wife with the sperm of the § Note that if the 1st marriage was the void marriage, the child
husband or that of a donor or both are likewise legitimate children of the husband & his would be illegitimate & could now be attributed to the 2nd
wife, provided that both of them authorized or ratified such insemination in a written husband
                                                                                                                § Note also that if the wife successfully got a JDNOM for her
20 The emphasis of this Chapter is that only paternity needs to be established; maternity is certain 1st marriage, the child would then be the legitimate child of
but paternity is not. Only fathers have the right to impugn the legitimacy of their child. The mother the 2nd husband
cannot impugn with any legal effect.
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 • Illegitimate children – those conceived & born outside of a valid marriage or A: Husband can impugn the legitimate filiation of the child, but NOT the paternity. Thus
inside a void marriage the child would be illegitimate at most, but can never be said to be not related to him (as
o EXCEPTIONS: A child is legitimate when he is… is the case when grounds in Art. 166 are proven)
§ Conceived/born before the judgment of annulment (Art. 54)
§ From a marriage declared void due to psychological No Criminal Liability for Adultery of Wife Artificially Inseminated w/o Consent of Husband
incapacity (Art. 54) • A woman who, without the consent of her husband, gets herself a AID
§ From a void marriage due to failure to comply with insemination CANNOT be held criminally liable for adultery
mandatory provisions of Art. 52 & 53 • Art. 333, RPC: Adultery is committed by any married woman who shall have
sexual intercourse with a man not her husband
Artificial Insemination o Artificial insemination – no sex involved
• Two types of artificial insemination
o Homologous – wife is artificially impregnated with the semen of her Art. 166. Legitimacy of a child may be impugned only on the ff. grounds:
husband; Artificial Insemination Husband (AIH) 1) That it was physically impossible for the husband to have sexual intercourse
o Heterologous – artificial insemination o the wife by the semen of a with his wife within the first 120 days of the 300 days which immediately
3rd-party donor; Artificial Insemination Donor (AID) preceded the birth of the child because of:
§ Consensual – with consent of husband a. The physical incapacity of the husband to have sexual intercourse
§ Non-consensual – w/o husband’s consent with his wife;
b. The fact that the husband and wife were living separately in such a
Status of an Artificially Inseminated Child way that sexual intercourse was not possible;
• Legitimate, as long as both of them authorized or ratified such insemination c. Serious illness of the husband, which absolutely prevented sexual
o Through a written instrument executed & signed before the birth of intercourse;
the child 2) That it is proved that for biological or other scientific reasons, the child could
o Instrument is recorded in the registry together with the birth not have been that of the husband, except in the instance provided in the 2nd
certificate of the child21 paragraph of Article 164; or
o Since the husband consents, there is no marital infidelity 3) That in case of children conceived through artificial insemination, the written
§ One who consents to the production of a child cannot create authorization or ratification of either parent22 was obtained through mistake,
a temporary relation to be assumed & disclaimed at will; he fraud, violence, intimidation, or undue influence.23
has an obligation for the person whose existence he is
directly responsible Art. 167. The child shall be considered legitimate although the mother may have
• If written authorization/ratification is obtained through mistake, fraud, violence, declared against its legitimacy or may have been sentenced as an adulteress.
intimidation or undue influence, the husband may impugn the legitimacy of the
child on these grounds Applicability of Art. 166 & 167
• Morality is not the concern in this case, because the fact is that the child is • Art. 166 – presupposes a valid marriage bet. husband & wife
already born o Only the husband & the heirs (in proper cases under Art. 171) can
• HOWEVER, it must be observed that if the requirements in par. 2, Art. 164 are invoke these grounds
not followed & the husband DOES NOT impugn the legitimacy of the child on o If any grounds are proven, the child will neither be legitimate nor
grounds provided by law within the prescriptive period, the child will still be illegitimate as far as the husband is concerned—they are simply not
legitimate, having been born in a valid marriage related
o Requirements in Art. 146, par. 2: o As far as the wife is concerned, the child is illegitimate
1) Both spouses authorize or ratify such insemination before the • The legitimacy of the child can likewise be questioned on the ground that the
birth of the child; marriage bet. husband & wife is void
2) The instrument is recorded in the civil registry together with the o But remember: a void marriage usually means that the child is
birth certificate of the child illegitimate for both husband & wife
• Art. 167 – makes it impossible for the wife to file an action to impugn the
SCENARIO legitimacy of her child
Q: What if the husband agreed to use 3rd party’s sperm & signed the written instrument,
but the wife used both the husband’s sperm & a 3rd party’s?
                                                                                                               
22 The phrase states “either parent,” but admittedly, even if a woman complains on these grounds,

                                                                                                                she cannot impugn the child; only her husband can

21 Child will still be considered legitimate, even if the requirement of registration is not complied 23 Notice again that there is nothing about the necessity of recording. Thus, if the husband & wife

with sign an instrument but fail to register it, the artificially inseminated child will still be legitimate.
  Katrina Monica C. Gaw | Block C 2018| 81
 o Even if a wife is declared adulterous by courts, or is aware that her • Average longest period = 300 days (10 months)
husband is not the father, her knowledge or sentence will have no • First 120 days = 1st 4 months
bearing & can never affect the legitimate status of the child born or • When a child is born inside a marriage, sex is presumed between husband &
conceived inside a valid marriage wife within the 1st 120 days of the 300 days immediately preceding the birth of
o Only husband can contest legitimacy if he & his wife are in a valid the child
marriage o Any day within the 1st 120 days is presumed to be when the child was
conceived
SCENARIO o Timespan bet. 120th day & 300th day = 180 days (6 months)
Q: What if the wife did not actually want to get pregnant & have the baby, but was § The period of viability
drugged & her husband conspired to impregnate her with the doctor? § Child may be born without defects even if the gestation
A: The wife cannot do anything about it; she cannot impugn the child. period is only 6 months

Q: In reverse, what if it is the husband who is drugged by the wife & his sperm was taken, Physical Incapacity
but without written authorization? • Impotence/sterility must be proven with evidence so strong & convincing as to
A: Husband cannot use Art. 166(3) for his defense. He may use other reasons instead. justify the bastardization of the child
• CASE: Tarleton v. Thompson - Where it was shown that a man’s penis head was
• Art. 166 & 167 – only apply when the child has been delivered by his natural already cut off & necessitated insertion of metal sounds for him to urinate, the
mother (condition sine qua non) man still failed to impugn the legitimacy of the child because it was shown that
o Do not apply when the alleged mother did not deliver the baby herself he still had sex with other women
o CASE: Chua Keng Giap v. IAC – If a person claims to be the son of an
alleged woman & of the decedent whose properties are being Living Separately
liquidated, but said person was not actually delivered from the womb • To rebut presumption of legitimacy, the husband & wife have to live separately
of the alleged mother, the mother can validly declare that the said in such a way that sex is truly impossible
person is not her child because she never gave birth to him
• Example: If the husband can prove he was living in another country for the
o CASE: Benitez-Badua v. CA – A person claims to be the only daughter
entire questioned period – has to be completely impossible
of a deceased married couple. The oppositors, however, presented
• Mere remoteness is not sufficient to disavow paternity
evidence to show that the alleged “daughter” could not have been
o Bare testimony of the husband that he & his wife live 30 miles away
that of the deceased, as they were both unable to physically
from each other at the time of the child’s conception is not enough to
procreate. This is true even if the couple treated the daughter as their
show that the child is illegitimate, as sex with his wife was not
own child, & even they even falsified a certificate of birth to reflect
impossible given the distance
that she was their child.
o Even the husband & wife living separately & 170 miles away is not
enough
Declaration of Legitimacy • A child born 11 years after the mother left her husband for England & came to
England with her paramour is proof that the child is not the legitimate son of
• CC provisions provide presumptions; FC provisions are declarations
the husband
• In all cases where a husband assails the legitimacy of an issue sired by his
wife, all doubts are resolved in favor of legitimacy because of the universal
Serious Illness
presumption of legitimacy
• Serious enough to absolutely prevent husband from engaging in sex
o A woman is innocent until proven guilty (of having sex with someone
else) • Doctor’s statement that the husband is truly not physically capable of
performing the sexual act as it was not possible for him to enter a woman in
Rebutting Presumption such a manner as to allow the spermatozoa to find the ova
• While the presumption is a strong one, if reason & experience dictates that it
Biological & Scientific Reasons
should not hold, then the presumption should be disregarded
o Only upon convincing evidence • If a DNA test proves with certainty that one is not the father
• Art. 166 – grounds to impugn legitimacy are exclusive • Can also be by the laws of nature:
o Invoked by husband &, in proper cases, the heirs o A white couple cannot have a black baby
o BUT parents must show evidence that they have zero black ancestry
• Court needs clear & convincing proof of illegitimacy
Sterility
120-300-Day Period
• Relative condition, both as to degree & as to time
• Ordinarily, a woman carries a child for 270-280 days after conception
  Katrina Monica C. Gaw | Block C 2018| 82
 • As proof of non-paternity on the grounds of biological or scientific reasons, the Husband can impugn the legitimacy of the child using Art.
o
husband must be shown to be completely sterile at the time the child was 166(1)[a][b][c] & (2), as it was physically impossible for him to have
conceived sex with his wife at the time the child was conceived
• It only takes one sperm to fertilize successfully • If the husband acceded to the artificial insemination of his wife using the
• CASE: Lucas v. William – A husband was “sterile” 7 years before the birth of the sperm of another man, & he fails to comply with the procedure in 2nd par. of
child, as shown by medical evidence, & an exam 4 years after the birth Art. 164, then allowed the prescriptive period for impugning the child to pass,
indicated he was sterile at that time. the child will be his legitimate child with is wife
o SC: The legitimacy of the child was not conclusively rebutted, because • If the donor were a man other than the husband & the husband, objecting to
there is still no proof that the husband was sterile at the time of the the artificial insemination, did not want to comply with the procedure in Art.
conception of the child 164, he can impugn using Art. 166(1)[a][b][c] & (2).
o Same course of action if the husband initially acceded to the artificial
Vasectomy insemination, but failed or refused to comply with the requirements
• Not enough proof to rebut the presumption of legitimacy of a child sired under Art. 164, then later on impugned the child’s legitimacy
• Must be coupled with concrete proof that the husband is completely sterile & § He must impugn within the prescriptive period in Art. 170
re-channelization of tubes did not occur • If the husband agrees to wife’s artificial insemination with another man’s
sperm & they observed all the requirements in Art. 164, he CANNOT impugn
Scientific Testing the legitimacy of the child
• Several blood tests (such as A-B-O test) have only been accurate in excluding o Art. 166 (1)(2) & (3) cannot be invoked because he knew the sperm
paternity (ensuring a person is not the father) was not his before agreeing to the process
• Current test: DNA test – SC has declared it is a valid procedure for determining o Art. 166(2) also provides that, when Art. 164 is observed, impugning
paternity legitimacy for biological or other scientific reasons cannot be invoked
o DNA result that excludes the putative father from paternity is
conclusive proof of non-paternity Art. 168. If the marriage is terminated & the mother contracted another marriage within
300 days after such termination of the former marriage, these rules shall govern in the
Vitiated Consent in Artificial Insemination absence of proof to the contrary:
• If the written authorization or ratification is obtained through fraud, violence, 1) A child born before 180 days24 after the solemnization of the subsequent
intimidation or undue influence, the legitimacy of the child may be impugned marriage is considered to have been conceived during the former marriage,
o But only the husband can impugn, due to Art. 170, or heirs in Art. 171 provided it be born within 300 days after the termination of the former
o Fraud/undue influence can also be asserted by 3rd persons on both marriage;
the spouses or any one of them 2) A child born after 180 days25 following the celebration of the subsequent
marriage is considered to have been conceived during such marriage, even
• Husband or heirs can allege that:
though it be born within the 300 days after the termination of the former
1) The wife was subjected to these causes, or
marriage.
2) The husband was himself subjected to the same or
3) Both of them were subjected
Class Notes
• Even if the mother was subjected to these cases, she cannot file a case to
• Art. 168 merely provides for a presumption; can be disproven by DNA test
impugn the legitimacy of the child because she is not given legal standing to do
so (Art. 167, 170, 171) • After 300 days have passed, there are no longer any presumptions

Non-Observance of Procedure Relative to Artificial Insemination Access Presumed Prior to Termination of Marriage
• Law does not provide that the failure to comply with the procedure laid down in • Presumption holds even immediately before the official termination of the
Art. 164 will constitute a ground to impugn the legitimacy of a child marriage
o However, if the husband consented & the sperm was his, it is almost o It is not unlikely that the couple had sex just prior to the death of one
impossible that he would contest the legitimacy of the child of them or just before the issuance of JDAOM/JDNOM
o If he decides to impugn the child later on, the case will fail, regardless • Remember: Law fixes the period of 300 days as the longest gestation period
of lack of procedural compliance for a child inside the womb of the mother
§ He is bound by his consent
• If the wife was able to obtain a sperm sample of her husband’s which the latter Access Not Presumed After Termination Marriage
contributed to a sperm bank & used it for artificial insemination w/o husband’s
knowledge                                                                                                                
24 Less than 6 months from the termination of the 1st marriage
25 More than 6 months from the termination of the 1st marriage  
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 • When the marriage tie is severed or void from the beginning, the essential o The father can still impugn such legitimacy on the basis of grounds in
obligation of cohabitation is no longer present Art. 166 & within the prescriptive periods provided in Art. 170
o No need to observe mutual fidelity or render help or support
• Presumption is that they obeyed the JDAOM/JDNOM & have separated Art. 169. The legitimacy or illegitimacy of a child born after 300 days following the
• Art. 54: Children conceived or born before the finality of a decree of JDAOM termination of the marriage shall be proved by whoever alleges such legitimacy or
(Art. 45) or nullity (Art. 36) are considered legitimate illegitimacy.
o Even after the issuance of the decree, children born or conceived
prior to the FINALITY of the decree are considered legitimate No Presumption for a Child Born After 300 Days After Termination of Marriage
o Unless appealed, decree become final after the lapse of 15 days from • In the absence of any subsequent marriage after the termination of the 1st
the receipt of the decision marriage, the father of a child born after 300 days from such termination can
be ANYBODY
Presumption of Filiation in Case of 2 Marriages o Includes the husband of the previous marriage
• If there is convincing proof of filiation that the father of the child is the previous o Convincing proofs & evidence of filiation must be shown
husband or the subsequent husband, the rules in Art. 168 will not apply • CASE: People v. Velasquez – The child was allegedly born of rape, 10 months &
• Art. 168 only applies “in the absence of proof to the contrary” 11 days after the alleged date of said rape. The law, however, assumes that
o 180-day period – shortest gestation period 300 days (10 months) is the longest gestation period. Thus, 311 days would be
o 300-day period – longest gestation period considered extraordinary by law & must be backed up with convincing
• There is no presumption as to legitimacy or illegitimacy; the presumption is only evidence.
with regard to WHEN the child is considered to have been conceived o SC held that the circumstances seemed to point to the possibility of
o The status of the child depends on the status of the marriage in which subsequent sexual acts between the alleged rapist & his victim, thus
he is considered to have been conceived there was some doubt on whether or not the accused & the victim
• If the mother marries a 2nd time & a child is born within 180 days from the actually had sex voluntarily. Thus, SC concluded that the 2 engaged in
solemnization of the 2nd marriage & within the 300-day period after the sex more than once, as asserted by the alleged rapist, contrary to the
termination of the 1st marriage victim’s claims.
o Child shall be considered to have been conceived in the 1st marriage
o It’s like saying that the 2nd husband & the wife only had sex when they Art. 170. The action to impugn the legitimacy of the child shall be brought within 1 year
were already married & that the 1st husband & the wife had sex from the knowledge of the birth or its recording in the civil register, if the husband or, in a
before the end of their marriage proper case, any of his heirs, should reside in the city or municipality where the birth
§ This rule avoids confusion & upholds woman’s virtue took place or was recorded.
o Whether the child is legitimate or illegitimate depends on the status If the husband, or in his default, all of his heirs do not reside at the place of birth as
of the 1st marriage defined in the 1st paragraph or where it was recorded, the period shall be 2 years if they
§ Art. 36, 40 (52, 53), 45 – legitimate should reside in the Philippines; & 3 years if abroad. If the birth of the child has been
§ All other void marriages – illegitimate concealed from or was unknown to the husband or his heirs, the period shall be counted
from the discovery or knowledge of the birth of the child or of the fact of registration of
• If the child is born after 180 days following the celebration of the 2nd marriage,
said birth, whichever is earlier.
but within the 300-day period since the 1st marriage, it is considered to have
been the child of the 2nd marriage, in the absence of proof to the contrary.
Art. 171. The heirs of the husband may impugn the filiation of the child within the period
o If on the 100th day after the termination of the 1st marriage, the
prescribed in the preceding Art. only in the ff. cases:
woman remarries…
1) If the husband should die before the expiration of the period fixed for bringing
§ A child born on the 181st day after the solemnization of the
his action;
2nd marriage is a child of the 2nd marriage
2) If he should die after the filing of the complaint, without having desisted
§ Art. 36, 40 (52, 53), 45 – legitimate
therefrom; or
§ All other void marriages – illegitimate
3) If the child was born after the death of the husband.26
Proof to the Contrary
Class Notes
• If there is any confusion as to who the father is, or if the proofs are not
• Prescriptive period is:
convincing or if there is no proof, then the presumptions in Art. 168 will apply
o 1 year from the KNOWLEDGE of recording at the local civil registrar
• But if there is convincing proof, a child born after 180 days from the
o 1 year from the KNOLWEDGE of the birth of the child
celebration of the subsequent marriage but within 300 days from the 1st
marriage can still be recognized by law as the child of the 1st marriage
• Once filiation is proven, the presumption of legitimacy attaches                                                                                                                
26 A posthumous child born after the death of the alleged father
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 • Counted from the day of discovery; there is no need for due diligence on the o SC rejected the contention of the housemaid’s child that the
part of the husband legitimate child cannot anymore impugn her legitimacy on the ground
that only the father can do so & the action already prescribed
Parties § Art. 171 applies where the father (or the heirs) impugns the
• Impugning the legitimacy of a child is strictly a personal right legitimacy of his wife’s child; in Art. 171 the wife is the
o CANNOT be set up as a defense undisputed mother of the offspring. In this case, though, it
o CANNOT be a collateral issue or collaterally attacked was already proven that the mother did not give birth to the
o Impugned only through a direct suit precisely filed for the purpose of housemaid’s child
assailing the legitimacy of a child § There is no blood relation to impugn
• Principally, only the HUSBAND can file a direct action § Additionally, the action to nullify the birth certificate does
o Even if the child were conceived by a donor of sperm who is not the not prescribe, because it was void
husband o Also, in this case, it was the housemaid’s child who filed the suit & not
o His heirs can substitute him only under the conditions in Art. 171 the child herself, &, being a party-in-interest, the child had the right to
• The husband (& his heirs) is the sole judge of determining whether or not to file bring up the legitimacy
a proceeding, or continue the proceeding, disputing the legitimacy of his wife’s • Impugning the legitimacy of a child cannot be made in an action for partition,
child as this is a collateral attack
o The husband is the only person who can know he is not the father o HOWEVER, if the issue in an action for annulment of extrajudicial
o Generally, where a husband fails to file suit, no one can subsequently partition is the right of a particular person to inherit & there is an
assert the husband’s strictly personal right except the heirs in certain assertion that the alleged heir was not in fact the child of the
but very restricted situations deceased, a determination of filiation can be made
• Example: If a wife gives birth to a child of her paramour, the said child is born in § CASE: Spouses Fidel v. CA – One party contested that the
the valid marriage between her & her husband other party was not truly related to his father, who was long
o If not contested, the child is legitimate as to said husband & wife ago deceased, & thus had no right to a specific property. SC
o If the paramour files an action for the custody of the child, the action held that it was necessary to determine the filiation of the
shall be dismissed, because only the husband can claim the child is party, to determine if he had the right to the property.
illegitimate • Heirs are only substitutes of the husband, & cannot file a case impugning the
• CASE: Tison v. CA – A niece filed a reconveyance of certain properties formerly legitimacy of the child if the husband is still alive
belonging to her aunt, as she is one of her aunt’s heirs. To prove her filiation to o Heirs can file when the husband dies, but also within the period
her aunt, she presented evidence showing that she was the legitimate provided in Art. 170
daughter of her father, who was the brother of her aunt. The respondent filed a o All heirs, whether testamentary, legal, compulsory or voluntary can file
demurrer to evidence, claiming that the evidence presented by the niece was • The mother has no standing to file an action to impugn the filiation or
not enough to prove her legitimate filiation to her father, & consequently, her legitimacy of her children; maternity is never uncertain
aunt.
o SC held that, though the evidences, taken separately & independently Reason for the Limitation of Parties w/ Legal Standing
of each other were not necessarily sufficient to establish proof of • Protection of innocent children against attacks of paternity
legitimacy, the niece could nevertheless avail of the presumption of • Those who are not listed by law CANNOT impugn the legitimacy of a child
legitimacy which was never controverted by any sufficient evidence by • Persons who are without legal standing to impugn legitimacy:
the respondent (the respondent in this case was a 3rd party buyer of o The actual father of the child impugning the legitimacy of a child in a
the lot, not related to the family) valid marriage between the mother and another man, because he is
o Respondent also had no legal personality to impugn the legitimacy of not among those granted by law the right to make such impugnation
the niece, as the respondent was not the “husband” referred to in the § Biological father’s rights are subordinate to the collective
law rights of the child, the mother, the presumed father & the
o Legitimacy can only be directly attacked by the husband of the niece’s family unit
mother o The child himself, born inside a valid marriage, but aware that he has
• CASE: Babiera v. Catotal – A legitimate child filed a suit to cancel the birth a different father, cannot repudiate his own legitimacy
certificate of her housemaid’s child who claimed to be her sister & therefore
also the legitimate child of her parents. Prescriptive Periods
o It was proven that it was not the legitimate child’s mother who gave • 3 Prescriptive period for the husbands or heirs:
birth to the housemaid’s child & that the birth certificate was forged 1) 1 year from knowledge of the birth or knowledge of the recording in the
civil registrar, if the impugner resides in the city or municipality where the
birth took place or was recorded;
  Katrina Monica C. Gaw | Block C 2018| 85
 2) 2 years from knowledge of the birth or knowledge of the recording in the o Legitimacy or illegitimacy does not arise from statements &
civil registrar, if the impugner resides in a place in the Philippines other admissions made in documents mentioned in Art. (1) & (2); but from
than the city or municipality where the birth took place or was recorded; the fact that the children were conceived or born inside a valid
3) 3 years, if the impugner resides abroad marriage, or otherwise, for illegitimacy
• If the birth of the child has been concealed or is unknown to the impugners, the o Hence, Art. 172 pales in legal significance to a clear showing that a child was
period is counted from the discovery of the birth or recording, whichever is born inside a valid marriage or not for legitimacy or illegitimacy
earlier o Probative value of mentioned documents have great weight &
• After the lapse of this period, the status of the child born in a marriage significance over all other evidence where
becomes fixed & can no longer be questioned § The children were born 300 days following the termination
• If the husband knew of the birth or recording of birth in the LCR, the of a marriage & no subsequent marriage was entered into
prescriptive period will start to run from that time • Art. 169 – legitimacy/illegitimacy shall be proven
o NOT from the subsequent knowledge that the child is not his child by whoever alleges it
o Thus, if a husband were informed by a woman that a child of which he
is pregnant was his child & because of this, he marries her, & she Record of Birth
thereafter gives birth to the child in the presence of her husband who, • Good proof as it proceeds from an official government source
for more than a year later, discovers the child could not be his child, • Public document & prima facie evidence of the facts therein contained
he cannot anymore impugn the legitimacy of the child as the o Statements in the record of birth may be rebutted
prescriptive period has lapsed o BUT if there is no evidence to disprove the facts stated therein, the
• Concealment referred to by the law does not refer to the conceal that the child presumption will hold & the children, as stated in the birth certificate,
is not the husband’s, but concealment of the birth or the recording will be legitimate
• If certificate of live birth is signed by the parents (more particularly, the father),
CHAPTER 2: PROOF OF FILIATION such a certificate is self-authenticating & is a consummated act
o No need to file any further action for acknowledgement
Art. 172. The filiation of legitimate children is established by any of the ff.: • If the alleged father did not sign the birth certificate, the placing of his name by
1) The record of birth appearing in the civil register or a final judgment; or the mother, doctor or registrar is incompetent evidence of paternity
2) An admission of legitimate filiation in a public document or a private • Between a presumption of fact created by a record of birth versus the
handwritten instrument & signed by the parent concerned. presumption of law in Art. 164, Art. 164 prevails
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
1) The open and continuous possession of the status of a legitimate child; or Final Judgment
2) Any other means allowed by the Rules of Court and special laws. • A final judgment bearing on the status of the child as legitimate is binding &
conclusive
Filiation Established o A mere reportorial statement (obiter dictum) of the court, as opposed
o Legitimacy cannot be made dependent on parental physiognomy or bodily to an actual final judgment, is not enough to establish filiation
marks of similarity • A final judgment based on a compromise agreement where the parties agreed
o HOWEVER, resemblance between parent & child can serve as regarding a status of a person is void – against public policy & law
material evidence to establish parentage IF accompanied by other o Art. 2035, CC: No compromise agreement upon the civil status of
strong evidence, whether direct or circumstantial, to prove filiation of persons is valid
the child o Paternity & filiation is a relationship that must be judicially
§ HOWEVER, SC has ruled that in the age of DNA testing, this established
stuff feels obsolete
o Art. 164: For as long as a child is conceived or born inside a valid marriage, Admission in Public or Private Handwritten Document
they considered as legitimate • An admission in a public instrument or a private handwritten document &
o If child is conceived & born outside a valid marriage or inside a void signed by the parent concerned is a complete act of recognition
marriage, they are declared by Art. 165 as illegitimate unless o No need for court intervention
otherwise provided by law
• Will not qualify under the law if:
o Art. 172 refers to proofs of legitimacy; but according to Art. 175, they can also
o A private document that is not in the handwriting of the supposed
be used to prove illegitimacy
parent
o Art. 172 – does not derogate the declaration made by law; merely
o Not a public instrument
provides for the necessary documentary evidence to prove claims of
o Examples of non-proof:
legitimate or illegitimate filiation

