Professional Documents
Culture Documents
RELATIONS LAW
Q&A Reviewer & MCQ Quizzer
by
BLOCK 4B 2012
BOOK I PERSONS
TITLE I. CIVIL PERSONALITY
Chapter 1. GENERAL PROVISIONS
Chapter 2. NATURAL PERSONS
Chapter 3. JURIDICAL PERSONS
TITLE II. CITIZENSHIP AND DOMICILE
Chapter 1.
Chapter 2.
Chapter 3.
Chapter 4.
LEGITIMATE CHILDREN
PROOF OF FILIATION
ILLEGITIMATE CHILDREN
LEGITIMATED CHILDREN
Art. 1-18
PRELIMINARY TITLE
Effect and Application of Laws
Art. 1-18
PRELIMINARY TITLE
Effect and Application of Laws
CHAPTER 1
EFFECT AND APPLICATION OF LAWS
Article 1. This Act shall be known as the "Civil Code of
the Philippines." (n)
Article 2. Laws shall take effect after fifteen days
following the completion of their publication in the
Official Gazette, unless it is otherwise provided. This
Code shall take effect one year after such publication.
(1a)
Q.
What are the instances when a law may be given retroactive effect?
A.
Q.
What are the instances when the law cannot be given retroactivity?
A.
Q.
A.
A.
Q.
A.
Q.
A.
A.
It is valid when the law itself authorizes their validity that acts in
violation of these laws are valid and enforceable. (Article 5, new Civil
Code)
Article 6. Rights may be waived, unless the waiver is
contrary to law, public order, public policy, morals, or
good customs, or prejudicial to a third person with a
right recognized by law.
4B 2012
4B 2012
Art. 1-18
PRELIMINARY TITLE
Effect and Application of Laws
Q.
A.
Art. 1-18
A.
A.
4B 2012
Q.
PRELIMINARY TITLE
Effect and Application of Laws
X filed his final income tax return on April 15, 1998. X, however,
discovered that he made excessive payment. Hence, he filed a claim for
refund before the Commissioner for Internal Revenue (CIR) on
December 15, 1999. It was denied. On April 14, 2000, he filed an action
for refund before the Court of Tax Appeals (CTA). However, it was
dismissed on the ground that under the law, a claim for refund must
be filed within 2 years from the date of payment. According to CTA,
two years constitute 730 days pursuant to Article 13 of the New Civil
4B 2012
Art. 1-18
PRELIMINARY TITLE
Effect and Application of Laws
Code. Hence, prescription had set in on April 14, 2000 which is the
731st day since the year 2000 is a leap year. Is the CTA correct?
A.
Art. 1-18
A.
NO. Article 13 of the New Civil Code was impliedly repealed by the
1987 Administrative Code. Under the latter, year shall be
understood as 12 calendar months. It is a period running from the
beginning of a certain numbered day up to, but not including, the
corresponding numbered day of the next month. Two years means
twenty-four months regardless of the number of days of the month.
Hence, two years from April 15, 1998 is April 14, 2000. (See CIR v.
Primetown Properties, G. R. 162155, August 28, 2007)
Article 14. Penal laws and those of public security and
safety shall be obligatory upon all who live or sojourn
in the Philippine territory, subject to the principles of
public international law and to treaty stipulations.
(8a)
PRELIMINARY TITLE
Effect and Application of Laws
Q.
What is the general rule with respect to the law that governs real
and personal property?
Q.
A.
The law that governs real and personal property is the law of the
country where such property is situated.
A.
Q.
A.
Q.
Q.
A.
A.
The law of the United States will apply. (See Bellis v. Bellis, 20
SCRA 258)
Q.
4B 2012
4B 2012
Art. 1-18
PRELIMINARY TITLE
Effect and Application of Laws
Art. 1-18
What law will govern the forms and solemnities of public instruments,
wills and contracts?
A.
Q.
A.
Philippine law.
Q.
A.
4B 2012
When shall the Civil Code govern matters covered by the Code of
Commerce and special laws?
Only when there is a deficiency in the Code of Commerce and special
CHAPTER 2
Human Relations (n)
PRELIMINARY TITLE
Effect and Application of Laws
What are the essential requisites for a person to be held liable under
Article 19?
A.
The essential requisites are: (1) there must be a legal right or duty; (2)
such right or duty is exercised in bad faith; and (3) it is exercised for
the sole intent of prejudicing another.
Q.
A.
4B 2012
Art. 37- 47
PERSONS
Civil Personality
Q.
A.
Q.
What are the essential requisites for a person to be held liable under
Article 21?
A.
The essential requisites are: (1) there is an act which is legal; (2) but
which is contrary to morals, good customs or public policy; and (3) it is
done with intent to injure.
Q.
A.
A.
It states that no person can claim what is not validly and legally his or
hers.
4B 2012
PERSONS
Civil Personality
10
Q.
A person, in good faith, plants crops on land which he believed was his
own, but which turned out to be timberland belonging to the state.
Does he lose his right to all his crops?
A.
Q.
A.
Yes. True, A was not at fault but he was benefitted. It is but right and
equitable that he should indemnify B. (Report of the Code
Commission, pages 41-42)
Article 24. 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.
Q.
Art. 37- 47
Q.
A.
No. The Supreme Court rejected the claim of one of the parties that
the said party was disadvantaged pursuant to Article 24, since it was
proven that the parties undertook lengthy negotiations before the
contract was finalized, and that the said party was good in business.
(See Spouses Domingo v. Astorga, G.R. No. 130982, September 16,
2005)
Article 25. Thoughtless extravagance in expenses for
pleasure or display during a period of acute public want
or emergency may be stopped by order of the courts at
the instance of any government or private charitable
institution.
4B 2012
Art. 37- 47
PERSONS
Civil Personality
11
Q.
A.
25.
Art. 37- 47
A.
4B 2012
12
The president of a state college in bad faith and despite the decision
and directives of the Office of the Bureau of Public Schools, refused to
allow a student to graduate with honors, despite the fact that the
student honestly earned and deserved such honors. Can the president
be held liable for damages?
A.
Yes. The Supreme Court granted the award of damages in favor of the
said student under Article 27. (See Ledesma v. Court of Appeals, 160
SCRA 449).
PERSONS
Civil Personality
4B 2012
Art. 37- 47
PERSONS
Civil Personality
13
A.
No. It only means that amount of proof which forms an abiding moral
certainty that the accused committed the crime charged. Whereas in
civil cases, only preponderance of evidence is required, that is, as a
whole the evidence adduced by one side outweighs that of the adverse
party. (See Sarmiento v. Court of Appeals, G.R. No. 96740, March 25,
1999)
Q.
A.
Q.
4B 2012
Art. 37- 47
A.
PERSONS
Civil Personality
14
4B 2012
Art. 37- 47
PERSONS
Civil Personality
15
4B 2012
Art. 37- 47
PERSONS
Civil Personality
16
Q.
A.
4B 2012
Art. 37- 47
PERSONS
Civil Personality
17
A.
Art. 37- 47
PERSONS
Civil Personality
18
When does juridical capacity and capacity to act start and end?
A.
4B 2012
4B 2012
Art. 37- 47
PERSONS
Civil Personality
19
Art. 37- 47
NATURAL PERSONS
A.
Q.
A.
Q.
A.
Q.
X, mother of a child, sued Y for damages and support for their common
child. Y moved to dismiss the complaint on the ground that it did not
allege that the child was deemed born. The court granted the motion to
dismiss. Is this proper?
No. Article 40 provides that a child is given provisional personality for
all purposes favorable to it. The unborn child has a right to support
20
from his parents even if it is yet to be born. The conceived child may
even receive donations under Article 742 of the Civil Code.
A.
PERSONS
Civil Personality
4B 2012
The lower courts theory that support as an obligation under the Civil
Code does not contemplate children yet unborn, violates Article 40.
The phrase provided it be born later with the conditions specified in
the following article is not a condition precedent to the right of the
conceived child. (See Quisumbing v. Icao, 34 SCRA 132)
Q.
A.
Q.
A.
Q.
A.
Q.
A.
The person loses juridical capacity and capacity to act, and all the
rights pertaining thereto including the right to own and redeem
4B 2012
Art. 37- 47
PERSONS
Civil Personality
21
Art. 37- 47
PERSONS
Civil Personality
property, among others. (See Butte v. Manuel Uy & Sons, Inc., 4 SCRA
526)
Q.
A.
Q.
A.
The death certificate contains the following: (1) date and place of
death; (2) full name; (3) age; (4) occupation; (5) residence; (6) status as
regards marriage; (7) nationality; and (8) probable cause of death.
Chapter 3
JURIDICAL PERSONS
Article 44. The following are juridical persons:
Q.
A.
Q.
A.
Q.
A.
22
4B 2012
4B 2012
Art. 37- 47
PERSONS
Civil Personality
23
Art. 37- 47
PERSONS
Civil Personality
24
A.
Q.
What is a state?
A.
Q.
Q.
What is a corporation?
A.
It can enter into treaties and contracts. It can also succeed or inherit in
certain instances provided by law. However, as a general rule, the
State cannot be sued without its consent.
A.
Q.
Q.
What is a partnership?
A.
A.
Q.
A.
Q.
Q.
A.
Q.
A.
4B 2012
4B 2012
Art. 37- 47
A.
PERSONS
Civil Personality
25
Art. 48- 51
Yes, in cases where piercing the veil of corporate fiction is proper. The
doctrine is applied when the separate juridical personality of the
corporation is disregarded to promote the ends of justice. (See Laguna
Transportation Company v. Social Security System, G.R. L-14606,
April 28, 1960)
A.
26
PERSONS
Citizenship and Domicile
A.
Q.
A.
Q.
A.
TITLE II
CITIZENSHIP AND DOMICILE
Article 48. The following are citizens of the Philippines:
4B 2012
4B 2012
Art. 48- 51
PERSONS
Citizenship and Domicile
27
Q.
A.
Q.
Under the current laws, what are the qualifications for a foreigner to
acquire Filipino citizenship?
A.
Q.
A.
4B 2012
Art. 48- 51
PERSONS
Citizenship and Domicile
28
A.
Q.
A.
Q.
A.
4B 2012
Art 1-34
MARRIAGE
Requisites of Marriage
29
Art 1-34
MARRIAGE
Requisites of Marriage
30
the husband and the wife become one single moral, spiritual and social
being, not only for the purpose of procreation, but also for the purpose
of mutual help and protection physically, morally, and materially. (See
Saclolo v. CAR, 106 Phil. 1038)
Marriage a fundamental human right
TITLE I
MARRIAGE
Q.
A.
Chapter 1
Requisites of Marriage
A.
Article 1 of the Family Code defines marriage and provides for its basic
elements:
(1) A special contract of permanent union between man and woman;
(2) Entered into in accordance with law; and
(3) For the purpose of establishing conjugal and family life.
Q.
Q.
A.
A.
4B 2012
4B 2012
Art 1-34
MARRIAGE
Requisites of Marriage
31
Art 1-34
A.
32
(2) That the religious marriage ceremony which the parties agreed to
hold after their civil marriage never took place. (See Anonymous v.
Anonymous, 49 NYSd 314)
MARRIAGE
Requisites of Marriage
This is because these reasons were not among those provided in the
marriage laws of their respective States (See Bove v. Pinciotti, supra).
More importantly however, the status created by marriage is too
much a matter of public concern to allow the parties to tinker with it
according to their own notions of what is expedient and proper. (See
Anonymous v. Anonymous, supra)
Q.
A.
Q.
A.
No. However, the constitutional reverence for marriage and the family
does not mean that the Legislature may not enact a law allowing it.
Q.
Q.
A.
A.
Q.
4B 2012
4B 2012
Art 1-34
A.
Q.
A.
MARRIAGE
Requisites of Marriage
33
A.
Q.
A.
4B 2012
Art 1-34
MARRIAGE
Requisites of Marriage
34
Property Relations
Q.
A.
A.
Q.
A.
4B 2012
Art 1-34
MARRIAGE
Requisites of Marriage
35
Art 1-34
4B 2012
MARRIAGE
Requisites of Marriage
36
A.
No. The contracting parties must be of the opposite sex a man and a
woman.
Q.
A.
Q.
A.
Yes, provided that at the age of majority, he makes the choice to live
and be treated under the law as a man. (See Republic v. Cagandahan,
565 SCRA 72)
Q.
A.
Q.
A.
Q.
4B 2012
Art 1-34
MARRIAGE
Requisites of Marriage
37
A.
Q.
A.
Q.
A.
They have never been and are still not recognized in our jurisdiction.
Q.
A.
No. There is no genuine consent on the part of both contracting
parties.
Q.
A.
4B 2012
Art 1-34
MARRIAGE
Requisites of Marriage
38
A.
Q.
What are some of the irregularities which do not affect the validity of a
marriage?
A.
4B 2012
Art 1-34
(8)
(9)
(10)
(11)
(12)
(13)
(14)
MARRIAGE
Requisites of Marriage
39
4B 2012
Art 1-34
MARRIAGE
Requisites of Marriage
40
Q.
A.
It was on this date that, with the advent of the Local Government
Code, Mayors are now allowed to solemnize marriages.
Q.
A.
Q.
A.
No. All the solemnizing officer needs to know is that the license has
been issued by the competent official, and it may be presumed from
the issuance of the license that said official has fulfilled the duty to
ascertain whether the contracting parties had fulfilled the
requirements of law. (People v. Janssen, 54 Phil. 176)
Q.
A.
Q.
A.
4B 2012
Art 1-34
MARRIAGE
Requisites of Marriage
41
good faith that such solemnizing officer has authority to conduct such
marriage.
Q.
What are the requisites for a priest, rabbi, imam, or minister of any
church or religious sect to be able to validly solemnize a marriage?
A.
Q.
What are the requisites for a ship captain or airplane chief to be able
to validly solemnize a marriage?
A.
Q.
A.
Q.
4B 2012
Art 1-34
A.
MARRIAGE
Requisites of Marriage
42
Q.
A.
Q.
A.
Q.
A.
4B 2012
Art 1-34
MARRIAGE
Requisites of Marriage
43
Art 1-34
A.
By the local civil registrar of the place where the marriage application
was filed. If performed by a consul-general, consul, or vice-consul, the
marriage license shall be issued in the respective consulate.
Q.
A.
Q.
A.
120 days from the date of the signing of the marriage license by the
local civil registrar. After 120 days, it automatically expires.
Q.
Does the fact that a party to whom the license is issued is represented
by a name other than his true name or had his name spelled
incorrectly affect the validity of such marriage?
A.
No. This will not invalidate the marriage solemnized on the authority
of such license.
Art. 10. Marriages between Filipino citizens abroad may
be solemnized by a consul-general, consul or vice-consul
of the Republic of the Philippines. The issuance of a
marriage license and the duties of the local civil registrar
and of the solemnizing officer with regard to the
celebration of marriage shall be performed by said
consular official. (75a)
4B 2012
MARRIAGE
Requisites of Marriage
44
If the local civil registrar has knowledge of some legal impediment, can
said registrar discontinue processing the application for marriage?
A.
No. He or she must only note down the legal impediments in the
application and thereafter issue the marriage license, unless otherwise
stopped by the court. Once signed and sworn to by the parties, the
registrar has no choice but to accept the application and process the
same up to the time of the issuance of the marriage license.
Art. 12. The local civil registrar, upon receiving such
application, shall require the presentation of the original
4B 2012
Art 1-34
MARRIAGE
Requisites of Marriage
45
Art 1-34
4B 2012
46
MARRIAGE
Requisites of Marriage
A.
Q.
4B 2012
Art 1-34
MARRIAGE
Requisites of Marriage
47
A.
Q.
A.
Q.
A.
Art 1-34
MARRIAGE
Requisites of Marriage
48
The lack of parental consent may also subject those who have
neglected to acquire it to penalties of the law. (Cushman v. Cushman,
80 Was. 615)
Q.
A.
Art. 15. Any contracting party between the age of twentyone and twenty-five shall be obliged to ask their parents
or guardian for advice upon the intended marriage. If
they do not obtain such advice, or if it be unfavorable,
the marriage license shall not be issued till after three
months following the completion of the publication of the
application therefor. A sworn statement by the
contracting parties to the effect that such advice has
A.
Q.
A.
4B 2012
4B 2012
Art 1-34
Q.
A.
MARRIAGE
Requisites of Marriage
49
Art 1-34
A.
Q.
A.
Q.
50
MARRIAGE
Requisites of Marriage
A.
4B 2012
4B 2012
Art 1-34
MARRIAGE
Requisites of Marriage
51
Art 1-34
A.
A marriage license is valid for 120 days from the date of its issue. It is
valid only within the Philippines.
A.
4B 2012
52
If the marriage license is not used within the 120 days, then it is
deemed automatically cancelled. (Article 20, Family Code)
Q.
MARRIAGE
Requisites of Marriage
Q.
What is the scope of the investigative power of the local civil registrar?
A.
Q.
A.
4B 2012
Art 1-34
MARRIAGE
Requisites of Marriage
53
Art 1-34
A.
The issuance of the marriage license despite the injunction from the
court is only an irregularity in the formal requisites of a valid
marriage license. Therefore it does not affect the validity of the
marriage. However, the party or parties responsible for such
irregularity may be held civilly, criminally, or administratively liable.
Q.
What is the policy behind the ministerial duty of the local civil
registrar to issue marriage licenses, except upon order by a competent
court?
A.
Q.
A.
Indigent parties are exempted from payment of any fees relating to the
issuance of a marriage license. Indigent parties are those who: (1) have
no visible means of income; or (2) whose income is insufficient for their
subsistence.
4B 2012
54
The local civil registrar may also withhold the issuance of a marriage
license when the contracting parties are foreigners and fail to submit a
certificate of legal capacity as required in Article 21 of the Family
Code. In such a case, the foreigners must intend to have their
marriage solemnized by persons listed in Article 7 of the Family Code
or the mayor pursuant to the Local Government Code.
Q.
MARRIAGE
Requisites of Marriage
A.
Q.
Can the local civil registrar withhold the issuance of a marriage license
to a foreigner who has not complied with the provisions of Article 21 of
the Family Code?
A.
