Persons and Family Relations REV

University of the Cordilleras
College of Law | 1

CIVIL LAW

Persons and Family
Relations

PRELIMINARY TITLE

CHAPTER I. EFFECT AND
APPLICATION OF LAWS

August 30, 1950 Date of effectivity of the
Civil Code.

Effectivity of Laws

General rule:

1. A law may provide for its own
effectivity.
2. If the law is silent as to its own
effectivity, it shall take effect only
after 15 days following its complete
publication.

Publication Requirements:

1. May either be published in the
Official Gazette or in a newspaper
of general circulation.
2. Publication must be in full.

Meaning of Clause Unless It Is Otherwise
Provided

It refers to the date of effectivity and not to
the requirement of publication itself, which
cannot in any event be omitted. This
clause does not mean that the legislature
may make the law effective upon
approval, or on any other date, without its
previous publication.

Laws governed:

All laws and not only to those of general
application. All laws that relate to the
people in
general including those that do not apply
to them directly.

Included:

1. Presiential Decrees and Executive
orders
2. Administrative rules and
regulations-if its purpose is to
enforce existing laws pursuant to
valid delegation.
3. Monetary Board Circulars-if they
are meant not merely to interpret
but to fill in the details of the
Central Bank Act.

Excluded:

1. Municipal ordinances
2. Supreme court decisions

Cases:

1. People vs. Simon RA 7659 took
effect on December 31, 1993
fifteen (15) days after its complete
publication on the December 16,
1993 issues of Manila Bulletin,
Philippine Star, Malaya, an
Philippine Times Journal.

2. Tanada v Tuvera Court ruled
that Article 2 of the Civil Code
does not preclude the requirement
of publication in the Official
Gazette even if the law itself
provides for the date of its
effectivity since the clear object of
the law is to give the general public
adequate notice of the various
laws which are to regulate their
actions and conduct as citizens.

Presumption of Knowledge of Laws

Ignorance of the law excuses no one from
compliance therewith. (Ignorantia legis
non excusat)

Reason

Evasion of the law would be facilitated,
and the administration of justice defeated,
if persons could successfully plead
ignorance of the law to scape the legal

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consequences of their acts, or to excuse
nonperformance of their legal duties.

Laws covered

All kinds of domestic laws, civil or penal,
substantive or remedial. Mandatory or
prohibitory except permissive laws.

Other exception:

1. Foreign laws ignorance of it is
only cosidered as a mistake of fact
not a mistake of law.

Doctrine of processual presumption
if the foreign law involved is not
properly pleaded and proved, the court
will presume that the foreign law is the
same as our local or domestic or
internal law.

Cases:

1. Marbella-Bobbis v Bobbis-
Respondent Isagani Bobbis cannot
successfully invoke ignorance of
the existence of Article 40 of the
Revised Penal Code to be saved
from the prosecution of bigamy.
Every person is presumed to know
the law.

2. Consunji v CA ignorance of the
provisions of the Civil Code
demanding cost of damages
higher than those provided by the
Workmens Compensation Act
cannot be held against the
respondent because respondents
decision only constitutes a mistake
of fact.

Prospective Application of Laws

General Rule

Laws are to be construed as having only
prospective operation. Lex prospicit, non
respicit.

Exceptions

1. if the law itself provides for
retroactivity;
2. penal laws favorable to the accused;
3. if the law is procedural;
4. when the law is curative;
5. when the law creates new substantive
rights.

Exceptions to the Exceptions

1. when the retroactivity of a penal
statute will make it an ex post facto
law;
2. when the retroactive effect of the
statute will result in impairment of
obligation of contracts.
a. Exception

Laws enacted in the
exercise of Police power
could be given retroactive
effect and may reasonably
impair vested rights or
contracts. (Ortigas & Co.,
Limited v CA)

Mandatory or Prohibitory Laws

Acts executed against the provisions of
mandatory or prohibitory laws shall be
void, except when the law itself
authorizes their validity.

If the law commands that something be
done, it is mandatory. If the law
commands that something should not be
done, it is prohibitory. If the law
commands that what it permits to be
done should be tolerated or respected, in
which case, it is permissive or directory.

Exceptions:

1. When the law itself authorizes its
validity although generally they would
have been void.
2. When the law makes the act valid,
but punishes the violator.
3. Where the law merely makes the act
voidable, that is, valid unless
annulled.

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4. Where the law declares the act void,
but recognizes legal effects as arising
from it.

Waiver of Rights

Elements of Rights

1. Subjectpersons
a. Activeentitled to demand
b. Passiveduty-bound to
enforce
2. Objectthings and services
3. Efficient causefact that gives
rise to legal relation.

Kinds of Rights

1. Civil rights
a. Personal rights- not
subject to waiver
b. Family rights- not subject to
waiver
c. Patrimonial rights can be
waived generally.
i. Real rights-no
passive subject
ii. Personal rights-w/
passive subject
2. Political rights

Requisites of a Valid Waiver

1. A person should have knowledge
of its existence;
2. Has intention to relinquish it.
Requisite of valid renouncement:
a. he must actually have the
right which he renounces;
b. he must have the capacity
to make the renunciation;
c. the renunciation must be
made in a clear and
unequivocal manner.

Repeal and Consistency of Laws

Kinds of repeal
1. Expressed
2. Impliednot favored in our
jurisdiction
Requisites:
a. Laws cover the same
subject matter
b. The latter is repugnant to
the earlier

In case of inconsistency:
1. Constitution must prevail over
statute (may be declared void if not
consistent)
2. Statutel over admistrative and
executive acts and regulations
3. Special law over General law

Judicial Decisions

Not considered laws but shall form a part
of the legal system of the Philippines.

Doctrine of Stare Decisis

When the Court has once laid down a
principle of law as applicable to a certain
state of facts, it will adhere to that principle
and apply it to all future cases where the
facts are substantially the same. It enjoins
adherence to judicial precedents.

Case:

1. Caltex v PalomarPostmaster-
General must abide with the
decision of the court since it is not
just a judicial opinion but a
command.

Duty to Render Judgment

No judge or court shall decline to render
judgment by reason of the silence,
obscurity or insufficiency of the laws

Case:

Floresca v Philex Mining the court,
despite insufficiency of laws to settle the
instant case, rendered its judgment by
applying and giving effect to the
constitutional guarantees of social justice
and various legal principles.

Doubt in the interpretation or
application of laws

In case of doubt in the interpretation or
application of laws, it is presumed that the
lawmaking body intended right and justice
to prevail.

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Application

It is the sworn duty of the judge to apply
the
law without fear or favor, to follow its
mandate, not to temper with it. What the
law grants, the court cannot deny.

Case

1. People v Amigothe accused
claims that the penalty of reclusion
perpetua is too cruel and harsh a
penalty and pleads for sympathy.
The Court replied: Courts are not
the forum to plead for sympathy.
The duty of courts is to apply the
law, disregarding their feeling of
sympathy or pity for the accused.
Dura lex sed lex.

Application of Customs

Custom

A rule of conduct formed by repetition of
acts, uniformly observed as a social rule,
legally binding and obligatory.

Requisites

1. Plurality of acts, or various
resolutions of a juridical question
raised repeatedly in life;
2. Uniformity, or identity of acts or
various solutions to the juridical
question;
3. General practice by the great mass
of the social group;
4. Continued performance of these
acts for a long period of time;
5. General conviction that the
practice corresponds to a juridical
ne.cessity or that it is obligatory;
6. The practice must not be contrary
to law, morals or public order.

Application of Periods

When the laws speak of years, months,
days or nights, it shall be understood that
years are of three hundred sixty-five days
each; months, of thirty days; days, of
twenty-four hours; and nights from sunset
to sunrise.

If months are designated by their name,
they shall be computed by the number of
days hey respectively have.

Cases

1. Garvida v SalesPetitioner
having the age of 21 years old and
10 months old contend that she is
still qualified for the SK election
since what is provided in the law is
not more than 21 years old on the
day of election. The court denied
her petition stating that the clause
not more than 21 years old is
equivalent only to an age not more
than the 21 365-day cycle. The
petitioner has passed this period
and is completing her 22
nd
365-day
cycle on the day of the election.
2. National Marketing v Tecson
Petitioner filed a complaint for the
revival of a December 21, 1955
judgment on December 21, 1965.
The court however dismissed the
complaint as it is two days late of
its ten-year prescription period.

Application of Penal Laws

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.

Conflict of Laws

Nationality Principle

Philippine laws relating to family rights and
duties, or the status, condition and legal
capacity of persons are binding upon
citizens of the Philippines, even though
living abroad.

Cases:

1. Tenchavez v Escano
Tenchavez and Escano, both
Filipino citizens, were legally
married in the Philippines. But

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when Escano left for Nevada, she
filed a divorce to sever their
marriage ties. The court however
denied the effectivity of the divorce
decree stating that the Civil Code
of the Philippines, does not admit
absolute divorce. Being citizen of
the Philippines, they are bound to
abide by the laws of their country.
2. Van Dorn v Romillo, Jr Alice
Reyes, a Filipino citizen was first
married to Richard Upton, an
American citizen in Hongkong.
Their marriage was divorced later
on and Reyes remarried with
Theodore Van Dorn. Upton moved
to claimed the share of alleged
conjugal properties against Reyes
arguing that they are still married
under Philippine law. The court in
its decision recognized the divorce
decree of their marriage. Divorce
obtained by foreigners even if the
partner is a Filipino citizen is
recognized in our jurisdiction.
3. Pilapil v Ibay-SomeraImelda
Pilapil, a Filipino citizen, was
married to Erich Geiling, a German
national, in Germany in 1979. The
couple resided in the Philippines.
In 1986, the German husband
secured a divorce in a German
court. After more than five months
after the divorce decree, Erich, the
former husband, filed two
complaints for adultery before the
City Fiscal of Manila. RULING: The
Supreme Court ruled that since
Erich was no longer the husband
of Pilapil, he no longer had the
legal standing to sue for adultery.

Lex Rei Sitae

Real and personal property is subject to
the law of the country where it is situated.

Exception

In the matter of testate and intestate
succession, the national law of the
decedent shall apply with respect to the
(1) order of succession, (2) amount
ofsuccessional rights, (3) intrinsic validity
of the will [and (4) heirs capacity to
succeed,as provided by Art. 1039 of
NCC.]

Exception to the exception: Renvoi
Doctrine

Renvoi literally means referring back. It is
a process of referring a case to the
jurisdiction of another country when there
is a conflict rule.

It is applied when there is a doubt as to
whether a reference to a foreign law is a
reference to the internal law of said
foreign law; or a reference to the whole of
the foreign law, including its conflict rules.

Cases

1. Bellis v BellisWhen Amos
Bellis, an American citizen, left two
wills after his death, his forced heir
questioned the applicability of the
will. They contend that Philippine
laws should govern the will but the
court decided in the contrary. It is
Texas law that should be followed
with respect to its order of
succession, intrinsic validity,
successional rights and capacity to
succeed.
2. In the matter of testate estate of
the deceased Edward
ChristensenRenvoi doctrine is
applied because the conflicts rule
of California, the law of the
deceased citizen that should
govern his testate estate, referred
back the jurisdiction of the case to
the country where he is domiciled.

Lex Loci Celebrationis

Forms and solemnities of contracts, wills
and other public instruments are governed
by the laws of the country in which they
are executed.

Intrinsic validity of Contracts

The intrinsic validity of a contract is
governed by the proper law of the contract
or lex contractus, which may either be:

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1. the law of the place voluntarily
agreed upon by the contracting
parties (lex loci voluntatis) or
2. the law of the place intended by
them expressly or impliedly (lex
loci intentionis).

Effects of contracts, judgments or laws
agreed upon in a foreign country

Prohibitive laws concerning persons, their
acts or property and those which have for
their object public order, public policy and
good customs shall not be rendered
ineffective by laws or judgments
promulgated, or by determinations or
conventions agreed upon in a foreign
country.

Suppletory Application

The provisions of the Civil Code are
applicable to matters governed by the
Code of Commerce and special laws in a
suppletory character. Hence, where there
is no deficiency in the special law or Code
of Commerce, the provisions of the Civil
Code cannot be applied.

CHAPTER II. HUMAN RELATIONS

Cardinal law on human conduct

Every person must, in the exercise of his
rights and performance of his duties, act
with justice, give everyone his due, and
observe honesty and good faith.

Contra Bonus Mores

Every person who willfully causes loss or
injury to another in a manner contrary to
morals, good customs and public policy
shall compensate the latter for the
damage

Article 19 together with the succeeding
article on human relation, was intended to
embody certain basic principles that are
to be observed for the rightful relationship
between human beings and for the
stability of the social order.

Damnus Absque Injuria

The legitimate exercise of a persons
rights, even if it causes loss to another,
does not automatically result in an
actionable injury. Damage resulting from
the legitimate exercise of a persons rights
is a loss without injury for which the law
gives no remedy.

Abuse of Rights

When a right is exercised in a manner
which does not conform with the norms
enshrined in Article 19
and results in damage to another, a legal
wrong is thereby committed for which the
wrongdoer must be held responsible.

Elements of Abuse of Rights

1. There is a legal right or duty;
2. Exercised in bad faith;
3. Sole intent of prejudicing or
injuring another.

Breach of Promise to Marry

The existing rule is that a breach of
promise to marry per se is not an
actionable wrong. To be actionable, there
must be some act independent of the
breach of promise to marry such as:

1. Fraud or deceit;
2. If expenses are actually incurred,
actual damage could be sought;
3. When woman was forcibly
abducted and raped, moral and
exemplary damages could be
sought;

Malicious Prosecution

In order for the malicious prosecution suit
to prosper, the plaintiff must prove:
1. the fact of the prosecution and the
further fact that the defendant
himself was the prosecutor, and
that the action was finally
terminated with an acquittal;
2. that in bringing the action the
prosecutor acted without probable
cause; and

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3. that the prosecutor was actuated
or impelled by legal malice that is
improper or sinister motive.

Elements of Contra bonus mores

1. There is an act which is legal;
2. which is contrary to morals, good
customs, public order, or public
policy; and
3. it is done with intent to injure.

Accion in Rem Verso

Every person who through an act of
performance by another, or by any other
means, acquires or comes into
possession of something at the expense
of the latter without just or legal grounds
shall the return the same to him.

Accion in Rem Verso, defined

An action for recovery of what has been
paid or delivered without just cause or
legal ground.

Requisites:

1. That the defendant has been
enriched;
2. That the plaintiff has suffered a
loss;
3. That the enrichment of the
defendant is without just or legal
ground;
4. That the plaintiff has no other
action based on contract,
quasicontract, crime or quasi-delict

Solucio Indebiti

If something is received when there is no
right to demand it, and it was unduly
delivered through mistake, the obligation
to return it arises.

Requisites:
1. A payment is made when there
exists no binding relation between
the payor, who has no duty to pay,
and the person who received the
payment;
2. The payment is made through
mistake and not through liberality
or some other cause.

Mistake is an essential element in solutio
indebiti. But in the accion in rem verso, it
is not necessary that there should have
been mistake in the payment.

Protection of the disadvantaged

In all contractual, property or other
relations, when one of
the parties is at a disadvantage on
account of his moral dependence,
ignorance, indigence, mental weakness,
tender age or other handicap, the courts
must be vigilant for his protection.

Thoughtess extravagance

Requisites

1. there must be an acute public want
or emergency;
2. the person seeking to stop it must
be a government or private
charitable institutions

Protection of Human Dignity

Every person shall respect the dignity,
personality, privacy and peace of mind of
his neighbors and other persons. The
following and similar acts, though they
may not constitute a criminal offense, shall
produce
a cause of action for damages, prevention
and other relief:

1. Prying into the privacy of anothers
residence;
2. Meddling with or disturbing the
private life or family relations of
another;
3. Intriguing to cause another to be
alienated from his friends;
4. Vexing or humiliating another on
account of his religious beliefs,
lowly station in life, place of birth,
physical defect, or other personal
condition.

Enumerations not exclusive

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Violations mentioned in Article 26 are not
exclusive but are merely examples and do
not preclude other similar or analogous
acts.

BOOK I. PERSONS

TITLE I. CVIL PERSONALITY

Civil Personality

- aptitude of being the subject, active or
passive, of rights and obligations

Juridical Capacity Capacity to act
Fitness to be the
subject of legal
relations
Power to do acts
with legal effects
Passive Active
Inherent Merely acquired
Lost only through
death
Lost through
death and other
causes
Can exist without
capacity to act
Cannot exist
without juridical
capacity
Cannot be limited
or restricted
Can be restricted,
modified or limited

NATURAL PERSONS

Birth determines personality.

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)

NOTES:
The presumption as to the childs
personality applies only in cases
beneficial to the child.

The concept of provisional
personality CANNOT be invoked to
obtain damages for and in behalf of
an aborted child. (Geluz vs. CA)

When is a Child Considered Born

For civil purposes, the fetus is
considered born if it is alive at the time it
is completely delivered from the
mothers womb.

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.

Presumption of survivorship

Two or more persons, called to succeed
each other, shall be presumed to have
died at the same time, subject to the
following conditions:

1. parties are heirs to one another
2. no proof as to who died first
3. with doubt as to who died first

NOTE: Article 43 applies when the parties
are called to succeed each other.

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.

Juridical persons

a. State and its political subdivisions
b. Corporations, institutions and entities
for public purpose or interest
c. Corporations, partnership and
associations for private interest

For (a) and (b), by the laws creating or
recognizing them; private corporations are
governed by BP 68 and partnership and
associations are governed by the
provisions of this Code concerning
partnerships.

NOTE: The Roman Catholic Church is a
Corporation by prescription, with
Acknowledged juridical personality,
Inasmuch as it is an institution which

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antedated, by almost a thousand years,
any other personality in Europe, and
which existed when Grecian eloquence
still flourished in Antioch and when idols
where still worshipped in the temple of
Mecca. (Barlin vs. Ramirez)

The estate of a deceased person should
be considered an artificial or juridical
person for the purposes of the settlement
and distribution of his estate which, of
course, include the exercise during the
judicial administration thereof of those
rights and the fulfillment of those
obligations of his which survived after his
death. (Limjoco vs. Intestate Estate of
Pedro Fragrante)

Cessation of Civil Personality

1.If natural persons: by death
2.If juridical persons: by termination of
existence

Elements of Domicile

a. Physical presence in a fixed place
b. Intention to remain permanently
(animus manendi)

Kinds of Domicile
1. Domicile of origin - received by a
person at birth.
2. Domicile of choice - the place freely
chosen by a person sui juris.
3. Constructive domicile - assigned to a
child by law at the time of his birth.

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Family Code

TITLE I. MARRIAGE

CHAPTER 1. REQUISITES OF
MARRIAGE

Marriage

Marriage is a special contract of
permanent union between a man and a
woman entered into 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, consquences and incidents are
governed by law and not subject to
stipulation, except that marriage
settlements may fix the property relations
during the marriage within the limits
provided by this Code.

Marriage as a special contract

It is considered as a civil contract because
it is entered into by agreement of the
parties. However, unlike ordinary
contract, it is also a status or personal
relation, founded on contract and
established by law, under which certain
rights and duties incident to the
relationship come into being, irrespective
of the wish of th parties. Marriage is also
a social institution regulated and
controlled by the state.

Distinction from ordinary contract:

1. Marriage cannot be revoked,
dissolved or otherwise terminated
by the parties, but only by the
sovereign power of the state.
2. The nature, consequences and
incidents are marriage are
governed by law and not subject to
agreement.
3. Only two person of opposite sex
may enter into a contract of
marriage.
4. It is a social institution.

Presumption of Marriage

A man and a woman deporting
themselves as husband and wife have
entered into a lawful contract of marriage.
Persons living together as husband and
wife are married to each other.

Semper praesumitur pro matrimonio
Always presume marriage.

Proof of marriage

The best proof of marriage would be the
marriage contract itself. But failure to
present it is not a proof that no marriage
took place as these other evidence may
be presented to prove marriage:

1. Testimony by one of the parties to
the marriage;
2. Testimony by one of the witnesses
of marriage;
3. Testimony of the person who
officiated the solemnization of
marriage.
4. The couples public and open
cohabitation as husband and wife
after the wedlock
5. Birth and baptismal certificate of
children born during such union
6. Mention of such nuptials in
subsequent documents

The burden of proof to show the nullity of
marriage rests upon the party seeking its
nullity.

Essential requisites

1. Legal capacity of the contracting
parties who must be a male and a
female
2. Consent freely given in the
presence of a solemnizing officer

Formal requisites

1. Authority of the solemnizing officer
(Art. 7)

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2. A valid marriage license except in
the case provided in chapter 2 Title
I of Code
3. A marriage ceremony which takes
place with the apperance of the
contracting parties before the
solemnizing officer and their
personal declaration that they take
each other as husband and wife in
the presence of at least two
witnesses of legal age.

Components of Legal Capacity

1. Age requirement
a. Must be 18 years old on
the date of marriage. Addl
requirement:
i. if any of the parties
is below 21 years
old, the concerned
party should seek
parental consent
ii. If any of the parties
is 21 years old and
below 25 years old,
the party concerned
should first seek
parental advice

2. Sex of the parties
3. Absence of legal impediments
mentioned in Art. 37 and 38
(Incestuous marriage and marriage
prohibited by the reason of public
policy)

Manifestation of Consent

The only way of manifesting consent is to
appear personally before a solemnizing
officer and declare the marriage in the
presence of not less than two witnesses of
legal age.

Consent must be given freely, voluntarily
and intelligently.

Authority of the solemnizing officer
1. Incumbent members of the
judiciary within the courts
jurisdiction;
2. Priest, rabbi, imam or minister of
any church or religious sect duly
authorized by his church or
religious sect, provided that any of
the parties are member of the
church or religious sect;
3. Ship captain or airplane chief, in
cases of articulo mortis while the
parties are on board the vessel;
4. Military commanders of a unit, in
cases of articulo mortis when one
of the parties is involved in the
military operation;
5. Consul-general, consul or vice-
consul, in limited cases e.g. for
citizens abroad.
6. Mayors.

