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San Beda College of Law Persons and Family Relations

Note: Date of effectivity of Municipal Ordinances is NOT covered by this rule but by the Local Government Code. (Taada vs. Tuvera, supra). IGNORANCE OF THE LAW EXCUSES NO ONE (Art. 3) Conclusive Presumption every person is presumed to know the law even if they have no actual knowledge of the law. Applies only to mandatory and prohibitory laws. Does not apply to foreign laws because there is no judicial notice of such foreign laws; it must be proved like any other matter of fact (Ching Huat vs. Co Heong L-1211, January 30, 1947). Note: Mistakes in the application or interpretation of difficult or doubtful provisions of law may be the basis of good faith and has been given the same effect as a mistake of fact, which may excuse one from the legal consequences of his conduct (Art. 526, 2155, NCC). NON RETROACTIVITY OF LAWS (Art. 4) General Rule: No retroactive effect. Exceptions: (P2UT NICE) 1. Tax laws when expressly declared or is clearly the legislative intent (Cebu Portland Cement vs. Coll. G.R. No. 18649, February 27, 1965) 2. Interpretative statutes 3. Procedural or Remedial 4. Curative or Remedial statutes 5. Emergency laws 6. Laws creating new rights (Bona vs. Briones G.R. No. L-10806, July 6, 1918; Bustamante et al. vs. Cayas, G.R. Nos. L8562-8563, December 17, 1955) 7. Unless the law otherwise provides 8. Penal laws favorable to the accused. Exceptions to the Exception: (EI) 1. Ex Post Facto Laws 2. Laws that impair obligation of contracts (Asiatic Petroleum vs. Llanes, G.R. No. L25386, October 20, 1926) ACTS CONTRARY TO LAW (Art. 5) General Rule: Acts contrary to mandatory or prohibitory laws are VOID. Exceptions: (PAVE) 1. The law makes the act valid but punishes the violator (ex. Marriage solemnized by a person without legal authority) 2. The law itself authorizes its validity (ex. Lotto, sweepstakes) 3. The law makes the act only voidable (ex. Voidable contracts where consent is vitiated) 4. The law declares the nullity of an act but recognizes its effects as legally existing (ex. Child born before annulment of marriage is considered legitimate) WAIVER OF RIGHTS (Art. 6) General Rule: Rights can be waived. Requisites for a valid waiver: (CUECF) 1. Full capacity to make the waiver. 2. Waiver must be unequivocal 3. Right must exist at the time of the waiver 4. It must not be contrary to law, public policy, morals or good customs or prejudicial to a third person with a right recognized by law. 5. When formalities are required, the same must be complied with. Exceptions: (CPEN) 1. Waiver is contrary to law, public order, public policy, morals or good customs; 2. If the waiver is prejudicial to a third party with a right recognized by law. 3. Alleged rights which really do not yet exist, as in the case of future inheritance 4. If the right is a natural right, such as right to be supported. JUDICIAL DECISIONS FORM PART OF THE LEGAL SYSTEM or DOCTRINE OF STARE DECISIS (Art. 8) DOCTRINE OF STARE DECISIS enjoins adherence to judicial precedents and is based on the principle that once a question of law has been examined and decided, it should be deemed settled and closed to further argument. Judicial decisions, although in themselves not laws, assume the same authority as the statute itself (People vs. Licera G.R. No. L39990, July 2, 1975). No publication required, binding on parties after the lapse of appeal period, and will bind all future cases with identical facts,

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until reversed by SC. They are part of the law as of the date of the enactment of said law because the Supreme Courts interpretation merely establishes the contemporaneous legislative intent that the construed law purports to carry into effect (People v. Licera G.R. No. L-39990, July 2, 1975). HOWEVER, when a doctrine is overruled and a different view is adopted, the new doctrine should be applied prospectively and should not prejudice parties who relied on the old doctrine (People v. Jabinal G.R. No. L-30061,
February 27, 1974).

Policy if the Last Day is a Sunday or a Legal Holiday: 1. If the act to be performed within the period is prescribed or allowed (1) by the Rules of Court, (2) by an order of the court, or (3) by any other applicable statute, the last day will automatically be considered the next working day. 2. If the act to be performed within the period arises from a contractual relationship, the act will become due despite the fact that the last day falls on a Sunday or Holiday. Applicable Laws 1. Penal Laws and laws of public security (Article 14) Territoriality rule governs regardless of the nationality but subject to principles of international law and to treaty stipulations. 2. Laws relating to family rights and duties, or to status, condition and legal capacity of persons. Nationality rule applies regardless of their place of residence. Exception: Divorce validly obtained abroad by alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. (Article 26 (2) Family Code) 3. Laws on property (real and personal) Lex Rei SItae: The law of the country where the property is situated shall govern property transactions. (Article 16 (1)) Exception: Order and amount successional rights, intrinsic validity testamentary provisions, and capacity succeed governed by the national law decedent. (Article 16 (2)) of of to of

CUSTOMS (Arts. 11 and12) Rules of conduct formed by repetition of acts uniformly observed as a social rule. They are legally binding and obligatory. General Rule: Customs must be proved as a fact according to the rules of evidence. Exception: A court may take judicial notice of a custom if there is already a decision rendered by the same court recognizing the custom. Requisites to Make a Custom an Obligatory Rule: (P2TO) 1. Plurality or repetition of acts; 2. Practiced by the great mass of the social group; 3. Continued practice for a long period of time; 4. The community accepts it as a proper way of acting, such that it is considered as obligatory upon all. RULE ON PERIODS (Art. 13) 1. 2. 3. 4. 5. 6. Years - 365 days, unless year is identified Months - 30 days, unless month identified Days 24 hours Nights-sunset to sunrise Calendar week Sunday to Saturday Week Count 7 days as indicated, not necessarily Sunday to Saturday To count the period, first day is excluded, last day is included. Exception: Rule does NOT apply to computation of age; each year is counted based on birth anniversary.

4. Laws on forms and solemnities Lex Loci Celebrationis: Forms and solemnities of contracts, wills, and other public instruments (extrinsic validity) shall be governed by the laws of the country in which they are executed. (Article 17) Exceptions: a. Marriage between Filipinos solemnized abroad shall be void though valid abroad when void under Philippine laws. (Article 26(1) FC) b. Intrinsic Validity of Contracts: Validity is determined by the following rules: i. The law stipulated by the parties shall be applied;

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Transmission Theory: If the foreign law refers it to a third country, the said countrys law shall govern. 6. Doctrine of Processual Presumption The foreign law, whenever applicable, should be proved by the proponent thereof; otherwise, such law shall be presumed to be exactly the same as the law of the forum. Rule on Prohibitive Laws General Rule: Prohibitive laws concerning persons, their acts or property, and laws which have for their object public order, public policy or good customs are NOT rendered ineffective by laws, or judgments promulgated or by determinations or conventions agreed upon in foreign country. (Art. 17(3)) Exception: Art. 26, par. 2 Family Code (ex. Divorce Law) HUMAN RELATIONS
Covers only the forms and solemnities (extrinsic validity)

ii. iii.

iv.