Yes. This is one of the exceptions to the rule that the local civil
registrar must issue a marriage license even if he finds an impediment
to the impending marriage. The other exception is when there is an
order from a competent court prohibiting the local civil registrar from
doing the same.
4B 2012
Art 1-34
MARRIAGE
Requisites of Marriage
55
Art 1-34
A.
4B 2012
MARRIAGE
Requisites of Marriage
56
A.
Q.
A.
4B 2012
Art 1-34
MARRIAGE
Requisites of Marriage
57
A.
Q.
Does the absence of a marriage certificate prove that there was in fact
no marriage?
A.
Q.
A.
Q.
4B 2012
Art 1-34
A.
MARRIAGE
Requisites of Marriage
58
Q.
A.
The person can file a petition for declaratory relief to seek from the
court a judgment on his/her capacity to marry. (Republic v. Orbecido
III, 472 SCRA 114).
Q.
What are the duties of the solemnizing officer with respect to the
marriage certificate?
A.
4B 2012
Art 1-34
MARRIAGE
Requisites of Marriage
59
Art 1-34
MARRIAGE
Requisites of Marriage
60
Q.
A.
A.
4B 2012
Q.
A.
The Philippines follows the lex loci celebrationis rule. The validity of a
marriage is determined in reference to the law of the place where it is
celebrated. Thus a marriage valid in the place where it is celebrated is
considered valid in the Philippines.
Q.
A.
While the Philippines follows the general rule of lex loci celebrationis,
and therefore recognizes as valid a marriage that is also valid under
the law of the country where it is celebrated, the exception is found in
marriages prohibited under Articles 35(1), (4), (5), and (6), 36, 37, and
38. Any marriage falling under these mentioned articles remain
invalid in the Philippines, even if celebrated in a country where the
laws recognize its validity. The reason behind this exception lies in
comity. Each sovereign has the right to declare what marriages it will
or will not recognize.
Q.
A.
4B 2012
Art 1-34
MARRIAGE
Requisites of Marriage
61
A.
No. Such marriages are prohibited by public policy. Also, the Family
Code is replete with terms and articles (e.g. husband and wife, father
and mother, man and woman) clearly indicating that the law intended
heterosexual relationships.
Q.
A.
Q.
A.
He who asserts that the marriage is not valid under our law bears the
burden of proof to present the foreign law. (Board of Commissioners
(CID) v. Dela Rosa, 197 SCRA 853)
Q.
A.
4B 2012
Art 1-34
MARRIAGE
Requisites of Marriage
62
A.
No. As Philippine law does not recognize divorce, the wife then
committed adultery in entering into the second marriage. (Tenchavez
v. Escano, 15 SCRA 256).
Q.
A.
Yes, provided the divorce is duly proven in court. Aliens may obtain
divorces abroad, which may be recognized in the Philippines, provided,
they are valid according to their national law. The foreign marital law
and the divorce decree must be duly proven and cannot be taken
judicial notice of. (Garcia v. Recio, G.R. No. 138322, October 2, 2001).
Our civil law adheres to the nationality rule on the matter of status or
legal capacity of a person. (Recto v. Harden, 100 Phil. 427; Van Dorn
v. Romillo, 139 SCRA 139; Pilapil v. Ibay Somera, 174 SCRA 653)
Q.
A.
4B 2012
Art 1-34
MARRIAGE
Requisites of Marriage
63
Art 1-34
MARRIAGE
Requisites of Marriage
64
Q.
Q.
A.
A.
The foreign spouse who obtained the divorce decree loses his right to
claim interest in properties of the Filipino spouse. (Van Dorn v.
Romillo, 139 SCRA 139). The foreigner husband also cannot file a
criminal case for adultery because, while the Filipino wife is still
considered married to him under Philippine laws, such foreigner is not
considered married to her and, therefore, does not have any legal
standing to file such criminal case. (Pilapil v. Ibay Somera, 174 SCRA
653)
Q.
Q.
A.
Q.
A.
No. In this jurisdiction, our Rules of Court clearly provide that with
respect to actions in personam, as distinguished from actions in rem, a
foreign judgment merely constitutes prima facie evidence of the
justness of the claim of a party and, as such, is subject to proof to the
contrary. (Rule 39, Section 48, Rules of Civil Procedure).
Q.
A.
A.
None, the divorce decree will still be recognized here. This is because
at the time of the filing of the petition for divorce, and at the time of
the issuance of the decree of divorce, he or she was not a citizen of the
Philippines. His or her status, therefore, at the time of the divorce will
be governed by the foreign country of which he or she is a naturalized
citizen and will continue even after he or she successfully reacquires
Philippine citizenship. (Recio v. Garcia, supra).
Q.
A.
Q.
What is the effect if a Filipino obtains a divorce decree abroad from his
foreigner spouse?
A.
4B 2012
4B 2012
Art 1-34
Q.
A.
MARRIAGE
Requisites of Marriage
65
A.
Q.
A.
Q.
A.
Art 1-34
Q.
A.
That the judge is within his or her jurisdiction, the venue of the
marriage ceremony can be anywhere within his or her jurisdiction.
Q.
4B 2012
MARRIAGE
Requisites of Marriage
66
Q.
A.
4B 2012
Art 1-34
MARRIAGE
Requisites of Marriage
67
A.
Q.
A.
4B 2012
Art 1-34
MARRIAGE
Requisites of Marriage
68
A.
Q.
A.
4B 2012
Art 1-34
MARRIAGE
Requisites of Marriage
69
Art 1-34
MARRIAGE
Requisites of Marriage
70
What are the requisites for a marriage to be validly exempted from the
marriage license requirement under Article 34?
With respect to the exemption relative to persons cohabiting for at
least five years under Article 34 of the Family Code, it must be
observed that their living together as husband and wife must meet two
distinct conditions namely: (1) they must live as such for at least five
years characterized by exclusivity and continuity that is unbroken
(Republic v. Dayot, G.R. No. 175581, March 28, 2008, 550 SCRA 435);
and (2) they must be without any legal impediment to marry each
other.
Q.
Must the legal impediment be absent for the whole five years?
A.
No, for while the two requisites must concur, they do not qualify each
other. In other words, during the five-year period, it is not necessary
that they must not have suffered from any legal impediment. The
second condition as to the absence of any legal impediment must be
construed to refer only to the time of the actual marriage celebration.
Q.
A.
4B 2012
4B 2012
ART. 35-57
MARRIAGE
Void and Voidable Marriages
71
ART. 35-57
Yes. There are 2 exceptions: a) Article 35(2) states that if either of the
contracting parties is in good faith in believing that a solemnizing
officer has authority to solemnize a marriage though he or she actually
has none, the marriage will be considered valid. b) Article 41 refers to
a person whose spouse disappears for 4 or 3 years may validly marry
again if he or she has a well-founded belief that his or her spouse is
dead, procures a judicial declaration of presumptive death and at the
time of the subsequent marriage ceremony, is in good faith together
with the subsequent spouse. In these 2 cases, the good faith of only one
of the contracting parties shall make the marriage valid.
Q.
A.
Q.
A.
Yes. (De Castro v. Assidao-De Castro, G.R. No. 160172, February 13,
2008). A void marriage can be collaterally attacked. Thus, the nullity
of a marriage can be asserted even if it is not the main issue of a case
and that no previous declaration of nullity if required by law with
respect to any other matter where the issue of the voidness of a
marriage is pertinent or material, either directly or indirectly.
Q.
Q. May the grounds for a void marriage under Article 35 co-exist in one
case?
A.
Q.
As a general rule, good faith or bad faith of the parties are immaterial
in determining whether or not the marriage is null and void. Are there
any exceptions?
4B 2012
72
A.
Chapter 3
Void and Voidable Marriages
Art. 35. The following marriages shall be void from the
beginning:
(1) Those contracted by any party below eighteen
years of age even with the consent of parents or
guardians;
(2) Those solemnized by any person not legally
authorized to perform marriages unless such
marriages were contracted with either or both
parties believing in good faith that the solemnizing
officer had the legal authority to do so;
(3) Those solemnized without license, except those
covered the preceding Chapter;
(4) Those bigamous or polygamous marriages not
failing under Article 41;
(5) Those contracted through mistake of one
contracting party as to the identity of the other; and
(6) Those subsequent marriages that are void under
Article 53.
MARRIAGE
Void and Voidable Marriages
4B 2012
ART. 35-57
MARRIAGE
Void and Voidable Marriages
73
A.
No. In a bigamous marriage, the first marriage must have been valid.
In this case, the subsequent marriage is also void because it violates
Article 40 in relation to Articles 52 and 53 of the Family Code.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
4B 2012
ART. 35-57
MARRIAGE
Void and Voidable Marriages
74
A.
Q.
A.
Q.
4B 2012
ART. 35-57
MARRIAGE
Void and Voidable Marriages
75
A.
Q.
A.
Q.
A.
Yes. If they exist at the inception of the marriage, like unsound mind
or concealment of drug addiction, habitual alcoholism, and
homosexuality, they render the marriage voidable under Article 46. If
these occur during the marriage, they become grounds for legal
separation under Article 55. However, these may still be indicia of
psychological incapacity depending on the degree and severity. (Santos
v. Court of Appeals and Julia Rosario Bedia-Santos, G.R. No. 112019,
January 4, 1995)
Q.
A.
Q.
A.
4B 2012
ART. 35-57
MARRIAGE
Void and Voidable Marriages
76
A.
Q.
Does the fact that a person is able to perform his or her marital
obligations with a person other than his or her other spouse negate the
existence of psychological incapacity?
A.
No. This ground is personal and limited so that just because a person
is psychologically incapacitated to perform his or her marital
obligations with his or her present spouse does not mean the such will
also be the case with any other person.
Q.
A.
Yes. The court must consider as decisive evidence the expert opinion of
psychologists or psychiatrists in the psychological and mental
temperaments of the parties. Data about a persons life before and
after the ceremony were presented to these experts who were asked to
give professional opinions about the partys mental capacity at the
time of the wedding (Te v. Te, G.R. No. 161793, February 13, 2009).
Expert testimony is important to establish the precise cause of
4B 2012
ART. 35-57
MARRIAGE
Void and Voidable Marriages
77
A.
Q.
What are some instances when the Supreme Court denied the petition
for nullity of marriage despite a finding of psychological incapacity by
a psychiatrist?
A.
Q.
A.
ART. 35-57
Q.
A.
Q.
A.
Q.
A.
It is not within the doctor-patient privilege where the one who will
testify on the report is not the doctor but the husband. His testimony
will not have the force and effect of the testimony of the physician who
made the report. The proper objection should have been on the ground
4B 2012
78
MARRIAGE
Void and Voidable Marriages
4B 2012
ART. 35-57
MARRIAGE
Void and Voidable Marriages
79
4B 2012
ART. 35-57
MARRIAGE
Void and Voidable Marriages
80
4B 2012
ART. 35-57
MARRIAGE
Void and Voidable Marriages
81
Q.
A.
No. Each case must be judged not on the basis of a priori assumptions,
predilections or generalizations but according to its own facts. The
courts should interpret the provision on a case-to-case basis; guided by
experience, the findings of experts and researchers in psychological
disciplines, and by decisions of church tribunals (Te v. Te, G.R. No.
161793, February 13, 2009).
ART. 35-57
A.
Q.
A.
Q.
4B 2012
82
MARRIAGE
Void and Voidable Marriages
4B 2012
ART. 35-57
MARRIAGE
Void and Voidable Marriages
83
ART. 35-57
Q.
MARRIAGE
Void and Voidable Marriages
84
A.
Yes, following the general rule that only those declared by law as a
void marriage should be treated as such.
Q.
A.
Yes.
Q.
A.
Yes.
Q.
Q.
A.
No. (Sta. Maria 2010 ed., 247, In Re Simms Estate, 26 NY2d 163, 46
ALR 3d 1398).
Q.
A.
A.
1. First cousins
2. Uncle
3. Aunt
4. Niece
5. Nephew
A.
Q.
A.
Q.
A.
Q.
What is affinity?
Q.
A.
A.
Q.
A.
4B 2012
A.
1. Parents in law and children in law
2. Step parents and step children
4B 2012
ART. 35-57
MARRIAGE
Void and Voidable Marriages
85
ART. 35-57
MARRIAGE
Void and Voidable Marriages
86
A.
Q.
A.
Q.
What is the effect of the death of one of the spouses to the relationship
by affinity?
Q.
A.
A.
There are two conflicting views (Sta. Maria 2010 ed., 252).
Q.
Q.
A.
The following.
1.
Parents of the adopter
2.
Illegitimate child of the adopter
3.
Other relatives of the adopter, whether by consanguinity or
affinity
Q.
Q.
A.
Q.
A.
1.
2.
3.
4.
4B 2012
A.
Q.
A.
4B 2012
ART. 35-57
MARRIAGE
Void and Voidable Marriages
87
ART. 35-57
MARRIAGE
Void and Voidable Marriages
88
Q.
Q.
Can a contracting party who is a wrongdoer, file a petition for the JDN
of marriage?
A.
A.
Yes. Any of the parties to a void marriage may file a nullity case.
Q.
A.
Q.
A.
Q.
A.
Q.
Can a JDN be filed by the children even after the death of the
contracting party?
A.
No. Only the husband and the wife can file the case and if filed, the
case will be closed or terminated if during its pendency either of the
husband or the wife should die. Heirs can no longer file a case for the
nullity of marriage of their parents or of their parent with their stepparent (SC en banc resolution in A.M. No. 02-11-10 and Enrico v. Heirs
of Medinaceli, G.R. No. 173614, September 28, 2007, 534 SCRA 419,
reversing Ninal v. Bayadong, 328 SCRA 122).
Q.
A.
4B 2012
A.
Q.
A.
Q.
4B 2012
ART. 35-57
A.
Q.
MARRIAGE
Void and Voidable Marriages
89
ART. 35-57
90
For the projected marriage to be free from legal infirmity. The law
seeks to ensure that a prior marriage is no impediment to a second
sought to be contracted by one of the parties.
What is the only acceptable proof of the nullity of a first marriage for
purposes of remarriage?
A.
Judicial declaration of nullity of marriage. (Domingo v. Court of
Appeals, 226
SCRA 572)
Q. What is the purpose of Article 40 in requiring a judicial declaration of
nullity
before one can remarry?
MARRIAGE
Void and Voidable Marriages
Q.
A.
Q.
May there be a prosecution for bigamy where the first marriage is void
ab initio?
A.
Yes. See the case of De Castro v. Assidao-De Castro, G.R. No. 160172,
where the Supreme Court ruled that in a case for support, a lower
court can declare a marriage void even without prior judicial
declaration of nullity of void marriage filed in a separate action. It
reasoned that the determination of the validity of marriage was
important in the resolution of the right of the child to be supported.
A.
Q.
A.
Q.
A.
4B 2012
A.
Q.
4B 2012
ART. 35-57
MARRIAGE
Void and Voidable Marriages
91
ART. 35-57
MARRIAGE
Void and Voidable Marriages
92
A.
A.
Q.
A.
A.
Q.
A.
Q.
A.
Q.
If there is failure to liquidate the property of the first marriage and the
present spouse remarries and thereafter, the absent spouse from the
first marriage reappears, what is the property regime of the second
marriage?
A.
Q.
4B 2012
4B 2012
ART. 35-57
MARRIAGE
Void and Voidable Marriages
93
ART. 35-57
94
Q.
In the event that the absent spouse reappears causing the subsequent
marriage to be automatically terminated, will the donations by reason
of the second marriage remain valid?
A.
Q.
A.
No the rules are different. Here, the innocent spouse has the choice of
revoking or maintaining as beneficiary in an insurance policy the other
spouse who acted in bad faith. Even if the designation as beneficiary is
irrevocable, if the innocent spouse chooses to revoke, he/she can validly
do so.
Q.
A.
No. The spouse in bad faith may not inherit both through testate and
intestate succession.
MARRIAGE
Void and Voidable Marriages
Q.
A.
Any interested party may file the sworn statement. (parents, children,
present spouse, subsequent spouse and even the parents and children
of the other contracting spouse in the subsequent marriage)
A.
Q.
Q.
A.
A.
4B 2012
4B 2012
ART. 35-57
MARRIAGE
Void and Voidable Marriages
95
4B 2012
ART. 35-57
MARRIAGE
Void and Voidable Marriages
96
A.
4B 2012
ART. 35-57
MARRIAGE
Void and Voidable Marriages
97
ART. 35-57
98
A.
The grounds for annulment are exclusive such that only those grounds
provided by law can sustain an action to bring an annulment suit.
Q.
A.
The law considers persons age of at least 18 years and below 21 years
as not possessing that degree of maturity to be able to comprehend
thoroughly the consequences and serious responsibilities of marital
relations.
Q.
What does the Family Code mean by unsound mind as a ground for
annulment?
A.
Q.
A.
The burden of proof of insanity rests upon him who alleges insanity
and it devolves upon him to establish the fact of insanity by a
preponderance of evidence. However, if previous insanity is proved, the
burden of proof is usually considered to shift to him who asserts that
the act was done while the person was sane.
Q.
A.
or
.
Q. Are the grounds for annulment of marriage under the Family Code
exclusive?
A.
MARRIAGE
Void and Voidable Marriages
4B 2012
4B 2012
ART. 35-57
MARRIAGE
Void and Voidable Marriages
99
ART. 35-57
A.
MARRIAGE
Void and Voidable Marriages
100
Q.
A.
Q.
Can failure to investigate the criminal record of a spouse bar the other
spouse for raising it as a ground for annulment?
Q.
A.
No. It is not necessary that one of the parties investigate the other and
his or her failure to do so will not bar a case for annulment on this
ground if it later develops that the party concerned has been convicted
of a crime before the marriage.
A.
Q.
A.
No. Only the wife can commit fraud, because maternity is always
certain while paternity may be disputed.
Q.
Does good faith of the wife matter when the ground for annulment is
concealment of pregnancy as fraud?
A.
Yes. The concealment must have been done in bad faith. Thus, if a
woman, after having sexual intercourse with another man previous to
marriage ceremony was diagnosed as not pregnant and thereafter
married her fianc believing that she was not pregnant, the marriage
cannot later be annulled. Thus, even if it turned out that her previous
diagnosis was completely wrong and that she was really pregnant.
