PERSONS AND FAMILY RELATIONS

UC-BAR OPS 2011

Atty. Rachel Tenefrancia-Castro

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I. PERSONS

1. Retroactivity of Laws, NCC Art. 4 Laws shall have no retroactive effect, unless the
contrary is provided.

Exceptions to Rule:

(1) When the law itself so expressly provides.-- This has two exceptions:
(a) when the retroactivity of a penal statute will make it an ex post
facto law, (Sec. 22. No ex post facto law or bill of attainder shall
be enacted. Sec. 22, Article III, 1987 Constitution) and

(b) When the retroactive effect of the statute will constitute an
impairment of the obligation of contract.

(Sec. 10. No law impairing the obligation of contracts shall be passed.
Sec. 10, Article III, 1987 Constitution)

(2) In case of Penal statutes.-- Penal laws shall have retroactive effect insofar as
they favor the accused who is not a habitual criminal, even though at the
time of the enactment of such laws final sentence has already been
rendered. (Art. 22, RPC)

(3) In case of Remedial statutes.-- Remedial statutes are those which refer to the
method of enforcing rights or of obtaining redress of their invasion.

(4) In case of Curative statutes.-- Curative statutes are those which undertake to
cure errors and irregularities.

(5) In case of laws interpreting others.-- These are laws which are intended to
clarify doubts or interpret an existing law.

(6) In case of laws creating new rights.-- provided that it does not prejudice
another acquired right of the same origin.

(7) If the law is of an emergency measure and authorized by the police power of
the State.

(8) Tax laws which impose taxes may be given retroactive effect. Liability for
taxes is incidental to social existence. (Lorenzo vs. Posadas, 64Phil 353)

2. Territoriality Principle Operation of law is co-extensive with territorial
sovereignty (Art. 14, NCC), particularly in case of penal laws, and laws of
public security and safety.

Territoriality and Generality Principle
Art. 14. Penal laws and those of public security and safety shall be
obligatory upon all who live or sojourn in Philippine territory, subject
to the principles of public international law and to treaty
stipulations.

There are 2 principles involved here: Territoriality and Generality.
Territoriality means that our criminal laws are enforceable only within
Philippine territory. Exception to the territoriality principle is Article
2 of RPC.

PERSONS AND FAMILY RELATIONS
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Atty. Rachel Tenefrancia-Castro

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Generality which means that within the Philippine territory, our criminal
laws will apply to anyone, citizen or alien. Our penal laws equally apply to
aliens who live or sojourn in the Philippines based on the principle that during
their stay, they owe allegiance to the country though temporary in nature.
The same rule is embodied in Article 2 of the RPC.

UNIVERSALITY AND TERRITORIALITY PRINCIPLE:

Universality: Penal laws and those of general welfare and those of public
security are binding on all who reside and sojourn in the Philippine territory.
(Art. 14)

Prohibititve laws concerning persons, their acts and their property, and
those intended to promote public order and good morals, shall not be
made nugatory by any foreign laws or judgments nor by an action or
agreement made in a foreign country. (Art. 17, p. 3)

Basis of the rule is the right of the State to protect itself and its policies in
order to achieve its ends.

Art. 14. Penal laws and those of public security and safety shall be
obligatory upon all who live or sojourn in Philippine territory, subject to the
principles of public international law and to treaty stipulations

Thus, any offense committed by any person (Filipino or alien) within the
territory of the country is an offense against the State. The State has,
therefore, the power to prosecute and punish the offender, national of
foreigner.

Exceptions:
(1.) Those, who under principles of public internal law enjoy diplomatic
immunities (from suit) such as heads of states, foreign ambassadors
or diplomats provided they do not travel incognito.
NOTE: Consuls do not have immunities
(2.) Those expressly excluded from our jurisdiction due to treaty
stipulations

EXTRATERRITORIAL JURISDICTION:
The juridical power of the State extending beyond the physical
limits of a particular state or country. (Blacks Law Dictionary., 6
th
Ed.)