In default thereof, and the parties are of the same nationality, their national law shall be applied; If the parties are not of the same nationalities, the law of the place of the perfection of the obligation shall govern its fulfillment; If the above places are not specified and they cannot be deduced from the nature and circumstances of the obligation, then the law of the passive subject shall apply.
Lex Rei Sitae Art. 16, CC Law of the place where the property is situated is the basis for determining law applicable Covers real personal property both and Lex Loci Celebrationis Art. 17, CC Law of the place where the contract was executed is the basis for determining law applicable

Lex Nationalii Art. 15, CC Citizenship is the basis for determining the personal law applicable Covers family rights and duties, status, condition and legal capacity of persons. Exception: Art. 26, par. 2 of Family Code

ABUSE OF RIGHT (Art. 19) Elements: (LEP) 1. Existence of a legal right or duty; 2. Which is exercised in bad faith; 3. For the sole intent of prejudicing or injuring another. Doctine of Violenti Non Fit Injuria (to which a person assents is not esteemed in law as injury) refers to self-inflicted injuries or to the consent to injury which precludes the recovery of damages by one who has knowingly and voluntarily exposed himself to danger, even if he is not negligent in doing so (Nikko Hotel Manila Garden, et all vs. Roberto Reyes (Amay Bisaya) G.R. No. 154259, Feb. 28, 2005). Damnum Absque Injuria (damage without injury) A person who exercises his legal right does no injury. HOWEVER, it cannot be said that a person exercises a right when he unnecessarily prejudices another or offends morals or good customs. When damages result from a persons exercise of rights, it is damnum absque injuria (ABS-CBN v. Republic Broadcasting Corp. G.R. No. 128690, January 21, 1999).

Exceptions: (CIAO) Capacity to succeed Intrinsic validity of the will Amount of successional rights Order of succession

Exceptions: 1. Art. 26, par. 1 of Family Code 2. Intrinsic validity of contracts

Rules on Personal Law: Domiciliary Rule and Nationality Rule Distinguished


Domiciliary Rule Nationality Rule Basis for determining Basis for determining personal law of an personal law is his individual is his CITIZENSHIP DOMICILE

5. Renvoi Doctrine: Occurs when a citizen of another country dies as a domiciliary of another country. Where the conflict rules of the forum refer to a foreign law, and the latter refers it back to the internal law, the law of the forum shall apply.

San Beda College of Law Persons and Family Relations


4. He has no other action based on contract, quasicontract, crime or quasidelict. Note: For a more comprehensive discussion of Articles 19-35, please see discussion thereof under Torts. PREJUDICIAL QUESTION (Art. 36) General Rule: If both criminal and civil cases are filed in court, the criminal case takes precedence. Exceptions: 1. In case of prejudicial questions, the criminal case is suspended because the issues in the civil case are determinative of the outcome of the criminal case. A prejudicial question is that which arises in a case, the resolution of which is a logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal (Yap v. Paras, G.R. No. 101236, January 30, 1992). Requisites: (Section 7, Rule 111, Rules of Court) a. Previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action. b. The resolution of such issue determines whether or not the criminal action may proceed. 2. Independent civil action granted by law (CD-QR) a. Breach of constitutional and other rights (Art. 32) b. Defamation, fraud, physical injuries (Art. 33) c. Refusal or failure of city or municipal police to give protection (Art. 34) d. Quasi-delict or culpa-aquiliana (Art.2177) Note: The Civil Code has SUPPLETORY application in matters governed by special laws.

ACTS CONTRARY TO LAW (Art. 20) Every person who is criminally liable shall also be civilly liable, whether the act is intentional or unintentional. ACTS CONTRA BONUS MORES (Art. 21) Elements: (L-C-I) 1. There is a legal act; 2. But which is contrary to morals, good customs, public order or public policy; and, 3. It is done with intent to injure. Articles 19, 20 and 21 are related to one another and under these articles, an act which causes injury to another may be made the basis for an award of damages (Albenson Enterprises Corp. v. CA, G.R. No. 88694, January 11, 1993). Articles 19 and 21 refer to INTENTIONAL acts while Article 20 pertains either to WILLFUL or NEGLIGENT acts, which must be contrary to law. (Ibid.) PRINCIPLE OF UNJUST ENRICHMENT (Art. 22) Accion In Rem Verso action for recovery of what has been paid without just cause. Application: 1. When someone acquires or comes into possession of something, which means delivery or acquisition of things; AND 2. Acquisition is undue and at the expense of another, which means without just or legal ground. Accion in Rem Verso and Solutio Indebiti
Accion In Rem Verso It is not necessary that the payment be made by mistake, payment could have been made knowingly and voluntarily but nevertheless, there would be recovery of what has been paid Solutio Indebiti (Art. 2154) Payment was made by mistake is an essential element to maintain the action for recovery.

Requisites: (JELA) 1. Defendant has been enriched; 2. Enrichment is without just or legal ground; 3. Plaintiff has suffered a loss; and

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are provided by the Civil Code, other codes, special laws, and the Rules of Court. NATURAL PERSONS Beginning of Personality General Rule: Birth determines personality (actual personality) (Art. 40). Exception: The law considers the conceived child as born for all purposes favorable to it if born alive. Therefore, the child has a presumed personality, which has two characteristics: 1. Limited; and 2. Provisional/conditional (Quimiguing vs. Icao, G.R. No. L-26795, July 31, 1970) Note: The concept of provisional personality CANNOT be invoked to obtain damages for and in behalf of an aborted child (Geluz vs. CA, G.R. No. L-16439, July 20, 1961). When is a Child Considered Born: General Rule: For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered from the mothers womb. Exception: If the fetus had an intrauterine life of less than 7 months, it is NOT deemed born if it dies within 24 hours after its complete delivery from the maternal womb (Article 41). Presumption of Survivorship: In case of doubt as to which of two or more persons called to succeed each other died first: 1. Whoever alleges the death of one prior to the other, shall prove the same 2. In the absence of proof, the presumption is that the parties died at the same time and there shall be no transmission of rights from one another (Art. 43) Note: Art. 43 apply when the parties are called to succeed each other or are heirs to one another. But if the parties are not called to succeed each other, Rule 131, Sec. 3 (jj) of the Rules of Court applies. Both are to be applied only in the absence of facts. The legitimacy or illegitimacy of a child attaches upon his/ her conception (Continental Steel Manufacturing Corp. v. Hon. Accredited Voluntary Arbitrator, et al., G.R. No. 182836, October 13, 2009).