There was no bad faith on her part. Thus, she could not be guilty of
fraud.
Q.
If a woman misrepresented to her fianc that she was pregnant for the
purpose of inducing her fianc to marry her when in fact she was not
pregnant, can the husband use concealment of pregnancy as fraud to
be a ground for annulment of their marriage?
A.
Q.
Q.
4B 2012
4B 2012
ART. 35-57
MARRIAGE
Void and Voidable Marriages
101
ART. 35-57
MARRIAGE
Void and Voidable Marriages
102
A.
No. The fact that the STD fraudulently concealed was of a less virulent
character and one that would be more correctly described as local, will
not bar this ground. Also, consummation of the marriage is not
required for this ground to exist.
A.
Q.
Q.
A.
A.
Q.
A.
Q.
Q.
A.
A.
It is a ground because it renders him unfit for the duties of the marital
relation and disqualifies him from properly rearing and caring for the
children born of the marriage (Lewis v. Lewis, 235 Iowa 693).
Q.
Q.
The deleterious and evil effects resulting from the continued and
excessive use of drugs are well-known, and that they interfere with the
happiness of married life, and produce other effects upon the marriage
relation as deplorable. (Gowey v. Gowey, 191 Mass. 72).
A.
Q.
A.
Q.
4B 2012
4B 2012
ART. 35-57
MARRIAGE
Void and Voidable Marriages
103
A.
Q.
A.
Q.
A.
No.
Q.
A.
Q.
A.
Whoever alleges the incapacity has the burden of proving the same. As
a general rule, incapacity to engage in sexual intercourse cannot be
presumed but must be proven by preponderance of evidence.
Q.
A.
Q.
4B 2012
ART. 35-57
MARRIAGE
Void and Voidable Marriages
104
A.
Q.
A.
Q.
If the STD of the spouse is not concealed, can it still be a ground for
annulment of marriage?
A.
Q.
A.
Yes. Under the Family Code, ratification is made if the injured party
freely cohabits with the guilty party in the proper situations provided
by law, such as lack of parental consent, insanity, fraud and vitiated
consent.
Q.
A.
Q.
4B 2012
ART. 35-57
A.
MARRIAGE
Void and Voidable Marriages
105
Yes, if the aggrieved parties do not bring the suit within five years
after the marriage ceremony.
Art. 47. The action for annulment of marriage must be
filed by the following persons and within the periods
indicated herein:
(1)For causes mentioned in number 1 of Article 45 by
the party whose parent or guardian did not give his
or her consent, within five years after attaining the
age of twenty-one, or by the parent or guardian or
person having legal charge of the minor, at any time
before such party has reached the age of twentyone;
(2)For causes mentioned in number 2 of Article 45, by
the same spouse, who had no knowledge of the
other's insanity; or by any relative or 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 or after
regaining sanity;
(3)For causes mentioned in number 3 of Article 45, by
the injured party, within five years after the
discovery of the fraud;
(4)For causes mentioned in number 4 of Article 45, by
the injured party, within five years from the time
the force, intimidation or undue influence
disappeared or ceased;
(5)For causes mentioned in number 5 and 6 of Article
45, by the injured party, within five years after the
marriage. (87a)
Q.
A.
4B 2012
ART. 35-57
MARRIAGE
Void and Voidable Marriages
106
Q.
A.
Q.
Summarize the rules on the prescriptive periods and who may file the
suit for each ground of annulment.
A.
GROUND
PARTY TO FILE
PRESCRIPTION
PERIOD
Anytime before noconsent party reaches
the age of 21
Within Five Years after
attaining 21
At any time before
death of either party
At any time before
death of either party
4B 2012
ART. 35-57
MARRIAGE
Void and Voidable Marriages
107
disease
Art. 48. In all cases of annulment or declaration of
absolute nullity of marriage, the Court shall order the
prosecuting attorney or fiscal assigned to it to appear on
behalf of the State to take steps to prevent collusion
between the parties and to take care that evidence is not
fabricated or suppressed.
In the cases referred to in the preceding paragraph, no
judgment shall be based upon a stipulation of facts or
confession of judgment. (88a)
Art. 49. During the pendency of the action and in the
absence of adequate provisions in a written agreement
between the spouses, the Court shall provide for the
support of the spouses and the custody and support of
their common children. The Court shall give paramount
consideration to the moral and material welfare of said
children and their choice of the parent with whom they
wish to remain as provided to in Title IX. It shall also
provide for appropriate visitation rights of the other
parent. (n)
ART. 35-57
MARRIAGE
Void and Voidable Marriages
108
Q.
A.
Q.
A.
Q.
A.
A.
A.
Q.
Q.
What is collusion?
A.
No. The court will order a full-blown hearing of the case where the
fiscal shall appear on behalf of the state.
A.
4B 2012
4B 2012
ART. 35-57
MARRIAGE
Void and Voidable Marriages
109
A.
Q.
A.
Q.
What will happen to a judge who does not order an investigation for
collusion?
A.
Q.
A.
4B 2012
ART. 35-57
MARRIAGE
Void and Voidable Marriages
110
Art. 50. The effects provided for by paragraphs (2), (3), (4)
and (5) of Article 43 and by Article 44 shall also apply in
the proper cases to marriages which are declared ab
initio or annulled by final judgment under Articles 40
and 45.
The final judgment in such cases shall provide for the
liquidation, partition and distribution of the properties
of the spouses, the custody and support of the common
children, and the delivery of third presumptive legitimes,
unless such matters had been adjudicated in previous
judicial proceedings.
All creditors of the spouses as well as of the absolute
community or the conjugal partnership shall be notified
of the proceedings for liquidation.
In the partition, the conjugal dwelling and the lot on
which it is situated, shall be adjudicated in accordance
with the provisions of Articles 102 and 129.
Art. 51. In said partition, the value of the presumptive
legitimes of all common children, computed as of the
date of the final judgment of the trial court, shall be
delivered in cash, property or sound securities, unless
the parties, by mutual agreement judicially approved,
had already provided for such matters.
The children or their guardian or the trustee of their
property may ask for the enforcement of the judgment.
The delivery of the presumptive legitimes herein
prescribed shall in no way prejudice the ultimate
successional rights of the children accruing upon the
death of either of both of the parents; but the value of the
properties already received under the decree of
4B 2012
ART. 35-57
MARRIAGE
Void and Voidable Marriages
111
ART. 35-57
Q.
A.
In so far as void marriages are concerned, paragraphs (2), (3), (4) and
(5) of Article 43 exceptionally apply ONLY to void subsequent
marriages that occur as a result of the non observance of Article 40.
Specifically, they apply
only to the subsequent void marriage
contracted by a spouse of a prior void
marriage before the
latter is judicially declared void. In this case, the
property shall be
liquidated as if there is a conjugal partnership of gains
or
an
absolute community of property. In all other cases of a void marriage
(except non observance of article 40), co-ownership will govern.
(Valdes
v. RTC, 260 SCRA 221, 1996)
But see: Nicdao Carino vs Carino, 351 SCRA 131, 2001.
Q.
A.
4B 2012
MARRIAGE
Void and Voidable Marriages
112
A.
Q.
A.
Q.
A.
(1) Void subsequent marriages resulting from non observance of
Article 40 in
relation Articles 52 and 53 of the Family Code. (Valdes vs
RTC, 260 SCRA 221, 1996)
(2) Annulment cases (Article 43 of the Family Code)
Art. 52. The judgment of annulment or of absolute nullity
of the marriage, the partition and distribution of the
properties of the spouses and the delivery of the
children's presumptive legitimes shall be recorded in the
appropriate civil registry and registries of property;
otherwise, the same shall not affect third persons. (n)
Art. 53. Either of the former spouses may marry again
after compliance with the requirements of the
immediately
preceding
Article;
otherwise,
the
subsequent marriage shall be null and void.
Art. 54. Children conceived or born before the judgment
of annulment or absolute nullity of the marriage under
Article 36 has become final and executory shall be
4B 2012
ART. 35-57
MARRIAGE
Void and Voidable Marriages
113
ART. 35-57
A.
Q.
A.
MARRIAGE
Void and Voidable Marriages
114
A.
Q.
Q.
be
A.
A.
(1) In the local civil registry of the city or municipality where the court
that issued the decision is functioning. (Art 409 of the New Civil
Code) AND
Q.
A.
Q.
(2) In the local civil registry of the city or municipality where the
marriage was solemnized. (Section 7 of the Civil Registry Law, Act
No. 3753)
Q.
A.
4B 2012
4B 2012
ART. 35-57
MARRIAGE
Void and Voidable Marriages
115
Within one month from the receipt of said court order, the public
prosecutor will submit an investigation report stating whether the
parties are in collusion or not, and serve copies thereof on the parties
and their respective counsels, if any. Supreme Court En Banc
Resolution A. M. 02-11-10-SC, 9
Q.
A.
He shall state the basis of such finding in his report. The parties shall
file their respective comments on this finding within ten days from
receipt of a copy of the report. The court shall set the report for
hearing, and dismiss the case if it finds that collusion indeed exists.
Supreme Court En Banc Resolution A. M. 02-11-10-SC, 9
What happens when the public prosecutor determines that collusion
does not exist?
The court shall set the case for pre-trial, where the public prosecutor
will appear for the State. Supreme Court En Banc Resolution A. M. 0211-10-SC, 9
Q.
A.
On motion or motu proprio, the court shall set the pre-trial after the
last pleading has been served and filed, or upon receipt of the public
prosecutors investigation report stating that collusion does not exist
between the parties. Supreme Court En Banc Resolution A. M. 02-1110-SC, 11
Q.
A.
4B 2012
ART. 35-57
MARRIAGE
Void and Voidable Marriages
116
Q.
A.
(1) Date of the pre-trial conference, (2) Order directing the parties to
file their pre-trial briefs in such manner that the same be served upon
the adverse party at least three days before the date of pre-trial.
Supreme Court En Banc Resolution A. M. 02-11-10-SC, 11
Q.
A.
Q.
A.
Q.
A.
(1) Statement that the parties are willing to enter into agreements as
may be allowed by law, indicating the desired terms thereof, (2)
Concise statement of their respective claims with applicable laws and
authorities, (3) Admitted facts and proposed stipulations of facts as
well as disputed legal and factual issues, (4) All the evidence to be
presented, including expert opinions if any, stating the nature and
purpose thereof, (5) Number and names of witnesses and their
affidavits, (6) Such other matters as the court may require. Supreme
Court En Banc Resolution A. M. 02-11-10-SC, 12
Q.
What is the effect of failure to file the pre-trial brief or to comply with
the contents required by law for such?
4B 2012
ART. 35-57
MARRIAGE
Void and Voidable Marriages
117
ART. 35-57
MARRIAGE
Void and Voidable Marriages
118
A.
Q.
Q.
A.
A.
If the respondent filed an answer but fails to appear personally, pretrial will proceed and the court will order the public prosecutor to
investigate whether the non-appearance is due to any collusion. The
public prosecutor will submit a report on such investigation within
fifteen days from the order. If there is no collusion, the court will order
the public prosecutor to intervene for the State during the trial on the
merits to prevent suppression or fabrication of evidence. Supreme
Court En Banc Resolution A. M. 02-11-10-SC, 13
Q.
A.
Q.
Q.
A.
A.
Yes, the court may refer the case to a mediator at the pre-trial
conference, in order to reach an agreement on matters not prohibited
by law. Supreme Court En Banc Resolution A. M. 02-11-10-SC, 14
Q.
Not necessarily. The court may order the exclusion from the
courtroom of all persons, including the press, who do not have a direct
interest in the case if it determines on record that requiring a party to
testify in open court would not enhance the ascertainment of truth;
would cause the party psychological harm or inability to effectively
communicate due to embarrassment, fear, or timidity; would violate
the right of a party to privacy; or would be offensive to decency or
public morals. Supreme Court En Banc Resolution A. M. 02-11-10-SC,
17
A.
Q.
A.
Q.
A.
The court shall issue a pre-trial order. The parties have five days from
receipt of the pre-trial order to propose corrections or modifications.
4B 2012
4B 2012
ART. 35-57
MARRIAGE
Void and Voidable Marriages
119
ART. 35-57
MARRIAGE
Void and Voidable Marriages
120
Q.
A.
A.
Upon entry of the judgment granting the petition or, where there is an
appeal, upon the receipt of the entry of judgment of the appellate
court granting the petition the Family Court upon motion of either
party shall proceed with the above actions unless such matters have
been adjudicated in previous judicial proceedings. Supreme Court En
Banc Resolution A. M. 02-11-10-SC, 21
Q.
A.
Q.
Q.
A.
A.
Q.
A.
The court may award support in such amount and for such period as it
may deem just and reasonable based on the standard of the spouses
living during the marriage. It may also consider other relevant factors
that the court may deem just and equitable. Supreme Court En Banc
Resolution A. M. 02-11-12-SC, 2
Q.
Where can the support for the common children be taken from?
A.
Q.
What must the court consider in determining the right party to whom
custody of the child is to be awarded?
Q.
A.
(1) If the party dies before the entry of judgment, the court shall order
the case closed and terminated, without prejudice to the settlement of
the estate in proper proceedings in the regular courts. (2) If the party
dies after the entry of judgment, the judgment shall be binding upon
the parties and their successors in interest in the settlement of the
estate in the regular courts. Supreme Court En Banc Resolution A. M.
02-11-10-SC, 24
Q.
How may the court issue provisional orders and protection orders in
petitions for declaration of absolute nullity of void marriage or for
annulment of voidable marriage?
4B 2012
4B 2012
ART. 35-57
A.
MARRIAGE
Void and Voidable Marriages
121
ART. 55-67
A.
Q.
A.
Q.
A.
TITLE II
LEGAL SEPARATION
4B 2012
122
The courts shall consider the best interests of the child and give
paramount consideration to the material and moral welfare of the
child. Supreme Court En Banc Resolution A. M. 02-11-12-SC, 4
Q.
LEGAL SEPARATION
No, it does not affect the marital status, there being no severance of
the vinculum (Laperal v. Republic, 6 SCRA 357). A legal separation
decree involves nothing more than a bed-and-board separation of the
spouses (Lapuz v. Eufemio, 43 SCRA 177).
4B 2012
ART. 55-67
LEGAL SEPARATION
123
Yes. No other grounds may be invoked by any party other than those
stated by law. This is in furtherance of the policy of the State to foster
unity in and preserve the marital relation as the same is essential to
the public welfare.
Q.
A.
ART. 55-67
LEGAL SEPARATION
124
A.
Q.
A.
The children under this ground may or may not be emancipated. The
immoral or corrupt act referred to is prostitution only. It cannot be
any other immoral or corrupt act. To stretch the import of the article
otherwise would not serve the policy of the law of discouraging legal
separation.
Q.
A.
Q.
Under the ground of final judgment involving more than six years of
imprisonment, against whom must the offense for which the spouse is
sentenced to imprisonment be committed?
A.
The frequency of the act, and not the severity is the determinative
factor. It must be committed repeatedly and with bad faith or malice.
Q.
A.
A.
Yes. Even if the act is not repeated or does not involve physical
violence, such act may nevertheless constitute grossly abusive conduct
under this ground. Grossly abusive conduct has no exact definition
and, therefore, is determined on a case-to-case basis.
Q.
A.
Q.
4B 2012
4B 2012
ART. 55-67
LEGAL SEPARATION
125
ART. 55-67
LEGAL SEPARATION
126
Q.
A.
A.
Q.
Are all attempts on the life of the spouse grounds for legal separation?
A.
No. The attempt on the life of the spouse must proceed from an evil
design and not from any justifiable cause like self-defense, or from the
fact that the spouse caught the other in flagrante delicto having carnal
knowledge with another man or woman.
Q.
Must the spouse who made an attempt on the life of the other be first
convicted before legal separation can take place?
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Would sexual intercourse with a person other than ones spouse after a
divorce is obtained abroad still constitute a ground for legal
separation?
Yes. It has been held that a Filipina who obtains an absolute divorce
abroad and subsequently marries a foreigner and cohabits with the
same has technically committed intercourse with a person other than
her husband, considering that the divorce obtained abroad is not
recognized in the Philippines and her subsequent marriage therefore
is bigamous. (Tenchavez v. Escano, 15 SCRA 355; Manila Surety &
Fidelity Co., Inc. v. Teodoro, 20 SCRA 463)
Q.
A.
Q.
4B 2012
4B 2012
ART. 55-67
LEGAL SEPARATION
127
ART. 55-67
A.
Q.
How much time must pass before a spouse can be said to have
abandoned the other?
A.
4B 2012
LEGAL SEPARATION
128
What is condonation?
A.
Q.
A.
It has been held that the act of giving money to an erring wife and the
fact that no action was taken against her in the courts of justice are
sufficient to establish forgiveness amounting to condonation, for
condonation is the forgiveness of one othe married parties of an offense
which he knows the other has committed against the other. Pardon or
condonation does not require sexual intercourse, and it may be express
or implied (Almacen v. Baltazar, 103 Phil. 1147).
Q.
A.
There is consent when either of the spouses agreed to or did not object,
despite full knowledge, to the act giving rise to a ground for legal
4B 2012
ART. 55-67
LEGAL SEPARATION
129
ART. 55-67
separation, before such act was in fact committed. Consent may also
be deduced from the acts of the spouses.
LEGAL SEPARATION
130
Q.
What is connivance?
Q.
A.
A.
An action for legal separation must be filed within 5 years from the
occurrence of the cause. After the lapse of this period, the legal
separation case can no longer be filed.
Q.
Q.
A.
A.
Q.
A.
The reason for this rule lies in the equitable maxim that he who comes
into equity must come with clean hands (Ann. Cas. 1917A 178 note).
When two persons acted in bad faith, they should be considered as
having acted in good faith. They are in pari delicto. Hence, the
plaintiff-spouse cannot invoke the guilt of the other if such plaintiffspouse is guilty for giving grounds for legal separation.
Q.
A.
4B 2012
4B 2012
ART. 55-67
LEGAL SEPARATION
131
ART. 55-67
132
A.
Q.
