marriage- special contract

- Permanent union
- Between man and woman
- Entered into an accordance with law
- For the establishment of conjugal and
family life
Aspects : -- 1. as a contract :
- only man and woman can enter
- permanent- only death can extinguish
- rights and obligations not subject to
stipulations but fixed by law
except- marriage settlement on
property regime.
- breach results in penal and civil sanctions.
As a status- inviolable social institution
- foundation of family
- institution of public order or policy
- implication in two fieldspersonal rights
property relations
Requisites :
-essential1. Legal capacity of parties, 18 age,
male and female
no impidements in 37 or 38
2. consent freely given
in the presence of solemnizing officer.
-formal3. Authority of solemnizing officer
4. Marriage ceremony ( no form or rites
required)
appearance of parties before solemnizing officer
personal declaration that they take each other as husband or wife
in presence of two witnesses of legal age.
> If there was no marriage ceremony, as when the parties merely signed a marriage contract
without the presence of the solemnizing officer, there is no marriage to speak of, since there is
no actual marriage ceremony performed between the parties by the solemnizing officer, hence,
there is no need to file a summary proceding to declare the marriage void. (Morigo vs People,
476 SCRA 562 (2005).
>The mere private signing of a marriage contract bears no semblance of a valid marriage, and
thus, need no judicial declaration of nullity. (Morigo, supra)
5. Valid marriage license, except ;
a- marriage in articulo mortis (either or both, even if survived )
b- residence of either is so located that no means of transportation to appear before
local civil registrar
c- marriage among muslims or members of ethnic cultural communities, accdg. to
customs rites and practices.
d- Marriage between man and woman who have cohabited for five years without legal

impediment to marry.
E- Celebrated in country where no marriage license is required.?
>In Sevilla vs Cardenas, 497 SCRA 428, the certification issued by the Civil Registry of San Juan
to the effect that no marriage license No. 2770792 was ever issued by this office was
presented as evidence to prove the absence of marriage license for the purpose of declaring the
marriage void. Is the certification sufficient?
No. The certification to be issued by the local civil registrar must categorically state that the
document does not exist in his office or the particular entry could not be found in the register
despite diligent search. Such certification shall be sufficient proof of lack or absence of record
stated in Section 28, Rule 132 of the Rules of Court.
>If the parties falsified their affidavit stating therein that they had lived as husband and wife for
at least five years prior to the marriage to exempt themselves from the requirement of a
marriage license, when in truth and in fact, they have fallen short of the minimum five year
requirement, will they be estopped from questioning the validity of their marriage or may the
marriage be still declared void on ground of lack of a valid marriage license?
The Court held that the falsity of an affidavit of marital cohabitation, where the parties have in
truth fallen short of the minimum five-year requirement, effectively renders the marriage void
ab initio for lack of marriage license. The falsity of the allegation in the affidavit, which would
have qualified their marriage as an exception to the requirement of a marriage license, cannot
be a mere irregularity, for it refers to the quintessential fact that the law precisely required to be
deposed and attested by the parties under oath.
If the essential matter in the sworn affidavit is a lie, then it is a mere scrap of paper, without
force and effect. Hence, it is as if there was no affidavit at all.
Lastly, to settle all doubts, jurisprudence has laid down the rule that the five-year common-law
cohabitation period under Article 76 means a five-year period computed back from the date of
celebration of marriage, and refers to a period of legal union had it not been for the absence of
a marriage. It covers the years immediately preceding the day of the marriage, characterized
by exclusivity- meaning no third party was involved at anytime within the five years- and
continuity that is unbroken (Republic vs Jose A. Dayot, GR No. 175581, March 28, 2008.)
Persons authorize to solemnize marriage :
1. incumbent members of the judiciary (within jurisdiction)
2. priests, etc., authorized by church, registered In the civil
registrar general, acting within limits of written authority
granted by church, one or both contracting parties belongs
to the officers church
3. ship captain or airplane chief ( at sea, in flight, for entire
voyage) in articulo mortis between passengers or crew
members
4. military commander of a unit (battalion commissioned
officer in articulo mortis within zone of military operation in
the absence of Chaplain
5. consul-general, consul or vice consul in case of marriage
between Filipino citizens abroad
>Marriage Contract , signed by both and attested by solemnizing officer)
In case of marriage in articulo mortis, if party unable to sign marriage certificate, one of the
witness can write the name of the party, attested by the solemnizing officer
>Place of solemnization- public
Except- articulo mortis

Remote place
Request of both parties in writing, in a place or house designated by them in sworn statement

Absence of Essential
Formal req.- marriage void
Except- belief in good faith of parties that party solemnizing is duly authorized
Examples- absence of essential req-lack of age- below 18
-parties of same sex
-prohibited by law to marry each other
-Absence of consent- marriage in jest
Examples of absence of formal req.-Person solemnizing has no authority except believed to be duly authorized
-No marriage license, unless excepted
-Expired marriage license
-Absence of marriage ceremony
Defect in essential req. - marriage voidable
Ex:
-lack of parental consent
-consent obtained by fraud
-consent obtained by force
Irregularity in formal req. marriage valid, but party responsible shall be civilly,
criminally and administratively liable.
Examples- marriage license not applied for in place specified
- marriage license signed by mere employee of LCR
with his authority, if without void
- 10 day posting not complied with
- no requirements on parental advice, marriage
counseling or family planning seminar
- no witness to marriage.
Validity of marriage license- 120 days from issuance, can be used anywhere in the
country
- automatically cancelled if not
used upon the expiration of
expiry date stamped on face of
marriage license.
Marriage certificate- not an essential or formal req. but best proof of marriage
Copies to be given as follows :
-original to the parties
-duplicate and triplicate to the LCR of
place of marriage within 15 days after
marriage
-quadruplicate- retained by the officer
2. In December 2000, Michael and Anna, after obtaining a valid marriage license, went to the

Office of the Mayor of Dagupan City to get married. The Mayor was not there, but the Mayors
secretary asked Michael and Anna and their witnesses to fill up and sign the required marriage
contract forms. The secretary then told them to wait, and went out to look for the Mayor who
was attending a wedding in a neighboring municipality. When the secretary cannot find the
Mayor, he requested the Vice-Mayor to celebrate the marriage. Thereafter, Michael and Anna
had three sons.
[a] Is the marriage of Michael and Anna valid, voidable, or void? Explain your answer.
[b] What is the status of the three children of Michael and Anna? Explain your answer.
Marriages solemnized outside country- valid there as such shall also be valid in this
country, except :
article 35 (1) no legal capacity to get married
(4) bigamous or polygamous
(5) consent lacking because of mistake
in identity of the other
Article 36- party psychologically incapacitated
Article 37- incestuous marriage
Article 38- marriage void by reason of public
policy
Divorce obtained by a foreigner-spouse, the Filipino spouse shall likewise have the capacity to
remarry under Philippine law.
(E.O. No. 227, july 17,1987)
In the case of Republic vs Orbecido III, (472 SCRA 114), the Court held that in applying the
provision of the 2nd par. of Article 26 FC, the reckoning point is not the citizenship of the
divorcing parties at birth or at the time of marriage, but their citizenship at the time a valid
divorce is obtained abroad by the alien spouse capacitating him or her to remarry.
Thus, where both parties were Filipino citizens at the time of the celebration of the marriage, but
later on, one of them becomes naturalized as foreign citizen and thereafter obtains a valid
divorce decree, Article 26 applies.
Art. 35 void marriages
1. lack of age
2. no authority to solemnize- except either or
both believed
3. No marriage license, except provided by law
4. bigamous/polygamous marriages
except contracted in case spouse had been absent
for four years or two years, and present spouse
has a well-founded belief that absent spouse was
already dead.
5. contracted through mistake of one party as to the identity of the other
6. subsequent marriages void under Art. 53 (subsequent marriage without delivering the
presumptive legitimes of compulsory heirs.
Subsequent bigamous marriageValid if contracted after the absence of four (4) years, if the spouse has a wellfounded belief that the absent spouse is already dead.
But, two (2) years absence sufficient in case of disappearance under circumstances
indicating danger of death :
a- lost during sea voyage or airplane

missing
b- missing in action in war
c- under danger of death under
other circumstances
For purposes of contracting the subsequent marriage, the present spouse must
institute a summary proceeding for declaration of presumptive death of the
absentee. (41)
This does not apply to subsequent marriage contracted before the effectivity of the
Family Code, because the New Civil Code does not require said declaration. Absence
of 7 years ipso jure grants the present spouse capacity to remarry.
Since the second marriage took place during the effectivity of the New Civil Code, the
presumption of death is established by law and no court declaration is needed for
the presumption to arise, since death is presumed to have taken place by the
seventh year of absence pursuant to Art. 390 of the Civil Code. (Valdez vs Republic,
597 SCRA 13).
If the subsequent marriage (by reason of presumptive death of the absentee spouse)
took place prior to August 3, 1988, the subsequent marriage is valid even if there
was no judicial declaration of presumptive death so long as the prescribed period of
absence is met. (Armas vs Calisterio, 330 SCRA 2001).
But, if such subsequent marriage is celebrated during the effectivity of the Family
Code, the requirement of judicial declaration of presumptive death is absolute and
indispensable. In the absence thereof, the sub- subsequent marriage is void and the
spouse present shall be liable for bigamy. Article 41 FC was enacted to harmonize
civil law and Art. 349 of the RPC. (Manuel vs Manuel, 476 SCRA 461)
In Republic vs Bermudez-Lorino, 449 SCRA 57, it was held that the order of the trial
court granting the petition for judicial declaration of presumptive death is
immediately final and executory. Hence, the right to appeal was not granted to any
of the parties therein. It was therefore erroneous for the OSG to file a notice of
appeal, and for the RTC to give due course thereto.
The ruling was reiterated in Republic vs Tango, 594 SCRA 560)
While there is no appeal, an aggrieved party may file a petition for certiorari to
question abuse of discretion amounting to lack of jurisdiction and such petition shall
be filed in the Court of Appeals in accordance with the Doctrine of Hierarchy of
Courts. (Republic vs Tango, supra)
Art. 36- Psychological incapacity to perform marital obligationsReasons for Art. 361. New Code on Canon Law provides the same ground for
Declaration of nullity of marriage.
2. Parties who have church annulled marriage are given cause
of action to have their marriages declared void by civil law.
3. Parties to marriages that exists in name only since they have
long been separated from each other because of the inability
or failure of one of the parties to perform the essential
obligations of marriage.
What in issue is - not whether the consent to the marriage is defective or not, but
whether there can be fulfillment of the valid consent.
Examples of psychological incapacity:

1. Husband/wife refuses to dwell with and subsequently leave the

Spouse without fault of the other;
2. Husband/wife leaves the spouse without justifiable cause;
3. Husband/wife refuses to have sex with the other spouse;
4. Wife refuses to have children;
5. There is unbearable jealousy on the part of either party, hence,
Making life of the parties unbearable;
6. Immaturity or where is there is lack of rational judgment and
Responsibility as when the husband refuses to support the family;
7. Husband or wife cannot shoulder the heavy responsibility of being
A parent;
Mere showing of irreconcilable differences and conflicting personalities does not
constitute psychological incapacity. (Republic vs. Court of Appeals, and Roridel
Molina, 268 SCRA 198).
Molina case laid down for guidance of bar and bench, the interpretation of Art. 361. Burden of proof to show nullity belongs to plaintiff;
2. Root cause of psychological incapacity must be:
A- medically or clinically identified
B- alleged in the complaint
C- sufficiently proven by experts
D- clearly explained in the decision
3. The incapacity must be proven to be existing at the time of
Celebration of marriage;
4. Incapacity must be shown to be medically or clinically
Permanent or incurable;
5. Illness must be grave enough to bring about the disability
to assume the essential obligations of marriage;
6. Non-complied marital obligations must be stated in the
Petition and proven by evidence and included in the text
of the decision;
7. The court must order the fiscal and solicitor general to appear
as counsel for the State.
In the case of Santos vs. CA, 240 SCRA 20, the Supreme Court held that being of
unsound mind, drug addiction, habitual alcholism, lesbianism, or homosexuality may
be indicia of psychological incapacity, depending on the degree of severity of the
disorder.
In Marcos vs Marcos, 343 SCRA 755, the SC clarified that there is no requirement that
the defendant spouse should be personally examined by a physician or psychologist
as a condition sine qua non for the declaration of nullity of marriage based on
psychological incapacity.
Such psychological incapacity, however, must be established by the totality of the
evidence presented during trial.
But, in Bier vs Bier, 547 SCRA 123, the clinical psyschologist relied only on the
information fed by the petitioner. Thus, the Court considers the testimony of the
clinical psychologist hearsay evidence since she had no personal knowledge of the
alleged facts she was testifying on.
Lately, in Ngo Te vs Yu-Te, 579 SCRA 193, and Azcueta vs Republic, 588 SCRA 196, the
court relaxed the Molina guidelines by relying heavily on the findings of the expert
witness (clinical pyschologist) in declaring the marriage void on ground of
psychological incapacity.
The Court said- By the very nature of Art. 36, courts, despite having the primary
task and burden of decision-making, must not discount but, instead, must consider

as decisive evidence the expert opinion on the psychological and mental

temperaments of the parties.
In psychological incapacity, the spouse declared to be psychologically incapacitated
has innate incapacity or inability to comply with the essential obligations of marriage
because of an utter insensitivity or inability to understand such obligations (Santos
vs CA 240 20)
As such, he or she cannot be held liable to pay moral damages to the other spouse
based on Article 2217 and 21 of the NCC which connotes willfulness of the acts
complained of.
If the same acts constitutive of the psychological incapacity were made the basis of
the award of moral damages, it is contradictory to characterize acts as product of
pyschological incapacity, hence beyond the control of the party because of innate
inability, while at the same time considering the same set acts as willfull.
(Buenaventura vs CA, 454 SCRA 261).