CIVIL PERSONALITY Aptitude of being the subject, active or passive, of rights and obligations. Juridical Capacity and Capacity to Act
Juridical Capacity Fitness to be the subject of legal relations Capacity To Act Power to do act with legal effects (Art. 37) Active Merely acquired Lost through death and other causes Cannot exist without juridical capacity Can be restricted, modified or limited

(Art. 37)

Passive Inherent Lost only through death Can exist without capacity to act Cannot be limited or restricted

Theories on Capacity to Act


Theory of General Capacities Applies to natural persons One has the ability to do all things with legal effects except only in those specific circumstances where the capacity to act is restrained Theory of Special Capacities Applies to juridical persons This limits the power of juridical persons only to those that are expressly conferred upon them or those which can be implied therefrom or incidental thereto

Restrictions on Capacity to Act do not exempt the incapacitated person from certain obligations as when the latter arise from his acts or from property relations such as easements (Art. 38): (MID-PC) 1. Minority 2. Insanity or imbecility 3. State of being deaf mute 4. Prodigality 5. Civil interdiction Modifications/ Limitations on Capacity to Act (Art. 39): (FI3T P2A3D) 1. Family Relations; 2. Insanity; 3. Imbecility; 4. Insolvency; 5. Trusteeship; 6. Penalty; 7. Prodigality; 8. Age; 9. Alienage; 10. Absence; and 11. State of being deaf-mute. Note: The consequences of the restrictions and modifications in a persons capacity to act

San Beda College of Law Persons and Family Relations


The Family Code of the Philippines took effect on August 3, 1988. JURIDICAL PERSONS MARRIAGE The following are juridical persons: 1. State and its political subdivisions 2. Corporations, institutions and entities for public purpose or interest 3. Corporations, partnership and associations for private interest or purpose to which the law grants a juridical personality, separate and distinct from that of each shareholder, partner or member (Art. 44) Creation: 1. For (1) and (2), by the laws creating or recognizing them; government corporations are created by their special charters passed by the legislature 2. Private corporations are governed by BP 68; and 3. Partnerships and associations for private interest or purpose are governed by the provisions of this Code concerning partnerships. Note: The estate of a deceased should be considered an artificial or juridical person for the purposes of the settlement and distribution of his estate which include the exercise during the judicial administration thereof of his rights and the fulfillment of obligations which survived after his death (Limjoco vs.
Intestate Estate of Pedro Fragrante, No. L 770 April 27, 1948).

A special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences and incidents are governed by law and not subject to stipulation (Art. 1). Although a marriage contract is considered a primary evidence of marriage, its absence is not always proof that no marriage took place. Testimony of one of the parties to the marriage, witnesses or solemnizing officer is admissible to prove the fact of marriage. (Balogbog v. CA, G.R. No. 83598, March 7, 1997). Once the presumption of marriage arises, other evidence may be presented in support thereof. The evidence need not necessarily or directly establish the marriage but must at least be enough to strengthen the presumption of marriage. Every intendment of law leans toward legitimizing marriage (Delgado vda de De la Rosa v. Heirs of Marciana vda de Damian, GR No 155733, January 27, 2006) Marriage and Distinguished
Marriage Special contract Social institution Governed by law on marriage Not subject to stipulations except in property relations Legal capacity required is

Ordinary

Contract

Cessation of Civil Personality 1. If natural persons: by death (Art. 42) The effect of death upon the rights and obligations of the deceased is determined by law, contract, and by will because some rights and obligations survive the death of a person 2. If juridical persons: by termination of existence Dissolution of private corporations is governed by Title IV of the Corporation Code Dissolution of corporations for public interest or purposes is governed by the provisions of their respective charters and in its absence by the Corporation Code FAMILY CODE

Ordinary Contract Merely a contract Merely a contract Governed by law on contracts Generally subject stipulations to

Minors may contract thru their parents or guardians or in some cases by themselves Two or more parties regardless of gender Parties can fix a period for its efficacy to be ineffective after a few years Breach of ordinary contracts gives rise to an action for damages

Contracting parties must only be two persons one is a female and the other is a male Permanent Union Breach of obligations of husband and wife does not give rise to an action for damages.

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Formal Requisites of Marriage: (ALM) 1. Authority of the solemnizing officer 2. Valid Marriage License 3. Marriage ceremony where the contracting parties appear before the solemnizing officer, with their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age (Art. 3) Effects of: (Art. 4) 1. ABSENCE of essential or formal requisites: The marriage is VOID AB INITIO (ex: expired marriage license, marriage by way of jest) Exception: Marriage is valid where either or both parties believed in good faith that the solemnizing officer had legal authority to do so when he had none at the time of the solemnization of the marriage (Art. 35(2)) 2. DEFECT in any of the essential requisites: The marriage is VOIDABLE (ex: consent obtained through force and intimidation) 3. IRREGULARITY in any of the formal requisites: Does NOT affect the validity of the marriage BUT will hold the party responsible for such irregularity civilly, criminally and administratively liable Exception: Marriage is VOIDABLE where
contracting party 18 years old or over but below 21 without the consent of the parents

The law provides penal and civil sanctions such as prosecution for adultery or concubinage and proceedings for legal separation. Can be dissolved only by death or annulment, not by mutual agreement Can be dissolved by mutual agreement and by other legal causes

Breach of Promise to Marry General Rule: It is not by itself an actionable wrong (Hermosisima vs. CA L-14628, September 30, 1960). ONE CANNOT SEEK
SPECIFIC PERFORMANCE TO COMPEL MARRIAGE.

Exceptions: TO

BE ACTIONABLE, THERE MUST BE ANOTHER ACT INDEPENDENT OF THE BREACH OF PROMISE TO MARRY WHICH GIVES RISE TO LIABILITY AS WHERE THERE WAS FINANCIAL DAMAGE, SOCIAL HUMILIATION, AND MORAL SEDUCTION.

1. Mere breach of promise to marry is not an


actionable wrong; but to formally set a wedding and go through all the preparations and publicity, only to walk out of it when the matrimony is about to be solemnized, is quite different. This is palpably and unjustifiably contrary to good customs for which defendant must be held answerable in damages pursuant to Art. 21 NCC. (WASSMER VS. VELEZ, NO. L20089, DECEMBER 26, 1964)

2. Where a mans promise to marry was the


proximate cause of giving herself unto him in sexual congress and there is proof he had no intention of marrying her, the promise being a deceptive device, damages may be awarded pursuant to Art. 21 NCC because of the fraud and deceit behind it and the willful injury to her honor and reputation (BAKSH VS. CA, G.R.
NO. 97336, FEBRUARY 19, 1993).