A.
Q.
A.
When the ground for legal separation involves violence against woman
or the child (Sec. 19 of RA 9262).
Q.
(3) The court should take steps toward the reconciliation of the spouses
and should be satisfied that despite such efforts, reconciliation is
highly improbable.
A.
Q.
A.
Q.
A.
LEGAL SEPARATION
4B 2012
4B 2012
ART. 55-67
LEGAL SEPARATION
133
A.
Q.
Who shall manage the properties during the legal separation suit?
A.
ART. 55-67
LEGAL SEPARATION
134
A.
(a) The spouses shall be entitled to live separately from each other, but
the marriage bond shall not be severed
Q.
A.
He or she has the same powers and duties as that of a guardian under
the Rules of Court.
Q.
What is the effect of death of the plaintiff before the final decree in an
action for legal separation?
A.
The death of one of the party to the action causes the death of the
action itself (actio personalis moritur cum persona).
(c) The custody of the minor children shall be awarded to the innocent
spouse, subject to the provision of Article 213 of the Family Code; and
Art. 63. The decree of legal separation shall have the following
effects:
(1)The spouses shall be entitled to live separately
from each other, but the marriage bonds shall
not be severed;
(2)The absolute community or the conjugal
partnership shall be dissolved and liquidated but
the offending spouse shall have no right to any
share of the net profits earned by the absolute
community or the conjugal partnership, which
shall be forfeited in accordance with the
provisions of Article 43(2);
4B 2012
(d) The offending spouse shall be disqualified from inheriting form the
innocent spouse by intestate succession, Moreover, provisions in favor
of the offending spouse in the will of the innocent spouse shall be
revoked by operation of law.
Q.
A.
Q.
4B 2012
ART. 55-67
A.
LEGAL SEPARATION
135
ART. 55-67
A.
His share shall be forfeited in favor of the common children or, if there
be none, the children of the guilty spouse by a previous marriage or, I
default of children, the innocent spouse.
Q.
A.
136
No. The spouses are only entitled to live separately from each other
but the marriage bond is not severed. They are still married to each
other. Thus, a spouse can still be held criminally liable for bigamy,
concubinage or adultery of he or she commits the act.
Q.
LEGAL SEPARATION
A.
The law gives the option to the innocent party whether or not he or she
will revoke the donation or the designation as beneficiary of the guilty
party in an insurance.
Q.
A.
The innocent spouse must file an action for revocation within 5 years
from the time the decree of legal separation has become final.
Q.
Q.
A.
A.
The right to bring an action to declare the nullity of the donation does
not prescribe.
Q.
A.
From the deliberations of the Code, the revocation of, or change in, the
designation of the insurance beneficiary shall take effect upon written
notification thereof to the insurer and not to the insured as provided
for in the law. There is a discrepancy between the final version of the
provision and the one signed by the President into law.
4B 2012
4B 2012
ART. 55-67
LEGAL SEPARATION
137
ART. 55-67
4B 2012
138
Q.
A.
LEGAL SEPARATION
Q.
A.
Q.
A.
Q.
A.
Q.
A.
The agreement reviving the previous property regime shall contain the
names and addresses of the creditors and the amounts of the credit.
4B 2012
ART. 55-67
LEGAL SEPARATION
139
A.
Q.
A.
TITLE III
RIGHTS AND OBLIGATIONS BETWEEN
HUSBAND AND WIFE
Art. 68. The husband and wife are obliged to live
together, observe mutual love, respect and fidelity,
and render mutual help and support. (109a)
Q.
A.
4B 2012
Art. 68-73
140
Q.
A.
Q.
A.
Q.
A.
No (Ty v. CA).
Q. What then is the remedy of the innocent spouse against the guilty
spouse?
A.
The guilty spouse may be held liable under the Articles 19, 20 or 21 of
the Civil Code or the abuse of right doctrine, if he or she acted in bad
faith in refusing to comply with the marital obligations and if the
property regime is separation of property.
Q.
A.
4B 2012
Art. 68-73
141
A.
Yes (Article 266-A of the Revised Penal Code). But the subsequent
forgiveness by the wife as the offended party shall extinguish the
criminal action or the penalty.
Q.
A.
Art. 68-73
A.
The court may exempt one spouse from living with the
other if the latter should live abroad or there are other
valid and compelling reasons for the exemption.
However, such exemption shall not apply if the same is
not compatible with the solidarity of the family. (110a)
Define domicile.
A.
Q.
A.
4B 2012
142
Q.
Art. 69. The husband and wife shall fix the family
domicile. In case of disagreement, the court shall decide.
Q.
A.
It shall be the right and duty of both the spouses regardless of their
property regime (e.g. if the family house is separately owned by one of
the spouses, the other spouse still has the right and duty relative to
the management of the household).
Q.
A.
The aggrieved spouse may apply to court for relief, which includes:
4B 2012
Art. 68-73
1.
2.
3.
4.
5.
143
Art. 68-73
144
A.
Q.
A.
What is the regarding the exercise of the husband and the wife of a
business or profession?
A.
The general rule is that the law does not require a spouse to obtain
prior consent from the other before entering into any legitimate
profession or activity.
The exception is when one spouse objects to the occupation of the other
on valid serious and moral grounds, in which case the court may
decide on the objection in a summary proceeding.
Q.
4B 2012
TITLE IV
PROPERTY RELATIONS BETWEEN
HUSBAND AND WIFE
Chapter 1. General Provisions
Art. 74. The property relationship between husband and
wife shall be governed in the following order:
(1)By marriage settlements executed before the
marriage;
(2)By the provisions of this Code; and
(3)By the local custom. (118)
4B 2012
Art. 74-81
145
Art. 74-81
General Provisions
146
General Provisions
A.
Q.
A.
Q.
A.
Q.
What is a custom?
A.
4B 2012
4B 2012
Art. 74-81
147
Art. 74-81
General Provisions
148
General Provisions
A.
Q.
What property regime will apply in case where the parties stipulate in
their marriage settlement that local customs shall apply, or that
absolute community property shall not govern their property relations
but fail to stipulate what property regime shall be applied?
A.
Q.
A.
Q.
Q.
A.
A.
Q.
A.
4B 2012
However, this rule is not applicable, and thus other laws shall govern,
in the following cases:
a. where both spouse are foreigners; or
b. involving the extrinsic validity of a contract when the
property is executed abroad, whether the contract is
executed in the Philippines or abroad.
4B 2012
Art. 74-81
149
Art. 82-81
General Provisions
150
A.
Q.
Are there cases when the provisions in a marriage settlement are
separable?
A.
Yes, for instance:
1.
Provisions which invalid but do not affect the rest of the
provisions stipulated in the marriage settlement will be
rendered ineffectual, the rest will continue to remain enforced;
or
2.
Stipulations which do not depend upon the celebration of
marriage shall be valid (e.g. provision to suppose the common
children of the contracting parties).
A.
Q.
A.
Q.
A.
4B 2012
4B 2012
Art. 82-81
151
Art. 82-81
152
A.
Q.
A.
The following are the requisites of a valid donation between future
spouses:
1. There must be a valid marriage settlement
2. The marriage settlement must stipulate a property regime
other than ACP
3. The donation contained in the marriage must not be more
than 1/5 of his/her present property
4. The donation must be accepted by the would-be spouse
5. It must comply w/ the requisites on donations (Title 3, Book 3,
NCC)
Q.
A.
4B 2012
co- owners of whatever each of them owns before the marriage and
whatever each of them acquires after the marriage.
Q.
When will the not more than one- fifth limitation not apply?
A.
Q.
A.
Yes. The donation is still valid even if the object of donation is subject
of an encumbrance. However, the donees rights are subject to the
encumbrance.
Q.
A.
4B 2012
Art. 82-81
153
Art. 82-81
154
Q.
4B 2012
A.
Q.
A.
If the marriage is not celebrated, the donor has the option to revoke or
to maintain the donation.
Q.
A.
Q.
Is there a prescriptive period within which the donor can exercise the
right to revoke or recover the donation given?
A.
Donor may revoke the donation within 5 years from the moment the
marriage is not solemnized on the fixed date.
4B 2012
Art. 82-81
155
Art. 82-81
156
Q.
When can the donor have the right to revoke the donation on the
ground that he marriage is void?
A.
A.
The spouse who acted in bad faith in procuring the marriage should
not be allowed to profit/gain from the donation. The donation, in the
instant case, is revoked by operation of law.
Q.
What is the effect of the legal separation and where the donee is the
guilty party on the donation?
A.
Generally, the donor has the option either to revoke or to maintain the
donation. Unless, if the ground is sexual infidelity in the form of
concubinage or adultery, the donation is VOID. Thus, the donor has 5
years from the finality of the decree of legal separation within which to
exercise his right to revoke.
Q.
A.
Q.
A.
The donor has the option to revoke the donation even before the
marriage is annulled. If the donor knew of the non- consent of the
parents before the marriage, the donor may not yet revoke because the
parents can still give their consent anytime prior to the marriage
ceremony. With this, the donor has five years from the time he had
knowledge that the needed consent was not obtained by the parties as
it is only from that time that the cause of action will accrue.
A.
Q.
A.
Q.
What is the effect of the annulment of marriage and the bad faith of
the donee to the donation?
4B 2012
4B 2012
Art. 82-81
157
Art. 82-81
2.
1.
2.
A.
Q.
A.
Q.
A.
158
4B 2012
3.
4.
5.
Q.
A.
Only persons who bear such a relation to the parties making the
transfer or to the property itself that such transfer interfere w/ their
rights or interests. The validity of the donation cannot be challenged
by those who bore absolutely no relation to the parties to the transfer
at the time it occurred & had no rights or interests inchoate, present,
remote, or otherwise in the property in question at the time the
transfer occurred.
Chapter 3
System of Absolute Community
Section 1
General Provisions
Art. 88. The absolute community of property between
spouses shall commence at the precise moment that the
marriage is celebrated. Any stipulation, express or
implied, for the commencement of the community regime
at any other time shall be void. (145a)
4B 2012
Art. 88-104
159
Art. 88-104
A.
Q.
A.
No. The Supreme Court said in the case of Matthews v. Taylor, G.R.
no. 164584, June 22, 2009 that alienshave been disqualified from
acquiring lands of the public domain. Hence, by virtue of the aforecited
constitutional provision, they are also disqualified from acquiring
private lands. The primary purpose of this constitutional provision is
the conservation of the national patrimony.
4B 2012
Q.
160
4B 2012
Art. 88-104
161
Art. 88-104
A.
Q.
Where can a waiver of rights, interests, shares and effects of the ACP
be made?
A.
Q.
A.
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.
A.
Q.
A.
Q.
162
4B 2012
4B 2012
Art. 88-104
163
Art. 88-104
What is Support?
A.
164
4B 2012
Q.
Does the right for support to education end upon reaching the age of
majority?
A.
No.
Q.
A.
Q.
A.
Q.
What if the debt or obligation was not for the benefit of the family, will
the ACP be held liable?
A.
Q.
A.
Yes, provided it redounded to the benefit of the family. But if it did not
benefit the family, the ACP, in the absence or insufficiency of the
exclusive property of the debtor spouse, shall pay and it will be
considered as advances to be deducted on the share of the debtor
spouse upon liquidation.
4B 2012
Art. 88-104
165
Art. 88-104
Q.
166
A.
Yes. (Ayala Investment v. Court of Appeals, G.R. No. 118305,
February 12, 1998.)
Q.
Can the ACP be held liable to pay the obligation or debt arising from a
crime or quasi-delict of a particular spouse?
Q.
A.
A.
Q. Can the ACP be held liable for the expenses of litigation between
husband and wife?
A.
Q.
Can the taxes, liens, charges, and expenses upon the community
property be done without the consent of the other spouse?
A.
Q.
Is the ACP liable for the expenditures incurred for the preservation of
the separate property of any of the spouses?
A.
Yes, because it is premised on the fact that the separate property has
been used or is being used by the family during the marriage.
Q.
A.
Q.
A.
This may fall under the prohibition under Article 87 making donations
between spouses, direct or indirect, void. A donation by one spouse to a
4B 2012
Q. Can the ACP be held liable for a suit not involving a case between
husband and wife?
A.
Q.
A wife was criminally sued by her husband for adultery and the wife
had to spend attorneys fees to defend herself, can the ACP be held
liable for such fees?
A.
Yes. The legal fees spent during litigation, wherein she was
subsequently acquitted, was as necessary as a claim for support,
inasmuch as the right to a good name and reputation and the right to
personal liberty are, at least, as vital and deserving of protection as the
right to existence which is, in the last analysis, the meaning of the
right to support. (Seva v. Nolan, 64 Phil. 374)
Q.
4B 2012
Art. 88-104
167
Art. 88-104
No, it does not seek to bind the CPG. By virtue of said contract, Mrs.
Harden merely bound herself or assumed the personal obligation
to pay, by way of contingent fees, 20% of her share in said
partnership. The contract neither gives, nor purports to give, to the
Appellee any right whatsoever, personal or real, in and to her
aforesaid share. The amount thereof is simply a basis for the
computation of said fees. (Recto v. Harden, 100 Phil. 427)
The spouses shall be solidarily liable for unpaid balance with their
separate properties if the community property is insufficient to cover
the liabilities for which the ACP is liable. What are not included in the
solidary liability?
A.
(1) Ante-nuptial debts not redounding to the benefit of the family, (2)
support of illegitimate children by either spouses, and (3) liabilities
incurred by the spouse by reason of a crime or quasi-delict.
Q.
A.
No. It is separate property, unless the donor expressly provided it to
form part of the ACP.
Q.
A.
168
4B 2012
4B 2012
Art. 88-104
169
Art. 88-104
A.
170
A.
No. The innocent purchaser for value may rely on what is officially
annotated in the TCT. The remedy of the aggrieved spouse is to
compel the erring spouse to account for the proceeds of the sale, as the
same is part of the ACP. (PNB v. Court of Appeals, 153 SCRA 435)
Q.
Suppose that a husband, without the consent of his wife but with her
knowledge, enters into a contract affecting the ACP, what is the status
of the contract?
A.
Q. Does joint administration require the husband and wife to always act
together?
A.
No. Each spouse may validly exercise full power of management alone,
subject to the
intervention of the court in proper cases.
Q.
A.
Note: The wife has the right to annul or nullify, as the case may be,
not only her share in the property involved, but the entire contract
itself.
Q.
A.
Q.
A.
Q.
A.
A.
Q.
A.
Q.
4B 2012
Note: In any event, should the administering spouse decide to sell real
property as such administrator of the community of conjugal property,
4B 2012
Art. 88-104
171
Art. 88-104
he or she must observe the procedure for sale of the wards estate
required of judicial guardians under Rule 95, not summary
proceedings under the Family Code. This is so because as the
administrator spouse, he or she must perform the duties of a guardian.
(Uy v. Court of Appeals, G.R. No. 109557, November 29, 2000)
Q.
172
A.
Either spouse may, without the consent of the other, make moderate
donations from the community property for charity or on occasions of
family rejoicing or distress.
Section 5
Dissolution of Absolute Community Regime
A.
A.
Q.
Suppose that after a decree of legal separation has been obtained, the
parties reconciled, may they agree to revive the property regime?
A.
Q.
A.
A.
It is treated as a continuing offer on the part of the consenting spouse
and the third person.
No. Such waiver is prohibited under Article 89 of the Family Code. The
act of disposition precisely highlights the testators intent to control the
property to take effect after death.
Art. 98. Neither spouse may donate any community
property without the consent of the other. However,
either spouse may, without the consent of the other,
make moderate donations from the community property
for charity or on occasions of family rejoicing or family
distress. (n)
Q.
A.
Q.
4B 2012
4B 2012
Art. 88-104
173
Art. 88-104
174
A.
Generally, the ACP will not be affected, with the exception of the
circumstances enumerated in the article.
Q.
May the mere fact of separating from the conjugal roof constitute a
reason for annulling the right of support?
A.
Q.
What is abandonment?
Q.
May the spouse who left the conjugal home without a valid cause seek
judicial authorization when the consent of the other spouse is not
obtained?
A.
A.
Yes.
Q.
Q.
A.
4B 2012
4B 2012
Art. 88-104
175
Art. 88-104
Q.
A.
Section 6
Liquidation of the Absolute Community
176
4B 2012
Q.
A.
Q.
A.
4B 2012
Art. 88-104
177
Art. 88-104
Q.
A.
Q. What should be the basis when appraising the value of the inventoried
items?
A.
The market value or, in default thereof, the assessed value at the time
of liquidation should be taken into account and not the purchase price.
Q.
Will equal sharing between the spouses always apply in the partition
of the net assets?
A.
Q.
A.
Q.
A.
178
4B 2012
A.
Q.
A.
Q.
Can the surviving spouse or the compulsory heirs undertake any act of
dominion over the property prior liquidation and partition?
4B 2012
Art. 88-104
179
Art. 88-104
180
A.
Yes they can but only over their interest, share or participation and
not over a specific concrete property.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
What happens if there are two marriages that are equal in duration
and the total amount of assets is 15k?
Q.
Is this mandatory?
A.
Yes, it is mandatory.
A.
Q.
Q.
What if the first marriage lasted 2 years while the other 3 years and
the total amount of assets is 15k?
A.
A.
The first marriage gets 2/5 of 15k and the second marriage gets 3/5.
4B 2012
4B 2012
Art. 88-104
181
Art 105-133
The first marriage will get 1/3 of 15k while the second 2/3.
Q.
What if the first marriage lasted for 2 years and had 1k of assets while
the second lasted for 3 years and had 2k of assets?
Multiply the duration and the amount of each marriage then pro-rate
the entire amount of assets. In this case the first marriage will get 2/8
of 15k while the second marriage will get 6/8 of 15k.
A.
Chapter 4
Conjugal Partnership of Gains
Section 1
General Provisions
Art. 105. In case the future spouses agree in the marriage
settlements that the regime of conjugal partnership
gains shall govern their property relations during
marriage, the provisions in this Chapter shall be of
supplementary application.
The provisions of this Chapter shall also apply to
conjugal partnerships of gains already established
between spouses before the effectivity of this Code,
without prejudice to vested rights already acquired in
accordance with the Civil Code or other laws, as
provided
in
Article
256.