Valid marriage license

Must be issued by the local civil registrar
of the place where the marriage
application is filed. It has only a lifetime of
120 days from the date of issue and is
effective in any part of the Philippines.

CHAPTER II. MARRIAGES EXEMPT
FROM MARRIAGE LICENSE

Instances recognized by the Family Code
wherein a marriage license is dispensed
with:

1. Articulo mortiseither or both of
the parties are at the point of death
2. If the residence of either party is so
located that there is no means of
transportation to enable such party
to appear personally before the
local civil registrar
3. Marriages among Muslims and
other ethnic groups, provided that
they are solemnized is in
accordance with their customs,
rites or practice
4. Ratification of marital cohabitation
between a man and a woman who
have lived together for at least five
(5) years, provided that they have
no legal impediment to marry.

Marriage Ceremony

The solemnization of a marriage is a
prerequisite to its validity because in this
jurisdiction informal or common-law
marriages are not recognized.

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Absence of, Defect, and Irregularity

Absence of any of the essential or formal
requisite shall render the marriage void ab
initio, except as stated in Article 35 (2).

A defect in any of the essential requisite
shall render the marriage voidable.

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.

Authorized solemnizing officers

1) Any incumbent member of the judiciary
within the courts jurisdiction;

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 by his church
or religious sect and provided that at least
one of the contracting parties belongs to
the solemnizing officers church or
religious sect;

3) Any ship captain or airplane chief only
in the cases mentioned in Article 31;

4) Any military commander of a unit to
which a chaplain is assigned, in the
absence of the latter, during a military
operation, likewise only in the cases
mentioned in Article 32; or

5) Any consul-general, consul or vice-
consul in the case provided in Article 10.

Authorized Venues Of Marriage

General Rule:
Must be solemnized publicly, and not
elsewhere, in the:
1. Chambers of the judge or in open
court
2. Church, chapel or temple
3. Office of consul-general, consul or
vice-consul

Exceptions:
1. Marriage at the point of death (articulo
mortis);
2. Marriage in remote places
3. Marriage at a house or place
designated by the parties with the
written request to the solemnizing
officer

Case

Duncan vs. Glaxo 438 SCRA 343
(2004)- Tecson signed a contract of
employment with GLAXO saying agreeing
to study and abide by the existing
company rules which includes disclosure
to management any existing or future
relationship by consanguinity and affinity
with co-employees or employees of
competing drug companies and should
management find that such relationship
poses a possible conflict of interest, to
resign from the company. Tecson got
married to Betsy, an employee of Astra
Pharmaceuticals, a competitor of Glaxo.
Glaxo then transferred Tecson to Butuan
City, Tecson asked the company to
reconsider but it was denied. Because
they were unable to resolve the issue,
Glaxo offered Tecson a separation pay
but he declined offer. Held: Glaxos policy
on marriage is a valid exercise of
management prerogative. This is
reasonable under the circumstances
because relationships of that nature might
compromise the interests of the company.
Stipulation is valid because it does not
pose an absolute prohibition to marry.

The Constitution also recognizes the right
of enterprises to adopt and enforce such a
policy to protect its right to reasonable
returns on investments and expansion and
growth. Company has right to protects its
economic interests
Other Requirements
Either or Both Parties Requires
18 years old and above
but below 21
Parental
consent
Marriage
counseling

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CIVIL LAW
21 years old and above
but below 25
Parental
advice
Marriage
counseling

Effects:
Lack of
parental
consent
Marriage is VOIDABLE
Lack of
parental
advice or
lack of
marriage
counseling
Of NO EFFECT on the
validity of marriage
However, this will suspend
the issuance of the marriage
license for a period of
3months from the
completion of publication of
the application for marriage
license.
If the parties get
married during the 3-
month period without
a license, the
marriage shall be
VOID.
On the other hand,
if they are able to
obtain a license
during the 3-month
period, the marriage
will still be valid but
may be held civilly
and criminally liable.

Marriages Solemnized Abroad
General Rule: Marriages solemnized
outside the Phils. in accordance with the
law of the foreign country shall be valid in
the Philippines (lex loci celebrationis)
Exceptions:
1. Where either or both parties are below
18years old
2. Bigamous or polygamous marriage
(except Art. 41 on presumptive death of
spouse)
3. Mistake in identity
4. Marriages void under Art. 53
contracted following the annulment or
declaration of nullity of a previous
marriage but before partition
5. Psychological incapacity
6. Incestuous marriages
7. Marriage void for reasons of public
policy
Divorce by Foreigner- Spouse
If a Filipino is married to a foreigner and
the latter subsequently obtains a valid
divorce abroad capacitating him/her to
remarry, the Filipino spouse shall likewise
have the capacity to remarry under the
Philippine law. (Art. 26 par. 2)
Requisites:
a.) There is a valid marriage that
had been celebrated between
Filipino citizen and a foreigner
b.) A valid divorce is obtained
abroad by the alien spouse
capacitating him or her to remarry
The traditional rule: applies when parties
at the time of celebration are a Filipino
and an alien.
Cases
1. Republic v. Arecibo III 472 SCRA 114
(2005)- The intent of Paragraph 2 of
Article 26 is to avoid the absurd situation
where the Filipino spouse remains married
to the alien spouse who, after obtaining a
divorce, is no longer married to the Filipino
spouse. Thus, taking into consideration
the legislative intent, Paragraph 2 of
Article 26 should be interpreted to include
cases involving parties who, at the time of
the celebration of the marriage, were
Filipino citizens but, later on, one of them

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CIVIL LAW
becomes naturalized as a foreign citizen
and obtains a divorce decree. The Filipino
spouse should likewise be allowed
to remarry as if the other party was a
foreigner at the time of the solemnization
of the marriage. To rule otherwise would
be to sanction absurdity and injustice.
2. Republic vs. Iyoy G.R. NO. 15277
September 21, 2005- For the second
paragraph of Article 26 to apply, a spouse
who obtained the divorce must not be a
Filipino at the time of the divorce. If
the obtaining-spouse is still a Filipino at
the time of the divorce, then the divorce
is not recognized in the Philippines. The
root cause in psychological incapacity
must still be determined even if there is
no requirement that a personal
examination of the respondent be made
prior to a declaration of nullity of marriage.
Office of the Solicitor General has
personalityto appeal a decision in a declar
ation-of-nullity of marriage case.
3. Republic vs. Obrecido G.R. NO.
154380 October 5, 2005- Orbecido and
Villanueva were married and had2
children. Wife went to us and was
naturalized as an American citizen. He
later found that his wife obtained a divorce
decree and married a foreigner. He filed a
petition for authority to remarry invoking
Article 26 of the FC, which the court
granted.
HELD: Petition for authority to marry
was treated as Petition for declaratory
relief. The determination of when the
spouse who obtained a divorce was a
foreigner is at the time of the divorce not
at the time of the celebration of the
marriage. The proper remedy for the
Filipino spouse need not be annulment for
this would be long, tedious and not
feasible (considering that the marriage
appears to have the badges of validity); it
is not also legal separation as this will not
sever the marriage tie.

CHAPTER III. VOID AND VOIDABLE
MARRIAGES

A. Void ab initio under Art. 35:
1. Contracted by any party below
18 years old
2. Solemnized by unauthorized
solemnizing officer (Except if either
or both parties believed in good
faith that the officer had authority)
3. Solemnized without marriage lic-
ense (Except when license not
required)
4. Bigamous or polygamous
marriages
Except: Art. 41 marriage
contracted by a person whose
spouse has been absent for 4
years (ordinary absence) or 2
years(extraordinary absence),
where such person has a well
founded belief that his/her absent
spouse is already dead, and after
the absent spouse is judicially
declared presumptively dead
5. Mistake in identity
6. Subsequent marriage void unde
r Art. 53
Art. 53 provides that a person
whose marriage has been annulled
may remarry as long as he
complies with Art. 52 which
requires that after the marriage is
annulled the properties of the
spouses must be partitioned and
distributed and the presumptive
legitimes of the children be
distributed. Furthermore, the
judgment of annulment or absolute
nullity, the partition and distribution
of the spouses properties, and the
delivery of the childrens
presumptive legitimes must be
recorded in the appropriate civil
registry and registries of property.
Failure to comply with these
requisites will make the
subsequent marriage void ab initio

NOTE: The enumeration of void marriages
under Art35 is not exclusive.

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CIVIL LAW

B. Void under Article 36: where one
party, who at the time of the celebration of
the marriage, was psychologically
incapacitated to comply with the essential
marital obligations.
Cases
1. Carating-Siaynco v. Siaynco 441
SCRA422 (2004)- Juanita and Manuel
were married civilly and in the Catholic
Church. Discovering that they could not
have a baby they adopted a baby boy.
After 24 years of marriage, Manuel filed a
declaration of nullity on ground of
Psychological Incapacity. He alleged that
Juanita exhibited an over domineering and
selfish attitude towards him which was
exacerbated by her extremely volatile and
bellicose nature, that she incessantly
complained about almost everything and
anyone connected with him like his elderly
parents, staff, she showed no respect for
his prestige and high position as judge in
the Municipal Trial Court. Juanita said that
Manuelis still living with her at their
conjugal home in Bulacan, that he
invented malicious stories against her so
that he could marry his paramour, that she
supported Manuel in all his endeavors
despite his philandering, that she was
raised in a real happy family and had a
happy childhood contrary to what was said
by Manuel.
HELD: Psychological Incapacity must be
judged on a case to case basis. It should
refer to no less than a mental (not
physical) incapacity. It must be
characterized by a. gravity b. juridical
antecedence c. incurability --- this was not
met. Sexual infidelity does not constitute
psycho incapacity within contemplation of
family code. It must be shown that
Manuels unfaithfulness is a manifestation
of a disordered personality which makes
him completely unable to discharge the
essential marital state and not merely due
to his ardent wish to have a child of his
own flesh and blood. The negative traits
must paralyze her from complying with
the essential obligations of marriage.
Unsatisfactory marriage is not a null and
void marriage. Mere showing of
irreconcilable differences and conflicting
personalities DOES NOT constitute
psychological incapacity.
2. Republic vs. Quintero-Hamano 428
SCRA 735 (2004)- Hamano, a Japanese
national, abandoned his wife and
daughter. RTC and CA granted the
petition for psychological incapacity. The
Office of the Solicitor General appealed to
the SC on the ground that respondent was
not able to prove the psychological
incapacity of Toshio Hamano to perform
his marital obligations, despite
respondents failure to comply with the
guidelines laid down in the Molina case.
HELD: Molina doctrine does not require
personal medical examination of the
person who is psychologically
incapacitated to marry. However,
evidence of medical and clinical finding of
any illness constituting psychological
incapacity will greatly help. This can be
done by an expert witness Mere
abandonment is not constitutive of
psychological incapacity. There must be
proof of a natal or supervening disabling
factor in the person, an adverse integral
element in the personality structure that
effectively incapacitates a person from
accepting and complying with the
obligations essential to marriage. In
proving psychological incapacity, we find
no distinction between an alien spouse
and a Filipino spouse. We cannot be
lenient in the application of the rules
merely because the spouse alleged to be
psychologically incapacitated happens to
be a foreign national. The medical and
clinical rules to determine psychological
incapacity were formulated on the basis of
studies of human behavior in general.
Hence, the norms used for determining
psychological incapacity should apply to
any person regardless of nationality..
3. Dedel vs. CA 421 SCRA 461(2004)
Mere sexual infidelity or perversion and
abandonment do not by themselves
constitute psychological incapacity within
the contemplation of the Family Code.
Neither could emotional immaturity and
irresponsibility be equated with
psychological incapacity. It must be shown

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CIVIL LAW
that these acts are manifestations of a
disordered personality with make
respondent completely unable to
discharge the essential obligations of a
marital state, not merely to her youth,
immaturity or sexual promiscuity. Root
cause must be traceable prior to the
marriage ceremony.
4. Buenaventura v. CA GR No. 127358,
March 31, 2005- It is contradictory to
characterize acts as a product of
psychological incapacity, hence beyond
the control of the party because of an
innate inability, while at the same time
considering the same set of acts as willful.
A finding of psychological incapacity on
the part of one spouse negates any award
of moral and exemplary damages against
him/her. Award of moral damages should
be predicated, not on the mere act of
entering into the marriage, but on specific
evidence that is was done deliberately and
with malice by a party who had known of
his or her disability and yet willfully
concealed the same.
PSYCHOLOGICAL INCAPACITY has no
exact definition but is restricted to
psychological incapacity to comply with
the essential marital obligations of
marriage. It involves 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 266 SCRA 234 [1997])
ELEMENTS:
1. Mental disposition
2. Applies to a person who is
martially-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: BREIGOIC
(Republic v. CA & Molina 268 SCRA
198 [1997])
1. Burden of proof to show the nullity of
marriage belongs to plaintiff
2. The root cause of the psychological
incapacity must be:
a. Medically or clinically identified
b. Alleged in the complaint
c. Sufficiently proven by experts
d. Clearly explained in the decision
3. The incapacity must be proven to be
existing at the time of the celebration of
the marriage.
4. Such incapacity must be shown to be
medically or clinically permanent or
incurable
5. Such illness must be grave enough to
bring about the disability of the party to
assume the essential obligations of
marriage
6. Essential marital obligations must be
those embraced by Art. 68-71, as well as
Art.220, 221, and 225 of the Family Code.
7. Interpretations given by the National
Appellate Matrimonial Tribunal of the
Catholic Church in the Philippines, while
not controlling or decisive, should be given
great respect by our courts
8. The trial court must order the
prosecuting attorney or fiscal and the
Solicitor General to appear as counsel for
the state
Cases

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CIVIL LAW
1. Antonio v. Reyes GR No. 155800, March
10, 2006 - Judicial understanding of
psychological incapacity may be informed
by evolving standards, taking into account
the particulars of each case, current
trends in psychological and even
canonical thought, and experience. It is
under the auspices of the deliberate
ambiguity of the framers that the
Court has developed the Republic v. CA &
Molina rules, which have been
consistently applied since 1997.Molina
has proven indubitably useful in providing
a unitary framework that guides courts
in adjudicating petitions for declaration of
nullity under Article 36.At the same time,
the Molina guidelines are not set in stone,
the clear legislative intent mandating
a case-to-case perception of each
situation. It should be noted that the lies
attributed to respondent were not adopted
as false pretenses in order to induce
petitioner into marriage. They indicate a
failure on the part of respondent
to distinguish truth from fiction, or at least
abide by the truth. Petitioners witnesses
and the trial court were emphatic on
respondents inveterate proclivity to telling
lies and the pathologic nature of
her mistruths, which according to them,
were revelatory of respondents inability to
understand and perform the essential
obligations of marriage. Indeed, a person
unable to distinguish between fantasy
and reality would similarly be unable to
comprehend the legal nature of the marital
bond, much less its psychic meaning, and
the corresponding obligations attached to
marriage, including parenting. One unable
to adhere to reality cannot be expected to
adhere as well to any legal or emotional
commitments.
2. Mallion v. Alcantara October 31,
2006 G.R. No. 141528 - Petitioner filed a
case to declare void the marriage due to
psychological incapacity. Petition was
denied. Later, he filed a case to again
declare his marriage void because of
absence of marriage license. Supreme
Court denied the Petition.
HELD: Res Judicata applies. There is only
one cause of action which is the nullity of
marriage. Hence when the second case
was filed based on another ground there
is a splitting of a cause of action which
is prohibited.
Petitioner is estopped from asserting that
the first marriage had no marriage
license because in the first case he
impliedly admitted the same when he did
not question the absence of a marriage
license.

Void for Being Incestuous under Art.
37:
Whether relationship is legitimate or
illegitimate
1. Between ascendants and desce
ndants of any degree
2. Between brothers and sisters, w
hether full or half blood
Void for Reason of Public Policy under
Art.38:
1. Between collateral blood
relatives up to the 4
th
civil degree.

2. Between step-parents and step-
children
3. Between parents-in-law and
children-in-law
4. Between adopting parent
and adoptive child
5. Between surviving spouse
of the adopter and the adopted
6. Between surviving
spouse of the adopted and the adopter
7. Between adopted and legitimate
child of adopter
8. Between adopted children of same
adopter
9. Between parties where one,
with the intention to marry the other,
killed that other persons spouse or
his/her own spouse
NOTE: RA 6995 (Mail Order Bride Act)
declares as unlawful the practice of

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CIVIL LAW
matching Filipino women for marriage to
foreign nationals on a mail-order basis
and other similar practices including the
advertisement, publication, printing or
distribution of brochures, fliers, and other
propaganda materials in furtherance
thereof. Under the new Family Code, the
following can now marry each other:
1. Brother-in-law and sister-in-law
2. Stepbrother and stepsister
3. Guardian and ward
4. Adopted and illegitimate child of
the adopter
5. Parties who have
been convicted of adultery or
concubinage

Subsequent Marriages
1. Without judicial declaration of nullity of
previous void marriage (Art. 40)
For the 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, whereas, for purposes
other than remarriage, other evidence is
acceptable.
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
nullity of his marriage other than proof of
final judgment declaring his marriage void.
Hence, the pendency of the civil action for
nullity of marriage does not pose a
prejudicial question in a criminal case for
concubinage.-However, 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. (Lucio Morigo v. People, G.R. No.
145226. Feb. 06, 2004)
2. Rule on bigamous marriages (Art. 41)
General Rule: Marriage contracted by any
person during the subsistence of a
previous marriage is VOID
Exception: If before the celebration of the
subsequent marriage:
a. the previous spouse had been absent
for4 consecutive years (ordinary absence)
or 2 years (extraordinary absence) and
b. the remaining spouse has a well-
founded belief that the absent spouse was
already dead
c. judicial declaration of presumptive
death- In this case, the subsequent
marriage is valid but it shall be
automatically terminated by the recording
of the affidavit of reappearance of the
absent spouse.
Exception to the Exception:
If both spouses of the subsequent
marriage acted in bad faith, such marriage
is void ab initio (Art. 44)

Cases
1. Tenebro vs. CA 423 SCRA 272
(2004)- Tenebro contracted marriage with
private respondent in 1990. In 1991,
Tenebro told his wife that he had been
previously married in1986. He then left the
private respondent and lived with his first
wife. In 1993, he then contracted another
marriage. It was here when private
respondent confirmed with the first wife
that petitioner was indeed previously
married. Private respondent then filed a
case against petitioner for bigamy.
Tenebro claims that he is not guilt of
bigamy because: - That there was no
valid second marriage because no
marriage ceremony took place to
solemnize their union - That the
declaration of the nullity of the second
marriage on the ground of Psychological
Incapacity, which is an alleged indicator
that his marriage to private respondent
lacks the essential requisites for validity,
retroacts to the date on which the second
marriage was celebrated .

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CIVIL LAW
HELD: There is no requirement in the law
that a marriage contract needs to be
submitted to the civil registrar as a
condition precedent for the validity of
marriage. The law penalizes the mere act
of contracting a second or a subsequent
marriage during the subsistence of a valid
marriage. The moment petitioner entered
into marriage with private respondent, he
already committed bigamy. There is
criminal bigamy even if the second
marriage is void because of psychological
incapacity.
2. Morigo vs. People 422 SCRA 376
(2004- Petitioner contracted marriage with
Lucia in1990. In 1991, Lucia filed with the
Ontario Court a petition for divorce against
pet which was granted and took effect on
Feb. 17, 1992. On Oct 4, 1992, petitioner
married Maria. Less than a year after such
marriage, petitioner filed a complaint of
Judicial Declaration of Nullity with Lucia
on the ground that no marriage ceremony
took place. On Oct 19, 1993, the City
prosecutor then charged him with the
crime of bigamy and he was subsequently
found guilty. While the criminal case was
pending in the Court of Appeals, in 1997,
the Judicial Declaration of Nullity of
marriage between petitioner and Lucia
was rendered final and executory.
HELD: GENERALLY, even if the first
marriage is judicially declared void only
after contracting the second marriage, the
second marriage is still bigamous. This is
true only if the first marriage ostensibly
transpired as there was a marriage
ceremony. However, if the first marriage is
judicially declared void only after
contracting second marriage, the second
marriage is not bigamous if the first
marriage was void due to the fact that no
marriage ceremony was solemnized at all.
The mere signing of a marriage contract
bears no semblance to a valid marriage
and thus needs no judicial declaration of
nullity.
NOTE: Where there was failure to record in
the civil registry and registry of property
the judgment of annulment or absolute
nullity of the marriage, the partition and
distribution of the property of the spouses,
and the delivery of the childrens
presumptive legitimes, it shall not affect
third persons.(Arts. 52-53)
Even if a marriage is void, it must be
declared void first before the parties to
such void marriage can remarry. The
parties cannot decide for themselves the
invalidity of their marriage. (Except: when
the purpose is other than remarriage, a
collateral attack of the marriage is
allowed.)

Effects of Terminations of Subsequent
Marriage: LDDRI
1. Children of the subsequent marriage
conceived prior to its termination shall be
considered legitimate
2. The absolute community or conjugal
partnership shall be dissolved and
liquidated.
If either spouse acted in bad faith, his/her
share in the net profits shall be forfeited:
a. In favor of the common children
b. If none, in favor of the children
of the guilty spouse by previous
marriage
c. In default of children, in favor of
the innocent spouse
3. Donations by reason of the marriage
remain valid except if the donee
contracted the marriage in bad faith
4. The innocent spouse may revoke the
designation of the spouse in bad faith as
the beneficiary in any insurance policy,
and
5. The spouse who contracted the
subsequent marriage in bad faith shall be
disqualified to inherit from the innocent
spouse by testate or intestate succession.
NOTE: The above effects apply in voidable
bigamous marriages. Except for (1), the
above effects also apply to marriages
which are annulled or declared void ab
initio under Art. 40.