Authority of Solemnizing Officer It is not the presence/absence of the solemnizing officer which constitutes the formal requirement but the absence/presence of the authority of such solemnizing officer at the time of the solemnization of the marriage. General Rule: The Solemnizing officer is not duty bound to investigate whether the marriage license was regularly issued. Must only determine if it was issued by a competent official If so, it may be presumed that the said official fulfilled the duty to ascertain whether the contracting parties fulfilled the requirements of law (People vs. Janssen) Exception: In cases of marriage in articulo mortis, IN REMOTE PLACES, AND BETWEEN A MAN
AND A WOMAN LIVING TOGETHER AS HUSBAND AND WIFE FOR AT LEAST 5 YEARS WITHOUT LEGAL IMPEDIMENT TO MARRY EACH OTHER

Essential Requisites of Marriage: (LC) 1. Legal capacity of the contracting parties, who must be a male and a female a. Eighteen years old or above b. Not under any impediment mentioned in Arts. 37 and 38 (Art. 5) 2. Consent freely given in the presence of a solemnizing officer (Art. 2) No particular form required Capable of intelligently understanding the nature and consequences of the act

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SOLEMNIZING
OFFICER MUST TAKE STEPS

TO ASCERTAIN THE AGES, RELATIONSHIP, AND QUALIFICATIONS OF CONTRACTING PARTIES (ART. 29)

Persons Authorized to Solemnize Marriages (Art. 7): PMJCCC 1. Priest, rabbi, imam or ministers of any church or religious sect a. duly authorized by his church or religious sect b. registered with the Office of the Civil Registrar General c. acting within the limits of the written authority granted d. at least one of the parties belongs to the solemnizing officers church or religious sect 2. Municipal and city mayors (Local Government Code, January 1, 1992) The term Mayor includes a ViceMayor who is the Acting Mayor or who is merely acting as a Mayor (People vs. Bustamante, citing Laxamana vs. Baltazar) 3. Incumbent members of the judiciary within the courts jurisdiction 4. Ship captains or air plane chiefs (Art. 31) Only in cases of marriages in articulo mortis between passengers or crew members During the voyage, while plane is in flight or ship is at sea and during stopovers at ports of call Assistant pilot has no authority to solemnize a marriage even if airplane chief dies during the trip 5. Commanders of military unit, in the absence of chaplain (Art. 32) Must be a commissioned officer rank should start from second lieutenant, ensign and above (Webster Dictionary, 1991 edition) Only in cases of marriage in articulo mortis between members of the armed forces or civilians within the zone of military operation 6. Consul generals, consuls or viceconsuls of the Republic of the Philippines abroad (Art. 10) Only in cases of marriage between Filipino citizens abroad The marriage ceremony is in accordance with the laws of the Philippines (Art. 17, NCC) Also performs the duties of the local civil registrar Consuls on home assignment in the Philippines cannot solemnize marriage

Valid Marriage License The license is valid in any part of the Philippines for 120 days from date of issue, which is the date when the local civil registrar signed the license. Automatically canceled at the expiration of the period if contracting parties have not made use of it (Art. 20) The requirement that the parties or one of them must reside in the place of the issuance of the license is a mere formal requirement. If there is no compliance with the same, the defect is a mere infirmity that does not affect the validity of the marriage (Ty vs. Court of Appeals, 2003). When either or both parties are foreign citizens, they must first submit a CERTIFICATE OF LEGAL CAPACITY TO MARRY issued by their diplomatic/consular officials before marriage license can be obtained (Art. 21) Exception: Marriage of both foreign citizens will be solemnized by their countrys consulgeneral assigned in the Philippines, if their countrys law allows the same Stateless persons/refugees from other countries shall submit an affidavit stating circumstances to show capacity to contract marriage before a marriage license can be obtained (Art. 21) Marriages Exempt from License Requirement (MOLAR) (ART.27) 1. Among Muslims or members of ethnic cultural communities solemnized in accordance with their customs, rites and practices (Art. 33) 2. Solemnized outside the Phil. where no marriage license is required by the country where they were solemnized 3. Of a man and a woman who have lived together as husband and wife for at least 5 years and without legal impediment to marry each other (Art. 34) Requisites: .a The man and woman must have been living together as husband and wife for at least five years before the marriage; .b The parties must have no legal impediment to marry each other; .c The fact of absence of legal impediment between the parties must be present at the time of marriage; .d The parties must execute an

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affidavit stating that they have lived together for at least five years (and are without legal impediment to marry each other); and .e The solemnizing officer must execute a sworn statement that he had ascertained the qualifications of the parties and that he had found no legal impediment to their marriage (Manzano v. Sanchez G.R. No.
MTJ001329, March 08, 2001)

1. Chambers of the judge or in open court 2. Church, chapel or temple 3. Office of consulgeneral, consul or vice consul Exceptions: 1. Marriage in articulo mortis; 2. Marriage in remote places; 3. Marriage at a house or place designated by the parties in a sworn statement to that effect, with the written request of both parties to the solemnizing officer Note: This provision is only directory and the requirement that the marriage be solemnized in a particular or a public place is not an essential requisite. FOREIGN MARRIAGE Validity of Marriage General Rule: Where one or both parties to the marriage are citizens of the Philippines, the foreign marriage is valid in this country if solemnized in accordance with the laws of the country of celebration. (Art. 26) In case a Filipino contracts a foreign marriage which is null and void in the place where it was solemnized, the same shall also be null and void in the Philippines even if such was valid if celebrated under Philippine laws If both are foreigners, lex loci celebrationis applies Exceptions: Foreign marriages shall not be recognized in the Philippines if: (B2MA-PIP) 1. Contracted by a national who is below 18 years of age (Art. 35(1)) 2. Bigamous or polygamous except as provided in Art. 41, FC (Art. 35(4)) 3. Contracted through mistake of one party as to the identity of the other (Art. 35(5)) 4. Contracted following the annulment or declaration of nullity of a previous marriage but before partition (Art.35(6)) 5. Void due to psychological incapacity (Art. 36) 6. Incestuous (Art.37) 7. Void for reasons of public policy (Art. 38) Divorce General rule: No divorce is allowed in the Philippines Exceptions: 1. Between 2 aliens if valid in their national laws even if marriage was celebrated in the Philippines

The 5year period should be computed on the basis of cohabitation as husband and wife where the only missing factor is the marriage contract to validate the union (ex: if both cohabited at the age of 17, counting starts when parties reach 18 years) This 5year period should be the years immediately before the day of the marriage and it should be a period of cohabitation characterized by EXCLUSIVITY meaning no legal impediment was present at any time within the 5 years and CONTINUITY that is unbroken (Republic v. Dayot, G.R. No. 175581,March 8, 2008)

4. In articulo mortis Remains valid even if ailing party subsequently survives (Art. 27) 5. In remote places Residence of either party is so located that there is no means of transportation to enable them to personally appear before the local civil registrar (Art. 28) Marriage Ceremony There is no particular form prescribed by the Family Code. The absence of two witnesses of legal age is merely an irregularity but the party responsible for the irregularity shall be civilly, criminally, and administratively liable. Marriages by proxy 1. If it was solemnized in the Philippines, the marriage is VOID because physical appearance is required under Art. 6. 2. If performed abroad, whether between Filipinos or foreigners or mixed, the controlling article is Art. 26 of the Family Code. Authorized Venues of Marriage (Art. 8) General Rule: Must be solemnized publicly, and not elsewhere, in the:

10

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2. Between a Filipino and an Alien if (a) there is a valid marriage celebrated between a Filipino citizen and a foreigner; and (b) a valid divorce according to the national law of the foreigner is obtained abroad by the alien spouse capacitating him or her to remarry. Art. 26(2)) The Filipino spouse should likewise be allowed to remarry as if he or she was a foreigner at the time of the solemnization of the marriage. To rule otherwise would sanction absurdity and injustice Party pleading it must prove divorce as a fact and demonstrate its conformity to the foreign law allowing it, which must be proved as courts cannot take judicial notice of foreign laws. If a valid divorce decree has been obtained abroad, there is no more need to file an action to nullify the marriage. The plaintiff has no more personality to sue since the marriage bond has already been severed (Felicitas Amor-Catalan vs. CA, G.R. No. 167109, February 6, 2007). Article 26 (2) applies where parties were Filipino citizens at the time of celebration of the marriage, but later on, one of them becomes naturalized as a foreign citizen and obtains a divorce decree because the reckoning point is their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry. (Rep. vs. Cipriano Obrecido III, G.R. No. 154380, Oct. 5, 2005) In Edgar San Luis v. Felicidad Sagalongos (G.R. No. 134029, February 6, 2007), whether a Filipino who had been divorced by his alien spouse abroad may validly remarry in the Philippines considering that the marriage was solemnized before the Family Code, it was held that it need not retroactively apply the provisions of the Family Code, particularly Article 26, par. (2), considering that there is sufficient jurisprudential basis allowing the retroactivity of the Family Code. There must be a showing that the divorce decree gave the foreigner spouse legal capacity to remarry because in some jurisdictions, remarriage may be limited or prohibited (Bayot vs. Bayot, G.R. No. 155635 2008). & 163979, November 7,

VOID MARRIAGES (Art. 35) Due to absence of any of the essential requisites: (BBLAPIS) 1. Contracted by any party below 18 years of age even with parental consent; 2. Solemnized by any person NOT LEGALLY authorized to perform marriages UNLESS one or both of the parties believed in good faith that the solemnizing officer had the legal authority to do so; 3. Solemnized WITHOUT a license except as otherwise provided; 4. Bigamous or polygamous marriages except Art 41; 5. Marriages contracted through mistake of one of the parties as to the physical identity of the other 6. Subsequent marriages that are void under Article 53 of the Family Code 7. Contracted by a party who at the time of the marriage was psychologically incapacitated. Note: Enumeration in Art 35 is NOT exclusive. Psychological Incapacity (ART. 36) No less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage. Its meaning is confined to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. This psychological condition must exist at the time the marriage is celebrated. (Santos vs. CA, G.R. No. 112019, January 4, 1995) Requisites of Psychological Incapacity: (JIG) 1. Gravity must be grave/serious such that the party would be incapable of carrying out the ordinary duties required in a marriage; 2. Juridical Antecedence Must be rooted in the history of the party antedating the marriage, although the overt manifestations may emerge only after the marriage; and 3. Incurability Must be incurable or, even if it were otherwise, the cure would be beyond the means of the party

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involved. (Santos vs. CA, G.R. No. 112019, January 4, 1995) May involve a senseless, protracted and constant refusal to comply with the essential marital obligations by one or both of the spouses although he, she or they are physically capable of performing such obligations (Chi Ming Tsoi v. CA, G.R. No.
119190, Jan. 16, 1997)

1. Plaintiff has burden of proof; 2. Root cause of the psychological incapacity


must be: a. Medically or clinically identified b. Alleged in the complaint: i. Sufficiently proven by experts ii. Clearly explained in the decision Incapacity proven to be existing at the time of the celebration of marriage; Incapacity must be permanent or incurable; Illness is grave enough to bring about disability to assume essential marital obligations; Marital obligations refer to Art. 6871, 220,221 and 225 of the FC; Interpretations of the National Appellate Matrimonial Tribunal of the Catholic Church of the Philippines while not controlling should be given great respect; Trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear for the state.

3. 4. 5. 6. 7.

A person who is unable to distinguish between fantasy and reality would be unable to comprehend the legal nature of the marital bond much less its psychic meaning and the obligations attached to the marriage, including parenting. One unable to adhere to reality cannot be expected to adhere as well to any legal or emotional commitments (Antonio v. Reyes, G.R. No. 155800, March 10, 2006) While disagreements on money matters would, no doubt, affect the other aspects of ones marriage as to make the wedlock unsatisfactory, this is not a sufficient ground to declare a marriage null and void. In fact, the Court takes judicial notice of the fact that disagreements regarding money matters is a common, and even normal, occurrence between husbands and wives. (Tongol vs. Tongol, G.R. No. 157610, October 19, 2007) Petitioner is not entitled to moral damages based on declaration of psychological incapacity because the award of moral damages should be predicated, not on the mere act of entering into the marriage, but on specific evidence that it was done deliberately and with malice by a party who had known of his or her disability and yet willfully concealed the same. (Noel Buenaventura v. CA, et al., G.R. No. 127358, March 31, 2005) Essential Elements: (MAVFFCCI) 1. Mental condition 2. Applies to a person who is maritally contracted to another 3. Marriage entered into with volition 4. Failure to perform or comply with the essential obligations in marriage 5. Failure to perform is chronic 6. Cause is psychological in nature 7. Cause is serious, with juridical antecedence, and must be incurable 8. Incapacity results in the failure of the marriage. Jurisprudential Guidelines (Molina Doctrine) (Republic v. Molina G.R. No. 108763, February 13, 1997): (PROBE PIG)

8.

Note: The SC held in Te vs. Te (G.R. No. 161793, February 13, 200) as decisive the psychological evaluation made by the expert witness and thus ruled that the marriage of the parties is null and void on the ground of both parties psychological incapacity. The clinical psychologist did not personally examine the respondent, and relied only on the information provided by petitioner. Further, the psychological incapacity was not shown to be attended by gravity, juridical antecedence, and incurability, deviating from Republic vs. CA and Molina (1997) ruling, upon the Courts reasoning that the impositions of the Molina case were inappropriate, as cases of psychological incapacity should be decided not on the basis of a priori assumptions, predictions or generalizations but according to its own facts. Courts should interpret the provision on a case-to-case basis; guided by experience, the findings of experts and researchers in psychological disciplines, and by decisions of church tribunals. The Molina doctrine has become a strait-jacket, forcing all sizes to fit into and be bound by it. The Court in conveniently applying Molina, has allowed diagnosed sociopaths, schizophrenics, nymphomaniacs, narcissists and the like, to continuously debase and pervert the sanctity of marriage. The wifes promiscuity and the psychiatrists report that she was suffering from social personality disorder exhibited by blatant display of infidelity, emotional immaturity, and