In Antonio vs Reyes, 484 SCRA 353, the respondent was a pathological liar and which
lies were held to be indicative of her failure to distinguish truth from fiction, or at
least abide by the truth. In declaring her psychologically incapacitated, the Court
held that a person unable to distinguish between fantasy and reality would similarly
be unable to comprehend the legal nature of the marital bond, much less its psychic
meaning, and the corresponding obligation attached to marriage.
The Court may not refuse to apply the guidelines in the Molina case simply because
the marriage is a mixed one and that the respondent is a foreign citizen. The SC held
in Republic vs Quintero-Hermano (428 SCRA 735) that such guidelines may not be
relaxed just because the spouse alleged to be psychologically incapacitated happens
to be a foreign national. The norms used for determining psychological incapacity
should apply to any person regardless of nationality because the rules were
formulated on the basis of studies of human behavior in general.
Art. 37 Incestous marriages- between ascendants and descendants of any degree
-between brothers and sisters, whether of full or half blood.
Art. 38 Marriages void by reason of public policy1. between collateral blood relatives, whether
legitimate or illegitimate, up to the fourth
civil degree.
2. between step-parents and step-children
3. between parents-in-law and children-in-law
4. between adopting parent and adopted child
5. between surviving spouse of the adopting
parent and the adopted child
6. between surviving spouse of the
adopted child and the adopter
7. between an adopted child and
legitimate child of the adopter
8. between adopted children of the same
adopter
9. between parties where one, with the
intention to marry the other, killed that
others spouse, or his own spouse.

Nota bene: marriage between the adopted child and the illegitimate child of the
adopter is not included in Article 38.
Who may file petition for declaration of nullity of marriage?
A- In Ninal vs Bayadog, 328 SCRA 122, the Supreme Court allowed the
compulsory/legal heirs to file petition for declaration of nullity of their fathers
marriage against respondent after the death of their father.
B- Subsequently thereafter, the SC promulgated the Rule on Declaration of Absolute
Nullity of Void Marriages and Annulment of Voidable Marriages (AM No. 02-11-10-C),
which took effect on March 15, 2003, and Section 2 thereof, makes it the sole right of
the husband or the wife to file a petition for declaration of absolute nullity of void
marriage.
In Enrico vs Heirs of Sps. Medinaceli, 534 SCRA 418, the Court clarified that the
coverage of the AM No. 02-11-10-SC extends only to those marriages entered during
the effectivity of the Family Code, and its application is prospective.
In Carlos vs Sandoval, 574 SCRA 116, the Court further clarified that AM No. 02-1110-SC, does not apply to cases already commenced before March 15, 2003, although
the marriage involved was celebrated during the effectivity of the Family Code.

What rule will apply for marriages celebrated under the Civil Code?
The absence of a provision in the Civil Code cannot be construed as a license for any
person to institute a nullity of marriage case. Such person must appear to be a party
who stands to be benefited or injured by the judgment in the suit, or the party
entitled to the avails of the suit. Hence, only the compulsory or legal heirs of the
deceased spouse can file the petition.
One who is not the real party in interest in a complaint for declaration of nullity of
marriage cannot ask for the setting aside of the decision therein- his invocation of
the States interest in protecting the sanctity of marriage does not give him the
standing to question the decision. By law, it is the prosecuting attorney of fiscal or
the Solicitor General who represents the interest of the State in proceeding for the
annulment or declaration of nullity of marriage. (Salamingo vs Rubica, 527 SCRA 1)
Period to file petition for declaration of nullity of marriage- For marriages the prior to the effectivity of the Family Code (Aug 3, 1988), the
petition may be filed by the real party-in-interest even after the death of the
spouses. (Ninal vs Bayadog, 328 SCRA 122) - If the marriage was celebrated during
the effectivity of the Family Code but the petition was filed before March 15, 2003,
the petition may be filed by the real party-in-interest even after the death of the
spouses. (Carlos vs Sandoval, supra).
Note: AM No. 02-11-10-SC does not apply.
If the marriage was celebrated during the effectivity of the Family Code, and the
petition was filed on March 15, 2003 or thereafter, the petition can be filed only by
either spouse and during their lifetime. No such petition can be filed after death of
either spouses, and in case a party dies at any stage of the proceedings before entry
of judgment, the court shall order the case closed and terminated. (AM 02-11-10-SC)
, but without prejudice to a collateral attack that may be done by the
compulsory/legal heirs of the spouses upon death of a spouse in a proceeding for
settlement of the estate of the deceased spouse. (Enrico vs Heirs of Medinaceli and
Carlos Sandoval, supra)

Action or defense for the declaration of absolute nullity of marriage shall not
prescribe. (39)(as amended by RA 8533, Feb. 23, 1998)
Absolute nullity of a previous marriage may be invoked for purposes of
remarriage on the basis solely of a final judgment declaring such previous marriage
void.(40)
>What step must be undertaken by the present spouse before entering into s
subsequent marriage?
>What is the effect of failure to take such step?
One must first secure a final judicial declaration of nullity of his previous marriage
before he can validly contract another marriage and failure to do so shall make him
liable for the crime of bigamy if he contracts a subsequent marriage. (Marbella-Bobis
vs Bobis, supra, Abunado vs People, 426 SCRA 562) (41)
Even if the prior marriage is void but a party thereto fails to secure a judicial
declaration of its nullity before contracting another marriage, the subsequent
marriage is also void. (Art. 50 FC, Carino vs Carino, 351 SCRA 127) and the party is
liable for the crime of bigamy.
To contract a subsequent marriage, the other spouse must be absent for 4 years or 2
years, and the present spouse has well-founded belief that the absent spouse was
already dead. (41)
When may the subsequent bigamous marriage be terminated?
The subsequent marriage shall be terminated automatically by the recording of the
Affidavit of Reappearance of the absent spouse, unless there is a judgment annulling
or declaring the previous marriage void. (42)
The sworn statement of reappearance shall be recorded in the civil registry of the
residence of the parties of the subsequent marriage at the instance of any interested
person, with due notice to the parties of the subsequent marriage and without
prejudice to the fact of reappearance being judicially determined in case such fact is
disputed. (42)
If the absentee reappears, but no step is taken to terminate the subsequent
marriage, either by affidavit or court action, such absentees mere reappearance,
even if made known to the spouses in the subsequent marriage, will not terminate
such marriage. Since the second marriage has been contracted because of a
presumption that the former spouse is dead, such presumption continues inspite of
the spouses physical appearance, and by fiction of law, he or she must still be
regarded as legally an absentee until the subsequent marriage is terminated as
provided by law. (SSS vs Jarque Vda. De Ballon, 485 SCRA 376)
Wife left the home, husband inquired from friends, no news about her, sent letter to
former place of work, but were returned. Is this sufficient to declare wife
presumptively dead?
No. Spouse should not be allowed, by the simple expedient that one of them left
the conjugal home and never to return again, to circumvent the laws on marriage
which is not an ordinary but special contract of permanent union. (Republic vs.
Nolasco, 220 SCRA 20, March 17, 1993).
EFFECTSOF TERMINATION OF SECOND MARRIAGE: (43)
1. Children of the second marriage conceived prior to
termination shall be legitimate.
2. custody and support to be decided by the court in

proper proceedings.
3. community property shall be dissolved and liquidated,
but share of spouse in bad faith in the net profits shall
be forfeited in favor of common children, or children of
guilty spouse, or innocent spouse.
4. donations by reason of marriage shall remain valid, but those in favor of spouse in
bad faith, shall be revoke by operation of law.
5. innocent spouse may revoke the designation of spouse in bad faith as
beneficiary in any insurance policy, even if designation is irrevocable.
6. spouse in bad faith shall be disqualified to inherit from the innocent spouse,
whether by testate or intestate succession.
IF BOTH IN BAD FAITH- (44)
1. marriage shall be void
2. donations by reason of marriage
revoked by operation of law
3. testamentary disposition revoked by
operation of law
GROUNDS FOR ANNULMENT OF MARRIAGE (45)
1. LACK OF PARENTAL CONSENT, unless cohabited
freely after 21 years of age.
2. INSANITY, unless after coming to reason cohabited freely with each other.
3. CONSENT OBTAINED BY FRAUD, unless with full
knowledge, cohabited freely
4. CONSENT OBTAINED BY FORCE, INTIMIDATION, UNDUE INFLUENCE, unless cause
disappeared, cohabited freely
5. IMPOTENCY, continuing and appears to be incurable
6. PARTY AFFLICTED WITH SEXUALLY TRANSMISSIBLE DISEASE, found to be serious
and incurable
CONSENT-

parental, fraud, force,

INSANITY
IMPOTENCY
STD
A & B were sweethearts. B. became pregnant. Knowing that A was about to take bar
exam, B threatened A with complaint for immorality in the Supreme Court. As a
consequence of the threat, A married B. Is the marriage annullable on ground of
intimidation?
No, the threat to enforce ones claim which is just and legal, through competent
authority, is not the threat contemplated by law to annul a marriage. The threat must
be unjust or illegal. (Ruiz vs. Atienza, CA 40 Off Gaz. 1093).

FRAUD TO ANNUL A MARRIAGE (46)

CONCEALMENT OF CONVICTION by final judgment of a
crime involving moral turpitude.
CONCEALMENT OF PREGNANCY BY WIFE by another
man at the time of marriage
CONCEALMENT OF SEXUALLY TRANSMISSIBLE DISEASE,
at the time of marriage
CONCEALMENT OF DRUG ADDICTION,
HABITUAL ALCOHOLISM,
HOMOSEXUALITY OR
LESBIANISM
At the time of marriage
NO other misrepresentation or deceit as to character, health, rank, fortune or
chastity shall constitute fraud for annulment of marriage.
Plaintiff, a first year law student, met the defendant in March 1968. After several
meetings, became engaged and were married. After 88 days, defendant gave birth to
child. Plaintiff abandoned defendant and filed suit for annulment on the ground of
fraud, as the defendant assured that she was a virgin. Will suit the prosper?
The marriage cannot be annulled. The law is explicit, no other misrepresentation or
deceit as to character, health, rank, fortune, or CHASTITY shall constitute fraud for
annulment of marriage.
On the ground that she was pregnant by another man, the law is explicit. There
must be concealment. Here is there is no possibility of concealment. Defendant was
already about 6 months pregnant. At such advance stage of pregnancy, concealment
would be impossible. (Buccat vs. Buccat, 72 Phil 19).
Accdg to medical authorities, when a woman is already 6 months pregnant, the
enlargement of her abdomen is above, and no longer below, the umbilicus. (Aquino
vs. Delizo, 109 Phil 21).
IMPOTENCYTest on Impotency- the test is not the capacity to reproduce but the capacity to
copulate. (Sarao vs. Guevarra, CA Off. Gaz. 263).
Physical incapacity as ground for annulment of marriage refers to inability to
perform the sexual act, and not sterility or inability to procreate. (Menciano vs. San
Jose, 89 Phil 63; Jimenez vs. Canizares, 109 Phil 273).
If the spouse knew that the other party is impotent, can she ask for annulment of her
marriage?
How about if the man is already 80 years old, can she ask for annulment?
No. 1. To be entitled, party must be unaware of the impotency because the law
requires that the party that can bring the action must be the injured party. If she
knew, she is not an Injured party.
2. Estoppel. She is renouncing copulation, which is a purely personal right.
3. Sexual intercourse is not the only end or purpose of marriage.

If the man is 80 years old, the wife should know that he should be already
impotent, and is under estoppel to annul her marriage.
Doctrine of triennial cohabitation- the presumption that the husband is impotent
should the wife still remain a virgin after living together with the husband for 3
years.
Can relative impotency be invoked to annul marriage?
Yes. In view of the physical incapability of one party to to consummate saidmarriage
with the other.
Can a woman be compelled to undergo physical examination to determine her
physical capacity for copulation? (private part of the woman to small to allow
penetration).
Yes. A physical examination in this case is not self-incrimination. She is not charged
with any offense. She is not being compelled to be a witness against herself.
Impotency, being an abnormal condition, should not be presumed The presumption is
in favor of potency. (Jimenez vs.Canizares, 109 Phil 273).
Who may bring an action to annul a marriage?
PARTY TO ANNUL MARRIAGE (47)
PARENT/GUARDIAN without consent, before 21, or
PARTY (whose parent did not give consent)- within 5 years after 21 years of age
SANE SPOUSE (if no knowledge)
RELATIVE/GUARDIAN OF INSANE SPOUSE, at anytime before death of EITHER PARTY,
INSANE during lucid interval or upon regaining sanity
FRAUD- INJURED PARTY, WITHIN 5 YEARS AFTER DISCOVERY OF FRAUD
FORCE, ETC., INJURED PARTY, WITHIN 5 YEARS AFTER CESSATION THEREOF
IMPOTENCY, INJURED PARTY, WITHIN 5 YEARS AFTER MARRIAGE
SEXUALLY TD, INJURED PARTY, WITHIN 5 YEARS AFTER MARRIAGE
(48) IN ANNULMENT OR DECLARATION OF NULLITY OF MARRIAGE, COURT SHALL
ORDER PROSECUTOR TO APPEAR TO PREVENT COLLUSION BETWEEN THE PARTIES
NO JUDGMENT ON STIPULATION OF FACTS OR CONFESSION OF JUDGMENT IN
ANNULMENT OR NULLITY OF MARRIAGE
49. DURING PENDENCY OF SUIT FOR ANNULMENT OR NULLITY OF MARRIAGE1. court provides for support of spouses
2. custody and support of common children
3. Custody shall be given to spouse with due consideration toa- moral and material welfare of the children
B- their choice of parent they wish to remain
C- provide for visitation rights of other parent
AFTER ANNULMENT: (50, 51)
1. Community shall be dissolved and liquidated
2. donations by reason of marriage shall be valid

3. innocent spouse may revoke designation of

guilty Spouse as beneficiary in life insurance
policy, even if designation is irrevocable.
4. guilty spouse shall be disqualified to inherit
from innocent spouse
5. Provides for custody and support of common
children
6. Orders the delivery of presumptive legitimes
7. conjugal dwelling and lot shall be
adjudicated to spouse whom majority of
children choses to remain; in case no
majority, court decides
8. either spouse may remarry, but deliver
presumptive legitimes, otherwise remarriage
is void
9. children conceived or born before judgment
are legitimate (53)
10. children conceived or born of subsequent
marriage are legitimate (54)
If the judgment of annulment or declaration of nullity of marriage, partition and
distribution is not registered, what is the effect?

The judgment of annulment or absolute nullity of marriage, partition and

distribution of the properties of spouses and delivery of presumptive legitimes
shall be recorded in the civil registry and registry of properties, otherwise, the
same shall not affect third persons.

If not registered, the subsequent marriage of either of former spouses shall be

null and void. (52)

Where there are no properties of the spouses which could be the subject of
liquidation, and no legitimes to be delivered, is there a need for recording of the
judgment of annulment or absolute nullity of marriage?