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 § It has been held that a child’s written consent to the • HOWEVER, in a more recent case SC held that “any means allowed by the
operation of her alleged father, not being written in the Rules of Court & special laws can be used”
handwriting of the alleged father, is not a proof of filiation o Baptismal certificates, judicial admission, family bible in which child’s
§ A secondary student permanent record not signed by the name is entered, admission by silence, testimony of witnesses (Rule
alleged father 130, Rules of Court)
§ A marriage contract stating that advice of the alleged father o But for baptismal certificate to be proof, it must be shown that the
was obtained, but said letter was not signed by the father father had therein participated in the preparation of the same; if not
• CASE: Lim v. CA – In this case, SC held that there was no doubt that the signed, it is not competent proof
petitioner was the father of the illegitimate child, due to the evidence fully o Where a priest who officiated the baptism claimed that he could
showing this. recognize the father of the child as he was there during the baptism,
o It was petitioner who paid the bills for the hospitalization of the but at the same time testified that he had to be shown a picture of
mother when she gave birth the father by the mother to be able to recognize him it was also held
o He cause the registration of the name of the child using his surname that there was no concrete proof
in the birth certificate • Best proof is that father signed the birth/baptismal certificate
o He wrote handwritten letters to the mom & child stating his promise
“to be a loving husband & father to both of you.” DNA Testing
o Various pictures of petitioner cuddling with child. • Valid to prove paternity (as of 2002 case People v. Vallejo)
• In assessing probative value, it must be established that the laboratory
Open & Continuous Possession of Legitimate Status complied with appropriate standards & controls, & had the available testing
• In the absence of foregoing evidence, the legitimate or illegitimate filiation can data & results
be proven by open & continuous possession of the status of being legitimate o How the samples were collected. How they were handled, possibility
• “Continuous” as defined in Mendoza v. CA – does not mean that the of contamination, procedure in analyzing samples, whether proper
concession of status shall continue forever but only that it shall not be of an standards were used in analyzing the samples & conducting the tests,
intermittent character while it continues the qualification of the analyst who conducted it
o Father treats the child as his own, directly & not through others, • If scientific, technical or other specialized knowledge will assist the trier of fact
spontaneously & without concealment though without publicity in determining a fact in issue, a witness qualified as an expert by knowledge,
o Permanent intention of the supposed father to consider the child as skill, experience, training or education may testify thereto in the form of an
his own through clear & continuous manifestation of paternal opinion or otherwise if:
affection & care (1) The testimony is based upon sufficient facts or data
• Paternal affection & care must not be attributed to pure charity (2) The testimony is the product of reliable principles & methods
• CASE: Jison v. CA – Not only conviction of paternity, but also that apparent (3) The witness has applied the principles & methods reliably to the facts
desire to have & treat the child as such in all relations in society & life, not of the case
accidentally, but continuously • 99.9% is the minimum value of the Probability of Paternity prior to a paternity
o Higher standard of proof is needed; evidence must be clear & inclusion
convincing, such as: • DNA analysis that excludes putative father from paternity should be conclusive
§ Sending appellant to school, paying for tuition, school proof of non-paternity
uniforms, books, etc., defraying hospital expenses, providing o If the value is less than 99.9%, the results of DNA tests should serve
a monthly allowance, responding to appellant’s paternal as corroborative evidence
greetings, recommending her employment, allowing her to o If the value of W is 99.9% or higher, then there is a refutable
use his home in Bacolod, allowing appellant to use his presumption of paternity which should be subject to the Vallejo
surname standards (i.e. observance of proper procedures)
• NOT considered open & continuous possession
o Supposed father & child have met only 4 times for money Art. 173. The action to claim legitimacy may be brought by the child during his or her
o Must be spontaneous & uninterrupted lifetime & shall be transmitted to the heirs should the child die during minority or in a
state of insanity. In these cases, the heir shall have a period of 5 years within which to
Evidence under the Rules of Court & Special Laws institute the action.
• NOT considered proof: pictures, typewritten letters, affidavits, use of surname The action already commenced by the child shall survive notwithstanding the death of
after father’s death without his consent either or both of the parties.
• In earlier cases, SC did not allow baptismal records as proof of filiation
Action to Claim Legitimacy

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 • Right of action for legitimacy devolving upon the child is of a personal character relatives of his father or mother (Art. 992, CC)
o Generally pertains exclusively to him mother
o Only the child may exercise it at any time during his lifetime
• Three cases where, as an exception, it may be transmitted to the heirs of the *Example: X has a legitimate child Y.
child: • Y has 2 children: 0, who is legitimate, & P, who is illegitimate
1) If he dies during minority • If Y dies before X, then X later dies…
2) If he dies while insane o O will inherit from X by right of representation, as Y would have
3) If he dies after the action and already been instituted inherited had he not died prior to X (Art. 970-973, CC)
• Right of actin accruing to the child lasts a whole lifetime; he may exercise it o P cannot inherit by right of representation, because illegitimate
either against the presumed parents, or the heirs of the presumed parents children cannot inherit from legitimate relatives (Art. 992, CC), such
as X, though X is P’s grandfather
Art. 174. Legitimate children shall have the right: • RULE: Illegitimate children are entitled to support until their grandparents, but
1) To bear the surname of the father & the mother, in conformity with the they get no inheritance from their grandparents
provisions of the Civil Code on Surnames; o Inheritance of illegitimate children is limited to inheritance from their
2) To receive support from their parents, their ascendants, & in proper cases, parents
their brothers & sisters, in conformity with the provisions of this Code on
Support; CHAPTER 3: ILLEGITIMATE CHILDREN
3) To be entitled to the legitime & other successional rights granted to them
by the Civil Code. Art. 175. Illegitimate children may establish their illegitimate filiation in the same way &
on the same evidence as legitimate children.
Rights of Legitimate Children The action must be brought within the same period as specified in Art. 174, except when
• Greatest & preferential sum of rights is given to the legitimate child action is based on the 2nd par. of Art. 172, in which case the action may be brought
during the lifetime of the alleged parent.
Legitimate Child Illegitimate Child
Filing Claims & Proof Has his lifetime to file an Has his lifetime to file an Obligation of Father to Illegitimate Child
action to claim action to claim illegitimacy only • Support
legitimacy, regardless of if he uses proofs under par. 1 • (Possibly) a surname
the type of proofs of Art. 172.
provided for in Art. 172 Claim of Illegitimate Children
If he uses proofs under par. 2 • A child is born outside a valid marriage or inside a void marriage, except Art. 54
of Art. 172, he only has until • If a philandering husband has a concubine, a child of such concubine by said
the lifetime of the parent philandering husband is surely illegitimate
Transmission to Right to file an action to Right of an illegitimate child is o Illegitimate child may file an action to claim his illegitimate status
Heirs of Right to File claim legitimacy can be not transferrable to his heirs o BUT if the concubine has her own spouse, the child cannot file an
Claim transmitted to his heirs action to claim his illegitimate status against the philandering
(Art. 173) husband thought the latter is his natural father
Support in the Same Entitled to receive Entitled to receive support only § The child is born in the valid marriage of the concubine &
Direct Line support from any of his up to his grandparents & his her own husband, so the child is legitimate, but under this
ascendants & grandchildren (Art. 195 [2], [3]) marriage the concubine’s spouse is the one with the power
descendants (Art. 195 & to file a case to impugn the legitimacy o the child
199) § If concubine’s spouse never files a case, the child will
Successional Rights Gets 1 whole portion as Gets ½ of the legitime of a continue to be the legitimate child of the concubine & her
legitime, as compared to legitimate child spouse, & not the illegitimate child of the concubine & the
the illegitimate child philanderer
Surname Principally bears the Generally bears the surname of § To allow a child to file a case to claim his illegitimate status
surname of his father the mother would allow him to impugn his legitimate status, which
(Art. 364, CC) cannot be done
Inheriting ab Legitimate child can No right to inherit ab intestato § Only concubine’s spouse & his heirs can file a case
intestato* inherit ab intestato from from the legitimate children & regarding the child’s legitimacy
the legitimate children & relatives of his father or

  Katrina Monica C. Gaw | Block C 2018| 88

 § The child can only file to claim his illegitimate status if the that such private documents do not fall under the phrase “and the like” of the
concubine’s spouse or his heirs are successful in said rule
questioning his legitimacy under the marriage of the o “And the like” is limited to objects which are commonly known as
concubine & her spouse “family possessions” & are in effect, a family’s joint statement of its
• Child must have proofs of filiation & must follow belief as to the pedigree of a person
prescriptive periods o Other possibilities: tombstones, monuments or coffin plates

Proofs • CASE: Constantino v. Mendez – If the birth of the illegitimate child is way
• Same proofs in Art. 172 may be used for illegitimate children in proving filiation beyond 9 months from the approximate time of conception, this can negate any
• Explanation in Art. 173 is also applicable to 174 claim of filiation
• A judicial testimony which has not been rebutted or disputed by the alleged o The woman claimed she had sex with the alleged father on the first
father is sufficient to prove paternity week or second week of November, 1974 but at the same time she
• CASE: Mendoza v. CA – Established the rules of evidence in proving paternity later said she could not remember the date of their last sexual
o “Any other means allowed by the Rules of Court” – may consist of a intercourse in November 1974; thus, she failed to establish the
combination of various proofs, such as: baptismal certificate, family crucial point on direct examination on which specific date or dates
bible, common reputation respecting his pedigree, admission by she had sex with the alleged father
silence, the testimonies of witnesses, other kinds of proof admissible o It is not enough that she said they had sex on “September, October &
in Rule 130 of the Rules of Court November, 1974” if she cannot say for certain they had sex on the
o The father’s grandparents also admitted that the daughter in the case crucial dates
was their son’s child o Furthermore, the child was born on August 3, 1975, when there is
§ Rule 130, Sec. 39 – “The act or declaration of a person proof that the mother sent a letter to her attorney on February 11,
deceased, or unable to testify, in respect to the pedigree of 1975 that she was 4 months pregnant with a child—way past the
another person related to him by birth or marriage, may be traditional 267 days for a full term baby, which the mother said her
received in evidence where: baby was
• It occurred before the controversy o The evidence of paternity was held to be not clear & convincing
• The relationship between the persons is shown by • CASE: Verceles v. Posada – Admitted love letters of petitioner in his own
evidence other than such act or declaration handwriting & using an alias, declaring that, should respondent be pregnant, he
will have no regrets, qualifies as a private handwritten instrument that can
• Serves as an exception to the hearsay rule
establish filiation
§ “Pedigree” includes relationship, family genealogy, birth,
marriage, death, the dates when & the places where these
Prescriptive Period
facts occurred, & the names of the relatives (facts of family
history) • Par. 1, Art. 172 – Illegitimate child has whole lifetime to bring action
§ In the case, the witnessed testified that he was informed by • Par. 2, Art. 172 – During the lifetime of the alleged parent only
his father, who was the brother of the alleged father in the o CASE: Tayag v. CA – An illegitimate child brought an action for
case, & his grandmother, that the petitioner was the partition after the death of the alleged father & prior to the effectivity
daughter of the alleged father of FC. The issue on his illegitimacy had to be answered collaterally. Is
o Rules for the admission of declarations of pedigree into evidence: ground was his alleged continuous possession of the status of an
1) The declarant is dead or unable to testify illegitimate child.
2) The pedigree must be in issue § SC: When the case hit SC, FC had taken effect. Thus, SC
3) The declarant must be a relative of the person whose pedigree is dismissed the case because the father had died, & thus the
in issue illegitimate child could no longer use this ground to prove
4) The declaration must be made before the controversy filiation.
5) The relationship between the declarant & the person whose • A party must be allowed to adduce proof of his illegitimacy to be able to know
pedigree is in question must be shown by evidence other than whether he falls under Art. 172 par. 1 or 2.
such declaration
Art. 176. Illegitimate children shall use the surname & shall be under the parental
• CASE: Jison v. CA - Private letters & notes were presented to prove filiation authority of their mother, & shall be entitled to support in conformity with this Code.
under the Rules of Court, Sec. 40: “entries in family bibles or other family books However, illegitimate children may use the surname of their father if their filiation has
or charts, engravings on rings, family portraits & the like”; however SC ruled been expressly recognized by the father through the record of birth appearing in the civil
register, or when an admission in a public document or private handwritten instrument is
made by the father. Provided, the father has the right to institute an action before the
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regular courts to prove non-filiation during his lifetime. The legitime of each illegitimate Art. 178. Legitimation shall take place by a subsequent valid marriage between parents.
child shall consist of ½ of the legitime of a legitimate child. The annulment of a voidable marriage shall not affect legitimation.

Rights of an Illegitimate Child Art. 179. Legitimated children shall enjoy the same rights as the legitimate children.
• Surname of the mother
• ½ the legitime of a legitimate child Art. 180. The effects of legitimation shall retroact to the time of the child’s birth.

Parental Authority Statutory Creation

• Illegitimate child is under the parental authority of the mother • Before a child may be legitimated, requirements of law must be strictly
o Father is NOT given parental authority, even if there is recognition on complied with
his part that the child is his • Remedial in character – intended for the benefit & protection of innocent
• CASE: David v. CA (Briones)– Where a person who lives exclusively with his offspring; may be applied retroactively & must be liberally construed
legitimate family got hold of his legitimate son from the mother, who was (nevertheless, requirements must be complied with)
obviously not living with the father, X stated that the illegitimate son is under
the parental authority of the mother who, as a consequence of such authority, Requirements
is entitled to have custody of him. • The mandatory requisites for legitimation:
o Paternity is certain, but the father was not cohabiting with the mother. 1) Parents do not suffer any legal impediment OR are only disqualified to
• But for Sta. Maria, this ruling by Briones is quite strict. marry because either or both of them were 18 at the time of the
o Sta. Maria: If the alleged father admits that the child is his & it is conception of the child by the mother
shown that it is really conclusively his child & he even acknowledges 2) The child has been conceived & born outside a valid marriage
that the child is his, & the said father lives together with the child & 3) The parents subsequently enter into a valid marriage
the mother under a void marriage without the benefit of marriage, Art. a. This last step legitimates the child
211 applies – “the father & mother shall jointly exercise parental b. Even a later annulment will not change legitimacy anymore
authority over the person of their common children. In case of • It has been held that where the essential elements of legitimation existed prior
disagreement, the father’s decision shall prevail, unless there is a to the passage of the legitimating statute, legitimation is deemed to occur as of
judicial order to the contrary.” the time the statute becomes effective
o In this case, parental authority will be exercised by both dad & mom o Example: In the Civil Code, before a child could be legitimated, such
• Once parental authority is established, it cannot be waived except in cases of child must also be first acknowledged by the father
o Adoption § If B gives birth to X in 1983 & father M does not want to
o Guardianship & acknowledge that X is his child, X will not be legitimated
o Surrender to a children’s home or orphan institution even if B & M enter into a subsequent valid marriage in
• But parental authority can be terminated on legal grounds provided in FC 1984
§ However, on Aug. 3 1988, X will be legitimated even if M still
Surname does not acknowledge him.
o Surname of the mother is used, generally. • HOWEVER, when a legitimating statute adopted after the birth of an illegitimate
o But illegitimate children may use the surname of their father if their filiation has child may have the effect of legitimating the child, it will NOT affect property
been expressly recognized by the father through rights which have already vested
o Record of birth appearing in the civil registrar o Using the same example, if M dies in 1985 & X is considered
o Admission in a public document or private handwritten instrument legitimated in Aug. 3 1988, X will not have a claim anymore as to
made by the father property rights which have been transferred to the legitimate children
o Nevertheless, father has the right to institute an action before the of B & M upon M’s death.
regular courts to prove non-filiation during his lifetime • Generally, legitimation cannot occur if either or both of the parents, at the time
of the conception of the child, were disqualified by any impediment to marry -
CHAPTER 4: LEGITIMATED CHILDREN thus, such a child would never be legitimated
o EXCEPT if the impediment is that either or both being under 18
Art. 177. Children conceived & born outside of wedlock of parents who, at the time of the o Cannot be legitimated:
conception of the former, were not disqualified by any impediment to marry each other, § Adulterous children, especially if the parents marry years
or were so disqualified only because either or both of them were below 18 years age, after the birth of the child
may be legitimated. § Bigamous children

Effects of Legitimation
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 • Retroacts to the child’s birth with love, care, understanding and security towards the full and harmonious
• Enjoy the same rights as legitimate children development of his/her personality. Only when such efforts prove insufficient and no
• Unlike adoption where the extent of filial relationship is defined by law, the appropriate placement or adoption within the child's extended family is available shall
provisions on legitimation puts the legitimated child on equal footing with the adoption by an unrelated person be considered.
child born legitimate
o Adoption – only relationship created is between parent & child (b) In all matters relating to the care, custody and adoption of a child, his/her interest
o Legitimation – creates the total & full extent of the blood-relationship shall be the paramount consideration in accordance with the tenets set forth in the
existing within the family, including all ascendants, descendants & United Nations (UN) Convention on the Rights of the Child; UN Declaration on Social and
collateral relatives Legal Principles Relating to the Protection and Welfare of Children with Special
Reference to Foster Placement and Adoption, Nationally and Internationally; and the
Art. 181. The legitimation of children who died before the celebration of the marriage Hague Convention on the Protection of Children and Cooperation in Respect of
shall benefit their descendants. Intercountry Adoption. Toward this end, the State shall provide alternative protection and
assistance through foster care or adoption for every child who is neglected, orphaned, or
Benefit to Descendants abandoned.
• Art. 195(2) – Legitimate ascendants & descendants are obliged to support
each other Section 3. Definition of Terms. (a) "Child" is a person below eighteen (18) years of age.
o A great grandparent is obliged to support his great grandchild (b) "A child legally available for adoption" refers to a child who has been voluntarily or
o Art. 195(4) – In case there is an illegitimate child involved, parents involuntarily committed to the Department or to a duly licensed and accredited child-
are only obliged to support their illegitimate children & the illegitimate placing or child-caring agency, freed of the parental authority of his/her biological
children of the latter only (illegitimate grandchildren) parent(s) or guardian or adopter(s) in case of rescission of adoption.
• Example: Maria and Jose are not married but are capacitated to marry. They (c) "Voluntarily committed child" is one whose parent(s) knowingly and willingly
have an illegitimate child, Pedro. Pedro in turn has a child, Miguel. Miguel then relinquishes parental authority to the Department.
has a child, Jose. (d) "Involuntarily committed child" is one whose parent(s), known or unknown, has been
o Miguel, Maria & Jose’s grandchild, is entitled to support from them. permanently and judicially deprived of parental authority due to abandonment;
Jose, however, Maria & Jose’s great grandchild, is not entitled to substantial, continuous, or repeated neglect; abuse; or incompetence to discharge
support parental responsibilities.
o HOWEVER, if Maria & Jose marry after Pedro dies, Jose will be entitled (e) "Abandoned child" refers to one who has no proper parental care or guardianship or
to support as the legitimated great grandchild whose parent(s) has deserted him/her for a period of at least six (6) continuous months
and has been judicially declared as such.
Art. 182. Legitimation may be impugned only by those who are prejudiced in their rights, (f) "Supervised trial custody" is a period of time within which a social worker oversees the
within 5 years from the time their cause of action accrues. adjustment and emotional readiness of both adopter(s) and adoptee in stabilizing their
filial relationship.
Prescriptive Period (g) "Department" refers to the Department of Social Welfare and Development.
• Rights here are understood to be successional rights (h) "Child-placing agency" is a duly licensed and accredited agency by the Department to
o Those who can be prejudiced – legal heirs of parents provide comprehensive child welfare services including, but not limited to, receiving
o If the legitimated child continued to be illegitimate, said child would applications for adoption, evaluating the prospective adoptive parents, and preparing the
only be given half the inheritance of a legitimate child adoption home study.
• If the legitimation is irregular, the heirs can file suit to protect their rights (i) "Child-caring agency" is a duly licensed and accredited agency by the Department that
• Cause of action: only upon the death of the parents of the legitimated child provides 24-hour residential care services for abandoned, orphaned, neglected, or
• Even an adopted child can be a prejudiced heir of his adopter & his natural voluntarily committed children.
parents in case a child of the said parents is legitimated (j) "Simulation of birth" is the tampering of the civil registry making it appear in the birth
records that a certain child was born to a person who is not his/her biological mother,
TITLE VII. – ADOPTION causing such child to lose his/her true identity and status.
(Repealed)
Statutory Construction
Domestic Adoption Act of 1998 [RA 8552] - Feb. 25, 1998 • Adoption is a purely statutory creation
(Only relevant provisions are cited) o All statutory requirements for adoption must be met
o Where a court issues an adoption decree despite the fact that all said
Sec. 2. Declaration of Policies. – (a) It is hereby declared the policy of the State to ensure requirements are not met, such decree is a nullity.
that every child remains under the care and custody of his/her parent(s) and be provided