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CIVIL LAW
Requisites for Declaration of
Presumptive Death
1. That the absentee spouse has been
missing for 4 consecutive years if the
disappearance occurred where there is
danger of death under circumstances in
Art. 391 of New Civil Code.
2. The present spouse wishes to remarry
3. The present spouse has a well-founded
belief that the absentee is dead
4. The present spouse files a summary
proceeding for the declaration of
presumptive death

Effect of Reappearance:
General Rule: The subsequent bigamous
marriage under Art. 41 remains valid
despite reappearance of the absentee
spouse.
Exception: If the reappearance was
made in as worn statement recorded in
the civil registry, the subsequent marriage
is automatically terminated.
Exception to the Exception: If there was
a previous judgment annulling or declaring
the first marriage a nullity, the subsequent
bigamous marriage remains valid.
Cases
1. RP VS. CA G.R. NO. 163604 May 6, 2005
The summary proceeding to judicially declare a
person presumptively dead under Article 41 of the
Civil Code is not a special proceeding. Hence
appeal in relation to decisions are made only via a
Notice of Appeal.
2. Republic VS. Bernudes-Lorino 449
SCRA57 (2005) Summary proceedings under
the Family Code is final and executory pursuant to
Article 247. Hence, a decision judicially declaring a
person presumptively dead is non-appealable. If
appealed to the Court of Appeals, the latter has
no jurisdiction to try the case. There is a big
difference between having the supposed appeal
dismissed for lack of jurisdiction by virtue of the
fact that the RTC decision sought to be appealed
is immediately final and executory, and the denial
of the appeal for lack of merit. In the former, the
supposed appellee can immediately ask for the
issuance of an Entry of Judgment in the RTC,
whereas, in the latter, the appellant can still raise
the matter to this Court on petition for review and
the RTC judgment cannot be executed until the
Court makes the final pronouncement.
Annulable Marriages
Grounds (Art. 45) : PUFFIS
1. Lack of parental consent
2. Either party is of unsound mind
3. Fraudulent means of obtaining consent
of either party
Circumstances constituting fraud: (Art.
46)
a. Nondisclosure of conviction by final jud
gment of crime involving moral turpitude
b. Concealment of pregnancy by another
man
c. Concealment of sexually transmissible
disease, regardless of nature, existing at
the time of marriage
d. Concealment of drug addiction, habitual
alcoholism, homosexuality and lesbianism
4. Force, intimidation or undue influence
5. Physical incapability of either party to
consummate the marriage with the other,
and such incapacity continues and
appears to be incurable
Requisites of Annulment due to Impotence:
a. Impotence exists at the time of
the celebration of marriage
b. Permanent
c. Incurable
d. Unknown to the other spouse
e. The other spouse must not also
be impotent
Doctrine of Trennial Cohabitation

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CIVIL LAW
Presumption that the husband is impotent
should the wife still remain a virgin after 3
years of living together with her husband.
6. Affliction of sexually transmissible
disease found to be serious and which
appears incurable
Elements:
a. Existing at the time of marriage
b. Sexually transmissible disease
c. Serious
d. Appears incurable
ARTICLE 45 ARTICLE 46
The STD is a ground
for annulment
The STD is a type
of fraud which in
turn is aground for
annulment
The STD does not
have to be
concealed
The STD must be
concealed
The STD must be
serious and
incurable
The STD does not
have to be serious
and appears
incurable
It is the
concealment, and
not the STD, which
gives rise to the
annulment
The STD itself is
the ground for
annulment

A.M. N O. 02-11-10 SC- Proposed Rule
on Declaration of Absolute Nullity of
Void Marriages and Annulment of
Voidable Marriages
Scope
Petitions for declaration of absolute
nullity of void marriages and annulment of
voidable marriages under the Family Code
The Rules of Court shall apply
suppletorily

Petition for Declaration of Absolute
Nullity
Who may file: solely the husband or wife
What to allege: complete facts showing
either one is incapacitated from complying
with marital obligations at the time of the
celebration of the marriage including
physical manifestations, if any
Actions or defenses shall NOT prescribe

PETITION FOR ANNULMENT OF VOIDABLE
MARRIAGES:

Who may file:
1. contracting party whose parent, or
guardian, or person exercising substitute
parental authority did not give his/her
consent, w/in 5 years after attaining the
age of 21 unless after attaining the age of
21, such party freely cohabited with the
other as husband and wife; or the parent,
guardian or person having legal charge of
the contracting party at any time before
such party has reached the age of 21
2. the sane spouse who had no
knowledge of the others sanity; or by any
relative, guardian, or person having legal
charge of the insane, at any time before
the death of either party; or by the insane
spouse during a lucid interval after
regaining sanity, provided that the
petitioner, after coming to reason, has not
freely cohabited with the other husband
and wife;
3. the injured party whose consent was
obtained by fraud, w/in 5 years after the
discovery of the fraud, provided that said
party, with full knowledge of the fact
constituting the fraud, has not freely
cohabited with the other husband and
wife;

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4. the injured party whose consent was
obtained by force, intimidation, or undue
influence, w/in 5years from the time the
force, intimidation, or undue influence
disappeared or ceased, provided that the
force, intimidation, or undue influence
having disappeared or ceased, said party
has not thereafter freely cohabited with
the other husband and wife;
5. the injured party where the other
spouse is physically incapacitated of
consummating the marriage with the other
and such incapacity continues and
appears to be incurable, w/in 5years after
the celebration of marriage; and
6. the injured party where the other party
was afflicted with a sexually transmissible
disease found to be serious and appears
to be incurable, w/in 5 years after
the celebration of the marriage.
Venue:
Family Court of the province or city where
the petitioner or the respondent has been
residing for at least 6 months prior to the
date of filing (or non-resident respondent:
where he may be found in the Philippines)
at the election of the Petitioner.

Investigation Report of the Public Prosecutor
to be made w/in 1 month after the receipt
of the court order
shall state whether the parties are in
collusion and the basis for such finding
and serve copies thereof on the parties
and the irrespective counsels, if any
(a) there is collusion parties shall
file their respective comments on
the finding of collusion w/in 10
days from receipt of a copy
(b) no collusion set the case
for pre-trial
Public prosecutor is duty bound to appear
at the pre-trial
Court may require a social worker to
conduct a case study and submit the
corresponding report at least 3 days
before the pre-trial
Prohibited Compromise
(a) Civil status of persons
(b) Validity of marriage or legal
separation
(c) Any ground for legal separation
(d) Future support
(e) Jurisdiction of courts
(f) Future legitimes
Decision
Copies will be served on the parties,
including the SolGen and public
prosecutor
Final after expiration of 15 days from
notice to the parties
Should be registered in the Civil Registry
where the marriage was celebrated and in
the Civil Registry of the place where the
Family Court is located before decree
shall be issued
Appeal
Not allowed if no motion for
reconsideration or new trial is made
w/in15 days from notice of judgment
Death
Party dies before entry of judgment: court
shall order the case closed and terminated
w/o prejudice to the settlement of the
estate in proper proceedings in the regular
courts
Party dies after the entry of judgment:
binding upon the parties and their
successors-in-interest in the settlement of
the estate in the regular courts.

Case
Corpus v. Ochoterena 435 SCRA 446 (2004)-
In a nullity-of-marriage case, the
prior investigation to determine for

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CIVIL LAW
collusion is a condition sine qua non for
further proceedings in the event
the defendant does not answer. This is
true even if during the hearing the fiscal
participated and cross-examined the
witnesses

TITLE II. LEGAL SEPARATION

Grounds
PRC-FAL-BILA
1. Repeated physical violence or grossly
abusive conduct directed against
petitioner, a common child or a child of the
petitioner
2. Physical violence or moral pressure to
compel the petitioner to change religious
or political affiliation
3. Attempt of respondent to corrupt or
induce the petitioner, a common child, or a
child of the petitioner, to engage in
prostitution, or connivance in such
corruption or inducement
4. Final judgment sentencing respondent
to imprisonment of more than 6 years
(even if pardoned)
5. Drug addiction or habitual alcoholism
6. Lesbianism or homosexuality
7. Subsequent bigamous marriage
8. Sexual infidelity or perversion
9. Attempt by respondent against the life
of the petitioner
10. Abandonment for more than 1 year
without justifiable cause

Grounds to Deny Legal Separation: C4 D-GP-
DR
1. Condonation
failure of the husband to look for his
adulterous wife is not condonation to
wifes adultery
2. Consent
3. Connivance
4. Collusion
5. Mutual guilt
6. Prescription action for legal
separation must be filed within five years
from the time of the occurrence of the
cause of action
7. Death of either party during the
pendency of the case (Lapuz-Sy v.
Eufemio 43 SCRA 177 [1972])
8. Reconciliation of the spouses during
the pendency of the case
Effects of Separation:
1. Spouses are entitled to live separately
2. Marriage bond is not severed
3. Dissolution of property regime
4. Forfeiture of the share of the guilty
spouse in the net profits of the ACP/CPG
5. Custody of minor children to
innocent spouse (subject to Art. 213 which
provides that parental authority shall be
exercised by parent designated by the
court)
6. Guilty spouse is disqualified from
intestate succession and provisions made
by innocent spouse in his favor in a will
shall be revoked by operation of law
7. Innocent spouse may revoke the
donation made by him in favor of the
offending spouse. However, alienations,
liens and encumbrances registered in
good faith before the recording of the
complaint for revocation in the registries of
property shall be respected.
8. Innocent spouse may revoke designatio
n of guilty spouse as beneficiary in the
insurance policy even if such designation
be stipulated as irrevocable

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CIVIL LAW

A.M. N O. 02-11-11-SC- Proposed Rule
on Legal Separation
Who may file: solely the husband or wife
When to file: within 5 years from the
occurrence of any of the grounds
Procedure is almost the same as in the
Rule on Declaration of Absolute Nullity
&Annulment (above)
Creditors are furnished copies of
the petition
Pre-trial set not earlier than 6 months from
filing of the petition for possibility of
reconciliation (COOLING OFF PERIOD)-
Exception:
There is no cooling-off period if the
grounds alleged are those under
RA9262 (Violence Against
Women &Children)
RA 9262: Anti-Violence Against
Women and Their Children Act of
2004
Sec. 19. Legal Separation Cases
In cases of legal separation, where
violence as specified in this Act is alleged,
Art. 58 of the Family Code shall not
apply. The court shall proceed in the main
case and other incidents of the case as
soon as possible. The hearing on any
application for a protection order filed by
the petitioner must be conducted within
the mandatory period specified in this Act.
Decree of Reconciliation:
a. If the spouses had reconciled: joint
manifestation under oath, duly signed by
both, may be filed in the same proceeding
for legal separation.
b. Reconciliation while proceeding
is pending: court shall immediately order
termination of proceeding.
c. Reconciliation after judgment granting p
etition but before the issuance of the
decree:
spouses express in their
manifestation whether or not to
revive the former property regime
or choose a new regime.
court immediately issue decree of
Reconciliation setting aside
proceeding and specifying the
property regime of spouses
d. Reconciled after the issuance of
the decree: court, upon motion, issue
decree of reconciliation declaring decree
as set aside
but the separation of property and
any forfeiture of the share of the
guilty spouse already effected
subsists, unless the spouses have
agreed to revive their former
regime of property relations or
adopt a new regime.
e. In (b), (c), and (d), if choose to adopt
different property regime, the spouses
shall comply with Sec. 24 of the Rule
f. Decree of reconciliation: recorded in
Civil Registries where marriage and
decree of legal separation had been
registered
Case
Ong Eng Kiam a.k.a. William Ong v. Lucita
Ong G.R. No. 153206, Oct. 23, 2006 -
Lucita Ong filed a complaint for legal
separation before the RTC, alleging that
she suffered physical violence, threats,
intimidation, and grossly abusive conduct.
The RTC and CA decreed the legal
separation. William claims that Lucita is
guilty of abandonment and should,
therefore, be denied legal separation
following Art. 56(1).
HELD: The claim of William as regards
Lucitas abandonment is without merit.
The abandonment referred to by the
Family Code is abandonment without
justifiable cause for more than one year.
As it was established that Lucita left
William due to his abusive conduct, such

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does not constitute abandonment
contemplated by the said provision.

TITLE III. RIGHTS AND OBLIGATIONS
BETWEEN HUSBAND AND WIFE

Obligations
1. Live together
2. Observe mutual love, respect and
fidelity
3. Render mutual help and support
4. Management of the household
5. Fix the family domicile
6. Joint responsibility for the support of the
family
Profession
General Rule: Either spouse may exercise
any legitimate profession/business without
the consent of the other
Exception: The other spouse may object
on valid, serious and moral grounds. In
case of disagreement, the court shall
decide whether
a. The objection is proper AND
b. Benefit has accrued to the famil
y before and after the objection.
If benefit accrued to the
family before the objection,
the resulting obligation
shall been forced against
the separate property of the
spouse who has not
obtained consent
If benefit accrued to the
family after the objection
has been made, the
resulting obligation shall be
enforced against the
community property

TITLE IV. PROPERTY RELATIONS
BETWEEN HUSBAND AND WIFE

CHAPTER I. GENERAL PROVISIONS

Rules Governing Property Relations
Between Spouses

(1) Marriage settlements executed
before the marriage
(2) Provisions of the Family Code
(3) Local customs (ART 74, FC)

Different Property Regimes

(1) Absolute Community Property
(ACP)
(2) Conjugal Partnership of Gains
(CPG)
(3) Absolute Separation of Property
(ASOP)
(4) Any other regime within the limits
of the Family Code (ART 75, FC)

What is a marriage settlement?

It is a CONTRACT entered into by future
spouses fixing the matrimonial property
regime that should govern during the
existence of the marriage. (Paras, 2008, p
515)
It is a contract entered into by spouses
about to be married for the purpose of
fixing the terms and conditions of their
property relations with regard to their
present and future property. (Pineda, 2008
Edition)
Marriage Settlement is also known as
ANTE NUPTIAL AGREMENTOR
MATRIMONIAL CONTRACT.
Default Regime

In the absence of marriage settlement, or
when the regime agreed upon is void, the

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system of absolute community shall
govern (ART 75, FC)
Subject of Marriage Settlements

Parties may enter into stipulations relating
only to their PROPERTY RELATIONS
during the marriage, within the limits
provided by the Family Code (ART 1, FC).
However, the nature, consequences and
effects of marriage cannot be the subject
of stipulation (Rabuya, p 398).

Can the marriage settlement be
modified?

YES. Any modification, however, should
be made BEFORE the celebration of the
marriage subject to certain exceptions.
Modifications after the marriage
ceremony

1. REVIVAL of former property
regime between reconciling
spouses after a decree of legal
separation has been issued and
any forfeiture executed (ARTS 66
& 67, FC)
2. PETITION for receivership, for
judicial separation of property, or
for authority to be the sole
administrator of absolute
community property/conjugal
partnership property in case of
abandonment or failure to comply
with marital obligations by one
spouse (ARTS 101 & 128, FC)
3. Judicial SEPARATION of property
for sufficient cause (ART 135, FC)
4. VOLUNTARY dissolution of
absolute community
property/conjugal partnership
property through a verified petition
for separation of property (ART
136, FC)

Requisites of a Valid Marriage
Settlement
1. In writing
2. Signed by the parties
3. Executed before the celebration of the
marriage
4. Confined to terms and conditions of
property relations only
5. Not containing provisions contrary to
Law, Morals, Good Customs, Public
Policy and Public Order (ART 6, NCC),
or against the dignity of either spouse
(Paras, p 517)

Not Applicable
1. When both are aliens, even if married in
the Phils.
2. As to extrinsic validity of contracts
3. Contrary stipulation

Additional Requirements

FACTUAL
SITUATION
ADDITIONAL
REQUIREMENT
If one or both
parties are:
The ff. must be made
party/parties to the
marriage settlement
18-21 years old Father, mother,
surviving parent or
guardian, or persons
having charge of
party/ies concerned
Sentenced with
civil interdiction
Guardian appointed
by a competent court
Disabled Guardian appointed
by a competent court

Necessity of Registration

Registration of marriage settlements is
NECESSARY to bind third persons. It
should be made in:
1. Local civil registry where marriage
contract was recorded; and
2. Proper registries of property.

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CIVIL LAW
If not registered, marriage
settlement will NOT prejudice third
persons. Absolute Community of Property
(ACP) will apply. (UP Reviewer, 2010)

May a marriage settlement be
modified?

YES. Any modification to be valid must:
1. Comply with the requisites of a
valid marriage settlement; and
2. Must be judicially approved.
(UST Golden Notes, 2011)

What law governs property relations
between spouses?

As a general rule, Philippine law shall
govern property relations between
spouses regardless of celebration of the
marriage or residence of said spouses.
However, Philippine law will not apply
when:
(1) A contrary stipulation was agreed
upon in the marriage settlement;
(2) In the following cases, in which lex
rei sitae applies:
(a) Where both spouses are aliens
(b) With respect to the extrinsic
validity of contracts affecting
property not situated in the
Philippines and executed in the
country where the property is
located
(c) With respect to the extrinsic
validity of contracts entered
into in the Philippines but
affecting property situated in a
foreign country whose laws
require different formalities for
its extrinsic validity. (ART 80,
FC)

Effect of Non-Celebration of Marriage
(ART 81, FC)
GEN RULE: Everything stipulated in
marriage settlements or contracts, in
consideration of the marriage, shall be
rendered VOID.
XPN: Stipulations NOT DEPENDENT
upon or is not made in consideration of
the marriage shall subsist.

CHAPTER II. DONATIONS BY REASON
OF MARRIAGE
A. DONATION PROPTER NUPTIAS

Donations propter nuptias are those made
prior to the celebration of the marriage, in
consideration of the same, and in favor of
one or both future spouses. (ART 82, FC)

B. Donations Excluded
1. Ordinary wedding gifts given
AFTER celebration of marriage;
2. Donations in favor of future
spouses before the marriage but
NOT IN CONSIDERATION
thereof; or
3. Donations made IN FAVOR of
persons OTHER THAN the future
spouses, even If founded on the
intended marriage.

C. Requisites of Donation by Reason
of Marriage
1. Made prior to the celebration of the
marriage
2. Made in consideration of the
intended marriage
3. Made in favor of one or both future
spouses (ART 82, FC)
4. Not contrary to Law, Morals, Good
Customs, Public Policy and Public
Order (ART 6, NCC)

D. Additional Requisite if between
future spouses and property regime
agreed upon is other than ACP
5. Donation must NOT be MORE
THAN ONE-FIFTH (1/5) of their
present property. (ART 84, FC)

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E. Who may donate
1. Spouses to each other;
2. Parents of either spouse; or
3. Third persons.

F. Who may be donee(s)?
Only the either or both of the future
spouses may be donee(s).

G. Rules Governing Donation by
Reason of Marriage
1. Family Code provisions (ARTS 43,
44, 50, & 82-87)
2. Ordinary Donation provisions (Title
III of Book III of the Civil Code)
3. For Donations of FUTURE
PROPERTY, provisions on
testamentary succession and
formalities of wills (ART 84, para 2)

H. Requisites of Donations Propter
Nuptias between Spouses under
Regime Other than ACP
1. Valid marriage settlement
stipulating a property regime other
than ACP
2. Donation is not more than 1/5 of
his/her present property (ART 84,
FC)
3. Acceptance by the other would-be
spouse (ART 745, NCC)
4. It must comply with the other
requisites establishes in Donation
(Sta. Maria, 2010, p. 429)

I. Donation Propter Nuptias in
Another Instrument
Under the same facts, if donation
is made in a separate deed, it would
appear that the not more than one-
fifth limitation will not apply. (ART 84,
FC) Instead, the general rules on
donation would govern. (Sta. Maria, p
430)

REASON: Subtle hazards and undue
influence attendant in the negotiations
of a marriage settlement are generally
absent in a donation unilaterally done
in a separate deed free from
interference. (Sta. Maria, p 431)

J. Donation Propter Nuptias of
Property with Encumbrance
VALID. In case of foreclosure of the
encumbrance and the property is sold
for less than the total amount of the
obligation secured, the donee shall not
be liable for the deficiency. If the
property is sold for more than the total
amount of said obligation, the donee
shall be entitled to the excess. (ART
85, FC)

K. When may revocation of donation
by reason of marriage be done?
(1) If the marriage is not celebrated or
judicially declared void ab initio
except donations made in the
marriage settlements, which shall
be governed by Article 81;
(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 specified by
the provisions of the Civil Code on
donations in general. (ART 86, FC)

L. Revocation in ART 86 vs
Revocation in ART 43, 44 & 50
In cases of VOID marriages
under ART 40, ART 50 and not
ART 86 should govern.
In cases of VOID marriages
under ART 44, ART 44 and not
ART 86 should govern.
In cases on VOIDABLE
marriages under ART 45, ART

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CIVIL LAW
50 and not ART 86 should
govern.

ART 50 applies the effects of
ARTS 43 and 44 that any
donation propter nuptias
shall be revoked BY
OPERATION OF LAW.

REASON: ART 40 talks of an
exceptional void marriage, it
should be dealt with
exceptionally. ART 44
expressly states revocation by
operation of law so as to
punish the spouses in bad
faith. In all other cases of void
marriage, ART 86 applies.
ART 50 on voidable marriages
is irreconcilable to ART 86(3).
ART 50 should be applied for it
is more in line with the policy of
the State to protect marriage
and punish those who entered
into marriage in bad faith. (Atty.
Castro, Lecture)

M. Acts of Ingratitude (ART 765, NCC)
(1) If the donee should commit some
offense against the person, the
honor , or the property of the
donor, or of his wife, or children
under his parental authority;
(2) If the donee imputes to the donor
any criminal offense, or any act
involving moral turpitude, even
though he should prove it, unless
the crime or act has been
committed against the donee
himself, his wife or children under
his authority;
(3) If he unduly refuses him support
when the donee is legally or
morally bound to give support to
the donor.

N. Void Donations by Spouses
GEN RULE: Every donation or grant of
gratuitous advantage, direct or
indirect, between the spouses during
the marriage shall be void.

XPN: Moderate gifts on occasion of
family rejoicing. (ART 87, FC)

The foregoing rules also apply to
common law spouses.

O. Rationale for the Rules
To protect unsecured creditors
from being defrauded
To prevent the stronger spouse
from imposing upon the weaker
spouse transfer of the latters
property to the former
To prevent indirect modification
of the marriage settlement

CHAPTER III. SYSTEM OF ABSOLUTE
COMMUNITY
SECTION 1. GENERAL PROVISIONS
A. Application of ACP
(1) When no MS was validly made
(2) When property regime chosen in
the MS is void
(3) When spouses expressly adopt
ACP in the MS

NOTE: ACP is the default regime after
the effectivity of the Family Code.

