Professional Documents
Culture Documents
PERSONS
Art. 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)
Art. 15. Laws relating to family rights and duties, or to the status, condition
and legal capacity of persons are binding upon citizens of the Philippines,
even though living abroad. (9a)
Theories on Personal Law:
1.
Domiciliary theory the personal laws of a person are
determined by his domicile
2.
Nationality theory the nationality
determines the personal laws of the individual
or
citizenship
Art. 35. The following marriages shall be void from the beginning:
(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; 2.
Article 35, 3, Family Code Art. 35. The following marriages shall
be void from the beginning:
(3) Those solemnized without license, except those covered the
preceding Chapter; Even if the foreign marriage did not comply
with either s 2 and 3 of Article 35, Philippine law will recognize
the marriage as valid as long as it is valid under foreign law.
Art. 16. Real property as well as personal property is subject to the law of
the country where it is stipulated.
However, intestate and testamentary successions, both with respect to the
order of succession and to the amount of successional rights and to the
intrinsic validity of testamentary provisions, shall be regulated by the
national law of the person whose succession is under consideration,
whatever may be the nature of the property and regardless of the country
wherein said property may be found. (10a)
Art. 17. The forms and solemnities of contracts, wills, and other public
instruments shall be governed by the laws of the country in which they are
executed.
When the acts referred to are executed before the diplomatic or consular
officials of the Republic of the Philippines in a foreign country, the
solemnities established by Philippine laws shall be observed in their
execution.
Prohibitive laws concerning persons, their acts or property, and those which
have, for their object, public order, public policy and good customs shall not
be rendered ineffective by laws or judgments promulgated, or by
determinations or conventions agreed upon in a foreign country
Art. 40. Birth determines personality; but the conceived child shall be
considered born for all purposes that are favorable to it, provided it be born
later with the conditions specified in the following article. (29a)
Art. 41. For civil purposes, the fetus is considered born if it is alive at the
time it is completely delivered from the mother's womb. However, if the
fetus had an intra-uterine life of less than seven months, it is not deemed
born if it dies within twenty-four hours after its complete delivery from the
maternal womb. (30a).
FAMILY
ESSENTIAL REQUISITES
Art. 2. No marriage shall be valid, unless these essential requisites are
present:
(1) Legal capacity of the contracting parties who must be a male and a
female; and
(2) Consent freely given in the presence of the solemnizing officer.
FORMAL REQUISITES
Art. 3. The formal requisites of marriage are:
(1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases provided for in Chapter 2 of
this Title; and
(3) A marriage ceremony which takes place with the appearance of the
contracting parties before the solemnizing officer and their personal
declaration that they take each other as husband and wife in the presence of
not less than two witnesses of legal age.
Family Code places upon the present spouse the burden of proving the
additional and more stringent requirement of wellfounded belief which
can only be discharged upon a showing of proper and honesttogoodness
inquiries and efforts to ascertain not only the absent spouses whereabouts
but, more importantly, that the absent spouse is still alive or is already
dead.15
had been resorted to by parties wishing to remarry knowing fully well that
their alleged missing spouses are alive and well. It is even possible that
those who cannot have their marriages xxx declared null and void under
Article 36 of the Family Code resort to Article 41 of the Family Code for relief
because of the xxx summary nature of its proceedings.
The application of this stricter standard becomes even more
imperative if we consider the States policy to protect and strengthen the
institution of marriage.24 Since marriage serves as the familys foundation25
and since it is the states policy to protect and strengthen the family as a
basic social institution,26 marriage should not be permitted to be dissolved
at the whim of the parties. In interpreting and applying Article 41, this is the
underlying rationale to uphold the sanctity of marriage.
Strict Standard Prescribed Under Article 41 of the Family Code Is for
the Present Spouses Benefit
The requisite judicial declaration of presumptive death of the absent
spouse (and consequently, the application of a stringent standard for its
issuance) is also for the present spouses benefit. It is intended to protect
him/her from a criminal prosecution of bigamy under Article 349 of the
Revised Penal Code which might come into play if he/she would prematurely
remarry sans the courts declaration.
Upon the issuance of the decision declaring his/her absent spouse
presumptively dead, the present spouses good faith in contracting a second
marriage is effectively established. The decision of the competent court
constitutes sufficient proof of his/her good faith and his/her criminal intent in
case of remarriage is effectively negated.28 Thus, for purposes of
remarriage, it is necessary to strictly comply with the stringent standard and
have the absent spouse judicially declared presumptively dead.
Final Word
As a final word, it has not escaped this Courts attention that the strict
standard required in petitions for declaration of presumptive death has not
been fully observed by the lower courts. We need only to cite the instances
when this Court, on review, has consistently ruled on the sanctity of marriage
and reiterated that anything less than the use of the strict standard
necessitates a denial. To rectify this situation, lower courts are now expressly
put on notice of the strict standard this Court requires in cases under Article
41 of the Family Code.
LEGAL SEPARATION:
Art. 55. A petition for legal separation may be filed on any of the following
grounds:
Art. 76. In order that any modification in the marriage settlements may be
valid, it must be made before the celebration of the marriage, subject to the
provisions of Articles 66, 67, 128, 135 and 136.
Art. 84. If the future spouses agree upon a regime other than the absolute
community of property, they cannot donate to each other in their marriage
settlements more than one-fifth of their present property. Any excess shall be
considered void.
Donations of future property shall be governed by the provisions on
testamentary succession and the formalities of wills.
Art. 96. The administration and enjoyment of the community property shall
belong to both spouses jointly. In case of disagreement, the husband's
decision shall prevail, subject to recourse to the court by the wife for proper
remedy, which must be availed of within five years from the date of the
contract implementing such decision.
In the event that one spouse is incapacitated or otherwise unable to
participate in the administration of the common properties, the other spouse
may assume sole powers of administration. These powers do not include
disposition or encumbrance without authority of the court or the written
consent of the other spouse. In the absence of such authority or consent, the
disposition or encumbrance shall be void. However, the transaction shall be
construed as a continuing offer on the part of the consenting spouse and the
third person, and may be perfected as a binding contract upon the
acceptance by the other spouse or authorization by the court before the offer
is withdrawn by either or both offerors.
(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 loserspouse.
shall belong to the innocent party. In all cases, the forfeiture shall take place
upon termination of the cohabitation. (144a)
Art. 148. In cases of cohabitation not falling under the preceding Article, only
the properties acquired by both of the parties through their actual joint
contribution of money, property, or industry shall be owned by them in
common in proportion to their respective contributions. In the absence of
proof to the contrary, their contributions and corresponding shares are
presumed to be equal. The same rule and presumption shall apply to joint
deposits of money and evidences of credit.
If one of the parties is validly married to another, his or her share in the coownership shall accrue to the absolute 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 shall be forfeited in the manner
provided in the last paragraph of the preceding Article.
The foregoing rules on forfeiture shall likewise apply even if both parties are
in bad faith.
within the prescribed period and it is not the sheriffs duty to presume or
raise the status of the subject property as a family home.
(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.