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 Example: A child by adoption cannot inherit from the parent by
o to beg in the streets or public places; or when children are in moral danger, or exposed
adoption unless the act of adoption has been done in strict accord to gambling, prostitution, and other vices.
with the statute (5) Child Legally Available for Adoption refers to a child in whose favor a certification was
• Burden of proof: the person claiming such relationship issued by the DSWD that he/she is legally available for adoption after the fact of
o One must prove compliance with statutes relating to adoption in the abandonment or neglect has been proven through the submission of pertinent
jurisdiction where the adoption occurred documents, or one who was voluntarily committed by his/her parent(s) or legal guardian.
• If the mandatory requirements are present, & there are only irregularities, (6) Voluntarily Committed Child is one whose parent(s) or legal guardian knowingly and
substantial compliance with mandatory requisites is enough willingly relinquished parental authority to the DSWD or any duly accredited child-
• Always, the primary consideration in adoption is the interest & welfare of the placement or child-caring agency or institution.
child
Section 7. Declaration of Availability for Adoption of Involuntarily Committed Child and
Sec. 4. Counseling Services – The Department shall provide the services of licensed Voluntarily Committed Child. – The certificate declaring a child legally available for
social workers to the following: adoption in case of an involuntarily committed child under Article 141, paragraph 4(a)
(a) Biological Parent(s) – Counseling shall be provided to the parent(s) before and and Article 142 of Presidential Decree No. 603 shall be issued by the DSWD within three
after the birth of his/her child. No binding commitment to an adoption plan (3) months following such involuntary commitment.
shall be permitted before the birth of his/her child. A period of six (6) months In case of voluntary commitment as contemplated in Article 154 of Presidential Decree
shall be allowed for the biological parent(s) to reconsider any decision to No. 603, the certification declaring the child legally available for adoption shall be issued
relinquish his/her child for adoption before the decision becomes irrevocable. by the Secretary within three (3) months following the filing of the Deed of Voluntary
Counseling & rehabilitation services shall also be offered to the biological Commitment, as signed by the parent(s) with the DSWD.
parent(s) after he/she has relinquished his/her child for adoption. Upon petition filed with the DSWD, the parent(s) or legal guardian who voluntarily
committed a child may recover legal custody and parental authority over him/her from
Search for Biological Parents the agency or institution to which such child was voluntarily committed when it is shown
• The natural & biological parents of the child are always given the preference in to the satisfaction of the DSWD that the parent(s) or legal guardian is in a position to
the custody of their own children adequately provide for the needs of the child: Provided, That, the petition for restoration
• Before adoption can proceed, the law requires that the child’s parents, if is filed within (3) months after the signing of the Deed of Voluntary Commitment.
unknown, must be located & that all reasonable means must be exhausted to
look for them Definition of a Child
• Person below 18 years of age, or
Intermission: Amending the Domestic Adoption Act of 1998, the • Person over 18 years of age but is unable to fully take care of himself or
Intercountry Adoption Act & P.D.603 [RA 9523] protect himself from abuse, neglect, cruelty, exploitation or discrimination
(Only relevant provisions are cited) because of physical or mental disability or condition

Sec. 2 – Definition of Terms Consent of Parents

(2) Child refers to a person below eighteen (18) years of age or a person over eighteen • As much as possible, the consent of the biological parents is necessary for the
(18) years of age but is unable to fully take care of him/herself or protect himself/herself child to be adopted
from abuse, neglect, cruelty, exploitation, or discrimination because of physical or mental
disability or condition.27 Regular Programming: Domestic Adoption Act of 1998
(3) Abandoned Child refers to a child who has no proper parental care or guardianship,
or whose parent(s) have deserted him/her for a period of at least three (3) continuous Sec. 7. Who May Adopt. – The following may adopt:
months, which includes a founding. (a) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of
(4) Neglected Child refers to a child whose basic needs have been deliberately good moral character, has not been convicted of any crime involving moral turpitude,
unattended or inadequately attended within a period of three (3) continuous months. emotionally and psychologically capable of caring for children, at least sixteen (16) years
Neglect may occur in two (2) ways: older than the adoptee, and who is in a position to support and care for his/her children
(a) There is physical neglect when the child is malnourished, ill-clad, and without proper in keeping with the means of the family. The requirement of sixteen (16) year difference
shelter. A child is unattended when left by himself/herself without proper provisions between the age of the adopter and adoptee may be waived when the adopter is the
and/or without proper supervision. biological parent of the adoptee, or is the spouse of the adoptee's parent;
(b) There is emotional neglect when the child is maltreated, raped, seduced, exploited, (b) Any alien possessing the same qualifications as above stated for Filipino
overworked, or made to work under conditions not conducive to good health; or is made nationals: Provided, That his/her country has diplomatic relations with the Republic of
the Philippines, that he/she has been living in the Philippines for at least three (3)
                                                                                                                continuous years prior to the filing of the application for adoption and maintains such
27 Relevant Note: This is the definition of children that ma’am told us to search for residence until the adoption decree is entered, that he/she has been certified by his/her
  Katrina Monica C. Gaw | Block C 2018| 92
diplomatic or consular office or any appropriate government agency that he/she has the
legal capacity to adopt in his/her country, and that his/her government allows the Joint Adoption of Husband & Wife
adoptee to enter his/her country as his/her adopted son/daughter: Provided, • Mandated by law for family harmony
Further, That the requirements on residency and certification of the alien's qualification
to adopt in his/her country may be waived for the following: Sec. 8. Who May Be Adopted. – The following may be adopted:
(i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of (a) Any person below 18 years of age who has been administratively or judicially declared
consanguinity or affinity; or available for adoption;
(ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or (b) The legitimate son/daughter of one spouse by the other spouse;
(iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse (c) An illegitimate son/daughter by a qualified adopter to improve his/her status to that
a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino of legitimacy;
spouse; or (d) A person of legal age if, prior to the adoption, said person has been consistently
(c) The guardian with respect to the ward after the termination of the guardianship and considered and treated by the adopter(s) as his/her own child since minority;
clearance of his/her financial accountabilities. (e) A child whose adoption has been previously rescinded; or
Husband and wife shall jointly adopt, except in the following cases: (f) A child whose biological or adoptive has died: Provided, That no proceedings shall be
(i) If one spouse seeks to adopt the legitimate son/daughter of the other; or initiated within 6 months from the time of death of said parents.
(ii) If one spouse seeks to adopt his/her own illegitimate son/daughter:
Provided, However, that the other spouse has signified his/her consent Who May Be Adopted
thereto; or • Situations when someone who is not a minor can be adopted:
(iii) if the spouses are legally separated from each other. o When the child adopted is the illegitimate child of the adopter
In case husband and wife jointly adopt, or one spouse adopts the illegitimate o When the child to be adopted is the legitimate child of his spouse
son/daughter of the other, joint parental authority shall be exercised by the spouses. o De facto adoption - When the child is consistently treated as a child of
the adopted during minority
Qualifications
• Relatives by blood or affinity are not excluded from adopting one another Sec. 9. Whose Consent is Necessary to the Adoption. – After being properly counseled
• A sister can adopt a brother, a stepfather can adopt a stepchild, etc. and informed of his/her right to give or withhold his/her approval of the adoption, the
• Adoption tries to approximate natural filiation as much as possible, but it is still written consent of the following to the adoption is hereby required:
the best interest of the child or the one to be adopted which is the principal (a) The adoptee, if ten (10) years of age or over;
consideration (b) The biological parent(s) of the child, if known, or the legal guardian, or the proper
• Conviction is necessary to exclude a possible adopter government instrumentality which has legal custody of the child;
(c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the
Aliens adopter(s) and adoptee, if any;
• Aliens, whether resident or non-resident, can generally adopt as long as they (d) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter if living
have the qualifications possessed by a Filipino national to adopt with said adopter and the latter's spouse, if any; and
• There are, however, additional conditions: (e) The spouse, if any, of the person adopting or to be adopted.
1) His country has diplomatic relations with the Republic of the Philippines
2) He has been living in the Philippines for 3 continuous years prior to the Written Consent
filing of the application for adoption & maintains such residence until the • Mandatory written consent of biological parents, as well as others
adoption decree is entered o Consent of parents to the adoption is not an absolute requisite
3) He has been certified by his diplomatic or consular office or any § If the natural parents have abandoned their children,
appropriate government agency that he has the legal capacity to adopt in consent by the guardian ad litem & the proper government
his country, & the government allows the adoptee to enter his country as agency suffices
his adopted son or daughter § Abandonment – total cessation of all parental duties
• Additional requirements may be waived if the alien who intends to adopt is • A period of 6 months is given for the biological parent to reconsider permission
either of the ff.: to adopt, but after this, the decision becomes irrevocable
1) A former Filipino citizen who seeks to adopt a relative within the 4th civil • Parent has to be properly counseled before the adoption decree can be given
degree of consanguinity or affinity
2) One who seeks to adopt the legitimate the son/daughter of his Filipino Sec. 13. Decree of Adoption. – If, after the publication of the order of hearing has been
spouse complied with, and no opposition has been interposed to the petition, and after
3) One who is married to a Filipino citizen & seeks to adopt jointly with his consideration of the case studies, the qualifications of the adopter(s), trial custody report
spouse a relative within the 4th civil degree of consanguinity or affinity of and the evidence submitted, the court is convinced that the petitioners are qualified to
the Philippine spouse adopt, and that the adoption would redound to the best interest of the adoptee, a decree
  Katrina Monica C. Gaw | Block C 2018| 93
of adoption shall be entered which shall be effective as of the date the original petition o Neither is the child of the adopted considered the descendant of the
was filed. This provision shall also apply in case the petitioner(s) dies before the adopted (i.e. if the adopted child has a child too, the law does not
issuance of the decree of adoption to protect the interest of the adoptee. The decree presume that the child is the grandchild of the adoptive parents)
shall state the name by which the child is to be known.
Sec. 18. Succession. – In legal and intestate succession, the adopter(s) and the adoptee
Effectivity of Adoption Decree shall have reciprocal rights of succession without distinction from legitimate filiation.
• The adoption decree is considered effective from the date of the original However, if the adoptee and his/her biological parent(s) had left a will, the law on
petition of adoption was filed testamentary succession shall govern.
o NOT when the decree became final
• However, if the child to be adopted murders someone during the proceedings Legal or Intestate Succession
for adoption, while the child still lives with his biological parents, the biological • An adopted child is an intestate heir of the adopter, along with the legitimate,
parents are the ones who pay due to the principle of vicarious liability legitimated & illegitimate children of the said adopter
• The adopter & the adoptee are mutually legal or intestate heirs of each other
Registration o If the adopter is survived only by his adoptee, the latter gets the whole
• It is the duty of the interested parties or petitioners to register the adoption of the estate of the deceased
decree in the LCR of the municipality where the decree was issued • Biological parents will not get anything from the adopted child, because all
• The LCR of the place where the birth certificate was issued must also be sent a legal ties are severed between them
copy
Right of Representation
Sec. 16. Parental Authority. – Except in cases where the biological parent is the spouse • The adopted child does not have the right of representation in the law of
of the adopter, all legal ties between the biological parent(s) & the adoptee shall be succession
severed and the same shall then be vested on the adopter(s). • Right of representation - In the event that his father dies, a legitimate son has a
right of representation to inherit from his grandfather
Severance of Legal Ties o This right stems from his blood relation with his grandfather, not with
• Right to parental authority is purely personal his father
• Cannot be waived or renounced except in the cases provided by law – like o In adoption, however, the relationship between adopted & adopting
adoption parents is made by law & not by blood; thus, no right of
• All legal ties between the natural parents & the adoptee are terminated representation vests upon the adopted child
o Exception: when the biological parent is the spouse of the adopter
§ Both parents will exercise joint parental authority over their Testate Succession
common children • If the adoptee & his biological parents had left a will, the law on testamentary
succession shall govern
Sec. 17. Legitimacy. – The adoptee shall be considered the legitimate son/daughter of • The adoptee has the same rights as the legitimate child
the adopter(s) for all intents & purposes and as such is entitled to all the rights & o If an adoptee concurs with an illegitimate child, the illegitimate child
obligations provided by law to legitimate sons/daughters born to them without gets ½ of what the adoptee gets
discrimination of any kind. To this end, the adoptee is entitled to love, guidance, and • If the adoptee leaves a will & specifies his biological parents, the free portion of
support in keeping with the means of the family. the will can be given to the biological parents
• But the adopting parents are the ones who are compulsory heirs; the biological
Effects of Adoption parents are not compulsory heirs
• Parental authority of natural parents is dissolved
o It becomes the adopter, for example, who must give their consent to Sec. 19. Grounds for Rescission of Adoption. – Upon petition of the adoptee, with the
the marriage of an adopted child between 18-21 years old assistance of the Department if a minor or if over eighteen (18) years of age but is
o Upon the death of the adoptive parents, no rights or duties are incapacitated, as guardian/counsel, the adoption may be rescinded on any of the
reestablished with the natural parents following grounds committed by the adopter(s): (a) repeated physical and verbal
• Relations established by adoption is limited to the adopting parents & does not maltreatment by the adopter(s) despite having undergone counseling; (b) attempt on the
extend to the other relatives, except as expressly provided by law life of the adoptee; (c) sexual assault or violence; or (d) abandonment and failure to
o The relationship is only one of parent & child comply with parental obligations.
o The adopted child is not related to the ascendants, descendants or Adoption, being in the best interest of the child, shall not be subject to rescission by the
collateral relatives of the adopter adopter(s). However, the adopter(s) may disinherit the adoptee for causes provided in
Article 919 of the Civil Code.

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 the child;
Sec. 20. Effects of Rescission. – If the petition is granted, the parental authority of the (b) Collect, maintain, and preserve confidential information about the child and
adoptee's biological parent(s), if known, or the legal custody of the Department shall be the adoptive parents;
restored if the adoptee is still a minor or incapacitated. The reciprocal rights and (c) Monitor, follow up, and facilitate completion of adoption of the child through
obligations of the adopter(s) and the adoptee to each other shall be extinguished. authorized and accredited agency;
The court shall order the Civil Registrar to cancel the amended certificate of birth of the (d) Prevent improper financial or other gain in connection with an adoption and deter
adoptee and restore his/her original birth certificate. improper practices contrary to this Act;
Succession rights shall revert to its status prior to adoption, but only as of the date of (e) Promote the development of adoption services including post-legal adoption;
judgment of judicial rescission. Vested rights acquired prior to judicial rescission shall be (f) License and accredit child-caring/placement agencies and collaborate with them in
respected. the placement of Filipino children;
All the foregoing effects of rescission of adoption shall be without prejudice to the (g) Accredit and authorize foreign adoption agency in the placement of Filipino children
penalties imposable under the Penal Code if the criminal acts are properly proven. in their own country; and
(h) Cancel the license to operate and blacklist the child-caring and placement agency
Inter-country Adoption of 1995 [RA 8043] – Dec. 26 1995 or adoptive agency involved from the accreditation list of the Board upon a finding of
violation of any provision under this Act.
Background
• Socio-legal process of adopting a Filipino child by a foreign national or a Filipino Sec. 7. Inter-Country Adoption as the Last Resort. — The Board shall ensure that all
citizen permanently residing abroad when the petition for adoption is filed, the possibilities for adoption of the child under the Family Code have been exhausted and
supervised trial custody is undertaken, & the decree of adoption is issued in that inter-country adoption is in the best interest of the child. Towards this end, the
the foreign country where the applicant resides, thereby creating a permanent Board shall set up the guidelines to ensure that steps will be taken to place the child in
parent-child relationship between the child & the adoptive parents the Philippines before the child is placed for inter-country adoption: Provided, however,
That the maximum number that may be allowed for foreign adoption shall not exceed
Sec. 3. Definition of Terms. — As used in this Act. the term: 600 a year for the first 5 years.
(a) Inter-country adoption refers to the socio-legal process of adopting a Filipino
child by a foreigner or a Filipino citizen permanently residing abroad where the petition is Sec. 8. Who May be Adopted. — Only a legally free child may be the subject of inter-
filed, the supervised trial custody is undertaken, and the decree of adoption is issued country adoption. In order that such child may be considered for placement, the following
outside the Philippines. documents must be submitted to the Board:
(b) Child means a person below fifteen (15) years of age unless sooner emancipated (a) Child study;
by law. (b) Birth certificate/foundling certificate;
(c) Department refers to the Department of Social Welfare and Development of the (c) Deed of voluntary commitment/decree of abandonment/death certificate of
Republic of the Philippines. parents;
(d) Secretary refers to the Secretary of the Department of Social Welfare and (d) Medical evaluation/history;
Development. (e) Psychological evaluation, as necessary; and
(e) Authorized and accredited agency refers to the State welfare agency or a (f) Recent photo of the child.
licensed adoption agency the country of the adopting parents which provide
comprehensive social services and which is duly recognized by the Department. Qualified Children
(f) Legally-free child means a child who has been voluntarily or involuntarily • Any child who has been voluntarily or involuntarily committed to the DSWD as
committed to the Department, in accordance with the Child and Youth Welfare Code. dependent, abandoned or neglected
(g) Matching refers to the judicious pairing of the adoptive child and the applicant to o In case the child is voluntarily committed, the physical transfer of the
promote a mutually satisfying parent-child relationship. child shall not be made earlier than 6 months from the date the Deed
(h) Board refers to the Inter-country Adoption Board. of Voluntary Commitment was executed by the child’s biological
parents
Sec. 4. The Inter-Country Adoption Board. — There is hereby created the Inter-Country • Important note: the child here as defined as one who is below 15 years of age
Adoption Board, hereinafter referred to as the Board to act as the central authority in (as opposed to the Domestic Adoption Act)
matters relating to inter-country adoption. It shall act as the policy-making body for
purposes of carrying out the provisions of this Act, in consultation and coordination with Sec. 9. Who May Adopt. — An alien or a Filipino citizen permanently residing abroad may
the Department, the different child-care and placement agencies, adoptive agencies as file an application for inter-country adoption of a Filipino child if he/she:
well as non-governmental organizations engaged in child-care and placement activities. (a) is at least twenty-seven (27) years of age and at least sixteen (16) years older than
As such, it shall: the child to be adopted, at the time of application unless the adopter is the parent by
(a) Protect the Filipino child from abuse, exploitation, trafficking and/or sale or any nature of the child to be adopted or the spouse of such parent:
other practice in connection with adoption which is harmful, detrimental, or prejudicial to (b) if married, his/her spouse must jointly file for the adoption;