B. Commencement of ACP
ACP shall commence at the
precise moment that the marriage is
celebrated. Any stipulation, express of
implied, for the commencement at any
other time shall be void. (ART 88, FC)

NOTE: Same rule applies to CPG
(ART 107, FC)

C. Waiver of Rights
GEN RULE: NOT ALLOWED

XPN:

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(a) In judicial separation of property
(b) In legal separation
(c) In cases when marriage is
dissolved
(d) In cases when marriage is
annulled

When the waiver takes place upon a
judicial separation of property, or after
the marriage has been dissolved or
annulled, the same shall appear in a
public instrument and shall be
recorded as provided in Article 77. The
creditors of the spouse who made
such waiver may petition the court to
rescind the waiver to the extent of the
amount sufficient to cover the amount
of their credits. (ART 89, FC)

(ART 107, FC)

D. Laws Governing Absolute
Community of Property
(1) Family Code provisions
(2) Civil Code provisions on Co-
ownership (ART 90, FC)

SECTION 2. WHAT CONSTITUTE
COMMUNITY PROPERTY
A. Property Included in the ACP
(1) All property owned by spouses:
(a) At the time of the celebration of
the marriage, or
(b) Acquired thereafter (ART 91,
FC);
(2) Property acquired during the
marriage by gratuitous title, if
expressly made to form part of the
ACP by the grantor (ART 92[1],
FC);
(3) Jewelries (ART 92[2], FC); and
(4) Winnings in gambling or other
games of chance (ART 95, FC).

B. Property Excluded in the ACP
(1) Property acquired during the
marriage by gratuitous titled and its
fruits
XPN: If transformed, or grantor
provides that it shall form part of
the ACP
(2) Property for personal and
exclusive use of either spouse
XPN: Jewelries
(3) Property acquired before the
marriage by one with legitimate
descendants by former marriage,
and its fruits and income
(4) Those excluded, if any, in the MS

C. Presumption on Properties
Acquired During the Marriage
GEN RULE: Properties acquired
during the marriage belong to the ACP
XPN: Unless proved to be one of the
exclusions from the ACP
(ART 116, FC)
SECTION 3. CHARGES AND
OBLIGATIONS OF THE ABSOLUTE
COMMUNITY

A. What are charges upon and
obligations of the CPG? (D2-E2-T2-
VASA)
(1) Support of spouses, their
common children, and legitimate
children of either spouse;
(2) Debts and obligations contracted
during the marriage by the
designated administrator-spouse
for the benefit of the CPG, or by
both spouses, or by one with the
others consent;
(3) Debts and obligations contracted
by one without the others
consent to the extent that the
family has been beenfited;
(4) Taxes, liens, charges and
expenses upon the conjugal
property;

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(5) Taxes and expenses for mere
preservation of separate property
of either spouse;
(6) Expenses for professional,
vocational or self-improvement
course of either spouse;
(7) Ante-nuptial debts of either
spouse insofar as they have
redounded to the benefit of the
family;
(8) Value of what is donated or
promised to common legitimate
children for professional,
vocational or self-improvement
course;
(9) Ante-nuptial debts of either
spouse other than those falling
under paragraph (7) of this
Article, the support of illegitimate
children of either spouse, and
liabilities incurred by either
spouse by reason of a crime or a
quasi-delict, in case of absence
or insufficiency of the exclusive
property of the debtor-spouse,
the payment of which shall be
considered as advances to be
deducted from the share of the
debtor-spouse upon liquidation
of the community;
(10) Expenses for litigation between
spouses, unless suit is
groundless. (ART 94, FC)

Same charges and obligations can be
charged to CPG, EXCEPT (9). (ART
121, FC)
B. Insufficiency of Community
Property
GEN RULE: Spouses shall be
SOLIDARILY LIABLE for the unpaid
balance with their separate property.
(Same rule in CPG, see ART 121,
para 2, FC)

XPN: The following shall be borne by
the exclusive property of the spouse
who incurred the same:
(a) Ante-nuptial debts of either spouse
other than those falling in ART
94(7);
(b) Support of illegitimate children of
either spouse;
(c) Liabilities incurred by either
spouse by reason of a crime or
quasi-delict.
Any payment made by the community
property shall be considered as
ADVANCES to be deducted by debtor-
spouse upon liquidation of the
community.
C. To whom shall loss in gambling be
charged?
Any loss during the marriage in
any game of chance or gambling,
whether permitted by law or not, shall
be borne by the LOSER. (ART 95, FC)
D. To which shall pertain the winnings
in gambling?
Any winnings from any game of
chance or gambling, shall form part of
the community property. (ART 95, FC)
NOTE: Same rules apply in CPG. (ART
123, FC)
SECTION 4. OWNERSHIP,
ADMINISTRATION, ENJOYMENT AND
DISPOSITION OF COMMUNITY
PROPERTY
A. To whom belongs administration
and enjoyment of Community
Property?
GEN RULE: To the SPOUSES
JOINTLY. (ART 96, FC)
XPN: In case one spouse is
incapacitated or otherwise unable to
participate in the administration of
common properties, in which case
CAPACITATED OR ABLE SPOUSE to
assume SOLE powers of
administration.
BUT such powers DO NOT
INCLUDE: (ADE)
(a) Alienation
(b) Disposition
(c) Encumbrance

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of the community property
without:
(1) Authority of the court, or
(2) Written authority of the
other spouse.

Same rule applies to CPG (ART 124,
FC)
B. When consent or authority required
The consent or authority required
must be obtained BEFORE the ADE.
Otherwise, such ADE would be void.
However, the transaction shall be
construed as a continuing offer on the
part of the consenting spouse and of
the third person concerned which may
be perfected upon acceptance of the
other spouse or authority of the court
before said offer is withdrawn. (ART
96, FC)
Same rule applies to CPG (ART 124,
FC)
C. In case of disagreement,
The husbands decision shall
prevail. But this is without
prejudice to recourse to the court
by the wife for proper remedy

Prescriptive Period for Recourse: 5
years from date of the contract
implementing such decision. (ART
96, FC)

Same rule applies to CPG (ART
124, FC)

D. Disposition by will
Either spouse may dispose by will
of his or her interest in the community
property.

E. Disposition by Donation
GEN RULE: Either spouse cannot
donate any community property
without the consent of the other.

XPN: Moderate donations for charity
or on occasion of family rejoicing or
distress. (ART 98, FC)

Similar rules apply to CPG (ART 125,
FC)

F. Sale between Spouses
GEN RULE: Spouses may not sell
property to each other. Any such sale
shall be VOID.

XPN:
(1) When separation of property was
agreed upon in the marriage
settlement;
(2) When there has been a judicial
separation of property. (ART 1490,
NCC).

NOTE: Proscription against such sale
extends to common law relationships
for being contrary to morals and public
policy. (Ching v CA, GR No. 165879,
10 November 2006)

SECTION 5. DISSOLUTION OF THE
ABSOLUTE COMMUNITY REGIME
Rules under this Section are similar to
those applicable to CPG under SECTION
6, CHAPTER 4.
A. When absolute community
terminates
(1) Upon death of either spouse;
(2) When there is a decree of legal
separation;
(3) When the marriage is annulled or
declared void;
(4) In case of judicial separation of
property during the marriage; or
(5) Upon the filing of affidavit of
reappearance of absent spouse
(ART 42, para 2, FC)
(ART 99; ART 126)

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CIVIL LAW
B. Effect of Separation in Fact
(1) Does not affect the regime of ACP
or CPG;
(2) Spouse who left the conjugal home
or refused to live therein, without
just cause, shall not be entitled to
support;
(3) When consent of one spouse to
any transaction of the other is
required by law, judicial
authorization shall be obtained in a
summary proceeding;
(4) Spouse present shall, upon proper
petition in a summary proceeding,
be given judicial authority to
administer or encumber any
specific separate property of the
absent spouse and use fruits or
proceeds thereof to satisfy the
latters share for the support of the
family, in case the community
property is insufficient. (ART 100;
ART 127)

C. Effect of Abandonment or Failure to
Comply with Obligations to the
Family by One Spouse
The aggrieved spouse may petition
the court for any of the following:
(1) Receivership;
(2) Judicial separation of property; or
(3) Authority to be the sole
administrator of the absolute
community. (ART 101, para 1;
ART 128, para 1)

D. What Obligations to the Family
Include
(1) Marital obligations
(2) Parental obligations
(3) Property relations (Ibid., para 2;
Ibid., para 2)

E. When is there abandonment?
There is abandonment when a
spouse leaves the conjugal dwelling
without the intention of returning.

F. Prima Facie Presumption of
Without any Intention of
Returning
The spouse who has left the
conjugal dwelling for a period of
THREE months or has failed within the
same period to give any information as
to his or her whereabouts shall be
prima facie presumed to have no
intention of returning to the conjugal
dwelling. (Ibid., para 3; Ibid., para 3)
SECTION 6. LIQUIDATION OF
ABSOLUTE COMMUNITY ASSETS AND
LIABILITIES

A. Procedure for Liquidation
(1) INVENTORY separate list of all
properties of the absolute
community and the exclusive
properties of each spouse.
NOTE: ACP should also include
receivable from each spouse for:
(a) Amounts advanced for
personal debts of each spouse;
(b) Support pendente lite of each
spouse; and

(2) PAYING OUT of debts and
obligations First, from community
property assets. In case of
insufficiency, spouses shall be
solidarily liable for the unpaid
balance with their separate
property in accordance with ART
94(2).

(3) DELIVERY of Remaining
Exclusive Properties.

(4) DIVISION of Net Remainder of
ACP Properties and FORFEITURE
of shares, if any.
GEN RULE: Division shall be
EQUAL
XPN: (1) When a different
proportion or division was
STIPULATED in the
marriage settlements; or
(2) When there has been
a VOLUNTARY WAIVER
of such share.

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CIVIL LAW

(5) Delivery of PRESUMPTIVE
legitimes of common children.

(6) ADJUDICATION of conjugal
dwelling.

GEN RULE: To the spouse with
whom majority of the common
children choose to remain.
--- For this purpose,
GEN RULE: Children BELOW
the age of SEVEN years are
deemed to have chosen the
mother.
XPN: When the court decides
otherwise.

XPN: (1) Unless otherwise agreed
upon by the parties.
(3) In case there is no such majority
and the court decides otherwise.
(4)
B. Meaning of Net Profits
For purposes of forfeiture in
accordance with ARTS 43(2) and
63(2), NET PROFITS shall be the
increase in value between the market
value of the community property at the
time of the celebration of the marriage
and the market value at the time of its
dissolution. (ART 102[4], FC)

C. Applicable Procedure in case of the
Marriage is Terminated by Death
Community property shall be
liquidated in the same proceeding for
the settlement of the estate of the
deceased.
If there is no such judicial
proceeding, surviving spouse shall,
judicially or extrajudicially, liquidate the
community property within 6 months
from death of the other spouse. (ART
103, FC)

D. FAILURE to Liquidate within the
Period in (C)
It would render any disposition or
encumbrance involving community
property of the terminated marriage
VOID. (ART 103, FC)

E. Property Regime in case of
Subsequent Marriage in (C)
Should the surviving spouse
subsequently marries without
compliance in (C), a MANDATORY
regime of complete separation of
property shall govern property
relations of the subsequent marriage.
(ART 103, FC)

NOTE: Same rules in C, D and E
apply to CPG (ART 128, FC)

F. Simultaneous Liquidation of
Community Properties of Two or
More Marriages by the Same
Person before Effectivity of Family
Code
Respective capital, fruits and
income of each community shall be
determined upon such proof as may
be considered according to the rules
of evidence. In case of doubt as to
which community the existing
properties belong, the same shall be
divided between the different
communities in proportion to the
capital and duration of each. (ART
103, FC)

NOTE: Same rule applies for CPG
(ART 130, FC)

CHAPTER 4. CONJUGAL
PARTNERHSIP OF GAINS
SECTION 1. GENERAL PROVISIONS

A. What is the regime of CPG? (ART
109, FC)

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CIVIL LAW
It is the property regime formed by
husband and wife by placing in a
common fund:
(1) Proceeds, products, fruits and
incomes of their separate
properties; and
(2) Those acquired by either or both
spoused through their efforts or by
chance;
AND upon dissolution of the marriage
or of the partnership, net gains or
benefits obtained shall be divided
equally between them, unless
otherwise agreed in the marriage
settlements. (ART 106, FC)

B. In what instances will the
provisions on CPG apply?
(1) In cases the future spouses agree
in the MS that the regime of
conjugal partnership shall govern
(suppletory application);
(2) In cases of conjugal partnerships
already established before
effectivity of the Family Code,
without prejudice to vested rights
already acquired. (ART 105, FC)

C. Rules governing Conjugal
Partnership
(1) Marriage Settlement;
(2) Family Code, in a suppletory
manner ;
(3) Rules on Contract of Partnership,
insofar as not in conflict with (2) or
(1). (ART 108, FC)

SECTION 2. EXCLUSIVE PROPERTY
OF EACH SPOUSE

A. What are exclusive properties of
spouses?
(1) Those brought into the marriage as
his or her own.
NOTE: Property purchased before
the marriage but fully paid during
the marriage remains a separate
property of the spouse concerned.
But conjugal partnership is entitled
to reimbursement of paid
installments as useful expenditure.
(Lorenzo v Nicolas, GR No. L-
4085, 30 July 1952; also read ART
119, FC)
(2) Those acquired during the
marriage by gratuitous title, subject
to the following rules:
(a) Property donated or left by will
to spouses, jointly and with
designation of determinate
shares, shall pertain to the
donee-spouse as his or her
exclusive property; in the
absence of designation, share
and share alike, without
prejudice to the right of
accretion when proper. (ART
113, FC)
(b) If donations are onerous, the
amount of charges shall be
borne by the exclusive property
of the donee spouse,
whenever they have been
advanced by the conjugal
partnership of gains. (ART 114,
FC)
(c) Retirement benefits, pensions,
annuities, gratuities, usufructs
and similar benefits shall be
governed by rules on
gratuitous or onerous
acquisitions as may be proper
in each case. (ART 115, FC)
(3) Those acquired by right of
redemption, barter or exchange
with exclusive property of either
spouse.
(4) Those purchased with exclusive
money of either spouse.
NOTE: The controlling factor is the
SOURCE of the money used or
the money promised to be paid
(Rivera v Bartolome, CA, 40 OG
2090)

B. Rights of Each Spouse in their
Exclusive Property
(1) Retain the ownership, possession,
administration and enjoyment of
their exclusive property. (ART 110,
para 1, FC)

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CIVIL LAW
(2) During the marriage, transfer the
administration of his or her
exclusive property to the other by
means of a public instrument,
which shall be recorded in the
registry of property of the place
where the property is located.
(ART 110, para 2, FC)
NOTE: Alienation of any exclusive
property of a spouse administered
by the other automatically
terminates the administration over
such property and the proceeds of
the alienation shall be turned over
the owner-spouse. (ART 112, FC)
(3) Mortgage, encumber, alienate or
otherwise dispose of his or her
exclusive property without the
consent of the other spouse, and
appear alone in court to litigate
with regard the same. (ART 111,
FC)

SECTION 3. CONJUGAL
PARTNERSHIP PROPERTY

A. What are deemed conjugal
partnership property?
(1) Those acquired during the
marriage with conjugal funds;
(2) Those obtained from labor,
industry, work or profession of
either or both spouse;
(3) Fruits of conjugal property due or
received during the marriage and
net fruits of separate property;
(4) Share of either spouse in hidden
treasure;
(5) Those acquired through
occupation such as hunting or
fishing;
(6) Livestock in excess of each kind
brought to the marriage;
(7) Those acquired by chance such as
winning in gamblings and bettings.
(ART 117, FC)

B. Rules if property is bought on
instalments paid partly from
exclusive funds and partly from
conjugal funds
(1) If full ownership was vested before
the marriage it shall belong to
the buyer
(2) If full ownership was vested during
the marriage it shall belong to
the conjugal partnership (ART 118,
FC)

NOTE: In either case, any amount
advanced shall be REIMBURSED by
the owner upon liquidation of the
partnership

C. Abe asserts that a parcel of land,
which was purchased at auction,
belonged to the conjugal
partnership of his and his late wife.
In the title, his name appeared to be
merely descriptive of the civil
status of the registered owner, his
late wife. The purchase took place
prior to the advent of the Family
Code. Is the property conjugal or
paraphernal property of his late
wife?

CONJUGAL. In this case the
provisions of the Civil Code would
apply since the purchase took place
before the FC took effect. Under Art.
160 of the NCC, all property of the
marriage is presumed to belong to the
conjugal partnership, unless it be
proved that it pertains exclusively to
the husband or the wife (similar to
ART . In this case, there was no proof
that the property had been acquired
exclusively by Yamane's late wife. The
mere registration of a property in the
name of one spouse does not destroy
its conjugal nature in the absence of
strong, clear and convincing evidence
that it was acquired using the
exclusive funds of said spouse.
(Spouses Go v. Yamane, G.R. No.
160762, May 3, 2006)

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CIVIL LAW
D. Rule when an amount or credit
payable within a period of time
belonging to one of the spouses is
collected during the marriage
It shall be the exclusive property of
the spouse. However, interests falling
due during the marriage on the
principal shall belong to the conjugal
partnership. (ART 119, FC)
SECTION 4. CHARGES UPON AND
OBLIGATIONS OF THE CONJUGAL
PARTNERSHIP
A. What are NOT chargeable upon
CPG?
(1) Personal debts contracted by
either spouse before or during the
marriage

XPN: When such have redounded
to the benefit of the family

(2) Fines and indemnities imposed
upon either spouse

(3) Support of illegitimate children of
either spouse

NOTE, however, that payment of the
foregoing may be enforced against the
CPG AFTER its responsibilities (see
under Charges upon ACP) has
already been covered, and ONLY if:
(a) Debtor-spouse has no
exclusive property, or
(b) Debtor-spouses exclusive
property is insufficient.
In case of payment, such debtor-
spouse shall be charged with the
amount paid at the time of liquidation
of the CPG. (ART 122, FC)

SECTION 7. LIQUIDATION OF THE
CONJUGAL PARTNERSHIP
ASSETS AND LIABILITIES

A. Procedure (R2-D4-IPA)
(1) Inventory of all properties
separately listed as exclusive or
conjugal;
(2) Restitution of advances made in
favor of either spouse;
(3) Reimbursement for use of
exclusive funds;
(4) Payment of Debts and obligations
(5) Delivery of exclusive properties;
(6) Payment of losses and
deterioration of movables
belonging to either spouse;
(7) Division of net conjugal partnership
remainder;
(8) Delivery of common childrens
presumptive legitimes;
(9) Adjudication of conjugal dwelling
and custody of children. (ART 129,
FC)

B. Application of the Rules of Court
The Rules of Court on the
administration of estates of deceased
persons shall be observed in the
appraisal and sale of property of the
conjugal partnership and other matters
not expressly determined in Chapter 4,
Section 7. (ART 132, FC)

C. Support during Liquidation
Support of spouses and their
common shildren DURING the
liquidation of CPG and until delivery of
what pertains to them shall be taken
from the common mass of property.

BUT, from this mass shall be deducted
that amount received for support which
exceeds the fruits or rents pertaining to
them. (ART 133, FC)

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CIVIL LAW

GROUNDS (ART 86) PRESCRIPTION
PERIOD RECKONING POINT
1. Marriage is not celebrated.
XPN: Those automatically rendered void
by law.

5 years
Time the marriage
was supposed to be
solemnized (ART
1149, NCC)
2. Marriage has
been judicially
declared void.
GROUNDS

Revoked by operation of law
a. Subsequent
marriage without
securing a judicial
declaration of
nullity of prior
marriage (ART
40)
b. Marriage where
both spouses are
in bad faith (ART
44)

c. Any other ground

5 years
Finality of judicial
declaration of nullity
(if action is to recover
property)
3. Marriage took place without consent of
parents, when required by law.
5 years
4. Marriage is annulled and donee acted in
bad faith,
Revoked by operation of law
(ART 50, FC)
5. Upon legal separation and donee was
the guilty spouse.
5 years Finality of decree of
legal separation
6. Donation was subject to resolutory
condition and the latter
5 years Time of happening of
the resolutory
condition

7. Donee committed any act of ingratitude.

5 years
Time of donors
knowledge of the
commission of any
act of ingratitude

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CIVIL LAW

F. Separation of Property of the
Spouses and Administration of
Common Property by One Spouse
During the Marriage, Arts. 134-142

Art. 134, Family Code. In the absence
of an express declaration in the
marriage settlements, the separation of
property between spouses during the
marriage shall not take place except by
judicial order. Such judicial separation
of property may either be voluntary or
for sufficient cause.

Judicial separation of property may
either be (1) voluntary or (2) for
sufficient cause.

Q: In what ways can there be judicial
separation of property?
A: Judicial separation of property may
either be voluntary or for sufficient cause.

Q: What are the sufficient causes for
judicial separation of property?
A: CJ LASA
1. Civil interdiction of the spouse of
petitioner;
2. Judicial declaration of absence;
3. Loss of parental authority as decreed
by the court;
4. Abandonment or failure to comply with
family obligation;
5. Administrator spouse has abused
authority;
6. Separation in fact for one year and
reconciliation is highly improbable.