(n)
Art. 106. Under the regime of conjugal partnership of
gains, the husband and wife place in a common fund
the proceeds, products, fruits and income from their
separate properties and those acquired by either or
4B 2012
182
Q.
A.
The spouses place in a common fund the proceeds, products, fruits and
income from their separate properties and those acquired by either or
both spouses through their efforts or by chance.
Q.
A.
Q.
A.
Q.
A.
4B 2012
Art 105-133
183
Art 105-133
184
Q.
A.
A.
Q.
What if the property was purchased before the marriage but was only
registered after the marriage under the name of the owner-spouse and
the other spouse as co-owner?
A.
Q.
A.
Q.
A.
Q.
A.
It shall belong exclusively to the spouse who had the right to redeem
such property even if he uses his own funds or used conjugal funds. If
conjugal funds were used, such spouse is obliged to reimburse such
amount.
Q.
What if conjugal property were executed upon and sold and one of the
spouses redeemed such property with her own funds, would it still be
conjugal property?
A.
Q.
A.
No, the other spouse is not an indispensable party to the case. Being a
partner, they are deemed co-owners and the filing of one co-owner does
not need the joining of the other co-owners.
Section 2
Exclusive Property of Each Spouse
Art. 109. The following shall be the exclusive property of
each spouse:
(1)That which is brought to the marriage as his or
her own;
(2)That which each acquires during the marriage
by gratuitous title;
(3)That which is acquired by right of redemption,
by barter or by exchange with property
belonging to only one of the spouses; and
(4)That which is purchased with exclusive money of
the wife or of the husband. (148a)
Q.
4B 2012
4B 2012
Art 105-133
185
Q.
What happens if separate properties were sold and the proceeds were
added to conjugal funds to buy properties, what is the nature of such
property?
A.
Q.
A.
A.
186
A.
Q.
A.
Art 105-133
4B 2012
4B 2012
Art 105-133
187
Art 105-133
188
Q.
Is an annuity a gratuity?
A.
A.
Q.
A.
It depends, if the property left by will to the husband and wife is proindiviso (not divided), then there would be accretion. However, if the
will states that husband will get Cebu property while wife will get
Makati property, there would be no accretion in this case as the
properties are not pro-indiviso.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
Section 3
Conjugal Partnership Property
Art. 116. All property acquired during the marriage,
whether the acquisition appears to have been made,
contracted or registered in the name of one or both
spouses, is presumed to be conjugal unless the contrary
is proved. (160a)
Q.
A.
It is considered as separate property if it was given because of previous
work.
4B 2012
4B 2012
Art 105-133
189
A.
Q.
A.
The presumption is applied when it has been proven that the property
in controversy was acquired during the marriage. Proof of acquisition
during the marriage is a condition sine qua non for the presumption to
operate. (Jocson v. Court of Appeals, 170 SCRA 333) For as long as
acquisition is proven during the marriage, the presumption will apply
even when the manner in which the properties were acquired does not
appear (Tan v. Court of Appeals, 273 SCRA 229) and even if the
property is registered in the name of one or both of the spouses
(Villanueva v. Court of Appeals, G.R. No. 143286, April 12, 2004, 427
SCRA 439)
Q. Does the presumption apply even when the spouses are living
separately?
A.
Yes, the presumption also applies even though the spouses are living
separately (Wong v. IAC, 200 SCRA 792)
Q.
A.
Q.
190
A.
The fact that the title is in the wifes name alone is determinative.
(Maramba v. Lozano, et al., G.R. No. L-21533, June 29, 1967, 20 SCRA
474)
Q.
A.
No, because the property could have been acquired while the owner
was single and registered only after the marriage ceremony
(Metropolitan Bank and Trust Company v. Tan, G.R. No. 163712,
November 30, 2006, 509 SCRA 383)
Q.
A.
No, it does not. (Belcodero v. Court of Appeals, 45 SCAD 400, 227
SCRA 303)
Art 105-133
4B 2012
Q.
A.
4B 2012
Art 105-133
191
Q.
A.
No, they are not. (Pintiano-Anno v. Anno, G.R. No. 163743, January
27, 2006, 480 SCRA 419)
Art. 117. The following are conjugal partnership properties:
(1)Those acquired by onerous title during the marriage
at the expense of the common fund, whether the
acquisition be for the partnership, or for only one of
the spouses;
(2)Those obtained from the labor, industry, work or
profession of either or both of the spouses;
(3)The fruits, natural, industrial, or civil, due or received
during the marriage from the common property, as
well as the net fruits from the exclusive property of
each spouse;
(4)The share of either spouse in the hidden treasure
which the law awards to the finder or owner of the
property where the treasure is found;
(5)Those acquired through occupation such as fishing or
hunting;
(6)Livestock existing upon the dissolution of the
partnership in excess of the number of each kind
brought to the marriage by either spouse; and
(7)Those which are acquired by chance, such as winnings
from gambling or betting. However, losses therefrom
shall be borne exclusively by the loser-spouse. (153a,
154a, 155, 159)
Q.
A.
4B 2012
Art 105-133
192
(1) Those acquired by onerous title during the marriage at the expense
of the common fund, whether the acquisition be for the partnership,
or for only one of the spouses;
(2) Those obtained from the labor, industry, work or profession of
either or both of the spouses;
(3) The fruits, natural, industrial, or civil, due or received during the
marriage from the common property, as well as the net fruits from
the exclusive property of each spouse;
(4) The share of either spouse in the hidden treasure which the law
awards to the finder or owner of the property where the treasure is
found;
(5) Those acquired through occupation such as fishing or hunting;
(6) Livestock existing upon the dissolution of the partnership in excess
of the number of each kind brought to the marriage by either
spouse; and
(7) Those which are acquired by chance, such as winnings from
gambling or betting. However, losses therefrom shall be borne
exclusively by the loser-spouse. (153a, 154a, 155, 159)
Q.
A.
Q.
A.
Yes, if such detention deprived the partnership of the use and earnings
of the same. (Bismorte v. Aldecoa, 17 Phil. 480)
Q.
4B 2012
Art 105-133
193
A.
No, said damages exclusively belong to the said injured spouse. (Lilius
v. Manila Railroad Co., 62 Phil. 56, 64-65, cited in Zulueta v. Pan
American World Airways, Inc., 49 SCRA 1)
Q.
A.
Net fruits are referred to because the fruits of the separate property
will be applied first to the expenses of administration of the said
separate property and the remaining balance of the said fruits which
constitute the net fruits shall be considered conjugal (See Minutes of
the 174th Joint Meeting of the Civil Code and Family Law committees
held on February 28, 1987, page 13)
Q.
A.
Are gold nuggets, precious stones in the raw state, oil and the like
hidden treasures?
A.
No, because they did not undergo transformation from their original
raw state.
Art 105-133
194
A.
Q.
A.
Q.
A.
No, the conjugal funds would only be entitled to reimbursement for the
expense (Lorenzo v. Nicolas, 91 Phil. 686). Under the Friar Lands Act
No. 1120, the equitable and beneficial title to the land passes to the
purchaser the moment the first installment is paid and a certificate of
sale is issued. (Alvarez v. Espiritu, 14 SCRA 892, citing Director of
Lands v. Rizal, 87 Phil. 806)
Q.
A property was bought during the marriage. The purchase was funded
partly by the exclusive money of either or both of the spouses and
partly by conjugal funds. Should the property be deemed both
paraphernal and conjugal in proportion to the contributions of each?
Q.
Q.
A.
4B 2012
4B 2012
Art 105-133
A.
195
In the case of Castillo, Jr. v. Pasco, 11 SCRA 102, the Supreme Court
decided that the property should be considered as both paraphernal
and conjugal, taking in consideration the contributions of each to the
total purchase price.
However, the applicability of the above jurisprudence may be
questioned right now in view of Article 118. Clearly, the reason is to
give life to the states public policy of, as much as possible creating a
unified ownership of properties between husband and wife during the
time of marriage. While Article 118 contemplates a situation where
the property was bought prior to the marriage, the public policy sought
to be achieved by the said provision must with more reason,
necessarily be carried into effect also in cases where the property was
purchased at the time when the parties are already and legally
married.
Art 105-133
Will interests falling due during the marriage belong exclusively to the
spouse who owns the credit?
A.
A.
4B 2012
196
Q.
Q.
Q.
A.
4B 2012
Art 105-133
197
Art 105-133
A.
4B 2012
198
Section 4
Charges Upon and Obligations of the Conjugal Partnership
4B 2012
Art 105-133
199
A.
Q.
A.
No, a husband acting as guarantor or surety for another does not act
for the benefit of the conjugal partnership. A contrary view would put
in peril the conjugal partnership property by allowing it to be given
gratuitously as in cases of donation of conjugal partnership property
which is prohibited. (Ayala Investment & Development Corp. v. Court
of Appeals, G.R. No. 118305, February 12, 1998)
Q.
A.
4B 2012
Art 105-133
200
Q.
A.
Q.
Who has the burden of proof to show that the liability redounded to
the benefit of the family?
A.
Q.
A.
Q.
A.
The creditors may demand payment from either or any of the spouses
with their respective separate properties. He or she who made the
payment may claim from his or her spouse only the share which
corresponds to each, with the interest for the payment already due. If
the payment is made before the debt is due, no interest for the
intervening period may be demanded (Article 1217 of the Civil Code).
4B 2012
Art 105-133
201
A.
Q.
Art 105-133
Q.
A.
It must be shown that the obligations under Article 121 have been
covered and that the debtor-spouse has insufficient or not exclusive
properties to pay the debt or obligation involved.
Q.
A.
The conjugal partnership is liable for the personal debts, fines and
indemnities of either spouse only after payment of all the liabilities of
the conjugal partnership as enumerated under Article 121 are covered
and when the separate property of the spouse is insufficient. Under
the absolute community regime, such liabilities may be charged
against the community in case the separate property of the spouse is
insufficient, without the need for payment of all the liabilities of the
absolute community property.
4B 2012
202
A.
A.
No, except insofar as it has redounded to the benefit of the family.
(Article 2238)
4B 2012
Art 105-133
203
Art 105-133
204
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
A.
The conjugal partnership property, regardless of which of the spouses
won.
Section 5. Administration of the Conjugal Partnership
Property
4B 2012
4B 2012
Art 105-133
205
Q.
Does this mean that the spouse having sole powers of administration
may encumber or dispose the properties?
A.
Q.
A.
Q.
No, any alienation made by one spouse without the knowledge and
consent of the other is invalid. (Homeowners Savings & Loans Bank v.
Dialo, G.R. No. 153802, March 11, 2005, 453 SCRA 283; Bautista v.
Silva, G.R. No. 157434, September 19, 2006, 502 SCRA 334)
If the sale of the conjugal partnership property done by the husband
was with the knowledge but without the approval of the wife, is the
sale valid?
4B 2012
Art 105-133
206
A.
The sale is voidable at the instance of the wife who is given five (5)
years from the date of the contract implementing the decision of the
husband to institute the case (Ravina v. Abrille, G.R. No. 160708,
October 16, 2009)
Q.
A.
Q.
In case the buyers knew that the property formed part of conjugal
partnership property but they bought it from the husband only
without the consent of the wife, is the sale valid?
A.
No, the sale is totally void. However, because of the doctrine of unjust
enrichment, the purchase price had to be returned to the buyers with
interest (Onesiforo v. Alinas, G.R. No. 158040, April 14, 2008)
Q.
What is the nature of the proceedings when the wife seeks to annul
the husbands decision in the administration and enjoyment of the
conjugal property?
A.
4B 2012
Art 105-133
Q.
207
A.
Through the death of either spouse, a decree of legal separation, a
decree of annulment or
nullity, or judicial separation of property.
Q.
Will partnership rules apply upon the dissolution of the conjugal
partnership?
A.
Q. If one spouse leaves the conjugal home without just case, is he or she
entitled to support?
A.
No.
4B 2012
Art 105-133
208
Q.
A.
Q.
A.
Q.
A.
Yes. Their separation in fact will not justify the non-liability of the
community property. (Garcia v. Cruz, 25 SCRA 225)
Art. 128. If a spouse without just cause abandons the
other or fails to comply with his or her obligation to the
family, the aggrieved spouse may petition the court for
receivership, for judicial separation of property, or for
authority to be the sole administrator of the conjugal
partnership property, subject to such precautionary
conditions as the court may impose.
The obligations to the family mentioned in the preceding
paragraph refer to marital, parental or property
relations.
A spouse is deemed to have abandoned the other when
he or she has left the conjugal dwelling without intention
of returning. The spouse who has left the conjugal
dwelling for a period of three months or has failed within
the same period to give any information as to his or her
whereabouts shall be prima facie presumed to have no
4B 2012
Art 105-133
209
A.
Art 105-133
210
Yes.
Q.
Specifically, what are the obligations to the family being referred to?
A.
A.
Q.
A.
No. There must be financial and moral desertation as well. (Dela Cruz
v. Dela Cruz, 130 Phil. 324)
Q.
Any limitations?
A.
4B 2012
Section 7
Liquidation of the
Conjugal Partnership
Assets and Liabilities
Art. 129. Upon the dissolution of the conjugal partnership
regime, the following procedure shall apply:
(1)An inventory shall be prepared, listing separately all
the properties of the conjugal partnership and the
exclusive properties of each spouse.
(2)Amounts advanced by the conjugal partnership in
payment of personal debts and obligations of either
spouse shall be credited to the conjugal partnership as
an asset thereof.
(3)Each spouse shall be reimbursed for the use of his or
her exclusive funds in the acquisition of property or
for the value of his or her exclusive property, the
4B 2012
Art 105-133
211
4B 2012
Art 105-133
212
Q.
A.
Q.
A.
Q.
A.
The market value and, in the default thereof the assessed value at the
time of
liquidation. (Prado v. Natividad, 47 Phil. 775)
Q.
A.
No. If the proceedings take a long time and the values assessed are
substantially altered, a new valuation can be made. (Padilla v.
Paterno, 93
Phil. 884)
A.
Equally.
4B 2012
Art 105-133
Q.
213
A.
In case of annulment of marriage under Article 45 or nullity under
Article 40.
Art 105-133
214
A.
Q.
Q.
A.
Any disposition or encumbrance involving the conjugal partnership
shall be
void.
A.
Q.
A.
Q.
A.
A.
Q.
4B 2012
4B 2012
Art 105-133
Q.
215
In case a person has had two marriages and the properties of both
marriages are being liquidated simultaneously, how is the liquidation
carried out?
A.
The capital, fruits and income shall pertain to the marriage where
they were respectively acquired.
Q. What if there is doubt as to which marriage the capital fruits and
income
belong?
A.
They shall be apportioned in proportion to the capital and duration of
each.
(For further illustrations, see the five scenarios under Article 104).
Art 105-133
Q.
A.
A.
A.
They can still claim support. (Santero v CFI, 153 SCRA 728)
Q.
A.
Chapter 5.
Separation of Property of the
Spouses and Administration of Common
Property by One Spouse During the Marriage
Q. During the liquidation, who can claim support from the common mass
of property?
Q.
A.
A.
4B 2012
216
4B 2012
Art. 134-142
217
Art. 134-142
Q.
A.
218
A.
Q.
A.
Q.
A.
Q.
A.
Q.
Will mere refusal or failure of the husband to inform the wife of the
progress of the family business constitute abuse?
A.
Q.
Q.
A.
A.
Q.
A.
Two years having elapsed without any news about the absentee or
since the receipt of the last news.
4B 2012
4B 2012
Art. 134-142
219
Art. 134-142
A.
220
No. They must have been separated in fact for at least one year and
reconciliation must be highly improbable.
The process laid down in Article 102 and Article 129 must be observed.
However the delivery of the presumptive legitime is no necessary
because such delivery applies only in case the marriage is either
judicially annulled under Article 45 or declared void under Article 40.
Q.
A.
Equal sharing.
Q.
A.
A.
Q.
A.
Q.
Will the failure to notify the creditors nullify the judicial order?
A.
No.
Q.
A.
Q.
A.
Q.
4B 2012
4B 2012
Art. 134-142
221
Art. 134-142
222
Q.
What are the instances where the property regime that existed before
the separation of property is revived?
A.
A.
4B 2012
4B 2012
Art. 134-142
223
Art. 134-142
A.
224
properties of each spouse; and (3) the names of all their known
creditors, their addresses and the amounts owing to each.
A.
4B 2012
A.
Q.
A.
4B 2012
Art. 143-146
225
Art. 147-148
226
A.
To each spouse shall belong all earnings from his or her profession,
business or industry and all fruits, natural, industrial or civil, due or
received during the marriage from his or her separate property.
A.
Solidary.
Chapter 7
Property Regime of Unions Without Marriage
Art. 147. When a man and a woman who are capacitated
to marry each other, live exclusively with each other as
husband and wife without the benefit 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.
4B 2012
Q.
A.
To qualify under Article 147, the man and the woman must: (1) must
be capacitated to marry each other; (2) live exclusively with each other
as husband and wife; and (3) be without the benefit of marriage or
under a void marriage. All these requisites must concur.
Q.
4B 2012
Art. 147-148
227
Art. 147-148
A.
228
4B 2012
A.
(1) A man and a woman living together as husband and wife, without
the benefit of marriage, but are not capacitated to marry;
(2) An adulterous relationship even if it occurred prior to the effectivity
of the Family Code (Atienza vs. De Castro, 508 SCRA 593).
(3) A bigamous or polygamous marriage;
(4) Incestuous void marriages under Art. 37; and
(5) Void Marriages by reason of public policy under Art. 38.
Q.
4B 2012
Art. 147-148
229
Art. 149-151
THE FAMILY
230
Family as an Institution
A.
(1) The salaries and wages are separately owned by the parties and if
any of the spouses is married, his or her salary is the property of the
conjugal partnership of gains of such legitimate marriage;
(2) Property solely acquired by funds of any of the parties belongs to
such party;
(3) 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;
(4) The respective shares of the parties over properties owned in
common are presumed to be equal. However, proofs may be shown to
show that their contribution and respective shares are not equal.