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 (c) has the capacity to act and assume all rights and responsibilities of parental • 2nd par. of Art. 194
authority under his national laws, and has undergone the appropriate counseling from o “Schooling” refers to formal education
an accredited counselor in his/her country; o “Training” refers to non-formal education
(d) has not been convicted of a crime involving moral turpitude;
(e) is eligible to adopt under his/her national law; Art. 195. Subject to the provisions of the succeeding articles, the ff. are obliged to
(f) is in a position to provide the proper care and support and to give the necessary support each other to the whole extent set forth in the preceding article:
moral values and example to all his children, including the child to be adopted; 1) The spouses;
(g) agrees to uphold the basic rights of the child as embodied under Philippine laws, 2) Legitimate ascendants & descendants;
the U.N. Convention on the Rights of the Child, and to abide by the rules and regulations 3) Parents & their legitimate children & the legitimate & illegitimate children of
issued to implement the provisions of this Act; the latter;
(h) comes from a country with whom the Philippines has diplomatic relations and 4) Parents & their illegitimate children & the legitimate & illegitimate children of
whose government maintains a similarly authorized and accredited agency and that the latter; &
adoption is allowed under his/her national laws; and 5) Legitimate brothers & sisters, whether of full or half-blood.
(i) possesses all the qualifications and none of the disqualifications provided herein
and in other applicable Philippine laws. Class Notes
• Art. 195 (2) & (3), phrased in an easier way
Qualified Adopters o Parents & their children, whether legitimate or illegitimate
• If a married person is to adopt, the rules clarify that he shall file jointly with his o Grandparents & their grandchildren, whether legitimate or illegitimate
spouse, if any, who shall have the same qualifications & none of the § Thus, one is entitled to support from one’s illegitimate
disqualifications to adopt as prescribed in the rules grandchildren & vice versa
• Illegitimate siblings are not contemplated in Art. 195 (4)
Sec. 11. Family Selection/Matching — No child shall be matched to a foreign adoptive • An unborn child is also entitled to support; whether or not the child is born is
family unless it is satisfactorily shown that the child cannot be adopted locally. The irrelevant
clearance, as issued by the Board, with the copy of the minutes of the meetings, shall
form part of the records of the child to be adopted. When the Board is ready to transmit Mandatory Nature
the Placement Authority to the authorized and accredited inter-country adoption agency • Support is a mandatory obligation
and all the travel documents of the child are ready, the adoptive parents, or any one of o Cannot be waived, renounced, transmitted or compensated
them, shall personally fetch the child in the Philippines. o Most sacred & important of all obligations imposed by law
• Art. 2035, CC: No compromise shall be valid upon the question of future
Matching support
• The judicious pairing of the applicant & the child to promote a mutually • CASE: De Asis v. CA – A mother in a previous support-case said that it would be
satisfying parent-child relationship useless to claim further support for her son from the defendant who denied
paternity. She thus agreed to the dismissal of the case, provided that the
TITLE VIII. – SUPPORT defendant did not pursue a counter-claim.
o SC: Such manifestation does not bar the mother from filing a
Art. 194. Support comprises everything indispensible for sustenance, dwelling, clothing, subsequent case for support on behalf of the child against the same
medical attendance, education & transportation in keeping with the financial capacity of defendant. The agreement for the dismissal of the case was in the
the family. form of a compromise, which cannot be countenanced by law, as it
The education of the person entitled to be supported referred to in the preceding goes against the right to future support.
paragraph shall include his schooling or training for some profession, trade or vocation, o If paternity is at issue, its existence or absence must be judicially
even beyond the age of majority. established & cannot be left to the will or agreement of the parties
Transportation shall include expenses in going to & from school, or to & from place of
work. Between Spouses
• The duty to support & the right to be supported presuppose a VALID marriage
Support
between the parties
• General rule: support includes whatever is necessary to keep a person alive o Fact of valid marriage gives rise to the duty of mutual support
o The key term is “indispensible”
• Even when there is a legal separation, the spouses may still be mandated to
• “In keeping with the financial position of the family” give support
o Determines the amount of support to be given
• CASE: Dadivas de Villanueva v. Villanueva – A man kept cheating on his wife,
• Natural support – basic necessities until his wife finally left him. She then made a demand for support in court. The
• Civil support – Anything beyond the basic necessities
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 husband claimed that she was not entitled to his support, as she had left their • Parents are obliged to support their children & grandchildren whether
conjugal home. legitimately or illegitimately related & vice versa
o SC held that the wife is entitled to support, as a husband cannot, by • However, the persons obliged to support each other are limited from the
his own wrongful acts, relieve himself from the duty to support his grandparents to the grandchildren only & vice versa
wife imposed by law; and where a husband by wrongful, illegal and
unbearable conduct, drives his wife from the domicile fixed by him, he Between Parents & their Illegitimate Children & the Legitimate & Illegitimate Children of
cannot take advantage of her departure to abrogate the law the Latter
• Valid Reasons for NOT Giving Support • Parents are obliged to support their illegitimate children or grandchildren,
o It has been held that the adultery of the wife is a valid defense whether or not legitimately or illegitimately related to their illegitimate children
against an action for support & vice versa
o A spouse who leaves the conjugal home or refuses to live therein, • Limited from grandparents to grandchildren only & vice versa
without just cause, shall not have the right to be supported from the • If in a hearing for support pendent lite, the status of the child is at issue, the
ACP/CPG (Art. 100 & 127, FC) alleged child can get support in the meantime while the case is pending from
• In a case for support where the VALIDITY OF THE MARRIAGE is in issue, the the alleged parent if his status has been provisionally proven
aggrieved party cannot be given support pendente lite without due hearing o That means there is prima facie evidence, such as the affidavit of the
o Prior to the rendition of final judgment, nothing exists except the claimant-child & testimonies of witnesses, to show merit of the claim
allegation of a marriage & denial thereof (Yangco v. Rohde) of the child
• Pending litigation for legal separation or annulment o However, finding is merely provisional; still subject to the final
o Spouses shall be supported from ACP/CPG outcome of the trial on the merits
o Art. 198, FC – In cases of legal separation, the court may order the • CASE: Quiminguing v. Icao – Even an unborn child is given by law a provisional
guilty spouse to support the innocent one, even after the separation personality for all purposes favorable to it, as provided in the Civil Code
has been decreed o Has a right to support from its progenitors
• Once a marriage is nullified/annulled, the obligation to give support ceases o NOT dependent on whether or not the child is born
• In legal separation, support likewise ceases unless the court orders the guilty
spouse to support the innocent spouse Between Legitimate Brothers & Sisters, Whether Full or Half-Blood
• The collateral blood relatives that are obligated to support each other are
Between Ascendants & Descendants LIMITED to legitimate brothers & sisters, whether full or half-blood
• All members of the family in the direct legitimate ascending & descending are • Not obliged:
obligated to support each other o Uncles & aunts
• If the relationship between the one to be supported & the one to support is in o Nieces & nephews
issue, the status of the parties should be established first before support can
be made Art. 196. Brothers & sisters not legitimately related, whether of the full or half-blood, are
o Example: If a minor son, through his guardian, brings an action claim likewise bound to support each other to the full extent set forth in Art. 194, except only
a certain man is his father, the fact that said man is the father must when the need for support of the brother & sister, being of age, is due to a cause
first be proven before support can be mandated imputable to the claimant’s fault or negligence.
o There is no law or reason which authorizes the granting of support to
a person who claims to be a son in the same manner as to a person Illegitimate Brothers & Sisters
who establishes by legal proof that he is such a son • There is also an obligation to support illegitimate brothers & sisters
§ In the latter case, the legal evidence raises a presumption of • HOWEVER, support does not become a demandable right & need not be given
law, while in the former there is no presumption at all if an illegitimate brother or sister is:
§ If there is nothing but mere allegation, a fact in issue & no 1) Already of legal age &
final judgment, no support can be given (Francisco v. 2) The need for his support is due to his fault or negligence
Zandueta)
• Valid defense to refuse support by a husband to a child in claiming support: Art. 197. For the support of legitimate ascendants; descendants, whether legitimately or
o That such child is the fruit of an adulterous relationship, for in such illegitimately related, only the separate property of the person obliged to give support
case, it would not be the child of the person from whom support is shall be answerable provided that in case the obligor has no separate property, the
sought ACP/CPG, if financially capable, shall advance the support, which shall be deducted from
the share of the spouse obliged upon the liquidation of the ACP/CPG.
Between Parents & their Legitimate Children & the Legitimate & Illegitimate Children of
the Latter Class Notes

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 • Support will come from the separate property of obliged individual, even if said of mutual support between spouses ceases. However, in case of legal separation, the
individual is married court may order that the guilty spouse shall give support to the innocent one, specifying
o If there is a COMPLETE ABSENCE of separate property & it is a parent the terms of such order.
or sibling that must be supported, it can be advanced by the ACP
o If the one entitled to support is an illegitimate child & there is only Support Pendente Lite
INSUFFICIENCY of funds of separate property, the amount can also be • Pendente lite – support pending litigation
advanced by the ACP o Recall: If the party is in bad faith, he is not entitled to net profits
Source • Support under this chapter is PRINCIPALLY obtained from the separate
• Art. 195: Support is personally owned to each other property of the spouse from who support is sought
o It is to be taken from the separate property of the person obliged to o HOWEVER, pending litigation, support for the spouses & the kids shall
give support be drawn from ACP/CPG
• Art. 94[1] & 121[1]: The ACP/CPG will be principally charged for support if: o Take note: in a nullity case, spouse cannot demand support from
(1) If legitimate descendants are the common children of the spouses or separate property of other spouse
(2) The legitimate children of either spouse
*Different from the personal support owing to them from the father or SCENARIO
mother as provided in Art. 195 or 197 A files a legal separation case. If A is the one guilty of adultery, there is no case because
o Because the law does not so provide, the ACP/CPG of a child with his A is the one guilty of adultery. Thus there is no entitlement to pendente lite because the
spouse is not principally liable to support his parents legal separation case will likely be dismissed.
• ACP/CPG, if financially capable, shall advance the support, which shall be
deducted from the share of the spouse obliged upon liquidation IF there is no Support Pendente Lite
separate property of the obligor • ACP/CPG is primarily source for the support of the spouses & the children
o Generally, there must be NO separate property available during the pendency of annulment, nullification & legal separation cases
• Insofar as illegitimate children of either spouse are concerned, the mere • Rule 61 of the 1997 Rules of Civil Procedure provides how support pendente
insufficiency of the separate property is enough to make ACP liable in the lite can be obtained:
meantime (Art. 94[9]) o When to apply – at the commencement of the proper action, or at any
o But if the regime is CPG, the regime can in the meantime be held time prior to the judgment or final order
liable if the responsibilities enumerated in Art. 121 have been o Adverse party has 5 days to comment, & hearing is set 3 days after
covered & there is at least insufficiency of the separate property of o Court fixes the amount of money to be provisionally paid if the
the spouse called upon to make the support (Art. 122) application is granted & fixes the amount based on the necessity of
the applicant & the means of the adverse party
Who Are Entitled What Can Be Liable Insufficiency/Absence § If the adverse party fails to give the court-mandated support,
Legitimate Children of both ACP/CPG is principally liable If ACP/CPG is any 3rd party who furnishes the support to the applicant
or either spouse & common insufficient, separate may, after due notice & hearing in the same, obtain a writ of
children of the spouses property of spouses is execution to enforce his right of reimbursement against the
liable person ordered to provide such support
Illegitimate children of either Separate property is If separate property of o Restitution – When the judgment of the court finds that the person
spouse principally liable; spouses is insufficient, who has been providing support pendente lite is not actually liable, it
ACP can advance the support; the spouses can use shall order the recipient thereof to return the former with legal
CPG can be held liable if the ACP/CPG interest from the dates of actual payment
responsibilities in Art. 121 are § The original applicant can still file an action against others
covered who must give her support
Parents & siblings Separate property is There must be a • Valid reasons to withhold support:
principally liable; ACP/CPG complete absence of o Adultery of a wife; however, the adultery must be supported by
can advance support, but only separate property on competent evidence
if there is complete absence the part of the obligor- § Mere allegation that the wife committed adultery will not bar
of separate property spouse her from the right to recover support pendente lite
§ It is enough, however, that an affidavit or other documentary
Art. 198. During the proceedings for legal separation or for annulment of marriage, & for evidence appear on record for the court to make a judgment
declaration of nullity of marriage, the spouses & their children shall be supported from on whether or not support pending litigation should be given
the properties of the ACP/CPG. After final judgment granting the petition, the obligation • Not necessary to go into the full merits of a case

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 o CASE: Lerma v. CA – The wife, who was convicted of adultery in CFI, Art. 201. The amount of support, in the cases referred to in Art. 195 & 196, shall be in
filed a case against her husband for legal separation in CA. During the proportion to the resources or means of the giver & to the necessities of the recipient.
pendency of the suit, she invoked Art. 198 of FC. The husband
claimed that such adulterous act of the spouse is a defense to Art. 202. Support in the cases referred to in the preceding article shall be reduced or
successfully resist giving support pendente lite. The wife claims that increased proportionately, according to the reduction or increase of the necessities of
there is a difference & she is entitled to support from the CPG, even if the recipient & the resources or means of the person obliged to furnish the same.
she is not entitled to her husband’s exclusive funds
§ SC held that there is no difference between taking from the Evolving Capacity of Needs
husband’s exclusive funds & the CPG if it has been • Custody & support is never final
provisionally proven that the legal separation case will not • Support can be increased by mere motion to increase support
prosper
§ Law does not grant support to a petitioner in bad faith Proportionality
• Law is not unreasonable as to contemplate a situation where the one giving the
Art. 199. When 2 or more persons are obliged to give support, the liability shall devolve support shall be compelled to do something to the detriment of his own
upon the ff. persons in the order herein provided: existence
1) The spouse; • Support must be based on
2) The descendants in the nearest degree; o The necessities of the recipient &
3) The ascendants in the nearest degree; & o The resource or means of the person obliged to furnish support
4) The brothers & sisters • CASE: Vinluan v. CA – Where the aggregate annual income of the CPG was only
P3,000 & the wife, in her complaint, prayed for no more than P200 monthly
Art. 200. When the obligation to give support falls under 2 or more persons, the payment allowance, SC held that an award granting P1,000 was clearly excessive.
of the same shall be divided between them in proportion to the resources of each.
• CASE: Baltazar v. Serfino – SC will also increase support if it is shown that the
However, in case of urgent need & by special circumstances, the judge may order only 1
one paying the support has multiple sources of income & can thus afford to
of them to furnish the support provisionally, without prejudice to his right to claim from
give more support.
the other obligors the share due from them.
When 2 or more recipients at the same time claim support from one & the same person
Provisional Character of Support Judgment
legally obliged to give it, should the latter not have sufficient means to satisfy all claims,
• Judgment for support does not become final
the order established in the preceding article shall be followed, unless the concurrent
o Changing needs of the recipient & changing ability of the provider can
obliges should be the spouse & a child subject to parental authority, in which case the
bring about modification or alteration
child shall be preferred.
o May be modified for sufficient reasons upon application to the court
§ There must be a need that arose, though, for only then does
Class Notes
the one making the demand have a cause of action
• If the child is a minor, the order is reversed, & the parent must give support to
• The right to ask for support is demandable from the date in which the one
the minor child before giving support to the spouse
being supported was in need of the same
• Basis: Capacity of giver + necessity for the one needing the support
o Payable from date of judicial or extrajudicial demand
o Must always be considered
• If the petitioners’ right to support has already been recognized by the court, an
• When the court orders that one party needs to be supported by 2 persons, one
order of dismissal of the action for support on some other grounds cannot be
can advance the share of the other if the latter cannot currently afford to pay
with prejudice, as this would deprive the petitioner the right to present & future
support
Order of Priority
• Judgments for support do not become dormant; it becomes due from time to
• The law sets the order of the persons upon whom the liability of giving support
time as provided & enforceable by simple motion at any time
devolves
o EXCEPT as to installments not recovered within the statute of
o In the presence of the spouse, the descendants in the nearest degree
limitations
are not obliged to give support
o Ascendants in the nearest degree shall be obliged to give support only
Art. 203. The obligation to give support shall be demandable from the time the person
in the absence, failure or refusal to give support by the descendants
who has a right to receive the same needs it for maintenance, but it shall not be paid
in the nearest degree
except from the date of judicial or extrajudicial demand.
• CASE: Mangonon v. CA – SC ordered the grandfather, who was well-off, to Support pendent lite may be claimed in accordance with the Rules of Court.
support his grandkids, on the basis of Art. 199, considering that the parents Payment shall be made within the first 5 days of each corresponding month. When the
were not capable of giving support. recipient dies, his heirs shall not be obliged to return what he has received in advance.

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 o Example: A wife who is forced to leave the home by her husband,
Demand without fault on her part, may maintain an action for separate
• Payment of the amount for support starts only from the time the support has maintenance even if the law says the husband can choose other
been judicially or extra-judicially demanded methods to pay her support
o But the right to claim it starts from when it was needed • CASE: Mangonon v. CA – SC rejected the choice of the grandfather who was
• CASE: Jocson v. Empire Insurance Co. – Support does include what is giving support to take custody of the grandkids considering that, while they
necessary for education & such, but support MUST be demanded & the right to were in good terms prior to the filing of the suit for support pendente lite, the
it established before it becomes payable relationship of the grandfather & grandkids had already turned sour during the
o Right to support does not rise from the mere fact of relationship, but pendency of the suit
from imperative necessity; the law presumes that such necessity does
not exist when there is no demand Art. 205. The right to receive support under this Title as well as any money or property
o Need for support cannot be presumed obtained as such support shall not be levied upon on attachment or execution.
• CASE: Baltazar v. Serfino - An illegitimate child was born on Dec. 19, 1943 &
made an extrajudicial demand for support on June 1959. Exemption from Attachment or Execution
o SC held that payment of support should begin only from June 1959, • Anything obtained by way of support is impliedly for the survival of the recipient
applying Art. 203 of FC. o To deprive the recipient would be prejudicial to his existence
• CASE: Ilano v. CA – A case was filed in August 14, 1972 against the alleged • Thus, money or property obtained from support cannot be made to satisfy any
father of an illegitimate child. At the time, the child was 7 years of age. It was judgment against the recipient, nor can it be attached or subject to execution
proven that she was illegitimate born on December 30, 1963. When the case o HOWEVER, in case of contractual support or that given by will, the
was resolved, she was already spending about P500 for her school expenses excess in amount beyond that required for legal support can be levied
while the alleged father earned P10,000 a month. She reached the age of on attachment or execution (Art. 208, FC)
majority on December 30, 1984.
o SC held that the child was entitled to support in arrears for a period of Art. 206. When, without the knowledge of the person obliged to give support, it is given
12 years, 4 months & 14 days (from the date of filing until she by a stranger, the latter shall have a right to claim the same from the former, unless it
reached the age of majority) appears that he gave it without intention of being reimbursed.
o SC also graduated the amounts based on inflation
• CASE: Sy v. CA – In a custody suit, even if support is not prayed for, but it was Art. 207. When the person obliged to give support to another unjustly refuses or fails to
sought during the hearing of the case without objection of the other party, a give support when urgently needed by the latter, any 3rd person may furnish support to
decision of support can be obtained even if the pleadings were not amended to the needy individual, with a right of reimbursement from the person obliged to give
conform with the evidence support. This Article shall apply particularly when the father or mother of a child under
the age of majority unjustly refuses or fails to give support to the child when urgently
Support in Arrears needed.
• CASE: Mangonon v. CA – SC allows support in arrears; in this case, considering
that the children, who should have been given support, must already have Quasi-Contract
finished their schooling by the time the decision was rendered • Relationship between the stranger & the person obliged to give support under
o Arrears – money that is owed & should have been paid earlier Art. 206 is a quasi-contract.
§ Overdue after missing 1 or 2 required payments • Art. 2142, CC: A quasi-contract is a juridical relation which arises from certain
o Amount of support to be paid was computed from the time they had lawful, voluntary & unilateral acts to the end that no one shall be unjustly
entered college until they finished their respective studies enriched at the expense of another
o A lawful valid obligation arises from a quasi-contract
Art. 204. The person obliged to give support shall have the option to fulfill the obligation • Whoever advances the support shall be entitled to be reimbursed unless the
either by paying the allowance fixed, or by receiving & maintaining in the family dwelling grantor gives it as an act of liberality or without intending to be reimbursed
the person who has a right to receive support. The latter alternative cannot be availed in • Requisites for reimbursement of a stranger (from the case Ramirez & de
case there is a moral or legal obstacle thereof. Marcaida v. Redfern):
(1) The support was furnished upon a dependent of one bound to give
Option support but who fails to do so;
• The person obliged to give support has the right to elect the manner by which it (2) The support was supplied by a stranger;
is to be given (3) The support was given without the knowledge of the person charged
o Not an absolute right – can be opposed if there is a moral issue or if with the duty
there is a preferential right

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 • Negative qualification: when support is given without the expectation of o When it comes to support given by will, there can be no more
recovery modification of the amounts promised
• CASE: Ramirez & de Marcaida v. Redfern – A spouse obtained a sum of money • Basis of contractual support: agreement
on different occasions from her sister. The sister & her husband sued the o If the parents procure an educational policy for their kids through an
husband of the said spouse for reimbursement under Art. 206. insurance company – this is contractual support
o SC held that there was a failure of the 1st & 2nd essential elements § The money placed by the corporation in a trust fund to
because though the husband & wife are obliged to support each finance the education of the children cannot be subject to
other, the wife never asked money from her husband, & went directly levy or attachment except the amount in excess required for
to her sister. The husband also offered to give her money, & she legal support
never took it. § However, if the policy goes beyond educational support &
o Also, there is evidence that the husband amply provided for his wife & also says the children will receive money for their vacation
children in London. to fund for transportation expenses, said money can be
o This case was decided prior to the FC; if it was decided now, if it could attached in the proper cases, as it is not anymore needed
be proved that the loan given to the wife redounded to the benefit of for the children’s education
the family, the ACP/CPG could be held liable under Art. 94 & 121, FC
• Requisites restated by the Sta. Maria book: TITLE IX. – PARENTAL AUTHORITY
(1) There is an urgent need to be supported on the part of the recipient
(2) The person obliged to give support unjustly refuses or fails to give the Chapter 1: General Provisions
support
(3) A 3rd person furnishes the support to the needy individual Art. 209. Pursuant to the natural right & duty of parents over the person & property of
o Art. 207 particularly applies it is the father & mother of a child under the age of their unemancipated children, parental authority & responsibility shall include the caring
majority who unjustly refuses to give support or fails to give support to the child for & rearing of such children for civic consciousness & efficiency & the development of
when it is urgently needed their moral, mental & physical character & well-being.
o Example: A child writes his father in Davao the he, the child, needs
support to pay for tuition at school. If the father doesn’t want to give Natural Right
support just because he doesn’t want to fly to Manila just to give • The custody, care & the nurture of the child reside first in the parents, whose
money to his son, & a 3rd person furnishes the money for the child, primary function includes the preparation or obligations the state can neither
the 3rd person can file a claim against the father for reimbursement. supply nor hinder
• Parental authority can be transferred only by law
SCENARIO
If you are a brat, & make demands left & right to your parents, & your parents deny you & Art. 210. Parental authority & responsibility may not be renounced or transferred except
you go to your uncle, your case does not fall under Art. 207 as there is no unjust refusal. in cases authorized by law.