A. Sufficient Causes and Grounds
for Return to Previous Regime

Sufficient Causes
for Judicial
Separation of
Property (Art.
135) (CALASA)
Grounds for
Return to Previous
Regime
(Art. 141)
(1) Spouse of
petitioner has
been sentenced
to a penalty
which carries
(1) Termination of
the civil
interdiction
with it civil
interdiction
(2) Spouse of
petitioner is
judicially
declared an
absentee
(2) Reappearance of
absentee spouse
(3) Loss of parental
authority of the
spouse of
petitioner has
been decreed by
the court
(5) Restoration of
parental authority
to the spouse
previously
deprived of it
(4) Spouse of
petitioner has
abandoned the
latter or failed to
comply with his
or her
obligations to
the family
(4) When the
spouse who left
the conjugal
home without
legal separation
resumes common
life with the other
(5) The spouse
granted the
power of
administration in
the marriage
settlements has
abused that
power
(3) When the court,
being satisfied
that the spouse
granted the
power of
administration in
will not again
abuse that power,
authorizes the
resumption of
said
administration
(6) At the time of
the petition, the
spouses have
been separated
in fact for at
least 1 year and
reconciliation is
highly
improbable.
(6) Reconciliation
and resumption of
common life of
the spouse who
have separated in
facts for at least 1
year
(7) When after
voluntary
dissolution of the
ACP or CPG has
been judicially
decreed upon the
joint petition of
the spouses, they
agree to the
revival of the

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CIVIL LAW
former property
regime. No
voluntary
separation of
property may
thereafter be
granted.

B. Rules
1. Each spouse shall contribute to the
family expenses, in proportion to their
income. In case of insufficiency, the
market value of their separate
properties. (Art. 146 par. 1)
2. Liability of spouses to the creditors of
the family shall be SOLIDARY. (Art.
146, par. 2)

Abandonment is defined as the lack of
intention to return to the conjugal
home, without justifiable cause (Dela
Cruz v. Dela Cruz)

C. Effects of separation of property
between spouses
1. ACP or CPG is dissolved and
liquidated (Art. 137)
2. Provisions on complete separation of
property applies after dissolution of
ACP/CPG (Art. 138)
a. Liability spouses to creditors shall
be solidary with their separate
properties
b. mutual obligation to support each
continues except when there is
legal separation
3. Petition and final judgment of
separation of property must be filed in
the appropriate registries (Art. 139)
4. rights previously acquired by creditors
are not prejudiced (Art. 140)

Q: What are the effects of judicial
separation of property between
spouses?

A:
1. The absolute community or conjugal
partnership is dissolved;
2. The liability of the spouses to creditors
shall be solidary with their separate
properties;
3. Mutual obligation to support each
other continues;

XPN: When there is legal separation

4. Rights previously acquired by creditors
are not prejudiced.

D. Transfer of Administration to the
Other Spouse (Art. 142) (GACA)
When one spouse.
1. Becomes the guardian of the other.
2. Is judicially declared an absentee.
3. Is sentenced to a penalty which
carries with it civil interdiction.
4. Becomes a fugitive from justice or is in
hiding as an accused in a criminal
case.

If the other spouse is not qualified by
reason of incompetence, conflict of
interest, or any other just cause, the court
shall appoint a suitable person to be the
administrator.
In Re: voluntary dissolution of CPG of
spouses Bernas, 14 SCRA 237

A voluntary separation of properties is
not perfected by mere consent but
upon the decree of the court approving
the same. The petition for voluntary
separation of property was denied
because the children of the 1
st
and 2
nd

marriages were not informed; the
separation of property may prejudice
the rights and shares of the
children.Maquilan v. Maquilan,
(2007)

A compromise agreement with judicial
recognition is valid, pending petition
for declaration of nullity of marriage.

G. Regime of Separation of Property,
Arts. 143-146

1. When applicable
A. In the marriage
settlements
Separation of Property refers to
present or future property or both
total or partial
if partial, a property not
considered separate is
presumed to pertain to the
ACP

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CIVIL LAW
Effects(145) each spouse
shall
i. own , dispose, posses,
administer separate estate w/o
consent of the other
ii. own earnings profession,
business & industry
iii. own fruits natural, industrial
or civil from separate
properties

Liability for Family expenses &
creditors
i. family expenses: both spouses
in proportion to income, if
insufficient, based on current
market value of separate
properties
ii. creditors for family expenses:
solidary

Q: What governs the regime of
separation of property?

A:
1. Marriage settlement
2. Family Code in suppletory character.

Q: What are the kinds of separation of
property?

A:
1. As to extent:
a. Total
b. Partial In this case, the
property not agreed upon as
separate shall pertain to the
absolute community.

As to kinds of property:
a. Present property
b. Future property
c. Both present and future property

B. Mandatory under Arts.
103 &130
C. Default property regime
when there is
reconciliation between
spouses after judicial
separation of property.

3. Administration
A. By the owner spouse (Art. 145)
B. By the other spouse (Art. 142)
Transfer of administration of
exclusive properties
between spouses
1. one spouse becomes
the guardian of the other
2. one spouse is judicially
declared an absentee
3. one spouse is given
penalty of civil
interdiction
4. one spouse become a
fugitive
Q: What are the rights of the spouses
under the regime of separation of
property?

A:
1. Each spouse shall administer, dispose
of, own, possess, and enjoy his or her
own separate property, without need
of the consent of the other.
2. Each spouse shall own all earnings
from his or her profession, business
and industry and all fruits, natural,
industrial or civil, due or received
during the marriage from his or her
separate property.

4. Family expenses (Art. 146)
Both spouses in proportion to their
income, if income is insufficient, it
shall be based on the current
market value of the separate
properties.
As to creditors, liability is solidary

Q: What are the liabilities for family
expenses of the spouses under the
regime of separation of property?

A:

GR: Both spouses shall bear the family
expenses in proportion to their income.

XPN: In case of insufficiency or default
thereof, to the current market value of
their separate properties.

Spouses shall be solidarily liable to
creditors for family expenses.

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CIVIL LAW

5. Conveyances between the spouses
Allowed under Art. 1490 of the
New Civil Code.

H. Property Regime of Unions Without
Marriage, Arts. 147-148

(asked in 79, 87, 98, 00 and 09 bar
exams)

Art. 147 Art. 148
When a man and a
woman who are
capacitated to
marry each other,
live exclusively with
each other as
husband and wife
without the benefit
of marriage or
under a void
marriage, their
wages and salaries
shall be owned by
them in equal
shares and the
property acquired
by both of them
through their work
or industry shall be
governed by the
rules on co-
ownership.

In the absence of
proof to the
contrary, properties
acquired while they
lived together shall
be presumed to
have been obtained
by their joint efforts,
work or industry,
and shall be owned
by them in equal
shares. For
purposes of this
Article, a party who
did not participate
in the acquisition by
the other party of
any property shall
be deemed to have
In cases of
cohabitation not
falling under the
preceding Article,
only the 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 to
the contrary, their
contributions and
corresponding
shares are
presumed to be
equal. The same
rule and
presumption shall
apply to joint
deposits of money
and evidences of
credit.

If one of the parties
is validly married to
another, his or her
share in the co-
ownership shall
accrue to the
absolute community
or conjugal
partnership existing
in such valid
marriage. If the
party who acted in
Art. 147 Art. 148
contributed jointly in
the acquisition
thereof if the
former's efforts
consisted in the
care and
maintenance of the
family and of the
household.

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

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 case of
default of or waiver
by any or 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. In all cases,
the forfeiture shall
take place upon
termination of the
cohabitation. (144a)
bad faith is not
validly married to
another, his or her
shall be forfeited in
the manner
provided in the last
paragraph of the
preceding Article.

The foregoing rules
on forfeiture shall
likewise apply even
if both parties are in
bad faith.

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CIVIL LAW
Art.147 Art.148
A
p
p
l
i
c
a
b
i
l
i
t
y

1. man and
woman
2. living
together as
husband and
wife
3. with capacity
to marry
(Art.5
without any
legal
impediment)
a. at least 18
years old
b. not Art.
37
(incestuou
s void
marriage)
c. not Art.
38 (void
marriage
by reason
of public
policy)
d. not
bigamous
4. other void
marriages
due to
absence of
formal
requisite
1. man and
woman
2. living
together as
husband
and wife
3. NOT
capacitated
to marry
(Art.35(1)
under 18
years old)
4. adulterous
relationship
(e.g.
concubinag
e)
5. bigamous/p
olygamous
marriage
(Art.35(4))
6. incestuous
marriages
under Art.37
7. Void
marriages
by reason of
public policy
under Art.38
S
a
l
a
r
i
e
s

a
n
d

w
a
g
e
s

Owned in equal
shares
Separately
owned by
parties
P
r
o
p
e
r
t
i
e
s

a
c
q
u
i
r
e
d

t
h
r
o
u
g
h

e
x
c
l
u
s
i
v
e

f
u
n
d
s

Remains
exclusive
provided there
is proof
Remains
exclusive
P
r
o
p
e
r
t
i
e
s

a
c
q
u
i
r
e
d

b
y

b
o
t
h

t
h
r
o
u
g
h

w
o
r
k

o
r

i
n
d
u
s
t
r
y

Governed by
rules on co-
ownership
Owned in
common in
proportion to
respective
contribution
P
r
o
p
e
r
t
i
e
s

a
c
q
u
i
r
e
d

w
h
i
l
e

l
i
v
i
n
g

t
o
g
e
t
h
e
r

Owned in
equal shares
since it is
presumed to
have been
acquired
through joint
efforts
if one party
did not
participate in
acquisition,
presumed to
have
contributed
through care
and
maintenance
of family and
household
No
presumption of
joint
acquisition.
When there is
evidence of
joint
acquisition but
none as to the
extent of
actual
contribution,
there is a
presumption of
equal sharing
Forfe
iture
When only one
of the parties is
in good faith,
the share of the
party in bad
faith shall be
forfeited:
1. In favor of
their
common
children
2. In case of
default of or
waiver by
any or all of
the common
children or
their
descendants
, each
vacant share
shall belong
to the
respective
surviving
If one party is
validly married
to another
his/her share
in the co-
owned
properties will
accrue to the
ACP/CPG of
his/her existing
valid marriage

If the party
who acted in
bad faith is not
validly married
to another,
his/her share
shall be
forfeited in the
same manner
as that
provided in Art
147

College of Law | 44

CIVIL LAW
descendants
3. In the
absence of
such
descendants
, such share
belongs to
the
innocent-
party
The same
rules on
forfeiture shall
apply if both
parties are in
bad faith

Q: What is the property regime of
unions without marriage?

A: ART. 147 ART. 148
Applicability

1. No legal
impediment
to marry;
2. Void
marriage on
the ground
of
psychologica
l incapacity.

Presence of legal
impediment:
1. Adulterous
relationships
2. Bigamous/pol
ygamous
marriages
3. Incestuous
void
marriages
under Art 37
4. Void
marriages by
reason of
public policy
(Art. 38)

Salaries & wages
Owned in equal
shares
Separately owned by
the parties. If any is
married, his/her
salary pertains to the
CPG of the legitimate
marriage.
Property exclusively acquired
Belongs to party
upon proof of
acquisition
through
exclusive funds
Belongs to such
party
Property acquired by both through
their work or industry
Governed by
rules of co
ownership
Owned in common in
proportion to their
respective
contributions

Presumption
Property
acquired while
living together
presumed
obtained by their
joint efforts, work
or industry and
owned by them
in equal shares.
If one party did
not participate in
acquisition:
presumed to
have contributed
through care and
maintenance of
family and
household
(Buenaventura
v. Buenaventura,
G.R. No.
127358, Mar. 31,
2005)
No presumption of
joint acquisition.
Actual joint
contribution of
money, property or
industry shall be
owned by them in
common proportion.
However, their
contributions are
presumed equal, in
the absence if proof
to the contrary
Forfeiture
When only one
is in GF, share
of party in BF in
the co
ownership be
forfeited in favor
of:
1. their
com
mon
childr
en
2. innoc
ent
party

in default of /
waiver by any/all
common
If one of the parties
is validly married to
another, his/her
share in the co
ownership shall
accrue to the ACP or
CPG existing in the
marriage.
If the party who
acted in BF is not
validly married to
another or if both
parties are in BF,
such share be
forfeited in manner
provided in last par
of Art. 147

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CIVIL LAW
children, or by
their
descendants
Proof of actual contribution
Not necessary Necessary

Note: For as long as it is proven that
property was acquired during marriage,
the presumption of conjugality will attach
regardless in whose name the property is
registered.

Cases

Yaptinchay v. Torres, (1969)- Application
of Article 148; there was no proof of actual
contribution, while there was a subsisting
marriage apart from the union without
marriage, therefore, the N. Forbes house
goes to the CPG of subsisting marriage
J uaniza v. J ose, (1979)- Property
acquired by a married party during
cohabitation with another not his spouse
belongs to the CPG of the marriage, and
the other party cannot be held
jointly/severally liable for it
Villanueva v. CA, (2004) - Transfer of
certificate and tax declarations are not
sufficient proof of joint contribution.
J oaquino v. Reyes (2004)- Prohibitions
against donations between spouses must
likewise apply to donations between
persons living together in illicit relations;
Valdez v QC-RTC (1996)- Marriages that
have been declared void come under the
rules of co-ownership under FC147/148
regardless of the reason.

The presumption is not rebutted by the
mere fact that the certificate of title of the
property or the tax declaration is in the
name of one of the spouses. (Villanueva
v. CA, G.R. No. 143286, Apr. 14, 2004)

Under Art. 148, only the properties
acquired by both parties through their
actual joint contribution of money property
or industry shall be owned by them in
proportion to their respective
contributions. (Agapay v. Palang, G.R.
No. 116726, J uly 28, 1997)

Q: What property relation governs in
case marriage is declared null and void
on the ground of psychological
incapacity?
A: The property relation between the
parties is governed by Art. 147 of the FC.
Under this property regime, property
acquired by both spouses through their
work and industry shall be governed by
the rules on equal co ownership. Any
property acquired during the union is
prima facie presumed to have been
obtained through their joint efforts. A party
who did not participate in the acquisition of
the property shall still be considered as
having contributed thereto jointly if said
party's "efforts consisted in the care and
maintenance of the family household."
Unlike the conjugal partnership of gains,
the fruits of the couple's separate property
are not included in the co ownership.

Q: Josefinas petition for nullity of her
marriage to Eduardo was granted on
the ground of existence of a prior
marriage. She now asserts that since
her marriage to Eduardo is void, their
property relation is to be governed by
the rules on co ownership under Art.
148 of the FC and not by Art. 144 of the
Civil Code. In this regime, Eduardo has
no share at all in the properties since
no proof was adduced by him as
regards his participation in their
purchase. However, she did not prove
that she acquired the properties using
her personal funds and prior to her
cohabitation with Eduardo. Is her
contention correct?

A: No. Art. 148 of the FC does not apply
since, in said article, a co ownership may
ensue in case of cohabitation where, for
instance, one party has a pre existing
valid marriage, provided that the parties
prove their actual joint contribution of
money, property or industry and only to
the extent of their proportionate interest
thereon. Petitioner failed to adduce

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CIVIL LAW
preponderance of evidence that she
contributed money, property or industry in
the acquisition of the subject property and,
hence, is not a co owner of the property.
Since the subject property was acquired
during the subsistence of the first
marriage of Eduardo, under normal
circumstances, the same should be
presumed to be conjugal property of
Eduardo and Josefina. (Francisco v.
Master Iron Works Construction
Corp.,G.R. No. 151967. Feb. 16, 2005)

Q: Francisco and Ermindas marriage
was nullified by the trial court due to
psychological incapacity. He did not
contest the decree of nullity but he
assailed the division in the properties
which was contained in the decree. He
asserted that the properties were
acquired through his efforts and that
she had no contribution whatsoever in
their acquisition and maintenance;
hence, she should not be entitled to a
joint share in their properties. Is
Franciscos contention correct?

A: No. The property relation between the
parties is governed by Art. 147 of the FC.
Under this article, there is a presumption
that the properties which they acquired
during their cohabitation were acquired
through their joint efforts, work or industry.
It further provides that a party who did not
participate in the acquisition thereof shall
be deemed to have contributed jointly in
the acquisition thereof if his or her efforts
consisted in the care and maintenance of
the family and of the household.
Note: In this case, Francisco himself
testified that his wife was not a plain
housewife but one who helped him in
managing the family's business. Hence,
Erminda is rightfully entitled to a joint
share in their properties. (Gonzales v.
Gonzales,G.R. No. 159521, Dec. 16,
2005)

Q: Romeo and Juliet lived together as
husband and wife without the benefit of
marriage. During their cohabitation,
they acquired a house. When they
broke up, they executed an agreement
where he agreed to leave the house
provided Juliet will pay his entire share
in their properties. She failed to do so
but she also ignored his demand for
her to vacate. Romeo sued her for
ejectment which the court granted.
Was the court correct in granting the
same?

A: No. Under Art. 147 of the FC, the
property is co owned by the parties.
Under said provision, in the absence of
proof to the contrary, any property
acquired by common law spouses during
their cohabitation is presumed to have
been obtained thru their joint efforts and is
owned by them in equal shares. Their
property relationship in such a case is
essentially governed by the rules on co
ownership. Thus, Romeo cannot seek the
ejectment of Juliet therefrom. As a co
owner, she is as much entitled to enjoy its
possession and ownership as him. (Abing
v. CA,G.R. No. 146294, Jul. 31, 2006)

Q: In 1973, Mauricio, a Filipino
pensioner of the US Government,
contracted a bigamous marriage with
Erlinda, despite the fact that his first
wife, Carol, was still living. In 1975,
Mauricio and Erlinda jointly bought a
parcel of rice land with the title being
placed jointly in their names. Shortly
thereafter, they purchased another
property (a house and lot) which was
placed in her name alone as the buyer.
In 1981, Mauricio died and Carol
promptly filed an action against Erlinda
to recover both the rice land and the
house and lot, claiming them to be
conjugal property of the first marriage.
Erlinda contends that she and the late
Mauricio were co owners of the rice
land, and with respect to the house and
lot she claims she is the exclusive
owner. Assuming she fails to prove
that she had actually used her own
money in either purchase, how do you
decide the case?

A: Carol's action to recover both the rice
land and the house and lot is well
founded. Both are conjugal property, in
view of the failure of Erlinda, the wife in a
bigamous marriage, to prove that her own
money was used in the purchases made.

College of Law | 47

CIVIL LAW
The Supreme Court in a case applied Art.
148, Family Code, despite the fact that the
husband's death took place prior to the
effectivity of said law. However, even
under Art. 144, Civil Code, the same
conclusion would have been reached in
view of the bigamous nature of the second
marriage. (1998 Bar Question)

Q: Luis and Rizza, both 26 years of age
and single, live exclusively with each
other as husband and wife without the
benefit of marriage, Luis is gainfully
employed, Rizza is not employed, stays
at home, and takes charge of the
household chores.
After living together for a little over
twenty years, Luis was able to save
from his salary earnings during that
period the amount of P200,000.00
presently deposited in a bank. A house
and lot worth P500,000.00 was recently
purchased for the same amount by the
couple. Of the P500.000.00 used by the
common law spouses to purchase the
property, P200.000.00 had come from
the sale of palay harvested from the
hacienda owned by Luis and
P300,000.00 from the rentals of a
building belonging to Rizza. In fine, the
sum of P500.000.00 had been part of
the fruits received during the period of
cohabitation from their separate
property, a car worth P100.000.00 being
used by the common law spouses,
was donated just months ago to Rizza
by her parents.

Luis and Rizza now decide to terminate
their cohabitation, and they ask you to
give them your legal advice on how,
under the law should the bank deposit
of P200,000.00 the house and lot
valued at P500.000.00 and the car
worth P100.000.00 be allocated to
them?

A: Art. 147 of the Family Code provides in
part that when a man and a woman who
are capacitated to marry each other, live
exclusively with each other as husband
and wife without the benefit of marriage or
under a void marriage, their wages and
salaries shall be owned by them in equal
shares and the property acquired by both
of them through their work or industry
shall be governed by the rules of co
ownership. In the absence of proof to the
contrary, properties acquired while they
lived together shall be presumed to have
been obtained by their joint efforts, worker
industry, and shall be owned by them in
equal shares. A party who did not
participate in the acquisition by the other
party of any property shall be deemed to
have contributed jointly in the acquisition
thereof if the former's efforts consisted in
the care and maintenance of the family
and of the household. Thus:

1. the wages and salaries of
Luis in the amount of
P200,000.00 shall be
divided equally between
Luis and Rizza.
2. the house and lot valued at
P500.000.00 having been
acquired by both of them
through work or industry
shall be divided between
them in proportion to their
respective contribution, in
consonance with the rules
on co ownership. Hence,
Luis gets 2\5 while Rizza
gets 3\5 of P500.000.00.

3. the car worth P100,000.00 shall be
exclusively owned by Rizza, the same
having been donated to her by her
parents. (1997 Bar Question)

TITLE V. THE FAMILY

(1991 Bar Exam)
Basic social institution which public policy
cherishes and protects hence, no suit
between members of the family shall
prosper unless compromise between
parties has failed.

A. The Family as an Institution

Aspects of Family Relations
External Aspect
Governed by law (Art 149)

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CIVIL LAW
Only in this aspect can third
persons and the public interest be
concerned
Internal Aspect
Sacred to the family and
inaccessible to law because law
must respect the freedom of action
of man
E.g. spiritual relations,
sexual relations of spouses, career
or profession of spouses,
profession and career of spouses,
practices and customs of family

Family relations include (Art 150):
1. Between husband and wife
2. Between parents and children
3. Among other ascendants and
descendants
4. Among brothers and sisters, full or half
blood.

General Rule (Art 151)
No suit between members of the same
family shall prosper.
Exception: For a suit between members of
the same family to prosper, the following
are required:
1. Earnest efforts towards a compromise
have been made
2. Such efforts have failed
3. Such earnest efforts and the fact of
failure must be alleged

Note:
The case will be dismissed if it is shown
that no such efforts were made.
The rules shall not apply to cases which
may not be the subject of compromise.

Exceptions to the general rule cannot
be subject of compromise (Art 2035,
CC; VJ LAFF):
1. Civil status of persons,
2. Validity of marriage or a legal
separation,
3. Any ground for legal separation,
4. Future support,
5. Jurisdiction of courts,
6. Future legitime

Hontiveros v. RTC, (1999)- Whenever a
stranger is a party in a case involving
family members, the requisite showing of
earnest efforts to compromise is no longer
mandatory, as such inclusion of a stranger
takes the case out of the ambit of FC 151.

Q: What includes family relations?

A:

1. Between husband and wife
2. Between parents and children
3. Among other ascendants and
descendants
4. Among brothers and sisters, whether of
the full or half blood.