Where the State has jurisdiction over specific crimes although the
same was committed outside its jurisdiction.

Art. 2 (RPC) Application of its provisions. Except as provided in
the treaties and laws of preferential application, the provisions of this
Code shall be enforced not only within the Philippine Archipelago,
including its atmosphere, its interior waters and maritime zone, but also
outside its jurisdiction, against those who:
1. Should commit an offense while on a Philippine ship or
airship;
2. Should forge or counterfeit any coin or currency note if the
Philippine Islands or obligations and securities issued by the
Government of the Philippine Islands;
3. Should be liable for acts connected with the introduction
into these Islands of the obligations and securities mentioned
in the preceding number;
PERSONS AND FAMILY RELATIONS
UC-BAR OPS 2011
Atty. Rachel Tenefrancia-Castro

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4. While being public officers or employees, should commit an
offense in the exercise of their functions; or
5. Should commit any of the crimes against national security
and the law of nations, x x x

3. Lex Rei Sitae

Art. 16. Real property as well as personal property is subject to the law of the
country where it is situated.

However, intestate and testamentary successions, both with respect to the order
of succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person
whose succession is under consideration, whatever may be the nature of the
property and regardless of the country wherein said property may be found.

EXCEPTIONS TO LEX REI SITAE:

(1) In case of successional rights to real property, the law that governs
is the national law of the decedent (Art. 16, par. 2 Civil Code); as well as
capacity to succeed (in inheritance) is also governed by the national law
of the decedent (Art. 1039, CC);

(2) Contracts involving real property but which do not deal with the
title to such real property shall not necessarily be governed by the lex rei
sitae. The proper law of the contract governs

(3) In contracts where real property is given by way of security, the
principal contract of i.e loan is governed by the proper law of the
contract; the accessory contract of mortgage is governed, however, by
the law of the state where the real property mortgaged is situated.

4. Formalities (LEX LOCI CELEBRATIONIS)
The forms and solemnities of contracts, wills and other public
instruments are governed by the law of the country in which they
are executed. (Art. 17, par. 1) Refers to the formal or extrinsic validity

5. Renvoi Doctrine Where our law provides that a foreign law should be
applied, such application takes place despite any provision of that foreign
law that another law should apply in case of conflict.


6. Nationality Principle
Art. 15. Laws relating to family rights and duties, or to the status, condition
and legal capacity of persons are binding upon the citizens of the
Philippines even though living abroad.

In the Philippines, we follow the nationality or citizenship theory, that is, the
national law of the person is applied in matters involving personal
relations. In the U.S, and Great Britain, the domiciliary or territoriality theory
is followed such that, the law of the domicile is applied on matters
involving personal relations.




PERSONS AND FAMILY RELATIONS
UC-BAR OPS 2011
Atty. Rachel Tenefrancia-Castro

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FAMILY CODE:

Validity of Marriage in determining the validity of marriage, it is to be tested by
the law in force at the time the marriage was contracted.

1. Requisites for validity of marriage:
a. Essential requisites:

i. Legal capacity of the contracting parties who must be a male and a
female; and

Legal capacity defined: male or female of the age of 18 years or
upwards not under any of the impediments in Articles 37
(incestuous marriages), 38 void marriages by reason of public
policy). (Art. 5)

to grant the changes in name and sex sought by petitioner will
substantially reconfigure and greatly alter the laws on marriage
and family relations it will allow the union of a man with another
man who has undergone sex reassignment, a male-to-female
post operative transsexual. (Silverio vs. Republic, 537 SCRA 373)
Such a marriage is void.

ii. Consent freely given in the presence of the solemnizing officer (Art. 2,
FC) consent of the contracting parties and not their parents should
they 18 years old and up.

b. Formal requisites: (Art. 3)