There is no need for recording of the judgment in the appropriate registries of

property where there are no properties that would be subject of liquidation,
partition and distribution and no presumptive legitimes that could be
delivered. Logically, our governing laws do not require such judgment to be
furnished and recorded in the registries of property.

LEGAL SEPARATION (55)

1. PHYSICAL VIOLENCE repeated

GROSSLY ABUSIVE CONDUCT

2. PHYSICAL VIOLENCE OR MORAL PRESSURE to

change politic or religion

3. ATTEMPT TO CORRUPT
INDUCE to engage in prostitution

3. FINAL JUDGMENT WITH IMPRISONMENT OF

MORE THAN 6 YEARS, even if pardoned

4. DRUG ADDICTION, HABITUAL ALCHOLISM

5. LESBIANISM, HOMOSEXUALITY

6. BIGAMOUS MARRIAGE, ANYWHERE contracted

7. SEXUAL INFIDELITY OR PERVERSION

8. ATTEMPT AGAINST LIFE

9. ABANDONMENT FOR MORE THAN ONE YEAR,

without justifiable cause

Under Section 19 of RA 9262 (Anti-Violence Against Women and Children Act of

2004), the requirement of six months cooling-off period under Article 58 FC shall
not apply where violence, as specified in RA 9262, is alleged as the ground for
legal separation.
Ex. Repeated physical violence against the wife or common children. In such
cases, the court shall proceed on the main case and other incidents of the case as
soon as possible.GROUNDS FOR DENIAL (56)

1.CONDONATION - forgiven

2. CONSENT- agreed

3. CONNIVANCE-

4. MUTUAL GUILT- both had given ground

5. COLLUSION- both agree to commit or appear to commit

6. PRESCRIPTION-

TIME TO FILE- 5 YEARS FROM OCCURRENCE (57)

NO TRIAL BEFORE 6 MONTHS FROM FILING OF PETITION (58)

NO JUDGMENT UNLESS EARNEST EFFORTS FOR RECONCILIATION MADE DURING

PENDENCY OF ACTION AND FAILED (59)

If the ground for legal separation is any act of violence punishable under RA 9262,
said law prohibits the awarding of custody of minor children to the perpetrator of a
woman who is suffering from battered woman syndrome.
The victim who is suffering from battered woman syndrome shall not also be
disqualified from having custody of her children. (Sec. 28, RA 9262)
H instituted an action for legal separation against his wife, W on the ground of
adultery. It was however established during trial that after Hs discovery of his wifes
infidelity, he still had sexual intercourse with
her twice. Will the action prosper?

No. The act of H in having sexual intercourse with W in spite of his knowledge
of the latters infidelity is an act of implied condonation. Such act of
condonation shall bar the granting of a decree of legal separation. (Ginez vs
Bugayong, 100 Phil 616)

A caught his wife, B, having illicit relations with P. He then told her that he will file
an action against her for legal separation which the latter agreed provided that no
criminal charges shall be filed against her. The complaint was filed and B defaulted.
When questioned by the Fiscal, B signified her conformity to the legal separation. Is
there collussion? Is there confession of judgment to bar the decree of legal
separation?

The confession made outside of the court is not a confession of judgment.

Confession of judgment happens when defendant appears in court and
confesses to the right of the plaintiff to judgment or files a pleading expressly
agreeing to plaintiffs demand.

There is evidence of adultery independent of the confession, upon which the

decree may be granted.

What the law prohibits is a judgment based exclusively or mainly on

defendants confession. Otherwise, if a confession can defeat the action ipso
facto, any defendant, who opposes the separation, will immediately confess
judgment, purposely to prevent it. (Ocampo vs. Florenciano, 107 Phil 35)

A and B entered into a contract whereby they agreed to live separately and
that they are free to cohabit with anyone. Thereafter A cohabited with M and
had seven children with her. B filed an action for legal separation against A.
Will the action prosper?

No.

The action has prescribed. Action for legal separation prescribed in 5 years.

By their express agreement, B had consented or condoned the act of A. Having

consented or condoned the acts of A, he is undeserving of courts symphaty.

B is not an innocent spouse. She is aware of the cohabitation between A and M.

Effects of filing of legal separation (61)

Spouses are entitled to live separately

No more right of carnal intercourse

Court shall designate H or W to manage the community property

Court shall provide for the support of the spouses and the common children

Effects of decree of legal separation (63, 64)

Spouse shall live separately, but marriage bond shall not be severed

Community property shall be dissolved and liquidated.

Offending spouse forfeits share in the profits

Offending spouse disqualified to inherit from innocent spouse

Innocent spouse may revoke donations in favor of offending spouse, as well as

designation as beneficiary in any insurance policy, even irrevocable

Disposition in the will in favor of offending spouse is revoked by operation of

law.

Custody of minor children awarded to innocent spouse, provided that no child

below 7 years shall be separated from the mother

A married woman may use:

1. Her maiden first name and surname and add her husbands surname; or

2. Her maiden first name and her husbands surname, or

3. Her husbands full name, but prefixing a word indicating that she is his wife, such
as Mrs. In case of legal separation, the wife shall continue using her name and
surname employed before the legal separation. (Art. 372 FC)
In case of anulment of marriage, if the wife is the guilty party, she shall resume her
maiden name and surname. If she is the innocent spouse, she may resume her
maiden name and surname, or continue using the former husbands surname, unless:
the court decress otherwise; or she or the former husband is married again to
another person. (Art. 371 NCC)

A brought an action for legal separation against his wife B on ground of

adultery. He likewise asked the Court for the forfeiture of the share of B in the
community profits. During the pendency of the case, A died. May the heirs of A
be substituted in his behalf?

The action for legal separation, which involves nothing more than separation
from bed and board is purely personal. Being personal in character, the death
of one party to the action causes the death of the action itself.

Even if the action involves property rights, the abatement still applies. The
property rights are mere effects of a decree of legal separation. Without the
decree, such rights do not come into existence.

Reconciliation (65)

If the spouses should reconcile, the corresponding manifestation under oath

duly signed by them shall be filed with the court in the same proceeding for
legal separation.

Effects of reconciliation (66)

Legal separation proceedings, if pending, shall be terminated in whatsoever
stage.
Final decree of legal separation shall be set aside, but separation of property and
forfeiture shall subsists, unless the property agree to revive their former regime.
The use of the husbands surname during the marriage is permissive and not
obligatory. Hence, a married woman may retain the use of her maiden name. (In re:
Josephine P. Uy-Timosa, Bar matter No. 1625, July 18, 2006)
Revival of former regime (67)

Spouse should execute an agreement under oath and specify the following:
1. properties to be contributed anew to
the restored regime
2. properties to be retained as separate
of each
3. the names of all their known creditors, addresses
and amounts owing to each

The agreement shall be approved and recorded. Does not prejudice creditor without
notice, unless debtor-spouse has sufficient separate property
The Rule on Legal Separation (AM No. 02-11-11-SC) appears to allow the spouses,
upon reconciliation and with intervention of the court, to adopt a new property

regime different from that which they had prior to the filing of the petition for legal
separation. (Sec. 23(e) and 24, AM No. 02-11-11-SC).
It is submitted, however, that the parties may not adopt absolute community or
conjugal partnerhip of gains as their new property regime because regimes cannot
commence at any other time except the precise moment of the celebration of
marriage and any stipulation to the contrary is expressly declared by law to be void.
(Art. 88 and 107, FC)
RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE:
Obligations : (article 68)
-To live together
wife to live with husband except :
a- residence dangerous
b- husband has not fixed residence
c- husband carries shameful business at
home
-To observe mutual love, respect, and fidelity
-To render mutual help and support
Q. W, wife, abandoned her husband, H, without justifiable reason, can H ask the
court to order W to return to the conjugal home under penalty of contempt? What
other remedies are available to H?
Ans. No, bec. Cohabitation is purely personal obligation (Arroyo vs. Vasquez de
Arroyo, 42 Phil. 54)
Remedies :

A- withhold support
B -recover moral damages
C- ask court to counsel

The refusal of the wife to perform her wifely duties, her denial of consortium and
her desertion of her husband would certainly constitute a wilful infliction of injury
upon her husbands feelings in a manner contrary to morals, good customs and
public policy for which Art. 21 of the NCC authorize an award of damages.
Who fixed domicile?
Both, in case of disagreement, court decides (article 69)
The court may exempt spouse from living with the other :
A- if spouse lives abroad
B- other valid and compelling reason for
exemption
Support of the family joint responsibility of both (Art. 70)
Order :
a- from community property
b- income or fruits of separate property
C- separate property of spouses

(proportionate to their properties, but to creditors, solidarily liable).

Management of household- right and duty of both (article 71) expenses to be paid in
the same order as in support
Profession or occupation- wife may exercise without consent of husband but
Husband may object on valid, serious and moral grounds
In case of disagreement court decides on whether or not objection proper, and
benefits accrued to the family.
If benefit accrued to family prior to objection , resulting obligation shall be
enforced against the absolute community; after objection, against separate property
of spouse who has not obtained consent.
Under RA 9262, if the husband prevents his wife from engaging in any legitimate
profession, occupation or or activity, he has committed an act of violence punishable
by said law (Sec. 5(e), RA 9262), except in cases where the husband objects on valid,
serious and moral grounds. (Sec. 3(a) (D) (1), RA 9262).
Legal sanctions : ( petition court for relief) (72) If spouse
1. neglects duties to conjugal union
2. commits acts which tend to bring
danger, dishonor or injury to the
other or to the family.
Exercise of profession- (73)
-either spouse may exercise without the consent of the other
-spouse may object on valid, serious and moral grounds
-in case of disagreement, the court shall decide whether or not the objection is
proper and benefit accrued to the family before objection or thereafter.
-if the benefit accrued prior, the resulting obligation shall be enforced against the
separate property of spouse who has not obtained consent.
PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE:
Governed By :
1. marriage settlement
2. family code
3. local customs (ARTICLE 74)
Property regimes (article 75) ( that may be agreed upon in the marriage settlement)
1. absolute community
2. conjugal partnership gains
3. complete separation of property
4. combination of the above regimes
5. any other regimes, like dowry system
6. in case of void regime- governed by absolute
community.

If there is no marriage settlement- absolute community regime

Q. A, married B, a very rich woman. When B died, A claimed of the properties of B

on the basis of a public instrument executed by A and B whereby all their separate
properties were converted into conjugal properties. Is the claim valid?
Ans. The claim is not valid.
1. Property relations between husband and wife cannot be changed, altered or
modified during marriage.
2. The public instrument, if given effect, would result in giving validity to donation
between spouses which is not allowed by law.
3. It would allow commission of fraud by the spouses.
Forms of marriage settlement or modification : ( 77)
1. Must be in writing
2. Must be signed by both
3. Must executed before marriage
Must be registered to affect third parties, in the local registry where marriage
contract recorded and in the register of deeds where the property/ies located
In case real properties are contributed, the marriage settlement must be in
public document and recorded in the local civil registry and register of deeds, in
order to affect third persons.
Note: only public document can be registered in the register of deeds.
No more minors needing assistance of guardian for purposes of marriage settlement
as the age of majority has been lowered to 18, which is also the age of marriage. (78)
If suffering from civil interdiction, to be assisted by legal guardian in executing
marriage settlement. (79)
Any modification, alteration or change in the marriage settlement must be made
before the celebration of the marriage. (76)
Effect of non-celebration of marriages: (81)
1. property regime
2. donation proper nuptias
3. other stipulation in consideration of marriage ARE RENDERED VOID
However, stipulations that do not depend on the celebration of marriage shall be
VALID
Property relations governed by : Philippine law, (irrespective of place of marriage
and residence of parties)
Except: (80)
1. Contrary stipulation in the marriage settlement
2. both spouse are aliens
3. extrinsic validity of contracts affecting property not situated in the Phil and
executed in country where the property is located

4. extrinsic validity of contracts entered in Phil. But affecting property situated

outside of RP whose laws require different formality for their extrinsic validity.
DONATIONS PROPTER NUPTIAS (82)
Req.
1. made before marriage
2. in consideration thereof
3. in favor of one or both of the future spouses
Excepted: (not considered donation propter nuptias)
-Ordinary weeding gifts after marriage
-Donation before but not in consideration of the marriage
- Donation to other persons even if founded on the intended marriage
-Insurance contract over the life of spouse(belong to the beneficiary)
Limitations on how much can be donated: (84)
-no limitation if spouse agrees on absolute community
- if not absolute community- 1/5 of present property
-In case of future property- rule on succession
GROUNDS FOR REVOCATION : (86) binawi/bawiin
1. non-celebration of marriage
2. marriage judicially declared void ab initio
A- if in marriage settlement- automatically revoked
B- if not in M S - if written-10 years, if oral- 6 years
3. marriage without parental consent (action must be filed within 4 years)
4. Marriage annulled, donee acted in bad faith- 4 yrs
5. Legal separation, donee is guilty spouse- 5 yrs fr. decree
6. Resolutory condition fulfilled, if written, 10 yrs. If Oral- 6 yrs
7. Donee committed acts of ingratitude- 1 yr fr. knowledge
Donation by reason of marriage of property encumbered: (85)
- valid
-in case of foreclosure, property sold for less than the obligation secured, donee not
liable for deficiency
-if property sold for more than the obligation secured, excess shall go to the
donee.
Property donated with encumbrance : (85)
Valid
if foreclosed :
A- sold for less than the obligation-donee not liable for deficiency
B- sold for more than the obligation- donee entitled to excess.
DONATION BETWEEN SPOUSES : (87)
direct-void
indirect- void (where spouses is the presumptive heir of donee)
EXCEPT : moderate gifts on family rejoicings.

*Rule applies to common-law relationships

Q. X had been taking care of B until she got married to A. Prior to the marriage, A
executed a deed of donation, with the following conditions: 1. if there are children to
their marriage, the property shall go to said children; 2. if there are no children, and
A should die ahead, shall be given to his brothers; 3. if there are no children, and B
should die ahead, shall go to X. Nine months AFTER their marriage, B died without
issue. X filed an action to enforce the donation. Will the action prosper?
Ans.

No, action will not prosper.