Q: What governs family relations?

A: The law.

Q: What are the requisites before a suit
between members of the same family
may prosper?

A:
1. Earnest efforts toward a compromise
have been made;
2. Such efforts failed;
3. The fact that earnest efforts toward a
compromise have been made but the
same have failed appears in the verified
complaint or petition..

Q: In a complaint filed by Manolo
against his brother, Rodolfo, it was
alleged that the case "xxx passed
through the Barangay and no
settlement was forged between the
plaintiffs and defendant as a result of
which Certification to File Action was
issued xxx". Rodolfo moved to dismiss
for failure to comply with a condition
precedent - that earnest efforts for an
amicable settlement among the parties
had been exerted but that none was
reached. Decide.

A: The case will prosper. There was in fact
substantial compliance with Art. 151 of the
Family Code since the spouses alleged in
the complaint for ejectment that the case
"xxx passed through the Barangay and no
settlement was forged between the
plaintiffs and defendant as a result of
which Certification to File Action was
issued by Barangay 97, Zone 8, District I,

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CIVIL LAW
Tondo, Manila xxx". It bears stressing that
under Sec. 412 (a) of R.A. 7160, no
complaint involving any matter within the
authority of the Lupon shall be instituted or
filed directly in court for adjudication
unless there has been a confrontation
between the parties and no settlement
was reached.

Moreover, the phrase "members of the
same family" found in Art. 151 of the
Family Code must be construed in relation
to Art. 150 thereof. (Martinez, et al. v.
Martinez, G.R. No. 162084. J un. 28,
2005)

Note: A sister-in-law or a brother-in-law is
not covered by these two provisions.
Being an exception to the general rule,
Art. 151 must be strictly construed.
(Gayon v. Gayon, G.R. No. L-28394,
Nov. 26, 1970)

B. The Family Home

Constituted by
Jointly by the husband and the wife
By an unmarried head of a family;

Includes
1. Dwelling house where they and their
family reside
2. The land on which it is situation (Art
152)

Note:
A person may constitute and be the
beneficiary of only one family home (Art
161)
The provisions of the Chapter on Family
Home shall govern existing family
residences insofar as said provisions are
inapplicable (Art 162)

Guidelines
1. It is deemed constituted from time of
actual occupation as a family
residence
2. It must be owned by person
constituting it
3. It must be permanent
4. Rule applies to valid and voidable and
even to common-law marriages under
Arts.147 and 148
5. It continues despite death of one or
more spouses or unmarried head of
family for 10 years or as long as there
is a minor beneficiary (Art.159)
6. Can only constitute one family home

General Rule
The family home is exempt from (EFA)
from the time of its constitution and so
long as any of its beneficiaries actually
resides therein (Art 153):
1. Execution
2. Forced sale
3. Attachment

Exceptions in the exemption of the
family home from execution (Art. 156)
1. Nonpayment of taxes.
2. Debts incurred prior to the constitution
of the family home.
3. Debts secured by mortgages on the
premises before or after such
constitution.
4. Debts due to laborers, mechanics,
architects, builders, materialmen and
others who have rendered service or
furnished material for the construction
of the building.

Beneficiaries of the family home (Art.
154)
1. Husband and wife, or an unmarried
person who is the head of the family
2. Parents (may include parent-in-laws),
ascendants, descendants, brothers
and sisters (legitimate/illegitimate),
who are living in the family home and
who depend on the head of the family
for support

Requisites to be a beneficiary (RLD)
1. The relationship is within those
enumerated
2. They live in the family home
3. They are dependent for legal support
on the head of the family

Requirements for the sale, alienation,
donation, assignment, or encumbrance
of the family home (Art 158)

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CIVIL LAW
1. the written consent of the person
constituting it,
2. his/her spouse, and
3. majority of the beneficiaries of legal
age
Note: If there is a conflict, the Court will
decide.
In case of death of one or both
spouses or the unmarried head of the
family (ART. 159)
- The family home shall continue
despite the death of one or both
spouses or of the unmarried head of
the family for a period of ten years, or
as long as there is a minor beneficiary.
- The heirs cannot partition the home
unless the court finds compelling
reasons therefor.

Requisites for creditor to avail of the
right under Article 160 (If a claim of a
creditor is not among the exceptions
mentioned in Art 155 and has reasonable
grounds to believe that the family home is
worth more than the amount fixed in Art
157)
Requisites
1. He must be a judgment creditor;
2. His claim is not among those excepted
under Article155, and
3. He has reasonable grounds to believe
that the family home is worth more
than the maximum amount fixed in
Article 157

Procedure to avail of right under Article
160
1. The creditor must file a motion in the
court proceeding where he obtained a
favorable for a writ of execution
against the family home.
2. There will be a hearing on the motion
where the creditor must prove that the
actual value of the family home
exceeds the maximum amount fixed
by the FC either at the time of its
constitution or as a result of
improvements introduced thereafter its
constitution.
3. If the creditor proves that the actual
value exceeds the maximum amount
the court will order its sale in
execution.
4. If the family home is sold for more
than the value allowed, the proceeds
shall be applied as follows:
a. First, the obligation enumerated in
Article 155 must be paid
b. Then the judgment in favor of the
creditor will be paid, plus all the
costs of execution
c. The excess, if any, shall be
delivered

Cases

Versola v. Mandolaria, (2006)- The proof
that the house is the family home must be
alleged against creditors; Applied the rule
in Art. 160, FC.
Patricio v. Dario III, (2006)- WON the
grandson of the deceased is a beneficiary
according to Art. 154 FC. The beneficiary
should satisfy all requisites; he must be
dependent on the head of the family.
Arriola v. Arriola, (2008)- This case
involves half brothers and a second wife;
the family home includes the land it is built
on. The rule in Art. 159 of the FC
regarding the 10 year period is applied,
the parties involved must wait.

Q: What is meant by family home (FH)
and how is it constituted?

A: It is the dwelling house where the
husband and wife and their family reside,
and the land on which it is situated; it is
constituted jointly by the husband and the
wife or by an unmarried head of a family.

Q: Can FH be constituted on a house
constructed on a land belonging to
another?

A: No.
Reason: The land where the house is
erected is an integral part of the home and
the home should be permanent in
character.

Note: A house constructed on rented land
or by tolerance of the owner is not a
permanent improvement on the land and
the home will thus be temporary.

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CIVIL LAW
Q: What are the exceptions to the rule
that the FH is exempt from execution,
forced sale or attachment?

A: LTPM
1. Debts due to Laborers, mechanics,
architects, builders, material men and
others who rendered service or furnished
materials for the constitution of the
building;
2. Non-payment of Taxes;
3. Debts incurred Prior to constitution;
4. Debts secured by Mortgages on the
family home.
Note: Exemption is limited to the value
allowed in the FC

Q: A complaint for damages was filed
against Hinahon in 1986 when she
incurred liabilities as early as 1977,
which action prospered in 1989. The
house and lot that she owned was
levied upon and sold at auction. She
assails the levy and sale on the ground
that it was her family home and
therefore exempt from execution.
Decide.

A: It is not exempt. Under Art. 155 of the
FC, the family home shall be exempt from
execution, forced sale, or attachment
except for, among other things, debts
incurred prior to the constitution of the
family home. In the case at bar, the house
and lot was not constituted as a family
home, whether judicially or extra-judicially,
at the time that the debtor incurred her
debts. Under prevailing jurisprudence, it is
deemed constituted as such by operation
of law only upon the effectivity of the
Family Code on August 3, 1988, thus, the
debts were incurred before the
constitution of the family home. (Gomez-
Salcedo, et al. v. Sta. Ines, et al.,G.R. No.
132537, Oct.14, 2005)

Q: What are the guidelines in the
constitution of the family home?

A: 1-SAPOC
1. FH is deemed constituted from the time
of Actual occupation as a family
residence;
2. Only 1 FH may be constituted;
3. Must be Owned by the person
constituting it;
4. Must be Permanent;
5. Same rule applies to both valid and
voidable marriages and even to common
law spouses; (Arts. 147 and 148)
6. It continues despite death of one or
both spouses or an unmarried head of the
family for 10 years or as long as there is a
minor beneficiary.

Q: Who are the beneficiaries of a FH?

A:
1. Husband and wife, or unmarried head
of the family
2. Parents (may include parents-in-law),
ascendants, brothers and sisters
(legitimate or illegitimate) living in the FH
and dependent on the head of the family
for support

Q: What are the requisites in the sale,
alienation, donation, assignment or
encumbrance of the FH?

A: The following must give their written
consent:
1. The person who constituted the FH;
2. The spouse of the person who
constituted the FH;
3. Majority of the beneficiaries of legal
age.
Note: In case of conflict, court shall
decide.

Q: What are the requisites for the
creditor to avail of the right to execute?

A:
1. He must be a judgment creditor;
2. His claim must not be among those
excepted under Art. 155;
3. He has reasonable grounds to believe
that the family home is worth more than
the maximum amount fixed in Art. 157.

Q: What is the procedure in exercising
the right to execute?

A:
1. Creditor must file a motion in the court
proceeding where he obtained a favorable
judgment for a writ of execution against
the FH;

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2. There will be a hearing on the motion
where the creditor must prove that the
actual value of the FH exceeds the
maximum amount fixed by the Family
Code, either at the time of its constitution
or as a result of improvements introduced
after its constitution;
3. If the creditor proves that the actual
value exceeds the maximum amout, the
court will order its sale in execution;
4. If the family home is sold for more than
the value allowed, the proceeds shall be
applied as follows:
a. The obligations enumerated in
Art. 155 must be paid
b. The judgment in favor of the
creditor will be paid, plus all the
costs of execution
The excess, if any, shall be
delivered to the judgment debtor
(Art. 160, Family Code).

TITLE VI. PATERNITY AND FILIATION

Kinds of Filiation (Arts. 163, 164, 165)
1. Natural
Legitimate
Illegitimate
2. Legal Fiction (Adoption)

A. Legitimate Children (Arts. 163-171)

Classified as legitimate children
(Art. 164)
(asked in 79, 82, 84, 85, 99 and 03
bar exams)

1. Conceived or born during the
marriage of parents
2. May be thru natural means or by
artificial insemination

a. Natural/Biological
Liyao v. Liyao, (2002): A
child conceived or born
during a valid marriage is
presumed to belong to that
marriage, regardless of the
existence of extramarital
relationships.

b. Artificial Insemination (Art. 164)
Requisites for children conceived
through artificial insemination to be
considered legitimate:
i. Artificial insemination
made on wife
ii. Sperm comes any of the
following:
Husband
Donor
husband and donor
iii. In case of donor sperm,
husband and wife must
authorize/ratify
insemination in a written
instrument
Executed & signed by
husband and wife
before the birth of the
child.
Recorded in the civil
registry together with
the birth certificate of
the child.

Classified as illegitimate children
(asked in 80, 82, 83, 84, 90, 93,
99, 00, 07, 08 and 09 bar exams)
General Rule: Those conceived and
born outside of a valid marriage (Art.
165).
Exceptions:
1. Children of marriages void under
Art.36 (psychological incapacity).
2. And under Art. 53 (the second
marriage of a widow or widower
who has not delivered to his or her
children by his or her first marriage
the legitime of said children).
(SEMPIO-DIY)

De Castro v. Assidao-De Castro,
(2008)
Common children born before the
annulment are legitimate, and
therefore entitled to support from each
of the spouses.

Impugning Legitimacy
Grounds for impugning legitimacy of a
child are (Art. 166):
1. Physical impossibility for sexual
intercourse within the first 120
days of the 300 days which

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immediately preceded the child's
birth due to:
2. Other biological or scientific
reasons, except Artificial
Insemination.
3. And in case of Artificial
Insemination, the consent of
either parent was vitiated through
fraud, violence, mistake,
intimidation, or undue influence.

Macadangdang v. CA, (1980)
Only a proximate separation between
the spouses is not sufficient physical
separation as grounds for impugning
legitimacy.

Andal v. Macaraig, (1951)
Serious illness of the husband which
absolutely prevented him from having
sexual intercourse with his wife, like if
the husband was already in comatose
or a vegetable, or sick with syphilis in
the tertiary stage so that copulation
was not possible. But tuberculosis,
even in its most crucial stage, does
not preclude copulation between the
sick husband and his wife.

Jao v. CA, (1987)
Blood-type matching is an acceptable
means of impugning legitimacy,
covered by Art. 166(2), under
"biological or other scientific reasons."
But this is only conclusive of the fact of
non-paternity.

Legitimacy with regard to the mother:
1. Child considered legitimate
although (Art. 167):
a. Mother may have declared
against its legitimacy
b. Mother may have been
sentenced as an adulteress
2. If the marriage is terminated
and the mother contracted
another marriage within 300
days after the termination of
the former marriage, the rules
shall govern in the absence of
proof to the contrary (Art 168):
a. If child born before 180
days after the
solemnization of the
subsequent marriage
child is considered
conceived during the
former marriage, provided it
be born within 300 days
after termination of the
former marriage
b. If child born after 180 days
following the celebration of
the subsequent marriage
child is considered
conceived during such
marriage, even if it be born
within 300 days after the
termination of the former
marriage
Note: The legitimacy or
illegitimacy of a child born after
300 days following the
termination of the marriage
burden of proof upon whoever
alleges the status (Art. 169)

Action for Impugning Legitimacy (Arts.
170 and 171)
The action for impugning the
legitimacy of a child may be brought
within 1, 2, or 3 years from the
knowledge of the birth, or the
knowledge of registration of birth.
1. Within 1 year if husband or any
heirs reside in the same city or
municipality where the child was
born or his birth was recorded.
2. Within 2 years if the husband
or all heirs live in the Philippines
but do not reside in the same city
or municipality where the child's
birth took place or was recorded
3. Within 3 years if the husband
or all heirs live outside the
Philippines when the child's birth
took place or was recorded in the
Philippines

If the birth of the child has been
concealed or was unknown to the
husband, the above periods shall be
counted:
1. from the discovery or knowledge

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of the birth of the child, or
2. from the discovery or knowledge
of its registration,
3. whichever is earlier.

General Rule: Only the husband can
impugn the legitimacy of a child. If he
does not bring action within the prescribed
periods, he cannot file such action
anymore thereafter, and this is also true
with his heirs.
Exception: That the heirs of the husband
may file the action or continue the same if
it has already been filed (Art 171)
If the husband died before the
expiration of the period fixed for
bringing his action
a. If he should die after the filing of
the complaint without having
desisted
b. If the child was born after the
death of the husband.

Sayson v. CA
Legitimacy can only be attacked
directly

B. Proof of Filiation (Arts. 172-174)
Rule
Legitimate or illegitimate children may
prove their filiation in the same way
and on the same evidence.

General Rule: They may only prove
their status using the following pieces
of evidence:
1. Their record of birth appearing in
the civil registry.
2. An admission of his filiation
(legitimate or illegitimate) by his
parent or parents in a public
document or a private handwritten
instrument and signed by said
parent or parents. (SEMPIO-DIY)
3. Proof of open and continuous
possession of status as legitimate
or illegitimate child
4. Any other means stated by the
rules of court or special laws
Action for Claiming Filiation (Arts. 173
and 175 (2))
a. The child can bring the action
during his or her lifetime and even
after the death of the parents. The
action does not prescribe as long
as he lives.
b. If the child is a minor, or is
incapacitated or insane, his
guardian can bring the action in his
behalf.

Rights of Legitimate Children (Art.
174)
a. To bear the surnames of the father
and the mother, in conformity with
the provisions of the Civil Code on
Surnames
b. To receive support from their
parents, their ascendants, and in
proper cases, their brothers and
sisters, in conformity with the
provisions of this Code on Support
c. To be entitled to the legitimate and
other successional rights granted
to them by the Civil Code

C. Illegitimate Children (Art. 175 and
Art. 176 as amended by RA 9255)

General Rule: Illegitimate children
may establish their illegitimate filiation
in the same way and on the same
evidence as legitimate children (Art.
175)

Action for Claiming Filiation (Art.
175):
a. The child can bring the action
during his or her lifetime and even
after the death of the parents. The
action does not prescribe as long
as he lives.
- If the child is a minor, or is
incapacitated or insane, his
guardian can bring the action in
his behalf.
b. During the lifetime of the alleged
parent when the action is based on
open and continuous possession
of the status of a legitimate child
and any other means allowed by
the Rules of Court and special
laws action

Mendoza v. Melia, 17 SCRA 788
Baptismal certificates are given
probative value only for births
before 1930. Birth certificates
must be signed by the parents

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and sworn for it to be admitted as
evidence.
Baluyut v. Baluyut, (1990)
Unsigned birth certificates are not
evidence of recognized filiation.
Acebedo v. Arquero, (2003)
Baptismal certificates are only
conclusive of the sacrament
administered, and cannot be used
as proof of filiation.
Lim v. CA, (1975)
Marriage certificates cannot be
used as proof of filiation.

Jison v. CA, (1998)
Rule 130, Sec. 40 is limited to
objects commonly known as family
possessions reflective of a family's
reputation or tradition regarding
pedigree like inscriptions on
tombstones, monuments, or coffin
plates.
Eceta v. Eceta (2004)
Signature of the father on the birth
certificate is considered as an
acknowledgement of paternity and
mere presentation of a duly
authenticated copy of such
certificate will successfully
establish filiations.
Heirs of Rodolfo Baas v. Heirs of
Bibiano Baas, (1985)
"Su padre [Your father]" ending in
a letter is only proof of paternal
solicitude and not of actual
paternity. Signature on a report
card under the entry of
"Parent/Guardian" is likewise
inconclusive of open admission.
De Jesus v. Syquia, (1933)
By "open and continuous
possession of the status of a
legitimate child" is meant the
enjoyment by the child of the
position and privileges usually
attached to the status of a
legitimate child, like bearing the
paternal surname, treatment by the
parents and family of the child as
legitimate, constant attendance to
the child's support and education,
and giving the child the reputation
of being a child of his parents.
Agustin v. CA, (2005)
DNA evidence can be used as
proof of paternity.
De Jesus v. Estate of Decedent
Juan Gamboa Dizon (2001)
The due recognition of an
illegitimate child in a record of
birth, a will, a statement before a
court of record, or in any authentic
writing, is in itself a consummated
act of acknowledgement of the
child, and no further court action is
required.
Gono-Javier vs. Court of Appeals,
(1994)
Mere possession of status as an
illegitimate child does not make a
recognized illegitimate child but is
only a ground for bringing an
action to compel judicial
recognition by the assumed
parent.
Herrera v. Alba, (2005)
In assessing the probative value of
DNA evidence, therefore, courts
should consider, among other
things, the following data:
o How the samples were
collected,
o How they were handled,
o The possibility of
contamination of the
samples,
o The procedure followed in
analyzing the samples,
o Whether the proper
standards and procedures
were followed in conducting
the tests,
o and the qualification of the
analyst who conducted the
tests.

Estate of Rogelio Ong v. Diaz,
(2007)
DNA evidence can still be used
even after the death of the parent.

Rights of Illegitimate Child (Art 176):
a. Must use the surname and be
under the parental authority of the
mother
b. However, may use the surname of
their father if
- Their filiation has been
expressly recognized by the
father through the record of

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birth appearing in the civil
register.
- There is an admission in a
public document or private
handwritten instrument made
by the father.
- Provided, the father has the
right to institute an action
before the regular courts to
prove non-filiation during his
lifetime (RA 9255)
c. Shall be entitled to support in
conformity with the Family Code
d. Legitime shall consist of one-half
of the legitimes of a legitimate
child. Except for such modification,
all other provisions of the Civil
Code governing successional
rights shall remain in force

D. Legitimated Children (Art. 177-182)
"Legitimated" children are illegitimate
children who because of the
subsequent marriage of their parents
are, by legal fiction, considered
legitimate.
Requisites for legitimation
1. The child was conceived and born
outside of wedlock (Art 177)
2. General rule: The parents, at the
time of the child's conception, were
not disqualified by any impediment
to marry each other.
Exception: RA 9858 - Children born to
parents who were so disqualified only
because either or both of them were
below eighteen (18) years of age at
the time of childs conception may be
legitimated.
Procedure: Legitimation shall take
place by a subsequent valid marriage
between parents. The annulment of a
voidable marriage shall not affect the
legitimation. (Art 178)
Grounds for impugning
legitimation
1. The subsequent marriage of the
child's parents is void.
2. The child allegedly legitimated is
not natural.
3. The child is not really the child of
the alleged parents. (SEMPIO-
DIY)

Characteristics
1. Shall enjoy same rights as
legitimate children (Art 179)
2. Effects of legitimation shall retroact
to the time of the childs birth (Art
180)
3. Legitimation of children who died
before the celebration of the
marriage shall benefit their
descendants (Art 181)

Impugning legitimation (Art 182)
1. Only by those who are prejudiced
in their rights
2. Within five years from the time
their cause of action accrues

Q: Rosanna, as surviving spouse, filed
a claim for death benefits with the SSS
upon the death of her husband, Pablo.
She indicated in her claim that the
decedent is also survived by their
minor child, Jeylynn, who was born in
1991. The SSS granted her claim but
this was withdrawn after investigation,
when a sister of the decedent informed
the system that Pablo could not have
sired a child during his lifetime
because he was infertile. However in
Jeylynns birth certificate, Pablo affixed
his signature and he did not impugn
Jeylynns legitimacy during his
lifetime. Was the SSS correct in
withdrawing the death benefits?

A: No. Under Art. 164 of the FC, children
conceived or born during the marriage of
the parents are legitimate. This
presumption becomes conclusive in the
absence of proof that there is physical
impossibility of access under Art. 166.
Further, upon the expiration of the periods
for impugning legitimacy under Art. 170,
and in the proper cases under Art. 171, of
the FC, the action to impugn would no
longer be legally feasible and the status
conferred by the presumption becomes
fixed and unassailable. In this case, there
is no showing that Pablo, who has the
right to impugn the legitimacy of Jeylynn,
challenged her status during his lifetime.
Furthermore, there is adequate evidence
to show that the child was in fact his child,
and this is the birth certificate where he

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affixed his signature. (SSS v. Aguas, et
al.,G.R. No. 165546, Feb. 27, 2006)

Q: In an action for partition of estate,
the trial court dismissed it on the
ground that the respondent, on the
basis of her birth certificate, was in fact
the illegitimate child of the deceased
and therefore the latter's sole heir, to
the exclusion of petitioners. However,
trial court failed to see that in said birth
certificate, she was listed therein as
adopted. Was the trial court correct
in dismissing the action for partition?