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irresponsibility cannot be equated with psychological incapacity (Dedel vs. Court of Appeals, G.R. No. 151867, January 29, 2004). Similarly, the husbands alleged alcoholism, drunkenness, his habitual verbal and physical abuse of the wife, failure to support the latter and her children, and unbearable jealousy, do not constitute psychological incapacity (Republic vs. Melgar, G.R. No. 139676,March 31, 2006). In Marcos v. Marcos (GR. NO. 136490, October 19, 2000), the SC held that psychological incapacity may be established by the totality of the evidence presented. The facts alleged in the petition and the evidence presented, considered in totality, should be sufficient to convince the court of the psychological incapacity of the party concerned. (Bernardino S. Zamora vs. CA, G.R. No. 141917, February 7, 2007) The complete facts should allege the physical manifestations, if any, as are indicative of psychological incapacity at the time of the celebration (Sec. 2(d) A.M. No. 02-11-10-SC, March 15, 2003) There is NO REQUIREMENT that the person sought to be declared psychologically incapacitated should be personally examined by a physician/ psychologist as a condition sine qua non to arrive at such declaration. It can be proven by independent means that one is psychologically incapacitated, There is no reason why the same should not be credited. (Republic of the Philippines vs. Laila Tanyag-San Jose and Manolito San Jose, G.R. No. 168328, February 28, 2007) opinions to the petition is also dispensed with (Tongol vs. Tongol, G.R. No. 157610, October 19, 2007). Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages (A.M. No. 02- 11- 10 SC, March 15, 2003), provides option to the trial judge to refer the case to a court- appointed psychologist/ expert for an independent assessment and evaluation of the psychological state of the parties, in order to assist the court to arrive at an intelligent and judicious determination of the case. Note: Final judgment denying a petition for nullity on the ground of psychological incapacity bars a subsequent petition for declaration of nullity on the ground of lack of marriage license. There is res judicata (Mallion vs. Alcantara, G.R. No. 141528, October 31, 2006). Incestuous marriages, whether the relationship is legitimate or illegitimate, between (Art. 37): 1. Ascendants & Descendants of any degree; 2. Brothers & Sisters whether full or half blood Those contrary to public policy contracted between (ART. 38): (C-KA3PS3) 1. Collateral blood relatives whether legitimate or illegitimate up to the 4th civil degree 2. Stepparents & step children 3. Parentsinlaw & childreninlaw 4. The adopting parent & the adopted child 5. The surviving spouse of the adopting parent & the adopted child 6. The surviving spouse of the adopted child & the adopter 7. Adopted child & a legitimate child of the adopter 8. Adopted children of the same adopter 9. Parties where one, with the intention to marry the other, killed the latters spouse, or his/her spouse. There is no need for conviction in a criminal case of the guilty party. The fact of killing committed by one of the parties to the marriage can be proved in a civil case The following can now marry each other: (LSG-CA) 1. Brotherinlaw and sisterinlaw; 2. Stepbrother and stepsister; 3. Guardian and ward;

Psychological incapacity is not meant to comprehend all possible cases of psychoses. The fourth guideline in Molina requires that the psychological incapacity as understood under Art. 36 (FC) must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or employment in a job (Tongol vs. Tongol, G.R. No. 157610, October 19, 2007). The new Rule promulgated by the SC on 4 March 2003 on Annulment and Declaration of Nullity of Marriage dispensed with the certification from the Solicitor General, stating therein his reasons for his agreement or opposition to the petition. Attachment of expert

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San Beda College of Law 2010 Centralized Bar Operations 4. Adopted and illegitimate child, parents and
relatives by consanguinity or affinity of the adopter; 5. Parties who have been convicted of adultery or concubinage. 6. Collateral relatives by the half blood Void Subsequent Marriages 1. Without judicial declaration of nullity of previous void marriage (Art. 40) 2. Without judicial declaration of presumptive death of absent spouse (Art. 41) 3. Where the absent spouse was presumed dead, and both the present spouse and wouldbe spouse were in bad faith in contracting marriage (Art. 44) 4. Failure to comply with Art 52 requiring
the partition and distribution of properties and delivery of childrens presumptive legitimes which should be recorded in the appropriate civil registry and registry of property after obtaining judgment for declaration of nullity or annulment (Art. 53).

Remarriage is not the sole purpose of declaration of nullity of a marriage as it can be declared void for other purposes

Note: Failure to record in the civil registry and registry of property the judgment of annulment or of absolute nullity of the marriage, partition and distribution of the property of the spouses and the delivery of the childrens presumptive legitimes shall not affect third persons (Arts.
5253).

For purposes of remarriage, the only legally acceptable basis for declaring a previous marriage an absolute nullity is a final judgment declaring such previous marriage void Parties to a marriage should not be permitted to judge for themselves its nullity, only competent courts having such authority. Prior to such declaration of nullity, the validity of the first marriage is beyond question (Landicho vs. Rolova L22579, February 23, 1968). One who enters into a subsequent marriage without first obtaining such judicial declaration is guilty of bigamy. This principle applies even if the earlier union is characterized by statute as void. (Manuel vs. People, G.R. No. 165842,November 29, 2005) Interestingly, in Lucio Morigo vs. People, GR No. 145226, Feb. 6, 2004, the SC ruled that a judicial declaration of nullity is NOT NEEDED where NO MARRIAGE CEREMONY at all was performed by a duly authorized solemnizing officer, as where the parties merely signed a marriage contract on their own without the presence of the solemnizing officer For purposes other than remarriage, such as but not limited to determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime or criminal case, other evidence is acceptable to show the nullity of the marriage and the court may pass upon the validity of marriage so long as it is essential to the determination of the case (Nial vs. Bayadog, G.R. No. 133778, March 14, 2000). Collateral attack of marriage is allowed In a case for concubinage, the accused need not present a final judgment declaring his marriage void, for he can adduce evidence in the criminal case of the nullity of his marriage other than proof of a final judgment declaring his marriage void (Beltran vs. People, G.R. No. 137567, June 20, 2000). Who may file Action for Declaration of Nullity Before March 15, 2003 Any interested party can file a direct case for nullity of marriage, e.g., a father can file a case for declaration of

Void and Voidable Marriage Distinguished


Void Decree of nullity Incapable of ratification Can be attacked directly or collaterally Coownership of properties through joint actual contributions Always void Action for declaration of nullity does not prescribe Only the spouses can have their marriage declared void starting March 15, 2003; but before such date, any interested party can do so Voidable Decree of annulment Ratified by free cohabitation Can be attacked directly only Generally Conjugal Partnership or Absolute Community Valid until annulled Action prescribes Those provided under Art. 47

Judicial Declaration of Nullity The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void (Art. 40).