1. Donation is not a donation propter nuptias. It was not made in favor of B, the
wife.
2. It cannot be a valid donation inter vivos because there was no acceptance by
the donee.
3. It cannot be a valid donation mortis causa because it was not executed in the
formality of will; besides, A is still alive. (note: there was substitution of heirs).
Q. X executed a donation propter nuptias in favor of his prospective wife, Y, who
accepted the same. The marriage however did not take place. The creditors of X filed
an action to recover the property donated on the ground that the marriage was not
celebrated. Will the action prosper?
Suppose the donation was made in the marriage settlement, will the answer be the
same?
Ans.

No, the action will not prosper.

-A donation propter nuptias is only REVOCABLE by the donor if the marriage is not
celebrated. If the donor did not bring an action for revocation within the period of
limitation, then the donation would forever be valid.
-However, if the donation was made in the marriage settlement, then the donation
is revoked by operation of law.
Q. A donation propter nuptias was given by X to Y. They were subsequently
married. Thereafter, Y discovered that X was previously married. Y brought an action
to annul their bigamous marriage, which was granted. X filed an action to revoke his
donation as their marriage was judicially declared void. Will the action prosper?
Ans.

No, the action will not prosper.

A donation propter nuptias is revocable in case the marriage is annulled, and the
donee acted in bad faith. In this case, Y, the wife, who was the donee, did not act in
bad faith. Rather, it was the donor who acted in bad faith. Hence, donation cannot be
revoked by the donor.
Q- A and B, both single, lived together as husband and wife, without the benefit of
marriage. During their cohabitation, A donated a house and lot to B. When A died,
the heirs of A bring an action to recover the property donated. Will the action
prosper?
Ans.

The action will prosper

Donation between spouses who are legally married is void. Same rule applies to
persons living together as husband wife without a valid marriage. To allow a
different rule is to put premium to illegimate relationship.
Q. X donated a parcel of land to his common-law wife, Y. Thereafter, X and Y got
married. Shortly after their marriage, X died. The sister of X filed an action to recover
the property donated by X on the ground that it is void. Will the action prosper?

Ans. The action will prosper, but only to of the property.

The donation made by X to his common-law wife Y is admittedly void. Donation
between legally married spouses is void. Said rule applies in equal measure to
illegitimate relations.
Y is however entitled to share of the property, being an intestate heir, as she was
legally married to X before he died. The other shall go to the sister of X, who is
also his intestate heir.
PROPERTY RELATIONS :
ABSOLUTE COMMUNITY- governs after the effectivity of the family code, unless
different regime agreed upon by the spouses. .
COMMENCEMENT: precise moment marriage is celebrated. (88)
WAIVER of rights, interests, shares and effects of community property during the
marriage- VOID.
EXCEPT: (89, second paragraph)
1. waiver takes place upon judicial separation of property
2.

waiver takes place after marriage had been dissolved or annulled.

WAIVER must appear in public instrument and recorded.

Creditors of waiving spouse may petition the court to rescind waiver to the extent of
their credit.

COMMUNITY PROPERTY CONSIST OF: (91)

1. all properties owned by the spouses at the time of celebration of marriage
2. all properties acquired after marriage.
PROPERTIES EXCLUDED : (92)
1. acquired by gratuitous title, including fruits and income, except when grantor
declares them to form part of the community property.
2. property for personal and exclusive use of spouses, except jewelry, which are
community property
3. property acquired before marriage by either spouse, who has legitimate
descendants by former marriage, including fruits or income thereon.
Presumption: properties acquired during the marriage is presumed to belong to the
community, unless proved that it is one of those excluded. (93)
CHARGES UPON ABSOLUTE COMMUNITY: (94)
1. SUPPORT for spouses, common children, and legitimate children of each spouse
2. DEBTS and obligation contracted during marriage by :
A-administrator spouse
B- Both spouses
C- One spouse with consent of other
3. DEBTS and obligations contracted by either spouse to the extent family
benefited.

4.TAXES liens, charges and expenses, including major or minor repairs upon
community property.
5. TAXES and expenses for preservation made during marriage upon separate
property of either spouse use by family.
6. EXPENSES to enable either spouse to commence or complete a professional,
vocational or other activity for self-improvement.
7. ANTENUPTIAL DEBTS of either spouse that redounded to the benefit of family.
8. VALUE of what is donated or promised by both spouses to their common children
for the exclusive purpose of commencing or completing professional or vocational
course or for self- improvement.
9. ANTENUPTIAL DEBTS of either spouse that do not redound to the benefits of the
family, SUPPORT for
Illeg. children, liabilities for crime, or quasi-delict, if separate property not
sufficient
10. EXPENSES for litgation between spouses, unless suit found to be groundless.
If the community property is not sufficient, the separate property of either spouse
shall be solidarily liable for the unpaid balance.
LOSSES IN GAMBLING, betting, sweepstakes, or any other kind of gambling, whether
prohibited or permitted by law, shall be borne by the loser, and not chargeable to
the community, but winning pertains to the community. (95)
In the system of absolute community, liabilities incurred by either spouse by reason
of crime is chargeable to the absolute community property, in the absence or
insufficiency of the exclusive property of the debtor-spouse. (Buado vs CA 586 SCRA
397)
ADMINISTRATION & ENJOYMENT of community property-

BOTH- (96)

In case of DISAGREEMENT- husbands decision prevails, but wife may seek

recourse in court within 5 years from date of contract implementing the decision.
In case of incapacity or inability to participate in administration- the other
spouse shall assume sole power, but cannot dispose or encumber community
property, without court approval or consent of the other spouse.
DISPOSITION OR ENCUMBRANCE of community property- BOTH- (96, second
paragraph)
If made by one, without consent of the other, it shall be considered as continuing
offer on the part of the consenting spouse, 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..
If consent is withheld or cannot be obtained- COURT may give the authority as
warranted by the circumstances.
EITHER spouse may dispose by will his/her interest in the absolute community. (97)
DONATION OF COMMUNITY PROPERTY- BOTH (98)
- except moderate donations to charity OR on occasion of family rejoicing OR
family distress.
DISSOLUTION OF ABSOLUTE COMMUNITY REGIME- (99)
1. death of either spouse

2. decree of legal separation

3. marriage is annulled or declared void
4. Judicial separation of property under 134 to 138
ARTICLE 134- SEPARATION OF PROPERTY DURING THE MARRIAGE TAKES PLACE ONLY
BY JUDICIAL ORDER-DONE under A- Art. 136- by agreement where they jointly file a verified petition for voluntary
dissolution of the absolute community property
B- Art. 135- for sufficient cause.
ARTICLE 1351. spouse convicted with penalty of CIVIL INTERDICTION
2. spouse judicially declared an ABSENTEE
3. LOSS OF PARENTAL AUTHORTITY decreed by court
4. ABANDONMENT by the spouse OR failure to comply with obligation
5. ABUSE OF POWER OF ADMINISTRATION
6. SEPARATION IN FACT FOR ONE YEAR, reconciliation is highly improbable.

SEPARATION DE FACTO OF SPOUSES- shall not affect the absolute community

property- except: (100)
A- spouse who leaves conjugal home or refuses to live therein- shall have no right to
be supported.
B- consent of spouse to any transaction is needed judicial authorization shall be
obtained in summary proceedings
C- if community property not sufficient, separate property of both spouses shall be
solidarily liable for the support of the family.
The spouse present shall be given authority by the court to encumber or dispose
separate property or fruits to satisfy the share of the absent spouse.

ABANDONMENT BY SPOUSE OF THE OTHER

Abandoned when spouse left conjugal dwelling without any intention of returning.
Presumed to have no intention of returning when spouse left conjugal dwelling
after 3 months or within said period give no information as to his/her whereabouts.
(101)
REMEDY OF ABANDONED SPOUSE- (101)
1. receivership
2. judicial separation of property
3. Petition for authority to be sole administrator of community subject to such
precautionary conditions as court may impose.

LIQUIDATION OF ABSOLUTE COMMUNITY ASSETS AND LIABILITY- (102)

PROCEDURES :
1. prepare inventory of absolute and separate properties
2. Pay debts and obligations
If not sufficient-separate property-solidarily liable
3. NET REMAINDER shall be divided equally
except- A- different divisions agreed upon in marriage settlement.
B- Voluntary waiver by one spouse of his share.
4. PRESUMPTIVE LEGITIMES of common children shall be
delivered
5. conjugal dwelling and lot adjudicated :
a- agreement of the parties
b- spouse, majority of the common children chooses to remain, child below 7,
presumed to have chosen the mother
c- if no majority- court decides taking into onsideration the best interest of the
children.

TERMINATION OF COMMUNITY PROPERTY BY DEATH- (103)

A- liquidated in the proceeding for settlement of estate deceased.
B- Surviving spouse shall liquidate community property judicially or extrajudicially,
within one year from death of deceased spouse.

C- If no liquidation after one year from deathDISPOSITION OR ENCUMBRANCE involving the community property shall be VOID.
D- If the surviving spouse contracts a subsequent marriage without liquidation of
community property, mandatory regime of complete separation of property shall
govern the property relations of the subsequent marriage.

LIQUIDATION OF COMMUNITY PROPERTIES OF TWO MARRIAGES- (104)

A- DETERMINE the capital, fruits and income of each community property upon such
proof as may be considered according to the rules of evidence.
B- in case of doubt as to which the community the existing properties belong, they
be shall divided between the two communities in proportion to the capital and
duration of each.

CONJUGAL PARTNERSHIP OF GAINS

1. property of regime that applies when agreed upon in the marriage settlement.
2. conjugal partnership of gains already established between spouses before the
effectivity of the family code.

RIGHT OF EACH SPOUSE IN THE CONJUGAL PROPERTY DURING MARRIAGE IS MERELY

INCHOATEThus, a private creditor of the husband cannot attach or levy on one-half of the
joint account of the spouses in a bank on the ground that it is the share of the
husband in said account.
The right of the husband to one half of the properties of the conjugal
partnership does not vest until its dissolution and there are net assets left.(De
Ansaldo vs. Sheriff of Manila, 64 Phil 156)
>The Family Code, which took effect on 3 August 1988, provides that any alienation
or encumbrance made by the husband of the conjugal partnership property without
the consent of the wife is void.
However, when the sale was made before the effectivity of the FC, the applicable law
is the New Civil Code.
>Article 173 of the New Civil Code provides that the disposition of real property of
the conjugal partnership without the wifes consent is not void but merely voidable
and the wife could, during the marriage and within 10 years from the questioned
transaction, seeks its annulment. (Heirs of Ignacia Aguillar-Reyes vs Mijares, 410
SCRA 97).
However, any alienation or encumbrance made after August 3, 1988 when the Family
Code took effect by the husband or the wife of the conjugal partnership property
without the consent of the other is null and void. (Heirs of Ignacia Aguillar-Reyes,
supra).
The present law specifically requires the written consent of the other spouse, or
authority of the court for disposition or encumbrance of conjugal partnership
property without which, the disposition or encumbrance shall be void. (Abalos vs
Macatangay, 439 SCRA 649).
The reason for the rule- is that the right of the husband or the wife to one-half of the
conjugal assets does not vest until the liquidation of the conjugal partnership, or
after the dissolution of the marriage, when it is finally determined that, after
settlement of the conjugal obligations, there are net assets left which can be divided
between the spouses or their respective heirs. Prior thereto, the interest of each
spouse in the conjugal assets is inchoate, a mere expectancy, which constitute
neither a legal nor an equitable estate. Hence, either of the spouse may not give
what he has not.
In Homeowners Savings & Loan Bank vs Dailo (453 SCRA 282), the bank contended
that the mortgage of a conjugal property by the husband without the consent of the
wife is not void in its entirety but valid with respect to the share of the consenting
spouse, citing Art. 493 of the NCC, which allows a co-owner to dispose of his aliquot
share without the consent of the other co-owner. The Court held that the rules of coownership do not apply to the property relations of conjugal partnership of gains
because said property regime is a special type of partnership.
In Pelayo vs Perez, 459 SCRA 475, the Court held that when a wife affixed her
signature to a Deed of Sale on the space provided for witnesses, she was deemed to
have given her implied consent to the contract of sale. Hence, the consent of a
spouse to the disposition does not have to be explicit or set forth in any particular
document so long as it is shown by acts of the spouse that such consent or approval
was indeed given.
COMMENCEMENT, WAIVER OF RIGHTS SHARES, EFFECTS OF ABSOLUTE COMMUNITY
APPLIES TO CONJUGAL PARTNERSHIP OF GAINS.
EXCLUSIVE PROPERTY OF EACH SPOUSE-

1. brought to the marriage as his/her own.

2. acquires during marriage by gratuitous title
(by donation or will, either singly or jointly, if share designated- per designation if
not- share and share alike)
3. acquired by right of redemption, by barter or by exchange with property belonging
to only one of the spouses
4. purchased with exclusive money of the spouse.
In conjugal partnership regime, if a spouse acquires a property through the exercise
of the right of redemption solely pertaining to him/her, the property so acquired is
his/her exclusive property, even if conjugal funds were used in the redemption.
Villegas vs Lingan, 526 SCRA 63). But the owner-spouse has the obligation to
reimburse the conjugal partnership for the funds coming from said property regime.
The wife during the marriage sold under pacto de retro her paraphernal property
consisting of house and lot. A few weeks later, the wife died. The husband redeemed
the property using his exclusive funds. To whom will the property belong, husband or
wife?
Property still belongs to the wife. Property acquired by right of redemption is
exclusive property. What matter is the origin of the right, if the right of redemption
pertains to the wife, then it belong to the wife if redeemed. Husband can recover the
amount used to redeem.
H before marriage with W was given by his friend a usufruct over a riceland for 5
years. Two years thereafter, H married W. Is the usufruct conjugal or exclusive?
The right of usufruct is exclusive, but the fruits derived from said right is conjugal.
Income or fruits of the separate property of the spouses is conjugal.
OWNERSHIP, POSSESSION, ADMINISTRATION, ENJOYMENT OF EXCLUSIVE PROPERTYretains by the owner spouse. But fruits of the separate property belongs to the
conjugal partnership of gains
Owner spouse may mortgage, encumber, alienate, or dispose her exclusive property.
Spouse may appear alone in court to ligitate.
TRANSFER OF ADMINISTRATION OF EXCLUSIVE PROPERTY TO OTHER SPOUSE- by
public instrument, recorded in registry property where property is situated.
Alienation by spouse automatically terminate the administration and proceeds shall
be turned over to owner-spouse.
PROPERTY DONATED TO SPOUSE :
1. if jointly with designation of shares- shall pertain to the donee-spouse as his or
her own exclusive property.
2. if jointly, without designation of shares- shall pertain to the spouses - share
and share alike.
3. If jointly, without designation of shares, and one of spouse refuses to accept,
or incapacitated to accept, or predeceases or dies before perfection of donationthe share shall accrue by accretion to the other spouse unless the donor provides no
accretion shall take place.
CONJUGAL PARTNERSHIP PROPERTY :
1. ACQUIRED by onerous title during marriage at the expense of common fund.