A: No. The trial court erred in relying upon
the said birth certificate in pronouncing the
filiation of the respondent. However, since
she was listed therein as adopted, she
should therefore have presented evidence
of her adoption in view of the contents of
her birth certificate. In this case, there is
no showing that she undertook such. It is
well-settled that a record of birth is merely
prima facie evidence of the facts
contained therein. It is not conclusive
evidence of the truthfulness of the
statements made there by the interested
parties. (Rivera v. Heirs of Romualdo
Villanueva, GR No. 141501, July 21,
2006)

Q: In a complaint for partition and
accounting with damages, Ma. Theresa
alleged that she is the illegitimate
daughter of Vicente, and therefore
entitled to a share in the estate left
behind by the latter. As proof, she
presented her birth certificate which
Vicente himself signed thereby
acknowledging that she is his
daughter.
Is the proof presented by Ma. Theresa
sufficient to prove her claim that she is
an illegitimate child of Vicente?

A: Yes. Citing the earlier case of De Jesus
v. Estate of Juan Dizon, (366 SCRA 499),
the Supreme Court held that the Ma.
Theresa was able to establish that Vicente
was in fact her father. The due recognition
of an illegitimate child in a record of birth,
a will, a statement before a court of
record, or in any authentic writing is, in
itself, a consummated act of
acknowledgment of the child, and no
further court action is required. The rule is,
any authentic writing is treated not just as
a ground for compulsory recognition; it is
in itself a voluntary recognition that does
not require a separate action for judicial
approval. (Eceta v. Eceta,G.R. No.
157037, May 20, 2004)

Q: Gerardo filed a complaint for bigamy
against Ma. Theresa, alleging that she
had a previous subsisting marriage
when she married him. The trial court
nullified their marriage and declared
that the son, who was born during their
marriage and was registered as their
son, as illegitimate. What is the status
of the child?

A: The first marriage being found to be
valid and subsisting, whereas that
between Gerardo and Ma. Theresa was
void and non-existent, the child should be
regarded as a legitimate child out of the
first marriage. This is so because the
child's best interest should be the
primordial consideration in this case.

Q: Gerardo and Ma. Theresa, however,
admitted that the child was their son.
Will this affect the status of the child?

A: No. The admission of the parties that
the child was their son was in the nature
of a compromise. The rule is that the
status and filiation of a child cannot be
compromised. Art. 164 of the FC is clear
that a child who is conceived or born
during the marriage of his parents is
legitimate. (Concepcion v. CA,G.R. No.
123450. Aug. 31, 2005)

Q: What is the effect of Ma. Theresas
claim that the child is her illegitimate
child with her second husband to the
status of the child?

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A: None. This declaration an avowal by
the mother that her child is illegitimate is
the very declaration that is proscribed by
Art. 167 of the Family Code. This
proscription is in consonance with, among
others, the intention of the law to lean
towards the legitimacy of children.
(Concepcion v. CA,G.R. No. 123450. Aug.
31, 2005)

Q: In a petition for issuance of letters
of administration, Cheri Bolatis alleged
that she is the sole legitimate daughter
of decedent, Ramon and Van Bolatis.
Phoebe, the decedent's second wife,
opposed the petition and questioned
the legitimate filiation of Cheri to the
decedent, asserting that Cheris birth
certificate was not signed by Ramon
and that she had not presented the
marriage contract between her alleged
parents which would have supported
her claim.

In said birth certificate, it was indicated
that her birth was recorded as the
legitimate child of Ramon and Van
Bolatis, and contains as well the word
"married" to reflect the union between
the two. However, it was not signed by
Ramon and Vanemon Bolatis. It was
merely signed by the attending
physician, who certified to having
attended to the birth of a child. Does
the presumption of legitimacy apply to
Cherimon?

A: No. Since the birth certificate was not
signed by Cher's alleged parents but was
merely signed by the attending physician,
such a certificate, although a public record
of a private document is, under Section
23, Rule 132 of the Rules of Court,
evidence only of the fact which gave rise
to its execution, which is, the fact of birth
of a child. A birth certificate, in order to be
considered as validating proof of paternity
and as an instrument of recognition, must
be signed by the father and mother jointly,
or by the mother alone if the father
refuses. There having been no convincing
proof of respondent's supposed legitimate
relations with respect to the decedent, the
presumption of legitimacy under the law
did not therefore arise in her favor.
(Angeles v. Angeles-Maglaya, G.R. No.
153798, Sept.2, 2005)

Q: On the basis of the physical
presentation of the plaintiff-minor
before it and the fact that the alleged
father had admitted having sexual
intercourse with the child's mother, the
trial court, in an action to prove filiation
with support, held that the plaintiff-
minor is the child of the defendant with
the plaintiff-minor's mother. Was the
trial court correct in holding such?

A: No. In this age of genetic profiling and
DNA analysis, the extremely subjective
test of physical resemblance or similarity
of features will not suffice asevidence to
prove paternity and filiation before courts
of law. This only shows the very high
standard of proof that a child must present
in order to establish filiation.

Note: The birth certificate that was
presented by the plaintiff-minor appears to
have been prepared without the
knowledge or consent of the putative
father. It is therefore not a competent
piece of evidence on paternity. The local
civil registrar in this case has no authority
to record the paternity of an illegitimate
child on the information of a third person.
Similarly, a baptismal certificate, while
considered a public document, can only
serve as evidence of the administration of
the sacrament on the date specified
therein but not the veracity of the entries
with respect to the child's paternity
(Macadangdang v. CA, 100 SCRA 73).
Thus, certificates issued by the local civil
registrar and baptismal certificates are per
se inadmissible in evidence as proof of
filiation and they cannot be admitted
indirectly as circumstantial evidence to
prove the same (Jison v. CA, 350 Phil.
138). (Cabatania v. CA, G.R. No. 124814.
Oct. 21, 2004)

Q: Are children born of parents, who at
the time of conception and birth, were
minors may be legitimated?

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A: Yes. RA 9858 amended Art. 177 of the
Family Code in allowing 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 eighteen (18) years of
age, to be legitimated.

Q: Roderick and Faye were high school
sweethearts. When Roderick was 18
and Faye, 16 years old, they started
living together as husband and wife
without the benefit of marriage. When
Faye reached 18 years of age, her
parents forcibly took her back and
arranged for her marriage to Brad.
Although Faye lived with Brad after the
marriage, Roderick continued to
regularly visit Faye while Brad was
away at work. During their marriage,
Faye gave birth to a baby girl, Laica.
When Faye was 25 years old, Brad
discovered her continued liaison with
Roderick and in one of their heated
arguments, Faye shot Brad to death.
She lost no time in marrying her true
love Roderick, without a marriage
license, claiming that they have been
continuously cohabiting for more than
5 years.

Was the marriage of Roderick and Faye
valid?

A: The marriage was void because there
was no marriage license. Their marriage
was not exempt from the requisite of a
marriage license because Roderick and
Faye have not been cohabiting for at least
5 continuous years before the celebration
of their marriage. Their lovers trysts and
brief visitations did not amount to
cohabitation. Moreover, the Supreme
Court held that for the marriage to be
exempt from a license, there should be no
impediment for them to marry each other
during the entire 5 years of cohabitation.
Roderick and Faye could not have
cohabited for 5 years of cohabitation.
Roderick and Faye could not have been
cohabited for 5 continuous years without
impediment because Faye was then
legally married to Brad. (2008 Bar
Question)

What is the filiation status of Laica?

A: Having been born during the marriage
of Faye and Brad, she is presumed to be
the legitimate child of Faye and Brad, she
is presumed to be the legitimate child of
Faye and Brad. This presumption had
become conclusive because the period of
time to impugn her filiation had already
prescribed.

Can Laica bring an action to impugn
her own status on the ground that
based on DNA results, Roderick is her
biological father?

A: No, she cannot impugn her own
filiation. The law does not allow a child to
impugn his or her own filiation. In the
problem, Laicas legitimate filiation was
accorded to her by operation of law which
may be impugned only by Brad, or his
heirs in the cases provided by law within
the prescriptive period.

Can Laica be legitimated by the
marriage of her biological parents?

A: No she cannot be legitimated by the
marriage of her biological parents. In the
first place she is not, under the law, the
child of Roderick. In the second place, her
biological parents could not have validly
married each other at the time she was
conceived and born simply because Faye
was still married to Roderick at that time.
Under Article 177 of the Family Code, only
children conceived or born outside of
wedlock of parents who, at the time of the
conception of the child were not
disqualified by any impediment to marry
each other, may be legitimated. (2008 Bar
Question)

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TITLE VII. ADOPTION

ADOPTION is a juridical act which creates between two persons a relationship similar to
that which results from legitimate paternity and filiation.
(Asked in 76, 77, 85, 94, 95, 96, 00, 01, 03, 04, 05, 07, 08 bar exams)

A. RA 8552 Domestic Adoption
Law

1. Who can adopt (Sec. 7)

Filipino Citizens
a. Of legal age
b. In possession of full civil
capacity and legal rights
c. Of good moral character
d. Has not been convicted
of any crime involving
moral turpitude
e. Emotionally and
psychologically capable
of caring for children
f. At least sixteen (16)
years older than adoptee,
except when adopter is
biological parent of the
adoptee or is the spouse
of the adoptees parent
g. In a position to support
and care for his/her
children in keeping with
the means of the family

Aliens
a. Possession of the same
as the qualifications for
Filipinos
b. His/her country has
diplomatic relations with
the Philippines
c. Has been living
continuously for 3 years
(provided that absences
not exceeding 60 days
per 1 year for
professional, business, or
emergency reasons are
allowed) in RP prior to
the filing of application
and maintains such
residence until the decree
is entered
d. Has been certified by
his/her diplomatic or
consular office or any
appropriate government
agency that he/she has
the legal capacity to
adopt in his/her country
e. His/her government
allows the adoptee to
enter his/her country as
his/her adoptee
f. Has submitted all the
necessary clearances
and such certifications as
may be required

**Items numbers c, d
and e may be waived
under the following
circumstances:
a. Adopter is a former
Filipino Citizen who
seeks to adopt a relative
within the 4
th
degree of
consanguinity or affinity

b. One who seeks to adopt
the legitimate or
illegitimate child of his/her
Filipino spouse
LEGITIMATION ADOPTION

The law merely makes legal what
exists by nature
The law merely creates by fiction
a relation which did not in fact
exist
Persons
affected
Only natural children Generally applies to strangers
Procedure Extrajudicial acts of parents Always by judicial decree
Who applies
Only by both parents
Husband and wife adopt jointly
with exceptions (RA8552)
Effect Same status and rights with that
of a legitimate child not only in
relation to the legitimizing
parents but also to other relatives
Creates a rel. only between the
child and the adopting parents

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c. One who is married to a
Filipino Citizen and seeks
to adopt jointly with
his/her spouse a relative
within the 4
th
degree of
consanguinity or affinity
of the Filipino spouse

Guardians
With respect to theirs
ward after the termination
of the guardianship and
clearance of his/her
accountabilities.

Husband and wife shall adopt
jointly, EXCEPT
1. if one spouse seeks to
adopt the legitimate child
of the other
2. if one of the spouse
seeks to adopt his/her
illegitimate child provided
that other spouse has
signified his/her consent
3. if spouses are legally
separated from each
other
** if spouses jointly adopt,
parental authority shall be
exercised jointly

2. Who can be adopted (Sec. 8)

a. Any person below 18 years old
who has been administratively
or judicially declared available
for adoption
b. The legitimate child of one
spouse by the other spouse
c. An illegitimate child by a
qualified adopter to improve
the childs status to that of
legitimacy
d. A person of legal age if, prior to
the adoption, said person has
been consistently considered
and treated by the adopter(s)
as his/her child since minority
e. A child whose previous
adoption has been rescinded
f. A child whose biological or
adoptive parent(s) has died,
provided that no proceedings
shall be initiated within 6
months from the time of death
of said parent(s)

Consent Necessary for Adoption
(Sec. 9)
1. The prospective adoptee if 10
years or older
2. The prospective adoptees
biological parents, legal
guardian or the government
instrumentality or institution
that has custody of the child
3. The prospective adopters
legitimate and adopted children
who are ten years or over and,
if any, illegitimate children
living with them
4. The spouse, if any, of the
person adopting or to be
adopted.

Note: A decree of adoption shall be
effective as of the date the original
petition was filed. It also applies in
case the petitioner dies before the
issuance of the decree of adoption
to protect the interest of the adoptee.

Child to be Adopted Adopter
Biological parent signs a Deed of
Voluntary Commitment (Rescissible
within 6 months)
Inquiry at DSWD
Voluntary Commitment: Declaration of
Availability for Adoption
Attendance of DSWD Adoption Fora and
Seminars (include counseling)
Involuntary Commitment:
(1) Announcement of Missing Child in
Tri-Media
(2) Declaration of Abandonment
(3) Declaration of Availability for
Adoption
Case Study Report Application for Adoption
Case Study Report
Matching
Placement

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Supervised Trial Custody
Home Study Report
Recommendation and Consent
Petition for Adoption
Adoption Decree

3. Rights of an adopted child
(Secs. 16-18)
a. Parental Authority
All legal ties between
biological parents and
adoptee are severed, and
the same shall be vested
on the adopter, except if
the biological parent is
the spouse of the
adopter.

b. Legitimacy
The adoptee shall be
considered legitimate
son/daughter of the
adopter for all intents and
purposes and shall be
entitled to all the rights
and obligations provided
by law to legitimate
children born to them
without discrimination of
any kind.

c. Succession
Adopter and adoptee
shall have reciprocal
rights of succession
without distinction from
legitimate filiation, in legal
and intestate succession.
If adoptee and his/her
biological parents had left
a will, the law on
testamentary succession
shall govern.

Art. 189. Adoption shall have the
following effects:
(1) For civil purposes, the
adopted shall be deemed to be a
legitimate child of the adopters
and both shall acquire the
reciprocal rights and obligations
arising from the relationship of
parent and child, including the
right of the adopted to use the
surname of the adopters;
(2) The parental authority of the
parents by nature over the
adopted shall terminate and be
vested in the adopters, except
that if the adopter is the spouse
of the parent by nature of the
adopted, parental authority over
the adopted shall be exercised
jointly by both spouses; and
(3) The adopted shall remain an
intestate heir of his parents and
other blood relatives.

Art. 190. Legal or intestate
succession to the estate of the adopted
shall be governed by the following rules:

(1) Legitimate and illegitimate
children and descendants and
the surviving spouse of the
adopted shall inherit from the
adopted, in accordance with the
ordinary rules of legal or
intestate succession;
(2) When the parents, legitimate
or illegitimate, or the legitimate
ascendants of the adopted
concur with the adopter, they
shall divide the entire estate,
one-half to be inherited by the
parents or ascendants and the
other half, by the adopters;
(3) When the surviving spouse or
the illegitimate children of the
adopted concur with the
adopters, they shall divide the
entire estate in equal shares,
one-half to be inherited by the
spouse or the illegitimate
children of the adopted and the
other half, by the adopters.
(4) When the adopters concur
with the illegitimate children and
the surviving spouse of the
adopted, they shall divide the
entire estate in equal shares,
one-third to be inherited by the
illegitimate children, one-third by
the surviving spouse, and one-
third by the adopters;

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(5) When only the adopters
survive, they shall inherit the
entire estate; and
(6) When only collateral blood
relatives of the adopted survive,
then the ordinary rules of legal or
intestate succession shall apply.

CC, Art. 365. An adopted child shall
bear the surname of the adopter.

4. Rescission of adoption
Adoption, being in the best interest
of the child, shall not be subject to
rescission by the adopter(s).
Adopted may request for rescission,
with the assistance of DSWD, if a
minor, or over 18 but incapacitated,
based on the ff grounds:
1. repeated physical and verbal
maltreatment despite having
undergone counseling
2. attempt on life of adoptee
3. sexual assault or violence
4. abandonment or failure to
comply with parental obligations

However, the adopter(s) may
disinherit the adopted based on
causes as enumerated in Art. 919 of
the NCC.

Effects of Rescission (Sec. 20)
1. The parental authority of the
adoptee's biological parents, if
known, OR the legal custody of
the DSWD shall be restored if
the adoptee is still a minor or
incapacitated.
2. The reciprocal rights and
obligations of the adopters and
the adoptee to each other shall
be extinguished.
3. The court shall order the Civil
Registrar to cancel the amended
certificate of birth of the adoptee
and restore his/her original birth
certificate.
4. Successional rights shall revert
to its status prior to adoption, but
only as of the date of judgment
of judicial rescission. Vested
rights acquired prior to judicial
rescission shall be respected.

B. RA 8043, The Law on Inter-
Country Adoption

INTER-COUNTRY ADOPTION refers to
the socio-legal process of adopting a
Filipino child by a foreigner or a Filipino
citizen permanently residing abroad
where the petition is filed, the
supervised trial custody is undertaken,
and the decree of adoption is issued
outside the Philippines.

1. Who can adopt (Sec. 9)
Any foreign national or a Filipino
citizen permanently residing abroad
who has the qualifications and none
of the disqualifications under the
Act may file an application if he/she:
a. Is at least 27 years of age and at
least 16 years older than the
child to be adopted, at the time
of application unless the adopter
is the parent by nature of the
child to be adopted or the
spouse of such parent
b. If married, his/her spouse must
jointly file for the adoption
c. Has the capacity to act and
assume all rights and
responsibilities of parental
authority under his national laws,
and has undergone the
appropriate counseling from an
accredited counselor in his/her
country
d. Has not been convicted of a
crime involving moral turpitude
e. Is eligible to adopt under his/her
national law
f. Is in a position to provide the
proper care and support and to
give the necessary moral values
and example to all his children,
including the child to be adopted
g. Agrees to uphold the basic rights
of the child as embodied under
Philippine laws, the U.N.
Convention on the Rights of the
Child, and to abide by the rules
and regulations issued to
implement the provisions of this
Act
h. Comes from a country with
whom the Philippines has
diplomatic relations and whose
government maintains a similarly
authorized and accredited
agency and that adoption is
allowed under his/her national
laws

7. Who can be adopted (Sec. 8)

a. Only a legally-free child may be
the subject of inter-country
adoption.

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CIVIL LAW
b. A legally-free child is one who
has been voluntarily or
involuntarily committed to the
DSWD of the Philippines, in
accordance with the Child and
Youth Welfare Code.
c. No child shall be matched to a
foreign adoptive family unless it
is satisfactorily shown that the
child cannot be adopted locally.
d. In order that such child may be
considered for placement, the
following documents must be
submitted to the Board:
Child study
Birth Certificate / Foundling
Certificate
Deed of Voluntary
Commitment/ Decree of
Abandonment/ Death
Certificate of parents
Medical Evaluation / History
Psychological Evaluation, as
necessary
Recent photo of the child

Cases

Tamargo v. CA (1992)Where the
petition for adoption was granted
after the child had shot and killed a
girl, the Supreme Court did not
consider that retroactive effect may
be given to the decree of adoption
so as to impose a liability upon the
adopting parents accruing at a time
when adopting parents had no
actual or physically custody over the
adopted child. Retroactive effect
may perhaps be given to the
granting of the petition for adoption
where such is essential to permit the
accrual of some benefit or
advantage in favor of the adopted
child. In the instant case, however,
to hold that parental authority had
been retroactively lodged in the
adopting parents so as to burden
them with liability for a tortuous act
that they could not have foreseen
and which they could not have
prevented would be unfair and
unconscionable.

Lazatin v. Campos (1979)
Adoption is a juridical act,
proceeding in rem. Because it is
artificial, the statutory requirements
in order to prove it must be strictly
carried out. Petition must be
announced in publications and only
those proclaimed by the court are
valid. Adoption is never presumed.

Santos v. Aranzanso, (1966)
Validity of facts behind a final
adoption decree cannot be
collaterally attacked without
impinging on that courts jurisdiction.

DSWD v. Belen, (1997)
Participation of the appropriate
government instrumentality in
performing the necessary studies
and precautions is important and is
indispensable to assure the childs
welfare.

Landingin v. Republic, (2006)
Consents for adoption must be
written and notarized.

Sayson v. CA. (1992)Adopted
children have a right to represent
their adopters in successional
interests. (Although an adopted
child shall be deemed to be a
legitimate child and have the same
rights as the latter, these rights do
not include the right of
representation. The relationship
created by the adoption is between
only the adopting parents and the
adopted child. It does not extend to
the blood relatives of either party.)

Republic v Hernandez (1996)The
change of surname of the adoptee
as a result of the adoption and to
follow that of the adopter does not
lawfully extend to or include the
proper or given name. The birth
certificate, as it appears in the civil
register, contains the official name. It
does not matter if the mother, with
all intention to abandon it later,
named the child for the sake of
naming it. If they really want to
change the name, they institute
another action under Rule 103 of the
Rules of Court.

Q: Spouses Primo and Monica Lim,
childless, were entrusted with the
custody of two minor children, the
parents of whom were unknown.
Eager of having children of their own,
the spouses made it appear that they
were the childrens parents by
naming them Michelle P. Lim and
Michael Jude Lim.

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Subsequently, Monina married Angel
Olario after Primos death of her
husband. She decided to adopt the
children by availing the amnesty
given under R.A. 8552 to those
individuals who simulated the birth of
a child. She filed separate petitions
for the adoption of Michelle, then 25
years old and Michael, 18. Both
Michelle and Michael gave consent to
the adoption.

The trial court dismissed the petition
and ruled that Monina should have
filed the petition jointly with her new
husband. Monina, in a Motion for
Reconsideration argues that mere
consent of her husband would suffice
and that joint adoption is not needed,
for the adoptees are already
emancipated.
Is the trial court correct in dismissing
the petitions for adoption?