1. Authority of the solemnizing officer

The authority of the officer or clergyman shown to have performed a
marriage ceremony will be presumed in the absence of any showing to the
contrary. (Alcantara vs. Alcantara, 531 SCRA 446)

Authorized solemnizing officers are:

1.1. incumbent member of the judiciary within the courts jurisdiction;

1.2. any priest, rabbi, imam, or minister of any church or religious sect
duly authorized by his church or religious sect and registered with
the civil registrar general, acting within the limits of the written
authority granted him;

1.3. any ship captain or airplane chief only when the marriage is in
articulo mortis;

1.4. any military commander of a unit to which a chaplain is assigned,
in the absence of the latter, during military operation where the
marriage is in articulo mortis;

1.5. any consul-general, consul or vice consul where the marriage is
abroad between Filipino citizens ;

1.6. mayors (Local Government Code)

PERSONS AND FAMILY RELATIONS
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Atty. Rachel Tenefrancia-Castro

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Absence of authority of the solemnizing officer- the marriage is
void, however, where either or both of the contracting parties
believing in good faith that the solemnizing officer had the legal
authority to do so, the marriage is valid (Art. 35, p. 2)

2. A valid marriage license except where no marriage license is necessary:
a. marriage in articulo mortis (art. 27)

b. residence of either or both parties are in far areas and no means of
transportation to appear before the local civil registrar; (Art. 28)

c. marriage among Muslims or among members of the ethnic cultural
communities, provided they are solemnized in accordance with their
customs, rites, practices; (Art. 33)

d. co-habitation for at least five years and without any legal impediments
to marry each other; (Art. 34)

3. A marriage ceremony which takes place with the appearance of the
contracting parties before the solemnizing officer and their personal
declaration that they take each other as husband and wife in the presence
of not less than two witness of legal age.

Note that No prescribed form or religious rite for the solemnization of the
marriage is required. It shall be necessary however, contracting parties to
appear personally before the solemnizing officer and declare in the
presence of not less than two witnesses of legal age that they take each
other as husband and wife. (Art. 6)

Effect of absence or defect in any of the requisites:
a. The absence of any of the essential for formal requisites shall render the
marriage void (Art. 4)

Note: Case of Navarro vs. Domagtoy, July 19, 1996 where the court held that
where judge solemnizing a marriage outside his courts jurisdiction, there is a
resultant irregularity in the formal requisite, which, while it may not affect the
validity of the marriage, may subject the officiating official to administrative
liability.

b. A defect in any of the essential requisites shall render the marriage voidable;
(Art. 4, par. 2)

c. 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. (Art. 4 par. 3)

4. Void Marriages
1. Void marriages under Art. 35

1.1. those contracted by any party below 18 years of age
1.2. Those solemnized by any person not legally authorized to perform
marriages
1.3. Those solemnized without a license
1.4. Those bigamous or polygamous marriages not falling under Art. 41

Article 41 refers to a valid bigamous marriage
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1.5. Those contracted through mistake of one contracting party as to the
identity of the other; and
1.6. Those subsequent marriages that are void under Art. 53

2. Psychological Incapacity of one or both of the contracting parties to
perform his or her essential marital obligations (Art. 36)
3. Incestuous marriages, whether the relationship between the parties be
legitimate or illegitimate (Art. 37)

3.1 Between ascendants and descendants of any degree; and
3.2 Between brothers and sisters, whether of the full or half-blood

4. Marriages declared void by reason of public policy (Art. 38)

4.1. Between collateral blood relatives, whether legitimate or illegitimate, up
to the fourth civil degree;
4.2. Between step-parents and step-children
4.3. Between parents-in-law and children-in-law
4.4. Between the adopting parent and the adopted child;
4.5. Between the surviving spouse of the adopting parents and the
adopted child;
4.6. Between the surviving spouse of the adopted child and the adopter;
4.7. Between an adopted child and a legitimate child of the adopter
4.8. Between the adopted children of the same adopter
4.9. Between parties where one, with the intention to marry the other,
killed that other persons spouse or his or her own spouse

5. Marriages under Art. 40
The absolute nullity of a previous marriage may be invoked for purposes
of remarriage on the basis of a final judgment declaring such previous
marriage void.