- the test is the origin of the money invested in the purchase, if it came from
conjugal funds, the property acquired is conjugal. (Rivera vs. Batallones, CA 40 OG
2090).
2. OBTAINED from labor, industry, work or profession of either or both spouse
- but teachers gratuity under special law, being remuneratory
(Alano vs. Florido, 61 phil 303)

is not conjugal.

- money received under the SSS Law is not conjugal, although the employeespouse contributed to the SSS with his salaries, but belongs to the designated
beneficiary under the SSS Laws.
3. FRUITS, natural, industrial or civil due or received during marriage from the
common property and from the exclusive property of each spouse.
4. SHARE of either spouse in the HIDDEN TREASURE as a finder or owner of the
property where treasure found
5. ACQUIRED through OCCUPATION such as fishing or hunting
6. LIVESTOCKS existing upon dissolution of the partnership in excess of the number
of each kind brought to the marriage by each spouse.
7. ACQUIRED by chance such as winning from gambling or betting. But losses shall
be borne exclusively by the loser-spouse.(117)
H and W bought a fishpond from X for P48,000, payable in 3 equal installments. The
first installment was paid with funds belonging exclusively to W, while the 2 nd and 3rd
installments were paid with funds borrowed by both from Y. In securing said loan,
several lands belonging to W were given. Is the fishpond paraphernal or conjugal?
Suggested answerThe fishpond is partly paraphernal (1/3) and partly conjugal (2/3). The amount
borrowed is conjugal in character because they are acting for the benefit of the
partnership. The collateral does not affect the status of the fishpond.
PROPERTY BOUGHT ON INSTALLMENTSIf paid partly from exclusive funds, partly from conjugal funds1. belongs to spouse if ownership was vested before marriage
2. but to the conjugal partnership if ownership was vested after marriage.
In either case, amount advanced by the spouse or partnership shall be
reimbursed upon liquidation of the partnership.(118)
CREDITS PAYABLE IN INSTALLMENTS- (119)
credit payable in installments within a period of time, the installments payable
during marriage belongs to the spouse but interests thereon belongs to the
partnership.
A obtained a loan in the amount of P20,000 from W prior to Ws marriage to H a year
later. Said loan was to be payable in 3 years by way of monthly installments. To
whom shall the installments due during marriage belong? How about the interests?
The credit is separate property of W. Installments in payment thereof is also
separate. However, the interests due during marriage shall belong to the conjugal
partnership.
IMPROVEMENTS ON SEPARATE PROPERTY OF SPOUSE(120)
Elements :

1- improvements are for utility or adornment

2. made in separate property of the spouse
3. by the conjugal partnership or through acts or efforts of either or both spouse.
RulesA- shall pertain to the conjugal partnership if the cost of the improvement and
resulting increase in value is more than the value of the property at the time of the
improvement.
B- shall pertain to the owner-spouse if the cost of the improvement and resulting
increase is less than the value of the property at the time of improvement.
C- the owner-spouse shall be entitled to reimbursement, and shall retain ownership
thereof until reimbursement. Ownership shall be vested upon reimbursement, which
shall be made at the time of the dissolution of the partnership.
The obligation to reimburse for the cost of the improvements, under Art. 120 FC,
rests on the spouse upon whom ownership of the entire property is vested- there is
no such obligation on the part of the purchaser of the property, in case the property
is sold by the owner-spouse prior to reimbursement. (Ferrer vs Ferrer, 508 SCRA 570)
CHARGES AND OBLIGATION OF THE CONJUGAL PARTNERSHIP (121)
1. support of the spouses, support of the common children, support of the leg
children of either spouse
2. debts and obligation contracted during marriage by : administrator-spouse for
benefit of partnership, both spouses, by one of them with the consent of the other.
3. Debts and obligations contracted by either spouse without consent of the other to
the extent that the family have been benefited.
4. All taxes, liens, charges and expenses, including minor or major repairs upon
conjugal property.
5. All taxes and expenses for mere preservation made during marriage upon
separate property of either spouse
6. Expenses to enable either spouse to commence or complete a professional,
vocational or other activity for self- improvement.
7. Antenuptial debts of either spouse insofar as they have redounded to the benefit
of the family.
8. Value of what is donated or promised by both spouses in favor of their common
legitimate children for the exclusive purpose of commencing or completing a
professional, vocational or other activity for self-improvement.
9. Expenses for litigation between the spouse unless the suit is found groundless.
If the conjugal property is insufficient, the spouse shall be solidarily liable with their
separate properties.
ADDITIONAL CHARGES- (122)
10. personal debts contracted by either spouse before or during marriage, to the
extent that they redounded to the benefit of the family.
11. Fines and pecuniary indemnities, and
12. Support of illegitimate children- shall be charged to the conjugal property after
payment of the obligations from (a) to (1), and the spouse liable has no exclusive
property or insufficient to pay for the fines, pecuniary indemnities and support of

illegitimate children; subject to deduction from his/her share at the time of

liquidation of the conjugal property..
Conjugal property cannot be held liable for the personal debts contracted by one
spouse, unless some advantage or benefit is shown to have accrued to the conjugal
partnership. (Buado vs CA, 586 SCRA 397)
Unlike in the system of absolute community where liabilities incurred by either
spouse by reason of a crime or quasi-delict is chargeable to the absolute community
property, in the absence or insufficiency of the exclusive property of the debtorspouse, the same advantage is not accorded in the system of conjugal partnership.
The conjugal partnership of gains has no duty to make advance payments for the
liability of the debtor-spouse. (Buado vs CA 586 SCRA 397)
Legal presumption that debt redounds to the benefit of the family- If either spouse
contracts an obligation on behalf of the family business, there is a legal presumption
that such obligation redounds to the benefit of the conjugal partnership. (SEBTC vs
Mar Tierra Corp. 508 SCRA 419; Ayala Investment and Development vs CA 286 SCRA
272)
Thus1. If the husband himself is the principal obligor in the contract, ie., the direct
recipient of the money and services to be used in or for his own business or
profession, the transaction falls within the term obligations for the benefit of the
conjugal partnership.
2. But if the money or services are given to another person or entity and the
husband acted only as a surety or guarantor, the transaction cannot by itself be
deemed an obligation for the benefit of the conjugal partnership. It is for the
benefit of the principal debtor and not for the surety or his family.
ADMINISTRATION AND ENJOYMENT OF CONJUGAL PROPERTY. (124)
-shall belong to both spouses jointly in case of disagreement, husbands decision
prevails
- wife may go to court for relief, within five years from date of contract
implementing said decision
- if spouse is incapacitated or unable to participate in administration of conjugal
property, other spouse may assume sole powers of administration- except- power to
dispose or encumber, which requires court approval or consent of the other.
--- in the absence of the court authority or consent of the other spouse, the
disposition or encumbrance shall be void however, the transaction shall be
considered as continuing offer on the part of the consenting spouse and third person,
and perfected as a binding contract upon the acceptance by the other spouse or
approval by the court before offer is withdrawn by either or both offerors.
DONATION OF CONJUGAL PROPERTY (125)
either can not donate without the consent of the other
except- moderate donations to charity or on occasions of family rejoicing or family
distress.
DISSOLUTION OF CONJUGAL PARTNERSHIP (126)
1. upon death of either spouse
2. when there is decree of legal separation
3. when the marriage is annulled or declared void

4. in case of judicial separation of property during marriage under Art 134-138

SEPARATION DE FACTO- (127)
shall not affect the conjugal partnership spouse who leaves the conjugal home or
refuses to live therein without just cause, shall have no right to be supported
-when consent of spouse to any transaction is required, judicial authorization shall
be obtained in a summary proceeding.
- Present spouse may be given judicial authority to dispose or encumber separate
property of other spouse to satisfy the latters share if conjugal property is not
sufficient for the support of the family.
if spouse abandons the other without just cause or fails to comply with his/her
obligations, the aggrieved spouse may petition court for :
1- receivership
2. judicial separation of property
3. authority to be sole administrator of conjugal property.
- -SPOUSE DEEMED TO HAVE ABANDONED THE OTHER- when she or he left the
conjugal dwelling without any intention of returning
- -SPOUSE who left the conjugal dwelling for a period of three months or has failed
within the same period to give any information as to his/her whereabouts shall be
prima facie presumed to have no intention of returning to the conjugal dwelling.
LIQUIDATION OF CONJUGAL PARTNERSHIP ASSETS AND LIABILITIES(129)
PROCEDURES :
1. inventory of conjugal and separate properties
2. amounts advanced by the conjugal partnership in payment of personal debts of
either spouse shall be credited to the partnership as asset thereof.
3. Reimbursement to the spouse/s of :
A- exclusive fund for acquisition of property
B- for value of property vested to the conjugal Partnership
4. debts and obligation of partnership shall be paid
5. remainder of the exclusive property shall be delivered to each of them
6. loss of deterioration of movable belonging each spouse used for benefit of family
shall be paid from common funds
7. net remainder of conjugal assets shall be divided equally between spouses,
unless different proportion agreed upon in marriage settlement, or unless waived or
forfeited as provided in the code
8. the presumptive legitimes of common children shall be delivered upon partition
9. conjugal dwelling and lot on which is situated shall be adjudicated to the spouse
with whom the majority of the common children choose to remain unless otherwise
agreed upon by the spouses, provided that children below 7 years deemed to have
chosen the mother, unless the court decides otherwise; in case there is no majority,
the court decides taking consideration the best interest of the children
LIQUIDATION OF CONJUGAL PARTNERSHIP OF 2 OR MORE MARRIAGES(131)
Elements-

1. two or more marriages contracted by the same person.

2. marriages contracted before the effectivity of this code
3. liquidation carried out simultaneously
rules1. respective capital, fruits, and income of each partnership shall be determined,
upon proof allowed under the rules of evidence
2. in case of doubt as to which partnership the existing properties belong, the
same shall be divided between or among the different partnership in proportion to
capital and duration of each.
SEPARATION OF PROPERTY OF SPOUSES :
SEPARATION OF PROPERTY TAKES PLACE :
1. if stipulated in marriage settlement
2. by judicial order
A- voluntary
B- sufficient cause
VALID CAUSES FOR JUDICIAL SEPARATION OF PROPERTY:
1. CIVIL INTERDICTION
2. ABSENTEE(JUDICIAL)
3. LOSS PARENTAL AUTHORITY (court decree)
4. ABANDONMENT OF SPOUSE
5. FAILURE TO COMPLY WITH MARITAL
OBLIGATION IN 101-marital, parental and
property obligations.
6. ABUSE OF POWER ADMINISTRATION
7. SEPARATION IN FACT FOR 1 YEAR AND
RECONCILIATION HIGHLY IMPROPABLE.
VOLUNTARY SEPARATION OF PROPERTY :
Rules1. joint petition (verified)
2. creditors of community and personal notified
3. creditors of community and personal listed
4. court takes measure to protect creditors or persons with pecuniary interests
5. once decreed, liquidation of community property
6. During, pendency, community pays for support of sp and separation of property
applies.
7. After dissolution, provisions on complete separation of property applies
8. Petition and decree shall be registered in the local civil registry

9. Separation of property of spouse shall not prejudice rights previously acquired

by creditors
REVIVAL OF THE PRIOR PROPERTY REGIME : BY FILING A PETITION IN THE SAME
COURT DECREE WAS ISSUED IN THE FOLLOWING CASES :
1. civil interdiction terminates
2. absentee reappears
3. court satisfied spouse will not again abuse administration
4. spouse returns to resume common life
5. parental authority judicially restored
6. spouses absent for one year returns
7. after decree, spouse voluntarily agree to revival
voluntary separation may thereafter be granted).

of the former regime (no

ADMINISTRATION OF EXCLUSIVE PROPERTY OF SPOUSE TRANSFERRED TO OTHER :

1. spouse becomes guardian of other
2. spouse declared absentee
3. spouse under civil interdiction
4. Spouse is fugitive from justice
5. if the spouse is disqualified because of :
Incompetence conflict of interest or other just cause- court shall appoint a suitable
person to be administrator.
REGIME OF COMPLETE SEPARATION OF PROPERTY
1. agreed upon in marriage settlement
2. decreed by court in proper cases
NOTE : COMPLETE SEPARATION OF PROPERTY REGIME CANNOT BE CONVERTED INTO
ANY OTHER REGIME DURING MARRIAGE BECAUSE THERE IS NO LAW ALLOWING IT.
KINDS :
AS TO EXTENT- A- total or partial
AS TO KINDS-a- present, b-future, c-both
RIGHTS OF SPOUSES IN COMPLETE SEPARATION OF PROPERTY :
1. OWN, DISPOSE, POSSESS, ADMINISTER THEIR SEPARATE PROPERTY
2. OWN THE EARNINGS FROM BUSINESS, PROFESSION OR INDUSTRY AND FRUITS
OF THEIR PROPERTY.
OBLIGATIONS :
1. BEARS FAMILY EXPENSES
PROPORTIONATE TO INCOME OR CURRENT
VALUE OF SEPARATE PROPERTIES.
2. LIABLE SOLIDARILY TO CREDITORS FOR FAMILY EXPENSES.
RULES IN CASES OF UNIONS WITHOUT MARRIAGE:

FIRST GROUP:
1. CAPACITATED TO MARRY
2. LIVE EXCLUSIVELY WITH EACH OTHER AS H AND W
3. WITHOUT BENEFIT OF MARRIAGE
SECOND GROUP :
Living together under a void marriage
With previous valid marriage
RULES ON PROPERTY RELATIONS : (first group)
1. wages and salaries owned by both in equal shares, irrespective of who is earning.
2. Properties acquired during cohabitation :
A- if acquired by donation, succession or
exchange- separate property. - fruit and income thereof- separate
B- if acquired by parties through work or industry rules of co-ownership applies
(proportionate to their efforts in acquiring)
if no proof, presumed equal, hence equal sharing.
NOTE : a party who did not actually participate in the acquisition shall be deemed to
have contributed jointly if the formers effort consisted in the care and maintenance
of the family and the household.
In torres vs. Yaptinchay- the supreme court held that where the only contribution of
the common-law wife in the acquisition of the properties was moral or inspirational
in character, her interest as co-owner of such properties shall be determined by the
courts by using their sound discretion.
MANAGEMENT SHALL BE JOINT
NO ENCUMBRANCE OR DISPOSITION BY ACT INTER VIVOS WITHOUT CONSENTOF THE
OTHER, UNTIL THE TERMINATION OF COHABITATION
RULES ON SPECIAL VOID MARRIAGES such as :
Bigamous, adulterous, concubine, both married to others, multiple alliances- Only properties acquired by parties through their actual joint contribution of money, property or industry shall be owned in common in
proportion to their contribution, HENCE :
- wages and salaries belong to him exclusively
- care by one party of home, children, and household or spiritual or moral inspiration
provided to other, not included in article.
- IF ONE PARTY IS VALIDLY MARRIED TO ANOTHER-share will accrue to community of
his existing marriage
-

IF PARTY IN BAD FAITH IS NOT VALIDLY MARRIED TO ANOTHER- share shall be

forfeited in favor of common children or descendants of common children.