Without proof of actual contribution by both parties, there can be no
presumption of co-ownership and equal sharing (Villanueva v. Court of
Appeals, G.R. No. 143286, April 14, 2004; Rivera v. Heirs of Romualdo
Villanueva, G.R. No. 141501, July 21, 2006, 496 SCRA 135).
(5) The rule and presumption mentioned above shall apply to joint
deposits of Money and evidences of credit; and
(6) If one of the parties is validly married to another, his or her share
in the co-ownership shall accrue to the absolutes community or
conjugal partnership existing in such valid marriage. If the party who
acted in bad faith is not validly married to another, his or her share
shall be forfeited in the manner provided in the last paragraph of
Article 147. The foregoing rules on forfeiture shall likewise apply even
if both parties are in bad faith.
Husband and wife agrees to each have a paramour which will not be a
ground to invalidate the marriage. Is the agreement valid?
A.
Q.
A.
TITLE V
THE FAMILY
Chapter 1
4B 2012
4B 2012
Art. 149-151
THE FAMILY
231
Family as an Institution
Q.
Art. 152-162
A.
Q.
A.
232
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Chapter 2
The Family Home
Art. 152. The family home, constituted jointly by the
husband and the wife or by an unmarried head of a
family, is the dwelling house where they and their family
reside, and the land on which it is situated. (223a)
Art. 153. The family home is deemed constituted on a
house and lot from the time it is occupied as a family
residence. From the time of its constitution and so long
as any of its beneficiaries actually resides therein, the
family home continues to be such and is exempt from
execution, forced sale or attachment except as
hereinafter provided and to the extent of the value
allowed by law.
THE FAMILY
The Family Home
4B 2012
4B 2012
Art. 152-162
THE FAMILY
233
Art. 152-162
A.
Article 154
Q.
A.
234
A. The term debt used in Article 155 is not qualified and must
therefore be used in its generic sense, i.e., obligations in general. A
court judgment is not necessary to clothe a pre-existing debt under
Article 155 with the privileged character of being enforceable against
the family home.
Q.
Q.
THE FAMILY
The Family Home
4B 2012
Q.
A.
4B 2012
Art. 152-162
THE FAMILY
235
Art. 152-162
THE FAMILY
236
Art. 157. The actual value of the family home shall not
exceed, at the time of its constitution, the amount of the
three hundred thousand pesos in urban areas, and two
hundred thousand pesos in rural areas, or such amounts
as may hereafter be fixed by law.
A.
A.
4B 2012
Q.
Can the heirs partition the family home upon the death of the person
who constituted it?
A.
No. The family home shall continue as a family home for a period of 10
years or for as long as there is a minor beneficiary. The heirs cannot
partition the same unless the court finds compelling reasons therefor.
The Supreme Court found that though a house and lot passed to the
heirs because of the death of the father, it cannot be immediately
partitioned because of Article 159. Article 159 imposes the proscription
against the immediate partition of the family home regardless of its
ownership. (Arriola v. Arriola, 542 SCRA 666)
Art. 160. When a creditor whose claims is not among
those mentioned in Article 155 obtains a judgment in his
favor, and he has reasonable grounds to believe that the
family home is actually worth more than the maximum
amount fixed in Article 157, he may apply to the court
which rendered the judgment for an order directing the
4B 2012
Art. 152-162
THE FAMILY
237
Art. 152-162
THE FAMILY
238
What is the difference between claims under Article 155 and claims
under Article 16
A.
Unlike Article 155, there is a need under Article 160 for a court
decision before a judgment creditor can avail of the privilege under
Article 160 of the family code. Also, the judgment creditor making a
claim under Article 160 should not be one of those mentioned in Article
155.
Q. What is the extent and legal significance of Article 162 of the Family
Code?
A.
4B 2012
4B 2012
Arts. 163-172
239
Arts. 163-172
of the child.
Q.
In recognizing children conceived as a result of artificial insemination,
does it mean
then that the Code gave legality to such process?
A.
Q.
A.
Chapter 1
Legitimate Children
Art.163. The filiation of children may be by nature or
by adoption. Natural filiation may be legitimate or
illegitimate. (n)
240
4B 2012
A.
No. A wife who, without consent of the husband, had herself artificially
inseminated by the semen of another which led to the siring of a child
not of the husband, cannot be held criminally liable for adultery. The
crime of adultery has been defined in Article 333 of the Revised Penal
Code as committed by any married woman who shall have sexual
intercourse with a man not her husband. Artificial insemination,
nevertheless, does not involve sexual intercourse which is one of the
essential elements in the crime of adultery in the Revised Penal Code.
(U.S. v. Abad
Santos, 36 Phil. 243; People v. Yu Huat, 99 Phil. 728)
Art. 166. Legitimacy of a child may be impugned only on
the following grounds:
(1) That it was physically impossible for the husband to
have sexual intercourse with his wife within the first 120
days of the 300 days which immediately preceded the
4B 2012
Arts. 163-172
241
(b) the fact that the husband and wife were living
separately in such a way that sexual intercourse
was not possible; or
(c)serious illness of the husband, which absolutely
prevented sexual intercourse;
(2) That it is proved that for biological or other scientific
reasons, the child could not have been that of the
husband, except in the
instance provided in the
second
paragraph
of
Article
164;
or
(3) That in case of children conceived through artificial
insemination, the written authorization or ratification of
either
parent was obtained through mistake, fraud,
violence, intimidation,
or undue influence. (255a)
Art. 167. The child shall be considered legitimate
although the mother may have declared against its
legitimacy or may have been sentenced as an adulteress.
(256a)
When is Article 166 applicable?
A.
Article 166 necessarily presupposes a valid marriage between the
husband and the wife.
Q.
A.
Only the husband and, in proper cases provided in Article 171, the
heirs can invoke the grounds under Article 166. No other person can
make the same.
Q. What is the exception to the rule that the legitimacy of the child can
likewise be questioned on the ground that the marriage between the
242
Q.
Arts. 163-172
4B 2012
A.
A.
Only to a situation where the child has been delivered by a woman
who is the childs natural mother. They do nt apply where the alleged
mother did not, in fact, deliver the child herself, or, in short, where the child
did not come from her own womb. This is
likewise a condition sine qua
non for Articles 166 and 167 to apply.
Q. Is it correct to rely on Articles 164, 166, 167, 170 and 171 in opposing a
personss claim to be the only daughter of the deceased married couple
whose estate was under
consideration?
A.
4B 2012
Arts. 163-172
243
Arts. 163-172
Q.
What is the basis behind the 180-300 day period provided by law?
A.
Q.
What happens when the mother marries again and a child is born
within 180 days from the solemnization of the second marriage and
within the 300-day period after the termination of the first marriage
and there is no concrete proof as to the father of the child?
A.
4B 2012
244
Is there a presumption for a child born after 300 days after the
termination of a marriage?
A.
Q.
What happens if a child is born after 300 days after the termination of
a marriage?
A.
4B 2012
Arts. 163-172
245
Arts. 163-172
A.
Q.
Who are the heirs contemplated by law that can file an action as a
substitute for the husband?
A.
Q.
Can the mother have standing to impugn the legitimacy of her child?
A.
The law does not give the mother standing to file an action to impugn
the filiation or legitimacy of her children because maternity is never
uncertain (Eloi v. Made, 1 Rob. 581). Moreover, for reasons of public
decency and morality, a married woman cannot say that she had no
intercourse with her husband and that her offspring is spurious
(People ex rel. Gonzales v. Monroe, 43 Ill. App 2d 1, 192 N.E. 2d 691)
Q.
A.
A.
Principally, only the husband can file a direct action to impugn the
legitimacy of the child. Article 171 provides for the exception. His
heirs can substitute him only if he dies before the period fixed for
bringing the action or after the filing of the same, without having
desisted therefrom, or if the child was born after his death.
Q.
A.
Q.
4B 2012
246
husband. Can a case where the paramour of a wife who filed an action
for the custody of the child prosper?
Q.
4B 2012
Arts. 163-172
247
What are the prescriptive period for the husband or, in proper cases,
the heirs to impugn the legitimacy of a child?
A.
Q.
Why are the prescriptive periods for impugning the legitimacy shorter
compared to the other prescriptive period relative to any other action
such as annulment of marriage and legal separation?
A.
Q.
Can the legitimacy of the child still be question after the lapse of the
applicable prescriptive period?
A.
No, after the lapse of the prescriptive period, the status of the child
becomes fixed and cannot be questioned anymore (Angeles v. Maglaya,
G.R. No. 153798, September 2, 2005, 469 SCRA 363; Tison v. Court of
Appeals, 276 SCRA 582; De Jesus v. Estate of Decedent Juan Gamboa
Dizon).
4B 2012
Arts. 163-172
248
Q.
A.
It starts to run from the time of the knowledge of birth or its recording
in the civil register.
Chapter 2
Proof of Filiation
Art. 172. The filiation of legitimate children is established
by any of the following:
(1) The record of birth appearing in the civil
register or a final judgment; or
(2) An admission of legitimate filiation in a public
document or a private handwritten instrument and
signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate
filiation shall be proved by:
(1) The open and continuous possession of the
status of a legitimate child; or
(2) Any other means allowed by the Rules of Court
and special laws. (265a, 266a, 267a)
Q.
A.
4B 2012
Arts. 172-174
249
Arts. 172-174
Q.
A.
Q.
A.
Q.
A.
4B 2012
250
Q.
A.
Q.
A.
Q.
What are the overt acts and conduct that satisfy the requirement
of open and continuous possession of legitimate status?
A.
4B 2012
Arts. 172-174
251
A.
Q.
A.
Q.
Arts. 172-174
252
A.
Q.
A.
Q.
As between the parent and the child, can other persons file an action
to claim legitimacy in behalf of the child?
A.
Generally, no. The right of action for legitimacy devolving upon the
child is of a personal character and generally pertains exclusively to
him. Only the child may exercise it at any time during his lifetime. As
exception, and in three cases only, it may be transmitted to the heirs of
the child, to wit: if he or she died during his or her minority, or while
insane, or after action had already been instituted. Inasmuch as the
right of action accruing to the child to claim his or her legitimacy lasts
during his or her whole lifetime, he or she may exercise it either
4B 2012
4B 2012
Arts. 172-174
253
Arts. 172-174
254
Chapter 3
Illegitimate Children
A.
Q.
(1) To bear the surnames of the father and the mother, in conformity
with the provisions of the Civil Code on Surnames;
A.
Q.
A.
Q.
A.
4B 2012
4B 2012
Arts. 175-176
255
A.
Yes, provided it is not rebutted and in fact not disputed by the alleged
parent (Navarro v.
Bacalla, 15 SCRA 114).
Q.
A.
Q.
A.
Yes. If the birth of the illegitimate child is way beyond nine months
from the approximate time of conception resulting from the alleged
sexual intercourse between the parties, this can negate filiation
(Constantino v. Mendez, 209 SCRA 28).
Q.
A.
No. Private letters and notes are not enough to prove filiation Section
40, Rule 130, Rules of Court:
Arts. 175-176
v.
256
Q.
A.
Q.
Q.
A.
A.
The love letters are in the handwriting of the petitioner, using alias,
declaring that should the respondent got pregnant, he will have no
regret and they should enjoy the responsibility are considered as a
private handwritten instrument that can establish filiation (Verseles
Yes. An illegitimate child may use the surname of his or her father if
the filiation has been expressly recognized by the father through the
record of birth appearing in the civil register, or when an admission
in a public document or private handwritten instrument is made by
the father.
4B 2012
4B 2012
Arts. 175-176
Q.
257
Arts. 177-182
258
Does the father have the right to institute an action before the regular
courts to prove non-filiation during his lifetime?
A.
Yes, even though he allowed the use of his surname by the illegitimate
child.
Q.
A.
Q.
A.
The mother has parental authority over the illegitimate child. This is
the case notwithstanding the recognition of the father (Briones v.
Miguel, GR No. 156343) because the alleged putative father may not
be the real natural father, hence, the parental authority is solely given
to the mother. Even though paternity is certain, the mother still has
custody with the father not cohabiting with the mother (David v. CA,
65 SCAD 508).
Q.
A.
Q.
Can the illegitimate child be under the parental authority of the father
and mother?
A.
Yes, if the father lives together with the illegitimate child whom he
admits as his, and with
the mother, parental authority is
exercised by both parents?
Chapter 4
Legitimated Children
Art. 177. Only children conceived and born outside of
wedlock of parents who, at the time of the conception of
4B 2012
Q.
A.
Q.
A.
Legitimation takes place by a subsequent valid marriage between
parents.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
4B 2012
Arts. 177-182
259
Arts. 177-182
260
Q.
A.
The requirements for legitimation are: 1) the parents do not suffer any
legal impediment or are disqualified to marry because either one or
both of them are 18 years of age at the time of the conception of the
child by the mother; 2) the child has been conceived and born outside
of a valid marriage; and 3) the parents subsequently enter into a valid
marriage.
Q.
A.
Q.
A.
The prescriptive period is within five years from the time the cause of
action accrues.
Yes, it retroacts when the law [the Family Code] becomes effective
(Henry v. Jean, 238 La 314, 225 So2d 363). This is for the benefit of
the child and for his or her paramount interest.
Q.
A.
Q.
A.
A.
Q.
A.
No, it will not affect vested property rights (Mudrow v. Cladwell, 173
SC 243).
Q.
A.
4B 2012
SECTIONS 1-3
Q.
Who is a child?
A.
Q.
A.
Certification has been issued by the DSWD that he/she is available for
4B 2012
RA 8552
ADOPTION
Republic Act No. 8552
261
RA 8552
ADOPTION
Republic Act No. 8552
262
A.
SECTION 4
1.) abandonment;
Q.
A.
principal parties namely, the 1.) natural parents, 2.) adopter and 3.)
adoptee.
Q.
A.
Q.
A.
No binding commitment of adoption shall be permitted before the birth
of the child.
SECTION 5-6
Q.
What is the status of an adoption degree which did not comply with all
requirements of law?
A.
NULL (In re OKeefe, 164 Misc 473 [1937]), but the burden of proof in
establishing adoption is upon the person claiming such relationship, as
such he/she must prove compliance with the statutes relating to
adoption (Lazatin v Campos, 92 scra 263). However, substantial
4B 2012
Q.
A.
Two phases
SECTION 7
Q.
A.
4B 2012
RA 8552
ADOPTION
Republic Act No. 8552
263
Q.
A.
RA 8552
ADOPTION
Republic Act No. 8552
2.) good moral character and has not been convicted of any crime
involving moral turpitude
3.) emotionally and psychologiucally capable of caring for children
Q.
A.
5.) able to support and care for his/her children in keeping with the
means of the family.
NOTE: requirement of 17 years difference may be waived when
adopter is the
biological parent of the adoptee or the spouse of the
adoptees parent.
Q.
A.
A.
General Rule is NO (In Re: Petition for Adoption of Michelle Lim, G.R.
Nos. 168992-93, May 21, 2009). Except when:
1.) If one spouse seeks to adopt the legitimate son/daughter of
the other; or
2.) His/her country has diplomatic relations with the Republic of the
Philippines
3.) He/she has been living in the Philippines for at least three (3)
continuous years prior to
the filing of the application for adoption
and maintains such residence until the adoption
decree is entered
- final and executory.
4.) He/she 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, and that his/her
government
allows the adoptee to enter his/her country as his/her adopted
son/daughter.
NOTE: Residency and certification requirements may be waived, in
the discretion of the
court, in cases of:
1.) Former Filipino seeking to adopt a relative within the 4th civil
degree of consanguinity or affinity; or
4B 2012
264
A.
4B 2012
RA 8552
ADOPTION
Republic Act No. 8552
265
RA 8552
ADOPTION
Republic Act No. 8552
266
to legitimate; or
Q.
4.)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
own child since minority; or
A.
ALL legal ties with biological parents are effectively cut except when
the biological parent is the spouse of the adopter. It makes the
adopted child the natural child of the adoptive parents.
SECTION 9
SECTION 18
Q.
Q.
A.
A.
SECTION 19
Q.
A.
Q.
A.
SECTION 16-17
4B 2012
4B 2012
RA 8552
ADOPTION
Republic Act No. 8552
267
AM 02-6-02 SC
ADOPTION
Inter-Country Adoption
268
A.
No. He has not right to rescind but may disinherit for cause provided
in Article 919 of the
Civil Code.
Q.
A.
Yes, the ICAB can cancel the license to operate and blacklist the childcaring and placement agency involved from the accreditation list of the
ICAB upon finding of violation of any provision under the Act. (Sec. 4
(h), RA 8043)
Q.
What are the requirements before the ICAB will accredit foreign
private adoption agencies?
A.
Q.
A.
Q.
A.
Generally no, because the law says that the alien must be at least 27
years old and at least 16 years older than the child to be adopted. The
exception is when the adopter is the natural parent of the child or the
spouse of such parent. (Sec. 9 (a), RA 8043)
Must a married couple jointly file for adoption?
Q.
A.
No, the Act can also apply to Filipino citizens permanently residing
abroad.
Q.
Q.
A.
A.
Yes. This is an explicit requirement under the law. (Sec. 9 (b), RA
8043)
Q.
A.
4B 2012
Q.
A.
4B 2012
AM 02-6-02 SC
ADOPTION
Inter-Country Adoption
269
A.
Q.
What is matching?
A.
Q.
What are the costs that the applicant must bear incidental to the
placement of the child?
A.
(1) The cost of bringing the child from the Philippines to the residence
of the applicant abroad, including all travel expenses within the
Philippines and abroad and (2) The cost of passport, visa, medical
examination and psychological evaluation required and other related
expenses. (Sec. 12, RA 8043)
AM 02-6-02 SC
ADOPTION
Inter-Country Adoption
270
A.
When the ICAB fails to find another placement for the child within
reasonable time after the termination of the pre-adoptive relationship
and that repatriation is the only option available provided it is still in
the best interest of the child. (Sec. 47, Rules and Regulations)
Q.
A.
This is filed with the proper court of the country where the applicant
resides within 6 months after the completion of the trial custody
period.
Q.
A.
Q.
A.
Q.
A.
During the trial custody what must be submitted by the adoptive
parents to the governmental agency or authorized and accredited
agency?