6. Marriages under Art. 44
If both spouses of the subsequent marriage acted in bad faith, said
marriage shall be void ab initio and all donations by reason of the
marriage and testamentary dispositions made by one in favor of the other
are revoked by operation of law.

7. Failure to comply with the recording requirements under Art. 52 (Art. 53)
Either of the former spouses may marry again after complying with the
requirements in Art. 52; otherwise, the subsequent marriage is void.

The judgment of annulment or of absolute nullity of the marriage, the
partition and distribution of the properties of the spouses, and the delivery
of the childrens presumptive legitimes shall be recorded in the
appropriate civil registry and registries of property. (Art. 52)

5. Voidable Marriages (Art. 45)

KINDS:
1. No parental consent for a contracting party who is 18 years of age or over
but below 21 years of age;
2. Unsound mind
3. Consent was obtained through fraud

3.1 Non-disclosure of a previous conviction by final judgment of a
crime involving moral turpitude
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3.2 Concealment by the wife of the fact that at the time of the
marriage , she was pregnant by a man other than her husband
3.3 Concealment of sexually transmissible disease, regardless of its
nature, existing at the time of the marriage; or
3.4 Concealment of drug addiction, habitual alcoholism, or
homosexuality or lesbianism existing at the time of the marriage

No other misrepresentation or deceit as to character, health, rank,
fortune or chastity shall constitute such fraud as will give grounds for
action for the annulment of marriage. (Art. 46)

4. Consent was obtained by force, intimidation, or undue influence
5. Physical incapability to consummate the marriage which appears
incurable
6. Affliction with a sexually transmissible disease found to be serious and
appears to be incurable

- Marriage under Article 26

All marriages solemnized outside of the Philippines, in accordance with
the laws in force in the country where they are solemnized, and valid there
as such, shall also be valid in the Philippines except:

7. those contracted by any party below 18 years of age
8. Those bigamous or polygamous marriages not falling under Art. 41
9. Those contracted through mistake of one contracting party as to the identity
of the other; and
10. Those subsequent marriages that are void under Art. 53

Art. 26, 2
nd
par.:

Where a marriage between A Filipino citizen and a foreigner is validly
celebrated and a divorce is thereafter validly obtained abroad by the alien
spouse capacitating him or her to remarry, the Filipino spouse shall likewise have
capacity to remarry

6. PROPERTY RELATIONS
Kinds:
a. Absolute Community Property
b. Conjugal Partnership of Gains
c. Complete Separation of Property
d. Any other regime

7. Marriage Settlement ; Form and Modification (Art. 76 and 77)
a. Must be in writing
b. Signed by the parties
c. Executed before the marriage
d. Any subsequent modification must be made before the celebration of the
marriage

8. Donations By Reason of Marriage those made before the celebration of the
marriage, in consideration of the same, and in favor or one or both of the
future spouses (Art. 82)

Limitation If the future spouses agree upon a regime other than the ACP, they
cannot donate to each other in their marriage settlements more than 1/5 of their
present property. Any excess shall be considered void. (Art. 84)
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Atty. Rachel Tenefrancia-Castro

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9. Revocation of donation by reason of marriage: (Art. 86) DPN may be revoke by
the
donor in the following cases:
1. If the marriage is not celebrated or judicially declared void an initio
except donations made in the marriage settlements, which in these cases
are considered void if the marriage does not take place.
2. When the marriage takes place without the consent of the parents or
guardian, as required by law;
3. When the marriage is annulled, and the donee acted in bad faith;
4. Upon legal separation, the donee being the guilty spouse
5. If it is with a resolutory condition and the condition is complied with
6. When the donee has committed an act of ingratitude as provided in the
provisions of the Civil Code on donations in general.