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nullity of a bigamous marriage entered into by his daughter and a married man. March 15, 2003 and onwards A petition for declaration of absolute nullity of void marriage may be filed solely by the husband or wife. A.M. 02-11-10-SC which provides for the same is prospective in its application. (Juan de Dios Carlos vs. Falicidad Sandoval, G.R. No. 179922, December 16, 2008) Imprescriptibility of Action for Declaration of Nullity General Rule: The action or defense for the declaration of absolute nullity of a marriage shall not prescribe (Art. 39, as amended by
R.A. 8533 1998). approved on February 23,

under Art 349 of the Rev Penal Code. However, if the bigamous marriage was committed abroad, the guilty party cannot be criminally prosecuted for bigamy in the Philippines as our penal statutes are territorial in nature. Exception to the exception: If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations made by one in favor of the other are revoked by operation of law. (Art. 44) Effect of Reappearance of Absent Spouse: General Rule: The subsequent bigamous marriage under Article 41 remains valid despite reappearance of the absentee spouse. Exception: Subsequent marriage is automatically terminated if the reappearance was recorded in a sworn statement in the civil registry of the residence of the parties to the subsequent marriage at the instance of any interested person with due notice to said spouses, without prejudice to the fact of reappearance being judicially determined in case such fact is disputed. Exception to the exception: If there was a previous judgment annulling or declaring the first marriage a nullity, the subsequent bigamous marriage remains valid. Notes: If the absentee reappears, but no step is taken to terminate the subsequent marriage either by affidavit or by court action, such absentees mere reappearance, even if made known to the spouses in the subsequent marriage will not terminate such marriage (SSS v.
Bailon, G.R. No 165545, March 24, 2006).

Declaration of Nullity not a Prejudicial Question The pendency of the civil action for nullity of marriage does not pose a prejudicial question in a criminal case for concubinage. (Beltran vs. People, G.R. No. 137567, June 20, 2000). This ruling applies in a case for bigamy by analogy since both crimes presuppose the subsistence of a marriage. (Bobis vs. Bobis, G.R. No.138509, July 31, 2000). BIGAMOUS MARRIAGES (Art. 41) General Rule: A marriage contracted by any person during the subsistence of a previous valid marriage shall be null and void (Gomez
v. Lipana, GR. No. L23214, June 30, 1970) .

Exception: Before the celebration of the subsequent marriage, a declaration of presumptive death is obtained after complying with the following requirements: (JAB)

1. Absence of the other spouse must have


been for 4 consecutive years, or 2 years where there was danger of death under circumstances laid down in Art. 391 of the NCC 2. Well-founded belief of the present spouse who wishes to marry that absent spouse is already dead 3. Judicial declaration of presumptive death; present spouse must file a summary proceeding for the declaration of the presumptive death of the absentee without prejudice to the latters reappearance Note: This is intended to protect the present spouse from criminal prosecution for bigamy

Judgment declaring a spouse presumptively dead is unappealable because the proceedings thereon are summary in nature as per Art. 153 FC. The remedy is special civil action for certiorari (Heirs of Maura So vs. Obliosca, G.R. No. 147082, January 28, 2008).

See Comparative Chart on Effects of Declaration of Nullity, Annulment and Termination of Marriage in Art. 41 and Legal Separation. VOIDABLE MARRIAGES (Art. 45) Grounds: (UPFAVS) must exist AT THE

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TIME of marriage 1. Age of the party in whose behalf the marriage is sought to be annulled was 18 years of age or over but below 21, and the marriage was solemnized without the consent of the parents, guardian or person exercising substitute parental authority over the party, in that order; 2. Unsound mind of either party 3. Consent of either party obtained by fraudulent means as enumerated in Art. 46: (NPSD) a. Nondisclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude; b. Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband; Must have been done in bad faith. If the woman did not expressly inform the man of her pregnancy but such physical condition was readily apparent to the man, he cannot claim lack of knowledge thereof. (Buccat vs. Buccat, G.R. No. 47101, April 25, 1941) c. Concealment of a sexually transmissible disease, regardless of its nature, existing at the time of the marriage; and Nature or gravity of disease is irrelevant; it is enough that there was concealment at the time of the ceremony d. Concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism existing at the time of the marriage 4. Vitiated consent of either party through force, intimidation or undue influence Criminal liability attaches to anyone who uses violence, intimidation and fraud in contracting a marriage (Art. 350 RPC) 5. Physical incapability of either party to consummate the marriage with the other, and such incapacity continues and appears to be incurable (impotency) Permanent inability on the part of one of the spouses to perform the complete act of sexual intercourse, arising from physical and other causes, including psychological causes Need not be universal; condition may exist only as to the present spouse and not as to others

Requisites for annulment due to Impotence: (CUPIN) a. It exists at the time of the celebration of the marriage; b. It is permanent; c. It is incurable; d. It is unknown to the other spouse; e. The other spouse must not also be impotent. Doctrine of Triennial Cohabitation Presumption that the husband is impotent should the wife still remain a virgin for at least 3 years from time spouses started cohabiting. 6. Sexually transmissible disease of either party found to be serious and appears to be incurable. Elements: (ESSA) a. Existing at the time of marriage b. Sexually transmissible disease c. It is serious; and d. Appears incurable The enumeration in Article 46 is EXCLUSIVE
(Anaya vs. Palaroan, November 26, 1970). GR. No. L27930,

Note: Misrepresentation as to character, health, rank, fortune or chastity is NOT a ground for annulment.
Persons Who May Sue Injured party Prescriptive Period W/in 5 years from the time the force, intimidatio n, or undue influence ceased W/in 5 years from the discovery of fraud

Grounds (F2I2NS) Force, intimidati on, or undue influence

Ratification Free cohabitation after disappearance of force, intimidation / undue influence respecttively Free cohabitation even with full knowledge of facts constituting the fraud No ratification

Fraud

Injured party

Incapability to

Injured party

W/in years

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consummate Insanity Sane spouse who has no knowledge of the insanity Relative guardian after the since defect

celebration

of the marriage Anytime before the death of either party

is

permanent

Free cohabitation after insane regains sanity

1. No answer is filed or the answer does not tender an issue; 2. Respondent filed his answer but failed to appear at the pre-trial (Secs. 8(3) and 13(b), A.M. No. 02-11-12-SC, March 15, 2003) Note: The same also applies to Legal Separation pursuant to Secs. 5(c) and 10(2) of A.M. No. 02-11-11-SC, March 15, 2003. There will be collusion only if the parties had arranged to make it appear that a ground existed or had been committed although it was not, or if the parties had connived to bring about a matrimonial case even in the absence of grounds therefor (Ocampo vs. Florenciano, GR. No. L13553, February 23, 1960). However, petitioners vehement opposition to the annulment proceedings negates the conclusion that collusion existed between the parties. Under these circumstances, the non intervention of a prosecuting attorney to assure lack of collusion between the contending parties is not fatal to the validity of the proceedings in the trial court (Tuason vs. CA, G.R. No. 116607, April 10, 1996). Decision No judgment on the pleadings, summary judgment, confession of judgment, or judgment by default shall be allowed. If the defendant spouse fails to answer the complaint, the court CANNOT declare him or her in default. But instead, should order the public prosecutor to determine if collusion exists between the parties. Note: The same also applies to Legal Separation After court grants petition, it shall issue the decree of absolute nullity or annulment only after compliance with the following: 1. Must proceed with the liquidation, partition, and distribution of the properties of the spouses including custody and support of the common children unless such matters had been adjudicated in previous judicial proceedings 2. Delivery of the childrens presumptive legitimes 3. Registration of the entry of judgment granting petition for declaration of absolute nullity or annulment in the Civil Registry where the marriage was celebrated and in the Civil Registry of the place where the FC was located

or
persons having legal charge of the insane Insane spouse

Anytime before the death of either party

Non consent

Parent/ legal guardian having charge of the no consent party No consent party Injured party

During lucid interval or after regaining sanity Anytime before the no consent party reaches 21 W/in 5 years after reaching 21 W/in 5 years after the celebratio n of the marriage

Free cohabitation after insane regains sanity

Free cohabitation after reaching age of 21

STD

No ratification since defect is permanent.