Q.
A.
A.
Q.
1. Spouses
2. Legitimate ascendants and descendants.
3. Parents and their legitimate children and the legitimate and
illegitimate children of the latter.
Q.
4B 2012
4B 2012
SUPPORT
271
A.
Q.
A.
Q.
Can a spouse ask for support pendente lite from the other spouse in a
case wherein the validity of the marriage is the very lis mota of the
case without a hearing?
A.
Q.
A.
Q.
A.
Q.
If the status of the child is the issue of the case, can the child get
support pendent lite?
4B 2012
SUPPORT
272
A.
Yes, if the status of the chid has been proven provisionally, which can
be attained if there is prima facie evidence (affidavit of the claimantchild, testimonies)? However, the finding is
only provisional and is
subject to the final outcome of the trial on the merits (Mangulabnan
v. IAC, 185 SCRA 760)
Q.
A.
Yes, unless the sibling is of age, and that the need for support is due
to a cause imputable to the claimants fault or negligence (Article 196,
Family Code).
Q.
A.
From the separate property of the one who is obliged to give support.
However, if the obligor has no separate property, the absolute
community or conjugal partnership will be liable, if financially capable,
and such will be considered as a deduction from the share of the
spouse obliged upon liquidation (Article 197, Family Code).
Q.
A.
Q.
When two or more persons are obliged to give support, what is the
order upon whom the obligation devolves?
A.
1. Spouse;
4B 2012
SUPPORT
273
SUPPORT
274
A.
Demandable from the time the person has a right to receive the same
needs it. It is payable only upon judicial or extrajudicial demand, and
it should be paid within the first five days of each
corresponding
month (Article 203, Family Code).
Q.
Does the right to support arise from the mere fact of relationship?
A.
Q.
When the obligation to give support falls upon two or more persons,
how is the payment divided?
A.
Q.
A.
A judge may order only one to pay, without prejudice to his right to
claim from the others the share due from them (Article 200, Family
Code).
Q.
Q.
What if there are two or more claimants and only one obligor?
A.
A.
He must satisfy both. In the event that s/he has insufficient means,
the order in Article 199
should be followed, unless the claimant
is a child under his/her parental authority, then the child is preferred
(Article 200, Family Code).
Q.
What are the options of the one who is obliged to give support?
A.
Q.
A.
Q.
A.
Q.
Q.
A.
Q.
A.
No. The support under the judgment becomes due from the time to
time as provided and is
enforceable by simple motion at ANY
time, except as to instalments not recovered within the
statute of
limitations (Sta. Maria, p. 771).
4B 2012
4B 2012
SUPPORT
275
SUPPORT
276
Q.
A.
Q.
A.
Q.
Chapter 1
General Provisions
A.
What is the resulting relationship between the third party and the
person obliged to give support?
A.
Q.
A.
Q.
4B 2012
Q.
A.
Q.
Can a child below seven years old be separated from the mother?
4B 2012
Art. 209-215
A.
PARENTAL AUTHORITY
General Provision
277
Art. 209-215
Thus, while our law recognizes the right of a parent to the custody of
the child, courts have not lost sight of the basic principle that in all
questions of the care, custody, education and property of the children,
the latters welfare shall be paramount and that for compelling
reasons, even a child under seven may be ordered separated from the
mother (Medina vs. Makabali, 27 SCRA 502; Luna vs. IAC, 137
SCRA 7).
Q.
A.
Parental authority is the sum total of the rights of parents over the
person and property of their children (2 Manresa 8, cited in Paras,
Civil Code of the Philippines, Annotated, Fourth
Ed., p. 591).
A.
4B 2012
278
A.
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.
Q.
PARENTAL AUTHORITY
General Provision
A.
No, Article 211 of the Family Code uses the phrase common children
which does not distinguish whether the said common children are
legitimate or illegitimate.
Q. What is needed for joint parental authority to apply to illegitimate
children?
A.
Q.
A.
4B 2012
Art. 209-215
PARENTAL AUTHORITY
General Provision
279
Art. 209-215
PARENTAL AUTHORITY
General Provision
280
Q.
A.
If the child is seven years old and above, is his or her choice of a
parent with whom he or she will live conclusive upon the courts?
A.
If the child is seven years old and above, his or her choice of a parent
with whom he or she will live is significant and the court should take
this into consideration. However, such choice is not determinative of
the issue of custody because, while the choice may be in favor of
parent, the court may still nevertheless award custody to the other
parent or even to a third person if the paramount interest of the child
so dictates.
Q.
A.
The death of one of the parents will not terminate the parental
authority of the surviving
parent over their children.
Q. What is the nature of the word shall under Article 213 of the Family
Code?
Q.
A.
A.
The use of the word shall in Article 363 of the Civil Code (now Article
213 of the Family
Code), coupled with the observations made by
the Code Commission in respect to the said
legal
provision,
underscores its mandatory character. It prohibits in no uncertain
terms the separation of a mother and her child below seven years,
unless such separation is grounded
upon compelling reasons as
determined by a court (Lacson vs. San Jose-Lacson, 24 SCRA
837).
Thus, any agreement by the parties unduly depriving the mother of
the custody of her children under seven years of age in the absence of
any compelling reason to warrant the
same is null and void (Ibid.)
Q.
A.
4B 2012
4B 2012
Art. 209-215
PARENTAL AUTHORITY
General Provision
281
Makabali,
Art. 209-215
27
Q.
A.
No, it is not enough to show that the mother was lesbian. It must be
shown that the purported relationship with a person of the same sex in
the presence of the child is not conducive for the childs proper moral
development (Gualberto vs. Rafaelito)
Q.
A.
The decisions of the courts, even the Supreme Court, on the custody of
minor children are always open to adjustments as the circumstances
relevant to the matter may demand in the light of the inflexible
criterion, namely the paramount interest of the children (Unson III vs.
Navarro, 101 SCRA 189).
PARENTAL AUTHORITY
General Provision
282
A.
A.
4B 2012
4B 2012
Art. 216-219
PARENTAL AUTHORITY
Substitute and Special Parental Authority
283
Chapter 2
Substitute and Special Parental Authority
Art. 216. In default of parents or a judicially appointed
guardian, the following person shall exercise substitute
parental authority over the child in the order indicated:
(1) The surviving grandparent, as provided in Art.
214;
(2) The oldest brother or sister, over twenty-one
years of age, unless unfit or disqualified; and
(3) The child's actual custodian, over twenty-one
years of age, unless unfit or disqualified.
Whenever the appointment or a judicial guardian over
the property of the child becomes necessary, the same
order of preference shall be observed. (349a, 351a, 354a)
Q.
A.
They have very important roles because they shall have all the rights
of the parents enumerated under in Article 220. They shall have the
same authority over the person of the child as the parents (Article
233). And they shall be civilly liable for the injuries and damages
caused by the acts or omissions of the unemancipated children living
in their company and under their parental authority.
Q.
A.
No.
Q.
What must be the basis of the custody and care of the child?
A.
Always, the paramount interest of the child must be the basis of the
custody and care.
Q.
4B 2012
Art. 216-219
A.
PARENTAL AUTHORITY
Substitute and Special Parental Authority
284
Q.
Who is a foundling?
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
4B 2012
Art. 216-219
PARENTAL AUTHORITY
Substitute and Special Parental Authority
285
Art. 216-219
PARENTAL AUTHORITY
Substitute and Special Parental Authority
286
Q.
A.
Q.
A.
Q.
A.
A.
Q.
Q.
A.
The parent or guardian of the child may voluntarily commit him to the
Department of Social Welfare or any duly licensed child placement
A.
4B 2012
4B 2012
Art. 216-219
PARENTAL AUTHORITY
Substitute and Special Parental Authority
287
Art. 220-224
A.
They are civilly liable for acts and omissions of the minor. However,
the liabilities will not apply if it is proved that they exercised the
proper diligence required under the particular circumstances.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
PARENTAL AUTHORITY
288
Chapter 3
Q.
Where does the concept of parental rights and duties stem from?
A.
The laws concept of the family rests on the presumption that parents
possess what a child lacks in maturity, experience and capacity for
judgment required for making difficult life decisions. Also, it has been
recognized that natural bonds of affection lead parents to act in the
4B 2012
4B 2012
Art. 220-224
PARENTAL AUTHORITY
289
Art. 220-224
PARENTAL AUTHORITY
290
Can the child, despite her wrong and seemingly incorrigible behavior,
file an action to compel the parents to provide support?
A.
There has been no case decided by the Supreme Court on this matter.
However, American decisions may be helpful. In Roe v. Doe, 29 NY 2d
188, 272 N.E. 2d 567, 324 NY S.2d 71 (1971), it was held that the
actions of the child in disregarding the parental authority of the parent
forfeited her rights to demand support.
Art. 221. 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. (2180(2)a and (4)a )
A.
Q.
A.
The parents must show that they exercised the diligence of a good
father of a family to prevent the damage.
Q.
Who is liable when a minor child, who shot another person, was
subject of adoption proceedings but was still in the custody and
parental authority of the natural parents?
A.
The natural parents. Although the law provides that the adoption
decree has a retroactive effect that goes back to the filing of the
petition for adoption, such cannot apply to issues of vicarious liability
of parents which can only attach, if at the time of the incident, the
child were under their custody and parental authority. (Tamargo v.
Court of Appeals, 209 SCRA 518)
Q.
A.
They are principally and primarily liable for the acts or omission of
their unemancipated children resulting in injuries to others. For the
liability to attach, the child must be living in their company and under
their parental authority.
Q.
What is a guardianship?
Q.
A.
A.
Q.
A.
Q.
Q.
4B 2012
4B 2012
Art. 220-224
PARENTAL AUTHORITY
291
Art. 220-224
A.
PARENTAL AUTHORITY
292
Q.
A.
Q.
A.
This Rule shall apply to petitions for guardianship over the person
or property, or both, of a minor. (Section 1, A.M. No. 03-02-05-SC)
This Rule amends Rules 92 to 97 inclusive of the Rules of Court on
guardianship of minors. Guardianship of incompetents who are
not minors shall continue to be under the jurisdiction of the
regular courts and governed by the Rules of Court. (Section 27,
A.M. No. 03-02-05-SC)
Q.
A.
Q.
A.
Q.
A.
The court shall consider the guardians: (a) moral character; (b)
physical, mental, and physical condition; (c) financial status; (d)
relationship of trust with the minor; (e) availability to exercise the
powers and duties of a guardian for the full period of the
guardianship; (f) lack of conflict of interest with the minor; and (g)
ability to manage the property of the minor. (Section 5, A.M. No.
03-02-05-SC)
Q.
Will the rule apply in case the father and the mother jointly
exercise legal guardianship over the person and property of their
unemancipated common child without the necessity of a court
appointment?
A.
Q.
Q.
A.
A.
4B 2012
4B 2012
Art. 220-224
PARENTAL AUTHORITY
293
Art. 220-224
A.
Q.
A.
A guardian shall have the care and custody of the person of his
ward and the management of his property, or only the
management of his property. A guardian shall perform the
following duties: (a) To pay the just debts of the ward out of the
personal property and the income of the real property of the ward,
If the same is sufficient; otherwise, out of the real property of the
ward upon obtaining an order for its sale or encumbrance; (b) To
settle all accounts of his ward, and demand, sue for, receive all
debts due him, or may, with the approval of the court, compound
for the same and give discharges to the debtor on receiving a fair
and just dividend of the property and effects; and to appear for
and represent the ward in all actions and special proceedings,
unless another person is appointed for that purpose; (c) To
manage the property of the ward frugally and without waste, and
apply the income and profits thereon, insofar as may be necessary,
to the comfortable and suitable maintenance of the ward; and if
such income and profits be insufficient for that purpose, to sell or
encumber the real or personal property, upon being authorized by
the court to do so; (d) To consent to a partition of real or personal
property owned by the ward jointly or in common with others
upon authority granted by the court after hearing, notice to
relatives of the ward, and a careful investigation as to the
necessity and propriety of the proposed action; (e) To submit to the
PARENTAL AUTHORITY
294
4B 2012
A.
Q.
A.
Q.
A.
When the ward has: (a) come of age; or (b) died, the court motu
proprio or upon verified motion of any person allowed to file a
petition for guardianship may terminate the guardianship.
(Section 25, A.M. No. 03-02-05-SC)
4B 2012
Art. 220-224
PARENTAL AUTHORITY
295
Art. 220-224
PARENTAL AUTHORITY
296
4B 2012
measures for the childs improvement and which the court may
provide as warranted under the premises.
Q.
A.
Commitment of the child for not more than thirty 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 or her
support.
R.A. No. 8972
Solo Parents Welfare Act of 2000
Q.
A.
(1) A woman who gives birth as a result of rape and other crimes
against chastity even without a final conviction of the
offender: Provided, That the mother keeps and raises the child; (2)
Parent left solo or alone with the responsibility of parenthood due
to death of spouse; (3) Parent left solo or alone with the
responsibility of parenthood while the spouse is detained or is
serving sentence for a criminal conviction for at least one (1) year;
(4) Parent left solo or alone with the responsibility of parenthood
due to physical and/or mental incapacity of spouse as certified by a
public medical practitioner; (5) Parent left solo or alone with the
responsibility of parenthood due to legal separation or de facto
separation from spouse for at least one (1) year, as long as he/she
is entrusted with the custody of the children; (6) Parent left solo or
alone with the responsibility of parenthood due to declaration of
nullity or annulment of marriage as decreed by a court or by a
church as long as he/she is entrusted with the custody of the
children; (7) Parent left solo or alone with the responsibility of
parenthood due to abandonment of spouse for at least one (1) year;
(8) Unmarried mother/father who has preferred to keep and rear
her/his child/children instead of having others care for them or
4B 2012
Art. 220-224
PARENTAL AUTHORITY
297
Q.
A.
Q.
Are all solo parents eligible to claim benefits under the law?
A.
No. Only those whose income in the place of domicile falls below
the poverty threshold as set by the National Economic and
Development Authority (NEDA) and subject to the assessment of
the DSWD worker in the area shall be eligible for assistance.
However, any solo parent whose income is above the poverty
threshold shall enjoy the benefits mentioned in Sections 6 (flexible
work schedule), 7 (no work discrimination) and 8 (parental leave)
of the Act.
PARENTAL AUTHORITY
298
A.
Art. 220-224
4B 2012
4B 2012
Art. 225-227
PARENTAL AUTHORITY
299
300
A.
A.
PARENTAL AUTHORITY
Effect of Parental Authority Upon the Property of the Children
Q.
Q.
Art. 225-227
What does market value of the property of annual income of the child
mean?
It means the aggregate of the childs property or annual income. Thus,
if the total of the childs property or annual income exceeds P50,000,
then the parents are required to furnish a bond. (Pineda vs. CA, 226
SCRA 754)
Art. 226. 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 latter's support
and education, unless the title or transfer provides
otherwise.
Q.
What is the scope of the parent or guardians authority over the estate
of the child or ward?
A.
Q.
A.
Q.
A.
Q.
A.
Q.
The right of the parents over the fruits and income of the
child's property shall be limited primarily to the child's
support and secondarily to the collective daily needs of
the family. (321a, 323a)
Art. 227. 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
reasonable monthly allowance in an amount not less
than that which the owner would have paid if the
administrator were a stranger, unless the owner, grants
the entire proceeds to the child. In any case, the proceeds
4B 2012
4B 2012
Art. 225-227
PARENTAL AUTHORITY
301
Art. 228-233
A.
Yes, according to Article 195 of the Family Code. The support can be
taken from his or her separate property if the parents need it and if
the child can afford it.
Q.
A.
A.
No, this is not included in the causes established by the laws for
depriving parents of patria potestas and the custody of their
unemancipated minor children.
Q.
A.
Q.
A.
Q.
A.
Q. Can the court appoint a guardian for the person and property of the
child?
A.
Q.
4B 2012
302
PARENTAL AUTHORITY
Suspension or Termination of Parental Authority
Q.
A.
4B 2012
Art. 228-233
PARENTAL AUTHORITY
303
Art. 228-233
A.
304
Q.
A.
Q.
May the parental authority of father who has sexually abused his
daughter be revived upon a showing that he has reformed and will not
subject his daughter to the same abusive acts?
A.
Q.
What are the grounds for terminating parental authority under the
Revised Penal Code?
A.
4B 2012
PARENTAL AUTHORITY
Suspension or Termination of Parental Authority
4B 2012
Art. 228-233
PARENTAL AUTHORITY
305
Art. 228-233
PARENTAL AUTHORITY
306
Q.
A.
No. Where there was no criminal intent on the part of the teacher and
where the purpose was to discipline a student. (Bagajo vs. Marave, 86
SCRA 389)
Q.
A.
Q.
A.
A.
Q.
A.
Q.
A.
Under Article III, Children, whether male or female, who for money,
profit, or any other consideration or due to the coercion or influence of
any adult, syndicate or group, indulge in sexual intercourse or
lascivious conduct, are deemed to be children exploited in prostitution
and other sexual abuse.
Q.
A.
(1) any person who, not being a relative of a child, is found alone with
the said child inside the room or cubicle of a house, motel, hotel, or
other similar establishments, vessel, vehicle or any other hidden or
secluded area under circumstances which would lead a reasonable
person to believe that the child is about to be exploited in prostitution
and other sexual abuse.
(2) any person receiving services from a child in a sauna parlor or bath,
massage clinic, health club and other similar establishments.
Q.
A.
Q.
A.
Yes, children below 15 years of age may be employed and only when
the following minimum requirements are present:
(a) The employer shall secure for a work permit from the Department
of Labor and Employment;
4B 2012
(b) The employer shall ensure the protection, health, safety, and
morals of the child;
(c) The employer shall institute measures to prevent exploitation or
discrimination taking into account the system and level of
4B 2012
Art. 228-233
PARENTAL AUTHORITY
307
Art. 228-233
308
(d) Release of the child on recognizance within twenty- four (24) hours
to the custody of the Department of Social Welfare and Development
or any responsible member of the community as determined by the
court.
Q.
A.
Q.
A.
Q.
A.
Q.
How are the protection accorded to offended children after the filing of
a complaint against their offenders?