10. Absolute Community of Property
When ACP governs property regime of the spouses:

e. when the spouses have entered into marriage without having chosen any
property regime;
f. when the property regime chosen is void
g. when the choose the ACP to govern their property relations during the
marriage

11. What constitutes Community Property

Consists of all the property owned by the spouses at the time of the celebration
of the marriage or acquired thereafter. (Art. 91)

Presumption of property acquired during the marriage, is that it belongs to the
community property (Art. 93)

Winnings is game of chance, betting or any other kind of gambling but not losses
which shall be borne by the loser. (Art. 95)

12. Excluded from ACP

a. Property acquired during the marriage by gratuitous title by either spouse,
and the fruits as well as the income thereof, if any, unless expressly provided
by the donor, testator or grantor that they shall form part of the ACP
b. Property for personal and exclusive use of either spouse. However, jewelry
shall form part of the community property;
c. Property acquired before the marriage by either spouse who has legitimate
descendants by a former marriage, and the fruits as well as the income
thereof;

13. Conjugal Partnership of Gains

Concept: The husband and wife place in a common fund the proceeds,
products, fruits and income from their separate properties and those acquired
by either or both spouses through their efforts or by chance, and upon dissolution
of the marriage or of the partnership, the net gains or benefits obtained by either
or both spouses shall be divided equally between them, unless otherwise agreed
in the marriage settlement. (Art. 105)


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Atty. Rachel Tenefrancia-Castro

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- What forms Part of CPG

1. All property acquired during the marriage, whether the acquisition
appears to have been made, contracted or registered in the name of one or
both spouses, is presumed to be conjugal unless the contrary is proved. (Art.
116)

2. Art. 117
1. those acquired by onerous titled during the marriage at the expense
of the common fund;
2. Those obtained from the labor, industry, work or profession of either or
both of the spouses;
3. The fruits, natural, industrial, or civil due or received during the
marriage from the common property, as well as the net fruits from the
exclusive property of each spouse;
4. The share of either spouse in the hidden treasure which the law awards
to the finder or owner of the property where the treasure is found;
5. Those acquired through occupation such as fishing or hunting;
6. Livestock existing upon the dissolution of the partnership in excess of
the number of each kind brought to the marriage by either spouse;
and
7. Those which are acquired by chance, such as winnings from gambling
or betting. Losses shall be borne exclusively by the loser-spouse.

3. Whenever an amount or credit payable within a period of time belongs to
one of the spouses, the sums which may be collected during the marriage in
partial payments or installments on the principal shall be exclusive property of
the spouse. However, interest falling due during the marriage on the principal
shall belong to the conjugal partnership. (Art. 119)

4. Art. 120 Ownership of improvements made on the separate property of the
spouses at the expense of the partnership or efforts of either or both spouses
depending on cost of improvement made by the CP and the resulting increase
in value. If it is more than the value of the property at the time of improvement,
the entire property of one spouse shall belong to the CPG. (Art. 120)

- Excluded from the CPG

a. That which is brought to the marriage as his or her own;
b. That which each acquires during the marriage by gratuitous title;
c. That which is acquired by right of redemption, by barter or by
exchange with property belonging to only one of the spouses; and
d. That which is purchased with exclusive money of the wife or of the
husband (Art. 109)

- Dissolution of the CPG; same grounds as in the ACP (Art. 126)

14. Complete Separation of Property

15. Property Regime or Unions without Marriage

Art. 147. When a man and a woman who are capacitated to marry each other,
live exclusively with each other as husband and wife, without the benefit or
marriage or under a void marriage, their wages and salaries shall be owned by
them in equal shares and the property acquired by both of them through their
work or industry shall be governed by the rules on co-ownership. X x x
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Atty. Rachel Tenefrancia-Castro

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When only one of the parties to a void marriage is in good faith, the share of the
party in bad faith in the co-ownership shall be forfeited in favor of their common
children, in default of or waiver of all of the common children or their
descendants, each vacant share shall belong to the respective surviving
descendants. In the absence of descendants, such share shall belong to the
innocent party.