- IF BOTH PARTIES IN BAD FAITH- SHARE shall be forfeited in favor of common

children or descendants of common children.(rule in pari delicto does not apply)
FAMILY HOMEElements1. constituted jointly by husband and wife or by an unmarried head of a family

2. dwelling house where they and their family reside and the land on which it is
situated
- property subject of conditional sale on installments, where ownership is reserved
by vendor only to guarantee payment of purchase price may be constituted as a
family home. (156)
LIMITATIONS ON CONSTITUTION OF FAMILY HOME :
1. each family have only one home
2. family home can be constituted only on the dwelling place and therefore, in the
locality where the family has its domicile.
- there must be actual occupancy of the family home with the intention of
dedicating the premises for such purpose.
3. the value of family home exempt from seizure of creditors can not exceed the
limits fixed by law
COMMENCEMENT OF FAMILY HOME (153)
The family home is constituted on the house and lot from the time it is
occupied as a family residence, and continues so long as any of its beneficiaries
actually resides therein.
From the time of constitution, the family home is exempt from execution, forced sale
or attachment except for1. non-payment of taxes
2. debts incurred prior to its constitution
3. debts secured by mortgages on the premises before or
after its constitution
4. debts due to laborers, mechanics, architects, builders, materialmen, and others
who have rendered service or furnished materials for the construction of the
building.(155)
EXEMPTIONto the extent of P300,000.00 in case of urban areas (chartered cities) and
P200,000.00 in case of rural areas.(157)
BENEFICIARIES OF FAMILY HOME (154)
1. husband and wife or unmarried person who is head of the family
2. their parents, ascendants, descendants, brothers and sisters living in the
family home and dependent for support upon the husband and wife, or head of the
family.
SALE, DONATION, ASSIGNMENT OR ENCUMBRANCE OF FAMILY HOME- (158)
1. may be sold, alienated, donated, assigned or encumbered by the owner/s
thereof
2. with written consent of- person constituting the same
-his spouse and
- majority of the beneficiaries of legal age

in case of conflict, court shall decide

EFFECT OF DEATH OF SPOUSES OF HEAD AND FAMILY -(159)
family home shall continue despite death of one or both spouses or the unmarried
head of family for a period of 10 years or for as long as there is a minor beneficiary.
The family home continues until the beneficiary becomes of age. (Patricio vs Dario III,
507 SCRA 438)
Heirs can not partition the family home unless the court find compelling reasons.
PROCEDURE FOR CLAIMS OF CREDITORS OF FAMILY HOME (160)
creditors claim is not one of those for which family home is not exempt
obtains a judgement in his favor
reasonable ground to believe that family homes value is more than the amount fixed
by law for its exemption
creditor may apply to the court rendering judgment for an order for the sale of the
family home.
The court shall order sale if the family homes value is in excess of the amount fixed
by law on its exemption.

FAMILYPOLICY- (149)
Family is the foundation of the nation
Family is the basic social institution which public policy cherishes and protects.
Family relations are governed by law
No customs, practice or agreement destructive of the family shall be recognized or
given effect
FAMILY RELATIONS- Includesbetween husband and wife
between parents and children
among other ascendants and descendants
among brothers and sisters whether of full-blood or half-blood
SUIT BETWEEN MEMBERS OF THE SAME FAMILY (151)
no suit shall prosper unless it should appear from the verified complaint or petition
that earnest efforts toward a compromise have been made, but the same have failed.
If it is shown that no such efforts were in fact made, the case must be dismissed.
RULES DOES NOT APPLY TO CASES :
Affecting civil status of persons
Validity of marriage or legal separation
Any ground for legal separation
Future support
Jurisdiction of courts
Future legitime
PATERNITY AND FILIATIONPaternity- is the civil status of the father with respect to the child.

Maternity- is the civil status of the mother with respect to the child.
Filiation- is the status of the child in relation to the father or mother.
KIND OF FILIATION1-Natural- relation between parent and child arising from nature or from childs
birth.
2-Artificial- relationship that arises between parent and child by fiction of law or in
imitation of nature, as in adoption.
LIGITIMATE CHILDRENFiliation of legitimate childrenby nature: legitimate
illegitimate
by fiction of law:

by adoption

LEGITIMATE CHILDREN- (164)

I. those conceived or born during marriage of parents
II those conceived as a result of artificial insemination
of the wife with sperm of husband
of the wife with sperm of donor
of the wife with sperm of both donor and husband
In case of artificial inseminationboth spouse authorized or ratified the insemination in a written instrument executed
and signed by them before the birth of the child, the instrument shall be recorded in
the civil registry together with the birth certificate of the child.
Presumption of legitimacy (Art. 164 FC)
In Liyao Jr vs Tanhoti-Liyao, 378 SCRA 563, the husband and wife were separated for
many years. During their separation, the wife had an illicit relation with another
man, with whom she cohabited and had a child. When the paramour died, the wife on
behalf of her child, filed an action for compulsory recognition of the latter as the
illegitimate child of her paramour for the purpose of partaking in the latters vast
estate. The SC denied the action because the child is presumed to be a legitimate
child of the husband and wife, the child being conceived and born during the
couples valid marriage.
In Concepcion vs CA, 468 SCRA 438, the wife during the subsistence of her marriage
with her first husband, married anew. Thereafter, upon petition of the second
husband, the second marriage was declared void for being bigamous and the
common child of the wife and the second husband was declared to be an illegitimate
child by the trial court. The custody of the child was awarded to the mother while the
second husband was granted visitation rights. On appeal from the decision granting
the second husband visitation rights over the child, the SC held that the second

husband is not entitled to visitation rights because of the absence of parent-child

relationship that exists between them. The Court explained that since the child was
born during the valid marriage of the wife and the first husband, the child is
presumed to be a legitimate child of that marriage.
GROUNDS TO IMPUGN LEGITIMACY OF A CHILD (166)
1. physical impossibility of sexual intercourse by husband with wife within the first
120 days of the 300 days which immediately preceded the birth of the child due to :
a-physical incapacity of husband to have
sexual intercourse with his wife
b- fact that husband and wife were living
separately in such a way that sexual
intercourse was not possible.
c- serious illness of the husband which
absolutely prevented sexual intercourse
2. If it is proved that for biological or other scientific reasons , the child could not
have been that of the husband, except in case of artificial insemination
3. that in case of children conceive through artificial insemination, the written
authorization or ratification of either parent was obtain through mistake ,fraud,
violence, intimidation or undue
influence.
WIFE MARRYING WITHIN 300 DAYS FROM TERMINATION OF MARRIAGE (168)
a child born before 180 days after the solemnization of the subsequent marriage
is considered to have been conceived during the former marriage, provided born
within 300 days after termination of the 1st marriage.
b- Child born after 180 days following the celebration of the subsequent marriage
is considered to have been conceived during the marriage, even though born
within 300 days after termination of the former marriage.
WIFES DECLARATION OF LEGITIMACY OR ILLEGITIMACY OF CHILD (167)
The child shall be considered legitimate although the mother may have declared
against its legitimacy or may have been convicted as an adulteress.
CHILD BORN AFTER 300 DAYS FROM TERMINATION OF MARRIAGE (169)
The legitimacy or illegitimacy of a child born after 300 days following the
termination of the marriage shall be proved by whosoever alleges such legitimacy
or illegitimacy.
PERIOD TO BRING ACTION TO IMPUGN LEGITIMACY (170)
IF HUSBAND or IF HIS HEIRS ARE RESIDENT OF THE PLACE WHERE BIRTH TOOK
PLACE OR WAS RECORDEDThe action must be brought within 1 year from knowledge of the birth or its
recording in the civil register
IF HUSBAND OR HIS HEIRS ARE NOT RESIDENT OF THE PLACE WHERE BIRTH TOOK
PLACE OR WAS RECORDEDThe action must be brought within 2 years if he is residing in the Philippines, and
3 years if residing abroad
If the birth of child was concealed from or unknown to the husband or his heirs,

the period shall be counted from the discovery or knowledge of birth or fact of
registration, whichever comes first.
HEIRS MAY BRING ACTION TO IMPUGN LEGITIMACY OF CHILD (171)
if husband should die before the expiration of the period fixed for bringing the
action.
if husband should die after the filling of complaint, without having desisted
therefrom.
if the child was born after the death of the husband
PROOF OF FILIATION: (172)
1. Record of birth appearing in the civil registry
2. Final judgment
3. Admission of legitimate filiation in a public document
or private handwritten instrument and signed by parent
concerned.
In the absence of the foregoingOpen and continuous possession of status of a legitimate child
Any other means allowed by the rules of court and special laws, such asbaptismal certificate
judicial admission
family bible wherein name of child was entered
common reputation respecting pedigree
admission by silence
testimonies of witnesses
It is settled in law and jurisprudence, that the status and filiation of a child cannot
be compromised. Public policy demands that there be no compromise on the
status and filiation of a child. Paternity and filiation or the lack of the same, is a
relationship that must be judicially established, and it is for the Court to declare
its existence or absence. It cannot be left to the will or agreement of the parties.
(Uy vs Chua 600 SCRA 806.
In Uy vs Chua, while there was a previous compromise agreement between the
parties approved by the court in a previous case wherein the petitioner had
agreed that there was no blood relationship between her and the respondent, it
was held that there is no res judicata even If the second case involves the same
cause of action (for recognition of paternity) between the same parties
considering that the compromise agreement in the previous case is null and void
as there can be no compromise on the status and filiation of a child.
As for the baptismal certificate, it can only serve as evidence of the administration
of the sacrament on the date specified but not of the veracity of the entries with
respect to the childs paternity. (Puno vs Puno Enterprises, Inc. 599 SCRA 585).
In Cabatania vs CA, 441 SCRA 96, the Court held that the extremely subjective
test of physical resemblance or similarity will not suffice as evidence to prove
paternity and filiation.
This ruling abandons the dictum in Tijing vs CA 354
SCRA 17, where the Court
held that resemblance between a minor and his alleged parent is competent and
material evidence to establish parentage.
PERIOD TO CLAIM LEGITIMATE FILIATION (173)
the action to claim legitimacy may be brought by the child during his or her

lifetime and shall be transmitted to the heirs should the child die during minority
or in a state of insanity
heirs have a period of 5 years to institute the action
if the child dies after commencing the action, the heirs of the child will be
substituted for him, even if the parent also dies during the pendency of the action
RIGHTS OF LEGITIMATE CHILDREN- (174)
1. To bear surname of father and
mother
2. To receive support from parents,
ascendants, brothers and sisters
3. To be entitled to legitime and other
successional rights under the civil code
RIGHTS OF ILLEGITIMATE CHILDREN (176)
1. Use the surname of mother
2. Under the parental authority of mother
3. Entitled to support
4. Entitled to legitime under the civil code(1/2 that of the legitimate child)
Note: RA 9255 approved on Feb. 24, 2004, allows the illeg. Child to use the
surname of the father, if acknowledged by the latter.
ILLEGITIMATE CHILDRENChildren conceived and born outside a valid marriage are illegitimate, unless
provided by the family code. (165)
FILIATIONIllegitimate children may establish their illegitimate filiation in the same way as
legitimate children
ACTION TO CLAIM ILLEGITIMATE FILIATION (175)
The action must be brought within same period for legitimate filiation exceptwhen based on continuous possession of status of illegitimate children or by other
means allowed under the rules of court, the action must be brought during the
lifetime of the alleged parent.
RIGHTS OF ILLEGITIMATE CHILDREN (176)
1. Use the surname of mother
2. Under the parental authority of mother
3. Entitled to support
4. Entitled to legitime under the civil code(1/2 that of the legitimate child)
Note: RA 9255 approved on Feb. 24, 2004, allows the illeg. Child to use the
surname of the father, if acknowledged by the latter.
A certificate of live birth purportedly identifying the putative father is not
competent evidence of paternity where there is no showing that the putative
father had a hand in the preparation of the certificate. The local civil registrar has
no authority to record the paternity of an illegitimate child on the information of a
third person. (Puno vs Puno Enterprises, Inc. 599 SCRA 585). In this case, it was
observed that only the mother supplied the data in the birth certificate and signed
the same while there was no evidence that the alleged father acknowledged the
child as his.