Note: Whichever comes first may convalidate the marriage: Cohabitation OR Prescription. Additional Requirements for Annulment or Declaration of Nullity Prosecuting attorney or fiscal should: 1. Appear on behalf of the state 2. Take steps to prevent collusion between the parties 3. Take care that evidence is not fabricated or suppressed Collusion Public Prosecutor shall be ordered by the court to investigate and to submit a report on whether parties are in collusion when:

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4. Registration of approved partition and distribution of properties of the spouses in the proper Registry of Deeds where the real properties are located Note: The same applies to Legal Separation. In case of annulment or declaration of absolute nullity of marriage, Art.49 of the Family Code grants visitation rights to a parent who is deprived of the custody of the children. Such visitation rights flow from the natural right of both parents to each others company. There being no such parent child relationship between them, Gerardo has no demandable right to visit the child of Mario with Theresa
(Concepcion vs. CA GR. No. 12345, August 31, 2005).

7. Abandonment of the petitioner by the


respondent without justifiable cause for more than 1 year There must be absolute cessation of marital relations, duties, and rights, with the intention of perpetual separation (Partosa-Jo vs. CA, G.R. No. 82606, December 18, 1992). Abandonment implies total renunciation of duties. 8. Physical violence or moral pressure to compel petitioner to change religious or political affiliation 9. Contracting by respondent of a subsequent bigamous marriage; and 10. Sexual infidelity or perversion. Sexual perversion includes engaging in such behavior not only with third persons but also with the spouse CoolingOff Period 6-month period from the filing of the petition designed to give the parties enough time to further contemplate their positions with the end in view of attaining reconciliation between them. No action for Legal Separation shall be tried during such period (Art. 58). It is a mandatory

Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages (A.M. 001101SC) This took effect on March 15, 2003. This Rule shall govern petitions for declaration of absolute nullity of void marriages and annulment of voidable marriages under the Family Code of the Philippines. The Rules of Court have suppletory application. For a more comprehensive discussion on the procedural aspects of the Rule, please refer to the Remedial Law Memory Aid. LEGAL SEPARATION Exclusive Grounds: (SAMBALIPAD) 1. Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner 2. Attempt of the respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement Refers to prostitution only and irrespective of the age of the child 3. Attempt by the respondent against the life of the petitioner 4. Final judgment sentencing the respondent to imprisonment of more than 6 years even if pardoned 5. Drug addiction or habitual alcoholism of the respondent 6. Lesbianism or homosexuality of the respondent

requirement and its non-compliance makes the decision infirm. (Pacete vs. Carrianga, G.R. No. 53880, March 17, 1994)

Grounds for Denial of Petition (Art. 56): (C4MPDR) 1. Condonation of the offense or act complained of. But failure of the husband to look for his adulterous wife is NOT condonation to wife's adultery (Ocampo
vs. Florenciano, G.R. No. L13553, February 23, 1960).

2. 3.

4.

5. 6.

The act of the husband in having sexual intercourse with his wife in spite of his knowledge of the latters infidelity is an act of implied condonation. (Ginez v. Bugayong, G.R. No. L-10033, December 28, 1956) Consent to commission of offense or act complained of Connivance between parties of commission of offense or act constituting ground Connivance is corrupt consenting Collusion between parties Collusion is corrupt agreement between the spouses to procure divorce or legal separation Mutual Guilt or where both parties have given ground for legal separation Prescription

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An action for legal separation shall be filed within 5 years from time of occurrence of the cause (Art. 57) 7. Death of either party during the pendency of the case (LapuzSy vs. Eufemio, G.R.
No. 113842, August 3, 1994)

8. Reconciliation of the spouses during the


pendency of the case By filing in the same proceeding a joint manifestation under oath, duly signed by the spouses (Art. 65) Effects of Filing Petition: (LDS) 1. The spouses shall be entitled to live separately from each other 2. In the absence of an agreement between the parties, the court shall designate the husband, the wife, or a third person to manage the absolute community or conjugal partnership property (Art. 61) 3. The husband shall have no more right to have sexual intercourse with his wife. Decision No legal separation may be decreed unless the Court has taken steps toward the reconciliation of the spouses and is fully satisfied, despite such efforts, that reconciliation is highly improbable. (Art. 59) Note: The wife who has been granted legal separation cannot petition to be allowed to revert to her maiden name. Even if the parents are separated de facto, still in the absence of judicial grant of custody to one parent, both parents are entitled to the custody of their child. The remedy of habeas corpus may be resorted to by the parent who has been deprived of the rightful custody of the child (Salientes v. Abanilla, G.R. No.
162734, August 29, 2006).

Revival of Property Regime (Art. 67) Agreement of revival and motion for its approval shall be filed in court in the same proceeding for legal separation and shall be executed under oath and shall specify: 1. Properties to be contributed anew to restored regime; 2. Those to be retained as separated properties of each spouse; 3. Names of all known creditors, addresses, and amounts owing to each After due hearing, court shall take measures to protect interest of creditors and such order shall be recorded in the proper registries of properties but the same shall not prejudice creditors not listed or notified, unless debtorspouse has sufficient separate properties to satisfy creditors claim. Rule on Legal Separation (A.M. 021111SC) This took effect on March 15, 2003. This Rule shall govern petitions for legal separation under the Family Code in the Philippines; the Rules of Court shall apply suppletorily. Please refer to the Remedial Law Memory Aid for the procedural provisions of the Rule.

Note: A decree of legal separation, on the ground of concubinage, may issue upon proof of preponderance of evidence in the action for legal separation. No criminal proceedings or conviction is necessary. Effects of Reconciliation of the Spouses (Art. 66): 1. The legal separation proceedings, if still pending, shall thereby be terminated at whatever stage. 2. The final decree of legal separation shall be set aside, but the separation of property and any forfeiture of share of the guilty spouse already effected shall subsist, unless the spouses agree to revive their former property regime.

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