A: Yes. Section 7 Article 3 of R.A. 8552
reads: Sec. 7 Husband and wife shall
jointly adopt, xxx. The use of the word
shall in the above-quoted provision
means that joint adoption by the
husband and the wife is mandatory. This
is in consonance with the concept of
joint parental authority over the child
which is the ideal situation. As the child
to be adopted is elevated to the level of
a legitimate child, it but natural to require
the spouses to adopt jointly. The rule
also ensures harmony between the
spouses.

The law is clear. There is no room for
ambiguity. Monina, having remarried at
the time the petitions for adoption were
filed, must jointly adopt. Since the
petitions for adoption were filed only by
Monina herself, without joining her
husband, Olario, the trial court was
correct in denying the petitions for
adoption on this ground. (In Re: Petition
for Adoption of Michelle P. Lim, In Re:
Petition for Adoption of Michael Jude P.
Lim, Monina P. Lim, G.R. Nos. 168992-
93, May 21, 2009)

Q: Is joint adoption still needed when
the adoptees are already
emancipated?

A: Yes. Even if emancipation terminates
parental authority, the adoptee is still
considered a legitimate child of the
adopter with all the rights of a legitimate
child such as: (1) to bear the surname of
the father and the mother; (2) to receive
support from their parents; and (3) to be
entitled to the legitime and other
successional rights. Conversely, the
adoptive parents shall, with respect to
the adopted child, enjoy all the benefits
to which biological parents are entitled
such as support and successional rights.

Q: Bernadette filed a petition for
adoption of the three minor children
of her late brother, Ian. She alleged
that when her brother died, the
children were left to the care of their
paternal grandmother, Anna, who
went to Italy. This grandmother died
however, and so she filed the petition
for adoption. The minors gave their
written consent to the adoption and
so did all of her own grown-up
children. The trial court granted the
decree of adoption even though the
written consent of the biological
mother of the children was not
adduced by Bernadette. Was the trial
court correct in granting the decree
of adoption?

A: No. The rule is adoption statutes
must be liberally construed in order to
give spirit to their humane and salutary
purpose which is to uplift the lives of
unfortunate, needy or orphaned
children. However, the discretion to
approve adoption proceedings on the
part of the courts should not to be
anchored solely on those principles, but
with due regard likewise to the natural
rights of the parents over the child. The
written consent of the biological parents
is indispensable for the validity of the
decree of adoption. Indeed, the natural
right of a parent to his child requires that
his consent must be obtained before his
parental rights and duties may be
terminated and vested in the adoptive
parents. In this case, since the minors'
paternal grandmother had taken custody
of them, her consent should have been
secured instead in view of the absence
of the biological mother. This is so under
Sec. 9 (b) of R.A. 8552, otherwise
known as the Domestic Adoption Act of
1998. Diwata failed in this respect, thus
necessitating the dismissal of her
petition for adoption. (Landingin v.
Republic,G.R. No. 164948, June 27,
2006)

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Q: On what grounds may an adoptee
seek the rescission of the adoption?

A:
1. Attempt on the life of the adoptee;
2. Sexual assault or violence;
3. Abandonment and failure to comply
with parental obligations;
4. Repeated physical or verbal
maltreatment by the adopter.
Note: Adopter cannot rescind but may
disinherit the adoptee.

Q: What are the grounds by which an
adopter may disinherit adoptee?

A:
1. Groundless accusation against the
testator of a crime punishable by 6 years
or more imprisonment;
2. Found guilty of attempt against the life
of the testator, his/her spouse,
descendant or ascendant;
3. Causes the testator to make changes
or changes a testators will through
violence, intimidation, fraud or undue
influence;
4. Maltreatment of the testator by word
or deed;
5. Conviction of a crime which carries a
penalty of civil interdiction;
6. Adultery or concubinage with the
testators wife;
7. Refusal without justifiable cause to
support the parent or ascendant;
8. Leads a dishonorable or disgraceful
life.

Q: What are the effects of adoption?

A:
1. GR: Severance of all legal ties
between the biological parents and the
adoptee and the same shall then be
vested on the adopters

XPN: In cases where the biological
parent is the spouse of the adopter;

2. Deemed a legitimate child of the
adopter;
3. Acquires reciprocal rights and
obligations arising from parent-child
relationship;
4. Right to use surname of adopter;
5. In legal and intestate succession, the
adopters and the adoptee shall have
reciprocal rights of succession without
distinction from legitimate filiation.
However, if the adoptee and his/her
biological parents had left a will, the law
on testamentary succession shall
govern.

Q: State the effects of rescission of
the adoption in the Domestic
Adoption Act of 1998 (RA 8552).

A:
1. If adoptee is still a minor or is
incapacitated:

Restoration of:
a. Parental authority of
the adoptees biological
parents, if known or
b. Legal custody of the
DSWD;

2. Reciprocal rights and obligations of
the adopters and adoptee to each other
shall be extinguished;
3. Court shall order the civil registrar to
cancel the amended certificate of birth of
the adoptee and restore his/her original
birth certificate;
4. Succession rights shall revert to its
status prior to adoption, but only as of
the date of judgment of judicial
rescission;
5. Vested rights acquired prior to judicial
rescission shall be respected.

Q: Despite several relationships with
different women, Andrew remained
unmarried. His first relationship with
Brenda produced a daughter, Amy,
now 30 years old. His second, with
Carla, produced two sons: Jon and
Ryan. His third, with Donna, bore him
two daughters: Vina and Wilma. His
fourth, while Elena, bore him no
children although Elena has a
daughter Jane, from a previous
relationship. His last, with Fe,
produced no biological children but
they informally adopted without court
proceedings, Sandy, now 13 years
old, whom they consider as their
own. Sandy was orphaned as a baby
and was entrusted to them by the
midwife who attended to Sandys
birth. All the children, including Amy,
now live with Andrew in his house.

Is there any legal obstacle to the legal
adoption of Amy by Andrew; To the
legal adoption of Sandy by Andrew
and Elena?

A: No, there is no legal obstacle to the
legal adoption of Amy by Andrew. While

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a person of age may not be adopted,
Amy falls within two exceptions: (1) she
is an illegitimate child and she is being
adopted by her illegitimate father to
improve her status; and (2) even on the
assumption that she is not an illegitimate
child of Andrew, she may still be
adopted, although of legal age, because
she has been consistently considered
and treated by the adopter as his own
child since minority. In fact, she has
been living with him until now.

There is a legal obstacle to the adoption
of Sandy by Andrew and Elena. Andrew
and Elena cannot adopt jointly because
they are not married.

In his old age, can Andrew be legally
entitled to claim support from Amy, Jon,
Ryan, Vina, Wilma and Sandy assuming
that all of them have the means to
support him?
A: Andrew can claim support from them
all, except from Sandy, who is not his
child, legitimate, illegitimate or adopted.

Can Amy, Jon, Ryan, Vina, Wilma and
Sandy legally claim support from
each other?

A: Amy, Jon, Ryan, Vina and Wilma can
ask support from each other because
they are half-blood brothers and sisters,
and Vina and Wilma are full-blood
sisters (Art. 195 [5], Family Code), but
not Sandy who is not related to any of
them.

Can Jon and Jane legally marry?

A: Jon and Jane can legally marry
because they are not related to each
other. Jane is not a daughter of Andrew.
(2008 Bar Question)

Q: Sometime in 1990, Sarah, born a
Filipino but by then a naturalized
American citizen, and her
American husband Sonny Cruz, filed
a petition in the Regional Trial Court
of Makati, for the adoption of the
minor child of her sister, a Filipina,
can the petition be granted?

A: It depends. If Sonny and Sarah have
been residing in the Philippines for at
least 3 years prior to the effectivity of
R.A. 8552, the petition may be granted.
Otherwise, the petition cannot be
granted because the American husband
is not qualified to adopt.

While the petition for adoption was filed
in 1990, it was considered refiled upon
the effectivity of R.A. 8552. This is the
law applicable, the petition being still
pending with the lower court. Under the
Act, Sarah and Sonny must adopt jointly
because they do not fall in any of the
exceptions where one of them may
adopt alone. When husband and wife
must adopt jointly, the Supreme Court
has held in a line of cases that both of
them must be qualified to adopt. While
Sarah, an alien, is qualified to adopt, for
being a former Filipino citizen who seeks
to adopt a relative within the 4th degree
of consanguinity or affinity, Sonny, an
alien, is not qualified to adopt because
he is neither a former Filipino citizen nor
married to a Filipino. One of them not
being qualified to adopt, their petition
has to be denied. However, if they have
been residents of the Philippines 3 years
prior to the effectivity of the Act and
continues to reside here until the decree
of adoption is entered, they are qualified
to adopt the nephew of Sarah under Sec
7(b) thereof, and the petition may be
granted. (2000 Bar Question)

TITLE VIII. SUPPORT

Support

Support comprises everything
indispensable for sustenance, dwelling,
clothing, medical assistance and
transportation, in keeping with the
financial capacity of the family, including
the education of the person entitled to
be supported until he completes his
education or training for some
profession, trade or vocation, even
beyond the age of majority. (Art. 194,
FC)

Characteristics

A: PRIM PEN
1. Personal
2. Reciprocal on the part of those who
are by law bound to support each other
3. Intransmissible
4. Mandatory
5. Provisional character of support
judgment
6. Exempt from attachment or execution

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CIVIL LAW
7. Not subject to waiver or
compensation

Support comprises of everything
indispensable for: SDC MET
1. Sustenance
2. Dwelling
3. Clothing
4. Medical attendance
5. Education includes schooling or
training for some profession, trade.

Object/ Scope

Support comprises everything
indispensable for sustenance, dwelling,
clothing, medical attendance, education
and transportation, in keeping with the
financial capacity of the family.

The education of the person entitled to
be supported referred to in the
preceding paragraph shall include his
schooling or training for some
profession, trade or vocation, even
beyond the age of majority.
Transportation shall include expenses in
going to and from school, or to and from
place of work.

Kinds of support:

a. As to amount:

Natural (bare necessities of life)
Civil (in accordance with financial
standing)

b. As to source of obligations:
Legal (from provision of law)
Voluntary (from agreement or
from provision of a will)

c. Special kind (alimony pendente
lite)

Subjects of support the following are
obliged to support each other to the
whole extent set forth under Art. 194:
a. The spouses
b. Legitimate ascendants and
descendants
c. Parents and their legitimate
children and the legitimate and
illegitimate children of the latter
d. Parents and their illegitimate
children and the legitimate and
illegitimate children of the latter
e. Legitimate brothers and sisters,
whether of full or half-blood
f. Brothers and sisters not
legitimately related, whether of
the full or half-blood, are likewise
bound to support each other to
the full extent set forth, except
only when the need for support
of the brother or sister, being of
age, is due to a cause imputable
to the claimants fault or
negligence.

Demandability and performance of
support the obligation to give support
shall be demandable from the time the
person who has a right to receive the
same needs it for maintenance, but it
shall not be paid except from the date of
judicial or extrajudicial demand.

Support pendente lite may be claimed in
accordance with the Rules of Court.

Payment shall be made within the first 5
days of each corresponding month, or
when the recipient dies, his heirs shall
not be obliged to return what he has
received in advance.

Sources of support:

For the support of the legitimate
ascendants; descendants, whether
legitimate or illegitimate; and brothers
and sisters, whether legitimately or
illegitimately related, only the separate
property of the person obliged to give
support shall be answerable provided
that in case the obligor has no separate
property, the absolute community or the
conjugal partnership, if financially
capable, shall advance the support,
which shall be deducted from the share
of the spouse obliged upon the
liquidation of the absolute community or
of the conjugal partnership.

Support from others:

From stranger When, without the
knowledge of the person obliged to give
support, it is given by a stranger, the
latter shall have the right to claim the
same from the former, unless it appears
that he gave it without intention of being
reimbursed.

From a third person When the
person obliged to support another
unjustly refuses or fails to give support
when urgently needed by the latter, any

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CIVIL LAW
third person may furnish support to the
needy individual, with right of
reimbursement from the person obliged
to give support. This Article shall
particularly apply when the father or
mother of a child under the age of
majority unjustly refuses to support or
fails to give support to the child when
urgently needed.

Contractual support In case of
contractual support or that given by will,
the excess in amount beyond that
required for legal support shall be
subject to levy on attachment or
execution.

Furthermore, contractual support shall
be subject to adjustment whenever
modification is necessary due to
changes in circumstances manifestly
beyond the contemplation of the parties.

Exemption from execution The right
to give support as well as any money or
property obtained as such support shall
not be levied upon on attachment or
execution.

Amount of support The amount of
support, in the cases referred to in Art.
195 and 196, shall bee in proportion to
the resources or means of the giver and
to the necessities of the recipient.

Option in giving support the person
obliged to give support shall have the
option to fulfill the obligation either by
paying the allowance fixed, or by
receiving and maintaining in the family
dwelling the person who has a right to
receive support. The latter alternative
cannot be availed of in case there is a
moral or legal obstacle thereto.

Order of support Whenever 2 or
more persons are obliged to give
support, the liability shall devolve upon
the following persons in the order herein
provided:

a. The spouse

b. The descendants in the nearest
degree

c. The ascendants in the nearest
degree

d. The brothers and sisters

Divisions in giving and receiving of
support When the obligation to give
support falls upon 2 or more persons,
the payment of the same shall be
divided between them in proportion to
the resources of each.

However, in case of urgent need and by
special circumstances, the judge may
order only one of them to furnish the
support provisionally, without prejudice
to his right to claim from the other
obligors the share due from them.

When 2 or more recipients at the same
time claim support from one and the
same person legally obliged to give it,
should the latter not have sufficient
means to satisfy all claims, the order
established in the preceding article shall
be followed, unless the concurrent
obliges should be the spouse and a
child subject to parental authority, in
which case the child shall be preferred.

Piecemeal support Support shall be
reduced or increased proportionately,
according to the reduction or increase of
the necessities of the recipient and the
resources or means of the person
obliged to furnish the same.

TITLE IX. PARENTAL AUTHORITY

Concept Pursuant to the natural right
and duty of parents over the person and
property of their unemancipated
children, parental authority and
responsibility shall include the caring for
and rearing of such children for civic
consciousness and efficiency and the
development of their moral, mental and
physical character and well-being.

Nature Parental authority and
responsibility may not be renounced or
transferred except in the cases
authorized by law.

Exceptions - Waivable in the following
cases:

a. When there is guardianship
approved by the court
b. When there is adoption approved
by the court
c. When there is emancipation by
concession

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d. When there is a surrender of the
child to an orphan asylum

Joint parental authority The father
and the mother shall jointly exercise
parental authority over the persons of
their common children. In case of
disagreement, the fathers decision shall
prevail, unless there is a judicial order to
the contrary.

Children shall always observe respect
and reverence towards their parents and
are obliged to obey them as long as the
children are under parental authority.

Continuous exercise of parental
authority In case of absence or death
of either parent, the parent present shall
continue exercising parental authority.
The remarriage of the surviving parent
shall not affect the parental authority
over the children, unless the court
appoints another person to be the
guardian of the person or property of the
children.
Parental authority in case of
separation In case of separation of
the parents, parental authority shall be
exercised by the parent designated by
the Court. The Court shall take into
account all relevant considerations,
especially the choice of the child over
seven years of age, unless the parent
chosen is unfit.

No child under 7 years of age shall be
separated from the mother, unless the
court finds compelling reasons to order
otherwise.

Filial privilege No descendant shall
be compelled, in a criminal case, to
testify against his parents and
grandparents, except when such
testimony is indispensable in a crime
against the descendant or by one parent
against the other.

Under the Rules on Evidence: No
person may be compelled to testify
against his parents, other direct
ascendants, children or other direct
descendants (Rule 130, sec. 25).
Thereupon, should a conflict arise
between this provision and civil code
provision, the latter prevails, since a
procedural rule cannot impair
substantive law.

SUBSTITUTE PARENTAL
AUTHORITY

Order of substitute: in default of
parents or a judicially appointed
guardian, the following persons shall
exercise substitute parental authority
over the child in the order indicated:

1. The surviving grandparent: in case
of death, absence or unsuitability of
the parents, substitute parental
authority shall be exercised by the
surviving grandparent. In case
several survive, the one designated
by the court, taking into account the
same consideration mentioned
under Art. 213, shall exercise the
authority.
2. The oldest brother or sister, over 21
years of age, unless unfit or
disqualified.
3. The childs actual custodian, over 21
years of age, unless unfit or
disqualified.

Whenever the appointment of a judicial
guardian over the property of the child
becomes necessary, the same order of
preference shall be observed.

Parental authority for Foundlings: In
case of foundlings, abandoned,
neglected or abused children and other
children similarly situated, parental
authority shall be entrusted in summary
judicial proceedings to heads of
childrens homes, orphanages and
similar institutions duly accredited by the
proper government agency.

SPECIAL PARENTAL AUTHORITY

The school, its administrators and
teachers, or the individual, entity or
institution engaged in child care shall
have special parental authority and
responsibility over the minor child while
under their supervision, instruction or
custody.

Authority and responsibility shall apply
to all authorized activities whether inside
or outside the premises of the school,
entity or institution.

LIABILITIES

Those given the special parental
authority shall be principally and
solidarily liable for damages caused

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by the acts or omissions of the
unemancipated minor.

The parents, judicial guardians or the
persons exercising substitute
parental authority over said minor
shall be subsidiarily liable.

The respective liabilities shall not
apply if it is proved that they
exercised the proper diligence
required under the particular
circumstances.

All other cases not covered by this
and the preceding articles shall be
governed by the provisions on quasi-
delicts.

Parents and other persons exercising
parental authority shall be civilly
liable for the injuries and damages
caused by the acts or omissions of
their unemancipated children living in
their company and under their
parental authority subject to the
appropriate defenses provided by
law.

In no case shall the school
administrator, teacher or individual
engaged in child care exercising
special parental authority inflict
corporal punishment upon the
child.

EFFECTS OF PARENTAL
AUTHORITY

UPON PERSON

See enumeration under Art. 220

Disciplinary measures:

The parents or, in their absence or
incapacity, the individual, entity or
institution exercising parental authority,
may petition the proper court of the
place where the child resides, for an
order providing for disciplinary measures
over the child. The child shall be entitled
to the assistance of counsel, either of
his choice or appointed by the court, and
a summary hearing shall be conducted
wherein the petitioner and the child shall
be heard.

However, if in the same proceeding the
court finds the petitioner at fault,
irrespective of the merits of the petition,
or when the circumstances so warrant,
the court may also order the deprivation
or suspension of parental authority or
adopt such other measures as it may
deem just and proper.

The measures referred to in the
preceding article may include the
commitment of the child for not more
than 30 days in entities or institutions
engaged in child care or in childrens
homes duly accredited by the proper
government agency.

The parent exercising parental authority
shall not interfere with the care of the
child whenever committed but shall
provide for his support. Upon proper
petition or at its own instance, the court
may terminate the commitment of the
child whenever just and proper.

UPON PROPERTY

The father and mother shall jointly
exercise legal guardianship over the
property of their unemancipated
common child without the necessity of a
court appointment. In case of
disagreement, the fathers decision shall
prevail, unless there is a judicial order to
the contrary.

Where the marked value of the property
or the annual income of the child
exceeds P50,000, the parent concerned
shall be required to furnish a bond in
such amount as the court may
determine, but not less than 10% of the
value of the property or annual income,
to guarantee the performance of the
obligations prescribed for general
guardians.

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CIVIL LAW

Appointment of guardian over the
property: The courts may appoint a
guardian of the childs property, or a
guardian ad litem when the best
interests of the child so requires.

Disposition of the property of an
unemancipated child: The property of
the unemancipated child earned or
acquired with his work or industry or by
onerous or gratuitous title shall belong to
the child in ownership and shall be
devoted exclusively to the latters
support and education, unless the title or
transfer provides otherwise.

The right of the parents over the fruits
and income of the childs property shall
be limited primarily to the childs support
and secondarily to the collective daily
needs of the family.

ADMINISTRATION OF THE CHILD OF
THE PARENTS PROPERTY

If the parents entrust the management
or administration of any of their
properties to an unemancipated child,
the net proceeds of such property shall
belong to the owner. The child shall be
given a reasonably monthly allowance in
an amount not less than that which the
owner would have been paid if the
administrator were a stranger, unless
the owner, grants the entire proceeds to
the child. In any case, the proceeds thus
given in whole or in part shall not be
charged to the childs legitime.

TERMINATION OF PARENTAL
AUTHORITY

Permanent: Parental authority
terminates permanently:

a. Upon the death of the parents
b. Upon the death of the child
c. Upon emancipation of the child
d. If the person exercising parental
authority has subjected the child
or allowed him to be subjected to
sexual abuse, such person shall
be permanently deprived by the
court of such authority.

Temporary: Unless subsequently
revived by a final judgment, parental
authority also terminates:

a. Upon adoption of the child
b. Upon appointment of a general
guardian
c. Upon judicial declaration of
abandonment of the child in a
case filed for the purpose
d. Upon final judgment of a
competent court divesting the
party concerned of parental
authority
e. Upon judicial declaration of
absence or incapacity of the
person exercising parental
authority.

SUSPENSION OF PARENTAL
AUTHORITY

Parental authority is suspended upon
conviction of the parent or the person
exercising the same of a crime which
carries with it the penalty of civil
interdiction. The authority is
automatically reinstated upon service of
the penalty or upon pardon or amnesty
of the offender.

Also, the court in an action filed for the
purpose or in a related case may also
suspend parental authority if the parent
or the person exercising the same:

a. Treats the child with excessive
harshness or cruelty
b. Gives the child corrupting orders,
counsel or example
c. Compels the child to beg
d. Subjects the child or allows him
to be subjected to acts of
lasciviousness

The grounds enumerated above are
deemed to include cases which have
resulted from culpable negligence of the
parent or the person exercising parental
authority.

If the degree of seriousness so
warrants, or the welfare of the child so
demands, the court shall deprive the
guilty party of parental authority or adopt
such other measures as may be proper
under the circumstances.

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CIVIL LAW
The suspension or deprivation may be
revoked and the parental authority
revived in a case filed for the purpose or
in the same proceeding if the court finds
that the cause therefore has ceased and
will not be repeated.

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