Illegitimate children shall use the surname of the mother, regardless of whether or
not the father admits paternity. (Mossesgeld vs CA, 300 SCRA 464).
Hence, the illegitimate father cannot compel the local civil registrar to register
the certificate of live birth of the illegitimate child using his surname.
However, an illegitimate child shall have the option (but not an obligation) to use
the surname of the father in the following instances:
1. If his/her filiation has been expressly recognized by the father through the
record of birth appearing in the civil register
2. when an admission of paternity is made by the father in a public document or
private handwritten instrument.
The recognition of the illegitimate child in the record of birth, or through an
admission in a public document or private handwritten instrument is in itself, a
consummated act of acknowledgment of the childs paternity; hence, no separate
action for judicial approval is necessary. (Dela Cruz vs Gracia, 594 SCRA 648)
Q. Must the admission of paternity in a private handwritten instrument be signed
by the putative father?
In Dela Cruz vs Gracia, 594 SCRA 648, the SC lay down the rules:
a- where the private handwritten instrument is the lone piece of evidence
submitted to prove filiation, the same must be signed by the acknowledging
parent.
b. where the private instrument is accompanied by other relevant and competent
evidence, it suffices that the claim of filiation therein be shown to have been made
and signature of the acknowledging parent is merely corroborative of such
evidence.
In Briones vs Miguel, 440 SCRA 455, the Court reiterated the rule that an
illegitimate child is under the parental authority of the mother, and the
recognition of an illegitimate child by the father is a ground for ordering the latter
to give support, but not custody of the child. The illegitimate father, however, is
entitled to visitation rights.
In In re: Stephanie Naty Astorga, 454 SCRA 541, it was held that an illegitimate
child, upon adoption by her natural father, may be allowed to use the surname of
her natural mother as her middle name. The Court explained that the same is in
keeping with the Filipino custom of adding the surname of the childs mother as
his middle name.
The SC held that the law does not allow one to drop the middle name from his
registered name. Middle name serves to identify the maternal lineage or filiation
of a person as well as further distinguish him from others who may have the same
given name and surname as he has. In this case, when Julian was born prior to the
marriage of his parents, he was named Julian Lin Carulasan. After the subsequent
marriage of his parents, his name was changed to Julian Lin Carulasan Wang. He
now seeks to drop the middle name Carulasan. (In re: Change of name and/or
correction ofEntry in the Civil Registry of Julian Lin Carulasan Wang, 454 SCRA
155)
In Braza vs the City Civil Registrar of Himamaylan City, Negros Occidental, GR
No. 181174, Dec. 4, 2009, when the first wife found out that her deceased
husband had a second marriage and a child in the second marriage, she filed on
Dec. 23, 2005 a petition to correct the entries in the birth record of the child
contending that the child could not have been legitimated because the marriage
of the parents was void for being bigamous. In her petition, she likewise prayed
that the marriage of the parents of the child be declared void on the ground that
it is bigamous.

The court ruled that the cause of action is actually to seek the declaration of the
marriage of the parents of the child as void for being bigamous and impugn the
childs, which causes of action are governed not by Rule 108 but by AM No. 02-1110-SC which took effect on March 15, 2003, and Art. 171 of the FC, hence, the
petition should be filed in a Family Court as expressly provided in said Code. The
Court reasoned that the validity of marriages as well as the legitimacy and
filiation can be questioned only in a direct action seasonably filed by the proper
party, and not through a collateral attack such as the petition filed before the
court a quo.
Since the marriage to be declared a nullity was celebrated during the effectivity
of the FC and the case questioning its validity was filed after March 15, 2003, the
case is governed by AM No. 02-11-10-SC. Thus, only the husband or second wife,
who are parties to the marriage, can file the action.
LEGITIMATED CHILDRENLegitimation- is the remedy by means of which those who in fact were not born in
wedlock and should therefore, be considered illegitimate, are by fiction,
considered legitimate, it being supposed that they were born when their parents
were validly married.
Legitimated children are illegitimate children who, because of the subsequent
marriage of their parents are, by legal fiction, considered legitimate.
Requisites of legitimation:
1. the child is conceived and born outside of wedlock
2. at the time of the childs conception, the parents were either: not disqualified
by any impediment to marry each other, or disqualified only because either or
both of them were below 18 years of age (RA 9858)
3. after the birth of the child, the parents subsequently enter into a valid marriage
WHEN LEGITIMATION TAKES PLACE (178)
Legitimation takes place by the subsequent marriage of parents provided the
parents have acknowledged the child before or after the marriage.
Annulment of voidable marriage shall not affect the legitimation.
RIGHTS OF LEGITIMATED CHILDREN- (179)
Same rights as legitimate children.
EFFECT OF LEGITIMATION (180)
The legitimation shall retroact to the time of the childs birth
The legitimation of children who died before the celebration of the marriage shall
benefit their descendants.(181)
WHO IMPUGNS AND GROUNDS TO IMPUGN LEGITIMATION (182)
Legitimation may be impugned only by those who are prejudiced in their rights,
(testamentary or reinstated heirs), within five years from the time their cause of
action accrues.(from death of putative parents)
Legitimation may be impugned on the following grounds
1. subsequent marriage of parents is void
2. child allegedly legitimated is not a natural child
3. the child is not really the child of the alleged
parents.

WHO MAY ADOPT?

1. of age
2. possessed of civil capacity and legal rights
3. can support and care for his children, in keeping with the
means of the family
4. 16 years older than adopted
except 1. adopter is parent by nature of adopted
2. adopter is spouse of legitimate parent of the
person adopted
NOTE :
Person with children can adopt
Adopter or adopted may be single or married
Age difference is to assure maturity
WHO MAY NOT ADOPT ?
1. guardian with respect to ward before the final
account of guardianship is approved
2. those convicted of crime involving moral turpitude
3. alien
except- a- former Filipino adopting relatives by
consanguinity
b- adopting the legitimate child of Filipino
spouse
c- married to a Filipino citizen and jointly
adopting relative by consanguinity of the latter
(adoption of illegitimate child of Filipino spouse)
exception to exception- inter- country adoption
HUSBAND AND WIFE MUST JOINTLY ADOPT :
Except1. spouse adopts his illegitimate child, with the consent of the other spouse
2. spouse adopts the legitimate child of the other, in which case, exercise joint
parental authority.
3. if the spouse are legally separated from each other. (Sec. 7, RA 8552)
WHO MAY NOT BE ADOPTED?
I. PERSON OF AGE
Excepta- child by nature of the adopter or
by the spouse
b- prior to adoption, considered
and treated as child during
minority
2. alien with no diplomatic relation
3. person already adopted , unless
revoked or rescinded
WHOSE CONSENT IS NEEDED ?
1. child to be adopted if 10 years or over
2. parent by nature of adopted
3. children of adopter, if 10 yrs over
4. illeg. Children of adopter, if 10 yrs over and living with
adopter
5. spouse of adopter

6. spouse of person to be adopted

NOTE :
consent of parent who abandoned child is not necessary.
If both parents abandoned the child to be adopted, then consent of those exercising
substitute parental authority is needed
In Landingin vs Republic, 493 SCRA 415, the Court held that the written consent of
the biological parents is indispensable for the validity of a decree of adoption. The
Court explained that the natural right of a parent to his child requires that his
consent must be obtained before his parental rights and duties may be terminated
and re-established in the adoptive parents.
If the written consent of the biological parents cannot be obtained, the written
consent of the legal guardian of the minors will suffice. If it is claimed that the
biological mother of the minor had indeed abandoned them, the written consent of
their legal guardian must be adduced. (Landingin vs Republic)
Prior to the amendment introduced by RA 9523 (effective 2009), the declaration of
a child as legally available for adoption may be had either judicially or
administratively. With the amendment introduced by RA 9523, only the DSWD now
has the sole authority to issue the certification declaring a child legally available for
adoption. Such certification that a child is legally available for adoption shall be
issued by the DSWD in lieu of a judicial order, thus making the entire process
administrative in nature.
In addition, the amendatory law provides that such certification shall be, for all
intents and purposes, the primary evidence that the child is legally available in a
domestic adoption proceeding (as provided in RA 8552 or the Domestic Adoption Act)
and in an Inter-country adoption proceeding (as provided in RA 8043 or the InterCountry Adoption Act).
EFFECTS OF ADOPTION :
-Adopted shall be deemed child of the adopter
-Adopted has right to use surname of adopter
-Parental authority of parents by nature shall
terminate and vested in the adopter exceptif adopter is spouse of parent by nature of
adopted, then, both shall exercise joint parental
authority
-Adopted shall remain intestate heir of his parents by
nature and other blood relatives
-Adoption cannot confer on the adopted the
citizenship of the adopter
LEGAL SUCCESSION ON THE ESTATE OF ADOPTED :
children\ leg. illeg. Descendants spouse of adopted shall inherit from him
parents by natureadopters-

of estate
of estate

surviving spouseadopters-

of estate
of estate

illeg. children
adopters

of estate
of estate

illeg. Childrensurviving spouseadopters-

1/3 estate
1/3 estate
1/3 estate

adopters only
only collateral relatives-

whole estate
intestacy applies

GROUNDS FOR REVOCATION OF ADOPTION :

A.IF ADOPTED IS MINOR OR INCAPACITATED(on the same grounds for loss or suspension of parental authority)
1. Art. 229upon adoption of child adopted by another
upon appointment of judicial guardian
judicial declaration of abandonment
final judgment divesting parental authority from adopters
judicial declaration of absence or incapacity of person exercising parental authority
2. Art. 230 suspended upon conviction with penalty of civil interdiction. Reinstated
upon service of penalty or pardon or amnesty
3. Art. 231- suspend parental authority if :
treats child with excessive harshness
gives child corrupting order or counsel or example
compels child to beg
subjects child or allows child to be subjected to acts of lasciviousness
4- Art. 232-subjected child to sexual abuse or allows him to be subjected to abuse
WHO MAY FILE ACTION FOR REVOCATION/ RESCISSION?
1- any person authorized by court
2. proper government instrumentality acting in behalf of the
child, like DSSD
B- IF ADOPTED CHILD IS ALREADY 18 YRS OLD
File personallyGrounds- 920- for disinheriting as ascendant
a- parents abandoned their children, induced their daughter to
live a corrupt or immoral life
b- parent convicted of attempt against the life of adopted,
spouse, ascendants or descendants
c- Accused adopted of a crime with penalty of imprisonment
for six years or more, accusation found to be false.
D- Convicted pf adultery or concubinage with spouse of
adopted
e- Refusal to support the adopted without justifiable cause
Note: The adopter can no longer file an action to revoke the adoption. (Adm.
Circular). The reason being that adoption is for the benefit of the adopted.

EFFECT OF REVOCATION:
If adopted still minor, reinstate parental authority of parents, unless disqualified or
incapacitated, in which case, court appoints a guardian
If adopted is physically or mentally handicapped court appoints a guardian
All reciprocal right and obligations between adopter and adopted are extinguished
Adopted shall resume his surname prior to adoption
Court shall order the amendment of the records of the birth of adopted in the local
civil registrar

INTER-COUNTRY ADOPTION LAW

INTER-COUNTRY ADOPTION
Inter-country adoption refers to the socio-legal process of adopting a Filipino
child by an alien or a Filipino citizen permanently residing abroad where the petition
is filed, the supervised trial custody is undertaken, and the decree of adoption is
issued outside the Philippines.
Child means a person below fifteen (15) years of age unless sooner emancipated
by law.
Legally free child means a child who has been voluntarily or involuntarily
committed to the Department, in accordance with the Child and Youth Welfare Code.
WHO MAY BE ADOPTEDOnly a legally free child may be the subject of inter-country adoption.
Requisitesa- Child Study Report
b- Birth Certificate or foundling certificate
c- deed of voluntary commitment or decree of
abandonment or death certificate of parents
d- recent photo of child
WHO MAY ADOPT
Any alien or Filipino citizen permanently residing abroad ifa- at least 27 years of age and at least 16 years older
than the child to be adopted, at the time of application
except- 1. parent by nature of the child to be adopted
2. spouse of such parent (of child to be adopted)
- if married, his or her spouse must jointly file for adoption
b- has the capacity to act and assume all rights and
responsibilities of parental authority under his national law
and has undergone appropriate counseling from an
accredited counselor in his country.
c- has not been convicted of a crime involving moral turpitude
d- is eligible to adopt under his national law

e- is in a position to provide the proper care and support and to give the necessary
moral values and example to all his children, including the child to be adopted.
f- agrees to uphold the basic right of the child as embodied under Philippine laws,
the UN Convention on the Rights of the Child and to abide by the Rules and
regulations issued to implement the provisions of this act.
g- comes from a country with whom the Philippines has diplomatic relations and
whose government maintains a similarly authorized and accredited agency and that
adoption is allowed under his or her national law.
h- possess all the qualifications provided herein and other applicable Philippine laws.
WHERE TO FILE APPLICATIONAn application to adopt a Filipino child shall be filed
a- Regional Trial Court having jurisdiction over
the child, or
b- Inter-Country Adoption Board
thru: l. intermediate agency,
2. governmental or accredited
agency in the country of the
adopting parents
Documents to be submitted1. birth certificate
2. marriage contract
3. written consent of biological/adopted children
above 10 years of age
4. physical. Medical and psychological evaluation
by duly licensed physician or psychologist
5. Income tax return or any document showing the
financial capability of the applicants
6. police clearance of applicants
7. character reference from local church/minister,
applicants employer and member of the immediate
community who have known the applicants for at
least five years
8. recent postcard-size pictures of the applicant and his
immediate family
TRIAL CUSTODYTrial custody shall be for a period of six months from time of placement.

SUPPORT
SUPPORT- everything indispensable for :
1- sustenance
2- dwelling
3- medical attendance
4- education
5- transportation
in keeping with the financial capacity of the family
- The education of the person entitled to be supported shall include his schooling or
training for some profession, trade or vocation, even beyond the age of majority.
- Transportation shall include expenses in going to school or to and from the place of
work.