A.
Q. What are the rights of children arrested for reasons related to armed
conflict?
A.
PARENTAL AUTHORITY
Suspension or Termination of Parental Authority
Any child who has been arrested for reasons related to armed conflict,
either
as combatant, courier, guide or spy is entitled to the
following rights:
4B 2012
4B 2012
Art. 228-233
PARENTAL AUTHORITY
309
Art. 228-233
A.
Q.
A.
Q.
A.
Any person who, at the time of giving testimony, is below the age of 18
years. In child abuse cases, a child includes one over 18 years but is
found by the court as unable to fully take care of himself or protect
himself from abuse, neglect, cruelty, exploitation, or discrimination
because of a physical or mental disability or condition.
Q.
A.
A person appointed by the court where the case is pending for a child
who is a victim of, accused of, or a witness to a crime to protect the best
interests of the said child.
Q.
A.
PARENTAL AUTHORITY
310
4B 2012
(b) The guardian ad litem: (1) Shall attend all interviews, depositions,
hearings, and trial proceedings in which a child participates; (2) Shall
make recommendations to the court concerning the welfare of the
child; (3) Shall have access to all reports, evaluations, and records
necessary to effectively advocate for the child, except privileged
communications; (4) Shall marshal and coordinate the delivery of
resources and special services to the child; (5) Shall explain, in
language understandable to the child, all legal proceedings, including
police investigations, in which the child is involved; (6) Shall assist the
child and his family in coping with the emotional effects of crime and
subsequent criminal or non-criminal proceedings in which the child is
involved; (7) May remain with the child while the child waits to testify;
(8) May interview witnesses; and (9) May request additional
examinations by medical or mental health professionals if there is a
compelling need therefor.
(c) The guardian ad litem shall be notified of all proceedings but shall
not participate in the trial. However, he may file motions pursuant to
sections 9, 10, 25, 26, 27 and 31(c). If the guardian ad litem is a lawyer,
he may object during trial that questions asked of the child are not
appropriate to his developmental level.
(d) The guardian ad litem may communicate concerns regarding the
child to the court through an officer of the court designated for that
purpose.
(e) The guardian ad litem shall not testify in any proceeding
concerning any information, statement, or opinion received from the
child in the course of serving as a guardian ad litem, unless the court
finds it necessary to promote the best interests of the child.
(f) The guardian ad litem shall be presumed to have acted in good faith
in compliance with his duties described in sub-section (b).
Q.
A.
4B 2012
Art. 228-233
PARENTAL AUTHORITY
311
Art. 228-233
Q.
A.
Q.
A.
No. The court has the duty of continuously assessing the competence of
the child throughout his testimony.
Q.
A.
Section 9. Interpreter for child. (a) When a child does not understand the English or Filipino language
or is unable to communicate in said languages due to his
developmental level, fear, shyness, disability, or other similar reason,
an interpreter whom the child can understand and who understands
the child may be appointed by the court, motu proprio or upon motion,
to interpret for the child.
(b) If a witness or member of the family of the child is the only person
312
PARENTAL AUTHORITY
Suspension or Termination of Parental Authority
4B 2012
When may the court appoint a facilitator to ask questions to the child?
A.
Q.
A.
Q.
A.
4B 2012
Art. 228-233
PARENTAL AUTHORITY
313
Art. 228-233
314
(2) One of the support persons may accompany the child to the witness
stand, provided the support person does not completely obscure the
child from the view of the opposing party, judge, or hearing officer. (3)
The court may allow the support person to hold the hand of the child
or take other appropriate steps to provide emotional support to the
child in the course of the proceedings. (4) The court shall instruct the
support persons not to prompt, sway, or influence the child during his
testimony.
A.
Q.
A.
(b) If the support person chosen by the child is also a witness, the court
may disapprove the choice if it is sufficiently established that the
attendance of the support person during the testimony of the child
would pose a substantial risk of influencing or affecting the content of
the testimony of the child.
Q.
Does the examination of the child need to follow strictly the usual
procedure for examination of witnesses?
A.
Q.
A.
Q.
On what grounds may the court exclude the public during the
examination of a child witness?
A.
Such an order may be made to protect the right to privacy of the child
or if the court determines on the record that requiring the child to
testify in open court would cause psychological harm to him, hinder
the ascertainment of truth, or result in his inability to effectively
communicate due to embarrassment, fear, or timidity.
Q.
A.
No. The prosecutor, counsel or the guardian ad litem may apply for an
order that the testimony of the child be taken in a room outside the
courtroom and be televised to the courtroom by live-link television.
Also, the judge may question the child in chambers, or in some
Q.
A.
Q.
PARENTAL AUTHORITY
Suspension or Termination of Parental Authority
May the child use testimonial aids during his / her testimony?
4B 2012
4B 2012
Art. 228-233
PARENTAL AUTHORITY
315
Art. 228-233
A.
Q.
What other similar measures may the court take aside from live-link
television?
A.
The prosecutor or the guardian ad litem may apply for an order that
the chair of the child or that a screen or other device be placed in the
courtroom in such a manner that the child cannot see the accused
while testifying. If the court grants an application to shield the child
from the accused while testifying in the courtroom, the courtroom shall
be arranged to enable the accused to view the child.
316
Q.
A.
Section 30. Sexual abuse shield rule. (a) Inadmissible evidence. - The following evidence is not admissible in
any criminal proceeding involving alleged child sexual abuse: (1)
Evidence offered to prove that the alleged victim engaged in other
sexual behavior; and (2) Evidence offered to prove the sexual
predisposition of the alleged victim.
(b) Exception. - Evidence of specific instances of sexual behavior by the
alleged victim to prove that a person other than the accused was the
source of semen, injury, or other physical evidence shall be admissible.
A party intending to offer such evidence must: (1) File a written
motion at least fifteen (15) days before trial, specifically describing the
evidence and stating the purpose for which it is offered, unless the
court, for good cause, requires a different time for filing or permits
filing during trial; and (2) Serve the motion on all parties and the
guardian ad litem at least three (3) days before the hearing of the
motion. Before admitting such evidence, the court must conduct a
hearing in chambers and afford the child, his guardian ad litem, the
parties, and their counsel a right to attend and be heard. The motion
and the record of the hearing must be sealed and remain under seal
and protected by a protective order set forth in section 31(b). The child
shall not be required to testify at the hearing in chambers except with
his consent.
A.
Q.
A.
PARENTAL AUTHORITY
Suspension or Termination of Parental Authority
4B 2012
Q.
A.
Any records regarding the child shall be confidential and kept under
seal. Except upon written request and order of the court, the record
may only be released to certain persons under Section 31(a). Moreover,
any videotape or audiotape of a child that is part of the court record
shall be under a protective order as provided by Section 31(b). The
court may issue additional protection orders to protect the childs
privacy. Whoever publishes or causes to be published the identifying
information of the child or the immediate family of the child shall be
liable to the contempt power of the court. Any videotape or audiotape
4B 2012
Art. 228-233
PARENTAL AUTHORITY
317
Art. 234-237
318
of a child made part of the court record shall be destroyed after 5 years
from the date of entry of judgment.
Q.
A.
Suppletorily.
TITLE X
EMANCIPATION AND AGE OF MAJORITY
Art. 234. Emancipation takes place by the attainment of
majority.
Unless
otherwise
provided,
majority
commences at the age of twenty-one years.
Emancipation also takes place:
(1) By the marriage of the minor; or
(2) By the recording in the Civil Register of an
agreement in a public instrument executed by the parent
exercising parental authority and the minor at least
eighteen years of age. Such emancipation shall be
irrevocable. (397a, 398a, 400a, 401a)
Art. 235. The provisions governing emancipation by
recorded agreement shall also apply to an orphan minor
and the person exercising parental authority but the
agreement must be approved by the court before it is
recorded. (n)
Q.
Define emancipation?
A.
4B 2012
Q.
A.
Valid, Art. 236 of the Family Code does not make parental consent an
essential requirement nor a formal requirement of marriage in the
sense that its absence will render the marriage void. The requirement
of parental consent in case of marriage is a recognition of Filipino
culture and tradition.
Art. 237. The annulment or declaration of nullity of the
marriage of a minor or of the recorded agreement
mentioned in the foregoing. Articles 234 and 235 shall
revive the parental authority over the minor but shall
not affect acts and transactions that took place prior to
the recording of the final judgment in the Civil Register.
(n)
TITLE XI
SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW
Chapter 1
Prefatory Provisions
Art. 238. Until modified by the Supreme Court, the
procedural rules provided for in this Title shall apply as
regards separation in fact between husband and wife,
abandonment by one of the other, and incidents
involving parental authority. (n)
Chapter 2
Separation in Fact
Art. 239. When a husband and wife are separated in fact,
or one has abandoned the other and one of them seeks
judicial authorization for a transaction where the
4B 2012
319
A.
What is the remedy of a wife separated in fact with his husband who
wants a portion of their conjugal partnership of gains disposed to
support the needs of their child when the husband, just to spite the
wife, does not agree to the alienation?
Art. 245. If, despite all efforts, the attendance of the nonconsenting spouse is not secured, the court may proceed
ex parte and render judgment as the facts and
circumstances may warrant. In any case, the judge shall
endeavor to protect the interests of the non-appearing
spouse. (n)
The wife may seek judicial approval (Art. 239). The petition should be
verified and must detail the transaction and state the reason why the
required consent thereto cannot be secured.
4B 2012
320
4B 2012
321
A.
Summary proceedings. This is for the benefit of the child. (Art 252)
Chapter 3
Incidents Involving Parental Authority
Art. 253. The foregoing rules in Chapter 2 and 3 hereof
shall likewise govern summary proceedings filed under
Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are
applicable.
TITLE XII
FINAL PROVISIONS
Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of
Book I of Republic Act No. 386, otherwise known as the
322
4B 2012
Q.
A.
Q.
A.
4B 2012
FAMILY COURTS
323
FAMILY COURTS
Q.
A.
Q.
A.
Q.
A.
The DSWD shall designate and assign qualified workers of the local
government units. (Sec. 10)
Q.
How are the decisions and orders of the Family Courts appealed?
A.
They shall be appealed in the same manner and subject to the same
conditions as appeals from the ordinary RTC. (Sec. 14)
Q. What are the cases falling under the exclusive jurisdiction of Family
Courts?
A.
Q.
What are the cases falling under the concurrent jurisdiction of Family
Courts?
A.
Q. What are the special provisional remedies which a Family Court may
grant?
A.
Q.
A.
The Family Court may issue restraining order against the accused or
defendant upon verified application or defendant upon a verified
application by the complainant or the victim for relief from abuse. (Sec.
7)
TITLE X
FUNERALS
Q.
A.
324
4B 2012
4B 2012
Art. 305-310
325
Art. 305-310
Funerals
A.
326
Funerals
This duty and right shall fall first on the spouse; and in his or her
absence or incapacity, on the descendants in the nearest degree. In
their absence or incapacity, it shall fall on the ascendants in the
nearest degree and the paternal shall be preferred. In the absence of
all these persons, the duty and right shall fall on the brothers and
sisters and the oldest shall be preferred. (Art. 294 and 305)
Q.
A.
That person shall be made liable to the family of the deceased for
material and moral damages. (Art. 309)
Article 310. The construction of a tombstone or
mausoleum shall be deemed a part of the funeral
expenses, and shall be chargeable to the conjugal
partnership property, if the deceased is one of the
spouses.
Q.
A.
They are deemed part of the funeral expenses. If the deceased is one of
the spouses shall be chargeable to the conjugal partnership property.
TITLE XII
CARE AND EDUCATION OF CHILDREN
Q.
A.
The funeral shall be in keeping with the social position of the deceased.
The expressed wishes of the deceased shall be primarily followed. In
its absence, is/her religious beliefs or affiliation shall determine the
funeral rites. In case of doubt, the form of the of the funeral shall be
decided by the person obliged to make the arrangements, after
consulting with the other family members. (Art. 307)
Article 308. No human remains shall be retained,
interred, disposed of or exhumed without the consent of
the persons mentioned in articles 294 and 305.
Article 309. Any person who shows disrespect to the
dead, or wrongfully interferes with a funeral shall be
liable to the family of the deceased for damages, material
and moral.
A.
4B 2012
4B 2012
Art. 356-363
327
Art. 356-363
328
A.
Every child shall: (1) obey and honor his parents or guardians, (2)
respect his grandparents, old relatives , and persons holding substitute
parental authority, (3) exert utmost for his education and training, and
(4) cooperate with the family in all matters that make for the good of
the same. (Art. 357)
A.
A.
They shall see to it that the rights of the child are respected and his
duties complied with. They shall, by example, imbue the child with
high mindedness, love of country, veneration for national heroes,
fidelity to democracy as a way of life, and attachment to the ideal of
permanent world peace. (Art. 358)
Article 359. The government promotes the full growth of
the faculties of every child. For this purpose, the
government will establish, whenever possible:
4B 2012
4B 2012
Art. 356-363
329
Art. 407-413
A.
330
Civil Register
It is the body entrusted with the function to look after the welfare of
the children in the municipality. See Article 360 for the enumeration of
the functions of the Council.
A.
1) The given or proper name and 2) the surname or family name. The
given or proper name is that which is given to the individual at birth
or at baptism. The surname or family is that which identifies the
family to which he belongs and is continued from parent to child. (In
the matter of the adoption of Stephanie Nathy Astorga Garcia 454
SCRA 541 March 31, 2005)
Q.
A.
A.
The given name may be freely selected by the parents for the child
while the surname is fixed by law.
Q.
A.
Q.
A.
Q.
4B 2012
4B 2012
Art. 407-413
331
Art. 407-413
Civil Register
332
Civil Register
A.
Yes. Illegitimate children may use the surname of their father if their
filiation has been expressly recognized by the father through the
record of birth appearing in the civil register or when an admission in
a public document or private handwritten instrument is made by the
father.
Q.
A.
Q.
A.
No. Under R.A No. 8239, a married woman who initially used the
surname of her husband in her passport can revert to her maiden
surname in subsequent renewals only if the marriage were annulled
or nullified or the woman obtained a valid divorce abroad. (Remo v.
Honorable Secretary of Foreign Affairs, GR No.169202, March 5, 2010)
4B 2012
Q.
A.
No. Under Art. 375, the word Junior can be used only by a son. N.B:
RA No. 10172 has amended Sec.1 of RA No. 9048, SECTION 1.
Authority to Correct Clerical or Typographical Error and Change of
First Name or Nickname. No entry in a civil register shall be
changed or corrected without a judicial order, except for clerical or
4B 2012
Art. 407-413
333
Art. 407-413
Civil Register
334
Civil Register
A.
TITLE XIV
ABSENCE
Chapter 1
Provisional Measures in Case of Absence
Q.
A.
Q.
A.
No. A change of name does not alter family relations, rights or duties,
legal capacity, civil status or citizenship. (Calderon v. Republic, 19
SCRA 721)
4B 2012
4B 2012
Art. 407-413
335
Art. 407-413
Civil Register
A.
33
Q.
A.
No. It has been repealed by R.A. No. 6809 which lowered the
emancipation age to 18.
Chapter 2
Declaration of Absence
Article 384. Two years having elapsed without any news
about the absentee or since the receipt of the last news,
and five years in case the absentee has left a person in
charge of the administration of his property, his absence
may be declared. (184)
Article 385. The following may ask for the declaration of
absence:
(1) The spouse present;
(2) The heirs instituted in a will, who may present
an authentic copy of the same;
(3) The relatives who may succeed by the law of
intestacy;
(4) Those who may have over the property of the
absentee some right subordinated to the condition of his
death. (185)
336
Civil Register
4B 2012
A.
Q.
A.
Date on which the last news of the absentee was received. (Jones v.
Hortiguela, 64 Phil. 179)
Chapter 3
Administration of the Property of the Absentee
Article 387. An administrator of the absentee's property
shall be appointed in accordance with article 383. (187a)
Article 388. The wife who is appointed as an
administratrix of the husband's property cannot alienate
or encumber the husband's property, or that of the
conjugal partnership, without judicial authority. (188a)
Q.
Does Art. 388 likewise prohibit the husband from alienating properties
of the wife without her consent?
4B 2012
Art. 407-413
337
Art. 407-413
Civil Register
A.
338
Civil Register
A.
Q.
Chapter 4
Presumption of Death
A.
A person is not at the place of his domicile and his actual residence is
unknown, and it is for this reason that his existence is doubtful.
Q.
A.
Q.
A.
Q.
Can a person claim under Art. 391 when a person fell into the sea
while on board a vessel and consequently drowned?
4B 2012
4B 2012
Art. 407-413
339
Art. 407-413
Civil Register
A.
No because the vessel was not lost during a sea voyage. Caltex v.
Villanueva, 2 SCRA 897
Q.
A.
Time when the person was last heard of and not at the end of the
period.
A.
340
Civil Register
4B 2012
TITLE XVI
CIVIL REGISTER
Article 407. Acts, events and judicial decrees concerning
the civil status of persons shall be recorded in the civil
register. (325a)
Q.
A.
a. file registerable certificates and documents presented to them for
entry;
b. compile the same monthly and prepare and send any information
required of them by the Civil Registrar General;
c. issue certified transcripts or copies of any certificate or document
registered, upon payment of the proper fees;
d. order the binding, properly classified, of all certificates or documents
registered during the year;
e. send to the Civil Registrar-General during the first ten days of each
month, a copy of the entries made during the preceding month, for
filing;
f. index the same to facilitate search and identification in case any
information is required; and
g. administer oaths, free of charge, for civil register purposes (Section 12
of the Civil Registry Law, Act No. 3753).
4B 2012
Art. 407-413
341
Art. 407-413
Civil Register
Q.
Does the Civil Register Law provide for constructive notice to all
persons of any document filed in the Office of the Local Civil Registrar
or Office of the Civil Registrar General?
A.
No.
Q.
342
Civil Register
4B 2012
A.
Q.
A.
Q.
A.
Q.
A.
No. It is a substantial change which has to pass through judicial
proceedings
Article 413. All other matters pertaining to the
registration of civil status shall be governed by special
laws. (n)
4B 2012
Art. 407-413
343
Civil Register
4B 2012