Art. 208. In case of contractual support or that given by will, the excess in amount Renunciation & Transfer of Parental Authority
beyond that required for legal support shall be subject to levy on attachment or • Upbringing of children – sacred duty of parents
execution. • Cannot be renounced or transferred except in cases authorized by law
Furthermore, contractual support shall be subject to adjustment whenever modification • CASE: Santos v. CA – A father took his son away from the son’s grandparents,
is necessary due to changes in circumstances manifestly beyond the contemplation of who were taken care of his child, through deceit, false pretensions & trickery. In
the parties. the case, the father signed a document entrusting the grandparents with the
custody of the minor previously. However, it was not shown during trial that the
Contractual & Testamentary Support father was actually unfit.
• The contract of support is not the equivalent of obligation to support o SC held that the father had the rightful custody of his child.
o Obligation to support is what is mandated by law (Art. 194) o Parental authority & responsibility are inalienable & may not be
o A contract of support may be given by a donor or 3rd party transferred or renounced except in cases authorized by law
§ Usually with reciprocal duties & obligations o Waiver is allowed only in cases of adoption, guardianship & surrender
§ In case of support given by contract or by will, the excess to a children’s home or orphan institution
beyond what is required for legal support can be levied for o The document signed by the father was just for temporary custody &
attachment or execution does not constitute renunciation of parental authority
• Only contractual support is subject to adjustment whenever modification is § Law does not allow renunciation unless:
necessary due to circumstances not contemplated by the parties • Parent dies

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 • Parent is absent acknowledgement (in this case, even if he allowed the use of his surname &
• Parent is unsuitable gave support)
o Furthermore, in the case, there was no proof that the father could not o Sta. Maria reminds us that he thinks this is wrong
presently support the child • Once parental authority is vested, it cannot be waived except in cases of:
§ This is true even if previously, the father failed to financially 1) Adoption
support the child for 3 years 2) Guardianship
• Parental authority can be terminated for cause in accordance with legal 3) Surrender to a children’s home or orphan institution
grounds in Art. 228-232, FC
o Duty of care is not dependent on custody Preferential Choice of the Father
o If a mother does not have custody of her child & the father is properly • Father & mother exercise joint parental authority, but in case of conflict, the
supporting him, she still has a duty to give him personal care & decision of the father prevails
attention o Presumption is that father’s decision is for the child’s best interest,
though this doesn’t necessarily mean that the mother’s isn’t.
Art. 211. The father & the mother shall jointly exercise parental authority over the • If both the decision of the father & mother have merit, & to be able to prevent a
persons of their common children. In case of disagreement, the father’s decision shall void decision, the decision of the father is given preference
prevail, unless there is a judicial order to the contrary. o Only a court order can alter the binding force of the father’s decision
Children shall always observe respect & reverence towards their parents & are obliged to § Basis must rest on substantial, important & serious grounds
obey them as long as the children are under parental authority. for the paramount interest of the children
o Example: If the mother does not want to have the children study in a
Joint Parental Authority particular school because the kids do not like the school, it is not
• Parents are equally bound to ensure the wholesome upbringing of their enough to supplant the dad’s decision to send the children to said
children school.
o True for both illegitimate & legitimate children if they are the § If the school, however, evidently does not provide good
“common children” of the mother & father, as provided by Art. 211 instruction or does not teach the right moral values & the
father avoids listening to the reasons of the mother, the
Application to Illegitimate Children mother can go to court & have the decision changed
• Two requisites:
1) The father is certain; Art. 212. In case of absence or death of either parent, the parent present shall continue
2) The illegitimate children are living with the said father & mother, who are exercising parental authority. The marriage of the surviving parent shall not affect the
cohabiting without the benefit of marriage or under a void marriage not parental authority over the children, unless the court appoints another person to be the
falling under Art. 36 & 53 guardian of the person or property of the children.
• This interpretation harmonizes Art. 176 & Art. 211
o Art. 176 – provides that illegitimate children will be under the Remarriage of Parent
parental authority of the mother • Death of one of the spouses will not terminate parental authority of the
§ Based on the idea that the paternity is uncertain & a surviving parent over their children
particular man should not be made liable if it is uncertain • If surviving spouse remarries, the parental authority is also not affected
the child is his o The new spouse, however, does not automatically possess parental
§ Could be because the father has another family or he does authority over the child of the surviving parent unless such new
not openly acknowledge the child spouse legally adopts the children
§ Follows that Art. 176 applies in 2 cases: • Upon remarriage of the surviving parent, the court may appoint another person
1) When the paternity of the child is unknown or in to be the guardian of the person or property of the children if it is shown that,
doubt by reason of remarriage, the surviving parent cannot undertake the necessary
2) Where, though paternity is certain, the father does devotion & concern toward the children
not live with the mother & the child
• CASE: David v. CA – A married man living with his legitimate family got hold of Art. 213. In case of separation of the parents, parental authority shall be exercised by
his illegitimate son from the latter’s mother, who was not living with the the parent designated by the Court. The Court shall take into account all relevant
married man. SC held that parental authority is vested in the mother only & the considerations, especially the choice of the child over 7 years of age, unless the parent
mother is the one entitled to custody chosen is unfit.
• CASE: Briones v. Miguel – SC ruled that illegitimate children are under the sole No child under 7 years of age shall be separated from the mother, unless the court finds
parental authority of their mothers, regardless of the father’s compelling reasons to order otherwise.

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Tender Years Doctrine • Governed by A.M. No. 03-04-04 SC, “Rule on Custody of Minors & Writ of
• No child under 7 years of age shall be separate fro mother, unless there are Habeas Corpus in Relation to Custody of Minors”
compelling reasons o A habeas corpus can be availed of to secure custody of the child if
• Presumption is strong – the only thing that rebuts the presumption is a showing parents are separated from each other
that the mother is unfit § Parents can also use it as against 3rd persons
• Presumption holds even if parents made a previous agreement by contract that § Also the proper remedy to enable parents to regain custody
the child goes to the father of their minor daughter even though the latter be in the
custody of a 3rd person of her free will because the parents
Separation were compelling her to marry a man against her will
• Parental authority may be designated by court in case the parents separate • CASE: Tijing v. CA – Showed that the question of identity is relevant & material
o This does not necessarily mean that the parental authority of the in habeas corpus proceedings. In this case, the real parent filed a case against
other spouse is necessarily terminated or suspended an impostor parent who had kidnapped the child from the real parents &
o There are specific grounds for termination or suspension provided by caused the issuance of a falsified birth certificate indicating the child was hers
law & her live-in partner’s.
• CASE: Cang v. CA – The mother was granted parental authority over her o SC held that the child belongs to the real parents, making the ff.
children by the court in a legal separation case between her & her husband. observations in relation to her identity:
Later, she decided to have the children adopted without first seeking the § Evidence of sterility & impotence, irregular filing of birth
consent of the father. She argued that the court had already granted her the certificate, the resemblance of the real parents with the
parental authority, so permission was not needed. child, etc.
o SC held that the father’s consent is still necessary, because the legal • In child custody hearings, equity may also be invoked for the best interests of
separation decree did not terminate the parental authority of the the child.
father. Only the EXERCISE of parental authority was given to the o CASE: Dacasin v. Dacasin – SC ruled as void a custodial agreement
mother providing that the child below 7 years of age would be under the joint
§ Hence, the mother would have the right to the children’s custody of both separated parents. Instead of dismissing the case for
services & earnings & the right to direct their activities & lack of cause of action, however, SC remanded the case to the lower
make decisions regarding their care, control, education, court to determine the child’s custody, as the child was already 15
health, etc. when the case was decided, so there was no longer any need to
§ However, such delegation did not excuse her having the follow the mandatory maternal custody regime under Art. 213.
children adopted without the father’s consent, because the
father still had parental authority & there was no finding that Parental Preference Rule
he was an irresponsible person • Natural parents, who are of good character & can reasonable provide for the
child, are ordinarily entitled to the custody of the child against all persons
Custody of Children o Springs from the exercise of parental authority
• Parents are never deprived of the custody & care of their children, except for o Entitled as against prospective adoptive parents
just cause o Also applies against other relatives, like grandparents, or as against
• But in custody cases, the right of the parents are not the paramount issue; they an agency or institution
are overridden by the singular interests of the child
• The “cardinal principle” & “paramount consideration” is the best interest of the Maternal Preference
child in custody cases • The mother is the natural custodian of her young – awarded sole parental
o Courts shall take into account the choice of the child over 7 years of authority
age, unless the parent chosen is unfit • In applying the Tender Years Doctrine rule (tender-age presumption), the child
§ However, such choice is not determinative of the issue of must be under 7 years of age at the time either parent is given custody or at
custody; the court may nevertheless award custody to the the time the decision is rendered
other parent or even to a 3rd person if the paramount • However the criterion is flexible, depending on the paramount interest of the
interest of the child so dictates child
§ HOWEVER, if the child has made a choice & there is no • CASE: Espiritu v. CA – In a custody case, a mother who had been committing
showing that the chosen parent is unfit, the child is to be bigamy & was convicted of it in court, & who the children witnessed kissing the
awarded to the chosen parent other man, filed to gain custody of her children. The children chose to go to the
father & the psychologist said the children were better off with the father.
Custody Hearings

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 o SC held that the children were better off with the father, looking upon • Custody may be granted to persons who are strangers to the family if such
the relevant, substantive facts of the case. The court must examine if award would best serve the paramount interest of the child
the parent chosen is unfit to assume parental authority. • Court may designate:
o Adultery/bigamy of the parent during the child’s formative years may o Paternal or maternal grandparents
likewise be considered in questions involving the custody of the o Brothers & sisters of the child
children, since adultery is a sign that the woman is immoral & unfit to o Some reputable & discreet person
take care of their child. o Asylum, children’s home or benevolent society
• Any agreement by the parties unduly depriving the mother of the custody of her
children under 7 years of her age in the absence of any compelling reason to No Finality of Custody Judgment
warrant the same is null & void. • Custody of minor children is always open to adjustments as the circumstances
o CASE: Dacasin v. Dacasin – A Philippine Court has no authority to relevant to the matter may demand
enforce a custody-agreement executed in the U.S. where a Filipina • CASE: Luna v. IAC – The custody of the child was awarded to the grandparents
woman divorced from her foreigner spouse agreed that she & her ex by the lower court, but later the CA granted it to the natural parents. But when
would have joint custody of their child. the child said she would kill herself if she would be delivered to her natural
§ At the time the agreement was made, the child was below 7 parents, SC reversed the CA decision even if at first it affirmed it.
years old. When it was decided, she was 15. Nevertheless, • CASE: Viesca v. Gilinsky – Where an equivocal compromise agreement reached
the custody agreement was declared void for being contrary between the 2 parties results in a disagreement between them for a prolonged
to law. period, the court’s only choice is to help facilitate the compromise agreement;
§ In Philippines, sole parental custody is awarded to the the court itself cannot modify, by motion of one of the parties, a compromise
mother when the child is below 7 years old. agreement.
• However, parents can make ancillary agreements, such as visitation rights &
other privileges; but they cannot decide that the custody will be jointly shared Art. 214. In case of death, absence or unsuitability of the parents, substitute parental
for a child under 7 authority shall be exercised by the surviving grandparent. In case several survive, the
• From 8 years old until the time of emancipation, the separated parents can, one designated by the court, taking into account the same consideration mentioned in
subject to the usual contractual limitations, agree on custody regimes they see the preceding article, shall exercise the authority.
fit to adopt
Substitute Parental Authority of Grandparents
Exception to Maternal Preference • In the absence or incapacity of the parents, the grandparents are the most
• There must be “compelling reason” that is shown by clear & positive evidence natural, suitable & logical persons to exercise parental authority
that the mother is unfit • Takes into consideration the choice of the child above 7 years old
o It must be complete unfitness, not merely comparative unfitness
o The criterion remains to be the paramount interest of the child Art. 215. No descendant shall be compelled, in a criminal case, to testify against his
• Instances that are not considered to be “compelling reasons” parents and grandparents, except when such testimony is indispensable in a crime
o When the mother is a lesbian against the descendant or by one parent against the other.
o When the father is more well-off than the mother but the mother
sustains the family Reason for the Filial Privilege
o When the mother occasionally forgets to bathe the child, or leaves the • The privilege is solely addressed to the descendant-witness
child with the grandmother often, or goes out late at night; none of o He may or may not testify against his parents or grandparents in a
these are concrete proofs that she is unfit, though they may show she criminal case
is neglectful o If the descendant does not want to do so, he cannot be compelled to
• But where it is shown that the mother is completely neglectful, that she intends do so
to have her children adopted by her wealthy aunt for monetary consideration, o The child can testify if he wants to, but he cannot be forced
that her children were always sick when the mother took them, it was enough • Exception: Such testimony is indispensible in a crime against the descendant
to turn over custody to the father. or by one parent against another
• Presumption of maternal preference is only resorted to in the rare situation
when all other considerations are equal, with the parental qualities of the Marital Privilege
litigants so equally balanced that the presumption becomes necessary • Provided in Sec. 24(a) of Rule 130 of the Rules of Court
o The husband & wife, during or after the marriage, cannot be
Custody Granted to Others examined without the consent of the other as to any communication

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 received in confidence by one from the other during the marriage,
except: Art. 217. In case of foundlings, abandoned, neglected or abused children & other
§ In a civil case by one against the other children similarly situated, parental authority shall be entrusted in summary judicial
§ In a criminal case for a crime committed by one against the proceedings to heads of children’s homes, orphanages and similar institutions duly
other or the latter’s direct descendants or ascendants accredited by the proper government agency.
• A rape case filed by the daughter against the
father was considered by SC as a crime “against Unfortunate Children
the other” • Foundling – newborn child abandoned by its parents who are unknown
• Not dependent on the CHOICE of the confessor, but on the CONSENT of the • Abandoned – One who has no proper parental care or guardianship; or whose
spouse parents or guardians have deserted him for a period of at least 6 continuous
• CASE: Alvarez v. Ramirez - The husband set fire to the house of his wife’s sister months
knowing the wise was inside the house. A wife testified against her husband in • Neglected – One whose basic needs have been deliberately unattended or
the arson case. inadequately unattended; two forms of neglect:
o SC held that there was no more marital privilege to protect, & the wife o Physical neglect – child is malnourished, ill clad & without proper
could testify against her husband. shelter
o Emotional neglect – child is maltreated, raped or seduced, exploited
Final Notes or overworked or made to beg in the streets, or are placed in
• Remember that custody is not the equivalent of parental authority situations of moral danger (abused children fall under here)
• Remember that parental authority terminates when one reaches the age of 18 • Dependent – One who is without a parent, guardian or custodian; or one whose
parent, guardian or custodian for good cause desires to be relieved of his care
CHAPTER 2: SUBSTITUTE & SPECIAL PARENTAL AUTHORITY & custody; dependent upon the public for support

Art. 216. In default of parents or a judicially appointed guardian, the following persons Child Welfare Agency
shall exercise substitute parental authority over the child in the order indicated: • Child welfare agencies cannot be established temporarily or permanently
1) The surviving grandparent, as provided in Art. 214; without a license secured from the DSWD
2) The oldest brother or sister, over 21 years of age, unless unfit or o License is non-transferrable
disqualified; & o Shall be used only by the person or institution to which it was issued
3) The child’s actual custodian, over 21 years of age, unless unfit or at the place stated therein
disqualified. • Proper function & purpose of the child welfare agency must be clearly defined
Whenever the appointment of a judicial guardian over the property of the child becomes
necessary, the same order of preference shall be observed. Transfer of Parental Authority
• Transfer of parental authority for unfortunate children shall be entrusted in a
Substitute Parental Authority summary proceeding to heads of children’s homes, orphanages or other similar
• Have all the rights given to parents in Art. 220 institutions (following Art. 253)
• Same authority over the person of the child as the parents (Art. 233) • The transfer of parental authority over the child can be voluntary or involuntary
• They shall also be civilly liable for the injuries & damages caused by the acts or • When done involuntarily:
omissions of the unemancipated children living in their company & under their o DSWD or authorized representatives or a child-placement agency
parental case (Art. 221) having knowledge of a child who appears to be dependent,
o Substitute parental authority is more encompassing than special abandoned or neglected may file a petition for involuntary
parental authority; the latter is usually for minors, & only for special commitment of said child
occasions or authorized activities o After commitment, parents or guardians shall thereafter exercise no
• A person who is not even related to an unemancipated child & who was not authority over him except upon such conditions as the court may
adopted by the same but who has actual custody of said child, may be liable for impose
the damages caused by said child o DSWD or agency becomes the legal guardian & will be entitled to
o At the same time, he may not inherit from the said child upon the custody & be responsible for his support
latter’s death, as he is not the heir at all • When done voluntarily:
• Order established is not mandatory o Parent of a neglected, abandoned or dependent child voluntarily
o If the brother is more qualified than the grandparent, the substitute commits the child to DSWD or a license child-placing agency or
parental authority may be granted to the brother individual
• But order must be observed when those enumerated are equally fit o He must be surrendered in writing by his parents or guardian

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 § In case of death or legal incapacity of either parent of the • Must be proven that the student is in the school premises in pursuance of a
child for a period of at least 1 year, the other parent alone legitimate student objective, in the exercise of a legitimate student right, &
has the authority to make the commitment even in the enjoyment of a legitimate student privilege
§ Upon being surrendered, the rights of his natural parents, o Even if the student is just relaxing in the grass or talking to his friends
guardians or custodian over the exercise of parental in school, he is within the custody of the school authorities
authority over him shall cease • No distinction on whether the school is academic or non-academic (arts &
o Agency will be entitled to custody & control of the child trades)
o Agency may intervene in adoption proceedings • Liability extends to the administrators of the school

Art. 218. The school, its administrators and teachers, or the individual, entity or Liability of Persons Exercising Substitute Parental Authority
institution engaged in child care shall have special parental authority and responsibility • Parents, judicial guardians & persons exercising parental authority over the
over the minor child while under their supervision, instruction or custody. minor are subsidiarily liable
Authority and responsibility shall apply to all authorized activities whether inside or o Liable only if the principals cannot satisfy their liability
outside the premises of the school, entity or institution.
Defense of Persons with Special Parental Authority
Art. 219. Those given the authority & responsibility under the preceding Art. shall be • The liability under Art. 219 will not apply if it is proved that they exercised the
principally & solidarily liable for damages caused by the acts or omissions of the proper diligence required under the particular circumstances
unemancipated minor. The parents, judicial guardians or the persons exercising o This is not as strictly imposed as liability is upon parents, because it is
substitute parental authority over said minor shall be subsidiarily liable. assumed that parents have more influence over their children than
The respective liabilities of those referred to in the preceding par. shall not apply if it is teachers do
proved that they exercised the proper diligence required under the particular
• CASE: Ylarde v. Aquino – Not enough that a teacher told the kids “not to touch
circumstances.
the stone” in an excavation site; to bring them there & then leave them there
All other cases not covered by this & the preceding articles shall be governed by the
by themselves is not something a reasonably prudent person would do. A
provisions of the Civil Code on quasi-delicts.
teacher who stands in loco parentis to his pupils must make sure that the
children are protected from all harm in his company.
Liability of Persons Possessing Special Parental Authority
• Special parental authority is given by law to: Quasi-Delict
o School, its administrator & teachers
• Art. 2180, CC: Teachers or heads of establishments of arts & trades shall be
o Individuals, entities or institutions engaged in child care
liable for damages caused by their pupils & students or apprentices so long as
• Can be exercised only while under their supervision, instruction or custody they remain in their custody.
o Also attaches to all authorized activities whether inside or outside the o There must be clear showing of negligence or laxness in the
school entity or institution enforcement of discipline
• They are civilly liable for the acts & omissions of the unemancipated minor o Applies if the students are no longer minor children
o BUT liability shall not apply if it is proved that they exercised the o School itself cannot be held liable under Art. 2180, but may be held
proper diligence required under the particular circumstances liable under the principle of respondeat superior
• Teacher must be teacher-in-charge § Master/employer is liable for the damages of
o The one designated by the dean, administrative superior or principal servants/employees
to exercise supervision over the pupils in his assigned classes § Same principle as special authority
o Immediately involved in the students’ discipline as he has direct o To exculpate themselves, the school, teachers or heads of the
control or influence over them establishment must show that they took the necessary precautions to
o Example: A mere physics teacher who is not the teacher-in-charge is prevent the injury complained of
not liable
• Those with special authority are in loco parentis only with respect to the SCENARIO
unemancipated minors & their liability will attach only in such a case If a child destroys property in school, special authority is primarily liable for the damages,
o Liability attaches while the minor is under their supervision, though the parents retain parental authority.
instruction & custody & all authorized activities
o “Being in the custody of the school” means the protective & AMPY’S ADVICE
supervisory custody these individuals have over the pupils for as long If the school tells you to sign a waiver for your child’s field trip absolving them of liability,
as they are in attendance in the school, including recess time sign the document. The waiver is void insofar as the school & teachers are concerned
when they negligently handle the field trip.

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 CHAPTER 3: EFFECT OF PARENTAL AUTHORITY UPON THE PERSONS OF THE 4) Has a right to live in an atmosphere conducive to his physical, moral &
CHILDREN intellectual development

Art. 220. The parents and those exercising parental authority shall have with respect to Art. 221. Parents & other persons exercising parental authority shall be civilly liable for
their unemancipated children or wards the following rights and duties: the injuries & damages caused by the acts or omissions of their unemancipated children
1) To keep them in their company, to support, educate & instruct them by right precept & living in their company and under their parental authority subject to the appropriate
good example, & to provide for their upbringing in keeping with their means; defenses provided by law.
2) To give them love and affection, advice and counsel, companionship & understanding;
3) To provide them with moral and spiritual guidance, inculcate in them honesty, Parents
integrity, self-discipline, self-reliance, industry & thrift, stimulate their interest in civic • Are primarily & principally liable for acts & omissions of their unemancipated
affairs, & inspire in them compliance with the duties of citizenship; children resulting in injuries to others
4) To enhance, protect, preserve & maintain their physical & mental health at all times; • 2 requisites:
5) To furnish them with good and whole- some educational materials, supervise their 1) The unemancipated child must be living in their company
activities, recreation and association with others, protect them from bad company, & 2) Must be under their parental authority
prevent them from acquiring habits detrimental to their health, studies and morals; • Doctrine of “imputed negligence” or vicarious liability – because you instruct &
6) To represent them in all matters affecting their interests; discipline your child, you are also liable for torts committed by him
7) To demand from them respect and obedience; o Responsibility for the negligence of those persons whose acts &
8) To impose discipline on them as may be required under the circumstances; and omissions are imputable, by legal fiction, to others who are in a
9) To perform such other duties as are imposed by law upon parents and guardians. position to exercise an absolute or limited control over them
o Torts that parents pay for their minor children are a result of their
Representative of the Children parental authority over them
• Art. 220, par. 8: Parents have the duty to represent their children in all matters • Parental dereliction can be overturned under Art. 2180, CC, by proof that the
affecting their interest parents had exercised all the diligence of a good father of a family to prevent
o An offer to redeem a particular property made by the father on behalf the damage
of his children is valid, as he is their natural guardian. It is not an act • Example: When, pending a trial, the child shoots someone, the natural parents,
of administration, but of representation of his children. rather than the adoptive parents, are liable, because the natural parents are
o A mother also has the right to file a petition for change of name on the ones with responsibility over the child. This is true even if the general rule in
behalf of her child, as the mother had the duty to represent the child adoption is that the parent-child relationship is established from the date of the
in all actions which redound to his benefit. filing of the petition
o A petition for habeas corpus filed by the uncle of a minor for the
minor was dismissed by SC because the parents of the minor filed a Diligence of a Good Father of a Family
motion to withdraw the appeal • Necessary to remove liability under Art. 221
§ The parents exercise joint parental authority & represent
• CASE: Libi v. IAC – The son had used his father’s gun to shoot someone. The
their children in all actions which may redound to their
father kept it in a safe but the son knew where it was & where the key was
benefit
hidden.
o SC held that there was no diligence of a good father of a family
Disciplinary Actions
• Art. 220 (7) & (8): Parents have the right to demand respect & obedience & to Art. 222. The courts may appoint a guardian of the child’s property, or a guardian ad
discipline them as may be required litem when the best interests of the child so require.
o They may inflict a reasonable measure of corporate punishment
• CASE: Roe v. Doe (U.S.) – A child who constantly disobeyed the reasonable Guardian
requests of her parents, abandoned her parents’ home without just cause, • Trust relationship of the most sacred character
tried experimental drugs, etc. was denied support by her parents. The decision
• Represents the interest of the incompetent or the minor
of the parents was upheld in the court, because her actions disregarding the
parental authority of the parents forfeited her rights to demand for support.
Selection
• The appointment which will probably keep the family together is preferred to
Rights of the Children
one which will bring about their separation
• Art. 356, CC provides that every child:
• Appointment of a guardian is addressed to the sound discretion of the court
1) Is entitled to parental care
2) Shall receive at least elementary education • Primary consideration – best interests of the child
3) Shall be given moral & civic training by the parents or guardian • Guardian must be personally subject to the court’s jurisdiction