CHARACTERISTICS :
- Purely personal founded on personal
necessity
- Cannot be attached or executed- SURVIVAL
- Intransmissible and non-assignable
- Variable
- Reciprocal
- Demandable from time of needs and even
beyond age of majority or even if married.
PERSON OBLIGED TO GIVE SUPPORT :
1- Spouses
2- Leg. asc. And desc.
3- Parents and their leg. children, and leg. and illeg. children of the latter.
4- Parents and their illeg. Children, and the leg. and illeg. children of the latter.
5- Leg. brothers and sisters, whether of full or
half blood.
6- Illeg. Brothers or sisters, except- when already of age and due to cause imputable
to claimants fault or negligence
SOURCES OF SUPPORT :
- SPOUSE- absolute or conjugal
property
- Common children- absolute or
conjugal property
- Children of spouse by another
marriage- same
Illegitimate children of either spousea- if ABSOLUTE COMMUNITY REGIME1- separate property
2- If insufficient- absolute community
But deduct from share of spouse upon liquidation
b- if CONJUGAL PARTNERSHIP1- separate property
2- if insufficient-conjugal property
But deduct from share of spouse upon liquidation
Brothers or sisters- from separate property of spouse
- If insufficient-from absolute or conjugal property if financially capable.
But to be deducted upon liquidation

SUPPORT DURING PROCEEDING FOR LEGAL SEPARATION, ANNULMENT OF MARRIAGE

OR DECLARATION OF NULLITY OF MARRIAGE:
during pendency- from absolute or conjugal property
after judgment- mutual support ceases
BUT IN LEGAL SEPARATION- the court may order the guilty spouse to give support to
innocent spouse, specifying the terms thereof.
ORDER OF PREFERENCE ON WHO WILL GIVE SUPPORT :
1- Spouse
2- Descendants, nearest in degree
3- Ascendants, nearest in degree
4- Brothers or sisters

In Patricio vs Dario III, 507 SCRA 438, it was held that grandchildren cannot
demand support directly from their grandparents, if they have parents (ascendants
of nearest degree) who are capable of supporting them. This is so because we have
to follow the order of support under Art. 199 FC
RULES- If support falls on two persons or more, both shall give support in proportion to
resources of each
- In cause of urgent need, the court may order one to give support provisionally,
subject to claim for reimbursement from the other.
- If several beneficiaries, against only one giver, and resources not sufficient- order of
payment shall be as follows :
1. spouse
2. descendants, nearest degree
3. ascendants, nearest in degree
4. brothers or sisters
But in case of concurrence between spouse and child- child shall be preferred to be
supported.
SPECIAL RULES ON SUPPORT :
amount of support dependent on :
1- means of giver
3- necessities of recipient
- support demandable from needs, but payable from judicial or extra-judicial
demands
- support pendent lite claimed in accordance with the rules of court
- payment of support shall be made within five days from each corresponding month.
No refund even if dies within the month
support can be made by : (option of giver)
- paying the allowance fixed
- receiving and maintaining in the family dwelling the recipient
except- when there is moral or legal obstacle thereto.
Right to receive support
- money or property given as support not subject to levy or attachment or
execution
except
1. support in arrears
2. contractual support in excess of legal
support
3. support given by will in excess of
legal support
NOTE : Contractual support can be subject to adjustment whenever modification is
necessary due to changes in the circumstances manifestly beyond the contemplation
of the parties
Support can be given by strangers
- When giver has knowledge, the stranger can claim from giver, unless the stranger
has no intention to be reimbursed
- When giver unjustly refuses or fails to give support when urgently needed by the
latter, stranger may give, with right of reimbursement. This applies specially where
mother and father unjustly refused or fails to give support to the child if urgently

needed.

PARENTAL AUTHORITY
PARENTAL AUTHORITYConcept- mass of rights and obligations which parents have in relation to the person
and property of their children until their emancipation, and even beyond under
certain circumstances.
PURPOSE
1. sound physical development of
children
2. cultivation of their intellectual
perceptions
3. nourishment of their appetitive
and sensitive faculties(Reyes vs.
Alvarez, 8 Phil. 723)
LAW ON PARENTAL AUTHORITYBefore august 3 1988, PD 603 and civil code
After august 3, 1988 , family code expressly repealing Title XI of the civil code on
parental authority and Arts. 17, 18 and 19 of PD 603 on parental authority (art 254,
family code)
CHARACTERISTICS OF PARENTAL AUTHORITY
- A natural right and duty of parents(209)
- Can not be renounced, transferred or
waived except in cases authorized by law, (210), as in the case of:
1. adoption
2. guardianship
3. commitment of child in an entity or
institution engaged in child care or in
childrens home(223-224)
- Jointly exercised (211)
in case of disagreement, fathers decision prevails unless there is judicial order to
the contrary.
- Purely personal and cannot be exercised
thru agents
- Temporary, ends when child emancipated,
can take care of himself & his property or
parent unable to properly exercise the
authority
PARENTAL AUTHORITY CONSISTS OF: (209)
caring and rearing of such children for civic consciousness and efficiency,
development of their moral, mental, and physical character and well-being, parental
responsibility
IN CASE OF DEATH OR ABSENCE OF EITHER PARENT- parental authority shall be
exercised by :
parent present (122)
IN CASE OF REMARRIAGE OF SURVIVING PARENT- parental authority shall be
exercised by :
surviving parent, unless court appoints a guardian (212)

IN CASE OF SEPARATION OF PARENTS, (213) parental authority shall be exercised by :

parent designated by court, but :
court shall take into account all relevant considerations, specially the choice of child
over 7 years of age, unless parent chosen is unfit;

no child under 7 years of age shall be separated from the mother, unless court finds
compelling reason to order otherwise, such as insanity, communicable disease which
might endanger health and life of child, maltreatment of child or other similar
reasons which make her unfit.
> In the case of Pablo-Gualberto vs Gualberto, 461 SCRA 450, and Gamboa-Hirsch
vs CA, 527 SCRA 380, the Court referred to the second paragraph of Article 213 of
the FC, giving the mother preference in awarding custody of the child under the age
of seven as the tender age presumption.
The Court further held that the mere fact that the mother is a lesbian is not a
compelling reason to deprive her of custody without showing that she carried on her
purported relationship with a person of the same sex in the presence of the child or
under circumstances not conducive to the childs proper moral development.
The so-called tender age presumption under Art. 213 of the FC may be overcome
only by compelling evidence of the mothers unfitness. The mother is declared
unsuitable to have custody of her children in one or more of the following instances:
neglect, abandonment, unemployment, immorality, habitual drunkenness, drug
addiction, maltreatment of the child, insanity or affliction with communicable
disease. (Gamboa-Hirsch vs CA)
IN CASE OF DEATH, ABSENCE OR UNSUITABILITY OF BOTH PARENTS- substitute
parental authority shall be exercised by surviving grandparent
if several survive, one designated by court (214)
FILIAL PRIVILEGEDescendant can not be compelled to testify, in a criminal case, against his parents
and grandparents , except- indispensable in a crime against the descendants OR
crime by one parent against the other
SUBSTITUTE AND SPECIAL PARENTAL AUTHORITY shall be exercised by : (in default
of parents or court appointed guardian )
1. surviving grandparent
2. oldest brother or sister, over 21 years of
age, unless disqualified
3. childs actual custodian, over 21 of age,
unless unfit or disqualified. (216)
IN CASE OF FOUNDLINGS , ABANDONED, NEGLECTED OR ABUSE CHILDREN (217)
Substitute parental authority shall be entrusted to
- heads of childrens homes, orphanages and similar institution duly accredited by
proper govt agency
- designation shall be through summary judicial proceeding
SPECIAL PARENTAL AUTHORITY SHALL BE EXERCISED BY- the School, its administrator and teachers
- Individual, entity or institution engage in
child care while under their supervision
instruction or custody

It shall apply to all authorized activities whether inside or outside the premises of
the school , entity or institution.
The school administrator, teacher or individual engaged in child care and exercising
parental authority shall in no case inflict corporal punishment upon the child.
DISTINCTION BETWEEN SUBSTITUTE AND SPECIAL PARENTAL AUTHORITY
Substitute parental authority is exercised in the case of death, absence or
unsuitability of parents.
Substitute parental authority is not exercised concurrently with the exercise by
parent of parental authority.
Special authority is exercised concurrent with parental authority of parents.
The parents temporarily relinquish parental authority over those granted special
authority while children are in the custody of the latter.
LIABILITY OF PERSONS GIVEN SUBSTITUTE OR SPECIAL PARENTAL AUTHORITYShall be principally and solidarily liable for damage caused by acts or omissions of
the minor under their custody.
The parents, guardian or person exercising substitute parental authority shall be
subsidiarily liable.
Due diligence is available as defense.
RIGHTS OF PARENTS OR PERSON EXERCISING PARENTAL AUTHORITY- (220)
- to keep them in their company
- to support
- to educate
- to instruct them by right precept
and good example
- to provide for their upbringing in keeping with
their means.
- to give them love and affection
- to give them advice and counsel
- to give them companionship and
understanding
- to provide them with moral and spiritual
guidance
- to inculcate in them honesty, integrity, selfdiscipline, self-reliance, industry and thrift
- To stimulate their interest in civic affairs
- To inspire in them compliance with
duties of citizenship
- to enhance, protect, preserve and
maintain their physical and mental
health at all times .
- to furnish them with good and
wholesome educational materials
- To supervise their activities, reaction and
association with others
- To protect them from bad companies
- To prevent them from acquiring habits
detrimental to their health, studies and
morals.
- to represent them in all matters affecting
their interest
- to demand from them respect and
obedience
- to impose discipline on them as may be

required under the circumstances

- to perform such other duties as are
imposed by law upon parents and
guardians, such as those right and duties specified in chapters 3 and chapter 4 of
PD 603 on parental crimes
ART 204 of PD 603 penalizing parents or guardians who aid, or connive in the
commission by the child of delinquency or do acts promoting or contributing to a
child becoming juvenile deliquent.
LIABILITY FOR TORTS- (221)
Parents and 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
defenses of due diligence.
The liability is solidary. (Araneta vs. Arreglado 104 Phil 529 ) and primary and direct,
not subsidiary. (Barredo vs. Soriano, 73 Phil 607)
MEASURES TO ASSIST PARENTS IN IMPOSING DISCIPLINE TO CHILD223- petition court where child resides for an order providing for disciplinary
measure over the child
= child shall be entitled to assistance of counsel, of his own choice or appointed by
the court
= summary hearing shall be conducted wherein petitioner and child shall be heard
= if court finds petitioner at fault, even if petition is meritorious, the court may also
order deprivation or suspension of parental authority ; or adopts such measure as
may be reasonable, including appointment of a guardian
224- the measure may include commitment of the child for not more than 30 days in
entities or institution engaged in child care or childrens home duly accredited by
proper govt agency
- parent shall not interfere with the care of the child whenever committed, but shall
provide for his support.
- Upon proper petition or motu propio, the court may terminate the commitment
whenever just and proper.
PARENTAL AUTHORITY OVER PROPERTY OF CHILDREN (225)
Father and mother shall jointly exercise legal guardianship over the property of their
unemancipated common children without necessity of court appointment.
if the market value of the property or annual income of the child exceeds
P50,000.00,the parent concern shall furnish a bond in an amount the court may
determine, but not less than 10 % of the value of the property or annual income
Verified petition for approval of the bond shall be filed in proper court where child
resides, or if child resides in foreign country, court of the place where the property
is situated.
PROPERTY OF THE CHILD INCLUDES (226)
1- childs earnings through his labor, work
or industry
2. property acquired by child by
gratuitous title
3. property acquired by child by onerous
title
4. fruits of all the properties of the child
5. insurance proceeds accruing to the

child
- It shall be devoted exclusively for his support and education, unless the title or
transfer provides otherwise.
- And secondarily, for the collective needs of the family.
parental usufruct over the properties of their unemancipated children had been
abolished.
UNEMANCIPATED CHILD ENTRUSTED WITH MANAGEMENT OF PARENTS PROPERTY 227
- net proceeds of properties shall belong to the
parent/s owner.
- Child shall be given reasonable monthly
allowance in an amount not less than which
shall be given to strangers who manages the
property
- If parents give the entire proceeds of the
property to the child, it shall not be charged
to his legitime

TERMINATION OF PARENTAL AUTHORITY (228)

- upon death of parents
- upon death of child
- upon emancipation of the child
termination is permanent and can no be revived
OTHER GROUNDS FOR TERMINATION OF PARENTAL AUTHORITY (229)
- upon adoption of the child
- upon appointment of a general guardian
- upon judicial declaration of abandonment of
the child in a case filled for the purpose
- upon final judgment of a competent court
divesting the party concerned of parental
authority
- upon judicial declaration of absence or
incapacity of the person exercising parental
authority
-

PARENTAL AUTHORITY may be revived by final judgment by :

rescission of the adoption
termination of the guardianship
restoration of parental authority to parent
who has returned home after abandoning
child, or who has been divested of authority
for any other reason
- restoration of parental authority to an absent
spouse who has returned or formerly
incapacitated parents who has regained
incapacity
AUTOMATIC SUSPENSION OF PARENTAL AUTHORITY (230)
- conviction of parent for crime which carried the penalty of civil interdiction
- authority is automatically restored

upon service of the penalty or upon

pardon or amnesty of the offender
SUSPENSION OF PARENTAL AUTHORITY THRU COURT ACTION (231) Grounds- treats the child with excessive harshness or
cruelty
- gives the child corrupting orders, counsel or
example
- compels the child to beg
- subject child or allows him to be subjected to
acts of lasciviousness
above grounds include cases which have resulted from culpable negligence of the
parents
PERMANENT DEPRIVATION OF PARENTAL AUTHORITY (232)
parent subjected the child or allowed him/her to be subjected to sexual abuse
deprivation is permanent and can not be restored

NO CORPORAL PUNISHMENT BY THOSE EXERCISING SUBSTITUTE AUTHORITY (233)

- person exercising substitute parental authority have the same authority over the
child as the parents
- can impose discipline on the child as required under the circumstances, which
includes moderate punishment, but not amounting to maltreatment or cruelty
- can not inflict corporal punishment upon the child
EMANCIPATION AND AGE OF MAJORITY- (234-237 FAMILY CODE)
(REP. ACT NO. 6809)
Section 1 . Article 234, executive Order NO. 209 of the Family Code of the Philippines,
is hereby amended to read as follows :
Art. 234. Emancipation takes place by the attainment of majority. Unless otherwise
provided, majority commences at the age of 18 years.
Section 2. Articles 235 and 237 of the same code are hereby repealed
Section 3. Article 236 of the same code is also hereby amended to read as follows :
Art. 236. Emancipation shall terminate parental authority over the person and
property of the child who shall then be qualified and responsible for all acts of civil
life, save the exception established by existing laws in special cases
Contracting marriage shall require parental consent until the age of 21
Nothing in this code shall be construed to derogate from the duty or responsibility of
parents and guardians for children and wards below 21 years of age mentioned in
the second and third paragraphs of Article 2180 of the new civil code
BY reason of section 3 of RA 6809, the decision in Elcano vs. Hill, 77 SCRA 89 wherein
the father of a married minor was held still liable for damages resulting from the
childs having killed someone, which has been abrogated by the former Article 236 of
the family code, would still now be applicable under the said amendment to Article
236.
Change of First Name:
Administrative change of name or nickname is allowed on the following grounds:
1. petitioner finds the first name or nickname to be ridiculous, tainted with dishonor
or extremely difficult to write or pronounce;
2. the new first name or nickname has been habitually and continuously used by the
petitioner and he has been publicly known by that first name or nickname in the

community;
3. the change will avoid confusion. (RA 9048)
Before a person can legally change his given name, he must present proper or
reasonable cause or any compelling reason justifying such change. (Wang vs Cebu
City Civil
Registrar, 454 SCRA 155)