Relationships included under Art. 147:

1. the man and the woman must (a) be capacitated to marry each other;
(b) live exclusively with each other as husband and wife; and )c) be without the
benefit of marriage;

2. Void marriages under:

(a) Articles 36 (psychological incapacity;
(b) Art. 44 marriage where the absent spouse has been declared
presumptively dead and the present spouse as well as the 2
nd
spouse of the
subsequent marriage are in bad faith; and

Art. 53. Failure to comply with the recording requirements after a
marriage is declared void

Art. 148. In cases of cohabitation not falling under Art. 147, only properties
acquired by both of the parties through their actual joint contribution of money,
property, or industry shall be owned by them in common in proportion to their
respective contributions. In the absence of proof , their contribution shall be
deemed equal.

In one of the parties is validly married to another, his or her share in the co-
ownership shall accrue to the ACP or CPG existing in such valid marriage. If the
party who acted in bad faith is not validly married to another, his or her share
shall be forfeited in the manner provided in art. 147.

Relationships included under Art. 148:

1. a man and a woman living together as husband and wife, without he
benefit of marriage, but are NOT CAPACITATED to marry;
2. an adulterous relationship;
3. a bigamous or polygamous marriage;
4. incestuous void marriages under Art. 37; and
5. void marriages by reason of public policy under Art. 38

16. Paternity and Filiation

Legitimate children - Children conceived or born during the marriage of the
parents are legitimate. (Art. 164)

Illegitimate Children - Children conceived and born outside a valid marriage are
illegitimate; unless otherwise provided by the Family code. (Art. 165)

Legitimated Children -Only children conceived and born outside wedlock of
parents who, at the time of the conception of the former, were not disqualified
by any impediment to marry each other may be legitimated. (Art. 177)

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Atty. Rachel Tenefrancia-Castro

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NOTE: R.A. 9858 amended Article 177 of the Family Code, Children conceived
and born outside of wedlock of parents who, at the time of conception of the former,
were not disqualified by any impediment to marry each other, or were so disqualified
only because either or both of them were below 18 years of age, may be legitimated.
(passed on October 13, 2009)

Legitimation shall take place by a subsequent valid marriage between parents.
The annulment of a voidable marriage shall not affect the legitimation. (Art. 178)

The effects of legitimation shall retroact to the time of the childs birth. (Art. 180)

17. Adopted children
Purely personal between the adopted child and the adopted parent.

18. IMPUGNING THE LEGITIMACY OF A CHILD

Art. 166. Legitimacy of a child may be impugned only on the following grounds:

1.) That it was physically impossible for the husband to have sexual intercourse
with his wife within the first 120 days of the 300 days which immediately
preceded the birth of the child because of:

a.) the physical incapacity of the husband to have sexual intercourse
with his wife;
b.) the fact that the husband and wife were living separately in such a
way that sexual intercourse was not possible;
c.) serious illness of the husband, which absolutely prevented sexual
intercourse;

2. That it is proved that for biological or other scientific reasons, the child
could not have been that of the husband, except in the instance provided in the
second par. Of Art. 164; or

3. That in case of children conceived through artificial insemination, the
written authorization or ratification of wither parent was obtained through
mistake, fraud, violence, intimidation, or undue influence.

Where the husband was able to prove any of the grounds enumerated above,
the child will neither be considered legitimate or illegitimate in so far as he is
concerned because they are not related to each other. In so far as the mother is
concerned, the child will be considered her illegitimate child.

Art. 167. The child shall be considered legitimate although the mother may have
declared against its legitimacy or may have been sentenced as an adulteress.

19. Family Home when is it deemed constituted?

A family home is deemed constituted on a house and lot from the time it is
occupied as a family residence; there is no need to constitute the same judicially
or extrajudicially. Versonla vs. CA, 497 SCRA 385