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 The ordinary rules on guardianship shall be merely suppletory except when the child is
Art. 223. The parents or, in their absence or incapacity, the individual, entity or institution under substitute parental authority, or the guardian is a stranger, or a parent has
exercising parental authority, may petition the proper court of the place where the child remarried, in which case the ordinary rules on guardianship shall apply.
resides, for an order providing for disciplinary measures over the child. The child shall be
entitled to the assistance of counsel, either of his choice or appointed by the court, and a Legal Guardian
summary hearing shall be conducted wherein the petitioner & the child shall be heard. • No need for a judicial court order appointing parents as guardians
However, if in the same proceeding the court finds the petitioner at fault, irrespective of • Regardless of the value of the child’s property, the parents ipso jure become
the merits of the petition, or when the circumstances so warrant, the court may also the legal guardian of the child’s property
order the deprivation or suspension of parental authority or adopt such other measures o Here, still, father’s decision prevails over mother’s, subject to the
as it may deem just and proper. mother’s right to go to court to question the decision

Art. 224. The measures referred to in the preceding article may include the commitment Prohibition
of the child for not more than 30 days in entities or institutions engaged in child care or • 2 cases where a parent cannot be the administrator of the property of his
in children’s homes duly accredited by the proper government agency. children (provided in the law on succession):
The parent exercising parental authority shall not interfere with the care of the child 1) Art. 923, CC – Children & descendants of the person disinherited shall
whenever committed but shall provide for his support. Upon proper petition or at its own take his place & shall preserve the rights of the compulsory heirs with
instance, the court may terminate the commitment of the child whenever just and respect to the legitime, but the disinherited parent shall not have the
proper. usufruct or administration of the property which constitutes the legitime.
a. A has a legitimate son B. B has a legitimate son, C. At the time of
Aid from the Court the death of A, his net estate was P100,000.
• Parents have the principal duty of undertaking measures to discipline their b. A executed a will where he validly disinherited B & bequeathed
children all his properties to C.
• If the parent wants to discipline the child, they can petition, but the child has a c. Since C is the only heir who can inherit, he will inherit all of
right to be heard as well P100,000.
o One of the measures that can be imposed – commitment of the child i. The legitime portion is P50,000
for not more than 30 days in entities or institutions engaged in ii. The voluntary portion is P50,000
childcare d. B will not be allowed to administer the P50,000 constituting the
o Parent of the child will not interfere with care once committed, but legitime. However, B can administer the P50,000 constituting C’s
shall provide for his support inheritance as voluntary heir.
o Upon petition or at its own instance, court may terminate the 2) Art. 1035, CC – If the person excluded from the inheritance by reason of
commitment of the child whenever just & proper. incapacity should be a child or descendant of the decedent & should have
children or descendants, the latter shall acquire the right to the legitime.
CHAPTER 4: EFFECT OF PARENTAL AUTHORITY UPON THE PROPERTY OF The person so excluded shall not enjoy the usufruct & administration of
THE CHILDREN the property thus inherited by his children.
a. A has a legitimate son B, who has 2 legitimate children, C & D.
Art. 225. The father and the mother shall jointly exercise legal guardianship over the b. B groundlessly accused A of murder which accusation made B
property of their unemancipated common child without the necessity of a court incapacitated to succeed due to unworthiness.
appointment. In case of disagreement, the father’s decision shall prevail, unless there is c. At the time of A’s death, his estate was P100,000.
a judicial order to the contrary. d. C & D will inherit the whole of P100,000. Since there is no will &
Where the market value of the property or the annual income of the child exceeds testament, they shall divide the P100,000 equally as their
P50,000.00, the parent concerned shall be required to furnish a bond in such amount inheritance.
as the court may determine, but not less than 10& per centum of the value of the i. P50,000 goes to C.
property or annual income, to guarantee the performance of the obligations prescribed ii. P50,000 goes to D.
for general guardians. e. B will not enjoy the usufruct of either C or D’s share.
A verified petition for approval of the bond shall be filed in the proper court of the place
where the child resides, or, if the child resides in a foreign country, in the proper court of Bond
the place where the property or any part thereof is situated. • If the value of the property or income of the child exceeds P50,000, the
The petition shall be docketed as a summary special proceeding in which all incidents & parents are required to furnish a bond in such amount as the court may
issues regarding the performance of the obligations referred to in the 2nd par. of this Art. determine
shall be heard and resolved. o Not less than 10% of the value of the property or annual income, to
guarantee performance of guardian obligations
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 • Law speaks of market value of the property or annual income – if this exceeds Art. 226. The property of the unemancipated child earned or acquired with his work or
P50,000, a bond is required industry or by onerous or gratuitous title shall belong to the child in ownership & shall be
• CASE: Pineda v. CA – A mother did not file a bond because her 3 children devoted exclusively to the latter’s support & education, unless the title or transfer
received P50,000 each from an insurance policy, & this amount does not provides otherwise.
exceed P50,000. However, SC held that the mother failed to show that the The right of the parents over the fruits & income of the child’s property shall be limited
P50,000 of each child was their only properties, as the law computes the primarily to the child’s support & secondarily to the collective daily needs of the family.
aggregate market value of the properties & incomes.
• Any act done without giving the bond is a nullity; it is a prerequisite to the right Ownership of Child’s Property
to use the power of guardianship • Child himself owns the property acquired by his own work to be used for his
education, support & welfare
Bond & Duties of a Guardian • But if the child’s property is more than sufficient to maintain said child, his
• Bond guarantees the performance of the obligations prescribed for general income may be used to help pay for the daily collective needs of the family
guardians • Art. 195, FC: A child is also obliged to support his parents
• CASE: Jocson v. Empire Insurance Co. – The father used the money the children o The child’s separate property can be used by the parents if the
inherited from their mother to buy clothes for the kids. The petitioner is parents need it & the child can afford it
protesting this, because he claims that under the law the father must support
his children with his own funds. Art. 227. If the parents entrust the management or administration of any of their
o SC held that support was indeed demandable at any time the children properties to an unemancipated child, the net proceeds of such property shall belong to
needed it, but it requires that they actually make the demand, which the owner. The child shall be given a reasonable monthly allowance in an amount not
they didn’t. Furthermore, the use of the children’s funds to buy their less than that which the owner would have paid if the administrator were a stranger,
clothes was made with court approval & therefore the bond cannot be unless the owner grants the entire proceeds to the child. In any case, the proceeds thus
forfeited. given in whole or in part shall not be charged to the child’s legitime.

Alienation & Encumbrance Allowance of Unemancipated Child

• Parent’s authority over the estate of the ward as a legal-guardian would not • Parents who have engaged their unemancipated children to take care of their
extend to acts of encumbrance or disposition, as distinguished from acts of properties shall only be entitled to the net fruits of the managed properties
management or administration o Unemancipated child first receives a reasonable monthly allowance
o Mother cannot sell the property of her minor children without court taken from the gross proceeds of the property for the said month
approval; such a sale would be void o All other expenses of the administration & management of the
o A guardian has no authority to sell or encumber the properties of his property shall be taken from the proceeds
ward o Balance of the net profits goes to the parents
• An abdicate waiver of rights by the guardian is also an act of disposition & • Parent can also grant all proceeds to the child
cannot bind his ward, being null & void, unless duly authorized by the court
o Parents have no power to compromise their child’s claims CHAPTER 5: SUSPENSION OR TERMINATION OF PARENTAL AUTHORITY
o Court’s approval is necessary in compromises entered into by
guardians & parents Art. 228. Parental authority terminates permanently:
1) Upon the death of the parents;
Summary Proceeding 2) Upon the death of the child;
• Parents must immediately take care of the needs of their unemancipated 3) Upon emancipation of the child.
children
• Day-to-day management should not be derailed by extensive proceedings Death of Parent or Child
• Law itself has already constituted the parent as the legal guardian • Art. 42, CC – Civil personality is extinguished by death
• “All other incidents & issues” includes alienation, disposition, encumbrance or o Rights & obligations of the deceased are determined by law, by
mortgaging the property beyond P50,000 contract & by will
• Death terminates parental authority
Guardianship Proceeding • PD 603: The court, upon the death of the parents, can appoint a guardian for
• If the guardians are the parents, the rules on guardianship are suppletory the person & property of the child, on petition of any relative or friend of the
• If the child is under substitute parental authority, or the guardian is a stranger, family or the DSWD
or the parent is remarried, the ordinary rules of co-ownership will apply
Emancipation

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 • Child is emancipated upon reaching age of majority – 18 years old • A settled purpose on the part of the parent to forego all parental duties &
• Emancipation terminates parental authority over the person & property of the relinquish all parental claims to the child
child; child is qualified to do all acts of civil life save for exceptions established • Neglect or refusal to perform the natural & legal obligations of care & support
by existing laws which parents owe to their children
• This ground refers to a judicial decision arising from a case precisely filed for
Effect of Art. 228 the declaration of abandonment (it must be the principal issue in the case)
• In such cases, parental authority is terminated permanently
• The events happen with no fault on the part of the parties Divestment by Final Court Judgment
• Parental authority cannot be revived in these cases • Court may divest parental authority if the welfare of the child so demands
• There must be clear, convincing & positive proofs
Art. 229. Unless subsequently revived by a final judgment, parental authority also
terminates: Judicial Declaration of Absence or Incapacity
1) Upon adoption of the child; • Parental authority cannot be expected from one who is an absentee or
2) Upon appointment of a general guardian; incapacitated
3) Upon judicial declaration of abandonment of the child in a case filed for the • If a declaration has been decreed by court, such is a valid ground for
purpose; terminating parental authority
4) Upon final judgment of a competent court divesting the party concerned of o A separate case will be filed using the decree to terminate parental
parental authority; authority
5) Upon judicial declaration of absence or incapacity of the person exercising
parental authority. Art. 230. Parental authority is suspended upon conviction of the parent or the person
exercising the same of a crime which carries with it the penalty of civil interdiction. The
Effect of Art. 229 authority is automatically reinstated upon service of the penalty or upon pardon or
• Termination in Art. 229 is not permanent amnesty of the offender.
• Can be revived by the court, unlike Art. 228 & 232
Civil Interdiction
Judicial Termination of Parental Authority • An accessory penalty imposed on accused found guilty of certain crimes
• Must be done only on the basis of legal grounds provided by law • The deprivation of the offender during his sentence of rights of parental
• Even if parents attempt to compel their daughter to marry someone against her authority, guardianship, either as to persons or property of any ward, marital
will, this cannot be grounds to terminate parental authority authority, the right to manage property, right to dispose of such property by any
act or conveyance inter vivos
Adoption • This ground is distinct because it requires no judicial declaration; it is an
• Except in cases where the biological parent is the spouse of the adopter, all accessory to a conviction
legal ties between the biological parents & the adoptee shall be severed
o The same shall be vested in the adopter upon the finality of a judicial Art. 231. The court in an action filed for the purpose or in a related case may also
adoption decree suspend parental authority if the parent or the person exercising the same:
• Adoptee shall be considered the legitimate child of the adopter for all intents & 1) Treats the child with excessive harshness or cruelty;
purposes 2) Gives the child corrupting orders, counsel or example;
o Shall be entitled to all the rights & obligations provided by law to 3) Compels the child to beg;
legitimate children born to them without discrimination of any kind 4) Subjects the child or allows him to be subjected to acts of lasciviousness.
• If the adoption decree is rescinded, the rescission shall extinguish all reciprocal The grounds enumerated above are deemed to include cases which have resulted from
rights between the adopter & the adopted culpable negligence of the parent or the person exercising parental authority.
o Upon rescission, the parental authority of the adoptee’s biological If the degree of seriousness so warrants, or the welfare of the child so demands, the
parents, if known, or the legal custody of the DSWD if the adoptee is court shall deprive the guilty party of parental authority or adopt such other measures as
still a minor & incapacitated, shall be restored may be proper under the circumstances.
The suspension or deprivation may be revoked and the parental authority revived in a
Guardianship case filed for the purpose or in the same proceeding if the court finds that the cause
• A guardian appointed by the court shall generally have the care & custody of therefor has ceased and will not be repeated.
the person of his ward & the management of his estate
Court Proceeding
Judicial Declaration of Abandonment

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 • Suspension or deprivation can be judicially decreed in a case specifically filed Effect of Art. 232
for that purpose or in a related case • Parental authority CANNOT be revived even if there is reformation
o “Related case” – can be an offshoot of an incident or a collateral
pronouncement in another case Grounds for Terminating Parental Authority Under the RPC
• Art. 223, FC: If parents file a disciplinary case against their child, but their child • Art. 278, RPC: If any ascendant, guardian, teacher or person entrusted with a
is able to prove fault on the part of the parents can suspend parental authority child under 16 years of age delivers the child gratuitously or for a price to any
habitual vagrant or beggar or to any person who is an acrobat, gymnast, etc.
Excessive Harshness or Cruelty who will employ the child in an exhibition, they may be deprived, permanently
• Parents should not excessively use corporal punishment or perpetually, of their parental authority & imprisoned
• Severely beating children or doing other cruel things is not allowed
Art. 233. The person exercising substitute parental authority shall have the same
Corrupting Orders, Counsel or Example authority over the person of the child as the parents. In no case shall the school
• It is the duty of the parents to provide their parents with moral & spiritual administrator, teacher or individual engaged in childcare & exercising special parental
guidance authority, inflict corporal punishment upon the child.

Compelling Child to Beg Corporal Punishment

• Parents should inculcate in their children self-reliance through lawful activities • Teachers & academic personnel are absolutely prohibited from inflicting
corporal punishment upon children
Acts of Lasciviousness • A teacher may be held civilly & administratively liable for such an offense, but
• To make the child the object of his prurient behavior can cause great for there to be criminal liability, there must be proof of felonious intent
emotional, physical & psychological harm to the victim-child
Right of Parents to Inflict Corporal Punishment
Culpable Negligence • Only persons exercising special parental authority cannot inflict corporal
• Grounds in Art. 231 are deemed to include cases which result from culpable punishment
negligence of the parent or person executing parental authority • Parents & those exercising substitute parental authority can inflict reasonable
• Example: If the stepfather forces his son to beg & mother acts indifferent, she corporal punishment
can be culpably negligent
Criminal Liability of Parents
Suspension, Deprivation, Revival • Parents can be criminally liable for maltreating their children when they:
• Like Art. 229, suspension or deprivation can be revoked & parental authority 1) Conceals or abandons the child with intent to make such child lose his civil
revived in a case filed for the purpose or in the same proceeding, if the court status;
finds the cause therefor has ceased & will not be repeated 2) Abandons the child under such circumstances as to deprive him of the
love, care and protection he needs;
Art. 232. If the person exercising parental authority has subjected the child or allowed 3) Sells or abandons the child to another person for valuable consideration;
him to be subjected to sexual abuse, such person shall be permanently deprived by the 4) Neglects the child by not giving him the education which the family’s
court of such authority. station in life and financial conditions permit;
5) Fails or refuses, without justifiable grounds, to enroll the child;
Sexual Abuse 6) Causes, abates or permits the truancy of the child from the school where
• CASE: Re Van Vlack – A father sexually molested his adopted daughter. The he is enrolled. “Truancy’’ as here used means absence without cause for
biological mother left with the daughter, but returned a month later with the more than twenty days, not necessarily consecutive;
child. 7) Improperly exploits the child by using him, directly or indirectly, such as for
o SC held that this was grounds to terminate the parental rights of the purposes of begging and other acts which are inimical to his interest and
mother welfare;
• CASE: Re Armentrout – Where the evidence showed that the children were 8) Inflicts cruel and unusual punishment upon the child or deliberately
molested by their stepfather but the mother consistently refused to believe in subjects him to indignation and other excessive chastisement that
the stepfather’s guilt despite the conviction, SC permanently severed the embarrass or humiliate him;
parental rights of the mother 9) Causes or encourages the child to lead an immoral or dissolute life;
10) Permits the child to possess, handle or carry a deadly weapon, regardless
• Where the welfare of the child so demand, the right of the parents becomes
of its ownership;
secondary
11) Allows or requires the child to drive without license or with license which
the parent knows to have been illegally procured. If the motor vehicle
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 driven by the child belongs to the parents, it shall be presumed that he (4) Being a member of an indigenous cultural community &/or living under the
permitted or ordered the child to drive (Art. 59, PD 603). conditions of extreme poverty or in an area which is underdeveloped &/or lacks
or has inadequate access to basic services needed for a good quality of life;
Special Protection of Children Against Child Abuse, Exploitation and (5) Being a victim of a man-made or natural disaster or calamity; or
Discrimination Act [RA 7610] – June 17, 1992 (6) Circumstances analogous to those above-stated which endanger the life,
safety or normal development of children.
Sec. 2. Declaration of State Policy and Principles. — It is hereby declared to be the policy (d) “Comprehensive program against child abuse, exploitation and discrimination” refers
of the State to provide special protection to children from all forms of abuse, neglect, to the coordinated program of services and facilities to protect children against:
cruelty, exploitation & discrimination, & other conditions prejudicial to their development; (1) Child prostitution and other sexual abuse;
provide sanctions for their commission & carry out a program for prevention and (2) Child trafficking;
deterrence of & crisis intervention in situations of child abuse, exploitation & (3) Obscene publication and indecent shows;
discrimination. The State shall intervene on behalf of the child when the parent, (4) Other acts of abuse; &
guardian, teacher or person having care or custody of the child fails or is unable to (5) Circumstances which threaten or endanger the survival and normal
protect the child against abuse, exploitation & discrimination or when such acts against development of children.
the child are committed by the said parent, guardian, teacher or person having care &
custody of the same. Important Notes
It shall be the policy of the State to protect and rehabilitate children gravely threatened • Definition of Children:
or endangered by circumstances which affect or will affect their survival and normal o Persons below 18 years, or
development and over which they have no control. o Those unable to fully take care of themselves or protect themselves
The best interests of children shall be the paramount consideration in all actions from abuse, neglect, cruelty, exploitation or discrimination because of
concerning them, whether undertaken by public or private social welfare institutions, a physical or mental disability or condition
courts of law, administrative authorities, and legislative bodies, consistent with the
principles of First Call for Children as enunciated in the United Nations Convention on the Sec. 6. Attempt to Commit Child Prostitution. — There is an attempt to commit child
Rights of the Child. Every effort shall be exerted to promote the welfare of children and prostitution under Section 5, paragraph (a) hereof when any person who, not being a
enhance their opportunities for a useful and happy life. relative of a child, is found alone with the said child inside the room or cubicle of a
house, an inn, hotel, motel, pension house, apartelle or other similar establishments,
Sec. 3. Definition of Terms vessel, vehicle or any other hidden or secluded area under circumstances which would
(a) “Children” refers to persons below 18 years of age or those but are unable to fully lead a reasonable person to believe that the child is about to be exploited in prostitution
take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation and other sexual abuse.
or discrimination because of a physical or mental disability or condition; There is also an attempt to commit child prostitution, under paragraph (b) of Section 5
(b) “Child Abuse” refers to the maltreatment, whether habitual or not, of the child which hereof when any person is receiving services from a child in a sauna parlor or bath,
includes any of the following: massage clinic, health club and other similar establishments. A penalty lower by two (2)
(1) Psychological and physical abuse, neglect, cruelty, sexual abuse and degrees than that prescribed for the consummated felony under Section 5 hereof shall
emotional maltreatment; be imposed upon the principals of the attempt to commit the crime of child prostitution
(2) Any act by deeds or words which debases, degrades or demeans the under this Act, or, in the proper case, under the Revised Penal Code.
intrinsic worth and dignity of a child as a human being;
(3) Unreasonable deprivation of his basic needs for survival, such as food & Important Notes
shelter; or • Sec. 5 lists all those who are considered to have committed child prostitution,
(4) Failure to immediately give medical treatment to an injured child resulting in including procurers, inducing a person to be a client of a child prostitute, those
serious impairment of his growth and development or in his permanent who take advantage of their relationships with children, etc.
incapacity or death. • Included are those who manage clubs, saunas, hotels & other such
(c) “Circumstances which gravely threaten or endanger the survival and normal establishments that also run child prostitution rings
development of children” include, but are not limited to, the following:
(1) Being in a community where there is armed conflict or being affected by Sec. 8. Attempt to Commit Child Trafficking. — There is an attempt to commit child
armed conflict-related activities; trafficking under Sec. 7 of this Act:
(2) Working under conditions hazardous to life, safety & morals which unduly (a) When a child travels alone to a foreign country without valid reason therefor &
interfere with their normal development; without clearance issued by the DSWD or written permit or justification from the child’s
(3) Living in or fending for themselves in the streets of urban or rural areas parents or legal guardian;
without the care of parents or a guardian or any adult supervision needed for (b) When a pregnant mother executes an affidavit of consent for adoption for a
their welfare; consideration;

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(c) When a person, agency, establishment or child- caring institution recruits women or (d) The employer shall formulate & implement continuous program for training & skill
couples to bear children for the purpose of child trafficking; acquisition of the child.
(d) When a doctor, hospital or clinic official or employee, nurse, midwife, local civil
registrar or any other person simulates birth for the purpose of child trafficking; or Sec. 17. Survival, Protection and Development. — In addition to the rights guaranteed to
(e) When a person engages in the act of finding children among low-income families, children under this Act and other existing laws, children of indigenous cultural
hospitals, clinics, nurseries, day- care centers, or other child-caring institutions who can communities shall be entitled to protection, survival and development consistent with
be offered for the purpose of child trafficking. the customs and traditions of their respective communities.

Sec. 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions Sec. 22. Children as Zones of Peace. — Children are hereby declared as Zones of Peace.
Prejudicial to the Child’s Development. — It shall be the responsibility of the State and all other sectors concerned to resolve
(a) Any person who shall commit any other acts of child abuse, cruelty or exploitation or armed conflicts in order to promote the goal of children as zones of peace. To attain this
be responsible for other conditions prejudicial to the child’s development including those objective, the following policies shall be observed:
covered by Article 59 of Presidential Decree No 603, as amended, but not covered by (a) Children shall not be the object of attack and shall be entitled to special respect. They
the Revised Penal Code, as amended, shall suffer the penalty of prision mayor in its shall be protected from any form of threat, assault, torture or other cruel, inhumane or
minimum period. degrading treatment;
(b) Any person who shall keep or have in his company a minor, 12 years or under or who (b) Children shall not be recruited to become members of the Armed Forces of the
is 10 years or more his junior in any public or private place, hotel, motel, beer joint, Philippines or its civilian units or other armed groups, nor be allowed to take part in the
discotheque, cabaret, pension house, sauna or massage parlor, beach and/or other fighting, or used as guides, couriers, or spies;
tourist resort or similar places shall suffer the penalty of prision mayor in its maximum (c) Delivery of basic social services such as education, primary health and emergency
period & a fine of not less than P50,000.00: Provided, That this provision shall not apply relief services shall be kept unhampered;
to any person who is related within the fourth degree of consanguinity or affinity or any (d) The safety and protection of those who provide services including those involved in
bond recognized by law, local custom & tradition, or acts in the performance of a social, fact-finding missions from both government and non-government institutions shall be
moral or legal duty. ensured. They shall not be subjected to undue harassment in the performance of their
(c) Any person who shall induce, deliver or offer a minor to any one prohibited by this Act work;
to keep or have in his company a minor as provided in the preceding paragraph shall (e) Public infrastructure such as schools, hospitals and rural health units shall not be
suffer the penalty of prision mayor in its medium period and a fine of not less than utilized for military purposes such as command posts, barracks, detachments, and
P40,000.00: Provided, however, That should the perpetrator be an ascendant, step- supply depots; and
parent or guardian of the minor, the penalty to be imposed shall be prision mayor in its (f) All appropriate steps shall be taken to facilitate the reunion of families temporarily
maximum period, a fine of not less than P50,000.00, & the loss of parental authority separated due to armed conflict.
over the minor.
(d) Any person, owner, manager or one entrusted with the operation of any public or Sec. 27. Who May File a Complaint — Complaints on cases of unlawful acts committed
private place of accommodation, whether for occupancy, food, drink, or otherwise, against children as enumerated herein may be filed by the following:
including residential places, who allows any person to take along with him to such place (a) Offended party;
or places any minor herein described shall be imposed a penalty of prision mayor in its (b) Parents or guardians;
medium period and a fine of not less than P50,000.00, & the loss of the license to (c) Ascendant or collateral relative within the third degree of consanguinity;
operate such a place or establishment. (d) Officer, social worker or representative of a licensed child-caring institution;
(e) Any person who shall use, coerce, force or intimidate a street-child or any other child (e) Officer or social worker of the DSWD;
to: (f) Barangay chairman; or
(1) Beg or use begging as a means of living; (g) At least 3 concerned, responsible citizens where the violation occurred.
(2) Act as conduit or middleman in drug trafficking or pushing; or
(3) Conduct any illegal activities, shall suffer the penalty of prision correccional in its TITLE X. – EMANCIPATION & AGE OF MAJORITY
medium period to reclusion perpetua. (Virtually repealed because now emancipation only occurs at 18 & cannot be earlier)

Sec. 12. Employment of Children. — Children below fifteen (15) years of age may be TITLE XI. – SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW
employed: Provided, that, the following minimum requirements are present: (We were told to wait for Civil Procedure for an explanation of this chapter)
(a) The employer shall secure for a work permit from the Department of Labor and
Employment; TITLE XII. – FINAL PROVISIONS
(b) The employer shall ensure the protection, health, safety, & morals of the child;
(c) The employer shall institute measures to prevent exploitation or discrimination taking Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of Book I of RA 386, otherwise known as
into account the system & level of remuneration, & the duration and arrangement of the Civil Code of the Philippines, as amended, & Articles 17, 18, 19, 27, 28, 29, 30, 31,
working time; & 39, 40, 41, and 42 of PD 603, otherwise known as the Child & Youth Welfare Code, as

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amended, & all laws, decrees, executive orders, proclamations, rules & regulations, or
parts thereof, inconsistent herewith are hereby repealed. Art. 305. The duty & the right to make arrangements for the funeral of a relative shall be
in accordance with the order established for support, under Art. 199 of the Family
Repealing Provision Code.28 In case of descendants of the same degree, or of brothers & sisters, the oldest
• For any implied repeals to operate, there must be substantial irreconcilable shall be preferred. In case of ascendants, the paternal shall have a better right.
conflict in connection with provisions in existing & prior acts with those of FC
Arrangements
Art. 255. If any provision of this Code is held invalid, all the other provisions not affected • Art. 199, FC states that the duty should devolve as follows:
thereby shall remain valid. o 1st – Spouse; in his absence or incapacity,
o 2nd – Descendants in the nearest degree; in absence or incapacity,
Separability § Preferred: the eldest descendant
• The invalidity of one provision will not necessarily invalidate the whole law o 3rd – Ascendants in the nearest degree;
• However, the invalidity of a particular provisions invalidates those other § Preferred: the paternal side
provisions which are affected by the said invalidity o 4th – In the absence of all the above, the brothers & sisters
§ Preferred: the eldest sibling
Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or impair
vested or acquired rights in accordance with the Civil Code or other laws. Art. 306. Every funeral shall be in keeping with the social position of the deceased.

Retroactive Effect Art. 307. The funeral shall be in accordance with the expressed wishes of the deceased.
• Generally not favored In the absence of such expression, his religious beliefs or affiliation shall determine the
• CASE: Jovellanos v. CA – A husband, during his 1st marriage in 1955, entered funeral rites. In case of doubt, the form of the funeral shall be decided upon by the
into a contract to sell in installment over a specific property but the contract person obliged to make arrangements for the same, after consulting the other members
said the title would only fully vest upon the payment of the final installment. of the family.
o The husband paid partly by the conjugal funds of his 1st marriage &
partly by his own separate exclusive funds Kinds of Funerals
o The last installment was made in 1976 during the 2nd valid marriage • The wishes of the deceased will mainly be followed as a sign of respect
using conjugal funds of the 2nd marriage o In the absence of such expression, his religious beliefs or affiliation
o SC held that the property is part of the CPG of the 2nd marriage by will be followed
virtue of Art. 118, FC which became law on Aug. 3 1988 o In case of doubt, the form of the funeral shall be decided upon by the
person obliged to make arrangements for the same, after consulting
Vested Rights the other members of the family
• Retroactivity will not take effect if vested rights are involved
• A vested right – an immediate & fixed right of present & future payment Art. 308. No human remains shall be retained, interred, disposed of or exhumed without
o No longer in doubt or in controversy the consent of the persons mentioned in Art. 294 & 305.
o Not contingent
o Already fixed & absolute Art. 309. Any person who allows disrespect to the dead, or wrongfully interferes with a
funeral shall be liable to the family of the deceased for damages, material & moral.
• Inchoate right - A state of activity or entitlement that is characterized by partial
completion of an intended outcome or status. The notion of inchoate comes
Art. 310. The construction of a tombstone or mausoleum shall be deemed a part of the
into play most often in a legal sense, as it could refer to an inchoate
funeral expenses, & shall be chargeable to the ACP/CPG, if the deceased is one of the
transaction between two parties, where the tentative terms of an agreement
spouses.
have been discussed and it's plausible that the deal will go through, but no
formal agreement has yet been signed.
TITLE XIII. – CARE & RESPECT FOR CHILDREN
Art. 257. This Code shall take effect one year after the completion of its publication in a
Art. 356. Every child:
newspaper of general circulation, as certified by the Executive Secretary, Office of the
(1) Is entitled to parental care;
President. Publication shall likewise be made in the Official Gazette.
(2) Shall receive at least elementary education;
(3) Shall be given moral & civic training by the parents or guardian;
CIVIL CODE OF THE PHILIPPINES

TITLE X. FUNERALS                                                                                                                
28 Previously Art. 294 of the CC
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(4) Has a right to live in an atmosphere conducive to his physical, moral and intellectual Surnames & Middle Names
development. • A person’s name is the designation by which he is called in the community in
which he lives & is best known
Art. 357. Every child shall: • It is defined as the word or combination of words by which a person is
(1) Obey and honor his parents or guardian; distinguished from other individuals &, also, as the label which he bears for the
(2) Respect his grandparents, old relatives, & persons holding substitute parental convenience of the world at large addressing him, or in speaking of or dealing
authority; with him.
(3) Exert his utmost for his education & training; • It is a matter of personal & public interest
(4) Cooperate with the family in all matters that make for the good of the same. o Every person must have a name
• 2 parts in an individual’s name
Art. 358. Every parent and every person holding substitute parental authority shall see to (3) Given or proper name
it that the rights of the child are respected & his duties complied with, & shall o Given at birth or at baptism, to distinguish him from others
particularly, by precept & example, imbue the child with high-mindedness, love of o Freely chosen by the parents
country, veneration for the national heroes, fidelity to democracy as a way of life, & (4) Surname or family name
attachment to the ideal of permanent world peace. o Identifies him to the family that he belongs, & is passed from
parent to child
Art. 359. The government promotes the full growth of the faculties of every child. For this o Fixed by law
purpose, the government will establish, whenever possible: • 5 characteristics of a name
(1) Schools in every barrio, municipality & city where optional religious instruction (4) It is absolute, intended to protect the individual from being confused
shall be taught as part of the curriculum at the option of the parent or guardian; with others
(2) Puericulture and similar centers; (5) It is obligatory in certain respects, for nobody can be without a name
(3) Councils for the Protection of Children; & (6) It is fixed, unchangeable, or immutable, at least at the start, and
(4) Juvenile courts. maybe changed only for good cause & (for surnames) by judicial
proceedings
Art. 360. The Council for the Protection of Children shall look after the welfare of children (7) It is outside the commerce of man, & therefore inalienable &
in the municipality. It shall, among other functions: intransmissible by act inter vivos or mortis causes
(1) Foster the education of every child in the municipality; (8) It is imprescriptible
(2) Encourage the cultivation of the duties of parents;
• Middle names – legal significance because it identifies maternal lineage
(3) Protect & assist abandoned or mistreated children, & orphans;
o A middle name cannot be just dropped without compelling or
(4) Take steps to prevent juvenile delinquency;
justifiable reasons (ex. Can’t be dropped because it’s inconvenient)
(5) Adopt measures for the health of children;
(6) Promote the opening & maintenance of playgrounds;
Art. 364. Legitimate & legitimated children shall principally use the surname of the
(7) Coordinate the activities of organizations devoted to the welfare of children, &
father.
secure their cooperation.
Legitimate & Legitimated Children
Art. 361. Juvenile courts will be established, as far as practicable, in every chartered city
• They can use the surname of the father or the mother
or large municipality.
• There is no legal obstacle if the child chooses to use the surname of the
Art. 362. Whenever a child is found delinquent by any court, the father, mother, or mother, as he is equally entitled to do so
guardian may in a proper case be judicially admonished.
Art. 365. An adopted child shall bear the surname of the adopter.
Art. 363. In all questions on the care, custody, education and property of children, the
latter’s welfare shall be paramount. No mother shall be separated from her child under Art. 366. A natural child acknowledged by both parents shall principally use the surname
seven years of age, unless the court finds compelling reasons for such measure. of the father. If recognized by only one of the parents, a natural child shall employ the
surname of the recognizing parent.
Class Notes
Art. 367. Natural children by legal fiction shall principally employ the surname of the
• Remember Roe v. Doe – If you do not follow a reasonable demand as a child,
father.
your parents have the right to withhold support from you
Art. 368. Illegitimate children shall bear the surname of the mother.
TITLE XIII. THE USE OF SURNAMES

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Illegitimate Children o SC ruled that her name can only be changed in subsequent renewals,
• Under the FC, there are only 2 classes of children: legitimate or illegitimate if she annulled or nullified her marriage or a valid divorce was
• Art. 176, FC: Illegitimate children shall principally use the surname of the obtained abroad
mother, & shall be entitled to support in conformity with the FC. o For Sta. Maria, she should have been allowed to change the surname
o Child may use the surname of their father if their filiation has been to her own surname
expressly recognized by the father through the record of birth
appearing in the civil register, or when an admission in a public Art. 371. In case of annulment of marriage, & the wife is the guilty party, she shall
document or private handwritten instrument is made by the father resume her maiden name & surname. If she is the innocent spouse, she may resume
o Provided, the father has the right to institute an action before the her maiden name & surname. However, she may choose to continue employing her
regular courts to prove non-filiation during his lifetime former husband’s surname, unless:
• Have no middle name if father does not acknowledge them (1) The court decrees otherwise, or
(2) She or the former husband is married again to another person.
When is the father’s surname used?
1) For legitimate kids Annulment
2) For legitimated kids • Scenario: Maria Clara marries Juan dela Cruz. She is then known as Maria
3) For adopted kids Clara-dela Cruz
4) For illegitimate kids who the father acknowledges o If they get an annulment, & it is her fault, she will revert back to using
Maria Clara
Art. 369. Children conceived before the decree annulling a voidable marriage shall o If they get an annulment & it is not her fault, she can keep using
principally use the surname of the father. Maria Clara-dela Cruz depending on her own choice, unless:
§ The court decrees otherwise
Conception inside an Annullable Marriage § She marries Sean America, in which case she will follow Art.
• Annullable marriage – valid until terminated 370
o Children conceived or born in marriages that are annulled are
legitimate, because the marriage is valid until annulled Art. 372. When legal separation has been granted, the wife shall continue using her
• Vital word in this provision: conceived! name & surname employed before the legal separation.

Null Marriage Legal Separation

• When a marriage is nullified, one cannot use the name of her spouse anymore • Wife may keep using her name before the legal separation, since the marriage
is not dissolved in such a decree
Art. 370. A married woman may use:
(1) Her maiden first name & surname & add her husband’s surname, or Art. 373. A widow may use the deceased husband’s surname as though he were still
(2) Her maiden first name & her husband’s surname, or living, in accordance with Art. 370.
(3) Her husband’s full name, but prefixing a word indicating that she is his wife, such as
“Mrs.” Art. 374. In case of identity of names and surnames, the younger person shall be obliged
to use such additional name or surname as will avoid confusion.
Four Ways a Woman Can be Named After Marriage
(1) Her maiden first name & surname, & the surname of her husband Identity of Names
(2) Her maiden first name & her husband’s surname • If parents want to name their child after a godparent who is not related to
(3) Her husband’s full name, with a prefix such as “Mrs.” to indicate that she is his them, the said son must use an additional name to avoid confusion
wife o Example: If the godfather’s name is Juan dela Cruz, the godson
(4) Her own maiden name should use an additional name like Juan Pedro dela Cruz

Married Woman Art. 375. In case of identity of names & surnames between ascendants & descendants,
• Art. 370 is merely directory – when a woman marries, she does not change her the word “Junior” can be used only by a son. Grandsons & other direct male descendants
name; only her civil status shall either:
• CASE: Remo v. Hon. Sec. of Foreign Affairs – A woman who initially uses her (1) Add a middle name or the mother’s surname, or
first name & her husband’s surname in her passport cannot change the name (2) Add the Roman numerals II, III, and so on.
to her maiden name upon passport renewal.
Identity of Names Between Ascendants & Descendants
• Only sons can use “Junior”
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 o Example: The son of Juan dela Cruz is Juan dela Cruz Jr.
o Any direct descendant of Juan dela Cruz Jr. must use Roman Form and Contents of the Petition
numerals II, III, so on • The petition shall be in the form of an affidavit, subscribed & sworn to before
§ If Juan dela Cruz Jr. marries Rica Santos has a son, he shall any person authorized by law to administer oaths.
be either: o The affidavit shall set forth facts necessary to establish the merits of
• Juan Ricardo dela Cruz the petition & shall show affirmatively that the petitioner is competent
• Juan dela Cruz III to testify to the matters stated.
• Juan Santos-dela Cruz o The petitioner shall state the particular erroneous entries which are
§ If Juan dela Cruz names his son after his father, Robert dela sought to be corrected &/or the change sought to be made.
Cruz, his son would be Robert dela Cruz II • The petition shall be supported with the following documents:
(1) A certified true machine copy of the certificate or of the page of the registry
Art. 376. No person can change his name or surname without judicial authority. book containing the entry or entries sought to be corrected or changed;
(2) At least 2 public or private documents showing the correct entry or entries
RA 9048 upon which the correction or change shall be based; &
• Art. 366 & 412 of the Civil Code have been amended by RA 9048 (3) Other documents which the petitioner or the city or municipal civil registrar,
o “An Act Authorizing the City or Municipal Civil Registrar or the Consul or the consul general may consider relevant and necessary for the approval of
General to Correct a Clerical or Typographical Error in an Entry &/or the petition.
Change of First Name or Nickname in the Civil Register Without Need • In case of change of first name or nickname, the petition shall likewise be
of Judicial Order. Amending for this Purpose Art. 376 & 412 of the supported with the documents mentioned in the immediately preceding
Civil Code of the Philippines” – signed into law on March 22, 2001 paragraph.
o Sec. 1. No entry in a civil register shall be changed or corrected o Also, the petition shall be published at least once a week for 2
without a judicial order, EXCEPT consecutive weeks in a newspaper of general circulation.
§ For clerical or typographical errors o Furthermore, the petitioner shall submit a certification from the
• A mistake committed in the performance of appropriate law enforcement agencies that he has no pending case
clerical work in writing, copying, transcribing or
typing an entry in the civil register that is harmless Sec. 7. Duties and Powers of the Civil Registrar General. — The civil registrar general
& innocuous shall, within 10 working days from receipt of the decision granting a petition, exercise the
• Visible to the eye & obvious to the understanding power to impugn such decision by way of an objection based on the following grounds:
§ For change of first name or nickname which can be (1) The error is not clerical or typographical;
corrected or changed by the concerned city or municipal civil (2) The correction of an entry or entries in the civil register is substantial or
registrar or consul general in accordance with the provisions controversial as it affects the civil status of a person; or
of this Act and its implementing rules and regulations (3) The basis used in changing the first name or nickname of a person does not
o No corrections can involve: fall under Sec. 4.
§ Nationality petitioner
§ Sex of the petitioner Class Notes
§ Status of the petitioner • General rule for changing official records: Art. 376 – a judicial proceeding is
o Possible corrections include: required
§ Misspelled name or misspelled place of birth or the like o Exceptions:
o Who may file? The one who wants his name changed, as he has a § RA 9048 (surnames, nicknames, clerical errors)
direct & personal interest in the case § RA 10172 (you can change date of birth, gender if you have
proofs)
Sec. 4. Grounds for Change of First Name or Nickname. — The petition for change of first
name or nickname may be allowed in any of the following cases: Change of Surname & Nickname
(1) The petitioner finds the first name or nickname to be: • A change of name is a privilege, & not a right
a) Ridiculous • There must be proper cause & compelling reason as justification
b) Tainted with dishonor or • Change of given name or nickname can be effected through the LCR
c) Extremely difficult to write or pronounce; o Reviewable by the Office of the Civil Registrar General & finally the
(2) The new first name or nickname has been habitually & continuously used by the courts
petitioner & he has been publicly known by the first names or nicknames in the • Change of surname can only be done as a matter of judicial discretion
community; or
(3) The change will avoid confusion.
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 o A person is not allowed to use a surname he is not permitted to testify to the matters stated. The petitioner shall state the particular erroneous entry or
employ under the law entries, which are sought to be corrected and/or the change sought to be made.
The petition shall be supported with the following documents:
Reason for Allowing Change of Names (1) A certified true machine copy of the certificate or of the page of the registry
• To give a person an opportunity to improve his or her personality & to promote book containing the entry or entries sought to be corrected or changed;
his or her best interest (2) At least 2 public or private documents showing the correct entry or entries
• The reasons for change of name or nickname are in Sec. 4, RA 9048 upon which the correction or change shall be based; and
• Examples of reasonable causes to change name: (3) Other documents which the petitioner or the city or municipal civil registrar or
o A ridiculous name, a name tainted with dishonor or a name extremely the consul general may consider relevant and necessary for the approval of the
difficult to pronounce petition.
o A need to avoid confusion No petition for correction of erroneous entry concerning the date of birth or the sex of a
o A change of civil status person shall be entertained except if the petition is accompanied by earliest school
o A sincere desire by a former alien to erase signs of a former record or earliest school documents such as, but not limited to, medical records,
nationality, which duly hamper social & business life baptismal certificate and other documents issued by religious authorities; nor shall any
• CASE: Silverio v. Republic – A man who had a sex reassignment surgery cannot entry involving change of gender corrected except if the petition is accompanied by a
change his name to a female’s name in his birth certificate because it is seen certification issued by an accredited government physician attesting to the fact that the
as unnatural. petitioner has not undergone sex change or sex transplant. The petition for change of
• CASE: Republic v. Cagandahan – A woman who is diagnosed with CAH & has first name or nickname, or for correction of erroneous entry concerning the day and
both male & female characteristics can change her birth certificate name to a month in the date of birth or the sex of a person, as the case may be, shall be published
man’s name because she personally is inclined to being male due to her body. at least once a week for 2 consecutive weeks in a newspaper of general circulation.
Furthermore, the petitioner shall submit a certification from the appropriate law
• CASE: Moore v. Republic – A divorced woman wanted her son from a previous
enforcements, agencies that he has no pending case or criminal record.
marriage to have the surname of her husband in her 2nd marriage, because her
The petition and its supporting papers shall be filed in 3 copies to be distributed as
2nd husband treats her son like his own. SC rejected this because PH law does
follows: first copy to the concerned city or municipal civil registrar, or the consul
not allow a legitimate son to be given the surname of anyone other than his
general; second copy to the Office of the Civil Registrar General; and third copy to
own father.
the petitioner.”
• CASE: Calderon v. Republic – SC allowed the change of surname of an
illegitimate child if this would be for the best interest of the child, to the
• Combining RA9048 & RA10172, these cannot be changed without judicial
surname of his mother’s 2nd husband who is not his real father.
order:
1) Nationality
Effect of Change of Surname
2) Status
• Does NOT alter family relations, rights or duties, legal capacity, civil status or
• Date of birth or sex is changeable if accompanied by:
citizenship
1) Earliest school record or earliest school documents such as, but not
limited to, medical records, baptismal certificate & other documents
Nature of Proceedings
issued by religious authorities
• Governed by Rule 103 of the Rules of Court
2) [For sex] A certification issued by an accredited government physician
o One has to appear in court for the petition
attesting to the fact that the petitioner has not undergone sex change or
o Any interested person may appear & oppose the hearing
sex transplant
o Refers to change of surname since change of first name does not
need judicial order
Art. 377. Usurpation of a name & surname may be the subject of an action for damages
and other relief.
RA 10172
• Authorized changes in date of birth & sex of a person which are simply clerical Art. 378. The unauthorized or unlawful use of another person’s surname gives a right of
errors without judicial order: action to the latter.
SEC. 3. Section 5 of the Act (RA9048) is hereby amended to read as follows: Usurpation of a Name
“SEC. 5. Form and Contents of the Petition. – The petition for correction of a clerical or • CASE: Tolentino v. CA – Current wife filed an action to prevent the former wife
typographical error, or for change of first name or nickname, as the case may be, shall
of her husband from using the surname of the husband. The court ruled,
be in the form of an affidavit, subscribed and sworn to before any person authorized by
however, that there was no usurpation.
law to administer oaths. The affidavit shall set forth facts necessary to establish the
o The records do not show that the former wife had legally remarried;
merits of the petition and shall show affirmatively that the petitioner is competent to
the public is also aware of the difference between the 2 of them
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 o Elements of Usurpation of a Name: 3) When one spouse is sentenced to a penalty which carries with it
1) There is actual use of another’s name by the defendant civil interdiction; or
2) The use is unauthorized 4) When one spouse becomes a fugitive from justice or is hiding as
3) The use of another’s name is to designate personality or identify an accused in a criminal case.
a person If the other spouse is not qualified by reason of incompetence,
conflict of interest, or any other just cause, the court shall appoint a
Art. 379. The employment of pen names or stage names is permitted, provided it is done suitable person to be the administrator.
in good faith & there is no injury to third persons. Pen names & stage names cannot be
usurped. CHAPTER 2: DECLARATION OF ABSENCE

Art. 380. Except as provided in the preceding article, no person shall use different names Art. 384. 2 years having elapsed without any news about the absentee or since the
& surnames. receipt of the last news, & 5 years in case the absentee has left a person in charge of
the administration of his property, his absence may be declared.
Pen Names or Stage Names
• So that a pen name or stage name cannot be usurped, it should be registered Art. 385. The ff. may ask for the declaration of absence:
& patented (1) The spouse present;
o Following this, said names cannot be used by others without suffering (2) The heirs instituted in a will, who may present an authentic copy of the
damages if sued same;
(3) The relatives who may succeed by the law of intestacy;
TITLE XIV. – ABSENCE (4) Those who may have over the property of the absentee some right
subordinated to the condition of his death.
CHAPTER 1: PROVISIONAL MEASURES IN CASE OF ABSENCE
Art. 386. The judicial declaration of absence shall not take effect until 6 months after its
Art. 381. When a person disappears from his domicile, his whereabouts being unknown, publication in a newspaper of general circulation.
& without leaving an agent to administer his property, the judge, at the instance of an
interested party, a relative, or a friend, may appoint a person to represent him in all that Judicial Declaration of Absence
may be necessary. • Necessary for interested persons to protect their rights, interests & benefits in
This same rule shall be observed when under similar circumstances the power conferred connection with the person who has disappeared
by the absentee has expired. • Necessary also to protect the interest of the absentee

Art. 382. The appointment referred to in the preceding article having been made, the Spouse
judge shall take the necessary measures to safeguard the rights & interests of the • Art. 384/385 refers to separate/exclusive property, not community property
absentee and shall specify the powers, obligations & remuneration of his representative, o In community property, both spouses are already administrators
regulating them, according to the circumstances, by the rules concerning guardians. • JD of absence can be a sufficient cause for involuntary JSOP, & also a bsis for
the termination of the ACP/CPG
Art 383. In the appointment of a representative, the spouse present shall be preferred • Also a ground for transferring all classes of exclusive properties of a spouse to
when there is no legal separation. his spouse under Art. 142, FC
If the absentee left no spouse, or if the spouse present is a minor, any competent person • Basis for termination of parental authority under Art. 229, FC
may be appointed by the court.
Testamentary Heirs
Court Appointment
• Can be a neighbor, who is not a relative, who is also in the will
• Necessary that the appointment of a representative of an absentee be made by o He can also seek a JD of absence of the testator
way of a court order
• Even the spouse must file an application for appointment with the courts with Intestate Heirs
respect to the properties of his own absent spouse (in accordance with Art. 142 • Intestate heirs include the legitimate & illegitimate relatives of the deceased,
of the Family Code) the spouse & the collateral relatives
• Art. 142, FC: Spouse may file a petition to administer the exclusive property of
his spouse when: Interested Party
1) When one spouse becomes the guardian of the other; • Those who may have a right subordinated to the condition of the absentee’s
2) When one spouse is judicially declared an absentee; death may seek the judicial declaration of absence

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 • Example: X, while still present, executed a valid contract with Y stating that, if • Upon the death of a person, the executor mentioned in his will is the appointed
he dies in 1994, Y will have the right to repurchase his former house which was administrator of his estate in accordance with his wishes
sold to X while X was still present. • If he dies without a will, intestate proceedings will be instituted where a new
o Y has the right to repurchase the former house which was sold to the administrator of his estate will be appointed
absentee when the latter was still present & can now file for a JD of
absence Superior Interest
• An administrator has no right to administer property which does not belong to
Effectivity of Judicial Declaration the owner
• LAST NEWS = COUNT OF ABSENCE • If somebody with a valid document shows that the property being administered
o Count does not start from the effectivity of the judicial decree, but really belongs to someone else, the administration of the property will cease
from the date on which the last news of the absentee was received
• Judicial declaration of absence shall not take effect until 6 months after its CHAPTER 4: PRESUMPTION OF DEATH
publication in a newspaper of general circulation
Art. 390. After an absence of 7 years, it being unknown whether or not the absentee still
CHAPTER 3: ADMINISTRATION OF THE PROPERTY OF THE ABSENTEE lives, he shall be presumed dead for all purposes, except for those of succession.
The absentee shall not be presumed dead for the purpose of opening his succession till
Art. 387. An administrator of the absentee’s property shall be appointed in accordance after an absence of 10 years. If he disappeared after the age of 75 years, an absence of
with Art. 383. 5 years shall be sufficient in order that his succession may be opened.

Art. 388. The wife who is appointed as an administratrix of the husband’s property Art. 391. The following shall be presumed dead for all purposes, including the division of
cannot alienate or encumber the husband’s property, or that of the conjugal partnership, the estate among the heirs:
without judicial authority. (1) A person on board a vessel lost during a sea voyage, or an aeroplane which
is missing, who has not been heard of for 4 years since the loss of the vessel or
Prohibition on Alienation aeroplane;
• Art. 388 refers to both the husband & the wife (2) A person in the armed forces who has taken part in war, & has been
• Right of spouses to their exclusive properties are respected missing for 4 years;
• Art. 111, FC – A spouse may mortgage, encumber, alienate or otherwise (3) A person who has been in danger of death under other circumstances and
dispose of his exclusive property without the consent of the other spouse & his existence has not been known for 4 years.
appear alone in court to litigate with regard to the same
• Art. 112, FC – Alienation of any exclusive property of a spouse administered by Art. 392. If the absentee appears, or without appearing his existence is proved, he shall
the other automatically terminates the administration over such property & the recover his property in the condition in which it may be found, and the price of any
proceeds of the alienation shall be turned over to the owner-spouse property that may have been alienated or the property acquired therewith; but he cannot
claim either fruits or rents.
Art. 389. The administration shall cease in any of the ff. cases:
(1) When the absentee appears personally or by means of an agent; Absence
(2) When the death of the absentee is proved & his testate or intestate heirs • Means that a person is not at the place of his domicile & his actual residence is
appear; unknown
(3) When a third person appears, showing by a proper document that he has o For this reason, his existence is doubtful
acquired the absentee’s property by purchase or other title. o HOWEVER, removal is not enough – there must be disappearance
In these cases, the administrator shall cease in the performance of his office, & the from his domicile & from the knowledge of those with whom he could
property shall be at the disposal of those who may have a right thereto. naturally communicate

Appearance of Absentee Presumption of Death

• Appearance can be by absentee himself or his agent • Except for purposes of remarriage, there is no need to file a case to declare
• Agency – where a person binds himself to render some service or to do that one is presumptively dead
something in representation or on behalf of another, with the consent or o Even a judicial pronouncement is only prima facie & a sign of good
authority of the latter faith; it is still disputable
o Even a judicial declaration cannot reach the stage of finality
Death
Period

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Years Event Legal Effect • Example: A validly donated a house to X on January 5 1990 & likewise
2 Since the person was last heard from Judicial Declaration of promised to give another donation of a specific car to X in the event that X
5 Since the person was last heard from, but he left Absence in order to would still be alive on January 2, 1991.
someone to administer the property administer the property of o On December 25, 1990, X was nowhere to be found.
the absent person o The heirs of X can claim that the car already belongs to X after
January 2, 1991 if they can prove X was alive them.
2 Since the person was last heard from, in a Judicial Declaration of
situation where he could be in danger of death Presumptive Death (for Art. 394. Without prejudice to the provisions of the preceding article, upon the opening of
4 Since the person was last heard from remarriage, Art. 41) a succession to which an absentee is called, his share shall accrue to his co-heirs,
unless he has heirs, assignees, or a representative. They shall all, as the case may be,
4 Since the person was last heard from, in a He is presumed dead for all make an inventory of the property.
situation where he could be in danger of death purposes, including the
5 Since the person was last heard from & he division of the estate among Accretion
disappeared after the age of 75 years the heirs; no need for a • The disposition of the inheritance of an absentee benefits:
judicial declaration of o His co-heirs
presumptive death o His own heirs, assignees or representatives
• Example: A & B are brothers. They are the only heirs of their father. A has been
7 Since a person was last heard from He is presumed dead for all judicially declared an absentee.
intents & purposes, save for o Their father dies without a last will & testament, leaving a net estate
succession worth P 100,000.
10 He is presumed dead & his o If A were not an absentee, he would have inherited P 50,000.
succession can be opened o His share goes to B, who will therefor inherit the whole estate.
o HOWEVER, if A has kids, the kids will get the P 50,000 which
Missing Person supposedly belonged to A, through their right of representation.
• Art. 391 declares situations for missing persons under dangerous
circumstances Art. 395. The provisions of the preceding article are understood to be without prejudice
• Art. 391 does not apply to: to the action or petition for inheritance or other rights which are vested in the absentee,
o Persons who accidentally fell into the sea while on board a vessel & his representatives or successors in interest. This right shall not be extinguished save by
consequently drowned because “the vessel was not lost during a sea lapse of time fixed for prescription. In the record that is made in the Registry of the real
voyage” estate which accrues to the co-heirs, the circumstance of its being subject to the
o A person who cannot be found in a wreckage of a plane, because the provisions of this article shall be stated.
plane is not missing
• In case Art. 391 is applicable in a situation, it shall be presumed that the Claim
person died at the time he was last heard of & not at the end of the period • In the event that the property supposed to be inherited by the absentee
accrues to the co-heirs, the title or record of the said property in the proper
CHAPTER 5: EFFECT OF ABSENCE UPON THE CONTINGENT RIGHTS OF THE registry of property shall have an annotation stating that, within the prescriptive
ABSENTEE period, the property can be subject to claim by any person having an interest in
the said property especially the absentee, or his or her representative or
Art. 393. Whoever claims a right pertaining to a person whose existence is not successors
recognized must prove that he was living at the time his existence was necessary in • If absentee reappears, he has the right to file a petition to get his rightful
order to acquire said right. inheritance from said co-heirs
• 5-year prescription period applies
Proof of Existence
• If a person is known to be dead & there is a controversy regarding the validity Art. 396. Those who may have entered upon the inheritance shall appropriate the fruits
of a transaction or contract he allegedly entered into, the person claiming received in good faith so long as the absentee does not appear, or while his
validity must prove that the person was alive when the obligation was incurred representatives or successors do not bring the proper actions.
• If some right exists in favor of a deceased & someone is seeking enforcement,
the latter must prove that the right vested in favor of the deceased while the Appropriation of Fruits
latter was still living • Anyone who obtains the inheritance of the absentee in accordance with law
can make use or appropriate the fruits of the inheritance as long as they are in
good faith
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 • If absentee, his representatives or his successors file a claim in court, those o Created a presumption of fact
who may have entered upon the inheritance cannot make such appropriation o In case of a conflict between a presumption of fact & a presumption
anymore of law, a presumption of law will prevail
• CASE: Babiera v. Catotal – A legitimate child filed a suit to cancel the birth
TITLE XVI. – CIVIL REGISTRY certificate of her housemaid’s child, because the certificate said that the
legitimate child’s father & mother were the real parents of the housemaid’s
Art. 407. Acts, events & judicial decrees concerning the civil status of persons shall be child.
recorded in the civil registrar. o SC held that the regularity of the birth certificate was overcome by the
totality of evidence presented during the trial which sufficiently
Art. 408. The ff. shall be entered in the civil registrar: negated the presumption
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulment of marriages;
(6) judgments declaring marriages void from the beginning; (7) legitimations; (8) Art. 411. Every civil registrar shall be civilly responsible for any unauthorized alteration
adoptions; (9) acknowledgments of natural children; (10) naturalization; (11) loss; or made in any civil register, to any person suffering damage thereby. However, the civil
(12) recovery of citizenship; (13) civil interdiction; (14) judicial determination of filiation; registrar may exempt himself from such liability if he proves that he has taken every
(15) voluntary emancipation of a minor; and (16) changes of name. (326a) reasonable precaution to prevent the unlawful alteration.

Art. 409. In cases of legal separation, adoption, naturalization & other judicial orders Art. 412. No entry in a civil register shall be changed or corrected, without judicial order.
mentioned in the preceding article, it shall be the duty of the clerk of court which issued
the decree to ascertain whether the same has been registered, & if this has not been RA 9048
done, to send a copy of said decree to the civil registry of the city or municipality where • Art. 412 has been amended by RA9048, & the discussion of the text is under
the court is functioning. Art. 376
• Deals with corrections in the civil registry which involve merely typographical or
Art. 410. The books making up the civil register & all documents relating thereto shall be clerical errors, just like the concept in Art. 412
considered public documents & shall be prima facie evidence of the facts therein
contained. Administrative or Judicial Proceeding
• Except for clerical or typographical errors or change in the name or nickname of
Public Documents a person, a change in the entries must always pass through judicial order
• Books & documents making up the civil register are considered public o Clerical errors in surnames – can be changed without judicial order
documents o Occupation of parents – can also be changed without judicial order
o Open to the public during office hours o For the exceptions, the resolution of the Office of the LCR is
• Documents cannot be removed, except by order of a court, in which case the reviewable by the Office of the Civil Registrar General & by the courts
proper receipt shall be taken § Procedure may be summary or adversarial
• The LCR may issue certified copies of any documents filed, upon payment of • Adversarial – if the changes involve substantial or
the proper fees required under the law controversial matters such as citizenship,
• Civil Registry Law does not provide for constructive notice to all persons of any nationality, civil status & filiation
document filed with the LCR • For a change which will alter the status of a person (example, from legitimate to
o Registry of Deeds – considered constructive notice to all persons, illegitimate filiation), the general rule is that such change cannot be effectuated
unlike LCR documents through Art. 412.
• Birth records are extremely confidential & cannot be revealed except when
obtained by those interested therein, namely: Rule 108 of the Rules of Court
1) The person himself, or a person authorized by him • Procedural rules for the cancellation or correction of entries in the civil registry
2) His spouse, his parents, his direct descendants or guardian or institution • Sec. 1 – Who may file a petition
legally in charge of him if he is a minor o Any person interested in any act, order or decree concerning the civil
3) The court or proper public official whenever absolutely necessary in status of persons which has been recorded in the civil register
administrative, judicial or other official proceedings to determine the • Sec. 2 – Entries subject to cancellation or correction
identity of the child’s parents or other circumstances surrounding his birth o The list provided in Art. 408 may be changed for good & valid grounds
4) In case of the person’s death, his nearest of kin through petition
• CASE: Republic v. Valencia – A petition for cancellation/correction of entries in
Prima Facie Evidence the record of birth if filed & conducted under Rule 108 cannot be described as
• Evidence remains sufficient to maintain the fact which it seeks to substantiate “summary”
as long as it is unrebutted or uncontradicted
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 o In the case, the changes sought in the entries in a record of birth are o Economic abuse
the ff.: § Withdrawal of financial support or preventing the victim from
1) From “Chinese” to “Filipino” engaging in any legitimate profession, occupation, business
2) From “legitimate” to “illegitimate” or activity, except in cases wherein the other
o SC held that while the case was filed under Art. 412, for clerical & spouse/partner objects on valid, serious and moral grounds
innocuous errors which may be corrected by way of summary as defined in Article 73 of the Family Code;
proceeding, which may be correct by summary proceeding, § Deprivation or threat of deprivation of financial resources
substantial errors (as opposed to merely clerical ones) cannot be and the right to the use and enjoyment of the conjugal,
corrected under Art. 412; change will be allowed if all the community or property owned in common;
requirements in Rule 108 are fulfilled because in such a case, the § Destroying household property;
petition would become adversarial, which is necessary for substantial § Controlling the victims' own money or properties or solely
changes in entires controlling the conjugal money or properties.
• Sec. 5 – Acts of Violence against Women and Children
Art. 413. All other matters pertaining to the registration of civil status shall be governed o The crime of violence against women and their children is committed
by special laws. through any of the following acts:
(a) Causing physical harm to the woman or her child;
Civil Registrar Law (Act. No. 3753) (b) Threatening to cause the woman or her child physical harm;
• Provides for the registration of documents evidencing acquisition or (c) Attempting to cause the woman or her child physical harm;
termination of a particular civil status such as legitimation, adoption, change of (d) Placing the woman or her child in fear of imminent physical harm;
name, marriage, termination of such marriage & others (e) Attempting to compel or compelling the woman or her child to engage in conduct
which the woman or her child has the right to desist from or desist from conduct which
ADDITIONAL INFORMATION the woman or her child has the right to engage in, or attempting to restrict or restricting
the woman's or her child's freedom of movement or conduct by force or threat of force,
Laws on Marriage Effectivity Date physical or other harm or threat of physical or other harm, or intimidation directed
Marriage Law of 1929 December 4, 1929 against the woman or child. This shall include, but not limited to, the following acts
Civil Code of 1950 August 30, 1950 committed with the purpose or effect of controlling or restricting the woman's or her
child's movement or conduct:
The Family Code August 3, 1988
(1) Threatening to deprive or actually depriving the woman or her child of custody to
her/his family;
(2) Depriving or threatening to deprive the woman or her children of financial support
RA 9262: Anti-Violence Against Women and Children Act legally due her or her family, or deliberately providing the woman's children insufficient
Effectivity Date: March 23 2004 financial support;
(3) Depriving or threatening to deprive the woman or her child of a legal right;
Sec. 3 – Violence against women defined: (4) Preventing the woman in engaging in any legitimate profession, occupation, business
o Any person committing an act against any woman he ever dated, or activity or controlling the victim's own mon4ey or properties, or solely controlling the
slept with or had children with, including those whom he married, conjugal or common money, or properties;
those whom he had affairs with, etc. (f) Inflicting or threatening to inflict physical harm on oneself for the purpose of
o Resulted in physical, sexual, psychological, economic harm controlling her actions or decisions;
o Harm: includes “mental infidelity,” threats, attempts to limit the (g) Causing or attempting to cause the woman or her child to engage in any sexual
woman’s career activity which does not constitute rape, by force or threat of force, physical harm, or
o Rape, sexual harassment, acts of lasciviousness, treating a woman or through intimidation directed against the woman or her child or her/his immediate
her child as a sex object, making demeaning and sexually suggestive family;
remarks, physically attacking the sexual parts of the victim's body, (h) Engaging in purposeful, knowing, or reckless conduct, personally or through another,
forcing her/him to watch obscene publications and indecent shows or that alarms or causes substantial emotional or psychological distress to the woman or
forcing the woman or her child to do indecent acts and/or make films her child. This shall include, but not be limited to, the following acts:
thereof, forcing the wife and mistress/lover to live in the conjugal (1) Stalking or following the woman or her child in public or private places;
home or sleep together in the same room with the abuser; (2) Peering in the window or lingering outside the residence of the woman or her child;
o Acts causing or attempting to cause the victim to engage in any (3) Entering or remaining in the dwelling or on the property of the woman or her child
sexual activity by force, threat of force, physical or other harm or against her/his will;
threat of physical or other harm or coercion; (4) Destroying the property and personal belongings or inflicting harm to animals or pets
o Prostituting the woman or child. of the woman or her child; and

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(5) Engaging in any form of harassment or violence;
(i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or
her child, including, but not limited to, repeated verbal and emotional abuse, and denial
of financial support or custody of minor children of access to the woman's child/children.
• Sec. 8 – Protection order can force perpetrator to:
o Surrender firearms
o Never enter the house where woman resides, regardless of who
between the two of them owns it
o Lose custody of their children
o Payment of damages
o Being disallowed to threaten people
o Decrees here shall be granted even without a judicial decree of legal
separation, nullity or annulment
• Sec. 9 – Who can file for the protection order?
o Offended party, parents of party, ascendants, descendants, relatives
by consanguinity
o Workers of DSWD
o Police, barangay captain, lawyer
o 2 concerned responsible citizens in municipality where women and
kids live

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ACP CPG CSP 147/148

1. Basis: Marital Partnership 1. Basis: Marital Partnership 1. Basis: Marital Partnership 1. Basis: Cohabitation of “Spouses”
2. Main law: Family Code 2. Main law: Family Code 2. Main law: Family Code (147: w/o impediment; 148, with
Suppletory law: Co-ownership Suppletory law: Partnership Suppletory law: Co-ownership impediment to marry each other)
2. Main law: Family Code
3. Excluded Properties 3. Excluded Properties: 3. Excluded Properties: Suppletory law: Co-ownership
EVERYTHING
a.) Property acquired by gratuitous a.) Property acquired by gratuitous title To each spouse shall belong all 3. Excluded Properties: 147
title during the marriage (unless otherwise during the marriage excluding fruits earnings from his or her profession, a.) Property acquired by either party
specified by the donor), plus fruits and and interests business or industry & all fruits, exclusively by his or her own funds.
interests natural, industrial or civil, due or (This is subject to proof because
b.) Properties owned before the received during the marriage from his “properties acquired while they lived
b.) Properties owned before the marriage excluding fruits and interests, or her separate property (Art. 145) together shall be presumed to have
marriage including fruits & interest if brought into the marriage as separate been obtained by their joint efforts,
there are legitimate descendants by a properties (need not be specified in the work or industry, & shall be owned by
former marriage OR if specified as marriage settlement) them in equal shares.”
separate in the marriage settlement
c.) Separate properties remain so even b.) Fruits of separate property are not
c.) Properties excluded under the law or though converted into other assets, included in the co-ownership.
by agreement unless these are exchanged, bartered or redeemed
converted into cash or exchanged or 3. Excluded Properties: 148
traded/bartered. (May be contentious EVERYTHING: “Only the properties
especially for properties reserved for acquired by both of the parties through
legitimate descendants) their actual joint contribution of money,
property or industry shall be owned by
3. Charges against the 3. Charges against the 3. Charges against complete them in common in proportion to their
community property community property separation of property respective contributions &
corresponding shares are presumed to
-Taxes & expenses for the separate -Taxes and expenses for the separate Family expenses are borne by both be equal. (Art. 148)
property of spouses only if it is used by property of spouses spouses in proportion to: 1.) respective
the family (because it redounds to the income; 2.) current market value of 4. Liquidation when a “spouse”
benefit of the family) -Advance payments by CPG must be their properties acted in bad faith – Share forfeited
-Advances can be made by ACP as far after all other obligations under Art. to common children, then descendants,
as *9 is concerned. Other obligations 121 have been paid (Art. 122) then innocent spouse (147)
under Art. 94 need not be paid first. If “other” spouse is validly married to
another, share goes to ACP or CPG.
4. Liquidation when a spouse 4. Liquidation when a spouse is
acted in bad faith – Net profits in bad faith – Net profits forfeited to
forfeited to common children, then common children, then children of
children of guilty spouse by previous guilty spouse by previous marriage,
marriage, then innocent spouse then innocent spouse

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